Grand Committee

Wednesday 24th October 2018 Grand Committee

Wednesday 24 October 2018

15:45

[The Deputy Speaker (Baroness Fookes) (Con)]

My Lords, if there is a Division in the House, we will adjourn for 10 minutes.

Data Retention and Acquisition Regulations 2018

Wednesday 24th October 2018 Grand Committee

Considered in Grand Committee

15:45

Moved by

[Baroness Manzoor]

That the Grand Committee do consider the Data Retention and Acquisition Regulations 2018.

[Baroness Manzoor (Con)]

My Lords, the retention of, and access to, communications data is crucial in enabling investigators to obtain intelligence and evidence that can prevent terrorist attacks, disrupt the activities of serious organised crime groups and establish culpability so that offenders can be brought to justice. It is used to investigate crime, keep children safe, locate missing persons, support or disprove alibis and link a suspect to a crime scene.

These regulations introduce additional safeguards in our communications data regime to ensure that it complies with EU law. They also bring into force the code of practice for communications data under the Investigatory Powers Act. We have consulted publicly on the changes to the legislation and the code between November 2017 and January 2018.

The regulations provide for the independent authorisations of communications data requests. Sir Adrian Fulford, the Investigatory Powers Commissioner, is given this power and will delegate this responsibility to a newly appointed body of staff, to be known as the Office for Communications Data Authorisation. The OCDA will report directly to the IPC and will be responsible for considering the vast majority of requests to access communications data made by public authorities. The new body is expected to begin operating in April 2019, with independent authorisation being rolled out across public authorities over the course of 2019. Internal authorisation of requests will continue to be permitted in urgent cases—for example, where there is a threat to life and where requests are made for national security matters which are outside the scope of EU law.

The regulations restrict to serious crime the crime purpose for which events data such as call histories and location information can be retained and acquired. The primary safeguard to ensure that communications data is not acquired for trivial offences is the important test of necessity and proportionality, which must be considered every time an application for communication data is made.

The code of practice provides detailed guidance on how a public authority should consider the seriousness of an offence, including taking into account important factors such as the impact on the victim. In addition to this test, the regulations create a new threshold of serious crime, below which data cannot be acquired. As intended by the European Court, we have carefully considered how serious crime should be defined in the UK in the context of communications data. We propose to use as a starting point the definition which already exists within the IPA for the more intrusive interception and bulk powers, then making some adjustments in relation to communications data while leaving the original definition in place for more intrusive powers.

For communications data, we propose an adjusted definition, which includes offences that attract a sentence of one year rather than referring to offences for which the expected custodial sentence is three years, as in the case for interception. This reflects the less intrusive nature of the communications data, but nevertheless prevents data being acquired in the investigation of trivial offences. We have worked closely with the operational community to consider the importance of obtaining communications data against a range of offences, with a particular focus on cases where it was anticipated that communications data will be an important—or indeed the only—investigative tool. One area highlighted by law enforcement agencies was stalking and harassment offences. These can attract low sentences or fines, but such activity can often escalate into more serious offences, and when the activity takes place online, the ability to obtain communications data is a vital tool. Our proposed definition of serious crime for communications data acquisition also includes offences which involve, as an integral part of the offence, the sending of a communication or breach of a person’s privacy to ensure that all offences related to stalking and harassment are in scope.

The final adjustment of the serious crime definition already existing in the Act is to enable communications data to be obtained for investigations of offences committed by corporate bodies. We consider offences such as corporate manslaughter to be sufficiently serious to warrant the use of communications data in their investigation despite being punishable by fines. The generally less intrusive entity data—such as the name of a subscriber to a service—can still be obtained in relation to the full range of crimes, where it is necessary and proportionate to do so. To ensure that the serious crime restriction can be brought into force on 1 November, the regulations amend the Regulation of Investigatory Powers Act 2000 until Part 3 of the IPA is brought into force early next year. RIPA remains the legal framework for accessing communications data.

