House of Lords
Iran and Saudi Arabia: Co-operation on Syria and Yemen
(5 years, 11 months ago)
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Lord Ahmed
To ask Her Majesty’s Government what steps they are taking to encourage Iran and Saudi Arabia to work together to bring peaceful solutions to the conflicts in Syria and Yemen.
The Minister of State, Foreign and Commonwealth Office (Lord Ahmad of Wimbledon) (Con)
My Lords, Syria and Yemen are among the two worst humanitarian crises in the world. A stable Middle East is in every nation’s interest. We therefore continue to encourage both Saudi Arabia and Iran to work towards regional peace and stability. We also urge all countries in the region to support the UN-led peace processes in both Syria and Yemen. Only political solutions can end these terrible conflicts.
Lord Ahmed (Non-Afl)
I thank the Minister for his reply. The UN humanitarian co-ordinator for the Syrian crisis is reported as saying that 2018 is the worst year in Syria, with more than 7 million displaced people and the Geneva process frozen. Meanwhile, more than 7 million people are starving in Yemen. This is a Muslim version of the Thirty Years’ War, between Iran and Saudi Arabia. Will Her Majesty’s Government consider leading an EU peace mission to Yemen and Syria consisting of specialists with knowledge of the political, cultural and religious differences?
Lord Ahmad of Wimbledon
My Lords, the noble Lord raises a very important point and I concur with him. These conflicts are the worst kind of humanitarian crises we have seen and they continue unabated. The challenge has remained because there are other forces at work—regional disputes and rivalries are being played out in both Syria and Yemen. I say to the noble Lord that the Government remain committed to the UN processes in both regards. He is of course right that the process in Syria, in particular, has stalled. The reason it has stalled is primarily the Assad regime’s direct disengagement from the process. The noble Lord makes a practical suggestion and, while the UK Government remain committed to ensuring that the UN mechanisms are fully recognised, I would welcome any helpful thoughts and processes on encouraging greater dialogue between the different communities that constitute Syria and Yemen and further afield.
The Lord Bishop of Worcester
My Lords, does the Minister accept the continuing pressing need to improve religious literacy, not least concerning Sunni and Shia, within and without Whitehall if we in this country are properly to understand, let alone address, the problems to which reference has been made?
Lord Ahmad of Wimbledon
The right reverend Prelate makes an important point. There are many wise voices when it comes to the tragic conflict that we sometimes see being played out by different denominations within the context of Islam. I remind noble Lords that there are 73 different denominations in Islam, but Shia and Sunnis represent the majority. In this regard, any dialogue is positive. A few months back, as part of my responsibilities at the Foreign Office, I looked at the important issue of countering extremism. Together with the Vatican, we invited to Rome scholars from both the Sunni and Shia voices of Islam to give productive and practical suggestions on the way forward.
Baroness Northover (LD)
My Lords, the United Kingdom, with its European partners, is seeking to retain the Iran nuclear deal. Might this be a time to encourage Iran to be constructive in both Syria and Yemen, and to release dual nationals, including Nazanin Zaghari-Ratcliffe?
Lord Ahmad of Wimbledon
Taking the noble Baroness’s final point first, I can assure her and the House that we continue to raise consular cases with Iran at every opportunity. On the wider point of engagement, she is right that we that we have been working with our partners to ensure that the Iranian nuclear deal remains live and will continue to do so. In our most recent discussions, the Foreign Secretary had a conversation with Foreign Minister Zarif about the importance of also ensuring that Iran plays its role in, for example, ensuring the Assad regime comes to the table in Geneva so that we can get the kind of peace we are all seeking for the people of Syria.
Baroness Afshar (CB)
My Lords, women and children have been forgotten in the concern about the Shia and Sunni discussions and yet it is they who suffer the brunt of the violence. Will the Government, please, concentrate on the plight of women and children, regardless of whether they are Sunni, Shia or anything else?
Lord Ahmad of Wimbledon
The noble Baroness is right. I assure her and the House that the Government are totally committed to this agenda and have been leading on the issues of women, peace and security in our national action plans across the world. I was in Turkey when we launched the next Syrian action plan, and subsequently in Iraq to launch the national action plan on women, peace and security. Women have to be at the heart and soul of conflict resolution. By excluding women—more than 50% of the population—no solution can be found. Perhaps I may say a final word to those so-called religionists who feel that by using a noble faith they can exclude religion: you are wrong. For every prophet of every faith, including the Prophet of Islam, women played a central and pivotal role in all decision-making, both internally and externally.
Lord Collins of Highbury (Lab)
My Lords, given the impact that sectarianism can have in a global context, John Bew, in his excellent article in the New Statesman this week, has pointed out that old taboos are breaking down, with the Prime Minister of Israel going to Moscow and the Iranians going to China. In response, will the Government be clear about the need to speak to our allies to ensure that we are completely up to date with this moving situation, and that we work especially with our European allies to ensure that the necessary peace talks take place?
Lord Ahmad of Wimbledon
The noble Lord is right and he knows that I agree with his sentiment. That is why—returning to the question raised by the noble Baroness, Lady Northover—the United Kingdom, working together with our allies, has been pivotal in ensuring that the nuclear deal with Iran stays alive. The noble Lord will know that the Prime Minister, together with the President of France and the Chancellor of Germany, issued a joint statement. It is important that walls come down—for example, in Europe, it took a wall coming down for peace finally to be restored. Those who build walls achieve nothing. We are in the process of taking those walls down.
Viscount Waverley (CB)
Underlining the question of the noble Lord, Lord Collins, does the Minister see a changing coalition of minds in the making—such as that of Saudi with Israel and, by extension the United States, and that of China and Russia with Iran—which, together with the European Union, might be planning to counter the effects of secondary sanctions? This brings us full circle as to which side the UK will take on this and the Question on the Order Paper.
Lord Ahmad of Wimbledon
I think the side the UK is taking is quite clear; we are taking a pragmatic stance. We are the closest allies of the United States, but when we disagree with them, we make those differences clear, as we did on the nuclear deal. On the importance of talks and ensuring that new alliances can be made, we are encouraged by the visit of Crown Prince Mohammed bin Salman to the UK. One notable feature of his visit that greatly encouraged me was the fact that en route to London he stopped in Egypt, where he visited the Coptic Church, which was a first. That is to be encouraged.
Disposable Cups Ban
Lord Scriven
To ask Her Majesty's Government what plans they have, if any, to ban the sale of hot and cold drinks in disposable cups.
Baroness Vere of Norbiton (Con)
My Lords, a call for evidence on how taxes or charges could reduce the waste from single-use plastics, including disposable cups, closed on 18 May. We are reviewing the responses and considering future policy options. The noble Lord has asked whether we plan to ban the sale of hot and cold drinks in disposable cups. While it is true that we would like to see a lower volume of single-use plastic waste, currently we have no plans to ban disposable cups.
Lord Scriven (LD)
I thank the Minister for that Answer. Does she agree that if we are going to do away with the throw-away culture, the Government must lead by example? Will the Government therefore look as a matter of urgency at their procurement rules and perhaps consider taking up the Freiburg cup, which is recyclable, can be used 400 times and is transferable, as part of a mission to ensure that central government lead by example in stopping the use of single-use disposable cups?
Baroness Vere of Norbiton
My Lords, it is right that the Government and indeed Parliament should lead by example. Defra has already removed all single-use plastic cups from the department and new catering services have no single-use plastics at all. I know that the FCO is following suit. Moreover, we can use the greening government commitments to deliver on and report progress across central government. I am sure that noble Lords will be pleased to see that the Parliamentary Estate is also committed to removing all avoidable single-use plastics.
Lord Forsyth of Drumlean (Con)
My Lords, can my noble friend confirm that the Government’s policy on the throw-away culture does not extend to neckties?
Baroness Vere of Norbiton
My Lords, I think that we may need to look at our customs in the Chamber.
Baroness Jones of Whitchurch (Lab)
My Lords, obviously we welcome the recent announcement that Parliament is going to ban single-use plastic cups, but has the department done any research into what proportion of the 2.5 billion disposable cups used each year are actually used in workplaces—that is, not on the go, when people take the drinks away, but by people who remain in one place all day? What is being done to roll out the example being developed in government so that all workplaces around the country are encouraged to use not disposable cups but the cups that we have known and loved for so many years prior to that?
Baroness Vere of Norbiton
The noble Baroness is completely right that it is for businesses to join in the fight against the scourge of single-use disposable cups. However, an enormous amount of work is being done, with companies and retailers working together to reduce the number of cups used by deploying both the carrot and the stick approach, with either a charge or a discount. We welcome that. On the research mentioned by the noble Baroness, I do not know whether any has been done but I shall certainly write to her if any has.
Baroness Neville-Rolfe (Con)
My Lords, the problem is that disposable cups are not recyclable. Do the Government accept that we must move away from a situation where we are building up waste right across the environment, from woodlands to beaches to waste dumps, to one where all disposable cups are recyclable—and marked as such—so that people can dispose of them and reuse them, as is already the case with drinks in cans?
Baroness Vere of Norbiton
My noble friend is quite right. It is the moisture barrier between the cardboard and the inside of the cup that is the problem. However, I understand that a large amount of research has been going on in this area and that products are coming on stream which will be recyclable. I should also say that on capacity, the Alliance for Beverage Cartons and the Environment is looking at increasing the capacity for recycling, and indeed a company called DS Smith in Kent has the capacity to recycle nearly all the cups that are currently being used.
Lord Teverson (LD)
My Lords, is not the real answer to go cup-less altogether? I went to Portland, Oregon, where part of their urban regeneration has put water fountains throughout the city and in public places. Is that not the obvious way to change government guidance on planning to make sure that British cities can benefit from that just as much?
Baroness Vere of Norbiton
My Lords, I am not going cup-less anytime soon. In terms of water refill, the noble Lord is absolutely right. He will know about the City to Sea initiative, which is an app for your phone. There are water fountains in airports, train stations, retailers and coffee shops. These are the sorts of initiatives that we should be focusing on; indeed, it is funded by the water industry.
Viscount Trenchard (Con)
My Lords, I declare an interest as a director of Lotte Chemical UK Ltd, which manufacturers PET on Teesside for water and soft drinks bottles. It is not practical to phase out disposable cups or bottles completely, but I understand that the industry is capable of undertaking a much larger volume of recycling of single-use plastics. Is my noble friend aware that the major obstacle to this is that many councils are not yet capable of collecting and processing the material for industry to recycle in sufficient scale?
Baroness Vere of Norbiton
I thank my noble friend for his question. In fact, 88% of all local authorities now recycle the most widely recycled materials, including plastic bottles. Obviously, there is much more to be done; many other types of plastics cannot currently be recycled. We are, for example, looking at black plastic and working with the industry. We expect a sustainable recycling system to be in place by the end of 2018.
Lord Laming (CB)
My Lords, does the Minister agree that at least Parliament is moving forward and moving toward producing a range of compostable materials, including cups?
Baroness Vere of Norbiton
The noble Lord is right. However, there is always an issue with biodegradable-type plastic: it does not degrade. When we recycle plastic, we often need the structure of the plastic to hold its form so that it can be used for other materials. Of course, biodegradables and compostables go to mush and are of no use as recycling materials.
Commonwealth: Discriminatory Legislation
(5 years, 11 months ago)
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Baroness Barker
To ask Her Majesty’s Government, what specific activities they expect to support under new funding announced by the Home Office to support proposals to repeal discriminatory legislation in Commonwealth countries.
Baroness Barker (LD)
I beg leave to ask the Question standing in my name on the Order Paper. In so doing, I draw attention to my interests in the register.
The Minister of State, Foreign and Commonwealth Office (Lord Ahmad of Wimbledon) (Con)
My Lords, the Prime Minister has committed to supporting Commonwealth countries that want to reform their outdated legislation. The new £5.6 million of funding will support civil society to accelerate social and legislative change, provide legal policy research tools and expertise and convene regional dialogues to strengthen co-operation, understanding and policy exchange. The aim of the programme is to advance the legal equality and rights of all Commonwealth citizens, regardless of gender, sex, sexual orientation or gender identity.
Baroness Barker
I thank the Minister for his Answer. Thirty years ago, under Section 28, this Parliament gave the world a blueprint on how to discriminate against LGBT people, so it was extremely welcome to listen to the Prime Minister’s proposal during CHOGM. What is the funding supposed to support? What activities do the Government envisage will be carried out under this programme? Does the Minister agree that those religions that have colluded to harm LGBT people around the world should perhaps offer restitution by supporting this initiative?
Lord Ahmad of Wimbledon
On the noble Baroness’s second point, as we promote LGBT rights, it is important to discuss this issue with religious leaders and approach it with sensitivity—I fully accept that—but it is also important to look at this as being about the equality of all citizens. Issues of justice and equality for all resonate with all faiths. On the specific point about funding, the noble Baroness is right to point out that our Prime Minister, Mrs May, was very clear at the Commonwealth summit plenary session about where Her Majesty’s Government stand on this. The funding that was announced has been allocated specifically to look at these issue across the Commonwealth. I welcome practical suggestions from the noble Baroness—I know that she leads on this subject and has wide insight into it—because this money is to be allocated primarily to civil society organisations.
Lord Cashman (Lab)
My Lords, I welcome the £5.6 million fund and the commitment of the Prime Minister to address the discrimination faced within the Commonwealth. Does the Minister agree that, vital though it is to work with Stonewall, the Kaleidoscope Trust and others, it is imperative that we work with NGOs and individuals in those countries so that there is no suggestion of neocolonialism or imposition from outside?
Lord Collins of Highbury (Lab)
My Lords, as the Minister knows, we had discussions at CHOGM about this issue and he is absolutely right about the need to support and engage with civil society. That includes churches as well as civil society groups such as trade unions, which can actually promote equality and non-discrimination policies at work and, in doing so, ensure that LGBT rights become a workplace issue—not simply one that brings us into conflict with faith groups and others but a much more practical issue. Has the Minister had the opportunity to meet trade unions to discuss how he can approach this issue?
Lord Ahmad of Wimbledon
I know the noble Lord had a very productive event that he attended during the Commonwealth summit engaging with trade unions directly. As the noble Lord knows, we are meeting very shortly—although I have invited everyone in for a cup of tea in the middle of Ramadan, so I am not sure how I will partake—to hear practical suggestions about the groups and individuals we should be engaging with to ensure that this funding that has been allocated is allocated appropriately and where it can be used to best effect.
Lord Chidgey (LD)
My Lords, while I welcome the Minister’s response, I remind the House that the Commonwealth charter was adopted unanimously more than five years ago, declaring an implacable opposition to all forms of discrimination. It is a sad fact that, still today, 37 out of 53 Commonwealth states criminalise same-sex relationships under 19th-century laws. They may have been our laws, but we are talking about Commonwealth laws now and, in that respect, despite the benefits of a Commonwealth common legal system, we still seem to be dragging our feet. What progress do the Government anticipate making in tackling discrimination while Commonwealth chair-in-office? What support will they provide in this to the Commonwealth Secretariat, the Royal Commonwealth Society and the Commonwealth Human Rights Initiative, all based here in London?
Lord Ahmad of Wimbledon
My Lords, the Government’s view is very clear. I quote the Prime Minister when she addressed the plenary session:
“the UK stands ready to support any Commonwealth member wanting to reform outdated legislation that permits discrimination, including against same-sex relations”.
The funding is to be allocated to help countries build up their legal systems. I assure the noble Lord further that, in our bilateral exchanges with Commonwealth partners, we also ensure that issues of equality have a primary focus. It is about working in partnership, taking communities and societies together, and that is the approach we are taking.
Lord Alton of Liverpool (CB)
My Lords, when the noble Lord is looking at outdated laws in the Commonwealth, will he reflect on the meeting that he kindly attended last week that considered blasphemy laws, particularly those that operate in countries such as Pakistan, and also the Pakistan penal code, which specifically requires the country’s significant Ahmadi minority, some 5 million people, to register as non-Muslims in order to be able to qualify to vote, thus disqualifying them from the franchise? Surely this is a law that needs to be overhauled.
Lord Ahmad of Wimbledon
First, I thank the noble Lord for chairing that meeting, all three APPGs which convened the meeting and all who attended. When we look at blasphemy laws around the world, they were in many ways a legacy of the days of Empire. It is important that we take a lead responsibility in ensuring that those who are now using laws that were intended to protect religions to discriminate against minority communities, such as the Ahmadi Muslim community and Christian communities, are met on the front foot and that we deal with it directly and bilaterally. Equally, when those laws are used to discriminate on important issues such as excluding people from elections, as they are in Pakistan, they should also be called out for what they are: they are straightforwardly discriminatory and should be eliminated and eradicated.
Lord Hamilton of Epsom (Con)
My Lords, one minute we are being told that we should beware of the ills of neo-colonialism, and the next moment we are telling sovereign Governments in the Commonwealth how to conduct their affairs.
Lord Ahmad of Wimbledon
All I will say to my noble friend, whom I listen to attentively on every occasion, is that I used and stressed the words “in partnership with”.
Marine Special Protection Areas
Lord Berkeley
To ask Her Majesty’s Government what consideration ministers give to present and future transport services through new or extended Marine Special Protection Areas when they assess, under the Birds Directive and the Conservation of Habitats and Species Regulations 2017, whether to accept recommendations from Natural England to classify new or extended sites as Special Protection Areas.
Baroness Vere of Norbiton (Con)
My Lords, the aim of the regulations is to work in support of transport activities and developments while ensuring that international conservation interests can be secured. The focus is on making sure that any adverse impacts are avoided or mitigated. Although only ornithological and scientific considerations are taken into account in classifying special protection areas, this should not be a barrier to existing or new commercial transport services.
Lord Berkeley (Lab)
I am grateful to the Minister for that Answer but this clearly did not work in the port of Milford Haven. That is an SPA and it has been struggling for 10 years to make two small changes to jetties to allow a new business. After 10 years, the customer gave up and went away. Now the Government want to put an SPA around the whole of the Isles of Scilly, which must be one of the best-protected and most-studied bird sanctuaries in the country, and if anybody wants to start a new ferry or air service they will have to do the same bird count, probably costing £60,000, and they may never be able to open it. Does she not agree that it is time to review the boundaries of these SPAs, as has been done on the continent, to exempt access to ports, which after all form the main economic activity of these places?
Baroness Vere of Norbiton
My Lords, as I have already said, the focus of the regulations is not on stopping development or transport proposals. Even where there is an adverse impact, there are alternatives; for example, if there are no feasible alternatives, the transport will be allowed, if there is an imperative reason of overriding public interest and compensatory measures are secured. Obviously, I cannot comment on the specific case of Milford Haven but it seems to me that there are the right adverse impact get-outs in place.
Baroness McIntosh of Pickering (Con)
My Lords, will my noble friend take this opportunity to review the perpetual protection of certain species, such as bats, badgers and certain birds? Why are rights given in perpetuity to protect these species? Should these rights not be reviewed based on whether a species is actually endangered?
Baroness Vere of Norbiton
My Lords, we have spoken about bats in the belfry in this House a number of times recently. I agree with the noble Baroness that perpetuity is potentially not correct and a review may need to happen in due course. But it must be remembered that population changes and impacts on population can sometimes happen over decades and we must never be too hasty.
Lord West of Spithead (Lab)
My Lords, the Government are to be congratulated on the fact that they have established some of the largest marine protection areas on the globe around British Overseas Territories. But if you establish a protection area, you have to patrol it and enforce it, and no thought whatever seems to have been given to the ships and boats necessary to do that. The same applies in UK waters. Has any consideration been given to the exact number of ships and boats required for this and other tasks post Brexit?
Baroness Vere of Norbiton
It would not be a Question about the sea if there was not an intervention from the noble Lord, Lord West. I am very pleased to be able to tell him that Defra is working very closely with the Marine Management Organisation, the IFCAs, the Royal Navy and the Border Force to make sure that appropriate arrangements are in place. Noble Lords must remember that surveillance matters as well. There are three different types of surveillance: vessel monitoring systems, electronic reporting and data systems, and remote electronic monitoring. Although we talk about the Royal Navy ships as patrol vessels—and we should note that they are indeed being upgraded—these ships are not just wandering around looking for people doing bad things; they are responding to the surveillance. Therefore, perhaps we should call them response vessels instead.
Baroness Randerson (LD)
My Lords, this sounds like a sledgehammer being used to crack a nut. The economy of the Scilly Isles depends on their peaceful beauty, and the sea-birds there are abundant. The islanders rely on the birds as part of their economy because they are so important to tourism. Is there any evidence of the need for additional protection for the birds on the Isles of Scilly? If that evidence has been found, will the Minister publish it?
Baroness Vere of Norbiton
The scope for extending the SPA in the Isles of Scilly is being considered at the moment. So far, there has been informal dialogue with stakeholders. Natural England has asked Defra Ministers for permission to extend the SPA and they are considering it. It is our understanding that the proposals before Ministers will protect the foraging grounds of the assemblage of 20,000 sea-birds on the Isles of Scilly. However, Ministers are unlikely to increase the regulatory burden over and above what is currently required. It must be remembered that a number of SPAs have been in force in the Isles of Scilly since 2001, with a further expansion in 2005. The Isles of Scilly have long been protected and they should be in future.
Lord Greenway (CB)
My Lords, despite what the noble Lord, Lord Berkeley, said about Milford Haven, I cannot think of another instance where commercial navigation has been adversely affected. Does that not suggest that the mechanism set up under the Marine and Coastal Access Act 2009 is working in the way that was intended?
Baroness Vere of Norbiton
I agree with the noble Lord. We are not aware of any major impact on plans or projects from the regulations currently in place.
Lord Cormack (Con)
My Lords, I remind my noble friend that there is a Bill before your Lordships’ House dealing with the appalling damage caused to our parish churches by bats. Will she look very sympathetically on those provisions, because our parish churches are as important to tourism as are the Isles of Scilly?
Baroness Vere of Norbiton
My Lords, it was my great pleasure to be the Whip on the Front Bench for that Bill on that Friday. I listened to the arguments. It could not have escaped anyone’s attention that the Bill did not receive support from any of the Front Benches.
House of Lords: Membership
(5 years, 11 months ago)
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Lord Adonis
To ask Her Majesty’s Government what is their policy on the future size and composition of the House of Lords in the light of the list of new Peerages published on Friday 18 May.
Lord Adonis (Lab)
My Lords, I beg leave to ask a Question of which I have given private notice.
Lord Young of Cookham (Con)
My Lords, as I was looking forward to telling the noble and right reverend Lord, Lord Harries of Pentregarth, tomorrow in response to a topical Question that he tabled on Friday, the Government are committed to working with others in your Lordships’ House to address its size. Noble Lords will no doubt be aware that my right honourable friend the Prime Minister wrote to the Lord Speaker on 20 February to set out the Government’s position in more detail, and a copy of that letter is in the Library of the House.
Lord Adonis
My Lords, I am grateful to the noble Lord for answering the Question—I am his most fervent admirer; he once described us as two herbivores in a world of carnivores—but I am surprised that the Leader of the House is not in her place to answer a Question on a matter on which she is clearly and supremely accountable to the House.
When the Labour Party left office in 2010 as a majority Government, Labour had 26 more Peers than the Conservatives. Now, as a minority Government, the Conservatives have 63 more Peers than Labour—more than twice as many—and the Prime Minister has just published a list of Peers with three times as many Conservatives on it as Labour. Does the noble Lord agree that this is a clear and flagrant breach of the constitution? Why does he think it justified for the Conservatives to have 63 more Peers than Labour? When the Prime Minister said that Brexit was about “taking back control”, did she mean the Conservative Party seizing control of the state in the interest of the Conservative Party alone?
Lord Young of Cookham
As the noble Lord will know, I have been answering questions about the composition of the House of Lords for some time; that is why I am in my place answering this one. On his main point, there is no constitutional concept that there has to be some degree of parity between the main opposition and government parties in your Lordships’ House. The Prime Minister has shown commendable restraint; it is the smallest Dissolution Honours List since 1979. If one looks at the number of Peers who have retired, one sees that 50% of those retiring from the political groups have been Conservatives. Even with these new appointments, my party will represent only 31% of your Lordships’ House. I do not agree with the accusation made by the noble Lord about unfairness.
Baroness Smith of Basildon (Lab)
My Lords, this House has already accepted the principle of reducing its size. On 20 February, the Prime Minister’s letter to the Lord Speaker regarding the Burns report described the current list as a legacy issue but said that in any future appointments she would,
“allocate them fairly, bearing in mind the results of the last general election and the leadership shown by each party in terms of retirements”.
In fairness, I suggest that it should be about departures whether by retirement, resignation or by those who have died. On these Benches, we have lost 12 colleagues since the last election, more than any other group in your Lordships’ House. The Burns report recommended that the appointment of Peers should reflect departures—two out, just one in—and better reflect the votes at the previous election. I have been clear that we are ready for that, including all departures and appointments since the 2017 election. When will the Government genuinely make the same commitment?
Lord Young of Cookham
So far as reducing the size of the House is concerned, if one puts on one side the appointments which the Prime Minister inherited from David Cameron and the hereditary Peers by-election, there have been 59 departures and 21 appointments since she became Prime Minister. That is well within the two-out, one-in ratio recommended by the noble Lord, Lord Burns. So far as representation is concerned, my party got 42% of the votes and we have 31% of the membership of your Lordships’ House. Compared with some other parties, I maintain that my party is still underrepresented in your Lordships’ House.
Lord Newby (LD)
My Lords, if the Burns report is to be implemented, it is crucial that the Prime Minister follows its proposals when making appointments. The letter from the Prime Minister to which the noble Lord referred simply says that she will operate with restraint and allocate peerages fairly. Could he encourage her to give a firmer commitment to the Burns principle if he wishes other parties to support it going forward with the same degree of enthusiasm as we have in the past?
Lord Young of Cookham
With respect, my right honourable friend the Prime Minister has exercised restraint. I note that in the 2010 Dissolution Honours List, Nick Clegg insisted on 11 former Lib Dems becoming Peers, so there was not much restraint then. So far as going forward is concerned, the Prime Minister has made it absolutely clear that there will be no more automatic peerages. As I have said, if your Lordships look at the number of Peers appointed since she became Prime Minister, the House is now smaller than it was then so she is on track to deliver that commitment. What we are still waiting for is some retirements from the Liberal Democrats.
Lord Burns (CB)
My Lords, over the weekend the noble Lord, Lord Adonis, tweeted that the Lord Speaker had welcomed the composition of the new list. He clearly did not read what the Lord Speaker actually said; the only thing he welcomed was the Prime Minister’s ongoing commitment to restraint in appointing new Peers, which provides such a contrast with her recent predecessors. As the Minister has pointed out, the 21 life Peers appointed since the last election is the smallest number of appointees in the first year of a Parliament for perhaps 40 years. Does he agree that what is important now is to arrive at an understanding for departures and appointments for the remainder of this Parliament and, furthermore, that this should be closely in line with the framework set out in the report of the Lord Speaker’s committee, which was overwhelmingly welcomed by the Members of this House?
Lord Young of Cookham
I am grateful to the noble Lord not just for his helpful intervention but for the work which he and his committee have put in. I understand that he is continuing that work. Yes, I did read the comments made by the Lord Speaker, as reported in the press, and my right honourable friend the Prime Minister has shown restraint. Tony Blair appointed 374 new Peers—including the noble Lord, Lord Adonis—David Cameron appointed 245 and Gordon Brown appointed 34, so two years in the Prime Minister has indeed shown some restraint and I think that we are on track. The noble Lord set out targets for the individual parties to reach by 2022, and those are challenging targets. As I indicated a week ago, some groups and parties within the House are making progress but not all of them.
Lord Forsyth of Drumlean (Con)
On the subject of fairness, raised by the Liberal Front Bench, if the political parties were represented according to the results at the last general election, will my noble friend indicate how many of the Liberals would have to leave this House?
Lord Young of Cookham
I do not have the mental capacity or the bandwidth to work that out. Fifty? Sixty? Any advance on sixty? [Laughter.] I notice some jostling for position on the Liberal Benches. I am sure that by the time the House rises someone will have worked out the exact proportion and how many Liberal Democrats ought to go.
Lord Grocott (Lab)
I think the noble Lord, Lord Young, will find himself on pretty thin ice if he is suggesting that there has been some kind of fairness between the two major parties over the last couple of decades and the last few Prime Ministers. I remind him that when Labour came into office in 1997, with a majority of around 170 in the House of Commons, it had a deficit of around 250 to 300 in comparison with the Tory representation in this House, and it took nine years, until 2006, until Labour even became the biggest party in the Lords. They of course were the only nine years in the Lords’ history when the Labour Party has been the biggest party. It took the Tories just four years after 2010 to reassert their traditional position of being the biggest party in this House irrespective of the results of general elections. So the Minister needs to be a bit more cautious in talking about the peerage-awarding powers of Prime Ministers when Labour has been at such a massively consistent disadvantage.
