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Oral Answers to Questions
(6 years, 8 months ago)
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Jim Shannon (Strangford) (DUP)
The Secretary of State for Defence (Gavin Williamson)
We take the cyber-threat very seriously. We are strengthening our defences against increasingly sophisticated attacks. Our approach to cyber-defence includes a wide range of technical, operational and administrative measures, as well as close co-operation with the National Cyber Security Centre. Indeed, this week we are opening a dedicated state-of-the-art cyber-defence school at the Defence Academy in Shrivenham to enhance the cyber- skills of our defence personnel.
Jim Shannon
With the National Cyber Security Centre recording 34 C2 attacks and 762 slightly less serious C3 attacks, will the Secretary of State outline the steps his Department is taking to shore up our defences as best as humanly possible against an attack that some watchdogs have described as “imminent” in the light of rising Russian aggression?
Gavin Williamson
The hon. Gentleman is absolutely right to highlight this increasing threat, which is why we have set out plans to spend £1.9 billion over a five-year period on making sure that our cyber-defence is right and that we develop the capabilities not just to defend against attacks but to be able to operationalise this ourselves.
Richard Benyon (Newbury) (Con)
Britain’s forces are a major part of the enhanced forward presence in the Baltic states. At a recent meeting of the NATO Parliamentary Assembly, we heard of some of the malign attacks on those forces, particularly on the German deployment in Lithuania. I am not asking my right hon. Friend to give me any great detail, because that is necessarily secret, but can he assure the House that we are learning from every attack and that we are training people, down to quite a low level, to make sure that our forces are best equipped to deal with this?
Gavin Williamson
That is a very important point, because it is not just about the work that we do centrally; it is about training our forces to best understand the threats to which they will potentially be exposed as they operate in sometimes increasingly hostile fields. We have done that for all troops engaged in NATO operations, and more globally.
Jo Swinson (East Dunbartonshire) (LD)
Local authorities can be vulnerable to cyber-attacks. One in four councils, including East Dunbartonshire, have experienced cyber-security incidents, yet many do not even provide mandatory training in cyber-security. What discussions has the Secretary of State had with colleagues in the Ministry of Housing, Communities and Local Government, and indeed with the devolved Administrations, to make sure our local authorities do not become a soft target for cyber-attack?
Gavin Williamson
Part of the reason why we set up the National Cyber Security Centre was to make sure that all elements of government are working together to tackle this issue. I will take up the hon. Lady’s point with the Secretary of State for Housing, Communities and Local Government to highlight the threats and challenges that local government faces.
Mr Philip Hollobone (Kettering) (Con)
Young men and women traditionally joined Her Majesty’s armed forces, in large part, because of the physical challenge and the desire for combat experience. Should we not increasingly be recruiting young men and women because of their digital and IT proficiency, so that we can develop an elite cadre of cyber-specialists?
Gavin Williamson
As we face new challenges, we have to be realistic that we need a whole different range of skills—not just the traditional skills that have been the backbone of our armed forces, but new skills—and we are looking at how we can best recruit those skills into our armed forces, and not just into the regulars but also into the reserves to boot.
Mr Barry Sheerman (Huddersfield) (Lab/Co-op)
Surely the Secretary of State knows that what Mr Putin announced a few days ago is basically a new cold war, and it is not just cyber-warfare but every kind of warfare. At a time when Europe seems to be fragmenting, our commitment to NATO is deeply hurt by Donald Trump moving into a new phase of withdrawal. What are we going to do about all this?
Gavin Williamson
Putin has made it quite clear that he has hostile intent towards this country, and we have been seeing the build-up of his forces across the eastern front. Given what they have been doing over many years, we have to wake up to that threat and respond to it. Not just through nuclear weapons—although our continuous at-sea nuclear deterrent is absolutely integral to maintaining the peace—but through conventional armed forces, we have to match what Putin is doing with his Russian forces. We have to be aware of the challenges we face, which is very much why we are engaging in the modernising defence programme to ensure that we can match the Russians.
Ross Thomson (Aberdeen South) (Con)
Michael Fabricant (Lichfield) (Con)
The Secretary of State for Defence (Gavin Williamson)
The US and UK enjoy a strategic global partnership, which was forged through shared values and the belief in freedom and the rule of law and order, and reinforced by mutual history, partnership and military co-operation. UK-US defence co-operation is today the broadest, deepest and most advanced of any two countries. Our collaboration extends across the full spectrum of defence, including operations and flagship capability programmes. Our troops have fought alongside each other for more than 100 years, and 2018 will be another busy year.
Ross Thomson
I thank my right hon. Friend for his answer. Currently, the UK’s defence trade partnership with the US is worth more than $3 billion and includes collaboration on projects such as the F-35 programme, as well as a common compartment for UK-US ballistic missile submarines. Does he agree that with the UK regaining its ability to strike free trade deals across the globe post Brexit, we have the opportunity to deepen the bonds of our special relationship with the US when it comes to our national defence interests?
Gavin Williamson
We are already one of the world-leading countries in defence exports, and we have to seize the opportunity that exiting the European Union provides to expand our ability to export right around the world, making sure it is absolutely clear that Britain is a world leader in technology and science. So much of what we have historically done with the US we can do more and more right around the globe.
Michael Fabricant
May I implore my right hon. Friend not to listen to the Trump-bashing from Opposition Members? There is absolutely no indication that President Trump is attenuating his commitment to NATO. Furthermore, NATO, not the European Union, is the backbone of this nation’s defence, and my right hon. Friend should be—I know that he is—going out there to Washington and speaking to his counterparts. Will he talk about precisely what he has achieved? [Interruption.] Sorry about that.
Gavin Williamson
I thought my hon. Friend was incredibly eloquent.
Let us be clear that there is one reason why we have had peace right across the continent of Europe since the second world war: NATO, and the fact that it has acted as a deterrent to those who wish to prosecute aggressive campaigns against the west. I am very proud of the work that has been done, and will be done in the future, with our allies.
David Hanson (Delyn) (Lab)
Will the Secretary of State tell me what the pound-dollar rate was at the time of the commissioning of the F-35 programme, what it is now and how much extra taxpayers’ money is being paid as a result?
Gavin Williamson
I am afraid I not have details of the exchange rates with me, but I will write to the right hon. Gentleman with them. I can tell him that exchange rate changes over the past few years have cost us about a quarter of a billion pounds extra for the defence budget, as a result of the movement of the pound.
Jonathan Edwards (Carmarthen East and Dinefwr) (PC)
The US nuclear posture review was met with an equal level of posturing by President Putin during his state of the nation speech last Thursday. What is the British Government’s policy response to these worrying developments, as the world slides needlessly into a second cold war? Does the Secretary of State believe the British Government have a role to play in trying to de-escalate the situation?
Gavin Williamson
Let us be really clear: President Putin has been developing a much more hostile and aggressive posture towards the UK, the US and our allies for an awful lot longer than the past 12 months. Russia wants to assert its rights. We have seen increased Russian activity in the north Atlantic—a tenfold increase over the past few years. Do we sit submissively by and just accept that President Putin can do whatever he wishes to do? Or do we have to look at how we respond, making it clear that we are willing to stand up to bullying and the fact that nations are being subjected to attacks by Russia? We need to deal with that, and that is what we will do. That is why I am proud that we have the continuous at-sea nuclear deterrent.
Jeremy Quin (Horsham) (Con)
Will my right hon. Friend inform the House about what discussions he has with his US counterpart, so that we can work together to ensure that our other NATO allies pay the 2% of GDP that they should be paying towards our collective defence?
Gavin Williamson
In this country, I am very proud that we are able to say that we spend 2% of GDP on defence. But we cannot outsource Europe’s defence to the United States: every European country has to play its part in defending Europe. That means spending the money required to defend the borders of western Europe.
Stewart Malcolm McDonald (Glasgow South) (SNP)
I begin by paying tribute to the members of the armed forces who helped their country get moving, inasmuch as it could, over the past week.
How confident can the Secretary of State, his US counterpart or indeed any NATO counterpart be that we can bring to the table what we say we can bring, given that there is a £20 billion funding gap in his Department’s equipment plan?
Gavin Williamson
We are looking at exactly what resources and everything else we need going forward. We carry considerable contingencies in our equipment plan, and we are very confident that we will be able to deliver everything we need for our armed forces.
Stewart Malcolm McDonald
I am afraid that that is a bit of a “head still in the sand” answer. The National Audit Office said that projects will have to be delayed, scaled back or cancelled. Will the Secretary of State ensure that no project in Scotland will be delayed, scaled back or cancelled?
Gavin Williamson
I am sure the hon. Gentleman is aware that we are doing the modernising defence programme. He will also be pleased to hear that we will open up our public consultation as part of that programme. We are going to be looking at all we do—how best we can use our armed forces to deliver for the whole United Kingdom, and how to make sure that we are best protected against the threats from abroad. I look forward to the hon. Gentleman’s contribution to that.
Luke Pollard (Plymouth, Sutton and Devonport) (Lab/Co-op)
The Minister for the Armed Forces (Mark Lancaster)
The Royal Navy is growing for the first time in a generation, with the Queen Elizabeth class aircraft carriers and new submarines, frigates, patrol vessels and aircraft. The Royal Navy continues to meet the demands we place on it and maintains its operational edge.
Luke Pollard
With the sale of HMS Ocean, Devonport and the nation have lost a third of our Royal Navy amphibious assault ships. In more and more uncertain times, can the Minister reassure people in Plymouth that Devonport will not see any more cuts to frigates, amphibious assault ships and survey ships such as HMS Scott in the upcoming review?
Mark Lancaster
I certainly take this opportunity to underline our thanks to the people of Plymouth for their age-old commitment to and support for the Royal Navy. I absolutely assure the hon. Gentleman that Devonport will continue to be one of the cornerstone bases of the Royal Navy in future. As he will be aware, we only recently allocated the location of the Type 23 frigates. We are doing more work on the location of the Type 26 frigates, and we hope to be able to announce that shortly.
Richard Drax (South Dorset) (Con)
I must declare an interest, Mr Speaker: my grandfather and father both served in the Royal Navy, and both would be turning in their graves at the size of the Royal Navy. Although I quite accept the financial difficulty that the Minister has, does he accept from me that the threats from around the world—not least from China, which is talked about too seldom—are growing? We are sending one ship, I think, across the waters to the south of China. I ask the Minister, please, for an assurance that the Royal Navy’s size and capability will be increased.
Mark Lancaster
My hon. Friend will be aware of the recent deployment of HMS Sutherland, and there will be further such deployments in future to that part of the world.
For the first time in a generation, the Royal Navy is actually growing. It grew in manpower last year and will continue to grow over the next couple of years, and not just in manpower—the size of its surface fleet is also growing. The latest of the offshore patrol vessels arrived in Portsmouth only this weekend.
John Woodcock (Barrow and Furness) (Lab/Co-op)
Given everything that the Minister’s boss has just said about the importance of NATO, the deterrent and the threat from Russia, it would be absolutely unthinkable, would it not, not to order the full quota of seven Astute class submarines?
Mark Lancaster
The hon. Gentleman is a champion of his constituency and repeatedly comes to the House to support the work that his constituents have done for generations in building our submarines. I am very confident that shortly he will have the news that he wishes for.
Alex Chalk (Cheltenham) (Con)
When HMS Queen Elizabeth puts to sea, it will need a fleet of frigates and destroyers to escort and protect it. Will my right hon. Friend reassure the House that the Royal Navy has sufficient vessels to perform that vital task while protecting our shores at home?
Mark Lancaster
Yes, indeed, I can reassure my hon. Friend that the Royal Navy continues to meet all its operational requirements. As I said a few moments ago, the size of our fleet will increase in the years to come.
Wayne David (Caerphilly) (Lab)
The Minister will be aware that the National Audit Office has produced a scathing report on the Ministry of Defence’s equipment plan for 2017 to 2027. It says that there is a £20.8 billion gaping black hole in the MOD’s budget. Can the Minister tell me why the Type 31e frigate is not even referred to in the equipment plan?
Mark Lancaster
It is a little bit rich when the hon. Gentleman comes to the Dispatch Box to criticise this Government over supposed black holes in defence spending, given the previous Labour Government’s record in this area, but I am sure the Defence Procurement Minister, my hon. Friend the Member for Aberconwy (Guto Bebb), will write to him to explain why that is the case.
Maggie Throup (Erewash) (Con)
Luke Hall (Thornbury and Yate) (Con)
Vicky Ford (Chelmsford) (Con)
The Parliamentary Under-Secretary of State for Defence (Guto Bebb)
With an equipment plan worth £180 billion over 10 years, a rising defence budget and an £800 million innovation fund, there are great opportunities for innovative suppliers to work with the Ministry of Defence. The Department recently took part in a Pitch@Palace event, reaching out to defence sector entrepreneurs, and the open call for innovation has been changed to increase opportunities to work with the Government.
Maggie Throup
Baltex, which is based in my constituency, is a leading supplier of high-performance fabrics, meshes and nets that are designed to keep our service personnel safe and well-protected in the field. What is my hon. Friend doing to support businesses in the defence supply chain that manufacture technical textiles, and will he and the Secretary of State consider visiting Baltex to see the innovative work that is being carried out in Erewash in support of our armed forces?
Guto Bebb
I thank my hon. Friend for her question. Indeed, I would like to take her up on her kind offer of a visit to Baltex, which is an important provider of services to the Ministry of Defence. It is a classic example of a company that is generating key supplies for the Ministry of Defence and for our armed services, and it is being innovative in the way that it does that. Indeed, we see that innovation across the board with Ministry of Defence contractors—they are innovative for the UK economy in addition to supplying our armed forces.
Guto Bebb
I thank my hon. Friend for that question. I am very disappointed not to have been able to visit Surrey Satellite Technology, which developed that facility. Unfortunately, my visit did not take place last Thursday owing to the weather.
This is a significant development. From my perspective, it is an example of innovative thinking being developed by the MOD and the Air Force. Even more importantly, it was a concept only 10 months ago and it has now been procured. Obviously, as part of our combat air strategy, the way in which we interlink with satellite technology will be a key consideration for the Ministry of Defence.
Vicky Ford
The Minister’s predecessor recently paid a very welcome visit to BAE in Chelmsford, which has played a critical role in developing Britain’s radar capacity through the generations. Does the Minister agree that, when it comes to the next generation of ballistic missile defence radar, it is vital to maintain British capacity and make sure that these skills stay in Britain?
Guto Bebb
I thank my hon. Friend for her question and pay tribute to BAE for the work that is being done in her constituency. She is absolutely right to highlight the importance of keeping skills in the United Kingdom. Members from all parts of the House should be proud that the Ministry of Defence is responsible for more than 20,000 apprenticeship opportunities throughout the United Kingdom, as it highlights again that Ministry of Defence procurement leads to high-quality, skilled jobs in all parts of the UK, including Chelmsford.
Mrs Madeleine Moon (Bridgend) (Lab)
What impact does the Minister see coming from his attempts to increase innovation in defence suppliers if the UK withdraws from REACH, the European regulation on the registration, evaluation, authorisation and restriction of chemicals, and if the free movement of scientists and engineers is not part of the Brexit agreement? Certainly, defence companies have expressed grave concerns to me about that.
Guto Bebb
This Government want to continue the free movement of people with relevant skills. The MOD is already engaging with the REACH issue. As it happens, I will be meeting relevant companies tomorrow to discuss the matter. I fully understand the hon. Lady’s concerns, but the MOD is on top of the issue and is looking at it closely. I am confident that we will have an agreement that will benefit both the United Kingdom and our European Union partners.
Stephen Doughty (Cardiff South and Penarth) (Lab/Co-op)
BCB International is a fantastic and innovative defence company, also supplying the civilian and humanitarian sectors, based in my constituency and in that of my hon. Friend the Member for Llanelli (Nia Griffith). Indeed, I have eaten ration packs cooked on its fantastic FireDragon fuel. The company needs support from all Departments to be able to export effectively. Will the Minister commit to speaking with his colleagues at the Department for Transport, and perhaps to meeting me, to ensure that it gets support from the whole Government to be able to export to other markets, including the United States?
Guto Bebb
I would be more than delighted to meet the hon. Gentleman to discuss the issue in more detail. I was very pleased to visit the company in question in my previous position as a Wales Office Minister, and it is difficult not to be impressed by what it provides for our armed services. I am more than happy to take any opportunity to support the company and Welsh businesses.
Gavin Robinson (Belfast East) (DUP)
The portfolio management agreement that the Ministry of Defence struck with MBDA offers the framework through which we can achieve innovation with defence suppliers. Is the Minister considering agreeing more portfolio agreements, and does he envisage that that will be any time soon?
Guto Bebb
The hon. Gentleman makes a very important point. One of the first meetings that I had in my new position was with MBDA. Indeed, I also met its chief executive in Paris recently. The agreement is an example of what can be done to embed innovation in the way in which we do procurement. It shows support for UK-based companies and a degree of partnership between the MOD and the companies in question.
Robert Courts (Witney) (Con)
May I also welcome the combat air strategy? Will the Minister please give a commitment that the review will look not only to ensure that the RAF has the aircraft that it needs to fight the conflicts of the future, but at how British industry will deliver them?
Guto Bebb
My hon. Friend is a great champion for the RAF and for his constituency. I believe that he called for the combat air strategy before the announcement was made by my right hon. Friend the Secretary of State. This is indeed about capability, but it is also about embedding the ability of UK industry to respond to the needs of the 21st century, and the combat air strategy will do just that.
Nia Griffith (Llanelli) (Lab)
There is crippling uncertainty about the customs arrangements that our defence suppliers will face after Brexit. This is threatening their ability to innovate and invest. Just today, Airbus, the RAF’s biggest supplier of large aircraft, has warned that trade barriers will seriously impede its ability to move parts across borders. It is clear that only a comprehensive customs union with the EU can guarantee frictionless trade, so will the Minister explain why the Government have ruled out this option?
Nia Griffith
The fact of the matter is that ADS, the trade body, has said that the Government’s preferred options are either incomplete or so complex that they simply will not be viable. Why will this Government not listen to the voices of industry such as ADS and the CBI? Why are they ignoring those voices and their support for a customs union? Is it not the case that the Government are putting ideology above the interests of defence suppliers and pursuing an extreme Brexit that will damage jobs, our sovereign capability and, ultimately, our national security?
Guto Bebb
I find it interesting that only a few weeks ago the hon. Lady was voting against a proposition from her own Back Benchers for the United Kingdom to stay within the customs union. It is also the case that the announcement made by the Leader of the Opposition was about staying within a customs union, not the customs union; in terms of listening to the voice of industry, there is not much in common between what was said by the Leader of the Opposition and the CBI.
Tony Lloyd (Rochdale) (Lab)
The Secretary of State for Defence (Gavin Williamson)
Our armed forces are among the very best in the world. Through the modernising defence programme, we will assess the ever-changing threats that this country faces and understand what we can do to make them ever more effective at keeping us safe today and into the future.
Tony Lloyd
The Defence Secretary will recognise, given his earlier answers, that the threats that we face—both conventional and from new forms of technology—are massive and varied, and come not simply from Russia, but from many different sources. In that context, he talks about a fiscally non-neutral defence review. Will he tell us whether the Chancellor has agreed to sign up to that process?
Gavin Williamson
When the Prime Minister, the Chancellor and I met and agreed the terms of reference of the modernising defence programme, we were absolutely clear that it was not to be fiscally neutral. We were to understand what the threats were and understand the capabilities that were needed, and make sure that the Ministry of Defence leads a study to ensure that we are best equipped to deal with those threats.
Bob Blackman (Harrow East) (Con)
Will my right hon. Friend update the House on what progress has been made on the modernising defence review, so that we can implement what is needed to ensure the defence of the realm?
Gavin Williamson
I assure my hon. Friend that we are making good progress. As I said earlier, we are opening this up to public consultation. We are very eager to report back to the House as quickly as possible, and we hope that that can be done by June or July, before the NATO summit.
Nia Griffith
We have seen in this past week how our armed forces rise to the challenge in any weather, but despite our increased commitment to the Baltic states, cuts to training have left the Royal Marines with fewer opportunities to develop their cold weather warfare skills. In January, the Minister for the Armed Forces said of cuts to training exercises in Norway:
“I am confident that that was a one-off in-year saving.”
Can the Secretary of State confirm that training will return to normal levels this year?
Gavin Williamson
We have already had 500 Royal Marines training out in Norway this year, and we look forward to continuing that collaboration going forward. It is absolutely right to say that our armed forces are always ready to serve, and when things are difficult, it is our armed forces who always step up to the plate.
Julia Lopez (Hornchurch and Upminster) (Con)
The Secretary of State for Defence (Gavin Williamson)
I was trying to offload various questions on to my ministerial colleagues, Mr Speaker. Sadly, they were not willing to take them. [Interruption.] God loves a trier.
I have regular conversations with my European and US counterparts on maintaining defence co-operation between the European Union and NATO. EU-NATO co-operation is key to combating the breadth of challenges we face, and the institutions must work together in a way that is complementary and prevents duplication. The UK will continue to support better working between the EU and NATO while we remain in the EU and after we leave.
Julia Lopez
I thank the Secretary of State for taking my question. Following the recent signing of the permanent structured co-operation pact between 25 EU nations, what role does he envisage for the UK after Brexit in ensuring that the EU’s future defence co-operation plans enhance NATO rather than detract from it?
Gavin Williamson
There have always been traditional tensions within the European Union as to which way it would like to take its role in defence. We want to work with our European Union partners. We must not forget, however, that 80% of NATO’s defence is provided by countries outside the European Union. We should not see leaving the European Union as a step towards making the continent of Europe less safe. Indeed, it is fair to say that in the decades before the European Union was invented, NATO was already keeping the continent safe, incredibly successfully. We want to have the opportunity to work closely with our European Union partners, but equally we want to make sure that that does not detract from the amazing work that NATO does.
Martin Whitfield (East Lothian) (Lab)
The European Defence Agency does not envisage third-party countries joining, so is that one of the agencies that the Government will be seeking an administrative arrangement with?
Gavin Williamson
We are very happy to discuss how best we can work with our European partners, but we do not want to do anything that diminishes what we agreed to on 23 June 2016, which is exiting the European Union. If we can work in a pragmatic way with European partners, that is good, but let us not forget that most of what we do in, say, equipment programmes is done through bilateral relationships, not through the European Union.
Tom Pursglove (Corby) (Con)
The Parliamentary Under-Secretary of State for Defence (Mr Tobias Ellwood)
The armed forces covenant annual report was published in December 2017. I am pleased to say that more than 2,000 organisations and companies are now signed up. The new cross-Whitehall body, the veterans board, chaired by the Defence Secretary, is used to ensure that all Departments meet their covenant commitments.
Tom Pursglove
I am very grateful to my right hon. Friend for that answer. What conversations has he had with colleagues in the Ministry of Housing, Communities and Local Government about ensuring that there is better understanding in local government of their duties and obligations and what they need to be doing under the covenant?
Mr Ellwood
My hon. Friend raises an important point. It is important that each Department understands its commitments. That is why I stressed the importance of the veterans board, on which the Secretaries of State of all the Departments are represented. We now have proper assessment techniques to make sure that Departments’ commitments—in that case, to do with housing—are met.
Gerald Jones (Merthyr Tydfil and Rhymney) (Lab)
Members across the House and people across the country were horrified to read last week that the Ministry of Defence had taken money raised from the LIBOR funds that was supposed to benefit forces charities and support the delivery of the armed forces covenant, and instead spent it on projects—although worthy ones—that should be part of routine departmental spending. We know that things are bad in the MOD, but it can hardly consider itself a charity. Can the Minister tell the House how that was allowed to happen? More importantly, will the Ministry be paying the money back?
Mr Ellwood
I also saw those comments in the press. It is important to understand that LIBOR grants are there for additional facilities. The MOD has a responsibility to provide core activities. Obviously, there is a grey area between a core activity and an additional facility. I am more than happy to look at the details of what the hon. Gentleman raises, and I will write to him.
Sir Robert Syms (Poole) (Con)
Kirstene Hair (Angus) (Con)
The Parliamentary Under-Secretary of State for Defence (Mr Tobias Ellwood)
Members will recall that the Armed Forces (Flexible Working) Bill passed its Third Reading on 29 January 2018 and has now received Royal Assent. It will allow Regular armed forces personnel to work part time for a temporary period, subject to the operational capability of the applicant’s unit.
Sir Robert Syms
I thank the Minister for his reply. To recruit and retain people in the armed services these days, it is important to have more flexible terms and conditions. How rapidly does he think that will happen? Will it be implemented now or in two or three months?
Mr Ellwood
I am grateful for my hon. Friend’s question. It is important to recognise that we need to reflect the needs and aspirations of civilian society. Flexible capability has already been introduced, and the process is ongoing. The Bill has received Royal Assent, as I mentioned, and will come into force in April 2019.
Kirstene Hair
It is extremely important that we continue to make careers in the armed forces desirable through measures such as flexible working. However, in Scotland, due to the SNP Government, personnel will be paying higher taxes than their colleagues south of the border. Will my right hon. Friend do all he can to clear up the ill-thought-out mess that the SNP has created?
Mr Ellwood
I am not sure there is much more to add than “ill-thought-out mess”.
Melanie Onn (Great Grimsby) (Lab)
On the conditions of service, it is also right that servicemen and women who become unfit for duty should have a system that supports them that is fit for purpose. We know that currently, it is not. The Minister said that his Department would publish a response to the February 2017 review of the armed forces compensation scheme a year after publication. Where is it?
Mr Ellwood
I will certainly write to the hon. Lady with the details of that. She is absolutely right; we want to see people recuperate, recover and get back on to the frontline. One of the big changes last year was our mental health and wellbeing strategy, which does exactly that—it removes the stigma that sometimes is attached to people coming forward, to make it clear when there is an issue that needs to be dealt with, so that they can get back on to the frontline. I will write to her.
Nick Thomas-Symonds (Torfaen) (Lab)
Many constituents who have given outstanding service to our country have come to me with mental health problems. How can we ensure that the conditions of service also include post-service follow-up, to give these people the care they need?
Mr Ellwood
That leads on nicely from the answer that I just gave. The mental health strategy was brought in. This was not working well before, and people were reluctant to come forward. We now have 11 major departments across Britain established in the main hubs of where our armed forces are based that are designed to assist people in stepping forward and dealing with mental health issues. We should also recognise that the armed forces 24/7 military mental health helpline, which allows direct access to support 24/7, was launched last week.
Mr Marcus Fysh (Yeovil) (Con)
The Secretary of State for Defence (Gavin Williamson)
At last month’s NATO defence ministerial, we discussed NATO modernisation. This is a UK priority, and my ambition is for a modern NATO, fit to face the new global challenges and delivering against its commitments. We will take further decisions to modernise the alliance when Defence Ministers next meet in June and at the next NATO summit in Brussels in July.
Mr Fysh
UK defence equipment manufacturers can bolt on to EU defence programmes. For example, with its unmanned systems project with the MOD, Leonardo in Yeovil is well placed to help Leonardo in Italy with its recently awarded EU defence project in multinational unmanned systems integration. Can my right hon. Friend assure us that such co-operation will happen without the UK submitting to EU defence operational and equipment investment governance that may risk undermining NATO?
Mr Jim Cunningham (Coventry South) (Lab)
The Parliamentary Under-Secretary of State for Defence (Mr Tobias Ellwood)
Pay rates are recommended by the independent Armed Forces Pay Review Body. We look forward to receiving its next set of recommendations later in the spring. We have made clear to all personnel that any award, once announced, will be backdated to 1 April 2018.
Mr Cunningham
Is the Minister actually saying that the pay increase for the armed forces has been delayed, and if so, when does he intend to implement it?
Mr Ellwood
As I say, we are waiting for the report to come through. It is unfortunate that we have had to introduce this pay restraint, but we should not lose sight of why pay restraint was introduced in the first place. It was because the previous Government were living beyond their means. [Interruption.] Only with the return to a strong economy can we responsibly increase public sector pay.
Fabian Hamilton (Leeds North East) (Lab)
Last week, we saw how our armed forces stepped up to help with the chaos caused by the very challenging weather conditions. Does the Minister not agree that these brave men and women therefore deserve more than a 1% pay rise—it is, in fact, a real-terms pay cut—and will he make that clear to the pay review body?
Mr Ellwood
It actually works the other way around, but I agree with the hon. Gentleman in that I would like to see an increase of more than 1%. However, I go back to the rather delicate point, which was received with a bit of hostility by Opposition Members, that we cannot lose sight of the fact that they must have a sense of responsibility in making sure we have a strong economy, so that we can increase public sector pay across the board.
If I may, I will just underline the wider point I made last week that without strong defence in this fast-changing and, indeed, dangerous world, a strong economy cannot in fact be guaranteed. That is why I said that 2% of GDP on defence is not enough. Thanks to the efforts of this Defence Secretary, we now have an opportunity to make the case and to put the argument through the defence modernisation programme for the more robust defence posture that will ensure we retain access to the very vital international markets that will help our economy.
James Cleverly (Braintree) (Con)
The Minister for the Armed Forces (Mark Lancaster)
The UK has a key role in NATO’s enhanced forward presence by leading a battlegroup in Estonia and contributing to a US-led battlegroup in Poland. We have deployed about 800 personnel to Estonia and about 150 to Poland. These deployments are but part of our broader commitment to NATO and its assurance measures on the alliance’s eastern flank.
James Cleverly
I thank the Minister for that response. Does he agree with me that both our security and our economy rely on the confidence placed in us by our NATO allies that we will, in the event of an article 5 situation, be both ready and willing to support our eastern flank NATO allies?
Mark Lancaster
My hon. Friend makes a very important point. It is absolutely right that hard power is an important part of maintaining our defence and security. Indeed, the vice-chief of the defence staff said the same last week, and he made a strong case for spending more on defence. Our armed forces and our civilians in defence must and do work in partnership with other Departments in international development and, indeed, diplomacy.
Liz Twist (Blaydon) (Lab)
The Minister for the Armed Forces (Mark Lancaster)
I continue to monitor the recruiting partnering project very closely.
Liz Twist
Recruiting people into our armed forces today is more important than ever. The Defence Secretary said recently: “We’re working closely with Capita to make the contract work better”. Can the Minister give some specific examples of that work? How will he assess whether performance has improved, and in what timeframe?
Mark Lancaster
Defence has been working closely with Capita on a recruitment improvement plan, which is now being implemented. Initial signs are promising. We now expect Capita to deliver on improvements in converting applicants to enlistees. We will monitor progress closely in the coming months, including ensuring that the new defence recruiting system reaches full operating capability as quickly as possible.
Mr John Baron (Basildon and Billericay) (Con)
Mark Lancaster
There is an awful lot going on at the moment. We are working closely with Capita. It would be wrong to say that there have not been challenges in implementing the defence recruiting system. There is also a change in demographics in the UK. That is why we are working so hard to widen our recruiting base and have set targets to recruit from both the BAME—black, Asian and minority ethnic—and female populations. There has been an increase of some 2.6% over the year, but we must do all we can to continue to ensure that joining the armed forces is an attractive occupation. I am particularly proud that the Army is now the largest employer of apprentices in the UK, which is something that we intend to continue.
Damien Moore (Southport) (Con)
Mike Wood (Dudley South) (Con)
The Parliamentary Under-Secretary of State for Defence (Mr Tobias Ellwood)
The Ministry of Defence works with a range of partners to ensure that service personnel and veterans receive the best mental health support possible. There has been a comprehensive overhaul of our approach to mental health, as I mentioned earlier, with our mental health and wellbeing strategy. However, I stress that the number of mental health cases dealt with in the armed forces is smaller than in the general civilian population.
Damien Moore
Does my right hon. Friend agree that organisations such as SSAFA, which runs a weekly support group in my constituency of Southport, play an essential role in providing help and support to veterans, including any mental health support they may need?
Mr Ellwood
There are over 400 military charities that support not just our armed forces and the veterans, but the whole veterans family—the community—and SSAFA is just one of them. It does immensely important work in providing the support that our armed forces and veterans not only deserve, but request.
Mike Wood
Mental health problems place a great strain on relationships, while family breakdown can worsen mental health issues. Will the Minister ensure that mental health support extends to service personnel families, with a particular focus on providing support to keep military families together?
Mr Ellwood
My hon. Friend is absolutely right. It is often not the person themselves who steps forward to recognise there is a mental health concern, but the partner, or the husband or wife, a family member or maybe a comrade in their unit. It is important that we provide the necessary support, which we are doing. It is a very macho environment, and unfortunately there has been a stigma attached to putting one’s hand up and saying there is issue, but we are moving forward, not just in society but in the armed forces, in challenging that.
Several hon. Members rose—
Mr Speaker
Order. I am sure the House will want to join me in welcoming the visit of a delegation of distinguished Canadian parliamentarians here in the House today: our very good friends from Canada—thank you—who are accompanied by, among others, the hon. Member for Brigg and Goole (Andrew Percy).
Mr Stephen Hepburn (Jarrow) (Lab)
I am dealing with the sad case of a young man in my constituency who was injured out of the Army, but did not get the treatment he needed. Apparently he slipped through the net because of his junior rank. Will the Minister review his systems to make sure that this does not happen in future?
Mr Ellwood
The hon. Gentleman is very pertinent in what he says. We should have a robust system that can ensure that no person is left behind in any way. I would be more than happy to speak to him afterwards to see what more can be done to help that individual.
In the light of who our guests are, may I say thank you to the Canadians? We held a “Five Eyes” conference on mental health and veterans issues last year, where we compared notes from the “Five Eyes” community to improve all our contributions and better support for our armed forces personnel and veterans.
Emma Hardy (Kingston upon Hull West and Hessle) (Lab)
Sadly, some veterans return from service with mental health conditions and are faced with a shameful lack of resources to help them transition back into civilian life and find employment. I am very proud that a local Hull charity founded by Paul Matson, Hull 4 Heroes, provides them with that much needed support network and voice. Will the Minister join me in celebrating its work, and will he commit to providing our veterans with all the support for transition they desperately need?
Mr Ellwood
The hon. Lady is absolutely right. Our transition intervention liaison service works specifically to ensure that the needs of individuals are met as they make the transition from being in the armed forces to being a veteran. I join her in paying tribute to that charity. All such charities across the country—some small, some large—do a huge amount of very important work.
Dr Caroline Johnson (Sleaford and North Hykeham) (Con)
The Secretary of State for Defence (Gavin Williamson)
I thank our armed forces for doing an incredible job to support those affected by the recent treacherous weather across the United Kingdom. From Devon to Scotland, 328 service personnel, 124 vehicles and a Chinook helicopter, which is currently operating in Cumbria, have transported staff delivering critical care and services to and from hospitals, delivered medicines to vulnerable people in the community and assisted police in evacuating members of the public stranded in vehicles. My Department and the armed forces stand ready to assist with any further calls for support.
Dr Johnson
I would like to put on record my thanks to the armed forces who came out in Lincolnshire over the past few days to support us.
The physical fitness of our servicemen and servicewomen is extremely important, yet sports facilities at RAF Cranwell, used by the military and local communities alike, are currently in a poor state of repair. I have received correspondence from constituents with particular regard to the lights for the astroturf. Will my right hon. Friend confirm when they will be repaired, and will he ask the Minister responsible for the Defence Infrastructure Organisation to come and see for himself the fitness training and other facilities at RAF Cranwell that require repair?
Several hon. Members rose—
Mr Speaker
Order. I gently remind colleagues that topical questions must be shorter. Forgive me. I am sure it was a very good question, but if people are going to have a script it needs to be much shorter. We have a lot to get through.
Gavin Williamson
I can absolutely promise that the Under-Secretary of State for Defence, my right hon. Friend the Member for Bournemouth East (Mr Ellwood) is going to visit and take part in the assault course. Let me make it clear to Hansard that we are talking about my right hon. Friend the Member for Bournemouth East doing the assault course, not the right hon. Member for South Staffordshire (Gavin Williamson).
Tom Brake (Carshalton and Wallington) (LD)
Gavin Williamson
Our Department and our armed forces always operate within the letter of UK and international law. Do our armed forces step up to keep our country safe from terrorist threats? Yes they do, and they will continue to do so. I am very proud of the amazing work they do to keep this country safe. I hope the right hon. Gentleman is also proud.
David Morris (Morecambe and Lunesdale) (Con)
Gavin Williamson
Our armed forces play an incredibly important role in training rangers to stop the vile trade of ivory poaching. I am very pleased that we have been able to extend the scheme and continue the amazing work with Governments across Africa to ensure that majestic animals such as elephants are protected.
Wes Streeting (Ilford North) (Lab)
The Parliamentary Under-Secretary of State for Defence (Mr Tobias Ellwood)
I hope that the hon. Gentleman will join me in paying tribute to the 126,000 cadets that we have in this country. Being a cadet provides a wonderful introduction to our armed forces and what they can do, giving confidence to youngsters. I will certainly look at that individual case. Charities are involved in different ways in supporting our cadets and I am happy to meet the hon. Gentleman afterwards.
Michelle Donelan (Chippenham) (Con)
Gavin Williamson
We have the most amazing resource in the armed forces—our people—and we want to give them the very best opportunities as they leave the armed forces. The bursary scheme offering up to £40,000 for them to train as teachers is a great opportunity. Our armed forces often have some amazing technical expertise that they will be able to bring straight to schools to benefit future generations.
Rachael Maskell (York Central) (Lab/Co-op)
Mr Ellwood
The hon. Lady will be aware that the MOD owns 2% of the land in the United Kingdom. There is a rationalisation programme to make sure that we can provide the housing for the future, and therefore, bases are being closed. Others are being opened and being invested in as well. I am happy to look at the individual case and discuss what can be done for the future.
Sir Desmond Swayne (New Forest West) (Con)
The Minister for the Armed Forces (Mark Lancaster)
There is a contingency plan, which we are looking at very closely, where we will be moving probably about 150 personnel to act as role models on the frontline for recruiting.
Stephen Morgan (Portsmouth South) (Lab)
Mark Lancaster
One of the complexities of the Reserve estate is that much of it is owned not by the Ministry of Defence, but by the Reserve forces themselves. This is adding some complexity, but we hope to be able to update the House in due course.
Stephen Crabb (Preseli Pembrokeshire) (Con)
Does my right hon. Friend agree that the further set of defence commitments reached by the Prime Minister and President Macron at the summit in January represents not just the deepening of this important bilateral relationship, but a strengthening of NATO?
Gavin Williamson
The co-operation that our country has with France is second to none. The Anglo-French summit signposts an important development in that relationship—not just in terms of operations going forward, but about how best we can collaborate in terms of our defence industries.
Nick Smith (Blaenau Gwent) (Lab)
Mark Lancaster
As I mentioned earlier, we have seen some improvement in recent weeks. The numbers are increasing and that is a positive sign.
Alan Mak (Havant) (Con)
Will my right hon. Friend join me in congratulating Lockheed Martin, which is based in Havant, on having just been awarded the contract to build the new missile defence system for the Type 26 frigate?
The Parliamentary Under-Secretary of State for Defence (Guto Bebb)
I am very pleased to join my hon. Friend in congratulating the company. The Type 26 is a fantastic ship for the Navy, and I think the fact that, again, we see UK industry providing components for the Type 26 is an example of the way in which the Ministry of Defence is contributing to innovation and growth in the UK economy.
Mr Speaker
I call Carol Monaghan—[Hon. Members: “Hear, hear!] The hon. Lady just did not how popular she was.
Carol Monaghan (Glasgow North West) (SNP)
Leo Docherty (Aldershot) (Con)
Today’s Daily Telegraph continues to report grave concerns about the Iraq fatality investigations unit. Will the Minister agree to urgently review the case of Major Robert Campbell and offer reassurance to our service community that the bond of trust between soldiers and the Government remains intact?
Mark Lancaster
My hon. Friend makes a powerful point. This is not about process but about people and the Government’s obligation to look after them, and a balance needs to be struck between supporting our service personnel and veterans and the right of Iraqi families to find out what happened to their loved ones. I should add that an Iraq fatality investigation cannot lead to a criminal conviction, but I will look carefully at what he has said.
Christine Jardine (Edinburgh West) (LD)
Can the Minister confirm that Carillion was the largest provider of facilities and management services for the MOD and whether there are any gaps in services at the 360 UK defence sites and establishments it reportedly had contracts for?
Mr Ellwood
Our joint ventures included agreements put forward ahead of time to make sure that if one partner was to step back, the other would continue to work, and that is exactly what has happened right across the MOD.
Jeremy Lefroy (Stafford) (Con)
Will my right hon. Friend pay tribute to UK peacekeepers in South Sudan and elsewhere across the world?
Gavin Williamson
I would very much like to pay tribute to the amazing peacekeeping work that our armed forces do in so many areas, South Sudan being a perfect example. It goes to show what an amazing impact our armed forces have in projecting Britain’s influence in all parts of the globe.
Thangam Debbonaire (Bristol West) (Lab)
What assessment has the Secretary of State carried out of the preparedness of our armed forces for any expansion in the Syrian war, given the proxy conflict between Russia and America in that zone?
Gavin Williamson
Conservative Members have always recognised the importance of being fully engaged in what is happening in Syria and Iraq, and we will continue to look at that exceptionally closely. I am incredibly honoured that our armed forces are playing a vital role in degrading the Daesh terror cult, and that is what we will continue to do going forward.
Robert Courts (Witney) (Con)
What assessment have Ministers made of the contribution of defence to UK plc in protecting the trade that forms such an important part of our economy?
Chris Bryant (Rhondda) (Lab)
The incidence of traumatic brain injury among the armed forces is much higher than it is even in the general population. How will we make sure that every single member of the armed forces who has such an injury gets the full rehabilitation they require?
Mr Ellwood
The hon. Gentleman is absolutely right. We want to make sure we provide the necessary support to all those affected, although I would question whether the incidence is higher than among the general population. The new process we are putting forward, including the helpline launched last week by the Defence Secretary, will make sure that we can meet our covenant promise.
Mr John Baron (Basildon and Billericay) (Con)
Reports suggest that of the near 100,000 who wanted to join the Army last year, only 7,500 actually made it, in part because of time delays. What can be done to streamline the recruitment process?
Mark Lancaster
My hon. Friend makes a valuable point. We have identified as a key problem the time of flight between application and enlisting in the Army. Shortening this period and making sure we get the maximum number of people through the system is the main focus of our work at the moment.
Mr Speaker
For a short single-sentence question without commas or semicolons, I call Chi Onwurah.
Chi Onwurah (Newcastle upon Tyne Central) (Lab)
Why has the mechanised infantry vehicle programme not got an acquisitions strategy—never mind that the contract has only three years to go—when it could bring mechanised vehicles back to Newcastle?
Mrs Sharon Hodgson (Washington and Sunderland West) (Lab)
The parents of Corporal Simon Miller are yet to receive justice for their son, one of the Red Caps murdered in Iraq in 2003. I have written to Ministers over many years on this issue. Will the Minister agree to meet me and the Millers to find some justice for their son?
Kirsty Blackman (Aberdeen North) (SNP)
Will the Minister follow the Scottish Government’s lead and commit to lifting the public sector pay cap for armed forces workers?
Gavin Williamson
We are looking at how to reduce the effect of the Scottish Government’s nat tax on all our service personnel. Some 70% of service personnel serving in Scotland are seeing their pay reduced because of the Scottish Government’s actions; we need to look at how to deal with that.
UK/EU Future Economic Partnership
(6 years, 8 months ago)
Commons ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
The Prime Minister (Mrs Theresa May)
With permission, Mr Speaker, I shall make a statement on our future economic partnership with the European Union.
In December, we agreed the key elements of our departure from the EU, and we are turning that agreement into draft legal text. We have made clear our concerns about the first draft that the Commission published last week, but no one should doubt our commitment to the entirety of the joint report. We are close to agreement on the terms of a time-limited implementation period to give Governments, businesses and citizens on both sides time to prepare for our new relationship, and I am confident that we can resolve our remaining differences in the days ahead. Now we must focus on our future relationship: a new relationship that respects the result of the referendum, provides an enduring solution, protects people’s jobs and security, is consistent with the kind of country that we want to be, and strengthens our union of nations and people. Those are the five tests for the deal that we will negotiate.
There are also some hard facts for both sides. First, we are leaving the single market. [Interruption.] In certain ways, our access to each other’s markets will be less than it is now. We need to strike a new balance. However, we will not accept the rights of Canada and the obligations of Norway.
Secondly, even after we have left, EU law and ECJ decisions will continue to affect us. The European Court of Justice determines whether agreements that the EU has struck are legal under the EU’s own law. If, as part of our future partnership, Parliament passes a law that is identical to an EU law, it may make sense for our courts to look at the appropriate ECJ judgments so that we both interpret those laws consistently—[Interruption] —as they do for the appropriate jurisprudence of other countries’ courts. However, the agreement that we reach must respect the sovereignty of both our legal orders. That means that the jurisdiction of the European Court of Justice in the United Kingdom will end. It also means that the ultimate arbiter of disputes about our future partnership cannot be the court of either party.
Thirdly, if we want good access to each other’s markets, it has to be on fair terms. As with any trade agreement, we must accept the need for binding commitments, so we may choose to commit some areas of our regulations, such as state aid and competition, to remaining in step with the EU’s.
Finally, we must resolve the tensions between some of our objectives. We want the freedom to negotiate trade agreements around the world. We want control of our laws. We also want as frictionless a border as possible with the EU, so that we do not damage the integrated supply chains on which our industries depend, and do not have—[Interruption.]
Mr Speaker
Order. A very considerable level of orchestrated heckling is taking place in the House, including heckling from some Members who will doubtless later grin at me and seek to catch my eye. They may find that there is a clash between the two. We should set a good example that will impress our dear and loyal Canadian friends, and indeed, for that matter, the British people. The House can rest assured that I will allow the maximum possible questioning and scrutiny on this occasion, as I always do, but the Prime Minister is entitled to be heard with courtesy.
The Prime Minister
There are tensions in the EU’s position, and some hard facts for it. The Commission has suggested that an “off the shelf” model is the only option available to the UK, but it has also said that in certain areas, none of the EU’s third-country agreements would be appropriate; and the agreement envisaged in the European Council’s own guidelines would not be delivered by a Canada-style deal. Finally, we need to face the fact that this is a negotiation, and neither side can have exactly what we want. However, I am confident that we can reach agreement, so I am proposing the broadest and deepest possible future economic partnership, covering more sectors and involving fuller co-operation than any previous free trade agreement.
There are five foundations that must underpin our trading relationship: first, reciprocal binding commitments to ensure fair and open competition, so that UK business can compete fairly in EU markets and vice versa; secondly, an independent arbitration mechanism; thirdly, an ongoing dialogue with the EU, including between regulators; fourthly, an arrangement for data protection that goes beyond an adequacy agreement; and, fifthly, free movement will come to an end. But UK and EU citizens will still want to work and study in each other’s countries, and we are open to discussions about how to maintain the links between our people.
We then need to tailor this partnership to the needs of our economies, and we should be absolutely clear this is not cherry-picking. Every free trade agreement has varying market access depending on the respective interests of the countries involved. So if this is cherry-picking, then so is every trade arrangement. What matters is that our rights and obligations are held in balance.
On goods, a fundamental principle in our negotiating strategy is that trade at the UK-EU border is as frictionless as possible, with no hard border between Northern Ireland and Ireland. This means no tariffs or quotas, and ensuring that products only need to undergo one series of approvals in one country. To achieve this, we will need a comprehensive system of mutual recognition. That can be delivered through a commitment to ensure that the relevant UK regulatory standards remain as high as the EU’s, which, in practice, means that UK and EU regulatory standards will remain substantially similar in future. Our default is that UK law may not necessarily be identical to EU law, but it should achieve the same outcomes. In some cases, Parliament might choose to pass an identical law. If the Parliament of the day decided not to achieve the same outcomes as EU law, it would be in the knowledge that there may be consequences for our market access. And we will need an independent mechanism to oversee these arrangements, which I have been clear cannot be the European Court of Justice.
We also want to explore the terms on which the UK could remain part of EU agencies, such as those critical to the chemicals, medicines and aerospace industries. That would mean abiding by the rules of those agencies and making an appropriate financial contribution, and the UK would also have to respect the remit of the ECJ in that regard. Parliament could decide not to accept these rules, but with consequences for our membership and linked market access rights.
Lastly, to achieve as frictionless a border as possible and to avoid a hard border between Northern Ireland and Ireland, we also need an agreement on customs. The UK has been clear it is leaving the customs union. The EU has also formed a customs union with some other countries, but those arrangements, if applied to the UK, would mean the EU setting the UK’s external tariffs, being able to let other countries sell more into the UK, without making it any easier for us to sell more to them, or the UK signing up to the common commercial policy.
That would not be compatible with a meaningful independent trade policy, and it would mean we had less control than we have now over our trade in the world, so we have set out two potential options for our customs arrangement: a customs partnership where, at the border, the UK would mirror the EU’s requirements for imports from the rest of the world for those goods arriving in the UK and intended for the EU, or a highly streamlined customs arrangement, where we would jointly implement a range of measures to minimise frictions, together with specific provisions for Northern Ireland. Both would leave the UK free to determine its own tariffs, which would not be possible in a customs union.
Taken together, the approach we have set out on goods and agencies, and the options for a customs arrangement, provide the basis for a good solution to the very specific challenges for Northern Ireland and Ireland. My commitment to this could not be stronger: we will not go back to a hard border between Northern Ireland and Ireland; nor will we break up the United Kingdom’s own common market with a border down the Irish sea. As Prime Minister, I am not going to let our departure from the EU do anything to set back the historic progress made in Northern Ireland; nor will I allow anything that would damage the integrity of our precious Union. The UK and Irish Governments and the European Commission will be working together to ensure we fulfil these commitments.
That approach to trade in goods is important for agriculture, food and drink, but here other considerations apply. We are leaving the common agricultural policy and the common fisheries policy, and will want to take the opportunity to reform our agriculture and fisheries management and regain control of access to our waters. I fully expect that our standards will remain at least as high as the EU’s, but it will be particularly important to secure flexibility here to make the most of our withdrawal from the EU for our farmers and exporters. We will also want to continue to work together to manage shared stocks in a sustainable way, and agree reciprocal access to waters and a fairer allocation of fishing opportunities for the UK fishing industry.
On services, we have the opportunity to break new ground with a broader agreement than ever before. For example, broadcasting and financial services have never previously been meaningfully covered in a free trade agreement. We recognise that we cannot have the rights of membership of the single market, such as the country of origin principle or passporting, but we should explore creative options, including mutual recognition, to allow broadcasting across borders. My right hon. Friend the Chancellor will set out more detail on financial services later this week. We will also look to agree an appropriate labour mobility framework that enables travel to provide services in person, as well as continued mutual recognition of professional qualifications. Finally, our partnership will need to cover agreements in other areas, including energy, transport, digital, civil judicial co-operation, a far-reaching science and innovation pact, and cultural and educational programmes.
We cannot escape the complexity of the task ahead. We must build a new and lasting relationship, while preparing for every scenario, but with pragmatism, and calm and patient discussion, I am confident we can set an example to the world. Yes, there will be ups and downs over the months ahead, but we will not be buffeted by the demands to talk tough or threaten a walk out, and we will not give in to the counsels of despair that this simply cannot be done—for this is in both the UK and EU’s interests. As we go forwards, foremost in my mind is the pledge I made on my first day as Prime Minister: to act not in the interests of the privileged few, but in the interests of all our people, and to make Britain a country that works for everyone. My message to our friends in Europe is clear. You asked us to set out what we want in more detail. We have done that. We have shown we understand your principles. We have a shared interest in getting this right, so let us get on with it. I commend this statement to the House.
Jeremy Corbyn (Islington North) (Lab)
I thank the Prime Minister for the advance copy of the statement. Twenty months have passed since the referendum, and a year has passed since article 50 was triggered—20 wasted months in which the arrogance of some in the Cabinet, who said that it would be the easiest deal in history, has turned into debilitating in-fighting. We have seen set-piece speech after set-piece speech, yet the Prime Minister still cannot bring clarity to the negotiations or certainty to British businesses or workers.
The Prime Minister’s speech on Friday promised to unite the nation, yet it barely papered over the cracks in her own party. Even her own Minister for the Cabinet Office said that it was only “an ambitious opening bid”, so who knows where we will end up? The European Union published a detailed legal document last Wednesday; despite the criticisms rightly made from across the House, where is anything comparable in detail and focus from the UK Government? The reality is that the speech failed to deliver any clear and credible solution to the problems we face. This Government’s shambolic approach to Brexit risks taking us down a dangerous road. This Government’s reckless strategy is putting our jobs and manufacturing industries at risk.
The Prime Minister’s only clear priority seems to be to tie the UK permanently to EU rules that have been used to enforce privatisation and block support for industry. [Interruption.] The Prime Minister now seems to be saying that we will lose some access to European markets and that Britain will be worse off. [Interruption.]
Mr Speaker
Order. I said that the Prime Minister must not be subjected to orchestrated heckling and attempts to shout her down. The same goes for the Leader of the Opposition. Let me give notice now to some of the people who are shouting loudly: if you want to persist in that behaviour, do not be surprised if you do not catch my eye in the questioning. If you want to be called, behave; if you wish to persist with misbehaviour, frankly, you might as well leave the Chamber now.
Jeremy Corbyn
Thank you, Mr Speaker.
Does the Prime Minister now agree that the Brexit Secretary was wrong when he told the House of Commons in January last year that a Tory Brexit deal will deliver the “exact same benefits” as the single market and the customs union? If so, why has it taken her so long to say so?
In her speech, the Prime Minister said that she wants “good access”. Can she make it clear today whether that means tariff-free access? The Prime Minister said that she wants a “customs arrangement”, but does that cover all sectors of industry or just some? Which will be excluded, and with what consequences in terms of tariffs and other barriers? Does the Prime Minister still think that a good trade deal can easily be reached with the Trump presidency after its unilateral imposition of tariffs on steel and aluminium imports, which follows its disgraceful attack on Bombardier?
It is possible to retain the benefits of the single market and the customs union. The problem is that we have a Prime Minister who is being held hostage by the extremes in her Cabinet who are willing to sacrifice parts of British business and industry and willing to risk a hard border in Northern Ireland to carry on with their ideological crusade to shrink the state, slash investment and bring about an economic race to the bottom.
The Prime Minister said in her speech that, in areas like workers’ rights and the environment,
“we will not engage in a race to the bottom in the standards and protections…There is no…political constituency in the UK which would support this”.
That simply is not true. In the recent past, we have seen the Secretary of State for International Trade write:
“It is intellectually unsustainable to believe that workplace rights should remain untouchable”.
The Leader of the House has said:
“I envisage there being…no regulation whatsoever—no minimum wage, no maternity or paternity rights, no…dismissal rights, no pension rights”.—[Official Report, 10 May 2012; Vol. 545, c. 209.]
The Foreign Secretary has described EU-derived employment legislation as “back-breaking”, and in its leaked assessments, the exit analysis from the Department for Exiting the European Union stated that there could be opportunities for the UK in deregulating in areas such as the environment and employment law. There clearly is a political constituency that supports a race to the bottom on workplace rights: it is called the Cabinet.
On the crucial issue of Northern Ireland, the Prime Minister offered no real solution. Instead, she rehashed an already discredited Government idea to use a mix of technology and good will to ensure no hard border—an idea that the Brexit Secretary has already conceded is mere “blue-sky thinking”. Does the Prime Minister not understand that this is not just about cross-border paperwork and trade? There is also the issue of maintaining the social peace that has endured for 20 years. Will she condemn the ridiculous remarks made by the Foreign Secretary last week, when he not only compared the Irish border to that of Camden and Islington, but wrote her a letter saying it was not the British Government’s responsibility to prevent a hard border?
There are some things we do welcome in the Prime Minister’s statement—[Interruption.] I knew Members would be pleased. For one, it is clear that she has now abandoned her ridiculous red line regarding any role for the European Court of Justice, which opens the door to her welcome adoption of Labour’s position of the UK remaining a key part of the European Union agencies that are of benefit to this country.
As I set out last week, Labour’s priority is to get the best Brexit deal for jobs and living standards to underpin our plans to upgrade the economy and invest in every region and every community in this country. The Conservative Government’s reckless austerity is damaging our country, and the increasing sense of drift over Brexit risks increasing that damage. Now the Prime Minister admits that her Brexit plan will reduce our access to European markets and leave people worse off. We have had 20 months of promises, soundbites and confusion. However people feel about Brexit, it is clear to them that this Government are nowhere near delivering a good deal for Britain.
The Prime Minister
The Leader of the Opposition raised a number of issues. First, he raised the issue of steel tariffs and the position of the United States of America, and I spoke to President Trump about this yesterday. May I just say to the right hon. Gentleman that we are much more likely to get a positive result by engaging with the United States of America than by standing on the sidelines sniping and shouting at them, as he always does?
The right hon. Gentleman talks about workers’ rights and other standards. We have been very clear: this Government are not just maintaining workers’ rights, but enhancing them; and we are committed to maintaining high environmental standards. He asked whether we want a deal that was tariff-free. I gave him the statement in advance, so if he had read it, he would know that I referred to tariff-free access in my statement. He talks about ideological crusades, and I have to say that only person in this House—[Interruption.] Well, not the only person, because the shadow Chancellor is also on an ideological crusade.
There is a fundamental flaw at the heart of what the Leader of the Opposition has chosen as his approach towards the European Union and the post-Brexit relationship. He talks about free trade agreements with the European Union, yet he is clear that he would go against one of the key elements of ensuring that we could have such trade deals, notably the issue around state aid. He would tear up rules on state aid and fair competition, as he does not believe in fair competition—that is perfectly clear.
At the very beginning of the right hon. Gentleman’s remarks, he asked about the withdrawal agreement—the draft legal text on the withdrawal agreement that was published by the European Union last week—and he referred to my speech last Friday as if it was about the same thing. I have to tell him that it was not, actually, so may I just explain? There are three issues and three elements of the process at the moment. We are negotiating the final arrangements for the implementation period, which we hope will be agreed in March—we certainly intend that they will be. Alongside that, we are looking at the legal text of the withdrawal agreement—Michel Barnier has made it clear that, on his timetable, we would be looking at October for that—and we now want to start negotiations on the future economic partnership and the future security partnership.
The right hon. Gentleman talks about the European Court of Justice. The jurisdiction of the Court in the United Kingdom will end. We will bring back control of our laws to this Parliament—to this country—unlike the Labour party’s position, which is to remain in the single market and, in effect, remain under the jurisdiction of the ECJ. We will also take control of our borders, unlike the Labour party’s position—[Interruption.] Well, Labour Members do not seem to know what their position is. The Leader of the Opposition said that the Labour party would bring free movement to an end, but at the same time the shadow Brexit Secretary said that “easy movement” would continue. We know that Labour Members would not bring back control of money, because they have said that they would pay whatever it takes to the European Union regardless.
The right hon. Gentleman talks about delays. This Government are focusing on making a success of Brexit and on delivering for the British people, but Labour has nothing to offer. Labour voted against moving on the negotiations in the European Parliament. Labour Members twice voted against the Bill that delivers Brexit in this Parliament; now they have gone back on what they promised on the customs union; and over a week ago the shadow Chancellor said that Labour would keep “all options open” on whether or not to have a second referendum. This Government and this party are clear: there will be no second referendum. We are delivering for the British people, and we are going to make a success of it.
Mr Iain Duncan Smith (Chingford and Woodford Green) (Con)
I congratulate my right hon. Friend on what I thought was an excellent speech—clear and determined, giving the European Union a very clear sense of direction. I thought that perhaps the most important point in the speech—the point voted on in the referendum—was about taking back control, so does she agree that bringing back to a British Parliament all decisions about our arrangements is exactly about delivering on that? When she gets into negotiations about trade arrangements with her European counterparts, will she remind them that cake exists to be eaten and cherries exist to be picked?
The Prime Minister
I am grateful to my right hon. Friend. He is absolutely right that when people voted in the referendum to leave the European Union, they voted to take back control of our borders, our money and our laws. We are absolutely clear that when we have left the European Union, decisions over our laws and standards will be for this Parliament to take. We will take back control.
Ian Blackford (Ross, Skye and Lochaber) (SNP)
I thank the Prime Minister for early sight of her statement.
It is now over 18 months since the referendum. At a time when the United Kingdom should be putting the finishing touches to its negotiating position, this Government are still struggling to find paper on which to write down their wish list. It was nothing short of a humiliation for the Government last week that when the EU presented a draft legal text for withdrawal, the Prime Minister gave a speech expounding empty rhetoric one more time.
No single market and no customs union mean that there is no solution that would prevent a hard border in Ireland. The Government’s own analysis has revealed that growth would be hit by up to 9% in such an extreme scenario. Scottish Government analysis revealed that Scots could face a loss of £2,300 per person each year, with our GDP around £12.7 billion lower by 2030. That is the reality of the Government’s plans.
Last month, as the Prime Minister gathered with her Cabinet at Chequers, there was one glaring absence. Where was the Secretary of State for Scotland? Scotland’s voice was not heard at those crucial Cabinet discussions. There has been a flagrant disregard by this Government of the nations that make up the United Kingdom. The Scottish Secretary might not have been invited to Chequers, but rest assured that Members on these Benches will be in this Chamber, speaking up for Scotland at every opportunity—[Interruption.]
Mr Speaker
Order. A very sizeable number of Scottish Conservative Members are waving at the right hon. Gentleman. Mr Ross, you are leading with your flag, at which you have very considerable experience. Mr Blackford, what I would say to you is: KBO, man—just keep going.
Ian Blackford
Thank you, Mr Speaker.
We will settle for nothing less than continued membership of the single market and customs union. Scotland voted to stay in the EU. We cannot—we will not—be ripped out of the single market and customs union against our will. We will defend the jobs that the Prime Minister is prepared to trade away. We in Scotland must determine our own destiny. We are a European nation and we intend to stay one. Will the Prime Minister finally recognise that staying in the single market and the customs union is the least damaging outcome for jobs and prosperity?
The Prime Minister
The right hon. Gentleman talks about having Scottish nationalist MPs in this House, but I note that there are only nine here today, which is, of course, fewer than the number of Conservative Scottish Members of Parliament. The decisions that led to the approach in my speech were taken by the whole Cabinet, not by a sub-group of the Cabinet, and all members, bar one who was in this House at the time, were present when that decision was taken.
The right hon. Gentleman talks about timing. Like the Leader of the Opposition, he appears to have misunderstood the fact that the European Union set out at the beginning that there would be different phases to this negotiation. I was always straight with the House that I believed that citizens’ rights should be in the first phase. They were; we agreed that in December. Many people, including possibly the right hon. Gentleman—I cannot remember—were sceptical about whether we would get that deal. We did get that deal, and now we move on to the second phase of the negotiations.
May I say to the right hon. Gentleman that, yet again, he has tunnel vision on there being only one approach to take on a single market and a customs union? We will ensure that we get trade with the European Union that is tariff-free and as frictionless as possible; that there is no hard border between Northern Ireland and Ireland; and that this country will be able to run an independent trade policy, negotiating trade deals around the rest of the world.
Finally, the right hon. Gentleman talks about Scotland as an independent nation taking decisions. Yet again, I remind him that, from the point of view of Scotland’s economy, the most important thing is to be part of the United Kingdom.
John Redwood (Wokingham) (Con)
The Prime Minister speaks for the big majority of the British people when she says that both sides now need to get on with it. Will she confirm that the British Government will ensure that we are ready to leave in March 2019, with or without a deal, and with or without a positive response from the EU?
The Prime Minister
I can reassure my right hon. Friend that we will be leaving in March 2019 and that we continue to work on all scenarios to ensure that we are ready.
Hilary Benn (Leeds Central) (Lab)
Although the Prime Minister’s speech provided some welcome additional detail on her view of the future partnership, the Irish Foreign Minister, Simon Coveney, said yesterday that she had not done so when it comes to
“maintaining a largely invisible border on the island of Ireland.”
Regardless of the means that she has in mind for achieving that, is she able today to give a guarantee to businesses in Northern Ireland and the Republic that their manufactured goods and agricultural products will be able to cross the border without checks, controls or infrastructure when we leave the European Union?
The Prime Minister
I welcome the right hon. Gentleman’s opening remark in which he said that I had provided more detail in the speech I gave on Friday. He might like to have a discussion with the Leader of the Opposition about the fact that there was such detail in the speech.
We will not return to a hard border between Northern Ireland and Ireland. We want that free flow of goods, services and people to be able to continue—of course we are committed to the common travel area—and we also want the free flow of goods, services and people between Northern Ireland and the rest of the United Kingdom. That is why we took the position that we did on the proposal that came forward last week from the European Commission. That would have meant a border down the Irish sea, which is unacceptable.
Anna Soubry (Broxtowe) (Con)
No one can doubt the determination of our Prime Minister to get the very best deal for our country in these most difficult of negotiations. In her speech on Friday, she was frank about the complexity and economic consequences of the deal that she seeks with the European Union. In the spirit of that frankness, and given that it is undoubtedly the case that any deal will bear considerable administrative costs, will the Prime Minister undertake to keep this House, and therefore our constituents, fully apprised of those administrative costs of our eventual relationship and deal with the European Union?
The Prime Minister
As we have said before, we will of course make information available to this House, when it is possible to do so, as we go through this process of negotiation. A certain amount of information has already been made available, for example about the amount of money that my right hon. Friend the Chancellor of the Exchequer set aside for the contingency preparations that are being made by Departments. My right hon. Friend will be aware of some of the other steps that we have taken, including setting up two new Departments when I became Prime Minister, to ensure that we had a Department focused on exiting the European Union and another—the Department for International Trade—focused absolutely on making a success of the opportunities that will be open to us once we have left the EU.
Yvette Cooper (Normanton, Pontefract and Castleford) (Lab)
The Prime Minister is still proposing that we will be outside a customs union and have different external tariffs and commercial policies, which she knows will mean burdensome rules of origin checks, and customs checks on goods crossing borders to ensure that businesses do not evade or avoid those different external tariffs. She has proposed that 80% of businesses in Ireland would be exempt from any of those checks, but she will be aware that security experts have warned of the risk from not just physical infrastructure at the border, but an increased incentive for smuggling, particularly given the links between smuggler groups and paramilitary organisations. Why is she continuing to pursue a policy on the customs union that involves a risk of increasing both the smuggling and security threats?
The Prime Minister
First, I remind the right hon. Lady that the 80% reference was in one of the options on future customs arrangements between Northern Ireland and Ireland. Of course, what I set out in the speech in relation to that border issue was about not just the customs arrangements, but the regulatory standards that this country will be following once we have left the European Union. We are not going to be in a customs union—we are not going to be in the customs union—because that would prevent us from being able to follow an independent trade policy, which is something that we should be following because we can see great opportunities for companies, businesses, jobs and prosperity in the UK as a result.
Sir William Cash (Stone) (Con)
Given my right hon. Friend’s confirmation in both her speech on Friday and her statement today that our EU policy rightly rests on fundamental UK principles in our national interest—namely, the sovereignty of our own Parliament and our own judiciary, our own democracy and the integrity of the United Kingdom—does she agree that the official Opposition’s continuous unprincipled reversals of their policy betrays not only their own voters, but the country?
The Prime Minister
My hon. Friend is absolutely right. We consistently hear the Opposition saying one thing about their Brexit policy one minute and something else the next. Crucially, they would not be delivering for the British people, because they would stay in the single market and the customs union, they would see the jurisdiction of the European Court of Justice, and they would continue to pay sums of money over to the European Union. Those are the very things that people voted against.
Sir Vince Cable (Twickenham) (LD)
May I first congratulate the Prime Minister on the fact that, after 20 months of tough negotiation, she appears now to have delivered at least a trade deal with her own Cabinet? In her future independent trade negotiations with the economic nationalist and warmonger in the White House, what exactly are the Prime Minister’s red lines, and do they include the NHS?
The Prime Minister
I am absolutely clear that as we look to negotiate a trade deal with the United States of America, the national health service will remain as it is today. It will remain free at the point of use. The national health service is not for sale. We continue to stand by the principles of the NHS, and we will be very clear about that when we come to negotiating a trade deal with the United States.
Several hon. Members rose—
Mr Jacob Rees-Mogg (North East Somerset) (Con)
Thank you, Mr Speaker, for that compliment.
Does my right hon. Friend, having made such a generous offer to the European Union, expect more generosity than it has shown so far? I think particularly of the aggression in the draft legal text of suggesting a solution to the Irish problem that would have been in contradiction to the confidence and supply agreement with the Democratic Unionist party, threatening the existence of the Government. Does my right hon. Friend think that it is right for the European Commission to behave in such a high-handed fashion?
The Prime Minister
We are in a negotiation. Both sides put their positions at various stages. Just as the European Commission chose to put that position forward, so it was absolutely right for this Government to be clear—I repeated it last week in Prime Minister’s questions and I am happy to do so again—that the suggestion that there should be a border down the Irish sea separating Northern Ireland from the rest of the United Kingdom is completely unacceptable to this Government and, I believe, to any Government in the United Kingdom.
Mr Pat McFadden (Wolverhampton South East) (Lab)
On Friday and today, the Prime Minister said that our access to one another’s markets would be less than it is now. This is the public burial of the claim made by her Brexit Secretary a year ago in this House that the Government’s aim was to secure the “exact same benefits” as we now enjoy. The Prime Minister has admitted to the country that there is an economic cost to Brexit, so will she now tell us what is that economic cost, when the public will be told about it, and who will pay it?
The Prime Minister
Life is going to be different in the future because we will have a different relationship with the European Union. While the right hon. Gentleman and the Labour party consistently focus only on our relationship with the European Union, we, as a Government, are ensuring that we get the best possible trade deal with the European Union, together with trade deals with countries around the rest of the world, and that we develop our economy so that we have a Britain fit for the future.
Dr Sarah Wollaston (Totnes) (Con)
The Prime Minister is rightly putting the needs of patients first in seeking associate membership of the European Medicines Agency. Will she go further in doing the same and commit to freedom of movement, both now and in future, for researchers and those in the health and care workforce who seek to work and study in each other’s countries?
The Prime Minister
When we leave the European Union, free movement, which has been one of the pillars of the EU, will end. However, as I said in my statement and in my speech on Friday, EU citizens will continue to want to work and study here, and UK citizens will continue to want to work and study in the EU27. We will be setting out our proposals for our immigration rules on that, and we will stand ready to discuss the arrangements that will be made in future.
Emma Little Pengelly (Belfast South) (DUP)
I thank the Prime Minister for her robust rejection of the disgraceful European Union attempts to interfere in the internal constitutional affairs of our sovereign United Kingdom. Does she agree that in finding and pursuing the customs solutions outlined today, there is nothing—nothing—that could create additional barriers or additional requirements in relation to Northern Ireland’s trade with Great Britain in the internal market of the United Kingdom?
The Prime Minister
I am very happy to make it clear that we are looking for an arrangement that both maintains the internal market of the United Kingdom and ensures that we have no hard border between Northern Ireland and Ireland. We have set out proposals on how we can achieve that. I look forward to discussing those with the European Commission, and also with the Taoiseach and the Irish Government.
Sir Nicholas Soames (Mid Sussex) (Con)
Will the Prime Minister confirm that the Commission is now in full possession of all the issues upon which we are to negotiate, and thus that there is no good reason why these talks should not now proceed apace in an orderly and friendly fashion?
The Prime Minister
Absolutely. The European Union asked for more detail to be set out. I said that I would do that at the appropriate time. I have now done so both on security and on our economic partnership. My message to the European Union in relation to the negotiations is, “Let’s get on with it.”
Kate Hoey (Vauxhall) (Lab)
The Prime Minister made some very sensible suggestions in her speech about the relationship with regard to the border between Northern Ireland and the Republic of Ireland. Has she read a very good report by the European Parliament’s Committee on Constitutional Affairs about how the border issue can be solved by innovative technology and so on? Will she make sure that her officials also read that before they go back into negotiations?
The Prime Minister
I can tell the hon. Lady that I am aware of that report and have asked officials to look at it very carefully. I believe it gives some very good proposals for solutions.
David Duguid (Banff and Buchan) (Con)
I welcome my right hon. Friend’s commitment yet again to leave the common fisheries policy and the common agricultural policy—a commitment that is very welcome in my constituency in Scotland, which might surprise some Opposition Members. What impact does she think this new freedom will have on those sectors?
The Prime Minister
Obviously, we have to set our new agricultural policy and fisheries policy, but I believe that these freedoms will open up new opportunities for fishermen and farmers across the whole United Kingdom.
Emma Reynolds (Wolverhampton North East) (Lab)
Could the Prime Minister name an international border between two countries that are not in a customs union and have different external tariffs where there are no checks on lorries carrying goods at the border?
The Prime Minister
There are many examples of different arrangements for customs around the rest of the world. Indeed, we are looking at those—including, for example, the border between the United States and Canada.
Mr Bernard Jenkin (Harwich and North Essex) (Con)
I thank my right hon. Friend for her statement and congratulate her on a calm speech that has been widely welcomed. It was based on both the principles she has consistently set out towards leaving the European Union and the realistic compromises this nation will have to make to achieve a comprehensive trade agreement. Do we not now owe it to her to get behind her and her negotiations, instead of undermining her all the time, as the Opposition are doing?
The Prime Minister
I thank my hon. Friend. I think it would be a much stronger position if the Opposition were to get behind the Government and agree to support the approach we are taking to get the best possible deal from Brexit. We are focused on delivering for the British people. Sadly, the Opposition want to frustrate Brexit and fly in the face of the vote that was taken by the British people.
Mr Ben Bradshaw (Exeter) (Lab)
Do President Trump’s trade barriers, aimed primarily at us in Europe and against Canada, and the news from this lunchtime that the Americans are offering us a worse deal on open skies than the one we currently enjoy as members of the European Union, ever make the Prime Minister think that we might be making a mistake by removing ourselves from our single biggest market and the world’s biggest free trade area?
The Prime Minister
It is very important that the British people voted for us to leave the European Union. If the right hon. Gentleman is saying that we should stay in the single market and in the customs union, he is suggesting that the trade policy for the United Kingdom will be determined by the European Union without our having a say in it. That would mean that the European Union would determine our external tariffs and the basis on which we traded with countries around the rest of the world. If he really thinks that the European Union, in those circumstances, would put the interests of the United Kingdom first, I have to tell him that I do not think it would. It is better for us to have our own independent policy.
Mrs Kemi Badenoch (Saffron Walden) (Con)
Will my right hon. Friend clarify that, contrary to the comments made by the Leader of the Opposition, the establishment of an independent arbitration mechanism will mean that the ECJ will not have jurisdiction over our future relationship?
Alison McGovern (Wirral South) (Lab)
The Chancellor of the Exchequer will soon give us the spring statement. At that moment, the Office for Budget Responsibility will publish its financial outlook for our country. What instructions has the Prime Minister given to the OBR for it to produce that forecast? What has she informed it of her new policy for Brexit?
The Prime Minister
The OBR is an independent body. It determines its own forecasts and makes its own judgments about the future, and we look forward to seeing what it brings forward at the time of the spring statement.
Stephen Crabb (Preseli Pembrokeshire) (Con)
President Trump’s threats over steel products remind us that, alongside an independent trade policy, we need independent and effective trade enforcement and trade defence measures. What assurance can the Prime Minister give the House that we will have those systems in place from day one when we leave the European Union?
The Prime Minister
We are indeed working on ensuring that we have the necessary structures in place, and legislation will be brought forward to this House in due course in relation to those issues. My right hon. Friend made reference to trade remedies. Of course it is very important that we are able to determine those trade remedies, rather than leaving it to the European Union to determine them for us, as would happen under the policy of the Leader of the Opposition.
Caroline Lucas (Brighton, Pavilion) (Green)
Since the Brexit that the Prime Minister has set out is nothing like the Brexit we were promised—no “exact same benefits”, and far from £350 million a week for the NHS, we have nurses actually leaving the NHS and fewer coming in—does she not think it will be right to give the people the right to have a say on the final deal?
The Prime Minister
We actually have more nurses working on wards in the NHS now than we did in 2010. The British people were given a vote by this Parliament on membership of the European Union, and we are delivering on their decision.
Michael Fabricant (Lichfield) (Con)
The Prime Minister has consistently said that she wants a unique Brexit trade deal for Britain, and she has said again today that Canada and Norway are not the models for us. Is she aware that Angela Merkel has pointed out that Norway has a population of only 4 million, and Canada has a population of only 36 million and trades with the United States? Is the Prime Minister as pleased as I am that Angela Merkel has been able to form a Government, and does she agree that Angela Merkel, being the pragmatic lady she is, will have considerable influence on the European Union in securing a good deal for the United Kingdom?
The Prime Minister
I was pleased to speak to Chancellor Merkel yesterday to congratulate her on the formation of her Government. I look forward to the negotiations we will be having with Germany and the other members of the European Union. She and others have all been clear that, as we look to the future relationship, we must recognise that the models that already exist do not meet the requirements of the United Kingdom.
Mr Chris Leslie (Nottingham East) (Lab/Co-op)
The Prime Minister has been forced to admit that market access will be less. She wants to be straight with the public. This time last year, she promised that we would have
“the same benefits in terms of that free access to trade.”
Does she regret that?
The Prime Minister
We are setting out on negotiating a free trade deal that will ensure that, for goods, we continue to have tariff-free and as frictionless as possible trade across borders. We have also set out our ambition for financial services, digital services, broadcasting and a whole range of other areas. We will be achieving the benefits of the trade with the European Union in some cases in different ways, but that does not mean that we are not going to have the benefits of a good trading relationship with the European Union in future.
Maggie Throup (Erewash) (Con)
I welcome my right hon. Friend’s pragmatic approach to the negotiations with the EU, and her ongoing commitment to getting the best deal for Britain. Does she agree with me that by fixing the roof and eliminating the day-to-day budget deficit, Britain is now in a much stronger position to be able to forge new trading relationships with the rest of the world, as well as the EU, and make a success of Brexit?
The Prime Minister
My hon. Friend raises a very important point. It is of course the decisions that have been taken by Conservatives in government since 2010, which have put our economy in a much stronger position, that enable us to be able to do those very good trade deals. If we just look at what has happened recently—productivity is up, borrowing is down, employment is up—this is a strong economy, and we should have optimism about our future.
Diana Johnson (Kingston upon Hull North) (Lab)
Siemens is doing great work in east Yorkshire—in Hull, with a renewables factory, and in Goole, with plans for a train factory—so will the Prime Minister tell me whether she believes there will be the same access to European markets for Siemens once we have left the EU in March 2019?
The Prime Minister
I am very pleased to welcome the investment—and the continued investment—that Siemens is making in the United Kingdom. I meet the senior directors of Siemens from time to time to discuss their investment in the United Kingdom. We have been clear, as I said in my speech on Friday, that we have been listening to businesses. That is one of the reasons why we have talked about maintaining high regulatory standards in goods crossing borders, so that we can maintain that good trade access between the United Kingdom and the European Union in the future.
George Freeman (Mid Norfolk) (Con)
May I congratulate my right hon. Friend on a reassuringly and typically business-like speech on Friday? It sent a clear message that there will be no hard Brexit, only hard choices. Will she reassure me and the UK life sciences sector that her proposal for associate membership of the European Medicines Agency means that we will be able to sell medicines into Europe and continue to lead in the pioneering technologies of tomorrow’s medicines?
The Prime Minister
I am very clear about the important role that the life sciences industry plays in the United Kingdom, and I pay tribute to the work that my hon. Friend has done with it here in the United Kingdom. We wish to explore the possibility of some form of associate membership of those agencies. That is in the interests not just of the UK but of people across the EU, in terms of getting medicines to market more quickly.
Peter Kyle (Hove) (Lab)
The European Union has published the draft text of its legal stance of its negotiating position. The Prime Minister makes a speech, which does give more detail, but is still full of ambiguity. When will she publish the legal text of her negotiating stance?
The Prime Minister
I did try to explain this to the Leader of the Opposition, but I will have another go. The legal text that was published by the European Commission is not a legal text on its negotiations for the future economic or security partnership; it is a legal text on withdrawal agreement. We are working on that with the Commission, but what I have done is set out, from the United Kingdom’s point of view, what we want to see from our future economic partnership, just as I set out our future security partnership in Munich a few weeks ago. We now wait for the response from the European Union to our putting out our proposals before they have put out theirs.
Mr Peter Bone (Wellingborough) (Con)
In 389 days’ time, the United Kingdom will leave the dreadful European Union superstate. The Prime Minister will end the free movement of people; she will stop sending billions and billions of pounds to the EU each and every year; and we will make our own laws in our country, judged by our own judges. Does the Prime Minister find it slightly disconcerting that she is the first Conservative leader who has been able to unite those on these Benches on Europe?
The Prime Minister
I am very pleased that on these Conservative Benches we are united in the aim of ensuring that we deliver on the vote of the British people, we leave the European Union and we do it with a good deal that leads to an optimistic future for this country.
Angela Smith (Penistone and Stocksbridge) (Lab)
It is obvious that the Prime Minister sees a US trade deal as something of a priority, so will she guarantee that there will be no sacrifice of either the interests of UK farmers or our animal welfare and environmental standards in order to secure such a deal?
The Prime Minister
The United States has expressed interest in a trade deal with us—so have a number of other countries around the world, such as Australia and others—but as I have said, and as the Environment Secretary and others have said, we remain committed to high animal welfare and environmental standards.
Sir Desmond Swayne (New Forest West) (Con)
Were a settlement close, how will the Prime Minister react to entreaties to delay departure by agreement within article 50?
The Prime Minister
It is our intention to ensure that we can negotiate what is necessary to negotiate within the time scale that is set within article 50.
Helen Goodman (Bishop Auckland) (Lab)
Yesterday, I had an email from a senior businessman in the north-east, who says that the Prime Minister and her Cabinet
“seem to ignore…the real nature of global trade today…Our businesses wishing to trade with China or the USA build new facilities there”.
They do not
“send goods halfway around the globe…We…want…to share in existing EU arrangements”.
Why does the Prime Minister not start listening to the CBI and the chambers of commerce?
The Prime Minister
The CBI, the chambers of commerce and the Federation of Small Businesses welcomed what I set out in my speech on Friday as an ambitious programme, and welcomed the degree of detail in my speech. We are listening to business. That is why I put what I did in my speech about regulatory standards.
Paul Masterton (East Renfrewshire) (Con)
As a Conservative, it is always pleasing when pragmatism trumps ideology, but as a Unionist, it is vital that our departure from the EU does not undermine the political, constitutional or economic integrity of our Union. Can the Prime Minister confirm that it is her position that there will never be any differentiated deal for any constituent part of the United Kingdom?
The Prime Minister
I am absolutely clear that we want to maintain the United Kingdom. This is a precious Union of four nations but one people, and it is in the economic interests of all parts of the United Kingdom that we maintain the internal market of the United Kingdom. We do not want to see, and we will not see, Brexit leading to any break-up of the United Kingdom.
Jenny Chapman (Darlington) (Lab)
My hon. Friend the Member for Wolverhampton North East (Emma Reynolds) asked earlier where an example could be found of a border between jurisdictions. The Prime Minister gave the example of the border between Canada and the United States as being soft and frictionless. There are guns and armed customs guards on that border. Surely that is not what she has in mind? Can she perhaps find another example?
The Prime Minister
What I said was that we are looking at the border arrangements in a number of countries around the world. We are looking not just at the border arrangements the European Union has with a number of countries—it has a variety of customs arrangements with various countries—but more widely around the world. I have set out what I believe is a future arrangement for customs that will suit the United Kingdom and the European Union, and will ensure no hard border between Northern Ireland and Ireland. As the hon. Member for Vauxhall (Kate Hoey) pointed out, this has been picked up in the European Parliament and it has been made clear that there are innovative solutions that can deliver exactly what we are talking about.
Mr John Baron (Basildon and Billericay) (Con)
I commend the Prime Minister for her speech on Friday and her statement in the House today. With record inward investment, record manufacturing output and record low unemployment for a generation, when does she think economic reality is going to dawn on the doomsters on the Opposition Benches, particularly when it comes to the economic prize that will be available once we have left the EU?
The Prime Minister
Unfortunately, the Opposition are turning their face away from what is actually happening in our economy: productivity up, employment up, borrowing down. We are seeing good results in our economy, but there is more we can be doing. I am optimistic about what we can achieve through our trade arrangements with the EU in the future, but also, as we go outside and become a much more outward-looking country, with an independent trade policy.
Joanna Cherry (Edinburgh South West) (SNP)
The Prime Minister said that last week’s speech was not about draft withdrawal agreements produced by the EU, and I understand that. However, in answer to a number of questions from hon. Members today, she has suggested that that draft withdrawal agreement does not accurately reflect what she agreed to in December. If that is the case, when is she going to produce an alternative draft that does reflect accurately what she agreed to in December?
The Prime Minister
What I have said about the draft withdrawal agreement is that the European Commission chose to put in it—it is a lengthy document—a particular reference to the issue of the border between Northern Ireland and Ireland. That was the third option in the December joint report. The Taoiseach and I are both very clear that we want to resolve the issue using the first option in the report, notably the UK’s overall relationship with the European Union. There are ways in which all three options can be developed, including that third option, which is different from that produced by the European Commission, and that produced by the European Commission could not be accepted by the UK Government.
Vicky Ford (Chelmsford) (Con)
Competition policy is the glue that holds together all free trade agreements. Does the Prime Minister agree that the suggestion from the Labour party that it could somehow remain in the single market while running reckless through state aid policy is a fantasy fiction drama worthy of an Oscar?
The Prime Minister
My hon. Friend is absolutely right. She has hit the nail on the head.
Stella Creasy (Walthamstow) (Lab/Co-op)
My constituency neighbour, the right hon. Member for Chingford and Woodford Green (Mr Duncan Smith), may tell the Prime Minister that cherries are there to be picked and cake is there to be eaten, but however sweet it seems fudge is no way to run the country. So can she tell us straight? There are £400 million of public contracts that have full or partial EU funding and are due to expire in the next four months. Does she intend to renew or replace them, many of which are with education and skills facilities, or does she need to find a bus to write it on first?
The Prime Minister
Obviously, while we are still members of the European Union, we are looking at maintaining our relationships within the EU and maintaining our obligations and rights as a member of the EU. One issue that will be looked at in relation to the withdrawal agreement is what happens to contracts that are in place at the point at which we leave and what arrangements will pertain to those contracts.
Richard Graham (Gloucester) (Con)
I welcome the balance and realism in the Prime Minister’s speech. To allay the concerns of those who have continually argued that the only deal available to us would be a clone of previous deals with other countries, will my right hon. Friend confirm today that both her Government and the European Commission’s preparations show clearly that the deal reached with us will be unique, bespoke and multi-tiered, and will confirm the continuing existence of many areas of co-operation between our two areas, while respecting the result of the referendum?
The Prime Minister
My hon. Friend is absolutely right. This is a relationship that we will be building across a number of areas. I have spoken specifically about economic partnership and in most detail about the goods trade between the EU and the UK in the future. There is the security partnership as well and our work on civil judicial co-operation. There is a whole range of areas in which we will be building a new relationship but a continuing good relationship with the EU, because we may be leaving the EU, but we are not leaving Europe.
Stephen Timms (East Ham) (Lab)
The reality, unfortunately, is that the hard Brexit that the Prime Minister is now pursuing will lead inexorably and inevitably to a hard border in Northern Ireland. Between Canada and the United States, there are border checks of exactly the kind that she rightly says—unlike the Foreign Secretary—that she does not want in Northern Ireland. Will she confirm that she cannot name a single example anywhere in the world of an international border with no customs union and no border checks? It is a fantasy.
The Prime Minister
The Opposition need to stop thinking in this binary fashion—that either you are in a customs union or you cannot have suitable customs arrangements. This is exactly the problem. We have set out very clearly the options that are available. I have elaborated on another aspect of the relationship—notably, the regulatory standards. These two go together in building that trade relationship, which means no hard border between Northern Ireland and Ireland.
Robert Neill (Bromley and Chislehurst) (Con)
May I congratulate the Prime Minister on the pragmatic tone of her statement and her speech, which fits the natural tenor of our party, as well as our country? May I also congratulate her on her recognition of the importance of civil judicial co-operation in this matter, but will she accept that, consistent with the findings of the Justice Committee in the last Parliament, the Lugano convention arrangements are not a sufficient basis on which we should seek to go forward, as they are both more costly and slower than the existing procedures? We need something better than that.
The Prime Minister
We will be looking very closely at the arrangements that we want to put in place in relation to civil judicial co-operation. What is interesting about the Lugano convention is that it shows that the European Union is willing to enter into arrangements with other countries, so there is no reason why we cannot do that once we have left the European Union.
Heidi Alexander (Lewisham East) (Lab)
If continued ease of trade with Europe for our financial services firms, broadcasters, insurance providers and IT companies ends up being dependent on an EU immigration regime that is broadly similar to that which we have at the moment, what will the Prime Minister choose: the economy or her precious immigration targets?
The Prime Minister
When the British people voted to leave the European Union, one of the issues that they were voting on was the need for this country to take control of its borders to bring an end to free movement, and we will do exactly that.
Several hon. Members rose—
Mr Speaker
Ah yes. Another very well-behaved young fellow, possibly now at the mid-point of his parliamentary career, but I am sure not beyond it—I call Sir Edward Leigh.
Sir Edward Leigh (Gainsborough) (Con)
Thank you for picking the succulent cherry at last, Mr Speaker. It seems to many of us that the Prime Minister’s calm good sense is moving the country from the gloomy valley of “Project Fear,” peopled by the shades of former Prime Ministers, into the hopeful uplands of “Project Reality”. What could be more unifying and more Conservative than her pragmatic approach of proceeding by sensible, pragmatic and moderate steps to re-establish the sovereignty of Parliament?
The Prime Minister
I thank my hon. Friend; I think that is absolutely right. Negotiations are taking time. They have been set out, as we know, in article 50 for those two years. What is important is that we approach them with the right, pragmatic, calm approach, but recognising in all this the optimistic future that lies ahead for the United Kingdom.
Tom Brake (Carshalton and Wallington) (LD)
The Prime Minister has one chance to pull back from the abyss described in her own impact assessment. Is she willing to stand up for the majority in this country who do not want the disastrous hard Brexit and give Parliament and the public a meaningful vote that includes the option of staying in the EU, and to vote for an exit from Brexit, or will she let herself be dragged down by the inconsequential and deluded men who sit on her Front Bench and become the third Conservative Prime Minister in history to be brought down by Europe?
The Prime Minister
There was a time when the Liberal Democrats actively wanted a referendum on EU membership. We gave the people a referendum, they voted, and there will be no second referendum, no exit from Brexit; we are leaving the EU and delivering on the vote of the people.
Helen Whately (Faversham and Mid Kent) (Con)
May I thank the Prime Minister for her clear-sighted approach—as opposed to one that sees our negotiations with the EU through foggy red lenses of a battle between socialism and capitalism—and commitment to securing an agreement that is good for the whole UK and that will endure the test of time?
The Prime Minister
My hon. Friend has raised an important point that nobody else has referenced: this agreement needs to endure. The worst thing would be if we came to an agreement that in a few years was beginning to unravel. It is important that the agreement be an arrangement and partnership with the EU that will, as she says, stand the test of time.
Seema Malhotra (Feltham and Heston) (Lab/Co-op)
The Prime Minister accepted in her Mansion House speech last week that the UK would not be able to trade on the same terms with the EU post Brexit. Under her Government’s calculations, how much of a hit will her Brexit be to the UK economy?
The Prime Minister
The idea that we can benefit only from carrying on working in exactly the same way is wrong. We will have a different partnership and relationship with the EU. Yes, there are some hard choices for us to make and some areas where access will not be the same as in the past, but that does not mean that the country’s economy cannot go from strength to strength as a result of getting the right relationship with the EU and trading around the rest of the world.
Andrew Selous (South West Bedfordshire) (Con)
How can we best ensure that the considerable good will that many EU countries have towards the UK is fully reflected in the negotiating mandate given to Michel Barnier by the EU?
The Prime Minister
I discussed with President Tusk last week the approach that the UK thinks appropriate, and I hope that we can have a good and open dialogue in our future negotiations. I have set out my proposals for the UK’s future partnership, and we look forward to hearing from the EU what its proposals are.
Ian Murray (Edinburgh South) (Lab)
What will the Government do if any or all of the Prime Minister’s five tests are not met?
Andrew Bridgen (North West Leicestershire) (Con)
Canada did not pay anything for its comprehensive free trade deal with the EU. Given that we will be the biggest export market for EU goods after we leave and are offering a very generous divorce package, contingent on a deal, does my right hon. Friend agree that we should be expecting and demanding a much better deal than Canada got?
The Prime Minister
I am clear, and have said several times, that the relationship we already have with the EU is such that we are in a different position from Canada. We can have a free trade agreement and economic partnership that goes well beyond that which the EU negotiated with Canada.