The new code of practice provides comprehensive guidance on the data retention and acquisition regime. It is well over 100 pages long, and provides further detail on roles and responsibilities. The code takes account of the changes made in these regulations, particularly the role of the Investigatory Powers Commissioner and the OCDA.

These changes support the important right to privacy and the right of citizens to be protected from crime and terrorism. They ensure that public authorities can continue to access retained communications data in a way that is consistent with EU law and our responsibilities to protect the public. The additional safeguards, the clear requirements set out in the code of practice and the independent oversight provided by the Investigatory Powers Commissioner establish clear limits around the use of these powers, and provide reassurance that communications data is being used only where it is necessary and proportionate to do so. I beg to move.

[Lord Paddick (LD)]

My Lords, I remind the Committee that I was a police officer for over 30 years, rising to the rank of Deputy Assistant Commissioner in the Metropolitan Police, and—contrary to popular belief—my certificate of service states that my conduct was exemplary. I acknowledge the importance of communications data in the investigation of serious crime as the Minister has outlined. I also welcome, as far as they go, the independent authorisation provisions contained in these regulations.

I should like to give the Committee some background to discussions I have had with Ministers and officials on these regulations. Two weeks ago, at a meeting with the Minister of State for Security and Economic Crime, the Minister of State for Countering Extremism, the Minister for Equalities, and officials, I raised my concerns about the definition of serious crime in these regulations and one other issue. The Minister for Security and Economic Crime and his officials were unable to answer my concerns at that meeting but the Minister promised to find the answers and get back to me. Having heard nothing by yesterday afternoon, I alerted the Government to the fact that, in the absence of any explanation, I would seek to oppose the regulations when they reached the Floor of the House. At 8 pm last night, the Minister of State for Countering Extremism called me because she had been told that I was unhappy with the regulations. I repeated my main concern, as clearly expressed in the meeting with Ministers and officials on 10 October, and she undertook to provide me with a copy of the relevant part of the Minister’s opening speech this afternoon. I received this at 10 am today and I am grateful for the advance sight of the relevant part of the speech. Having reflected for some time on the Minister’s opening remarks, provided to me in advance in writing, I wish to explain to the Committee why I am still not satisfied with the Government’s response.

In the Investigatory Powers Act 2016—the Act of Parliament under which these regulations are being made—“serious crime” is defined as offences for which the expected custodial sentence is three years for a person over 18 with no previous convictions. In other legislation currently before the House—for example, the Counter-Terrorism and Border Security Bill—the definition of serious crime is the same as in the Investigatory Powers Act 2016. An expected custodial sentence of three years’ imprisonment for a person without any previous convictions is not, as I understand it, a maximum sentence of three years’ imprisonment. Taking shoplifting as an example, the maximum sentence for theft is 10 years in prison but someone stealing a can of beans from Tesco could not be expected to be sent to prison for three years for such an offence. Can the Minister explain exactly what “expected custodial sentence” means in practice? Can she give some examples of the types of offences that would fall within this category?

However, these regulations not only lower the bar to 12 months’ imprisonment or more, down from three years, but—the Minister will correct me if I have this wrong—defining serious crime as an offence that someone is capable of being sentenced for must mean that the maximum sentence is 12 months or more, which is a much lower threshold than the definition in the Act. Furthermore, it disregards any enactment prohibiting or restricting the imprisonment of individuals who have no previous convictions, as opposed to the Act, which has regard to such restrictions. If I am right, this shows that this is a much lower standard for defining serious crime than is contained in the Act itself.

The Minister talked in her introduction about preventing data being acquired in the investigation of trivial offences. The CJEU judgment on this matter, which has prompted these regulations, talks about the objective of fighting serious crime, not the prohibition on using communications data to investigate trivial crime. There is a significant difference between serious crime and trivial crime. My view is that the Government have stretched the definition of serious crime beyond credible limits, to an extent that is not compliant with the CJEU judgment in this matter.