Lord Young of Cookham
I take the noble Lord’s point, but the base from which the two parties were starting in 1997 and 2010 were totally different. That is why it took the Labour Party longer to catch up.
Data Protection Bill [HL]
Monday 21st May 2018
(5 years, 11 months ago)
Lords 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 106-I Marshalled list for consideration of Commons disagreement to and amendments in lieu of a Lords amendment (PDF, 102KB) - (18 May 2018)
Lord Keen of Elie
That this House do not insist on its Amendment 62B proposed instead of the words left out by Commons Amendment 62, to which the Commons have disagreed, and do agree with the Commons in their Amendments 62BZA to 62BA and 62BC to 62BF in lieu of Amendment 62B.
The Commons disagree to Lords Amendment 62B proposed instead of the words left out of the Bill by Commons Amendment 62 but propose amendments 62BZA to 62BA to Clause (Review of processing of personal data for the purposes of journalism) inserted by Commons Amendment 109 and amendments 62BC to 62BF to the Bill in lieu of the Lords Amendment—
“Review of processing of personal data for the purposes of journalism
(1) The Commissioner must—
4 (a) review the extent to which the processing of personal data for the purposes of journalism complied with the data protection legislation during the review period,
(b) prepare a report of the review, and
(c) submit the report to the Secretary of State.
9 (2) “The review period” means the period of 4 years beginning with the day on which Chapter 2 10 of Part 2 of this Act comes into force.
11 (3) The Commissioner must—
(a) start the review within the period of 6 months beginning when the review period ends, and
(b) submit the report to the Secretary of State before the end of the period of 18 months beginning when the Commissioner started the review.
(4) The report must include consideration of the extent of compliance (as described in subsection (1)(a)) in each part of the United Kingdom.
(5) The Secretary of State must—
(a) lay the report before Parliament, and
(b) send a copy of the report to—
(i) the Scottish Ministers,
(ii) the Welsh Ministers, and
24 (iii) the Executive Office in Northern Ireland.”
“(a) review the extent to which, during each review period, the processing of personal data for the purposes of journalism complied with—
(i) the data protection legislation, and
(ii) good practice in the processing of personal data for the purposes of journalism,”
(a) ”
(b) each subsequent period of 5 years beginning with the day after the day on which the previous review period ended;
“good practice in the processing of personal data for the purposes of journalism” has the same meaning as in section (Data protection and journalism code).”
“(3) The Commissioner must start a review under this section, in respect of a review period, within the period of 6 months beginning when the review period ends.
(3A) The Commissioner must submit the report of a review under this section to the Secretary of State—
(a) in the case of the first review, before the end of the period of 18 months beginning when the Commissioner started the review, and
(b) in the case of each subsequent review, before the end of the period of 12 months beginning when the Commissioner started the review.”
“( ) Schedule (Review of processing of personal data for the purposes of journalism) makes further provision for the purposes of the review under this section.”
“Effectiveness of the media’s dispute resolution procedures
(1) The Secretary of State must, before the end of each review period, lay before Parliament a report produced by the Secretary of State or an appropriate person on—
(a) the use of relevant alternative dispute resolution procedures, during that period, in cases involving a failure, or alleged failure, by a relevant media organisation to comply with the data protection legislation, and
(b) the effectiveness of those procedures in such cases.
(2) In this section—
“appropriate person” means a person who the Secretary of State considers has appropriate experience and skills to produce a report described in subsection (1);
“relevant alternative dispute resolution procedures” means alternative dispute resolution procedures provided by persons who produce or enforce codes of practice for relevant media organisations;
“relevant media organisation” means a body or other organisation whose activities consist of or include journalism, other than a broadcaster;
“review period” means—
(a) the period of 3 years beginning when this Act is passed, and
(b) each subsequent period of 3 years.
(3) The Secretary of State must send a copy of the report to—
(a) the Scottish Ministers,
(b) the Welsh Ministers, and
(c) the Executive Office in Northern Ireland.”
“(2A) The following provisions come into force at the end of the period of 2 months beginning when this Act is passed—
(a) section (Data protection and journalism code);
(b) sections 125, 126 and 127, so far as they relate to a code prepared under section (Data protection and journalism code);
(c) section (Guidance about how to seek redress against media organisations); (d) section (Review of processing of personal data for the purposes of journalism) and Schedule (Review of processing of personal data for the purposes of journalism);
(e) section (Effectiveness of the media’s dispute resolution procedures).”
“REVIEW OF PROCESSING OF PERSONAL DATA FOR THE PURPOSES OF JOURNALISM
Interpretation
1 In this Schedule—
“relevant period” means—
(a) the period of 18 months beginning when the Commissioner starts the first review under section (Review of processing of personal data for the purposes of journalism), and
(b) the period of 12 months beginning when the Commissioner starts a subsequent review under that section;
“the relevant review”, in relation to a relevant period, means the review under section (Review of processing of personal data for the purposes of journalism) which the Commissioner must produce a report about by the end of that period.
Information notices
2 (1) This paragraph applies where the Commissioner gives an information notice during a relevant period.
(2) If the information notice—
(a) states that, in the Commissioner’s opinion, the information is required for the purposes of the relevant review, and
(b) gives the Commissioner’s reasons for reaching that opinion, subsections (5) and (6) of section 143 do not apply but the notice must not require the information to be provided before the end of the period of 24 hours beginning when the notice is given.
Assessment notices
3 (1) Sub-paragraph (2) applies where the Commissioner gives an assessment notice to a person during a relevant period.
(2) If the assessment notice—
(a) states that, in the Commissioner’s opinion, it is necessary for the controller or processor to comply with a requirement in the notice for the purposes of the relevant review, and
(b) gives the Commissioner’s reasons for reaching that opinion, subsections (6) and (7) of section 146 do not apply but the notice must not require the controller or processor to comply with the requirement before the end of the period of 7 days beginning when the notice is given.
(3) During a relevant period, section 147 has effect as if for subsection (5) there were substituted—
“(5) The Commissioner may not give a controller or processor an assessment notice with respect to the processing of personal data for the special purposes unless a determination under section 174 with respect to the data or the processing has taken effect.”
Applications in respect of urgent notices
4 Section (Applications in respect of urgent notices) applies where an information notice or assessment notice contains a statement under paragraph 2(2)(a) or 3(2)(a) as it applies where such a notice contains a statement under section 143(7)(a) or 146(8)(a).”
The Advocate-General for Scotland (Lord Keen of Elie) (Con)
Noble Lords will recall that Amendment 62B would require the establishment of an inquiry into allegations of data protection breaches committed by or on behalf of national news publishers and other media organisations. This House has debated the necessity and proportionality of such an inquiry on several occasions during the passage of the Bill. It has been an informative and sometimes impassioned debate as noble Lords from all sides of the House have brought their experiences to bear, and the Government have been listening throughout.
The last time that we debated this topic, the noble Lord, Lord Stevenson, and the noble Baroness, Lady Hollins, asked about the past. Before I get into the substance of my speech, I think I can offer some reassurance on that point. When the Information Commissioner undertakes the review described in Commons Amendment 108, she will be reviewing the extent to which the processing of personal data for the purposes of journalism complied with data protection law in the next four years; as my right honourable friend the Secretary of State has said, we must look forward, not back. Her hands are not tied, though, and the commissioner’s existing enforcement powers are not time-limited. Indeed, compliance with the new law and compliance with the old law are deeply intertwined. That is why the Commons sent us 20 pages of amendments on transitional provision.
Most of what we have heard about relates to wrongs in the past that were illegal. If at some future date new evidence came to light that showed that the press were acting in breach of the law, the Government would expect the relevant enforcement bodies, including the Information Commissioner’s Office, to investigate and possible sanctions to follow. The Government are clear that what was illegal then remains illegal now.
There is no lacuna and no amnesty. Anyone who thinks that that is what the Government are proposing is quite wrong. What we are doing, however, is providing the institutions we need for the challenges of the future.
We have given the Bill a thorough examination. My noble friend Lord Ashton of Hyde has reminded us several times of the number of amendments that have been secured, not just on media regulation but on issues that impact on everyone. This is a good Bill, but we have now, I suggest, run out of road. The question now is whether the Bill is good enough to justify passing it into law.
To assess that requires two things. First, it requires knowledge of the Government’s proposed way forward on the issues we asked the other place to reconsider last week. Secondly, it requires knowledge of what would happen if this House did not pass the Bill which is before it today.
On the first point, I have already mentioned the Information Commissioner’s review of compliance with data protection law. Since we last debated the merits of having a review, the Government have further proposed that that should not be a one-off event but a recurring fixture. We have also given her additional powers to make sure that her review is as comprehensive and robust as it can be.
Between now and then, the commissioner will produce guidance for data subjects seeking redress and a code of practice for those who process data for the purposes of journalism. My right honourable friend the Secretary of State will report on the availability and effectiveness of alternative dispute resolution procedures, including IPSO’s new mandatory low-cost arbitration scheme, and Her Majesty’s Inspectorate of Constabulary and Fire & Rescue Services will report on police forces’ adherence to its guidance on how to interact with the media.
I am confident that, when these amendments are viewed alongside the improvements IPSO has already made to its processes and procedure, this country now has the most robust system of redress for press intrusion it has ever had, and it has achieved it without resorting to state regulation.
But noble Lords know all this already, especially if they, like the noble Lord, Lord Stevenson, watched last Wednesday’s debate in the other place. So I want to spend my remaining time on the subject of not media regulation but data protection.
The GDPR will take effect in the United Kingdom at midnight on Friday. It will do so irrespective of whether or not we are prepared for it. If we do not pass implementing legislation in the next three days, medical research will grind to a halt. The administration of justice will stutter as chambers attempt to work out whether it is preferable to breach court disclosure rules or data protection law. Sectoral regulators will have to tip off the people they are investigating. It will potentially be chaotic, and this House will be held responsible.
The noble Lord, Lord Paddick, said it well at Second Reading, when he welcomed the Bill:
“It provides the technical underpinnings that will allow the GDPR to operate in the UK both before and after Brexit … it is an enabling piece of legislation, together with the GDPR, which is absolutely necessary to allow the UK to continue to exchange data, whether it is done by businesses for commercial purposes or by law enforcement or for other reasons, once we are considered to be a third-party nation rather than a member of the European Union”.—[Official Report, 10/10/17; col. 205.]
The damage done by not passing this Bill today would be irreversible, and the only winner would be data protection lawyers.
As is quite proper, the House has asked the elected Chamber to think again about the detail of this Bill. It did so, and it has returned it to us as a Bill that is now ready to go to Her Majesty for signature. Two votes in the House of Commons in the past two weeks have come to the same conclusion. If we further delay this essential legislation, that decision will be on us.
Is this Bill good enough to pass? We are convinced that it is, and I therefore beg to move.
Motion A1 (as an amendment to Motion A)
Lord McNally
Leave out “62BC to 62BF in lieu of Amendment 62B” and insert “62BD to 62BF in lieu of Amendment 62B but do disagree with the Commons in their Amendment 62BC and do propose Amendment 62BCA in lieu—
“Effectiveness of the media’s dispute resolution procedures
(1) The Secretary of State must, before the end of each review period, appoint an Independent Reviewer to report to the Secretary of State, before the end of each review period, about—
(a) the use of relevant alternative dispute resolution procedures during that period in cases involving actual or alleged failure by a relevant media organisation to comply with the data protection legislation, and
(b) the effectiveness of those procedures in such cases.
(2) For the purposes of subsection (1) the Independent Reviewer must be—
(a) the Press Recognition Panel (incorporated by the Royal Charter dated 3 November 2014), if it agrees to act, or
(b) otherwise, a person who is or has been a judge of the High Court, the Court of Appeal or the Supreme Court.
(3) A person reporting under subsection (1) must have regard to the Leveson Inquiry - Report into the culture, practices and ethics of the press laid before Parliament under section 26 of the Inquiries Act 2005 and in particular any relevant conclusions and recommendations.
(4) As soon as practicable after receiving a report under subsection (1), the
Secretary of State must—
(a) lay a copy before Parliament; and
(b) send a copy to the Scottish Ministers, the Welsh Ministers and the
Executive Office in Northern Ireland.
(5) In this section—
“relevant alternative dispute resolution procedures” means alternative dispute resolution procedures provided by persons who produce or enforce codes of practice for relevant media organisations;
“relevant media organisation” means a body or other organisation whose activities consist of or include journalism, other than a broadcaster;
“review period” means—
(a) the period of 3 years beginning with the date on which this Act is passed, and
(b) each subsequent period of 3 years.”
Lord McNally (LD)
My Lords, like Pavlov’s dog, MailOnline this morning had the headline:
“House of Lords to make extraordinary THIRD bid to curb press freedom”.
Fulfilling the ambition of a lifetime, it has a photograph of me and suitable condemnation of this amendment.
In defence of the amendment, I refer to the interesting summation that the Minister made in his speech. I will come later to his blood-curdling threats about what would happen if we were to lose the Bill. On the question of historical offences, hands are not tied, nor time-limited. What was illegal then remains illegal now. There is no amnesty. It was worth tabling this amendment to get that on the record as a reminder of where we are on past criminality in this area. What it is not, as claimed by MailOnline, is an attempt to reopen the debate.
The amendment proposes to amend the Government’s Motion, which gives the Secretary of State the task of assessing the dispute resolution procedure and arbitration schemes, adopted by non-broadcast media regulators every three years. Instead, I propose that this task should be undertaken not by a politician but an independent body—the Press Recognition Panel, which is entirely independent of political, state or industry control. It would have the added advantage of being able to assess the effectiveness of dispute resolution procedures guided by the criteria set out in the Leveson report.
In moving the amendment, let me deal with a number of accusations levelled at those who sought to amend the Bill to make it Leveson-compliant during its passage in this House. First, we were told that we were hijacking the Bill to deal with matters that had nothing to do with data protection, only for the Government to bring forward their own print media-specific amendments, not least the one on the Marshalled List today. The truth is that the line between print and online is fast disappearing. Where does the Daily Mail end and the MailOnline begin? It is no accident that many of the hundred organisations that have joined Impress are online publishers. I have often thought that if Facebook and others wanted to get ahead of the game and be really smart, they would sign up for Impress and leave IPSO as a kind of dinosaurs’ graveyard of the old print media.
Then, we had the Minister’s threat that we were putting the whole Bill and the future of data protection in jeopardy by the various amendments because, as he said, the Bill must be passed into law by 25 May. If chaos is not to reign in the data protection world, we have to give a speedy passage regardless of shortcomings. I was a business manager in this House during the coalition, and I worked for the Callaghan Government in the 1970s when they came under various pressures from this House. The truth is—and we all know it—the Government will get their business, perhaps a little bruised and with a few ministerial reputations dented, but the Bill will be delivered on time, and Ministers should stop spreading scare stories and instead treat amendments on their merits.
Then, of course, there is the Salisbury convention. We have to face the fact that the squalid deal between the press barons and the Tory party to drop Leveson 2 was squeezed into the Conservative manifesto and thus became protected by the Salisbury convention. The convention was given fresh life by the Cunningham committee, of which I was a member. So let us be clear: the Salisbury convention promises that this House will give a Second Reading to a manifesto Bill; it does not protect that Bill from scrutiny or amendment—nor is there anything wrong in asking the Commons more than once to consider this. I think I hold the record: I knocked back the Bill on Murdoch’s predatory pricing of the Times six times, and would have done so a seventh if Len Murray, my chief Labour conspirator, had not told me that enough was enough.
The Countess of Mar (CB)
The noble Lord appears to be making a Second Reading speech. Would he kindly pay attention to the amendment on the Order Paper?
Lord McNally
My Lords, I made it quite clear that I was putting the amendment in context. The noble Countess intervenes on many noble Lords on many speeches in a way that actually delays the House rather than helps it.
As suggested in my opening remarks, this is not an attack on freedom of speech of the press. I had the great pleasure of working with Hugh Cudlipp, who was editor of the Daily Mirror and responsible for that great popular newspaper, which I read avidly when growing up in the 1950s and 1960s. I was also very fond of John Junor and his hard-hitting column in the Sunday Express. I admired William Rees-Mogg for his editorial attacking the prosecution of Mick Jagger for drug offences under the headline, “Who breaks a butterfly on a wheel?” And, of course, I remember the great crusade on behalf of the Thalidomide victims by Harry Evans of the Sunday Times. I am so pleased that Harry has been at our side in this battle to see Leveson implemented.
Lord Elton
I wanted to back up my noble friend Lady Mar, whose interventions are usually absolutely on the ball—and she is quite right this time, too.
Lord McNally
I am very interested in that—perhaps we can debate procedure in this House another time. I do not think I am out of order, and I am within 30 seconds of finishing a very long debate, in which a number of people have asserted some rather hurtful things about those of us who have spoken about the freedom of the press.
I went into that little bit of history, because I do not think that in 30 years’ time Paul Dacre or Kelvin MacKenzie will be spoken of in the same breath as Cudlipp or Evans, or even Junor or Rees-Mogg. The Daily Mail is said to be the Prime Minister’s favourite newspaper, yet it is the embodiment of the nasty party that she once so rightly condemned. I think Matt Hancock will regret becoming Paul Dacre’s poodle, and I think the old print media will regret not protecting themselves within the strong walls of the royal charter, as the long shadow of court judgments and the growing power of the ICO come into play. On behalf of the victims of press criminality and malpractice, I express my admiration for the noble Baroness, Lady Hollins, for ensuring that their voice has not gone unheard.
The Government will have their business, but I urge Ministers to accept this amendment as being in keeping with the arguments, which they themselves have used during the passage of the Bill, that major regulation should not be in the hands of politicians and regulators should be independent of both government and proprietors if real press freedom is to be safeguarded. In order, I beg to move.
Lord Lester of Herne Hill (Non-Afl)
I have voted against a three-line whip on earlier amendments of this kind, and will do so again today on this amendment, or any others like it. I entirely agree with the Minister in all respects. The Bill is now fit for purpose and represents a fair compromise. Without making a meal of it, I regard the amendment in the name of the noble Lord, Lord McNally, and similar ones, as unnecessary regulation, unprincipled, contrary to freedom of speech and unique in the democratic world. I know of no country that is a true democracy that has anything like this. I am surprised that it should be put forward by anyone who is a Liberal Democrat.
Lord Fairfax of Cameron (Con)
My Lords, I have no personal interest in this matter, one way or the other. I regret to say that the Government have behaved far less honourably throughout this matter than I would have liked. As other noble Lords have said in previous debates, they have betrayed the expectations of all those who relied on Prime Minister Cameron’s undertakings. The fact that no Government can tie the hands of their successors does not make this any less bad. They have also conducted a consultation which, with the benefit of hindsight, looks like a sham. If the Minister takes exception to that allegation, I would point to the Government having disregarded the views of the 138,000 signatories of the 38 Degrees petition. More fundamentally, as others have said, they disregarded the views of Sir Brian Leveson himself. When the Government stated that the second part of the inquiry was not necessary, Sir Brian said, in a letter dated 23 January 2018:
“I fundamentally disagree with that conclusion”.
The Government’s worst failing here consists in having made this issue party political. If they had simply enacted the Leveson recommendations in full, including Section 40 and Leveson 2, this would not have happened and it is most regrettable. I have no animus one way or the other in this matter. Initially there was almost unanimity, both in Parliament and outside, that Leveson should be appointed and his recommendations adopted, as Prime Minister Cameron said. I regret that this Government—I speak as a Conservative—have failed to do that. No doubt the Government have their reasons for behaving this way. They will be judged on that, including by the 126 university lecturers in journalism who wrote on this matter two weeks ago.
However, as other noble Lords have said, the House of Commons—the elected Chamber—has now expressed its view on this matter more than once. As the noble Lord, Lord Pannick, pointed out in an earlier debate, this matter was in the Conservative manifesto. Therefore, it is now time for this House, reluctantly, to give way.
Lord Cormack (Con)
My Lords, I completely concur with that last sentiment. I hope we will not have a long debate this afternoon. I hope we will accept what the other place has said, and I hope we will therefore behave entirely constitutionally. I have high regard for the noble Lord, Lord McNally, and he knows that is genuine. However, I urge him, as the constitutionalist he is and I know him to be, and as the man who was such an effective spokesman for the coalition Government, to realise that we have come to the end of the road here. This House has asked the other place to think again. I did not want it to do it once more last week, but this House did, and by a fairly significant majority. However, 25 May looms, and it is important that this Bill gets on to the statute book. That does not mean that the issues raised by the noble Lord, Lord McNally, and my noble friend Lord Fairfax—in a fairly blistering opening to his speech—cannot be returned to again. Many of us have thought that this Bill was not the right one on which to hang these amendments. But again, that is over—we have had that debate. I hope now that we can proceed quickly to a decision, but that we will not need to do so in the Division Lobbies. I appeal to the noble Lord, Lord McNally, whom I regard as a friend. He said his piece very effectively, but I hope he will not press the amendment.
Baroness Hollins (CB)
My Lords, I have been proud to support the completion of the Leveson public inquiry, not just for the benefit of past victims, including my family, but mainly to prevent future victimisation. I make it quite clear that although I am disappointed, I reluctantly accept the decision of the other place that it does not wish to proceed with and complete a public inquiry. However, some of the misrepresentations about my amendment that were made in the other place were quite disappointing, and some speakers remained in denial about the continuing bad behaviour of some elements of the national media. So, to my surprise, since last week’s vote I have been approached by some Members from the other place who voted with the Government, to ask me not to give up.
Some noble Lords believe that my amendments have secured real progress in holding the press to account through the new government amendments. I have a more guarded response. I am very interested in the amendment in the name of the noble Lord, Lord McNally. It would prevent state interference in press regulation and appoint a truly independent reviewer, and would restore the place of the Press Recognition Panel—the PRP—without the Government directing it. I look forward to due consideration by the Minister of that suggestion.
What people want is an apology and a promise that it will not happen again. As a victim, a mother, a grandmother and a psychiatrist, I try to put people first. Instead, it seems that the focus is on money, with promises that the media will engage with IPSO’s low-cost arbitration scheme, which is just one of the 29 other equally important Leveson criteria for an effective regulator. In addition, it appears that the proposed review in four years’ time is being done in secret and with no clear criteria.
As always, I am willing to meet Ministers at the DCMS, IPSO and the ICO, and invite other victims to join me; and perhaps, one day, a victim-first approach will be embraced by them all. I say to the Government that despite their new provisions, they have let them get away with it again. However, now is not the time to press this further; rather, it is a time to watch and wait.
Lord Falconer of Thoroton (Lab)
My Lords, Amendment A3 in my name is an amendment to Motion A. I will speak to it now although it will be formally moved later.
I want to make two points, the first of which is to explain the purpose of my Amendment A3. Before I do so, however, I want to take up what the noble Lord, Lord, Cormack, said. He begged the noble Lord, Lord McNally, to withdraw his amendment, a point which the noble Lord, Lord Fairfax, made from a slightly different point of view. It is important to listen to what the noble Lord, Lord McNally, is saying—and I strongly support what he is saying. He accepts that in the context of this Bill, the question of Leveson 2 has effectively been decided. We have sent it back twice to the Commons and, first with a majority of nine and then with a majority of 12, the Commons said that it did not want Leveson 2.
Earl Attlee (Con)
My Lords, although it is perfectly correct to debate the Government’s Motion to agree with the Commons, I am not convinced that it is a good idea even to debate a further Lords amendment in lieu at this point. As my noble friend Lord Cormack pointed out, we are out of time. I agree with my noble and learned friend the Minister that the Bill is good enough and, if there is a vote, I will support the Minister.
I share the worries about the new role of the Secretary of State but unfortunately I do not think that it is an appropriate role for the Press Recognition Panel. The PRP has a very specific role, which is to test whether the approved regulator meets the standards laid out in the royal charter.
The House will be pleased to hear that I have cut out seven minutes of my speech. Nevertheless, I will be engaging with my noble friend Lord Black of Brentwood to explore how we can achieve what we all want: a free, vibrant, sustainable, competent press that adheres to the rules and acts decently, but which cannot be chilled by a very rich complainant.
Lord Stevenson of Balmacara (Lab)
My Lords, the test has been given to us: we have to assess whether or not this Bill is good enough to pass. It is not the test I think we were expecting. It is quite refreshing in some ways because it means we do not have to look at every jot and every tittle, every “i” and every “t”, to make sure they are correct—we can just say that it is good enough so go with it. I am not sure it is the test that will sustain in your Lordships’ House for time to come, and perhaps we can draw a veil over it once we have got through this short period.
Is the Bill good enough to pass? Yes it is, and I have no doubt that it will pass today. However, it leaves behind two or three unanswered questions and some substantial issues that we will have to come back to. I think we have heard enough in the speeches today to know that these issues are not finally vanquished: they are present and they will be back, and we should think about that. If we wanted any assurance that this goes across all parties, all disciplines and all times, the speech by the noble Lord, Lord Fairfax of Cameron, put us absolutely on the spot. There is a sense that a great injustice has happened and a sense of fairness among UK citizens to want to see it organised better and done again. There was an all-party consensus—the evidence is that there still is an all-party consensus—that we should do it.
This was not the right Bill—I always said that it was not—but we have made huge changes to the way in which the Government were proposing to legislate in this area, changes which I welcome. Victim of the timing as we are, if there had been more time available, we perhaps could have sorted out many more of them. But we are not going to be able to do that because we must get the Bill through before midnight on 25 May. I absolutely subscribe to that.
What is left to do? There is no doubt that we have to know more about who did what to whom in the period running up to the Leveson inquiry being announced in November 2011. My Amendment A2 would have given the Information Commissioner powers to look at that and to provide what would effectively be a benchmarking report to allow subsequent work “looking forward”—in the words of the Secretary of State—to have a proper sense of what it was they were testing. I still think that that would be the right solution, but the noble and learned Lord made some welcome remarks from the Dispatch Box at the beginning of the debate and I accept those as being sufficient to make sure that I can withdraw the amendment at the appropriate time.
There is the narrow question of whether we should look at the particular points raised in the two other amendments. I think they are victim to the problems that we have had with this Bill, in that we have not been able to give detailed scrutiny in Committee or on Report to issues that we perhaps should have done had they been around. It is good that they are there and that the Government have listened. It is fantastic that they are prepared to work with us on these issues; much of the wording here has come out of discussions and debates with Ministers outside the House, and we have seen the benefit of that.
However, Amendment 62BC as proposed by the noble Lord, Lord McNally, worries us, and my noble and learned friend Lord Falconer made the point very well. It states:
“The Secretary of State must, before the end of each review period, lay before Parliament a report produced by the Secretary of State or an appropriate person on … the use of relevant alternative dispute resolution procedures … and … the effectiveness of those procedures in such cases”.
That goes a bit too close to whether it is politicians—the Secretary of State in this case—directing how independent assessments should go forward. I would be grateful if the noble and learned Lord could comment on that. It may well mean that the Secretary of State has the power but the actual work is done by others and, as was always going to be the case, that it is just a report and not a review. The confusion comes, I think, from having “review period” specified in the Bill, which is something that we would have picked up earlier.
On my noble and learned friend Lord Falconer’s amendments, there are issues around whether we are, in some senses, giving a responsibility to the Information Commissioner but not the powers to do the job that we want done. Again, some words from the Dispatch Box might help. I have covered my Amendment A2, in the sense that I think that responses have come back.
Is there a future for work in this area? Yes, there is. IPSO has made a significant change to its working practices since it was established and is now doing good and effective work. I do not disagree that the right thing is to let it continue on its path, watch how it goes and look at the reports that will be made on its effectiveness under Amendment 62BC.
We should not be tempted to change the structure of the PRP and its approval of independent press regulators. It may seem otiose but, as there are now 100 titles signed up to it, at least it is doing something right. As the noble Lord, Lord McNally, said, that system may well have something to offer Facebook, Google and others who might be interested in making sure that they are properly regulated.
Given that we are looking forward and the worry that we have in a liberal democracy of being able to see the kind of quality press and comment that we have in our present print journalism, which I support entirely, the review being carried out by Frances Cairncross will result in a number of recommendations and it is possible that we will need to legislate for that. These issues could come back relatively soon and I hope they do. There is enough all-party support in this House and the other place to get some movement on that and we will be happy to do so. For the moment, we wish the Bill well. It is good enough and we hope it will come into force and do the job it is meant to do.
Lord Keen of Elie
My Lords, I am grateful for the contributions of noble Lords. The noble Lord, Lord McNally, referred to me making blood-curdling threats. I made no threats—blood curdling or otherwise—and what I did say was essentially true.