Stephen Doughty (Cardiff South and Penarth) (Lab/Co-op)
The Prime Minister has admitted that life will be different, so does she now accept her own Government’s comprehensive analysis, which many of us have been to see in the Treasury? It shows that the gains from trade will be offset by the losses and that there will be a hit to our economy in every scenario that involves leaving the single market and customs union—with borrowing going up, austerity continuing and deregulation coming through—and if not, can she explain how on earth this is in the national interest?
The Prime Minister
The analysis I think the hon. Gentleman is talking about did not actually analyse the sort of arrangements we are talking about for our future economic partnership.
Ross Thomson (Aberdeen South) (Con)
In her statement, my right hon. Friend reaffirmed her commitment to strengthening the UK as we leave the EU. Does she agree therefore that, if the Scottish Government are to be true to their word about reaching an agreement with her Government, they should immediately drop their plans for a dangerous and unwelcome EU continuity Bill, which is driving a sledgehammer through the devolution settlement?
The Prime Minister
I agree with my hon. Friend that the continuity Bills are unnecessary. What everybody needs to do—and certainly what we as a Government are doing—is focus on getting the arrangements right, particularly in relation to clause 11, and carry on negotiating to make sure we get it right for the future.
Layla Moran (Oxford West and Abingdon) (LD)
Staying in Euratom is vital for jobs and ground-breaking scientific research throughout the United Kingdom. Given that the Prime Minister now wants us to remain a member of EU agencies, and has accepted a role for the European Court of Justice, will she listen to those in the industry and ensure that we stay in Euratom?
The Prime Minister
I have referred to the interests that both the UK and the European Union have in our maintaining a close relationship with Euratom in the future. Membership of Euratom is an integral part of membership of the European Union, and we are coming out of Euratom as we are coming out of the EU, but, as the hon. Lady will know, we are making arrangements to ensure that we can maintain that close relationship.
Rebecca Pow (Taunton Deane) (Con)
Thank you, Mr Speaker. I was just about to give up.
Much as I love gardening, I do not grow cherries, but if I did, I would want to pick them, and if I had a surplus I would want to trade them, openly and fairly. Does the Prime Minister agree that we need a balance, supporting a wider range of sectors than other free trade agreements? Does she agree that that is in both our interests and that we must have fair and open competition for everyone?
The Prime Minister
I congratulate my hon. Friend on her entrepreneurial spirit. She is absolutely right. We want to ensure that there is fair and free competition. I have referred to binding commitments in relation to state aid and competition because I think it important that if we are to have that free trade, we are able to do so on a basis that is truly, fairly competitive.
Mr Speaker
It is nevertheless of great interest to learn about the gardening habits of the hon. Member for Taunton Deane (Rebecca Pow). I feel duly uplifted by that discovery. I simply say to the hon. Lady: never, never give up.
Wes Streeting (Ilford North) (Lab)
At the time of the referendum, both Tony Blair and Sir John Major warned of exactly the scenario faced by the Prime Minister now in relation to the Northern Ireland-Republic border, which is presumably why a majority of people in Northern Ireland voted to remain in the European Union. If everything is as plain sailing as the Prime Minister suggests, why has the Foreign Secretary written her a memo entertaining the prospect of a hard border? Given that he has undertaken to publish that memo but has not found time to do so, perhaps the Prime Minister could prod him—or even jab him as hard as necessary—to get that memo out of him as soon as possible.
The Prime Minister
The answer to the hon. Gentleman’s question is that the Foreign Secretary has not said that. He is absolutely clear that there will be no hard border between Northern Ireland and Ireland. That is the position of the Government, and that is what we are working on. We have set out proposals, and I look forward to discussing them with the Commission and the Irish Government.
Mr Speaker
Order. That is very discourteous behaviour. Let us hear from another well-behaved individual. Ah, yes: Jeremy Lefroy.
Jeremy Lefroy (Stafford) (Con)
Thank you very much, Mr Speaker. I am not sure that my family would say that.
May I thank my right hon. Friend for two things in particular? The first is her absolute upholding of the United Kingdom—our United Kingdom—and our internal trade within our United Kingdom. The second is her point about the frictionless border. In my area of the west midlands, that is incredibly important. We are manufacturing exporters, and we rely on “just in time” deliveries to enable us to export our fine products around the world.
The Prime Minister
The point about the importance of the integrated supply chains that we now see across the UK and the rest of the European Union has been made to me, and to others in the Government, by businesses. That is precisely why I said what I did in my speech about regulatory standards. Many businesses have made it clear that, to maintain those supply chains, they need to be able to operate on the basis of the same regulatory standards. That is why we want to have that frictionless border, and why we have made proposals to do just that.
Mr Speaker
Let us hear from another very well-behaved person—in fact, a cerebral academic, I think. Nick Thomas-Symonds.
Nick Thomas-Symonds (Torfaen) (Lab)
I am most grateful for the compliments, Mr Speaker.
The Prime Minister has said that alignment is possible in two ways, either by having the same rules or by having the same consequences flowing from different rules. Which of those two categories will the automotive sector fit into, given that so many jobs in the country depend on it, not least in my constituency?
The Prime Minister
It will clearly be up to Parliament to decide which rules apply in the future. As I pointed out in my speech on Friday, the automotive industry is a very good example of what I said in response to the question from my hon. Friend the Member for Stafford (Jeremy Lefroy) about integrated supply chains. We have been clear about this. Choices will be made about the areas where it is right—where Parliament will say that it wants an identical law, and where it wants the same outcome but wants to achieve it by a different means. Many businesses have made it very clear that they want to maintain the same regulatory standards, which is why that is one of the options that will be available.
Alberto Costa (South Leicestershire) (Con)
Yesterday, Italy had its general election. My hon. Friend the Member for Gainsborough (Sir Edward Leigh) and I met Luigi Di Maio, leader of the Five Star Movement, whose party has led in the results today. Over the last two years, Mr Di Maio and I have corresponded; he was my guest here in Parliament, and I invited the Foreign Secretary to meet him two years ago. Given the Prime Minister’s commitment to ensuring that this country has maximum access to the single market while coming out of free movement, which is exactly what Mr Di Maio has suggested Britain should have, should she not meet him as soon as possible?
The Prime Minister
We are of course looking with interest at the results of the general election in Italy, and we will of course enter into discussions with the Italian Government when that Government are formed.
Wera Hobhouse (Bath) (LD)
The Prime Minister has struggled today to find any examples of a customs border without physical border checks, and indeed every expert we have heard in the Select Committee on Exiting the European Union has said that no such thing exists in the world, so how long does the Prime Minister think it will take to agree and implement this new thing in the world, if she thinks it is possible?
The Prime Minister
A number of Opposition Members suggest that we can adopt something only if somebody else is already doing it. Actually, what we have put forward is a number of proposals to deal with this issue of a customs arrangement, together with the commitments on regulatory standards that ensure we get that frictionless border between Northern Ireland and Ireland, and we stand ready to sit down and discuss them with the Commission and the Irish Government.
Andrew Percy (Brigg and Goole) (Con)
Last week, Siemens announced a £200-million investment that will create 700 jobs in Goole. That proves the value of the economy of the north, so as the Prime Minister negotiates for Brexit, as well as obviously looking out for the interests of Northern Ireland, the City and Scotland, will she look out for the interests of the north? That requires approaching this process with flexibility, but it also means standing up for the voters of the north, who voted in huge numbers to leave, and who, since the referendum, have been patronised and insulted as being too thick, too northern or too racist.
The Prime Minister
The aim is to ensure that when we leave the European Union, we have a result that is good for the whole United Kingdom—not just Scotland, Wales and Northern Ireland, but the whole of England, including the north. My hon. Friend is absolutely right that voters in the north of England voted overwhelmingly to leave the EU. This Parliament gave them that vote; it gave the people of the United Kingdom that vote, and it is right that we as politicians deliver on that, rather than talking, as the Liberal Democrats do, about a second referendum. The Labour party, too, will not rule out a second referendum. It should be listening to the people and giving them what they voted for.
Dr Rupa Huq (Ealing Central and Acton) (Lab)
First chlorinated chicken, then hormone-pumped beef, and now a trade war. Are those really a price worth paying to keep holding hands with Trump? We should be holding him to account.
The Prime Minister
We are discussing with the United States of America a potential trade deal, and we will also be doing that with other countries around the world, such as Australia, because we are ensuring that we are developing the economy of the future for this country; that will bring jobs and prosperity to this country in years to come.
Bill Wiggin (North Herefordshire) (Con)
I congratulate my right hon. Friend, but can she confirm that, during the implementation period, we will be free to sign international trade agreements?
The Prime Minister
That is certainly what we intend to put in place. We will have the details of the implementation period confirmed fairly soon, but we are clear that we need to be able to sign those trade agreements during that implementation period.
Clive Efford (Eltham) (Lab)
Are there any circumstances in which, following the transition period, we would make a financial contribution to the European budget in order to have access to any markets?
The Prime Minister
No. One of the key elements of the first stage of negotiations was the financial settlement, and the details of that were set out in the joint report we published in December. We have said that if we chose to be a member of any agencies, such as on the security front—I have cited Europol in the past—we would of course expect to pay some costs of membership of those agencies, but we have agreed that financial settlement with the European Union.
Huw Merriman (Bexhill and Battle) (Con)
In her message to the European Union, the Prime Minister rightly said that we have a shared interest with it in getting this right. Does she agree that the 498 MPs who gave her the mandate to trigger article 50 have a shared interest in putting the national interest first?
The Prime Minister
My hon. Friend is absolutely right. As well as Parliament voting overwhelmingly to give people the referendum, it also voted overwhelmingly to trigger article 50, and every Member of this House should be behind the Government as we do what we are doing, which is delivering on that.
Thangam Debbonaire (Bristol West) (Lab)
What assessment have the Prime Minister and her colleague, the Secretary of State for Exiting the European Union, made of mitigating the impact of leaving the customs union on the creative industries, which are so important to my constituency?
The Prime Minister
I referred to the creative industries in my speech, and particularly to broadcasting, and the arrangements that we want for the future.
Martin Vickers (Cleethorpes) (Con)
I echo the words of my hon. Friend the Member for Brigg and Goole (Andrew Percy) about voters in the north. The voters in our coastal communities were even more supportive of Brexit, and the memories of the original negotiations when the fishing industry was sold out linger on, which is one of the reasons for the heavy vote to leave. My right hon. Friend speaks about the fairer allocation of fishing opportunities; can she give us an absolute assurance that that will mean that the British fishing industry will always be paramount?
The Prime Minister
Yes. I am well aware of the concern in many fishing communities about the common fisheries policy, and as I said in my speech and repeated in my statement, we will make absolutely sure that we see fairer allocations for the UK fishing industry in the future.
David Hanson (Delyn) (Lab)
I support the Prime Minister’s objectives for Northern Ireland, but given the absence of a customs union, will she give us more detail about what will happen to the hundreds of lorries that go each day from Dún Laoghaire in Ireland to Holyhead, from Larne in Northern Ireland to Stranraer in Scotland, and from Belfast to Liverpool, because that is still not clear to the businesses running those operations?
The Prime Minister
It is precisely because the movement is not just between Northern Ireland and Ireland, but between Ireland and other parts of the United Kingdom, that we believe the right way to approach this is to find a solution in our relationship with the European Union overall. That is precisely why it was right for me to say that we did not accept the European Commission’s proposal, which would have meant a border down the Irish sea.
Richard Drax (South Dorset) (Con)
My hon. Friend the Member for Cleethorpes (Martin Vickers) has rather stolen my thunder, but I would still like to press the Prime Minister on the fishing question. Once we get our fishing waters back, as I understand we will, will it be our sovereign Government who decide exactly who fishes in our waters?
The Prime Minister
Yes, we will be an independent member of the body that negotiates and discusses access to waters, and it will be this Government who determine our fisheries policy.
Peter Grant (Glenrothes) (SNP)
On 24 January 2017, the Brexit Secretary assured us that we were going to get
“a comprehensive free trade agreement and a comprehensive customs agreement that will deliver the exact same benefits as we have”.—[Official Report, 24 January 2017; Vol. 620, c. 169.]
It is clear from the Prime Minister’s speech last week and her statement today that that promise has been broken, unless she has invented some kind of Schrödinger’s customs union that we can be in and out of at the same time. Why should anyone else in the world trust this Government to negotiate trade deals in good faith when this Parliament cannot even trust assurances made by her Secretary of State at the Dispatch Box?
The Prime Minister
We will indeed be negotiating a comprehensive free trade agreement. That is the economic partnership that I set out in my speech. Within that, we will have a comprehensive customs arrangement that will enable us to continue to trade with the European Union on as tariff-free and frictionless a basis as possible.
Matt Warman (Boston and Skegness) (Con)
I welcome the subtle and detailed approach to Brexit that the Prime Minister laid out in her speech. As she well knows, the issue of immigration was crucial in seats such as mine. Can she remind hon. Members that, as we leave the European Union and as freedom of movement ends, it will fall to this House to draw up our immigration policy in the future?
The Prime Minister
I can absolutely confirm to my hon. Friend that it will be for Parliament to decide what our immigration policy is for the future.
Justin Madders (Ellesmere Port and Neston) (Lab)
Vauxhall motors in my constituency is fighting for survival, and we desperately need future trading arrangements in the automotive sector to be no less favourable than they are now. Can the Prime Minister give a guarantee on that today?
The Prime Minister
I set out very clearly in my speech on Friday why I separated goods trade from other areas of trade with the European Union. I have also set out how we can ensure that we maintain the integrated supply chains that are currently so important to industries such as the automotive industry.
Ruth Cadbury (Brentford and Isleworth) (Lab)
We read in the Financial Times today that the United States
“is offering Britain a worse ‘Open Skies’ deal”
than the one we currently have as an EU member. Is that not a precursor to the hundreds of deals that the UK will have to negotiate once we leave the EU?
The Prime Minister
No. We are discussing with a number of countries around the world how we can improve our trade arrangements with them even before we have left the EU and how we can get into the position of having a free trade agreement with those countries.
Jonathan Edwards (Carmarthen East and Dinefwr) (PC)
Following the Prime Minister’s speech on Friday, she was asked by a journalist, “Is Brexit worth it?” She failed to give a direct answer; will she answer today? Is Brexit worth it: yes or no?
Kirsty Blackman (Aberdeen North) (SNP)
The Prime Minister finds herself between a rock and a hard place—or perhaps between two brick walls—when she talks about not agreeing with any of the three trade scenarios put forward in the Government analysis. She has plans for a bespoke deal that will not be any of those scenarios, so does she expect GDP to be hit or to increase in her bespoke scenario, and by how much?
The Prime Minister
We have said all along that we are looking for a bespoke trade deal with the European Union. We have said all along that that will recognise the integrated nature of the UK’s markets with the EU’s markets at the moment, but also that we will be able to continue to trade around the rest of the world. As for growth, I am pleased to say that growth has actually been up, in recent figures.
Daniel Zeichner (Cambridge) (Lab)
I think the Prime Minister has acknowledged that there will be costs to this process, but most people ask this reasonable question when incurring a cost: “How much?” The Government have made some projections, so if we randomly say that there will be a 4.8% cut to GDP, will she explain how much that would mean for every man, woman and child in this country?
The Prime Minister
As I said in answer to one of the hon. Gentleman’s hon. Friends earlier, the analysis that was set out did not include an analysis of the sort of trade deal that we are looking to negotiate with the European Union.
Nic Dakin (Scunthorpe) (Lab)
I thank the Prime Minister for speaking to President Trump about his outrageous desire to slap punitive tariffs on UK steel and aluminium. What did he say, and what will she do, working without the EU27, both now and in the future, to ensure that such protectionism does not prosper in this world?
The Prime Minister
I was pleased to have the opportunity to raise the issue with President Trump yesterday. Of course, as current members of the EU, we continue to discuss with the EU what approach is being taking in relation to steel, but when we are outside the European Union, we want to continue to be a country that promotes free trade but recognises the overcapacity in steel at the moment. My response is clear: as I said at the G20, and as the G20 has actually adopted, we need a multilateral approach to deal with that overcapacity, and that is what we will continue to promote.
Gill Furniss (Sheffield, Brightside and Hillsborough) (Lab)
In the light of the US President’s move to impose tariffs on steel and aluminium imports, will the Prime Minister rethink her strategy for a free trade deal with the US following Brexit? Will she act now to ensure that our steel industry is not plunged into crisis once more?
The Prime Minister
This Government have taken a number of steps over recent years to help support the steel industry. As I have said, I have raised the issue with President Trump, and we continue to discuss it within the European Union. There is this issue of overcapacity in the steel market around the world, which is why the issue has been raised at the G20. Bringing China into discussions around this is an important element of that, and I continue to believe, as I just said to the hon. Member for Scunthorpe (Nic Dakin), that the right way to approach the issue is to deal with it on a multilateral basis.
Alan Brown (Kilmarnock and Loudoun) (SNP)
If the Prime Minister is really so confident about getting a multi-layered, customs-type arrangement—the cherry- picked deal that she is looking for—will she explain the purpose of the Haulage Permits and Trailer Registration Bill?
The Prime Minister
That particular Bill is, of course, a contingency Bill. Members on both sides of the House ask us to ensure that we make contingency arrangements for every scenario, and that is exactly what we are doing.
Martin Whitfield (East Lothian) (Lab)
Thirty-nine bottles of Scottish whisky are exported abroad every second. As the seconds tick by until our departure, can the whisky industry look forward to the same benefits as now, or will it be in a worse position?
The Prime Minister
I believe that the Scotch whisky industry will be in a better position when we are able to have trade deals with countries across the rest of the world. I was very pleased to take a representative of the Scotch Whisky Association with me on my recent trip to China, which is a huge market that could open up to Scotch whisky.
Mr Paul Sweeney (Glasgow North East) (Lab/Co-op)
The UK already has some of the most unbalanced regional growth of any country in Europe, and the Prime Minister’s own Brexit analysis suggests that any deviation from the benefits of the single market and the customs union will only exacerbate that problem. Does she not agree that that is a dereliction of duty and that she should undertake to ensure there is no detriment to the nations and regions of the UK as a result of exiting the European Union?
The Prime Minister
Not only will we ensure that we have an exit from the European Union that works for the whole United Kingdom, but as I said on the steps of No. 10 when I first became PM, we want a country that works for everyone, which means every part of the United Kingdom. This is a Government who, through our industrial strategy and our economic policy, are ensuring that we will see growth and prosperity in every part of the United Kingdom.
Karin Smyth (Bristol South) (Lab)
The Prime Minister said today that no one should doubt our commitment to the entirety of the joint report published in December. With regard to Ireland, paragraph 47 of the joint report stated:
“The two Parties have carried out a mapping exercise, which shows that North-South cooperation relies to a significant extent on a common European Union legal and policy framework.”
Will she commit to publishing that mapping exercise?
The Prime Minister
We have done a number of pieces of work in relation to the border between Northern Ireland and Ireland, looking at the institutions and the structures that currently exist. I said in my Lancaster House speech that, as and when we are able to do so, we will talk about the next stage of our negotiations. We stand by the joint report, and I set out on Friday more detail of the proposals that will meet exactly what was in that report in relation to the border.
Jim Shannon (Strangford) (DUP)
I commend the Prime Minister for her courage and fortitude in standing firm. The Republic of Ireland and the EU have made suggestions for a border within the customs union. The people of the United Kingdom of Great Britain and Northern Ireland have voted to leave the EU and the customs union in March 2019, so can the Prime Minister confirm that, should the Republic of Ireland and the EU refuse to make an agreement, it will be the EU, and not the UK of Great Britain and Northern Ireland, who will be responsible for hard border controls?
The Prime Minister
We are, of course, clear that we will ensure that there is no hard border between Northern Ireland and Ireland, but we should approach it by saying that this is something for us to discuss with the European Commission and the Irish Government, because it is in all our interests to ensure there is no hard border. It is also in the interests of the Irish Government to ensure there is no border down the Irish sea, given the extent of trade between the rest of the United Kingdom and Ireland. It is for all of us to work together on this.
Christian Matheson (City of Chester) (Lab)
I have listened to the answers today, and I respectfully suggest to the Prime Minister that the policy of vague sloganising and keeping her fingers crossed that everything will be all right is simply insufficient. Will she confirm that no deal we get from the proposed solutions she has identified will be more advantageous, financially or economically, than our current position?
The Prime Minister
The hon. Gentleman talks about vagueness and lack of clarity. Last year, we published 14 separate papers setting out the UK Government’s proposals on a number of aspects of our future relationship and on our withdrawal from the European Union. We have been making the running in setting out our proposals —through the Lancaster House speech, through the article 50 letter, through those papers published in the summer and through the Florence speech, the Munich speech, and now the Mansion House speech. We wait to hear the response from the European Union, but I am optimistic that we are going to get a deal that works for the UK. I am optimistic about this country because of the actions being taken by this Government.
National Planning Policy Framework
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The Secretary of State for Housing, Communities and Local Government (Sajid Javid)
With permission, Mr Speaker, I wish to make a statement on planning reforms that will help to get our country building and deliver the right homes, in the right places, of the right quality—it cannot happen soon enough. An entire generation are the victims of a housing crisis as prices and rents race ahead of supply. In 2017, the average house price in England was nearly eight times the average income, and families in their early 30s are half as likely as their parents to own their home. This does not just hold these people back—it holds our country back. For young people in this country, it is, frankly, disheartening, when they do not see that their hard work is being rewarded, and they see the dream of a home of their own, which is something our parents took for granted, remaining just that—a dream. In those circumstances, it is hard for people to feel that they have a stake in society, and we all lose out when that happens.
That is why this Government have taken action on all fronts to turn this situation around, and those efforts are starting to bear fruit. We inherited a situation in 2010 in which annual house building had fallen to its lowest level in peacetime. Since then, we have delivered more than 1 million homes, and last year saw an increase in housing supply in England of over 217,000 new homes. That is the biggest increase in annual housing supply in all but one of the past 30 years, with planning permissions on a high and set to boost these numbers even further.
We have helped hundreds of thousands of people on to the housing ladder through Help to Buy. We are working to encourage landlords to offer longer tenancies and promoting more homes for rent on a family-friendly basis, with three-year tenancies in our build-to-rent schemes. We are cracking down on rogue landlords and the abuse of leaseholds, and we are taking steps to make renting fairer and to tackle homelessness through earlier intervention. We have launched a new, more assertive national housing agency, Homes England. We have launched an independent review, led by my right hon. Friend the Member for West Dorset (Sir Oliver Letwin), into the gap between planning permissions granted and homes actually built. We are putting billions into the affordable homes programme, and we are delivering essential infrastructure through the new housing infrastructure fund.
We know, however, that there is still a lot more to do to deliver 300,000 homes a year in England by the middle of the next decade. Of course, planning is an important part of that journey, and today we are taking the crucial next steps with the launch of consultations on the revised national planning policy framework and on the reform of developer contributions. These are measures that set out a bold, comprehensive approach for building more homes, more quickly, in the places where people actually want to live—homes that are high quality and well designed that people are proud to live in and proud to live next door to and that are at the heart of strong, thriving communities. There will be much clearer expectations on local authorities and developers to deliver their commitment to unlock land, fulfil planning permissions, provide essential infrastructure, and turn those dreams of a decent, secure, affordable home into reality.
The revised NPPF implements around 80 reforms that we announced last year and retains an emphasis on development that is both sustainable and locally led, but it also involves a number of significant changes. For the first time, all local authorities will be expected to assess housing need using the same methodology—that is a big improvement on the current situation in which different councils calculate housing need in different ways, wasting time and taxpayers’ money. A standardised approach will establish a level playing field and give us a much clearer, more transparent understanding of the challenge we face. But perhaps one of the biggest shifts is a change in culture towards a focus on outcomes achieved—the number of homes delivered in an area—rather than on processes such as planning permissions. As it becomes easier to make plans more streamlined and strategic, this culture change will encourage local authorities to work together to meet their communities’ needs.
We are also confirming the important protections of neighbourhood plans—plans that are produced by local communities—which we introduced in December 2016 to guard against speculative applications. And we are going further, beyond the reforms we previously consulted on. We are giving local authorities the tools to make the most of existing developed land, with an even stronger drive for increasing density, particularly in areas where housing need is high. We will support those councils that wish to build upwards, but not at the expense of quality—high design standards that communities are happy to embrace will remain a priority.
The reforms also include more flexibility to develop brownfield land in the green belt to meet affordable housing need with no harm to the openness of the green belt. Even the mention of the words “green belt” may cause some concern, but let me assure right hon. and hon. Members that this is about building homes on sites that have previously been developed, not about compromising in any way existing protections that govern the green belt. Our green spaces are precious and deserve our protection, which is why the Government are also delivering today on our manifesto commitment to give stronger protection to ancient woodland, which demonstrates that we do not have to choose between improving the environment and delivering the homes we need—we can do both.
We are raising the bar across the board. We are protecting our natural world and making local authorities more ambitious and accountable so that places such as London no longer deliver far fewer homes than they need. In areas such as the capital, where demand and affordability are going in different directions, it is especially important that there should be less talk and more action—action that is more strategic and more realistic about housing need, with stronger leadership to bring people together across sectors and boundaries.
That said, the issue is not all about local government. Developers must also step up to help us to continue to close the gap between planning permissions granted and homes built. In doing so, it is vital that developers know what contributions they are expected to make towards affordable housing and essential infrastructure, and that local authorities can hold them to account. However, we all know of instances of developers making such promises but later claiming that they cannot afford them. In truth, the current complex and uncertain system of developer contributions makes it too easy for them to do just that, and it puts off new entrants to the market. That is not good enough, which is why we propose major reforms to developer contributions.
As part of our reforms, areas will be able to agree a five-year land supply position for a year, reducing the need for costly planning appeals involving speculative applications. I also recognise that swift and fair decisions are important at appeal, so I will shortly announce an end-to-end review of the planning appeal inquiries process with the aim of seeing what needs to be done to halve the time for an inquiry to conclude, while ensuring that the process remains fair.
There are other areas where we are considering pushing boundaries to really boost housing supply, including a new permitted development right for building upwards to provide new homes, and by finding more effective ways of supporting farmers to diversify and support the rural economy. The strong focus throughout is on making sure that we are exploring all avenues to meet everyone’s housing needs. That could mean implementing an exception site policy to help more people on to the housing ladder; giving older people a better choice of accommodation; promoting build to rent; or encouraging local policies for affordable homes that cater for essential workers such as our nurses and police.
By giving everyone—whether they are renting or buying, in the social or private sector—a stake in our housing market, we give everyone a stake in our society. That is why I encourage right hon. and hon. Members, and anyone who wants to see today’s generation enjoy the same opportunities as their parents, to get involved and contribute to the consultations that we have announced today. They will run until 10 May, and I look forward to announcing the implementation of the national planning policy framework in the summer.
I am confident that the bold and ambitious measures that we are proposing will have a huge impact not just on the number of homes built but, ultimately, on people’s prospects and our prospects as a country. They will ensure that local authorities or developers can no longer be in any doubt about where they stand, what is expected of them and what they must do to help to fix our broken housing market and deliver the homes that the people of this country need and deserve. I commend this statement to the House.
Dr Roberta Blackman-Woods (City of Durham) (Lab)
I begin by thanking the Secretary of State for early sight of his statement.
Today, once again, we have seen the Government bringing forward proposals that tinker with the planning system in yet another vain attempt to look as though they are doing something about the housing and infrastructure crisis that the country is facing, which is largely of their making. Let us be clear about the scale of the problem. Many communities up and down the country do not have the homes that they need. Since 2010, the number of rough sleepers in England has nearly trebled from 1,700 to almost 5,000 last year. The number of households living in temporary accommodation has also risen almost continuously since 2010, with the latest stats showing that there are 79,000 households in temporary accommodation, including 121,000 children. For many areas, wages-to-mortgage differentials are as high as one to 10, leaving those on or below average wages unable to afford to buy a house of their own—that is happening under a Tory Government.
New house building rates have, for many years, been only half of what we need, and nowhere near the 300,000 homes needed to keep pace with demand. Planning needs to deliver not only new homes, but new communities. Planning should be about designing places in which people want to live and work where there are environmental and leisure amenities, and where quality of life is high on the agenda, but the Government are failing at that, too.
As the Local Government Association has pointed out, planning departments have borne the brunt of cuts to local government, leaving many hugely under-resourced to meet the everyday tasks of assessing planning applications, building control and place-based policy- making. This results in poor planning and a lack of engagement with the communities that are most affected by planning decisions. As the Conservative chair of the LGA, Lord Porter, has said, the problem is not about planning and planning permissions. In the past year, councils and their communities granted nearly twice as many planning permissions as the number of new homes that were completed. More than 423,000 homes with planning permission are still waiting to be built. The truth is that councils are approving nine in 10 planning applications, which shows that the planning system is not a barrier to building, so the Government’s proposal of stripping councils of their right to decide where development takes place is not only unhelpful, but misguided.
The increase in permitted development, as set out in today’s proposals, takes the community voice out of planning altogether, so that the general view of people is that planning is something that is done to them, not something that they have any say in whatsoever. By contrast, Labour wants to empower communities, putting them at the heart of decision making, with neighbourhood plans central to a new streamlined system of plan making. What we need is a radical approach to deliver 21st century communities, and that is what Labour would do. We would invest in a new generation of garden cities and new towns, putting local councils in the driving seat of spearheading new settlements, unlike the Conservative party, which has talked warm words about new towns and garden cities for many years but, despite more than seven years in office, has barely produced enough homes for a new street, never mind a new town. The Secretary of State has said that
“along that corridor, there is an opportunity to build at least four or five garden towns and villages.”
What does he mean by “along that corridor”? How long will it take for us to see the start of a new settlement, never mind it being built?
Labour will look at the Government’s proposals in detail, but we know that we need something much bolder than what we have seen today. I am talking about real policies to address land banking, as set out in our Lyons report almost a decade ago, with incentives for timely delivery and sanctions on developers whose build-out rate is too slow. We need a reformed planning system that puts communities and brownfield first and does not bypass local people with more and more permitted development and a lack of involvement in policy making.
We also need a robust policy platform that addresses not just the quantity of new homes, but their quality, and that delivers the infrastructure they need to work as sustainable and inclusive communities. An investment programme in local authority housing is needed, so that good-quality housing can once again be provided for working people, not at the Government’s inflated “affordable” rents, but at social rents that people can afford. We will make viability assessments transparent, so that developers cannot avoid their obligations to deliver affordable housing and other community benefits.
We have a vision of a built environment for the future, not a set of outdated measures that have so spectacularly failed to deliver in the past. If the Secretary of State really wants to spearhead a housing revolution, he will need to do much better than this.
Sajid Javid
The hon. Lady started by saying that many communities do not have the homes that they need—I agree. I have been saying that for a long time, which is why we have been taking action on many fronts and why we have announced this action today. Let us explore what the hon. Lady meant, because she cannot ignore the huge role that the Government of which she was a part, formed by the party that she supports, played in the housing crisis facing this country.
From 1997 to 2010, the average house price rose from three and a half times average earnings to seven times such earnings. That is Labour’s legacy. Labour, more than anyone else, has created that crisis of unaffordability. When the shadow Secretary of State was Housing Minister, house building fell to its lowest level in our peacetime history since the 1920s, and social housing fell by 421,000 units. We will not take any lectures from the Opposition about how to deal with a housing crisis that they helped to create. Their policies are about rent controls and the requisition of private property. They have no ideas.
The hon. Lady is right that there is an issue with resources in planning departments, but she is also wrong, because we have already dealt with that issue. Perhaps she did not notice that local authorities are able to increase their planning fees by at least 20% as long as that money is put back into their planning departments. That measure has been welcomed not just by local authorities, but throughout the industry.
The hon. Lady says that the planning process is not part of the problem, but she has clearly not been listening to what the problem is. She has not been out there talking to local authorities and developers, or finding out what communities actually think. If she had, she would know that local authorities in England are together planning for 169,000 houses a year, which is nowhere near the number that we need. We need a change in the formula, so that we get the right number of homes in the right places.
The hon. Lady talked about the importance of giving communities a greater say. That is great, because this is the first time that I have heard that she is supporting our neighbourhood planning process—thank you very much. She also talked about garden cities, towns and villages, and she was right, so I thank her again for supporting our policy, as that is exactly what we are proposing up and down the country. Lastly, she mentioned that brownfield land must be the priority. Again, that is our policy—thank you very much for your support.
John Redwood (Wokingham) (Con)
Wokingham Borough Council, the unitary authority in my area, has issued a very large number of planning permissions—well above its five-yearly amounts under the plan—but the build rate has not always been high enough. Will the Secretary of State help such local authorities through experiments to find ways of increasing the build rate, so that homes are built where they are agreed to be built, rather than granting on appeal houses elsewhere where there would not be the same infrastructure contribution and the same ability to fit in with the plan?
Sajid Javid
My right hon. Friend raises a real and important issue, which he knows I have discussed with his local authority. The measures subject to the consultations that we are announcing today will certainly help with that problem. I hope that my right hon. Friend the Member for West Dorset will provide further help when he reports back on the work that he is doing.
Deidre Brock (Edinburgh North and Leith) (SNP)
While there is always more to do, in Scotland the SNP has led the UK on housing, delivering nearly 71,000 affordable homes since 2007—a supply of affordable housing that is a third higher per head of population than in England. Has the Secretary of State learned any lessons from the SNP Government’s successful building programme?
Scrapping the right to buy has allowed the Scottish Government to improve our council housing stock. Over the past five years, more council houses for social rent have been delivered across 32 local authority areas in Scotland than across 326 local authority areas in England. Will the Secretary of State, rather than extending the right to buy, further reducing housing supply, follow Scotland’s lead and abolish it?
The PM has complained about people being unable to buy houses. Does the Secretary of State regret the fact that his Government’s Housing and Planning Act 2016 downgraded the term “affordable housing” no longer to take account of what people can afford?
Sajid Javid
The hon. Lady asked whether the Government have learned anything from the Scottish National party’s approach to housing. The answer is no. She asked about the right to buy. Again, we have not learned anything from the SNP on that, because it follows exactly the wrong policy. We believe that it is a good thing to allow people to buy their homes.
Dame Cheryl Gillan (Chesham and Amersham) (Con)
I welcome my right hon. Friend’s statement and look forward to contributing to the consultation. Can he reaffirm the assurances given to me by the Prime Minister that the strongest possible protections for areas of outstanding natural beauty and for green-belt and designated land will continue—for example, in my constituency, which is 80% green belt and 72% AONB? Can he assure me that he will consider the fragility of such special landscapes and protect them, not just for the people who live in the area but for the tens of thousands of visitors who come to the Chilterns from urban areas to enjoy the countryside?
Sajid Javid
I can give my right hon. Friend the assurances that she seeks, because I stand here not just as Housing Secretary but as the Member of Parliament for Bromsgrove—a constituency that is 92% green belt, so I do understand the issues. I hope that she will welcome the changes that we have put into the consultation to make it absolutely clear that there must be a brownfield-first policy and that before any local authority can even consider green belt, it must demonstrate that it has looked at all other viable alternatives.
Caroline Flint (Don Valley) (Lab)
The Secretary of State’s proposals allow councils to require a development to start within two years. I welcome that, but a start is not a completed home. Will he consider giving councils the power to set annual house completion deadlines when they grant planning consent? Will he reassure me that councils will be able to require fibre-to-home broadband on all developments to replace the outdated copper service that too many owners of newly built properties have to accept?
Sajid Javid
We have been very concerned about speed of development from planning permission to home, and the measures announced today will help with that. I also await the outcome of the independent review that has already begun. On broadband, I absolutely accept the need to make sure that all homes—existing homes, of course, and certainly all our new homes—have access to the best possible broadband. We are working very closely with the Department for Digital, Culture, Media and Sport on that.
Sir Geoffrey Clifton-Brown (The Cotswolds) (Con)
I draw attention to my entry in the Register of Members’ Financial Interests. I congratulate my right hon. Friend on his statement because I know that this is not an easy area, having practised in it professionally. Recently, I sent out a survey to 12,000 households in Cirencester. They told me in large numbers that they wanted more affordable housing and, above all, more infrastructure to meet the huge development that they are about to have. What can he say about developers’ contributions to meeting my constituents’ aspirations?
Sajid Javid
I thank my hon. Friend for his comments. He is absolutely right to raise this issue. The private sector plays a huge role in infrastructure and provision of affordable homes, especially when it carries out the so-called viability assessments. We are not happy with the way that that process has worked, and that is why we started the consultation on it. At the end of that consultation, I believe, will be an outcome where we are much more easily able to hold the developers to account and make sure that they will actually deliver what they said right at the start.
Ms Karen Buck (Westminster North) (Lab)
Does the Secretary of State agree with the Conservative leader of the Local Government Association, Gary Porter, who said this weekend:
“If we want more houses, we have to build them, not plan them”,
and that the Ministry of Housing, Communities and Local Government needs to “push back against” the Treasury,
“or the nonsense will go on and nothing will change”?
If he does agree, why has he allowed affordable housing funding from his Ministry to be handed back to the Treasury, rather than spent on critically needed affordable homes?
Sajid Javid
I agree that to build the homes we need, we need to plan them properly, and that is what these reforms are about. The hon. Lady suggested that the Ministry handed money back. Among the underspend that she and her hon. Friends have mentioned was £65 million that was returned by the Greater London Authority because it did not spend it. That money was returned by the Mayor of London, so perhaps she wants to ask him why he returned funding.
Theresa Villiers (Chipping Barnet) (Con)
One of the first actions taken by the Conservatives when they returned to government in 2010 was to introduce greater planning protection for back gardens. Will the Secretary of State assure the House that there is nothing in his announcement today that will in any way undermine that or encourage garden-grabbing development?
Sajid Javid
First, may I wish my right hon. Friend a very happy birthday? I can reassure her that what we have set out today is very much focused on brownfield first, and the protections we have set out in the past for gardens remain in place.
Layla Moran (Oxford West and Abingdon) (LD)
Before the Government go ahead with new garden towns between Oxford and Cambridge, will they commit today to a full public consultation on both the corridor and the route for the Oxford-to-Cambridge expressway?
Sajid Javid
What was last said on that, by the Chancellor at the Budget, has not changed. We have accepted the recommendation of the National Infrastructure Commission of up to five new garden towns and villages along the corridor. We have not yet decided exactly how that will be done or where they will be. Obviously, the placement of the infrastructure that goes alongside that is important, and I can reassure the hon. Lady that as we work on that, Parliament will be involved.
John Howell (Henley) (Con)
I welcome the Office for National Statistics methodology for determining housing need, as originally set out in the Local Plans Expert Group, of which I was a member. Will the Secretary of State confirm whether there have been any changes between the original formula and the formula that will now go into guidance?
Sajid Javid
I thank my hon. Friend for all the work he has done on planning and all the advice he continues to provide. I can assure him that the formula we have set out today in the draft NPPF is no different from the one that was set out in the September consultation.
Siobhain McDonagh (Mitcham and Morden) (Lab)
There are 19,334 hectares of unused, unloved, ungreen green-belt land around London’s train stations—enough to build 1 million homes. On the day that the Daily Mirror announced that £1.1 billion was spent on horrible temporary accommodation last year, is it not right that that land should be used to provide homes in the areas people want to live in?
Sajid Javid
It sounds like the hon. Lady agrees with the consultation and what we have set out, particularly the priority of brownfield land. In fact, we have also set out in the draft NPPF the ability to set minimum density requirements around major transport hubs.
John Penrose (Weston-super-Mare) (Con)
While encouraging people to build up, not out, through changes to planning guidelines is certainly welcome, does the Secretary of State agree that it will not be enough to solve Britain’s housing crisis on its own? When does he expect to bring forward the changes he mentioned to permitted development, and will they be broad, brave and radical enough to cut through the red tape that is holding Britain’s builders back?
Sajid Javid
I thank my hon. Friend for the work he has done, particularly on density and building upwards. We have set out the detail on permitted development rights today, and we hope to bring that forward as soon as possible.
Matthew Pennycook (Greenwich and Woolwich) (Lab)
I welcome the push for simplification and increased transparency on viability assessments, but it is hard to see what they will do for London boroughs such as Greenwich, where the publication of such assessments is already mandatory. At the heart of this matter is the issue of developer returns. Given the scale of the housing crisis in London, does the Secretary of State really think it is acceptable that developers use viability assessments to drive down levels of affordable housing simply because to do otherwise would limit their profits to below 20%?
Sajid Javid
I do not think it is acceptable that developers do not meet the commitments they set out at the start. Particularly in London, we have seen too many examples of where a particular percentage of a development was set out for affordable housing and that was not met, based on the way in which the assessment process currently works. That is why I hope the hon. Gentleman will support the process we have set out today, which will have greater standardisation and much more transparency.
Nick Herbert (Arundel and South Downs) (Con)
We need more housing, and neighbourhood planning has produced more houses than expected. Does my right hon. Friend agree that speculative development can undermine democratically agreed neighbourhood plans, and will his proposals ensure that the neighbourhood plans are upheld?
Sajid Javid
My right hon. Friend should be reassured that what we have set out today gives greater strength to neighbourhood plans. He makes a very important point. We have found with neighbourhood plans that when we give communities a bigger say, in many cases they actually accept even more development. So far, we have found that that is, on average, about 10% more development.
Caroline Lucas (Brighton, Pavilion) (Green)
In 1909, Winston Churchill spoke in favour of a land value tax, saying that landlords sit on it and basically do nothing while public money is used to enhance an area and the land value increases. Today, developers are again sitting on almost 1 million housing plots and drawing rewards for being idle, while young people face a lifetime of housing insecurity and high prices. Is it not time for the Government to look again at the benefits of land value taxation?
Sajid Javid
The hon. Lady may be interested in the consultation on developer contributions that we have set out today. I am sure she will agree that developer contributions are a type of tax on developers, because they are expected to provide infrastructure or affordable housing, and in some cases both. If she is really interested in this issue, I urge her to look at that consultation.
Crispin Blunt (Reigate) (Con)
I thank my right hon. Friend for his answer to our right hon. Friend the Member for Chesham and Amersham (Dame Cheryl Gillan), which was that councils will be able to amend green-belt boundaries only if they can prove that they have fully explored every other reasonable option for building the homes that their community needs. Will he, however, confirm that the new national planning policy framework goes even further, explicitly saying that housing need does not trump issues such as areas of outstanding natural beauty, sites of special scientific interest and the green belt, so councils cannot be forced to amend their green-belt boundaries by the Planning Inspectorate in those circumstances if they do not wish to do so and they have explored every other option?
Sajid Javid
The assurance I can give my hon. Friend is that what we have set out today makes it absolutely clear—even clearer than before—that brownfields should be the absolute priority, and any council wanting to look beyond brownfield must demonstrate that it has looked at all other reasonable opportunities, but this puts councils in control of how exactly they meet their need. When my hon. Friend has the opportunity and time to go through this in more detail, I hope he will be even more reassured.
Lucy Powell (Manchester Central) (Lab/Co-op)
Is it not the case that, in high-demand, high-price areas such as Manchester city centre, the measure of affordability is not really affordable for many local residents—that is why we have our own assessment of what affordability is in Manchester—and that to deliver truly affordable homes, we need more state intervention and more Government money, and we need to allow local government to borrow in order to build?
Sajid Javid
I have to disagree with the hon. Lady in that this is not all about more Government money. First, Government money for affordable housing has increased: we increased the budget last year from £7 billion to £9 billion. Government money of course has a role to play, but I hope she will agree that the only way to get houses that are truly affordable in this country—whether in Manchester or elsewhere—is to increase supply and make sure that it is increased at a sustainable level.
Robert Neill (Bromley and Chislehurst) (Con)
I welcome my right hon. Friend’s confirmation to our right hon. Friend the Member for Chipping Barnet (Theresa Villiers) that these reforms will not diminish the national policy protection for back gardens. Perhaps he will remind the Mayor of London that any amendments he proposes to the London plan are subject to that national policy.
Sajid Javid
I will certainly be reminding the Mayor of London of a number of things, especially as he recently published his draft London plan, which I do not think is ambitious enough. I do not think it is realistic, so I will take the opportunity when I discuss it with him to also remind him of my hon. Friend’s point.
Dr David Drew (Stroud) (Lab/Co-op)
Does the Secretary of State accept that one way to provide affordable housing is through local authorities? They are not asking for more grants; they are just asking to be able to borrow more where they have the asset base, to allow them to solve the problem of affordability in their areas. Does he agree with that?
Sajid Javid
I agree with the hon. Gentleman that local authorities have an important role to play, and not just in the planning system. We welcome local authorities wanting to develop more council houses, which is one reason why in the recent Budget the Chancellor increased local authorities’ ability to borrow by £1 billion.
James Morris (Halesowen and Rowley Regis) (Con)
I thank the Secretary of State for his statement. In the context of his reforms, can he reassure residents in Halesowen of the absolute continuation of protection for the green belt in his proposals, in particular around “exceptional circumstances”? Local authority planners have often used it in a loose way to justify changes to green belt boundaries. Does he agree that we need a rigorous way of defining what we mean by exceptional circumstances when it comes to redefining the green belt?
Sajid Javid
I can give my hon. Friend some reassurances on that. We have been clear and have set out, I think for the first time, all the hurdles that need to be cleared to meet the definition of exceptional circumstances. Brownfield is an absolute priority, and we have talked about the importance of density and making sure that neighbouring authorities have been talked to, with a statement of common ground. I can give my hon. Friend an assurance that the green belt retains maximum protection.
Andy Slaughter (Hammersmith) (Lab)
For two years, the Secretary of State has failed to determine the future of the Earl’s Court development, one of the biggest in the UK. The choice is between demolishing 750 council homes and building luxury homes with only 10% so-called affordable and no new social housing, and letting the existing residents keep their homes and develop the rest of the site for new social homes. It should not be that difficult a choice, so could we have some action and not just words?
Sajid Javid
I cannot comment on that particular planning proposal—it is a live proposal—but the hon. Gentleman should reflect. If he truly supports more homes and developments in London, perhaps he should have a chat with the leader of his party and ask why they intimidate Labour leaders who want to increase the number of homes in their areas.
Sir Desmond Swayne (New Forest West) (Con)
Is the Secretary of State satisfied with the balance of power between developer and purchaser when new builds turn out to be seriously defective?
Sajid Javid
No, I am not satisfied, which is one reason why the Under-Secretary of State, my hon. Friend the Member for South Derbyshire (Mrs Wheeler) is conducting a review of the house buying process.
Kerry McCarthy (Bristol East) (Lab)
I welcome the review of development controls, because at the moment far too many developers get away with making no contribution at all. May I ask the Secretary of State about land banking? He will be familiar from his days in Bristol with Oldbury Court estate in my constituency. An owner in the Channel Islands has been sitting on the site for 10 years, renewing planning permission but seemingly refusing to develop it. What can we do to ensure that developers build houses on the brownfield sites they own?
Sajid Javid
I empathise very much with the issue that the hon. Lady has raised. It is an issue in many local areas, not just Bristol. That is why, given the concern that we all share across the House, we have the independent review being undertaken by my right hon. Friend the Member for West Dorset. I do not want to pre-empt it, but I can assure her that it is a serious review and will lead to serious action.
Mr William Wragg (Hazel Grove) (Con)
With specific reference to the Greater Manchester spatial framework, can my right hon. Friend reiterate the protections that are in place for the green belt and the need to pursue a vigorous brownfield-first policy? Will he also give further consideration to a county-based calculation of housing need?
Sajid Javid
When it comes to housing need, the approach that we plan to take is what we have set out today, but given that this is a draft consultation, I am happy to listen to any representations from my hon. Friend. I can also give him an assurance that the existing green-belt protections remain in place. In fact, when it comes to environmental protections we have gone even further in the draft NPPF. For example, the protection that we have given to ancient woodland is the highest ever.
Mr Jim Cunningham (Coventry South) (Lab)
Excuse me, Mr Speaker; I have a problem with my voice tonight. Can the Secretary of State assure residents that they will have a meaningful say in development? He will know that we have had problems in Coventry in the Kings Hill estate, Cromwell Lane and Westwood Heath. I have already met him about that, and I hope for a date to meet his colleague. Can he give us an assurance that residents will have a stronger say and that their views will be taken into consideration?
Sajid Javid
The hon. Gentleman will understand if I do not talk about any particular planning application that is going through the process, but I can give him an assurance on local people and communities having a say. The consultations that we have set out today strengthen that, and one of the best ways for a local community to play a part is also to adopt neighbourhood plans.
Rebecca Pow (Taunton Deane) (Con)
May I say a special thank you to the Secretary of State for the mention of ancient woodland today and the protections given to it? It is a very precious habitat. I wholeheartedly support the ambition to deliver more homes. Does the Secretary of State agree that it is quite possible to have more houses but at the same time to look after the precious environment?
Sajid Javid
Yes, I very much agree with my hon. Friend. There is no need to trade-off between the two. We have shown through the consultations today that it is absolutely possible both to protect our environment and to deliver the homes that this country needs.
Alex Norris (Nottingham North) (Lab/Co-op)
I bring excellent news for the Secretary of State from the city of Nottingham. We are ready to build the houses we need to; we just need him to remove the cap on Nottingham City Council’s ability to borrow in order to do so. When will the cap be removed?
Sajid Javid
The £1 billion increase that the Chancellor set out at the last Budget will be from 2019, but if Nottingham has particular plans and wants to consider approaching us for a housing deal, it should do that.
Craig Tracey (North Warwickshire) (Con)
I welcome today’s statement, in particular the commitment to protecting the green belt. Can my right hon. Friend provide reassurance to my constituents, particularly in areas where significant development may be planned, that he will take steps to ensure that developers pay their share towards necessary infrastructure improvements, so that all local residents can benefit?
Sajid Javid
I can give my hon. Friend that reassurance. One of the two consultations today is specifically about developer contributions—something that has not been looked at for years and years. It will deal with the issue of where, particularly with large developments, certain promises are made at the start that are never kept. That is unacceptable, and we are going to take action.
Alison McGovern (Wirral South) (Lab)
When I tell my constituents in New Ferry that the Secretary of State wants less talk and more action, they will not know whether to laugh or cry. We have been trying to build homes in New Ferry since the terrible blast last year, and we have had little action from the Government. That is why the Metro Mayor for Liverpool, Steve Rotheram, and I wrote to the Secretary of State on 13 February asking him to do more. He has not replied. What on earth is going on?
Sajid Javid
The hon. Lady may be aware of this—if she is not, I am sure it will be welcome news—but Homes England is discussing with her local authority exactly how it could help. I hope that is something she supports.
Mark Pawsey (Rugby) (Con)
The Secretary of State will know that Rugby is playing its part in delivering the homes the country needs from his visit to Houlton, a site of 6,200 new homes, planned and structured on a brownfield site. That is happening because Rugby has always placed a high priority on plan making, with the current plan under examination. Can he confirm that the new standardised approach to assessing housing need will not require any further changes?
Sajid Javid
First, I have been very impressed by Rugby’s approach. In many ways, it leads the way in showing what can be done to get the most out of previously developed land. I can confirm that the new approach to how housing need is assessed will apply to local authorities as they continue to develop plans. In other words, if they already have a plan in place it will not make any difference to them.
Clive Efford (Eltham) (Lab)
My constituency is plagued with rogue landlords who are buying up residential homes, turning them into homes for multiple occupation, often fuelled by milking the housing benefit budget, and pricing local people out of the market. The problem is a lack of ability to enforce planning regulations. As rogue landlords use permitted development, will the Secretary of State look at the resources that local authorities have to police planning applications and people who are developing under permitted development?
Sajid Javid
I can tell the hon. Gentleman two things that I think he might find helpful. First, we have given more money to local authorities to deal with the problem of rogue landlords. Secondly, new measures will come into place from April to give local authorities more powers to deal with rogue landlords. Local authorities will be able to keep the funding from the fines they impose and recycle it to help the victims of rogue landlords.
Justin Tomlinson (North Swindon) (Con)
I welcome this ambitious and positive statement. We all have a role to play in allowing the next generation to benefit from the opportunity of home ownership, something my constituency takes very seriously. Does the Secretary of State agree that the developers have to do their bit, too? I am afraid that all too often the quality of new build homes is dreadful, and that puts people off.
Sajid Javid
First, I welcome my hon. Friend’s comments. I agree with him that there are too many cases of new developments where the quality is simply just not acceptable. I have seen, from hon. Members, too many examples of that. That is why, through the process of looking at house buying, we will be taking a very close interest in that.
Daniel Zeichner (Cambridge) (Lab)
Unlocking land value could play an important role in securing future developments, but in answer to a previous question the Secretary of State just referred to a consultation. Does he support a land value capture system and when might we expect to see one?
Sajid Javid
What I support is making sure that the state captures some of the increase in value once land receives planning permission. We do that currently through developer contributions, the community infrastructure levy, and section 106 and other agreements. I want to ensure that what we currently have in place is working well. If the hon. Gentleman shares that ambition, I suggest he responds to the consultation.
James Cartlidge (South Suffolk) (Con)
Does my right hon. Friend agree that where district councils are delivering permissions way in advance of their target but do not have a five-year land supply because of low delivery rates—the point made by my right hon. Friend the Member for Wokingham (John Redwood) and others—they are not nimbyistic, and that the review by my right hon. Friend the Member for West Dorset (Sir Oliver Letwin) must give them very effective and robust tools that could include financial penalties if it is concluded that that is the only thing that will make them deliver the numbers we need?
Sajid Javid
The draft reforms will give extra protection to local authorities that temporarily fall below their five-year land supply because they have plans for larger developments that have yet to come online. That case was made to me by a number of people during the consultation. It is a sensible case and it will help in exactly the kind of circumstances my hon. Friend outlines.
Justin Madders (Ellesmere Port and Neston) (Lab)
There are some laudable aims in the Secretary of State’s statement today, but I fear they will not succeed because we are still relying on the same cabal of developers who brought us the leasehold scandal and whose profits have gone up nearly 400% in the past five years. Surely the answer is to give more powers and finances to local authorities and, instead of setting an arbitrary figure centrally, to work with each individual council to see what their plans and borrowing capacity can actually be?
Sajid Javid
What the hon. Gentleman highlights, I think, is the need for more competition in the market: having more people involved and not just some large developers who tend to dominate the market in some areas. I therefore hope he will welcome the measures in the draft planning code to encourage smaller builders and the support we provide through the home building fund.
Martin Vickers (Cleethorpes) (Con)
The housing demand in northern Lincolnshire is very different from that in London and the south-east. May I urge the Secretary of State to always be mindful of that and not to put local planning authorities in a straitjacket of guidelines? Will he also ensure that the guidance is sufficient, so that local authorities do not grant planning permission without the necessary infrastructure and access to essential services that new housing developments need?
Sajid Javid
My hon. Friend makes a very good point. There are regional housing markets—the London market is very different from housing markets in other parts of the country—so he is right to highlight that point. On infrastructure, it is very important that the local authority plans for the right infrastructure. That means help from developer contributions, but also from the Government. That is why I hope he welcomes the housing infrastructure fund.
Mr Speaker
What a choice between two illustrious denizens of the House. I call Mr Andrew Selous.
Andrew Selous
Thank you very much, Mr Speaker. Houghton Regis North 1 is a 5,000-house development in my constituency for which all planning permissions have already been granted. My concern is that I am told that not a single person will collect keys on that large site until early 2020 because of the time it will take to put in electricity and other utilities. My constituents need those houses now. They cannot wait that long and they cannot wait for the Letwin review. What can the Government do to help to get those utilities in more quickly, so that we build the houses we desperately need?
Sajid Javid
My hon. Friend highlights the need for more cross-government work to ensure better co-ordination on issues such as utilities to make sure that all Departments are delivering. I am working with my right hon. Friend the Business Secretary and his colleagues to make sure that utilities are put in at the right time and do not hold up development.
Robert Courts
In rural areas such as west Oxfordshire, it is absolutely essential that, when new houses are built, infrastructure is built to accompany them. Will the Secretary of State please confirm that the intention of the NPPF revision is that developers are not only made to pay for that infrastructure, but that it will be delivered in advance of, or at the very least at the same time as, the houses are being built—not long afterwards, or, worse, not at all?
Sajid Javid
There is obviously a role for Departments to play with regard to strategic infrastructure—for example, the housing deal in Oxfordshire helps to provide some of the strategic infrastructure—but my hon. Friend is absolutely right about the role that developers must play in providing infrastructure. Many do not meet those obligations, which is why we set out the consultation on developer contributions. I hope he will contribute to it.
Points of Order
(6 years, 8 months ago)
Commons ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Layla Moran (Oxford West and Abingdon) (LD)
On a point of order, Mr Speaker. On Thursday 1 March, in an oral statement on the Leveson inquiry, the Secretary of State for Digital, Culture, Media and Sport said:
“Sir Brian, whom I thank for his service, agrees that the inquiry should not proceed under the current terms of reference”—[Official Report, 1 March 2018; Vol. 636, c. 966.]
Is it in order for the Secretary of State to describe Sir Brian as agreeing with the Government when his actual words, in a letter to the Department on 23 January, were that he “fundamentally disagrees” with the Government’s position? Furthermore, the Government acknowledged his view in further correspondence that was released hours after that statement was made.
Mr Speaker
I am grateful to the hon. Lady for her point of order and for her characteristic courtesy in giving me advance notice of it. I understand that she has also notified the Secretary of State. The contents of a ministerial statement are the responsibility of the Minister. If the Secretary of State feels that he has been in any way inaccurate in his description of Sir Brian Leveson’s views, I have no doubt that he will take steps to put the record straight. He is not obliged to say anything here, although he can if he so wishes.
Mr Speaker
Not yet; I am dealing with the matter. The right hon. Gentleman can behave with a statesmanlike reserve befitting his very high office and onerous responsibilities.
As the correspondence has now been made available, it is a matter on which all Members may take their own view. I think it partly comes down to a question of interpretation and of emphasis, and I know where the hon. Lady is coming from on this subject. I am not entirely unaware of what Sir Brian has said about these matters. Meanwhile, the hon. Lady has succeeded in putting her view on the record. I call the Secretary of State, who is in his place and was a moment ago literally leaping towards the Dispatch Box with a breezy air of confident insistence.
Matt Hancock
Further to that point of order, Mr Speaker. I very clearly and carefully described my position and Sir Brian’s. Now that his letter is in the public domain, I think it is all very straightforward.
Chris Bryant (Rhondda) (Lab)
Further to that point of order, Mr Speaker. I am sorry, but I was in here and listened very carefully, and I—and, I think, the majority of Members of this House—certainly got the very distinct impression that Sir Brian Leveson was agreeing with the Secretary of State, whereas one could only describe his reaction to having been described in such a way as incandescent fury. In future, would it not be helpful if, when a Secretary of State makes a statement of this nature—particularly one citing another person and praying them in aid—he published that person’s correspondence at exactly the same point as making the statement?
Mr Speaker
That certainly could be helpful. The Secretary of State’s words are a matter for him. It is always very important, as a matter of both principle and prudence, faithfully to reflect the views of anybody whom one seeks to quote; as a matter of principle, because that is ethically right, and as a matter of prudence, because to put it bluntly—I am speaking hypothetically—if one did not, it might come back to bite one. We will leave that there for now.
Mr Speaker
A very difficult south London choice for me. I was notified by the hon. Member for Streatham (Chuka Umunna) first, so I will take a point of order from him.
Chuka Umunna
On a point of order, Mr Speaker. Over the last few years, there have been several major water leaks and burst water mains causing severe disruption to my constituents, meaning that they cannot wash, cook and do the basic things that we take for granted in everyday life. Yesterday, over 20,000 homes across London, and indeed many others across the rest of the country, were left without water.
My constituency is served by Thames Water. This is the worst incident of its type and it is totally unacceptable. Although the snows, the freeze and the thaw have posed huge challenges, Ofwat said this afternoon that these companies have fallen far short in forward planning and giving the right support and communication to people. I am absolutely astounded, given the practical implications of this, that no Minister has come to the Dispatch Box today to explain what the Government are doing, or will do, to support people who have been going through hell over the last couple of days. At the very least, one would have thought that there would be some kind of public inquiry. People will be interested to know whether they will get compensation for what has happened. Can you assist me, Mr Speaker, by advising me how we might get a Minister to the Dispatch Box to explain what they are doing to address this serious situation?
Mr Speaker
Would the hon. Member for Dulwich and West Norwood (Helen Hayes) like to come in at this point?
Helen Hayes
Further to the point of order raised by my hon. Friend the Member for Streatham (Chuka Umunna), who is my constituency neighbour, Mr Speaker. Thousands of my constituents have been without water over the weekend, some since last Thursday. During that time, they have been unable to contact Thames Water by telephone or through the website, and they have not received any information on when supply will be restored or how to obtain bottled water. The BBC reported this morning that a hospital had to contact the water company by Twitter to request emergency supplies of water. There has been no clear protocol for ensuring that residents who are not able to collect water in person have access to clean and safe drinking water.
There are similar reports from across the country, including one that I received personally this evening from the water industry that up to 100,000 residents in Birmingham are at imminent risk of being without water as the thaw spreads. This is a national crisis in our water industry, which, it is clear, is not fit for purpose. I welcome your advice, Mr Speaker, on how we can secure the intervention and leadership that we need from the Government to get us through this crisis, and to ensure that we have a water industry that is fit for purpose.
Mr Speaker
I am very grateful to the hon. Members for Streatham (Chuka Umunna) and for Dulwich and West Norwood (Helen Hayes) for their points of order, which appertain to their constituencies, but which they have made clear are of national salience. Today was a very difficult day, in that we had two Government statements that were likely to be well subscribed, and a Second Reading is to follow, but there are tried and tested mechanisms for seeking to bring to the House’s attention matters that are thought to be of some urgency. If the matters continue to be of some urgency, it is open to Members to seek to bring those matters to the House on subsequent days.
I should say to the hon. Member for Streatham that until 25 years ago, I lived in his constituency, although he was not at that point its distinguished representative, and I drove through it yesterday in the course of a rather unhappy journey in my car back from Brighton, where I had been attending a football match with my son. The reason for my unhappiness will be well known to the hon. Gentleman, as I hail originally from north London. I did see a rather large concentration of very dirty water in a road at one point. That was obviously rather a sad contrast with the unavailability of a proper water supply to residents of his constituency, so this is a real and pressing concern. The ingenuity of both hon. Members is such that I think they will find their own salvation before too long.
Bill Presented
Rivers Authorities and Land Drainage Bill
Presentation and First Reading (Standing Order No. 57)
David Warburton, supported by Neil Parish, Mr Ian Liddell-Grainger, James Heappey and Mr Marcus Fysh, presented a Bill to make provision about rivers authorities; to make provision about the expenses of internal drainage boards; and for connected purposes.
Bill read the First time; to be read a Second time on Friday 16 March, and to be printed (Bill 172) with explanatory notes (Bill 172-EN).
Data Protection Bill [Lords]
Monday 5th March 2018
(6 years, 8 months ago)
Commons ChamberRead Full debate Data Protection Act 2018 View all Data Protection Act 2018 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 77-I Marshalled list for Third Reading (PDF, 71KB) - (16 Jan 2018)
The Secretary of State for Digital, Culture, Media and Sport (Matt Hancock)
I beg to move, That the Bill be now read a Second time.
This House has a noble track record of working with rather than against technology. Whether it was the Electric Lighting Act 1882, which paved the way for electricity in the 19th century, or the Television Act 1954, which opened up our airwaves to commercial TV broadcasters in the 20th century, we have always helped pioneers to overcome obstacles and to use technology to make life better. The Data Protection Bill will do this, too. It will give people more power and control over their online lives while supporting innovation and entrepreneurship in the digital age, helping to make Britain fit for the future.
The Bill will deliver real benefits across the country, helping our businesses to compete and trade abroad. Strong data protection laws give consumers confidence in the products and services that they buy, and that is good for business, not bad. The Bill provides a full data protection framework as we leave the EU, consistent with the general data protection regulation in EU law. In October, the House debated how our data protection landscape will look after we leave the EU. Members on both sides agreed that the unhindered flow of data between the UK and the EU is vital and in the interests of both. Through today’s Bill, we can make that a reality.
Chi Onwurah (Newcastle upon Tyne Central) (Lab)
I am grateful to the Secretary of State for his opening remarks about the importance of the House supporting technology. He will know that data drives our economy and society in ways that people can find difficult to follow. The internet of things will increase exponentially the data trail we all leave, but the digital charter suggests only that private companies follow best practice. Does he not recognise the importance of data rights? Why is he not bringing forward a Bill of data rights?
Matt Hancock
I absolutely do, and the Bill does bring forward the right to the protection of personal data, as I will set out. It is incredibly important to ensure that such rights keep pace with the sort of modern technologies that the hon. Lady—she is extremely well informed on these topics—refers to, such as the internet of things. The Bill will directly address the issue she raises by strengthening citizens’ rights in this new digital era, and I will detail the new rights later.
As digital becomes default in our society, people are trusting businesses and public services with more personal and sensitive data than ever before, including through their personal use of the internet and the internet of things, yet without trust that that data will be properly handled, the digital economy simply cannot succeed. Trust underpins a strong economy, and trust in data underpins a strong digital economy. The Bill will strengthen trust in the use of data by enhancing the control, transparency and security of data for people and businesses across the UK. I will speak to each of these three in turn.
First, on control, the Bill delivers on our commitment in the digital charter to empower citizens to take control of their data—after all, data belongs to citizens even when it is held by others—and sets new standards for protecting data while giving new rights to remove or delete it. Everyone will have the right to make sure that the data held about them is fair and accurate, and held in a way that aligns with rigorous principles.
Joanna Cherry (Edinburgh South West) (SNP)
Is it really accurate to say that everyone will have that right, given the immigration exemption?
Matt Hancock
Yes, of course. Everyone who is a British citizen will have the right to make sure that data about them is held fairly and accurately, and in alignment with rigorous principles. The hon. and learned Lady raises obliquely the point that the Bill contains important exemptions, including those to allow MPs to act on behalf of constituents as part of their casework, and to ensure that we can properly police our borders. I will come to that in more detail later. Nevertheless, at the heart of the Bill is citizens’ ability to control the data that companies and other organisations hold about them.
Sir Edward Davey (Kingston and Surbiton) (LD)
Further to the point made by the hon. and learned Member for Edinburgh South West (Joanna Cherry), will the Secretary of State explain the legal basis for the immigration exemption from the general data protection regulation?
Matt Hancock
Yes, of course. Exemptions from the GDPR are allowed so that necessary activities can be carried out, including that of making sure that a minority of individuals cannot abuse data protection law with the sole intent of undermining immigration controls. That is provided for in the necessary exemptions. I know that this point was debated extensively in the other place, but we firmly believe not only that it is important to ensure that we can control our borders through immigration controls, but that this is provided for in the GDPR.
Joanna Cherry
The Secretary of State says that the immigration exemption is covered by the GDPR, but is he aware of legal opinion saying that the text of parts 1 and 4 of schedule 2 does not in fact reflect the stated permissible exemptions under article 23 of the GDPR? That is independent legal opinion, not mine.
Matt Hancock
Of course, there are always legal opinions about everything, and our legal opinion is that that is consistent—that is the basis on which we are proceeding. As I am sure the vast majority of Members would agree, it is important that we control our borders.
The Bill provides new data rights, including a stronger right to be forgotten.
Rebecca Pow (Taunton Deane) (Con)
I welcome the element of the Bill about the right to be forgotten. I am sure that the Secretary of State is aware that the Digital, Culture, Media and Sport Committee is carrying out an inquiry into fake news, during which this whole issue of data—who owns it, who holds it and who knows what about whom—has come under the spotlight. Can he say how the Bill might help to control that?
Bill Wiggin (North Herefordshire) (Con)
Before he does, will the Secretary of State give way?
Matt Hancock
I will happily respond to both points. Under the Bill, data must be deleted unless there are legitimate grounds for retaining it. The details of what is meant by legitimate grounds will be set out in recitals and then guidance from the Information Commissioner. This is one area in which the right to be forgotten, which has been long dreamt of and thought about, is now being legislated for, and the precise details of where it applies will be set out in guidance, as the Bill states only that there need to be legitimate grounds for retaining data.
Mr Jacob Rees-Mogg (North East Somerset) (Con)
Can we be certain that this right to be forgotten will not impede freedom of speech? I am thinking of Max Mosley, of course, and the information that came out on what he said in 1961, which is relevant and pertinent to current debates. We should do nothing that limits the right of a free press.
Matt Hancock
I wholeheartedly agree with my hon. Friend about not limiting the rights of the free press. He might be aware of amendments that were made in the other place on exactly that issue and that are supported by a number of Members of this House, including, notably, some who are also supported by Max Mosley. I think that we should remove those two provisions. The ability of our press properly to scrutinise is important and should not be undermined in the ways proposed, but I will come to that in more detail later.
The right to be forgotten is an important element of making sure that data is held appropriately and when there are legitimate grounds. The Bill also allows for data portability—a person’s right to transfer their data from one provider to another.
Stephen Timms (East Ham) (Lab)
As the Secretary of State is describing, the Bill puts into UK law the EU’s general data protection regulation, which is the right thing to do. I am confident that he would agree that we need to ensure that our data protection rules stay in line with the EU regulation as things develop. Does it trouble him that we will have less influence over the future content of the EU’s rules once we have left it?
Matt Hancock
I agree that this is a strong set of data protection standards. We intend to stay aligned with the EU standards, not least because they are extraterritorial, which means that anyone wanting to do any business or transactions with EU citizens would have to follow them anyway. There is therefore a very strong case for alignment in this area. Indeed, we have set out that we want the Information Commissioner to remain engaged with the future development of technical standards because we expect the GDPR effectively to become a standard that is increasingly followed around the world by companies that want to engage with the EU, and because we believe that high data protection standards go hand in hand with the capability to innovate and provide for customers. The Prime Minister was, of course, clear about the detail on Friday.
Sir Edward Davey
I am afraid that the Secretary of State has not answered the question asked by the right hon. Member for East Ham (Stephen Timms). Is it not true that UK companies will be bound by rules that the EU will decide? Those rules will affect a huge amount of business, but we will have no influence over them after we leave the EU?
Matt Hancock
I thought I had answered the question—the right hon. Member for East Ham (Stephen Timms) was nodding, so I thought I had at least had a crack at it. As the Prime Minister set out on Friday, and as we set out for the first time last August, we will seek, through the Information Commissioner’s Office, to remain engaged in those technical discussions about the future of the rules. As was proposed in the Conservative party manifesto, the Bill also gives young people the right to have data about them removed once they are 18 years old.
The second element is transparency, which is absolutely vital. All citizens should be able to know what is happening to their data and how it is being used. The Bill requires data controllers to give people information about who controls data, the purpose of processing it, and how long it will be stored. That is especially crucial in a world in which emerging technologies such as artificial intelligence are making increasingly important ethical decisions. The Bill therefore provides powers for the restriction of automated decision making and safeguards for those whose data is used. Our new centre for data ethics and innovation will advise on those safeguards, so that we can promote innovation and respond quickly to changes in technology with clear and transparent guidelines that are based on openness and consent.
The third principle is security. The Bill enhances requirements relating to the security of data and strengthens enforcement for those who do not comply. Data security and innovation go hand in hand, and this move will benefit customers and all responsible businesses. The Data Protection Act 1998 has served us well and placed the UK at the forefront of global data protection standards, but the world has changed since 1998, and the Bill updates the position to make our laws fit for purpose in an increasingly digital economy and society. It modernises many of the offences under the Act and creates new offences to help us to deal with emerging challenges.
Dr David Drew (Stroud) (Lab/Co-op)
The Secretary of State is being very generous in taking interventions. He has probably heard from the National Association of Local Councils, which represents parish and town councils. It has asked that an external data protection officer will not have to be appointed at every council level. There would be a cost of some £3.5 million to the smallest but most relevant authorities, so will the Secretary of State be sympathetic to its request for relief from that onerous responsibility?
Matt Hancock
I have received representations not only from the National Association of Local Councils, but from the Suffolk Association of Local Councils and many of my own parish councils—including Moulton Parish Council—which do an admirable job in telling me about the pressures facing parish councils throughout the country. I pay tribute to them for their efforts, and for the length of their representations to me.
Of course it is important for parish councils, and other local councils, to follow high-quality data protection standards. The Information Commissioner’s Office has provided extensive guidance to help organisations to prepare for their new responsibilities, and I urge councils to look at it.
The responsibilities of data protection officers—this is relevant to the issue raised by the hon. Gentleman—can be implemented in different ways. For instance, several parish councils can choose to share a single data protection officer, provided that he or she is easily accessible from each establishment. The system does not require the hiring of one person per organisation. Organisations have already been set up to provide this service, and the service itself is important. In the case of a small organisation, such as a very small business or a parish council on a low budget, it is still important for data to be handled and protected carefully, because small organisations too can hold very sensitive personal information. I am extremely sympathetic to the plight of small businesses that must deal with regulation—especially as I come from a small business background myself—but I am also convinced that it is good practice to follow high-quality data protection standards and that it is good for organisations to do so.
James Cartlidge (South Suffolk) (Con)
I thank my right hon. Friend for giving way. He is being very generous.
I knew that some small businesses in my constituency were concerned about the impact of the GDPR, so I telephoned the Information Commissioner’s Office to find out what support was available to them. The only answer that the office could give to every question that I asked about how the GDPR would affect small businesses was “Go to the website.” Does my right hon. Friend agree that we should expect better from a telephone line that is funded by the taxpayer?
Matt Hancock
I am glad that there is a telephone line. I am sure that the Information Commissioner will be watching the debate and will hear the plea for clear guidance on how small organisations in particular should implement data protection standards, whether they are small councils or small businesses. However, the Information Commissioner’s Office has already provided clearer guidance, as well as the telephone line. It is obviously listening, with the aim of getting the guidance right and ensuring that, in lay terms, meeting the new standards is straightforward. This issue came up in the other place as well. It is important for us to get the implementation right, especially in the case of small organisations.
Chris Bryant (Rhondda) (Lab)
The Secretary of State has referred to the right to be forgotten. May I suggest that there might be another right, namely the right to be remembered correctly? All too often, in response to freedom of information requests about, for instance, national security, the Government have imposed a blanket ban on the publication of any information—even many years after the individual concerned has died, when it is pretty difficult to see why there should still be a national security issue. I wonder whether it would not be a good idea for us to have some means of extracting such information in 20, 30, 40 or 50 years’ time.
Matt Hancock
The Bill does not change the freedom of information regime. However, it does establish a data protection regime relating to intelligence services and national security, about which I shall say more shortly, and which will no doubt be scrutinised by the House. The specific issue of the release of records is not in the scope of the Bill, because it is about the protection of live data rather than the release of records. The 30-year rule has, in the main, been changed to a 20-year rule, but of course there are national security opt-outs, some of which are incredibly important.
Chris Bryant
Of course there should be national security opt-outs, and when we were changing the rule from 30 to 20 years, I was one of the Ministers who ensured that they were strong. My anxiety is, however, that all too often the security services impose a complete blanket ban, which means that we as a nation are not properly able to understand what happened in the 1930s, 1940s and 1950s. If we were better informed about that, we might be able to make better decisions for our own national security in the future.
Matt Hancock
I do not wish to labour the point. I too was the Minister responsible for national security releases. All I can say is that that is not within the scope of the Bill, and I think the system works effectively.
As recommended by Dame Fiona Caldicott, the National Data Guardian for Health and Care, the Bill creates a new offence of the unlawful re-identification of de-identified personal data. It offers new safeguards for children, including a new code on age-appropriate website design. Currently, the law on parental consent for children on social media is complicated, but in most cases it applies to children up to 12 years old. The Bill provides for consent to be required in the case of children aged up to 13, so that parents have more control but the law is still practical.
The Bill also sets out clearer frameworks for data security—for example, by giving everyone a right to know when their data has been breached. We are strengthening the enforcement powers of the Information Commissioner to reflect a world in which data is held and used in much more sophisticated ways than ever before. Under the Bill, the commissioner can issue substantial penalties of up to 4% of global turnover. When she finds criminality, she can also prosecute. With greater control, greater transparency and greater security for our data, the Bill will help to give us a statute book that is fit for the digital age as we leave the EU.
Let me now touch on some specific areas in a little more detail. This is a forensic Bill with 208 clauses. It covers a vast area of British life, including financial services, sport, the protection of equality and much more. It also includes provisions that will support Members of this House in the work that we do, and it will make it easier for us to take up casework on behalf of our constituents.
The Bill provides for three parallel schemes to protect personal data. First, on general data, which accounts for the vast majority of data processing across all sectors of the economy and the public sector, this part of the Bill works in tandem with the EU’s GDPR, which we have discussed. We know that small businesses need advice on this, and it is important to get right the advice from the Information Commissioner’s Office. It says in my notes that the ICO has a small business helpline, but we have already heard about that in the debate.
Rebecca Pow
I have been contacted by a number of businesses in Taunton Deane that are concerned about the work already placed on them to comply with data protection legislation. Can the Secretary of State confirm that this Bill will not give them a further workload, that it will indeed help those needing to trade in future across Europe and that it should, overall, be a benefit?
Matt Hancock
That is right. The Bill is structured to be consistent with the EU law elements of GDPR, which automatically apply from 25 May this year, to ensure that the non-EU elements of data protection, with respect to general data processing, national security data and law enforcement data, provide for a full spectrum framework for data protection once we leave the EU. The Bill is designed in such a way that it is as simple as possible for businesses to comply with the data protection standards that will be directly enforced from 25 May anyway. That is why from the point of view of small businesses, it is important that we get this Bill through by 25 May, and we have a fully functioning data protection framework. However, I certainly take on board, and am sympathetic to, the concerns my hon. Friend raises about small businesses and the need to ensure our data system is innovative in the future, and that people can comply with the rules. I hope that satisfies her on the concerns of small businesses in her constituency, as well as those of small councils and indeed small charities, which have to comply as well.
The schemes are designed to make sure the police can keep using and sharing personal data to prevent and investigate crime, to bring offenders to justice and to keep communities safe. Likewise, the Bill makes provisions for the personal data processed by our intelligence agencies, so they can continue to protect our country at a time of heightened terrorist threat. The intelligence services will be part of this new framework under the supervision of the Information Commissioner.
We also want to support the hard-hitting investigative journalism that holds the powerful to account and that we have touched on already—and it is good to see my hon. Friend the Member for North East Somerset (Mr Rees-Mogg) engaging with the digital economy on his smartphone; I am delighted that he welcomes at least some elements of the 21st century. On this point, I want briefly to comment on the proposed clauses inserted by the Lords. I set out our response to the consultation on the future of the Leveson inquiry last week, so I will not set out the arguments again in full this afternoon, but I will say this: the amendments are simply not the answer to today’s problems faced by the media. It has been six years since the Leveson inquiry reported; since then, we have seen the completion of three detailed police investigations, extensive reforms to police practices and some of the most significant changes to press self-regulation in recent times. Meanwhile, the media are facing critical challenges that threaten their sustainability, including fake news, declining circulations and in gaining revenue from online content.
On top of that, the amendments undermine our devolution settlement. The new clauses seek to legislate on a UK-wide basis, despite press regulation being a reserved matter for the devolved Administrations. I hope Scottish National party Members, and indeed all Members, will join me in voting these amendments down.
Andy Slaughter (Hammersmith) (Lab)
The Secretary of State is not sounding any more convincing than he did in his statement on Thursday. Failure to proceed with part two of Leveson and section 40 of the Crime and Courts Act 2013 is a disgusting and cowardly betrayal of the victims of media harassment. It does not even leave those victims in the same position as before, because since Leveson the Legal Aid, Sentencing and Punishment of Offenders Act 2012 has hobbled the ability of claimants in privacy and defamation actions to access no-win, no-fee representation. Therefore, section 40 is now the only way to ensure access to justice, which is as helpful to small publishers as it is to citizens. Why does the Secretary of State not put their interests before those of big newspaper groups, instead of currying favour for himself and his weak Government?
Matt Hancock
We debated this at length on Thursday and discussed the fact that it is vital that we look to what is needed for the media now, to ensure that instead of having a set of proposals that were designed several years ago and that would lead to any claimant being able to claim costs no matter the merits of their case, we have measures that enable our press to be sustainable for the future.
John Redwood (Wokingham) (Con)
I support the Secretary of State in proposing that these amendments be removed. Like many in this place, I have been on the wrong end of fake news and misrepresentation many times, so I do not do so out of personal interest. I think there is a wider public interest: a free press is an extremely important part of a democracy. The press will not always get it right, but we need to be very careful about the amendments from the Lords.
Matt Hancock
I wholeheartedly agree with my right hon. Friend.
This Bill is an essential piece of legislation that makes the UK’s data laws among the most effective in the world. This House must never shy away from supporting new technology. The Electric Lighting Act 1882 was considered so important that the House sat on a Saturday to get it through. I hope that will not be necessary this time, but I do hope that the House will adopt similar enthusiasm in backing this Bill. Doing so would support our entrepreneurs in harnessing the value of data, while giving citizens confidence when they go online.
I was pleased a few weeks ago that the Opposition Front-Bench teams in the other place agreed that the Bill was a positive and necessary step. I hope the whole House will agree tonight, and I commend this Bill to the House.
Tom Watson (West Bromwich East) (Lab)
I refer hon. Members to my declaration in the Register of Members’ Financial Interests, and, at the risk of emptying the Chamber early this evening, I should start by reassuring the Minister that Labour will not be opposing this Bill on Second Reading. It is an important piece of legislation, and parts of it absolutely have to be incorporated into domestic law by May this year, and we do not intend to stand in its way.
But that is not to say that we are content with the Bill as it is. Many improvements have been made in the other place—many with cross-party support, and some, which I will discuss in more detail, against the wishes of the Government—but there are more changes that we need to make, and the Opposition will be pressing for them as the Bill proceeds through its Commons stages. I pay tribute to the work of peers on all sides, and in particular to my Labour colleagues, Lord Stevenson, Lord Kennedy, Lord Griffiths and Lord Grantchester, for their work on the Opposition Front Bench.
In 2016, I set up the independent Future of Work Commission to look at the challenges and opportunities created by the new technological revolution. Just as Harold Wilson spoke 54 years ago about the opportunities of the “white heat” of what was then cutting-edge technology, so we now need to make sure that we are seizing the opportunities that the new digital economy presents to us. That is where many of the jobs of the future lie—where the raw materials are not steel or minerals or plastics, but data. The commission concluded that, with the right policy framework around it, the new technologies of artificial intelligence, massive processing power and digital transfer can create as many jobs as they destroy and enhance many jobs that currently exist.
None of that is inevitable, however, because we are not doing enough to exploit the opportunities created by this new world of work. Britain is unprepared for the technological revolution. We think this demands strategic planning, as the policy choices we make now will shape how technological change will affect the work and lives of our citizens.
I think we all in this House accept that, as we leave the European Union, we need to make sure that we still have unhindered flows of data between the EU and the UK; anything else would do huge damage to our economy. As the House of Lords European Union Committee report on “Brexit: the EU data protection package” concluded,
“any arrangement that resulted in greater friction around data transfers between the UK and the EU post-Brexit could hinder police and security cooperation. It could also present a non-tariff barrier to trade, particularly in services, putting companies operating out of the UK at a competitive disadvantage.”
So it is vital that we get this Bill right.
We will be seeking more information from the Government than was forthcoming in the Bill’s passage through the other place on how we will allow continuous data flows once Britain is no longer a member of the EU and, in the EU’s terms, a “third country”. Data is the raw material of the digital economy. Businesses, individuals, Government agencies and others need to exchange and process data, but to do that safely, we need proper protections so that it cannot be stolen, used without our consent or misused. If we are to build a strong digital economy, we need strong foundations, because trade is built on trust. Consumers, particularly children and vulnerable adults, need to be better supported and protected. That is why my right hon. Friend the Member for Birmingham, Hodge Hill (Liam Byrne), who will be doing much of the heavy lifting on the Bill as it proceeds through Committee, has talked about the need for a new Bill of data and digital rights—a broad set of regulatory structures for data capitalism.
We hope that our proposals are more ambitious than the Government’s digital charter and less reliant on voluntary codes of conduct, which can be ignored by big social media and data giants. Instead, we believe we need a statutory code of enforceable rights offering people proper control over their own data, appropriate remedies when their data is misused and proportionate sanctions to deter unlawful data processing. Rights for children need to be at the core of this. Children make up one third of internet users worldwide, and one in five in the UK, so we welcome the improvements made by Baroness Kidron’s amendment on age-appropriate design, but we want to work with the Government to do more to ensure that children are properly served by the Bill.
We believe that a right of privacy is key to any strong regime of rights. It is easy for individuals to have their privacy invaded as a result of sharing data on the internet, so we will be pushing for the incorporation of article 8 of the charter of fundamental rights, with all the appropriate safeguards and balancing tests. We hope that the Government will see the benefit of this to a future adequacy decision with the EU.
Mr Jim Cunningham (Coventry South) (Lab)
I am sure that, like me, my hon. Friend has had a number of letters from people who are concerned about their privacy and their rights in relation to privacy.
Tom Watson
Yes, indeed. Privacy in the age of the net, with huge data flows and information in abundance, is the debate of the age. There is no doubt that this House will be discussing privacy in the years to come, beyond this Bill and beyond further regulation. In this particular Bill, however, we must ensure that privacy is not just entrusted to the delegated powers of the Minister and that it is a fundamental right that our citizens can start to develop.
Parliament is also considering the European Union (Withdrawal) Bill, which, in combination with this Bill, risks eliminating the GDPR as a check on the misuse of ministerial authority to undermine data privacy rights. It gives Ministers power to make secondary legislation to amend any retained EU law, which would include those governing data protection rights. The European Union (Withdrawal) Bill, as currently drafted, eliminates the important data protection rights of article 8, which would otherwise constrain Ministers’ ability to erode fundamental data privacy protections. So we want to make it explicit in the Bill that those protections cannot be eroded. Strong rights need strong enforcement and a proper mechanism to enable enforcement to take place. This is all the more vital where the data rights of children are involved. We therefore want to see the Bill amended to ensure that consumer groups that operate in the privacy field can act on behalf of data subjects without a particular complaint—a right of collective, not just individual, redress.
The Government have chosen not to implement article 80(2) of the GDPR, which gives greater ability for civil society and other representative bodies to act on behalf of citizens and mirrors consumer rights in goods and services. A super-complainant system would help to protect anonymity and create a stronger enforcement framework. Collective redress and representative action led by a recognised body would also help individuals to enforce their rights to data protection when their data is exposed, stolen or misused as part of a large data breach that affects multiple people. It would create a stronger enforcement framework, which would build and reinforce trust without overburdening existing institutions.
I want to turn to two amendments—improvements—made in the other place that the Government have already said they wish to overturn. Indeed, as soon as the votes had taken place, the Secretary of State tweeted that they were votes against press freedom—even though they were also votes in favour of a policy agreed by all parties in 2012, and for which he himself, the former Prime Minister and the current Prime Minister had previously voted. So it was no great surprise when the Secretary of State made his announcement last week about ditching Leveson part 2 and binning section 40 of the Crime and Courts Act 2013. His tweet, as I think he will recognise, somewhat pre-empted his consultation response. However, we live in a country where Parliament is sovereign, so the decision is not entirely up to him. It is up to us in this House. We can decide whether to keep the promises made by David Cameron—and by all parties—to the victims of phone hacking and other press abuse in 2012, or to break them.
Chris Bryant
Was there not also a promise, in a sense, to Brian Leveson? The guarantee was that a single inquiry was to be carried out. I am sure that my hon. Friend has seen the correspondence in which Leveson himself says that he fundamentally disagrees with the Government’s position because the only regard in which he thinks the terms of reference should be changed is that they should be increased, so that we could see whether the Independent Press Standards Organisation was indeed any different from the Press Complaints Commission at all.
Tom Watson
A characteristically articulate question, there. My hon. Friend will not be surprised to learn that I am coming on to that point in my speech now.
Section 40 of the Crime and Courts Act 2013 legislates for the part of the Leveson system that would provide access to justice for ordinary citizens, while offering protection to journalists and newspapers that signed up to any Leveson-compliant self-regulatory body. I want to take on one argument that I think is a complete red herring. Some elements of the media do not like IMPRESS —the only self-regulator that has so far been given royal charter recognition. They are, to coin a phrase, unimpressed with it. They would prefer not to be regulated by it, and they pretend that section 40 would force them to be members of it. But that is not accurate. There is absolutely nothing preventing those elements of the press that dislike IMPRESS from setting up an alternative self-regulator and seeking royal charter recognition for it. They could seek recognition for IPSO, but it continues to fall short of the criteria applied by the Press Recognition Panel. The fact that they choose not to do so suggests that IMPRESS is not really the problem. So we will seek to retain the amendment on section 40.
Tom Watson
I was anticipating an intervention from the hon. Gentleman. I hope that he can convince me that those senior editors who gave evidence to Leveson will not be eating their words when further revelations are made in the weeks and months ahead.
Mr Rees-Mogg
I am grateful to the hon. Gentleman for giving way and for his earlier and quite proper reference to his entry in the Register of Members’ Financial Interests. IMPRESS is there, and it has been funded by Max Mosley, who has been exposed as a racist and as someone who indulges in orgies and who has been waging a war against the press. The free press does not want to be regulated by a state-approved regulator. That is fundamental to the freedoms we enjoy in our society. Clauses 168 and 169 effectively impose IMPRESS as the only body that has sought and received royal charter approval, yet it is funded by this deeply unsavoury figure, from whom I believe the hon. Gentleman has now dissociated himself.
Tom Watson
I do not believe that Max Mosley now holds the views ascribed to him. This is what happens when people take on press barons and the billionaires who back them. That is what is going on here. The hon. Gentleman, the Minister and everyone in this House knows that the press barons do not want this regulation. Some years ago, probably before the hon. Gentleman was elected to this House, I remember that MPs were frightened of speaking out about media abuse lest they receive retribution, so I will not take any lessons when people who stand up for media reform see their characters traduced and destroyed in the press.
Several hon. Members rose—
Tom Watson
I will make some progress.
In his statement to the House last week, the Secretary of State said that Sir Brian
“agrees that the inquiry should not proceed under the current terms of reference but believes that it should continue in an amended form.”—[Official Report, 1 March 2018; Vol. 636, c. 966.]
I do not know about you, Madam Deputy Speaker—[Interruption.] Oh, Mr Deputy Speaker.
Mr Deputy Speaker (Sir Lindsay Hoyle)
With a name like Lindsay, who knows? [Laughter.]
Tom Watson
I am not rising to that. I do not know about you, Mr Deputy Speaker, but I got the distinct impression from the Secretary of State’s presentation that Brian Leveson supported his proposals. That was something of an understatement. In fact, Sir Brian says that he disagrees “fundamentally” with the Government’s position, stating:
“I have no doubt that there is still a legitimate expectation on behalf of the public and, in particular, the alleged victims of phone hacking and other unlawful conduct, that there will be a full public examination of the circumstances that allowed that behaviour to develop and clear reassurances that nothing of the same scale could occur again: that is what they were promised”.
Sir Brian is clear that this breaks a promise to the victims, and it does so by using a very clever sleight of hand. The Secretary of State told the House that 12% of direct respondents to the consultation were in favour of continuing the inquiry, with 66% against. How did the Government get to that landslide verdict? Scandalously, they disregarded the 200,000 people who signed an online petition in favour of continuing the inquiry, but they included thousands of pro forma newspaper coupons that various papers encouraged their readers to send in. Sir Brian said to the Government:
“I would not personally count the responses in the way in which you have.”
Matt Hancock
As the hon. Gentleman may or may not know, it is entirely standard to count in that way. The same was done on the questions of equal marriage and of BBC charter reform, because there is a material difference between clicking a button to sign a preformed digital signature and writing in separately. This is how things have been in other big consultations. It is entirely normal, and the full details were set out last Thursday.
Tom Watson
The Secretary of State is obviously living in the analogue age if he thinks that he can accept a coupon from The Sun but ignore 200,000 citizens expressing their concern about the inquiry.
I have only one question for the Secretary of State. Will the Government be able to detail what they will do if evidence of wrongdoing is revealed, in particular if editors misled or were partial in their evidence to the original inquiry? We still need Leveson 2, and Sir Brian agrees.
Andy Slaughter
My hon. Friend is making excellent work of exposing the Government on this point, but things go a stage further than this. Abandoning Leveson against the wishes of Lord Leveson is a constitutional provocation, because it puts party interest above due process. If that is going to happen with one inquiry, why will it not happen with Grenfell or contaminated blood? What will stop the Government doing things that are in their own interests, not those of victims?
Tom Watson
My hon. Friend makes an important and fair point that I hope the analogue Minister will reflect on.
Rather than protecting the public from the abuse of their data, committed by or on behalf of newspaper publishers, the Government have capitulated to the media. In his letter, Sir Brian said that
“the press is in a unique position because there is no other… body in a position to hold the very real exercise of power by the press to account and to expose its wrongdoing to the public”
In short, the press has no predators. As this Bill makes its way into law, we will be voting to redress that imbalance and to keep our promises.
Several hon. Members rose—
Mr Deputy Speaker (Sir Lindsay Hoyle)
Order. If we work on a 10-minute limit, but without me imposing it, everybody will get equal time.