This Bill is about data protection. The primary concern of your Lordships’ House, which we have debated over recent months, is whether individuals have the ability to defend themselves against excessive press intrusion, and the Bill now provides a number of mechanisms to address this concern. These are all designed to maintain the freedom of the press and the independence of self-regulation, albeit in compliance with the law. For example, it was announced three weeks ago that IPSO will introduce a low-cost mandatory arbitration scheme. We are determined that there will be no backsliding on that kind of commitment, and Commons Amendment 62BC is designed to ensure that the use of such schemes is reported on—a point to which I will return in a moment—to reduce any temptation there might be to turn away from them once the heat of the Bill is off.
The noble and learned Lord, Lord Falconer, sought, with vim and vigour, to address two points. I was slightly taken aback because, a few minutes before we began this debate, I had endeavoured to explain to him the operation of Clause 174(3)(b) and its interrelationship with Clause 144, and thought I had done so quite well. However, clearly I failed to some extent in that regard. I had also sought to give him further assurances about the role of the Secretary of State.
On the first point—the operation of the Information Commissioner’s powers—as I had sought to explain to the noble and learned Lord, under his amendment the Information Commissioner would have had access to prepublication material gathered for journalistic purposes. It was acknowledged across the House, and by the noble Lord, Lord McNally, during earlier debates that that could not be tolerated given the intrusion it would involve upon press freedom and journalistic preparation. The interrelationship between Clauses 174 and 144 is complex, but I again make it clear that the effect is that the commissioner will not be able to access prepublication journalistic material but will be able to access material that has been processed for the purposes of journalism.
On the second point, about the power of the Secretary of State, one has to be clear that this is not actually a power but simply a duty to report. It is for the Secretary of State to report, and he could do so even without an express statutory power, but this is to underline it. We are making it a clear duty, to import transparency into the process. He will essentially be reporting on the metrics available with regard to the take-up of alternative dispute resolution. The effectiveness of dispute resolution will be determined by reference to its take-up and its resolution. It will then be for us—Parliament and the people—to determine in light of those facts whether we consider that further steps have to be taken.
Let us be absolutely clear: the Bill imports no power on the part of the Secretary of State to compel the media to act in any way on the report that he is putting in place. This is simply a mechanism by which he can ensure that the relevant facts and figures—if I can put it that way—are laid before Parliament at the appropriate time. I hope that I have been able to put both those reassurances with greater clarity than I did a few minutes earlier, and to reassure the noble and learned Lord on those points.
I am obliged to the noble Lord, Lord Stevenson, for the observations he has made, and I hope again that he is reassured by the position the Government have now adopted regarding the intent and consequences of the amendments from the House of Commons. As regards the observations from other noble Lords around the House, I recognise that there has been widespread concern about the way in which we have been able to address the past and the need to address the future, having regard to the fundamental requirement for freedom of the press—one of the foundations that underpins our democratic process. Before closing, I acknowledge the contributions of the noble Baroness, Lady Hollins, to this entire debate. I quite understand why she has maintained the need to bring these matters before the House on a number of occasions, and I do not seek to imply any criticism of her in that regard.
We have reached a point where the Bill should pass, however. It has to, really. It is in those circumstances that I invite the noble Lord to withdraw his amendment to Motion A.
Lord McNally
My Lords, when I studied the British constitution 50 years ago I read the books by Sir Ivor Jennings, who said that one of the only weapons that an Opposition have against a Government is time, and that an Opposition—and, indeed, critics on a Government’s own Benches—are perfectly entitled to use time to put pressure on Governments. My goodness, we have had a cascade of useful changes because we have used time to press the Government further on the issue.
As I said before, the line between the Daily Mail and the MailOnline is increasingly blurred. This legislation will be tested against that blurred background. At some stage, the old print media may regret not being in the comfortable protection of a royal charter, as my learned friends listening to this debate must think that there is a lot of work ahead for them as this Bill is tested.
We never wanted to stop the Bill coming into law, and I beg leave to withdraw Motion A1.
Lord Falconer of Thoroton
At end, insert “and do propose amendments 62BFA and 62BFB to Commons Amendment 62BF—
“( ) During a relevant period, section 144(1) does not apply (and proceedings in respect of an information notice given during a relevant period may continue after the end of the period).”
Lord Falconer of Thoroton
I am very reassured by what the noble and learned Lord, Lord Keen of Elie, said about the power. I took him to mean that it cannot be used prepublication, and will be available post publication. I apologise to him for being such a poor pupil in failing to understand that, but it is important that he said it.
The noble Lord, Lord McNally, is absolutely right not to press Motion A1, because it is too late, basically. However, like him, I remain incredibly disturbed about the terms of the provision and the ability that it gives the Secretary of State to interfere in the press. I can tell you only my experience as a Minister: nobody ever told you what was said in Parliament about how a power that was questionable would be used; they only came and told you the terms of the statute. The word “effectiveness” clearly carries a value judgment.
Tower Blocks: Dangerous Cladding
(5 years, 11 months ago)
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The Parliamentary Under-Secretary of State, Ministry of Housing, Communities and Local Government and Wales Office (Lord Bourne of Aberystwyth) (Con)
My Lords, with the leave of the House, I shall now repeat in the form of a Statement the Answer to an Urgent Question asked in the other place. The Statement is as follows:
“Mr Speaker, we are remembering those who lost their lives in the tragedy at Grenfell Tower today as the public inquiry opens. I know this will be an incredibly difficult time for those affected. The whole House will join me in sending them our thoughts and prayers.
I am determined to ensure that no community suffers again as they have done. To that end, in the days since the fire, my department has worked with fire and rescue services, local authorities and landlords to identify high-rise buildings with unsafe cladding, ensure interim measures are in place to reduce risks and give building owners clear advice about what they need to do, over the longer term, to make buildings safe. Remediation work has started on two-thirds of buildings in the social housing sector, and we have called on building owners in the private sector to follow the example set by the social sector and not pass costs on to leaseholders. I will be holding the first round tables with representatives from the private sector this week, and I repeat what I said last week: if the industry does not step up, I am ruling nothing out.
My predecessor and the then Home Secretary asked Dame Judith Hackitt to also carry out an independent review of building regulations and fire safety. I welcomed her final, comprehensive report last week, which called for major reform, and having listened carefully to the arguments for banning combustible materials in cladding systems on high-rise residential buildings, the Government are minded to agree and will consult accordingly. In addition, the Prime Minister announced that the Government will fully fund the removal and replacement of potentially dangerous ACM cladding on buildings owned by social landlords, with costs estimated at £400 million. I will be writing to social sector landlords this week setting out more detail.
It is vital that people living in buildings like Grenfell Tower are safe and feel safe. I am confident that the work we are undertaking and the important reforms triggered by the Hackitt review will help restore public confidence and provide the legacy that the Grenfell community needs and deserves”.
Lord Kennedy of Southwark (Lab Co-op)
My Lords, I join the Minister in sharing our thoughts and prayers with the victims and the families and wishing the inquiry well. I declare an interest as a vice-president of the Local Government Association. I thank the Minister for repeating the Answer to the Urgent Question asked by my right honourable friend John Healey MP in the other place.
Following the woefully inadequate response from Kensington and Chelsea Council, does the Minister accept that the Government have been slow off the mark, as illustrated only last week by the Government giving a formal direction to local authorities to ensure that they know whether high-rise blocks in their area are safe, nearly a year after the tragedy? While the £400 million announced by the Prime Minister to remove that cladding is welcome, it also comes nearly a year after the tragedy. This is not an example of the Government acting with speed.
What action are the Government taking to ensure that blocks in the private sector are also safe and have all potentially dangerous cladding removed? What action are the Government taking to ensure that tower block residents have been told the correct course of action if a fire breaks out in their block? That could be either “stay put” or “get out”, but residents need to know about the action for their area.
Lord Bourne of Aberystwyth
I thank the noble Lord, Lord Kennedy, very much indeed for joining in the thoughts that I am sure we all share as the inquiry gets under way and as tributes are made by the bereaved. We can fully understand the angst that that must be causing. I had the privilege of meeting some families last week and I fully understand what they must be going through.
The noble Lord referred to the £400 million announced by the Prime Minister last week, which I think is significant. Of course, that is an estimate of the full funding of the work necessary for the measures in the social sector. The noble Lord also asked what else we are doing. Of course, there are interim measures in place while the replacement of cladding is carried out. We expect that work to be very effective—for example, patrols to make sure that the building is safe while the work is carried out—so it is not as if we are not doing anything. This is a very complex area, as I know the noble Lord appreciates, and we are doing a great deal to ensure that people in high-rise blocks are safe.
The noble Lord asked, quite rightly, about the private sector. We have, along with local authorities, identified 101 private residential blocks. We have made money available to help local authorities identify the blocks that need assistance. They have the testing available in just the same way as the social sector; there is no cost attached to the testing of the ACM cladding in those situations and interim measures will apply in just the same way. As the Statement made clear, we are expecting landlords to step up, as some have done—Barratt, for example, for Citiscape in Croydon—to ensure that they are meeting the costs. As the Statement also made clear, the Secretary of State is holding round tables to look at these remediation issues with a view to ensuring that those that can bear the costs do so and those that cannot bear the costs do not. Those round tables will start this week.
Lord Shipley (LD)
My Lords, I remind the House that I too am a vice-president of the Local Government Association. I want to join these Benches with the other Front Benches in expressing our sympathy and support for the bereaved residents of Grenfell.
I have two questions for the Minister. First, Dame Judith Hackitt said on the news at the end of last week that she was perfectly happy with a ban being placed on all combustible materials on blocks. The Minister has said that there is going to be consultation about that. My question is: how long will that be? There seems to be a unity of view that combustible materials should be banned, so I very much hope that the consultation will not take a long time.
I was pleased to hear the Minister say that the £400 million is an estimate. I raised this matter in the debate on the Statement last Thursday. Inevitably, it cannot be a fixed sum. I hope the Minister will confirm, for the avoidance of any doubt, that the Government will reimburse the full costs, which I understand they have to agree with local housing authorities, even if the full costs exceed £400 million.
Lord Bourne of Aberystwyth
My Lords, I thank the noble Lord, Lord Shipley, for his comment about our thoughts being with the people affected. He had two specific questions relating to Dame Judith Hackitt’s review into safety and fire measures. He is absolutely right: Dame Judith did say that she was not necessarily opposed to a ban. I think her point in the review was that the whole building system needed to be looked at; she did not want it to be felt that this is, as it were, a silver bullet. The consultation on the ban we are considering will be of appropriate length. Of course, there is a process to be gone through, as the noble Lord will appreciate, and I have not got the exact measure of how long that will be. If it becomes available, I will certainly write to the noble Lord and share that with other noble Lords, but there is a process to be gone through and, although we do not want to hang about, we do want to do the right thing. We obviously do not want to be called to account for not doing this appropriately.
I can confirm that £400 million is an estimate of the cost. We are unable to know exactly what it will be, but essential work for councils and housing associations will be covered. Our best estimate is in the measure of £400 million, but it is an estimate.
Baroness Brinton (LD)
My Lords, I declare an interest as a member of the APPG on Fire Safety and Rescue. I echo the thoughts of my noble friend and the noble Lords towards the families and survivors of the Grenfell tragedy, particularly today as the other inquiry gets under way.
I am very concerned that the length of time that this might take for private sector blocks will put leaseholders under real concern. There are already reports that some builders are talking about £4 million-plus for very large buildings. How long will the consultation last, and what will the Government do, and by when, to step in if private sector freeholders still try to pass costs on to leaseholders?
Secondly, it is quite clear from the Hackitt review that increased inspection powers for both fire and building control will be required. Will the Government look at ensuring that local government and fire services have increased funding specifically to cover this? They cannot do it out of existing resources.
Lord Bourne of Aberystwyth
My Lords, I thank the noble Baroness, Lady Brinton, for her thoughts for the families and the bereaved. Clearly, today must be a very difficult day, more than usually so. I commend the work that she does on fire safety and rescue, which I know is considerable. She had some specific questions about leaseholders and how long we would be consulting in relation to private buildings. It is not a formal consultation but a series of round-table meetings that the Secretary of State will be holding, the first of which is coming up very shortly. We will see how that goes. But as the Answer that I repeated indicated, we rule nothing out and we are determined that those who can bear the costs should do so. I commend what Barratt has done, for example, in relation to Citiscape in Croydon. We hope that that is repeated.
The noble Baroness also asked about the increased funding that may be necessary in light of the consultation that we will have in relation to the reform of the regulatory system, and so on. Obviously, there is a doctrine of increased burdens having to be funded, if increased burdens there are, and we would expect that to apply in the normal way.
Lord Campbell-Savours (Lab)
My Lords, is it possible for a private landlord simply to refuse to carry out remedial work or to remove the cover? If the private landlord was to do that, knowing that the material was dangerous, what would be the position of the Government?
Lord Bourne of Aberystwyth
My Lords, the noble Lord, Lord Campbell-Savours, raises a very interesting point on the powers that exist in relation to local authorities and private landlords, which are considerable under the Housing Act, as he will appreciate. I do not think we have come up against that particular position. There might also be a fallback in common law on particular powers if that were to be the case. But we anticipate—and obviously we will be looking at how the round tables go; the early evidence is there—that landlords are stepping forward with interim measures and doing what they can. But we want to understand the position in the round by speaking to both the landlords and the leaseholders to see exactly how this plays out. My right honourable friend the Secretary of State has indicated that he will issue a review in July of how things are proceeding. I am sure that that will include the points that the noble Lord has quite rightly raised.
Sanctions and Anti-Money Laundering Bill [HL]
Monday 21st May 2018
(5 years, 11 months ago)
Lords ChamberRead Full debate Sanctions and Anti-Money Laundering Act 2018 View all Sanctions and Anti-Money Laundering Act 2018 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 101-I Marshalled list for consideration of Commons amendments (PDF, 96KB) - (18 May 2018)
Lord Ahmad of Wimbledon
That this House do agree with the Commons in their Amendments 1 to 3.
“(ea) provide accountability for or be a deterrent to gross violations of human rights, or otherwise promote—
(i) compliance with international human rights law, or
(ii) respect for human rights,”
The Minister of State, Foreign and Commonwealth Office (Lord Ahmad of Wimbledon) (Con)
My Lords, the abuse of human rights was an issue of significant concern to both your Lordships’ House and the other place, as was made clear by many people who spoke at various stages of the Bill. The Government fully recognise why noble Lords and Members of the other place wished to reference gross human rights abuses explicitly, particularly in reference to the abhorrent case of Sergei Magnitsky. In her speech to the other House on 14 March, the Prime Minister made clear the Government’s intention to bring forward a “Magnitsky amendment” to the Bill. As a result, the Government worked closely and constructively with all sides of the other House to table these amendments, which have captured the maximum possible consensus in this area.
Commons Amendment 1 puts gross human rights abuses in the Bill as a purpose for which sanctions may be imposed. Commons Amendment 5 links the existing definition of a,
“gross violation of human rights”,
to the definition in the Proceeds of Crime Act 2002, and so ensures that it includes the torture of a person,
“by a public official, or a person acting in an official capacity”,
where the tortured person has sought to,
“expose illegal activity carried out by a public official”,
or to defend,
“human rights and fundamental freedoms”.
This makes it clear that all gross human rights abuses or violations are explicitly captured within the Bill. Commons Amendments 2, 3, 6, 7, 8, 14, 15, 19 and 20 are consequential on the changes to Clause 1.
Amendment 17 requires reports to be made about the use of the power to make sanctions regulations. Reports must identify regulations that have been made for human rights purposes. They must also specify any recommendations made by a parliamentary committee about the use of that power in relation to gross human rights violations, and include the Government’s response to any recommendations. It is right and proper that scrutiny of the regulations is carried out by Parliament.
Commons Amendment 16 was tabled in recognition of the concerns, raised by both the Independent Reviewer of Terrorism Legislation and the Joint Committee on Human Rights, that the repeal of Part 1 of the Terrorist Asset-Freezing etc. Act 2010—TAFA—would remove the independent reviewer’s oversight of the UK’s counter-terrorism asset freezes. I can assure all noble Lords that there was never any intention by the Government to remove independent oversight of the UK’s counter- terrorism asset-freezing regulations made under this Bill. That is why a carefully drafted government amendment was tabled in the other place to replicate effectively the scope of the independent oversight currently provided under TAFA. This ensures that there will be no removal or narrowing of the oversight of counterterrorism asset freezes as a result of the Bill.
The amendment also makes the Government’s commitment to this clear by imposing a duty to appoint an independent reviewer. The duty applies to any part of sanctions regulations that imposes asset freezes that are not made for a purpose that implements international obligations in this area but would further the prevention of terrorism. This is consistent with the scope of the independent oversight provided for under TAFA, thereby ensuring there is no removal or narrowing of the oversight of counterterrorism asset freezes as a result of the Bill.
I put it on record again that the Government are committed to promoting and strengthening universal human rights, and holding to account states and individuals responsible for the most serious violations. We will continue to do this after we leave the European Union and we intend that the powers in the Bill should allow us to be part of a global network of like-minded jurisdictions, working together to tackle those who commit gross human rights violations. We will continue to work with international partners to this end. I beg to move.
Lord Anderson of Swansea (Lab)
My Lords, it is good to turn to a period of calm after the clash and clamour of Brexit. I congratulate the Government on responding to the pressures in this House and the other place, and on taking a stand that I hope will be followed by other countries where appropriate. The current amendments relate to sanctions on the perpetrators of human rights abuses, wherever committed, and against individuals rather than states. They are therefore smart sanctions and I congratulate Sir Alan Duncan in the other place and those who have worked together. The Minister stressed that it was an all-party group and I believe the amendments in the other place were signed by all parties. This is therefore very important.
I congratulate also Bill Browder, who has worked tirelessly following the murder in custody of Sergei Magnitsky. These amendments are made in the context of the poisoning of Sergei and Yulia Skripal in Salisbury and the murder of Magnitsky in Russia in 2009, but they are clearly not limited to Russia. They are much broader and universal, just as the Magnitsky Act of 2012 in the US was, in 2016, broadened to include perpetrators of gross human rights abuses wherever committed. As the Prime Minister has said:
“There is no place for these people—or their money—in our country”.
Lord Faulks (Con)
My Lords, I endorse everything that the noble Lord, Lord Anderson, rightly said. These matters were a concern across party in both the House of Commons and your Lordships’ House. The Magnitsky law was somewhat incomplete after the Criminal Finances Bill was enacted, and this is a necessary completion of those reforms. I share the noble Lord’s concern that, in our enthusiasm, we must not lose sight of the need for safeguards. This measure seems to be welcome not only here but in a number of other jurisdictions, and I agree that we should continue to do all we can to encourage its take-up worldwide.
Baroness Northover (LD)
My Lords, we, too, welcome Amendment 1 and the consequential amendments, which are the concession made by the Government in the Commons explicitly to include gross human rights abuses in the Bill, recognising the vote in the House of Lords led by the noble Lord, Lord Pannick, and others. We also welcome Amendment 16, which deals with the concern raised by the Independent Reviewer of Terrorism Legislation and the Joint Committee on Human Rights. We also welcome Amendment 17, requiring the Government to make periodic reports on the use of powers to make sanctions. How frequently may those occur and what form may they take? Most of all, I thank the Government for listening to the views expressed here and hope that we can take heart in relation to other legislation and votes we have seen in recent times.
Lord Hain (Lab)
My Lords, I, too, welcome government Amendment 1 and its associated amendments and applaud the Minister for the way he has spoken forthrightly on the human rights agenda and stewarded the Bill, which is a case study in how a Government and a Minister should and can respond to amendments from the Opposition, the Liberal Democrats and Cross-Benchers.
At the same time, I crave the indulgence of the Minister, the Whip sitting next to him and your Lordships’ House in returning to a subject which I have raised before—which, I am authoritatively told, has had some impact on the welcome change in the leadership of South Africa. This week marks South African President Cyril Ramaphosa’s first 100 days in office. I will be brief, but the official state money laundering and corruption virus he inherited from President Zuma is significantly more virulent and pervasive than even Ramaphosa could have anticipated, made immeasurably worse by the complicity of UK-based global corporates.
Take Hogan Lovells, the international law firm headquartered here in London and in Washington, its role starkly exposed in documents recently released to the parliamentary finance committee in South Africa. In your Lordships’ House, Report on the Bill on 15 January, I first criticised its role for whitewashing corruption by Tom Moyane, chief of the South African Revenue Service, now suspended by the new President. According to these documents, Hogan Lovells kept silent even when its findings related to money laundering and corruption by Moyane’s former deputy, Jonas Makwakwa, and even after Moyane misled the South African Parliament. Through its despicable, fee-grabbing complicity, Hogan Lovells spared these two notorious perpetrators of state capture in South Africa from accountability for their complicity in, and cover up of, serious criminal behaviour, including money laundering and corruption.
At the same time, Hogan Lovells has been undermining the criminal justice system in a series of other cases, as proven by the fearless Forensics for Justice NGO investigator, Paul O’Sullivan. Effectively, Hogan Lovells was acting as former President Zuma’s legal fudger-in-chief.
Brave investigative journalist Pauli van Wyk has exposed lies by the senior partner of Hogan Lovells in South Africa, Mr Lavery Modise. In the Daily Maverick, she pointed out:
“Despite having the benefit of the report by Price Waterhouse Coopers (who actually conducted the investigation), Modise and his team ultimately charged Makwakwa with everything he could explain, and with exactly nothing that he previously struggled to explain, or simply refuse to account for”.
Indeed, the more serious allegations in the PwC report were carefully filtered out of Hogan Lovells’s report, and the firm did not point out that Moyane was preventing critical evidence from being given to PwC.
Hogan Lovells’s most specious piece of lawyer sophistry was to claim that it could look only at the employer-employee issue involved and not at any criminal issue, giving the excuse that the employee, Makwakwa, could otherwise implicate himself. Surely all good employers, and indeed employees, should report on any criminality at their workplace, and surely even more so in the vital state revenue agency when the crime relates to money laundering and tax evasion. Effectively, Hogan Lovells turned a blind eye to the looting of the tax agency. It took a fat fee and ignored the truth. Most astonishing to me is that Hogan Lovells still refuses to acknowledge, let alone apologise for, its complicity, thereby actively supporting those still trying to undermine President Ramaphosa’s reform programme.
The behaviour of Hogan Lovells in South Africa is a classic example of a British-based company obfuscating its behaviour, using the complexities afforded by the law, including client confidentiality, to conceal the crimes of money laundering and corruption. Hogan Lovells fits exactly the behaviour exposed by investigator Pauli van Wyk when she concluded:
“The tale of State Capture ... co-exists in a mutually parasitic relationship where the public purse is the feeding ground and corporates are the enablers and agents of whitewash”.
British based corporates such as Hogan Lovells should be supporting, not thwarting, President Ramaphosa’s anti-money laundering agenda.
The Solicitors Regulatory Authority has now declared that Hogan Lovells South Africa is a “connected party” to its UK firm and I therefore request—I hope that I will have the Minister’s support—that the SRA withdraws recognition from Hogan Lovells UK and suspends its UK senior partners from practising here for its scandalous activities in South Africa. I also ask British Ministers to ensure that Hogan Lovells UK receives no more UK public sector contracts until it at least apologises for its shameful and shameless South African role. Additionally I can report that, after I raised this matter at Second Reading in November, the Financial Conduct Authority has recently informed me that it is engaging with the whistleblower who has supplied evidence that I believe should see HSBC prosecuted for conspiracy for facilitating money laundering.
I conclude: unless Ministers ensure that there are penalties for UK-based corporates like Hogan Lovells, HSBC, the Bank of Baroda, Standard Chartered, Bell Pottinger, KPMG, McKinsey—and who knows how many others?—for their complicity in protecting criminals engaged in money laundering in the South African case, I am afraid this legislation will not be worth a candle.
Lord Pannick (CB)
The Minister was asked about safeguards. Can he confirm that the safeguards in the Bill, which we debated at great length in its various stages to ensure fairness to those listed, will apply in exactly the same way to those persons accused of human rights violations as they apply to all those listed for other reasons under the Bill?
Lord Collins of Highbury (Lab)
My Lords, I will be very brief. The noble Lord, Lord Anderson, asked the questions that I considered appropriate. I will not delay the House, but will repeat what the noble Lord, Lord Pannick, said in terms of an amendment we jointly agreed to, ensuring that fair process is considered in relation to this aspect of the Bill.
I very much join other noble Lords in welcoming the Government’s change of heart. There was opposition from the Government on these principles, and we had a successful amendment on human rights being the centre of foreign policy.
I welcome completely the noble Lord’s commitment. My honourable friend Helen Goodman also took the rather unusual step of signing the Government’s Magnitsky amendments, despite the fact that, in Committee, the Government had opposed her own amendments. I welcome very much the new consensus and hope that it is a sign that we can move forward with greater clarity in terms of foreign policy and human rights.
Lord Ahmad of Wimbledon
My Lords, I am grateful to all noble Lords who have taken part in this short debate. From the outset, I thank Members for their engagement during this Bill, both in your Lordships’ House or in the other place. I commend the efforts of the noble Lord, Lord Pannick, my noble friend Lord Faulks and others who over a lengthy period of time, from all sides of the Chamber, have talked on the importance of such a clause. I am mindful that I do not see the noble Baroness, Lady Kennedy, in her place, but I know that she has a Private Member’s Bill in this respect as well, and I acknowledge her efforts in that regard.
I shall pick up on the specific points. The noble Lord, Lord Anderson, asked when the Bill was likely to be implemented in relation to all things considered around Brexit. As he acknowledges, the Bill provides the framework to impose sanctions, and under the Bill will sit a series of regulations that will put specific sanctions regimes into place. This will be done in accordance with the timetable of Brexit. He also asked about the implementation period, which we will have to take into account. As some of the specifics come on board on this, I shall share them with your Lordships’ House. He also asked about the procedure for listing individuals. The sanctions regulations will be set out, and the activities targeted by sanctions. If the Minister concerned has sufficient evidence to meet the thresholds in the Bill, they can place a person on an administrative list of designated persons to whom sanctions apply. That list will also be made public.
The noble Lord, Lord Anderson, and my noble friend Lord Faulks asked about encouraging others. As I have said during the Bill, when it comes to sanctions generally—and specifically on this clause—I can assure them that the UK will continue to play a leading and constructive role. As such, we will continue to work with all our international partners to achieve the maximum consensus possible on issues of concern to the UK, including those in these clauses.
I thank the noble Baroness, Lady Northover, and her team for her engagement on this Bill. She asked specifically about the reports and their frequency. They will be made annually, and the report to Parliament will also be laid before Parliament as well.
The noble Lord, Lord Hain, raised important issues around South Africa and the SRA’s withdrawal of the registration around Hogan Lovells. I have listened, as I always do, to his various contributions very carefully, and shall ensure that his concerns are relayed to the relevant departments and authorities.
The noble Lord, Lord Pannick, asked whether the Minister can confirm whether safeguards could apply on HR sanctions. I am always mindful when he asks questions because he knows the answer already, and I am pleased to answer very shortly and succinctly—yes, they will.
Lord Ahmad of Wimbledon
Moved by
That this House do agree with the Commons in their Amendment 4.
Lord Ahmad of Wimbledon
My Lords, this amendment relates to the important area of enforcing trade sanctions on board ships outside of UK territorial waters. I know that the noble Lord, Lord Collins, has an amendment in this respect, and I am cognisant that the Delegated Powers and Regulatory Reform Committee has expressed some concerns. I assure him and your Lordships’ House that I commit to respond to the committee in writing. In the meantime, I hope that I can reassure noble Lords about the necessity and appropriateness of these powers.
In a moment, I will turn to the specific issues which the committee has raised. I want to make it clear from the outset that these powers are needed to address exceptional and potentially dangerous situations in which goods sanctioned by the UK are being transported to or from a sanctioned country in international and foreign waters; to ensure adherence to the standards set out in the relevant UN Security Council resolutions; and to provide protection against the transportation of dangerous and harmful goods in international waters—strengthening our ability to counter foreign policy and national security threats via the enforcement of sanctions regimes. Especially in light of recent events, noble Lords will appreciate that it is both necessary and important for the UK to have such powers and that is why we have sought to include these clauses.
Amendment 11 would enable UK officials to board and search ships where there are reasonable grounds to suspect that the ship is carrying sanctioned goods or technology. Amendment 12 also allows these powers to be exercised in circumstances where Amendment 11 does not apply but where there are reasonable grounds to suspect that the ship is carrying goods that would be sanctioned if there were a UK link. The powers could be exercised against British ships in both foreign and international waters, and against foreign and stateless ships in international waters. These clauses would also allow officials to seize goods that are being dealt with in contravention, or deemed contravention, of sanctions regulations.
Amendment 18 would allow the procedures for dealing with goods once seized to be set out in regulations. We expect these powers to be exercised, for example, in circumstances where the UK is aware that a ship is carrying goods such as components of chemical weapons, military materials heading towards a conflict zone in breach of an arms embargo, or even illicit nuclear materials heading towards a sanctioned state.
The clauses contain important safeguards limiting the use of these powers. The Bill makes it clear that there must be reasonable grounds to suspect that the ship in question is carrying sanctioned goods before any action can be taken. Further, consent from a foreign state is required before these powers can be exercised in relation to a British ship in foreign waters. The powers may be exercised in relation to a foreign ship in international waters only with the authorisation of the Secretary of State, which may be given only in certain limited circumstances, thereby ensuring that these powers will be used only on foreign ships with either flag-state consent or under the authority of international law. Where there is no flag state, as in the case of a stateless ship, such safeguards are not required as the ship is not subject to the jurisdiction of, and protection from, any other state.
These powers are analogous to those contained in other provisions of domestic legislation. For example, Chapter 5 of the Policing and Crime Act 2017 allows for these same powers to be exercised in circumstances where there are reasonable grounds to suspect that an offence under the law of England and Wales is being committed on board a ship in international waters. We intend to confer these new powers on the same UK authorities which are already capable of exercising those existing powers, namely constables, NCA officers and customs officials. In addition, we intend to add commissioned officers of Her Majesty’s ships to that list, as we expect that the Navy is likely to be the authority best placed to exercise these powers in respect of ships in international waters. This is not a novel approach as such officers are, for example, already designated maritime enforcement officers under the Criminal Justice (International Co-operation) Act 1990.
I draw noble Lords’ attention to the fact that the various maritime enforcement powers contained in existing legislation go further in some respects. For example, they allow for the arrest and detention of persons on board the ship. The purpose of these powers is not to target individuals, but to ensure that we can prevent the improper transportation of goods to or from a sanctioned country. These maritime powers are both necessary and important because the UK has legal obligations to enforce sanctions regimes on board British ships whether these ships are in domestic waters or not, which these powers will allow us to do. The UK also has legal obligations to seize and dispose of UN-sanctioned goods; we will be able to meet those under these powers. The UN Security Council also calls on the UK to search foreign ships for such goods, and expects the same approach to be taken in relation to stateless ships. The powers contained in this clause will allow us to do this as well.
On the concerns raised by the Delegated Powers and Regulatory Reform Committee in particular, I will explain why these amendments provide for the powers to be set out in regulations. This mirrors the approach that has been taken to the sanctions Bill as a whole. The Bill sets out the framework to be applied in sanctions regulations. The purpose of these maritime powers is to enforce UK trade sanctions, and so they should be exercisable in relation to any country on which trade sanctions have been imposed by the United Kingdom. For the sake of clarity and accessibility, it makes sense for there to be one regulation per sanctions regime which sets out all the detail pertaining to that regime, and that includes these powers.
However, it must be remembered that almost all the detail around these powers has been set out in the primary legislation already: the nature of the coercive powers that may be exercised, the circumstances in which these powers must be exercised, and the nature of the procedure that is to be followed when goods have been seized under these powers. Ministers therefore have very little discretion about what can be set out in the regulations in relation to these powers. For this reason, we consider this approach to be appropriate. For the same reasons, we consider that there is no reason for any additional parliamentary scrutiny of sanctions regulations based on the inclusion of these powers in those regulations, beyond the parliamentary scrutiny already provided for in the Bill in relation to those regulations.
The Delegated Powers Committee has also raised concerns about the particular wording of Amendments 11 and 12 and about whether the powers set out there are a non-exhaustive list. I reassure noble Lords that there is no intention to exercise any coercive powers that are not explicitly set out in Amendments 11 and 12. Indeed, if the intention was to have additional powers to take any other coercive action of the sort provided for in these amendments, one would expect the primary legislation to set out those additional powers, and it does not do so.
Turning briefly to the other amendments in this group, Amendments 4, 13, 23 and 30 are consequential on these clauses. Amendment 4 would ensure that the reference to supplemental provision, in Clause 1, includes these clauses. Amendment 13 ensures that the exercise of these powers in international and foreign waters is not limited by Clause 19 on extraterritorial application. Amendment 23 would ensure that the Bill does not affect powers exercised by the royal prerogative in relation to ships, and Amendment 30 would allow amendments to be made to the Customs and Excise Management Act to be able to properly enforce UK sanctions.
These maritime powers are necessary and important to ensure that we can take steps against the transportation of dangerous and harmful goods in international waters. Their inclusion in the Bill is an important step in enhancing the integrity and impact of sanctions regimes. I beg to move.
Lord Collins of Highbury
My Lords, I read the report of the Delegated Powers Committee on Friday and thought that I needed to act immediately, because I wanted to ensure that this House had the opportunity to fully debate its implications. I welcome what the Minister said and his commitment to respond fully to the committee’s report.
With regard to the powers, one of the biggest concerns at Second Reading in this House, through to Committee, has been the power grab—the concept of legislation being made by regulation, which seems to be expanding the whole time. I was particularly concerned about Clause 4 and how its powers appear not to be limited. I know that we have safeguards in the Bill, and I thank the noble Lord, Lord Pannick, and the noble and learned Lord, Lord Judge, who is not in his place, for moving substantial amendments, which the Government listened to, on how you can confine and constrain the powers that are needed. We know that at some time in the future, a Government will simply look at what the law gives them power to do and use it, because it could apply in different circumstances. Therefore I was responding in particular to Clause 4 and the committee’s report. I hear what the Minister said about the safeguards and the constraints on Ministers in making regulations, and I hope that other noble Lords will be satisfied with the response. At this stage, I am.
Baroness Northover
My Lords, as the Minister will know, and as the noble Lord, Lord Collins, expressed, the Delegated Powers Committee was very concerned about Amendments 11 and 12. I must say that I found it astonishing to read that yet again, at this late stage of the Bill, the same issues are coming up that we had at the beginning, and to hear the Delegated Powers Committee noting,
“the Department’s failure to explain the width of the powers being granted, and why it is not possible to limit the powers … and to specify on the face of the Bill the persons who are to exercise the powers”.
I hear what the Minister says. I note that the Delegated Powers Committee is reluctantly saying that, if the Lords accepts the way that these amendments have come forward, the powers should be subject to the affirmative procedure in both cases. I wonder what the noble Lord, Lord Pannick, makes of the amendments.
Lord Pannick
I am very disappointed—at other noble Lords are—at the approach of the Government. All these points were fully debated at Second Reading, in Committee and on Report, and the constant theme across the House was that it was vital to constrain the powers that Ministers were giving themselves in relation to the Bill. The Minister was very receptive to those concerns and accepted a number of amendments, and it is therefore very disappointing that at this very late stage we see again the same vice. So I share the disappointment and regret that, given the stage we are at, it is too late to do anything about it. But I hope that the Minister will take back to his department our concern and the promise—it is not a threat—that, if similar powers are put before us in another Bill, no doubt noble Lords will have more to say about it.
Lord Ahmad of Wimbledon
My Lords, I thank noble Lords for their comments on this amendment and, of course, I have noted what all noble Lords said and the concerns they expressed. Let me assure them once again—I mention in particular the noble Baroness, who mentioned Amendments 11 and 12—that I will address specifically the powers of the Minister, and give the assurance once again that a detailed response will be provided to the Delegated Powers Committee. I am seeking to ensure that this response will be provided before the Recess.
Lord Ahmad of Wimbledon
That this House do agree with the Commons in their Amendments 5 to 8.
“(6A) In this Act any reference to a gross violation of human rights is to conduct which—
(a) constitutes, or
(b) is connected with,
the commission of a gross human rights abuse or violation; and whether conduct constitutes or is connected with the commission of such an abuse or violation is to be determined in accordance with section 241A of the Proceeds of Crime Act 2002.”
Lord Ahmad of Wimbledon
That this House do agree with the Commons in their Amendments 9 and 10.
“( ) Regulations—
(a) may create criminal offences for the purposes of the enforcement of prohibitions or requirements mentioned in subsection (2)(a) or (b) or for the purposes of preventing such prohibitions or requirements from being circumvented, and
(b) may include provision dealing with matters relating to any offences created for such purposes by regulations (including provision that creates defences).
( ) Regulations may not provide for an offence under regulations to be punishable with imprisonment for a period exceeding—
(a) in the case of conviction on indictment, 10 years;
(b) in the case of summary conviction—
(i) in relation to England and Wales, 12 months or, in relation to offences committed before section 154(1) of the Criminal Justice Act 2003 comes into force, 6 months;
(ii) in relation to Scotland, 12 months;
(iii) in relation to Northern Ireland, 6 months.”
“Report in respect of offences in regulations
(1) In this section “relevant regulations” means regulations under section 1 which create any offence for the purposes of—
(a) the enforcement of any prohibitions or requirements imposed by or under regulations under section 1, or
(b) preventing any such prohibitions or requirements from being circumvented.
(2) The appropriate Minister making any relevant regulations (“the Minister”) must at the required time lay before Parliament a report which—
(a) specifies the offences created by the regulations, indicating the prohibitions or requirements to which those offences relate,
(b) states that the Minister considers that there are good reasons for those prohibitions or requirements to be enforceable by criminal proceedings and explains why the Minister is of that opinion, and
(c) in the case of any of those offences which are punishable with imprisonment—
(i) states the maximum terms of imprisonment that apply to those offences,
(ii) states that the Minister considers that there are good reasons for those maximum terms, and
(iii) explains why the Minister is of that opinion.
(3) Subsection (4) applies where an offence created by the regulations relates to a particular prohibition or requirement and the Minister considers that a good reason—
(a) for that prohibition or requirement to be enforceable by criminal proceedings, or
(b) for a particular maximum term of imprisonment to apply to that offence,
is consistency with another enactment relating to the enforcement of a similar prohibition or requirement.
(4) The report must identify that other enactment.
(5) In subsection (3) “another enactment” means any provision of or made under an Act, other than a provision of the regulations to which the report relates.
(6) In subsection (2) “the required time” means—
(a) in the case of regulations contained in a statutory instrument which is laid before Parliament after being made, the same time as the instrument is laid before Parliament;
(b) in the case of regulations contained in a statutory instrument a draft of which is laid before Parliament, the same time as the draft is laid.
(7) This section applies to regulations which amend other regulations under section 1 so as to create an offence as it applies to regulations which otherwise create an offence.”
Lord Ahmad of Wimbledon
My Lords, we now come to the important issue of criminal offences. This group of amendments would allow powers in the Bill to be used to create criminal offences and penalties in regulations for both sanctions and money laundering breaches, subject to new safeguards.
I say at the outset that I recognise that your Lordships’ House had serious concerns about the inclusion of these powers, and the noble and learned Lord, Lord Judge, in particular, remains very concerned. I assure all noble Lords that once the Bill left your Lordships’ House we continued to listen to those concerns and have sought to address them. That is why these amendments also include an important new procedural safeguard of a requirement to report to Parliament, meaning that the Government have to inform Parliament specifically about the use of the powers to create criminal offences in secondary legislation. This is intended to enable Parliament to be better informed about the use of these powers and to be able to properly hold the Minister to account.
I shall go through each of the amendments in more detail. Amendments 9 and 21 restore the ability to provide for criminal offences and penalties in sanctions and money laundering regulations. In tabling these amendments, I acknowledge your Lordships’ recognition of the importance of rigorous anti-money laundering and sanctions regimes. In order to ensure the robustness of future sanctions and anti-money laundering regulations, corresponding powers to create criminal offences for breaches of those future regimes are necessary so as to preserve the ability of future Governments to impose effective and dissuasive sanctions for breaches of regulations.
I recognise that some in your Lordships’ House had concerns about the scope of these powers when the Bill was first introduced. These amendments address those concerns through additional safeguards, which must be met before the powers can be used. When I come to Amendments 31, 32 and 34, I shall elaborate upon the safeguards, which the Government have discussed with noble Lords since the Bill’s passage through this House.
The amendments restore our ability to enforce sanctions. As noble Lords are aware, sanctions are used to prevent serious threats to national and international peace and security. It is therefore right that breach of them is a criminal offence, and it is also right that penalties should be set at a level that acts as a proper deterrent for these serious crimes. The Bill gives us the ability to set penalties at up to 10 years’ imprisonment, but that does not mean that we will set them at the maximum in every case.
In respect of trade sanctions, offences for breaches of prohibitions made under the Export Control Act 2002 all have maximum penalties of 10 years’ imprisonment. That does not apply to the trade sanction prohibitions created under the European Communities Act 1972, which are capped at two years’ imprisonment, despite the breaches being just as serious a matter. This Bill will enable us to remedy that disparity by harmonising maximum penalties for breaches of all trade sanctions at 10 years.
Currently, breaches of financial sanctions can be punished by up to seven years’ imprisonment, and we plan to continue to set penalties at this level for financial sanctions. We also plan for breaches of other sanctions, such as transport sanctions, to have penalties set to match this level. There will also be offences, such as the failure to provide information when required to do so by law, that require lesser penalties, such as up to two years’ imprisonment, and we do not plan to increase penalties in those areas either.
I have set out in previous debates how the enforceability of new regulations would be seriously weakened without the power to create criminal offences, and how it is not unusual for requirements in delegated legislation to be enforced using criminal penalties. I now turn to the procedural safeguards we have introduced, which I hope will constitute sufficient reassurance to noble Lords who have expressed concerns.
Amendments 10, 25 and 32 introduce the important safeguard of requiring the Government to lay a report before Parliament whenever criminal offences are created or amended in sanctions regulations made under Clause 1 or in anti-money laundering regulations made under Clause 43. The amendments require the report to be laid at the same time as the regulations are laid or when the draft statutory instrument containing the relevant regulations is laid, depending on which parliamentary procedure is used. The report will facilitate effective parliamentary scrutiny of future use of criminal offences in sanctions regulations and goes further than the status quo in enabling Parliament to scrutinise the creation of criminal offences through sanctions or money laundering regulations.
The amendment specifies what elements should be included in these reports. Specifically, this will include: first, the details of the offences that have been created and the requirements to which they refer; secondly, the good reasons why a breach of these requirements should be enforced via criminal offences; thirdly, the maximum prison terms for any offences created which are punishable by imprisonment; and, fourthly, the reasons why those maximum terms have been set at the level they have. I trust noble Lords will agree that these reports will provide increased transparency as to the reasons for creating future criminal offences, and so give both Houses of Parliament a new and solid basis for holding the Government to account on the use of these powers when debating regulations made under the Bill. Nevertheless, the Government remain very aware that creating criminal offences and setting penalties in regulations is a serious matter and not one to be undertaken lightly. We hope that these amendments address that.
I would also like to take this opportunity to assure your Lordships’ House that the requirement contained in Amendment 25—for a Minister, when for whatever reason a report is not laid on time, to make a statement about that failure to the House—does not in any way circumvent the obligation to make the statement. It is an additional requirement, meant to create a further obligation to Parliament that if, for example, there has been some administrative error in publishing a statement, Ministers must provide an explanation to Parliament for that failure.
Amendment 31 is consequential to new paragraph 20A inserted by Amendment 32. The envisaged paragraph 20A(1) of Schedule 2 clarifies the scope of potential offences created for the purposes of the enforcement of requirements imposed by or under regulations under Clause 43.
Amendment 32 also makes the power to create criminal offences in money laundering regulations subject to the requirement for a report to Parliament along the same lines as the amendments for Part 1 of the Bill. This amendment clarifies that the scope of the power for creating future offences is restricted to offences for the purposes of enforcing future anti-money laundering regulations. It is both necessary and, importantly, proportionate.
Amendment 34 ensures that references made to regulations made under Clause 43, with respect to paragraph 15 of Schedule 2, and requirements imposed by regulations made under Clause 43, with respect to paragraph 20A of Schedule 2, also include reference to or requirements imposed by the Money Laundering Regulations 2017. This amendment ensures that new money laundering offences can be created by amending the Money Laundering Regulations 2017. It will therefore enable the Government to create new offences in order to respond, for example, to emerging risks identified by the national risk assessment of money laundering and terrorist financing, which was published in October of last year, or in response to the ongoing review by the Financial Action Task Force of the UK’s anti-money laundering and counterterrorist finance regime. I beg to move.
Lord Pannick
My Lords, in the early stages of this Bill, my noble and learned friend Lord Judge, who is not in his place, expressed the concerns that many of us felt about Ministers being given a power to create new criminal offences and, indeed, to specify maximum sentences. I am very pleased that the Government have recognised a need for safeguards in this context. This is an exceptional circumstance, and I very much hope that the Government will not see this as a precedent to be used in other contexts.
Baroness Northover
My Lords, the potential creation of new criminal offences by Ministers was of course the subject of major debate in the Lords, and the Government were defeated. It is the Government’s compromise that we are considering here. I know that the Government and the noble and learned Lord, Lord Judge, spent a great deal of time on this, as did my noble friend Lady Bowles. Noble Lords did not quite get to where they would have liked, but I know that they thought progress had been made. We are therefore content to accept the position that we have reached. However, the noble Lord, Lord Pannick, makes an important point about this not being a precedent.
Lord Ahmad of Wimbledon
I thank the noble Lord and the noble Baroness who have spoken. When this issue left your Lordships’ House, I emphasised and assured noble Lords that we would continue to work, particularly, with the noble and learned Lord, Lord Judge, and officials continue to do so. Every time I saw him in a Division Lobby or outside it—often he was going in the opposite direction, but we will park that for a moment—he reassured me that progress was being made, and this is the culmination of that. I thank noble Lords for their support.
Lord Ahmad of Wimbledon
That this House do agree with the Commons in their Amendment 11.
“Enforcement: goods etc on ships
(1) The provision that may be made by virtue of section 17(2) (enforcement of prohibitions or requirements) includes provision as to the powers and duties of prescribed persons in relation to—
(a) British ships in foreign waters or international waters,
(b) ships without nationality in international waters, and
(c) foreign ships in international waters.
(2) Regulations may make provision by virtue of this section only for the purpose of enforcing relevant prohibitions or requirements.
(3) A prohibition or requirement is a “relevant prohibition or requirement” for the purposes of this section if it is—
(a) a prohibition or requirement specified by the regulations which is imposed by regulations for a purpose mentioned in any of paragraphs 2 to 7, 15(a), (b) or (c) or 16(a) of Schedule 1, or
(b) a prohibition or requirement imposed by a condition of a licence or direction issued by virtue of section 15 in relation to a prohibition or requirement mentioned in paragraph (a).
(4) The powers that may be conferred by virtue of this section include powers to—
(a) stop a ship;
(b) board a ship;
(c) require any person found on a ship boarded by virtue of this section to provide information or produce documents;
(d) inspect and copy such documents or information;
(e) stop any person found on such a ship and search that person for—
(i) prohibited goods, or
(ii) any thing that might be used to cause physical injury or damage to property or to endanger the safety of any ship;
(f) search a ship boarded by virtue of this section, or any thing found on such a ship (including cargo), for prohibited goods;
(g) seize goods found on a ship, in any thing found on a ship, or on any person found on a ship (but see subsection (8));
(h) for the purpose of exercising a power mentioned in paragraph (e), (f) or (g), require a ship to be taken to, and remain in, a port or anchorage in the United Kingdom or any other country willing to receive it.
(5) Regulations that confer a power mentioned in subsection (4)(a) to (f) or (h) must provide that a person may not exercise the power in relation to a ship unless the person has reasonable grounds to suspect that the ship is carrying prohibited goods (and the regulations need not require the person to have reasonable grounds to suspect that an offence is being or has been committed).
(6) Regulations that confer a power mentioned in subsection (4)(e)(i) or (f) must provide that the power may be exercised only to the extent reasonably required for the purpose of discovering prohibited goods.
(7) Regulations that confer a power mentioned in subsection (4)(e)(ii) on a person (“the officer”) may permit the search of a person only where the officer has reasonable grounds to believe that that person might use a thing in a way mentioned in subsection (4)(e)(ii).
(8) Regulations that confer a power mentioned in subsection (4)(g) on a person—
(a) must provide for the power to be exercisable on a ship only where that person is lawfully on the ship (whether in exercise of powers conferred by virtue of this section or otherwise), and
(b) may permit the seizure only of—
(i) goods which that person has reasonable grounds to suspect are prohibited goods, or
(ii) things within subsection (4)(e)(ii).
(9) Regulations that confer a power on a person by virtue of this section may authorise that person to use reasonable force, if necessary, in the exercise of the power.
(10) Regulations that confer a power by virtue of this section must provide that—
(a) the power may be exercised in relation to a British ship in foreign waters only with the authority of the Secretary of State, and
(b) in relation to foreign waters other than the sea and other waters within the seaward limits of the territorial sea adjacent to any relevant British possession, the Secretary of State may give authority only if the State in whose waters the power would be exercised consents to the exercise of the power.
(11) Regulations that confer a power by virtue of this section must provide that—
(a) the power may be exercised in relation to a foreign ship only with the authority of the Secretary of State, and
(b) the Secretary of State may give authority only if—
(i) the home state has requested the assistance of the United Kingdom for the purpose of enforcing relevant prohibitions or requirements,
(ii) the home state has authorised the United Kingdom to act for that purpose, or
(iii) the United Nations Convention on the Law of the Sea 1982 (Cmnd 8941) or a UN Security Council Resolution otherwise permits the exercise of the powers in relation to the ship.
(12) The reference in subsection (11) to the United Nations Convention on the Law of the Sea includes a reference to any modifications of that Convention agreed after the passing of this Act that have entered into force in relation to the United Kingdom.
(13) In this section—
“arrangements” includes any agreement, understanding, scheme, transaction or series of transactions (whether or not legally enforceable);
“British ship” means a ship falling within paragraph (a), (c), (d) or (e) of section 7(12);
“foreign ship” means a ship which—
(a) is registered in a State other than the United Kingdom, or
(b) is not so registered but is entitled to fly the flag of a State other than the United Kingdom;
“foreign waters” means the sea and other waters within the seaward limits of the territorial sea adjacent to any relevant British possession or State other than the United Kingdom;
“goods” includes technology within the meaning of Schedule 1 (see paragraph 36 of that Schedule);
“home state”, in relation to a foreign ship, means—
(a) the State in which the ship is registered, or
(b) the State whose flag the ship is otherwise entitled to fly; “international waters” means waters beyond the territorial sea of the United Kingdom or of any other State or relevant British possession;
“prohibited goods” means goods which have been, or are being, dealt with in contravention of a relevant prohibition or requirement (see subsection (3));
“regulations” means regulations under section 1;
“relevant British possession” has the same meaning as in section 7 (see subsection (14) of that section);
“ship” has the same meaning as in section 7 (see subsection (14) of that section);
“ship without nationality” means a ship which—
(a) is not registered in, or otherwise entitled to fly the flag of, any State or relevant British possession, or
(b) sails under the flags of two or more States or relevant British possessions, or under the flags of a State and relevant British possession, using them according to convenience.
(14) In the definition of “prohibited goods” in subsection (13), the reference to goods dealt with in contravention of a relevant prohibition or requirement includes a reference to a case where—
(a) arrangements relating to goods have been entered into that have not been fully implemented, and
(b) if those arrangements were to be fully implemented, the goods would be dealt with in contravention of that prohibition or requirement.”
Lord Ahmad of Wimbledon
That this House do agree with the Commons in their Amendment 12.
“Goods etc on ships: non-UK conduct
(1) Regulations may make provision conferring on prescribed persons powers exercisable—
(a) in relation to—
(i) British ships in foreign waters or international waters,
(ii) ships without nationality in international waters, and
(iii) foreign ships in international waters,
(b) for the purpose of—
(i) investigating the suspected carriage of relevant goods on such ships, or
(ii) preventing the continued carriage on such ships of goods suspected to be relevant goods.
(2) The powers that may be conferred by virtue of this section include powers to—
(a) stop a ship;
(b) board a ship;
(c) require any person found on a ship boarded by virtue of this section to provide information or produce documents;
(d) inspect and copy such documents or information;
(e) stop any person found on such a ship and search that person for—
(i) relevant goods, or
(ii) any thing that might be used to cause physical injury or damage to property or to endanger the safety of any ship;
(f) search a ship boarded by virtue of this section, or any thing found on such a ship (including cargo), for relevant goods;
(g) seize goods found on a ship, in any thing found on a ship, or on any person found on a ship (but see subsection (6));
(h) for the purpose of exercising a power mentioned in paragraph (e), (f) or (g), require a ship to be taken to, and remain in, a port or anchorage in the United Kingdom or any other country willing to receive it.
(3) Regulations that confer a power mentioned in subsection (2)(a) to (f) or (h) must provide that a person may not exercise the power in relation to a ship unless the person has reasonable grounds to suspect that the ship is carrying relevant goods.
(4) Regulations that confer a power mentioned in subsection (2)(e)(i) or (f) must provide that the power may be exercised only to the extent reasonably required for the purpose of discovering relevant goods.
(5) Regulations that confer a power mentioned in subsection (2)(e)(ii) on a person (“the officer”) may permit the search of a person only where the officer has reasonable grounds to believe that that person might use a thing in a way mentioned in subsection (2)(e)(ii).
(6) Regulations that confer a power mentioned in subsection (2)(g) on a person—
(a) must provide for the power to be exercisable on a ship only where that person is lawfully on the ship (whether in exercise of powers conferred by virtue of this section or otherwise), and
(b) may permit the seizure only of—
(i) goods which that person has reasonable grounds to suspect are relevant goods, or
(ii) things within subsection (2)(e)(ii).
(7) Regulations that confer a power on a person by virtue of this section may authorise that person to use reasonable force, if necessary, in the exercise of the power.
(8) Regulations that confer a power by virtue of this section must provide that—
(a) the power may be exercised in relation to a British ship in foreign waters only with the authority of the Secretary of State, and
(b) in relation to foreign waters other than the sea and other waters within the seaward limits of the territorial sea adjacent to any relevant British possession, the Secretary of State may give authority only if the State in whose waters the power would be exercised consents to the exercise of the power.
(9) Regulations that confer a power by virtue of this section must provide that—
(a) the power may be exercised in relation to a foreign ship only with the authority of the Secretary of State, and
(b) the Secretary of State may give authority only if—
(i) the home state has requested the assistance of the United Kingdom for a purpose mentioned in subsection (1)(b),
(ii) the home state has authorised the United Kingdom to act for such a purpose, or
(iii) the United Nations Convention on the Law of the Sea 1982 (Cmnd 8941) or a UN Security Council Resolution otherwise permits the exercise of the powers in relation to the ship.
(10) The reference in subsection (9) to the United Nations Convention on the Law of the Sea includes a reference to any modifications of that Convention agreed after the passing of this Act that have entered into force in relation to the United Kingdom.
(11) In this section—
“regulations” means regulations under section 1;
“relevant goods” means goods in relation to which relevant non-UK conduct is occurring or has occurred;
“relevant non-UK conduct” means conduct outside the United Kingdom by a person other than a United Kingdom person that would constitute a contravention of a relevant prohibition or requirement if the conduct had been—
(a) in the United Kingdom, or
(b) by a United Kingdom person;
“relevant prohibition or requirement” has the same meaning as in section (Enforcement: goods etc on ships) (see subsection (3) of that section);
“United Kingdom person” has the same meaning as in section 18 (see subsection (2) of that section).
(12) In the definition of “relevant non-UK conduct” in subsection (11), the reference to conduct that would constitute a contravention of a relevant prohibition or requirement if the conduct had been in the United Kingdom or by a United Kingdom person includes a reference to a case where—
(a) arrangements relating to goods have been entered into that have not been fully implemented, and
(b) if those arrangements were to be fully implemented (and if the conduct had been in the United Kingdom or by a United Kingdom person) the goods would be dealt with in contravention of that prohibition or requirement.
(13) In this section, the following expressions have the same meaning as in section (Enforcement: goods etc on ships)—
“arrangements”,
“British ship”,
“foreign ship”,
“foreign waters”,
“goods”,
“home state”,
“international waters”,
“relevant British possession”,
“ship”, and
“ship without nationality”.”
Lord Ahmad of Wimbledon
That this House do agree with the Commons in their Amendments 13 to 21.
“( ) Nothing in this section limits the provision that may be made in regulations under section 1 by virtue of section (Enforcement: goods etc on ships) or (Goods etc on ships: non-UK conduct).”
“Independent review of regulations with counter-terrorism purpose
(1) The Secretary of State must appoint a person to review the operation of such asset-freeze provisions of relevant regulations made by the Secretary of State as the Secretary of State may from time to time refer to that person.