Bill Wiggin (North Herefordshire) (Con)
I draw Members’ attention to my entry in the Register of Members’ Financial Interests. I will start with a little anecdote about my local paper and IPSO. On 9 November, just four days after the Paradise papers story broke, the Hereford Times published the headline, “Tory MP dragged into offshore row”. It clearly implied a connection between me, a law firm I have never had anything to do with, and tax avoidance, which, equally, I have had nothing to do with. To make matters worse, the editor then chose to publish letters the next week from readers who believed that I was part of the Paradise papers. Amazingly, IPSO ruled that that was not misleading or inaccurate in any way. Even though the article contained factual inaccuracies that I had pointed out, IPSO’s complaints committee simply ignored them. IPSO is a press protector, not a press regulator. MPs can speak out against it in the public domain, but normal people have no such voice, so we need this excellent Bill, which I look forward to supporting, largely because of the amendments from Earl Attlee.
Let me describe the Hereford Times a little bit. It is owned by Newsquest, which is a wholly owned subsidiary of Gannett Company UK, the UK branch of Gannett Company—a US media giant. In 2015, Newsquest reported a loss of £24,349,000. Meanwhile, Gannett reported revenues of £2.89 billion and a net income of over £146 million. On 11 August 2017, Chris Morley from the National Union of Journalists described Newsquest as
“exporting tens of millions of pounds profit to its US masters”.
In October 2016, the NUJ said, after its pay survey, that Newsquest was one of the stingiest employers, despite Gannett paying its top five executives over £15 million between them. I am pleased to say that I do not believe that John Wilson, the rather hopeless editor of the Hereford Times, was one of them.
Moving on to Leveson 2, Baroness Hollins’ amendment provides for an inquiry with similar terms of reference to part 2 of the Leveson inquiry. I am obviously extremely disappointed that the Government last week chose to abandon Lord Leveson’s recommendations. The inquiry was always one inquiry in two parts, not two inquiries, and it should not stop halfway through. Sir Brian Leveson was absolutely clear in his letter to the Secretary of State that he does not want the inquiry to stop halfway. However, there is no justification for spending millions on part 2 if we are simply to abandon the recommendations of part 1. We must carry out the recommendations of part 1 and then continue with the second half of the inquiry.
An amendment put forward by Earl Attlee in the other place adds provisions similar to those in section 40 of the Crime and Courts Act 2013. The Secretary of State last week suggested that the current system of press regulation was sufficient and that implementing section 40 would damage the freedom of the press and hurt vulnerable local papers, but he is wrong on all those counts. In response to the idea that the current system of regulation is sufficient, I point out that IPSO cannot be “largely compliant.” It is not possible to be largely pregnant—someone is either pregnant or not. As per the Secretary of State’s statement, a regulator either follows all 29 criteria or it does not. IPSO does not, and therefore it is not the method of press regulation that Leveson recommended and that has already been passed into law. The Secretary of State suggests that we do not need further regulation. Why would we regulate energy providers, communications providers and even exam providers, but simply decide to trust newspapers that have criminal convictions? That is plainly barmy.
Christine Jardine (Edinburgh West) (LD)
Does the hon. Gentleman agree that it is ironic that the press is not to be regulated, when broadcasters are, via Ofcom?
Bill Wiggin
Either we regulate or we do not, but we cannot do bits. That is why it is important that the Bill passes into law as it is. I agree with the hon. Lady.
The second accusation is that Earl Attlee’s amendments would damage the freedom of the press. The Press Recognition Panel is entirely independent of the Government and the press. It is funded by the Government, but so are the courts, and no one would accuse the judiciary of being influenced by the Government. In addition, the PRP’s charter is as good as unamendable, as amendment requires a 66% supermajority in both Houses and, crucially, the unanimous agreement of the PRP board, so any Government who chose to change press regulation would find it far easier to do so through primary legislation. It is fiction to think the PRP is anything other than independent.
Finally, it has been suggested that Earl Attlee’s amendments would harm local newspapers financially. Section 40 is not about punishing newspapers; it is about creating a fair and low-cost arbitration process that is good for local newspapers and for vulnerable individuals. Lord Leveson envisaged his proposals protecting local newspapers from rich and powerful litigants, and he certainly did not intend for newspapers to refuse to join a regulator.
Section 40 is not only desirable but necessary. IPSO will never agree to apply to become an approved regulator unless it is forced to, and section 40 would ensure that it happened. These measures already received the full support of both Houses in proceedings on the Crime and Courts Act. We must now implement them. The challenge goes out to the Opposition parties: there is support on both sides of the House for section 40, but if there are not sufficient Members here to vote for it, the Government will have their way. I hope we will make sure that this House does not bend the knee to the power of the press barons, but remembers its role to speak up for the vulnerable—the people who have no money, and who need a proper, fair and low-cost arbitration system.
Brendan O'Hara (Argyll and Bute) (SNP)
The Scottish National party acknowledges the need for a new and comprehensive data protection framework that safeguards human rights, and updates UK data protection law to bring it in line with the European Union’s general data protection regulation. We want a Data Protection Bill that makes the UK’s data protection laws fit for the digital age, that enshrines the principle of transparency and accountability and that gives all citizens and consumers greater control over who has access to their personal information and what those parties can do with it.
Despite what we have heard in the debate, this is a wide-ranging and complicated Bill. The House is agreed on many aspects of it, but in certain crucial areas, it falls short of what we expect from modern data protection legislation. Specifically, we are concerned about the Bill’s provisions on the UK’s derogation from the GDPR for the purposes of effective immigration control. We also have concerns about automated decision making, the use of national security certificates and the lack of provision for collective redress. We are also very concerned about the consequences for the UK as it tries to secure an adequacy agreement with the European Union, post Brexit.
As the Secretary of State is well aware, SNP Members and the Scottish Government are extremely concerned about clause 168, which concerns section 40 of the Crime and Courts Act 2013. Clause 168 was inserted in the other place and impinges on areas wholly devolved to the Scottish Parliament. Although we will be as constructive as possible in assisting the passage of the Bill, we will table our own amendments and support other Members’ amendments on those issues in Committee.
We will definitely seek to challenge paragraph 4 of part 1 of schedule 2, which is effectively an immigration exemption that permits the Government to collect and hold data without subject knowledge; we find that deeply worrying. Equally concerning is that there is no legal definition of immigration control, or the maintenance of effective immigration control, anywhere in the Bill. Given that effective immigration control is both highly subjective and highly political, I fear it will make individuals’ rights extremely susceptible to changes in political tides. This broad, wide-ranging exemption is fundamentally unfair, and it runs contrary to basic human rights. It is unprecedented and as unnecessary as it is disproportionate.
Under this exemption, the Government will remove any obligation they have under data protection law to inform an individual that their data has been transferred to the Home Office for immigration control purposes. The individual concerned would not know that their data was being held, or that they were under investigation. They would have no right to see what data of theirs was being held by the Home Office, or to find out why it was being held. They would have no way of checking the accuracy of the information held by the Home Office, and they would have no way of correcting any mistakes in that information, which could be used by the Home Office to decide whether they could live in this country.
That means that one early error in data collection or processing could become indisputable fact by the time it reached the Home Office, and the Home Office could base its case against an individual on that. As MPs, we all know how often information held on individuals turns out to be wrong. This is an issue of basic fairness, and it is little wonder that the measure has been roundly condemned by numerous civil liberties groups and by many in the legal profession.
If the measure is enacted, it would be a fundamental change to the way things currently work, whereby data held on an individual can be obtained through a subject access request. As it stands, the Home Office, the applicant and the applicant’s legal representative all have access to the same information, and it is that information on which claims and legal challenges are based. Surely, if both sides do not have access to the same information, the fairness of legal proceedings is inevitably compromised.
Subject access requests are often the only route through which legal professionals can obtain access to such information, and thereby understand the complicated immigration history of some of their clients. Indeed, for applicants who have been the victim of domestic abuse and who were in a controlling relationship for years before seeking help on immigration matters, a subject access request may be their only way of establishing their basis for settlement and for gaining independence from an abusive partner. This exemption will reduce a legal representative’s ability to best represent their client, and it will remove an important tool in holding the Home Office to account when it ignores or seeks to misrepresent the facts.
Further to the comments of the hon. Member for West Bromwich East (Tom Watson), we also strongly recommend that the Government look again at clause 183, and make provision for suitably qualified non-profit organisations to pursue action against data protection infringements of their own accord. This kind of enforcement, where one person or body represents a group of individuals, is known as collective redress. As it stands, clause 183 only allows individuals to request that suitably qualified organisations take up a case on their behalf, rather than allowing such organisations to highlight where they believe a breach of data protection law has occurred.
All too often, individuals are the last to know that their data has been unlawfully used, and in many cases those best placed to identify unlawful practices are the organisations that do the independent research and investigation. We hope that clause 183 can be amended to ensure that not-for-profit organisations have the right to raise complaints themselves when they consider that people’s data protection rights have been infringed.
I also want to raise the matter of automated decision making and, in particular, clause 14, which permits exemptions from the right not to be subject to an automated decision. We strongly believe that automated decision making without human intervention should be subject to the strictest limitations, and it has to address fairness, transparency, accountability and issues of discrimination. The Bill provides insufficient safeguards. This is not about an online retailer suggesting what book or song someone might wish to download, based on previous purchases; this is about decisions being made without human oversight that can have long-term, serious consequences for an individual’s health, or their financial, employment or legal status.
As I understand it, clause 48 would allow law enforcement agencies to make purely automated decisions. This is fraught with danger and is, we believe, not only at odds with the Data Protection Act 1998, but against article 22 of the GDPR, which gives individuals the right not to be subject to purely automated decisions. The GDPR contains provision for EU member states to opt out of this, but that opt-out does not apply if the data subject’s rights, freedoms and legitimate interests are undermined. I urge the Government to look again at those parts of the Bill on automated decision making and to make it explicit that where automated processing is carried out, a human will have to decide whether it is reasonable and appropriate to continue. That human intervention will provide transparency and accountability, and ensure that the state is not infringing an individual’s fundamental rights, liberties and privacy. Those issues are often subjective and beyond the concept of an algorithm.
Another area of concern, which we will raise in Committee, relates to the issuing of national security certificates, which allow restriction of and exemption from a wide range of rights in the Bill and the GDPR on the basis of national security and defence. It is right that a country should have an ability to do what is deemed to be in the best interests of its national security, but many would argue that, since 1998, national security certificates have received insufficient scrutiny of their impact on privacy or their proportionality. We are concerned that the proposals in the Bill go much further than those in the Data Protection Act 1998. We question whether the broad and indefinite nature of those national security exemptions is necessary and proportionate and whether the oversight of the issuing of national security certificates is sufficient. As the Bill is drafted, an individual’s rights could be removed by a politician without any form of judicial oversight. Surely it cannot be right for an individual’s rights to be undermined so easily, purely on the say-so of a Minister.
Of course, even in normal circumstances, the passage of this Bill would be challenging, given its nature, size, scope and complexity, but it has to be seen against the backdrop of Brexit, as does everything we do and have done for the past two years. We have to not only comply with the GDPR, but do so in such a way that the United Kingdom achieves an adequacy decision from the European Commission, allowing it to continue to operate securely and freely within the framework of the GDPR. I fear that much of what is proposed in this Bill, particularly on the immigration exemption and the national security certificates, jeopardises achieving that adequacy decision, as before granting such a decision the European Commission is obliged to consider a variety of issues, including respect for fundamental rights. As we have heard, the GDPR will evolve over time, and the UK will have to maintain adequacy, and that means amending our data protection to keep it in line with European law.
My final point relates to amendment 147 from the other place, which will have the same effect as implementing section 40 of the Crime and Courts Act 2013. The Minister is aware that although data protection is a reserved issue, both criminal justice and press regulation are wholly devolved to the Scottish Parliament. Furthermore, the concept of exemplary damages does not exist in Scots law, and the Scottish Government have no intention of changing the law for the purposes of incentivising participation in a press regulation system. As it stands, this Bill seeks to regulate the press by means of civil procedure, both of which, as I say, are devolved to the Scottish Parliament.
As I said in the Chamber last week, we believe that all individuals should be able to seek redress when they feel they have been the victim of press malpractice, and the Scottish Government will continue to engage with the Scottish press on independent self-regulation. The Secretary of State has had correspondence on this matter from myself and Fiona Hyslop, the Scottish Government’s Cabinet Secretary for Culture, Tourism and External Affairs, who wrote to the UK Government last month making clear the Scottish Government’s position on this matter. On the second part of the Leveson inquiry, she was equally clear that press regulation and any associated issues around the culture, practices and ethics of the press would be a matter for the Scottish Government and that in any future inquiry, the distinct legal context in Scotland must be taken into account. It benefits every one of us to have a data protection regime that is transparent and accountable and that has at its heart the rights of the individual to control what happens with their data.
Although there is much that we agree on in this Bill, there are areas that give us serious cause for concern. In Committee, we will therefore table amendments and support others’ amendments that seek to address concerns about the immigration exemption, collective redress, automated decision making, the scope of national security certificates and, of course, section 40 as it relates to Scotland. These amendments will seek to strengthen the Bill, to guarantee that everyone’s human rights are protected equally and to ensure that, going forward, the UK has the best chance of securing the adequacy decision that it requires, post Brexit.
Peter Heaton-Jones (North Devon) (Con)
I start by declaring an interest, in that before I became embroiled in the world of politics, I was a journalist for 20 years, although not in the print media—I had the perfect face for radio, so it was the wireless that beckoned. As a former journalist, I take a close interest in two of the matters before us this evening, and I refer to two of the amendments that were made in the other place. I am a bit perturbed as to why we would be dealing with those two specific issues in a data protection Bill, because this Bill seems to be being used somewhat as a Christmas tree, on which all sorts of things can hang, and I am not sure that that is appropriate.
I am sure, however, that the Secretary of State was right to say in his statement last Thursday that the Government will not be accepting those two amendments. I refer, of course, to that on the implementation of section 40 of the Crime and Courts Act 2013, which I shall come on to in a moment, and the amendment providing that we should proceed with Leveson 2. I was glad that he announced on Thursday that we would not be going ahead with that, because it is absolutely the right decision, for a number of reasons, not least because the manifesto on which we were elected nine months ago said that we would not be going ahead with it.
Putting politics aside for a little while, let me say that there are a number of reasons why it is it not necessary to go ahead with that. The main one is that the environment has changed dramatically since the first Leveson inquiry. It has changed dramatically since I was last working as a journalist, which was way back in 2006, but even since 2012 and Leveson 1, the landscape has changed dramatically.
Chris Bryant
That is neither here nor there, because the whole point of the Leveson inquiry was to establish what happened. Hundreds of individuals have had to go through the civil courts to try to establish what happened in their individual case. Many of them now know more than the country does about what happened at that time, but they are unable to say so because they have had to sign confidentiality agreements. The truth of the matter is that we still have never got to the bottom of what level of collusion there was between the Metropolitan police and the News of the World, and many newspapers have simply lied.
Peter Heaton-Jones
I was coming to some of the points that the hon. Gentleman mentions, but the issue is that if Leveson 2 had gone ahead, it would have been narrowly and tightly about the relationship between the media and the police.
I absolutely welcome Leveson 1: it did a job that needed to be done by shining a light into the dark corners of some media practices and, importantly, giving redress to people who had been wronged by the media—there were too many of those. There are people who feel that it did not go far enough, and some still feel that they did not get their confirmed right of reply, but the fact is that Leveson 1 has happened, and it happened some little time ago.
Leveson 2 would have had the fairly narrow remit of the relationship between the police and the media. The argument I was coming to was that since Leveson 2 was mooted, so much has changed in the regulation of the press, as we have already been discussing. The new regulatory regime is now under way—I might come to some of its drawbacks in a moment—and, furthermore, the practices of the police have changed a lot.
Leveson shined a light on the problems. I take the point made by the hon. Member for Rhondda (Chris Bryant) that the relationship between some officers and some journalists was shown by Leveson 1 to be absolutely inappropriate. I do not believe that we need a costly, lengthy, long-drawn-out second phase of the Leveson process, which probably would not do the job we would be hoping of it anyway.
Chris Bryant
The point is that the investigation is sort of happening now through the civil courts, except that it is individual members of the public who have to fork out £350,000 or £450,000 in legal fees to get to the truth. In Leveson 1, Brian Leveson was expressly not able to look at anything for which there might have been any criminal charges. The fact that the Daily Mirror has now admitted—in the civil courts, but not to Leveson—that it did engage in phone hacking is one of the matters that still has not come to the public.
Peter Heaton-Jones
However, Leveson 2 would not necessarily put any of that right.
Peter Heaton-Jones
Well, we do not know that. The difficulty is that a lengthy, costly process that in the end might not even achieve what was hoped for is not the answer. The answer, as the Secretary of State rightly said in his statement on Thursday, is to ensure that we shine a light through proper regulation on the practices that have done wrong to a number of people in the country.
I accept the points made by my hon. Friend the Member for North Herefordshire (Bill Wiggin). We should absolutely focus on the rights of people in this country—people who cannot afford the voice to stand up for themselves—but Leveson 2 was never going to solve that issue. It was going to be a long-winded inquiry that would not have got there, and the Secretary of State made that point convincingly on Thursday.
Christine Jardine
Does the hon. Gentleman not agree with me, a fellow former journalist, that one of the things that has most undermined the reputation of the media in this country in general has been the behaviour of our newspapers, which have seemed to the public to be beyond regulation? Self-regulation has failed and undermined the image of the media. The Press Complaints Commission failed, as the Press Council did. We had an opportunity to put that right, but it has been lost.
Peter Heaton-Jones
The hon. Lady is right that the Press Complaints Commission did fail, which is why it is rightly no longer there and we now have a new framework. While we are talking in general about regulation, I should say that I have some sympathy with the question marks raised over the regulation of my former employer, the BBC. We got that wrong for many years. There was the bizarre situation in which the BBC board—later, the BBC Trust—was acting as both poacher and gamekeeper, marking its own homework. The Government have rightly sought to put that right and we have moved a long way towards doing so.
I do not believe that the answer to the wrongs that still exist in the regulatory regime for newspapers lies in the amendments that have come our way from the other end of the Palace of Westminster. I do not believe that they would do the job that, as my hon. Friend the Member for North Herefordshire rightly said, the people outside this place want us to do: to make sure that they have a fair right of reply when something wrong is done to them by newspapers.
Liam Byrne (Birmingham, Hodge Hill) (Lab)
I am grateful to the hon. Gentleman, who is being characteristically courteous in giving way to so many Members. Can he point to another area of public policy in which as many suspicions have been aroused, but that has been improved by our collectively deciding to just move on and leave things in the dark?
Peter Heaton-Jones
No one is suggesting just moving on and leaving things in the dark. That is not at all what the Government intend to do. If we look carefully at the words the Secretary of State used on Thursday, we see that there is no question of our moving on and saying, “There’s nothing to see here.” We are saying that the mechanism suggested in the amendments from the other place is not the right way to proceed. I agree with the position taken by the Secretary of State.
Liam Byrne
With the greatest of respect, regulations are forward looking, but the inquiry that we are seeking goes into past malpractice for the simple reason that we would like justice to be done.
Peter Heaton-Jones
I do not believe that the inquiry that the other place seeks, through its amendment, to impose on the Bill would do the job that the right hon. Gentleman wants done. The position that the Secretary of State laid out on Thursday is the right way to proceed. Leveson 2 would simply not do the job that many Members on both sides of the House want it to do.
I am going to move on, as I am thinking about Mr Deputy Speaker’s strictures about timing.
Matt Warman
For the sake of novelty, my hon. Friend is taking an intervention from the Government side.
The one point that my hon. Friend has not yet mentioned is that IPSO is a fundamentally very different regulator—[Interruption.] The hon. Member for Rhondda (Chris Bryant) might not like it, but low-cost mediation is a crucial feature that allows exactly the redress that he wants.
Peter Heaton-Jones
I had a lot to say about IPSO and IMPRESS along the lines that my hon. Friend has laid out, but I am aware of Mr Deputy Speaker’s strictures. I have tried to take as many interventions as I can, and page 2 of my remarks will be put down on this green Bench very shortly.
I move on to the second issue that I wanted to raise: the second amendment sent to us by the other place saying that we should commence section 40 of the Crime and Courts Act 2013. That would not be the right way to proceed, and I am grateful that my right hon. Friend the Secretary of State made that point so clearly on Thursday. Many local papers in North Devon have written to me on numerous occasions expressing deep concerns about the impact that section 40 would have. I mention just three: the North Devon Journal, the North Devon Gazette and the South Molton & District News, which is, incidentally, one of the few papers to have signed up to IMPRESS, the new press regulator.
Freedom of the press is absolutely essential in a democracy. Let us think carefully about what section 40 says: if a paper not under the auspices of a Press Recognition Panel regulator is sued for defamation, for instance, it has to pay the legal costs of both sides, even if it wins the case. How can that be sensible? We might argue that that is a pretty blunt instrument with the intention of coercing newspapers to sign up to one of the approved regulators, but 90% of the national press have not done so, so the blunt instrument is clearly not being effective. The biggest danger, however, is that many small, local media companies, such as those in my constituency that I have mentioned, would simply not be able to run a viable business if section 40 were enacted. Financially, the court costs would cripple them. Individuals could make vexatious claims in the knowledge that there was no chance of their ever having to pay costs, whatever the outcome. That is simply something up with which we will not put.
The local press in North Devon and many other parts of the country is still extraordinarily important. The two main papers I mentioned are still read widely today and help to maintain our sense of community. We cannot face a situation in which such papers are threatened by what could be a series of vexatious claims, encouraged by the fact that there would be no risk to the person making that claim.
Peter Heaton-Jones
If hon. Members do not mind, I am coming to the end of my remarks.
In my 20 years as a journalist at the BBC, I was passionate about freedom of speech and a right of reply, because that is the desperately important foundation on which our newspaper industry is based. I am also desperately passionate about ensuring that people who are wronged in some way by the media are given an effective response mechanism. Neither amendment that has come our way from the other place would achieve that. I am grateful to hear that the Opposition will support the Bill’s Second Reading, and I hope that we will not accept those two amendments and that we will pass the Bill as it was drafted.
Daniel Zeichner (Cambridge) (Lab)
I will not speak about the problems of the analogue past, but instead look ahead to the digital future. It is a pleasure to speak on a Bill that has been subject to very detailed scrutiny by some very eminent people in the other place.
It may seem curious to have such lengthy and detailed legislation before us when the heart of it, the GDPR, is actually somewhere else—it is, of course, in EU legislation. Our discussion is on how to implement it and other such issues rather than on the actual proposals themselves. I dare say that there are some who will jump to the conclusion that it is yet another example of rules being made elsewhere. However, I take the opposite view, as this is legislation that British representatives helped to fashion in Brussels, and as I will point out later in my speech, because data flows across national boundaries, having a full and frank discussion with one’s neighbours is to one’s advantage, not disadvantage. By being in the European Union, through the GDPR as in so many other fields, we take control of our future, rather than hunker down in a defeated bunker and wait for others to do things to us—taking back control of nothing other than the ability to bemoan our unfortunate fate.
This debate today is very timely, because on Friday the Prime Minister finally made the first faltering steps towards recognising that reality. I was pleased to see her acknowledge just how important data is to our future—it was one of the four key areas that she outlined—but, even after all the warnings, she still does not seem quite to understand the pitfalls in seeking an adequacy arrangement when, without the freedoms that membership of the European Union gives us to determine our own balance between security and privacy, that balance will be subject to the very different judgment of other EU countries.
I have been fortunate, through my work as chair of the all-party group on data analytics, to learn from a range of very expert people about some of the possible advances that come with a much more sophisticated use of data. I have also learned of the fears that many rightly have about the potential consequences of those same advances. That is why I was pleased that, following the excellent work by the Royal Society led by Dame Ottoline Leyser from Cambridge among others, we do now have the prospect of a data ethics and governance body, and, perhaps unusually, I pay credit to the Government for bringing that forward. Although I have questioned exactly how that will sit within the current structures, particularly with the Information Commissioner’s Office, we have the potential to create something really rather important, and I hope that, in further discussion of this Bill, we will be able to explore with Ministers in more detail the future landscape for data governance. We most certainly need such governance, because hardly a day goes by without further concerns being raised in one sphere or another, whether it be internet safety issues or the accurate reporting of news. To put it mildly, this is a big subject.
I will not attempt to address all, or even many, of the issues in the Bill; that can be for another day. Instead, I will confine my comments to one or two areas of particular concern. As someone who was very taken by the account of the potential dangers of relying too heavily on closed algorithms when I read the aptly titled “Weapons of Math Destruction” by Cathy O’Neil, I must mention the concern so many of us feel about the dangers of automated decision making, which so risk hardcoding previous injustices and social and cultural prejudices. In this Bill in particular, I share the concerns already raised about the immigration exemption.
A further concern raised in general about GDPR is the potential unintended consequences on some voluntary organisations, particularly small ones. It may be that the legislation has not always been properly understood, and it may be that some accounts have caused people to be more fearful than they need be, but I was struck just a few days ago to hear from a small charity in Cambridge that it had decided to discontinue its operations because it was not confident that it could meet GDPR requirements. Stopping small voluntary organisations from helping people is not the intention of this legislation. Indeed, if that is an unintended consequence, we need urgently to find ways to remedy it.
Similarly, we need to make sure that this legislation facilitates, rather than damages, our ability to use NHS data effectively. I know that many are working very hard on that, and that everyone is mindful of previous false starts. In particular, the shadow of Care.data still looms, because, despite good intentions, that programme clearly got it wrong. It failed to win public trust: there was widespread concern that the appropriate safeguards were not in place, and a failure properly to explain potential benefits to patients. It is easy to criticise, but winning trust is a very hard thing to do. The public are rightly concerned that data obtained for one use could then be applied in a different context and could possibly be commercialised. All the evidence is that that is what people particularly revile. We now have another programme under way, which we are told is GDPR compliant, and yet I wonder again just how many people are aware of it and whether we can be sure that there will not be further problems. I hope that, as we discuss this Bill, we can help raise public awareness and understanding, because without that, all the work and effort being put in by so many could be at risk.
I turn briefly to potential impacts on the research sector and universities. I am grateful to the Sanger Institute, located outside Cambridge, and the Wellcome Trust for explaining some of the very real concerns facing the sector, particularly around health data. We know that reviews such as Caldicott have made sensible recommendations, which hon. Members are working hard to get on the statute book. The principle of opt-outs regarding the usage of data collected is sound, and the safeguards such as those enshrined in GDPR are vital for ensuring data subjects’ interests are protected in research. However, as currently drafted, the framework for data processing by the Government, which was introduced at a very late stage in the other place, risks undermining that. The ICO also has concerns, as it is not clear that the public can have absolute confidence in the way that the Government use their data, and I hope that we can have some clarity from Ministers over how that can be resolved. It is also worth noting in passing that the introduction of the National Data Guardian for Health and Social Care, which has come about through a private Member’s Bill, is welcome but is awaiting Committee stage. The process needs to be speeded up to dovetail with this Bill as a matter of urgency.
There are further concerns. Research institutions tell me that this Bill currently does not provide a clear enough legal basis for conducting research using personal data. They have some fairly straightforward suggestions for improvement, which I hope the Government will consider in Committee, around better defining public interest to make it explicit that it includes research uses, particularly medical research.
Additionally, when I spoke to the Sanger Institute, which has to process data not under the public interest category but under legitimate interest, it was clear to me that it is important that it has confidence about the legitimate provenance of the processed data that it uses, which has often been passed from universities. The research community needs it written explicitly in the Bill that university research can be conducted legitimately on a “task in the public interest” lawful basis. That is also needed to satisfy guidance from the ICO to confirm that this is an appropriate lawful basis for university research. Although larger institutions may have the confidence to continue with their research and risk challenge, this could present more of a problem to newer or smaller universities. We have huge potential for healthcare transformation and innovation in the UK economy, and to risk that by getting this part of the Bill wrong would be very foolish.
Let me conclude by returning to where I and the GDPR began—with our relationship with the European Union and the extent to which this Bill will or will not help us secure the adequacy agreement that we all agree that we need and that the Prime Minister confirmed that we needed on Friday. Why does it matter? I urge Members to look no further than the excellent work done by techUK, which has explained in detail just how much our economy depends on data flows. Let me share a local example. A few weeks ago, I visited Jagex, a video games developer in my constituency. It was not my first visit. It is a fantastic and inspiring example of what work might be like in the future, and its model is very positive. Visiting Jagex, with representatives from Ukie, the trade body for the video games sector, it was explained to me just how vital data flows are for the sector. It is because these games and their players span many nations, and their data does not respect national boundaries.
On a Friday afternoon, 100,000 people were playing RuneScape—I was told that, over the weekend, there would be more than a million players. Huge flows of data are serviced and maintained by skilled staff in Cambridge, who are from all over Europe and beyond. That is the future, and it is a good future, but it requires that we keep open those flows of data, and—although this is for another day—those flows of people. None the less, we are potentially putting this UK success story at risk. Some of the national security and immigration exemptions in this Bill are potentially enough to deny us data adequacy in the eyes of some countries in the EU. We need to ensure that this Bill is not going to cause us harm further down the line.
There is also the question of timing. These are complicated and controversial issues, but the Bill must be on the statute book in a mere two months’ time—on 6 May—for the new rules to be in place for 25 May. Missing the GDPR implementation date really is not a great look for a country that is trying to achieve a data adequacy agreement with its international partners.
We may also need to assess other countries for their adequacy. Who is to do that assessment? The ICO does not feel that it is appropriate for it to do that, so is the Department for Digital, Culture, Media and Sport really ready? Does it have the resources? Has the work started? And what of the complexities of the relationship with the United States of America and the privacy shield? At the moment, we are covered by the data privacy shield as an EU member state and a similar arrangement would be welcome, but the American system is complicated, with no federal oversight and it may not be quick.
I welcome this Bill overall, but significant challenges remain. I look forward to seeing how the Bill will be improved in Committee, particularly around safeguarding data owners’ rights, ensuring that we can make best use of our health data, and ensuring that universities and researchers have the clarity that they need to continue their excellent and life-saving research.
I hope that the Minister will go further to explain the ways in which she is preparing for adequacy decisions that may need to be both applied for and made by the UK in the coming months and years. Most importantly, perhaps, I hope to learn further from Ministers how this Bill will be adapted so that our approach to the balance between privacy and security is sufficiently aligned with EU standards, meaning that adequacy can be achieved smoothly. I am afraid that “ambitious managed divergence” simply will not cut it, and I leave the Minister to explain how the conundrum can be resolved.
Richard Drax (South Dorset) (Con)
It is a genuine pleasure to speak under your chairmanship after your absence, Mr Deputy Speaker. Welcome back; it is lovely to see you here.
I was a journalist for 17 years: five with the local press, two with the local media and ending up with 10 years at the BBC. I therefore have an interest in this debate, particularly in the Lords amendments, with which I entirely disagree.
In my very brief speech—time is pressing—I would like to take the House back to the royal charter. Everyone in the House will remember that all parties agreed at the time that, as a consequence of the phone hacking, there should be a royal charter. I have been in this place only seven years so I am still a whippersnapper in that sense, but I have always been very concerned when parties on both sides of the House agree with something. It normally means that something is dramatically wrong. Fifteen MPs voted against the royal charter. I and 14 others realised that there was some state control or state implication that would interfere with the free press. We were not happy with that, so we voted against it.
The key point—a point that I have yet to hear from any party on either side of the House—is that phone hacking is illegal. People are not allowed to do it, and as some journalists have found, they go to jail if it is done. Now, I do not want to take away from those who have suffered or the victims of phone hacking, including the royal family, of course. It was simply appalling. As a former—I would like to think—honourable journalist I personally never took part in that activity; nor did I know anyone who did. This is another point: phone hacking was done by a tiny minority of journalists, who were wrong and who caused immense damage to the reputation of the press in this country.
In my very humble opinion, the press in this country is one of the cornerstones of our freedom and democracy. As I have discovered in the short time that I have been here, when we tinker with legislation it is all too often a huge sledgehammer to crack a nut. Those who are introducing legislation and those who are debating it often do not think about its consequences. What would happen if we started to impede and encroach on the freedom of the press? The press understandably reacted with anger, claiming that the royal charter would destroy local papers who simply could not afford it. As my hon. Friend the Member for North Devon (Peter Heaton-Jones) said—this is true and quite extraordinary—section 40 of the Crime and Courts Act 2013 forced newspapers that had not signed up to a state-supported regulator to pay their own and, indeed, their opponent’s legal costs in libel cases, even if they won the case. That is not freedom of the press. It is not even fair law. It is bad law, made on the back of a terrible wrong committed by a very few people in what is generally, across the world, a highly respected business or profession—that is, the press in this country.
I have been the victim of some pretty interesting press reporting. I confess that I have been trying to put some solar panels on my land. I remember that one columnist in the Daily Mail wrote a double-page spread that was inaccurate. Having read it, I felt as though I had almost murdered someone. I was somehow this appalling landowner who wanted to do these appalling things. I had imposed my will on my tenants, crushed debate and all these things, but none of it was true. In fact, the opposite had been true and always is in that case. To be fair, the paper did ask me for a comment but I knew that, were I to comment, it would be a small piece at the bottom right of the article, and that the other two and a half, three or four columns would all be anti-Drax. But I can live with that because I want a free press in this country. I want a free press to hold us, businesses and powerful people—yes, like Mr Mosley—to account. If I were in the wrong, the press would have a right to dig out of me what I had done wrong, even though I might not want them to do so.
Andy Slaughter
Does the hon. Gentleman think that people such as the McCanns, Milly Dowler’s family and Christopher Jefferies should live with the consequences of being traduced and victimised by the press? Does he not feel that casting the press as the victims, when we know that they are actually controlled by a small number of extremely wealthy and irresponsible individuals, is putting things exactly upside down?
Richard Drax
Forgive me, I did not quite hear the first part of the hon. Gentleman’s question, but I think that I got the general gist. The point about multimillion pound media barons is a red herring. I have worked in many media institutions, including newspapers and other organisations, and those people do not get involved. We were left very much to our own devices to report accurately, fairly and truthfully. Yes, they may be very wealthy, but good luck to them. They—or their fathers or grandfathers —have worked extremely hard to build up a business that employs tens of thousands of people in this country.
The point must again be made that the online media in this country—[Interruption.] The right hon. Member for Birmingham, Hodge Hill (Liam Byrne), who I seem to recall told us that there was no money left, groans from a sedentary position. Online, anyone can say what they want, and they do. There is no recourse for the many thousands of victims of online abuse, intimidation and threats—threats to kill. What comeback is there for them? Nothing at all. That is where I urge the Government to look very carefully to ensure that the online media face the same standards that the national press would face.
I am not going to keep the House waiting much longer, because others want to speak. It is my view—along with others, I would think—that only those with anger, revenge or even guilt in their heart would support these amendments and damage a free press, which is the cornerstone of our democracy. The Leader of the Opposition wants to crush the press; I think, “We’re coming for you” is what he said. No, that is not what the British people want and they certainly will not vote for it. A free press is all important.
Stephen Timms (East Ham) (Lab)
Like my hon. Friend the Member for Cambridge (Daniel Zeichner), who gave an excellent speech a few minutes ago, I will focus my remarks on the data protection aspects of the Bill. The Minister will have seen the press report this morning on research carried out by the Federation of Small Businesses showing that fewer than one in 10 small businesses is fully prepared for the obligations that this legislation imposes on them, and just under one in five has not yet heard of the GDPR. These obligations all take effect at the end of May—in less than three months’ time—so whatever the merits of this Bill, there is clearly a huge amount of work to be done in drawing the attention of those affected to what it means.
Ministers have made some changes to the Bill during its passage through the other place since we last discussed it in this Chamber on 12 October. In that debate, I and others made the point that my hon. Friend the Member for West Bromwich East (Tom Watson) made earlier—that leaving article 8 of the European charter of fundamental rights outside UK law poses a serious threat to our achieving a data adequacy determination from the European Commission in future. I therefore welcome the addition of what is now clause 2, which partly addresses that. However, I do not think it goes far enough, so I will be supporting my hon. Friend’s proposal that article 8 should be added to our statute book. Lord Stevenson tabled an amendment in the other place that said:
“The protection of personal data may not be lawfully restricted or limited unless such restrictions and limitations are consistent with the principle of proportionality.”
That is an important additional protection that ought to be in the Bill. I hope that we will be able to debate that amendment in Committee.
There is some confusion in the Government about all this. The Secretary of State set out how important it is that we keep our UK data regulation aligned with the regulation in the European Union because of the importance to the UK economy of personal data transfers between the UK and the EU. He is absolutely right about that. However, in recent months, the Foreign Secretary and the International Trade Secretary have suggested from time to time that it would be a good thing if the UK could deviate from EU rules on data protection. Last July, for example, the International Trade Secretary said in the United States—I am quoting from a report in the Financial Times—that the UK was more in line with US calls for information to be allowed to flow freely across borders while Germany and other EU countries insist on localisation. He was getting a bit confused about two different things, but he is clearly suggesting in that remark, as in others, that it could be a good thing for the UK to deviate from EU data protection rules. In fact—the Secretary of State is absolutely right about this—it would be a disaster for the UK to deviate from EU data protection regulation, because if the EU were to judge our data protection rules to be inadequate, a large chunk of the UK economy would immediately be without any lawful basis. That could affect exactly the kind of innovative company to which my hon. Friend the Member for Cambridge drew attention—a games company with players all over Europe who, as a part of playing the game, need to be able to send personal data between their country and the European Union.
Matt Hancock
The right hon. Gentleman has made this point in these debates several times, and I want to reassure him on the Government’s precise position. I stated this in my remarks, not speaking from notes, but let me read to him what the Prime Minister said in her speech on Friday:
“we will be seeking more than just an adequacy arrangement and want to see an appropriate ongoing role for the UK’s Information Commissioner’s Office. This will ensure UK businesses are effectively represented under the EU’s new ‘one stop shop’ mechanism for resolving data protection disputes.”
So there you have it.
Stephen Timms
I am grateful to the Secretary of State, and I welcome that commitment on the part of the Prime Minister.
The problem is, however, that the International Trade Secretary and the Foreign Secretary have been saying different. That led to techUK, the industry body, writing to the International Trade Secretary last month to highlight the dangers. This was reported by that reliable publication, The Daily Telegraph, on 19 February, with the headline: “Tech industry warns Ministers not to drop EU security laws”. The report began:
“The British tech industry has issued a stark warning to leading Brexiteer ministers that diverging from EU data protection standards after Brexit will ‘undermine’ the UK’s status as Europe’s leading tech hub.”
The Secretary of State is absolutely right not to have gone down the same road as his right hon. Friends, and I very much welcome what the Prime Minister said about all this on Friday. However, there is clearly a problem in the Cabinet. I gather that after sending that letter, techUK received a reassuring response from the Department, and then a few days later a non-executive director at the Department for International Trade was quoted as saying, “Complying with EU standards on data is not the only solution.” But the truth is that for a large part of the UK economy, it is the only solution. We need to be absolutely clear about this. I am delighted that the Secretary of State is clear about it. Of course, that is why he is bringing this Bill before us and why he has altered it in line with what a number of us said in October.
Matt Hancock
I hate to take the wind out of the right hon. Gentleman’s sails, but it was unusual to receive that letter from techUK, because rarely as a Minister have I been lobbied so strongly in support of my own position.
Stephen Timms
I am glad that the Secretary of State has been lobbied in support of his own position, but he needs to watch his back against Ministers who lack the clarity that he has expressed—particularly the International Trade Secretary and the Foreign Secretary, who continue to say that there is merit in divergence. There is no merit in divergence at all. Significant numbers of tech start-ups are already going to Berlin rather than basing themselves in the UK because of the uncertainty about this issue. The more uncertainty there is, fanned by some members of the Cabinet, the greater the economic damage to the UK.
This is a very clear example of the situation we are going to find ourselves in more and more when we have left the European Union. It will be asserted that because of our economic interests, in this case, we should comply with rules drawn up by the European Union—in this case, the general data protection regulation—but we will no longer have a vote about what those rules should be. We will become a rule-taker. I welcome the commitment that the Prime Minister has made to a place for the UK’s Information Commissioner on the European data protection board. That will be helpful. It means that we will at least get a voice in these discussions when the rules are being drawn up—but we will not get a vote. We will be less influential in EU data protection laws than we have been as members of the European Union. We need to recognise that our influence, including over laws that we are going to have to implement ourselves, will be less in future than it has been up to now.
I would very much welcome the Minister telling us—my hon. Friend the Member for Cambridge made this point as well—how, in future, we are going to make adequacy determinations about other countries’ data protection laws. Are we going to adopt the EU list and say that those 12 countries are adequate and others are not, or are we going to have our own processes? How is it going to be done?
I echo the concerns expressed by a number of Members about the threats to our future data adequacy determination that come from the immigration exemption and the national security exemption. Those were not well defended by Ministers in the debates in the other place, and the justification for them is not clear. As others have said, they leave us open to criticisms of our data protection regulations that could threaten our future adequacy determinations. I am very keen to hear the Minister’s response to those concerns in particular.
Colin Clark (Gordon) (Con)
It is a pleasure to follow the right hon. Member for East Ham (Stephen Timms).
As we prepare to leave the European Union, this country is committed to remaining a global leader on data protection. Data flows are important for the UK and the EU economies, and we recognise the need for safeguards. The Bill is important in both promoting the flow of information sharing and protecting individuals’ personal data, while complying with the EU framework. It will ensure that our domestic data protection rules are aligned with our economic partners at the point of exit from the EU.
I welcome the measured response of the hon. Member for Argyll and Bute (Brendan O’Hara) to the Bill. While I agree that a balance must always be maintained between press freedom and the freedom of the individual, the amendments passed by the House of Lords are a direct threat to press freedom. This Government want to ensure that the press is well regulated and has high standards. As my hon. Friend the Member for North Devon (Peter Heaton-Jones), who is no longer in his place, said, the amendments would do damage. Newspaper circulation continues to decline.
Christine Jardine
Would the hon. Gentleman contend that in the pursuit of press freedom, we should also do away with contempt of court and libel? That, to me, as a former journalist, is equivalent to suggesting that we should overturn the House of Lords amendments. The press is already regulated, and those regulations are important. It is important that we continue to ensure that we have a responsible press.
Colin Clark
I thank the hon. Lady for her intervention. I have great respect for her, having debated with her on many occasions as we both tried to get elected to this place. I think that the amendments go a lot further than that and will do damage, and that is the crux of it.
Leveson 2 is unnecessary and would be backward-looking, as other Members have said. Regulation has moved on. The rise of digital news has led to the closure of hundreds of local newspapers, and commencing section 40 would threaten their fragile financial viability even more. The venerable newspapers in my own area—The Press and Journal and The Courier in Dundee—are important to the north-east of Scotland, but their sales have dropped by 10%. Section 40 would be calamitous to those papers. Local papers will become more important as we devolve powers to local communities, which we want to do. The Huntly Express and the advertisers, which have carried many stories on the hon. Member for Edinburgh West (Christine Jardine) and myself over the years, would be undermined and threatened. We cannot see that happen if we want local democracy to continue.
Politicians deciding how newspapers should behave is a direct threat to our democracy, of which a free national and local press is an essential component. The data protection regulator, the Information Commissioner’s Office, will go a long way to defend consumer interests and can issue higher fines of up to 4% of global turnover. I was glad to hear the Secretary of State reassure us that the burden on businesses will be reduced. The UK is and will remain a safe destination for personal data. The Bill will help Britain prepare for a successful Brexit and make its own laws in the future.
Joanna Cherry (Edinburgh South West) (SNP)
Like my hon. Friend the Member for Argyll and Bute (Brendan O'Hara), I broadly welcome the Bill and its aims. A strong data protection framework is essential for the protection of human rights, particularly the right to privacy. Having a strong data protection framework is also key to the granting of adequacy by the EU Commission following the UK’s exit from the European Union, which of course I very much regret. However, the Bill falls short in the protections it provides in a number of areas, many of which have been ably outlined by my hon. Friend.
I want to focus on the immigration exception. Many of my hon. Friends and I have had emails from constituents who are particularly concerned about it. I am indebted to the Bar Council and the Immigration Law Practitioners Association for the briefings they have provided. Like others, they have pointed out, as I said in my intervention on the Secretary of State, that paragraph 4 of part 1 of schedule 2, which provides for the immigration exemption, is not reflective of the stated permissible exemptions under article 23 of the GDPR. If the Bill goes ahead unamended, it could cause us great problems for any finding of adequacy when we leave the European Union.
If enacted, that exemption will allow the Home Office, for the purposes of immigration control, to deny individuals access to their personal data—information that people can currently access by making a subject access request. The availability of that information is often vital to the fairness of legal proceedings in which individuals need to enforce or protect their rights. For example, for an individual effectively to challenge detention or an unlawful decision by the Home Office, or to make an application for immigration or asylum, they need to understand their own immigration history and to know what information the Home Office holds about them.
This is the information on which claims and legal challenges are often based. When both sides do not have access to the same information, the fairness of legal proceedings is inevitably compromised. Subject access requests are the only route through which legal practitioners can obtain access to that information and understand what are often complicated immigration histories. We all, as Members of Parliament, have experience of complicated immigration histories of people who come to see us in our surgeries. The reality is that many of these people do not have access to the relevant documents, or an accurate recollection or legal understanding of their circumstances. These concerns are not fanciful; they are very real.
To give an example, when someone is held in detention, they do not have access to their paperwork, for obvious reasons. They need their solicitor to be able to make a request to the Home Office to get the necessary information. Another important example is applicants who have been the victims of domestic violence, who have often been controlled by their partners for years. We introduced legislation in Scotland recently to deal with coercive control and recognise it as a real problem in domestic abuse. When a woman, or indeed a man, has been the subject of coercive control for many years before seeking help with immigration matters, a subject access request may be the only way of establishing the basis of any application for settlement and of obtaining independence from an abusive partner.
Sir Edward Davey
I am grateful to the hon. and learned Lady for giving way; she is making an excellent speech. Is it not ironic that the Government are planning to consult on improving protections for women who are the victims of domestic violence, but in the Bill they are taking protections away from some of the most vulnerable of them?
Joanna Cherry
Indeed it is ironic, and actions speak louder than words. I will certainly raise that matter with the Under-Secretary of State for the Home Department, the hon. Member for Louth and Horncastle (Victoria Atkins), who very decently has offered to meet me to discuss legislation that the Government have in mind about domestic abuse.
Those are just two examples of when it is very important for legal advisers to be able to make a subject access request to the Home Office and not to be met by the sort of brick wall that this immigration exemption, if enacted, would allow. I say “just two examples” because the Immigration Law Practitioners Association has produced, in an annexe to its briefing, a large number of real-life cases that illustrate the very wide range of circumstances in which subject access requests are used and are essential.
It is a sad fact that the Home Office has a well catalogued track record of making unlawful decisions. In a recent answer to a House of Lords question, the other place was told that in the 10 years to 2015, 250,000 appeals were allowed against the Home Office. Allowing the Home Office an exemption from subject access requests in immigration matters will have the effect of insulating the Government from challenges to unlawful decision making, and that is just not right. The Home Office does not apply the law as it has been mandated to by Parliament—or with the consistency that it should. That is why it loses so many cases in the courts.
We often come to the House to hear criticisms of Home Office procedures. While we cannot rectify those procedures under the auspices of the Bill, what we can do is not allow the status quo to get any worse. I exhort the Government to remove this exemption from the Bill, particularly as there are other exemptions in it that the immigration authorities can seek to rely on for the processing of personal data in accordance with their statutory duties and functions, or in the case of an offence having been committed.
This broad-ranging exemption will impact substantially on human rights, and it may also impact on an adequacy decision from the European Commission. Indeed, EU citizens today expressed their concern that these exemptions might have an impact on their ability to enforce their residency rights after Brexit, under the agreements currently being brokered. I urge the Government to look at this very carefully. They have yet to give any reasonable justification for the inclusion in the Bill of this very broad exemption, and I look forward to hearing one, if it is brought forward.
I share the concerns that led to amendments being passed by the Lords, and the cross-party concerns expressed in this House last week when the Government announced their decision to renege on the commitment to hold the second part of the Leveson inquiry. I was very glad to hear the points of order earlier on what Sir Brian Leveson actually said in his letter about his desire for Leveson part 2 to go forward.
I am not convinced by the reasons given by the Government for their decision to ditch any plans for Leveson 2. I endorse what the hon. Member for Rhondda (Chris Bryant) said in this House last week: he said that Members
“should be able to speak without fear or favour.”—[Official Report, 1 March 2018; Vol. 636, c. 971.]
That principle is as important as the freedom of the press, because the need for Members of Parliament to speak without fear or favour comes from the same right as the freedom of the press: the right to free speech and freedom of expression. I am sorry to have to say that I believe that the UK Government have acted out of fear of the press barons, and through favour, because so many of those press barons share their narrow right-wing agenda. There have been many genuine victims of press abuse, from grieving parents—everyone knows whom I am speaking about—to the relatives of those who died in the Hillsborough disaster, and they deserve better than this.
My hon. Friend the Member for Argyll and Bute made it very clear that it is not acceptable that the House of Lords should seek to legislate on matters devolved to Scotland; previously, section 40 applied only to England and Wales. As this is a devolved matter, what happens on press regulation in Scotland is for the Scottish Parliament. Although my colleagues in the Scottish Government have no plans to legislate in this area at the moment, there is debate within the SNP, as in the other political parties, about the best way to ensure that the terrible abuses uncovered by Leveson do not happen again.
In this House, promises were made by the UK Government to implement Leveson’s recommendations, and suspicions have rightly been raised about the motivation for the U-turn in the Conservative party manifesto—a U-turn that was completed with last week’s announcement. It is important to be clear that this is a volte-face on a previous cross-party agreement. I have yet to be convinced that there is not still the same need for the section 40 legislation, and I have previously tried to debunk some of the myths when I have spoken about it in this House.
Let us not sweep these issues under the carpet—let us have a full and frank debate about them—but we should not let the Leveson issues completely dominate the debate about the Data Protection Bill, because it covers very important issues beyond Leveson, of which I have mentioned only one: the immigration exemption. I look forward to debating these matters further as the Bill progresses through the House.
John Lamont (Berwickshire, Roxburgh and Selkirk) (Con)
I am delighted to take part in this debate on the Data Protection Bill, and it is a pleasure to follow the hon. and learned Member for Edinburgh South West (Joanna Cherry).
In my brief contribution, I will focus mostly on amendment 147, passed by the other place, which would implement section 40 of the Crime and Courts Act in relation to data protection. I am pleased that the Government will seek to overturn it. If it remained, it would be a huge blow to each and every local newspaper in the Scottish borders in my constituency. Under the provision, all newspapers and magazines not signed up to the state-approved regulator would be liable to pay for the other side’s costs in an action for a breach of data protection, whether they win or lose the case. As data touches on virtually every aspect of journalism, a legal action relating to almost any action by our press could be dressed up in a way that would take advantage of this provision.
For all publishers in the Scottish borders, this could have serious consequences. The recently set up Hawick Paper or the community-run Eskdale & Liddesdale Advertiser could not afford to risk a case going to court, given the crippling costs that might be involved. They would have to stop investigating a story, or print an apology for something that was actually true. The alternative would be going to court and possibly paying the costs, even if they were successful. Even the titles backed by the Johnston Press machinery in the borders, such as The Southern Reporter and The Berwickshire News, could face closure if any claims were brought against them. Johnston Press recently announced significant losses, and any further setbacks might result in the loss of further local titles, not just in my constituency, but in many other parts of Scotland. It would be the same for the Borders Telegraph, which covers another part of my constituency in the Scottish borders.
I find myself in the rather, if not extremely, odd position—this might be the only time I can say this—of agreeing with Nicola Sturgeon. Last year, she said in relation to section 40:
“I don't think it’s an exaggeration to say that it would threaten the viability of local newspapers.”
The purpose of the Attlee amendment was to incentivise media operators to sign up to press control in respect of data protection claims. This may well be a laudable aim, but section 40 is a clunky way of achieving it, and amendment 147 was not the appropriate vehicle to address what is a much wider issue, not restricted to data protection.
This Bill is concerned with modernising data protection laws, not press regulation, and there is much to be found in this Bill that is welcome. It is certainly time, in this digital age, for an update of our legislation. Much of the Bill implements the EU’s general data protection regulation, which the UK helped to shape. By adopting it in domestic law, we ensure that businesses are able to operate across international borders as we leave the European Union. We have also exercised our right to derogate from the GDPR on key areas, such as the age of consent and freedom of expression in the media. I believe it strikes the right balance between individual protection and allowing the free flow of data.
I therefore welcome the Bill, and I particularly welcome the intention of the Government to reverse the amendments made in the other place, which I believe would in effect restrict the freedom of the press and might damage the local press, not only in my constituency, but in many other parts of Scotland.
Darren Jones (Bristol North West) (Lab)
I declare my interests as set out in the Register of Members’ Financial Interests.
The data economy is a significant part of the UK economy, with techUK estimating that it will be worth over £240 billion by 2020. As a Bristol Member, I represent part of a region with the largest digital economy in the country outside London. Tech City estimates that £8.1 billion is generated in revenue from the data economy in the Bristol and Bath region.
Digital transformation is not all about business revenues, important as those are. It is about the modernisation of our public services—including, as my hon. Friends have said, the use of citizens’ data owned by the state, such as NHS data—where we fall significantly behind our European neighbours, and about the digitisation of traditional industry, where we also fall behind. Efficient spending of taxpayers’ money on modernised public services and the cracking of our economic productivity challenge will flow from this technological reform. However, as my hon. Friend the Member for West Bromwich East (Tom Watson) said, we must also remember that this is about people as well as processes. I welcome the work that he and others did on the future of work, and I hope that we can debate those issues further in this House.
While digitisation is not all about personal data, it goes without saying that the Bill is incredibly important by providing a comprehensive framework for the collection, processing and protection of citizens’ personal data, and in setting out the rights and enforcement actions that citizens, as data subjects, will have. However, the Bill needs to go further, because this is about something much more fundamental. Yes, we have a role to play in topics such as an industrial strategy and reform of our public services, but we also set the ethical and values-based legal framework on behalf of our constituents. This is about applying traditional civil liberties in a modern setting, where our constituents feel informed, empowered and in control when it comes to the use of their personal data. The Secretary of State said that the Bill would help consumers to build trust. There are good laws on the statute book today, but citizens do not necessarily trust everyone who uses their data, because they do not understand how it gets used or what their rights are. While the Bill is an improvement, I hope more can be done to educate and inform citizens about their rights and build that trust.
Given the time constraints on the Bill—UK derogations need to be on the books by 25 May, and the law enforcement directive by 6 May—I understand why the Government would like debate on it to be narrowly focused. In many ways that is a shame, as this is a prime opportunity to debate some of the most pressing public policy issues of the day. In one way, that is one of the greatest challenges for the Bill, because—this is not a criticism but a statement of fact—this debate is about more than what is in the Bill. The general data protection regulation, which we have heard about this evening and will apply automatically in a few months’ time, will not be implemented by this Bill. If Brexit happens, the regulation will be copied and pasted into UK law under the European Union (Withdrawal) Bill—I say to those on the Treasury Bench that I am optimistic regarding “if” Brexit will happen—yet to my knowledge we have not debated the GDPR or its interpretation in this House. I assume that we will have that opportunity when we consider the GDPR statutory instrument under the withdrawal Bill process.
Other issues include the e-privacy regulation, which is currently stuck in trialogue in the EU; the implementation of the network and information security directive to address cyber-security breaches; and the establishment and purpose of the data ethics unit in the Minister’s Department, a body whose work I hope the House will have further time to debate. I welcome the Information Commissioner’s comments before the Science and Technology Committee a few weeks ago, when she suggested that the new data ethics unit could be the place for public debate about what the public find acceptable in this new, fourth industrial revolution, and that it should not take on enforcement powers, which the ICO currently has. I hope that this place, as well as that unit, will be able to lead that debate with the public.
There are many issues that warrant debate—I look forward to rehearsing them in Committee—ranging from the requirement for human intervention in the use of automated decision-making algorithms, which is something that I and other hon. Members on the Science and Technology Committee have been looking at in detail, to the application of the law to newly defined processes such as the re-identification of pseudonymous data and the public policy requirements to protect children online, not just from criminal issues but from commercial exploitation, through to powers of collective redress for citizens who might not feel able to bring forward complaints or claims of their own. There are also other, most important issues, such as whether the Secretary of State has appointed his own data protection officer for the Matt Hancock app.
Sadly, time does not permit that debate today, so I will focus my final remarks on some issues around the most important process of getting an adequacy decision from the European Commission. First, and in line with the Prime Minister’s latest views that she gave us from the Dispatch Box today, we must be honest about the need to comply with EU law in the future, because to maintain our finding of adequacy, we must continue to be adequate. The European Commission does not take a snap-shot view and say we are adequate for ever more, but will make an ongoing assessment of our compliance.
That means implementing the decisions of the European data protection board, which is subject to the jurisdiction of the European Court of Justice. I hope that Ministers will not say that we will not comply with those decisions, because we would risk failing to win our adequacy decision. Although I agree with the Government’s aim of securing a seat at the table of the data protection board for our Information Commissioner, as she said to me at our Select Committee a few weeks ago, third-country representatives have little influence and, of course, no vote. As a Canadian, she knows that well from her previous work. We must therefore be honest in saying that we will continue to apply EU law as it comes from the European data protection board but that we will have no seat at the table in defining it.
To turn to the debate between my right hon. Friend the Member for East Ham (Stephen Timms) and the Secretary of State about the divergence of views among those on the Treasury Bench, we have seen today that the principle of “America first” will be at the heart of any prospective trade deal with the United States of America, meaning that for agricultural products, for example, the US regulatory framework takes precedence. I hope there is no inclination from the Government, in trying to seek a digital trade deal with the United States, to go for a US-style regulatory framework rather than one with the European Union.
Secondly, there are serious concerns about the Government’s powers under the Bill—from their ability to self-legislate derogations for themselves for extremely broad reasons, such as the exercise of their “official authority”, which I think means “anything at all”, to the ability of various Departments to share personal data without citizens’ knowledge, such as by using pupil, medical or police data for the again broadly defined purposes of “immigration control”, which has been mentioned frequently in this debate.
Lastly, there is the issue of national security. The case in the name of my hon. Friend the Member for West Bromwich East brought a challenge against the Government’s bulk collection of data powers under the predecessor legislation to the Investigatory Powers Act 2016. Interestingly, that case relied on rights in the privacy directive, which we are not discussing today, and articles 7 and 8 of the EU charter of fundamental rights, which the Government seek to abolish under the European Union (Withdrawal) Bill. I hope the data framework that we establish will not prevent such further challenges against national security measures.
The Government seemed to anticipate the application of the ECJ ruling by the Court of Appeal in the case of my hon. Friend the Member for West Bromwich East and others and consulted last November on what amendments were needed to the Investigatory Powers Act to bring it into compliance with the ECJ ruling. In my view, the Government’s position seeks merely to make the case that this whole conversation is one of national security and therefore irrelevant to the European Union. However, as the Schrems case shows, the overall data protection culture of a third country, including its powers of mass surveillance for national security purposes—itself not an EU competence—will be taken into account by the European Commission when deciding on advocacy.
I hope the Minister has a clear answer for the House about how the Government seek to remove fundamental rights, while balancing them to seek adequacy, and whether she has any further insight into what the Prime Minister meant today by getting something “beyond adequacy”. I am a man of definitions and I have been somewhat confused. The Secretary of State previously talking for something akin to adequacy, and I believe that what we need is adequacy. The Prime Minister is now talking about “beyond adequacy”. It would be useful to have clarity on what those terms mean.
Finally, let me make a short comment about Leveson 2. I might understand a Government’s intention to dilute regulations for the regulation of the press that they see as too restrictive—something, I should add, that I disagree with—but I find it extremely hard to understand how a Government with any heart can decide with such haste and disrespect to bring to a close the ability for people who have been victims of press intrusion to seek clarity and justice. That seems both heartless and unnecessary, albeit perhaps politically expeditious. I hope the Government reconsider their position on that most important matter.
Mike Wood (Dudley South) (Con)
I intend to speak only briefly, as this is a strong Bill that will empower people to take control of their data. I am pleased to see such broad support for it receiving its Second Reading, but I am not able to support the provisions in the Bill that would implement section 40 of the Crime and Courts Act 2013. It seems that I am one of the few Members speaking in this debate who has not had to declare an interest as a former journalist—unless, Madam Deputy Speaker, you count four days’ work experience with the Stourbridge News 25 years ago, just to put that on record. A lack of journalistic experience, however, does not mean not understanding or appreciating the importance of a strong and free media for our political, community and social lives.
The relationship between politicians and the media ought to be uneasy. It is safe to say that the press and the media more broadly can be something of a pain in the neck. On occasions, that sensation may be felt in an area a little lower down, and I know that from personal experience. Shortly after I was elected, I stayed at the Carlton hotel at the back of Victoria station. No one could describe it as luxurious, yet The Guardian reported this as claiming on expenses to stay at the Ritz. If I could negotiate a room at the Ritz for £119 a night, I feel that the Prime Minister might find a role for me in the current negotiations. Clearly, people will have different levels at which they feel the need to respond to such inaccurate claims.
Mr Gregory Campbell (East Londonderry) (DUP)
The hon. Gentleman says that some sections of the media can be a pain in the neck. No one should take exception to that. Setting aside any pains anywhere, the problem many of us have is that on occasions some sections of the media are exceptionally unfair. They do not seek balance and they do not seek equity in terms of the various parts of any debate. That is why many of us have a problem, particularly with the broadcast media, including certain sections that we pay for.
Mike Wood
I understand exactly the hon. Gentleman’s point, with which I have a little sympathy. However, when the media are behaving unfairly and something is inaccurate, distorted or misleading, it is of course right that there are proper procedures for redress. I have absolutely no problem with greater access to justice, but, on the measure’s own terms, it would fail in this regard.
Clearly, the hope is that the proposal would somehow pressure the media into signing up to a state-approved regulator, but for those who remain outside such a system, changing the basis for awarding costs would not improve access to justice. It would not prevent our libel and defamation laws from being the preserve of the already rich and powerful. All it would do is deter proper, quality investigative journalism. It would deter community and local reporting, where, shall we say, conflict within communities is not unheard of. If, when a claim is brought, there is an assumption—not quite but almost without regard to the merits of the case or who the claimant is—that the defendant will have the costs awarded against them, that is an enormous disincentive to continue with a story, even when doing so is clearly in the public interest. It must be the case, when there is criminal behaviour and when something is actionable—
Mike Wood
I am just concluding. When something is criminal, the full weight of the law should fall on those who break it. When something is actionable, we need streamlined procedures that actually work—an array of alternatives, not just the one-trick pony in this proposal. However, when publishers are confident that their story is accurate, fair and proportionate, the only proper response is to publish and be damned.
Christine Jardine (Edinburgh West) (LD)
It is a great honour to follow the hon. Member for Dudley South (Mike Wood). It is fair to say that my party broadly supports much of this Bill, which is a vital component in our continued and smooth co-operation with the EU, should Brexit go ahead, but that support is not without qualification, which I shall come to shortly. As an EU member, we are assumed to be compliant with the requirements of the Union, but as a third party we will be required to demonstrate a suitable standard of protections. Failure to do this would jeopardise the co-operation that even the most zealous Brexiteers, I should imagine, want to maintain in defence and security.
The Data Protection Bill and the general data protection regulation bring existing best practice into law. This is not an onerous burden; it is a natural progression for information rights in the digital age. However, we have reservations about some aspects that we will discuss later. My right hon. Friend the Member for Kingston and Surbiton (Sir Edward Davey) intends to speak about the proposed immigration exemptions. I had intended to concentrate on areas that deal with our personal data and the help that industry and charity organisations will need to cope with this regulation, but as the debate has progressed, I have become increasingly concerned about the Government’s intention to overthrow the amendment by the House of Lords. The Data Protection Bill is an important vehicle through which to bring forward recommendations from the Leveson inquiry, as this House promised to do. Data processing for investigative journalism purposes must strike a balance between press freedom and the individual’s right to privacy.
As a journalist, I value freedom of speech and freedom of the press as much as any other person. As a journalist, I was always impressed by and proud of colleagues who uncovered miscarriages of justice, political corruption or malpractice in India, for example. The freedom of the press to scrutinise and hold to account those in power—as the hon. Member for Dudley South said, the relationship between journalists and politicians should not be an easy one—is vital in a democracy. It must not, however, be at the cost of the individual—to their privacy in times of grief or hardship, to their hard-won personal and professional reputations—or mean chasing them when they have done nothing wrong other than perhaps disagree with the stance of a newspaper. That cannot be the way.
Newspapers in this country are not free of regulation. Broadcasting has to apply the standards set by Ofcom. Newspapers have to abide by the law of libel, contempt of court and the criminal code. All those things are necessary, but in an increasingly digital age it is necessary to ensure that all publications abide by data protection regulations. It is more than 20 years since Calcutt warned the press that they were drinking in the last chance saloon. Well, they have had their drink and frankly they have been thrown out. The Press Council failed; the Press Complaints Commission failed; and this House promised to bring forward a statutorily underpinned body. Self-regulation with statutory underpinning—it is good enough for every other industry, it is good enough for the Law Society, so why are we not prepared to follow through for the press? The vast majority of journalists are honourable. As the hon. Member for South Dorset (Richard Drax) said, we are talking about a small minority, but that small minority can do immense damage to individual’s lives—we saw it with the McCanns, with Milly Dowler and with the Hillsborough inquiry—and it is not good enough for us to say they are doing a good enough job; they patently are not, which is why I hope the House will uphold the amendments passed in the other place.
I turn now to what I had intended to speak about: the rights of individuals and the problem many have in talking about data and regulation. It sounds like a technical issue—something that does not affect them directly in their everyday lives. Algorithms are a mystery that many of us have no desire to investigate, never mind solve, yet they are a major influence in our increasingly technology-driven and social media-driven lives. Data harvesting can sneak into every corner of our existence, undertaken by public and private organisations—those we deal with and many that just want to deal with us, or use what they know about us. The information we provide tells them how to sell us everything from cars and mortgages to life insurance and funerals. As more and more information about our daily lives is digitally recorded, it is important that individuals have more control. With the passing of the Bill, we should all be able to rest assured that the information is being used both ethically and responsibly, including by the national and regional press, and that we have access to ensure that it is accurate, whether it is available to individuals or public or private bodies.
We should take into account that the information we provide can be used to infer information we have not given. For example, I am reliably informed that people who like curly fries are more likely to have high IQs. If someone was to pass on that culinary preference with their data, floods of adverts aimed at highly intelligent curly fries fans would be likely to follow. Occasionally, of course, it can all go wrong. Just after suffering a recent bereavement, I was in touch with a nationally known undertaker. Immediately afterwards, I was bombarded with adverts about planning for my own funeral, which is not really what anyone in that position wants. That is just an illustration of why it is important to the public that they have the right to view and correct or delete their own personal data, as laid out in the Bill. None of us wants false information out there about us that could prejudice decisions or jeopardise our security.
That, surely, is particularly important in relation to the many young people—a significant number of them children—who are regularly online. Ofcom estimates that 99% of under-16s are online for nearly 21 hours a week. The Children’s Society and YoungMinds surveyed more than 1,000 young people about their online experiences, both generally and more specifically with regard to cyber-bullying, and found that 61% of the under-18s who were surveyed had had their first experience of social media before the age of 13.
In setting the age of consent, it is important to be realistic about the lives of young people. Sixteen may not be an appropriate age of consent, or a realistic reflection of a situation in which practice allows only over-13s to have an account, but with no age verification. Young people need to learn their data and privacy rights much earlier, and that should be a mandatory part of their personal, social, health and economic education at school.
Jim Shannon (Strangford) (DUP)
When it comes to the protection of children, there is a greater need for parents and guardians to be involved, but we often find that the care that ought to be there is not there. Has the hon. Lady any thoughts about how we could improve the situation?
Christine Jardine
I believe that parents should take more responsibility, but I think that the answer is to educate the children themselves and make them aware of the danger.
It will be important for the Government to support those who will feel extra strain as a result of the Bill, such as small and medium-sized enterprises and, indeed, the Information Commissioner’s Office itself. The ICO will have a much more proactive role in policing data protection matters and will be required to produce masses of guidance both now and after May. The office must be properly resourced to do its important job. There should also be targeted support for charities.
Many sectors—manufacturing, retail, health, information technology and financial services—are anxious for the free flow of data between ourselves and the European Union to continue with minimum disruption post Brexit. In an increasingly digital economy and society, that is critical for both our international trade and the protection of our rights of privacy. We must get this legislation right, and, as I said earlier, I believe that that will mean upholding the amendments passed in the other place.
Eddie Hughes (Walsall North) (Con)
It is an honour to follow the hon. Member for Edinburgh West (Christine Jardine), not least because my own brief contribution will be simply an extension of the points that she made.
When I first came to this place, I was lucky enough to have dinner with some people from Facebook. We were invited to their headquarters in London and were given an example of how they used data to influence purchasing activity. Facebook knows that elderly people are not frequent users of the site, but that grandparents are keen users just before the birthdays of their grandchildren. Facebook knows everything about us, so of course it knows when our grandchildren’s birthdays are, and it probably knows what sort of toys they are interested in and what sort of films they watch. All information of that kind is held. Facebook can start pitching advertisements for appropriate products to people two weeks before their grandchildren’s birthdays, even before they themselves know what would interest their grandchildren.
I am not suggesting that we should use the Bill to introduce a tough code of practice to protect grandparents, but given that Facebook holds that data and can manipulate it in such a way, we should certainly protect young children from similar practices. I am concerned about whether 13 is an appropriate age of consent. People might be reassured by the fact that Facebook, Instagram and WhatsApp require users to be at least 13, but, as was pointed out earlier, there are no checks to establish that that is the case. We should be particularly concerned because there has been an incredible proliferation in the use of mobile devices by young people. Research conducted in 2014 across many countries in Europe and in Japan found that children typically get their first phone at 10 years old. Other research carried out more recently suggests that between 2014 and 2017 there has been a doubling of online use by five to seven-year-olds. It does not matter what the starting point was.
Paul Girvan (South Antrim) (DUP)
There are large, global organisations that have data on every single individual through their mobile phones; mass data collection tracks movements and identifies where anyone is at any one time. That information is not even held in the United Kingdom; it is held in California in the United States. How can we ensure that we have access to that information if we need it for security reasons?
Eddie Hughes
I am not sure I am going to be able to answer that excellent point, but I was about to touch on something similar.
Apart from the statistical data that I have alluded to, as we walk around every day we see younger and younger children using mobile devices; they must be protected. Greater protection is perhaps required for the most vulnerable. I have been a councillor on Walsall Council for 18 years and a large proportion of my time has been spent working with looked-after children and ensuring the services they are provided with are as useful and appropriate to their needs as possible. On the point that the hon. Gentleman has just made, we are talking not just about the collection of our own data as adults, or the collection of the data of young children, but about the collection of the data of the most vulnerable people in society—looked-after children. The collection and use of their data is terrifying if it gets into the wrong hands. I hope the Minister will take this opportunity to ensure that we protect not just the young, but the most vulnerable young in our society from the perils of data collection and manipulation by huge global entities.
John Grogan (Keighley) (Lab)
It is a great pleasure to follow the hon. Member for Walsall North (Eddie Hughes), who characteristically speaks with great clarity without notes, but I shall take inspiration from the hon. Member for North Herefordshire (Bill Wiggin), the first Back Bencher to speak in this debate, in that I will take a slightly different view from my Front-Bench colleagues on a couple of issues. In particular, I will suggest that there are some flaws in clauses 168 and 169.
When I retired from this House in 2010, I never really expected to be back on these Benches, yet I am now back here representing a different constituency. I missed out on the Leveson report and the subsequent debate about Leveson and the provisions of the Crime and Courts Act 2013. I recognise, however, the tremendous hurt caused by phone hacking and the crimes committed by those involved in it; indeed, two dozen-plus people were convicted of crimes at that stage. I recognise, too, the tremendous sense of violation of privacy that people felt at that time. I am also well aware of the force of the charges our Front Benchers put to the Government; that at that stage they committed themselves to legislation that they are now resiling from.
I am also aware that the history of my party’s relations with the press over the last century has not been untroubled. We have rightly stood up for a feeling that the press has been out to get the Labour party ever since the Zinoviev letter in the 1920s, published by the Daily Mail. However, despite all that background, I still have doubts about clauses 168 and 169, which would have the effect of putting punitive damages on to our press if they were sued, whether they won or lost.
We must be very careful about taking this step. We are already 40th in the accepted rankings relating to a free press. We are not even in the top 10, and we should be up there with Norway, which I think is No. 1. We should be very careful about taking these steps. How would Russia Today react if our press organisations were forced into bankruptcy or felt the chilling effect that Alastair Campbell warned against recently?
Stephen Kerr (Stirling) (Con)
The hon. Gentleman is making a very good point. A key concern that I share with him relates to the dwindling number of local titles. In my constituency, the Stirling Observer is the only newspaper left serving the community. It has a skeleton staff with very few reporters and very few resources even though it is part of a bigger group, and it is vulnerable because of its dwindling circulation. Anything we can do to strengthen our democracy must involve encouraging freedom of the press.
John Grogan
Investigative journalism is one of the things that makes me proud to be British. When I was previously an MP, I was lucky enough to be vice-chairman of the all-party parliamentary National Union of Journalists group. At that time, the group had only two other officers that I can remember: my right hon. Friends the Members for Islington North (Jeremy Corbyn) and for Hayes and Harlington (John McDonnell). Obviously, their careers have taken a different path from my own, but I am still proud to be vice-chair of that group, and I think it is right that I should be.
Obviously, the press get many things wrong, but they also get some things right. There have been many investigations, including the Daily Mail investigation into the Stephen Lawrence affair. The Daily Telegraph has held politicians to account on both sides of the Atlantic; at the moment, it is exposing the possibility that President Trump was financed by foreign contributions. It has also exposed football corruption. Thank goodness for The Guardian exposing tax cheats and tax avoidance, and thank goodness for the Daily Mirror exposing some of the activities of the tech giants and the more unjustifiable practices of the gig economy. That investigative journalism does not come cheap, however, and I believe that it would be threatened by putting section 40 into law. I have studied the Labour party manifesto very carefully; it is my bedside reading. We are committed to Leveson 2, but I do not think that there is anything in the manifesto that commits us to the implementation of section 40.
I have been looking at the amendments that were passed in the other place, and it is interesting that clause 142, which deals with a potential Leveson 2, is actually more expansive than Leveson 2 in some ways, in that it could affect broadcasters and online services as well as all newspapers. That has to be taken into account when we consider that clause.
I am radical when it comes to the reform of our media and our press. I think that we have forgotten some of the issues on the left of British politics that we used to bring to the forefront. For example, the concentration of ownership in our media is far too great. The right of reply is also something that we should concentrate on, as is the wide variety of issues relating to the power of Facebook, Google and others and their inability to deal with fake news in a convincing way. However, alliances are shifting. This week in The Sunday Times I read the most favourable article I have ever read in that newspaper about a speech by a director-general of the BBC. He was talking about the danger posed to British culture, the British way of telling a story and British journalism by the dominance of the tech giants on the west coast of America.
Some things have changed in the media landscape, but I hope that we in this House will always stand up for press freedom and for the plurality of the media. One of the little things that I do in Parliament is also one of the things that I am most proud of, and that is that I chair a number of groups, including groups on Kosovo, Albania and Mongolia. Those are emerging economies and democracies, and we often discuss press freedom in our meetings with people from those countries. How would it look if this House were to impose punitive damages on our newspapers unless they signed up to a state-supported regulator? I think that that would be very difficult to explain.
Mr Jacob Rees-Mogg (North East Somerset) (Con)
I find myself in a great deal of agreement with the hon. Member for Keighley (John Grogan), who has put the case for press freedom extremely clearly. I begin by making an essentially ancestral declaration of interest: my father was involved with newspapers for most of his professional life, and I have received by comparison very modest payments from some newspapers for some works that I have provided for them over my time in Parliament.
At the heart of this Bill are three clauses—primarily clauses 168 and 169—that came in from the other place and fundamentally attack the freedom of the press. There is widespread agreement on the need to regulate the digital economy and the ownership of data effectively. There is cross-party agreement on that, and I doubt that there will be a Division this evening. However, the freedom of the press and freedom of speech are absolutely at the heart of our democracy. Members of Parliament should remember that those freedoms will be exercised in a way that does not always provide hagiographies for us. Quite understandably, newspapers will say critical things of people on the Government Benches and of people on the Opposition Benches. Sometimes they will be fair; sometimes they will be unfair. Sometimes we will read something and think that we have made a mistake; sometimes we will read it and know that the newspaper has made a mistake. That is the flotsam and jetsam of political life. For every piece in the Daily Mail that upsets Opposition Members, there will be something in the Daily Mirror or The Guardian that upsets us. That is how political life works, and we surely are not sufficiently of the snowflake generation that we should mind about that. That is how political life must and should go.
When we look at clauses 168 and 169, however, we know from our history that one of the tactics of dictatorial regimes is to have to punitive damages levied on newspapers that do not do what they want—a system whereby if a paper loses a libel action, it is effectively closed down. Why do such regimes do that? They do it so that they can have the pretence of freedom of speech, but with the reality of control. In the 18th and 19th centuries here, libel laws were used to prevent the press from exercising the freedom that we think of as a constitutional birth right. We know that the Americans, when writing the bill of rights to their constitution, made the second amendment a clear statement of freedom of speech. Why? It was in response to the abuses that they thought were taking place in the United Kingdom at that point. They put it in because they were worried about such things as the persecution of John Wilkes and his being sentenced to prison not for what he did, but for what he said. We see that being restored in clauses 168 and 169, with the outrageous, monstrous idea that if a paper prints something that is entirely accurate—every dot and comma is true—but has not bended the knee to officialdom, the fine will be to pay its own costs and the costs of the party about whom it has told the truth.
The hon. Member for Keighley referred to the Daily Mail and the Lawrence affair. That terrifying right-wing newspaper, which I read every day and enjoy, exposed the murderers of Stephen Lawrence in a way that required it to say things about the murderers that, until double jeopardy laws were changed, could never be proved in a court. What if this law had existed then and those people, whom we now know were guilty of murder, had sued the Daily Mail for saying something that was true? What if the Daily Mail had had to pay the costs of murderers? That is what their noble lordships have put into this Bill.
This is more serious on a day-to-day basis than the worst case that I can think of. We know the weakness of our local papers and how they struggle hand to mouth, but how easy would it be, for example, for my hon. Friend the Member for North Herefordshire (Bill Wiggin), who is no longer in his place, to take to court the journal that he does not like because it said inaccurate things about him. It is fair enough for him not to like them, but if an hon. Member took a local paper to court, that local paper would be insolvent, because many of them do not have powerful parents behind them. Many of them—I am thinking of some in my constituency—are run by entrepreneurial individuals trying to make a reasonable living. The threat of having to pay double costs would be sufficient to stop them printing a disagreeable story about us.
That is great. It means that in all Conservative seats, no disagreeable things will be published about Conservatives; and in all Labour seats, the same will be true. Therefore, I will remain the representative of North East Somerset forever and ever—amen, amen, alleluia—and the hon. Member for Keighley remains in Keighley likewise. As it happens, we both think that is fundamentally wrong and an attack on democracy.
Free speech is not there so that Rupert Murdoch, a man I greatly admire, can make a great deal of money; it is not there so that the noble Lord Rothermere can, likewise, make a decent living; it is there because it is the pillar of democracy. If we do not have free speech, how will we expose corrupt Governments, incompetent politicians and—I dare say there are some occasionally—Governments who make mistakes? Councils that get things wrong, errors that are made and dishonesties that are performed, how will they be reported if every one of us can shut down our local newspaper just by saying that we will go to court and the newspaper will have double costs?
The proponents of clauses 168 and 169 will say, “That’s all very well, but there is IMPRESS.” What is the fundamental principle that has prevented newspapers from signing up to IMPRESS? I was one of 13 MPs who voted against the Crime and Courts Act 2013, which allowed this to happen, and I was absolutely right to do so. The principle is that a free press is one that cannot be regulated by the state, and an application to be approved by a regulator approved by a royal charter is regulation by the state. That is not comparable to the judges or other independent organs of the state, because the judges are part of the state—they are simply independent from this place and from the Executive. The whole point of the press is that it is not in any way part of the state. Quite understandably, no serious newspaper of the left or of the right has been willing to bend the knee to IMPRESS, and nor should it.
Let us now turn to IMPRESS, what causes it, what its origins are and who funds it. It is a scandal of our time that their noble lordships have made an amendment that has been pushed and harried through by perhaps one of the most disreputable figures in British public life. I refer, of course, to Mr Max Mosley, who has provided £3 million for IMPRESS and who took a libel action against the News of the World when it said he had indulged in Nazi-themed orgies. The News of the World was wrong: the orgies were not Nazi-themed. They were orgies, but they were German-themed. I apologise, Madam Deputy Speaker, for saying those shocking things in front of you, but that is what happened.
The News of the World lost, and it was deemed that Mr Mosley’s privacy had been invaded. Before that, few of us had heard of him, except we knew vaguely of his involvement in Formula 1 and we knew his father had been a Member of Parliament—a Labour Member of Parliament, as it happened—and had then set up the British Union of Fascists.
But we did not know that Mr Max Mosley himself held views—or, he claims, had in the past held views—that no reputable person could possibly hold. Views that are so repellent that, though I read them out because it is important to understand what underpins IMPRESS, I do so with considerable reluctance. Mr Mosley was the authoriser of a leaflet, and because we have stood for Parliament, we all know the importance of a leaflet’s authoriser.
I have the most wonderful agent, Margaret Brewer from Somerset. She was referred to by The Sunday Times as a “flinty rural matron”, and indeed she is. Nothing goes in my leaflets without her approval. People may think I am independent-minded, but I have not a view that has not been approved by Mrs Brewer. We all know how this works. If our agent does not approve it, it does not go in. What did this leaflet say? As I say, this is so appalling that I am reluctant to read it out in Parliament. Under a heading of “Protect your health”, it said:
“There is no medical check on immigration. Tuberculosis, VD and other terrible diseases like leprosy are on the increase. Coloured immigration threatens your children’s health.”
That is the view of the funder of IMPRESS. It is little wonder that our free press does not want to be associated with such a man. It is little wonder that, to its credit, the Labour party has now refused to take any further funding from this man, but IMPRESS has not. IMPRESS has not condemned this man. It has not said it will refuse further funding from the charitable trust he set up purely and specifically to keep IMPRESS running. IMPRESS has done nothing of this kind. It has a reputation of its own, and there is a certain irony in this; its chief executive is a man called Jonathan Heawood, and he tweeted, of all things, that the Daily Mail was “a neo-fascist rag”. Dare I say that he might know a good deal more about neo-fascists than one had thought when that tweet was originally circulated?
We are suggesting, under clauses 168 and 169, that that most precious thing that underpins, protects and gives us our democracy should be sacrificed to the honour of a man who has waged a campaign against freedom of the press because it exposed his perversions. That is the long and short of it. The hon. Member for West Bromwich East (Tom Watson), the deputy leader of the Labour party and shadow Secretary of State, said that Mr Mosley does not hold those views any more—well, how gracious of him. But how fortunate we are that our free press has exposed those views, so that we know them in the context of the debate we are having today. I say to Opposition Members that any of them who go through the Lobby at a later stage to vote in favour of those clauses are voting to support Max Mosley, his abhorrent views and his money. Those of us who believe in freedom will vote them down.
Sir Edward Davey (Kingston and Surbiton) (LD)
It is interesting to follow the hon. Member for North East Somerset (Mr Rees-Mogg). The House should reflect on his speech. Obviously, he was full of great rhetoric, but for some of us, he was playing the man and not the ball, but the House should discuss the ball—the substance—because that is key. I say to him, in language I know he understands, that veritas is a good defence.
I want to speak about the actual Bill, not amendments made in the other House. This piece of legislation is very welcome. It emanates from the EU, and I am delighted that the Government are implementing it. This regulation was being formed when I was a junior Minister in the then Department for Business, Innovation and Skills, and Britain was very supportive of it and was leading on it. Indeed, I served on the Competitiveness Council and formed a like-minded group for growth, on which Britain was leading the way in Europe in developing further the single market in energy and in digital services. It was clear that this regulation was essential for British business, because Britain was leading in digital services and needed this to support our businesses trading across the EU and to give consumers the confidence that this brings. It was a key area for business for Britain, and we pushed it.
It is therefore particularly ironic that we are transposing this regulation into UK law just as we are pulling out of the EU. The legislation before us is excellent; it has cross-party support; and it is a perfect example of why Brexit is a bad idea for the UK. We were highly influential in the conception and birth of this regulation as a member of the EU, but thanks to Brexit, we will not be at the conception and birth of a daughter of this EU regulation. There is bound to be a daughter of the GDPR, given the speed with which these technologies are developing. Inside the EU, the UK fashioned this regulation; we were a rule maker, and we were in control. With Brexit, we will not have a vote, we will be a rule taker, and we will have lost control. There could not be a clearer example of how Brexit will actually weaken Britain’s democracy and sovereignty—the precise reverse of what was promised to the people. Although I welcome this legislation in general, I do fear for the future.
However, I have one massive concern about the Bill. It relates not to what came from the EU, but to what Whitehall has done to the legislation. It used to be called “gold-plating”, but in this case I would call it “dirt-smearing” the regulation. I refer, of course, to the immigration exemption in schedule 2. I am disturbed about that for a number of reasons, some of which other Members have mentioned. However, to get the Minister’s attention, I should say that if the legislation is passed with that exemption, that will put at risk the chances of the UK’s obtaining a data adequacy agreement prior to Brexit—something essential for business and vital for security. The immigration exemption is not allowed under the EU’s regulation; it will be found to be illegal. It is clearly in breach of the EU’s charter of fundamental rights, undermining article 8 on the protection of personal data, article 20 on equality before the law and article 21 on non-discrimination.
Take the central example of what the exemption will mean for citizens from other EU countries—the 3 million here already and those who will come in the years ahead. Does the Minister really expect the Commission and the EU’s Brexit negotiators to turn a blind eye to the theft of data protection rights from EU citizens that the immigration exemption represents? It is a clear and evident breach of faith with the December agreement on EU citizens. There is simply no way that the EU could or should grant the UK a data adequacy agreement if we intend to take data protection rights from its citizens with this measure. That is before Brexit; if we do not secure a data adequacy agreement while we are in the EU, it will be far more difficult and demanding as a third country. The granting of data adequacy for third countries involves a more stringent examination of how national security data is dealt with.
I say candidly to those on the Treasury Bench that if they want their Brexit negotiations to proceed as smoothly as internal Tory party politics allows and to secure the data adequacy agreement that British business desperately needs, they will have to drop that immigration exemption—not water it down, not caveat it, but drop it.
Moreover, the exemption is insulting to freedom, the rule of law and access to justice. What it means, as others have said, is that an individual cannot know why he or she has had their case refused by the Home Office. The Home Office will be under no duty at all to disclose the information in a person’s file and the information used to make the decision. That is an affront to natural justice. In any dispute about how a case has been administered, it is surely self-evident that officials should have to provide that information.
To help Government Back Benchers who care about the rule of law even more, I should say that this affront could affect a British citizen. The administrative mistake might well be that someone has incorrectly been considered not to be British. In the many briefings that we have been given for this debate, there is example after example of British citizens being denied justice, with their very nationality being denied. Only a subject access request by an individual’s lawyer can end up revealing such basic errors of the Home Office.
Let us face it: the Home Office holds the prize for the largest number of mistakes made, week in, week out, by any Department. To take just one example, the Home Office has a shocking 10% error rate on immigration status checks alone. The Conservative party may be happy to take away access to justice and the rule of law from British citizens, but I am not.
Let us look at the impact on fairness. The best way to illustrate how deeply unfair the immigration exemption would be is with a few examples—real life examples, which is to say real people. Let me take some examples from the Law Society brief. It takes the case of Z, a failed asylum seeker attempting to reopen his case:
“The Home Office refused to reopen the case, saying that he had previously left the UK voluntarily and had received a resettlement grant from the Home Office. The SAR revealed that a third person had assumed his identity, and had applied for and secured voluntary return and the grant had subsequently been removed. The file further revealed that there was no cross-checking of signatures, photographs, or fingerprints on the Voluntary Assisted Returns scheme.”
This would have had serious consequences for the individual had the subject access request not revealed the identity theft, but, of course, under this immigration exemption there will be no such right to make that request.
We have talked about issues around domestic violence. We have heard the example of a woman applicant, the victim of domestic violence, who had no knowledge of the immigration applications made for her because her husband had all the papers. A subject access request would be her only path to sorting out her immigration status.
There are many examples showing how unfairly this will work in practice. Another example of Home Office mistakes on identity is the case of a nurse who had been working in the NHS and living lawfully in the UK for many years, but whose application to naturalise as a British citizen was denied because of her alleged poor immigration history. The brief says:
“A SAR was made and it became clear that the Home Office had mixed her up with another Nigerian woman with a slightly similar name and a poor immigration history. Following the SAR, she was able to challenge the Home Office.”
Under this Bill, she would not have been able to do that, and the NHS would have lost a diligent trained nurse.
There are so many other such examples, Madam Deputy Speaker, that I could detain the House longer than you would feel was sensible, so I will not read them out. None the less, I say to Ministers that they exist. If they bothered to read them—I urge them to do so—they would see that these are real people. If this legislation goes through with the immigration exemption, the Ministers on the Front Bench would be responsible for ruining the lives of hundreds, if not thousands, of innocent people, because they would have given the Home Office—the Executive—too much power, which means that it could not be held to account.
Andy Slaughter (Hammersmith) (Lab)
I am very pleased to follow the right hon. Member for Kingston and Surbiton (Sir Edward Davey), not least because it allows me to dispense with the first part of my speech, which will please the whole House. He has made exactly the right points in relation to what is known as the immigration exemption. It makes unnecessarily contentious a technically complex and, as Members on both sides of the House have said, necessary Bill. It makes EU citizens second-class citizens and allows the Home Office to collect and store data in a way that undermines other protections in the Bill, which means that it is something that we should not support. I hope that the Government will reconsider it.
I will spend what time I have dealing with the other matter of contention, which a number of Members on both sides of the House have raised: the amendments made in the other place. There are two. One is a requirement on the Government to proceed with a Leveson 2 public inquiry, and the other would effectively bring in, for the purposes of data protection offences, section 40 of the Crime and Courts Act 2013, which introduces costs. It would ensure that individuals affected by data protection offences—one could read across into defamation and other matters—committed by national newspapers had affordable access to justice in any action against those newspapers. That is the essence of it.
The second part of the Leveson inquiry was promised to the victims of press abuse by all party leaders in the clearest possible way, and it is difficult to see what has significantly changed since that time. Despite that, and perhaps even more surprisingly, despite the wishes and views of Sir Brian Leveson himself, the Government announced in an arbitrary and rather casual manner in the statement last week their intention to cancel part 2. If we do not have Leveson part 2, we will not know the extent of corruption across newspaper groups, the extent of corrupt relationships with the Metropolitan Police Service, and the extent of illegality and cover-up at newspaper titles.
We need to proceed with Leveson part 2 because we owe that duty to the Hillsborough families, to the families of Milly Dowler and of Madeleine McCann, to Christopher Jefferies and to others who deserve to know the truth about what happened to them. That would have been an uncontroversial thing to say even two or three years ago, but it appears to have been forgotten. The innumerable meetings that now take place between senior members of the Government and senior people in the press—and the paucity of such meetings with the victims—speak for themselves. We have not got to the bottom of the hacking and data scandals at the News of the World, the Mirror Group titles and other newspapers. This issue does not affect only the newspapers of the right or of the left; it affects newspapers across the spectrum.
The fact that Sir Brian is firmly in favour of finishing the inquiry with extended terms of reference—we know this now, although I do not think that anyone who heard the statement last Thursday believed it to be the case at the time—really sets a precedent. I wonder when it has previously happened that the views of an inquiry chairman have been disregarded and overturned in this manner, part-way through an inquiry. If this were a scandal in any other industry, the press would be firmly behind finishing the inquiry. Public confidence in the press, and in us, will suffer if inquiries into press misconduct are abandoned, effectively at the instigation of those who run the media in this country. As I said in an intervention, if we can do this with one inquiry, we can do it with another.
The Government have quite rightly set up inquiries into the Grenfell Tower disaster and the contaminated blood scandal—two extraordinary scandals affecting millions of people across this country and our major institutions. What is to prevent the Government from stepping in at any time and saying, “We’re not happy with the direction. We believe that this inquiry is now irrelevant. We won’t continue it anymore.”? This weakens faith in our constitution.