(2) The Treasury must appoint a person to review the operation of such asset-freeze provisions of relevant regulations made by the Treasury as the Treasury may from time to time refer to that person.
(3) The persons appointed under subsection (1) and (2) may be the same person.
(4) In each calendar year, by 31 January—
(a) the person appointed under subsection (1) must notify the Secretary of State of what (if any) reviews under that subsection that person intends to carry out in that year, and
(b) the person appointed under subsection (2) must notify the Treasury of what (if any) reviews under that subsection that person intends to carry out in that year.
(5) Reviews of which notice is given under subsection (4) in a particular year— (a) may not relate to any provisions that have not been referred before the giving of the notice, and
(b) must be completed during that year or as soon as reasonably practicable after the end of it.
(6) The person who conducts a review under this section must as soon as reasonably practicable after completing the review send a report on its outcome to—
(a) the Secretary of State, if the review is under subsection (1), or
(b) the Treasury, if the review is under subsection (2).
(7) On receiving a report under this section the Secretary of State or (as the case may be) the Treasury must lay a copy of it before Parliament.
(8) The Secretary of State may pay the expenses of a person who conducts a review under subsection (1) and also such allowances as the Secretary of State may determine.
(9) The Treasury may pay the expenses of a person who conducts a review under subsection (2) and also such allowances as the Treasury may determine.
(10) For the purposes of this section, regulations are “relevant regulations” if—
(a) they are regulations under section 1, and
(b) they state under section 1(3) at least one purpose which—
(i) is not compliance with a UN obligation or other international obligation, and
(ii) relates to counter-terrorism.
(11) A purpose “relates to counter-terrorism” if the report under section 2 in respect of the regulations indicated that, in the opinion of the appropriate Minister making them, the carrying out of that purpose would further the prevention of terrorism in the United Kingdom or elsewhere.
(12) For the purposes of this section a provision of relevant regulations is an “asset-freeze provision” if and to the extent that it—
(a) imposes a prohibition or requirement for a purpose mentioned in section 3(1)(a), (b) or (d), or
(b) makes provision in connection with such a prohibition or requirement.
(13) If a provision is referred under this section which contains a designation power, any review under this section of the operation of that provision may not include a review of any decisions to designate under that power.”
“Periodic reports on exercise of power to make regulations under section 1
(1) The Secretary of State must as soon as reasonably practicable after the end of each reporting period lay before Parliament a report which—
(a) specifies the regulations under section 1, if any, that were made in that reporting period,
(b) identifies which, if any, of those regulations—
(i) stated a relevant human rights purpose, or
(ii) amended or revoked regulations stating such a purpose,
(c) specifies any recommendations which in that reporting period were made by a Parliamentary Committee in connection with a relevant independent review, and
(d) includes a copy of any response to those recommendations which was made by the government to that Committee in that reporting period.
(2) Nothing in subsection (1)(d) requires a report under this section to contain anything the disclosure of which may, in the opinion of the Secretary of State, damage national security or international relations.
(3) For the purposes of this section the following are reporting periods—
(a) the period of 12 months beginning with the day on which this Act is passed (“the first reporting period”), and
(b) each period of 12 months that ends with an anniversary of the date when the first reporting period ends.
(4) For the purposes of this section—
(a) regulations “state” a purpose if the purpose is stated under section 1(3) in the regulations;
(b) a purpose is a “relevant human rights purpose” if, in the opinion of the Secretary of State, carrying out that purpose would provide accountability for or be a deterrent to gross violations of human rights.
(5) In this section—
“the government” means the government of the United Kingdom; “gross violation of human rights” has the meaning given by section 1(6A);
a “Parliamentary Committee” means a committee of the House of Commons or a committee of the House of Lords or a joint committee of both Houses;
a “relevant independent review”, in relation to a Parliamentary Committee, means a consideration by that Committee of whether the power to make regulations under section 1 should be exercised in connection with a gross violation of human rights.”
“Procedure for dealing with goods etc seized from ships
(1) The Secretary of State may by regulations make provision about the procedure to be followed in connection with goods seized under a power conferred by regulations under section 1 by virtue of section (Enforcement: goods etc on ships) or (Goods etc on ships: non-UK conduct).
(2) Regulations under this section relating to goods seized on suspicion of being prohibited goods or relevant goods may include provision—
(a) requiring prescribed persons to be notified of the seizure of the goods;
(b) requiring the Secretary of State to determine whether the seized goods were, at the time of their seizure, prohibited goods (where the goods were seized under a power conferred by virtue of section (Enforcement: goods etc on ships)) or relevant goods (where the goods were seized under a power conferred by virtue of section (Goods etc on ships: non-UK conduct));
(c) enabling the making of a claim by prescribed persons in relation to the seized goods;
(d) about the determination by a prescribed court of any such claim;
(e) about the publicity to be given to any such determination by a court;
(f) for and about the return of seized goods to prescribed persons before or after any such determination of a claim by a court;
(g) about the treatment of seized goods not so returned (including, in prescribed circumstances, their destruction or sale);
(h) for and about the payment of compensation by the Secretary of State following a determination by a court that the goods were not, at the time of their seizure, prohibited goods (where the goods were seized under a power conferred by virtue of section (Enforcement: goods etc on ships)) or relevant goods (where the goods were seized under a power conferred by virtue of section (Goods etc on ships: non-UK conduct)).
(3) In this section—
“goods” has the same meaning as in sections (Enforcement: goods etc on ships) and (Goods etc on ships: non-UK conduct) (see subsections (13) of those sections);
“prohibited goods” has the same meaning as in section (Enforcement: goods etc on ships) (see subsection (13) of that section);
“relevant goods” has the same meaning as in section (Goods etc on ships: non-UK conduct) (see subsection (11) of that section).”
Lord Ahmad of Wimbledon
That this House do agree with the Commons in their Amendment 22.
“Public registers of beneficial ownership of companies registered in British Overseas Territories
(1) For the purposes of the detection, investigation or prevention of money laundering, the Secretary of State must provide all reasonable assistance to the governments of the British Overseas Territories to enable each of those governments to establish a publicly accessible register of the beneficial ownership of companies registered in each government’s jurisdiction.
(2) The Secretary of State must, no later than 31 December 2020, prepare a draft Order in Council requiring the government of any British Overseas Territory that has not introduced a publicly accessible register of the beneficial ownership of companies within its jurisdiction to do so.
(3) The draft Order in Council under subsection (2) must set out the form that the register must take.
(4) If an Order in Council contains requirements of a kind mentioned in subsection (2)—
(a) it must be laid before Parliament after being made, and
(b) if not approved by a resolution of each House of Parliament before the end of 28 days beginning with the day on which it is made, it ceases to have effect at the end of that period (but without that affecting the power to make a new Order under this section).
(5) In calculating a period of 28 days for the purposes of subsection (4), no account is to be taken of any time during which Parliament is dissolved or prorogued or during which both Houses are adjourned for more than four days.
(6) For the purposes of this section, “British Overseas Territories” means a territory listed in Schedule 6 of the British Nationality Act 1981.
(7) For the purposes of this section, “a publicly accessible register of the beneficial ownership of companies” means a register which, in the opinion of the Secretary of State, provides information broadly equivalent to that available in accordance with the provisions of Part 21A of the Companies Act 2006.”
Lord Ahmad of Wimbledon
My Lords, Amendment 22 would put a duty on the Government to provide all reasonable assistance to our overseas territories to help them set up public registers of company beneficial ownership by 31 December 2020. If they do not do so, the amendment would require the Secretary of State to prepare a draft Order in Council requiring the Government of the overseas territories to introduce such registers.
Noble Lords are aware that the issue of the register of beneficial ownership was debated extensively in your Lordships’ House. I welcomed the insight and the expertise and, while there were differences of views, there was a robust debate. In this regard, the Government tabled on Report in the other place a package of amendments that sought to enhance the existing measures on beneficial ownership in the overseas territories but stopped short of the preparation of any legislation for the overseas territories ahead of the introduction of a public register as an international standard. As is his prerogative, Mr Speaker did not, however, select these amendments for debate. Therefore, the Government in the other place listened to the strength of feeling on this issue and accepted that it was the overwhelming view of the other place that the overseas territories should take steps to put public registers in place ahead of them becoming international standard as set by the Financial Action Task Force. Therefore, the Government did not oppose the new clause tabled by the right honourable Member for Sutton Coldfield and the right honourable Member for Barking.
Given the views expressed in the other place and the fact that we respect the will of Parliament, the Government do not now propose to table any new amendments. However, I would, nevertheless, like to make a number of points on this issue, not least as Minister for the Overseas Territories. I want to make it clear from the outset that we would have preferred a different approach to this question, as evidenced by the amendments we had tabled in the other place and my response to this debate in your Lordships’ House. Our approach has always been, and remains, as a priority to work consensually, constructively and collaboratively, with the overseas territories. Indeed, we have established strong channels with the overseas territories.
Let me be absolutely clear: the overseas territories are British, but they are separate jurisdictions with their own democratically elected Governments, responsible for their own fiscal matters and are not represented in this Parliament. We have legislated for them without their consent only in exceptional circumstances, for example to decriminalise homosexuality in certain territories to ensure that they were compliant with international human rights obligations. By contrast, financial services are an area of domestic responsibility for territory Governments, where they surpass—an important point to remember—international standards in the context of beneficial ownership. Legislating for these jurisdictions without their consent in this field effectively disenfranchises their elected representatives.
We are also fully cognisant of the territories’ concerns that the economic impact of imposing public registers on them will be significant—and these are not under normal circumstances. As noble Lords know, the British Virgin Islands, Anguilla and the Turks and Caicos Islands are still recovering from the two unprecedented category 5 hurricanes of last September. In the British Virgin Islands, nine out of 20 schools still remain closed and are accommodating their students in tents. The tourism industry has experienced a drop of 50% and is only now starting to recover. There remains a real risk that this will destabilise the reconstruction efforts of the hurricane affected territories, and all of this shortly before the next hurricane season begins in June. Accordingly, our preference would have been not to legislate in this manner without the territories’ consent, and let me assure noble Lords that our aim remains to work consensually and collaboratively with them to achieve the best possible outcome following the amendment.
As the reaction of the territories and their leaders has demonstrated, legislating for them without their consent risks damaging not only our long-standing constitutional arrangements respecting their autonomy but also our very proactive, positive and progressive relations with the overseas territories. Let me assure noble Lords that I have held a number of meetings with leaders and their London-based representatives since our debates at Report stage, and I have reaffirmed the importance that the United Kingdom attaches to our relationship with their jurisdictions. Equally, I would place on the record our gratitude to the overseas territories and to the Crown dependencies for the work that they have undertaken to implement the bilateral arrangements on the exchange of beneficial ownership information we concluded with them in 2016. In a relatively short timeframe, they have passed new primary legislation and delivered technological improvements to comply with the terms of these arrangements.
All Crown dependencies have central registers in place. Of the seven overseas territories with financial centres, Bermuda, the British Virgin Islands, the Cayman Islands, Gibraltar and the Turks and Caicos Islands already have central registers or similarly effective systems in place. Montserrat has also committed to establishing a public register, and we have recently signed a memorandum of understanding with Anguilla to fund its electronic search platform. In the case of Anguilla, the British Virgin Islands and the Turks and Caicos Islands, progress has been made notwithstanding some of the most challenging circumstances caused by last year’s hurricanes.
These arrangements, which provide UK law enforcement authorities, on request, with access to beneficial ownership information within 24 hours and within one hour in urgent cases, are already bearing fruit. As of 8 February, they had been used more than 70 times and the information obtained by UK law enforcement authorities as a result has been used to enhance intelligence leads and to support ongoing criminal investigations into illicit finance. It is important that we continue to work with the overseas territories and the Crown dependencies to implement fully these arrangements and, where necessary, to make improvements to the mechanisms for the exchange of information. We also have the statutory review of these arrangements that will report to Parliament by July 2019, and I remain confident that that will provide further evidence to all concerned of the benefits this provides to law enforcement authorities.
We should be clear that the arrangements go beyond the current international standards set by the Financial Action Task Force; these do not yet require private, let alone public, registers, reflecting a lack of international consensus in this important area. Imposing public registers on the overseas territories now carries with it the risk of a flight of business from them to other less regulated jurisdictions where our law enforcement authorities would not have the same level of access to beneficial ownership information as they do under the existing arrangements.
The Government have been consistently clear about their desire for public registers to become the global standard. Let us also be clear that the overseas territories do not oppose this, once there is an international standard. As I set out in my Written Ministerial Statement on 1 May, the Government will use their best endeavours, diplomatically and with international partners, to promote public registers of company beneficial ownership as the global standard by 2023. We would also expect the Crown dependencies to adopt public registers in that event.
I should also like to take this opportunity to place on record my deep concern about some of the intemperate language that was used in the other place about our overseas territories. References to “slave labour” and “money will go to where it is darkest” are liable to be misconstrued and are quite unacceptable in this context.
I would also like to use this opportunity to rebut the widely held misconceptions about the overseas territories. They are important financial centres for investors around the world. They have successful industries because they comply with regulatory standards and have taken significant steps on transparency. All overseas territories with financial centres have committed to greater tax transparency, by adopting the new global OECD standard for the automatic exchange between jurisdictions of taxpayer financial account information, and have started to exchange this information. In addition, HMRC has received data since September 2016 on accounts held in the overseas territories by UK taxpayers. Taken together, these measures are an important tool in combating tax evasion, and we welcome the co-operation and collaboration that we have received from both the overseas territories and the Crown dependencies in this area.
I thank noble Lords for their indulgence in allowing me to put on record the Government’s position and our thoughts on where we currently are. The overseas territories are an important part of what constitutes Britain today. However, notwithstanding the arguments I have made, the other place has sought to change the basis. Let me reiterate, with the words with which I started, that the Government will ultimately respect the will of Parliament on this issue and will now work constructively and collaboratively with the overseas territories towards the best possible outcomes. Let me assure noble Lords—and our overseas territories as well—that we will use our best endeavours and a supportive, constructive and collaborative approach in the international sphere to promote public registers of company beneficial ownership as the global standard, so that we can, as the overseas territories agree, achieve a level playing field in this area—a principle that we are all agreed on. I beg to move.
Amendment 22A (as an amendment to the Motion on Amendment 22)
Lord Naseby (Con)
My Lords, in speaking to Amendment 22A I declare an interest as vice-chairman of the All-Party Group for the Cayman Islands; I also have family working in financial services in the Cayman Islands.
Last weekend, 100,000 people lined the route of the wedding party. There was great joy there and in the rest of the country. Some 100,000 people in the overseas territories shared the joy of the Royal Family, except that every one of them was fearful for the future of their families. As matters stand today, what happened in the Commons—we have now heard from the Minister that the Government are not prepared to overturn it—is a catastrophe for financial services in the overseas territories. That cannot be taken lightly.
Your Lordships will remember that Prime Minister Cameron, who started the idea of public registers, thought he should lead in the world. He did not work out, however, what the impact would be on the rest of the overseas territories. He was more interested, I suspect, to lead, and to lead at a time when, if you look at our own Companies House, you cannot today get a really up-to-date situation on a great many companies, because Companies House is rarely up to date. Indeed, Companies House looks carefully at perhaps only one-third of companies that register. So that is not the answer. Why did Her Majesty’s Government not think a little further at that time about what was going to happen?
Lord Flight (Con)
My Lords, I want to speak out against Amendment 22 and in favour of Amendment 22A. I also declare my own interests as in the register: I am a regulator in the island of Guernsey.
As the Minister argued well, Amendment 22 raises major constitutional issues which the noble Lord, Lord Naseby, has described in even greater detail, but it is also the wrong approach to addressing the very problem of money laundering. It is shameful that the UK has a far worse record than the overseas territories. The reforms in the UK do not work because they do not include any non-British company and have no verification, whereas the arrangements that both the Crown dependencies and overseas territories have put in place provide all the necessary information to the appropriate authorities on asking. It is also a much more tightly and accurately kept register.
The legislation invites the overseas territories to discuss the constitutional position with government; it may be suitable to go for judicial review. I am sure that some will feel that the UK Government are trying to push them in the direction of a UDI. The UK Government’s position was set out extremely well back in 2015, at the beginning of debates on this territory, by the noble Baroness, Lady Neville-Rolfe, when she was Under-Secretary of State at the Department for Business. She said:
“The noble Lords, Lord Watson, Lord Mitchell and others, asked why we are not including the overseas territories and Crown dependencies in this legislation. The Prime Minister made clear that he would like a publicly accessible central registry of company beneficial ownership information to be the new international standard. We would therefore like the overseas territories and Crown dependencies to match our policy. We respect, however, the fact that the overseas territories and Crown dependencies are separate jurisdictions with their own elected Governments, under which they are responsible for fiscal matters”.—[Official Report, 19/1/15; col. GC 321.]
That was the British Government setting out our position quite straightforwardly, but they are now standing on their head and, as commented, putting the overseas territories out to dry.
The UK treats overseas territories and Crown dependencies alike, so it is rather strange that there is one arrangement for one category and one for another. Amendment 22 empowers the United Kingdom Government to impose publicly accessible registers on overseas territories but not on Crown dependencies. If any overseas territory has not met the timetable by the end of December 2020 as advised, the Secretary of State is apparently mandated to draft Orders in Council requiring them so to do. I hope that, as time passes, if this legislation goes ahead, ways will be found to implement it in a more balanced manner and, potentially, for it to be amended at some future stage.
In the other place, Sir Alan Duncan repeated the point about overseas territories being,
“separate jurisdictions, with their own democratically elected Governments”.
He went on:
“They are responsible for their own fiscal matters, and they are not represented in this Parliament”,—[Official Report, Commons, 1/5/18; col. 181.]
which does not legislate for them. A deal was done 30 or 40 years ago in which, in essence, the British Government said, “We’re not going to support you financially. You’ve got to develop your own economy but we won’t interfere with your doing that”. However, they now represent a serious threat, as my noble friend Lord Naseby pointed out, to these jurisdictions.
Lord Anderson of Swansea
My Lords, the use by Russia of dirty money was highlighted in the report today of the Foreign Affairs Committee in respect of counterterrorism and so on. It is clear that although the two Members who have just spoken did so with great passion and knowledge, they failed to take on board the actual figures. Global Witness says that at the moment there is £34 billion of Russian money in the overseas territories, £30 billion of which is in the BVI. Why does the Russian money go there? Is it suggested that all that money is clean? Noble Lords will recall that when the noble Lord, Lord Faulks, and I among others were pointing out areas of property investment in London, we said there are several streets in the Royal Borough of Kensington and Chelsea, which we both know well, where the lights never go on at night because money—
Lord Flight
My Lords, does the noble Lord, Lord Anderson, have the figure for black Russian assets in the UK? I imagine that there is substantially more than £30 billion.
Lord Anderson of Swansea
My Lords, with the public register of beneficial ownership it should be possible to obtain those figures. It would be absurd if money that fled from the London property market went to the overseas territories and sought a haven there. Anyway, the figures that are given—I am very happy be told that the they are incorrect—are that £34 billion of Russian money is currently in the overseas territories, £30 billion of which is in the BVI, and there has been over £100 billion over the past decade. Surely a proportion of that at the very least is dirty money, and the question must therefore be posed: are we prepared to countenance dirty money finding a haven in the overseas territories? That is what is suggested.
We have to respond very sensitively. Of course there will be an economic impact, and that will only be exacerbated by the impact of the hurricane, particularly in the BVI. Because of the UK’s responsibility to these overseas territories, we will have to bear at least part of the cost, but surely we should not countenance the position that I have mentioned. If the Minister has figures other than this £34 billion, I am very happy to hear them, and if he suggests that none of that is dirty money then I will be happy to hear his view, but surely it is in everyone’s interest that dirty money be pursued wherever it is and that there be a publicly accessible register.
At the same time, the economic impact should be recognised, along with the possible damage to the constitutional position. If those countries wish to go independent, so be it. Fairly recently there was a report on the contingent liabilities to the British taxpayer of the overseas territories. I wonder where the balance would lie, if a number of these countries went independent, regarding the amount currently spent by the British taxpayer. I am happy with that, but the question must remain: if these figures are correct, and if it must be that a portion of that sum is dirty, are we prepared to allow that to continue?
Lord Northbrook (Con)
My Lords, is the noble Lord, Lord Anderson, aware that none of the overseas territories is on the EU blacklist of non-co-operative tax jurisdictions as of December last year?
Lord Anderson of Swansea
That may well be the case, but I pose the question again. There is this £34 billion of Russian money. We know that the oligarchs look for areas where they can usefully hide their assets. Are we prepared to continue to allow that?
Lord Neuberger of Abbotsbury (CB)
My Lords, I strongly support the amendment of the noble Lord, Lord Naseby. The clause which he seeks to remove from the Bill is a classic example of a proposal which may seem right to many people—for the reasons given so clearly by the noble Lord, Lord Anderson of Swansea—but, after proper consideration can be seen to be very wrong.
Unlike most countries, our constitutional arrangements are based on conventions and mutual respect rather than pieces of paper, and we break those conventions and trample on that mutual respect at our peril. As the 2012 White Paper on the territories recognised, the UK’s legislative power over the territories is in practice and by convention limited to,
“external affairs, defence, internal security (including the police) and the appointment, discipline and removal of public officers”—
and, I would add, compliance with the UK’s international obligations. Accordingly, the proposal would run contrary to the established distribution of powers—quite apart from the points made about the constitution of some of the territories.
Not only that, it would do so in a most inappropriate way. There has been no consultation with the democratically elected Governments of any of the territories about the legislation. There has been no investigation of the effectiveness of this law in relation to any of the territories. There has been no inquiry as to the economic and social consequences of the legislation on any of the territories. That is in circumstances where, to go back to what the White Paper said, the UK Government aim,
“to work with Territories to strengthen good governance arrangements, public financial management and economic planning”,
to work with the territories.
I regret to say that the proposed law appears to be old-style colonialism at its worst: damaging legislation which has no cost for the legislating country but which will cause hardship to the victim countries, and does so not merely without representation but without consultation or full investigation. But it gets worse. The law is imposed in circumstances in which it is indisputable that the BVI, Cayman and Bermuda comply with all current international transparency and taxation requirements, such as those laid down by the OECD. This was recognised by the very full and generally rather critical December 2017 EU Muscovici report, which identifies which countries are unco-operative by hiding assets, and so on, and it does not include any of the territories.
Lord Flight
Is it not the case that they also comply with all the FATF requirements, which the UK does not?
Lord Neuberger of Abbotsbury
I believe that is the case, yes. I was going on to say that in many respects it appears that all three territories which I mentioned have a regulatory regime which in many respects is stricter than that of this country.
On top of all this, this proposal imposes a financially damaging regime on at least three territories in the Caribbean area with significant financial service industries for which the UK has responsibility, while not doing so for the Crown dependencies with substantial financial service industries closer to home: Jersey, Guernsey and the Isle of Man, for example. That adds discriminatory insult to unconstitutional and unfair injury. Let me make it clear to the Crown dependencies that I say this to oppose the proposed law applying to the territories, not to support it applying to the dependencies.
Finally, what will happen if this unfair and unjustified law is brought into force, apart from leading to a real sense of grievance and of being let down on the part of small states which it is our duty to protect? It will do no good. If there is the hot money to which the noble Lord, Lord Anderson of Swansea, referred, it will quickly move away from the BVI, Cayman and Bermuda to places which do not have respected democratic Governments and independent and respected courts, where the Judicial Committee of the Privy Council, which I had the honour to chair for five years, has no power. In effect, it will not be upholding the rule of law, it will be undermining it.
It will be only when we have universal acceptance of such regulation that, I respectfully suggest, it will be appropriate to impose it on these territories.
Lord Anderson of Swansea
With respect, is that not avoiding the question in an Augustinian way: make me good, but not yet, not until everybody else is good?
Lord Neuberger of Abbotsbury
So we have to sacrifice other people many miles away who have no say in it for the purpose of feeling good and leading the way? That seems to me, if I may say so, a very selfish attitude to take. It is simply inappropriate for us to do this for other countries.
Lord Collins of Highbury
If there was international agreement, is the noble and learned Lord suggesting that we should then impose on the territories?
Lord Neuberger of Abbotsbury (CB)
Judging by how the territories have behaved in the past, it seems pretty clear that we would not need to. They would comply, as they are currently doing, as the noble Lord, Lord Flight, said, with all their international requirements—indeed, going further than what is required. I would respectfully suggest that we should be supporting the amendment of the noble Lord, Lord Naseby.
Lord Beith (LD)
We should surely consider very carefully when what seems like a very necessary measure to tackle a great evil confronts a constitutional objection; this is not the way in which such a measure ought to be introduced. There are also qualifications I might make about the potential effectiveness of the public open registers to be imposed on these territories in dealing with the evil being addressed. But there is no question that those who are advancing the case are doing so because they see an urgent need to tackle this evil and see this as likely to help.
However when it comes to a constitutional objection, we have to think carefully. There are two constitutional issues at play: one is that the elected House has made a clear decision, following debates in both Houses, that we should proceed along this road. We have to accept that, as the Government have done. But we cannot do so without reflecting on the impact this will have, and in particular on the constitutional status of the territories concerned. They are, of course, a wide variety of territories, defined in Schedule 6 to the Nationality Act. That includes not just the British Virgin Islands, the Cayman Islands and Bermuda but the British Antarctic Territory, the British Indian Ocean Territory and the Pitcairn Islands, with about 50 inhabitants. It is not entirely clear how the Minister with responsibility—the noble Lord, Lord Ahmad, of course—will deal with the situation as it will affect some of those territories.
That variety also illustrates that there is a range of democratic and other development in this list of territories which includes many at different stages. The territories that have attracted most attention are those which, by and large, have well-embedded constitutional arrangements, introduced by this country, of which a major component is legislative autonomy. The question that we now have to answer is: what do we do about the legislative autonomy that we purport to have given to people, if outside the parameters set when we gave that autonomy we then seek to legislate for them? That question remains unanswered in this process.
When Britain decided what its policy towards former colonies would be, it did not take the French approach. The French approach, in relation to a number of territories, including neighbours of the territories we are talking about today, was to treat them as integral parts of France and give them representation in the National Assembly. We are having this argument and nobody from any of the overseas dependent territories is able to take part in the debate; it is all being done by people who, for different reasons, are aware of them, friendly towards them or simply, in my case, see it as a constitutional issue for them.
We did not take that approach. Are we now saying that the idea of developing them as separate democracies through legislative autonomy is not one that we will pursue any more? We will have to give them some kind of assurance if they are to understand what their constitutional relationship is. Britain is not just a franchise brand that we offer and take away at a moment’s notice. It is a country which has promoted the democratic development of its former colonies and we have to ask whether we can really do that if we insist on legislating for them in areas for which we have given legislative autonomy.
There was a question from the Labour Front Bench a moment ago about what would happen if there was an international standard and one of the territories declined to implement it which, as has been pointed out, has not been their practice up to now. They have implemented all the international standards. However, it is a perfectly legitimate question and the answer is that this is an area in which we have not given legislative autonomy to those territories. We have retained UK responsibility to deal with their international relations and their compliance with international treaties. We would indeed impose, in those circumstances, exactly within the parameters of legislative autonomy that has been given.
I pay tribute to the efforts devoted to this subject by the Minister, which I think are partly motivated by the fact that he has to deal with the consequences. He is the person who is responsible for our relations with these territories. But how can we reassert the constitutional relationship between the United Kingdom and those territories to which it has given legislative autonomy in the context presented by the decision that the House of Commons has taken?
Baroness Butler-Sloss (CB)
My Lords, I am a vice-chairman of the All-Party Parliamentary Group for Gibraltar, which, apart from one brief mention by the Minister, has not been so far commented on. Listening to the noble Lord, Lord Anderson, I wondered, as between the United Kingdom and many of the overseas territories, where the mote and the beam lay. I will not pursue that any further, but I think that it may be where the noble Lord may not appreciate that it is.
Gibraltar is entirely compliant with all the current requirements. It is bringing a public register into its law early next year. It is unnecessary, unhelpful and inappropriate that Gibraltar should be held under the clause proposed in Amendment 22. It is not an appropriate way in which to deal, as the noble and learned Lord, Lord Neuberger, and the noble Lord, Lord Beith, have already said, with a country that has had its own constitution since 2006 and is entirely compliant. It is sad to find that countries such as Gibraltar should be under a proposed regime that would interfere with its constitution, as has already been set out.
It is obvious that what should have happened—it seems to me that the Minister was making it very clear—is that there should be encouragement to those countries that are not yet sufficiently compliant. However, that does not apply to any of the countries that have so far been referred to. It is very sad indeed that the way in which the other place has behaved on this matter brings us to this unhappy situation, pointed out so admirably by the noble Lord, Lord Beith.
Lord Faulks
My Lords, I think that the noble and learned Baroness is quite right with her mote and beam analogy. We must think about London, as my noble friend Lord Naseby, said. In 2016, David Cameron announced his intention in respect of anti-corruption and a register of beneficial interests. Since then we have had the Criminal Finances Act 2017 and this Bill. In both of those, my noble friend Lord Hodgson and I were keen to ensure that the Government did their best to stem the flood of dirty money, particularly into property money in London, by setting up a register of beneficial ownership which, when combined with unexplained wealth orders, might really do something to prevent what is a real obscenity about London property at the moment. So much money is flooding into the market yet so few people who start their work in London can afford to live. That is the mote that we have in London.
I wanted to press the matter to a vote, because our intention was to hurry this up, but I was met with formidable opposition from the Government, explaining how difficult the whole thing was. Finally, just before a vote might otherwise have taken place, I was reassured that there was much activity in this regard and there would be regular updates and a ministerial Statement. Sadly, the earliest the register would be legislation-ready was 2021—so five years after David Cameron’s summit. Here we have an amendment put down in the Commons after very little of the preliminaries, as has been quite rightly pointed out, with no consultation and nothing of the sort that one would expect with such a radical procedure. It states:
“The Secretary of State must, no later than 31 December 2020, prepare a draft Order in Council”.
It is a “must”, not a “may”. The only part of this amendment which is, perhaps, acceptable, is the very first part, describing the reasonable assistance to be given to the Governments of the British Overseas Territories. However, I apprehend that that is being—and has been—given for some considerable time. I disagree with my noble friend Lord Naseby on only one point: the Minister, not only today but in responding to the amendment so eloquently moved by the noble Baroness, Lady Stern, on Report, vigorously defended the position of the Government and of the British Overseas Territories in their attempt to comply with the natural desire that we all have to stamp out corruption.
This amendment goes on to require an Order in Council to be laid before Parliament, but then provides that it ceases to have effect,
“if not approved by a resolution of each House of Parliament before the end of 28 days”.
I wonder if a resolution of that sort would meet with the approval of both Houses of Parliament, having regard to the hasty way in which this amendment was introduced and to the real difficulties that it will cause to our friends in the British Overseas Territories.
This amendment is ill thought out, no doubt born out of an entirely proper desire to stem the flood of corruption. However, in so doing it damages our relationship with the British Overseas Territories at a time when we need all the friends we can get outside this country. The amendment asks them to do what is required in a timeframe which is much shorter than that for this country: the mote and beam analogy is entirely appropriate.
The Earl of Kinnoull (CB)
My Lords, I declare my interests as set out in the register of the House, particularly those in respect of financial services. I support Amendment 22A, in the name of the noble Lord, Lord Naseby. How well we know what a stramash would result if Westminster sought to legislate for Scotland, in a matter of devolved competence, without even consulting the Scottish Parliament. Parliament developed the Sewel convention to cope with this very situation. We have heard, in a very powerful speech, from the noble and learned Lord, Lord Neuberger, and others just how this convention now expressly extends to our overseas territories.
The overseas territories are proud and sophisticated countries and deserve our respect. Constitutionally, our respect includes conventions. Money laundering is, rightly, a devolved matter for them. Bermuda, the Cayman Islands and the British Virgin Islands are large and sophisticated financial centres with well-respected regulators. Accordingly, to legislate without even consulting these Parliaments is conventionally wrong. This is why I feel that the Sewel convention should apply. Westminster has the power to intervene and should exercise this only when things are badly awry. However, evidence of “awryness” is, in fact, the other way.
As other noble Lords have mentioned, Pierre Moscovici delivered a report last year, and this was adopted by the European Council on 5 December. On page 5 of that 35-page report, the Council affirms that,
“these actions collectively taken by EU Member States are in line with the agenda promoted by the G20, the OECD and other international fora”.
None of the overseas territories is on the blacklist.
Annexe 2 of the adopted conclusions, which was updated twice in March this year, lists countries in various categories that have agreed to make changes by the end of this year; it is a large list. In other words, provided that changes are made by those countries, in the EU Council’s view they will be fully compliant with EU, G20 and OECD thinking in this area. Only four of the 14 overseas territories feature on the list of co-operative countries. The other 10 do not; in other words, they are absolutely clean in the eyes of Pierre Moscovici and his very substantial and hard-working staff. In that respect, the 10 that are clean are doing rather better than Switzerland or Hong Kong, which both appear on the list. Indeed, 29 countries are making changes to improve transparency; none of the overseas territories is listed. Twenty-seven countries are making changes to anti-BEPs measures, which are sophisticated corporate tax dodges; none of the overseas territories is listed. Twenty-eight countries, including Switzerland and Hong Kong, are making changes to amend or abolish harmful tax regimes. None of the overseas territories is listed. Nine countries, including Bermuda, Anguilla, the BVI and the Cayman Islands, have agreed to,
“address concerns relating to economic substance”.
Among those nine countries are Guernsey, Jersey and the Isle of Man, the only time their names appear in the annexe at all. Those three islands do not appear in the Commons amendment and, as other noble Lords have observed, I cannot believe that is fair.
Lord Brown of Eaton-under-Heywood (CB)
My Lords, if it is not improper to say so, I hugely regret the decision of the Speaker in the other place not to have permitted the Government to suggest other solutions to this problem without the need to override the overseas territories’ sovereignty rights. However, we are now faced with the Commons amendment and, although I recognise how powerful the speeches of all those who have supported the amendment in the name of the noble Lord, Lord Naseby, have been, and although I am deeply sympathetic to the overseas territories for the wholly undeserved insult to which this provision now appears to expose them, for my part I hope that the amendment in the name of the noble Lord, Lord Naseby, will not be pressed. If it is, I should, regretfully, feel unable to support it. This is not an appropriate occasion for yet another vote in this House that would override the considered view of the elected Chamber—after a full debate, which I read in Hansard this morning—moreover, in circumstances in which it would be bound most mischievously to be misrepresented as a vote by a privileged, unelected body intent, no doubt in the view of some, on preserving opportunities for the continued secretion of illicit funds abroad. It would be a wholly false slur on us, but I fear that it would be placed upon us by many. I hope that this is not judged an unduly pusillanimous approach.
Assuming the new clause is agreed, one can only hope that, two and a half years hence, it will not have proved necessary to make the contemplated Order in Council and, accordingly, that we shall never learn whether the opinion of the noble Lord, Lord Pannick, on its prospects were it to be challenged by the Judicial Committee of the Privy Council, was or was not correct.
Lord Hope of Craighead (CB)
My Lords, I had not intended to speak in this debate. With respect to the noble and learned Lord, Lord Brown of Eaton-under-Heywood, we owe a debt to the noble Lord, Lord Naseby, for tabling his amendment, because it has given us an opportunity to set the record straight. I hope that those in the affected overseas territories will take some comfort from the points in the very powerful speeches that have been made right across this House to express the great dismay at what happened in the other place.
I emphasise the opportunity that the noble Lord has given us to express our feelings, and personally endorse entirely what was said by the noble and learned Lord, Lord Neuberger, and the noble Earl, Lord Kinnoull, who set out very fully the arguments for supporting the noble Lord, Lord Naseby—although I know he will not press his amendment to a vote. It is very important, as I am sure the Minister will agree, that we have debated this and made the House’s position absolutely plain—while regretting that we have to accept the decision of the House of Commons.
Lord Judd (Lab)
My Lords, first let me say how much I appreciate the tremendous amount of work undertaken by the Minister in all that he has done on this front. I know that he has shown a great deal of personal commitment—as indeed did his predecessor. That should be put on record by all of us. We have moved a long way forward.
The noble Lord, Lord Naseby, said that he would not take lessons from Oxfam and Save the Children because of their record. I declare an interest: in the 1980s and 1990s I was a director of Oxfam and I have stayed very close to that organisation all my life, and remain as close now as I ever was—perhaps closer. I want to tell the noble Lord that the dismay and disgust in Oxfam at what happened in Haiti at the beginning of the decade cannot be overstated. There is profound dismay at what some people decided to do, and at the damage it has inevitably done both to the organisation and, more importantly, to thousands of people whom the organisation is now unable to help in the way that it would have liked because resources have inevitably dwindled.
That brings me to why this debate is so important. We have been discussing the technicalities of law and the constitution, and talking about the democratic rights of people—but what we are really talking about is justice, social responsibility and the accountability of wealth and power in the world. My noble friend Lord Anderson referred to the Select Committee’s report. It is a very important report, which we should all take very seriously, but it is operating in the context of parliamentary democracy and responsibility. All this Russian and other accumulated wealth that we are talking about—let us not dodge it; we have had allusions to property wealth finding its way to some of these territories as well—is not simply the wealth of those who are handling it; it is wealth that has come from countless ordinary people throughout society. That means that we all have a responsibility to ask: what are we doing, with teeth, to make sure that people who deceive, cheat and accumulate riches wrongly and unfairly are brought to account?
That is why I say how much I appreciate the tremendous work that the Minister has been doing. He has demonstrated the importance of diplomacy and the reality of the world that we live in. It is a matter not just of stating these things, however strongly we state them, but of how you move towards achieving what you want to achieve, and I take his arguments very seriously.
In the time that remains for this debate, I ask your Lordships to remember that we are talking not about money, although that may be a way of measuring the size of the problem, but about people—people from whom this money was accumulated and the countless people across the world for whose benefit it could be used through fair systems of taxation and through policies devised to meet the needs and help the development and emancipation of those who are exploited. This is not just a technical debate. I know that it is not fashionable to say it in this House but it has to be said: it is a debate about morality, justice and fairness. We have to stop sentimentalising about our commitment to those things; we have to make sure that there are teeth and muscle in meeting that commitment.
Perhaps I may come back for a moment to the challenge thrown down by the noble Lord, Lord Naseby, about my old organisation. I invite any of your Lordships to come and meet the staff, the trustees, the volunteers and the people across the world in the organisation who are busting a gut to make sure that something that happened at the beginning of the decade and let down the whole cause can never occur again.
Lord Northbrook (Con)
My Lords, I support the amendment in the name of my noble friend Lord Naseby. The Minister, to his credit, spent quite a lot of his speech arguing against government Amendment 22. I wondered why the Deputy Speaker did not call the government amendments and had some suspicions, now proved, that they were tabled too late. I add my disappointment at the seemingly lackadaisical attitude of the FCO. That, as my noble friend Lord Naseby said, is deeply disappointing when the issue is so important.
I should like to refer to one or two points that have been raised. First, none of the overseas territories ais on the EU blacklist of non-co-operative tax jurisdictions. Secondly, as I understand it, money laundering is a devolved issue for the overseas territories. Therefore, I question the assertion of the noble Lord, Lord Beith, that it comes under the area of international relations or international treaties. To legislate without even consulting their parliaments, let alone asking for their consent, is deeply wrong. In addition, the EU withdrew its proposal for public registers in December 2016 on the ground of concern about human rights. Could this be another case that the overseas territories could pursue?
Most countries are not adopting public registers. For the Caribbean overseas territories, the rival centres are the USA, Hong Kong and Singapore. They do not have public registers. To use an Order in Council for financial regulation, when the overseas territories have already adopted international standards, could expose the UK to legal challenge and be overturned on judicial review. I do not regard this as an exceptional circumstance where the UK Government should make laws.
The other place may think it good short-term politics, but the serious economic consequences and damage to our relationship with the overseas territories, and with the Commonwealth, will be long lasting. Perhaps one of the noble and learned Lords in the House will give their services pro bono for judicial review.
Lord Mackay of Clashfern (Con)
My Lords, I want to raise with the Minister the question of how the amendment we are discussing can come into force. It is not covered by the existing list of sections that come into force when the Bill receives Royal Assent. Therefore, it requires to be brought in by regulation. If it is correct—and I must say, I assume that the authorities who have spoken on it already are certainly correct—that it is contrary to the legal rights of the territories, it may be that the regulations seeking to bring this provision into force would be challengeable by judicial review.
In any case, we know from experience that the mere fact that something has been put into statute does not mean that it will happen; if it is subject to being brought into law by a ministerial action, it may never be brought into law at all. I have fairly profound experience of that myself. Certainly, considerable consideration of this by the law officers of the Crown would be required if the Government were going to make an order under the commencement provisions in respect of something that is legally challengeable.
I raise this question as a matter of justice, and justice of course requires that justice be done to all. One of the difficulties with this provision is that attempting to do justice in these territories may lead to injustice to these territories, in that the business they have will go to other places where there is no such regulation, doing nothing to help the ultimate situation and in fact bringing into effect a different type of injustice. Justice is a difficult thing to operate across the world, as we all know, and it may not be easy to effect it in this situation.
My main point is on the commencement provision and the extent of the Bill, which is subject to Privy Council regulation. There is a fair amount to be done before this becomes law.
Lord McNally
My Lords, I gladly gave way to the noble and learned Lord, Lord Mackay, because I know from long experience that his contributions are always of great help to the Minister at the Dispatch Box, as they were for me for a number of years.
The overseas territories cannot say that they have not been represented in the House this afternoon. There have been passionate speeches, not least by the noble Lord, Lord Naseby. I am not going to be so hypocritical as to advise him that he should not challenge the wisdom of the other place, having only a couple of hours ago extolled to your Lordships the very virtues of this House occasionally challenging the views of the other place.
Following on from the intervention of the noble Lord, Lord Judd, this has to be put in context. The noble and learned Lord, Lord Neuberger, said that we had no direct interest in this legislation, but when places are called the British Virgin Islands or the British Overseas Territories, we have a reputational responsibility we cannot avoid. If we do, we will damage our reputation. It is therefore right to look at this issue.
I was Minister for the Crown Dependencies—I see the noble Lord, Lord Faulks, nodding—and my noble friend Lord Beith and I worked closely together precisely to avoid the impasse we have now reached. We recognised that we had to work out the problems so that Britain could take on its proper responsibilities for these matters without doing too much damage to the dependencies which were trying to catch up. The way it has worked is one of the reasons why the dependencies qualify so well in the temperature-taking of various international organisations.
However, we have to go beyond the technicalities. Much of the cynicism, particularly among young people, is caused by issues such as the Panama papers and other exposures. Yes, the City of London has to take responsibility for the obscene avoidance of taxes and its co-operation with criminality in moving large amounts of money around in a dark economy. It is that which produces the cynicism that undermines our democracies. Ever since I have been in politics we usually blame the French, but we cannot simply use the argument that if we stop doing it, the French will do it. That is not an excuse for not doing the right thing and trying to set standards. David Cameron was quite right in trying to do this.
It is quite clear, not least from the interventions of the distinguished jurists we have in this House, that there is a problem. The solution was given by the noble and learned Lord, Lord Brown. My opinion of the Minister is boundless—he is going to have a couple of tough years ahead—and it would give him an opportunity to engage with the overseas territories to see whether the full implications of this legislation can be avoided by co-operation and initiatives, rather than the kind of process suggested by the noble and learned Lord, Lord Mackay. We have to see this in the context of a general public who are looking with nausea at what seems to be the ability of this money to find a home outside proper accountability.
I refer the noble Lord, Lord Naseby, to the briefing from 12 highly respected charities, and I understand the passion of the noble Lord, Lord Judd, in defending Oxfam. Although he did not name the Members of the other place, I will do so. In fact, Margaret Hodge and Andrew Mitchell are very well respected for their knowledge of and interest in these areas. We have to realise that the other place has been neither impetuous nor ill-informed in what it wants to do. But within the wider moral context set out by the noble Lord, Lord Judd, I hope that the Minister will find this debate useful in the very difficult diplomatic task that he now faces.
Lord Hunt of Wirral (Con)
My Lords, I declare my interests as set out in the register. I want only to say how much I agree with the noble and learned Lord, Lord Hope of Craighead, when he paid tribute to my noble friend Lord Naseby for giving us the opportunity to discuss this matter. When the noble Lord, Lord McNally, was in charge of our overseas territories, together with others, he embarked on a very positive consultation with them. What we are now trying to put right are a number of intemperate comments made in the House of Commons during its debate, and here I want to thank my noble friend the Minister for the way in which he opened the debate in this House. He recognised that a number of people in the British Overseas Territories feel outraged about some of those comments. However, as the noble and learned Lord, Lord Neuberger of Abbotsbury, pointed out, we are in the process of legislating for British Overseas Territories without proper prior consultation with their respective parliaments. I think it was my noble friend the Minister who said that this in effect disenfranchises their elected representatives.
Because of my connections to one of the territories, Bermuda, I am aware of the huge concern about some of the comments which have been made. It is sad that this year Bermuda’s constitution will celebrate 50 years of enactment. Moreover, Bermuda’s Parliament dates back to 1612 and is the third-oldest continuous parliament in the world, with the first assembly meeting in 1620. The Bermudians are very proud of that, and rightly so. When those intemperate comments were made, one person emailed me immediately to say that the Bermudian Mary Prince was the first slave to present an anti-slavery petition to these Houses and the first black woman to write and publish an autobiography in 1831. Her experience of the horrors she endured was the first of its kind to be documented by a slave and her words were instrumental in this House in contributing to the abolition of the slave trade in British colonies in 1838, some 30 years following the abolition of slavery in this country. We have to recognise the huge amount of pride among Bermudians about their history. I think that they have every right to feel insulted, which is the word that several of them have used to me.
Furthermore, under the Bermudian constitution, the application of an Order in Council to the island would be technically illegal, and I hope that my noble friend the Minister will think carefully about the words of my noble and learned friend Lord Mackay of Clashfern, in that there really must be a way through this somewhere. I suppose we ought to put on the record that for some 80 years Bermuda has been a world-leading public authority with a central register of beneficial ownership which long predates those in developed countries, including the United Kingdom. At every stage the island has shared this information upon request with legitimate international authorities. Moreover, Bermuda provides the information within 24 hours or, in extreme cases, two hours. I hope that my colleagues understand that we must have this debate to put on record the case for the overseas territories and what they have done so well for so long.
Baroness Hooper (Con)
My Lords, with all due respect to those who have spoken against the amendment, anybody listening to the arguments that have been put forward in support of my noble friend Lord Naseby’s amendment would happily follow him into the Division Lobby should he decide to test the opinion of the House. I declare a long-standing interest in the overseas territories: I am a vice-chairman of the Overseas Territories All-Party Parliamentary Group and an officer of many of those for individual overseas territories.
It seems extraordinary that these territories, which keep all the required records available to be shown to the appropriate authorities, should be required to publish them as a result of what seems to have been a last-minute decision in the other place. I had not intended to speak to the amendment, but I was tempted to do so to show my support for the overseas territories and my noble friend’s amendment.
Baroness Northover
My Lords, I will address the principles of this. The proposal was narrowly defeated in the Lords and has been debated for many years. Personally, I was delighted by the coalition across the parties in the Commons on this issue and I commend the Government on recognising that coalition. I especially commend the noble Baroness, Lady Stern, my noble friends Lady Kramer and Lord McNally, and others on their long fight on this issue. The transparency of public registers of beneficial ownership is the key issue and it will bring change. I have seen the positive effect of the unexpected spotlight provided, for example, by the Panama papers in some of the areas on which I focus in Africa. I have seen steady change and I welcome the decision to adopt public registers of beneficial ownership in the United Kingdom. London has not collapsed: Brexit may do more damage. I have seen the effect that bribery legislation in the United States, Europe and elsewhere has had on companies trading around the world and I have seen the change as a result, which we will see here too.
I recall some saying that the Bribery Act would differentially damage UK business. Ken Clarke saw those people off and rightly so. The noble Lord, Lord Naseby, did his right honourable friend Andrew Mitchell a disservice: he worked for many years in banking and spent many years supporting international development, so he does know both sides. Therefore our position is that we do not support the amendment of the noble Lord, Lord Naseby, for the reasons I have given of that change occurring across the world over time: it is very beneficial and if the overseas territories are concerned about losing that business then it is probably, as the noble Lord, Lord Anderson, indicated, business that they should not wish to have.
Lord Collins of Highbury
My Lords, I might as well begin by declaring what is not really a direct interest. My father was born in Bermuda and his father was born in Bermuda, so I think that entitles me to go and live there at some point and not have to deposit the $30 million that I think is currently needed if you want to live there. It is a very nice island, and I do love it and I love its people.
This debate is a reflection of constitutional concerns. There are concerns over the rights of people to determine their own laws and no one can disagree with that. But it is also a very strong moral debate, because we know that developing countries lose three times as much in tax avoidance as they get in all the international aid that is available to them. That is the scandal of this world we now live in. The Paradise papers and the Panama papers highlighted just how much of an issue this really is, and that is why we have such huge public concern. If we want to break the business model of stealing money and hiding it in places where it cannot be seen, transparency is the answer. I agree completely with the words of David Cameron in 2013 when he spoke about ripping aside “the cloak of secrecy” and repeated the well-known mantra that “sunlight is the best disinfectant”. I think that that commitment by David Cameron in 2013 is what this debate is about.
Last week, I had the opportunity of meeting the Prime Minister and Leader of the Opposition of the British Virgin Islands. They made their case very strongly to me about their concerns over this amendment. However, whatever position you are taking constitutionally, no matter what the concerns are, there is one thing that everyone agrees on, and that is that the scandal of money flowing out of countries and being hidden is something that has to stop. The Prime Minister of the British Virgin Islands acknowledges that transparency is important. We have heard about the actions of Bermuda and other places. David Cameron was actually trying to change the global position, to get to a position where we would have global agreement on addressing this issue.
How do we get global agreement? David Cameron believed it was by giving a lead. There is an issue here about reputation and being able to influence things. While we are in the European Union and saying, “You’ve got to ensure that all territories within the European Union comply with this”, and when we are in other global fora, we should be able to say that we will be acting on this. We know that the excuse of the overseas territories is often used by others to say, “If you’re not doing it there, why should we do it here?”. That is something that we have to address.
I absolutely understand the need to ensure that all the territories have the proper opportunity to consider this, but this is something that they have been acting on for some time. I respect the Minister’s undertaking to ensure that they have the necessary means as well as the necessary policy and advice.
Lord Northbrook
When the noble Lord talks about the relevant means, does that mean he expects the UK Government to substitute the revenue that these overseas territories are going to lose? He may say that some dodgy money will go out there, but some reputable people with money out there will take their money elsewhere. Is he saying the UK Government will have to take their place with our duty of supporting these overseas territories?
Lord Collins of Highbury
I am grateful to the noble Lord for raising that point. We have been talking about money flowing out. We have had debates elsewhere. I have also spent time working in Gibraltar and I know that on financial matters—Bermuda is another good example—it has built its reputation on having proper transparency and controls. That is what we need to establish: that there is a good way of doing this that will help expand the industry. Reputational interests are incredibly important.
The noble and learned Lord, Lord Brown, is absolutely right that we do have time; the point was also addressed by the noble and learned Lord, Lord Mackay. We have had some considerable time already on this issue, but we have time to ensure that we can get everybody on board with this principle. The only way we will get global agreement is for the United Kingdom to go into those international fora and say, “No more—we need transparency”, because transparency is what will ensure that we can find all those activities, particularly tax avoidance.
Lord Faulks
The noble Lord says that we have time. I understand why he says that. But the provision of the new clause says that all this must be done—the Order in Council must be drafted—no later than 31 December 2020. Is he satisfied that that is sufficient time, given the complexities?
Lord Collins of Highbury
Since David Cameron first made this commitment in 2013, there has been a substantial amount of time. When people say, “When will this come into effect? Will it be done by regulation? What is the commencement date?”, all these things are important considerations, but what the world sees, what the public see—what the citizens of developing countries have seen—is that this country makes a declaration in 2013 and by 2020 nothing has happened. That is what Parliament decided; that is what the debate in the other place was about. I stress that the debate saw cross-party concern about this issue. They know that the court of public opinion will judge this Parliament if we fail to act on the biggest problem that the world faces.
We have had debates in this Chamber about ODA and development support. I have argued that we should create a world where people are self-sufficient; we do not want people to be dependent on aid, but we are giving the means for that aid to be spirited away. That is what we need to stop.
Lord Ahmad of Wimbledon
My Lords, I am grateful to all noble Lords for an extensive, well-reasoned, well-argued and expert debate in your Lordships’ House. I am grateful in particular to my noble friend Lord Naseby, who presented a case for the overseas territories which I empathise with. Noble Lords who were in the Chamber when I opened this debate would have heard the points that I made. I will respond to a few specific points and questions raised, but I want first to set the record straight. First and foremost, the Government’s position is what it was when the Bill left your Lordships’ House. As the noble Baroness, Lady Northover, said, the Government defeated the amendment tabled by the noble Baroness, Lady Stern. That was done because of reasoned debate and expert insight, which has been reflected in your Lordships’ House again today.
As my noble friend Lord Hunt said, my noble friend Lord Naseby has allowed us all an opportunity again to demonstrate the wisdom, insight and expertise your Lordships have, but the point of principle highlighted by the noble and learned Lord, Lord Brown, remains: notwithstanding the valuable discourse that we have had, the House of Commons has sought to vote otherwise. In that regard, I want to clarify a few points.
My noble friend Lord Northbrook mentioned that it was a government amendment. Of course, it was not; it was tabled from the government Benches—it was a joint amendment. In light of the support that the amendment had gathered, the Government decided not to oppose it. My noble friend Lord Naseby referred to the Government’s amendment being tabled late in the day. Let me assure my noble friends and your Lordships’ House that we had been in extensive negotiations with many Members of Parliament, including those of other parties and most notably the Scottish National Party, on the important issues of the constitution and about this Parliament voting on something that would apply to parliaments that did not have a say in the debate taking place—a point well made by the noble Earl, Lord Kinnoull. We were trying to find a way forward that respected both the drive for transparency, which many noble Lords have raised today, and the constitutional settlement with the overseas territories and Crown dependencies. It was also important that we continued to do this to reach the cross-party consensus that was being sought. We brought further amendments forward on 30 April and brought that to the attention of the House to find that consensus. That is why conversations were still ongoing throughout that morning. The amendment we tabled was taken as in order but, as I said in my opening remarks, it was not then debated or taken for debate by the Speaker of the House of Commons.
That said, we have had an extensive debate. The noble Lord, Lord Anderson, who I see is not in his place as such, asked for comment on the Foreign Affairs Committee’s report. We are looking at that report, which was issued this morning, carefully but the Prime Minister has made the general principle clear. I say to all noble Lords that there is not a difference between ourselves and the Governments of the overseas territories. Everyone wants to see us tackle illicit finance effectively. Let me assure the noble Lord, Lord Collins, that it remains a priority for this Government and that we will continue to take a leading role in this respect.
The noble Lord, Lord Beith, my noble friend Lord Naseby and my noble and learned friend Lord Mackay all touched on the important issues of the constitutional arguments. Our position in the light of the circumstances set out in the 2012 White Paper has not changed. We believe that the fundamental structure of our constitutional relationships is the right one. Of course, we retain the power to legislate directly and have done so, as I said in my opening remarks, but in this case we would prefer not to have done so without consent. However, as we have all heard, we are all in this situation since the decision taken by the House of Commons.
My noble and learned friend Lord Mackay raised how this provision will come into force. As I always do, I listened carefully to his insight on this matter and I can confirm that it will not come into force through Royal Assent; it will come into force and commence by regulations. We need to establish the detail, as he said, but I listened carefully to the points he raised in this respect.
My noble friend Lord Faulks asked about the next Bill and I again pay tribute to his efforts in this regard. Let me assure him once again that we have committed to bring forward legislation early in the next Session on the important issue, which he has raised during debate on this Bill, of the register of overseas companies that own UK property. We anticipate that that register will be ready for use in 2021.
The noble and learned Baroness, Lady Butler-Sloss, pointed to other jurisdictions such as Gibraltar. At this point, I acknowledge the contributions of my noble friend Lord Naseby and other noble friends, and noble Lords across the Chamber, who acknowledged the efforts that our overseas territories have made. While I totally accept the principle highlighted by the noble Lord, Lord Collins, and the noble Baroness, Lady Northover, of the importance of transparency—of seeing that flow of illicit finance coming to an end—let us not forget that, in the UK, we have a public register. This is not a panacea to end this issue. It needs concerted action, which is why I have been vocal in my defence of the overseas territories and not just, as the noble Lord, Lord Beith, pointed out, because I am the Minister responsible. Genuinely, when we look at the track record from the overseas territories—the exchange of notes that are operational and which we are reporting back on, or the accessibility for tax and law enforcement agencies—those jurisdictions have been co-operating fully and effectively. That is why I, as the Minister responsible, made that robust defence of the overseas territories. Not only has progress been made; the overseas territories are ahead of the curve. There is just not a case for not doing something until the others catch up, as they are already fully co-operating.