I turn to the amendments made in the other place regarding section 40 of the Crime and Courts Act 2013. I have heard comments that are just plain wrong, particularly from Government Members. It may just be coincidence that many of them began their remarks by saying that they were former journalists, but they then misrepresented what is intended by—and, indeed, the actuality of—section 40 and the amendments made in the other place. In any event, their comments were miscast.
Cost shifting is often a part of the cost regime in our courts. It is done to increase either access to or the administration of justice. It is done not punitively, but to encourage, and to ensure that justice functions effectively in everyone’s interests. In this case, it works by giving newspapers the option of signing up to an independent regulator that offers compulsory arbitration, or meeting the court costs of reasonable claims made against them. This ensures that members of the public affected by press illegality can either bring a claim under low-cost arbitration or have costs protection in court. Arbitration is cheaper and quicker for both sides.
Newspapers also benefit from cost shifting, because they enjoy costs protection if they are in an independent regulator offering arbitration and a claimant rejects the arbitration service on offer. That is the key point. This is not there to punish newspapers but to protect impecunious claimants. It will also protect small, genuinely independent newspapers and small publishers. One hears that the whole local newspaper industry is against it, but 80% of that industry is owned by the big conglomerates, which have exactly the same interests—financial—as the major national newspaper chains.
The purpose of cost shifting is to enable an individual who—in the way suffered by the Dowler family, Christopher Jefferies and those in the other cases that we are all aware of—has been horrifically maligned and harassed by newspapers to go to court, to get justice, and, in this case, to go to arbitration without the risk of losing their house and savings, or of simply being unable to get into court at all.
That risk was partly resolved—not deliberately; it came about through the way in which the law developed —by no win, no fee agreements, which meant that somebody who had been defamed or had their privacy threatened in this way could go to a lawyer and ask them to take their case. The lawyer would say, “Let’s see if it’s a good case or not,” and if it was a good case, they would agree to take it on a no win, no fee basis. That protected the litigant both from their own costs and from the costs of the other side if they lost. It was no longer the case that if someone took the Daily Mail or The Sun to court, they risked everything because the newspaper group had been able to build up costs on the other side to discourage, in effect, even the most meritorious litigation.
With the passing of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, that option went, and it is far, far more difficult to get any type of no win, no fee assistance, so we are not at that status quo; we have moved several steps backwards, and if section 40 and the amendments tabled in the other place are not passed, litigants will once again be at risk in this way. Low-cost arbitration and the need to incentivise media groups to join that service—not, as the IPSO scheme would, allowing them to pick and choose—is essential to that. It is a low-cost way of doing it, but it works just as much for the press as for the individual litigant.
Apart from the fact that a promise was made to the victims of press abuse, and the fact that this provides cost protection to newspapers and ensures that small and local newspaper groups are protected from powerful and wealthy litigants, cost shifting encourages the use of arbitration, which is quicker and cheaper for all sides and is increasingly a feature of all parts of our legal system. This poses no threat to the local press.
The alternative is IPSO. I was incredulous to hear IPSO described as a move on from the Press Complaints Commission. It is the same people running the same racket, with the same failure to address the issue. The hon. Member for North Herefordshire (Bill Wiggin)—I do not often find myself on the same side of the argument as him—got it exactly right. This is a sham, and if we support it, we are going along with the sham.
This is not about punishing and silencing the press, as though they are the weak vessel—it is about protecting the people to whom all parties and almost every Member who was in this House at the time made a promise: the victims of egregious press harassment who suffered terrible campaigns against them. We forget that at our peril. The Government have simply waited until they think that time has moved on and the heat has gone out of this. Well, I hope that the heat has not gone out of it. I hope that the public and sufficient numbers of Members on both sides of the House will remember the duty that we owe to those victims. These are modest amendments from the other place. The idea that this is in any way tying the hands of the press is pure hyperbole. We need to incorporate the amendments, and we need to fulfil Leveson 2, because otherwise we are failing terribly the victims of press harassment.
Liam Byrne (Birmingham, Hodge Hill) (Lab)
This has been quite a useful debate for rehearsing the arguments and divisions that I suspect we will have when the Bill moves upstairs to Committee. Some of our debate, particularly in the speeches made by Opposition Members, has even been about data protection.
It is probably fair that I start with the note of unity that the shadow Secretary of State, my hon. Friend the Member for West Bromwich East (Tom Watson), set out at the beginning of his remarks. I think there is a great deal of optimism on both sides of the House about the possibilities of technology in the years to come. The philosophical difference is that we genuinely believe that the new world of trade for the years to come will be built on a world of trust. If we are to have a really robust foundation of trust in the digital economy that will take shape over the course of this century, we will need a strong regime of rights. We need rights that are comprehensive and genuinely enforceable in courts, where necessary, and those rights need to live in a democracy that has safeguards, including safeguards around the way in which elections are fought in the digital age—those elections need to be free and fair—with a press that is clean.
The problem with the Bill, as we see it, is that it is an opportunity missed. The Secretary of State argued that it was forensic; we would argue that it is a little bit more piecemeal. It is not haphazard; it is seeking to do a job by incorporating a substantive bit of legislation from Brussels into British law. However, we are troubled that the privacy provisions are not quite robust enough, and that argument was well made by a number of my right hon. and hon. Friends. In particular, the decision not to include the text of article 8 of the EU charter of fundamental rights to safeguard privacy and ensure that adequacy agreements will be there in years to come was an error. The approach is just too risky, as my right hon. Friend the Member for East Ham (Stephen Timms) warned.
These risks of divergence are serious because so much of our exports, in particular to Europe, are services exports. Some 70% to 80% of those services exports may be digitally enabled, so we simply cannot afford any risk whatsoever. We need to put all risk to any future adequacy agreement beyond doubt.
My hon. Friend the Member for Bristol North West (Darren Jones), our man for definitions and a great deal more, made a very effective point about this not being a one-off exercise. This process will endure, so we are trying to make sure that British and European courts interpret privacy law in a way that is continually consistent over the years to come.
We all need to recognise the juggling act that the Prime Minister is trying to perform. We all need to acknowledge with some honesty the creative ambiguity that she sometimes needs to sustain to keep everybody on the train. I think we all recognise the precariousness of her position. We know that her personal position as captain of the ship is not trouble-free, so I think that those on the Treasury Bench will forgive us for not relying on the full weight of a No. 10 press release, as terribly robust as that is, as ensuring that adequacy provisions will be secured through the commitments that she has made to protect privacy. We would much rather rely on the full weight of the law, because that feels like a much more reassuring position.
In the modern economy, there are rights that we need to take into account. Those rights are new and increasingly necessary in the modern age, such as the right not to suffer as a result of decisions made not by humans but by algorithms. My hon. Friend the Member for Cambridge (Daniel Zeichner) made the powerful point that the great risk of algorithms that take decisions is that they may hard-code old injustice into new injustice. That idea should trouble us all. The Bill does not include adequate safeguards against that at the moment, so we will need to address that.
We heard the troubling line of argument in the debate that we should carve out newcomers to this country from the rights and safeguards that are enjoyed by everybody else under the Bill. I have to say to the Minister that the measures on immigration are a mistake. We will seek to delete them, and I hope she accepts that initiative. I was the Immigration Minister who introduced the biggest shake-up to our immigration system for 40 years. I created the UK Border Agency, and I introduced the points system. In my two or two and a half years in the Home Office, I came to learn that our immigration system is not some celestial design—it is a human institution. The Home Office and the immigration system take decisions that are bad or wrong and that need to be corrected. If we delete the protections under the Bill for newcomers, we will put justice in jeopardy. We will genuinely risk denying justice to those newcomers who need information to fight their cases effectively.
I lost cases that were brought because people were able to draw on information through subject access requests, and justice was eventually done in those cases. However, mistakes are made, and I do not think the Minister wants a system that is so prone to error. We have to build in checks and balances to the immigration justice system, and she has perfectly adequate safeguards on crime prevention in the Bill. As a former Home Office Minister, I can recognise what is basically a gratuitous land grab by the Home Office. These powers are not needed, and I hope the Minister will ask her Home Office colleagues to look at the provisions again.
For rights to be real, there needs to be a method of enforcing them effectively, which is why the provisions for collective redress are so important. The shadow Secretary of State talked about the work that we have done with people such as Baroness Kidron in the other place on safeguarding rights for children. A third of internet users are children, and we need to ensure that their rights, along with those of everybody else, are actually enforceable. The idea that a child whose rights are violated will take Facebook to court is, frankly, fanciful. We need to allow consumer organisations and others to take what are in effect class actions, because otherwise the implementation of rights risks being weak, undermining not simply justice, but the strength of our regulatory regime.
We will want to propose other, more comprehensive rights. We are not under any illusions about the Government accepting our data Bill of rights in full, but we want to make sure that such rights are on the table because we are at the start of a process. Just as there were something like 17 Factory Acts during the 19th century, there will be many data protection and e-commerce modernisation Acts over the next 80 years. I am afraid that Members will, for better or worse, have to get used to that process. We think that putting in place a strong framework for rights and enforcement now is just a wise precaution for the future.
As we have heard in many contributions, there will be quite a lot of toing and froing about some of the amendments made in the other place. I hope that many in the House will not take the approach of the hon. Member for North Devon (Peter Heaton-Jones). I feared at times that he was anticipating that we could somehow secure justice regarding suspected historical offences by closing the door, switching off the lights and pretending that nothing had ever happened. I do not think that there are many fields of public policy in which that has proved to be a successful foundation for reform. It is important that we delve into offences that took place in the past.
My hon. Friend the Member for Hammersmith (Andy Slaughter) made some important points. Politicians on both sides of the House made promises to the victims of phone hacking, and it is an extremely dangerous precedent for a Secretary of State to say, “Yes, I know we made promises about an inquiry but, you know what, we don’t think that inquiry, even though it isn’t finished, really should wind its course to a conclusion.” It is not a satisfactory state of affairs when the Executive can intervene and, in effect, seek to stop inquiries in their tracks, in the teeth of opposition—in this case, from the noble Lord Leveson—setting out why they should actually continue.
I hope that many Members will, like the hon. Member for North Herefordshire (Bill Wiggin), argue for the importance of honouring promises made in the past, and indeed of making sure that we have a press regulation regime that balances the interests of a free and fair press with the need not to defame people wilfully. The Government are making an odd argument by asking us to take them seriously when they want to install a new data protection regime, while at the same time short-circuiting an inquiry into the most egregious violations of data privacy that we have ever seen in the public sphere. I am afraid that that approach does not inspire a terrific amount of confidence, so I hope that the Minister and the Secretary of State will listen again to the pleas of Lord Leveson and reconsider their support for the amendments that were carried with such force in the other place. The Government may make their own proposals, but I suspect that there will continue to be a strong body of support in the other place for those amendments.
Stephen Timms
May I take it from what my right hon. Friend says that the official Opposition’s position is that we will support the retention of the amendments agreed in the other place?
Liam Byrne
My right hon. Friend is absolutely right. We will support the retention of those amendments, and we will seek to offer a much more wide-ranging, comprehensive approach, which we think the Government should take. We will offer a much more comprehensive, well-rounded and thought-through system of rights for the digital age. We will offer an effective means of safeguarding those rights through the introduction of new forms of collective redress. We will offer new safeguards that help to protect our democracy and that ensure free and fair elections and press justice.
We will also seek to prompt the Government to confirm precisely when they will modernise the e-commerce directive, because many of the threats to freedom in the digital age will come from the fearsome five data giants of this age, which will need regulating in new ways. I think there is some cross-party consensus about the need for the e-commerce directive to be modernised, so we will table amendments that will encourage the Government to get their skates on. Crucially, however, we will table amendments that put beyond doubt the future of any adequacy agreement with the European Union.
As the economy changes, so must the law. There will be many more data and privacy laws to come in the years ahead. We will encourage the Government to put in statute a framework that is not merely fit for today, but fit for the future.
The Minister of State, Department for Digital, Culture, Media and Sport (Margot James)
I thank all Members for their contributions to this excellent and wide-ranging debate and their lordships for the immense amount of work that they have done on the Bill thus far. Members on both sides of the House want a Bill that protects personal data and allows individuals to maintain control over what is their property and what is important to them, and we want these rights to be enforceable. That is a positive start on which we can all agree.
Various Members, including the hon. Member for Bristol North West (Darren Jones), the right hon. Member for East Ham (Stephen Timms) and the shadow Minister, stressed the importance of the continuity of adequacy post Brexit. The hon. Member for Bristol North West asked what the Prime Minister meant by saying that she wanted to achieve more than adequacy. It was, I am sure, to ensure that the Information Commissioner can continue her excellent contribution to the evolution of the GDPR through her association with the European data protection board, when that comes into being.
The hon. Member for Argyll and Bute (Brendan O’Hara), the hon. and learned Member for Edinburgh South West (Joanna Cherry), the right hon. Member for Kingston and Surbiton (Sir Edward Davey) and many others mentioned immigration. I want to reassure the House that we are seeking not a blanket exemption, but something that can be applied only when complying with a certain right would be likely to prejudice the maintenance of effective immigration control. Every request to exercise a right under the GDPR would still have to be considered on its individual merits, and the rights of appeal required by the GDPR remain in place.
There was a great deal of debate about the freedom of the press. In the short time that I have, I cannot do justice to the fantastic contributions from my hon. Friends the Members for North Devon (Peter Heaton-Jones) and for South Dorset (Richard Drax) and the hon. Members for Edinburgh West (Christine Jardine) and for Keighley (John Grogan). We heard the real show stopper from my hon. Friend the Member for North East Somerset (Mr Rees-Mogg), who was listened to with rapt attention as he contrasted the pretence of freedom of speech with the reality of control, which would be the result of the amendments to which we have been asked to agree. The Government have been clear that we will attempt to defeat them in this place.
We have had a very valuable debate. We have touched on various issues—children and social media, artificial intelligence and cyber-resilience—and there are others that we will address subsequently.
Margot James
I will have plenty of time in Committee to debate with the right hon. Gentleman. I am sure that we all agree that the Bill is important and timely.
Kevin Brennan (Cardiff West) (Lab)
On a point of order, Mr Speaker. I note that the Minister has not yet concluded her remarks, but it seems that she might do so before the moment of interruption. There are two outstanding motions on the Order Paper to be voted on following the decision on Second Reading: the programme motion and the money resolution. I note that, under Standing Order No. 83A(7) and Standing Order No. 52(1)(a), they are not subject to debate, but if there were any time left over between the conclusion of the Minister’s remarks and the moment of interruption, would it be possible to discuss those two motions?
Mr Speaker
No, but the hon. Gentleman raises an interesting point. The fact that he has done so has given me an opportunity to clarify the matter for the benefit of the House.
Andy Slaughter
Further to that point of order, Mr Speaker. If the Minister has concluded, or was at the point of concluding, her remarks, may I seek your guidance? We have had an excellent and very full debate on this matter. I was here for the opening speeches and decided to stay and speak in the debate. I noted that the Secretary of State said that this is a Bill with 208 clauses. We have had a full debate, but the Minister, in a matter of two or three minutes, has not in any conceivable way replied to it, despite having time available to do so. What can be done to ensure not only that this House has a full debate, but that matters are responded to by the Government, as they are duty bound to do?
Mr Speaker
It is very much for a Minister to decide for how long he, or in this case she, responds to a debate. I understand that the hon. Gentleman is somewhat agitated. I am saddened to see him in a state of perturbation about the matter, but there is no immediate relief, other than the fact that he has registered his concern and it is on the record. There is, however, nothing to be added by me in response to his point of order.
Daniel Zeichner
Further to that point of order, Mr Speaker. As my hon. Friend says, this has been a very long debate in which serious issues have been raised by Opposition Members. This debate was about not just Leveson, but data protection, which is particularly important for the future, and Opposition Members asked some major questions. I asked about the future of research. Researchers are very concerned, but they have not had an answer from the Minister. Is there is anything you that can suggest, Mr Speaker, that would enable them to get an answer this evening from the Minister?
Mr Speaker
It is for the Minister to decide how long she replies. I am sorry if the hon. Gentleman feels that his points have not been responded to by the Minister, but she is legendarily succinct, and has obviously decided—independently, or in consultation with her colleagues on a collective basis—that tonight shall be no exception to the general principle of Jamesian succinctness.
Margot James
I commend the Bill to the House.
Question put and agreed to.
Bill accordingly read a Second time.
Data Protection Bill [Lords] (Programme)
Motion made, and Question put forthwith (Standing Order No. 83A(7)),
That the following provisions shall apply to the Data Protection Bill [Lords]:
Committal
1. The Bill shall be committed to a Public Bill Committee.
Proceedings in Public Bill Committee
2. Proceedings in the Public Bill Committee shall (so far as not previously concluded) be brought to a conclusion on Tuesday 27 March 2018.
3. The Public Bill Committee shall have leave to sit twice on the first day on which it meets.
Proceedings on Consideration and up to and including Third Reading
4. Proceedings on Consideration and proceedings in legislative grand committee shall (so far as not previously concluded) be brought to a conclusion one hour before the moment of interruption on the day on which proceedings on Consideration are commenced.
5. Proceedings on Third Reading shall (so far as not previously concluded) be brought to a conclusion at the moment of interruption on that day.
6. Standing Order No. 83B (Programming committees) shall not apply to proceedings on Consideration and up to and including Third Reading.
Other proceedings
7. Any other proceedings on the Bill may be programmed.—(Rebecca Harris.)
Question agreed to.
Mr Speaker
Well, it is most unusual that we are proceeding in quite such an efficient way before we have reached the moment of interruption. It is constitutionally notable, and colleagues will wish to take account of it, either for the purposes of repetition in the future or avoidance, depending upon their taste.
Data Protection Bill [Lords] (Money)
Queen’s recommendation signified.
Motion made, and Question put forthwith (Standing Order No. 52(1)(a)),
That, for the purposes of any Act resulting from the Data Protection Bill [Lords], it is expedient to authorise the payment out of money provided by Parliament of:
(1) the payment out of money provided by Parliament of—
(a) any expenditure incurred under or by virtue of the Act by a Minister of the Crown or a government department; and
(b) any increase attributable to the Act in the sums payable under any other Act out of money so provided; and
(2) the payment of sums into the Consolidated Fund.—(Rebecca Harris.)
Question agreed to.
Business Without Debate
Delegated Legislation
Mr Speaker
The Secretary of State for Digital, Culture, Media and Sport was clearly most animated at least by the importance of the retention of his own passport, and we are most grateful to him for that. There is no surprise there.
Committees
Mr Speaker
With the leave of the House—in the light of the development of tonight’s proceedings, I say this with a modicum of apprehension—I propose to take motions 10 to 14 together.
Ordered,
Consolidation, &c., Bills (Joint Committee)
That Mims Davies and Amanda Milling be discharged from the Joint Committee on Consolidation, &c., Bills and Bim Afolami and Colin Clark be added.
Finance
That Mr William Wragg be discharged from the Finance Committee and Luke Graham be added.
Northern Ireland Affairs
That Maria Caulfield be discharged from the Northern Ireland Affairs Committee and Mr Robert Goodwill be added.
Petitions
That Rehman Chishti be discharged from the Petitions Committee and Luke Hall be added.
Women and Equalities
That Vicky Ford be a member of the Women and Equalities Committee.—(Bill Wiggin, on behalf of the Selection Committee.)
Mr Speaker
We come now to the Adjournment. In the extraordinarily improbable and inconceivable event that there are Members present who do not wish to hear the hon. Member for Brighton, Pavilion (Caroline Lucas) on the subject of the liquidation of DMB Solutions, I entreat them, please, to leave the Chamber quickly and quietly, so that the substantial number of Members remaining can listen to her oration with due attention.
DMB Solutions: Liquidation
(6 years, 8 months ago)
Commons ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Caroline Lucas (Brighton, Pavilion) (Green)
The issue that I should like to raise tonight has arisen in my constituency in recent weeks, but it has national implications. I am also sure that it will be familiar to many Members of this House: namely, the sudden collapse of a private sector business—in this case, a building services company. That collapse has left my constituents out of pocket and in some cases literally out of their home. Understandably, they are angry and frustrated by the response, or more accurately, the lack of it from the relevant state bodies.
DMB Solutions, a Brighton-based building and design company, went into voluntary liquidation over the new year. It had operated in my constituency since about 2009 and, to a slightly lesser extent, in the neighbouring constituencies of the hon. Member for Hove (Peter Kyle), who I am delighted to see in his place, and the hon. Member for Brighton, Kemptown (Lloyd Russell-Moyle). The fallout from the collapse of the company has gained national media attention, owing to both the number of people affected and the scale of the financial losses they suffered. More than 400 local people have joined a victim support group on Facebook set up more than a year before the company collapsed—a point to which I will return—while a significant number have lost in excess of £50,000. This was money saved up over years and paid to DMB for work that will now never be completed, or at least not by DMB Solutions.
It has been shocking and heart-breaking to meet my constituents and hear at first hand the devastating situations in which many have been left by the demise of the company. For example, Norma Smith, who is 84 years old, employed DMB Solutions last summer to build a wet room with a toilet in the downstairs of her house in anticipation of one day being unable to use the stairs. In common with many others who have complained to me about DMB Solutions, Norma paid in full before work commenced. She reports that the contract time of three to four weeks for completion stretched into months and months, during which she was confined to living in her bedroom.
Norma eventually cancelled part of the project in a bid to save costs, but that money was never returned to her. Moreover, a leaking pipe caused flooding in her home and damage to floorboards that she had to pay a carpenter to repair. The project was never fully completed by DMB Solutions, and Norma has since had to employ another building company to create a shower space instead of the wet room originally envisaged. She says:
“As the weeks went by with very little work being carried out, downstairs a building site, I become very exhausted. In the end, I had to ask my son-in-law to take on all communication with the company, and with Trading Standards. I do hope that the company will be fully investigated, as the damage, not only in financial terms but also the emotional toll, has been huge.”
The psychological impact of such cases—the stress and anxiety caused, as well as the financial problems—cannot be overestimated.
Peter Kyle (Hove) (Lab)
The hon. Lady is making a powerful point. To add to her catalogue of constituents, I can speak of those who have turned to me, such as Alison, who gave £30,000 to this company six days before it went bust. It knew it would not fulfil the order, yet it took £30,000 from somebody—in the full knowledge that it would not complete the work. Does the hon. Lady not think that in such cases the authorities should investigate fully to ensure that the full force of the law is on the side of people such as Alison, not of the directors, who were clearly ripping her off?
Caroline Lucas
I thank the hon. Gentleman for his intervention, and I agree entirely. It is a point to which I will return shortly. As he says, the company must have known six days before it chose to go into liquidation that it was about to do that. I would have thought that to seek tens of thousands of pounds just days before was criminal—I would have thought it was fraud—but we are having great difficulty prosecuting the case.
I want to share one last story from a constituent who told me:
“My partner and I started a project with DMB Solutions in May last year. The project – to rearrange rooms in the loft extension, and create an extension housing a large open plan family room downstairs – was intended to take four weeks and cost about £95,000. We did some research on the company and were unable to find anything concerning. We had seen several boards outside houses and were impressed by the website and by the promises of the design consultant. However, in early January this year, we found ourselves in the position of having an upstairs with no heating, water or Building Control approval, and a downstairs with holes in the ceilings, unattached electrical cables hanging through ceilings, damage to rooms which were outside the scope of works, and a water system which does not provide enough hot water for a bath. We had paid all the money in accordance with the staged payment plan we had signed, so we are £60,000 out of pocket, and our lovely home has been ruined. These events have rocked me to the core and I still cannot quite believe this awful thing has happened to us. In my opinion, DMB Solutions have acted incompetently, immorally and illegally. What I find so distressing is that various bodies and organisations that exist partly to protect the public in these situations seem to have been ineffectual, enabling the company and Directors to continue to operate.”
Jim Shannon (Strangford) (DUP)
Today it is DMB Solutions and Brighton Pavilion; tomorrow it will be another company in Edinburgh, Cardiff or Belfast—this is a problem across the whole United Kingdom. Does the hon. Lady agree that it is essential that subcontractors be able to continue with and be paid for work that has been started and that this be a priority for the liquidators, because sometimes small contractors are able to finish the job for a small price?
Caroline Lucas
The hon. Gentleman has drawn attention to a very important issue. It is not just individual householders who are suffering; many companies are also suffering, and the smaller ones may face bankruptcy as a result of not being paid by the other companies. The ripple effect of these actions extends very far, and of course it is by no means limited to one part of the country. This is happening in all the nations of the United Kingdom.
My constituent went on to say:
“I understand that Trading Standards and the Federation of Master Builders had been aware of complaints about this company for more than a year. I also understand that DMB Solutions owed…half a million pounds in taxes.
How can it be that they were still allowed to be operating, and taking money from new customers for work that it was likely they had no intention of completing satisfactorily? I am sure that had I personally owed a proportional amount of money in taxes, someone in authority would have been having a stern conversation with me about it.”
I think that my constituent was entirely right.
One of the striking features of the many cases brought to my attention is the fact that—as we heard from the hon. Member for Hove—the office of DMB Solutions was sending out invoices to customers for work yet to be undertaken, right up until a few days before the directors of the company called in the liquidators on 29 December. For example, Mandy Stewart, a teacher, contracted with DMB Solutions last summer to do a loft conversion at her home. Her partner’s daughter and granddaughter were moving in with them, and work began in mid-October. The project was never completed. Mandy was left with a partially finished and uninhabitable loft conversion, damage to her neighbour’s roof, and damage to her ceilings and light fittings because a tarpaulin had been badly fitted by DMB’s workers during wet and windy weather.
Having paid some £41,000 to DMB Solutions, Mandy is now faced with finding further funds to have the work completed. She also needs to pay for inspection by a structural surveyor to ensure that what has been done so far is safe, to engage building control representatives to sign off the work and to have scaffolding re-erected because the previous company took theirs down when they had not been paid by DMB Solutions.
Furthermore, on 21 December, Mandy received an invoice for almost £10,000 for the next stage of the project. It was not actually due until January, but the covering e-mail from DMB Solutions stated that it was being sent early because the DMB offices would be closed during the Christmas break. As by then Mandy had serious concerns about the work that had been done, she did not pay, but, as she says,
“it is extremely hard to believe that the DMB directors did not know that the company was insolvent on 21 December 2017, barely four working days before they called in the administrators.”
From the accounts that I have been given, it is clear that Mandy is far from alone in having been invoiced by DMB Solutions for a large sum of money, by email on or about 21 December, when the directors must have known that the company faced imminent insolvency. In fact, it is clear that the company was signing up new customers as late as mid-December. Charlotte Preston paid £11,000 to DMB Solutions for an extension to her home on 15 December, but no work was ever started. Even more disturbingly, it is clear that disgruntled customers of DMB Solutions were reporting serious concerns about the company to trading standards as far back as early 2016.
According to accounts filed with Companies House on 11 December, by the time the company went into liquidation on 2 January this year, it owed no less than £542,000 to HMRC in unpaid VAT. Indeed, it seems that it may have been trading unlawfully for a considerable time before its collapse. One member of the Facebook victim support group, Andrew Painton, first raised concerns with trading standards that DMB Solutions was trading fraudulently, rather than just incompetently, in March 2017, and has done so many times since then. In January this year, Andrew told me:
“To say that the performance of Trading Standards has been lamentable would, in my view, be over praising them. They could have done so much more to protect the customers who became victims of this company during the latter nine months of 2017.”
He continued:
“In the Autumn of 2017, a fellow member of the Facebook victim support group submitted a Freedom of Information request to Trading Standards, and this revealed the escalating number of complaints in recent years about DMB Solutions. This did galvanise Trading Standards into action…but it was too little too late.”
I recognise, of course, that Ministers are not responsible for the collapse of private sector businesses, but I hope that the Minister will be able to help this evening by providing clarity about what my constituents can do. Specifically, they want to know how to try to obtain financial recompense and how to ensure that the directors of DMB Solutions cannot simply walk away from their debts—both to their unfortunate customers and to the taxpayer—and start all over again by forming a new company. I can find no adequate Government guidance on either of those points. If there is no comfort under existing legal frameworks, perhaps the Minister can point me to the changes that would be required to company law, or any other laws, that would allow my constituents to be recompensed for their suffering.
Since December, the local trading standards office has been collecting evidence from those affected by the collapse of DMB Solutions. It has also advised them to make a complaint to the Action Fraud line, which reports to the National Fraud Intelligence Bureau, based in the City of London police service. Trading standards in Brighton also says that it plans to submit a report to the economic crime unit of Sussex police. However, the Action Fraud line appears to focus on cyber-crime, rather than incompetently run or even unlawfully run building companies, and the House of Commons Library has been emphatic in advising me that there is nothing that trading standards will now be able to do for those of my constituents who have lost out as a result of the collapse of DMB Solutions. The Library tells me that the appropriate body, at least in terms of seeking to get the directors of DMB Solutions disqualified from acting as company directors in future—something my constituents are understandably keen to see happen—is the Insolvency Service.
My office has consulted a local lawyer specialising in consumer rights, who similarly suggested that the Insolvency Service, not trading standards, is the appropriate body for my constituents to complain to about DMB Solutions. However, the Insolvency Service phone line no longer exists, and its website has a small amount of hard-to-find information on it, stating that it can carry out a confidential investigation or pass complaints on to another public body if they are serious enough, and that if it finds anything wrong and has enough evidence it might ask a court to close a company down or disqualify the company’s directors. It might also carry out a criminal investigation if it finds the company has committed an offence.
However, Andrew Painton of the Facebook victim support group tells me that he has twice complained to the Insolvency Service about DMB Solutions, but on each occasion received only a standard response saying that the service was not considering an investigation against the company. Moreover, the Insolvency Service advises that if a company has already gone into administration, into receivership or is being liquidated, complaints need to be directed to the official receiver or insolvency practitioner. I have emailed them myself, but to date have not had a response.
Trading standards—which appears to have done nothing when it had the chance to do so—is now acting as if it is responsible. It is doing so in concert with Action Fraud and the National Fraud Intelligence Bureau, which does not appear to me to have any obvious role in such a situation. My constituents are confused and they need clarity about who is responsible for ensuring enforcement of the law against the directors of DMB Solutions. In short, it is all about as clear as mud.
While I do not, of course, expect the Minister to accept any responsibility for the collapse of DMB Solutions, I do hope he will be able to set out, clearly and authoritatively, which public body or bodies are now responsible for gathering evidence from my constituents and considering what action needs to be taken against the directors of the company. I would also like to know whether the Minister agrees that the Department should do more to ensure that members of the public have access to reliable, accurate information when such problems arise. People need to know which body to turn to, and what they can expect that body to do, first, when they experience such shockingly poor service by a private sector business—as numerous customers of DMB Solutions clearly did for at least a year before the company collapsed—and, secondly, when, as in this case, a business goes into liquidation and the directors apparently disappear.
More particularly, on behalf of my constituents, I would like the Minister to answer the following questions. If the Insolvency Service is responsible, is it good enough to have a few sparse paragraphs of so-called guidance for members of the public hidden away on a corner of its website? I do not think it is. Could there not be a single, well signposted and advertised point of contact—a one-stop shop—for members of the public who fall victim to the poor business practices and eventual collapse of a limited company like DMB Solutions? Is there perhaps a role for the Citizens Advice consumer helpline here? Currently, the helpline appears to refer only to trading standards, but what if trading standards is not the appropriate enforcement body, as we have been told it is not in this case? Could the appropriate enforcement body, whichever it is, be facilitated and resourced to take a more proactive approach to ensuring that, in such a situation, directors of a failed company are disqualified from acting as directors in future if there are grounds for such disqualification?
I appreciate that there are a number of questions, but I greatly look forward to hearing the Minister’s response, not least because many families and individuals in my constituency are depending on it.
Mr Speaker
I call the Under-Secretary of State for Business, Energy and Industrial Strategy, the hon. Member for Watford (Richard Harrington) to respond to the debate.
The Parliamentary Under-Secretary of State for Business, Energy and Industrial Strategy (Richard Harrington)
Thank you, Mr Speaker, for such a lengthy and erudite introduction. I expected nothing less, and I was not disappointed.
The hon. Member for Brighton, Pavilion (Caroline Lucas) has brought a serious matter to the House, and I thank her for raising this important issue. I am also grateful for the interventions and contributions from the hon. Members for Hove (Peter Kyle) and for Strangford (Jim Shannon). We have heard terrible stories about their constituents. I have to say that I was not surprised, however. I had heard such stories before, being an occasional reader of the Brighton Argus, and I know that the hon. Lady is not just describing a one-off here. It is the job of the Insolvency Service, the Department for Business, Energy and Industrial Strategy and the entire trading standards system to do what they can to provide recompense for her constituents.
Peter Kyle
I am pleased to hear that the Minister reads the Brighton and Hove Argus. He has mentioned several of the agencies that people can turn to in these situations, but is it not the case that the landscape of regulation is very complicated? The constituents that we have been describing today simply do not think that any one agency has a grip on such situations.
Richard Harrington
I thank the hon. Gentleman for his intervention. I hope that I will be able to partly satisfy him with the comments that I am going to make. If not, I will be happy to meet him and the hon. Lady, representing the Greater Brighton constituencies, to take up any further points.
The insolvency regime is an important part of the framework of business, even though it has to deal with the unintended consequences of it. To put this into perspective, levels of insolvency are low, but when it does happen—particularly in consumer-facing companies such as this building company—it can have a significant impact on customers, employees and suppliers. It is an unfortunate fact of life that companies sometimes have to cease trading without paying their debts, and that when they do, creditors can often suffer, with little or no chance of receiving their money back. This is exacerbated in circumstances such as these when customers have paid for work in advance, because those people have often saved for some considerable time to have improvements made to their house, for example.
In many cases, insolvency proceedings such as liquidation will follow. These allow an expert in insolvency, who is authorised and bonded, to be appointed to oversee an orderly winding-up of the company’s affairs, to sell its assets and to make dividend payments to creditors from the funds available. It is an important principle of the insolvency regime that unsecured creditors rank equally when it comes to receiving such payments. Only certain creditors, such as employees, are paid in priority.
Hon. Members will appreciate that I cannot comment specifically on the liquidation of DMB at this early stage of the proceedings. The liquidators have an important task to carry out in winding up the company and making such reports to the creditors as are appropriate. I am aware that complaints have been made to trading standards—
Richard Harrington
I hope that the hon. Gentleman will bear with me. I do not want to run out of time without having tried properly to answer all the questions. If there is time left at the end, I will be delighted to give way to him.
I am aware that complaints have been made to trading standards, and we will have to wait for that authority to reach its conclusions. In the meantime, however, we are not sitting idly by. All traders are subject to consumer protection regulations which, for example, require them to provide clear and full information and allow consumers to unwind a contract if they have been the victim of a misleading commercial practice. It is right that any alleged breaches of those regulations should in the first instance be reported to trading standards.
I will set out how the regime impacts on creditors. The first thing to say is that directors who do not play by the rules can expect to be held accountable. It is a long-established principle of company law that directors must act in the best interests of their company, but once the company approaches insolvency, their first duty must be to the creditors. I note from the hon. Members’ comments that, in this case, some of the money was paid a few days before insolvency. Without speaking specifically about this firm, I can say that that is highly relevant to the possible actions open to the authorities. I will say more about that in a moment.
In the majority of company insolvencies, the law is obeyed. Once it has been established that the company cannot pay its debts, a responsible director should take steps to protect creditors, and if a solution to the problem cannot be found, the company may enter into formal insolvency proceedings.
However, not all directors are that diligent. Sometimes, they bury their heads in the sand and continue to run the company as if nothing has happened, or they try to use money owed to creditors as working capital, so that the company may continue to operate, and pay their own salaries. In those few cases, the position of creditors, such as customers who have paid for work in advance, may deteriorate, which would seem to be the case here, given what we have been told. Such directors may be subject to disqualification proceedings, which if successful will prevent them from acting as a director of a company, whether formally appointed or not, for a period of between two and 15 years.
The Government are responsible for disqualification of unfit directors via the Insolvency Service, which assesses insolvent company cases to decide whether to investigate the conduct of the directors and, where appropriate, seek disqualification orders. A person who acts as a director while disqualified is committing a criminal offence and, further, they are personally liable for any debts of a company incurred while they were breaching the disqualification.
Caroline Lucas
The people who have been affected have already contacted the Insolvency Service, which has said that it will not investigate, so where do they go now?
Richard Harrington
At this juncture, the hon. Lady and her constituents have to accept that this is the beginning of the proceedings.
An investigation may lead to evidence of criminal offences committed by directors, such as fraud. In those cases, directors may face prosecution as well as disqualification proceedings. All that will usually start—this is the relevant point—with the receipt of a report on the conduct of the directors of an insolvent company, which must be submitted by the liquidator within three months of their appointment. Having said that, in deciding whether there should be an investigation, all sources of information will be considered, including information from creditors of the company, its customers, its records and other agencies. If the hon. Lady’s constituents have information about the conduct of the directors of DMB—it appears that they certainly do—that they feel would help to decide whether there should be further investigation, they may, and should, submit it to the Insolvency Service, which has a link on its website for precisely that purpose.
Rogue directors will also discover that they may be personally liable for a company’s debts if it traded while they knew, or ought to have known, that it was insolvent and creditors suffered as a result. While I cannot comment on this particular case, if the circumstances that the hon. Lady described are correct—I have every reason to believe that they are because they are based on what her constituents have told her—the firm was trading when the directors knew or ought to have known that the company was insolvent, and creditors have suffered. A court can order that they repay money to the company out of their own pockets if it can be shown that their actions, or inaction, have harmed creditors. In this situation, the directors would have breached their duty to the creditors of the company, which has the serious effect of preventing the directors from hiding behind the normal veil of incorporation that is a limited company.
Richard Harrington
I am going to run out of time, so I will continue. I ought to emphasise again at this point that I cannot comment specifically on the case of DMB or indeed the conduct of its directors.
I mentioned earlier that the Government continue to look for ways to strengthen regulatory and enforcement systems, and disqualification is one area where there have been recent improvements. From 2015, the powers of the Insolvency Service to investigate have been expanded, and the system for liquidators reporting on the conduct of the directors has been modernised, allowing for quicker and more efficient investigations. In addition, there is a new process whereby if a director is disqualified, and it can be shown that their actions caused direct losses to creditors, the court can order that they make a payment from their own pocket to compensate creditors or the estate. These compensation orders were introduced in the Small Business, Enterprise and Employment Act 2015.
The insolvency of a construction company such as DMB may often result in some customers having paid for work that it was not possible to complete. It is not unusual to ask the customer for a proportion of the payment up front, such as in the circumstances described by hon. Members tonight. Those circumstances may be different from insolvencies that may happen when directors behave perfectly properly and get into financial difficulties, but I will not describe that as the “normal” way, because few companies do become insolvent. There are things that become a serious matter of misconduct on the part of directors and that lead to periods of disqualification, personal liability and possibly prosecution proceedings being sought.
Caroline Lucas
Apparently, we have a couple more minutes. The Minister says there is provision to get a court to order a pay-out from people’s own pockets. Does that still apply if it was a limited company?
Richard Harrington
I believe that is the case, but I do not want inadvertently to mislead the House, so I will write to the hon. Lady on that subject to answer specifically and properly.
I am genuinely sorry, as anybody would be, for the hon. Lady’s constituents following this business with DMB. It is a horrible situation, but I reassure her and other Members that there will be full consideration of whether there should be further investigation of the circumstances of this insolvency. [Interruption.] I have been given a piece of paper saying that the answer to her question is, “Yes, it does.” I will write to her anyway, because I promised that I would.
I have craved your indulgence enough, Mr Speaker—I think I have one minute left—and I hope I have been able to reassure the hon. Lady that the insolvency legislation is robust in dealing with directors who abuse the principle of limited liability. If she and her Brigtonian, Hovian and Portsladian colleague, the hon. Member for Hove, would like to meet me or the relevant officials, I am happy for them to do so.
Paul Girvan
Is it possible for protected creditors, such as Her Majesty’s Revenue and Customs in respect of VAT, to allow flexibility for those who are in most need? We are sometimes talking about the widow’s mite here.
Richard Harrington
That is not currently the situation. As the hon. Gentleman will know, some creditors are protected above others, such as banks with mortgages, and we have to be careful that companies can legitimately borrow money and pay their taxes.
Caroline Lucas
The hon. Member for Hove (Peter Kyle) and I would be grateful for the meeting the Minister describes. We will follow up with his office.
Richard Harrington
I apologise for the fact that in some cases I may not have been able to answer as fully as I had hoped.
Question put and agreed to.
Ministerial Correction
(6 years, 8 months ago)
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Education
(6 years, 8 months ago)
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Thangam Debbonaire (Bristol West) (Lab)
All the focus on structures is taking us away from the real issue, which is that this weekend even Tory party donors and academy chain heads were talking about real-terms cuts to funding. That is what I am seeing in the schools in my constituency. Will the Government face up to the real crisis, which is the real-terms cut in school funding?
Damian Hinds
There is more money going into our schools in this country than ever before. We know that real-terms funding per pupil is increasing across the system, and with the national funding formula, each school will see at least a small cash increase. [Official Report, 29 January 2018, Vol. 635, c. 536.]
Letter of correction from Damian Hinds:
An error has been identified in the response I gave to the hon. Member for Bristol West (Thangam Debbonaire) in Education Questions on 29 January 2018.
The correct response should have been:
Damian Hinds
There is more money going into our schools in this country than ever before. We know that overall real-terms funding per pupil is being maintained between 2017-18 and 2019-20, and with the national funding formula, each school will see at least a small cash increase.
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British Sign Language: National Curriculum
(6 years, 8 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.
This information is provided by Parallel Parliament and does not comprise part of the offical record
Ian Austin (in the Chair)
I draw Members’ attention to the fact that today’s proceedings are being made accessible to people who are deaf or hearing-impaired. The interpreters are using British Sign Language, and Parliament TV is showing a live, simultaneous interpretation of the debate. I call Liz Twist to move the motion.
Liz Twist (Blaydon) (Lab)
I beg to move,
That this House has considered e-petition 200000 relating to British Sign Language being part of the national curriculum.
It is an honour to serve under your chairmanship, Mr Austin. Last September, I had the pleasure of meeting Erin, a young woman involved in the National Deaf Children’s Society. Erin told me very clearly that many young people such as her who are deaf feel strongly that British Sign Language should be taught in schools, and that it should become a GCSE subject. As a result, more young people would be able to learn BSL, and it would be properly recognised as a language qualification, equal to other GCSEs. Erin’s determination, and her clear explanation of why BSL should be a GCSE subject made a lasting impression on me. When today’s petition, created by Wayne Barrow, who is in the Gallery, came before the Petitions Committee, I was keen to speak on it, and to introduce it on behalf of Wayne, the many other petitioners and Erin.
Other hon. Members on the Committee were very conscious that, although the petition had not reached 100,000 signatures, which is the usual threshold, the issue should be considered by the House, because it is difficult to ask for 100,000 signatures when fewer than 100,000 people speak BSL as their first language. The Committee was also very keen that the debate be signed, so that young deaf people, and the not so young, could follow the debate as it happened—a first for a live debate in this House. I hope it is the first of many, as Parliament reaches out and becomes more inclusive. I thank our signers, the Committee and the House staff who made it possible.
What a day to be holding this debate, after the British film, “The Silent Child”, won the Oscar for best live-action short film last night. Furthermore, the acceptance speech by actress Rachel Shenton was signed—another achievement, and another step forward.
Justin Tomlinson (North Swindon) (Con)
The hon. Lady is making a powerful speech. Maisie Sly, the six-year-old actress in the film, who is profoundly deaf, is one of my constituents. The mainstream state school that she goes to has embraced sign language, which has really inspired lots of young people, who want to take it up. As the former Minister for Disabled People, I know that we have a chronic shortage of BSL interpreters in this country. If we can tap into that inspiration, we can solve more problems and help people like Maisie, whom we are very proud of in Swindon.
Laura Smith (Crewe and Nantwich) (Lab)
While I was training to become a primary school teacher during the early 2000s, I completed a placement in a mainstream primary school that had fully embraced the integration of all children. Teachers spoke with a special microphone that was tuned into the children’s implants, and every session was signed. All the children benefited, and I benefited as a teacher; everyone benefits from this. I also congratulate Rachel Shenton and Maisie—what an amazing achievement. Let us hope that we see plenty more signing going on in Parliament in every debate.
Liz Twist
I thank my hon. Friend for her intervention. She gave a good example of how everyone benefits from BSL and signing, which is an idea that I will touch on later.
As I was saying, yesterday “The Silent Child” won an Oscar. Starring six-year-old Maisie Sly and Rachel Shenton, it tells the story of a four-year-old profoundly deaf girl who struggles to communicate until she learns sign language. I am sure that all Members will join me in sending our congratulations to Maisie, Rachel and the team that produced the film. Now all I have to do is follow that.
Moving on to the petition itself, the petitioners ask for BSL to be part of the national curriculum. They point out that about 50,000 people in the UK use BSL, that many children are born deaf and that those children should be given
“a better chance at a more integrated future.”
Thelma Walker (Colne Valley) (Lab)
I commend my hon. Friend on securing today’s debate. Deaf children should be able to interact with their peers as much as those children who can hear. Does she agree that a simple solution to make our education system truly inclusive would be for the Department for Education to include British Sign Language in the national curriculum for all schools and all children?
Liz Twist
I thank my hon. Friend for that intervention. I agree with that statement, and I hope to explain why.
The petitioners want BSL to be part of the national curriculum, giving better life chances to young people who are deaf. They believe that if BSL becomes part of the national curriculum, that will even up the chances of deaf young people being able to play a full part in school and attain the best results they can.
Let us look at the case. Research by the National Deaf Children’s Society into the attainment of deaf children in 2017 shows that deaf children continue to underachieve throughout their education compared with other children. Although the Department for Education claimed recently that attainment for deaf children is at an all-time high, the latest figures show that the attainment gap between deaf children and children with no identified special needs is widening, with the gap at GCSE level being particularly worrying. In 2016, 41.3% of deaf children achieved the expected benchmark of five GCSEs at A* to C grade, compared with 69.3% of children with no identified special needs. That is a difference of more than 20%, which is just not acceptable in this day and age.
All that is in the context of a reduction of 14% in the number of qualified teachers of the deaf since 2011, and a 2% reduction in just one year—2016-17. We know that we have to do more to help deaf pupils to achieve their full potential and that we need to reverse the reduction in the number of teachers of the deaf. We can do that partly by ensuring that young deaf pupils are able to have effective communication. For many, that will be through BSL. BSL has been a recognised language since 2003, but unlike other languages it is not recognised as a GCSE that can be taught in schools.
Mike Hill (Hartlepool) (Lab)
In Hartlepool, there are many initiatives to promote inclusion and the use of BSL. Does my hon. Friend agree that BSL should at least be offered as part of the curriculum?
Liz Twist
I agree with my hon. Friend that that is very important.
A pilot GCSE has been trialled and is ready to go, but the DFE is refusing to give it the go-ahead. I ask the Minister to talk to his colleagues in other Departments, and to work with them to agree the GCSE and make it available to students. The absence of a qualification in BSL with the same status as other GCSEs discourages schools from teaching sign language—a view supported by a survey run by an organisation called Signature, which I will talk about shortly.
However, making BSL a national curriculum subject is about more than just exams. It is about the whole young person and ensuring that they are able to play a full part in school activities, get on with their peers and have a full life in school and out of school.
Bambos Charalambous (Enfield, Southgate) (Lab)
Is my hon. Friend aware that 23,000 children aged under 15 suffer from deafness? Teaching BSL in schools will increase the inclusion of those children, help others understand what it is to be deaf, and therefore help social cohesion in school for all pupils.
Liz Twist
I agree strongly with my hon. Friend’s point. It is really important that deaf children are able to take part fully in the life of the school.
In 2016-17, Signature carried out a survey of more than 2,000 young people, of whom 700 were deaf and 1,400 were hearing, on behalf of the National Deaf Children’s Society youth advisory board, which is made up of young people from across the UK, such as Erin, who believe strongly that there should be more opportunities for young people—deaf or hearing—to learn BSL, which is an officially recognised language in the UK. The survey showed that 91% of young people want to learn sign language, 92% think schools should offer a BSL GCSE, and 97% think BSL should be taught in schools. Their reasons include inclusivity, as doing those things would ensure that deaf people are fully integrated into society and not disadvantaged because others cannot communicate with them effectively; the importance of communication in general; and equality—they likened learning BSL to learning French or Spanish and said that BSL was at least equally important. They thought that being able to use BSL would improve employment prospects, both directly and indirectly, but many did not know of anywhere they could learn it at no or little cost.
I have already mentioned the shortage of qualified teachers of the deaf, but there is a wider shortage. In 2017, the Department for Work and Pensions highlighted that shortages in sign language interpreters have resulted in higher costs for Government programmes such as Access to Work, and have made it harder for deaf people to enter the workplace. A GCSE could lead to more people considering interpreting for deaf people as a career.
I do not want to make this petition downbeat. Some amazing young and older people are getting out there and making the case for BSL and other measures to improve inclusivity. Since this debate was announced, a number of people—not just young people—have contacted me to tell me about the work they are doing. They include Kathy Robinson, who runs Signs for Success, which teaches very young children to sign so they can communicate from their earliest days and do not face the isolation that can come with deafness. She believes that all children—not just those who are deaf—can benefit from learning to sign. People such as Erin and other young people from the National Deaf Children’s Society are out there campaigning on this issue.
As you do these days, I googled Wayne and had a look at his Twitter feed and at the site that he and his friend Lizzy Jay have, on which they sign and sing pop songs—actually, Wayne assures me that he does not sing, because he cannot, but he signs along to pop songs. This debate and this petition are about BSL helping young people to have fun as well as learn. It is not all about serious stuff.
I was contacted by a young constituent from Blaydon— I will not give her name—who told me about her time at school, which was not an easy experience. She is out there pushing for more people to learn BSL. We need to ensure deaf young people have the best possible chance. This petition is one way of ensuring we make progress in this area.
It is about time that some of us MPs had a go at learning BSL. I am sure we could arrange classes in this place. I am sure that is achievable. I will commit to putting my name down to learn, and I know that many other Members will join me.
One of the great things about petitions is that we get a Government response—hon. Members may have seen it on the website—so we know what the Minister may be going to say, although I very much hope he will be much bolder in what he says about the proposal to include BSL in the national curriculum. I am sure other hon. Members will ask him to do the same. Basically, the Government said, “Schools can already teach it. It doesn’t need to be part of the national curriculum. We have no plans to change it.” Well yes, Minister, we know that schools can do it, but those of us who have been teachers, governors or just parents know that the school timetable is already under huge pressure. Without an additional push, in most cases it will not happen. We know from the National Deaf Children’s Society survey that young people are keen and willing to learn BSL, but the Government must help to make it part of the curriculum.
The Government said—a number of people said to me that they took exception to this comment—that BSL is a “useful tool”. It is not just a useful tool; it is an essential part of communicating with the outside world and other people. It is an essential tool for many of our young people, and we should respect that.
In conclusion, I ask the Minister to push the boat out a bit, to respond positively to the request to make BSL part of the national curriculum, and to give our deaf young people the best possible chance.
Peter Aldous (Waveney) (Con)
It is a pleasure to serve under your chairmanship, Mr Austin. I congratulate the hon. Member for Blaydon (Liz Twist) on her work in facilitating this debate.
It is either coincidental or a subliminal message from another place that this debate is taking place on the same day that “The Silent Child” won an Oscar. I have not seen the film, but I understand that sign language is the means by which a whole new world is opened up for Libby, the four-year-old star of the story. Similarly, if BSL is part of the national curriculum and there is a GCSE in sign language, a whole new world will be opened up for thousands of deaf and hard-of-hearing young children and adults around the UK.
Later this month, I shall be accompanying Daniel Jillings from Lowestoft and his mother, Ann, to meet the Minister, at his very kind invitation, so they can explain why a GCSE in sign language is so important to them. Ann highlighted to me that BSL is deaf children’s first language. She said it is discriminatory that they do not have the opportunity to achieve the most widely recognised qualification in their first language, and that it is given a lower status than other languages. It is accepted that there are other accredited qualifications in BSL, but they are not widely available to children in schools and are less likely to be recognised by employers.
Daniel achieved his BSL level 1 three years ago. It was not funded, and Ann tutored him and paid for all the assessments herself. That is not right. There is a compelling case for a GCSE in BSL. First, we must ensure equality. Many other languages are rightly taught at GCSE, including Arabic, Biblical Hebrew, Persian and Urdu. In an outward-looking, pluralistic country, it is right that they are taught, but the deaf and the hard of hearing must be placed on the same level playing field.
Secondly, the continuing absence of a GCSE in BSL is a denial of choice. A survey by the National Deaf Children’s Society’s youth advisory board found that 92% of young people who are deaf or hard of hearing think schools should offer a BSL GCSE.
Finally, the continuing non-availability of a GCSE in BSL puts up a barrier for many young people initially to further and higher education and thereafter to entry into the workplace. A barrier was taken down in Hollywood last night, as Rachel Shenton used BSL in her Oscar acceptance speech. I look forward to meeting the Minister with Daniel and Ann later this month so we can begin work on taking down a barrier in Westminster.
Jim Fitzpatrick (Poplar and Limehouse) (Lab)
It is a pleasure to see you in the Chair, Mr Austin. I am grateful to the Petitions Committee and my hon. Friend the Member for Blaydon (Liz Twist) for the opportunity to debate the issue. I am very pleased to see that the proceedings are being broadcast live with full British Sign Language interpretation.
I should record that I wear two hearing aids, because my hearing was damaged during my time in the London fire brigade, although I am sure age is contributing as well now. I am also chair of the all-party parliamentary group on deafness.
The previous debate, secured in Westminster Hall by the all-party group, was on 30 November, and excellent speeches were made by many colleagues. It was signed, if not live, but that too was a parliamentary first. This is the first debate with simultaneous translation for the live feed, although I understand it has been something of a challenge to make it possible, so I congratulate the House authorities and the Petitions Committee on ensuring that it happens today.
The 30 November debate was wide-ranging, whereas today’s is specific to British Sign Language and making it part of the national curriculum. The APPG has been trying to identify which Minister in which Department we should speak to about this important matter. On 11 September last year I submitted a parliamentary question to the Cabinet Office to ask just that, but the answer was not clear. Subsequently, we chased not only the Cabinet Office but the Department for Work and Pensions, the Department for Education, the Department for Digital, Culture, Media and Sport, and the Department of Health and Social Care for clarification. It now seems to be clear that the Department for Work and Pensions is the lead Department because deafness is a disability, which has some logic.
I therefore need to ask the Minister what discussions he has had with his ministerial colleagues at the DWP about the prospects for a British Sign Language GCSE. As he knows, the DFE has already piloted a GCSE and has it ready to go, but the Government will not give it the green light. One has to ask why not. Perhaps the Minister will explain in the wind-ups whether that is a DWP decision or a DFE one.
Scotland has led the way with the passing of the British Sign Language (Scotland) Act 2015. In 2016 Northern Ireland launched its consultation, and now the Welsh Government are consulting on introducing BSL into their curriculum. England seems to be lagging behind. In 2003, in UK terms, BSL was officially recognised as a language in its own right by the Department for Work and Pensions. In 2009 the UK Government ratified the UN convention on the rights of persons with disabilities, which states, among other things, that we should uphold such rights by:
“Recognizing and promoting the use of sign languages.”
Having said that, however, I think there is a small conflict between the title of the petition and what people were being asked to sign. The title states, “Make British Sign Language part of the National Curriculum”, but the wording asks why BSL is not taught in schools. The National Deaf Children’s Society has reiterated its position on a BSL GCSE: the society does not believe that it needs to be a mandatory part of the national curriculum, but that it might be easier for the DFE simply to approve the GCSE in British Sign Language that has already been piloted. That would make it an option for schools, should they deem it appropriate, but the DFE appears to be refusing to give the go-ahead due to a blanket policy on no new GCSEs.
The NDCS reinforces its view with a variety of points. On equality, if we can teach Turkish, Japanese and Russian—the hon. Member for Waveney (Peter Aldous) came up with some even more obscure examples—but not British Sign Language, the implication is that BSL has a lower status and importance. Surely that could be demonstrated to be discriminatory if it came to the courts. On denial of choice, thousands of young people, whether deaf or hearing, would choose the subject, but they do not get the chance. On discouraging the teaching of BSL, having no GCSE deters teachers because it has reduced status. On reducing options for young deaf people and supporting wider Government initiatives, as we have heard, the DWP accepted in a 2017 report that we have a shortage of registered deaf interpreters, resulting in higher costs for such services and making it harder for deaf people to enter the workforce.
My questions for the Minister include the following: if the Department has a ready-to-go GCSE, why not authorise it? Why encourage schools to teach BSL without affording them the chance to benchmark their performances? Why offer GCSE equivalents in the form of national vocational qualifications but not a GCSE? I think—I suspect the NDCS does too—that the strongest of those points was the first: the question whether the decision not to support a BSL GCSE is discriminatory. The society promotes the issue first as a matter of law and, were a case to come before the courts, the Government could be forced to act.
I do not think that the Government should be forced to act; I think they should do so voluntarily. They should not be embarrassed or shamed by Edinburgh, Cardiff and Belfast for dragging their feet on the matter. In my view, that is doing not only a great disservice to deaf English schoolchildren but much more—it is tantamount to insulting them. Parliament is saying to the thousands on thousands of youngsters for whom British Sign Language is a primary method of communication with each other and the world that Turkish, Japanese, Russian, Chinese, Greek and Portuguese are more important than their language.
The Minister is held in high regard throughout the House for his integrity and honesty, but I have to ask him, are we sure about this? I am sure that he will not want to give a negative response to that question but, equally, I will be very surprised if he can say anything positive today. No, I will be more than surprised—I will be delighted if he can say something more positive on the subject. The least I hope that the Minister can do, however, would be to agree to take the matter back to the Department, to discuss it with ministerial colleagues and to try again. The officers of the all-party parliamentary group and deaf organisations have a meeting with the Minister on the subject, as he knows, next Monday afternoon. We will press our case before him again then.
In conclusion, I am grateful for another opportunity to raise this issue. I am sure that the Minister knows it will not go away. The Government, I think, recognise not only the inconsistency of their position, not only the unfairness in the provision, but the positive opportunities a change of policy would offer. I look forward to the day when we hear of such a change. Today would be great, next Monday would do also, but soon, Minister, please—soon.
Emma Hardy (Kingston upon Hull West and Hessle) (Lab)
In 2015, Samsung produced an advert called “Hearing Hands”. In it, a whole town learns sign language, allowing people to communicate with a deaf man. It is incredibly moving because, as he enters every shop, people sign back to him, communicating with him. That helps to break down the barriers and makes him feel part of wider society. I challenge anyone present who watches that advert not to feel a little choked up and moved by it, or not to feel inspired that that is exactly the kind of society we should have. That is exactly what we want our world to be like. The slogan for the advertising campaign was, “A world without barriers is our dream, too”. Surely that should be the dream of the Government and, of course, the Opposition. I should mention that other companies are available
The Equality Act 2010, which was brought in by the last Labour Government, has done a huge amount to improve the lives of deaf people, but there is still a long way to go. We are in desperate need of more people to learn British Sign Language so that we can get to the stage where we want to be. Schools have the power to create an almost perfect example—a microcosm almost—of what our society should be: welcoming and inclusive for everyone. Schools can play a massive role in improving people’s knowledge of British Sign Language, helping to create a “Hearing Hands” society.
As a primary school teacher, I learned a very limited amount of sign language, and I will definitely be joining my hon. Friend the Member for Blaydon (Liz Twist) to learn more, because it helps to broaden us and open us up to being able to communicate with so many more people. Although BSL is a recognised language within the UK, it is not available as a GCSE that can be taught in schools.
During the conference recess last year, I met people from the National Deaf Children’s Society. They told me that a GCSE in British Sign Language has already been piloted and is ready to go. So yes, our children could already have the option to learn British Sign Language in schools, but the Department for Education is refusing to give the GCSE the go-ahead. I completely agree with the points that have been made about when a teacher is supposed to teach British Sign Language if it is not part of the national curriculum. Personal, social and health education is already being squeezed out to nothing. Even if schools were told, “It’s something you could do,” and desperately wanted to teach it, how many have the time or capacity to actually do that?
I therefore call on the Government to rethink their approach and ensure that a GCSE qualification is made available as soon as possible. Not allowing British Sign Language to be taught as a GCSE alongside other languages, many of which have been mentioned, implies that it has a lower status and importance than those other languages. It is already hard for deaf children to feel included when their key way of communicating is not recognised in the curriculum as a GCSE. Loads of GCSEs are available in so many subjects, and we do not even ask for British Sign Language to be made compulsory.
Although there are other British Sign Language qualifications that students can take, the league table-obsessed, data-obsessed, exam-filled, narrow, fear-driven schooling and curriculum that the Government have encouraged for the past eight years means that they are less likely to be offered in schools because they are not GCSEs. Our country’s examinations system shows the world what we value. It says, “This is what we value, because this is what we examine and this is what we count.” The exclusion of British Sign Language is a damning indication of what the Government hold in high regard.
Because British Sign Language is not a GCSE, it is seen as having lower status not only by teachers but by employers. That makes it harder for deaf children to evidence their full abilities and puts them at a massive disadvantage to their peers who are not deaf. However, it is not just deaf children who want a GCSE in British Sign Language: the National Deaf Children’s Society surveyed a lot of different children in 2016 and found that nine out of 10 young people who are not deaf agree that British Sign Language should be offered in schools as a GCSE. That is because they recognise the potential wider societal benefits of everyone learning British Sign Language.
At my church, the Tower Hill Methodist church in Hessle, a volunteer called Cathy signs all our services. That has allowed more people to join our community and come to our services. That is just one example of how British Sign Language allows us to communicate with more people, make new friendships and have new experiences that enrich everyone’s lives. Beyond the Department for Education, the Government must recognise the wider societal benefits of British Sign Language, because the Department for Work and Pensions issued a report last year highlighting the shortage of language interpreters, which results in higher costs for Government programmes such as Access to Work. A British Sign Language GCSE could lead to more people considering interpreting as a career and help to address such issues.
The barriers to British Sign Language being recognised as part of the curriculum are unfair, restrict choice and stand in the way of much wider societal benefits. A GCSE in British Sign Language has been piloted and is ready to go, but it cannot be studied. Why? Because of a political choice. That shows again what the Government value and what they do not. A world without barriers should be everyone’s dream. The Government have the power to take a small step towards creating the fictional world that was played out on the television in all those adverts in 2015. I ask the Minister to listen to other hon. Members and me and give British Sign Language a GCSE.
Rachael Maskell (York Central) (Lab/Co-op)
[In British Sign Language: “Thank you, Chair. It is a pleasure to serve under your chairmanship.”]
I started by signing, creating a barrier for everybody who does not sign, because I wanted to make the point that British Sign Language is the first language of 70,000 people in our country, so it is really important to understand how we create barriers and disable people. People are not disabled, except by the barriers we create for them.
I thank my hon. Friend the Member for Blaydon (Liz Twist) for the way she opened the debate. I want to tell the story of why I learned sign language, explain why it is really important that BSL is in the national curriculum, and ask the Minister some questions. I also thank the interpreters for their work.
I began learning sign language because my neighbours were profoundly deaf. We would write notes to one another, but I never got to know them that well. We had a barrier between us: they could not verbalise and I could not sign. I asked myself who had created that barrier and thought, “Actually, I’ve got a responsibility to learn how to break that barrier.” That was my first reason for learning. My second was that I was a physiotherapist in a school where children signed and they were teaching me. I wanted to treat them, as their physio, so we had to work together to find a way to ensure that they understood what I was saying, and it was really important that I understood them. My third reason for learning was that I became the head of equalities at the trade union MSF, which became Unite, where my whole raison d’être was taking down barriers for disabled people, whether they had a physical impairment or a hearing impairment. There I was, saying one thing and doing another, so I took myself off to night school and learned to sign.
Learning to sign was an incredible experience, which I recommend to everyone. Not only did I have a lot of fun and laugh at myself, but it meant that I could create new friendships and had new opportunities. Throughout my life, I have found it incredibly useful. I have been at meetings where there have been non-hearing people and I have been able to interpret for them. My signing is not perfect, and I am very rusty, but at least it gave those people the opportunity to access the meeting.
There are more fundamental reasons for ensuring that we sign in our country and that we make learning sign language a universal opportunity: it would improve social and economic opportunities for people with a hearing impairment and remove barriers between young people and their potential friends. We have to remove those barriers. It is absolutely right that we should put in the investment to give those children a real opportunity.
I am glad to say that I could one day communicate with my neighbours in Norwich and we were able to build a really strong friendship as a result of my being able to sign, but what about people who do not have those opportunities? I want to talk about some of the ways that sign language can open up opportunities, but it also has universal benefits. I gave an example of a meeting, but I have also been in a supermarket with a non-hearing person who did not understand what the cashier was saying. I was able to sign and break down the barrier. Believe it or not, being able to sign has also meant that I can talk to people about politics when I am out door knocking, which is good, too.
Laura Smith
I hold my hands up and say that, although I learned a little sign language as a teacher, I am very much looking forward to the classes that my hon. Friend the Member for Blaydon (Liz Twist) is going to organise. As a Member of Parliament, I feel quite ashamed. If a deaf person came to one of my surgeries, how would I communicate with them? We need to set an example. The debate is about children, but I think we are all reflecting about ourselves, too. I thank my hon. Friend the Member for York Central (Rachael Maskell) for making such a powerful point.
Rachael Maskell
I thank my hon. Friend. I, too, am looking forward to going along to those classes.
Jim Fitzpatrick
I have done some research on behalf of the all-party group on deafness, and the Independent Parliamentary Standards Authority will fund classes. I have asked the UK Council on Deafness to identify tutors who would be able to come in. Getting colleagues together is always difficult given our busy diaries, but since the cost of classes is a legitimate expense—as my hon. Friend the Member for Crewe and Nantwich (Laura Smith) described very well, we should learn sign language to better serve our constituents—and the House authorities will help us do that, we should get on with it.
Rachael Maskell
I thank my hon. Friend for making that point. Learning sign language really is life transforming, because people can share so much once they are able to communicate. We know from verbalised languages the difference that makes. British Sign Language is the first language of 70,000 people in Britain. We must always remember that, and ensure that it is accessible.
I have also signed at church. I have to say, it can be a bit nerve-racking to stand at the front and sign, but over time I found it brought real meaning to the words we sung and spoke, so there was a personal benefit as well as a broader one. We now see mainstreaming in the media, with the Oscars and the new film starring Maisie Sly. What a role model she is for young girls and young people on the benefits of sign language.
Why should BSL be on the national curriculum? If we had a signing nation, what a difference there would be. We should think first about baby sign, which is taught in some places. Babies learn to communicate first through signing and gesture before they can verbalise. We could get quicker communication with babies immediately, which would be a real advantage. We also want to ensure that children can grow up in mainstream education without facing barriers. There are links between British Sign Language and Makaton—although they are not the same language, some signs translate—so we could be more inclusive in enabling disabled children to be part of that wider learning community. Children are quick learners, so that is the time to learn a new language.
British Sign Language is difficult, but it is expressive and children will grasp that. It is about integration, not being different, having the same opportunities, having friends, being able to study alongside peers and building an inclusive culture and society. As children grow up, it is about social inclusion and access to jobs, life and relationships. It is about saying, “You are no different from anybody else, and we’re going to take those barriers down.”
It is important that we recognise the qualifications. Why differentiate? GCSE is the standard recognised qualification, so we need to ensure that British Sign Language fits not with the national vocational qualifications, which I have worked my way through, but with GCSEs, putting it back in the mainstream of our education system. We know that hearing loss is a massive issue faced by people later in life. If people had skills to sign, that could open up new means of communication among older people. Perhaps someone who lost their speech because they had had a stroke could sign to continue communication, so ensuring access to BSL could bring real benefits later in life.
In my city, York College and York St John University offer qualifications up to level 3, but they say that, as well as a national shortage of interpreters, there is a national shortage of tutors. We need to encourage people to see that as a worthy profession and something to go into in the future.
I have a few points to make to the Minister. My first was to ask whether he could organise some BSL sessions in Parliament, but I see that my hon. Friend the Member for Poplar and Limehouse (Jim Fitzpatrick) has that in hand. However, some dialogue on that would be of benefit so that the Minister can demonstrate how BSL can provide and open up opportunities for children in school. It would be good to join those agendas together.
Secondly, we also need to shift the agenda here. While I really welcome us having had two interpreters throughout this debate, why not have interpreters for all debates? Why do we bring in inclusion just because we are talking about BSL? Whether we are talking about the economy or foreign affairs, it is relevant to people with hearing impairments. I hope we will see a tangible shift in that agenda.
Thirdly, on qualifications, the Department must now get its skates on and bring about a level playing field to ensure that the qualifications of children who have a hearing impairment in particular—but not exclusively—are seen to be no different from those of their peers, and we must ensure that they can study and pass exams in their first language, not just in their second language.
Finally, what a different kind of society we would have if we put BSL on the national curriculum right through schooling. It is not just about qualifications; it is about cultural change. The Minister has the opportunity to bring that about today.
Carol Monaghan (Glasgow North West) (SNP)
It is a pleasure to serve under your chairmanship, Mr Austin. I pay tribute to Wayne Barrow, whose work has brought the debate to the House. This has been a consensual debate. I sometimes think this place works best when we are all pushing for the same thing, so let us hope there is some movement today as a result.
The hon. Member for Blaydon (Liz Twist) kicked off the debate by paying tribute to Maisie Sly. As the hon. Member for Waveney (Peter Aldous) pointed out, it is almost as if someone had a hand in the debate coming about on the same day as the Oscars win. The hon. Lady spoke on various aspects, and the attainment gap in particular. I, too, speak as a teacher, and it really is important to consider that gap. No child should start education knowing that, in the end, they will have a worse set of results than another child. We need to ensure we are taking steps to combat that.
There is not yet a GCSE in BSL, but, as a result of this debate, I hope there will be. In Scotland, we are developing a Scottish Qualifications Authority qualification in BSL, so there will be certification in Scotland. It seems appropriate and sensible that the same happens for a GCSE in England, especially if the work has already been done.
The hon. Member for Enfield, Southgate (Bambos Charalambous), who is no longer in his place, talked about the difficulties of inclusion and social cohesion when people are excluded from society. That is an important point. The hon. Member for Waveney talked about the range of languages available at GCSE, which probably took many of us by surprise. That hammers home starkly the point that, without a GCSE in BSL, we are selling short a large group of young people—not just those from the deaf community but other children who may want to pursue a career in that area.
The hon. Member for Kingston upon Hull West and Hessle (Emma Hardy) talked about the educational benefits to all children from learning BSL. I liked the phrase she used about the data obsession in school results. Something rich and valuable is lost in education when all we are interested in is the results at the end. She correctly pointed out that, unless BSL became a GCSE, it would remain low priority.
The hon. Member for York Central (Rachael Maskell) shamed us all with her abilities and demonstrated in a simple way how barriers are created and removed. I liked her suggestion that older people who are suffering from hearing loss could learn sign and BSL as a method of continuing communication with loved ones and in their daily lives.
The hon. Member for Poplar and Limehouse (Jim Fitzpatrick) talked about the work done in Scotland, and I want to say a bit about that. Obviously, the issues faced by deaf people in Scotland are exactly the same. The Scottish Government have a national strategy to make Scotland the best place in the world for deaf people. The British Sign Language (Scotland) Act 2015, which was passed unanimously by the Scottish Parliament, promotes the use of British Sign Language and made provision for the preparation and publication of the British Sign Language national plan for Scotland, which we now have. A good thing about the Bill was the fact that it had cross-party support, and was passed unanimously. Let us hope we can deal with the present issue in the same way.
Stephen Doughty (Cardiff South and Penarth) (Lab/Co-op)
I am sorry I have not been able to be present for more of this important debate. My mind has been opened by the Cardiff Deaf Centre and by interpreters in my constituency such as Julie Doyle and Tony Evans, and by constituents such as Stuart Parkinson. They have made it clear to me that we need to improve BSL services across the UK. I commend what the Scottish Government have done, and the hon. Lady is probably not aware that Wales has a scheme called BSL Futures, as well as many others. However, we all need to do much more across these islands and to learn from each other how to improve services for deaf people.
Carol Monaghan
In this place we often say, “Look north at what Scotland is doing,” but we can look to Wales as well—and, in this context, to many other places—to see where good work is being done. We need to take that on board.
The British Sign Language (Scotland) Act 2015 requires certain authorities to prepare and publish their own British Sign Language plans in connection with the exercise of their functions. There is potential for the Act to have a positive impact on the lives of people in Scotland whose first or preferred language is BSL. It provides an opportunity to appreciate and celebrate regional variations, including certain Scottish signs. We want that variation to flourish. The more BSL is promoted and celebrated throughout the UK, the more exposure it will receive. Because the Act is Scottish legislation, it follows that all of Scotland’s regional variations will be included and valued, but there is no reason why that could not also happen for regional variations from across the UK.
The Act also paved the way in Scotland for the national plan for British Sign Language—the first of its kind in the UK. The plan aims to ensure that sign language users are
“fully involved in all aspects of daily and public life”
north of the border. As part of the plan, major transport hubs such as train stations and airports will be expected to provide important information in BSL, as they would for any other language. Sign language interpreters will also be made more widely available across Scotland’s public services, making it easier for deaf people to hold senior positions. Sign language has been recognised as an official language in Scotland since 2011.
We hope that more British Sign Language users will be encouraged to become school teachers and share their skills with other people; but we also hope that they will infiltrate into every profession so that people have more access to every aspect of government. The Scottish Government also have a plan for primary schools, called the 1+2 language plan, which requires every child of primary school age to have experience of their native language, whatever it may be, and of two additional languages—it might be French, Mandarin, Scottish Gaelic or BSL. That has had an interesting impact, particularly on some children with learning difficulties or speech and language difficulties. It is often far easier for them to sign than to talk.
The BSL national plan also sets out 70 actions that Ministers will take by 2020 to improve the lives of people who use sign language. That is backed by £1.3 million of public funding. I shall not go through all 70 actions, but I will highlight a couple. Scottish Ministers will be asked to make progress on investigating the level of BSL among teachers and support staff in schools in Scotland and on further developing the Scottish Qualifications Authority award in BSL. Hopefully that will come into being shortly, with, as I have said, the GCSE to follow. Something else on which Ministers will be expected to make progress is enabling parents who use BSL to be fully involved in their child’s education. For parents who are part of the deaf community, situations such as parents evenings and school concerts can be difficult. Progress is also asked for on expanding the teaching of BSL to hearing pupils in schools, and improving the experience of students who use BSL when they move from school to college, university, training or the world of work. Finally, we hope to ensure that every Scottish Government-funded employment and training opportunity is fully accessible to BSL users and that they are properly supported.
I want to end by quoting Dr Terry Riley, the chair of the British Deaf Association:
“The Scottish Government’s National Plan is a brilliant example, for the rest of the United Kingdom to follow.”
We are not gloating about that, or feeling smug. It is only a starting position, and there is a lot more to do. However, I hope that the UK Government can follow suit on some of the key objectives of the plan. Our long-term plan has an ambitious aim: we want to make Scotland the best place in the world for people whose first or preferred language is BSL. That means that deaf and deaf-blind BSL users will be fully involved in daily and public life in Scotland as active, healthy citizens, and will be able to make informed choices about every aspect of their lives.
Dawn Butler (Brent Central) (Lab)
I thank my hon. Friend the Member for Blaydon (Liz Twist) for securing and opening this important debate on BSL. I also thank Wayne Barrow; I have done a music video with him, which was a lot of fun. I look forward to the next one —maybe Wayne, Lizzy and I could do it. That would be really good. This is about bringing BSL to everyone, and putting it in front of everyone.
I thank the shadow education team for allowing me to respond on behalf of Her Majesty’s Opposition today because, while the issue is one of equality, it falls within education. BSL is an issue that is close to my heart. I was the first Member of Parliament to sign a question on it in the House.
Learning to sign is an eye-opening experience. I thank the interpreters, who do an amazing job—including the one they are doing here today—and the House authorities for providing a live subtitle feed. We are following in the footsteps of New Zealand and Australia in doing that. I know that it was not a piece of cake, but as with most things, the more we do them, the easier they get. We just need to do these things a lot more in this place, and then they will seem like nothing.
We have heard a lot about the Oscars and the win for “The Silent Child”, about Rachel Shenton delivering her Oscar speech in British Sign Language, and about Libby, the young girl in the film. People say, “What you see, you can be,” and the more we see people communicating by signing, the more we will take that as given and as the right thing to do.
The Labour Government recognised British Sign Language as a language in its own right in 2003. Fifteen years later it is time to take the next steps to equality for users of BSL. It is a little shocking that BSL GCSE is not offered in schools, given what we heard from the hon. Member for Waveney (Peter Aldous) about how many languages are offered at GCSE. Why not BSL? It is a recognised language, after all. We should go further: it should be given legal status.
We have heard from many hon. Members here today—including my hon. Friend the Member for Kingston upon Hull West and Hessle (Emma Hardy), speaking as a teacher—about why BSL should be a GCSE, why it should be recognised and why that is important. We have heard that the GCSE model is ready to go and that all it needs is sign-off from the Department for Education. Signature has already done all the work needed; the qualification has been successfully piloted for two years in six schools. That highlights why making BSL a GCSE is so important.
Some people say to me, “Why learn BSL? Why is it an official language?” We have heard my hon. Friends the Members for York Central (Rachael Maskell) and for Poplar and Limehouse (Jim Fitzpatrick) speak about equality. Nobody in this place can be against equality. Everybody argues about equality every single time. Equality is equality; if it matters for one person, it matters for another. Why are we picking and choosing whose equality is more important? Deaf people deserve to have equality, a level playing field and British Sign Language as a recognised language.
The National Deaf Children’s Society carried out a comprehensive survey, which clearly showed that young people want to learn BSL. We have to remember that young people get old, whether we like it or not. Sometimes we do not believe we will ever get old, but young people get old and, as we have heard, thousands of older people lose their hearing. I have spoken to older people who say, “I wish I had learned some signing when I was younger, because then I wouldn’t feel so isolated.”
Now is the time. We have heard about lots of movements that are happening; now is the time for us to remove structural barriers in society. We need to ensure that more people are taught BSL. That will remove a structural barrier for deaf people and not only help them to reach their full potential, but help their mental health. A lot of deaf people suffer from mental health issues. A lot of people are trapped in a world of silence. When my hon. Friend the Member for York Central signed the beginning of her speech, there was complete silence in this room. I ask hon. Members to imagine that their whole lives were lived in that silence, everywhere they went, and that they could not communicate with anybody. That is the difference that learning sign language makes to people who are deaf.
Approximately one in six people suffers from a hearing loss. That is a lot of people in our country. I will speak briefly about why I learned BSL. The first time I spent a lot of time with deaf people was when I was at college, where there were two people who were deaf. I learned my name, and I learned to say hello and other little bits. Like my hon. Friend, I always wondered who was the person who could bring down the barrier: the person who cannot speak or the person who cannot sign? I realised it was me, who could not sign.
When I started working, there was a deaf person at work. I decided to go to evening classes to learn to sign. I went for two, or maybe three, years to learn how to sign. I am rusty now, because it was a long time ago, but I learned how to sign. I made a great friend at work. We signed, and we got ourselves in a lot of trouble, but it was a lot of fun. We talked about people, and they never knew about it, which would probably be quite a useful tool in Parliament.
BSL opens doors for people. It opened doors for me; I made new friends, and I make new friends wherever I go now. That could be in the supermarket, or on the buses or the trains, when an announcement is made and people do not know what is going on, but someone is able to sign—even if it is just a little bit, or it is just finger-spelling —what is going on. A hearing person can learn to bridge that gap with a deaf person, and that is important.
As I said, now is the time to remove the structural barriers. The Labour party has said that if we were in government, we would have a national plan for England. We would have a BSL Act, a consultation and a debate to ensure that we take up all the good practice happening in Scotland, Wales and elsewhere. Many other countries around the world have implemented an Act. I am not asking the Minister to go as far as the Labour party today—BSL has a lovely sign for the Labour party—but when he rises to his feet, I would like him to reflect on the fact that the Department for Work and Pensions has reported and highlighted a shortage of signing interpreters, resulting in higher costs for things such as Access to Work. We need more Access to Work, not less; we need to invest in it so that deaf people can reach their full potential. We need to invest, and the way to do that is to show commitment. I hope that when the Minister gets to his feet he will have some good news for the deaf community and BSL users. I ask him to please make BSL a GCSE.
The Minister for School Standards (Nick Gibb)
It is a pleasure to serve under your chairmanship, Mr Austin. I congratulate the hon. Member for Blaydon (Liz Twist) on securing this debate and on a powerful opening speech, and I add my congratulations to both the filmmakers and Maisie Sly on their work and their success at the Oscars last night with their film, “The Silent Child”. Although I have not yet seen the film, it raises important questions about the isolation that can arise from being born deaf in a hearing world, and highlights the difference that can be brought about by learning to communicate effectively.
The Government have recognised British Sign Language as a language in its own right since 2003. British Sign Language is a vital method of communication for many people and the first or preferred language for an estimated 70,000 deaf people in the United Kingdom. Of course, many hearing people—such as the hon. Members for Brent Central (Dawn Butler) and for York Central (Rachael Maskell)—choose to learn BSL in order to communicate more effectively with hearing-impaired people in everyday life. I very much enjoyed the speech by the hon. Member for York Central.
The Government understand, as I do, the passion that many organisations and individuals have for including BSL in the national curriculum. The reformed national curriculum, introduced in 2014, places a much greater focus on the core academic knowledge that pupils need for success in an ever more globalised world. That core body of knowledge is not expected to change significantly over time, but the national curriculum is just one element in the wide-ranging education of every child that makes up the broader school curriculum.
When we reformed the national curriculum, our expert panel made a clear distinction between the national curriculum and the school curriculum. We wanted the national curriculum to be kept within a certain size, to enable schools to develop a broader school curriculum. There is enough time and space in the school day, in each week, term and year, to expand beyond the specifications found in the national curriculum.
We are unapologetically ambitious for every child, no matter what their background, prior attainment or educational needs. The best possible education for adult life in modern Britain is one that equips children and young people with the knowledge they need to succeed. Our reforms have led to the attainment gap between children from disadvantaged backgrounds and their more advantaged peers closing by an astonishing 10% since 2011.
To do that, we ensured that the national curriculum was rigorous. We looked at curriculum design in the most successful education jurisdictions across the globe and benchmarked what our children are expected to learn at different stages. While setting stretching expectations for the knowledge and skills that each child should be taught, we have given teachers more professional freedom to choose how to teach that material and how to assess it in the classroom. We will continue to increase support for teachers to deliver this stretching curriculum effectively, including by encouraging the greater use of evidence-based teaching methods to raise standards and cut unnecessary workload.
We have a responsibility to ensure that we support teachers, reduce workload and allow our reforms to bed in and take effect. Making changes to the curriculum causes increased workload for teachers, and now that we have a high-quality curriculum, with stretching and rigorous assessments to match, we want to minimise further change. The Department’s programme of work on teacher workload aims to enable teachers to focus on teaching and their own professional development.
While we believe that BSL is an important and worth- while area of study, we do not have plans to change the national curriculum for schools to make teaching BSL mandatory for maintained schools—particularly as two thirds of secondary schools now have academy status and are not obliged to follow any part of the national curriculum, whether we revise it or not. Schools may choose to offer BSL as part of their wider school curriculum, or as part of a varied programme of extra-curricular activities. Some may also offer accredited BSL qualifications to support pupils’ achievements in the language.
For people who wish to develop their ability to communicate effectively with those with a hearing impairment in everyday situations, level 1 and 2 qualifications, which already exist, have the greatest take-up. The level 1 and 2 qualifications currently offered by the Institute of British Sign Language, Signature and ABC Awards enable people to engage in routine conversations about real life and daily experiences and to develop a wider grasp of grammar to deal with non-routine exchanges. For those who wish, there are opportunities to develop practices in BSL further into level 3 and 4, and even level 6, which is equivalent to a degree. Individuals who take those qualifications might wish to enter a career working professionally with deaf people, such as in interpreting or teaching.
Laura Smith
I am quite upset about the tone of the Minister’s message, after a debate in which we thought we were getting a bit of movement. As a former teacher, I put on the record that I completely disagree with his statements regarding teachers feeling supported at the present time. I think it is very sad—I saw people in the Public Gallery shaking their heads—that the Government are once again prioritising exams and results in the curriculum, rather than inclusion and providing a diverse curriculum that benefits our entire society. That is a shame.
Nick Gibb
The hon. Lady interrupted my speech before I had concluded my arguments; she should hold on and be patient a little longer.
This week, we celebrate National Apprenticeship Week, which celebrates the success of apprenticeships across England. BSL is now an alternative to a level 1 and level 2 qualification in English when undertaking an apprenticeship, providing the opportunity for apprentices to achieve a qualification in their primary language. That enables those who use BSL to complete their apprenticeship without having to achieve another English qualification, such as a GCSE or functional skills qualification.
My hon. Friend the Member for Waveney (Peter Aldous) referred to GCSEs in Urdu and other community languages, and the hon. Member for Poplar and Limehouse (Jim Fitzpatrick) referred to teaching Russian and Japanese. Hon. Members will be aware that we had a very real struggle with the awarding organisations—the exam boards— to ensure that those small-cohort GCSEs continued. Ultimately, we are dependent on the exam boards accredited by Ofqual to offer GCSEs being willing to offer any further GCSEs.
Jim Fitzpatrick
Before the Minister moves on from his answer to my hon. Friend the Member for Crewe and Nantwich (Laura Smith), will he give further clarification? Will he refer later to the point that has been raised by a number of colleagues, which is that the Department for Education has already piloted a BSL GCSE that is ready to go? Why is the Department not in a position, not able or not willing to validate that for schools that want to teach the qualification in such a way rather than at NVQ level?
Nick Gibb
The hon. Gentleman pre-empts what I was about to say. He makes an important point and I will address it. Hon. Members should be aware that, of the four GCSE exam boards operating in this country, OCR, one of the major ones, recently stopped providing any language GCSEs at all, including French, Spanish and German, which are not small-cohort GCSEs. The hon. Gentleman mentions the GCSE that has been prepared by the awarding organisation Signature. We have seen that draft specification, and it has been tested in some schools. However, an established and rigorous process is in place to accredit GCSEs, and the specification has not been through that process.
A number of further steps are required to develop the specification into a GCSE, including developing broad and deep subject content by working with subject experts. It would also need to meet Ofqual’s assessment criteria and be accredited by Ofqual. Signature, were it to be the awarding organisation that offered the qualification, would need to be accredited by Ofqual as a GCSE-awarding organisation and be subject to its regulatory oversight. It is not a simple process of saying the qualification is already done and dusted and ready to run. A huge number of steps have to be gone through.
I presided over the reforms to GCSEs since 2010. The new GCSEs in English and maths were ready for first teaching in September 2015, and the next set were ready for first teaching in 2016, with exams in June 2018. These GCSE reform and accreditation processes take a long time. The accreditation is not a simple thing to acquire from Ofqual, which often sends the specifications back for further drafting before it is prepared to accredit them.
Jim Fitzpatrick
I am grateful to the Minister for that further clarification. Given the hoops that have to be jumped through to actually get to a position in which a GCSE will be available, is the Department in a position to say that it supports the additional efforts to get to that point, or is it not the Department’s role to encourage that? Where do we go from here to actually get to a position whereby there will be a BSL GCSE validated by the Department that can be taught and examined in schools?
Nick Gibb
We have been clear that we want schools to have a period of stability, so we have said that there are to be no new GCSEs or A-levels for a period of time. That is not to say that in the longer term we will not consider new subjects for GCSEs. However, it is important, after the hugely extensive reforms to GCSEs and A-levels, that schools have a period of stability. I have a responsibility to schools to enable them to have that period of stability, which they have asked us for.
Emma Hardy
Does the Minister agree that what we examine shows what we value as a society? What the Minister values is clear to anybody who wishes to read it in the changes he introduced to GCSEs. What message does it send out to people if we will not even consider having BSL as a GCSE? What does that say about what we value as a society?
Nick Gibb
I would argue that not everything that is taught in schools needs to be a GCSE. We allow plenty of valuable qualifications to be taught in schools under the section 96 list that have valuable subject content but are not sufficiently broad to qualify as a GCSE. However, we none the less encourage their teaching in our schools. As I have said, we value BSL as a subject, and we encourage schools that wish to do so to teach it. Schools are permitted to teach a number of qualifications at levels 1, 2, 3 and 4.
Rachael Maskell
I am really struggling. For the Minister and myself, English is our first language, and we have the right to sit a qualification at GCSE level in our first language. BSL could be the first language of the hearing impaired, yet we deny those people that opportunity, so a real inequality has therefore been built into the system. This is not about adding another subject to the curriculum but attaining equality for people who are hearing impaired.
Nick Gibb
As I said, we value BSL. However, a huge number of steps would have to be gone through for the BSL qualification to be accredited as a GCSE. Having been through it, I can say that it is not a simple process to get qualifications accredited. There are existing level 2 qualifications; GCSEs are level 2. There are existing BSL qualifications of high quality available that can be taught in schools. BSL is not a GCSE subject, but as I said, many subjects taught in schools are not GCSE subjects and none the less are valued by schools and by those who take the qualifications.
We recognise that some who wish to take a qualification in BSL will do so to communicate with a family member or friend. Indeed, many of those in most need are hearing parents of deaf children. We understand that early access to language is essential to help children to learn and thrive and it is vital that families have the support that they need to communicate with their children. The Department has provided funding for the development of a support guide to help parents of deaf children. Families or carers may also be eligible for support to learn sign language. The Department has provided funding for the I-Sign project to develop a family sign language programme, which is available online.
We believe that all young people should be helped to achieve their potential, regardless of their background or circumstances. More than 21,000 children with a hearing impairment are supported at school. We are proud that 93% of hearing-impaired children are supported to attend a mainstream school. Pupils who use sign language are generally provided with support at school through specialist teaching assistants and specialist teachers of the deaf. However, we do not prescribe how schools should support pupils with a hearing impairment.
We have made it clear in the special educational needs and disability code of practice that all schools must use their best endeavours to make suitable provision available for all children of school age with special educational needs or disabilities. The reasonable adjustments duty for schools and local authorities includes a duty to provide supporting aids and services for disabled pupils. That could include things such as radio aids or communication support workers. In addition, the local authority can support parents and children in developing the knowledge that they need to communicate effectively.
When the time comes for pupils to take examinations, schools and colleges are responsible for ensuring that reasonable adjustments are made to make exams more accessible for pupils. Common arrangements include extra time and the use of scribes and readers and of word processors. More deaf children than ever are leaving school with good GCSEs, and we want them to continue to aspire to reach their full potential. Statistics show that attainment in English and maths for that group has been improving in recent years. The proportion of children with a hearing impairment achieving a standard pass—at grade 4 or above—in English and maths GCSE has increased by 6 percentage points compared with passes at C or above in 2011. We are very proud of that improvement.
Laura Smith
I am not interrupting; I just want to make a point to the Minister. It is wonderful that deaf people and deaf children are exceeding what has been achieved previously and doing well in terms of their attainment, but these are not equal opportunities. Surely it is the Government’s responsibility to deliver equal opportunities for all children and all people in our society. I just do not feel that the Government are taking responsibility for this issue. We have heard that it is a matter for teachers and schools and can be a matter for local government. What about the Government?
Nick Gibb
I have explained the position as regards a GCSE. As I said, two thirds of schools have academy status, which means that they are not obliged to follow the national curriculum. That trend is increasing—the number of schools acquiring academy status increases every month—and, as I said, such schools are not obliged to follow the national curriculum.
I have also set out the very real practical issues. Any new GCSE has to go through an accreditation process. It has to be provided by an awarding organisation that is itself accredited as a GCSE provider. As I pointed out, we have had a real struggle with the awarding organisations on providing language GCSEs, particularly in the community languages. We had a huge battle with them and ended up having to move a whole raft of community language GCSEs from OCR to the other awarding organisations. Ultimately, we can only provide GCSEs that the exam boards, which are independent, wish to provide. As I said, a draft specification has been provided by Signature, but it would have to go through the process of having the GCSE accredited by Ofqual and would itself have to be accredited by Ofqual as a GCSE provider. Those are the issues confronting any Minister in the Department for Education as regards new GCSEs, because the system in the legislation passed in the House to ensure that we offer GCSEs that are on a par with one another and hold their standard over time has led to our deciding to have a very powerful regulator, which is absolutely right to ensure that we maintain standards. That process has to be gone through by anyone who wishes to introduce a new GCSE.
In addition, we want schools to have a period of stability. This is not the only request for a new GCSE; there are requests for others. Schools have asked for a period of stability. There will be stability for a short period, and after that we can consider whether new GCSEs or A-levels can be introduced.
Emma Hardy
I accept that not all schools have to teach the national curriculum, but what exists is not actually a national curriculum; it is an examination curriculum. The school curriculum is built around the examinations that children take. I am sorry, but I disagree with the point that there is a wider school curriculum. There is not. Schools long for there to be a wider school curriculum, but the reforms made by this Government have squeezed things out and narrowed it down very tightly to being based solely on examinations. If we do not give British Sign Language an examination, it just will not be counted and will not be taught.
Nick Gibb
There are examinations in BSL, produced by Signature and ABC, that are for level 1 or 2 qualifications. Exams exist in BSL. The qualifications are on the section 96 list and can be taught in schools, so they do exist.
I do not accept the caricature of our school system described by the hon. Member for Kingston upon Hull West and Hessle (Emma Hardy). The school curriculum is very wide. The most successful schools in the state sector have a very wide curriculum and they offer plenty of sport, music and art as part of that. Art and music are compulsory to the end of key stage 3, and the schools that are most successful academically, in the exams that the hon. Lady dismisses, are the schools that also have a very broad and balanced curriculum beyond GCSE.
We made it very clear in our reforms to the national curriculum that there was to be a distinction between the national curriculum, which focuses on the core academic subjects, and the school curriculum, which goes beyond those subjects and includes sport and a whole raft of artistic and other subjects, which are hugely important. I am referring to subjects such as sex and relationships education, PSHE—personal, social, health and economic education—and citizenship and so on, which are hugely important in developing a rounded person.
Rachael Maskell
I am struggling to understand why the Minister cannot ask an awarding body to go away and do the work to ensure that a GCSE in British Sign Language can come on stream and then be integrated in the school system, by which time the schools will clearly have had their period of stability and then will be able to teach BSL as part of their core curriculum.
Nick Gibb
I am always very happy to have meetings and discussions on these issues. I continue to have discussions with people who want to introduce a whole raft of new subject content into our schools, and I am very happy to be having a meeting next week with my hon. Friend the Member for Waveney to discuss this very issue, so we always keep these issues under review. Today I have set out the real challenges facing the school system in this country and I have put on the record in an open and transparent way where we are on the issue of new GCSEs coming into our system. That is what I have sought to do today, and on that basis I conclude my remarks.
Liz Twist
I thank all hon. Members who made contributions to the debate. Most of it was fairly upbeat. It is a shame about the ending, but I will come on to that.
I thank the hon. Member for Waveney (Peter Aldous) for his support for the cause. I also thank my hon. Friend the Member for Poplar and Limehouse (Jim Fitzpatrick), who chairs the all-party parliamentary group on deafness; my hon. Friend the Member for Kingston upon Hull West and Hessle (Emma Hardy); and my hon. Friend the Member for York Central (Rachael Maskell), who so powerfully reminded us that it is we who are erecting barriers, not people who have hearing difficulties or deafness, which is an important point to remember. I thank the hon. Member for Glasgow North West (Carol Monaghan) for her contribution and my hon. Friend the Member for Brent Central (Dawn Butler). Some really interesting and exciting points were made, all of them supporting the need for us to be more inclusive and to reach out and include young people with deafness, about whom we are talking today.
Then we come to the Minister’s comments. I have to say that I was really disappointed. I asked the Minister to go further than he had in his written response. I am disappointed that we have not been able to go further today. I heard all the reasons he gave, but we need a can-do approach. We have a problem and we need to find a way around it, so that all our young people can take part not only in school activities, but in life in the wider community, through the development of a BSL GCSE and the inclusion of BSL as a curriculum subject. I remain convinced, having been a governor in a number of schools, that it is really difficult to find time to teach BSL, although it is allowed. I look forward to his further discussions with the APPG.
I hope that there will be a change in the future to include BSL in the national curriculum and to recognise a GCSE qualification. I do not think that Wayne and his mates, Erin and other young people are going away. I think we will hear much more about this issue in the next few days. I am reminded that next week is Sign Language Week. I think there will be a lot going around among the Twitterati and the public about this, so watch out for a lot more questions from the public, as well as from hon. Members, on this issue.
To finish, I remind everyone that although we have spent a lot of time talking about the national curriculum and GCSEs, this is all about allowing deaf young people to be included in activities and school life, and to just have some fun, like Wayne and his mates do. I thank hon. Members and I am sure we will come back to this issue.
Ian Austin (in the Chair)
Before Members leave, I want to formally thank the interpreters who have been translating this debate into BSL, the people who have been organising the live simultaneous interpretation on television, and the Officers of the House who have made all of this possible.
Question put and agreed to.
Resolved,
That this House has considered e-petition 200000 relating to British Sign Language being part of the national curriculum.
Car Insurance
(6 years, 8 months ago)
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Susan Elan Jones (Clwyd South) (Lab)
I beg to move,
That this House has considered e-petition 207616 relating to changes to car insurance.
It is a great pleasure to serve under your chairmanship, Mr Davies.
The petition asks for insurance to be based on the car itself, instead of on the individuals who drive it. The petition reads:
“In some countries, such as America and Portugal, insurance is based on vehicle itself instead of being based on the individual who drives it. This is an effective method for families and friends as they are able to share a car without paying for multiple insurances.”
The petition then gives as an example the following scenario:
“3 friends go on a night out in the same car, they all have driving licenses, but only one of them is insured on the car. 2 of them are under the influence of alcohol and incapable of driving, including the car owner. If the car was insured on itself, the sober friend could drive it legally. However, because each individual is insured on the car, no one would be able to drive it as it would be illegal.”
As of this morning, 56,200 people had signed the petition. On behalf of the House of Commons Petitions Committee, I thank Rita Rocha Vidrago, the creator of the petition, and all of its signatories. Observers of the work of the Petitions Committee—I hope there are many around—will note that that falls short of the 100,000-plus signatories that many of the petitions that our Committee schedules for debate receive. However, the number of signatories to this petition is still significant, especially as it proposes quite a specialist solution to a range of problems relating to car insurance. There are certainly enough issues relating to car insurance.
The issue raised specifically in the petition is the cost of car insurance, but there is also the related issue of drivers who drive while uninsured. I believe that the petition provides a serious attempt to deal with that critical issue—a problem that is a nightmare to all who have ever been in an accident involving an uninsured driver.
The Government have responded to the petition, with the Department for Transport stating:
“The Government has no plans to change the motor insurance system to require vehicles themselves, rather than the use of a vehicle, to be insured.”
The Government are pretty trenchant in their response—in fact, very trenchant:
“There are a variety of approaches to motor insurance taken around the world, and the UK Government is not alone in requiring the use of a vehicle to be insured.
The current motor insurance system of insuring individual drivers, rather than cars, does not prevent named drivers from being added to an insurance policy for shorter or longer periods of time. This allows for friends or relatives who share a car to be included on one insurance policy.
The price of insurance depends on a range of factors, including many which are specific to the person driving; for example, driving history (whether the driver has had previous claims or unspent convictions for drink driving, for example), the use they make of the vehicle (for example, for commuting or business use), and their years of driving experience.
If insurers had to cover the vehicle itself and were not able to take driver-specific factors into account in their pricing, then the cost of insurance would likely rise for those with a good driving record and history of driving safely.”
That is the Government’s response, which I hope we will hear the Minister develop later.
That all gives rise to the question: how much further in-depth consideration should we grant the petition? To my mind, there are three key issues in respect of motor vehicles and insurance. First, how does the proposal impact on the cost to the consumer purchasing the insurance? Secondly, does it help people in the unfortunate situation of being injured by another party? That relates specifically to individuals driving without insurance. While the guilty party may be punished through the law, that rarely helps the innocent party with their car repair costs. Finally, and vitally, does the policy help or hinder road safety? I will not go through those questions in sequence in this debate, but they are worthy of our consideration.
To move on to evidence-based research, the Association of British Insurers found that on average, young drivers spend about 10% of their salaries on insuring their cars. It is therefore clear that action needs to be taken to stem rising motor insurance premiums. Analysis by the Association of British Insurers shows that drivers aged between 18 and 21 are paying an average of £973 for comprehensive car cover. Rising motor insurance bills, resulting from a range of factors including the way in which compensation payouts are calculated and a resurgence in whiplash-style claims, are hitting younger drivers hardest.
There have been many concerns about the car insurance industry, and the integrity of the market has been questioned. As a result of complaints about the sector, the Competition Commission investigated and concluded in 2013 that there were
“features of the UK market for motor insurance and related goods or services that, either alone or in combination, prevent, restrict or distort competition such that there are adverse effects on competition.”
A research paper by the House of Commons Library about the motor insurance industry notes that many people consider the UK car insurance market to be dysfunctional. The paper cites the unpredictable rise and fall of insurance premiums. The research also references the relationship between the industry and car hire, repair and legal claims firms, which some view with suspicion.
I understand the frustration of the petitioner and the many signatories at high car insurance premiums and what could be viewed as the inflexibility of the UK insurance market. A different system—one that means that if a car is insured, anyone with a valid driving licence can drive it—certainly seems to offer one solution to the UK’s sometimes complicated and expensive system, but let me consider that further.
The cost of insuring a car is calculated using a variety of factors. Driver-specific factors include the driver’s age and experience, their road safety history, where they use and keep the car, and how often they use it. Since December 2012, car insurance companies can no longer discriminate on the basis of gender. Factors that depend on the car itself include its power and value. Insurance companies seek to set premium rates such that total premium income at least matches the total amount paid out in claims. Under that system, the people deemed the least likely to have an accident and to claim on their insurance pay the least, while those considered at greatest risk of making an insurance claim pay the highest premiums.
If insurance followed the car, rather than the driver, key driver-specific factors used to calculate risks could not be used. That could mean that drivers with a history of driving safely would have to pay higher premiums. That would be likely, as insurance companies would be unable to recover the costs of paying out claims by charging the drivers at greatest risk. It could give rise to an unfair and expensive system that would not reward safe drivers at all.
The petition states that if insurance was on the car alone and was not driver-specific, friends and family would be able to share a car
“without paying for multiple insurances.”
In reality, is that not de facto the case under the current motor insurance system? Named drivers can be added to insurance policies, allowing more than one person to be insured to drive the same car. The main driver uses the car most frequently, while named drivers use it less—none the less, they can use it frequently. That great oracle beloved of so many, the price comparison website MoneySuperMarket.com, has research showing that 35% of young drivers who are the main driver on their own insurance have a named driver on their insurance, thereby making their premiums up to 13% cheaper.
Car hire firms work on the basis that a car is insured such that anyone can use it. Many business fleets are insured on a similar basis. However, in both cases there will be a variety of restrictions. Hire cars are often only available to those over 25. While fleet operators have extensive bargaining power, there will still be restrictions: the person driving a business car will, for instance, usually have to be over a certain age and an employee of the firm.
Under some fully comprehensive driving insurance policies, one’s own insurance means that it is possible to drive someone else’s car—with their permission, naturally. However, restrictions are often placed on that type of benefit. When driving a car that is not one’s own, cover is often on a third-party basis, so insurance will pay only for damage to other vehicles or property. Another possible type of insurance is for temporary cover on another person’s vehicle.
The petition cites the USA and Portugal as countries with a motor insurance system that requires insurance only of the car and not the driver. Such a principle is out there, and it is good to examine, and sometimes to copy, effective working practices from other countries. I certainly believe that that is worth doing here; however, I strike a note of caution, because on closer inspection the motor insurance model in both those countries is more complicated than it first appears.
In the United States of America, liability insurance follows the driver and covers them when they drive a vehicle other than their own. All states apart from New Hampshire require at least liability insurance. Comprehensive and collision auto insurance are tied to the vehicle; however, if someone other than the insured drives a vehicle covered by comprehensive insurance and is not listed as a covered driver, they may not be covered in an accident.
In Portugal, the vehicle and not the individual is insured; however, vehicles are generally insured to be driven by specific categories of driver. For example, if a car were insured for a category of drivers aged over 45, a sober driver aged under 45 would not be eligible to drive it. In Portugal, it is possible to insure a car with comprehensive cover for any driver. In practice, however, the driver often has to be over 30. Research from the Library suggests that comprehensive cover can be harder to get in Portugal than in the UK.
Driving without insurance in the UK is illegal—and quite right, too. Even if our model of insurance changed, I have no doubt that driving without insurance would remain illegal. The police can give a fixed penalty of £300 and six penalty points to someone caught driving a vehicle that they are not insured to drive. If the case goes to court, the uninsured driver can be made to pay an unlimited fine and be disqualified from driving.
The police also have the power to seize and, in some cases, destroy the vehicle that is being driven uninsured. There is a strong case for that practice. It encourages safe driving and compensates innocent parties for any injuries or damage to their vehicles or property as a result of a motor accident.
Although I extol some aspects of the current system, the Government need to take action to deal with rapidly rising premiums. We are not short of journalists and researchers who have made that point. In 2015, James Delingpole of The Spectator expressed it thus:
“The car insurance industry is a disgusting racket. It’s designed so that as many industries as possible can get their snouts in the trough.”
That may be hyperbole, but there is a definite need for cartel-like issues—or at least, the perception of cartel-like issues—to be examined. Reform of the motor insurance sector is necessary. I have little doubt that high insurance premiums and the perceived unfairness of the sector are leading to demand for change.
The petition does not provide a silver-bullet solution, although it is worthy of discussion and contains some interesting ideas. However, even if the petition’s answer is not the very best on offer, the Government should look seriously at it and other suggestions, including introducing graduated driving licences, freezing the rate of insurance premium tax and implementing planned reforms to the way in which lower-value, whiplash-style claims are handled. It is abundantly clear that the status quo on motor insurance premiums is not an option, and on that the Government must act. I thank the petitioners for bringing the issue to this Chamber today.
Jenny Chapman (Darlington) (Lab)
It is a pleasure to serve under your chairmanship, Mr Davies, and to follow my hon. Friend the Member for Clwyd South (Susan Elan Jones). She did a good job of introducing the debate on behalf of the Petitions Committee. I will pick up on one of the issues she mentioned: graduated driving licences.
This petition is about trying to get the cost of insurance down. I am sure that we all support that, particularly for young people. The cost of their insurance is around £950 a year on average, which is prohibitively expensive for many of them. We all want young people to have the freedom and confidence to be able to drive and to develop their driving skills after they have passed their test, but the cost makes that difficult for many of them.
Young people’s insurance is so expensive because they are involved in many of the accidents that happen on our roads. People under the age of 24 drive about 5% of the miles driven in this country, but they are involved in 18% of accidents. In many ways, I can understand why young drivers bear the heaviest burden of insurance costs.
The issue came to my attention after the death of the son of two constituents. They do not want to be named or to receive lots of attention. They are working through their grief privately, and they wish to continue to do that. I will say a bit about what happened, which I do not think will identify them. Their adult son was killed by a learner driver in extremely bad weather conditions shortly before he was going to become a father for the first time. They have worked through a legal process but, as hon. Members can imagine, many lives have been devastated by this event.
My constituents raised the possibility of introducing a graduated driving licence system in the UK—something that has been raised with Ministers previously. Indeed, I raised it at Prime Minister’s questions a few weeks ago, and the Prime Minister gave a very positive response and offered to look into it. As the Minister is present, I will take the opportunity to go into further detail about why the Government ought to explore it.
Places that have a graduated driving licence include New Zealand, some parts of the United States, and Northern Ireland, where the system was recently introduced. The system supports novice drivers, who are young drivers who have recently passed their test, rather than all drivers under 24. In the UK, a 17-year-old can be fully licensed in just a few months, and 89% of young drivers complete less than 40 hours of tuition before taking their test.
A graduated licence could include different measures to ensure that drivers gain more experience before they can drive on any roads in any circumstances with any passengers. I am not being particularly prescriptive about which of the possible graduated licensing measures are appropriate for this country, but I think the Government ought to look at the system in principle. It would not necessarily be right to adopt what has been done in Canada and replicate it here; the system needs to be appropriate for the way that we drive and for our custom and practice.
There could be a learner stage, as we have now, but with a minimum learning period. That would mean that an amount of experience would have to be gained and a number of hours would have to be completed before somebody took their test. Some of that ought to be under the supervision of a qualified instructor, to ensure that there is some quality of instruction—not just instruction that is sufficient to get a driver through a test, but some in-depth learning under a qualified instructor.
I appreciate that learner drivers go out, perhaps with their parents, who may not be qualified instructors, to get some experience of driving, and that is entirely appropriate. However, the accompanying person ought to be over the age of 25 to ensure that they have greater experience. It does not sound very safe for someone who has recently taken their test and who has virtually no experience to take somebody out to get some experience of driving. As the mother of two teenage sons who will shortly, no doubt, want to learn to drive, the whole idea fills me with an enormous amount of dread.
After someone has taken their test, there could be a novice driver stage, which we do not have at the moment, in which they could drive unsupervised. We would have to discuss or consult on whether restrictions should be imposed at that stage. Ought there to be restrictions on carrying passengers younger than 25, unless the driver is a young parent? Obviously we would not want to place that restriction on a 24-year-old parent who has taken their driving test because they need to take their child to school. I suspect that somebody driving a young child around would be incredibly careful and mindful of what they were doing.
We ought also to consider time restrictions, because many accidents that involve young drivers take place between 11 pm and 6 am. We ought to find some way of limiting young drivers to daylight hours during their novice period, for their benefit and for their parents’ peace of mind—unless, of course, they want to get to work or college.
Perhaps a zero-alcohol policy should be imposed on young drivers so that they can benefit from clarity. I am sure the Government have considered such a policy for all drivers, but the data shows that alcohol is an especially significant risk factor for young drivers. We could also consider restricting engine size, or introducing an additional driving test after a certain period to ensure that new drivers have reached the desired standard, that they can drive as we all do and that they would benefit from complete freedom.
There has been much campaigning on the subject in recent years. It has been estimated that more than 400 deaths or serious injuries each year could be prevented by introducing a graduated licensing approach. Public support seems to be growing: a survey by the RAC Foundation found that two thirds of adults and 41% of young drivers would support the introduction of a graduated driving licence, 84% are in favour of a minimum learning period, 70% support a zero-tolerance alcohol policy, and 90% support mandatory lessons on motorways and in difficult conditions for all learners.
Nothing can bring my constituents’ son back. The young learner driver who was responsible will have it on their conscience for the rest of their life, and it must have been a horrific experience for them and for their driving instructor. My constituents make a good argument that, under a more sensible licensing system, the learner driver would not have been out in such horrendous conditions and the accident might not have happened. Where possible, I am very careful to walk instead of taking the car out when the weather is very bad, as it has been in north-east England over the past week. Even people with a great deal of experience think twice about driving in such conditions. We need learner drivers to experience all weather conditions and types of road, and to be able to drive in the dark, fog and rain, but it needs to be taught in stages. Confidence and the ability to react quickly, look around, notice and anticipate what will happen can be learned only by experience.
How seriously are the Government thinking about acting on the issue? Are they prepared to enter into discussions and consultations with interested parties about changing our system and introducing a graduated licensing system?
Alan Brown (Kilmarnock and Loudoun) (SNP)
It is a pleasure to serve under your chairmanship, Mr Davies.
I congratulate the hon. Member for Clwyd South (Susan Elan Jones) on introducing the debate on behalf of the Petitions Committee in her characteristically balanced and thoughtful style. She presented it very well. I particularly liked the way in which she highlighted how the petition’s suggestion of insuring cars rather than drivers might help to limit the number of uninsured drivers on the road. In my experience, a lot of the uninsured drivers who cause problems tend to be uninsured for reasons other than cost—they may have lost their licences for various offences, or they may be serial offenders—so insuring cars might not completely eradicate the problem, but it is certainly worth considering.
I also liked the way in which the hon. Lady highlighted the key issues that should be considered before changing insurance legislation, including cost, personal injury, the possibility of helping the innocent to achieve justice, and overall safety—an issue that the hon. Member for Darlington (Jenny Chapman) picked up on when she spoke about graduated licences.
The hon. Member for Clwyd South also highlighted the possible dysfunction in the market. There is no doubt that many people are cynical about how the insurance market operates, so it is always good to shine a light on it and have transparency. She mentioned insurance premium tax, which was increased a couple of years ago in yet another Budget whammy. The cost of insurance for young drivers is a major issue. The hon. Lady asked the Minister to consider freezing insurance premium tax; I would like the Government to go further and consider introducing age restrictions on it. The cost of insurance for young people is so prohibitive that the extra 10% or 12% on top of their already big premiums is a real hit.
The hon. Member for Darlington mentioned insurance premiums and then raised a matter that was perhaps a bit off topic but that is clearly very important, because she is supporting her constituents in a case that has been really harrowing for them. I certainly understand the arguments for a graduated driving licence scheme and I look forward to the Minister’s response. The hon. Lady’s teenage sons might not appreciate such a scheme, and nor might many other young people, but in the light of the wider consequences for safety, we have to consider the matter seriously. I commend her for raising it.
It is clear that the issue is not as simplistic as car-only versus driver-only insurance, as the petition suggests. The United States system imposes liability insurance requirements on drivers, and many US car insurance policies include restrictions, although they may be as simple as a requirement for a manual driving licence—many cars in the States are automatic and many people have automatic-only licences. The Association of British Insurers lists other considerations relevant to a change in the UK insurance market system, such as experience with particular types of vehicle or age profile. Many car-only insurance policies include restrictions on the age and experience of drivers. It is not quite as simple as someone insuring a car and then all their friends and family being fully insured to drive it.
The petition is loosely based on the situation in Portugal, but as the hon. Member for Clwyd South correctly highlighted, the market in Portugal is not straightforward either. I know from experience that in the United Kingdom it is possible, even under the current market set-up, to insure a car such that drivers other than the named driver are fully insured to drive it. My dad’s car has been insured for many years to cover any valid driver who has his permission to drive it and who holds the necessary licence, although I believe there are some restrictions relating to penalty points and minimum age, so it is clearly possible to get car insurance that includes the flexibility for friends and family to drive.
I, too, have a teenage son, so I can certainly see the arguments and attractions of a car-only insurance premium, which might make driving less cost-prohibitive for young drivers. Certainly my 18-year-old son, Dylan, advocates such a system, because he thinks it will magically reduce his premiums. Clearly, however, it could reduce premiums for him only if we all pay a much higher share ourselves, so again there would be winners and losers, although it might make the market slightly easier for young drivers to enter into.
As the hon. Member for Clwyd South highlighted, this petition has a decent number of signatures—56,000. Last week, when I first got notification of the debate, I think it had 45,000 signatures, so there has been a considerable increase in the past week or so, which I imagine must be due to the interest generated by this debate. At the least, this debate is highlighting an issue for more people to think about.
Only eight of my constituents have signed the petition, so it is fair to say that it has not really caught the imagination of my constituents, or of others; perhaps that is why the Chamber is not quite as busy as it might be for some other petition-led debates. Of course, that does not invalidate the legitimacy of bringing forward the debate and allowing Members of Parliament to consider the issue, and to challenge the Government to consider the possible change that has been highlighted in the debate.
The scenario given in the petition is that a group of friends goes out drinking, and the driver who is responsible for the vehicle gets drunk and cannot drive it. If the car was insured through a car insurance policy, another driver—one of his friends—could drive it home. For me, it is not necessarily a credible proposition to introduce primary legislation for such a scenario. I suggest that education and better planning by people going on a night out is the best way to deal with that scenario. Otherwise, it might end up with somebody driving the car who does not have experience of that car, and if his friends are intoxicated he might not get responsible instructions on how to operate the car. As I see it, that would impose risks rather than being a benefit.
Ironically, if the future of the driving world is as predicted by the Government and many experts, we will have autonomous vehicles taking over rather than driver-led vehicles. In the bright, new, shiny world of the future, we will have driverless cars and therefore, in that scenario I just mentioned—friends going on a night out—there would not be a designated driver, because there would be an autonomous vehicle that could pick people up and safely take them home.
I sat on the Bill Committee for the Automated and Electric Vehicles Bill, in which the Government are legislating for car-only insurance for autonomous vehicles, because the risk model and functionality of those cars, as opposed to driver-led cars, mean that the insurance industry is saying that they need to be insured on a car basis, rather than on a driver basis. That is going through the legislative process at the moment and it may be that driver-led insurance gets phased out in the future.
The reality is that insurance is a risk-based market, so for the insurance market to function properly the insurance companies need to be able to assess the risk and quantify that risk to be able to set premiums. If they get it wrong, there are two scenarios. If they get it wrong and charge too much, they make excessive profits and those paying for insurance pay even higher premiums. If they get the risk model wrong, frankly they will go bankrupt, and if more companies went bankrupt there would be a shrinking market, which could lead to the worst cartel or monopoly situation. That would invariably drive up insurance premiums in the long run.
I will conclude by saying that we should never say never in terms of the changes that might happen, and I will be pleased to hear the Government’s response to the debate. At the moment, however, I am tempted to agree with the initial Government response to the petition—namely, that the change might not be the silver bullet we hope for and might not give the greater flexibility or the reduced premiums that we are looking for. I think that, on balance, the initial Government response is probably correct, but I would certainly like to hear what the Minister has to say about some of the other matters that have been raised today.
Matt Rodda (Reading East) (Lab)
It is a pleasure to serve under your chairmanship, Mr Davies.
I congratulate the Petitions Committee on bringing this matter forward for debate and the hon. Members who have spoken tonight, particularly my hon. Friends the Members for Clwyd South (Susan Elan Jones) and for Darlington (Jenny Chapman), and the hon. Member for Kilmarnock and Loudoun (Alan Brown). I found it particularly moving when my hon. Friend the Member for Darlington mentioned what sadly happened to her constituents, and my heart goes out to them.
Although the petition focuses on one area of reform in the insurance industry, it gives us the opportunity to discuss many other important issues in respect of the high price of car insurance, especially for young people. It is worth pointing out that, while wages have stagnated, the cost of living has increased and premiums for young people have continued to soar. We have heard tonight that analysis by the Association of British Insurers shows that 10% of the average salary of drivers aged between 18 and 21 is now being used to pay their motor insurance bills, which come to an average of £973 for comprehensive cover. That is obviously quite a sum, equating to five times the average premium for all drivers, and it is indeed a significant weight on young people.
The current UK insurance enforcement mechanisms are based on checking that each vehicle is covered by insurance, and insurance is priced according to the risk of a claim, as perceived by the insurance company. Factors that affect this risk include the age and gender of the driver, the type of vehicle and where the vehicle is usually kept or used. The petition seeks to limit the impact of the first of those factors, and it would significantly benefit younger and older drivers.
Of course, there are examples of where the car and not the person is insured. Hire car firms work on that basis, as do many business fleets. Therefore, the argument could be made that the change being proposed would just be an extension of something that is already in existence under English law. However, it is worth noting that both hire car firms and business fleets are frequently restricted to drivers over a certain age, and there is the possibility that if we moved to a car-based scheme to give cheaper insurance to young people, they could be denied insurance completely due to the same sort of age filter being applied. Where insurers could not enforce an age ban, they would certainly continue to set premium rates, such that total income matches total claims. That could result in the people who make the fewest claims paying more for their insurance than the people who make the most claims.
As my hon. Friend the Member for Clwyd South mentioned in her speech, the current system allows insurers to offer a customer a tailored premium to meet their individual needs. If the car rather than the individual was insured, insurers would not have the information to assess the risk of the likely driver and could not underwrite that risk based on the driver’s profile. Also, vehicle technology is changing at a rapid pace, particular models are changing and the features of vehicles vary greatly. That makes the risk profile and relevance of a driver’s experience even more significant.
A change to a car-based model of insurance would mean a redesign of all the systems that car insurers currently use to assess risk and calculate quotes. It is fair to say that that could be a complex, lengthy and costly exercise. My worry would be that any costs incurred by the insurer would be passed on to the customer.
The reality is that there is no one solution to the issue of high premiums for young drivers, however much one might be sympathetic to the problems they face. The insurance industry will always come back to the point that statistically young drivers are, sadly, more likely to be involved in motor accidents than drivers over the age of 25. That issue needs to be tackled from a road safety perspective, which is why many of us feel that there needs to be a Green Paper from the Government on the issue of young drivers and safety.
Indeed, in March 2013 the Department for Transport released a press release that stated:
“Government to overhaul young driver rules in bid to improve safety and cut insurance costs.”
It also said:
“Green paper on improving the safety and reducing risks to young drivers launched.”
It is now 2018—five years later—and we are still waiting to see that Green Paper. Despite calls from road safety campaigners and the insurance industry, the Government no longer appear to be addressing the issue. As far as I am aware, there is no sign of a Green Paper on young drivers at the moment, although I would be very grateful if the Minister could update us. If the Government are serious about doing something to address the core issues affecting the cost of car insurance for young people, they would bring forward this work. I ask the Minister when he is thinking of doing that. If he is not considering doing so, why not?
A Green Paper could look at a number of areas. Telematics, or in-car black boxes, have been hugely successful in bringing down the cost of premiums. They enable insurers to assess real-time data on an individual driver’s behaviour and to charge more accurate risk-based premiums as a result—in some cases, new drivers can see their premiums fall by one fifth or more. Currently, black boxes are subject to VAT, which pushes up the cost for insurers and drivers. Given that the evidence shows that the technology can help to reduce the number of road accidents, surely the question is whether it would be appropriate for the VAT to be removed.
The Green Paper could also address graduated licensing, which the Association of British Insurers believes would have a positive impact. As we have heard, that involves considering how and when individuals can drive after passing their test and it is in operation in some overseas jurisdictions, including Canada. There could be restrictions on the time of day a young driver could drive or on the number of passengers they could have. In countries where graduated licensing has been implemented, it has been proven to lower death and accident rates among young drivers. That is a significant point, as I hope all Members here tonight will concur.
However, such a scheme raises a number of concerns. For example, would it lead to unreasonable curfews on young drivers? What if it led to a young driver being forbidden to travel at night when they could be required to start work early in the morning? The wrong sort of graduated scheme could restrict opportunities and be unfair as a result. I have given only a couple of examples because I am conscious of time, but a Green Paper could explore many other areas that could improve safety for young drivers.
I also want to raise road safety targets. Other parts of the world, and many international bodies of which we are part, back such targets and feel that they should be supported widely. The last Labour Government brought in road safety targets before, sadly, they were abolished by the coalition Government. Road safety targets play an important role in focusing minds and contribute indirectly, as a result, to a fall in the number of young people killed or seriously injured and recorded as road casualty statistics. I am afraid that we are seeing a worrying rise in the number of people who are seriously injured or killed on the roads, with Government figures showing a 4% increase on the previous year in the numbers killed in 2016—the highest level since 2011—and an 8.5% increase in the numbers killed or seriously injured. I wonder, therefore, whether the Minister will consider reintroducing those targets.
This has been a constructive and important debate, and important and thoughtful points have been made by Members from across the House. I do not believe that the proposal in the petition would be the best way to tackle high insurance premiums for young people, for the reasons I have covered. There is no silver bullet, I am afraid. It is time we had a Green Paper on young drivers, so that the Government could have a detailed, rounded, comprehensive look at the matter. It is also time to bring back road safety targets and allow ourselves a longer-term vision of a much safer and, as a result, much better road network, with the numbers killed or injured reduced. Other countries have piloted a zero vision and there is no reason why we should not have such a vision. Road safety targets would be a vital component in achieving that.
The Parliamentary Under-Secretary of State for Transport (Jesse Norman)
It is a delight to serve under your chairmanship, Mr Davies. I would say I was speechless at the joy, except that I have to make a speech. I thank the hon. Member for Clwyd South (Susan Elan Jones) for opening the debate as she did on the important subject of insuring cars rather than the individuals who drive them. I also thank all hon. Members for their contributions, and I welcome the hon. Member for Reading East (Matt Rodda) to his position on the shadow Front Bench. It will be a delight to address some of his points.
I hope I can assure hon. Members that the Government take the cost of motor insurance seriously and are committed to ensuring that it is reasonable for all motorists. To do that, we have sought to identify the root causes of high insurance premiums and to address them directly, but we have no plans to change the current motor insurance system, as stated in our response to the petition, and there appears to be consensus across all the parties whose Members contributed to the debate that that is the correct position.
I will first outline the system and some of the issues and then come on to all the important questions raised by colleagues from across the House. The UK was one of the first countries in the world to recognise the benefit of compulsory motor insurance, back in 1930. Our long-standing approach has been that it is an individual’s use of a vehicle that has to be insured. The current system of insuring individual drivers, rather than vehicles, does not, as has been noted, prevent named drivers from being added to an insurance policy for shorter or longer periods, which can be a cost-effective way for friends or relatives who share a car to be included on a single policy. For a typical family of four sharing a car, the saving with a named-driver policy rather than each family member having their own policy has been estimated to be more than £1,000. There are also new insurance products coming on to the market that facilitate short-term cover, including insurance by the hour and car-sharing arrangements, without the need to change insurance law. Such products make it easy to arrange cover for someone else using your car. One new car insurance app quotes an average of £10.90 for an hour’s coverage, which can be set up at very short notice, and I am sure we can expect further developments of such pay-as-you-drive solutions in the coming years.
It is important to note, as colleagues have, that it is not at all clear that changing the system would reduce the cost of insurance. In fact, there is every reason to think it could raise it. The complexity involved in changing the system would have significant cost implications, yet would not necessarily produce tangible benefits for the consumer. Some countries opt for a car-based rather than a driver-based system because they have no-fault legal regimes, under which each insurer compensates their own policyholder. So it is a question not just of how people purchase insurance but of the wider civil law principle of liability, which is different in the UK from those other countries. Changing our motor insurance system would almost certainly, therefore, involve complex legal changes and require detailed consultation. A change in the underlying legislation would mean that all insurers would need to redesign the systems they used to offer quotes, which, as the hon. Member for Reading East hinted, would be a complex and lengthy exercise and could have significant cost implications for both the industry and, in due course, consumers. Given the alternative solutions available, such as adding a named driver or adding “drive other car” options to motor insurance policies, such significant reforms would be disproportionate.
The price of insurance currently depends on a range of factors, including many that are driver-specific: driving history, including previous claims and unspent drink-driving convictions; the use made of the vehicle, for example, whether for commuting or business; and years of driving experience. If insurers were required to cover the vehicle and were not able to take such factors into account in their pricing, the cost of insurance would likely rise for those with a good driving record and a history of safe driving and they would end up bearing, on a net basis, the additional costs of drivers who were not as careful or safe. The evidence for that is that insurers already tend to charge much higher premiums for any-driver insurance policies, under which less good drivers can join a named driver. Named-driver policies allow friends or relatives who share a car to be included on a single policy and provide the insurance provider with the necessary information to assess the potential risk of each individual.
Turning, as one or two colleagues have already done, to the scenario used in the petition, I wish to note that it is based on a drink-driving situation. Three friends need to get home from a night out, two of whom, including the driver, are under the influence of alcohol and are unable to drive. The petition suggests that a system that insured the vehicle would enable the third friend to drive the group home. However, as has been mentioned, the risk could be significantly greater than is suggested. As has been noted, the owner’s friend may never have driven the vehicle and may have much less overall driving experience or a significantly worse claims history. In an era where vehicle technology is changing rapidly, the variety between newer and older cars is only getting greater, so the driver’s individual experience of a particular make and model of car will have increased significance.
We have to think about the cost of covering vehicles, not people, as well as the incentive that creates. If that group knows that one of its members—they may be the least experienced driver—will be sober, that could create an incentive that removes the restraint on people’s drinking. There may therefore be collateral unexpected consequences, even within the scenario that was set out. That by no means means that the Government are not determined to seek to reduce the cost of insurance, and it is important to make that clear. We have no plans to change the current system, but that does not mean we are not tackling other key issues known to drive up the cost of premiums, several of which have been discussed today.
One issue that has not been discussed is that of the measures we are taking to tackle the high rate of fraudulent, minor and exaggerated whiplash claims. The scale of the problem is highlighted by the fact that 85% of personal injury claims made in 2016-17 relating to road traffic accidents were labelled as whiplash or soft tissue injuries to the neck and back. I am afraid these data are four or five years old, but that figure compares with 30% in France and Denmark, 31% in Spain, 35% in the Netherlands and 68% in Italy, which is a bit more like us. A large number of claims management companies actively encourage claims after even minor crashes, thereby potentially exacerbating the problem. The magnitude of costs that insurers inherit from whiplash claims are often passed on to consumers through higher insurance premiums, raising the cost overall.
In February 2017, the Government announced a robust package of reforms to crack down on minor, fraudulent and exaggerated whiplash claims. The measures will be introduced in a civil liability Bill in due course. Subject to parliamentary time and consideration, the Government aim to implement the whiplash measures as a package in April 2019. It is estimated that the reforms will bring down the cost of motor insurance by around £35 a policy. Leading insurers, such as Aviva, have publicly committed to passing on savings through lower premiums. Motor insurance operates under something of a cloud, as we recognise, and has often been criticised on competition grounds, as colleagues have noted. In many ways, however, it is an intensely competitive industry, and insurers will have be under pressure to pass on savings or risk being priced out of the market. We as the Government will monitor the industry’s reaction to the reforms and will consider further action if required.
I want to pick up on some of the points that Members have raised, which include some important issues that are collateral to the petition, but are important for us to touch on. The hon. Member for Clwyd South mentioned that she had three key tests for legislation in this area. The first was the effect on costs, the second was the effect on the innocent party and the third was whether it would help or hinder road safety. I hope she will recognise that one of the unintended consequences might be to push up the cost of personal injury claims. The UK is famed for its relatively high level of personal injury claims, which is one reason why it yields whiplash claims. Those claims are one of the things funded by insurance premiums. The downside is higher costs, and we have identified that problem, but the upside is that personal injury claims tend to get paid out at a higher level in this country. We are keen to ensure that the link between driver insurance and driver behaviour is maintained precisely to maintain personal accountability.
The hon. Lady, like the hon. Members for Darlington (Jenny Chapman), for Kilmarnock and Loudoun (Alan Brown) and for Reading East, was absolutely right to note the high cost of young people’s insurance claims and the higher risk that young people face in their motoring. In answer to the question raised by the hon. Member for Reading East, I cannot comment on what the coalition Government did or did not promise about a Green Paper, but I can tell him that these issues are of enormous interest and importance to the Government. We have commissioned a lot of work under our Driver 2020 programme, which is specifically designed to explore different forms of intervention that can bear on young people and improve their driving and therefore their insurability. That includes work on hazard perception, simulated training, education, parental engagement, data recorders, telematics and the rest. That is important.
To respond to the hon. Member for Darlington, we absolutely have not ruled out some form of graduated driver licence. We do not think it is the right policy at the moment, but we are looking at it. As she acknowledged, there are different forms of GDL, and it is important to be specific about the elements that might be brought in. It is not policy, but as she has said, and as the Prime Minister has said, we are considering that for precisely this reason. It falls into a wider desire across Government and certainly on my part to reduce the risk to young drivers, particularly in rural areas.
In my county of Herefordshire, I went to an extraordinary demonstration organised by the local fire service called Dying 2 Drive. It is run in connection with the ELY Memorial Trust, which is a wonderful local charity dedicated to helping prevent road accidents for young people. It is the most petrifying experience. Young people in sixth forms are exposed to a road traffic accident with fatalities right there. The situation in front of them is then solved through an intervention by the fire service and the police. It is a very moving experience. It is very hard to see it and drive without great care and attention thereafter, and the evidence is that it is very effective. I would like to see it rolled out by all kinds of fire services. It underlines the wide range of interventions that can be used to try to help this problem of young people at risk on our roads.
I will pick up a couple of other points that have been made. Adverse consequences are a theme that everyone has rightly touched on. We all recognise that the cost of premiums is higher than we would like, particularly for certain groups in society. We are determined to adopt a series of reforms—I have talked about whiplash and the work being done on young people—to try to reduce the high premiums and their impact on particular groups, but we have to be aware of the law of unintended consequences and the danger that such reforms may inadvertently drive up costs and premiums. Costs may be reallocated to people in a way that undermines the incentives to drive well and drive safely. It would be a disaster if we had those counterintuitive and counteractive results.
I am grateful to all Members who have contributed and to the hon. Member for Clwyd South for introducing the debate.
Alan Brown
I thank the Minister for giving way just as he was finishing. In terms of the costs for young drivers, I mentioned the fact that the extra 12% insurance premium tax is a further hurdle for those drivers to overcome. Could the Government look at reforming that?
Jesse Norman
It is hard to respond to that question, because it is about a tax and is therefore handled by the Treasury, rather than my Department. Also, it is not a tax that falls specifically on young people, but on the industry as a whole. As with any tax, one should consider not only the tax but the things it is intended to pay for and might be paying for, whether that is reducing debt or funding public services. The point I would make to the hon. Gentleman is that over the past few years the Department has pioneered a continuous insurance enforcement system that has significantly reduced the number of uninsured drivers by some 40%. Again, we take the point about the concern, but we specifically want to address the cause of it, which is the number of uninsured drivers. That is the core point of the remark.
To wind up, I am grateful to colleagues across the House and the hon. Member for Clwyd South for introducing this debate. I am grateful to the Petitions Committee for putting it on our docket. We all recognise that the cost of car insurance is an important issue for all motorists. That is why the Government are committed to the things we have discussed tonight: tackling fraudulent whiplash claims, working with the motor insurance market, keeping premiums as low as they can be and addressing the risks and concerns that relate to young people and those in rural areas. I hope on that basis that the House will be satisfied.
Susan Elan Jones
Again, I want to put on the record my thanks and those of the Petition Committee to the creator of the petition and to its signatories. It is rare in this place to have an in-depth discussion on car insurance. In my seven and three-quarter years as a Member I cannot remember a time when we have looked at car insurance and, in the same breath, road safety, but today’s debate has done that.
I want to pay a special tribute to my hon. Friend the Member for Darlington (Jenny Chapman) for her comments on the graduated licence. As she was speaking I thought back to my time as a sixth former when some friends who had passed their driving tests before me kindly offered to take me round the roads and country lanes of north Wales. It was an immensely enjoyable experience and absolutely useless in terms of driving practice to pass a test. I failed my driving test on three occasions until I went to university and passed on the streets of Bristol. I wholeheartedly agree with my hon. Friend that there is a very strong case for a graduated licence. I also agree about the alcohol restrictions of which she spoke. I hope that if that idea ever sees the light of day we could see car insurance premiums for young people reduced, and also greater safety on our roads, which cannot come a day too soon.
My hon. Friend the Member for Reading East (Matt Rodda) mentioned a Green Paper, which I would welcome. The Minister has not exactly ruled it out and I hope that that might be considered in future. In today’s debate we have been able to look at car insurance and the critical issue of road safety in the round. I whole- heartedly thank again the creator of the petition and all the signatories who made that possible for us.
Question put and agreed to.
Resolved,
That this House has considered e-petition 207616 relating to changes to car insurance.
Written Statements
Agriculture and Fisheries Council
(6 years, 8 months ago)
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The Minister for Agriculture, Fisheries and Food (George Eustice)
Agriculture and Fisheries Council took place in Brussels on 19 February. Counsellor Rory O’Donnell represented the UK.
The most substantive Council discussion was an exchange of views on “the future of food and farming”, a continuation of early discussion of the Common Agricultural Policy (CAP) post 2020. Member states agreed on the importance of direct payments in providing income stability to farmers. The UK signposted a future domestic agriculture policy based on rewarding farmers for public goods.
The Council moved on to a discussion of possible revisions to the EU bioeconomy strategy. Member states were in agreement that the agricultural sector would benefit from a greater role in the bioeconomy, particularly in exploring new methods of adding value in agricultural supply chains.
The European Commission provided Council with information on an EU protein plan. The UK welcomed the plan, and particularly planned actions to tackle deforestation.
Three further items were discussed under “any other business”:
the European Commission presented information to Council on the rural Africa task force
the Polish delegation presented a paper to Council on rural development in the CAP post 2020
the Agriculture Ministers of the Visegrad member states presented a joint declaration to the Council on “the future of food and farming”.
Until the UK leaves the European Union, the UK remains a full member of the EU and all the rights and obligations of EU membership remain in force. The outcome of our negotiations with the EU on the future partnership will determine what arrangements apply in relation to EU legislation in future.
[HCWS504]
Independent Monitor Annual Report 2016
(6 years, 8 months ago)
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The Parliamentary Under-Secretary of State for the Home Department (Victoria Atkins)
The 2016 annual report from the Independent Monitor is being published today on www.gov.uk. A copy of the report will also be placed in the House Library.
[HCWS507]
Licensing Hours: Royal Wedding
(6 years, 8 months ago)
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The Parliamentary Under-Secretary of State for the Home Department (Victoria Atkins)
The Government have consulted on a proposal to make a Licensing Hours Extension Order under section 172 of the Licensing Act 2003 to relax licensing hours nationally to celebrate the wedding of HRH Prince Henry and Ms Meghan Markle on 19 May 2018. Following this consultation, the Government have decided to extend licensing hours on the nights of Friday 18 and Saturday 19 May until 1 am the following mornings to mark this occasion of national celebration.
The order will apply to the sale of alcohol for consumption on the premises and the provision of late-night refreshment in premises already licensed to sell alcohol for consumption on the premises in England and Wales.
The Government response to the consultation and an accompanying impact assessment were published yesterday on the Home Office website, available at:
www.gov.uk/government/consultations/relaxation-of-licensing-hours-for-the-royal-wedding.
Copies will also be placed in the House Library.
[HCWS506]
Safeguarding Children and Protection
(6 years, 8 months ago)
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The Parliamentary Under-Secretary of State for the Home Department (Victoria Atkins)
The Under-Secretary of State for Education, my hon. Friend the Member for Stratford-on-Avon (Nadhim Zahawi) and I have today published the Government’s response to the consultation exercise on reporting and acting on child abuse and neglect.
The consultation, which ran from 21 July 2016 to 13 October 2016, sought views on key issues relating to the child protection system and on the possible introduction of one of two new statutory measures, namely:
a mandatory reporting duty, which would require certain practitioners or organisations to report child abuse or neglect if they knew, or had reasonable cause to suspect, it was taking place; or
a duty to act, which would require certain practitioners or organisations to take appropriate action in relation to child abuse or neglect if they knew, or had reasonable cause to suspect, it was taking place.
All children have the right to be safe from harm. Keeping children safe is the responsibility of everyone who comes into contact with children and families, and we all have a role to play in protecting children and young people from child abuse and neglect.
The legal duties the Government consulted on would involve a particular focus on practitioners: across children’s social care, the police, health, education, and other sectors. The vast majority of such practitioners are committed to doing all they can to safeguard and promote the welfare of children, through recognising children’s needs early and taking action so that children receive the right support at the right time.
We are absolutely clear that practitioners should make an immediate referral to local authority children’s social care if they believe that a child has suffered harm or is likely to do so, as set out in statutory guidance already. We know, however, that despite the best efforts of practitioners working with children and families, some abuse and neglect continues to go undetected by statutory agencies. This can happen for a variety of reasons, including failures to report or share information properly, and failure to perceive abuse or understand the nature and level of the risk of harm faced by children.
In circumstances where professionals fail to identify or fail to report the signs of abuse and neglect, the consequences can be catastrophic. However, triennial analysis of serious case reviews demonstrates that in most cases the significant harm or death of children occurs despite their being known to children’s social care. So the issues are complex and challenging and introducing a new statutory duty is not a simple, straightforward solution, as some argue.
We received 768 responses to the consultation exercise, from a wide range of interests including practitioners and others in the education, health, social care and local government sectors, children’s charities, survivors’ groups, the police and members of the public. We have considered all the responses and relevant issues carefully.
The majority of respondents (63%) were in favour of allowing the Government’s existing programme of reforms time to be implemented before considering additional statutory measures. Only a quarter (25%) of respondents favoured introducing a duty to act, with less than half of that number (12%) favouring the introduction of a mandatory reporting duty.
Given the consultation outcome and after careful consideration, we have concluded that the case for the introduction of a mandatory reporting duty or a duty to act has not been made, and would not, against the landscape of our current arrangements, deliver better protection for children. Therefore, neither of these proposals will be taken forward at this time. We will implement the reforms set out in the Government’s response and evaluate whether this is having the intended impact once these are embedded, in addition to continuing to assess any new or different evidence supporting the need for further changes.
We remain committed to examining all options to improve further the children’s social care system and tackle abuse in all its forms. In addition to our already wide-ranging programme of reforms, we will therefore focus on taking steps to address the key issues raised by respondents to the consultation. This action includes:
improving multi-agency working, in particular through strengthening information sharing for safeguarding purposes, including better local arrangements;
publishing our revised “Working Together to Safeguard Children” statutory guidance and launching a further phase of the communications campaign, “Together, we can tackle child abuse” ahead of its publication;
looking at the current legislative framework to assess whether it is able to deal appropriately with concerns about concealment of child abuse and neglect; and
continuing our work to improve the training, accreditation and regulation of practitioners, so that they can better safeguard and promote the welfare of children.
To repeat, every child deserves to and must be protected from abuse and neglect. We are determined to do all that we can to strengthen our child protection system in ways which we expect will bring real benefits to children.
Copies of the Government’s response have been placed in the House Library and are available on the Government’s website: https://www.gov.uk/government/consultations/reporting-and-acting-on-child-abuse-and-neglect.
[HCWS508]
Planning Policy
(6 years, 8 months ago)
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The Secretary of State for Housing, Communities and Local Government (Sajid Javid)
The Government have made it clear that we need to get our country building. At Budget 2017 we set out reforms to enable us to achieve 300,000 homes built each year by the middle of the next decade. The Housing White Paper, published in February last year, set out our plans. In September, we launched the planning for the right homes in the right places consultation, which introduced a standardised formula for calculating local housing need.
Today we are publishing our response and launching the next step; consultations on the revised national planning policy framework and the reform of developer contributions.
This planning reform package, which includes the revised draft national planning policy framework (NPPF) and reforms to developer contributions, are fundamental to delivering the homes we need and set out a comprehensive approach to ensure that we get the right homes built in the right places of the right quality.
The policy proposals only relate to England. The consultation will run from 5 March until 10 May 2018.
Copies of the consultation document will be placed in the House Library and are available on the Government’s website here:
https://www.gov.uk/government/collections/national-planning-policy-framework-and-developer-contribution-consultations
An oral statement will be delivered to both Houses later today.
[HCWS505]
House of Lords
Air Guns
(6 years, 8 months ago)
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Lord Black of Brentwood
To ask Her Majesty’s Government what plans they have to introduce a regime for the purchase, possession and use of air guns.
The Minister of State, Home Office (Baroness Williams of Trafford) (Con)
My Lords, the purchase, possession and use of air weapons are already regulated. However, we are reviewing the regulatory position in England and Wales. We asked for the views of interested parties in December and we received a large number of representations from the wider public. We will consider these carefully before deciding how to proceed and we will publish the outcome in due course.
Lord Black of Brentwood (Con)
I thank my noble friend for that Answer. Is she aware that a growing number of crimes involving air weapons relate to senseless attacks on domestic animals, particularly cats, nearly half of which die as a result of the often horrific injuries? The Cats Protection charity recorded 164 attacks on cats and kittens with an airgun last year, while the RSPCA received nearly 900 calls to its cruelty hotline reporting air weapon attacks on animals. This makes 4,500 attacks in the last five years. Is it time to license these weapons, to ensure that they are possessed only for legitimate purposes by responsible owners, not by those who would cruelly inflict pain and suffering—and often death—on defenceless domestic animals?
Baroness Williams of Trafford
As a cat lover and cat owner, I totally sympathise with my noble friend’s Question. The Government take animal welfare very seriously. Anyone who shoots a domestic cat is liable to be charged and prosecuted, under the Animal Welfare Act 2006, with causing unnecessary suffering. We are increasing the maximum penalty for this offence from six months’ imprisonment and/or an unlimited fine to five years’ imprisonment and/or an unlimited fine. The number of offences involving air weapons in the year to March 2017 was similar to that in the previous year and there were 64% fewer air weapon offences than a decade previously. Following the recommendation from the coroner in the case of Benjamin Wragge, we are looking at the regulation of air weapons with an open mind. The review will also consider the position in Scotland and Northern Ireland, where licensing regimes are in place for air weapons.
The Earl of Shrewsbury (Con)
My Lords, I declare an interest as the honorary president of the Gun Trade Association. Is my noble friend aware that the primary concern of the shooting sports organisations—in this country—is the safety of the public through the responsible ownership and use of all legally held firearms? Does she agree that the firearms Acts deal with airgun issues in piecemeal fashion and need consolidation, so that they can be more easily accessed, understood and obeyed by all?
Baroness Williams of Trafford
In answer to my noble friend’s first question, I totally agree and have seen at first hand that responsible use should be at the heart of all country and field sports. I will certainly take back his point about consolidating the various regulations and licensing.
Baroness Hamwee (LD)
My Lords, the Government’s guidance says that,
“if you have never shot before, you would be well advised to go to a shooting club … and learn … how to handle your air weapon safely and responsibly”.
It advises people to learn about this. Does that not tell us all we need to know about the desirability and importance of licensing?
Baroness Williams of Trafford
My Lords, this country has some of the strictest gun laws in the world. The outcome of the review will be very interesting and the Government will certainly take good cognisance of it in responding to it. The noble Baroness is absolutely right that these things should be as tightly regulated as possible.
Lord Kennedy of Southwark (Lab Co-op)
My Lords, the Minister is correct in saying that we have some of the strongest gun laws in the world. However, they are still not strong enough. In the hands of irresponsible people these weapons can kill; she mentioned the tragic case of Benjamin Wragge. An 18 month-old child in the constituency of my honourable friend Karin Smyth in the other place was injured by an air weapon recently. We need a responsible licensing system, and will the Minister look at the whole question of storage? The current advice is that these weapons can be stored in a locked cupboard, which is not good enough.
Baroness Williams of Trafford
The noble Lord is absolutely right, and the firearms licensing system is kept under review to make sure that it is not abused by criminals and terrorists and to preserve public safety. In response to the recommendations made by the Law Commission, we strengthened the firearms controls through the Policing and Crime Act. Two new offences were introduced of intending to unlawfully convert imitation firearms—making them effectively deactivated weapons—and making them available for sale or as a gift. We have recently consulted on proposals to prohibit two types of firearm—large-calibre and rapid-firing rifles—and on defining antique firearms in legislation to prevent them being used by criminals.
The Countess of Mar (CB)
My Lords, what is the age range of offenders when they are caught? If they are youngsters, as I suspect, would it not be a good idea if parents, who often buy these things as presents for their teenagers, are advised that the present should be accompanied by lessons?
Baroness Williams of Trafford
In terms of the age range, people using guns have to be over 18. I certainly agree with the noble Countess that anyone who is in possession of a gun for whatever legal purpose definitely should be taught how to use it properly.
Lord Campbell-Savours (Lab)
My Lords, the effectiveness of the law is dependent on the level of compliance. Is it not true that the level of compliance in Scotland is very low?
Baroness Williams of Trafford
As I said in my answer to my noble friend Lord Black, we are certainly looking at the regime in Scotland as part of our review and in coming to our conclusions.
Baroness Hodgson of Abinger (Con)
My Lords, can my noble friend please tell me how many people were prosecuted last year for injuring animals in this way?
Baroness Williams of Trafford
I can certainly tell my noble friend about the number of fatalities. I know that the number of these crimes has fallen. I am trying to find the figure, but will have to write to her about that.
Lord Foulkes of Cumnock (Lab)
My Lords, as we know, the Scottish Government do not always get everything right. However, in this case, the law there seems to be working effectively. Why is England having to wait?
Baroness Williams of Trafford
As I have said twice now, we will certainly look to the regime in place in Scotland as part of the review and in coming to a view.
General Practitioners: Workforce
(6 years, 8 months ago)
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Baroness McIntosh of Pickering
To ask Her Majesty’s Government what assessment they have made of the number of general practitioners taking early retirement; and what steps they are taking to increase the size of the general practitioner workforce.
Baroness McIntosh of Pickering (Con)
My Lords, I beg leave to ask the Question standing in my name on the Order Paper. In doing so, I refer to my registered interest.
The Parliamentary Under-Secretary of State, Department of Health and Social Care (Lord O'Shaughnessy) (Con)
My Lords, in the 2016-17 pension scheme year, 721 GPs took early retirement, representing 62% of all GP retirements. However, it should be noted that many GPs who take their NHS pension then return to service. Early retirement does not necessarily mean a loss of skills and experience to the NHS. We recognise, however, the need to increase the general practice workforce, which is why the Government remain committed to delivering an additional 5,000 doctors working in general practice by 2020.
Baroness McIntosh of Pickering
My Lords, we appear to be in a vicious cycle of doctors retiring early and then coming back and working part-time and fewer EU doctors coming to work here. What can my noble friend do to increase the number of doctors wishing to enter GP practice as opposed to other specialties, and what will the certification procedure be for EU doctors to be recognised as doctors to practise post Brexit in this country?
Lord O’Shaughnessy
I thank my noble friend for her question. It is interesting to note, looking at the figures, that the total number of retirees from general practice has been falling in recent years, which is very welcome, even though in the past few years there has been an increase in the number taking early retirement. As for entering general practice, that is how we need to get more GPs. The number of training places has increased to a record 3,250, which is an 18% increase over the past three years. Finally, on certification, mutual recognition of professional qualifications is of course a matter for negotiation as part of our future relationship with the EU. However, I can tell my noble friend that the Government are committed, under whatever circumstances, to recruit 2,000 international GPs in the coming years.
Baroness Thornton (Lab)
My Lords, I declare an interest as a lay member of a CCG. GPs are indeed retiring before the age of 60; in fact, last year, twice as many retired as three years ago. More GPs are leaving the profession than are joining it, and soaring numbers of junior doctors are leaving the NHS after their two-year foundation training. How do the Government intend to fill the failing pipeline of junior doctors, and would the Minister care to speculate why there is a flood of departing junior doctors right now? Could it be due to junior doctors’ rock-bottom level of morale after their shabby treatment by the Secretary of State?
Lord O’Shaughnessy
The noble Baroness might be interested to note that in 2014, the number of GPs in specialty training was 2,671, and in 2017, it was 3,157—an increase of nearly 400. That is how we are filling the places.
Lord Carlile of Berriew (CB)
Is the Minister aware of the increasing number of inner-city general practices where the entire GP workforce consists of locum doctors because of recruitment problems? Does he agree that that is an expensive way to provide GPs, and one which diminishes the doctor-patient relationship?
Lord O’Shaughnessy
I agree with the noble Lord: we need to crack down on agency and locum spend. That has been falling in recent years. The way we will fix this issue and the demand for general practice in a sustained way is to increase the number of GPs coming into the service, and, as I said, that is exactly what we are doing.
Baroness Jolly (LD)
My Lords, there should be a move to recruit newly-qualified doctors to general practice and to prevent GPs retiring earlier and earlier, but that is not as easy as it sounds. Can the Minister therefore tell the House what work has been done to enable job-sharing, so that part-time GPs balancing a family life can partner with older GPs who want a less full-time commitment?
Lord O’Shaughnessy
I shall have to write to the noble Baroness with the specifics on GP flexibility. However, one of the reasons that GPs take early retirement to take advantage of their pension is that it enables them to work flexibly afterwards.
Baroness Redfern (Con)
My Lords, regarding the workforce, having pharmacists in GP practices means that GPs can focus their skills where they are most needed: diagnosing and treating patients with more complex needs. Does the Minister agree that this not only helps GPs manage demands on their time but helps to ease their workload, while patients have the convenience of being seen by the right professional, improving quality of care and ensuring patient safety?
Lord O’Shaughnessy
My noble friend is absolutely right. As well as our commitment to increase the number of GPs by 5,000, we also have a commitment to increase the number of GP practice staff by 5,000, including 1,500 pharmacists, who provide exactly the kind of support she outlined.
Lord Turnberg (Lab)
My Lords, one of the reasons why general practice is less attractive than it used to be is because of the enormous bureaucratic load that is placed on GPs nowadays. They have to sit on committees and on CCGs, and they rush around doing non-clinical work. Is there any way to reduce this non-clinical workload?
Lord O’Shaughnessy
That is an important issue. We know that workload is a problem. I point the noble Lord and other noble Lords to NHS England’s 10 high-impact actions. These are actions which all GP surgeries can take; for instance, using technology such as e-booking and e-prescribing to reduce the kind of workload he is talking about.
Lord Forsyth of Drumlean (Con)
My Lords, does my noble friend not acknowledge that one reason that GPs are retiring after the age of 55 is that their salaries are such that their pension exceeds the limit, which the previous Chancellor reduced from £1.8 million to £1 million, and they find themselves having to pay tax on their pension contributions at 55%? Would not the simple solution be to raise the threshold, thereby allowing GPs to continue in practice and not be taxed on their pension contributions unfairly?
Lord O'Shaughnessy
My noble friend is quite right—there has been anecdotal evidence that that is the case. Of course, any policy changes are well above my pay grade, but I should point out that that does not seem to have affected early retirement among dentists and consultants, so it is possible that another critical factor is at work.
Lord Patel (CB)
My Lords, it is suggested that part of the reason for the failure of junior doctors to be recruited as GPs is the nature of GP contracts, which treat them as independent contractors. I know that several are now employed as salaried doctors, but do we have figures for how many salaried GPs, as opposed to principal general practitioners, are employed by the NHS?
Lord O'Shaughnessy
That is an evolving model, as the noble Lord has pointed out, and I will write to him with the exact figures. The partnership model has an enduring popularity and importance, which is why the Secretary of State has asked for a review of it. However, as we see new models of care develop, I am sure that salaried GPs will become more of a feature of the system.
Lord Roberts of Llandudno (LD)
My Lords, many refugee medical trainees are coming over. Is there no way that we could help them finish their medical courses and then deploy their skills in this country before it is safe for them to return to their country of origin?
Lord O'Shaughnessy
The noble Lord has asked that question before. He will be pleased to know that there is specific help for refugees and others through waiving fees for language courses and other elements of the professional qualification process, and we can bring those into practice as soon as possible.
Green Finance
(6 years, 8 months ago)
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Lord Teverson
To ask Her Majesty’s Government what plans they have to issue a sovereign green bond to support the United Kingdom’s position in the global green finance market.
The Minister of State, Department for International Development (Lord Bates) (Con)
My Lords, the Government support development of the corporate green bond market. The Green Finance Taskforce is considering recommendations in this field. The Economic Secretary and the Minister for Energy and Clean Growth met the task force on 26 February to discuss emerging recommendations.
Lord Teverson (LD)
My Lords, I understand the point about corporate green bonds, but a year ago France issued a €7 billion green sovereign bond, and Poland did so before that. We are starting to lose our position in this market, not just in Europe but globally. Surely at this time it is really important that the City leads in this area. This would be simple and getting on with it now would involve no extra cost. Will we do so?
Lord Bates
We have said that we are open to that. It is one option being looked at by the Green Finance Taskforce, and it feeds into the work of the Green Finance Initiative in the City of London, which is doing great work in this area. However, we should not overstate the extent to which we are being left behind. We are in a position where some 63 green bonds in seven currencies listed on the London Stock Exchange, amounting to £20 billion—that figure represents an increase of 93% between 2016 and 2017. However, we will keep all options open and listen to the advice that we are given.
Lord Flight (Con)
My Lords, will the Government consider allowing local authorities to raise funds by bond issues, particularly in areas of environment expenditure?
Lord Bates
Many of those areas are for the local authorities concerned to look at. One thing that we have introduced is the clean air fund, which was announced by the Chancellor, and some £220 million will be available specifically to help local authorities in that area, but of course local authorities are able to come forward with their own proposals, should they choose to do so.
Lord Davies of Oldham (Lab)
My Lords, the House will be concerned that the Minister’s main reply was that we are looking at this issue. France, Belgium and Poland have already acted, and certainly the next Labour Government will act promptly on the question of a green fund for the necessary control of climate change. Why are the Government always thinking about and considering things and looking at proposals when others act?
Lord Bates
We are thinking about it because there is quite a lot to think about. The issue is, first of all, whether the Government should be launching these bonds while the market itself is growing quite dramatically. Five years ago, there were virtually no green bonds, or a very limited amount, but now their issuance is $160 billion globally, with some $200 billion predicted for this year. That is happening. Secondly, the Debt Management Office would have to look at whether there is a sustainable demand for hypothecated bonds, in this case. It is not something that we have tended to issue, nor have previous Governments—we tend to operate through gilts. Therefore, it is right that we listen to the expert advice that we receive and then act upon it.
Baroness Kramer (LD)
My Lords, I encourage the Government to take on board the warnings that Paris and others are surging ahead in this market because of their willingness to establish that base through green sovereign bonds. I suggest to the Minister that ordinary people would like the opportunity to invest in green and sustainable investments. Will the Minister turn to the NS&I and ask it to make available for ordinary people a scheme that would let them invest in some sort of green investment or savings scheme?
Lord Bates
The last point in particular is very interesting and it is certainly worth the NS&I looking at it. Again, that comes within the remit of the Green Finance Taskforce. It was asked to look at intuitional barriers to green finance but also at retail. All that is very much in its remit, and we would encourage it to look at those issues.
Lord Mountevans (CB)
My Lords, given my understanding that there is no cost premium for a sovereign green bond, and given the very positive signal that issuance from the UK Government would carry, will the Minister acknowledge the benefits that this would have for pump-priming the market, as with the sovereign sukuk, for encouraging other public sector issuance—for example, municipal green bonds—and for boosting the creation of green finance skills in financial institutions?
Lord Bates
A lot is being done to pump-prime the market at the present time. Some of the issuances that have already taken place or been announced, such as that from Barclay’s and the Thames tideway tunnel, have been part of the stimulation and growth packages that we referred to. That is why we have the task force, why we are very pleased to be partnering with the City in the Green Finance Initiative and why we should take its advice and act upon it.
Prisons: Women
(6 years, 8 months ago)
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Baroness Burt of Solihull
To ask Her Majesty’s Government what assessment they have made of the suitability of bids for replacement services for women prisons made following the closure of HM Prison Holloway.
The Advocate-General for Scotland (Lord Keen of Elie) (Con)
My Lords, women formerly held at HM Prison Holloway were transferred to other prisons from July 2016. Where equivalent provision was not already in place at the destination prison, HM Prison and Probation Service managed the transition of services from Holloway, giving due consideration to the needs of both service providers and the prisoners that they support. As a result, bids for replacement services were not undertaken.
Baroness Burt of Solihull (LD)
My Lords, 11 years ago, the Corston report stated that the Government should create a strategy to replace existing women’s prisons with suitable, geographically dispersed, small, multifunctional custodial centres within 10 years. As the noble and learned Lord has pointed out, Holloway is now closed and female offenders are being redistributed, even on short-term sentences, all over the country, which negatively impacts on the stability of their family life. Is the Minister saying that this policy is not now going to be pursued by the Government?
Lord Keen of Elie
My Lords, with regard to the dispersal of prisoners from HM Prison Holloway, there were at the time of the move 241 prisoners who had to be transferred to other prisons. Of those, 114 were transferred to Downview and the remand prisoners, extending to about 56, were transferred to Bronzefield. Both those establishments had suitable facilities and services for the prisoners who were transferred. We are, of course, engaged in looking at and renewing the entire prison estate at the present time, which is one reason for the disposal of HM Prison Holloway.
Lord Beecham (Lab)
My Lords, it is nearly two and a half years since the closure of Holloway was announced and 20 months since it closed. As we have heard, prisoners have been moved outside London to Surrey, Kent, Peterborough and beyond, with serious effects on staffing and the well-being of prisoners now further away from their families. More efforts appear to be made to develop the former site than to replace the prison. Why was the closure implemented before accessible, suitable and permanent provision was secured?
Lord Keen of Elie
My Lords, accessible and suitable provision was secured for those prisoners who were transferred from Holloway. I have indicated that they were transferred to Downview, in particular, Bronzefield and one or two others. There were individual interviews in respect of all prisoners in order to determine the suitability of their transfer. In addition, 24 service providers at Holloway transferred to Downview and a further 12 were replaced with equivalent provision at Downview. We consider that suitable provision was made in respect of these transfers.
Lord Farmer (Con)
My Lords, Brazil’s Supreme Court recently ruled that pregnant women and mothers with children under 12 accused of non-violent crimes will not be held in prison on remand but detained at home. Do the UK courts consider the presence of dependent children when determining whether women awaiting trial for non-violent crimes will be allowed bail?
Lord Keen of Elie
My Lords, that is a relevant consideration because, since the Bail Act 1976, it is already presumed that a defendant will be bailed. That is the starting point in consideration of each defendant and that presumption has to be overcome. In looking at the presumption, a court will have regard to the personal circumstances of the defendant, including any caring responsibilities they may have.
Baroness Hussein-Ece (LD)
My Lords, perhaps I may press the Minister further on the response he gave to my noble friend’s Question when he said that the women from Holloway were being dispersed around the country, some as far as Peterborough. He made no mention of what is happening for women in London. Holloway was the largest women’s prison and had been in London for many years. What has happened to the women who have a base, families, dependents and children in London, as has just been mentioned?
Lord Keen of Elie
As I indicated, the vast majority of those at Holloway were transferred to Downview, which is accessible in that context, and to Bronzefield. We are in the process of renewing the entire prison estate, but that cannot be done overnight.
Lord Ramsbotham (CB)
My Lords, for some time we have been promised a strategy on women in the criminal justice system. Can the Minister tell the House when this strategy is expected?
Lord Keen of Elie
At the present time there is in development a strategy in respect of female offenders. I am not in a position to say when that will be delivered but we are carrying it through as swiftly as we can.
Lord Watts (Lab)
My Lords, the Government have two choices. One is to speed up the process of modernisation of our jails; the second one is to reduce the number of people who are sent to jail. Is it not time they took one of those options on board and took action on this matter?
The Lord Bishop of Rochester
My Lords, in relation to the strategy that is under development, can the Minister assure the House that this will include what happens to women upon release, perhaps with particular mention of women’s centres? Some of the most vulnerable people in our society are often released even into homelessness and into places where there is no support.
Lord Keen of Elie
My Lords, we are seeking to invest in what is termed the whole system approach in respect of female offenders who are released from custody in order that we can develop a female offender strategy. By 2020 we will have invested £1 million in seed funding investment for community provision.
Lord Woolf (CB)
Does the noble and learned Lord agree that in dealing with female prisoners it is most important that great attention is paid to the need for offenders to have regular contact with their children? Otherwise there is a danger of repetition by succeeding generations of what happened in the case of the offender.
Lord Keen of Elie
I entirely agree with the observations of the noble and learned Lord. We are concerned to ensure that such contact can be maintained. At another level, of the 12 prisons currently located throughout the country for female offenders, six have mother and baby units.
Baroness McIntosh of Hudnall (Lab)
My Lords, of the women who were moved from Holloway when it closed, and aside from those who have since been released, how many have remained where they were sent in the first instance? This is relevant in respect, for example, of contact with families. How many, if any, were moved again after that first move?
Lord Keen of Elie
I am not in a position to give specific figures in response to the question from the noble Baroness, but I will undertake to write if they are available and I will place a copy of the letter in the Library.
Baroness Hamwee (LD)
My Lords, the noble and learned Lord has mentioned mother and baby units. Am I right in thinking that those are units for newborn and very young babies? The noble and learned Lord, Lord Woolf, referred to older children and the importance of maintaining family connections beyond the age of six months or so.
Lord Keen of Elie
My Lords, I fully acknowledge that, which is why I added the addendum with regard to the number of mother and baby units because contact at that stage is also very important. Clearly we understand the need for contact between female offenders and their families in general.
Lord Cormack (Con)
My Lords, is my noble and learned friend entirely confident that sufficient attention is being given to community restorative justice? Would not many of the women who are given custodial sentences be of better use to their families and society if they went down that route?
Lord Keen of Elie
My Lords, we are looking at alternatives to custody right across the prison estate. I would add this in response to my noble friend: I am never entirely confident about anything, let alone this issue.
European Union (Withdrawal) Bill
Monday 5th March 2018
(6 years, 8 months ago)
Lords ChamberRead Full debate European Union (Withdrawal) Act 2018 View all European Union (Withdrawal) Act 2018 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 79-IV(b) Manuscript amendment for Committee, supplementary to the fourth marshalled list (PDF, 79KB) - (5 Mar 2018)
Baroness Sherlock
“Maintenance of rights in the area of family law
(1) Within six months of the passing of this Act, a Minister of the Crown must publish a report outlining the ways in which the rights afforded by EU family law continue to exist in domestic law.(2) The report provided for under subsection (1) must include—(a) the steps, if any, taken by Ministers of the Crown to negotiate the continuation of reciprocal arrangements between the United Kingdom and member States in the field of family law;(b) the nature and duration of these reciprocal arrangements, if such arrangements have been successfully negotiated; and(c) a declaration from the Minister of the Crown outlining whether, in their view, the rights of individuals in the area of family law have been weakened.(3) The Minister of the Crown must lay the report before both Houses of Parliament.”
Baroness Sherlock (Lab)
My Lords, in moving Amendment 29 I shall speak also to Amendments 53, 120 and 336, all tabled in my name. In doing so, I should like to record my appreciation of the work done by the Brexit and Family Law group, especially the members of the Family Law Bar Association, Resolution and the International Academy of Family Lawyers who have worked so hard to produce expert briefing for the House.
At Second Reading I set out the problems facing international family law post Brexit. I have tabled these probing amendments specifically to give the Minister the opportunity to reassure the Committee that he understands the severity of the problems and tell us how the Government propose to take forward family law provisions within the UK after Brexit. I will spell out—as succinctly as I can, given the complexity of this issue—what the problems are, explain the only two ways I can think of in which the Government could deal with this, and invite the Minister to tell us in which direction they plan to take the country.
Amendment 336 simply clarifies what counts as family law for the purposes of this debate. It focuses on two main instruments, the first of which is Council Regulation No. 2201/2003, known as “Brussels II revised”, or “Brussels IIa” in the jargon. It deals with jurisdiction for divorce and issues about parental responsibility for children. As well as private law disputes about child arrangements within a family, it covers child abduction cases and public law disputes where local authorities seek child protection measures. The second is Council Regulation No. 4/2009, known as the maintenance regulation, which deals with child maintenance obligations and maintenance for the adults in a family. There are plenty of other important EU instruments that affect families, but because of time I will not go through them all.
Let me explain how the EU family law provisions named in Amendment 336 work. Unlike in other areas of law, each EU state makes and keeps its own family law, so that countries decide the terms of their own substantive family law. These EU family law provisions are really about procedure and they do three things, the first of which concerns jurisdiction. They provide a mechanism for deciding which country’s courts take precedence if cases are issued in two countries at the same time, thereby avoiding expensive parallel proceedings that could lead to contradictory decisions. The certainty and predictability make it easier for families to understand what will happen.
Number two is enforcement; that is, a court order for maintenance or child contact—or an injunction against harassment issued by an English court—can be enforced in other EU states, and vice versa. Thirdly, there is co-operation between EU member states, for example the sharing of information to protect children, help locate people to make them pay maintenance or start proceedings across borders.
The Bill copies those EU provisions into UK domestic law, but the whole point of the regulations is that they will work on a reciprocal basis. When we leave the EU we will lose that reciprocal aspect. The Bill cannot solve that problem; in fact, it creates an additional one. By importing EU provisions, we do not change our substantive law but we do retain our obligations toward the judgments of other EU member states, without any guarantee of reciprocity. So we have a one-way street where the UK is obliged to apply current provisions but the EU 27 will not have to do the same for us. A Polish order to return an abducted child or enforce a contact order would be automatically enforceable in England, but the reverse would not be true. English orders might be enforceable using other international conventions, but those have different provisions and there would be a mismatch in the way decisions are treated. A British woman could be forced to stop her divorce case in the English courts if her husband had filed first in Germany, but the reverse would not be true. The couple could end up with cases running simultaneously in Birmingham and Berlin at vast expense and reaching contradictory decisions on maintenance with no certainty of enforcement. There are no other international conventions applicable across the EU to help in divorce cases. Lawyers will not know what to advise on how orders will be treated, and many families will not have the money to fight it out in court. Those who cannot afford advice will be lost.
I am afraid that, to complicate things further, these regulations are about to change. The EU is in the middle of renegotiating them: it is about to negotiate an update to Brussels IIa, creating a “Brussels IIa recast”, in the jargon. In October 2016, the UK decided to actively get involved by opting into the renegotiation of Brussels IIa, which is expected to conclude some time next year. The reforms aim, broadly, to improve return proceedings after a child is abducted by limiting the number of appeals and concentrating on certain courts—to enhance children’s rights and give children the chance to be heard in court—as well as making various other improvements, such as better co-ordination with the 1996 Hague Convention on Protection of Children. Those improvements are welcome, but they help us only if the recast provisions are complete before Brexit. If they are not—and they probably will not be—we will end up importing into our law provisions that will almost immediately be different from those from the EU, making it even harder to negotiate getting back any reciprocity.
A final challenge is that the UK contains a number of different jurisdictions—England and Wales, Scotland and Northern Ireland—all of which have different family law systems. We might come back to that later in the Bill. So that is the landscape at which Amendment 29 is directed. It invites Ministers to publish a report that outlines the way in which the rights afforded by EU family law will continue to operate in domestic law, what steps Ministers have taken to negotiate reciprocal arrangements between the UK and the EU 27, and whether the rights of individuals have been weakened as a consequence. I hope that Ministers will accept the amendment, but for the report to be meaningful we need the Minister to answer a key question today: what is the Government’s vision for family law post Brexit? I will make it easier by making it a multiple-choice question, because I think there are only two choices. Option one is that we seek to retain the status quo as far as possible, permanently. The 2017 report of our Justice Sub-Committee of the European Union Committee—called Brexit: Justice for Families, Individuals and Businesses?—said that the three main EU regulations were,
“crucial to judicial cooperation in civil matters and reflect the UK’s influence and British legal culture”.
The report urges the Government to stay as close as possible to those rules when negotiating their post-Brexit position.
So the questions begin: is the Government’s goal to stick with the provisions of the EU family law regulations? If so, we will clearly need some sort of reciprocal arrangement with the EU, covering the EU 27, to make those provisions effective. Question two: are there negotiations with the EU, ongoing or planned, to discuss that issue—and, given how tight time is, when might those be expected to conclude? Question three: if the Brussels IIa recast is adopted by the EU after Brexit, do the Government intend to amend the provisions brought into our law to reflect the improvements brought about through the recast measure?
Lord Grocott (Lab)
Just before my noble friend leaves Amendment 53, I will say that I have followed her almost entirely and agreed with her, but I do not understand in practice what the amendment means by requiring UK courts and tribunals to “have regard to” relevant decisions of the European court relating to cases referred to it by the domestic courts of EU member states. In practical terms to a layman, what does “have regard to” mean? Is it standard legal terminology?
Baroness Sherlock
It is standard legal terminology, and I thank my noble friend for his question. It would mean having regard to the human rights model. I said at the start that these were probing amendments. One of the reasons why I tabled it in that form is that I knew that if I tried to do anything more specific I would end up getting a classic government answer about the European court. To be honest, I am not really interested in having a fight about that. All I want to do is to understand what the Government’s approach to this is and how they will deal with whatever kind of judicial oversight is needed to enable reciprocity. So I will be open to whatever they come back and say; I will look at it in Hansard and judge it afterwards, rather than getting into it now. This is Committee and that is what I was trying to do.
My final questions are: will the Minister assure us that the 1996 Hague child protection convention will have continued application? Secondly, the UK will have to ratify the 2007 Hague convention on maintenance independently once we have left the EU. Because we have to give three months’ notice on that, if we do not take action before Brexit there will be a minimum three-month gap in its applicability after we leave. So what steps are the Government taking to ensure that it continues to apply seamlessly?
I know that I have asked an awful lot of questions, but at heart there is a core question: do Ministers want to try to stay with the current reciprocal provisions, which are tried and tested? If the answer is yes, are they taking the necessary steps? If it is no, where are we heading and what are we going to do in the interim until we get there? These are important provisions for the effective conduct of cross-border family cases. There are a lot of international divorces each year. These issues cannot be ignored. Children will suffer if they are not returned promptly after being abducted, or if their main carers do not get the maintenance they are entitled to. Families can lose time and money fighting court cases in two countries, with no certainty as to what happens at the end. We need to know where we are heading. To that end, I look forward to the Minister’s reply.
Lord Marks of Henley-on-Thames (LD)
My Lords, I support Amendment 29 and the supporting amendments. My noble friend Lady Hamwee has put her name to them to express our strong support from these Benches.
The Foreign Secretary said in his one of his more perceptive interventions—delivered, appropriately, on Valentine’s Day—that if we get the right deal on aviation and visa-free travel, British citizens will continue to travel within the EU, meet interesting people and fall in love. It follows that they may also marry and have children with EU citizens.
There are approximately 16 million international families in the European Union and about 140,000 international divorces in the EU annually. While the statistics are not collected by individual countries, a great many of them involved British citizens married to citizens of other member states. Over many years, we have painstakingly constructed an effective, fair and widely admired set of arrangements for permitting very different family law systems to operate alongside each other within the EU, while enabling member states to respect the laws, orders and arrangements made elsewhere in the Union.
Importantly, as the noble Baroness, Lady Sherlock, explained, EU family law concerns procedural and not substantive law. All EU states have their own substantive family law; in the UK alone, we have three systems: one for England and Wales, one for Scotland and another for Northern Ireland. However, EU law has established a common set of rules for jurisdiction, recognition and enforcement of judgments and orders and cross-border co-operation. The Brussels IIa regulation, enforced since 2005, governs jurisdiction; that is, where proceedings ought to be brought and decided. It applies to divorce and cases concerning children; in private law disputes, such as those concerning residence or contact between parents and children; and to public law disputes where local authorities are concerned for child protection. The regulation also provides rules for child abduction cases, of which there are roughly 1,800 a year within the European Union, simplifying and expediting the enforcement within the EU of the protections accorded by the Hague convention.
The maintenance regulation which the noble Baroness, Lady Sherlock, also mentioned, enforced since 2011, enables parties to enforce maintenance obligations for adults and children across the Union. Further EU measures, directly applicable in all member states, reinforce protection for victims of domestic violence and assist in enforcing out-of-court settlements.
The effect of the Bill is that the UK would continue to be bound to apply EU family law in its entirety as it stood at exit day. However, there would be no reciprocity. We would be bound to recognise and enforce the decisions of EU member states, but the 27 remaining member states would be under no such obligation to recognise or enforce decisions of UK courts. So British citizens would be at a significant and lasting disadvantage. There would be the risk of proceedings in the UK being pursued in parallel with proceedings in EU member states and so the risk of conflicting judgments, with EU judgments enforceable in the UK and UK judgements unenforceable in the EU. This would be,
“the worst of all outcomes”,
as the Family Law Bar Association, Resolution and the International Academy of Family Lawyers pointed out in their excellent joint paper published in October. It would, as the paper asserted, leave our citizens in a position of significant vulnerability and confusion, and lead to unfair outcomes.
A further issue is that Brussels IIa is currently being revised. British family lawyers have been playing their important part in shaping the new arrangements. However, the new regulation will not apply to the UK unless we legislate for it to do so. Even legislating for it to do so will not bring about reciprocity unless we agree in negotiations to that reciprocity, and there’s the rub, because EU law is subject to interpretation and ultimate determination by the Court of Justice of the European Union, yet the Government insist on rejecting the direct application of CJEU decisions. Decisions of the CJEU in this field concern the rights of individual citizens. Cases are referred to the court because national courts seek the determination of individual cases before them by the European court. Members of this House have asked over and over again: why should the 27 give that up?
Amendment 53 is designed to explore a continuing role for the CJEU. The court has provided a successful system for the determination of disputes and for the supervision, monitoring and development of EU law. In our debate on the European arrest warrant on 8 February, I suggested that if we went ahead with this project to leave the EU, we could seek some adjustment of the constitution of the court, so that in areas of cross-border co-operation involving the United Kingdom the court might include a UK judge and a UK Advocate-General, which it otherwise would not, after we left, whether by the creation of a separate division of the court or by some other means.
The noble and learned Lord, Lord Mackay of Clashfern, whom I see in his place, raised the constitution of the court in Committee with my noble friend Lady Ludford, last Monday. However, I cannot see any basis on which we can preserve the benefit of EU family law, just as in many other areas where we seek continued co-operation with the EU, without agreeing to its fundamental underpinning by the guarantee of recourse to the CJEU. There has been no answer from our Government on these issues.
European family law brings this country an unqualified benefit. There is no down side. The Government, in answers from the Dispatch Box, have recognised this. They say they want to continue to benefit from the rules for cross-border co-operation in family law. However, we can no longer be asked to listen to pious protestations from the Dispatch Box in this House to that effect when, almost in the next breath, they contradict themselves by rejecting the decisive role of the Court of Justice in determining the application of the rules. Amendment 29 would insist on some frankness on the part of the Government about the consequences of Brexit for family law—frankness with the British public, who have a right to be informed of the threat to international co-operation in this area, and frankness with this Parliament, which will in due course be asked to enact a statute approving any withdrawal terms.
This Bill and the Government’s obsessive stubbornness on the question of the CJEU threaten to make international co-operation in family law a needless casualty of Brexit, with absolutely no countervailing benefit, either for British citizens or for citizens of the rest of the European Union.
Baroness Butler-Sloss (CB)
As a family judge, I regularly tried international family cases, so I entirely agree with the noble Baroness, Lady Sherlock, and the noble Lord, Lord Marks, and very much support Amendment 29. I am dismayed, I have to say, by the inadequacy of the current wording of the Bill, which does not refer specifically to family law and does not deal with the main issue of reciprocity and the importance of the European court in Luxembourg. I will reiterate two figures because they are important for noble Lords to know. One is that there are 140,000 EU divorces between the UK and other member states. That is not a small number. There are 1,800 EU child abduction cases—an area of the law that I spent a disproportionate amount of my time trying under the Hague convention before the EU law came in and enormously improved the Hague convention.
Baroness Tyler of Enfield (LD)
My Lords, I support Amendment 29 and will speak briefly to Amendment 336, to which my name is attached. I remind the House of my declared interest as chair of the Children and Family Court Advisory and Support Service. I wish to dwell on that experience in my remarks today, by thinking in this debate about the impact on the child and whether or not they feel that their voice is heard.
It is for this reason that I feel it is vital that the Government take all possible steps to achieve an outcome which retains full reciprocal arrangements between the UK and member states in the field of family law. It is so vital that families needing to go to court must know that whatever court they end up in, and in whatever country, its decision will be respected by other courts. We have heard a lot from distinguished lawyers about the current reciprocal arrangements, which have been built up and evolved over decades. They have provided real benefits to families across the UK. These harmonised rules across the EU for establishing jurisdictions to hear cases, to recognise and enforce each other’s orders, and to co-operate across borders have made a real difference to families caught up in these difficult situations.
Replicating provisions in our own domestic law without full reciprocity would leave our citizens in a position of real vulnerability and confusion. It would lead to very unfair outcomes for British citizens, a point which has already been made. As the noble Baroness, Lady Sherlock, said so persuasively, the EU instruments which affect UK family law deal primarily with procedural, not substantive, family law. Sovereignty is not the issue here and I really hope that in this debate, as we look at what happens to family law in the context of Brexit, we will not get caught up on the high altar of sovereignty. This is about what happens to very vulnerable and distressed children and families.
I turn briefly to Amendment 336, to which my name is attached. The reason I wanted to attach my name is that the first regulation cited in this amendment—I will not go into the technical detail—is one that we at CAFCASS use a lot in both private and public law, since the fundamental principle is to ensure the reciprocal recognition of court orders between the EU states. It saves re-litigating and protects children who move between states, whether they are living there temporarily or permanently. It also requires states to co-operate with each other in providing information in public and private law, and to assist in placing children in public law cases in other member states; this is practical but really critical. The absolutely key point is that these arrangements help to alleviate the inevitable distress and disruption for the children and families involved.
Our key role at CAFCASS is to ensure that the voice of the child is heard in family courts, whether in public law, which is usually where local authorities are making an application for a child to be removed from a parent and taken into care, or in private law, which is usually where parents are separating with such high levels of conflict that the court is involved in deciding child arrangements such as residence and contact. At the moment, my strong sense is that the critical voice of the child is absent from discussions about what happens to family law post Brexit. This will be much to the detriment of children and young people involved in family proceedings, who are often extremely vulnerable and going through a very difficult period in their lives. This can lead in turn to real emotional distress and trauma, and have an adverse effect on mental health and well-being.
Many of these children will have had what is called in the research “adverse childhood experiences” first-hand, including abuse, domestic violence and bereavement. That is why what we do to our family law as we look at the Bill is so important. We need to make sure that it is as child-friendly as possible, rather than something that is done to children and over which they feel they have no control.
Baroness Massey of Darwen (Lab)
My Lords, I rise to support my noble friend Lady Sherlock in this group of amendments. I appreciate the wisdom of noble Lords who have spoken.
I will add a few comments, mainly on children’s rights and child protection, which have been spoken about by the noble and learned Baroness, Lady Butler-Sloss, and the noble Baroness, Lady Tyler. I should declare an interest as the chair of the sub-committee on children in the Council of Europe. The EU does not have legal power to change domestic family law, but in procedural rules it ensures that family-related decisions made in the UK can be recognised and enforced in other countries in the EU. Most children live in families, and therefore family law will often have an impact on children. The current rules ensure a level of certainty for families, and therefore children, who move about the countries of the EU. The rules prevent parents avoiding their obligations by moving around. This is because EU law has uniform rules across member states for family law proceedings, including those involving children. EU law ensures that public law decisions to protect children can be enforced in countries of which the child is a non-national. Such law emphasises the best interests of children, as enshrined in the UN Convention on the Rights of the Child—which I am sure will come up over and over again in the discussion on children—where the welfare of the child is deemed paramount and a child who has the capacity must be given the opportunity to be heard, including in family disputes. The EU maintenance regulation provides for child maintenance to be automatically applicable in any other member state to which either of the parents and/or the child move.
My noble friend and others mentioned the Hague conventions. Other options to ensure family welfare, such as creating bilateral agreements, would take more time to implement and children and families would suffer. The six-week deadline for the resolution of child abduction cases should be retained. Membership of the EU judicial network to facilitate information sharing between courts dealing with family issues should continue. One example of the protection of children is related to the EU directive of the European Council establishing minimum standards for legislative and practical measures to support victims of crime. This includes the specific needs of children and the need to pay attention to services and support in, for example, gender-based or domestic violence. The directive includes special reference to the need to ensure that children’s best interests are the primary consideration and to ensure a child-friendly approach.
I am impressed by and grateful for the report by the EU Committee chaired by my noble friend Lady Kennedy of The Shaws, Brexit: Justice for Families, Individuals and Businesses. It addresses the 1996 Hague convention in respect of parental responsibility and measures for the protection of children. The maintenance regulation is designed to ensure that rules on jurisdiction and the enforcement of decisions relating to maintenance obligations are continued and provides that obligations should be determined in accordance with the Hague protocol. The report comments on the Brussels IIa regulation in relation to divorce, legal separation and the annulment of marriage. It carries specific rules on child abduction and access rights. I will not go into this in detail but will just say that witnesses to the inquiry on which the report is based commented favourably on Brussels IIa. Sir Mathew Thorpe stated that it is a,
“laudable ambition to achieve better justice for European citizens where issues cross the border of member states”,
and viewed the regulation as “broadly successful”. David Williams QC stated that Brussels IIa had spread into every area of our domestic law.
Lord Farmer (Con)
My Lords, I apologise that this is the first time I have spoken during the passage of the Bill: I was unavoidably out of the country when it received its Second Reading. My contribution, if I had been able to make one then, would have touched on the vital area of the implications of Brexit for family law.
I understand that, as the noble Baroness, Lady Sherlock, has said, these are probing amendments, but I find myself in disagreement with the noble Baronesses who have tabled Amendments 29, 53 and 336. This is generally not the case: indeed, I and other noble Lords are aware of their very strong track record in championing families in general and family justice in particular. However, under their amendments the UK would either remain entirely subject to EU law in the family law context or enter into some bespoke arrangement—such an arrangement does not exist presently between the EU and any other non-EU member state—which would lead to the same outcome.
Reciprocal arrangements are possible only by being subject to EU laws. The UK government position in the withdrawal legislation is that EU laws on the day we leave the EU will become part of UK national law, but not that we will be bound to those laws on an ongoing reciprocal basis, whether in the short term or for eight years or more. As far as I am aware, this is not being proposed in any other area of UK law. I understand and share the concern for children and families that drives many of those tabling these amendments. However, if accepted, they would lead to a situation in which, in effect, the UK had not left the EU. I will look in turn at Amendments 29, 53 and 336.
Amendment 29 would bind the Government to publish a report on the maintenance of rights in family law within six months of the Act being passed. If that event takes place in June 2018, two years after the referendum, this proposed new clause would take us to late 2018 and a matter of months before we leave the EU. Obviously, the Government need not take the full time, but it is worth saying that there have already been many meetings and consultations: I am aware of an early round with international lawyers and the Ministry of Justice as early as October 2016, with responses requested by the MoJ by November 2016 so it could report to DExEU.