Several noble Lords alluded to the EU list. Anguilla, Bermuda, the BVI, the Cayman Islands and all three Crown dependencies are not included on any list because they are deemed to have been holding back by the EU Code of Conduct Group. They have been put on lists and acknowledged for being co-operative jurisdictions. All our Crown dependencies and overseas territories with financial centres are already committed to global tax transparency standards, which we all agree on, and the commitments that they have made go beyond those. I say again for the record that there is no grey list. All the overseas territories, as the noble Earl, Lord Kinnoull, highlighted, have made great strides, ahead of many other jurisdictions, in ensuring that they adhere not to any international standard but to the principles of ensuring that they can address the fact that law authorities and tax authorities can access such registers.
That said, we are in a position where the other place has decided—on a cross-party basis in certain respects, as the noble Lord, Lord Collins, said—that it is its will to go forward with public registers for the overseas territories, and it is the Government’s position that we have accepted that point of the elected Chamber. In doing so, though, I assure my noble friend Lord Naseby and others who have spoken about the overseas territories that from a government perspective we will seek to ensure that we collaborate and co-operate fully and work with the overseas territories to ensure that we get the results we want. We do not want to disable the overseas territories and we do not want them to lose out, but there is a reality of decisions that this Parliament has taken, and they have implications. We need to ensure that we work effectively and collaboratively with those overseas territories to ensure that we can still sustain and strengthen their economies for years to come.
I put on record for my noble friend Lord Naseby that I am very grateful to him for once again allowing me to articulate the Government’s position and my position as the Minister responsible for the overseas territories. I am also grateful for, as I am sure my noble friend has acknowledged, the great and wise expertise that we have heard from around your Lordships’ House, demonstrating again the wise insight on this subject and many. However, mindful of the fact that the other place has decided to pursue the issue of public registers with the overseas territories, an amendment that the Government have now accepted, I hope that after listening to the debate my noble friend is minded to withdraw his amendment.
Lord Naseby
My Lords, those were fine words from the Minister, and we have heard fine words from my colleagues who have supported me this evening. I hope those fine words have some strength behind them. Many noble Lords will know that I have been in the two Houses for 44 years. I deeply respect the rights of the House of Commons, so it is not with an easy heart that I resist the temptation to test the views of this House.
I have reflected deeply on this. I am trusting my noble friend on the Front Bench to move this forward. As my noble and learned friend Lord Mackay of Clashfern said: justice for all—which means, in particular, justice for all the overseas territories. I shall watch, be vigilant and challenge, but on this occasion I beg leave to withdraw the amendment.
Lord Ahmad of Wimbledon
That this House do agree with the Commons in their Amendment 23.
“( ) Nothing in this Act affects any power exercisable in relation to ships by virtue of the prerogative of the Crown.”
Lord Ahmad of Wimbledon
That this House do agree with the Commons in their Amendment 24.
“(3) Regulations under section 1 may amend the definition of “terrorist financing” in section 43(4) so as to remove any reference to a provision of regulations that is revoked by regulations under section 1.
(3A) Regulations under section 1 may amend the definition of “terrorist financing” in section 43(4) so as to add a reference to a provision of regulations under section 1 that contains an offence, but only if—
(a) each purpose of the regulations containing the offence, as stated under section 1(3), is compliance with a UN obligation or other international obligation, or
(b) paragraph (a) does not apply but the report under section 2 in respect of the regulations containing the offence indicates that, in the opinion of the appropriate Minister making those regulations, the carrying out of a purpose stated in those regulations under section 1(3) would further the prevention of terrorism in the United Kingdom or elsewhere.”
Lord Ahmad of Wimbledon
I am sure the House willed that I move this formally but for good order I should speak to it, although I am sure I am not expressing the Deputy Speaker’s sentiments in any way.
This group contains the remainder of the amendments to the Bill made in the other place. Amendment 26 seeks to clarify the interaction of the powers in the sanctions Bill and the European Union (Withdrawal) Bill. It has been prompted by amendments to the European Union (Withdrawal) Bill tabled by the Government during its passage. Amendment 26 does not change the intent of the sanctions Bill, nor does it change the scope of the powers contained in the Bill. It makes clear that any restrictions in the European Union (Withdrawal) Bill on the modification of retained EU law do not prevent sanctions Bill powers being exercised as they were intended. The Government believe that the amendment is necessary to provide certainty and avoid any confusion about the interaction of the two Bills in this area.
Amendment 29 is a routine procedural amendment that removes the privilege amendment inserted in this House, which ensures that there are no amendments that would raise taxes or impose charges.
Amendment 24 makes changes to the ability to update the definition of terrorist financing, fulfilling a commitment that the Government made on Report in your Lordships’ House. It retains the ability to remove obsolete references from the definition, but restricts the ability to add new terrorist financing measures by way of sanctions regulations. Those new measures can now be added to the definition of terrorist financing only if the new measures are made either for the purpose of compliance with international obligations, or for the purpose of furthering the prevention of terrorism in the UK or elsewhere.
Noble Lords will be aware that Schedule 2 to this Bill, as already approved by your Lordships’ House, provides an express power permitting the Government to make anti-money laundering regulations that correspond or are similar to the money laundering regulations 2017, or to amend or revoke those regulations. These powers will enable the Government to update the UK’s anti-money laundering regime to reflect evolving international standards and address emerging risks.
Amendment 33 is also consequential on amendments to the EU withdrawal Bill, and confirms that these powers can be used once we leave the EU, in connection with the EU funds transfer regulation—which regulates payment service providers—and other EU-level legislation made under the fourth money laundering directive. This applies in particular to the existing EU list of high-risk third countries, in connection with which enhanced due diligence is required. This amendment provides legal certainty regarding the Government’s ability to update this legislation, which will be part of UK law, using the powers conferred through the Bill. This will ensure consistent treatment of the money laundering regulations 2017 and the closely interlinked legislation which also came into force last year. With those explanations, I beg to move.
Baroness Northover
I could say that I am going to test the opinion of the House, but I do not think that that would work. I just take the opportunity of this group to thank the Minister and the Bill team for their careful and constructive engagement on the Bill. Obviously, we would prefer that we were not having to take this legislation through, but if we leave the EU it will indeed be needed.
I also thank those on these Benches who have assisted on the Bill: my noble friends Lady Sheehan and Lord McNally and, especially on the anti-money laundering part, Lady Kramer and Lady Bowles, who single-handedly analysed and proposed restructuring of that part of the Bill and engaged with the Bill team and the Treasury, drawing on her experience as a former chair of the economics committee of the EU.
I also thank the noble Lord, Lord Collins, and his team, and the noble and learned Lord, Lord Judge, and the noble Lord, Lord Pannick, for their deep and constructive engagement.
As the Minister quickly discovered, although the subject matter of sanctions and anti-money laundering is not exactly controversial, the means of tackling it and the carryover into wider Brexit legislation in terms of powers taken meant that this was a forerunner to the EU withdrawal Bill. Above all, I thank the Minister and his team for their patience and engagement. Judging by the previous group, it sounds as though he still has much to do.
Lord Ahmad of Wimbledon
My Lords, I am grateful to the noble Baroness, Lady Northover, and again put on record my thanks to her—and to the noble Baroness, Lady Bowles, in particular, on the issue of money laundering. In the same way, I extend my thanks to the Labour Front Bench, particularly the noble Lord, Lord Collins, and others in your Lordships’ House.
As I said when the Bill passed from your Lordships’ House, we have seen co-operation and your Lordships at their best. I said right at the beginning that we were in listening mode, and I think that has been reflected during the course of the Bill in both your Lordships’ House and the other place. I hope that the noble Baroness is also minded to note that we learn from the wise words of others such as the noble Lord, Lord McNally, and that in introducing this group, I resisted using the word “technical”. I commend the amendments.
Lord Ahmad of Wimbledon
That this House do agree with the Commons in their Amendments 25 to 34.
“Duties to lay certain reports before Parliament: further provision
(1) In this section “a reporting provision” means section 2(4), (Report in respect of offences in regulations)(2) or 40(2) or paragraph 20A(2) of Schedule 2 (duties to lay before Parliament certain reports relating to regulations).
(2) Where more than one reporting provision applies in relation to particular regulations under section 1, the reports to which those provisions relate may be contained in a single document.
(3) If a reporting provision is not complied with, the appropriate Minister who should have complied with that provision must publish a written statement explaining why that Minister failed to comply with it.
(4) Subsection (5) applies where a reporting provision applies and—
(a) a statutory instrument containing the regulations concerned, or
(b) a draft of such an instrument, is laid before the House of Commons and House of Lords on different days.
(5) Where this subsection applies, the reporting provision in question is to be read as requiring the laying of a copy of the report to which that provision relates—
(a) before the House of Commons at the time the instrument or draft mentioned in subsection (4) is laid before the House of Commons, and
(b) before the House of Lords at the time that instrument or draft is laid before the House of Lords.”
“Retained EU rights
(1) If and to the extent that anything in the European Union (Withdrawal) Act 2018 would, in the absence of this section, prevent any power within subsection (2) from being exercised so as to modify anything which is retained EU law by virtue of section 4 of that Act (saving for certain rights etc), it does not prevent that power from being so exercised.
(2) The following powers fall within this subsection—
(a) any power conferred by this Act, or by regulations under this Act, on a Minister of the Crown within the meaning of the Ministers of the Crown Act 1975 (however that power is expressed);
(b) any power conferred by regulations under Schedule 2 on a supervisory authority.
(3) In this section “modify” has the same meaning as in the European Union (Withdrawal) Act 2018.”
“( ) section (Periodic reports on exercise of power to make regulations under section 1);”
“27A(1) For the purpose of the enforcement of any relevant prohibition or requirement, regulations under this paragraph may modify any provision of CEMA which—
(a) determines whether any thing is liable to forfeiture under CEMA by virtue of a contravention of the prohibition or requirement,
(b) provides for the treatment of any thing which is so liable by virtue of such a contravention, or
(c) confers any power exercisable in relation to a ship, aircraft or vehicle.
(2) In sub-paragraph (1) a “relevant prohibition or requirement” means a prohibition or requirement—
(a) imposed for a purpose mentioned in Part 1, and
(b) specified in the regulations under this paragraph.”
(a) creating criminal offences for the purposes of the enforcement of requirements imposed by or under regulations under section 43, and
(b) dealing with matters relating to any offences created for such purposes by regulations under section 43,
but see paragraphs 18 and 19.”
“20A(1) In this paragraph “relevant regulations” means regulations under section 43 which create any offence for the purposes of the enforcement of any requirements imposed by or under regulations under section 43.
(2) The appropriate Minister making any relevant regulations (“the Minister”) must at the required time lay before Parliament a report which—
(a) specifies the offences created by the regulations, indicating the requirements to which those offences relate,
(b) states that the Minister considers that there are good reasons for those requirements to be enforceable by criminal proceedings and explains why the Minister is of that opinion, and
(c) in the case of any of those offences which are punishable with imprisonment—
(i) states the maximum terms of imprisonment that apply to those offences,
(ii) states that the Minister considers that there are good reasons for those maximum terms, and
(iii) explains why the Minister is of that opinion.
(3) Sub-paragraph (4) applies where an offence created by the regulations relates to particular requirements and the Minister considers that a good reason—
(a) for those requirements to be enforceable by criminal proceedings, or
(b) for a particular maximum term of imprisonment to apply to that offence,
is consistency with another enactment relating to the enforcement of similar requirements.
(4) The report must identify that other enactment.
(5) In sub-paragraph (3) “another enactment” means any provision of or made under an Act, other than a provision of the regulations to which the report relates.
(6) In sub-paragraph (2) “the required time” means the same time as the draft of the statutory instrument containing the regulations is laid before Parliament.
(7) This paragraph applies to regulations which amend other regulations under section 43 so as to create an offence as it applies to regulations which otherwise create an offence.”
“(a) subject to any modifications the appropriate Minister making those regulations considers appropriate, make provision corresponding or similar to any provision of retained money laundering Regulations as those Regulations have effect immediately after being saved by section 2 or 3 of the European Union (Withdrawal) Act 2018;
(b) amend or revoke any retained money laundering Regulations.
(1A) In sub-paragraph (1) “retained money laundering Regulations” means— (a) the Money Laundering Regulations 2017;
(b) Regulation (EU) 2015/847 of the European Parliament and of the Council of 20 May 2015 on information accompanying transfers of funds;
(c) any provision made under Directive (EU) 2015/849 of the European Parliament and of the Council of 20 May 2015 on the prevention of the use of the financial system for the purposes of money laundering or terrorist financing by virtue of Article 290 or 291(2) of the Treaty on the Functioning of the European Union.”
“( ) In paragraph 15 (offences), any reference to regulations under section 43 includes the Money Laundering Regulations 2017.
( ) In paragraph 20A (report in respect of offences)—
(a) the reference in sub-paragraph (1) to requirements imposed by or under regulations under section 43 includes requirements imposed by or under the Money Laundering Regulations 2017, and
(b) the reference in sub-paragraph (7) to other regulations under section 43 includes the Money Laundering Regulations 2017.”
United Nations Human Rights Council: Resolution on Gaza
(5 years, 11 months ago)
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The Minister of State, Foreign and Commonwealth Office (Lord Ahmad of Wimbledon) (Con)
My Lords, with the leave of the House I shall now repeat in the form of a Statement the Answer to an Urgent Question asked in another place on the decision of the United Kingdom Government to abstain from voting on the resolution of the Human Rights Council held on 18 May calling for an independent investigation into the recent violence in Gaza. The Statement is as follows:
“We abstained on calls for a commission of inquiry into recent violence in Gaza during the UN Human Rights Council session on Friday. Unfortunately, the substance of the resolution was impartial and unbalanced. We could not support an investigation that refused to explicitly examine the action of non-state actors such as Hamas. An investigation of this kind would not provide us with a comprehensive assessment of accountability. It would risk hardening positions on both sides and move us further away from finding a just and lasting resolution to the Israeli-Palestinian conflict.
However, the United Kingdom continues to fully support the need for an independent and transparent investigation into recent events. We call directly on Israel to carry out a transparent inquiry into the IDF’s conduct at the border fence and to demonstrate how this will achieve a sufficient level of independence. We believe that this investigation should include international members. We urge that the findings of such an investigation be made public, and if wrongdoing is found, that those responsible are held to account. The Foreign Secretary stressed the importance of Israel conducting an independent investigation when he spoke to Prime Minister Netanyahu on 16 May”.
My Lords, that concludes the Statement.
Lord Collins of Highbury (Lab)
My Lords, last Tuesday the Minister agreed with many on the need for an international, independent investigation. In fact, he assured the House that our team at the UN would be working hard on this, and that he would report back on progress. I hope that the Minister can explain why, if the Government were dissatisfied with what appeared at the Human Rights Council, the UK did not submit its own resolution to address this issue? Why not set it out in a way that last week we were all happy to support?
Lord Ahmad of Wimbledon
The noble Lord is quite right to say that the Government’s position has been, and remains, to support an independent and transparent investigation into recent events. In this case, we joined European allies—notably Germany, Slovakia, Hungary and Croatia—in abstaining on calls for a commission of inquiry. I made the reasons for our abstention clear in my opening remarks. To that end, we were concerned that the resolution as presented could not be perceived as balanced because it did not look to ensure that non-state actors were fully considered. We remain true to the fact, however, that we will continue to work through all channels, calling for an international investigation into the events in Gaza last week. There is, as the noble Lord will know, a UN resolution at the Security Council on the situation regarding Israel and the Occupied Palestinian Territories. We are aware that Kuwait has also tabled a draft resolution. We are currently considering the text carefully and will make a decision on the way forward on that in due course.
Baroness Northover (LD)
My Lords, how does the noble Lord feel personally about this decision? He and his colleagues have repeatedly called for the facts to be established, so how does that square with abstaining on this matter? The Statement rightly asks for an independent and transparent investigation. Why, then, does it go on to ask one side—Israel—to carry this out?
Lord Ahmad of Wimbledon
My Lords, we made clear at the Human Rights Council the importance of any independent investigation. We sit on the Human Rights Council and we always stress the importance of co-operating, and we sought to do so. We did not vote against the resolution but abstained because we had reservations about the wording as it stood. We were not alone in that: I believe there was a total of 14 abstentions.
The noble Baroness asked about the Government’s position, which has been consistent. We want to see a resolution to the situation between Israel and the Palestinians, and we want to see an inquiry into the events that occurred last week in Gaza. Regrettably, children’s lives were lost. For that reason, we wanted to ensure that all material facts could be fully reviewed by any investigation that had been set up. We felt that the UN Human Rights Council resolution fell short of the requirement to ensure that any factors from the side of Hamas inciting others to act in this way were going to be fully considered. That was regrettable, and that is why the UK Government abstained from voting for the resolution.
Baroness Deech (CB)
Does the Minister recall that, only just over a year ago, the Government announced that they were putting the United Nations Human Rights Council on notice for its disproportionate focus on Israel? It is a council that contains countries not noted for their support of human rights, such as Saudi Arabia, Venezuela, Qatar and Burundi. Would he entrust the council with an independent investigation into, for example, the behaviour of British soldiers in Iraq? I am pretty sure that I know what his answer will be.
Lord Ahmad of Wimbledon
My Lords, the noble Baroness points to Item 7 of the Human Rights Council, concerning various resolutions relating to Israel and the Occupied Palestinian Territories. The Government have made their position clear to members of the Human Rights Council and to the Palestinians and the Israelis—that we want to see any bias in the Human Rights Council agenda addressed directly. That is what we have sought to do in the last few years, and the votes that we have taken have reflected that. Let me say again that, while we have reservations, we continue to be an active member of the Human Rights Council and we are supportive of its actions. Most recently, there were special sessions concerning a call for action on the plight of the Rohingya Muslims in Burma, and the Government have been supportive of those efforts. In any investigation that is held, impartiality and independence are important, as is balance, which is why the Government abstained.
Lord Robathan (Con)
To follow the noble Baroness, Lady Deech, it is important, as my noble friend the Minister has said, to have impartiality and balance. Tragic events took place in Gaza, where, in my opinion, there was a hugely disproportionate use of force—lethal force—by the Israelis. However, this was whipped up by Hamas. We know that and, indeed, I understand that Hamas has claimed that over 50 of the dead people were allegedly members of Hamas. That is not a capital offence, in my opinion, and there was disproportionate use of force, but any investigation must be impartial, and I do not think that that was on offer at the UN Human Rights Council.
Lord Ahmad of Wimbledon
My Lords, my noble friend raises the issue of the number of lives lost. I believe that over the two days, the count was 60. As my noble friend pointed out, Hamas itself claims that 50 of those killed were members of Hamas. There is another issue, to which my noble friend again alluded: the use of force and live fire. I assure your Lordships’ House that the Government continue to call for restraint. Indeed, when I was in Israel most recently, I directly asked the Ministers concerned to ensure that, in any conduct—be it in Gaza or elsewhere—the Government of Israel show such restraint. There were others whose lives were lost. I believe that six children lost their lives during the events of last week, and we all mourn the loss of life of such innocent young children.
The central point of the inquiry, as my noble friend said, is impartiality, balance and independence. The Government’s view was that the text that was tabled was not impartial and would not fulfil that objective.
Baroness Blackstone (Ind Lab)
My Lords, given the shocking loss of life as a result of the use of live ammunition against unarmed protestors in Gaza, and given what the Minister has just said about the need for an impartial, international, independent inquiry into what happened, can he reassure the House that the Government will not abstain when the resolution put forward by Kuwait comes before the Security Council? It would be enormously helpful, and very reassuring, to many people in this country who are deeply shocked by the violence that took place if he could do that this evening.
Lord Ahmad of Wimbledon
As I alluded to in an earlier response, we are fully aware of the Kuwaiti draft resolution and are currently considering its text carefully.
Lord Steel of Aikwood (LD)
My Lords, like the noble Lord, Lord Collins, I am a little mystified as to why the Government did not manage to secure a better draft in the Human Rights Council, so that we did not end up looking very weak on the issue. The Minister will know that I have secured a balloted debate for a week on Thursday when we come back. I hope that by that time he will have been able to satisfy the noble Baroness and that the resolution in the Security Council will be supported by the British Government.
Lord Ahmad of Wimbledon
I thank the noble Lord for his question. The Government, and our ambassador in Geneva, were seeking the kind of text which we could agree with others. However, that was not possible; we are not the sole members of the Human Rights Council. After looking at the text in front of us, the decision was taken that it did not fulfil the full criteria, particularly on the issue of other, non-state actors. That is why we abstained. I assure the noble Lord, and the noble Lord, Lord Collins, that our ambassador on the ground, through instruction from London, sought to get the kind of language that would have been acceptable to the United Kingdom.
Education (Student Support) (Amendment) (No. 2) Regulations 2018
(5 years, 11 months ago)
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Lord Hunt of Kings Heath
That this House regrets that the Education (Student Support) (Amendment) (No. 2) Regulations 2018 extend the normal student maintenance regime to more categories of nursing students as a replacement for the NHS Bursary Scheme; and calls on Her Majesty’s Government to postpone the introduction of the Regulations until the current review of post-18 education and funding has been completed (SI 2018/443).
Relevant documents: 21st and 25th Reports from the Secondary Legislation Scrutiny Committee
Lord Hunt of Kings Heath (Lab)
My Lords, the huge pressure which the NHS is under is taking a massive toll on our nursing, midwifery and other health professionals. It has been estimated that the NHS in England has approximately 40,000 nursing vacancies, with a vacancy rate of over 10%. A similar rate applies to midwives, although the RCM estimates it to be higher, to reflect the number of babies being born. The other health professions covered by this regulation are similarly affected. More nurses and midwives are leaving the profession before retirement; one in three nurses is due to retire in the next 10 years. For various reasons, including Brexit, work pressures and the age profile of the nursing profession, the number of nurses and midwives on the NMC register at the end of March 2018 was less than that in March 2017 and significantly less than at the peak in March 2016.
The House of Commons Health and Social Care Committee inquiry found that the nursing workforce in England must be,
“expanded at scale and pace”,
and that,
“future projections of demand for nurses should be based on demographics and other demand factors, rather than on affordability”.
Given this, one would have thought that the Government would do all they could to support and encourage entry to these professions. Instead, they are doing the opposite, reflected in these regulations, by ploughing ahead with their plan to scrap bursaries for yet more students, despite knowing full well the disastrous consequences that will follow.
Two years ago, the Government scrapped the undergraduate bursary. The results were predictable. In 2016, before the abolition, there were more than 47,000 nursing applicants in England. In 2018, the figure fell to about 31,000—a fall of over 15,000. It is clear that this is the reason why we have seen the sharpest ever decline in nursing applications. I have no doubt that the Minister will say that the number of applications is less important than the number of acceptances. I disagree: I want nursing to be seen as a profession where there is hot competition for places because it is such an attractive profession to be in.
No doubt the Government will say that they have committed to create more training places for nurses. They certainly promised an extra 5,000 nursing places and said that nursing bursaries had to be scrapped to make that possible. What has been delivered is a mere 700 fewer students training to be nurses. It is worrying, too, that there has been such a huge drop-off in mature students applying—the extraordinary figure of 42%. The very people we need to apply, who have often brought up a family, are now being denied an opportunity to make a career in nursing or face the consequences of being forced into huge debt.
We know that postgraduate students in particular are more vulnerable to the introduction of fee loans: 64% of postgraduate healthcare students are aged over 25 compared to only 18% of students generally. Women are largely attracted to the healthcare postgraduate route and represent 80% of the course places. There is a higher percentage of ethnic minority students on postgraduate healthcare courses compared to the general population, and the Department for Education equality analysis clearly states that these groups are known to be more debt averse. So introducing loans is likely to undermine recruitment of this cohort and represents yet another missed opportunity to grow the nursing workforce at a time of severe shortage.
The Government claimed in the other place that raising the cap will unlock additional places, but it was the Government themselves who set the cap through their funding of Health Education England. They also say that they can fill some of the gap with nursing apprenticeships. They have promised 1,000 of them, yet only a handful have started the course. This shortfall is not the only problem with overreliance on apprenticeships. A nursing apprentice will take four years to become a registered nurse. Even if there were a miraculous surge in apprenticeships starting this summer, we would not see any qualified nurses on our wards until 2022. Contrast that with an undergraduate nursing course, which can take three years, or postgrad courses referred to in the regulations, which can take two years, which makes them the quickest way to tackle the shortfall in numbers.
Another solution the Government have come up with is nursing associates. But there is clear evidence that using support workers or trainees as replacements for qualified nurses has potentially disastrous consequences for care. I hope that the Minister will confirm that that is not the Government’s intention. The nursing associate is a support role and must not be used as a substitute for registered nurses. Research is clear that diluting and substituting the registered nursing workforce with nursing support workers has ill consequences for many patients.
In pushing ahead with this regulation, Ministers ignore their department’s impact assessment. The DfE’s assessment of the changes to the bursary said that it would disproportionately affect women and ethnic minority students, yet Ministers have pressed ahead. Then the department found that the change could make women, older students and students with lower incomes less likely to participate. Again, Ministers pressed ahead.
This is not just a matter of fairness or even just about the benefit of having a diverse working population. In fact, older nursing graduates, to take the nursing profession in particular, are more likely to stay longer in the NHS and are more likely to choose areas such as mental health or learning disability nursing, which are facing such severe staff shortages. Nearly two-thirds of postgraduate nursing students are over 25, more than a quarter are from minority ethnic groups and 80% are women, so the impact of today’s regulations will surely be even worse than the previous cuts.
I welcome the golden hellos to postgrad students in specific hard-to-recruit disciplines, but the Government need to do much more to financially support postgraduate students.
Even if the Government are determined to make the change, there are good reasons not to make it now. This policy would move postgraduate nursing students over to the main student finance system, which means dealing with the Student Loans Company. There is every reason to believe that that company may not be ready. In recent weeks, the Government have been dealing with an error made by the company that has led to 793 nurses being hit with unexpected demands to repay accidental overpayments they were unaware of. I do not know whether the Minister has seen the recent NAO report on the company, but that also gives great pause for thought about whether it is able to accept this new responsibility. It strikes me that, before embarking on these regulations, we have the flagship review of higher education. The Government could have allowed that review to take account of this matter, rather than going ahead with the change today.
My final point is about student finances in general, and the impact on the Government. How many postgraduate students affected by this policy will repay any or all of their additional loan? How is this financially sustainable? Or is it just another example of what the Treasury Select Committee called a “fiscal illusion”—in this case, a student financial system that allows the Government to pretend that they have made a saving when all they are doing is passing the Bill to the next generation?
It is little wonder that the devolved nations have retained the NHS bursary system. We in England should do the same. I beg to move.
Baroness Walmsley (LD)
My Lords, like the noble Lord, Lord Hunt of Kings Heath, we, too, oppose the introduction of these regulations—and for very similar reasons. It always makes sense to make policy based on evidence and on the advice of experts. This is what the Government have failed to do in relation to the funding of student nurses. The removal of the bursaries for undergraduate nurses has already considerably reduced the number of applicants, and the number of those taking up a place was 705 lower last year than the year before. Given the 40,000 nurse vacancies that the noble Lord mentioned, this is a serious matter for patient safety, as pointed out by the Care Quality Commission. I accept that these are only one year’s figures, but I believe that, before upsetting the apple cart even further, the Government should postpone removing bursaries from postgraduate nurse trainees and other important groups until we have clear evidence of the effect on the number of undergraduate student nurses.
If we want to increase the number of registered nurses quickly, which we need to do, it makes more sense to support the two-year postgraduate route, not put it at risk by removing those bursaries, too—because this is the quickest way to get more nurses. Most suppliers of the two-year courses indicate that capacity could be increased by 50% given the right financial support, yet the Government are planning to deter applicants by removing the bursary. This does not make sense. Instead, the Government are focusing on the two four-year routes into nursing, yet the apprenticeship route is not providing the expected 1,000 extra nurses per year. The most recent data tells us that there are only 30 apprentice nurses—hardly a success. Will the Government look into the barriers that are preventing NHS employers taking on apprentices? It could be the 60% cut in funding for further professional development, which has affected the number of those who would like to become training assessors and mentors for student nurses and apprentices.
Nursing associates have a role both as assistants to registered nurses and as users of an alternative four-year route into nursing—but, again, it takes a long time and these associates, as the noble Lord, Lord Hunt, said, should not while training ever be seen as substitutes for fully qualified nurses. So why are the Government planning to deter applicants for the rapid postgraduate route, where 64% are over 25, where they are predominantly women and where they are more diverse than the general student population? In a career such as nursing it would be advantageous to attract people with a little more life experience than the average 18 year-old.