A major family law conference was held by Cambridge University in March 2017 with academics, practitioners and policy advisers from across the UK and some EU nations, again with civil servants in attendance to report back. A couple of other conferences were held last spring. Then over the autumn, I know there were direct meetings between practitioners and civil servants about these issues, including the proposal that we should remain part of EU family law after we leave the EU. These meetings continued throughout the latter part of 2017 and, no doubt, are still ongoing.
Noble Lords will be aware that just before Christmas there was a debate here on the European Union Justice Sub-Committee’s report on civil law matters. Allowing another six months would unnecessarily extend what has already been a long consultation process. Nothing has been said by any government department to hint that the UK Government will contemplate such a dramatic change to the withdrawal legislation that we will continue to be a direct party to EU legislation in one distinctive area of law.
Baroness Ludford (LD)
I thank the noble Lord for giving way; I was anxious to ask him this before he sat down. I respect his professed commitment to the rights of families and children, but he appears to be saying that a rather ideological commitment to escape the jurisdiction of the European court and the other enforcement mechanisms should prevail above the needs of divorcing people and especially children who need maintenance obligation enforced and who may have been the subject of abduction. As the noble and learned Baroness, Lady Butler-Sloss, said—as a judge, she has vast experience in this area—it was much easier once EU law provisions came into force than under the international conventions. Can the noble Lord honestly tell me that he could look children in the eye and say it is better to be outside the reciprocal EU arrangements?
Lord Farmer
I thank the noble Baroness for her intervention. I believe it will be better in the long run. We have mentioned the Hague convention. There are many experts; Professor Paul Beaumont, for instance, is a leading expert, who has said at international conferences that in his opinion the Hague alternatives will be perfectly adequate and satisfactory on our leaving the EU.
Moreover, the amendment anticipates a report on steps taken to negotiate continued reciprocal arrangements—that is, effectively, continued membership of EU family law. This position has not been adopted in any other area of law, as far as I am aware, and is not supported by organisations such as the Law Society.
The Archbishop of York
I thank the noble Lord for giving way. He really needs to answer the question posed by the noble and learned Baroness, Lady Butler-Sloss. The Hague convention can of course go some way to help, but it is much weaker than the present reciprocal arrangements. It seems to me that it is no good to simply incorporate EU law that we then cannot reciprocate at all. What would be the point? What about, for example, extradition, where we have agreed with other countries that are not part of the EU to have the same arrangements? We have managed to do that for extradition and no sovereignty question has been raised—it is a question of process. Will the noble Lord explain how he thinks simply incorporating EU law into our laws is going to guarantee that British citizens who are in the EU and EU citizens who are in Britain are treated the same in matters of family law? How would that work?
Lord Farmer
I thank the most reverend Primate for his intervention. There is a requirement that our courts, as we heard earlier, would take regard of EU law. We were not being tied to precedent, but certainly—
Lord Hannay of Chiswick (CB)
I am grateful to the noble Lord for giving way, but I have some doubts about his repeated assertion that the sort of approach in the amendments is not being taken anywhere else in the EU statute book. I wonder if he would like to read the Prime Minister’s speech at Munich and her references to the European arrest warrant, and try to parse and construe them in any other way.
Lord Farmer
Am I going to be able to make my speech? I thank the noble Lord for that intervention. I will be referring to the Prime Minister’s speech on Friday, which I think has some bearing and is more up to date. I am happy to talk to the noble Lord following this debate.
The amendment is highly presumptuous in suggesting a report on a measure that has no established government or parliamentary support. Passing this amendment as even contemplating a possibility of ongoing reciprocal arrangements and thence continually being bound by EU law would allow and openly encourage other areas of law, trade and social life to seek the same. This is not what the Government have said they would permit or seek. Acknowledging the possibility of this distinctive arrangement will encourage the hope of other aspects of trading and commercial life in being bound to the EU in our future arrangements.
Finally, the amendment suggests that there should be a declaration whereby a Minister of the Crown considers whether the rights of individuals in the area of family law have been weakened. This is legally controversial—and I think relates to a point just made—because of a difference of opinion on the respective advantages and disadvantages for families of EU family laws. Proposed new subsection (2)(c) in this amendment is highly presumptive of the expectation that there will be weakened rights, and would act to countenance some sort of special arrangement for ongoing reciprocity and being part of EU laws.
Amendment 53 to Clause 6 would give a UK court the power for eight years after March 2019—that is, to 2027—to refer matters relating to family law to the European court for a preliminary ruling, and it would then be bound by that ruling. Moreover, proposed new subsection (1C) states that UK courts must have regard to decisions of the European court for those eight years, but these eight years could be extended with proposed new subsection (1D). Those eight years appear to me to be entirely arbitrary; certainly, they are intended to take us beyond the next general election. But again the intention of the supporters of this amendment would appear to be that we are forever bound by the European court.
This Bill brings EU law into UK law. The Government have made it very clear that we will not be bound by the European court, but we will give strong regard to its decisions. When we apply law which is the same as EU law, the Prime Minister has made it very clear that our courts will look at European case law. The UK courts will not be bound, as understood in the common-law system of precedent in which courts are bound by higher court decisions. This was the result of the referendum and the present approach of the Government. But when it is looking at UK legislation which is similar to or indeed the same wording as EU legislation, there will need to be strong and good reasons—in my words, but as generally understood—for us not to follow it. That is already similar to the way the UK courts look at the Supreme Court decisions of other friendly jurisdictions when dealing with other international family laws—for example, in relation to Hague conventions in respect of child abduction. The UK is well able and frequently does give very strong and high regard to such decisions without being legally bound by them.
The Prime Minister was clear in her Mansion House speech on Friday on this issue. She used very careful words confirming continued strong recognition of European court decisions but not bound in law. We cannot be bound by EU laws in a reciprocal arrangement with the EU in respect of EU laws unless we are also bound by the European court. The EU will simply not countenance the UK being part of any arrangement for being bound into EU laws without being bound into the European court. This amendment must fail because proposed new subsection (1B) requires that we are bound.
One of the reasons that I and others are very keen we leave this aspect of the EU and its political agenda is because the EU intends its laws to have universal application. This means that they do not apply to just intra-EU cross-border family matters. The EU laws must apply to all cases with no other EU involvement—so, at present, a London/New York family or a London/Sydney couple are bound by EU law. This deals with several areas such as divorce jurisdiction and the inability to bring claims for reasonable needs on a divorce settlement. If the amendment is allowed, we will have cases before the UK courts which have no EU aspect—because we will have left the EU—but in which one party could apply for a preliminary ruling to the European court where it suited their litigation advantage. One can imagine the astonishment of lawyers in, for example, New York or Sydney, saying, “But you, the UK, left the EU several years ago in 2019. Why is this still being referred to the EU and subject to EU law?” Today we must lay to rest, once and for all, any suggestion that the distinctive area of family law should alone be bound by European court decisions.
Lord Liddle (Lab)
This is not my area of expertise, but it seems to me that the noble Lord, in his very detailed speech, has not addressed the central point, made by the noble and learned Baroness, Lady Butler-Sloss, about the benefit of being able to enforce decisions in other member states. Is the noble Lord arguing that these wonderful international arrangements, which he referred to as being just as effective as the EU, provide for that enforceability? I very much doubt it.
Lord Farmer
I thank the noble Lord for another intervention. They are a matter of negotiation and finding the best practice, as they are even with the EU. As I said, up until now they have operated well with other Governments around the world. They work well in the USA, Canada, Australia and countless other countries.
The narrow definition of family law in Amendment 336 ignores certain EU laws on the service of documents and taking evidence because we have perfectly satisfactory alternatives through Hague worldwide laws. Moreover, working with worldwide family laws with countries across the world, not just Europe, fits in entirely with the Government’s intention that on leaving the EU we will be a worldwide-facing country, looking at our global role and using the leading initiatives and developments in the UK to aid and encourage other legal systems.
Baroness Kennedy of The Shaws (Lab)
My Lords, I am sorry that I was not here at the beginning of the discussion on this amendment. My name is on a later amendment associated with the discussions on family law. As many in the House know, I chaired the group in the European Union Select Committee that dealt with family law. We created the report referred to by the noble Lord.
It is just not true that world law deals with this issue just as well as European law. Every family lawyer will tell you that some directives have made a huge difference to the safeguarding of children, women with abusive husbands and enforcing maintenance orders made in this country. Those directives can be enforced in another country in Europe with great ease without someone having to get themselves lawyers over there. However, you cannot do that with the United States. You have to get yourself “lawyered” up to the eyeballs in America to deal with your husband taking your children there and not returning them to you. If your partner goes off to another part of the world and is not paying maintenance, it is a very expensive and problematic business to get maintenance paid for your children, who need it. Therefore, I ask the noble Lord to please not mislead the House by saying that there is an equality of arms in this respect around the world. That is not true. We seek a mechanism to make this system operate after we leave the European Union—some kind of agreement that makes it possible for children, and perhaps abused partners, to have proper mutual recognition arrangements to enable them to seek remedies and enforcement easily. That is the point of this and that is what is misunderstood by the noble Lord.
Lord Farmer
I thank the noble Baroness for her intervention. Perhaps I can speak to her afterwards concerning countries outside the EU. It is worth mentioning that Professor Beaumont who I mentioned earlier—a leading expert on both the EU and The Hague—said in his opinion that The Hague alternatives are perfectly adequate and satisfactory on our leaving the EU. Apparently, the House of Lords committee does not seem to have heard this evidence.
I am sure noble Lords will be pleased to hear that I am coming to the end of my remarks. This amendment should be rejected because it concentrates on the UK remaining Eurocentric, not global, which is an important point if we are leaving the EU. Academics and lawyers who would have spoken favourably about the Hague laws were not consulted by the House of Lords Justice Sub-Committee, yet practitioners and others have described to me the incredible benefits to children and families from the UK being part of these worldwide international laws.
Lord Carlile of Berriew (CB)
My Lords, the noble Lord, Lord Farmer, is rightly respected for his expertise on a number of subjects—this was not one of them. Indeed, it was palpable that the atmosphere in the Chamber was curdling as he spoke. I remind the noble Lord and, indeed, the Committee, and particularly the Minister, who I suspect did not enjoy the speech we have just heard, about the danger of double standards on this subject. I remind the Committee in particular of Section 1 of the Children Act 1989, and of the standard that that Act imposes on courts. By “courts” I refer to every court dealing with children’s issues, from the Amlwch magistrates’ court, if the noble Lord, Lord Wigley, will forgive that reference or enjoy the name check, to the Supreme Court and, indeed, to the President of the Family Division, a role which my noble and learned friend Lady Butler-Sloss filled with such great distinction. It is worth reminding your Lordships that the “paramount consideration”—those are the statutory words—when a court considers the upbringing of a child or anything to do with the child is that child’s welfare. Section 1 of the Children Act 1989 does not merely deal with physical aspects of the child’s life but includes, for example, in Section 1(3)(a),
“the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding)”.
Those are the standards that this Parliament places on our courts.
There is a danger that, if the Government do not sort out the problems so ably articulated by those who have spoken to these various amendments, we will have a situation of double standards. The courts will be obliged to apply those standards but our Government will abandon them, possibly merely to avoid a few cases coming before the Court of Justice of the European Union. That is completely unconscionable. I am not saying that the only solution is to fall under the jurisdiction of the Court of Justice of the European Union; there may be alternatives, such as a treaty with the European Union that provides for similar processes, albeit through our own courts, and reciprocal arrangements with other courts. The Court of Justice of the European Union is not a shibboleth—one way or the other. It is just the current way of solving a series of problems, which nobody is able to improve on at the moment.
It would be completely unacceptable to hear from the Minister who responds to this debate words such as, “We hope to negotiate”; “We are considering negotiating”; or “We expect that we will achieve”. That will not do, because it does not put the welfare of children first. So when the Minister comes to reply, I hope that we will hear, specifically, how many meetings have taken place in an attempt to start to negotiate a resolution of issues affecting the welfare of children who may be abducted in the most appalling circumstances; when the next series of meetings is to take place on that subject; at what level it is being done; and to what extent the leaders of the family Bar and the family solicitors are being involved in the process of consultation and negotiation. Otherwise, we will have no option but to adopt something like these amendments on Report.
Lord McConnell of Glenscorrodale (Lab)
My Lords, I very much welcome the amendment in the name of my noble friend Lady Sherlock, and the important questions that she posed to the Minister at the start of the debate. The debate has shown how critically important it will be to get the answers to these questions right, not just in the coming months but in the coming years and perhaps decades. The noble and learned Baroness, Lady Butler-Sloss, was forensic in her description, which came from very real experience, of the benefits of the current system and of what might be lost if we make the wrong decisions in passing the Bill.
I will not go back over all the points that have already been made; in the current circumstances I will be deliberately brief. I will raise two points in particular. First, within the United Kingdom we have different jurisdictions concerning family law and some of the other legal rights that have been mentioned in the debate so far. I would welcome some reassurance from the Minister in his response that appropriate discussions are taking place with the Scottish Government and others to ensure that whatever we enact here in the UK Parliament is appropriate for the whole of the United Kingdom, and not just for the legal system in England or England and Wales.
Secondly, on a point of principle, there is a reason why this subject matters so much. We can have ideological debates about our future economic partnership with the European Union, and we can have ideological or political debates about the financial position before and after exiting the European Union—but children and family law are at the very core of the things that matter to us most: the relationships between parents and children; the relationships between children and other children who might be estranged from their brothers and sisters; the relationships between adopted children and their natural parents, whom they may wish to contract later in life; and the relationship between estranged couples.
That is why this debate is different from others, and why in this instance I urge the Government and everybody on all sides who supports or sympathises with Brexit to look for solutions to these issues that deal with the personal, not the political. I urge them to ensure that, whatever arrangements are finally agreed, those personal rights will give families an opportunity to continue contact and to seek appropriate rights and redress, and to be able to do so in the easiest and least expensive way possible.
Lord Mackay of Clashfern (Con)
My Lords, I hoped that I would get an opportunity to intervene, as the person who first presented to Parliament the text that has just been referred to in Section 1 of the Children Act. I strongly support the view that the interests of the children in question should be the primary consideration in everything that applies in family law. I am interested to see that the definition of family law chosen in Amendment 336 is not one of ours but is imported from the European Union. However, that is a rather unimportant point.
If this Bill is ever to finish its Committee stage, it is important that we realise that it is concerned primarily with putting existing European law which is effective in our country on to the statute book in a way that will work on Brexit day. It is not concerned with the negotiations—although your Lordships are interested in how they progress, and nobody is more interested than I am in how children’s affairs will progress. I agree with what has just been said: it is a question not of politics or ideology but of making sure that we have the best thing we can for our children. Incidentally, I do not agree that we did not enjoy the speech of my noble friend Lord Farmer. He can speak for himself, but it is not for us to make judgments of that kind about our fellow Members of this House—and I hope that nobody is judging me too hard, either.
My point is that the Bill cannot provide for reciprocity. We cannot legislate for the laws of France, Germany or anywhere else in the European Union—but we can do our best to ensure that our law conforms as far as possible with existing European law when Brexit day comes, because that is an invitation to the others to reciprocate. If we have a system that does not in any way mirror the existing European system when Brexit day comes, how can we ask others to do the same? We cannot. Therefore, it is a question not of reciprocity but of ensuring that this Bill does things properly from our point of view and that the ground that we have to plough for reciprocity is properly ploughed and ready. That is why the Bill is so important.
It is also fairly important that we make some progress with the Bill. Therefore, I will say simply that I entirely endorse the importance of family law and the reciprocal arrangements with the EU, and I would like to see more effective reciprocal arrangements with many other countries. From my time as Lord Chancellor for 10 years I have strong and sad memories of receiving many people who complained that their children had been abducted and taken to a country from which they could not be brought back. That is not the way in the European Union and, fortunately, it is not the way in quite a number of other countries.
It is true, however, as the noble Baroness said, that you may be required to employ a lawyer. In fact, it is rather difficult to get your maintenance payments in this country, never mind the United States. I did my best to try to improve that situation with the CSA—but it has not proved very satisfactory, as the noble Baroness knows very well. It was a difficulty: many times people came to me and said that although they had an order from the court for money, they could not get a penny.
This is an important series of amendments and it is right that we should look at them. However, we must restrain ourselves from considering the negotiations if we are going to finish this Bill at all.
Baroness Deech (CB)
May I ask the Minister a few questions, because I suspect that his response is going to proceed on the basis that the Hague conventions are sufficient? It is true that the biggest number of abductions that come to our courts relate to Pakistan, the USA, Australia and then Poland. It would also be very sad if either we or the rest of the EU put ideology ahead of the welfare of children. Therefore, I want to know what the Minister’s prediction is as to the arrangements that might be made.
Overall, I feel that the amendment is perhaps too narrow. We have units in this country that study the effect of abduction: we have a permanent bureau, the International Centre for Missing and Exploited Children and the International Child Abduction and Contact Unit, which can look not just at the European Community countries but at the others. We need a global view of the welfare of children and cross-border abduction, not just an EU view. How does the Minister think we can cope, given that the EU takes apparently 164 days to deal with returned children, whereas we manage to do it in 90 days? For a small child, a matter of a few months is extremely important.
Is the Minister satisfied that we can swiftly and properly sign up to the 2007 Hague convention, which at the moment we are a party to only through the EU? We need to, and we should be able to, join it in our own right. Those are the questions that I put to the Minister.
The Advocate-General for Scotland (Lord Keen of Elie) (Con)
My Lords, I am obliged. “Reciprocity” was the term used and emphasised by the noble Baroness, Lady Sherlock, and my noble and learned friend Lord Mackay of Clashfern. They both recognised the significance and the relevance of that term in the context of the issue we are discussing and of this Bill. They may have approached it from different directions, but there is a common recognition there. I will come back to that point in a moment, particularly in the context of this Bill and not the other Bills that may follow it in due course.
I acknowledge the commitment of the noble Baroness, Lady Sherlock, to family law and the rights that it provides to many of the most vulnerable in our society. I also extend my appreciation to the report on this subject produced last year by this House’s EU Justice Sub-Committee, under the chairmanship of the noble Baroness, Lady Kennedy. In addition, I understand that the noble Baroness, Lady Sherlock, met my noble friend Lord Callanan and officials to discuss this matter a week or so ago. I observe also that officials have engaged in discussions with a variety of groups, including Resolution and the Family Law Bar Association, and others at an EU level, to discuss this critical issue.
To the noble and learned Baroness, Lady Butler-Sloss, I say that I would be perfectly willing to meet—or at least to arrange a meeting with other Ministers who might be more directly involved in this issue—at some stage in order to discuss with all relevant and interested parties the issues that arise here.
I emphasise that the Government are committed to maintaining an effective system for the resolution of cross-border family law disputes once the UK leaves the EU in 2019—of course we are. Any system which requires cross-border dialogue and co-operation needs a common language to be effective. To that end, as part of our future partnership we want to agree a clear set of coherent common rules about: which country’s courts will hear a case in the event of a dispute—that is choice of jurisdiction; which country’s law will apply—that is choice of law; and a mutual recognition and enforcement of judgments across borders. That can be achieved within the EU and beyond the EU as well.
We are only beginning to embark on the negotiations of our future partnership with the EU 27 but we set out our position on this in a future partnership paper in August last year. That paper makes clear that an effective framework of civil judicial co-operation, which includes family law, is an important part of any deep partnership we want to establish with the remaining members of the EU. We believe that the optimum outcome for both sides will be a new agreement negotiated between the UK and EU as part of a future partnership which reflects our close existing relationship.
My noble and learned Friend, Lord Mackay of Clashfern made the point that the object of this Bill is to bring into our domestic law existing EU law so that we start out in the same place as the other members of the EU. We have to bear in mind the means of ensuring that litigation in a cross-border case involving UK and EU parties, wherever it takes place, can be as easy, efficient and cheap as possible. Such an agreement is necessary to provide confidence and certainty to families and individuals.
As the noble Baroness reminded us in backing up a point well made last year by the EU Justice Sub-Committee in its valuable report, reciprocity is key. This Bill can bring EU rules and regulations across into UK law, but it cannot place requirements on the remaining EU states. That is precisely why we want to negotiate a new deal with the EU and, as of this month, we are set to embark upon that negotiating process.
The current reciprocal rules on which we hope to model a new agreement provide a legal route to resolving what are often difficult and intractable problems. As noble Lords may know, and the noble Baroness readily appreciates, that can include determining in which member state a divorce takes place, child arrangements are made, maintenance issues are determined and, on the fraught issue of child abduction, the return of an abducted child is facilitated.
As I have mentioned, this area goes far beyond the EU. The EU, of course, is important, but we have the Hague conventions with respect to children, one in 1980 and one in 1996. The Hague convention in 2007 has the EU as a signatory, not the individual members of the EU. We will be taking steps to engage with the council on the Hague conventions in order that we can become individual signatories of that convention. I acknowledge the well-made point of the noble Baroness, Lady Sherlock, about the three-month time lapse that could potentially occur. We are mindful of that in setting about the process of negotiation because no one wants to see a gap in the process.
We also have the Lugano convention which engages with not only the EU, as a signatory, but also the other parties to it—Norway, Iceland and Switzerland. Returning to the point raised by the noble Lord about having regard to cases of another court, as between the Lugano convention and the EU it is agreed that each will have regard to the decisions of the other’s court. They are not bound by them or subject to the jurisdiction of the other, but they will have regard to them and take them into consideration when construing the rights and obligations that arise under these various conventions. So it is not making yourself subject to the CJEU but, in general terms, it is saying that you will respect its decisions and look at them for consideration.
Perhaps I may elaborate on that a little. The role of the CJEU is often either misunderstood or exaggerated in this context. What we are concerned about, generally speaking, is the ability of a court in one jurisdiction to recognise the pre-eminent jurisdiction of another country, the willingness of the courts in one country to recognise the orders made by the courts of another country, and the willingness of the courts in one country to enforce the judgments of another country in respect of these matters. Of course, if you are within the EU, the construction of a particular provision such as the Brussels convention—Brussels Ia, IIa and so on—would ultimately be a matter for the CJEU. However, in negotiating with our other partners, we recognise where we start from and the wide ambit of these conventions, and we understand how critical they are to family life going forward. No one is going to ignore them or turn their back on them, so I can assure noble Lords that we are intent on negotiating this. The precise way in which it will be done will have to be the subject of negotiation with our EU partners.
The noble Lord, Lord Carlile, asked me, as it were, to enumerate the negotiations that are ongoing, but so far we have been dealing with the separation agreement. From March we have set upon the negotiation of our future partnership; that is what the Prime Minister set out in her recent speech.
With regard to the other jurisdictions within the United Kingdom, officials within the Ministry of Justice are in regular contact with officials in Scotland and in Northern Ireland in regard to these matters. Of course we take account of those, and I hope that the noble Lord, Lord McConnell, will recognise that I am conscious that there are different laws in the different jurisdictions of the United Kingdom.
Lord McConnell of Glenscorrodale
I thank the Minister for giving way. Of course discussions are taking place between officials in the different departments, but are Ministers talking to each other and are agreements being reached that will ensure that the right decisions are made to serve the different jurisdictions of the UK?
Lord Keen of Elie
I cannot say that agreements are being reached at this time because we are only setting out on the process of negotiation with regard to the future partnership; I cannot take that any further at this stage. However, our position is that family law co-operation is critically important, and it is no different from our general position with regard to civil co-operation.
I would acknowledge that the development of Brussels IIa is an improvement on the Hague conventions, and indeed I believe that some would acknowledge that it is an improvement on the terms of the Lugano convention in this regard as well. The terms have been refined and developed, and it may be that there will be a further negotiation and conclusion over Brussels IIa—what might be termed as Brussels IIb, I suppose—which may well occur after Brexit. Nevertheless, in order to ensure that we have reasonable alignment and therefore the basis for reciprocity, we will want to take into consideration such developments in the law.
Let us be clear: generally speaking, these developments take place for all the best reasons. They are developments that reflect improvements, so why would we turn our face away from improvements in the law on the reciprocal enforcement of family law matters related to maintenance, divorce and child abduction? We have no cause or reason to do so and of course we are going to embrace these matters.
I appreciate that the amendments in this group are probing in nature, but I shall try to address some of the specific details. The report called for in the first amendment tabled by the noble Baroness would require the Government to publish details of how rights in EU family law operate in domestic law as well as key details of the negotiations within six months of this Bill receiving Royal Assent. With great respect, that is an arbitrary deadline which makes no reference to the position of the negotiations at that stage or the other documents that the Government will be publishing on the subject. These documents include not only any final agreement reached in the negotiations regarding continuing judicial co-operation on family law, but also the explanatory material that Ministers will publish when they exercise their key Bill powers to amend retained EU law. That will include retained EU family law. So, as I am sure the noble Baroness is aware, any agreement between the UK and the EU will be detailed clearly within the withdrawal agreement and domestically legislated for in the upcoming withdrawal agreement and implementation period Bill, which Parliament will have a full opportunity to scrutinise. However, I have to say that it does not arise in the context of this Bill.
The next amendment concerns the jurisdiction of the CJEU. We will discuss that in more detail when we come to debate Clause 6, so I will not take up a great deal of time although I want to make a couple of points. First, it is not necessary for the UK to be subject, unilaterally, to CJEU jurisdiction to secure a reciprocal agreement in this field any more than it is a requirement of the signatories to the Lugano convention to secure agreement with Brussels regarding family law matters. There are a number of existing precedents: not just Lugano, but the Hague convention as well. As I have indicated, the jurisdiction of the CJEU is sometimes either exaggerated or misunderstood in this context. In the EU, it is of course the final arbiter of the construction and application of EU instruments, but that does not mean that we have to embrace the CJEU’s jurisdiction to have a suitable partnership agreement with the 27 members of the EU.
Baroness Ludford
In his lengthy reply, the Minister appears to perpetuate some of the misunderstanding that underlay the Prime Minister’s speech on Friday, which is that somehow if you mirror the laws of the EU 27 and start from the same position, you do not need the rest of what Commission jargon calls the ecosystem—in other words, the common rules and the enforcement of institutional and supervisory mechanisms. Surely that is the difference between the EU context and the Hague and Lugano conventions, and accounts for the difference between having regard to and mutually recognising and enforcing judgments. It is part of a complex of arrangements. There is a qualitative difference between the international arrangements and the EU arrangements, which does not seem to come through in the Minister’s response.
Lord Keen of Elie
With respect, neither I nor the Prime Minister misunderstood any of that. With great respect, I want to correct the noble Baroness on one point: that ecosystem is simply not required for mutual recognition and enforcement of judgments by two separate jurisdictions. That happens between the countries of the Lugano convention and countries in the EU in any event. I am talking about starting from the same point, with common rules regarding judicial recognition and enforcement, and moving from there to the negotiation of a new partnership. We do not foresee the sort of difficulty that the noble Baroness alludes to in that context.
At this stage, I want to come back to the point I was seeking to make. First, it is not necessary for the UK to subject itself unilaterally to the CJEU’s jurisdiction to secure a reciprocal agreement. Many other countries do that. Secondly, in any event, the Government have been clear throughout debate on the Bill that it is in no way designed to legislate for any future agreement between the UK and the EU. That is not the purpose of the Bill. We cannot unilaterally legislate for our future relationship with the EU simply by including in our domestic legislation certain provisions about recognition of family law, maintenance and other agreements—a point that the noble Baroness, Lady Sherlock, readily acknowledged at the outset of her opening remarks some considerable time ago.
I understand that the intention behind Amendment 120 is to make sure that there can be continued application of international agreements, such as the Hague 2007 maintenance convention, which the UK currently operates by virtue of its membership of the EU. Of course, we are intent on doing that; as I noted earlier, we understand that there is a potential three-month gap there, which we need to address. I hope I can reassure the noble Baroness that we are clearly intent on securing an agreement, albeit not as an EU member and not subject to the direct jurisdiction of the CJEU, which ensures that we can maintain the highest standards of family law and mutual recognition, whether it be jurisdiction, choice of law or enforcement. I invite the noble Baroness to withdraw her amendment.
Lord Marks of Henley-on-Thames
I entirely understand the response the noble and learned Lord gave to the effect that you can, of course, have a treaty to ensure reciprocity, but he does not appear to recognise the role of the CJEU in the difficult cases where there is an argument about what reciprocity means and the obligations on states that are parties to that treaty. I do not know that there has been any explanation from the Government of how we deal with the difficult cases without accepting the jurisdiction of the CJEU. Would he like to elaborate?
Lord Keen of Elie
I am happy to repeat the observation I made earlier: these difficult cases are resolved, for example, between Norway, Iceland, Switzerland and the other members of the Lugano convention embraced within the EU. In that context, each of the courts—the Lugano court and the CJEU—respects each other’s judgments, but they are not bound by them. That happens all the time. Ultimately, it would be for the domestic courts of each jurisdiction to determine what they were and were not prepared to enforce in the context of these agreements. That does not present any insurmountable difficulty, any more than it does in the context of the reciprocal recognition and enforcement of orders made pursuant to the current Hague conventions.
Again, I am obliged to the noble Baroness, Lady Sherlock, and to the noble Baroness, Lady Kennedy of The Shaws, for the report. I repeat my offer of further meetings to the noble and learned Baroness, Lady Butler-Sloss.
Baroness Sherlock
My Lords, I thank all noble Lords who have contributed and the Minister for his reply. When I tabled these amendments—I realise that they have not found favour in all corners of your Lordships’ Committee—my aim was simply to have a discussion that I thought had not happened since the Bill began. It had not happened in another place and, with all respect to the Government, it has not been happening in the kind of detail we need in the publications we have seen so far. We have at least now begun to have this conversation and I am delighted that we have.
The debate has established to so many people quite how important these family law provisions are. They are fundamental to the welfare of so many of our children, because issues of child abduction, child protection and child contact are caught up at the centre of this. Those points were made very well by my noble friends Lady Massey and Lord McConnell of Glenscorrodale, and by the noble Baroness, Lady Tyler, and the noble Lord, Lord Carlile. The importance of a single effective family law system was stressed very well by the noble Lord, Lord Marks, who also expressed how well-functioning and widely admired our system is. The need for it was underscored so well. I am hugely grateful to the noble and learned Baroness, Lady Butler-Sloss. When I heard her speech I wanted, in the way children do nowadays, to say “what she said”. She expressed it so well that I should have walked away at this point, but I think convention prohibits it so I press on.
I will pick up two or three points that were in contention. I do not think I will take up all the points made by the noble Lord, Lord Farmer, but his most important contention was that the provisions in the Hague conventions and elsewhere are sufficient unto the day. I hope he will take the opportunity, when he can read Hansard, to reflect on the comments made by the noble and learned Baroness, Lady Butler-Sloss, and my noble friend Lady Kennedy of The Shaws, and to look at how the weight of opinion in family law is clearly against him on this matter.
I would be happy to discuss this further outside the Committee, but to make a couple of specific points, Brussels IIa is distinctly better than Hague because it has a stricter timetable on abduction. There is a back-up mechanism—a second bite of the cherry—so that the child’s home country has another opportunity to overrule a decision by another court not to return an abducted child. The Brussels II recast will make that far better still.
The noble Lord, Lord Farmer, mentioned the provisions on divorce, which I found harder to understand. My understanding is that the 1970 Hague convention is much more restrictive than the current arrangements and that very few EU members are signed up to it anyway. It has no direct rules about jurisdiction, so we would be back to these forum conveniens arguments deciding expensively where which court should rule. Those things take at least two days in court, probably with a circuit court judge or above. I do not think there is a practical alternative on divorce, but I would be very interested if the noble Lord wanted to intervene or to talk to me later to challenge that.
I hope that we would all widely accept that the current EU provisions are the superior offering available. The challenge would be to find out how we can best salvage what is there. I take the point made by the noble and learned Lord, Lord Mackay of Clashfern, from whom I dissent with great trepidation, that the Bill is doing what it can to replicate the current provisions. The problem is that, by importing those provisions, it is not replicating the current situation, because, by doing so in a context of no reciprocity, it is creating asymmetry between our obligations to the EU 27 and theirs to us. That needs dealing with very early on.
“EU Protocol on animal sentience
The obligation on Ministers of the Crown and the devolved administrations to pay regard to the welfare requirements of animals as sentient beings when formulating law and policy, contained within the EU Protocol on animal sentience as set out in Article 13 of Title II of the Treaty on the Functioning of the EU, shall be recognised and available in domestic law on and after exit day.”
Baroness Jones of Moulsecoomb (GP)
My Lords, this very amendment has been debated in the other House and was voted down by 18 votes. I think the Government were shocked by the public outcry at the amendment being lost.
EU law puts an obligation on the Government and devolved Administrations to “pay full regard” to the welfare requirements of animals when Ministers make decisions and implement policies. This means that Ministers have to think carefully about how their decisions might harm animals.
The British Government played a key role in making this law during our term of EU presidency. It has influenced more than 20 pieces of EU law, including the ban on conventional battery cages for chickens and the ban on cosmetics testing on animals. Certain lobby groups claim that protecting the animal sentience laws will be disastrous; for example, that farmers will not be able to control agricultural pests or to go out and shoot pigeons. This simply cannot be true. If it is not the case with the law as exists today, then nothing will change tomorrow if we retain it.
The Government’s stated intention in the White Paper was for the withdrawal Bill to bring all EU law into UK law and then only amend retained EU law in future legislation. I have raised this issue previously and find it rather offensive that the Government would make such a promise and then not honour it.
Ministers have admitted that these animal protections will be lost as the Bill is currently worded. I understand that it is unfortunate to have to make “single issue” amendments to the Bill, but unless and until we are able to fix the Bill properly to retain all EU law, I have little option but to propose this amendment.
As a compromise when the amendment was proposed in the other place, the Government said that a new Bill would be created to include protections relating to animal sentience—I am sure that they will claim today that my amendment is not needed because of that new Bill. However, the Government’s proposals are weaker than the EU law. They have changed the wording in the draft Bill and included a much broader list of exceptions. Ministers would have only to have “regard” rather than “full regard” for animal welfare, and there is a massive loophole whereby a Minister can make decisions harmful to animal welfare whenever there are other matters of public interest.
A legal opinion commissioned by Friends of the Earth concluded that the Government’s proposals make it far too easy for Ministers to ignore animals, and their decisions would be subject to legal challenge only where they were so irrational that no reasonable authority could have come to them. That is a rather broad exception. The Government’s proposals do a very good job of appearing to protect animal rights, while actually reducing them to near zero.
The House of Commons Environment, Food and Rural Affairs Select Committee looked at the Government’s draft animal sentience legislation and tore it to shreds. It basically said that it should be removed from the animal welfare Bill and kicked into the long grass. So it looks likely that, despite the Government’s best intentions, their draft legislation on animal sentience might never see the light of day, let alone reach the statute book. We need to keep this in the withdrawal Bill: it is essential that we retain the existing provisions of EU law. We cannot allow a gap in protections between Brexit day and the point at which the Government are able to provide a suitable animal protection Bill. Ministers have been telling various people that animal sentience is already protected in UK law and that we do not need my amendment. If so, why have the Government drafted their own proposal on the issue? The situation is very simple: this protection does not exist in UK law, it stems from EU law.
Without this amendment to retain Article 13, animals will lose these protections, there being only the vague hope that the Government might one day bring forward a Bill. Once it is retained, we can always go back to it and change it with a future Bill—I would be happy to work with the Government to improve these animal protections—but in the meantime my amendment will keep these animal protections once we leave the EU. I beg to move.
Baroness McIntosh of Pickering (Con)
My Lords, it gives me great pleasure to follow the noble Baroness—I am sure we will have another opportunity to consider the contents of her amendment—and to speak to my own Amendment 212, which inserts a new clause. I hope that I am not responsible for the typo in subsection (3), which refers to, “the Untied Kingdom”. It is not in my interest or that of the country to untie all the arrangements that we have in the United Kingdom.
The purpose of this amendment is to consider,
“border arrangements relating to animal welfare”,
and broaden it out to other themes as well. I am delighted to see my noble friends the Minister for Exiting the European Union and the Minister with responsibility for agriculture in their place to hear these concerns. As of 11 pm on 29 March 2019 the UK becomes a third country and will be treated as such until the new relationship and other arrangements are in place. In her speech on Friday the Prime Minister set out five tests, one of which is that any agreement on our future relationship must protect people’s jobs and security. I wish to consider these remarks in the context, specifically, of the border between Northern Ireland and southern Ireland.
In our debates on Amendment 18 in Committee last week we were told, including by the Minister, that the Bill represents a snapshot. That snapshot would mean that there are no checks at borders between Northern Ireland and southern Ireland because of the common travel area. Indeed, the first scenario that exists today is that the Belfast agreement of 1998 setting up the common travel area means that there are currently no checks on the border between Northern Ireland and southern Ireland. The second scenario assumes that there will have to be a border if we have either a free trade area or, worse still, WTO rules, in which case there will be border checks. I reminded the Committee that that border is 300 miles long.
In preparing for today I came across a rather useful piece which I found, I regret to say, on Twitter, and which I bring to the attention of the Committee. It is by Katy Hayward, whom I believe teaches and lectures at Queen’s University Belfast. She looks at the case of Britain being outside the single market and the customs union, either in a free trade agreement with the EU or under no deal, and it appears that agricultural products would have to be checked at the border. Assuming that animals are moving across the Irish border, I put to the Committee that this cannot be done by technology, either for this category or indeed for food, farming and agricultural products. Instead, there will have to be physical checks and inspections by veterinary surgeons and other enforcement officers. This will also be because we have very high standards of animal welfare, animal health and animal hygiene in this country—which I am immensely proud of—which mean that goods passing across the border will have to meet EU requirements going into Ireland and our requirements coming into the United Kingdom from Ireland.
I draw the Committee’s attention to what Article 5.1 of the draft protocol published by the European Commission last Wednesday, 28 April, says about agricultural trade:
“The provisions of Union law on sanitary and phytosanitary rules”—
please do not ask me what phytosanitary rules are because I have not had time to find out—
“listed in Annex 2.5 to this Protocol shall apply to and in the United Kingdom in respect of Northern Ireland”.
For the other 27 European Union member states, food and other agricultural products coming into Ireland from the UK, whether from Northern Ireland or Great Britain, will be in free circulation within the remaining single market. The remaining 27 member states will demand reassurance on standards, not least because some may seek economic and competitive opportunities from the Irish authorities in these circumstances.
The purpose of the amendment is to seek reassurance from the Minister that the Food Standards Agency will have the staff and resources it needs to ensure that these cross-border arrangements, when in place, will be policed properly.
Lord Hain (Lab)
The noble Baroness is making a very compelling argument about the agricultural and livestock issues associated with the Irish border. I suggest to her that it is even more compelling if the Committee takes account of the fact that many of these farms actually straddle the border; in other words, livestock moves back and forth of its own volition all the time. It is absolutely vital that these phytosanitary issues are addressed but the Government seem to be in denial about them.
Baroness McIntosh of Pickering
I am grateful to the noble Lord for that point. He is much more familiar with Northern Ireland and these arrangements than I am, but I am very cognisant of this and I am sure that the powers that be are as well.
Baroness O'Neill of Bengarve (CB)
My Lords, I too find the word “phytosanitary”—the Brussels term—a bit of a nuisance. “Biosecurity” is a term with which I am easier. One might wish to look at these issues with respect to the Irish border rather differently from the way in which one looks at the movement of persons and of goods. I will say nothing about the movement of goods and persons for now but will speak simply about the movement of beasts—and, indeed, carcasses. It seems to me that there is probably a remedy which consists in devolving standards of biosecurity—yes, to Stormont should it come back into operation—with the proviso that they may not go lower than EU standards and, of course, UK standards. This might give the desired level of protection for the movement of animals and of plants. Unfortunately, the movement of plants is in the hands of the wind and has caused great damage in Northern Ireland because of the fact that it cannot easily be controlled. There, I believe, would be the place to look.
Just on one other point, I say that the common travel area dates from the 1920s not from recent years.
Baroness McIntosh of Pickering
I am most grateful to the noble Baroness and I think she confirmed the need for physical checks. I have not considered plants or people in Amendment 212. There is a very real problem, which I have raised separately and privately, of the tripartite agreement between France, Britain and Ireland in relation to racing. That covers not just the racehorses but the stable lads and jockeys. But for today’s purposes I am restricting my remarks to animals and food products. The other reassurance I seek is that there will be sufficient vets. We might not have sufficient vets when these arrangements come into place next year, or other relevant inspectors at borders and UK ports by 11 pm on the magic date of 29 March 2019.
Baroness Bakewell of Hardington Mandeville (LD)
My Lords, I support the noble Baroness, Lady Jones of Moulsecoomb, on Amendment 30, to which I have added my name. Coming as it does after the previous vital group of amendments on family law, this group is on a very different aspect of the impact of the Bill. As the noble Baroness, Lady Jones, said, this issue was debated in the other place. On that occasion, there was much rhetoric about whether animals can feel pain and emotions. I can only assume that those who deny animal sentience have not visited the countryside in the spring. Surely those who see young lambs running around with each other, teasing, jumping and enjoying the thin sunshine and light breezes do not assume that that is not a natural activity. Similarly those who see sheep lamb in the depths of winter, as many do, and see their offspring shivering in the bitter winds and driving rain cannot imagine that they would not choose to find warmth and shelter if they could.
There are many farmers and experts present in your Lordships’ House, along with those like me who have no connection with animals other than that we live in the countryside. We will all have heard and suffered the pitiful lowing of a cow which has recently been separated from her calf, even though it may be in an adjoining field. This distressing calling for her calf can go on for hours and long into the night. She misses her calf and wishes everyone to know this so that eventually they may be reunited by her persistent calling. Farrowing pigs in metal arcs scattered around open fields are able to root around in the dirt and keep a watchful eye on their playful young in peace and tranquillity. This is a very far cry from farrowing crates, in which they do not have enough room to turn around and certainly cannot nurture their piglets.
Some noble Lords will think that I have a very rose-tinted view of the countryside in assuming that young animals enjoy playing, exploring and getting into mischief. Very many children’s books give human characteristics to animals. Beatrix Potter’s books are a very famous example. Some of these characterisations are fanciful, but others are based on observing at close quarters the behaviour of animals. Those who have met a small troop of escaped and inquisitive piglets marching down the middle of the road looking for adventure and trouble cannot deny that many of the fictional caricatures are based on fact. Lambs like to play, piglets like to investigate their surroundings and calves are attached to their mothers. The very process of suckling for their sustaining milk means a bond is formed.
As we move forward with Brexit, it is essential that the protocol on animal welfare is high up the list of government priorities. The United Kingdom is nothing if it is not a nation of animal lovers. I have often been surprised and alarmed, as an elected councillor, at the number of letters which people have written to me about animal welfare issues, including hunting, compared to the very few I would get about child cruelty and abuse—although this latter subject has recently moved up the consciousness of the nation, as demonstrated this afternoon. If the Government do not rigorously defend and transfer into domestic UK law Article 13 of Title II of the Lisbon Treaty on the Functioning of the European Union, I fear this will be a very serious miscalculation of the mood of the country on this issue.
Organic farmers who have built up their award-winning herds over many decades prize the quality of the meat of their animals, which rightly fetches high prices in the marketplace. Butchers are keen to demonstrate to the restaurants and hotels they supply with meat which particular farmers it comes from. For their part, catering establishments which believe the quality of the raw meat is half the secret of a successful dish and to a steady flow of customers are also keen to list the source of the meat and fish on their menus.
Organic and other farmers keen to sell to quality outlets will tell you that the way in which their animals are slaughtered affects the flavour of the meat from the carcass. They believe an animal that is stressed at the point of slaughter will produce meat of an inferior quality to that of an animal that is slaughtered completely unaware of what is about to happen to it. This is very important to those farmers who have nurtured their animals to produce a high-quality product.
Standards of animal welfare in abattoirs and slaughterhouses are important, as is the presence of a qualified vet. Many of these vets currently come from EU countries. Can the Minister give reassurances to the Committee that, post Brexit, there will be sufficient trained veterinary officers to ensure robust standards of animal welfare at the point of slaughter? Those of your Lordships who are vegetarian or vegan will not be much interested in the quality of the meat which comes out of the abattoirs, but I believe they will care very much about the way in which the animals are treated as they come forward for slaughter.
Just as it is unacceptable for animals going for slaughter to be nervous and afraid, it is unnecessary and damaging and causes suffering to transport live animals to the EU for slaughter. If we have insufficient abattoirs in the UK to cope with our own animals, then we must increase that capacity. Just as we should not export live animals for slaughter, we must not accept live animals sent to the UK from the EU to be slaughtered here. As the saying goes, there is many a slip between cup and lip, and in the transfer of law from the EU into UK law, we must ensure that animal welfare is preserved at all costs. It is also important that high UK animal welfare standards are not undermined by cheaper imports produced to lower standards, as has already been referred to.
Whether it be the family pet pig that is coming for slaughter or a large herd of sheep, the way in which we treat animals says an awful lot about us as a caring society. In leaving the EU under Brexit we must preserve those principles of our culture which define us as a country. We will have a long time to regret it if we do not. I look forward to the Minister’s response to the issues raised in this debate.
Lord Wigley (PC)
My Lords, I have my name to Amendment 30, which I will address in a moment, but before doing so I turn to the comments of the noble Baroness, Lady McIntosh. I am not sure whether she or other noble Lords heard the programme on Radio 4 at lunchtime yesterday about the problems ports in the Netherlands face in taking the steps needed to meet the 29 March deadline next year in due time. What came out of that is that it patently is not going to happen. It is not just that the resources are not available—there will be questions of resources and who pays for them, hence some of the duties that will be forthcoming—but it is a question of actually getting qualified vets. There are just not enough to do the job and there is no prospect of finding enough by the deadline, so it is not going to happen in that way. The reality of the situation facing us, and facing our partners within the EU, is starting to come home to roost.
I listened to the intervention a moment ago by the noble Lord, Lord Hain, on Northern Ireland. The mind boggles at the idea of vets chasing animals roaming around their own farm across the border. That is totally impractical. If we then say, “We accept that there will be an agreement between the north and south of Ireland with regard to the movement of animals that may be different to the relationships with the UK”, the question arises of the ports in the UK that will be taking these in. In any case, as the noble Baroness, Lady McIntosh, said, food coming in from the third world will need to be inspected. The thing just defies credibility.
Lord Deben (Con)
I am sure the noble Lord is aware that there is only one vet in an abattoir who is not a national of the rest of the European Union. So this is not a small issue. He might think vets are going to run around chasing animals but it is much more likely that there will be no vets to run around chasing anyone.
Lord Wigley
Absolutely—I accept that entirely. I was painting the picture that had been depicted by the noble Lord, Lord Hain, in order to illustrate how ludicrous the situation is. The noble Lord is right with regard to the backgrounds—the national origins—of a very large proportion of the vets that we have; we just do not have enough now. If the demand is going to be that much higher, the problem is going to grow out of all proportion.
I turn to Amendment 30, to which I have added my name, to support the comments made by the noble Baroness, Lady Jones. I support the amendment, which probes the surprising situation that the Bill does not include provision to carry into UK law the principle of Article 13 of the Lisbon treaty recognising animals as sentient beings. Of course animals cannot be put on a pedestal alongside human beings, but they are clearly sentient, as the noble Baroness said. No one who has had anything to do with the countryside or with animals would deny that possibility, so the question arises as to why we are deliberately excluding this. Alarm has been raised among animal lovers as the Animal Welfare Act 2006 does not fully cover this, if we had to resort to that direction.
In the other place, the Government gave an understanding that they would consider how this could be rectified. I would be glad to know what their intentions are. I am not sure whether they are in a position to do so, but I suggest that an amendment should be put into this Bill to give MPs another bite at the cherry. However, if the Government are relying on the draft legislation that I believe they introduced on 12 December to cover this point, a response to the draft Bill was due in by 30 January, as I understand it, but there is still considerable dispute about the appropriateness of Clause 1. We in the Committee have a right to know what the Government’s intentions are on that, and whether the provisions that they are trying to make in that direction will meet some of the points raised by the amendment.
The other aspect that I wish to address is that EU laws on animal sentience have allowed Wales—the National Assembly and the Welsh Government—to take a lead on certain animal safeguarding matters. I remember that when my own party, Plaid Cymru, was in coalition government in the National Assembly from 2007 to 2011, we were able to introduce legislation to ban the appalling electric shock collars that had been used. Can the Government give an undertaking that, when these powers are repatriated from Brussels, the National Assembly and indeed the Scottish Parliament will retain the competence that exists under European provisions in order to take the sorts of steps that I have mentioned in relation to electric shock collars and, indeed, a range of other animal well-being provisions? Can we be assured that these powers will not be centralised to Westminster, thereby imposing on to Wales and Scotland a straitjacket that may constrain their ability to act in a positive manner on these important matters?
Lord Deben
My Lords, I declare an interest as the owner of a few Red Poll cattle, which are the local cows of my part of Suffolk. I also was one of the longest-serving Ministers of Agriculture, and this is a matter of very great importance to me. I hope that my noble friend the Minister will realise that he is asking of us, if he does not accept these amendments or agree to do something about this issue, three things, and none of them seems to me acceptable.
The Minister is asking us to accept that, when the Government promised that the withdrawal Bill would take into English law all that is at the moment in European law, and that we would start again from there, that is not the case with sentient animals. The noble Baroness, Lady Jones, explained that very clearly. There are two ways in which it does not. First, it is not complete—and the Government accept that, because they had very urgently to rush forward the advice that they were going to produce a sentient animal Bill to overcome the gap in this Bill. Will my noble friend explain why it is not in the Bill? It is a real issue. If the whole purpose is to use this Bill to ensure that the law after we leave, if we were to leave the European Union, will be the same as before, why is there this exception? It is very important for my noble friend to answer that question because he has in the past, when I have asked him other questions, told me that it is not about the withdrawal Bill, that it is a different issue and comes up elsewhere. This is clearly about the withdrawal Bill—the issue is clearly missing and it ought to be here. My questions are, “Why isn’t it here?”, and whether he will undertake to include it.
We are also supposed to accept that there will be a Bill that will cover this issue. That is a difficult thing for this House because we know very well that, with the best of intentions, the Government do not have a great deal of time to bring in these Bills, and certainly not before the self-imposed end date that they insist upon. Therefore, are we supposed to rely not only on the Government’s good faith, which I am sure I can, but on their ability to deliver on time? Otherwise, there will be a gap when this protection is not afforded.
No doubt my noble friend will say that we will work all that out in the negotiations, but these negotiations are likely to take place after the due date on which we would leave, if we leave the European Union. What is more, clearly, it is not going to be left to the negotiations, because he has already told us that we are going to have a sentient animal Bill—so it is not just a matter of the negotiations. Not only are we supposed to accept that this is outside the Bill, even though that is the Government’s fundamental proposition about the Bill; we are also supposed to accept that they will be able to bring forward legislation that will cover this matter in time for there not to be a gap, which is unconnected with the negotiations because otherwise we would not need to have that until after the negotiations, in which case we could merely take it into our law.
I am afraid that this is very complex and, worse than that, we have before Parliament a Trade Bill. It is clearly the Government’s intention not to restrict their future trading arrangements to ensure the high standards of animal welfare that I spent quite a lot of my life arguing about in the European Union and working for in this country. Those standards are not enshrined in the Trade Bill. There are no arrangements in that Bill for this House to discuss, or to have, in any sense, an influence on, trade negotiations and agreements. We are, therefore, fixed into a position in which we have to accept that this omission from the arrangements of the withdrawal Bill is accidental—it is of no importance and will be covered by another Bill. We also have to accept that there will be another Bill and that it will be in time. What is more, we are to accept that what is in the other Bill will cover this issue. As we know, it has, in the words of the noble Baroness, Lady Jones—I would not like to use the phrase myself but I can repeat it—“been rubbished” by the Select Committee which looked at it. It does not actually do the job.
The Trade Bill will not give any protection for animal welfare, so that our farmers, who meet high standards, will have to accept imports from elsewhere which do not meet them. The argument about chlorinated chicken—I know that phrase has been ridiculed but it is useful—becomes very strong. I hope your Lordships are aware of why the words “chlorinated chicken” are so important. The United States has to chlorinate its chickens because it does not have high welfare standards and unless you chlorinate them you have even more food-borne disease than America has now. It has at least four times the food-borne diseases that we have in Europe. This is no passing comment; it is a fundamental issue of the health of the British people, leave alone the issues of sentient animals.
I am sorry that there is more to say—but this is a very serious area. The Government seem to have misunderstood the way in which you take EU laws into British law. EU laws have always to be read in their context, inside the protocols which make those laws operate. The trouble with this particular bit of the withdrawal Bill—as indeed with much of it—is that when you take the bare bones and put them into English law, you lose that context. You really do have to find a way of getting the context in, otherwise the bare bones do not have the same effect as they do at the moment in the application of EU law.
There is another thing that I find difficult with the Government’s willingness to discuss this issue in such a peculiar manner. I can understand my noble friend, and other Ministers at various times, recognising that some of us do not think that withdrawal is a very good idea. That is perfectly understandable, but we are not debating this on that basis. What we are doing is trying to make sure that the withdrawal Bill does what it is supposed to do—and we are trying to do that as a House that has that specific duty and job. I know that the Daily Mail finds that hard to understand, but what we are here for is to ensure that the legislation that is passed is, in detail, what was intended. The House of Commons—the other place—is now less able to do that because of the way in which it restricts the time spent on these matters. I know that my noble friends would much prefer this House to spend less time on the Bill. But if we do not spend the time, no one else will go through it in the way that we will have to if this is not to be a disaster not just for animals but for human beings, because we will have none of the necessary restrictions.
Lord Davies of Stamford (Lab)
My Lords, I congratulate the noble Baroness, Lady Jones, on introducing the amendment very clearly and effectively. I support it strongly. I also commend the speech of the noble Baroness, Lady Bakewell, who spoke straight from the heart. However, there was nothing at all sentimental or false about what she said; it was said straight from experience and was very matter of fact.
I too have the benefit of living in the country—I see it as a benefit, anyway—and I see many animals. I have cattle grazing on my land and I have a dog; I should declare that interest. I have many times been able to verify how intelligent these animals are, how sensitive they are and what an extraordinary relationship they can have with human beings. All of this is orthodox science. It was demonstrated by Pavlov or Konrad Lorenz and has been demonstrated over and over again, so I do not think there is any doubt about it. It has always seemed to me that caring about sentient animals is one of the marks of a civilised society. There is terrible cruelty to animals in this world. The situation is obviously worse in many poorer countries, for reasons one understands. I think that the European Union has probably the highest standards of anywhere in this matter—certainly far higher than the United States. I hope that we can keep things that way if we have to leave the European Union and that we will at least not resile from those standards. That is why I want to comment on what has just been said.
I am not sure that I have ever said this before, but I agree with every word that the noble Lord, Lord Deben, said in his excellent speech. That being the case, I might normally be tempted simply to record my agreement and then sit down. However, I have some slight hope that if I make similar points to those he made—it was my intention to make exactly the points he pre-empted me in making—but from a rather different perspective, and the Government hear a similar message from different parts of the House, they might for once consider whether there might be something in those points—and it would be very desirable indeed if the Government thought again about the matter.
The noble Lord, Lord Deben, made a couple of very important points. I will not follow him on Northern Ireland as we shall have other opportunities to debate that in the course of our proceedings, and I look forward to taking part in those debates. The noble Baroness, Lady Jones, made it very clear that the Government clearly intend that there should be protection for sentient animals in our legislation, but not to the same high standard that applies at present. Over and over again—countless times—we have heard in these debates that the Government’s only intention in bringing forward this Bill is to transpose Union law into British law so that there is no legal vacuum or legal confusion if we leave the European Union. We understand that that is a perfectly reasonable and logical response to the situation and I think that most of us on this side of the House want desperately to take the Government’s words in good faith.
However, over and over again we find that that is not true, that there is a surreptitious agenda and that rights and protections which exist by virtue of our membership of the European Union are not being carried forward and that the Government appear to have no intention of carrying them forward into domestic law after Brexit. The noble Baroness, Lady Jones, made this absolutely plain and cited the Government’s proposed wording to replace the article in the Treaty of Lisbon on animal welfare. It is quite clear that the Government want to weaken that language. Why do they want to do that? I had always thought that there was a consensus among civilised, humane people on the protection of animals which went across this House and the other place and had nothing at all to do with political parties. Is that not the case? Why should the Government therefore decide in this case not to carry forward into British law the existing levels of protection in the Treaty of Lisbon but to deliberately reduce them and dilute them? Why is that? I cannot understand it.
Secondly, on another point made by the noble Lord, Lord Deben, there should be no illusion about this matter as regards international trade. If we are serious about animal welfare, we must impose exactly the same standards that we impose on our own farmers in this matter on any imported animal products, otherwise we will make complete fools of ourselves without any gain to animal welfare at all. All that will happen is that the business will go to farms in other countries which apply appalling standards of animal protection or none at all and who therefore have an economic advantage and can undercut the British farmer with produce that is produced in barbaric fashion. I include in that the way the Americans produce their beef, which is absolutely revolting. They now have zero grazing for over 95% of their beef, which means that you have two animals in an area slightly smaller than the Table in front of me. They never see the air or a blade of grass in their life. That is appalling but it undoubtedly gives the Americans an economic advantage.
Viscount Ridley (Con)
The noble Lord is repeating a point he made last week about American agriculture. I let it pass then, but on that occasion he said that if you go to Texas, there are no cattle outdoors, and that you would not see a lot of Texas longhorn outdoors. I go to Texas quite regularly and see an awful lot of cattle being raised outdoors. The noble Lord should be careful not to exaggerate what is happening. I do not know what relevance this has to EU withdrawal, but it is important not to go too far in this respect.
Lord Davies of Stamford
I will come to the relevance to EU withdrawal in a moment. I will just say that I feel that I have not lived in vain, because the noble Viscount has listened to what I said and thought about it for several days. I was perhaps speaking figuratively; in this life you can never apply the word “infinity” or “zero” in a completely literal sense. He may have been to the wrong part of Texas, or to parts where there are expensive ranches and the oil billionaires who own them like to have some longhorn on display. Those ranches exist, and I have seen one or two of them. Perhaps the noble Viscount has some friends who invited him there. That is not the heart of the beef economy. If the noble Viscount knows anything about Texas—he obviously does—he will know that Fort Worth used to be the centre of the Texas meat industry. I used to go there very frequently because I had a lot of dealings with Lockheed Martin, which is based there. I went there at different times of the year and I got to know the countryside around Fort Worth and towards Dallas quite well. That would have been cattle country 100 years ago; there would have been cattle on every horizon. I have literally never seen a single live animal in the area around Fort Worth, which was the headquarters of that industry. That is not a part of the United States where wealthy people have ranches with animals on display, which is a very different matter.
The point I was making—I will not say before I was interrupted, because I was pleased to have the intervention from the noble Viscount, particularly if he has been listening to my speeches carefully—was that there is no point in having any kind of regard to animal welfare and persuading ourselves that we are being humane and civilised in doing so if we then let in, in our imports, meat or other agricultural products which derive from inhuman practices. All we are then doing is making sure that the business and the activity moves from this country abroad with not a single iota of gain to animal welfare or happiness, and causing the destruction of the British livestock industry in the process. That makes no sense.
If we are to do this, we have to do it properly. We should make it a matter of moral commitment that when we leave the European Union—if indeed we do—we stick to the high standards which the European Union has set in this matter and certainly do not dilute them, and secondly, that we ensure that we impose those standards if we have left the European Union and are in a position to sign free trade agreements with other countries. I have explained why I think it is unlikely that we will be in that position in practice with the United States, but supposing that we were, we should in that eventuality impose exactly the same standards on anybody who wants to sell us meat or other agricultural products in future.
Lord Bowness (Con)
My Lords, noble Lords will be pleased to know that I will be brief. I put on record my support for Amendments 30 and 98, and for the sentiments expressed by my noble friend Lady McIntosh of Pickering. I cannot imagine what good reasons there can be for opposing this amendment. I appreciate that a number of directives and regulations will be incorporated into our law, but not this important treaty provision. As other noble Lords have already said, a hallmark of a civilised country is how one treats one’s animals, and recognition of animal sentience is key to that.
Baroness Miller of Chilthorne Domer (LD)
My Lords, I add my support to this important amendment, which has received widespread support from around the House. Noble Lords have rightly concentrated on farm animals because of the implications of the trade Bill—I associate myself with the wise remarks of the noble Lord, Lord Deben. However, let us remember that the animal sentience directive applies not only to farm animals but to all animals: wild animals, companion animals, working animals and lab animals. If we did not accept it, it would be a major step backwards. This House will remember that the Animal Welfare Act 2006 was a major step forward, but it was quite controversial and took a lot of time to go through both Houses. That is one reason why I am particularly surprised at the Government wanting to spend lots more time on animal sentience—time which we know Governments rarely have. As other noble Lords have said, they could simply include it in this Bill and avoid all that time being taken up.
So the question I ask myself is: what loopholes are the Government hoping to create for themselves in their Bill? There must be some reason why they do not want to put provision firmly into this Bill. Those suspicions fuel public anger when people realise that the Government are resisting an amendment of this sort.
Lord Teverson (LD)
My Lords, my noble friend Lady Bakewell was absolutely right to talk about Britain as a country of nature and animal lovers. I remember that one of the first things to happen when I became an MEP in the mid-1990s was that I received a sackful of mail about live animal transport. The Rwandan genocide was taking place at the same time but I received no letters whatever about that, despite the EU’s role. I relate that story only to show that I am in no way sentimental about this issue, but I completely support Amendment 30 in particular because I can see no reason why we should not include it in the Bill.
I chair the House’s EU Energy and Environment Sub-Committee, which covers agriculture. During an inquiry into Brexit and animal welfare, one thing that clearly came out was the trade issue, which a number of noble Lords have referred to. At that time—and I really do not see things as being very different now—it seemed to everyone on the committee that there was a schizophrenia within government. On the one hand, Defra was saying that high animal welfare standards would continue after Brexit. One obvious point to make about this amendment is that it does not in any way constrain our Government from increasing welfare standards after Brexit. It would not get in the way of that, so that is no reason to resist it. On the other hand, the Department for International Trade was very gung-ho in fulfilling its mission of getting free trade agreements throughout the world more or less as part of the Brexit dividend—agricultural trade being an important part of that.
Two other things came across during our inquiry. One was that no one in the industry resisted retaining the current EU and UK animal welfare standards and legislation—no one wanted to reduce them. The other was that WTO rules are very unclear in this area. There is no guarantee in trade agreements that you can prevent trade happening. Whether under WTO rules or under FTAs, there is no guarantee of enforceable animal welfare clauses. The example given was the EU’s resistance to accepting North American hormone beef. The EU effectively lost the case on animal welfare and has to provide compensation to the United States for that restriction. Therefore, this is an area where I still see a fundamental difference within government—between Secretary of State Liam Fox and Secretary of State Michael Gove. I do not see that as resolved, and that is why this proposed new clause has to be included in the Bill.
I have a question for the Minister. In her speech last week, the Prime Minister mentioned remaining a member, or an associate member, of the European Aviation Safety Agency, the European Medicines Agency and the European Chemicals Agency. I did not see this mentioned in her speech but is it the Government’s intention to try to remain an associate member of the European Food Safety Authority and, as part of that, the Panel on Animal Health and Welfare? This is viewed as one of the most authoritative and excellent organisations in that area but, by not being an associate member of the European Food Safety Authority, we will no longer be a member of or an influence on that panel.
This amendment is fundamental. The Government can gain only praise by accepting it, and I hope that they will do so.
Baroness Jones of Whitchurch (Lab)
My Lords, I wish to speak to my own amendment in this group, as well as supporting the other amendments in the names of the noble Baronesses, Lady Jones and Lady McIntosh.
On animal sentience, the noble Baroness, Lady Jones, rehearsed the background to the amendment and other noble Lords have done so too. Animal sentience is an important underlying principle. It comes from Article 13 of Title II of the Treaty on the Functioning of the European Union, which states clearly that animals are sentient beings. It is therefore very important that this principle is transposed into UK law. However, as we have heard, when the Greens, Labour and others fought for amendments in the Commons to enshrine this principle in the Bill, it was voted down by the Conservatives. I hear the voices of some Members opposite who still do not quite understand why that happened; we, too, do not understand why they took that decision.
There was then an immediate backlash, not only from animal charities but from animal lovers around the UK. The noble Baroness, Lady Bakewell, gave us a flavour of how passionate people are—quite rightly—not only about the countryside but about their personal interconnection with animals and about how important animals are to them. All those arguments have been made very well.
Effectively, the Secretary of State realised that his reputation was about to be trashed and he decided that there would be a process of damage limitation. His solution was to announce that the original amendment was not well drafted and that a separate Bill on animal sentience would be produced. A draft Bill has now been produced and it bears all the hallmarks of a rushed job. Apart from anything else, it combines two distinct issues: increasing sentences for animal cruelty—something that has been in the pipeline for some time—and attempting to define animal sentience. As the noble Baroness, Lady Jones, pointed out, it is therefore not surprising that the Commons Environment, Food and Rural Affairs Committee produced a scathing pre-legislative scrutiny report on it. The noble Lord, Lord Deben, queried whether he could quote the noble Baroness as having rubbished it. It is fair to say that the committee did rubbish it. It said that the Secretary of State should go back to the drawing board and that animals,
“deserve better than to be treated in a cavalier fashion”.
It also recommended that the separate bit of the Bill on animal cruelty should go ahead as planned and that much more thought should go into the Government’s vague and ambiguous reforms around animal sentience.
We agree with that analysis. We would be happy to work on the animal sentience Bill to make sure that we get it right, but then of course it has to take its place in the queue of Defra Bills that have already been promised within the next year—a point echoed by other noble Lords. Bills on agriculture, fisheries and the environment have already been promised. Most are in draft form, although some are not even at that stage, and they all have to be delivered within the next 12 months or so. This one would have to take its place in that line of legislation, not to mention all the other EU withdrawal Bills also currently in the pipeline.
It is a bit of a stretch to think we will ever get to a separate animal sentience Bill, so we come back to the amendments on animal sentience before us today. Our belief is that amendments of this nature are necessary to provide a guarantee of the transposition of EU rights for animals, which the Government have promised. Again, I thought that the noble Lord, Lord Deben, made that case very forcefully. Ultimately, this is a simple process, which can be accomplished by a simple amendment. If we can find better wording than that which we have put forward, that is absolutely fine; that is the purpose of Committee stage and we would be happy to hear the Minister’s suggestions on that. We would then welcome the chance to work on a more thorough animal sentience Bill, which would take into account the concerns of the Environment, Food and Rural Affairs Committee and reflect the latest scientific evidence on how animals experience pain and suffering—a lot of new research is coming forward on that issue, of which we need to take account. Today, the task before us is to ensure that all existing EU law is transposed appropriately. We believe a simple amendment of the kind we have put forward would achieve that purpose.
Lord Davies of Stamford
Does my noble friend agree that the excuse that the Government cannot accept this amendment because another Bill may be coming along on the same subject cannot be accepted as genuine? If the Government do bring forward another Bill on this subject, there is absolutely nothing to stop them, if they so wished and if Parliament agreed, modifying the amendment as it is incorporated in the Act.
Baroness Jones of Whitchurch
That is our position: we should have this amendment now but work on it in the longer term. I am sure we could all find ways of improving it. The easiest and most honourable thing is to transpose what was in the treaty and move that wording over, then move on to something better for the longer term. I agree with my noble friend.
The Minister of State, Department for Exiting the European Union (Lord Callanan) (Con)
My Lords, this has been an excellent debate and I thank all noble Lords who have contributed to it. I start by directly addressing the question put by the noble Baroness, Lady Bakewell, the noble Lords, Lord Wigley and Lord Davies, my noble friend Lord Bowness and others. There is no question but that this Government regard animals as sentient beings. As we said on this issue in the other place, we certainly agree with the sentiment of the amendments, such as that of the noble Baroness, Lady Jones of Moulsecoomb. However, as I will set out, we cannot support them.
Article 13 of the Treaty on the Functioning of the European Union, to which many noble Lords have referred, places an obligation on the European Union and EU member states when formulating and implementing certain EU policies to have regard to the welfare requirements of animals because animals are sentient beings. However, the weakness of that article—this relates directly to my noble friend Lord Deben’s point—is that it applies only to a limited number of EU policy areas and, even then, allows for certain religious and cultural traditions which many would consider to be cruel. Two examples, of course, are bull-fighting and the production of foie gras. Article 13’s effect on domestic law is minimal. As the Secretary of State for the Environment has made clear, as we leave the EU, we believe that we can do much better.
We have made it clear that we intend to retain our existing standards of animal welfare once we have left the EU, and, indeed, to enhance them. This Bill will convert the existing body of EU animal welfare law into UK law. It will make sure that the same protections are in place in the UK and that laws still function effectively after we leave the EU. However, the purpose of this Bill is to provide continuity by addressing any deficiencies in law as we leave the EU. It is not about improving EU laws that the Government think could be better. That is why, at the end of last year, the Government published draft legislation, the Animal Welfare (Sentencing and Recognition of Sentience) Bill, to which a number of noble Lords have referred. The draft Bill sets out how we can better enshrine in domestic law the recognition of animals as sentient beings.
Let me reply to the questions asked by my noble friend Lord Bowness and the noble Baroness, Lady Jones. The Secretary of State for the Environment has been clear that we will legislate and that there will be no gap left in our law on sentience after we leave the EU. We believe that the draft Bill is a significant improvement on Article 13, imposing a clear duty on the state to have regard for animal welfare when considering all policies, rather than just the six areas outlined in Article 13.
Lord Deben
My noble friend has said that the reason we are not including that part of the article which is excluded is that it does not go very far and it is not good enough, but that is not what the Government promised. The Government said that they were going to include in this Bill all the present legislation. That is all we ask. Why will he not include even so deficient a piece as this and then do the additions afterwards, which is what he has told me he is going to do on every other occasion?
Lord Callanan
Because we do not think that Article 13 works in the context of UK law; it applies only to EU law. I have set out why we think we can do better.
The public consultation on the draft Bill closed on 31 January. The Government are analysing the responses and will publish a summary and next steps in due course—I hope before we get to Report. I hope this reassures the noble Baroness, and indeed my noble friend Lord Deben, about the Government’s firm stance on animal sentience.
Lord Wigley
The Minister emphasised that he hoped this would be brought forward by Report. If it is not, would he be prepared to look at an amendment along these lines to meet the Government’s shortcomings and ensure that the Bill covers the possibilities we have outlined in the debate, rather than relying on the possibility of future legislation that may not reach the statute book?
Lord Callanan
I do not want to give the noble Lord an exact commitment but, as I have said, we hope to have it by Report stage. If that is not the case we will look at what can be done in its place.
Amendment 30 seeks to transfer the obligations contained in Article 13—to have regard to the welfare requirements of animals as sentient beings when developing and implementing certain EU policies—to domestic law. Unlike Article 13, however, the amendment applies only to the formulation rather than the formulation and implementation of law and policy. Furthermore, once the UK has left the EU we will obviously no longer be a member state and therefore no longer formulate or implement any EU laws or policies. Therefore, by referring to the obligations contained in Article 13, it is not clear what the effect of the amendment would be in practice. Although it is assumed that its intention is to require the welfare requirements of animals to be taken into account in formulating domestic law and policy, it appears that the amendment would only require it when formulating and implementing EU policy and law, which of course we would no longer be doing. As I have said, the Government have published a draft Bill which introduces a clear duty on Ministers to have regard for animal welfare when formulating and implementing all government policy and not only the six areas I mentioned earlier.
Amendment 98, tabled by the noble Baroness, Lady Jones of Whitchurch, seeks to apply the requirements of Article 13 to the use of Clause 7. It would require Ministers to pay full regard to animal welfare requirements when introducing any legislation under Clause 7. I remind noble Lords that the purpose of Clause 7 is to allow the Government to address deficiencies in retained EU law arising from our withdrawal. Clause 7 provides powers for Ministers to make secondary legislation to deal with any problem that would arise on exit—for example, to remedy any provisions that would have no practical application after the UK has left the EU.
However, the power is temporary and can only be used for up to two years after exit. After that point it will expire. Similarly, the proposed amendment to Clause 7 would only have effect for two years from the date of our withdrawal from the EU. The amendment would also only apply to those regulations introduced by Ministers before March 2021 for the purposes of addressing deficiencies arising from our withdrawal. Therefore, the limited protection provided for animals by the amendment would also expire on 30 March 2021.
The amendment would not hold Ministers to the standards required in Article 13 two years after we have left the EU and, therefore, would weaken the current obligation in Article 13. The provisions set out in our draft Bill in December go beyond the two years following our exit from the EU and will apply to more than just those regulations that deal only with any deficiencies arising from the UK’s withdrawal from the EU.
Baroness Jones of Moulsecoomb
My Lords, I thank the Minister for his response and all noble Lords who have contributed to the debate. I would like to offer them all a hug but I fear I might be infringing HR regulations. I am aware that the Whips have been looking anxiously at the clock and I shall try to be brief.
The amendment would not change anything that exists in the UK at the moment—it is merely a safeguard. If the Government bring forth a Bill I will be incredibly supportive. I am not saying this is the best option for animal protection but it is as good as it gets. It is the best we have at the moment and I certainly do not want to see any worse protections.
Chickens have already been mentioned. I would like to add that mastitis is common in the States—it is an infection of the udder, which means that the milk produced has a high level of pus in it. Americans consume a lot of pus in their milk because of the way their animals are farmed. The noble Viscount, Lord Ridley, might have seen cows with sore udders in Texas. We cannot have this in our country and the British public would not allow the Government to drop our welfare standards. If the Government are going to bring forth a Bill, fantastic—but in the meantime let us have the amendment to keep things as safe as possible.
I hope the Government do not come back to your Lordships’ House with a fudge. Many noble Lords are more knowledgeable about this issue than I am, and it would not be accepted. It is a mistake for the Government not to say, “We will have this until we can do better”. If they did, I would support them. I would love to not withdraw the amendment but, with your Lordships’ permission, I will.
Lord Pannick
Lord Pannick (CB)
My Lords, Amendments 31 and 33 arise again out of a report from your Lordships’ Constitution Committee. They are in the names of four members of that committee, the others being the noble Baroness, Lady Taylor of Bolton, and the noble Lords, Lord Norton of Louth and Lord Beith. In the same group I have tabled Amendment 31A.
These amendments address the inclusion in the Bill of the principle of the supremacy of EU law. Noble Lords will know that under the European Communities Act 1972, EU law takes priority over any inconsistent domestic legislation or rule of law. That is why the Merchant Shipping Act 1988 was disapplied in the Factortame case to the extent that it was inconsistent with the EU law rights of Spanish fishermen.
Since the purpose of the Bill is to read across the substance of EU law as at exit day and so secure continuity, the Constitution Committee recognises the need to maintain the priority of retained EU law over laws that were enacted or made prior to exit day. The scheme of the Act is that any future Act of Parliament will take priority over retained EU law. Our objection is to the Bill using the term, the “supremacy of EU law”. We point out in Chapter 5 of our report:
“The ‘supremacy principle’ is alien to the UK constitutional system”,
not only in its origin but also in its content. In our constitutional law, Parliament has supremacy and we think that it is very unsatisfactory that the Bill chooses to implement legal continuity by maintaining a legal concept, the supremacy of EU law, which leaving the EU is designed to abolish. If it is possible to avoid the use of the concept of supremacy for the application of our law after exit day, that would be preferable.
It is also difficult to see how Clause 5(3) advances the objective of legal certainty. To make the application of the concept of supremacy dependent on,
“the intention of the modification”,
seems to the Constitution Committee to invite uncertainty. I would be grateful if the Minister can explain how subsection (3) is intended to apply in practice. Amendment 31 would simply remove the provisions relating to supremacy and it needs to be read with Amendment 33, to which I will turn in a moment.
Another approach is offered by Amendment 32A. It would be much more consistent with British legal principles for Parliament simply to enact, as Amendment 32A suggests and as Professor Paul Craig of Oxford University has suggested—I gratefully adopt his scholarship—a provision that if, on or after exit day there is any inconsistency between retained EU law and an enactment made or a rule of law enforced before then, priority shall be given to the retained EU law.
Whether Clause 5 should use the concept of the supremacy of EU law is linked to another fundamental issue raised by this group of amendments. The Constitution Committee has advised your Lordships that one of the defects of the Bill is that it fails to accord a defined legal status to retained EU law. That is the focus of Amendment 33. The Bill as currently drafted does not say whether the retained EU law is to be treated as primary legislation, as secondary legislation or as something else; and if so, what? The Bill ignores the problem save in paragraph 19 of Schedule 8 which tells us:
“For the purposes of the Human Rights Act 1998, any retained direct EU legislation is to be treated as primary legislation”,
meaning that it cannot be disapplied by the courts but can be made the subject of a declaration of incompatibility. Our objection to paragraph 19 is that it begs a question: if retained direct EU legislation does have the status of primary legislation for the purpose of the Human Rights Act, does that mean that it does not have that status for any other legal purpose? The Constitution Committee advised in paragraph 51 of its report that the Bill will give rise to confusion and uncertainty about the legal status of retained EU law by failing to address this issue clearly and consistently.
The Bingham Centre for the Rule of Law has agreed with our concern that the Bill should confer a defined legal status on retained EU law. The centre has explained that individuals and businesses need to know about the status of one rule relative to another because the question of hierarchy is determinative of a number of legal questions. Which rule takes priority if there is a conflict between them? On what grounds may the content of a legal rule be challenged? What remedies are available if the legal challenge is successful, and what process must be followed if the rule is to be repealed or amended? Even worse, in the opinion of the Constitution Committee, the Solicitor-General told us in his helpful evidence that the Government would, if necessary, use the powers conferred in Clause 17 to make provision themselves to determine the legal status of particular retained EU laws for specified purposes. The report is very clear about that in paragraph 69:
“It is constitutionally unacceptable for ministers to have the power to determine something as fundamental as whether a part of our law should be treated as primary or secondary legislation”.
We added that for the Bill to say nothing about legal status but to allow Ministers to determine the status of particular retained EU law for particular purposes is,
“a recipe for confusion and legal uncertainty”.
Amendment 33 would implement the recommendation of the Constitution Committee by conferring on retained EU law the status of primary legislation enacted on exit day. The simplicity of that approach is that it would ensure, by a means entirely conventional on domestic legal principles, that retained EU law would take priority over previously enacted legislation, as the Government intend, but it would give way to legislation enacted after exit day—again as the Government intend. Another advantage of treating all retained EU law as primary legislation is that it would not be capable of amendment under existing delegated powers which are not Henry VIII powers. Ministers would be able to amend the retained EU law only by using existing Henry VIII powers where applicable or by using the powers conferred under this Bill. I should add that although the Bingham Centre for the Rule of Law does agree that the failure of this Bill to address the legal status of retained EU law is a serious defect, it does not agree with the remedy proposed by the Constitution Committee. The centre has expressed concerns that to treat all retained EU law as primary legislation risks devaluing its currency as well as running the risk that we will become inured to the use of Henry VIII powers to amend primary legislation.
The Bingham centre, like Professor Paul Craig, would prefer the Bill to accord a legal status to retained EU law that depends on the status which the norm had in EU law pre-exit day. There is an opinion from Mr Pushpinder Saini, the Queen’s Counsel for ClientEarth, which makes a similar proposal. I would be content with such a solution to this complex problem on which different views may reasonably be taken as to the solution, but I emphasise that the Constitution Committee and the Bingham centre agree that there is a serious deficiency in this Bill since it fails to accord a defined legal status to the retained EU law. I therefore look forward to hearing the Minister’s response to all three of the problems in the Bill raised by this group of amendments. First, the inclusion in Clause 5 of the concept of the “supremacy of EU law”; secondly, the failure of the Bill to confer a domestic legal status on retained EU law: is it primary legislation, is it secondary legislation; what is it?; and thirdly, the lack of clarity in Clause 5(3) with its reference to,
“the intention of the modification”.
I beg to move.
The Deputy Chairman of Committees (Baroness Morris of Bolton) (Con)
My Lords, if Amendment 31 is agreed to, I cannot call Amendment 32 for reasons of pre-emption.
Lord Foulkes of Cumnock (Lab)
My Lords, when I first heard of a Pannick amendment, I thought it was something like an emergency resolution. I now realise that it is an elegantly drafted and eloquently spoken to amendment. In the light of what we have just heard from the noble Lord, Lord Pannick, there will be no need for me to move Amendment 32.
Lord Dykes (CB)
My Lords, I begin by very quickly thanking the noble Lord, Lord Foulkes, for his comments—with which I agree entirely—and the noble Lord, Lord Pannick, for his very comprehensive explanation.
In general, Clause 5 is very problematic as drafted. I am grateful for the suggestions that have been made so far. Other colleagues who have spoken on other occasions about this danger in Clause 5 have expressed real concern about it suggesting leaving out the main subsections. Even if Section 1 is not separately debated today, they all come together in a cohesive generality.
The Bill converts existing EU direct law—as has been said, mainly regulations but also directives and sometimes decisions—into UK law as it applies on the actual exit date. I fear that Her Majesty’s Government, who have already shown massive incompetence in handling the whole wretched process of Brexit, underestimate the huge volume of SIs that would need to cascade through the system if enacted as they stand. I feel very strongly that it would not be seemly and proper to incorporate the words of the so-called supremacy of EU law as is written down now, even if there was a laid-down definitional basis. Even the qualified tone in subsections (2) and (3) does not reassure me. Unless the text is improved appropriately, I envisage endless scenes of parties arguing in UK courts over the underlying meanings—arguments for some length of time and at notable expense, of course.
Many outside expert observers of these matters—including, I recall, the Law Society—have flagged up these possible consequences. There have also been suggestions of them in various quarters, not least in our House’s Constitution Committee. The principle of the famous Clause 2 in the original 1972 EU membership Bill should be invoked to decide on the solutions—albeit for the reverse objective and in the reverse direction—to mitigate these dangers and provide the cover-all effect needed to avoid unnecessary litigation and post-Brexit wrangling.
I conclude by emphasising that taking part in these irritating and, dare I say, excessively bureaucratic legislative procedures in no way implies my support for the Government’s foolish, relentless, drive for a nightmare Brexit that fewer and fewer people in the UK now want. That is why I support the symbolic resistance of the noble Lord, Lord Adonis, to all the clauses standing part, including Clause 5.
Baroness Bowles of Berkhamsted (LD)
My Lords, we are now looking again at the principle of supremacy and status. I agree with a great deal—in fact, almost all—of what the noble Lord, Lord Pannick, said. However, in the various amendments I have sprinkled around, I differ with him on one fundamental point: I always wish to preserve the rights of individuals and businesses to have legislation struck down. That is their current position in that they can have EU law struck down. I put forward my alternative plan in Amendment 32A; I will explain how I got to it.
Broadly speaking, there are three baskets of EU laws. In basket 1, there are the treaties and the Charter of Fundamental Rights, which have to be followed by the European court. They are not revocable, as I am sure noble Lords know, and it is a big procedure to change them. In basket 2, I put legislative acts, meaning regulations and directives that set policy. To be precise, they can be identified by the article of the procedure in the treaty that they were made under. In the Lisbon treaty—the TFEU—it would be Article 289. The important point for noble Lords to hold in their minds is that these regulations and directives set policy. Basket 2 legislation can also be struck down by the European court—including on an action from individuals and businesses—for being incompatible with the treaty or the charter. A recent example is the data retention regulation that was ruled disproportionate in cases brought by Digital Rights Ireland and others. In basket 3, I put the implementation of Acts and delegated Acts and their predecessors. In the Lisbon treaty, that comes under Articles 290 and 291. These can be struck down by the European court for being incompatible with the treaty or the charter, as well as for being incompatible with the powers and instructions that were delegated to it in the legislation on which it depends.
If we take rights as our guide—by which I mean the right of an individual or business to challenge the validity of a bad law—then we get to the categorisation that the EU gives to law: that it is all secondary, except for the treaties and the charter. It is quite easy to accept that retained EU general principles—corresponding to basket 1, as I called it—should have primary status. Once converted under Clause 7, it would be wrong if they were changed or revoked other than by an Act of Parliament.
Basket 3 regulations are very close to statutory instruments in the way that they are made based on delegated powers, including an all-or-nothing single vote in the Council or Parliament to turn the whole lot down. There is also similarity in the ways they can be invalidated in court. That is quite easy to map on to our statutory instrument. Basket 2 is harder. The policy content and procedure of making the law look a lot like the making of an Act of Parliament; that leads some—I think Professor Craig was one of them—to conclude that it should map on to primary legislation. But then, if primary, it cannot be quashed under the general principles, so the rights of individuals and businesses are lost. Of course, if noble Lords look at Schedule 1—as we will later today—it can be seen that the Government’s intention is that there is no right of action on a failure to comply with the general principles of EU law. That is wrong. Treating legislation as primary carries the same cost that the Constitution Committee accepts. As it says in paragraph 48 of its report:
“Treating retained direct EU law as primary legislation for all—including”,
Human Rights Act,
“purposes is not without constitutional costs”.
I consider that cost to be too high because I give more weight to maintaining status quo rights and the reasonable expectations of individuals and businesses than making judgments easier or fewer.
We have to address that question several times in the Bill. Each time, I come down on the side of the people’s rights. No manifestos have ever said, “We want to take back control, including your right to challenge bad law”. However, the secondary legislation nature of basket 2 may require some further protection from overly easy change and revocation by statutory instruments, especially once things are no longer pinned in place because we are not part of the EU. In the EU, this was not made by a statutory instrument-type process, nor is it amendable in that way, so basket 2—although of secondary legislation status—could be deemed amendable in life after Clause 7 only by an Act of Parliament. This idea is similar to the one we debated regarding Amendment 21 in the name of the noble Baroness, Lady Hayter. Such treatment means that there is a special category for these laws, but we are in an unusual situation. The fact is that basket 2 is an intermediate, piggy-in-the-middle category. It is secondary legislation-plus, or primary legislation-minus. It could be replicated more or less by secondary legislation plus amendment protection, or the other way round as primary legislation but challengeable as to validity, although that is a bit more controversial.
The piggy-in-the-middle nature shows up in other ways. Basket 2 legislation actually contains within the individual documents a great deal of detail that in the UK domestic system would be done in delegated secondary legislation. It is the same with directives: a greater level of detail is there than in the lean and mean UK Acts of Parliament. That is even more the case after implementation for the secondary legislation made under the European Communities Act. For example, look at the Sanctions and Anti-Money Laundering Bill, which recently received its Third Reading in this House. The money laundering regulations 2017, based on the fourth anti-money laundering directive, are some 112 pages plus a glossary. They were replaced in the Bill by one clause of 28 lines, including the headings and a three-and-a-half-page schedule listing delegated powers. It has been much amended and improved, but the contrast in content is much the same. If we made secondary legislation transposing directives into primary legislation, there would be a great deal of detail on which I would not wish to say I gave the sovereignty of Parliament a totally unchallengeable status.
There are three parts to my amendment. The first would reword the supremacy principle. I intend it to do the same thing and I am not precious about the wording. In fact, I just modified the Constitution Committee’s idea and stole the idea that you allocate precedence as if it were primary legislation, but in my plan the only bit of primary legislation it gets is the precedence. The second part would allocate secondary status to basket 2 retained legislation, and indeed to basket 3—everything except for Acts, because where we have Acts they already are and look like Acts. I then allocate primary status to EU general principles. As I have indicated, for life after Clause 7, basket 2 could be made so as to require amendment by primary legislation. Possibly that belongs in Clause 7 or somewhere else.
Lord Beith (LD)
My Lords, my noble friend Lady Bowles has identified a problem that goes beyond what the committee sought to solve in its proposal, and proposed an ingenious way of trying to deal with it. The committee’s proposal seeks to protect the important bits of that legislation from the degree of vulnerability provided by the repeal of statutory instruments under our present procedures. It is an intriguing point in some ways, because I expect this to be a shrinking area of law over time. If we leave the EU, one assumes that much of this legislation will in time be replaced by new legislation bringing that area of law up to date, not because it is EU law but because things move on and there is a need to do so.
That reminds us of the danger that the committee set out at paragraph 103 of its report. It said:
“If the ‘supremacy principle’ were to continue to feature in the Bill, clause 5(3) would need to be amended to clarify the extent to which retained EU law can be modified while retaining the benefit of that principle, and to clarify in what circumstances the modification of pre-exit domestic law would be such as to turn it into post-exit domestic law that is no longer vulnerable to the operation of the ‘supremacy principle’”.
We chose not to go down that road or try to define it because it seemed an extremely bad situation to get into. One other problem that I will add to the list so well adumbrated by the noble Lord, Lord Pannick, occurs in paragraph 87 of the report, which points out that Clause 5 would also need to be amended,
“to provide courts … with suitable guidance for the purpose of determining whether a rule of the common law should be taken to have been ‘made’ before or after exit”.
If that is not done then the procedure that the Government have chosen will yet again promote and continue uncertainty. In both cases it would be better to go for some version of what the committee proposed.
Lord Brown of Eaton-under-Heywood (CB)
My Lords, I agree very substantially with my noble friend Lord Pannick’s general approach. Any attempt to repeat or paraphrase what he said would merely weaken it. I shall not do so, but I will make two comments.
First, on the supremacy question, my noble friend is clearly right that this is a wholly alien notion and we do not want it incorporated in the Bill. I confess I could not find what he calls Amendment 31A in my Marshalled List—this must be my fault. Is it the same as what I have as Amendment 32B? I suspect it may be. I certainly read that amendment as modelled on Professor Paul Craig’s proposal for how to deal with this. If that is the position—my noble friend nods helpfully to indicate that it is—I entirely support that approach. The language is substantially Professor Craig’s and it is altogether satisfactory.
Secondly, my noble friend canvassed an outline of the alternative ways to deal with giving legal status to, and the categorisation of, retained EU law. On the one hand, the Constitution Committee suggested that we turn it all into UK primary legislation. Then there is Professor Paul Craig’s competing approach, which is also endorsed by the Bingham Centre. I have a huge preference for the latter, not the former. As Paul Craig points out, we pass, in round figures, about 40 statutes a year. If we suddenly turn 10,000 or so instruments—the figure I think he suggests—which obviously in the ordinary categorisation would fall into the category of secondary legislation, into primary legislation, with all the consequences of that, we would simply overwhelm the statute book. We would make it impossible to deal with them properly as statutes. We would then inevitably start needing Henry VIII clauses in full measure. We would devalue primary legislation and give credibility and justification to use of Henry VIII powers, which is the last thing we want to do. Go down the Craig-Bingham line, not the Constitution Committee’s recommended route. I say that with all respect and deference to the committee, whose report is overall an enormously helpful document.
Lord Campbell of Pittenweem (LD)
My Lords, I can be brief. I wish to support the various submissions made by the noble Lord, Lord Pannick, but also to draw your Lordships’ attention to some revealing contents of the Constitution Committee’s report, in particular the words of the Solicitor-General, which seem to indicate very clearly the weakness of the Government’s position.
As I recall, the noble Lord, Lord Pannick, confined himself to the first sentence of paragraph 69 of the report:
“It is constitutionally unacceptable for ministers to have the power to determine something as fundamental as whether a part of our law should be treated as primary or secondary legislation”.
He went on to say that this is a recipe for confusion and legal uncertainty. I invite your Lordships to look to paragraph 67 on page 23 of the report, particularly the direct quote from the evidence given by the Solicitor-General. He says of the powers under discussion that,
“there is nothing unusual about these powers. However, I accept that the way and the context in which they are used is somewhat unusual … I accept that we are in new territory here. Having said that … when embarking on new territory, all Ministers tread extremely carefully”.
If this is genuinely new territory, it is inevitable from the Solicitor-General’s expression that there is no precedent. If there is no precedent for exercise of powers in the way the Government seek, that is not just something where we should tread extremely carefully; it is something which should be rejected outright.
Lord Mackay of Clashfern
I indicated at Second Reading that I would support the propositions that the noble Lord, Lord Pannick, has enunciated on behalf of the Constitution Committee. Bringing into our system legislation from an alien system and doing so reasonably consistently require it to have an allocated status of some kind. Making it primary legislation is probably the best. Otherwise, there will be doubt about precisely which item of legislation goes to a particular area. The result will be to make it possible to dispense with the rather outmoded idea of the supremacy of EU law once Brexit comes along by the date which allows our ordinary system to operate.
I have tremendous respect for the Bingham system and, as your Lordships know, for the noble and learned Lord whose name it carried. It has kept up the traditions and quality of his work wonderfully—I should perhaps in passing declare an interest: I find it very useful to support the Bingham institute in connection with its funding. However, it makes quite a lot of the difficulty of using Henry VIII clauses. This is a very special situation, as the Constitution Committee recognised some time ago, because trying to fit together two systems of legislation is certainly difficult. We must remember the timescale involved in trying to do it any other way. I shall not comment on the detail of the powers to amend proposed in the Bill—that is for a later stage—but it is reasonable at the moment to accept that this is a very special situation with a necessary operation which requires to be performed in reasonably short time to make the whole thing work. Therefore, the idea that we are dividing primary legislation by this method is open to doubt.
Lord Adonis (Lab)
My Lords, when we last debated this issue, the Advocate-General for Scotland said that he was very attracted to the proposals published by Professor Paul Craig in his blog—the noble Lord, Lord Pannick, referred to that. I notice that Professor Craig published a subsequent blog on 26 February, also referred to by the noble Lord, in which he suggests that, once the process of transposing law has taken effect, we should assign,
“legal status to EU retained law in the UK based on the status it had in EU law”
Having read his blog as a non-lawyer, I felt that, if the intention is to give certainty, the proposals of Professor Craig would do that—except in one key respect which I hope the Minister might comment on: what process would be undergone between now and next February to allocate the huge body of retained law to one or other category if we were to adopt Professor Craig’s mode of proceeding? Since the Solicitor-General said in the House of Commons that about 20,000 pieces of EU law will be transferred, and if it were possible to establish, as Professor Craig sets out, a criterion based on the intention of existing EU law which would divide between primary and secondary legislation, can the Minister indicate, if he is minded to go down that route, what process would take place, so that, on 29 March next year, we know the status of law being transposed?
Lord Goldsmith (Lab)
We need to speak from these Benches as well.
The noble Lord, Lord Pannick, made a powerful speech in favour of his amendment, backed by the powerful arguments of the Constitution Committee. It is apparent that this gives rise not to a difference on what the end objective should be: the need for clarity; the need for a clear status for EU law; and the recognition that retained EU law will need to retain its position of priority over pre-existing UK law because that is the status it has at the moment and because, as we have been reminded in debate after debate, the Government have promised that EU law will be passed across on exit day as it is at the moment. The routes proposed by the Constitution Committee and the Bingham Centre for the Rule of Law—and in the interesting proposals put forward by the noble Baroness, Lady Bowles—demonstrate that it is possible to reach those objectives by different routes.
However, the methods put forward by the Constitution Committee and the noble Lord, Lord Pannick, have the merit of simplicity and elegance. The status of the law is clear. We do not have to go through a process of trying to decide between now and next February what it is; we certainly do not have to go through a process of allowing a Minister to use powers under Clause 17 to assign a process, which would be, as the Constitution Committee says, an unacceptable approach.
It would have the additional advantage, or so it would seem to me at least, that retained EU law would then have some protection against amendability, save by the processes of this House and the other place considering the amendments which ought to be made rather than by a process of delegated legislation—I say “some” protection, because it would not be complete. Those seem reasons why the elegant solution proposed by the Constitution Committee and the noble Lord, Lord Pannick, has much to commend it
I would like to read when it becomes available what the noble Baroness, Lady Bowles, said, to make sure that I fully understood all of it. I do not disagree with the intention behind it, but the proposal of the Constitution Committee may achieve it more readily and elegantly.
Lord Keen of Elie
My Lords, I am obliged for all the contributions and for the opportunity to respond to this debate. These provisions and amendments may be technical, but, in debating them, we must not lose sight of the real practical consequences that follow from how we deal with this issue. As the noble and learned Lord, Lord Goldsmith, observed in passing, we are aiming at the same goal; it is a question of which route can most appropriately take us there. I shall come on in due course to look at some of the routes proposed.
Lord Goldsmith
I was referring to the different proposals by the Constitution Committee and the Bingham Centre, rather than to the Government’s proposals.
Lord Keen of Elie
Then I reassure the noble and learned Lord that we are all intent on arriving in the same place; it is a question of how we arrive there. I shall deal with the routes that he touched on.
Perhaps I may correct one point: the noble Lord, Lord Adonis, referred to the work of Professor Craig and to some previous remarks that I had made about that. I commend to him what I said as recorded in Hansard. I referred to the publication of 26 February on the previous occasion; it did not come out after those remarks were made. I shall mention Professor Craig’s analysis in due course. The task of categorising such legislation would be challenging, but we would consider it as one route forward.
As we know, one of the core requirements of EU membership is the principle of supremacy of EU law. In the event of any conflict with domestic law, domestic law must give way. When we leave the EU, it would make no sense and would not be in keeping with our principles to leave that unchanged in our law; we all recognise that.
Lord Pannick
It is more fundamental than that. The difficulty is, why use the concept of the supremacy of EU at all? It is surely inappropriate in a Bill of this nature.
Lord Keen of Elie
Not necessarily in the context of retained EU law, which comes over with that principle of supremacy standing behind it. I will come on to deal with that in more detail. I understand that, as the noble Lord indicated, his amendments draw on the recommendations made in the Constitution Committee report on the Bill—although I was interested to note that Amendment 33 appears to go further than the recommendations put forward by the committee, in that it extends the status of primary legislation to all retained EU law, rather than just to law being preserved by Clauses 3 and 4 of the Bill. So there is that difference between Amendment 33 and the recommendations of the Constitution Committee.
I understand entirely the concerns here and the attraction that these amendments have as a result. It is only right, however, that we should examine fully the consequences of dealing with status in a one-size-fits-all way.
Baroness Young of Old Scone (Lab)
Before the Minister moves on to the consequences, perhaps I might draw his attention to the status of environmental law currently drawn from the European Union. Of course, a considerable proportion of the anticipated changes that will be required are in environmental law, because so much of what we draw from Europe is environmental law. At the moment, the status of environmental law drawn from Europe has been pretty random, to be frank, and not at all reflective of the importance of the legislation. It has been random, whether it is drawn from a regulation which would be picked up by the clauses that the Minister mentioned or from a directive which would not be picked up in that way. But it did not really matter that it was rather random in its status, because the framework provided by the ECA was there, and therefore none of the legislation could be meddled with randomly by the Executive. Of course, once the safeguard provided by the ECA has gone, the status of existing environmental law becomes rather strange. It sticks out like a sore thumb, in that some of it that one would think was sufficiently important to be considered eligible, as it were, for primary legislation, has not got that current status, while other bits of law that are pretty functional and practical have a much lower status. So I urge the Minister to think about just how complicated the process would be if we did not simply adopt a single status for all that law.
Lord Keen of Elie
First, with respect to the noble Baroness, I do not accept that the way in which environmental law has been received and enforced in our domestic legislation has been random. We differ at the outset to that extent. Of course, various propositions have been put forward, one of which is to give the status of primary legislation to all retained EU law—but that would raise difficulties that I will come on to address. The categorisation below that can be carried out: indeed, the noble Baroness tried to set out for Amendment 32A a hierarchy that could be employed in that context. But I do not consider that environmental law stands out in the way that the noble Baroness suggests.
Our concern is that, as I mentioned, a one-size-fits-all approach will not really work. Again, I quote from the Bingham Centre’s report, which stated:
“We consider that the Rule of Law objectives of legal continuity and certainty are better served by the approach taken by the Government in the Bill. The principle of supremacy is well understood and its future role is very limited, being confined to the relationship between retained EU law and pre-exit UK law. Treating all retained EU law as primary legislation enacted on exit day, on the other hand, will increase legal uncertainty because it changes the settled approach and leaves unclear whether the interpretive obligation, to interpret pre-exit UK law so as to be compatible with retained EU law, continues to apply”.
EU law that is being converted into domestic legislation under this clause covers both a vast range of different policy areas and different types of EU law, from regulations and directives applying to agriculture and farming to detailed and technical pieces of tertiary legislation, such as the list of contents for a dye or chemical. At the end of the day, treating all of that as primary legislation would present, as the noble and learned Lord, Lord Brown of Eaton-under-Heywood, indicated, a quite enormous task for Parliament if it is going to legislate to amend any of that retained EU law. How many Acts of Parliament would we have to contemplate putting through this House to wrestle with that demanding position? It really would be formidable. Because this legislation will come on to our domestic statute book in a unique way, it will not already have been scrutinised and approved by this Parliament—so we would be bringing in this enormous body of law and treating it as primary legislation when nobody in this Parliament had actually examined it.
The breadth of this body of law, in the case of EU law being converted, is unique in its nature, which is why the Government have deliberately chosen to tread rather carefully and not simply assign a single status to that retained law in domestic legislation. While assigning a single status for all purposes to all retained EU law may be theoretically possible, it would have the most difficult consequences and might lead ultimately to a situation in which we had to extend the use of Henry VIII powers beyond any reasonable limit normally contemplated in the context of provisions of this kind.
Beyond that practical consideration, there is a more fundamental concern about the constitutional appropriateness of what has been proposed. Domestic primary legislation is less vulnerable to subsequent amendment and is less vulnerable to challenge in the courts for a very good reason—because, as I said, it has undergone scrutiny by both Houses of Parliament, which means that there can be no doubt about Parliament’s intentions so far as that primary legislation is concerned. That would not apply to retained EU law.
While we are spending considerable time scrutinising this Bill, we are not able to scrutinise the law it is converting. Some of that law is itself the EU’s own subsidiary legislation, which has not been subject to comparable scrutiny anywhere. The noble Baroness observed on an earlier occasion that the European Parliament had had the opportunity to scrutinise much of this. It has had the opportunity to scrutinise some of it, but scant scrutiny—if any—of the subsidiary legislation has actually occurred in the European Parliament. By contrast, our proposed approach has been to deal with the status of converted law for certain specified purposes, such as that alluded to by the noble Lord, Lord Pannick: that is, paragraph 19 of Schedule 8 in the context of the Human Rights Act and rights arising from there.
Of course I understand the concerns put forward by the Constitution Committee and noble Lords about the consequences of the case-by-case approach that we are taking. I do not dismiss them lightly and I do not say that the Bill is a perfect solution to the issue that we have to address. As I indicated on day three of Committee, there is some scope for considering how we can take this forward. Reference has already been made to the work of Professor Paul Craig and the alternative model of categorisation that he proposed in his article of 26 February. That is something that we are looking at—albeit, as the noble Lord, Lord Adonis, anticipated, that it might involve a considerable amount of work. But if that can be an appropriate and effective categorisation, rather like that of the noble Baroness, it is something that we are willing to look at.
Again, I ask the Committee not to dismiss lightly the potential ramifications of treating all this law as having the status of primary legislation just to exclude the concept of supremacy from the operation of Clause 5. That would raise formidable problems for us and we do not see it as an effective way forward for the Bill. But, as I indicated previously, we are looking at the mechanisms employed here, and a mechanism that avoids actually applying the doctrine of supremacy may find greater traction as a way forward if we can come up with a suitable categorisation for retained EU law, rather than a blanket categorisation of primary legislation. I invite the noble Lord to withdraw his amendment.
Baroness Bowles of Berkhamsted
Perhaps I may make an observation. Leaving general principles out of it, if you categorise all the legislation as secondary legislation and then deem that some of it can be amended only by Act of Parliament, you do not have to sort it all. You would have to sort it only when you wanted to amend it—and at that point you would look at the basis on which it was made.
Lord Keen of Elie
I am obliged to the noble Baroness for that observation. Obviously, that is something that we would take into account. It perhaps touches on a question I did not answer from the noble Lord, Lord Pannick, with regard to Clause 5(3), where he queried the reference to the “intention of the modification”. Of course, what that makes clear is that this will need to be considered on a case-by-case basis.
Lord Pannick
Of course, “case-by-case basis” suggests lots of work for lawyers and a lot of legal uncertainty. I am grateful to the Minister and all those who spoke in the debate. There was, I think, widespread agreement in the debate—apart from the Minister—and from expert commentators that a legal status does need to be conferred in the Bill on retained EU law. How one confers the legal status is much more difficult than what legal status one confers. I would say that there is more than one way to skin a cat—but that may upset those who spoke in the previous debate.
I am grateful to the noble and learned Lords, Lord Mackay of Clashfern and Lord Goldsmith, for supporting the approach recommended by your Lordships’ Constitution Committee. But I agree with the noble and learned Lord, Lord Brown of Eaton-under-Heywood, that there is also great force in the suggestion made by Professor Paul Craig that the Bill should confer a status of either primary or secondary legislation, dependent on the category of EU law from which the retained EU law derives. I say to the noble Lord, Lord Adonis, who asked about this, that Professor Craig is not advocating a process of allocation on a case-by-case basis; he is advocating that legal status should depend on the article of the EU treaty from which the retained EU law derives—a much more objective approach.
Lord Brown of Eaton-under-Heywood
Did my noble friend hear Paul Craig say at a seminar, as I did, that it would take four competent EU lawyers four days in Brussels to classify, consistently with the classification both pre and post Lisbon, all this legislation? Four lawyers, four days—that is perhaps the answer to the question of the noble Lord, Lord Adonis.
Lord Pannick
Well, it depends. How long is a piece of string—how long does it take EU lawyers to allocate? But it is an objective approach. There may be difficulties, but they would be far fewer than the problems that would be posed by not addressing this problem at all in the Bill or by leaving it to Ministers to determine the matter. The other suggestion was that made by the noble Baroness, Lady Bowles. She may have the right answer. She spoke of various baskets—I think it was “baskets” rather than the word used by Sir John Major as Prime Minister in relation to opponents of the Maastricht treaty.
The core point is that it is unacceptable for the Bill to ignore the question of legal status. It is a problem that needs to be addressed if the Bill is to achieve its objective of securing legal certainty. Therefore, I hope that the Government will, as the Minister indicated, reflect on these issues before Report. I beg leave to withdraw the amendment.
United Kingdom-European Union Future Economic Partnership
(6 years, 8 months ago)
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The Lord Privy Seal (Baroness Evans of Bowes Park) (Con)
My Lords, with the leave of the House I will now repeat a Statement made by my right honourable friend the Prime Minister in another place. The Statement is as follows:
“With permission, Mr Speaker, I would like to make a Statement on our future economic partnership with the European Union.
In December, we agreed the key elements of our departure from the EU and we are turning that agreement into draft legal text. We have made clear our concerns about the first draft that the Commission published last week but no one should doubt our commitment to the entirety of the joint report. We are close to agreement on the terms of a time-limited implementation period to give Governments, businesses and citizens on both sides time to prepare for our new relationship, and I am confident we can resolve our remaining differences in the days ahead. Now we must focus on our future relationship: a new relationship that respects the result of the referendum, provides an enduring solution, protects people’s jobs and security, is consistent with the kind of country we want to be and strengthens our union of nations and people. These are the five tests for the deal we will negotiate.
There are also some hard facts for both sides. First, we are leaving the single market. In certain ways, our access to each other’s markets will be less than it is now. We need to strike a new balance but we will not accept the rights of Canada and the obligations of Norway.
Secondly, even after we have left, EU law and ECJ decisions will continue to affect us. The ECJ determines whether agreements the EU has struck are legal under the EU’s own law and if, as part of our future partnership, Parliament passes a law identical to an EU law, it may make sense for our courts to look at the appropriate ECJ judgments so that we both interpret those laws consistently—as they do for the appropriate jurisprudence of other countries’ courts. But the agreement we reach must respect the sovereignty of both our legal orders. That means the jurisdiction of the European Court of Justice in the UK will end. It also means that the ultimate arbiter of disputes about our future partnership cannot be the court of either party.
Thirdly, if we want good access to each other’s markets it has to be on fair terms. As with any trade agreement, we must accept the need for binding commitments. So we may choose to commit some areas of our regulations, such as state aid and competition, to remaining in step with the EU’s.
Finally, we must resolve the tensions between some of our objectives. We want the freedom to negotiate trade agreements around the world. We want control of our laws. We also want as frictionless a border as possible with the EU, so that we do not damage the integrated supply chains that our industries depend on and do not have a hard border between Northern Ireland and Ireland.
However, there are tensions in the EU’s position and some hard facts for it, too. The Commission has suggested that an off-the-shelf model is the only option available to the UK. But it has also said that in certain areas none of the EU’s third-country agreements would be appropriate, while the agreement envisaged in the European Council’s own guidelines would not be delivered by a Canada-style deal. Finally, we need to face the fact that this is a negotiation and that neither side can have exactly what we want. But I am confident we can reach agreement so I am proposing the broadest and deepest possible future economic partnership, covering more sectors and co-operating more fully than any previous free trade agreement.
There are five foundations that must underpin our trading relationship: first, reciprocal binding commitments to ensure fair and open competition so that UK businesses can compete fairly in EU markets and vice versa; secondly, an independent arbitration mechanism; thirdly, an ongoing dialogue with the EU, including between regulators; fourthly, an arrangement for data protection that goes beyond an adequacy agreement; and, fifthly, free movement will come to an end. But UK and EU citizens will still want to work and study in each other’s countries, and we are open to discussions about how to maintain the links between our people. We then need to tailor this partnership to the needs of our economies. We should be absolutely clear that this is not cherry picking. Every free trade agreement has varying market access, depending on the respective interests of the countries involved. If this is cherry picking, then so is every trade arrangement. What matters is that our rights and obligations are held in balance.
On goods, a fundamental principle in our negotiating strategy is that trade at the UK-EU border will be as frictionless as possible, with no hard border between Northern Ireland and Ireland. This means no tariffs or quotas and ensuring that products need undergo only one series of approvals in one country. To achieve this, we need a comprehensive system of mutual recognition. This can be delivered through a commitment to ensuring that the relevant UK regulatory standards remain as high as the EU’s, which, in practice, means that UK and EU regulatory standards will remain substantially similar in future. Our default is that UK law may not necessarily be identical to EU law but should achieve the same outcomes. In some cases, Parliament might choose to pass an identical law. If the Parliament of the day decided not to achieve the same outcomes as EU law, it would be in the knowledge that there may be consequences for our market access. We will need an independent mechanism to oversee these arrangements, which, I have been clear, cannot be the European Court of Justice.
We also want to explore the terms on which the UK could remain part of EU agencies such as those critical to the chemicals, medicines and aerospace industries. This would mean abiding by the rules of those agencies and making an appropriate financial contribution. The UK would also have to respect the remit of the ECJ in that regard. Parliament could decide not to accept these rules, but with consequences for our membership and linked market access rights.
Lastly, to achieve as frictionless a border as possible and to avoid a hard border between Northern Ireland and Ireland, we need an agreement on customs. The UK has been clear that it is leaving the customs union. The EU has also formed a customs union with some other countries but those arrangements, if applied to the UK, would mean the EU setting the UK’s external tariffs, being able to let other countries sell more into the UK without making it easier for us to sell more to them; or it would mean the UK signing up to the common commercial policy. That would not be compatible with a meaningful, independent trade policy and it would mean we had less control than we do now over our trade in the world. We have set out two potential options for our customs arrangement: a customs partnership where, at the border, the UK would mirror the EU’s requirements for imports from the rest of the world for those goods arriving in the UK and intended for the EU; or a highly streamlined customs arrangement, where we would jointly implement a range of measures to minimise frictions, together with specific provisions for Northern Ireland. Both would leave the UK free to determine its own tariffs, which would not be possible in a customs union.
Taken together, the approach we have set out on goods and agencies and the options for a customs arrangement provide the basis for a good solution to the very specific challenges for Northern Ireland and Ireland. My commitment to this could not be stronger: we will not go back to a hard border between Northern Ireland and Ireland; nor will we break up the United Kingdom’s own common market with a border down the Irish Sea. As Prime Minister, I am not going to let our departure from the EU do anything to set back the historic progress made in Northern Ireland, nor will I allow anything that would damage the integrity of our precious union. The UK and Irish Governments and the European Commission will be working together to ensure we fulfil these commitments.
This approach to trade in goods is important for agriculture, food and drinks but here other considerations apply. We are leaving the common agricultural policy and the common fisheries policy, and will want to take the opportunity to reform our agriculture and fisheries management and regain control of access to our waters. I fully expect that our standards will remain at least as high as the EU’s, but it will be particularly important to secure flexibility here to make the most of our withdrawal from the EU for our farmers and exporters. We will also want to continue to work together to manage shared stocks in a sustainable way and agree reciprocal access to waters and a fairer allocation of fishing opportunities for the UK fishing industry.
On services, we have the opportunity to break new ground with a broader agreement than ever before. For example, broadcasting and financial services have never previously been meaningfully covered in a free trade agreement. We recognise that we cannot have the rights of membership of the single market, such as the country of origin principle or passporting, but we should explore creative options, including mutual recognition, to allow broadcasting across borders. My right honourable friend the Chancellor will set out more detail on financial services later this week. We will also look to agree an appropriate labour mobility framework that enables travel to provide services in person, as well as continued mutual recognition of professional qualifications. Finally, our partnership will need to cover agreements in other areas including energy, transport, digital, civil judicial co-operation, a far-reaching science and innovation pact, and cultural and educational programmes.
We cannot escape the complexity of the task ahead. We must build a new and lasting relationship, while preparing for every scenario, but with pragmatism, calm and patient discussion I am confident we can set an example to the world. Yes, there will be ups and downs over the months ahead, but we will not be buffeted by demands to talk tough or threaten a walk-out and we will not give in to the counsels of despair that this simply cannot be done—for this is in both the UK’s and the EU’s interests. As we go forwards, foremost in my mind is the pledge I made on my first day as Prime Minister: to act not in the interests of the privileged few, but in the interests of all our people, and to make Britain a country that works for everyone. My message to our friends in Europe is clear. You asked us to set out what we want in more detail. We have done that. We have shown we understand your principles. We have a shared interest in getting this right, so let us get on with it. I commend this Statement to the House”.
Baroness Smith of Basildon (Lab)
My Lords, I thank the Minister for repeating the Statement. It seems that the Prime Minister is trying to create an optimistic, upbeat tone to quell the fears of those who are concerned about negotiations, so first I welcome the greater degree of candour from the Prime Minister. While others around her told us how easy it was going to be to leave the EU, she has admitted that it is complex, difficult and uncertain. She was clear that we have to face up to some hard facts, that life is going to be different and that our access to each other’s markets will be less than it is now. Her honesty recognised that we will not be allowed to have all the benefits without all the obligations, which is a far cry from Ministers telling us that we would have the exact same benefits. She also admitted that even after we have left the EU we will still be affected by decisions of the ECJ and that to ensure good access to each other’s markets,
“we must accept the need for binding commitments”,
and she accepted the principle of regulatory alignment in some areas. She has also accepted that in these negotiations neither of us can have “exactly what we want”. These statements are welcome in recognising the harsh reality of what has to be achieved with so little time left.
The Prime Minister has regularly stated her red lines—no single market, no customs union and no role for the ECJ—which we have consistently said she was unwise to use as a starting point for negotiations, yet some of those red lines are now looking distinctly pink.
On Northern Ireland, the Prime Minister said more about this in her Friday speech than in her Statement today, but it still seems to me, and others, that there is an inherent contradiction at the heart of the Government’s commitment that there will be no hard border between Northern Ireland and the Republic of Ireland while they remain opposed to any form of customs union. We were relieved to hear the Prime Minister reject the Foreign Secretary’s assertion in his private memo to her that it is not the responsibility of the UK to resolve the Irish border issue. The Prime Minister was absolutely clear on Friday that it is her Government’s responsibility to resolve this issue. She spoke of her personal commitment and said she recognised the anxieties caused by Brexit and the “desire for concrete solutions”. It is not a desire; it is a necessity, and it is fast becoming an urgent one. If the Government really believe that this issue can be resolved without any form of customs union, they need to start telling us how and to do so soon. The Prime Minister remains resolute against a customs union, but she is seeking a customs arrangement or a customs partnership, so we look forward to hearing more details about the “not a customs union” as negotiations continue.
The Prime Minister has also recognised that some of her early red lines have had to fade. We appreciate her acceptance of the necessity to remain in at least some of the EU agencies, even as an associate member. The Prime Minister identified the European Medicines Agency, the European Chemicals Agency and the European Aviation Safety Agency as being critical. We agree with that description. Many of us are bitterly disappointed that given the importance of the European Medicines Agency, the UK is losing it. Have there already been exploratory discussions with the EU on the principle of remaining, in whatever capacity, in these agencies? Are the Government prepared to negotiate similar arrangements for other agencies? Does the Minister accept that this may well mean a continuing role for the ECJ in the UK? Before she answers, it may help if I tell her that at the weekend, when I did a radio debate with Jacob Rees-Mogg, he described this as “perfectly sensible”. The Minister will be aware that we were a member of Euratom before we joined the EU. She will have heard the debate on Euratom last week in your Lordships’ House. We have now had the Prime Minister’s comment that she wants a “close relationship” with Euratom. Can the Minister tell us what that means? The Prime Minister has not gone as far as she has on the agencies, where she wants associate membership, but she talked about a close relationship. This is also a critical agency for the UK.
In the same way that there has been an evidence-based shift on the position regarding the agencies and the role of the ECJ, the Government have to recognise that if they are genuinely serious about the Northern Ireland border, they need to look at it without unrealistic and unnecessary red lines. We are clear that remaining in a customs union is the best way to deliver the frictionless trade the Prime Minister wants. For Northern Ireland, that means no customs duties or checks at the border. It means no checks for transporters, food, animal hygiene and so on. It will resolve the issue.
I welcome the fact that the Prime Minister says that Brexit is not an end in itself, yet in a further contradiction she has repeated that no deal is better than a bad deal. Surely both statements cannot be true.
Finally, on Saturday morning I was very fortunate to enjoy the company of the political editor of the Sun, Tom Newton Dunn, as he hosted “The Week in Westminster” with two MPs, Jacob Rees-Mogg and Sarah Wollaston, and me. Perhaps that is where the Prime Minister’s biggest achievement was evident because with such divergent views, they both supported the content of the speech. Indeed, Jacob Rees-Mogg admitted that it was “very encouraging for the unity of the Conservative Party”. So much of the Brexit journey has been about internal Conservative Party management. As we have heard, that canny blend of “We’re leaving the EU” with some red lines becoming pink smudges or fudges just might buy the Prime Minister some time. She said that all negotiations are about cherry picking on all sides. Michel Barnier has welcomed her acceptance that negotiations require trade-offs. Perhaps the Prime Minister has finally accepted that negotiations must be less about red lines and more about a pragmatic Brexit.
The noble Baroness knows from our previous discussions that we welcome a pragmatic approach, in the interests of the economy, of jobs, and of maintaining rights and standards. As part of that, I hope she will be able to confirm that she understands that it becomes even more crucial that Parliament has not just a meaningful vote but an ongoing meaningful role.
Lord Newby (LD)
My Lords, the Prime Minister has set five overarching tests for a successful Brexit. Three are simply vacuous: respecting the referendum, being enduring and being consistent with the kind of country we want to be. Two are more substantive, but both are being actively undermined by the Government’s own Brexit stance.
The first is protecting people’s jobs and security. Has the Prime Minister given any thought to how that sounds to the 300 Ryanair workers at Glasgow Airport as the company closes its international base there, on the basis of Brexit, to the 288 workers at Landis+Gyr in Stockport as it moves its production to Romania, or to the small businesses which have contacted me explaining how leaving the customs union and single market will impose costs on them that will force them out of business? The Statement contains some welcome shafts of realism, none more so than the statement that our access to EU markets will be less than now. Does the noble Baroness the Leader accept that less access means less trade, which in turn means fewer jobs, lower national income and higher prices?
The second substantive test set by the Prime Minister is that Brexit must strengthen,
“our union of nations and our union of people”.
Leaving aside the impasse in discussions with the devolved institutions about the transposition of EU law, how does the noble Baroness think that sounds in Northern Ireland? The Prime Minister has come up with absolutely nothing new to reassure people that there will be no customs border between the north and the Republic. Of the options on the table, one simply says that SMEs, which represent 80% of trade, can carry on as if the border did not exist. How could that possibly work if standards diverge or if the UK strikes its own trade deals with different tariffs from those applying in the EU? This is the only example I know of where the Government’s policy is indeed bold and imaginative—but it is hardly credible.
As for the technological solution to the border, does the noble Baroness agree with Pascal Lamy that there is no such thing as a virtual border? Does she agree with the report, much touted by Brexiteers, from Lars Karlsson, which explains on page 11 that, on the highest tech option he can see, an app on a mobile phone of a lorry driver “opens the gate automatically” as the lorry approaches the border—that is, a gate, a physical thing, not a virtual border. Has she read his description of the Norway/Sweden border, the most technologically advanced in the world according to him, where at staffed customs posts most goods traffic is cleared “within 3-9 minutes”? There is no soft border there either.
The Prime Minister refers briefly to our being able, in theory, to negotiate new trade agreements after Brexit. When she rang Donald Trump over the weekend to complain about his plan to slap a punitive tariff on UK steel, did she ask him how that fitted into a comprehensive free trade deal? Did she consider that in fighting any US steel tariff, the EU as a whole was likely to have a bit more clout than the UK on its own?
More generally, the speech sets out a range of areas where the Government plan to follow EU rules but pay for the privilege and lose any say in how they are set. Having associate membership of various EU bodies is better than nothing, but in reality we become rule-takers. On the trade in goods, the PM admits that we will have to follow standards “substantially similar”—that is, as near as makes no difference to identical—to those set by the EU.
The rationale for becoming rule-takers instead of rule-makers is that Parliament retains the right to diverge from the EU rules if it chooses. But the speech demonstrates how in practice it will not dare do so because of the damage it would cause to business and the economy. The Prime Minister wants to exchange the reality of influence for the pretence of sovereignty—and what is worse, she clearly accepts that it is a pretence.
The Government are going through extraordinary contortions of both policy and language to try to replicate as far as possible the existing terms of our EU membership. It all begs the question, “Is it worth it?”—and invites the response, “No”.
Baroness Evans of Bowes Park
My Lords, I am grateful to the noble Baroness and the noble Lord for their comments. I particularly welcome the noble Baroness’s constructive comments and assure her that we take the scrutiny and involvement of Parliament as we develop our new relationships with the EU extremely seriously and will continue to do so.
The noble Baroness asked about agencies. As the Statement set out, we want to explore with the EU the terms on which the UK could opt to remain part of EU agencies—as she rightly said, the European Medicines Agency, the European Chemicals Agency and the European Aviation Safety Agency. There may well be other agencies, such as those related to our future security partnership, that the UK chooses to remain a part of, and we will continue those discussions. Again, in relation to Euratom, it will be of benefit to both sides for the UK to have a close association, and that too will continue to be part of our ongoing discussions. As Prime Minister said, after we have left the jurisdiction of the ECJ, EU law and the decisions of the ECJ will continue to affect us, including through our respecting its remits where we agree that the UK should continue to participate in an EU agency.
The noble Lord asked about access to the EU market. He is right that the Prime Minister has said, in relation to hard facts we have to face, that in certain ways our access will be less than it is now. But we are also seeking the broadest and deepest possible agreement, covering more sectors and co-operating more fully than any free trade agreement anywhere today, and of course we will have the freedom to negotiate new trade agreements—so the future is bright.
The noble Baroness and the noble Lord touched on the very important issue of Northern Ireland. I repeat again that, as we have said constantly, we want trade at the border to be as frictionless as possible, with no hard border between Northern Ireland and Ireland or between Northern Ireland and the rest of the UK. We believe this can be achieved by a commitment to ensure that the relevant UK regulatory standards remain at least as high as the EU’s and by a customs arrangement. We acknowledge that there will be technological solutions to this, and we believe we have set out a structure by which we can begin and continue the negotiations with both the Irish Government and the European Commission to make sure we all achieve the aims that we have all clearly set out and to which we are extremely committed.
The noble Lord asked about future free trade agreements. I assure him that we have opened 14 informal trade dialogues with 21 countries, including the US, Australia and the UAE. These will form the groundwork for future FTAs. The Department for International Trade has a presence in 108 countries, and we have begun appointing a new network of trade commissioners. We are committed to new trade and new opportunities across the globe, but of course maintaining a strong, deep and positive relationship with the EU is what we are focused on in our negotiations with it.
Lord Howell of Guildford (Con)
Does my noble friend agree that this Statement is a welcome blast of common sense into an otherwise madly polarised debate? Will she also accept that the principle of mutual recognition, which has been embedded in EU law for the last 25 years and was in fact a British invention, can allow a welcome degree of flexibility in any kind of alignment or regulation or the development of different regulatory arrangements? It applies to all members inside the EU and to everyone associated with it, and there is no reason why we should not apply the same principles of mutual recognition, as the Prime Minister is arguing. Lastly, does my noble friend accept that of course there are cherries to be picked, but sometimes it is better to pick the cherries than to leave them to rot on the bough?
Baroness Evans of Bowes Park
I thank my noble friend for his comments. I entirely agree. It is important to remember that many regulatory standards are themselves underpinned by international standards set by non-EU bodies so we are certainly committed, and believe it is absolutely achievable, to ensuring that our relevant UK regulatory standards remain as high as the EU’s. As I have said, many of these standards are underpinned by international standards—for instance, the UN Economic Commission for Europe sets vehicle safety standards—set by organisations of which we will continue to be a part.
Lord Falconer of Thoroton (Lab)
I express my gratitude to the noble Baroness the Leader of the House for repeating the Statement. The prosperity of the nation is one of the principles that the Prime Minister referred to in both her Mansion House speech and her Statement to the Commons today. I assume, and I would be grateful if the noble Baroness could confirm this, that some economic assessment was made of what the impact would be of achieving all the things that the Prime Minister set out to achieve in her Mansion House speech. In that speech she set out what the UK’s negotiating position would be, recognising that we would have less market access than before. I invite the noble Baroness to confirm to this House that that work was done and to indicate when it will be published, because the nation is entitled to see it.
Baroness Evans of Bowes Park
As I said in my response to the noble Baroness and the noble Lord, yes, the Prime Minister has said that obviously we will have different access to the European market, but we are also committed to developing a broad and deep relationship with the EU and to having trade agreements elsewhere. We have committed to providing Parliament with appropriate analysis ahead of the final vote on the deal.
Lord Higgins (Con)
Will my noble friend confirm that it is now the Government’s view that withdrawing from the customs union and the single market will have a damaging effect on the UK economy, as well as creating a problem for the Northern Irish border? If that is so, is that not a very strange position from which to start the negotiations? Should Parliament not have an option of voting at this stage on whether those particular red lines, which would have a damaging effect on the entire population of this country, are going to happen?
Baroness Evans of Bowes Park
I am afraid I do not agree with my noble friend. As the Statement set out, the EU has formed a customs union with other countries but those arrangements, if applied to the UK, would mean the EU setting the UK’s external tariffs, being able to let other countries sell more into the UK without making it easier for us to sell more to them, and the UK signing up to the common commercial policy, which could not be compatible with a meaningful trade policy. We are leaving the customs union and the Prime Minister has set out two potential options for our future customs relationship.
The Lord Bishop of Leeds
My Lords, I am grateful to the noble Baroness the Leader of the House for repeating the Statement, which seems to express a realism in some areas that many people have been articulating for the last year. It is just surprising that it has come so late. What worries me is the language, and I would be grateful if I could have a response to this. In the section on agrifood and fisheries in the Prime Minister’s speech on Friday, we read:
“I fully expect that our standards will remain at least as high as the EU’s. But it will be particularly important to secure flexibility here to ensure we can make the most of the opportunities presented by our withdrawal from the EU for our farmers and exporters”.
Which is it to be? “Flexibility” implies that standards could go down as well as up. If that phrase is in, the language is fairly woolly. I “fully expect” that I will be a millionaire by the time I am 65; I doubt it, though—my full expectations do not necessarily accord with reality. Could we please have some reflection on the language? It still seems dominated by assertion and aspiration rather than the sort of hard-nosed detail we need.
Baroness Evans of Bowes Park
The UK, rightly, has some of the highest environmental and animal welfare standards around our agrifood sector; we want that to continue and we fully expect that it will. However, what we want is an agreement that ensures consistency of outcomes and standards for agrifood, while adding scope for flexibility in how we achieve this, and to make sure that our farmers and fishermen are able to take advantage of the freedoms that we may have by now leaving the EU.
Lord Kerr of Kinlochard (CB)
I would like to ask the Minister a couple of practical questions. I admire the detail in the speech; there is a lot to learn in it, and I wish it had been given 18 months ago. However, I do not fully understand the “customs partnership” concept. Is it the case that if a container ship from Asia docks in Hamburg or Rotterdam, for containers coming on to Britain the authorities there will be expected to apply our definitions and rules of origin and the rates of duty that we set? If so, what is their incentive to agree to that additional complication for them? As for the agencies, what is the incentive for continental pharmaceutical or chemical industries to agree that we—uniquely, as no one outside the EU has membership of the single market’s agencies—should be allowed membership of them? Why should they agree? These are very interesting proposals, but are we sure of their negotiability? We present them as our offers; in fact, they are our requests. Why should the EU let us pick the cherries?
Baroness Evans of Bowes Park
A customs partnership would mean that at the border the UK would mirror the EU’s requirements for imports from the rest of the world, applying the same tariffs and the same rules of origin as the EU for those goods arriving in the UK and intended for the EU. By following this approach, we would know that all goods entering the EU via the UK paid the right EU duties, removing the need for customs processes at the UK/EU border. In relation to agency membership, there are indeed precedents. Switzerland, for instance, is an associate member of the European Aviation Safety Agency, which means that airworthiness certifications are granted by its own aviation authority and disputes are resolved through its courts.
Lord Wallace of Saltaire (LD)
On managed divergence and regulatory alignment, the phrase “managed divergence”, which I gather the Cabinet agreed on 10 days ago, does not appear in the Prime Minister’s speech or this Statement. What we have on regulatory alignment is the very odd statement that Parliament in many cases will pass identical laws to an EU law. That sounds remarkably like a sort of Potemkin sovereignty, in which we do it independently but we simply follow what the others have done. That is not real sovereignty at all. Do the Government now accept that the advantages of regulatory alignment across the whole goods sector are such that, in practice, we will want to maintain the same standards, or do they accept, as the Foreign Secretary and others wish to go on insisting, that there are some rules out there that we will somehow want to diverge on?
Baroness Evans of Bowes Park
It will be not just for this Parliament but for future Parliaments to decide what our regulations look like. As the Statement set out, we may choose to commit in some areas of regulation, such as state aid and competition, to remain in step with the EU. The UK drove much of the policy in this area, so we have much to gain from keeping proper discipline on the use of subsidies and anti-competitive practice. The noble Lord is right: the Statement said that Parliament may choose to pass an identical law. Businesses that export to the EU have told us that in some instances it is strongly in their interests to have a single set of regulatory standards. However, if the Parliament of the day decided not to achieve the same outcomes as EU law, it would be doing that in the knowledge that there may be consequences for market access, but it would be its decision to do so.
Lord Wigley (PC)
My Lords, the Minister has emphasised the need to be flexible and the need for give and take and to be reasonable. Does that go as far as extending to being flexible and reasonable about the date of 29 March if, by being flexible, it is possible to get a negotiated outcome rather than a no-deal solution?
Baroness Evans of Bowes Park
We are very confident of getting a deal and, as we have said, we will be leaving the EU in March 2019.
Lord Hannay of Chiswick (CB)
My Lords, can I ask the Minister about two points on what I join others in recognising is a more pragmatic approach than we have had in the past? For example, in the Statement that she read out today were the words,
“we may choose to commit some areas of our regulations, such as state aid and competition, to remaining in step with the EU’s”.
I am sure that the Minister knows that state aid and competition issues are ruled on by the European Commission after lengthy inquiries and are subject to the jurisdiction of the European Court of Justice. If we are going to do the same, how are we going to do it? By osmosis?
Baroness Evans of Bowes Park
Well, as the Statement made clear, if, as part of our future partnership, Parliament passes, for instance, an identical law to an EU law, it may make sense for our courts to look at the appropriate ECJ judgments so that they can interpret those laws consistently.
Lord Davies of Stamford (Lab)
It is an unconvincing Statement in many ways but there are three particular delusions and contradictions in it. First, the Prime Minister still has not explained how you can have two countries with different tariffs and no controls at the border, but that is exactly what she promised the Irish before Christmas. Secondly, and very importantly, the Prime Minister is still under this extraordinarily naive delusion that she can sign trade agreements with Mr Trump without obliging us to take American agricultural products, which is quite inconceivable, and that she can sign a trade agreement with China while retaining quotas on Chinese steel imports. She obviously does not know Mr Xi Jinping. She also does not take seriously Mr Modi’s statements about the need for Indian immigration as a priority, in the event that he signs trade agreements with this country.
Thirdly, it really must be almost unprecedented in history for a Government to adopt policies that are directly designed to weaken a major staple of economic activity in that country, which is exactly what is happening here with the rejection of the idea that we should retain passports for the single market in financial services, banking and insurance. Will the Minister commit to making a study of the economic costs of that very self-destructive policy?
Baroness Evans of Bowes Park
Well, I am afraid that I do not agree with the noble Lord’s extremely pessimistic view of every aspect of both the Statement and the Government’s approach. We believe that we will be able to develop a deep, special and productive relationship with the EU, which is what we are committed to, and the Prime Minister in the Statement set out the principles underpinning that.
In relation to the noble Lord’s point about passporting, the reason why we are not looking for passporting is that we understand that it is intrinsic to the single market, and it would require us to be subject to a single rule book over which we have no say. We are looking for a collaborative, objective framework that is reciprocal, mutually agreed and permanent, and therefore stable for businesses—and we believe that we can achieve this.
Lord Forsyth of Drumlean (Con)
I note the question asked by the noble Lord, Lord Kerr—why should we allow the European Union to pick the cherries for us? Could my noble friend perhaps not suggest that, given that the Prime Minister’s speech has been extremely well received, not only within the Conservative Party but by the media and the wider country, now is the time for all of us, whatever our views on Brexit and whatever our party, to get behind the Prime Minister and, while we are about the nation’s business, to get the best deal for our country? Could my noble friend also confirm that what Donald Tusk said, which is that nothing is agreed until everything is agreed, applies to this process and that, in particular, it applies to our commitment to provide finance to the European Union?
Baroness Evans of Bowes Park
My noble friend is absolutely right that we want to enter into the next phase of negotiations in a positive and productive manner and believe that that is the same for both sides. Of course, our future partnership will need to be tailored to the needs of our economy, and this follows the approach that the EU has taken in the past. The EU’s agreement with South Korea, for instance, contains provisions to recognise each other’s approvals for new car models, whereas the agreement with Canada does not. The EU’s agreement with Canada contains provisions to recognise each other’s testing on machinery, while the agreement with South Korea does not. So it is possible to develop relationships that work for both sides, and that is exactly what we intend to do.
Lord Lea of Crondall (Lab)
If I may echo the Leader of the Opposition, this is a movement towards realism. However, is this Statement not really on two rather inconsistent themes? On the positive side, the calculus is, on page 4:
“What matters is that our rights and obligations are held in balance”.
That is an excellent idea of a calculus. But in the same Statement, on page 2, it makes the unqualified statement,
“we will not accept the … obligations of Norway”.
So how is this calculus going to be carried out, and with what degree of transparency? How do we know that the rights and obligations of Norway are incommensurate with what we need as a country? How is this calculation going to be carried out? It could be argued that, in the case I have mentioned, it is perfectly possible to show that the calculus could be positive. Could the Leader of the House enlighten us as to how these obligations and rights, advantages and disadvantages, are going to be balanced out in public?
Baroness Evans of Bowes Park
That will be part of the negotiations, but what I can say—and I have said many times—is that we are seeking the broadest and deepest possible future economic partnership with the EU, covering more sectors and co-operating more fully than any free trade agreement. We believe this is achievable, because it is in both our interests, but also because of our unique starting point that on day one we have the same laws and rules. Rather than having to bring two different systems closer together, the task will be to manage the relationship once we have two separate legal systems. That is why we believe that we need to look beyond precedents and find a new balance.
Lord Hay of Ballyore (DUP)
I rise also to support the Statement from the Leader of the House. I also welcome the commitment from the Prime Minister that there will be no return to a hard border and no border in the Irish Sea. I live closer to the border, probably, than any other Member of this House. I live in the city of Londonderry, about 20 miles from the border. I have listened to some very good speeches in this House on Brexit and on the border, and some not so good. I never believed in my lifetime that there would be so many experts on the border between Northern Ireland and Ireland in this House. I say that very sincerely.
I also believe that there are some Members of this House—and I hope that I am wrong but only time will prove it—who are using Brexit and especially the border issue as a political stick to beat the Prime Minister with. I say that very sincerely. Certainly, in Northern Ireland there are parties who are using the border to undermine Northern Ireland’s position within the United Kingdom. People talk about a hard border and a soft border, and then people talk about keeping Northern Ireland in the customs union and within the single market. That is undermining the position of Northern Ireland in the United Kingdom.
I want to ask the Minister a question very clearly. I am very happy when our Welsh and Scottish colleagues talk about their Assembly. Unfortunately, in Northern Ireland at this moment in time, we have no Assembly. Would the Minister agree that, with an Assembly in Northern Ireland, some of these issues would be more easily resolved?
Baroness Evans of Bowes Park
Certainly, the Government are working very hard with the main parties in Northern Ireland to try to re-form the Northern Irish Assembly, because we absolutely want that body back representing the people of Northern Ireland. I can also say that the UK and Irish Governments are equally committed to ensuring that our departure from the EU does not lead to a hard border. The Prime Minister and the Taoiseach have committed to work with the Commission to explore proposals and develop practical solutions to this question; that is something that we are focusing a lot of energy on, because we absolutely agree on its central importance.
European Union (Withdrawal) Bill
Monday 5th March 2018
(6 years, 8 months ago)
Lords ChamberRead Full debate European Union (Withdrawal) Act 2018 View all European Union (Withdrawal) Act 2018 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 79-IV(b) Manuscript amendment for Committee, supplementary to the fourth marshalled list (PDF, 79KB) - (5 Mar 2018)
Baroness Massey of Darwen
Baroness Massey of Darwen (Lab)
My Lords, Amendment 37 focuses on the protection, welfare and rights of children once the UK is no longer a member of the EU. I am disturbed by the notion of excluding the European Charter of Fundamental Rights in our domestic systems. Why is removing this being considered? What can be put in its place that is better? Perhaps the Minister can give the House an explanation.
Baroness Massey of Darwen
I apologise if there are no microphones, although it is not my fault. There has been little effort to consider how Brexit might affect children. I do not know who has been consulted on this. Perhaps the Minister can tell me. Have children been consulted? Organisations now often consult children about matters which affect their lives. Have the UK commissioners for children been consulted? They are advocates for, and speak for, children. Has the voluntary sector, which does such a splendid job in supplying information and support to children and those of us who work for them, been consulted? If not, why not? Have academics who support children’s rights been consulted? If all these people have been consulted, what are the results of such consultations? Has an impact assessment on how Brexit will affect children been considered? If not, why not?
I believe that there are 80 EU instruments which entitle children to protection and welfare. EU directives have not all been incorporated into UK law, yet these are comprehensive. There are numerous case studies on children as victims of crime—the sexual abuse and exploitation of children, criminal justice, and legal aid for victims. All these emphasise what it will mean to not have the European charter in place. Some have argued that our domestic laws on children are sufficient to protect them in all instances. This is not the case and I shall discuss it in a moment.
Last Monday, my noble and learned friend Lord Goldsmith spoke about the need to retain the European Charter of Fundamental Rights and stated that the charter will not be downloaded into our domestic law. An opinion by a Queen’s Counsel concludes that this would weaken human rights protection in the UK. The independent Bingham Centre for the Rule of Law has stated that the charter does much more than codify rights and principles. The Joint Committee on Human Rights, commenting on the Government’s right-by-right analysis of the withdrawal Bill, concluded with six devastating paragraphs in support of retaining the charter. The final paragraph states that some of the charter rights,
“are based wholly or in part on provisions of the ECHR”.
Other international treaties also come into play that have not been incorporated into domestic law, such as the UN Convention on the Rights of the Child, to which the UK is a signatory. However, the UNCRC is not incorporated fully into UK law and there are no legal or financial sanctions for non-compliance with its provisions. The noble and learned Baroness, Lady Butler-Sloss, was hoping to comment on this but has had to leave.
The response also states that,
“a failure to preserve relevant parts of the Charter in domestic law after Brexit will lead to a significant weakening of the current system of human rights protection in the UK”.
The Children’s Rights Alliance points out that the European Charter of Fundamental Rights sets out in a single document the fundamental rights protected in EU law and of particular importance to the protection of children’s rights.
We all know that the UK under successive Governments has made great strides to protect and enhance the welfare of children. Examples include the Children Acts of 1989 and 2004 and the Children and Social Work Act 2017, which is not yet in force. However, our domestic laws do not cover the full range of children’s entitlement regulated by the EU. We have no constitutional commitment to children’s rights at central government level, the level at which most EU legislation will be amended or repealed after Brexit.
I give other examples. The Children Act 1989, of course, enhanced the welfare of children but did not regulate the full range of children’s rights to protection covered by EU law—for example, as regards consumer protection and health and safety. The Children Act 2004 strengthened the 1989 Act but does not cover cross-border recognition and enforcement of family orders currently regulated by EU Brussels I and II. In particular, the right of a competent child to be heard in relation to child abduction or family disputes is significant. The Equality Act, welcome though it is, is not particularly strong as an instrument for children’s rights and does not cover many issues that would be of concern post Brexit—for example, equality in the workplace.
The Children and Social Work Act improves decision-making and support for looked-after children and for safeguarding work at the local level. It also makes relationships and sex education appropriate to age mandatory in schools. However, it seems to contradict amendments introduced by the Immigration Act 2016, specifically on care support for unaccompanied children when they reach the age of 18 and do not have leave to remain, are not asylum seekers or do not have a first immigration application for leave to enter or remain.
Other Acts such as the Borders, Citizenship and Immigration Act 2009, the Modern Slavery Act 2015 and the broadcasting Act 2003 contain measures to protect children, but are not fully comprehensive and obligations may be vulnerable to repeal when implemented through statutory instruments. The EU (Withdrawal) Bill could create problems for thousands of families affected by divorce or separation or involved in cross-border EU-UK family or child protection cases.
In 2017, UNICEF published its report on the progress made on children’s rights in the UK. It stated that while we have made much progress, we are weak in assessing the impact of legislation and policy on children. There have been significant advances in child protection and welfare in Wales, Scotland and Northern Ireland. However, these devolved measures will be impaired by Brexit as much of EU law affecting children may well be repealed through the use of delegated powers at a centralised level. This, of course, is worth a debate in itself. The Minister may say that Government cannot ignore the Human Rights Act 1998 and the Equality Act 2010. But these Acts, welcome though they are, have limited relevance to children. The European Charter of Fundamental Rights and the UNCRC go wider and deeper. Does the Minister accept this? If so, could he say—I ask this again—what will replace the European Charter of Fundamental Rights? The only way to ensure that children’s rights and welfare are protected is for it to be incorporated as part of retained EU law.
The Government should ensure that all existing protections for children’s rights and welfare in the EU legislative framework are reserved in domestic law. We cannot leave children from the UK—but also, in certain cases, from the EU—vulnerable to unclear or non-existent laws. I cannot understand the decision to drop the European Charter of Fundamental Rights when nothing else is in its place, and I do not know what will be. Why bother? Why reinvent? Any charter or convention, if attacked, must surely weaken the commitment to human rights, and we should resist such attacks with all our might.
The Earl of Dundee (Con)
My Lords, in connection with EU withdrawal, and as already intimated, there are perhaps two key aspects concerning our protection of children. First, that the current level of cross-border co-operation should not diminish. Secondly—which this group of amendments highlights—that UK domestic law and its deployment should continue to be guided by the United Nations Convention on the Rights of the Child.
With regard to the first, can my noble friend the Minister reassure us that to safeguard children the right steps are being taken so that the UK will remain part of relevant cross-border interventions, including Europol and the European arrest warrant agreements?
The second focus is on United Kingdom law protecting children. Here, two inconsistencies already obtain. For, while subject to EU legislation, our own UK legal provision still falls short of that covered by EU law on children. In relation to UNCRC there is an even wider gap. That is since, although guided by it, none of the United Nations Convention on the Rights of the Child has been incorporated into UK domestic law at all—hence within Amendment 70 the exhortation that it should now come to be.
However, in spite and irrespective of such apparent anomalies and omissions, after EU withdrawal clearly our principal aim must be to avoid any slippage of existing UNCRC standards. What plans does my noble friend now have to ensure that we do avoid this?
Yet at the same time, does he concur that we ought to go much further; thus not just guarding against the erosion of standards; but in properly maintaining them also seeking to build upon and improve them?
For, rather obviously, sustained cross-border co-operation as well as improved national legislation protecting children are both in the interest of all states. To mutual benefit, therefore, this consideration in turn reflects the positive opportunity for attaining much better results for protecting children’s rights.
All the more so is that the case with us since, although leaving the European Union, we will remain within Europe’s consensus on human rights and the rule of law represented by its far larger affiliation of the 47 states of the Council of Europe, in which parliament, along with those here tonight, including the noble Baroness, Lady Massey, the noble Lords, Lord Russell and Lord Foulkes, and my noble friend Lord Balfe, I have the honour to serve.
Baroness Lister of Burtersett (Lab)
My Lords, I will speak to Amendment 70, in my name, supported by the noble Lords, Lord Storey and Lord Russell, and the noble Earl, Lord Dundee, to whom I am grateful. However, my remarks are also relevant to other children’s rights amendments in this group, some of which I have signed. I am grateful, too, to the Children’s Society for its assistance, and to all the children’s organisations that have worked so hard to ensure that children’s interests are not forgotten as we debate the Bill.
I have already made clear my strong opposition to the removal of the Charter of Fundamental Rights from retained EU law, and colleagues have made clear the damaging impact this is likely to have on children. Amendment 70, which is a probing amendment, goes further than other amendments in this group in that it provides for the full incorporation of those parts of the UN Convention on the Rights of the Child ratified by the UK. The convention covers all aspects of a child’s life and sets out the civil, political, economic, social and cultural rights to which all children are entitled. Key principles include the best interests of the child being a primary consideration in all actions concerning children, and children being able to express their voices in all matters affecting them.
Baroness Greengross (CB)
My Lords, I will speak to Amendments 38, 39 and others regarding the rights of participation of children and the maintenance of dignity in older people. The EU charter includes children’s right to participation in Article 24, as we have heard, but there is no broad right to children’s participation in law domestically, although there is some provision for it in certain cases.
One of the general principles of the UN Committee on the Rights of the Child concerns children’s right to be heard and to have their views considered and taken seriously. Accordingly, in 2016 the UNCRC made recommendations to the UK, including that it should:
“Establish structures for the active and meaningful participation of children and give due weight to their views in designing laws, policies, programmes and services at the local and national level”.
However, in the UK there continues to be no permanent structure or action plan to facilitate the systematic participation of children in policy-making, although the DfE has indicated that it wishes to improve such engagement, and has recently published several child-friendly consultation documents.
The European Charter of Fundamental Rights brings together in a single document the rights which underpin EU law. It has included new issues that require protection—for example, the protection of personal data—extended existing rights and established new rights, such as the right to human dignity. It reaffirms the rights for children that already exist in the European Convention on Human Rights, such as the right to education, and includes key rights enshrined in the UN Convention on the Rights of the Child. As the UK has not incorporated certain treaties such as the UNCRC into domestic law, there is no guarantee that rights contained in unincorporated treaties would be adequately protected after Brexit. It is therefore very important that the charter is retained in its entirety, in order not to weaken existing rights protections.
For example, the charter has strongly influenced the development of EU regulations in relation to cross-border family law. In 2016, one in 10 children born in the UK was to a family with one parent from the UK and another from an EU member state. EU cross-border family law regulations, covering issues such as child custody, contact, child abduction and child maintenance, provide these families with certainty about their legal rights in difficult situations.
If the family breaks down and disputes arise between UK and EU parents, the EU framework ensures child rights-based court proceedings that make a difficult situation slightly easier for a child to cope with. For example, regulations ensure that children have the opportunity to have their opinion heard during court proceedings that determine if they are to be returned to a parent in another country. Further charter-based proposals are being agreed that will strengthen children’s rights further, ensuring that the best interests of the child is a mediating principle.
The protection of the rights of children and older persons in the EU Charter of Fundamental Rights is essential as there are not such specific protections in the European Convention on Human Rights. Children in the UK cannot access the UN Committee on the Rights of the Child as the UK has not ratified the third protocol, and there is no treaty on older persons.
Dignity for older people, especially those in care, is about supporting people with the same respect you would want for yourself or for a member of your family, treating each person as an individual and giving people independence and choice as to how their needs and wants are met. There are good examples of people who have been treated in a dignified manner but also, alas, several such as Mid Staffordshire and Winterbourne View have been identified by the Care Quality Commission. The last thing we want is that gaps in the law allow such cases to rear their ugly heads once more.
The principle of the inherent dignity of all people underpins human rights treaties. The right to dignity in the EU charter echoes the principles and rights of the charter of the United Nations and the Universal Declaration of Human Rights. Dignity underpins all the provisions in the EU charter and is as relevant for children as it is for the rights of elderly people and those in need of care and their right to be treated with dignity, to participate in social and cultural life and to fulfil their dreams and aspirations.
We have come a long way in this area and the present and previous Governments have made great strides in helping us to treat anyone who lacks the capacity or the ability to self-determine—in dementia, for example—with consideration and dignity, and it would be more than a pity to put all this to waste. The amendment will signal to both our own people and EU members that the UK remains committed to maintaining the human rights standards we have established together.
I was in Adelaide in Australia some years ago and I went to the local museum. The history of what happened to English children who were sent to Australia has recently been in all our news and papers. We know what can happen to a country with which we have a great deal in common. We must not allow anything to lessen our understanding of and commitment to the human rights of both the young and the old in our society.
Lord Wigley (PC)
My Lords, I have added my name to Amendment 37 and I associate myself strongly with the words of the noble Baroness, Lady Massey. I will not delay the House by repeating her persuasive arguments. I warm to the amendment spoken to by the noble Baroness, Lady Lister, in her effective speech.
Issues relating to the rights of the child obviously arise in the generality but I am not going to go after that. To save time, I will concentrate on some aspects that relate to the devolved context, which has already been mentioned by the noble Baroness, Lady Lister. Stronger protection for the child is necessary through legislation and it has been secured in legislation passed by the National Assembly in Wales and also in legislation in Scotland. One piece in Wales is the Rights of Children and Young Persons (Wales) Measure 2011. It imposes a duty on Welsh Ministers to have due regard to the rights of children as expressed in the United Nations Convention on the Rights of the Child when those Ministers exercise any of their functions. To achieve the objective, since 2012 the Welsh Government routinely undertake child rights impact assessments on proposals to change Welsh law or policy that may have a bearing on the well-being of children.
My fear, which is shared by colleagues in the National Assembly, is that the withdrawal Bill will limit the scope of the devolved legislatures to amend laws relevant to children along the lines I have mentioned. These are powers which are currently within the devolved settlement, but there may be uncertainty as to the future. When we withdraw from the European Union, there is concern that these competences may come under Westminster and the powers in Cardiff to that extent would be curtailed. Indeed, the devolved regimes may, under those circumstances, be required by Westminster to act in a manner that contradicts their own commitments to children’s rights. I hope that the Minister can put my mind at rest in this matter and give the devolved regimes the clarity, certainty and transparency they seek.
Lord Judd (Lab)
My Lords, I rise to support these amendments very strongly. One of the sadnesses of recent social and political history in Britain is that although this country won immense respect at the time when the convention was being drafted, it has never been fully incorporated into our law. That applies to successive political Administrations. Now, with Brexit, this is being thrown into strong relief. Incidentally, I am very glad to see that those who are speaking to these amendments have emphasised how this illustrates why the charter matters and how we have been wrong to treat it so lightly.
I want simply to say this: we were champions in the drafting, introduction and birth of the convention. Whatever happens on Brexit, we must take the opportunity presented to us by these amendments to ensure that what is enshrined in the convention is made in every way absolutely fundamental to the policy and the work of any future Administration.
Baroness Meacher (CB)
My Lords, I rise to speak to speak to Amendments 68, 97 and 158, all of which would ensure that following our departure from the EU, children’s rights will continue to be given due regard. The Government have claimed that the Bill will ensure continuity—in fact, a number of noble Lords think that is correct—and that there will be no legislative cliff-edge if or when we leave the EU.
However, whether by accident or by design, there is a gaping children’s rights hole in the Bill. These amendments would not introduce any new policy or extend provision; rather, they require only that where EU legislation has been developed in line with the principles of the UNCRC, new UK law or amendments to retained EU law will also pay due regard to the UNCRC. The Government have argued in previous debates that children’s rights are fully protected in UK law. I will clarify that this is not actually so and I want to pay tribute to the Children’s Society and a number of academics who have enabled me to do this. The Government argue that, for example, the Human Rights Act 1998 incorporates the ECHR into UK law and does the job of protecting children’s rights. However, that ignores the fact that the ECHR is confined principally to civil and political rights, while remaining relatively silent on a range of social and economic rights that form the substance of EU law. There are further problems in relation to the process of bringing a claim for an alleged breach of ECHR rights.
The Children Act 1989 provides important protections for children in both public and private proceedings, but it does not regulate the full range of children’s rights that are covered by EU law such as consumer protection, health and safety, and non-discrimination; other speakers have mentioned one or two of these. It also does not cover the cross- border recognition and enforcement of family orders which are currently regulated by Brussels I and II. Furthermore, the Children Act 1989 is often interpreted narrowly, to the detriment of the fuller range of rights set out in the UNCRC. A crucial example, as the noble Baroness, Lady Massey, said, is the right of a child to be heard following abduction before a return order is made. The crucial question is, does the child wish to be returned? It is pretty desperate if they do not, and they will not be able to make their wishes known, as I understand it, even if they are of an age and maturity to make that appropriate. The Children Act 2004 places obligations on local authorities but does not extend those to immigration authorities or commercial or private entities to whom public authorities have contracted out aspects of their children’s services. These days, of course, much of that work is contracted out.
The Equality Act 2010 provides a number of protections for children and young people. However, it does not cover many of the issues that are a real worry for children, post Brexit. For example, it does not promote the need for public agencies to act in the best interests of the child as a top priority in the way the UNCRC does, which the EU implements. The Immigration Act 2016 proposes to withdraw leaving care support from unaccompanied young people at age 18, as has been mentioned, if they do not have leave to remain or are not asylum seekers. A lot of these kids probably do not have the knowledge and information they need to be in a position to claim those rights. There is therefore a human rights issue here, for which there is no provision in UK law. The Modern Slavery Act 2015 provides good protection for young people. However, the removal of Section 32 of the EU charter following Brexit will weaken protection against child labour. It will leave weak obligations on business in this area. Also, the EU trafficking directive includes requirements to have regard to the children’s best interests and to consider the long-term outcomes for children. These are absent from the Modern Slavery Act, wonderful though that Act is.
At an EU level, the rights of the child are currently guaranteed by Article 24 of the charter and are one of the fundamental rights mentioned explicitly in the commission’s strategy. They are thus included in the regular fundamental rights check, which the commission applies to relevant draft EU legislation. These safeguards will not apply to new UK laws or amendments to retained EU law. If, or when, we leave the European Union, we will thus need to correct the statute book and legislate for the future in areas of previous EU competency, such as matters relating to justice, specific areas of social policy, consumer protection and research and development. Across the UK, the range of issues where children could be exposed also covers data protection, paediatric medicine clinical trials, food labelling, television advertising, the rights of migrant children to access education and healthcare and, importantly, cross-border family law, as others have mentioned.
In conclusion, I do not believe that these gaps in UK law are the Government’s intention, but an oversight that can and should be corrected between Committee and Report. Does the Minister agree that if this Bill is about providing “certainty and continuity” for people—as the noble Baroness, Lady Evans of Bowes Park, said at Second Reading—it is only right that the Government provide certainty and continuity for children also? I would be grateful for an assurance from the Minister that he will take these matters back to the department for consideration before Report. Also, it would be helpful if children’s rights could be included on an agenda for a briefing session on the Bill with Ministers in the next few weeks.
Baroness Tyler of Enfield (LD)
My Lords, I rise to lend my support to this group of amendments on children’s rights and to briefly say one or two words on Amendments 37 and 69, to which my name is attached. Like the noble Baroness, Lady Massey, I want to talk about this group because my fundamental feeling is that the voices of children and young people are simply not being heard in the Brexit process. Frankly, that is ironic when we consider that they are the population group who will be most affected by this—and for the longest time.
The Government’s plan not to retain the European Charter of Fundamental Rights through the EU withdrawal Bill is a real concern to me, particularly in relation to children. As we have heard, the charter enhances rights for children that already exist in the European Convention on Human Rights, such as the right to education. It also includes key rights enshrined in the UN Convention on the Rights of the Child, such as the rights to care and protection, to express views freely in accordance with their age and maturity—the principle of best interests being a primary consideration—and the right to know both parents. I know that others have said this, but I make the point that these are not small, trifling matters or marginal extras; they are fundamental things we should be very concerned about.
The charter contains certain provisions of great importance to children and young people that are not protected in domestic law at constitutional level. Children’s rights enshrined in the charter have been translated into practice through EU legislation, policy and case law. This includes legislation on child-friendly justice systems, and the charter has strongly influenced the development of EU regulations relating to cross-border family law. We heard an awful lot about this earlier in our debate on family law and I certainly do not intend to repeat that because we heard it in great detail. I simply make one point, which was my key point in that debate. It is crucial that children, including children born to families where one parent is from the UK and the other is from an EU member state, feel that their voice is heard in this process and that their wishes and feelings can be expressed, so that they feel that a fair decision is being made about what happens to them regarding these crucial decisions in their lives, particularly if they are to be returned to a parent in another country.
Finally, the noble Earl, Lord Listowel, is not in his place to talk in more detail about Amendment 69, to which I added my name because I felt it very important that a government body or right in statute exist somewhere to ensure that children’s physical and psychological needs are being met and considered, particularly when they are a victim of any form of neglect, exploitation or abuse. As many in the Chamber will know, no group of children has suffered more neglect, exploitation and abuse than children in care. That is why this amendment, which I know was tabled as a probing amendment, is so important.
Lord Foulkes of Cumnock (Lab)
My Lords, I have one brief question that I would like the Minister to answer. Most of the debate has been about children, apart from the contribution of the noble Baroness, Lady Greengross. I will talk about the elderly. I need to declare an interest—although we would all need to declare that interest. I am chair of Age Scotland. Like the noble Earl, Lord Dundee, as he mentioned, my noble friend Lady Massey who moved the amendment, the noble Lord, Lord Russell, who will speak, and the noble Lord, Lord Balfe, who is in his place, I am a member of the Parliamentary Assembly of the Council of Europe. How will Council of Europe recommendations be incorporated into United Kingdom law if we leave the European Union? I ask this because an excellent report has been approved by the Parliamentary Assembly of the Council of Europe entitled Human Rights of Older Persons, and their Comprehensive Care.
Lord Foulkes of Cumnock
The author is the noble Lord, Lord Foulkes of Cumnock. This was approved unanimously by the appropriate committee and by the parliamentary assembly. It recommends a whole range of things, including an adequate income for the elderly, appropriate housing, action on elder abuse, intergenerational provision, which is very important, the integration of health and social care—I am glad to see that the Government are doing that at a national level, but it needs to be done at a local level as well—and many more. These are very important recommendations, although I say so myself, immodestly. They are things that everyone is agreed on, but what strength, power and influence will they have? Will they just be advisory to the British Government, or will they take them as being more than that and as clear indications of the kind of action they propose to take? Would the recommendations of the Parliamentary Assembly of the Council of Europe and the Council of Europe itself have greater influence if we were to leave the European Union? If the Minister is not able to answer that question today, because I know that it has come out of the blue, I would be willing to receive a letter from him in due course.
Lord Russell of Liverpool (CB)
My Lords, I have my name to Amendments 37 and 70, and declare my interest as a trustee of the charity, Coram. I remind the Minister that it is the hereditary oik from the Cross Benches here again for the second time—good evening.
There appears to be broad agreement that it would be disappointing and unfortunate if we inadvertently managed to let children’s rights slip as a result of our anything-but-straightforward and frictionless departure from the EU. The United Kingdom has often played a prominent role in developing global human rights frameworks, and I sincerely hope that the Government intend that we should continue to do so in the hereafter.
Many of us have taken on board the distaste which many on the pro-leave side feel for the charter. Indeed, I have watched online a video of the Minister lamenting the United Kingdom being told to make prisoners have the vote and to allow some individuals involved in terrorism to be given greater human rights than he thought was entirely appropriate. The European Scrutiny Committee of another place in 2014 described the charter as creating a state of confusion.
Baroness Ludford (LD)
I think I heard the noble Lord refer to prisoners’ votes. That was the judgment of the Strasbourg court about the European Convention on Human Rights; it was nothing to do with the European Charter of Fundamental Rights. In any case, the way in which it has been demonised is wrong, because it said only, “Please have a scheme”, and not, “All prisoners must vote”.
Lord Russell of Liverpool
I thank the noble Baroness for that intervention. All I would say is that the discussion I heard was framed in the context of the European charter of human rights, probably incorrectly.
Lord Russell of Liverpool
That committee was chaired by Sir William Cash and included a certain Member for the 18th century, Mr Rees-Mogg, so I think that we can conclude that it was clearly completely impartial. We have got the message.
The question that we are posing to the Government, in response to a wide range of representations which many of us have had, is whether they will honour their commitment to defend the rights of children as we come through this process.
I mentioned at Second Reading that scrutinising and discussing this Bill in a non-partisan and apolitical way might be helpful, so I have a specific question for the Minister: does he have a twin brother or a doppelganger? Can he be same person who on 30 January was responsible for writing two articles? One of them appeared on the ConservativeHome website and said:
“From the beginning we have been clear that we need—and indeed want—to adopt a collaborative approach and listen to the views of Parliamentarians from all sides of the House. The necessity and sheer scope of this legislation means that thorough debate and examination is more important than ever. We took this approach in the House of Commons and we will continue to do so in the Lords … The House of Lords has a well-deserved reputation for its detailed and thorough scrutiny. This Bill should be no exception—it will benefit from the forensic examination the Lords can bring and we look forward to that razor-sharp review”.
On the same day, in the Sun newspaper, he wrote:
“We are seeing a co-ordinated push by the defeated elites; the Europhiles will use their majority in the Lords—a majority that rests heavily on quangocrats and busybodies, some of them in receipt of fat Brussels pensions”—
which possibly includes Members of the European Parliament—and:
“For the Lords to overturn a result supported by more British voters than anything else in history would be outrageous”.
He described some of your Lordships as scheming Peers who want an anti-democratic coup. So I have two more questions for the Minister; could he share with us what he had for breakfast the day he wrote those two reports, because I shall try to avoid eating the same? Secondly, did he ever consider a career in the Foreign Office?
Let us please forget the unending politics and focus on the children, whose voice and interests have hardly been top of mind as a rather unseemly procession of opinionated individuals compete for media airtime and attention. I recall noble Lords to the fact that I am speaking to Amendments 37 and 70. Amendment 37 aims to bring into domestic law the parts of the European Charter of Fundamental Rights into UK law that are necessary to protect children’s rights. I appreciate that we are not going to bring the charter overall into our law; however, it has some very important provisions: the child’s best interests must be a primary consideration in all actions, children’s views may be expressed and shall be taken into consideration, and children have a right to maintain a personal relationship with both their parents unless that is contrary to their interests. It contains other articles, as other noble Lords have mentioned, including on education and the prohibition of slave labour—the Minister will be aware that our Prime Minister has a particular interest in anything to do with child slavery.
Amendment 70 goes about achieving the same end in a different way. The UNCRC is viewed by most of us as the gold standard. The Government have stated that the source of the rights of the child set out in Article 24 of the European Charter of Fundamental Rights stem from the UNCRC, but as others have mentioned, it is not incorporated into domestic law. We share the concerns outlined by the Joint Committee on Human Rights in its recent report, Legislative Scrutiny: The EU (Withdrawal) Bill: A Right by Right Analysis. There are several examples of where the UNCRC and the charter have fundamentally helped where there are gaps in our own law. Among these are cross-border family breakdown; the right to be forgotten and data protection; and where 17 year-olds, who are still children under the law, are arrested and treated as if they are adults, which is against the law.
I believe that we must protect the hard-won protections of children and ensure that they are not inadvertently lost. I also support Amendments 68, 69 and 97, all of which are simply trying to probe the Government, to understand how they see the way forward. What all of us are saying is that, however we go forward, we must ensure that in no way, shape or form are the rights and protections of children in any way impaired.
Lord Brown of Eaton-under-Heywood
My Lords, I too strongly support the rights of children. Indeed, I support the rights of the elderly, in whom, like the noble Lord, Lord Foulkes, I must, alas, declare an interest. However, with the best will in the world, I cannot support any of these amendments. The first point I make is that we debated reasonably fully last week the desirability or otherwise of incorporating this charter into UK domestic law in this Bill. The previous group is said to have been “already debated” and I find it difficult to see the logic of now debating a host of questions which raise the same idea, only more narrowly focused on one or two specific, individual charter provisions. This debate has ranged far and wide. We have even been back to cross-border co-operation, which was the subject of an earlier group, and I am certainly not going back down that trail.
I shall turn to the specific rights addressed here. The suggestion that the rights of children could be a primary consideration in any decision affecting them is hardly radical. As the noble and learned Lord, Lord Mackay, noted earlier, the Children Act 1989 puts it rather higher than a primary consideration: it is the “paramount consideration”. Of course there are areas beyond the scope of the Children Act as such which are in play with regard to children, but for the life of me I cannot think of a single case in recent years affecting children—or, indeed, the elderly—which would have failed under the convention and the common law but would have succeeded only by reference to the charter; nor can I envisage such a case in the future. Somebody may be able to devise a scenario which would meet that but I have not been able to do so.
In any event, the Article 24 rights are regarded as retained general principles of EU law and therefore will continue to apply. The right to be heard on the part of children is not a contentious one. I took the opportunity of the regrettably short break we were given this evening to look at a particular decision—indeed, I think it was one of the last Supreme Court cases I was involved in, and my noble and learned friend Lord Hope will remember it because he presided over it. It was a group of extradition cases under the title of HH v Deputy Prosecutor of the Italian Republic. In the course of it the question of the children’s views was raised; it was an extradition case but the same principle applies across the wide field of children’s interests. The noble and learned Baroness, Lady Hale of Richmond, who gave the lead judgment in the case, concluded:
“I share the view of the Official Solicitor that separate legal representation of the children will rarely be necessary, but that is because it is in a comparatively rare class of case where the proposed extradition is likely to be seriously damaging to their best interests. The important thing is that everyone, the parties and their representatives, but also the courts, is alive to the need to obtain the information necessary in order to have regard to the best interests of the children as a primary consideration, and to take steps accordingly”.
I do not know of cases where children’s interests are lost because they are not permitted to express their views.
Baroness Massey of Darwen
I have a number of case studies on these issues, which I will show the noble and learned Lord. Children’s rights are not always consistent, particularly in youth justice cases. I know that children in custody in the youth justice system are very often ignored, mistreated and not heard.
Lord Brown of Eaton-under-Heywood
I would be extremely obliged to the noble Baroness if she would put these cases clearly and crisply on a piece of paper and share them not only with me but with the Official Solicitor, who I think would be extremely interested in the proposition that children’s rights are being ignored in the youth justice system. But if they are ignored now, when the charter is available, what is to be lost?
Baroness Lister of Burtersett
The noble and learned Lord may remember that in my speech, which was about the UN convention rather than the charter, I cited a case, which I am sure he is familiar with—R(SG) v Secretary of State for Work and Pensions—where three of the judges, including the noble and learned Baroness, Lady Hale, found that the Department for Work and Pensions was in breach of the UNCRC, but because it was not incorporated they could not find against the Government and said that it was for Parliament. Here is a clear example of where three out of five judges found that children’s rights in the charter—the best interests of the child—were not being treated as a primary concern, yet they could not find for those families.
Lord Brown of Eaton-under-Heywood
I was going to come specifically to that case but, as I understand it, it was put forward not as a charter case but as a UNCRC case. I am not talking about that yet; I am talking about the charter because if it would not avail those children, then what is the point and why is it so important to incorporate those provisions of the charter? The UNCRC is a completely distinct point. I acknowledge that there may be a case and if that case is made good and establishes in full measure the proposition which the noble Baroness is advancing, it may be sensible, whether in this legislation or somewhere else—it would not logically take any part in this Bill—to incorporate the convention into domestic law. I acknowledge that it has not been. But unless you can show that something is to be lost by not continuing to honour the charter—if you fail to do that—with respect, it does not make any logical sense to bring in the UNCRC at this point of the Bill. I hope that the Committee can follow the logic of the way I put that.
I do not really want to spend a long time on this. The noble Lord, Lord Foulkes, and I are even more concerned about Article 25 and the rights of the elderly. That charter right is put in this way and it is worth incorporating what it says:
“The Union recognises and respects the rights of the elderly to lead a life of dignity and independence and to participate in social and cultural life”.
That is of course an admirable sentiment, a great principle and a suitable aspiration. But is it really said to be an enforceable right, which the courts would pay regard to if they had already rejected the claim under the common law and the convention? With the best will in the world, it does not make sense. I do not want to rain more heavily on everybody’s parade but I respectfully submit that it would not be a good idea to adorn this Bill, which has a limited aim, with these additional rights that logically do not stem from the ending of the charter.
Lord Berkeley of Knighton (CB)
My Lords, I certainly would not attempt to trade cudgels with the noble and learned Lord but Amendments 37, 38 and 69 seem common sense to me. If one thinks in terms of child trafficking and one particular area that personally concerns me, female genital mutilation, there is the taking of young girls out of this country to be mutilated and brought back, and sometimes they are brought here to be mutilated. It surely makes sense that we have the strongest possible cross-border co-operation, whether we are in the EU or out of it.
Baroness Deech (CB)
My Lords, my noble and learned friend Lord Brown is of course right. There is a simple proposition in law, which is that the United Nations convention, like others, is not directly enforceable in this country—let alone between two individuals—until and unless it has been incorporated into our domestic law, which it has not been. On the face of it, if one brought it as it stands by our decision tonight, or later, how would we tackle things such as where the charter and the convention say that every child has the right to know and be brought up by his parents? How would we reconcile that with our very complicated and subtle laws about, for example, sperm donors or surrogate parents? How would we reconcile a child’s right to education with our very lax attitude towards home schooling and our inability to bring that under control? How would we reconcile it with the very sad fact that the majority of divorced and estranged fathers do not turn up to see their children, even though their children would like to and have a right to see them?
In other words, it is extremely complicated. It is not enough simply to wave a flag for what a good thing the United Nations convention is, which indeed it is, unless it is incorporated in a careful and detailed fashion into our law, which it has not been. It therefore cannot be by a side wind as this Bill goes through Parliament.
Baroness Sherlock (Lab)
My Lords, this has been an interesting and important debate and one that was much needed. As my noble friends Lady Massey of Darwen and Lady Lister and the noble Baroness, Lady Greengross, pointed out, there does not seem to have been enough attention paid to how Brexit may affect children. This point was made strongly in the briefing that a number of us attended and in the written materials given to us by an alliance of children’s organisations, and we are all very grateful for the work it put into briefing the House on this.
Many children’s charities are worried that neither the referendum nor the subsequent discussions engaged adequately with the voices of children and young people, especially those under 16, who still should have the opportunity to express their views.
A number of areas have been raised. I shall not go through them all, but we heard interesting comments around issues of cross-border co-operation by the noble Earl, Lord Dundee, and the noble Baroness, Lady Meacher, on the European arrest warrant, Europol and Eurojust. The noble Baronesses, Lady Meacher and Lady Greengross, touched on family law and cross-border co-operation, which I will not come back to, having spoken rather a lot on that on an earlier amendment, but I will be interested in anything the Minister has to add on that.
Two specific issues came up tonight. One is the status of children’s rights in the UK after Brexit and the other is we how retain appropriate mechanisms for ensuring that due regard is paid to children’s rights when policy and law are being developed. As my noble friend Lady Massey pointed out, a range of different types of EU regulations affect children. The way the key mechanisms come together is interesting. For example, the European Convention on Human Rights, the EU Charter of Fundamental Rights, particularly Article 24, which is based on the UNCRC in the first place, the UN Convention on the Rights of the Child and the constitutional commitment in Article 3(3) of the Treaty on European Union to protect the rights of the child in all EU activities affecting children. The interesting result of this is that measures enacted at EU level, whether or not they directly target children, are interpreted and applied by member states in a manner that is consistent with international children’s rights standards. That is what we are trying to chase down here today. The risk of losing some of that is what these amendments are concerned with.
Amendment 37, tabled by my noble friend Lady Massey of Darwen, and Amendments 38 and 39, tabled by the noble Baroness, Lady Greengross, seek to retain parts of the Charter of Fundamental Rights. Amendments 68, 69, 70, 97 and 158, tabled variously by my noble friend Lady Lister, the noble Baroness, Lady Meacher, and the noble Earl, Lord Listowel, refer in various ways to the UNCRC and the requirement at least to have regard to the provisions of sections that have been ratified by the UK or, in some cases, to go further than that. My noble friend Lord Foulkes and the noble Baroness, Lady Greengross, made a powerful case for the importance of attending to the right to dignity for older people, especially in care. I am sure the whole Committee will be interested to hear the Minister’s response on those important issues.
Looking at these different instruments, Ministers in general argue that removing the charter will not result in a reduction in rights and they cite their right-by-right analysis, but as we have heard sometimes that may simply indicate that aspects of a charter right are protected domestically without necessarily meaning that those rights are being fully protected. My noble friends Lady Massey and Lady Lister referred to a counsel’s opinion obtained by the EHRC which offered a very different assessment of the likely reduction in rights. I should declare a historical interest as an EHRC commissioner in the long-lost and greatly missed days before I joined this House and had the opportunity to spend many evenings discussing the importance of Brexit.
The EHRC briefing states that “some Charter rights”, for example the right for a child’s best interests to be a primary consideration in all actions taken by a public or private institution,
“have no equivalent protection in UK law. Furthermore, the Charter provides remedies, such as the ability for an individual to challenge laws that breach their fundamental rights, which are not otherwise available in UK law”.
The noble and learned Lord, Lord Brown of Eaton-under-Heywood, mentioned that we had a debate on day 2 in Committee specifically about the charter—led, if I may say so, brilliantly by my noble and learned friend Lord Goldsmith—but the reason that these amendments are being debated here is because when he responded to that debate, the noble and learned Lord, Lord Keen of Elie, did not make any reference to the issues raised about children and therefore people who are concerned about children’s rights want to understand how they will affect the people they are concerned about.
The noble and learned Lord said in reply:
“I understand the concerns expressed by some about whether some rights would somehow be left behind, but if we can and do identify a risk of such rights being left behind, we are entirely open to the proposition that we have to address that by way of amendment to the Bill, and we will seek to do that”.—[Official Report, 26/2/18; col. 573.]
Can the Minister tell us whether an audit has been done in respect of children’s rights to see whether any of them will accidentally be left behind? If so, what was the result, and if not, when will it be done?
What of the other measures? My noble friend Lady Lister quoted the reply given by the noble Lord, Lord Callanan, at Second Reading, in which he sought to reassure the House that children’s rights would continue to be protected by the Children Act 1989 and through our remaining party to the UNCRC. The UNCRC is hugely valuable, and I was pleased to hear it being defended so vigorously and passionately by my noble friend Lord Judd. But as many noble Lords have said, although we have ratified the UNCRC, the convention has not been fully incorporated into UK law and there are no effective sanctions for non-compliance.
The Children Act 1989, to which the noble Lord, Lord Callanan, referred, applies of course only to England and Wales. The problem for children in the UK as we leave the EU, as pointed out very clearly by my noble friend Lady Lister, is that there is no explicit constitutional commitment at a central UK level to children’s rights, and it is that level at which most EU legislation will be amended or repealed in the period post Brexit. We do not have any specific statutory provision requiring respect for children’s rights in lawmaking, and no general requirement to safeguard and promote the welfare of children in the UK.
As the noble Lord, Lord Wigley, pointed out, there are devolved provisions, such as the Rights of Children and Young Persons (Wales) Measure 2011 and the Children and Young People (Scotland) Act 2014. But as a number of noble Lords have pointed out, my noble friend Lady Massey among them, the Bill brings competence on matters that have been arranged under EU law back to Westminster and would seem, on the face of it, to prevent devolved nations from exercising their powers to stop or amend legislation from Westminster—even, as the noble Lord, Lord Wigley, pointed out, where it might contradict their own commitments to children’s rights. I look forward to hearing the Minister explain to the Committee how the Government will deal with that.
On one level, these conversations may sound academic, but the noble Lord, Lord Russell, made a passionate defence of why human rights matter. They matter for everybody, even—probably especially—for people we do not want to give them to, but they certainly matter for children. One reason they matter is because of what we are talking about at the end of this: how to ensure that our children are safeguarded, protected from harm and enabled to flourish. I know no Government would want to challenge that aspiration, but the danger is that where there is no specific requirement to pay due regard to the interests of children when deciding matters in legislation, law and practice, especially when the matters may not appear to specifically relate to children, there is a real danger those interests can, and do, get overlooked.
The noble Lord, Lord Russell, and the noble Baroness, Lady Meacher, gave some important examples of forced child labour and slavery, but there are also some examples that are wholly unrelated, on the face of it. Under current EU law, the free circulation of goods and services between member states—a very fundamental principle of course—has to be balanced against the need to ensure the welfare of children who are exposed to them. In post Brexit trade deals, how will similar safeguards be ensured and, if it is necessary, how can they be enforced legally?
The noble Lord, Lord Russell, referred to data protection. The general data protection regulation makes specific recommendations in respect of children, saying that they have the right to be properly informed in language they can easily understand. Children’s charities fear that without that, our children will specifically be targeted by marketing of things that will not be good for them.
Nearly a quarter of our population are children. As we have heard, they did not get to vote in the referendum, but they are the ones who will live with its consequences for the longest time. I doubt many of the parents who voted leave did so in order for their children to be less well protected than they are at the moment.
We should be celebrating and building on the significant contribution the UK has made to the EU’s work on promoting the best interests of children. I hope the Minister has heard the concern from around the Committee and that the Government’s previous assurance does not seem to have given the reassurance that he might have hoped. If the Government do not like these amendments, could he tell the Committee how they will ensure that our children will be protected in future?
The Minister of State, Department for Exiting the European Union (Lord Callanan) (Con)
My Lords, I am grateful that the important issue of children’s rights has been raised. I thank noble Lords for these amendments, which seek to make changes relating to the United Nations Convention on the Rights of the Child and the charter of fundamental rights, specifically to incorporate them into domestic legislation via the Bill and to impose statutory duties on Ministers to consider the UNCRC when making regulations. Many of the noble Lords who have spoken to these amendments have a track record of tirelessly championing children’s rights over the years, and the issue is of utmost importance to them and to this Government. Protecting children’s rights is paramount, and I assure noble Lords that I have heard their concerns about how existing rights and protections for children, and our commitment to the UN Convention on the Rights of the Child, will continue as the UK exits the EU.
Amendments 37 and 38, in the names of the noble Baronesses, Lady Massey of Darwen and Lady Greengross, seek to provide that some or part of the charter of fundamental rights would remain part of domestic law following withdrawal from the EU. As a number of noble Lords have observed, we have already debated the wider issue of the charter at length and noble Lords will be pleased to hear that I will not go through the general arguments today, although I thank the noble and learned Lord, Lord Brown, for rehearsing some of them. I take the opportunity again to reassure the Committee that the Government remain fully committed to children’s rights and the UN Convention on the Rights of the Child. Our ability to support and safeguard children’s rights will not be affected by the UK’s withdrawal from the EU.
I have heard the concerns of the noble Baroness, Lady Massey, about the impact of Brexit on children’s rights and the need to ensure that their welfare, safety and best interests are not compromised as we leave the EU. The rights and best interests of children are already, and will remain, protected in England primarily through the Children Act 1989, which sets out a range of duties to safeguard and promote the welfare of children, including making the child’s welfare the paramount consideration for any court—I think the noble and learned Lord, Lord Brown, referred to that. Children’s rights and best interests are further protected through the Adoption and Children Act 2002, which among other things ensures that the child’s welfare is the paramount consideration in all decisions relating to adoption. In addition, other legislative and administrative measures are in place, including the Children Act 2004, which imposes general safeguarding duties in relation to children on various bodies.
Scotland, Wales and Northern Ireland have their own measures for the protection of children’s rights which fully comply with the UN Convention on the Rights of the Child. Additionally, the European Convention on Human Rights as a whole offers the protection of children’s rights, and this is implemented domestically by the Human Rights Act 1998.
Lord Wigley
The Minister referred to Wales, Scotland and Northern Ireland having devolved competence. Can he give an assurance that all the powers they currently have in that context will be maintained after Brexit?
Lord Callanan
I will come on to the noble Lord’s question shortly and answer him directly. None of this extensive framework is altered or in any way diminished by our exit from the EU and the non-retention of the charter. Amendments 68, 69 and 70, tabled by the noble Baronesses, Lady Meacher and Lady Lister, and the noble Earl, Lord Listowel, would incorporate the UN Convention on the Rights of the Child into domestic legislation and require all public authorities and Ministers of the Crown to have regard to it. Further, Amendments 97 and 158, tabled by the noble Baroness, Lady Meacher, seek to ensure that regulations made to remedy deficiencies in retained EU law are not contrary to the UNCRC. Again, I thank noble Lords for these considered amendments. Although tabled with great intention and faith, in reality they would not enhance the existing safeguards in place to preserve the rights of children in this country—measures that I have already outlined and which will remain in place after the UK’s withdrawal from the EU. I thank the noble Baroness, Lady Deech, for her comments and points on this matter.
It is also important to highlight that in addition to these measures, which are a combination of both legislation and commitments, the UK Government already have a commitment to Parliament to give due consideration to the UNCRC when making policy and legislation. In response to the noble Baroness, Lady Massey, I assure noble Lords that the Government are working closely with the Children’s Rights Alliance for England to ensure that children and young people’s views are heard and taken fully into account when developing policy and delivery in this area. We are hugely grateful to it for the great work it does to help preserve children’s rights and deliver a framework of actions on the UNCRC. These actions are designed to embed children’s rights across Whitehall and beyond, as we set out in a Written Ministerial Statement in October 2016. Those actions include developing and promoting training for civil servants to help them understand children’s rights and the UNCRC, and looking at how we can promote and embed good practice.
As I have set out, the UK already meets its commitments under the UNCRC through a mixture of legislative and policy initiatives, which effectively safeguard the rights of children in this country, negating the need directly to incorporate the UNCRC itself. That approach is in line with normal practice for implementing international treaties. By going over and above measures already in place, and which will of course remain in place after we leave the EU, the amendments would create new burdens on public bodies and individuals, when the UK’s existing laws and commitments already adequately safeguard the rights of children in this country.
Amendment 70, from the noble Baroness, Lady Lister, addresses continued co-operation on various security and law enforcement tools. Those discussions will be a matter for negotiations with the EU. The continued security of Europe is unconditionally guaranteed and is of paramount interest to us. The Government have been clear that the UK remains unconditionally committed to European security, and in the exit negotiations we will work to ensure that the UK and the EU continue to co-operate closely to safeguard our shared values and combat common threats. We recognise in that regard the value provided by Europol, the European arrest warrant, Eurojust and ECRIS. I hope that that provides appropriate assurances to my noble friend Lord Dundee and reassures other noble Lords of our wholehearted commitment to children’s rights and the UNCRC, showing that our ability to support and safeguard children’s rights will not be negatively affected by UK withdrawal from the EU.
I turn to Amendment 39, tabled by the noble Baroness, Lady Greengross, on the rights of the elderly. I entirely sympathise with the concerns raised today and I reassure the Committee that the Government are committed to the welfare of the elderly. I particularly thank the noble Lord, Lord Foulkes, for drawing my attention to his no doubt excellent report in the Council of Europe. I must profess that in my extensive reading material I omitted to go through that worthy document but, now that he has drawn my attention to it, I shall make it my priority to get hold of a copy and will reply to him in writing on it.
There are enforceable domestic safeguards for the rights of the elderly under the Human Rights Act and the Equality Act. Older people will continue to benefit from the existing strong protections against age discrimination, harassment and victimisation in the Equality Act 2010—for example, when accessing services when we leave the EU. Of course, the Government also make provision for the rights of the elderly in domestic legislation in a range of ways. To take just the most obvious example, domestic law provides for state pensions and the safety net of state pension credit, as well as disability benefits and other measures such as the provision of social care for those with eligible needs—subject of course to a financial assessment—free prescriptions where charges would otherwise apply, and travel concessions. Again, none of this is in any way diminished by our exit from the EU and the non-retention of the charter.
Article 25 of the charter is also a principle, which is different from a right. It cannot be relied upon directly by individuals in the way that rights can. Principles are a valued and important tool, and, in so far as the principles and rights underpinning the charter exist elsewhere in directly applicable EU law, or EU law which has been implemented in domestic law, that law will be preserved and converted by the Bill. Retaining Article 25 as a standalone right in this way is simply not necessary. If Article 25 was incorporated into domestic law, it would be unclear how it was supposed to apply and it would undermine the Bill’s core objective: to give certainty and continuity after we leave the EU.
I turn to the question asked by the noble Lord, Lord Wigley, on protecting children’s rights. The UNCRC does not impose a requirement on state parties to incorporate the UNCRC itself. It is focused on the implementation of rights without prescribing how state parties should achieve that. I reassure noble Lords that the UK meets its obligation under the UNCRC through a mix of legislative and policy initiatives, as opposed to the incorporation of the UNCRC itself.