Also, we know that older women and ethnic minority students are more debt averse, as well as already having a student debt of up to £50,000 from their first degree. Therefore, it is vital to look at how this fast route into nursing could be supported. The RCN tells us that, if the fees were paid and a modest bursary towards living costs provided, the total would be less than the average annual premium paid by trusts over a single year for a full-time agency nurse. This is short-termism of the worst kind.
While the Government carry out their review of post-18 education, they might benefit from looking at the measures introduced in Wales by Kirsty Williams AM, the Liberal Democrat Minister in the Welsh Government responsible for medical education. Her conversations with students revealed that the main concern and deterrent was not fees but living costs. Therefore, she has introduced the equivalent of the minimum wage for students during their course. This method of student funding should be carefully considered by the Government while carrying out their review, particularly for nursing students, who have more contact time than other students because of their clinical placement and therefore less time to get a part-time job to support themselves. Will the Government please consider this sensible idea?
The House of Commons Select Committee on Health and Social Care stated that the nursing workforce should be expanded at scale and pace to avoid dangerous levels of vacancies. It should be based on need and demand rather than affordability. It is up to the Government to say how the money will be raised, but from these Benches we recommend some sort of hypothecated taxation or a reformed national insurance scheme which is truly progressive and demonstrates intergenerational fairness. The Liberal Democrats are also in favour of restoring the bursaries for undergraduate student nurses and we are against these new regulations, which would remove the bursary from postgraduate nursing students and other important health professional courses.
Baroness Watkins of Tavistock (CB)
My Lords, I draw the House’s attention to my interests as listed in the register and I congratulate the noble Lord, Lord Hunt, on securing this debate.
I should like to put my contribution in context. At lunchtime I came back from Geneva, where I had been at the World Health Organization working with the International Council of Nurses, representatives from the Nursing Now campaign and the Chief Nursing Officer of the WHO in looking at the future of the profession. One of the big discussions was on the need to increase the number of nurses worldwide and to ensure that we have health security across the globe. A major topic of discussion was, not surprisingly, the re-emergence of Ebola in the Congo. At least one Health Minister asked me how, as a country, we could really justify a recent advertisement from, I believe, the Home Office, encouraging nurses with a two-year graduate qualification to come to this country.
The noble Lord, Lord Hunt, has outlined the key concerns over extending the normal student maintenance regime to nursing students undertaking programmes at postgraduate level. As others have said, these programmes take two years, including theory and practice, and enable successful students to register as nurses with the NMC. I do not need to remind noble Lords that this is an intensive programme with significant periods of work in a practical setting.
The aim of introducing new systems of funding was to increase the number of nursing students, yet on undergraduate programmes this was not achieved in the 2017 intake, where a fall took place, particularly in applications for mental health and learning disability nursing courses. Why should there not be a similar fall in the number of students entering the postgraduate programmes this year if the change takes place? In effect, this would result in an even more significant drop in the number of nurses qualifying in 2020, in that the undergraduate numbers due to qualify in 2020 will be much lower than originally planned. If we could boost the postgraduate intake numbers for 2018, this could provide additional nurses ready for registration in 2020—just as they will be so desperately needed according to the NHS Five Year Forward View.
Therefore, does it not make sense to delay the implementation of the regulations while a systematic review of post-18 education funding is undertaken and retain the current system of funding for the group due to commence in 2018? This would provide us with an opportunity to run a campaign to increase the numbers for this year in the way that campaigns have been conducted to attract people to social work and teaching programmes in areas where there are similar staffing challenges.
We know that sufficient levels of registered nurses are critical for the health and social care system to ensure patient and client safety. The sombre reading of both the Francis report and the learning disabilities mortality review reminds us that not only do we need to retain our current staff but that we must train new nurses to further enhance the quality of our provision.
Graduates who enter postgraduate nursing programmes add value to our workforce, bringing a range of life skills. In particular, many mature entrants come into mental health nursing through the postgraduate route, and yet we know we are not meeting the numbers required to meet mental health services workforce demands.
I recognise that the Government have offered a new pay deal for nurses that may improve retention and recruitment and plan to offer golden hellos in some hard-to-recruit areas for nurses entering the profession, both of which I have expressed my support for and hope will be effective. However, until the new degree apprenticeship routes into nursing at both undergraduate and postgraduate level are properly designed and funded through the apprenticeship levy, I urge the Government to think again and to wait to introduce the reform we are discussing today.
NHS Providers reminds us that plans to boost the NHS workforce will take years to deliver, but to change this decision for at least one year would result in a larger cadre of nurses qualifying in only two years. I urge this because society expects us as policymakers to ensure safe healthcare in the NHS. This, I argue, cannot be achieved without a sufficient supply of newly qualified nurses and allied healthcare professionals.
Lord Clark of Windermere (Lab)
My Lords, I find the Government’s approach to NHS staff very perplexing indeed. They continually pay tribute to them, and I think they do understand the commitment of the workforce, yet repeatedly they take action that makes the life of nurses and other staff even more difficult than it is at the moment. At the same time, they make it more difficult for those nurses to guarantee the safety of patients in our NHS.
I congratulate my noble friend on drawing this SI to the attention of the House and allowing us an opportunity to debate this critical issue. In making my case today, I accept the points made by the noble Baronesses from the Liberals and the Cross Benches—they were absolutely right in the points that they made. But let us remind ourselves of the serious situation we are in. The points I am going to make now are agreed right across the National Health Service; points which every royal college and every responsible organisation in the health service agrees with.
The first point has been raised already: we are 40,000 nurses short, and the Government have a real responsibility for that. The number of nurses and midwives leaving the profession is greater than the number of those entering the profession—that is a recipe for disaster. We have critically relied not only on nurses from the far ends of the globe but especially on nurses from the European Union. Since the Brexit vote, they are deserting the National Health Service, and who can blame them?
Let me go right back to 2010, when this Government assumed office. That is when they started making massive errors, from which they have not recovered. Neither, critically, has the National Health Service. In an Answer to me, the noble Viscount, Lord Younger, pointed out that, when they assumed office, there were more than 97,000 entrants to nursing courses. The coalition Government’s first response was cut, cut, cut, and by 2012 the figure had dropped from over 97,000 to 75,000, a drop of 22,000 nurses entering the profession in one year alone. The figure improves marginally but does not get much better for many years. When I say the Government are 40,000 nurses short, it is because of their mistake in 2012 in cutting the numbers of young people and older students entering the nursing profession. We have never recovered from that.
I accept the point that the Government want to widen the area of recruitment—I will come back to that—but, having made the mistake in 2012, only two years ago they scored another own goal by abolishing the bursary scheme and introducing a charge of over £9,000 a year for people training for the nursing profession. Last year that led to a drop of 705 students. I admit that is not the same as the 22,000 drop the Government were responsible for in 2012 but we cannot afford any drop whatever. Now, having created a serious recruitment policy, they are introducing even more costs into the system by this SI we are discussing today. It is affecting older graduate entrants, those who do postgraduate courses and usually graduate after about 18 months or two years, which is the quickest way to get qualified nurses, as we have already heard.
However, the Government do not seem to have learned anything. The point from the Liberal Front Bench was well made when the noble Baroness pointed out that the cost of training a postgraduate student was £33,500—a lot of money—but we should not forget the cost of the agency nurses needed to fill that vacancy. That £33,500 cost is less than the average annual premium paid by trusts for a full-time equivalent nurse filling a post that is vacant because of shortages. It is a false economy and yet the Government do not seem able to see the picture in the round, which is the position we should be looking at.
There are other ways in which the Government could ease the nursing situation. Instead of bringing forward SIs such as those we are discussing at the moment, if they have got a bursary scheme, as they have, why do they not write off the cost of repaying the student loan for nurses who have spent a number of years in the National Health Service? One of the Minister’s predecessors said that the Government were looking at a similar proposal for doctors but I never saw whether it materialised. However, that would be one way of equalising the situation.
Many nurses from European Union countries and other National Health Service workers have got permanent residence status to live in Britain. After five or six years, they were entitled to apply for permanent residency, and they got it. To me, and to most nurses, permanent residency means just that: you have residence in this country which is permanent, but the Government will not admit that. They say that the permanency may not be honoured after Brexit. That is a terrible thing to say. A British Government are breaking their word to people who work in the health service and give so much. Why not say that those people who have permanent residency can remain in this country permanently? That would do a lot to retain the confidence of EU nurses.
I shall finish with a word about financing nursing apprenticeships. As we have heard, the Government’s target of 1,000 apprentices in nursing has not only fallen short, it has fallen ridiculously short. The Minister may have more up-to-date information than either I or the Royal College of Nursing have, but its figures show that there are not 1,000 apprentice nurses, there are 30. Of course, one of the difficulties lies in the whole concept. An apprenticeship requires a mix of work on the ward and work in the classroom at university, but that is exactly what undergraduate nurses do at the moment. Over the three-year period, 50% of their time is spent working—I emphasise that word—on the wards. Why should they pay more than £9,000 when apprentices may get that for nothing—or is it nothing? The universities which provide the classroom opportunities for these apprenticeships tell me that they have no alternative but to charge for them. I do not think that the apprenticeship levy will cover it because they are talking in terms of £7,000 a year for apprentices to do the university courses for their apprenticeship. I wonder who is going to pay that £7,000. Is it to be the student, or is it the trusts which are already hard pressed, or is it the Government? Most of us would agree that it ought to be the Government. It is their baby, their scheme and how they see the gap being filled—their salvation to ease the nursing shortage. It is the Government’s responsibility.
We are debating a statutory instrument which shows how ill thought through and chaotic the Government’s policies are when it comes to nurse training in this country.
Baroness Garden of Frognal (LD)
My Lords, I rise to speak briefly in support of the noble Lord, Lord Hunt, and my noble friend Lady Walmsley, who set the scene very comprehensively for us. I note that these regulations came into force on 7 May, so presumably any impact we can have on them is going to be retrospective at best.
I share the concerns about adults coming back into the nursing workforce. They will be more risk averse but by and large they are invaluable members of the nursing community, so putting them off seems extremely foolish. I also share the concerns of the noble Lord, Lord Clark, about the apprenticeship route, which obviously has got off to a very slow start. I think that the health fraternity is finding it complex working out how the apprenticeships are going to fit in. In due course degree apprenticeships may be able to take up some of the slack, but it will be a long time before that happens and certainly it will not be quick enough to solve the nursing shortfall that we are experiencing at the moment.
Equally, as the noble Lord, Lord Clark, also said, we must take into account the fact that EU nurses are leaving in droves at the moment because they find this country unwelcoming, as indeed are EU workers in a number of other sectors as well. That situation is not going to get better. I will therefore add my voice to those asking for a delay in implementing these damaging proposals until there has been time for a full impact assessment, or at least until the review of post-18 education and training has reported. The NHS is too important to be left to chance like this, and with a crisis in the nursing workforce, this is not the time to embark on measures that will do nothing but worsen the position. I urge the Minister to think again.
Lord Puttnam (Lab)
My Lords, I will probably not be quite as brief as the noble Baroness, Lady Garden, but I support the Motion of my noble friend Lord Hunt. In doing so, I hope to help the Minister with some experiences from the past, which I think are very germane.
My noble friend Lord Hunt and I entered this House on exactly the same day: 5 November 1997. He came as someone with great authority and experience in the National Health Service; I came from a terribly different world, with the specific job of working for the right honourable David Blunkett—now the noble Lord, Lord Blunkett, then the Secretary of State for Education. We had a crisis in teaching and with teachers. I commend to the House the front page of the Times Educational Supplement from 6 April. It states:
“Missing: 47,000 secondary teachers. In a system already struggling to fill the gaps, some are thinking the unthinkable: is it time for teaching without teachers?”
I would add this: is it time for nursing without nurses?
The situation is very serious because any possibility that the Minister and his department have of resolving the problem depends entirely on the pipeline supplied by the teaching profession. That has a time factor attached to it, which is very important. It took the Blair Government—I worked constantly at the department for education—six years to get back to equilibrium after the teaching crisis. We were short of around 47,000 teachers—ironically, almost exactly the same number that we are short of today.
Here is the problem: a demographic bulge will hit us in 2024. At that point, we will be short of something close to 50,000 secondary teachers. It is totally predictable; we can see it coming. It happens to be coming at a time when the number of graduates entering the profession is, necessarily, quite light because of an inverted demographic. I am sure that the noble Lord, Lord Willis of Knaresborough, will understand and attest to the figures I am giving. We had an enormous problem. This Government have an enormous problem, and the less they solve their educational pipeline problem, by ensuring that there are enough teachers in the system, the worse the nursing problem will get.
I commend the past to the Minister. We learned a powerful lesson between 1997 and 2003. Unless the Minister wants to revisit a similar lesson in the National Health Service, he must address this issue now.
Lord Willis of Knaresborough (LD)
My Lords, I thank the noble Lord, Lord Puttnam, for reminding us of those days, which were both terrifying—I say that as an ex-educationalist—and exciting. Meeting the challenge, based on an evidence base, enables you to move forward. I declare an interest, having worked for the past few years for Health Education England since its formation as a non-departmental body, following the 2012 Act.
What I find terribly sad about this SI is the lack of evidence behind the move. I do not know, and I suspect very few people in this House know, whether the move to an all-graduate profession—treating nursing graduates the same as teaching graduates or graduates going into law or other professions—should be done on a loan system. There is an argument for that, but in reality, we have absolutely no evidence to demonstrate that it will be effective, particularly at undergraduate level. Like many Members of the House, I look forward to the student funding review, because at least we will get that evidence base, which will be put before both Houses.
I find what I think is behind this deeply disappointing. Your Lordships spent many months debating the Health and Social Care Act 2012. There were a lot of fierce arguments. One of the reasons why the then coalition Government put forward the proposals was to take many of the decisions, particularly about staffing and education, out of the political arena and give them to an NDPB, to allow them to plan ahead. Health Education England was created for that very purpose. This is doing the exact opposite. It is pointless having an organisation which is there to plan a workforce and then taking away the means by which it can generate that workforce, be it at undergraduate or postgraduate level. It saddens me that after some of the excellent things that have been introduced—I declare an interest as having been involved with the nursing associate proposal—the belief is still peddled that this is somehow substitution. It should not be, it is not and it must not be a substitution. The noble Lord, Lord Hunt, is absolutely right to make that point: we do not want to move back to a lower quality simply to produce more people.
Will the Minister give us an idea of the quality, particularly at undergraduate level? I am sure that he will say that while we might not have as many applicants, we still have as many actual posts and that the quality of people applying for those posts is going up. I can find no evidence at all in the HESA survey that that is actually happening. If it is, I will celebrate it, and I am sure the Minister will tell us. The issue I want to raise—it is why I have spoken in this debate—concerns one of the great areas of weakness at the moment, and that is our ability to recruit and retain mental health nurses. This is a massive issue, and not simply for traditional reasons but because the demographics and the epidemiology show that ever more of us who, like your Lordships, have an average age of 70-plus are likely to have a mental health problem as part of their comorbidities as they get older. Few of us can deny that.
I am working at the moment at how we can provide the mental health workforce in 10 or 15 years’ time. I look around at where there is a stream of potential workers who could come in, and frankly it is at postgraduate level, using psychology graduates. I can tell the House that over the last three years, 49,466 psychology graduates have come out of our universities, yet we have a dire shortage of postgraduate mental health nurses. Instead of proposing, as my work does, that we really target these people to try to fill this gap in relatively quick time, this SI is saying that that is no longer possible, that these people with debts already from their university days—their undergraduate days—will now face having to fund work in a specialist area. Will the Government look seriously not just at narrow shortages but at wholesale shortages, which we certainly have in mental health nursing? Can we find a better way of attracting and retaining these people?
I finish with three brief questions. We are going to get, through the NHS and indeed through private sector organisations, 0.5% of their payroll being spent on the apprenticeship levy. I ask the Minister whether trusts and private sector organisations, particularly those in adult social care, will be able to use part of that levy to create in-house bursaries to support the development of staff. As yet we have not talked about the role of other sectors in bringing these people through. Will that be possible?
Secondly, if the Minister says, “Ah, no, BEIS says that you can use this money only if it is for apprenticeships”, are we able to rebadge postgraduate work in nursing, in the different fields, through the levy to provide the bursary—and, of course, fee remission—as a result of that route? There is a big pool of money coming in here, which could be used much more effectively.
Thirdly and finally, I ask the Minister, in trying to solve this conundrum, to make an assurance to this House that it is quality that we want and quality we must give to the people of the UK—particularly the people of England, to which this SI applies—rather than quick fixes in other ways, which I am sure will come down the track if we do not resolve this matter now.
The Parliamentary Under-Secretary of State, Department of Health and Social Care (Lord O’Shaughnessy) (Con)
My Lords, I congratulate the noble Lord, Lord Hunt, on securing this debate, and express my gratitude to all noble Lords for speaking. I always welcome the high profile that issues relating to NHS staffing receive in this House and I am always pleased to debate our approach with noble Lords, who I know are motivated by a desire to protect and promote our world-class NHS, and bring both wisdom and expertise.
I will start by explaining the overall rationale behind the reforms that the Government are making. The decision to remove bursaries for nursing, midwifery and allied health profession students and to provide them with access to the student loan system was taken by the Department of Health—as was—in the 2015 spending review. One reason for that was that this group of students had access to less money through the NHS bursary system than students in the student loan system. By moving to the loan system, these students now typically receive a 25% increase in the financial resources available to them for living costs during their time at university.
Lord Willis of Knaresborough
Before the Minister goes one second further, will he confirm that the bursary money was free money? They did not have to pay that back. Now they have to pay back the whole loan.
Lord O’Shaughnessy
If the noble Lord will let me finish, I will get to that point. Like other graduates, student nurses will be required to repay these government-funded loans only once they are in employment and earning. It is important to state that the student loan repayment terms are progressive. From April 2018, individuals will make their contribution to the system only when they are earning more than £25,000. Monthly repayments are linked to income, not to interest rates or the amount borrowed, and the outstanding debt is written off after 30 years.
I am not the Education Minister in this House, although I seem to be covering this topic not only tonight but in other forums, but it is important to underline that the reason this system was introduced into this country by a Labour Government, reaffirmed by a coalition Government and continued by a Conservative Government, is that it means that the best-earning graduates, instead of having their fees entirely paid by taxpayers, including people who have never gone to university, make a contribution to the costs incurred, whereas those who are lower-earning through their lives, including those who will perhaps never earn more than £25,000, will make no contribution. That is a more progressive system of funding than one in which everybody gets it for free, no matter how much money they make in their life.
As I said, these reforms give student nurses access to more financial support, albeit they have to pay that back if they can afford to do so later in life. It also provides a level playing field with other students. But perhaps most importantly of all, these actions released about £1 billion of funding to be reinvested in the NHS front line. As a consequence, Health Education England plans to increase the number of fully funded nurse training places by 25% from September 2018. It is important to stress that Health Education England has made that decision as an independent body to meet the need for more nurses that we all agree is there.
As the noble Lord, Lord Hunt, pointed out, this equates to around 5,000 more places each year—a major and welcome boost to our much-admired nursing workforce. My background is largely in education and I assure the noble Lord, Lord Puttnam, that we understand the urgency of this task and the parallels with education that he mentioned.
Lord O'Shaughnessy
That is quite right. That is fully funded clinical placements—just for the sake of clarity. I thank the noble Baroness.
There is understandable concern among noble Lords, which has been expressed previously in this House, about the new system of financial support, but I want to be clear that we are giving the group of postgraduate students that we are discussing access to undergraduate maintenance and tuition fee loans, just as we do with postgraduate teachers. This represents a more generous package of support than the postgraduate master’s loan. We are also making available additional funding for childcare, travel to clinical placements and exceptional hardship funding to ensure that the students are fully supported and are able to complete their studies.
Furthermore, as many noble Lords have mentioned and as the noble Lord, Lord Hunt, and the noble Baroness, Lady Watkins, welcomed, in the debate on the regulations in the other place on 9 May, my honourable friend the Minister of State for Health set out a range of additional support that we are investigating for postgraduate nursing students. This includes specific incentives such as “golden hellos” for postgraduates who go to work in mental health—where the noble Lord, Lord Willis, was quite right that we need to attract more nursing and where there has been a shortfall—the area of learning disability and community nursing. The Government have announced £10 million to support such incentives and we are considering how this should be best delivered.
Many noble Lords have expressed concern about the drop in number of undergraduate applications to nursing courses. We acknowledge that early indications from the latest UCAS data, published in April, show that the number of students applying to study nursing has decreased from this point in the cycle last year. However, that cycle is not yet over, so we need to apply some caution.
It is also worth noting, as noble Lords have pointed out, that there is a distinction between the decline in number of applications and that in the number of students starting their courses. That was exemplified last year, which showed a 23% drop in the number of applications compared to a 3% decline in the number of acceptances. That is regrettable, but it was still the second-highest number of acceptances on record. Several noble Lords have expressed their desire for further information on how this develops. I can confirm that my department has committed to publish an update in autumn 2018 following the close of the 2017-18 application cycle.
As the noble Baroness, Lady Watkins, pointed out, there is a global challenge to recruit more nurses. We are working hard to make nursing as attractive a profession as possible. As a result of constructive dialogue over recent months, NHS Employers and the relevant trade unions began a consultation exercise on a three-year pay deal for NHS staff employed under the Agenda for Change contract. Under the plan, the starting salary of a nurse will rise to £24,907 by 2021, not only rewarding current staff for the incredible work they do but sending a clear signal to the country about how much nurses are valued.
We are boosting the attractiveness of the profession in a number of other ways, too. Nearly 4,500 nurses have started the return to practice programme and 3,000 have completed it. Across the country, NHS trusts are developing arrangements for flexible working and there is a concerted effort to tackle workplace bullying through an NHS-wide call to action. Our homes for staff programme is supporting NHS trusts to dispose of surplus land to help up to 3,000 nurses and other staff access affordable housing. I hope that gives the noble Lord, Lord Clark, some concrete examples to back up the warm words we use about supporting the nursing profession.
Several noble Lords have touched on new routes into nursing, which the Government are prioritising. The most significant innovation in this area was the announcement of a new nursing associate role in November 2016. Health Education England has already trained 2,000 nursing associates in a pilot programme and is planning to train up to 5,000 in 2018, with up to 7,500 nursing associates trained through the apprenticeship route in 2019. As well as creating a much-needed new role in its own right—I emphasise “in its own right”, as it is an augmentation to the nursing and other professions—nursing associate training offers an alternative route to becoming a registered nurse. We expect this “earn and learn” approach to be more attractive to older students, a concern which many noble Lords have raised.
To support this career path, Health Education England is developing a shortened nurse degree apprenticeship to facilitate transition from nurse associate to registered nurse, which will also automatically recognise the prior learning and experience gained in the nursing associate role. For the first time, apprentices will be able to work their way up from entry-level health work through to advanced clinical practice in nursing.
Several noble Lords expressed their concern about the apprenticeship route and the figure of only 30 nurses. The official data has been delayed and we believe that the figure is more like 250. We will be able to confirm that. It is a better start but, clearly, not yet the target that we want to reach. However, we believe that this stepped approach through the nursing associate role, giving the opportunities for a pause after two years and then to go on for two years, ought to be more attractive to employers than the current four-year commitment. This development of the nursing associate route therefore provides for a better use of the apprenticeship route.
I want to address a couple of what are perhaps misconceptions. The figure of 40,000 vacancies is used often in this House. I might be pedantic and disagree with that number—the quantum is just about right—but it is important to say that these are not empty places. They are being filled by agency and bank staff. Part of the reason for that is that people want flexibility and more pay, two of the things that we are trying to address so that we can provide more permanent contracts for those people who currently work flexibly.
The noble Lord, Lord Clark, and the noble Baroness, Lady Garden, talked about EU staff. I hope your Lordships will agree that I miss no opportunity to say from this Dispatch Box how much we value those staff and that they have just as much right to apply for settled status as anyone else in this country, provided they fit the criteria. However, it is worth pointing out that there are more EEA staff in the NHS than there were in June 2016. The one category where the figure is lower is in nursing and midwifery but the reason for that was the introduction of a more stringent language test. We are dealing with that issue, which I hope will mean that we continue to see an increase in EEA staff working in our NHS.
The noble Lord, Lord Willis, asked specific questions about the apprenticeship levy. I will need to write to him on that issue having consulted my colleagues in the Department for Education.
Turning quickly to the second point of the Motion, several noble Lords, including the noble Lord, Lord Hunt, the noble Baronesses, Lady Walmsley, Lady Watkins and Lady Garden, and others said that we should postpone the introduction of the reforms until the post-18 education and funding review has been completed. As noble Lords know, the Prime Minister launched the review earlier this year to ensure that we have a better system of higher education support that works for everyone. Many aspects of the current system work well and, as was set out in the terms of reference for the review, there are important principles that the Government believe should remain in future. One of those is that sharing the cost between taxpayers and graduates is the right approach, as I rehearsed earlier in my speech.
I take the point made by the noble Baroness, Lady Walmsley, about looking at the Welsh example. I have looked at it myself and I am sure it is something that the review would want to consider. However, it is important that we do not prejudice the work of the expert panel established to support the review or prejudge its outcomes. The fact of the review should not delay these healthcare education reforms, not least because they predate the launch of the review by some distance and already apply to the vast majority of nursing students. We believe it would do more harm than good to further delay these reforms, although it is worth underlining that any relevant reforms stemming from the review will apply equally to this group of student nurses.
In conclusion, I recognise the well-motivated concerns expressed by noble Lords during this debate. However, I hope I have been able to demonstrate that the student finance reforms that this Government have introduced have allowed both the removal of the artificial cap on nurse training places and the largest expansion of student nursing places in a single year ever seen. These two facts are not coincidental; they are inextricably linked. The latter is possible only because of the former and they form part of a wider set of workforce reforms designed to expand, train and reward our nursing profession better so that we can continue to deliver the high standards of NHS care that patients demand. On that basis, I hope the noble Lord, Lord Hunt, will feel able to withdraw his Motion.
Lord Hunt of Kings Heath
My Lords, I am grateful to all noble Lords who have spoken in this debate, particularly the noble Baroness, Lady Watkins, who returned early from the WHO to take part in it.
I am left, though, with huge concerns and a real puzzlement as to the Government’s approach. As the noble Lord, Lord Willis, said, faced with this huge crisis in nursing in particular but also among the other professions covered by the regulation, the Government, without any evidence base, seem to be setting out a plan to discourage older women and people from black and minority ethnic groups from entering nursing, midwifery and other professions. In the breakdown of postgraduate healthcare students, the statistics show clearly that 64% are over the age of 25, women are largely attracted to this route and there is a higher percentage of minority ethnic students. We also know from the Department for Education’s own analysis that those groups are known to be more debt-averse. So the consequence is bound to be a negative impact on the very group of people we probably most need to come into the nursing profession.
Lord O'Shaughnessy
I do not want to get into an argument about funny money and magic money trees, but it is worth pointing out that the proposal to treble student fees came from the Browne review, which was instigated by a Labour Government, and indeed the 2010 Labour manifesto committed a future Labour Government to implementing the findings of that review.
Baroness Walmsley
I would add that the Browne recommendations had no cap at all.
Lord Hunt of Kings Heath
My Lords, I would pray in aid my noble friend Lord Adonis, who sadly is not here tonight, and take the Minister back to the original intent of the loans that we introduced.
The Minister does not seem to have responded at all to the issue that, essentially, we are transferring this debt to future generations. At some point, the fact that so little of the loans is being paid back will have to be confronted. The Minister justifies increasing the number of places now on the basis that at some time in the future some Government are going to be faced with a massive problem. So not only are we discouraging some of the most important people that we want from coming into the profession, but we are also engaging in the most extraordinary financial trickery to justify current expenditure.
The Minister mentioned apprenticeships and associates. Of course we should welcome apprenticeships, and I welcome the associate profession, which is a good thing. However, the problem is that we know what the health service gets up to. We know that directors of nurses do not have as much influence on boards as they need, and that NHS trusts up and down the country will substitute associates for qualified general nurses whenever they can. Given the debacle of the whole apprenticeship approach, in putting all our eggs into that basket we are very much risking the future of this profession.
My noble friend Lord Puttnam talked about the problem that it takes a long time to recover from a situation of drastic shortage, and my noble friend Lord Clark talked about some of the implications. When you see a car crash about to happen, you usually attempt to stop it. I see this policy as putting the foot on the accelerator, leading to an inevitable crisis.
However, this was debated in the other place. I see no purpose in prolonging the debate. I hope that, under the auspices of the review of student finance, the Government will start to think again. I beg leave to withdraw the Motion.