With regard to Wales, the Rights of Children and Young Persons (Wales) Measure 2011 requires Ministers to have due regard to the convention when exercising their functions. The Children’s Rights Scheme 2014 sets out the arrangement Ministers have in place to ensure compliance. None of the rights exercised by Welsh Ministers will be affected by any of the provisions in the Bill.
My favourite hereditary oik, the noble Lord, Lord Russell of Liverpool, mentioned two articles. I certainly remember writing the article for “ConservativeHome” but have no recollection of writing an article for the Sun on the same day. I would be grateful if he would send me a copy of this for my delectation and interest, and I will respond to him when I have had a look at it.
I hope that my reassurances to noble Lords will enable them to withdraw or not move their amendments.
Baroness Massey of Darwen
My Lords, I thank the Minister for his reply. We have had an excellent debate on children’s rights and protection, with many articulate and forceful contributions. The noble Baroness, Lady Tyler, stressed that children are potentially the most affected by Brexit because they are young and will be subject to the forces that Brexit might bring. I am disappointed by the Minister’s response. Many of us have said tonight that we recognise that we have made great strides in defending children’s rights and proposing things which improve those rights and the protection and welfare of children. But I would like the Minister to recognise what was also said: namely, that our domestic laws do not protect children in all circumstances. Many noble Lords have given examples of this.
As my noble friend Lady Sherlock said, our laws do not incorporate all the treaties and we should be working towards more incorporation. The noble Baroness, Lady Meacher, thought this might be an “oversight”—I think that was the word she used. Whatever it is, we need to sort it out. We need to recognise that children’s rights and protection are not always incorporated into what we do. An example is youth justice, where 17 year-olds can be treated as adults rather than children. Children say that this is not right or sensible, and I agree.
The Government have made it clear that they are very keen on social mobility. It is important, but it will not happen unless children are encouraged to participate in their own futures. I am talking about empowerment as well as protection. Last November, I held a seminar in Portcullis House. One or two noble Lords were there as observers. We talked about child-friendly justice and child mental health. Almost half the participants were children and young people; others included academics, European politicians and NGOs. It was acknowledged by everyone that the contribution of young people was absolutely crucial to defining the needs of children and young people and responding to them. I recognise that the Minister says that they have talked to CRAE—for which I have the highest regard—on the rights of the child, but have the Government actually listened to what children have to say on this? I would like some evidence of that.
As I said, we have made progress on involving and protecting children, but we should be big enough to take criticism when it comes—and we are criticised. We are not rated highly at international level on how we deal with children. I gave the example of youth justice. We should not be complacent.
This is an important set of amendments, spoken to most forcefully by colleagues. I hope that the Minister will call a meeting of those present today and others to discuss how we can move forward on issues relating to Brexit and children. My questions and those of others have not been sufficiently answered. I still have reservations and I would like to meet the Minister to talk about them. I beg leave to withdraw the amendment.
“Future provisions relating to family friendly employment rights, gender equality and work-life balance for parents and carers
(1) A Minister of the Crown must, as soon as reasonably practicable, report to both Houses of Parliament whenever new or amended EU law in the area of family friendly employment rights, gender equality and work-life balance for parents and carers would have amended provisions or definitions in domestic law had the United Kingdom remained a member of the EU or the European Economic Area (the “EEA”) beyond exit day.(2) Having reported to both Houses of Parliament, the Minister must consider whether to seek to incorporate those amended provisions or definitions into domestic law, in order to ensure that there is no material reduction of gender equality and employment rights as a result of the United Kingdom exiting the EU or EEA and that those working in the United Kingdom have at least the same gender equality and employment rights and protections as they would have had if the United Kingdom had remained in the EU or EEA.(3) New or amended EU law for the purposes of this section includes but is not limited to—(a) any future EU directives relating to family friendly employment rights, including but not limited to rights for pregnant workers and employees, and those returning from maternity, paternity and parental leave;(b) any future EU directives relating to gender equality;(c) the proposed directive of the European Parliament and of the Council on work life balance for parents and carers.(4) Reports presented under subsection (1) must include—(a) an assessment of how such amendments to domestic law would have impacted gender equality and work life balance in the United Kingdom had the United Kingdom remained a member of the EU or EEA beyond exit day, and(b) an assessment of how not implementing amended provisions or definitions in domestic law will impact gender equality and work life balance in the United Kingdom.”
Baroness Lister of Burtersett
My Lords, this amendment stands in my name and those of the noble Baronesses, Lady Altmann, Lady Burt and Lady Greengross, whose support I very much value. I also thank Working Families for its assistance.
The amendment would simply require the Government first to report to Parliament on developments in EU law in the areas of family-friendly employment rights, gender equality and work/life balance for parents and carers which would have affected UK legislation had we remained in the EU, and then to consider whether they should incorporate these changes into domestic law to ensure that such rights are not diminished or are no less than they would have been were the UK still a member of the EU. What it does not do is bind the UK to implement future EU law. While it is essentially a probing amendment, I hope to convince your Lordships that it goes with the grain of government policy and therefore there is no reason for the Government not to accept it or bring forward some other version of it. If the Minister cannot give me such an assurance, we may want to come back to this on Report.
In their note on equality legislation and EU exit, the Government rightly point to the UK’s rigorous domestic equality legislation, part of which predates or goes beyond EU provision. The same is true up to a point when it comes to family-friendly and work/life balance provisions. But, as the Government acknowledge, only part of our legislation predates or goes beyond EU provision. There is wide agreement that, in the words of the Equality and Diversity Forum, the EU,
“has been an important driver for improvements which have benefited us all”—
and, I add, women in particular. An example is the pregnant workers directive, which, as Working Families attests from its helpline, has been crucial in helping protect women from pregnancy discrimination or maternity discrimination, although a recent EHRC report shows that it is still all too common. It is worth noting here that according to new analysis published in the journal Social Policy and Society, these pregnancy and maternity rights were watered down by the then UK Government during negotiations. Other examples of EU-driven legislation include the original right to parental leave, equal rights for part-time workers and the concept of equal pay for equal work of equal value, which strengthened our own pioneering equal pay legislation immeasurably.
The Joint Committee on Human Rights 2016 Brexit report likewise noted that:
“EU law has been described as the engine that hauled the development of UK anti-discrimination law”.
Yet the Minister gave the committee,
“no commitment that the government would monitor or take account of EU law developments”.
That, it observed, “may prove significant”, especially so because we know there are a number of important directives in the pipeline, one of which is explicitly included in proposed new subsection (3)(c) in the amendment, a directive on work/life balance for parents and carers. This includes two measures on which I and many outside organisations have campaigned for many years: improved terms of paid parental leave and the introduction of paid carer’s leave. I stress that work/family life balance is of increasing importance to men, as it has traditionally been to women. I am sure that the noble Baroness, Lady Burt, will say more about parental leave, because she has repeatedly raised the failure of the shared parental leave scheme to achieve its aim of significantly increasing fathers’ take-up of the leave.
The draft directive would provide four months of non-transferable leave for both fathers and mothers, paid at a minimum of statutory sick pay levels. This could provide just the kind of boost needed to encourage greater paternal involvement. I hope and trust that whatever happens to this amendment, the Minister can give us an assurance that the review currently taking place of shared parental leave will include consideration of the directive.
In addition, the draft directive includes a right to five days of carer’s leave a year, also paid at a minimum of statutory sick pay levels. As a vice-chair of the All-Party Group on Carers, I have been convinced of the importance of the case made by Carers UK and others for a period of such leave. As Carers UK argued in a report making the case:
“The evidence base for supporting working carers is growing, and it is compelling”.
Around 3 million people—one in nine members of the workforce—combine working with unpaid care for a loved one, and the numbers are predicted to grow as the population ages. The danger is that without the safety net of the right to a few days’ paid leave a year, carers will either reduce their hours or give up paid work altogether, which, as the Women and Equalities Minister said, is “a huge loss” both to them and the economy. Welcome as it is, the impact of the fund to help carers return to work in the private sector that she just announced will be reduced if it is not backed up by carer’s leave. The state pensions reviewer highlighted this issue recently and recommended statutory carer’s leave. Care leave is becoming increasingly common across the world, and if we do not keep up with our European neighbours on this matter we will fall further and further behind.
The question of future EU directives was also raised in the Women and Equalities Committee’s Brexit report. The government response stated:
“The UK Government’s record on equalities is one of the best in the world and we are determined to ensure that this remains the case … We are committed to protecting and promoting equality and to eliminating discrimination—leaving the EU does nothing to change this”.
This amendment does no more than to support, help and promote this commitment.
I will not take up time by detailing the depressing evidence from the Working Families 2018 Modern Families Index, which shows just how far we still have to go to achieve genuinely family-friendly employment, and therefore how important it is that we keep pace with EU developments. But such evidence is also there in the work of Carers UK and other organisations, which are calling for some way of keeping pace with EU developments—notably the EHRC, the TUC, the Fawcett Society and the Fatherhood Institute. In addition, new public attitude research by the IPPR indicates strong public support for continued alignment with the European economic and social model, regardless of the position taken on the referendum.
When a similar new clause was moved in the Commons in the name of Ellie Reeves and a number of other MPs, it was given short shrift by the Minister and rejected in two sentences on the grounds that it,
“suggests a procedural device for incorporating certain EEA-related rules into UK law. This is entirely unnecessary given the wider snapshot of EU law this Bill will take at the point of exit”.—[Official Report, Commons, 21/11/17; col. 904.]
That was entirely to miss the point. It is not about incorporating existing rules, which, as the Minister said, will be done as part of the wider snapshot, and of course government assurances with regard to existing equality and employment rights are welcome, even though they have not convinced everyone. Similarly, the government amendment to Schedule 7, ensuring transparency in any changes to equality legislation and placing reporting obligations on government, is welcome as far as it goes, although it does not go far enough, despite the assurances in the Minister’s helpful letter to Peers.
Snapshots are static. The whole point of this amendment is to recognise that the world is not static—it will not be frozen in aspic on the day we leave the EU. Indeed, just the other week the Brexit Secretary assured business leaders in Vienna that Britain will remain a “dynamic and open country”. This amendment is all about dynamism and openness to change in the wider continent of Europe. Mr Davis continued that Britain will be leading,
“a race to the top in global standards”.
That is great, but how can it do so without ensuring that Parliament is informed about, and is able to consider changes in, such standards among its closest neighbours? In this spirit, I call on the Government to accept this amendment, or some version of it, to ensure that we do not lose the race in global standards of equality, family-friendly employment and work/life balance. Doing so would act as an important symbol that they are prepared to translate the Brexit Secretary’s fine words into deeds. I beg to move.
Baroness Burt of Solihull (LD)
My Lords, I support this small suite of amendments, to which I have added my name. We have heard from the noble Baroness, Lady Lister. Her excellent speech leaves very little for me to add and I will test the patience of the Committee by making only a couple of brief points.
I emphasise that Amendment 40 is not a grab for any further powers to keep the EU linked to Britain post Brexit. We merely wish to ensure that the UK Government consider any future EU developments in the areas of family-friendly employment rights, gender equality and work/life balance. I hope that the UK would be ahead in these areas, as in the past we have been a leader in these fields. Indeed, we may well introduce changes which the EU would do well to consider.
The noble Baroness, Lady Lister, referred to an EU directive coming down the line on shared parenting, the uptake of which in this country needs considerable improvement. The noble Baroness, Lady Williams of Trafford, has graciously agreed to meet me and others to discuss some of the proposals that we have been working up. However, that is for the future.
Right now, with suggestions that we could be jettisoning our membership of the European Court of Justice and with talk of leaving the European Court of Human Rights, some colleagues on these and other Benches fear that our proud record of leadership in these areas will be lost and that the United Kingdom will enter a race—not to the top, as Minister David Davis has suggested, but in the opposite direction, to the bottom. Amendments 89A, 129A and 157A would simply enshrine in law the certainty that existing EU protections relating to families in the workplace could not be changed or got rid of under secondary legislation.
Baroness Manzoor (Con)
Can the noble Baroness explain where the evidence is that we will be reaching for the bottom in equality laws? I certainly do not see any evidence of that.
Baroness Burt of Solihull
I am grateful to the noble Baroness for her question. As I have just outlined, my concern is that there has been talk on the Government Benches—it has all been suspended at the moment because nothing will happen pre Brexit—of abandoning our membership of the European Court of Justice and leaving the European Court of Human Rights. That is what worries me and it is why I mentioned it.
Baroness Manzoor
With due respect, that does not affect what we are doing with equality and human rights legislation in the UK. Perhaps the noble Baroness could explain a little further what that would mean. I do not see any impact on equality law in the UK from leaving the institutions that she has mentioned.
Baroness Burt of Solihull
What I am concerned about is the general direction of movement that is being mooted in certain quarters regarding various types of rights for people in the UK in order to make the UK more amenable to having less protection in the fields we are talking about—employment, equality and human rights.
None of these amendments is unreasonable, and the Government would give considerable comfort to mums, dads and carers throughout the country if these simple amendments could be incorporated into the Bill.
Lord True (Con)
My Lords, I fear I must intervene at this point, having been restrained a little earlier. I did have some amendments down which I thought were rather germane to the transition period potentially, on which noble Lords could take different views, but in the interest of making progress I thought that those issues could be more intelligently addressed once we knew a bit more about the progress of negotiations.
I must point out that, prior to that, four groups of amendments had occupied your Lordships’ House for five and three-quarter hours. At that average rate of progress and with 85 groups still to consider on the Marshalled List, many of which have been tabled by noble Lords who are concerned about leaving the European Union, we will need 13 more days in Committee, sitting for nine hours until midnight every day, with no dinner break and without considering any other business. With all respect, I do not consider that that is a good way to make progress or that it is sufficient progress to make. I think that a number of your Lordships will probably agree privately with those reflections.
We have a 19-clause Bill here, to which already your Lordships’ have tabled 67 new clauses. Perhaps some of these statistics might be noted outside. The amendment to which I speak is such a new clause.
I feel that, with all respect—
Lord True
The noble Lord has spoken a great deal in the past few days; I would like to continue my remarks, if I may.
The important issue that is raised here is a perfectly good issue on which to have a debate in the Moses Room or on an Unstarred Question. These are matters of great importance. I strongly disagree with the noble Baroness who said that we had not made progress in this country: we have made a great deal of progress in this country. The performance of this country on gender equality, work/life balance and carers has been transformed in my lifetime. It needs to go further, but I cannot accept—
Lord Pannick (CB)
Does the noble Lord accept that a great deal of the progress that we have made—for example, on gender equality—has been because of the judgments of the Court of Justice in Luxembourg, which has imposed standards that our Parliament has not imposed?
Baroness Crawley (Lab)
Why has the noble Lord singled out this set of amendments to be, in an ideal world, debated in a committee room rather than on the Floor of the House? Nobody has made that suggestion about any other set of amendments so far.
Lord True
I did not make that suggestion, and the record will show it. I was coming to make some suggestions about how we could address this as a House. We have had some outstanding debates in this House from committees of your Lordships’ House on broader policy questions that arise from this difficult exit process. This is an extremely important issue, as I acknowledged at the outset, which deserves to be considered and continually considered in your Lordships’ House. I am merely saying, with great respect, that perhaps the usual channels should give some consideration to ways in which some of the issues that have been raised on this quite narrow Bill could be discussed—but, since I have been invited to explain why, it is nothing to do with the matters concerned.
By the way, the noble Lord cannot argue that because progress has been made by one judicial process it would not have been made by other processes. After all, huge progress has been made in the United States of America, which does not accept the judicial authority of Luxembourg.
This worthy amendment seeks to raise and bring before your Lordships’ House an important subject that your Lordships should consider and hold dear. However, the amendment is absurd in what it asks the Government to do—and that would be true if it was applied to any other field of public policy. So far in Committee we have had a series of general public policy debates. We have had several today which have been cloned, as it were, on to the Bill. The amendment wants Ministers to be required by law to watch only EU law as it develops and give regular reports to your Lordships’ House whenever a proposal comes forward on what should happen. A new principle is being grafted on to the law for this one issue.
I could reverse the question: why for this worthy policy only? Will it be submitted in the rest of Committee as we proceed on different aspects of public policy on all these new clauses that we should have a process whereby Ministers are required to watch and report on this and that after we have left the European Union? That is not very sensible. Our Ministers and Government should watch the legislation brought forward in every advanced country of the world, not only among our European partners, but not have this specific process clogging up the statute book.
The remarks of the noble and learned Lord, Lord Brown—I am sorry, I can never remember his full title; I know it has got something to do with living in a leafy place with a wood nearby—on the previous group were absolutely correct. He made the point that we had discussed the Charter of Fundamental Rights before.
So, with the greatest respect, I oppose this amendment for the reasons I have given. It is not a sensible process on any aspect of law to ask any future Government to specifically watch the development of debates on future policy within the European Union and bring reports to your Lordships’ House. That is simply not practical legislation.
I have the highest esteem for the noble Baroness, as she knows. I recognise that she is passionately committed to these issues, as is the noble Baroness, Lady Burt. They are trying to bring issues they care about before the House, but they do not have to do so on this Bill—and certainly not in the context of an amendment that will not work in practical terms.
We have been sent a Bill by the other place that is to provide for withdrawal from the European Union—not to provide a basis for a series of lengthy Second Reading-like debates on different aspects of public policy. That is the way we are drifting. It is why we took five and three-quarter hours to debate the first four groups and why, if we continued at that rate, we would have another 13 days to get through. The amendment is not practical and will not work. It raises an important issue, but we should move on. I will give way to the noble Lord now.
Lord Davies of Stamford
I am grateful to the noble Lord. He has been implying—rather more than implying—that noble Lords in this debate have been wasting time; that they have not been getting to the bottom of the subject or have been talking about irrelevancies. Is that what the noble Lord means to say—in other words, that we have not been doing a good job on this Bill? It seems to me that we have fairly elucidated the quite complex details in this proposed legislation so far. It is an enormously important matter and we can scarcely be accused of spending too much time on it. Our debates are being followed carefully by the country as a whole—and rightly so. If the noble Lord has any evidence of someone who has been filibustering or wasting time, I hope that he will bring it forward.
Lord True
My Lords, I could well be tempted and I suppose that it depends on how quickly you can see paint dry. I leave it to people outside your Lordships’ House to judge the progress that we have made in the first four days, despite some of the undertakings and understandings of the Opposition Front Bench. Perhaps I may say that I greatly value and respect the Bench whose behaviour has been absolutely admirable and exemplary. I do not think that we have made fast enough progress, which is not justified. There are important issues to raise and I have simply suggested that these are some things that, as with the reports of your Lordships’ committees, could be discussed in other forums—but surely not during consideration of this little 19-clause Bill with a rather narrowly defined purpose and given all the other legislation that we have coming forward.
I oppose this amendment. It suggests a new mechanism for the Government in relation to our future relations with the EU which is unnecessary. I look forward to seeing the progress that the noble Baroness wishes to see being made.
Baroness Drake (Lab)
My Lords, I rise to speak to Amendments 89A, 129A and 157A in the group and I thank the noble Baronesses, Lady Altmann and Lady Burt, for their support. Many noble Lords have already referred to the executive powers in this Bill which go beyond those needed to deliver the intent of preserving and converting existing EU law into domestic law to provide legal continuity on exit day. Clause 7, for example, gives Ministers corrective powers to do whatever they consider appropriate to address a deficiency in retained law. As the Constitution Committee has observed, as wide a subjective concept as “appropriate”, applied to such a broad term as “deficiency”, makes Ministers’ regulation-making powers potentially open-ended. Ministerial assurances on their use cannot substitute for a provision in the Bill to prevent the correcting powers being used to effect substantial changes to implement government policy outwith the stated intention of this Bill.
There are many areas of substantive policy which could be impacted by these open-ended powers, a concern that is captured in the long list of amendments to the Bill. I say to the noble Lord, Lord True, that if the Government more quickly took action to restrain the powers in Clauses 7, 8, 9 and elsewhere, and reflected the concerns that people have, the list of amendments that the Committee is debating might actually reduce in number. I am sure that he did not intend it, but choosing his moment at 10.25 pm to express his frustration at the amount of time spent on certain amendments, just at the point when we are discussing women’s and family issues, does not help the case that there is increasing anxiety that the Conservatives want to cut back on employment rights, particularly as they are afforded to pregnant women and mothers.
The particular focus of these amendments is to prevent powers in Clauses 7, 8 and 9 being used to limit the scope of or to weaken rights relating to maternity, paternity, adoption, parental rights, the rights of pregnant women and breastfeeding mothers. Such rights are important because they affect the status of half of the population of this country. That is not a small or minority group, it is half of the population. When millions of women voted in the EU referendum to remain or to leave, I doubt that many will have done so in the belief that the result could prejudice their rights or status. These amendments reflect real concerns about the potential impact of Brexit and the application of this Bill on women, expressed by a broad coalition of women and equality organisations such as the Fawcett Society, Women on Boards, the British Pregnancy Advisory Service, Girlguiding and many others. Bodies such as the Equality and Human Rights Commission share an anxiety that in setting the future of the UK economy, the Government could weaken women’s status in their vision of a differently regulated country.
The treatment of women who are pregnant and who care for children is fundamental to their ability to achieve social and economic equality. The penalty paid for child-bearing and caring is at the heart of the discrimination and loss of opportunity that many women continue to experience. It affects women who have been pregnant, are pregnant, may become pregnant and, by gender association, who do not have children. They all experience the consequences of a collective stereotyping of women.
Baroness Altmann (Con)
My Lords, I support Amendments 40, 89A, 129A and 157A, to which I have added my name. I am grateful to the noble Baronesses, Lady Lister, Lady Drake, Lady Burt and Lady Greengross, whose names are also on the amendments. These amendments deal with issues that, as the noble Baroness, Lady Drake, so passionately and rightly said, will impact half the population of this country and would potentially reintroduce rights that would otherwise be lost for women, carers and parents. These measures have support from many groups representing women’s interests. I am grateful for briefings from the National Alliance of Women’s Organisations, Working Families, Carers UK and the Fawcett Society, among others. It is vital that we protect existing protections and equality law for women and carers, and maintain these protections into the future.
The EU has been a leader in equal rights for women. I am proud that the UK has been a principal player in Europe on this agenda. Measures such as rights for part-time workers, sex discrimination laws that put the burden of proof on the defendant and the right to request flexible working have all contributed to a far more female-friendly and family-friendly working environment for millions of employees across the UK. Brexit must not put women’s progress and prosperity at risk. It must also not dilute parental and paternity rights.
The Bill as drafted does not provide sufficient protection for hard-won equal rights that we have already attained. It introduces risks that rights will be weakened in future and fails to contain safeguards to ensure that the UK does not fall behind future EU advances on these issues. That is why these amendments seek to put in the Bill specific protections for the rights of important groups, including part-time workers and carers. The Government said that they intend to retain the current rights and protections, but why would they then resist putting them into the Bill explicitly? I hope that the Minister will come back on Report with his own proposals to this effect.
As we debated last week, the UK must not lose rights derived from the European Charter of Fundamental Rights. I suggest to my noble friend Lord True that the reason why there has been such a lengthy debate on individual areas of UK rights, including this series of amendments about women and carers—I echo the words of the noble Baroness, Lady Drake—is that the Government have chosen to exclude the charter of fundamental rights and unfortunately have raised suspicions that they seek to weaken rights after Brexit. Ministers must not be given powers that could enable them to bypass Parliament to weaken such rights. It is true that the charter covers rights contained in other UN treaties that have been ratified by the Government. However, those treaties are not incorporated into UK law. Therefore, they do not provide the same protections. These amendments aim to introduce specific safeguards into the Bill. I am sorry if my noble friend believes that these issues are not sufficiently worthy to be debated in this Chamber.
Lord True
I have made it absolutely clear that I consider these to be important issues. The points I made were entirely about the way in which progress is being made on this Bill. I would be extremely grateful if my noble friend did not impute to me things that I did not say and do not think.
Baroness Altmann
I am most reassured to hear my noble friend’s words, but it is unfortunate that that issue was raised on this set of amendments about women, with the suggestion of moving to the Moses Room. I assure him that there are many on these Benches and across the Chamber who believe these issues to be extremely important for our country.
Many noble Lords across the House are concerned that the UK must not fall behind on gender equality and women’s rights. As we have seen recently, there is still some way to go before we can say that we have achieved gender pay parity and there remains a need further to improve women’s rights. Sadly, I have seen all too often women’s issues fall under the radar of policymakers. There are many loopholes in UK law which penalise women predominantly. For example, in the area of pensions, part-time workers, usually women, still fall through cracks in both the national insurance and auto-enrolment pension systems, leaving them disadvantaged. Any weakening of women’s rights and protections is moving entirely in the wrong direction.
The new clause proposed by Amendment 40 would help protect us from falling behind the EU. A practical example is the directive on work/life balance for carers and parents which the EU will bring in but not until after March 2019. The majority of carers for elderly parents tend to be oldest daughters in their late 50s or early 60s—I declare an interest as one such. The forthcoming EU directive would introduce carer’s leave, which can be so important to help women who might otherwise have to leave work altogether. Women who stop work to care for loved ones when they are in their 50s or beyond usually never return to the workplace, denying them the chance of a richer retirement and wasting their valuable skills. Ensuring that we do not fall behind when the EU introduces protections for carer’s leave is extremely important for women. We should not weaken rights and protections which they would otherwise enjoy. The amendments would not force the Government to adopt new EU laws and regulations, but they would ensure that Parliament had the opportunity to protect the position of the UK and keep pace with, or even exceed, improvements in these areas in the EU in future.
This Bill and earlier debates this evening highlight vividly that the Government’s proposed legislation does not ensure the objective of transferring EU law into domestic law in all its aspects, nor does it achieve the same protections and rights as citizens have at the moment. There will be a watering-down, which is not appropriate for a country that has spent so much time and energy on enhancing the rights, protections and position of women, part-time workers, carers and families. To countenance measures that put those achievements at risk is unacceptable. I hope that the Government do not wish to risk the UK falling behind or moving backwards on these issues, and that my noble friend the Minister will return on Report with proposals of his own which can achieve the aims of the amendment.
Baroness Crawley
My Lords, I support the amendments in the names of my noble friends Lady Lister and Lady Drake. We could call this set of amendments “Keeping up with progressive forces” or “Ensuring UK women and families do not begin to lose out beyond the point of our exiting the EU”. My noble friend Lady Lister wants the Government closely to monitor, report on and replicate future EU developments in the area of family-friendly employment rights, gender equality and work/life balance for parents and carers, as the noble Baroness, Lady Altmann, has just said.
Baroness Greengross
My Lords, I will be very brief. It is true that the UK has often gone further than the EU in providing key equality and employment rights that are of benefit to working parents and carers. As an example of this, when I started working with the Commission and the European Parliament many years ago, they thought of carers only as young people looking after young children. There was no mention of the fact that a whole lot of carers were looking after elderly people and that their numbers were increasing rapidly. This has changed. While Amendment 40 takes the Bill beyond simply incorporating the law as it stands at the point of exit, it is not about binding the UK into implementing future EU directives but will ensure that Parliament is informed of any such developments and commits our Government to considering their implementation.
I believe there is a danger that, without the assurances provided in the amendment, the UK might fall behind the EU on family-friendly employment rights in the future. The amendment will signal both to our own people and to EU members that the UK remains committed to maintaining fair and relevant employment rights and that we do not seek to become an offshore, low-wage, low-standard dystopian state.
Baroness Gale (Lab)
My Lords, we have had a really good debate on equality and women’s rights, and I am pleased to support the amendments in this group. Amendment 40, which inserts a new clause, was moved so ably by my noble friend Lady Lister, who explained in detail why it would be very useful to have it in the Bill. It is a very good amendment, which would require the Minister to report to Parliament whenever there are new or amended EU laws in the area of family-friendly employment rights, gender equality, and work/life balance for parents and carers, which would have amended provisions in domestic legislation if the UK had remained a member of the EU, and the Minister would have to consider whether or not to incorporate these provisions into domestic law.
There could be a danger that the UK will fall behind the EU on gender equality and women’s rights when we do not automatically have to follow EU laws. The amendment means that Parliament will at least be informed of new EU laws and that consideration will be given to whether or not to incorporate them in UK law. This is not anything new, really. We do look at other countries and see what they are doing. If one thinks of the devolved nations, the UK Government have learned from the example of the Welsh Assembly, where we had a children’s commissioner—the first one in the UK—and then the UK Parliament decided that there would be one for England. There are other examples I could go into where we have learned from other countries. There is no problem in looking to see what works in one area or one country and then incorporating it into our laws. That is the importance of the proposed new clause.
Amendments 89A, 129A and 157A, spoken to by my noble friend Lady Drake, would ensure that regulations will not weaken our rights relating to maternity or paternity, or adoptive parental rights, or the rights of pregnant or breastfeeding women. We know that even today regarding our gender equality rights, which have been hard fought for, there is ample evidence that employers do not always adhere to the law. In recent weeks we have heard of employers who seem to disregard the laws around maternity and pregnancy. The Equality and Human Rights Commission, as my noble friend Lady Drake mentioned, said recently that many businesses were “decades behind the law” and,
“living in the dark ages”.
This followed a survey which showed that a third of those working for private companies thought it was reasonable to ask women during the recruitment process about their plans to have children in the future, whether they were pregnant and whether they had small children. This type of questioning is against the law and one wonders why it still goes on.
In December, the Prime Minister failed to rule out scrapping the working time directive, the agency workers directive and the pregnant workers directive, even though she was asked several times to give that assurance. The pregnant workers directive is of great value to women and gives much-needed protection in the workplace. So we need to ensure that delegated powers cannot be used to weaken maternity, paternity, adoption or parental rights. One can see why, after that long fight for equality, it has still has to go on. We want to make progress all the time but there are grave concerns about the Bill.
I hope that the Minister will be able to give guarantees tonight in relation to these amendments. Equality rights do not just stand still; they have to progress all the time. That is why it is so important that we look to see what the EU is doing and then see whether it is something that we would want to incorporate into our laws. We really need that reassurance from the Government that the equal rights we have fought for, hard and over many years, will not be watered down at all. These are sensible amendments that would continue to ensure the protection of women in the workplace, as well as ensuring that women’s equality rights do not fall behind those of future EU laws. I hope that the Minister can give assurances that he will look seriously at these amendments, because they are good and sensible ones.
The Parliamentary Under-Secretary of State, Northern Ireland Office and Scotland Office (Lord Duncan of Springbank) (Con)
My Lords, I am grateful to the noble Baronesses, Lady Lister, Lady Altmann, Lady Greengross, Lady Burt, Lady Drake and Lady Gale for their contributions, and for bringing this debate alive tonight. It is right and proper that that debate should be here.
I would like to make a few points, which are necessary this evening. First, on the day after Brexit, the rights which we have worked so hard while within the EU to create will be brought back. We have been a partner in the framing of those rules and we will return them to the United Kingdom. There will be no dilution. There will be no weakening or regression. These rules will come back and they will stand here. I emphasise that as members of the EU, we have never been bound by those rules as anything more than a foundation upon which we can build greater adherence to those rights. It is important to stress that.
The EU pregnant workers directive requires 14 weeks of paid maternity leave. In the UK we offer 52 weeks, 39 of which are statutory maternity pay. Our maternity entitlements are nearly three times greater than the minimum within the EU. We have given fathers and partners statutory rights to paternity leave and pay—an entitlement which the EU is only now starting to consider in its proposed work-life balance directive. In light of the comments of the noble Baroness, Lady Lister, she will be aware that the work-life balance directive is still only at the Commission proposal stage. We have not yet heard, or had a report, from the European Parliament or begun the necessary dialogue to determine what exactly will form the final elements of that directive. It is important to stress that the process of negotiation is right and proper. We have always taken part in that and will continue to do so. Exactly when it will reach the stage of clarity remains yet to be determined.
We have given the parents of all children up to the age of 18 a right to take up to 18 weeks of unpaid parental leave, while the parental leave directive requires only four months and applies only to the parents of children up to the age of eight. Again, we have sought to go further. It is important to stress that when we look at our ability to deliver against these EU expectations, we have never seen them as limiting us. We should be able to go beyond them.
Importantly again, it is not simply enough to enact these proposals; they must also be adequately enforced. That is why looking at the EU’s enforcement scoreboard is particularly important. At that point we begin to understand how successful it has been not just in transferring the law into the statute book but in making the law a reality because it is by those instruments and the reality of that law becoming functional that we adhere, advance and create functional rights.
Baroness Drake
The Minister’s reference to enforcement is very important. Is he giving an assurance that there are no government plans to cap compensation in discrimination cases when we leave the EU?
Lord Duncan of Springbank
The noble Baroness will recognise that that is part of a discussion for another time. We have already touched on it on more than one occasion. If I may, I will focus primarily on the amendments before us today.
It is important that we recognise that the rights we have cannot be undone. That must be the fundamental guidance. For those who ask whether I can give a categorical assurance that there shall be no erosion of the working time directive, the answer is yes, I can give that assurance. We will not be eroding these rules as they come back or after they come back. It is critical that these rules become and remain functional as we begin to develop our own rulebook. It is right that we should be cognisant of the advances in the evolution of rights whether it be in the EU or elsewhere. We have heard this evening about a number of these rights which we have seen emanating from the UN. We should not be limited in that regard. Time and again we have found ourselves in the vanguard of particular rights. As we consider this suite of amendments, I do not think we should lose sight of the fact that in more than one area on more than one occasion we have pushed rights far further forward than had been the case of the median rights within the EU as a whole.
Lord Wallace of Saltaire (LD)
The Minister just made an extremely significant statement. He will appreciate that part of the problem many of us have with the Bill is how far we trust the Government to have the very extensive delegated powers which are granted by the Bill and the chatter one hears, including from Ministers, about a desire to loosen EU regulations, in particular to loosen EU labour regulations. If the statement he has just made represents the Government’s considered view, that puts a number of minds at rest, although it may upset a number of people within his own party.
Lord Duncan of Springbank
I hope I can put the noble Lord’s mind at rest.
It is important that we recognise how these functional rights are developed and ongoing. The day after Brexit, our rulebook will be safe. The rights which we have will be incorporated and we will build on them as a foundation. They are not a ceiling. It is right and proper that both this Chamber and the other place are instrumental in taking forward the enhancement of these rights. We have to recognise that over the past 30 years our understanding of what is a necessary family right has entirely evolved. As the vice-chair of the LGBTI group in the European Parliament, I recognised how far we could push things within the European Parliament, but I was very clear about how far we could not push them within the European Parliament because of the inability of certain member states to move forward with us. In that regard, in terms of equalities, on not one occasion have we ranked lower than third in the whole of the EU—indeed, in the whole of the continent of Europe. We have pushed forward those rights far faster, deeper and more surely than many of the other member states, so we should not lightly shake them off. We will remain what we have been, I hope, all the way through: a deliverer of these rights, not just on paper, because that is not a functional right, but in functioning and working in the workplace and elsewhere. It is absolutely right that we do so.
In response to a number of the questions raised, I am conscious that there is unease and a certain regard that the Government today will take the first opportunity to cast these rights aside, to scrape the barnacles off the boat to allow the ship to move faster. I assure the Committee that they are integral parts of the engine of the ship and we shall not be discarding them. That is how important they shall remain.
Baroness Ludford (LD)
If that is the case, and we are all very impressed by this unexpected and thorough assurance from the Minister on behalf of the Government, why can he not accept some amendments in this area and some others to put that in the Bill?
Lord Duncan of Springbank
The noble Baroness makes an interesting point as to why people have not been able to hear these points, but I am iterating what the Prime Minister, and a number of other Ministers in the Government, have said as regards this, and am pleased if I have been able to cut through some of the hubbub that has surrounded it. We are and remain a Government committed to ensuring that on day one after Brexit there is no diminution whatever in the rights which are and have been enjoyed through our membership of the EU. It is important to stress that. I hope I have been able to give noble Lords some reassurances this evening and some confidence that they will be able to set aside these amendments on this occasion.
Baroness Lister of Burtersett
My Lords, I am grateful to noble Lords who have spoken from across the Committee in support of this amendment—with one exception of course, the noble Lord, Lord True. I cannot help but point out that there is a certain irony that the longest speech came from the noble Lord who complained that we were wasting time. He took, I think, nearly a fifth of the non-ministerial time in order to tell us we were wasting time.
Lord True
I will rise to the bait. It is clear that one is going to be characterised and monstered, but the reality is that I very clearly set the remarks I made in the context of the four days that we have already had and the 13 days, at this rate of progress, it will take to complete Committee. I also made it very clear that I regarded the rights that are being discussed as important and hoped that the noble Baroness would see all that she hoped for come to fruition. I was as delighted as the rest of the Committee by what we heard from the Front Bench.
Baroness Lister of Burtersett
As some of my noble friends have said, it is odd that it is this amendment, when we are talking about women, families and carers—
Baroness Lister of Burtersett
I think I should carry on. The noble Lord asked a question, to which the noble Baroness, Lady Altmann, gave a very clear answer, but perhaps the best answer came from the Minister himself. I thank him for his very courteous response and for his acknowledgement that this is a very valid amendment and debate, which we should be having. I very much welcome his categorical assurance that there will not be a watering down of the working time directive, and I know many other noble Lords welcome that as well. But I am puzzled. Yes, he has given assurances about not watering down existing rights, which is very welcome indeed, but I have not heard an argument against my amendment about keeping pace with what is happening in the European Union in the future. He was asked why he was not able to support the amendments, given the very positive stance he was taking, and I did not hear an answer to that. I am not going to pursue it now, but given his positive stance, and at the same time his failure to give arguments against this amendment, we may well want to return to this on Report. I beg leave to withdraw the amendment.
(c) the challenge relates to general principles of EU law.”
Baroness Bowles of Berkhamsted (LD)
My Lords, I have tabled three amendments in this group, and signed two others. What links them is the provision of continuity and the ability to challenge the validity of retained law, which noble Lords will note repeats a theme I followed with regard to Clause 5.
The Bill is a bit of a yo-yo when you want to find out what rights exist. Noble Lords might think that the rights are saved. Paragraph 1(1) of the Schedule rules out the possibility of a challenge but in paragraph 1(2) the possibility comes back in again, either if there is a European court decision before exit day or if an unspecified provision is made in regulation. My Amendment 40ZA would amend the provision about that regulation, adding,
“or … the challenge relates to general principles of EU law”.
I have already spoken, in the context of Clause 5 amendments, about the fact that the EU legislation—more or less, except the treaties—is all secondary legislation and challengeable as to validity. I repeat that that gives individuals and businesses rights that I do not consider it proper to take away, even if the court making the final decision is no longer the European court. I therefore want to make it clear that such a right continues. As explained previously, retained EU law will contain many things that correspond much more to what would be in UK secondary legislation that could be struck down, so it is not such an outrageous proposition. I will not spend further time repeating what I said, save to say again that taking back control was never cast as meaning a general removal of rights from individuals and businesses.
The third sub-paragraph of paragraph (1) of the Schedule states:
“Regulations … may … provide for a challenge which would otherwise have been against an EU institution to be against a public authority in the United Kingdom”.
My Amendment 40A would basically change “may” to “must”. I do not see companies currently lining up to take their regulators to court so I do not envisage any tsunami of cases. This is just to ensure that what appears to be promised actually happens.
There are then two amendments in the names of the noble and learned Lord, Lord Goldsmith, and the noble Lord, Lord Foulkes, on which I will leave them to elaborate. My reason for signing them is the same: I am not satisfied with the notion that the general principles of EU law are merely to give the courts a way of flavouring interpretation in a non-fatal way. Although that may well be sufficient for many purposes, it is not the continuity of rights and rule of law that is currently enjoyed. For that reason, I seek the deletion of paragraph (3). I also support the retention of environmental protection as defined in Article 141.
Lastly, I come to my Amendment 63, which would amend Clause 6 but is directed to the same ideas of challenge to validity. It states that notwithstanding anything else in the Bill, there remains a right to challenge validity on the basis of proportionality. Many noble Lords have spoken eloquently on the issues of fundamental rights and human rights. I am now being a bit more mundane and flagging up the importance of proportionality, particularly for business and single market legislation, where it can affect competitiveness. At Second Reading the noble Lord, Lord Hill of Oareford, said,
“we had a lot of influence in the EU: pro-free trade, pro-markets, pro-business, pro-proportionate legislation”.—[Official Report, 30/1/18; col. 1389.]
He was right, but one of the reasons why we kept going on about proportionality was that we do not have it in our own law. Our domestic test for irrationality is a lesser test, and we did not want to have to rely on CJEU salvation.
At the moment, yes, our courts have to consider proportionality when there is an EU dimension, and they will become responsible for more decisions that previously were taken by the European court. This means more consideration of wording that has been nowhere near a parliamentary draftsman and has been negotiated with the principle of proportionality underwriting everything. I cannot count the number of times that less than perfect and overprescriptive wording has been justified in a trialogue by the Commission, Council and parliamentarians with, “But it’s subject to proportionality”—and I was not always there to change it. So that attitude has to be understood and applied. I am concerned that, when we have, as I am sure we will, some continuing alignment of regulations post Brexit, the deeper test of proportionality will not be considered and applied by government or public authorities unless they know that the ultimate sanction of striking down is available to the court. I beg to move.
Lord Wallace of Tankerness (LD)
My Lords, I shall speak to the amendment in the name of the noble Lord, Lord Foulkes of Cumnock, also subscribed to by my noble friend Lady Bowles. The amendment is primarily a probing one, to seek clarification from the Government on what they are seeking to do here. Paragraph 2 of Schedule 1 states:
“No general principle of EU law is part of domestic law on or after exit day if it was not recognised as a general principle of EU law by the European Court in a case decided before exit day”.
So if one allows for the double negative, it rather suggests that, if it was a general principle of EU law that had been determined by the European Court in a case before exit day, it will continue to be part of domestic law. Having reached that point, the following paragraph says:
“There is no right of action in domestic law on or after exit day based on a failure to comply with any of the general principles of EU law”,
and that no,
“court or tribunal or other public authority may, on or after exit day … disapply or quash”—
and so forth.
I am intrigued about why, having apparently established that there is a general principle of EU law that becomes part of our domestic law, when what is given away with one hand is taken away with another, one is not allowed a remedy based on that general principle of EU law. It would be helpful if the Government could clarify that.
The matter was raised in the report of your Lordships’ Constitution Committee, which at paragraph 117 of its report quotes Professor Alison Young, who wrote:
“Schedule 1 to the Bill makes it clear that ‘there is no right of action in domestic law on or after exit day based on failure to comply with any of the general principles of EU law’ … This prevents claims of the nature found in Benkharbouche, where the Charter was used independently from other provisions of EU law. … But claimants will still be able to rely on general principles of EU law, which protect fundamental rights. They will not be able to use these general principles on their own, but they will still be used to interpret EU-derived law, which then in turn could be used to disapply legislation. For the claimants in Benkharbouche, the stronger remedy currently found under EU law for the protection of fundamental rights will disappear”.
Again, I seek clarification from the Government as to why they believe that these protections should disappear as currently found in EU law. Indeed, the committee in paragraph 120 concludes:
“The effects of excluding the Charter rights, retaining the ‘general principles’, but excluding rights of action based on them, are unclear … We recommend that the Government provides greater clarity on how the Bill deals with the general principles and how they will operate post-Brexit”.
I sincerely hope that the noble and learned Lord will take the opportunity when replying to the debate to respond to that recommendation from the Constitution Committee and give us a clarification.
There was also one specific point, on which I would ask for a view from the Government Front Bench. The provision in paragraph 3 is:
“No court or tribunal … may, on or after exit day … disapply or quash any enactment … because it is incompatible with any of the general principles of EU law”.
I assume that that would mean to any enactment pre exit, which could of course include an Act of the Scottish Parliament. Therefore, would the provision in paragraph 3 prevent any challenge being made to an Act of the Scottish Parliament passed before the exit day on the grounds that it was outwith the legislative competence of the Scottish Parliament because it was incompatible with those general principles, but not on the grounds that it was incompatible with any other pre-exit European Union law?
In other words, if other EU law had been satisfied but there was still a problem or it was still not compatible with EU principles, would an action that had been raised before exit day on the grounds that it was incompetent have to fall because no court could make a determination of it because of this paragraph? Some clarification on this point would be welcome. It would appear that a principle is established, but not the remedy that might go with it.
Lord Pannick
My Lords, I have a similar question for the Minister. In paragraph 1(1) of Schedule 1, we are told:
“There is no right in domestic law on or after exit day to challenge any retained EU law on the basis that, immediately before exit day, an EU instrument was invalid”.
I understand why that should be so, by reference to EU law principles, because at the moment you cannot challenge, in our courts, the validity of an EU instrument; you have to go to the Court of Justice. I am not sure whether the provision in paragraph 1(1) prevents, after exit day, a challenge to a provision of retained EU law brought by reference not to EU law but to common law principles. For example, are challenges on the grounds of legal certainty, the presumption against retrospectivity, or proportionality, which has already been mentioned, prevented by paragraph 1(1)?
Lord Faulks (Con)
Would the noble Lord agree that proportionality now seems to be part of UK law, notwithstanding what the noble Baroness, Lady Bowles, said?
Lord Pannick
I do not think that the courts have accepted that proportionality can be a challenge by way of judicial review where you are not raising an issue of EU law or convention law—but we have come a very long way towards recognising proportionality as a principle of the common law. That is one reason why I am asking this very important question. I simply do not know whether you can challenge retained EU law after exit day by reference to traditional common law principles.
One reason why this matters is that the Supreme Court, in the HS2 case, suggested that this might be possible under existing law. As was raised in the debate last Monday, we should also bear in mind that, under Clause 2, retained EU law includes statutory instruments that do not owe their legal basis to the European Communities Act. They include statutory instruments enacted through other mechanisms, albeit that they are linked to EU law. At present, one can challenge those instruments by reference to traditional common law principles. Therefore, if Clause 1(1) were intended to prevent such a challenge after exit day, it would be a significant change in the law.
Lord Mackay of Clashfern (Con)
Are these questions affected by the proposal to make this particular branch of law statutory? In that case, certain principles of our constitution might cause some difficulty.
Lord Pannick
The noble and learned Lord is absolutely right. If retained EU law were to be categorised as primary legislation, such challenges could not be brought. But the Minister resisted that suggestion in our earlier debate. I am concerned with the Bill as it is at the moment. What is the Government’s intention in this respect?
Lord Goldsmith (Lab)
My Lords, that short exchange has demonstrated how complicated this area is and how important the general principles of EU law are in it. It is, perhaps, late at night to be discussing this but it is extremely important because of both the principles and the way they operate. If one looks at it in this way, and takes the Government’s intention not to take away rights as a part of this process, one has to recognise that the architecture which provides rights at the moment is quite complicated. As a commentator has said, there is no single, simple answer to restoring the position in the light of what the Government propose to do.
Amendment 41, which stands in my name, follows the principle the noble Baroness, Lady Bowles, initiated by saying that the general principles of EU law should continue to be capable of giving rise to rights which can be enforced by our courts. The point has already been made that there is a difference between these general rights existing as a way of interpreting other rights—as an interpretive technique—and giving rise to freestanding rights themselves. Paragraph 3 of Schedule 1 prevents any action being founded in contravention of one of the general principles or rendering any Executive act unlawful or disapplying any legislation, including secondary legislation, on the grounds that it offends these general principles.
The general principles of EU law have been critical to a number of legal decisions relating to people’s rights. One of those often cited is the case of John Walker, who brought a case for equal protection in pension rights for his same-sex partner, a claim upheld by the Supreme Court which recognised that prohibition of discrimination on the grounds of sexual orientation was a key principle of EU law. As I apprehend it, without that the case would not have succeeded.
The principle of effectiveness of remedies has also been relied upon. When the Supreme Court struck down employment tribunal fees that disproportionately affected disadvantaged women and low-paid workers, the principle of effectiveness of remedies was relied upon. Cases concerning caps on compensation and equal pay cases have depended upon the general principle that we find in the EU principles. The amendment standing in my name and that of the noble Baroness, Lady Bowles, seeks to enable those general principles to continue to have that effect in our law. It is important that they do for a couple of other reasons. Take, for example, something that was raised in the other place. What if there is a principle of EU retained law which is deficient, defective, does not operate properly or is disproportionate? Without being able to rely upon the general principles of EU law, it may be that all the court could do if faced with that would be to say that either that principle or that particular Act or that particular piece of law, though deficient or defective, has to continue to operate because there is no principle by which it can be struck down, and that would be a loss.
The other reason goes back, I am afraid, to the debate that we had last week on the charter and the Government’s assertion that the charter is not necessary because all the rights are otherwise protected under our law. Of course, at the time the charter was drawn up we were still a member and, in many people’s minds at least, were expected to continue to remain a member of the European Union with all that that implied, including the continued application of general principles. But if one looks—
Lord Goldsmith
If the noble Lord will allow me to make this point, he can then, of course, intervene. If one looks, as we did briefly last week, at the reasons given by the Government in their right by right analysis for why certain rights would, according to them, continue to exist, we see—I take this from the JCHR’s analysis—that 16 out of 50 of the rights are based, in part at least, on the general principles of EU law. If the general principles of EU law have no more value than as an interpretive tool, that principle would disappear. That means that those rights that the JCHR saw could continue to exist and give rise to rights only because of the general EU rights.
Lord Faulks
When we were having the debate about the charter, I specifically asked the noble and learned Lord whether principles which were referred to in the charter were actionable or not, and he said that in his contention, they were not actionable. I am not simply trying to make some forensic point, but I seek clarity from him as to why in that context he said that the principles were not actionable—I can well understand his answer, because principles are rather difficult to identify as regards a clear breach, for example—but he now says that the Bill is wrong and that principles should somehow be actionable.
Lord Goldsmith
I am grateful for the question, because it enables me to clarify that point. There are two sorts of principles. I was talking in answer to the noble Lord’s question last week about the principles which are contained in the charter itself. The charter says that it is a charter of rights and principles, and the principles there—it is not that easy to identify which are principles and which are not—are not actionable in themselves. They may become actionable, because as they are aspirational tools, they are then implemented into law and are actionable at that stage. The principles we are talking about here are different. These are the general principles of EU law, which are, for example, the principle of legal certainty, the principle of proportionality, and the principle of non-discrimination. These are different in that sense; they are general rather than specific principles, and they are actionable at the moment. That is why the Walker case I mentioned gives rise to a remedy, as did the other cases where the Supreme Court struck down tribunal fees as being disproportionately high for particular categories of workers.
That is why we believe it is important to keep this. It is one element of the architecture to retain rights. I remind noble Lords that the Prime Minister made it clear that the intention was that rights would continue the same the day after exit as the day before. To remove general principles in this way, and the ability to rely upon them, will fail to keep that promise. This amendment also—it has been referred to already—specifically proposes that the general principles of EU law should include those which are contained in Article 191 of the Treaty on the Functioning of the European Union. Those are environmental principles of huge importance: the precautionary principle, the principle of polluter pays and the principle for preventive action. Those principles and the others I referred to need to continue to operate to keep in place the rights that people enjoy at the moment.
The Advocate-General for Scotland (Lord Keen of Elie) (Con)
My Lords, I thank noble Lords for their brevity.
Amendment 40ZA, in the name of the noble Baroness, Lady Bowles, seeks to ensure that challenges to validity could continue on general principles of EU law grounds. I will address concerns raised on general principles in more detail later. First, Schedule 1 generally ends the ability to bring challenges on validity grounds to what will become retained EU law after we leave the EU. We recognise, however, that in some circumstances, individuals and businesses may be individually affected by an EU instrument. For example, a decision of an EU institution or body may be addressed directly to an individual or business. After exit, they would continue to be able to challenge such decisions—in so far as they apply in the EU—before the CJEU, and to have them annulled. Of course, the converted form of the decision would however remain in force within the UK as retained EU law.
The noble Lord, Lord Pannick, asked whether paragraph 1 of Schedule 1 would, after exit day, prevent a challenge to a provision of retained EU law by reference to common-law principles. I understand that the answer is no, it would not, and it is not intended to do so. I hope that that meets the position that he raised with me a moment ago.
Domestic courts currently have no jurisdiction to annul an EU measure or declare it invalid, and we do not believe it would be right to hand them a new jurisdiction which asks them effectively to assume the role of the CJEU in this context. This amendment would effectively ask our courts to consider whether the EU acted incompatibly with the general principles when it made an EU instrument. Generally speaking, this is a function that we do not consider it appropriate to confer on domestic courts.
Therefore, although I appreciate the points raised by the noble Baroness, the amendment would undermine the Government’s stated policy of a clear exclusion of both validity challenges and general principle challenges provided for within Schedule 1. However, we recognise that there might be some limited circumstances in which it would be sensible to maintain the ability to challenge retained EU law on validity grounds. The Bill therefore contains a power set out in paragraph 1(2)(b) of Schedule 1, to which the noble Baroness alluded, which would enable the Minister to make regulations providing for a right of challenge in domestic law to the validity of retained EU law in specified circumstances.
Sub-paragraph (3) sets out that those regulations may provide that a challenge which would previously have proceeded against an EU institution may, after exit, proceed against a UK public authority, because of course there would be no EU institution against which it could be directed. I seek to reassure the noble Baroness that the word “may” is there as a precautionary term lest, in the context of trying to make such a regulatory power, it be perceived that there is no easily identifiable body against which the matter can be directed. However, the intent is that it should be possible to proceed against a public body in those circumstances.
Lord Beith (LD)
Can the noble and learned Lord envisage the circumstances in which such regulations would be made? Will Ministers have to decide between now and exit day a category of matters for which such regulation is to be provided, or are we to await a case coming up which ought to have been the subject of regulations which are then made? That surely cannot be possible.
Lord Keen of Elie
With respect, it is a precautionary power and it is intended that, where the circumstances arise, the Minister will address himself to those circumstances and contemplate the making of appropriate regulations.
Lord Pannick
Perhaps I may suggest to the Minister a circumstance in which this might arise. The day after exit day the Court of Justice gives a judgment saying that a provision of EU law is invalid. Nevertheless, that provision will be part of retained EU law—it will be part of our law even though it has been abolished in the EU. That might be a circumstance in which the Minister wishes to act.
Lord Keen of Elie
I fully acknowledge that that is most certainly a circumstance that could arise. Of course, one might address that circumstance by Parliament legislating to reflect the outcome of that post-Brexit decision. However, I fully acknowledge that, depending on the way in which one constructs the departure on exit day, one might find that what one has retained as EU law ceases to be EU law almost immediately after one has left the EU. I believe that that has been acknowledged on a number of occasions. Indeed, it could lead to the development of two parallel jurisprudences—one for retained EU law and one for EU law. That is an inevitable outcome of our decision to leave the EU but to retain in our domestic law that which was EU law at the point of our departure. I fully acknowledge that, but it might also be a circumstance in which potentially one would seek to exercise the exceptional regulatory power that is referred to.
Reference was made to Amendments 41 and 42, tabled by the noble and learned Lord, Lord Goldsmith, and the noble Lord, Lord Foulkes, which seek to retain indefinitely in domestic law rights of challenge based on the general principles of EU law. If agreed to, these amendments would empower domestic courts to quash administrative actions or secondary legislation or, indeed, even go as far as disapplying an Act of Parliament on the ground that it breaches one or more of the retained general principles of EU law—that could take place long after we have left the EU. That is why we have to have a point in time at which we have certainty as to the scope for such challenges, and that is reflected in the schedule.
As the noble and learned Lord, Lord Goldsmith, acknowledged, Amendment 41 would go even further. It seeks to set out an ostensibly broader definition of which general principles are to be retained under the Bill. In that context, he alluded to Article 191 of the TFEU, which deals with environmental issues. I take issue with him as to whether the polluter pays principle and the precautionary principle are both now accepted as general principles of EU law. I would suggest that there is considerable doubt as to whether the former, in particular, constitutes what is recognised in EU law as a general principle, so I have some difficulty with that amendment.
I come now to Amendment 63, also tabled by the noble Baroness, Lady Bowles. It is, I apprehend, intended to retain this right of challenge but solely for the principle of proportionality, as she indicated, and specifically including where retained EU law is to be treated as primary legislation. It would also appear to permit the possibility of a challenge on the basis of invalidity of EU law, as well as judicial review of such legislation. It is our position that the general principles of EU law, such as proportionality, non-retroactivity and fundamental rights, will be kept in our domestic law, but in order to assist in interpreting retained EU law and not to give rise to additional stand-alone rights. Whereas some general principles are now set out expressly in EU treaties, the general principles were those that were first recognised by the European Court of Justice. They are essentially judge-made and determined as principles on the basis of case law. It is those principles that we are dealing with.
I come back for a moment to Amendment 41, which goes beyond just the issue of proportionality. It would undermine the approach that we are seeking to take if we were to pursue it. In particular the inclusion of Article 191 in the amendment risks going further than the existing principles that are, as I say, set out in EU law and consequently in UK law today.
Lord Goldsmith
Leaving aside Article 191—we can argue about that and there is a decision that appears to demonstrate the point: the case of Artegodan, where the court appeared to be willing to extrapolate from the precautionary principle a general principle of EU law—does the Minister accept that, so far as the other general principles of EU law are concerned, to exclude them from the ability to found a cause of action and not just be an interpretative tool would be a diminution of the rights that people currently have and would include a diminution of many of the rights that the Government are saying are already protected under English law?
Baroness Ludford
So that the Minister does not have to bob up and down, may I also ask him a question? He talked about our approach in this Bill. That leads me to reflect on how far the approach in this Bill fits, for instance, the Prime Minister’s speech on Friday, in which she envisaged not only strong commitments in the area of trading goods but binding commitments in competition law. The noble and learned Lord talked earlier about how there would be EU law and then retained EU law in this country, the interpretation of which could diverge. How will the Prime Minister’s commitment to binding commitments in some areas to stay fully aligned with EU law be reflected in this construction of the Bill? If we diverge, would we then have to have domestic legislation to bring us back on track with the EU?
Lord Keen of Elie
The noble Baroness is confusing two distinct issues. The Bill is about the retention in domestic law of EU retained law at the point of Brexit. The Prime Minister was addressing our future relationship with the other 27 members of the EU in the context of our seeking to align in some areas and not align in others. This will be the subject of negotiation which is about to commence and will apply in agreeing a transitional period, and then our post-transitional period relationship with the other EU 27. They are two distinct issues.
On the noble and learned Lord’s observation about the general principles, these are retained as an interpretive tool. It may impact upon the matter of remedies but not on the issue of rights. One has to bear in mind that distinction.
Reference was made by the noble and learned Lord, Lord Wallace, to the case of Benkharbouche, which was a classic example of where the issue of rights had to be distinguished from the issue of remedies. There were rights arising under Article 6 of the convention but there was an also an issue as to whether or not certain principles arising by reference to the charter were also in play. I believe it was Article 46 of the charter that was referred to by Lord Sumption, who delivered the opinion of the court. The point was that while the rights could be identified by reference to the convention or the charter, the particular remedy there arose by reference to the charter. I acknowledge that that is the case.
Lord Wallace of Tankerness
Is that not part of the point? An expectation has been built up by what has been said—that, on Brexit date plus one, people will be in the same position. The noble and learned Lord is admitting that they will not be in the same position because they may have rights but they will no longer necessarily have remedies.
Lord Keen of Elie
They will have rights but they may not have the same remedy, but that is quite distinct. We are talking about maintaining rights at the point when we leave.
Lord Goldsmith (Lab)
Does the noble and learned Lord accept that Mr Walker would not have the same rights? Those are rights purely based upon EU general principles and nothing else. Does he not accept that in that case, at least, the rights would not be there?
Lord Keen of Elie
No, I do not accept that. I certainly do not accept that that is the position under reference to the Walker case. However, I am content to come back to the noble and learned Lord on that question on the Walker case but I do not accept that it falls in the way he indicates.
Perhaps I can make some progress. We remain of the view that after we cease to be a member of the EU there is a real risk of allowing general principle challenges to continue indefinitely, which is what these amendments would allow. Simply put, this would not be in keeping with our undertaking—our promise—to return sovereignty to this Parliament.
Of course we are aware of the concerns that have been raised, particularly about the impact on those whose cause of action precedes exit but who are unable, for whatever reason, to issue proceedings before some change takes effect. That is why we brought forward amendments on Report in the other place to provide reassurance that where a breach of the general principles occurred or gave rise to a potential claim before exit day—that is the important point—individuals and businesses will still have the opportunity to make certain claims based on the breach of the general principles of EU law for a period of three months after exit date. That period of three months after exit date is taken to mirror the period normally allowed in the context of applications for judicial review. That strikes a balance between ensuring that, on the one hand, individuals and businesses will still have the opportunity to bring these challenges and, on the other hand, delivering the result of the referendum and maintaining our parliamentary sovereignty.
While we believe that the compromises we have already made on the general principles of EU law have improved the Bill, the Government are looking again at these issues to see whether this part of the Bill can be improved in keeping with some of the concerns that have been expressed. That is because we understand the complexities of the issues that arise in the context of Schedule 1 and we are looking at those at present.
With that, I hope that the noble Baroness will see fit to withdraw her amendment.
Lord Keen of Elie
As the noble and learned Lord rises to his feet I am reminded of his reference to whether paragraph 3 includes Acts of the Scottish Parliament passed before Brexit day and not within competence. If they are not within competence, they are not law.
Lord Wallace of Tankerness
Perhaps I may explore that with the noble and learned Lord. The point I was making was that if the Acts were passed before Brexit day and they were challenged on the basis that the alleged incompetence was that they were not consistent with the general principles of EU law, would that challenge fail on Brexit day plus one, because it would mean that the court could no longer determine it?
Lord Keen of Elie
In the event that an Act of the Scottish Parliament was enacted beyond the competence of the Parliament, it would not and would never have been law. That is the position pursuant to Sections 28 and 29 of the Scotland Act 1998. I hope that that clarifies the point, but if I have misunderstood the noble and learned Lord—
Lord Keen of Elie
I am quite prepared to discuss the point with the noble and learned Lord because it may be that we will look more closely at those provisions in the Scotland Act in the very near future.
Baroness Bowles of Berkhamsted
I thank the noble and learned Lord for his response and all noble and noble and learned Lords who have spoken in this debate. I think that it has been confirmed that it is every bit as bad as I thought it was, and in fact I am not even sure that it is not worse. We now seem to have some kind of parallel jurisprudence which appears not to be actionable either under general principles or under common law, so we have created a kind of lacuna that cannot be approached. I also reject the fact that we would not be going on indefinitely applying general principles because the whole point is that we have the law as it is in the snapshot until such time as we change it. While I understand that one would not necessarily want to go in for a sudden wholesale redrafting of things, as amendments are necessary—especially if we avail ourselves of some of the mechanisms we have talked about where an Act of Parliament is going to be needed either because it is primary legislation or because we have put that on as a safeguard—these things are going to be revised and updated. I am still concerned and it is something that along with others we might want to return to on Report. However, for now, with the leave of the Committee I shall withdraw the amendment.
Lord Davies of Stamford
Lord Davies of Stamford
My Lords, it is not easy to generate a great deal of excitement at this time of night about an item of jurisprudence, but I rise to speak about the Francovich principle, which is extremely important both as a general principle—in fact, I do not think that there is any more important principle in our legal system—and as an instrument for driving ever-better standards of governance and of output by the public sector. Let me explain this briefly.
The Francovich case, as I think noble Lords will know, and certainly all noble and learned Lords will know very well, is a piece of jurisprudence dating originally from 1991 that has been with us for 25 years. It has become very much part of the scene, and I think that without exaggeration I can say that it is part of the political and legal culture that we have created in the European Union over that time. It has been extended by jurisprudence so that it covers states, public authorities and agencies as well as local government, and more recently it has also been extended to cover the private sector. What the principle says is that where an individual, a corporate body or a state body has been in breach of union law and corporate or private individuals have suffered thereby, they have the remedy that the courts concerned are able to impose damages proportionate to the losses incurred by those who have suffered as a result of the bad governance concerned.
When I say that it is a very important principle and a very important pragmatic instrument, let me explain that. Surely the very important principle here is that the state must be subject to the law. If I go out and break the law, I can be arrested, charged and eventually fined, or even sent to prison in certain cases—and I can certainly be sued for civil damages for negligence, breach of the law et cetera. If, however, state bodies are immune from the law, the relationship between the citizen and the state is very different from the one we like to think exists in a constitutional democracy. That principle is very important and it will cease to be enshrined in law if we do not amend the Bill as it currently stands.
The valuable, pragmatic instrument to which I referred is simply that the existence of the Francovich judgment, which—as the Library told me—has been cited by over 300 cases since and has played a major part in many decisions. If I had more time I would digress on the bad planning decisions that have been reversed and the beaches and rivers that have been cleaned up as a result of the working of this principle. The principle drives better government the whole time.
I dare say that the Government, in their contribution to the debate, will say, “It doesn’t matter because when we leave the Union we can fall back on judicial review”. Judicial review is a creation, of course, not of European jurisprudence but our own jurisprudence; it is a very valuable principle and a valuable achievement over the past 50 years. In my view, as I have already argued, it is not quite as important or valuable as the Francovich principle, but nevertheless it is a splendid thing. There is a big difference between judicial review and Francovich, because under judicial review, you cannot get any damages. You can spend £3 million or £5 million—I have no doubt that noble and learned Lords will tell me any amount of money you want—by running the case, but you will not get the damages that you would get under the Francovich case. All of us who have been involved in government know that there is nothing more terrifying for any Minister than the prospect of being exposed as responsible for the loss of money in their department. Indeed, the political life expectancy of any Minister who finds himself in that position is frankly a matter of hours rather than days. So the risk of having damages awarded against one is a very real threat to anybody in a position of responsibility—chief executive of the local council, chief executive of an agency, a Minister or whoever—and it makes everybody stop to think extremely carefully. That is what we are talking about in the amendment.
Going through the Bill, all of us face a great difficulty. We have a choice to make and I do not think that any one of us is completely clear on how we should make it. Hopefully, we will have taken a decision by the time the Bill emerges from Report, but it may take a little while yet. The choice is this: do we believe the Bill or the Government? If we believe the Bill, all these rights and remedies and protections are disappearing. That is what the wording of the Bill before us says—that Francovich has been abolished—quite unambiguously and clearly. In other parts of the Bill, as we have seen today and on other occasions in Committee, it is the same story. We were talking earlier about family rights and labour rights and so forth, and it looks as though some of those are not being protected—even animal rights are not being carried forward on the same terms, with the wording being changed and softened and so on. There are subtle ways in which rights and protections are being withdrawn. That is what you get from reading the Bill.
What is more, the Government continually tell us that all the Bill does is make sure that there is no legal uncertainty at the time of Brexit and that we will simply carry forward retained law into British law. In fact, there is an agenda in the Bill that is quite blatant to anybody who reads it. It is not a hidden agenda; it is quite obvious. It is a kind of power grab by the Executive at the expense of the citizen. The European Charter of Fundamental Rights is going, which is clearly a loss to the citizen. Again, the Executive cannot have the charter prayed in aid against them.
The most concerning aspect is of course the Henry VIII clauses that we have not yet come to, which constitute an extraordinary power grab by the Executive at the expense of Parliament. We have it here again with the Francovich issue. Again, it is a power grab by the Executive, who want to abolish this because it is a trial and a problem for them and the state. They have to perform or else they have to pay up and get humiliated. That is what we see.
The Deputy Chairman of Committees (Lord Faulkner of Worcester) (Lab)
My Lords, I must advise the Committee that if this amendment were agreed to, I would be unable to call Amendments 44 or 45 for reasons of pre-emption.
Lord Carlile of Berriew (CB)
My Lords, for those of us who have real enjoyment in the law, a nice bit of law at three minutes past midnight is rather like a comforting, calm, creamy cup of cocoa, but I recognise that not everybody is of the same view. With that in mind, I propose to elide in the remarks I am going to make comments on Amendment 45, which appears in my name and that of the noble Lord, Lord Lucas, and on Amendments 48 and 50, which appear with the same names. That should save time in a few minutes because I understand that we intend to complete that group as well.
These amendments are designed to retain the so-called Francovich principle. I congratulate the noble Lord who has just spoken on summarising it very well. I will add a little bit of flesh on it because I wish to try to tease out of the Minister a welcome response to those of us who seek to preserve at least part of the Francovich principle, although I would happily pass to him the burden of perfected drafting.
In the Gina Miller litigation, in which the noble and learned Lord and my noble friend Lord Pannick played starring parts, the Government in their submissions place considerable weight on their intention to enact what was then called a “great repeal Bill”. As the Supreme Court understood it, that Bill would—and this is a quotation from the majority judgment at paragraph 34,
“repeal the 1972 Act and, wherever practical … convert existing EU law into domestic law at least for a transitional period”.
Surprisingly, in relation to the Francovich principle, there has been no conversion and no transition. I ask the Minister to explain whether that really is the position that the Government wish to maintain.
The Francovich principle is a principle of existing EU law which requires damages to be available where three conditions are met: first, that the rule infringed was intended to confer rights on individuals—I am sure that we would all applaud that; secondly, that the breach was sufficiently serious to give rise to a legal action, which I am sure we would also applaud; and, thirdly, that there was a direct causal link between the breach of the obligation resting on the defendant and the damage sustained by the injured party, and I am sure that we would all applaud that, too. Perhaps the Minister would explain why he wants to get rid of that principle.
To provide a little more explanation for the fascinated non-lawyers here, who may just about be in a majority—
Lord Carlile of Berriew
I always listen with great respect to the Government Chief Whip, especially when he sympathetically allows us to debate these issues after midnight.
In Francovich, workers who suffered damage when their employer became insolvent were entitled to compensation under an EU directive which required member states to secure their protection. Since Italy had failed to implement the directive, the individual workers brought a claim before their national courts for compensation from the state for the damage they had suffered due to this failure, and I think that we would all applaud that, too.
State liability is enforced not through the European courts but through national courts, thus the ECJ stipulated that national procedures should determine how state liability is enforced. The procedures for claiming damages from the state before national courts must comply with the principles of equivalence—that is, with the procedures available for comparable claims for damages—and effectiveness, to secure that EU law as well as national law is respected. As long as it respects these two principles, the member state can prescribe its own procedures for claims as regards, for example, proof and time limits —so it is hardly imposing wicked European ideas on the national courts, since they are left to enforce the principles concerned.
The Francovich principle has led to some significant legal actions; perhaps the best known in the UK is the Factortame litigation, which contained five cases concerning fishing rights.
What is the problem with the Bill? It is confusing. I quote from the summarised views of commentators more expert than me on this subject. It is said that Clause 6(1) removes the right to rely on EU law and obtain a reference to the ECJ after the date of exit. Paragraphs 3 and 4 of Schedule 1 plainly remove the ability to rely on EU law or utilise the Francovich principle after the date of exit. Or do they? I ask that because paragraph 27(3) of Schedule 8, which all noble Lords will have been reading carefully in preparation for this short debate, makes it clear that cases begun prior to the exit date are not subject to the restriction that I have described and therefore can continue to rely on Francovich.
As was pointed out by Dame Cheryl Gillan in another place on 14 November last, the Bill is contradictory, in that it both allows continued reliance on Francovich in cases commenced before the date of exit but also removes that right. That appears to mean that a litigant in a case started before the date of exit, and who has a legitimate expectation that the law will not change retrospectively and that he or she will be able to rely on Francovich, will lose that expectation. If I am wrong in that, I am not the only one and I would like a correction, please. All litigants have a legitimate expectation to have their cases heard under the rules applicable not at an arbitrary time, such as the date of exit, but at the time of the breach of the law concerned. This includes EU law at that time, if it was applicable, and on the face of it, the right of a reference to the ECJ if they are dissatisfied. The purpose of the two groups of amendments is to achieve something much simpler, clearer and more just than the conclusion if the complaints I have described are correct.
I respectfully suggest that if a relevant cause of action accrues before the date of exit, the claimant should be able to pursue that cause of action. That would be their normal litigation right, and exit should not retrospectively remove that normal litigation right. As the Bill stands, because of ambiguity there is a risk that some or all Francovich claims, unless they have already been completed, will be extinguished. Surely, that would be an incorrect and unintended consequence. Plainly—and I will deal with this in a moment—there are some concerns about the potential role of the ECJ.
Lord Faulks
One of the points I was going to make concerned the continued role of the ECJ, but while I am on my feet, I entirely understand the noble Lord’s points about transitional provisions, but will he clarify to the House whether his support would go as far as the noble Lord, Lord Davies, in having a continuing Francovich?
Lord Carlile of Berriew
No, I would not go so far as the latter part of the speech of the noble Lord, Lord Davies. I recognise that if we leave the European Union, as we are doing, we have to have the transitional arrangements that were promised and that were referred to by the learned judges in the Supreme Court, on the basis of submissions that may well have been made by the noble Lord himself.
What I suggest to deal with the ECJ problem is one of two alternatives. One is to allow the ECJ jurisdiction to continue for the very small number of cases likely to arise. I recognise, of course, that that will attract political problems that might better be overcome by a more pragmatic solution. The pragmatic solution is to recognise and clarify that the United Kingdom courts, in dealing with such cases, should apply normal, comparative law principles; the sort of thing that we lawyers are accustomed to when we cite, for example, Australian or Canadian cases before the senior courts. This would mean that the courts of the United Kingdom, in dealing with such cases, should have due regard to ECJ decisions on similar and analogous matters. This would fall, as I say, within the ordinary principles of comparative law, whereby the United Kingdom courts give due weight to useful and relevant decisions in other jurisdictions. Thus we would have at least analogous law applied to the residual Francovich cases. We would have a right to make a claim on the basis of the date when the claim accrued, even if it is not yet quantified and not yet pursued, and the unintended consequences of retrospectivity would be avoided. In my view this would accord with sound legal principle.
I urge the Minister, even at this late hour, to say that he will return to the House with suitable and welcome government amendments for the clarification and preservation of what are proper bases for action.
Baroness Altmann
My Lords, I support Amendment 43, moved by the noble Lord, Lord Davies, and supported by the noble Lords, Lord Foster and Lord Foulkes, and to which I have added my name. I also support the thrust of Amendments 44 and 45. I will try to be brief in light of the hour.
Amendment 43 aims to ensure that the Government maintain their pledge not to water down rights if we leave the EU. I do not see why the Bill needs to explicitly remove the right to Francovich protection, which allows citizens—individuals and small businesses—to sue the Government for damages resulting from past breaches of EU law. I hope that my noble friend the Minister will reconsider the removal of this protection; otherwise, we will lose a key last-bastion protection for citizens and small businesses, which allows them some remedy against harm caused to them by government policy.
The Government say that people will still be able to sue in the UK courts, but in practice this power is not normally exercisable. I have personal involvement in this area and have seen how difficult it is to mount a legal challenge against the Government. A judicial review must be launched within a very short timescale, which most ordinary individuals would struggle to meet. When I was helping the 150,000 members of final salary pension schemes, including Dexion and Allied Steel and Wire, who had lost their entire company pension and part of their state pension as a result of flawed laws which failed to properly protect their pension rights when their company became insolvent, despite being obliged to do so by the EU insolvency directive, I had to find lawyers who would work on a no win, no fee basis. Even then, the Government refused to agree not to pursue the claimants for their costs if we lost. These poor claimants faced losing all their assets, including their home, when taking the Government to court. Realistically, most people simply could not take such pressure.
It is unreasonable to remove the last-resort protection that such people have, which would allow them to appeal to the EU courts under Francovich protection for a ruling which would not risk the same costs and difficulties as a UK court action against the Government. If an EU directive was implemented wrongly, and the Government had not introduced sufficient protections, despite being obliged to do so, the amendment would ensure that the Bill does not remove people’s last resort to redress. I hope that the Government will agree to this amendment or produce their own version.
Lord Foster of Bath (LD)
My Lords, I have added my name to Amendment 43, and I support Amendments 44 and 45. I begin by disagreeing slightly with the noble Lord, Lord Carlile. I suspect that I am in a minority: those of us who are not lawyers.
However, I am very conscious that during our deliberations so far we have heard many times that the Bill is intended to ensure that,
“as a general rule, the same rules and laws will apply after we leave the EU as they did before”.
About an hour ago we heard a very powerful reiteration of that from the noble Lord, Lord Duncan, who made it very clear that he believes what the Government seek to achieve. Yet that has to be put alongside the continuing concern in the other place and in many parts of your Lordships’ House that somehow or other Schedule 1 provides the Government with a get out of jail free card—an opportunity to have a series of measures which appear at least to curtail some of the legal rights and remedies we have enjoyed as a result of our membership of the European Union. A glaring example of that was well illustrated by the noble Lords, Lord Davies and Lord Carlile, and the noble Baroness, Lady Altmann, and is contained in paragraph 4 of Schedule 1 in relation to Francovich.
As the noble Lord, Lord Carlile, rightly pointed out, Francovich is not just some right whereby anybody who feels slightly aggrieved by their Government not properly implementing some piece of EU legislation can immediately start action. Three clear criteria have to be met and have already been laid out: that there are rights conferred on an individual, that the breach was sufficiently serious, and that there is a clear causal connection between the breach and the damage sustained by the individual.
It seems clear, at least to me as a non-lawyer, that if paragraph 4 of Schedule 1 remains in the Bill, no retrospective claims under Francovich will be permitted, and certainly not if the proceedings have not been started before exit. In those cases, individuals will lose their ability to claim damages against the state for failure to implement EU laws and directives issued pre-exit. This would mean that the victim of a government failure to correctly implement an EU law must have started action before exit day, but that will not always have been possible and would seem contrary to natural justice. Access to justice, including the ability to challenge the actions of the state before a court of law, is central to the rule of law. If paragraph 4 of Schedule 1 remains as it stands, it seems that access to justice for some people will be denied.
I was in your Lordships’ House some 10 days ago when we heard during exchanges on the Statement on air quality that the High Court had ruled that the Government’s air quality plan, designed to tackle nitrogen dioxide in the air, was unlawful. The Court ruling said:
“It is now eight years since compliance with the 2008 Directive should have been achieved. This is the third, unsuccessful, attempt the Government has made at devising”,
an air quality plan,
“which complies with the Directive and the domestic Regulations."
The judge, Mr Justice Garnham, added,
“In the meanwhile, UK citizens have been exposed to significant health risks”.
It may be that some individuals will wish to argue, under the rule of Francovich, that they have suffered damage and deserve compensation because of the Government’s failure to implement the 2008 directive. Without Amendment 43, or some similar measure, such individuals will be prevented from seeking justice unless they submit their claim and have their case under way before exit day.
In the other place, many other examples of potential loss of access to justice under Francovich were raised. Initially the Minister there, Dominic Raab, offered assurances that:
“Individuals will not lose their ability to vindicate their rights in court after exit”.—[Official Report, Commons, 14/11/17; col. 290.]
It may be—I have no way of knowing—that he believes that to be the case because of Section 16 of the Interpretation Act 1978, which provides that,
“where an Act repeals an enactment, the repeal does not, unless the contrary intention appears ... affect any right, privilege, obligation or liability … accrued or incurred under that enactment”.
So the right to claim under the rule of Francovich post-exit would seem to depend on whether the Bill before us provides an effective and clear contrary intention. Can the Minister tell us clearly whether the Government believe that paragraph 4 of Schedule 1 provides a clear contrary intention, within the meaning of Section 16 of the Interpretation Act 1978?
Certainly, there are some other lawyers who appear very uncertain about that point. For example, the very helpful briefing from James Segan of Blackstone Chambers leads me to conclude that seeking justice by arguing that there was no contrary intention or that it had been introduced ineffectively would lead litigants into a legal quagmire, so I was slightly heartened when in the other place a little later in the deliberations the Minister changed his tune when pressed by, among others, Conservative MPs Robert Neill, Dame Cheryl Gillan and Sir Oliver Letwin. He told them that he acknowledged the importance of legitimate expectations and agreed to see whether these concerns could be addressed, at least transitorily, by regulation rather than in the Bill. I hope that the Minister can update us on progress on that thinking. He has already said in relation to other aspects of Schedule 1 that the Government are willing to do that.
I would have thought that by far the better route to securing the continuation of the rights under Francovich would be to accept Amendment 43 or something like it, and ensure that the Bill makes it clear that when the Government say that the same rules and laws will apply after we leave the EU, they really mean it.
Lord Pannick
I have two questions for the Minister. First, will he accept that the right to damages under the Francovich principle is more generous to claimants than the common law principle of judicial review under which you very rarely have a right to claim damages as you need to prove misfeasance in public office or something similar? Does he accept that Francovich is more generous? Secondly, does he accept that it therefore follows that paragraph 4 of Schedule 1 to the Bill conflicts with the Government’s purpose in bringing forward this Bill, which is to read across all existing rights that are enjoyed under EU law? If he accepts that, what is the justification for making an exception for Francovich damages?
Lord Lucas (Con)
My Lords, it seems to me that if the Government break the law, they should be judged on the basis of the law at the time that they break it and that this is not a Bill in which the Government should seek to advantage themselves by averting that principle.
Lord Leigh of Hurley (Con)
My Lords, I spoke on this subject at Second Reading in respect of the disputes that arose under the old regime which seem to me to deserve fair treatment. I am aware of instances, in particular relating to small businesses, where it could lead to a very unfair result and deprive genuine claimants of going to the EU courts. The noble Lord, Lord Foster of Bath, mentioned the note by James Segan, and it raises a question which perhaps my noble and learned friend can answer about whether as it currently stands with paragraph 27 of Schedule 8, which was mentioned, and Section 16 of the Interpretation Act 1978, there could be action under the Human Rights Act. It would be politically unacceptable, apart from anything else, to see claimants pursuing their claims if there were that interpretation.
Lord Goldsmith
My Lords, I look forward to the answers that the Minister will give to the questions asked by the noble Lord, Lord Pannick. I have Amendment 44 which deals with the timing of the Francovich claim. I can be brief. My noble friend Lord Davies of Stamford set out very well what we are talking about. The noble Lord, Lord Carlile, indicated the problems to which the Government’s approach gives rise. One can look at it this way: at the moment the Bill appears to say that if the Government were to commit an act that was unlawful—a breach of Union law, for example—before exit day, the Francovich claim could not be brought, except in circumstances where the claim had been brought before exit day. I do not see the justification for that. That amounts to whitewashing an unlawful act and, as has been said—and it seems to me to be absolutely right—it is quite inconsistent with the promise that has been made that we will have the same rights the day after exit day as the day before.
I look forward to the answers to those questions. Even if any change does not go as far as my noble friend Lord Davies of Stamford, said, it must at least apply, as the noble Lord, Lord Carlile, put it, to accrued rights, so that any act which is committed before exit day which gives rise to a Francovich claim should continue to do so.
Lord Keen of Elie
My Lords, I am obliged. Reference has been made to the Francovich principle. I am not sure there is such a principle, although there is the issue of Francovich damages, which arises from the case that was referred to in 1991. In order to put that into context, since 1991, and in the 20 years following, there have been 22—possibly up to 25—claims for Francovich damages in the UK courts. This is not some wide-ranging citizen or business right for the recovery of damages. There have been very few actual Francovich damages claims. I see the noble and learned Lord, Lord Goldsmith, shaking his head, but I invite him to study the case law.
Lord Goldsmith
I have no doubt about what the noble and learned Lord says. So why are they so worried about keeping it?
Lord Keen of Elie
I am just about to come on to that. I am obliged to the noble and learned Lord for his patience in that respect, and will endeavour to deal with matters as swiftly as I can, given the hour. The noble Lord, Lord Carlile, very correctly, pointed out the criteria that apply in determining whether or not there is a claim for Francovich damages: first, that the relevant provision of European Union law was intended to confer rights; secondly, that there has been a serious failure to implement European Union law; and thirdly, that there is a direct causal link between that failure and the loss complained of. I would not go so far as to suggest that Francovich damages are in some sense more generous than those available otherwise under the common law in this country, particularly those available in the context of judicial review. I have to point out to the noble Lord, Lord Davies, that damages are potentially available in a claim for judicial review.
Lord Davies of Stamford
The noble Lord, Lord Pannick, dealt with that point. In practice, damages are not usually available under judicial review. The general view of the public is that there is a very small chance of getting damages that way. That is the difference between that and Francovich, and it is very important.
Lord Keen of Elie
With respect, it is not. I have to say to the noble Lord that Francovich damages are a rare remedy, as I have already indicated. Damages in the context of judicial review are not so uncommon as the noble Lord was suggesting. They are available as a remedy, albeit in limited circumstances.
Lord Keen of Elie
Perhaps I can continue just for a moment. I would begin by looking at the Bill against that background. Paragraph 4 of Schedule 1 is perfectly clear in saying the right to Francovich damages is removed, because of course it is related to a breach of European Union law, and it would not be appropriate to continue—in accordance with Amendment 43—after we have left the European Union. The Bill is quite clear in saying that there is,
“no right in domestic law on or after exit day to damages in accordance with the rule in Francovich”.
To that extent, it does deal with the issue raised in the context of Section 16 of the Interpretation Act 1978.
Lord Carlile of Berriew
I take it from what the noble and learned Lord is saying that he accepts that there are existing rights to recover damages available in the British courts which the Government wish to remove. That is a breach of promise, is it not?
Lord Keen of Elie
I wonder whether the noble Lord could exercise a small degree of patience while I just complete what I have to say on this topic. But we can take as long as it takes. As I was saying, in terms of paragraph 4 of Schedule 1, the right in domestic law to damages in accordance with the rule in Francovich is removed as at exit date. There is of course a proviso in paragraph 27 of Schedule 8 in respect of claims for Francovich damages which have already been raised prior to exit date—the point that the noble and learned Lord, Lord Goldsmith, made. The potential lacuna is this: there may be accrued rights as at exit date where no claim has been made. We recognise that and it was noted in the other place. We are open to addressing that issue in order to ensure that those accrued rights are not removed by the application of paragraph 4 of Schedule 1. That is something that we are prepared to look at, as I have indicated, because we are aware of the criticism that has been made about the potential removal of rights that have already accrued as at the exit date.
Lord Goldsmith
Do I take it from that that the Minister will be bringing forward an amendment to correct this?
Lord Keen of Elie
I am obliged to the noble and learned Lord. As I say, we are addressing that issue, which we recognise, and therefore in time for Report we will be determining what our position is. I cannot go further at this stage and I am not going to commit to an amendment, but I make it perfectly clear that we recognise that there is a potential lacuna arising from the fact that while, where a claim has been made before Brexit date it is continued, where the claim has accrued but no claim has actually been made it would be lost by this process. We recognise that there is room for criticism of the legislation on that basis; I am absolutely clear about that.
In these circumstances, I recognise the force of the amendment proposed by the noble and learned Lord, Lord Goldsmith, and that proposed by the noble Lord, Lord Carlile, in order to address that issue. I would take issue with the scope of the amendment proposed by the noble Lord, Lord Davies, which goes well beyond that and would maintain some sort of claim for Francovich damages in a context quite unrelated to our departure from the EU. I underline that this would not be appropriate.
I mentioned earlier the limited number of cases in which Francovich damages have arisen. That in itself suggests that it might be a proportionate response to the amendments made by the noble and learned Lord and the noble Lord, Lord Carlile, to allow for claims that have accrued because they are potentially very few indeed. I recognise that entirely. I am not committing to an amendment at this stage but I will make the position clear by the time we reach Report. In the circumstances, I invite the noble Lord to withdraw his amendment.
Lord Pannick
Before the Minister sits down and we all go to bed, I am very puzzled by his suggestion that there is currently a right to damages in judicial review such that Francovich damages do not add anything. In what circumstances is the Minister suggesting there is a right to damages in judicial review, other than in the very rare cases where you can prove misfeasance in public office?
Lord Keen of Elie
That is one example of where a claim for damages would arise in the context of a judicial review. There are distinct circumstances in which Francovich damages will arise. The noble Lord will himself recognise that the circumstances in which you can actually establish a basis of claim for Francovich damages are even rarer than those instances in which you can establish one in domestic judicial review.
Lord Pannick
I do not accept that. It is quite clear, I suggest, that damages under Francovich are provided in circumstances where you would not otherwise get damages because you cannot prove misfeasance but you can prove that the breach is sufficiently serious and that the law was intended to confer a right to damages. That is why I suggest to the Minister that paragraph 4 is taking away something of value.
Lord Keen of Elie
In response to the noble Lord’s observations, we are dealing in the context of Francovich with the court having to find that there has been a serious failure with regard to an EU obligation, and I suggest that that is not very far from the test of misfeasance in the context of judicial review.
Lord Davies of Stamford
My Lords, I am grateful to everybody who has taken part in this interesting debate. I think that anybody listening in from outside will be impressed that we are working hard on a very serious matter at quarter to one in the morning.
Lord Davies of Stamford
Yes, not drinking cocoa, indeed—absolutely right.
First of all, I must say that the noble and learned Lord, Lord Keen, has misunderstood a number of things. One is that I think he has got it wrong on the issue of damages. The noble Lord, Lord Pannick, is representative in what he said of the great majority of legal opinion on this subject and of the experience that any of us have had—via our constituents or otherwise—in this area of the law.
The second thing is that I think the noble and learned Lord has misunderstood that the major part of the importance of the Francovich system or jurisprudence is that it is a potential deterrent to those who might be inclined to misgovern us. People know that they are subject to this particular sanction if they do, and that has enormous effect. The fact that the power is used 25 times is not negligible—28 times I think it is in this country and 300 and something times over the Union as a whole. That does not mean to say that it is without effect, or that its effect is limited to those occasions. It would be very naive to say that; its effect is created by the presence of that particular sanction and means of redress for those who have been wronged in this way.
I also do not think that the noble and learned Lord is right in saying that the whole matter of Francovich is not very important because it applies only when there are serious issues. The principle of—to put it in language that I think he will understand—de minimis non curat lex—applies to everything really, in the Roman law tradition anyway. So it is not at all surprising that it applies in this case.
I want to leave the Committee with complete clarity about this, and there are three separate issues here. One is what we do about people who have a claim, or think they have a claim, under the Francovich principle—and I continue to call it that—and it is overtaken by events because they have not litigated before Brexit or they are half way through or they have not expressed their claim or put it in at all. What happens about them? That is important, because it may only be three or four people, and we should always be concerned about justice for anybody. I do not in any way denigrate people who have taken up a lot of time to talk about their particular subject; it is a perfectly respectable concern to have. But my concern is not really with that—mine is to my mind much more significant. Going forward, do we have the Francovich principle or something like it in our own legal system, both to enshrine that principle that the state is subject to the law like everybody else, which as I say is so important, and to make sure that we have that instrument of good government, which has a real deterrent effect on the behaviour of central and local government, public corporations and, indeed, the private sector? That is very important to me.
I disagree very strongly with the noble and learned Lord, Lord Keen, when he says that the Francovich system does not make any sense when we have left the European Union, because there will not be such a thing as European law here. He is quite wrong about that; there will be retained law for decades, no doubt, until it is changed by statute—if it is changed by statute over that time. It is called retained law; it is exactly the same law. The difference may be that, whereas you could litigate under it before Brexit, after Brexit you will not be able to litigate under it at all, which seems completely unreasonable. That means the loss of remedies and rights that we currently have in respect of exactly the same laws, because they are exactly the same provisions with exactly the same wording having exactly the same effect, whether they are today on 5 March, or on 1 April next year after we have left. That is what the whole principle of retained law is, as I understand it—and I think that the noble and learned Lord knows that.
It is my concern in this amendment to make sure that, when the citizens of this country have current rights and protections, they should enjoy all those after Brexit. I thought that the Government were in favour of that principle. We heard earlier from another Minister, the noble Lord, Lord Duncan, that he believes that that is the case and favours that principle—and I think that that principle is enormously important.
Then there is the third issue, which I raised—and it is probably not the last time that I shall raise it in this House. The experience of Francovich is such that I believe that it should be carried forward into the whole corpus of law in this country, Scots law and English law. We continue to have these rights and these remedies. I believe their jurisprudence in this case to be a considerable advance of civilisation in the European Union over the last 25 years; there have been many such advances and, if we are going to carry forward the assets that we take over rather than throwing them away on Brexit, we should make sure that we carry forward this one. That is not a matter for this Bill; what is a matter for this Bill is the second point that I make, which is to make sure that in respect of retained law the rights that currently exist will be carried through and not abolished.
I hope that the Government will think about that between now and Report. I would certainly welcome the opportunity to discuss the matter with them before we decide how we can take this matter further. In the circumstances, I beg leave to withdraw the amendment.
Lord Carlile of Berriew
Lord Carlile of Berriew
I am grateful to the noble and learned Lord for what he said earlier. It was well worth waiting up for and rather more stimulating than the cup of cocoa that I referred to earlier. Having said that, I can see no point in prolonging the debate on this amendment. If it is appropriate, therefore, I seek leave to withdraw it.
The Deputy Chairman of Committees
The noble Lord must move the amendment before he can withdraw it.
The Deputy Chairman of Committees
It is the property of the Committee until the noble Lord obtains its permission to do so.