However, the regulations go further still, to include any offence committed by a body corporate and any offence,

“which involves, as an integral part of it, the sending of a communication or a breach of a person’s privacy”.

Clearly, “any offence” does not differentiate between a serious offence and any other type of offence. The CJEU explicitly stated that the use of communications data must be restricted to the investigation of serious crime but these regulations define any crime as being serious if it is committed by a body corporate or involves the sending of a communication or a breach of privacy, when clearly some of these offences will not be serious by any reasonable definition. I am reminded of the Oxford undergraduate who tried to get around college by-laws prohibiting undergraduates from keeping dogs in their rooms by calling his dog “Cat”.

The Minister has explained how the Government arrived at such a position:

“We have worked closely with the operational community to consider the importance of communications data against a range of offences, with a particular focus on cases where it was anticipated that communications data will be an important—or indeed the only—investigative tool”.

16:00

I understand the difficulty in investigating some low-level offences if the police cannot access communications data. However, the CJEU has ruled on where the line needs to be drawn between preventing unreasonable intrusion into citizens’ privacy and law enforcement, and the line was drawn at serious crime. The Government cannot redefine “serious” as any offence involving the sending of a communication to get around the bar that the CJEU has set, just because the police say it is an important investigatory tool.

The Minister tried to reassure the Committee by saying that, in every case the tests of necessity and proportionality would have to be passed. Indeed, the use of communications data in any case where it was not necessary or proportionate would in itself be a breach of the Human Rights Act, but the CJEU has said these tests are not sufficient. In addition to being necessary and proportionate, the use of communications data must be used only with the objective of fighting serious crime.

The Minister euphemistically describes the ditching of the widely accepted definition of serious crime, and its substitution with the woefully inadequate and in some cases totally non-existent safeguards provided by the definition of serious crime in these regulations, as “making some adjustments”. Can the Minister explain how any offence involved in the sending of a communication, no matter how serious, is a serious crime as intended by the CJEU in its judgment? I accept that the most serious offence that a body corporate can be charged with might be corporate manslaughter, but how can any offence committed by a corporate body, no matter how serious, be a serious crime as intended by the CJEU in its judgment?

Lastly on this issue, the Minister talks about the less intrusive nature of communications data while leaving the original definition of serious crime in place for the more intrusive powers. Requiring a communications service provider to hand over data that would show where your mobile phone was at any particular time on any day, known as cell site analysis; analysis showing all calls made and received on your mobile phone—that is, an itemised phone bill; or all the details of every internet site that you have visited using your phone or your computer in the last 12 months, and your internet connection records, we regard as intrusive enough to deserve the CJEU’s intended restriction of being used only to fight serious crime.

There is another, perhaps less important, issue of which I gave notice to both Ministers in the face-to-face meeting two weeks ago at which officials were present, to which I was promised a response but have received none. In paragraph 7.12 of the Explanatory Memorandum to the regulations, the Government take the view that the CJEU judgment does not cover requests for communications data made for national security purposes or for requests made by one of the three intelligence agencies. As such, the current internal self-authorisation regime for these cases will be maintained under the new regime.

It is indeed correct that EU member states are not governed by EU data protection rules in relation to matters of national security. However, third-party states outside the EU are subject to EU data protection standards in relation to matters of national security when the EU considers whether it is safe for EU states to exchange data with them. For this reason, in the recently passed Data Protection Act, in so far as the Government were able to do so, they passed laws outside the scope of the general data protection regulations—GDPR does not cover law enforcement and national security issues—to ensure that the UK did comply with EU data protection standards in relation to matters of national security in anticipation of leaving the EU. Can the Minister explain why these regulations have not been future-proofed in the way that the Data Protection Act has been?

There are other questions. Does self-authorisation in urgent cases comply with the CJEU judgment requiring independent authorisation? Should there be a requirement that any retained communications data should be retained within the EU? Should the regulations include a requirement to notify the person that their communications data has been accessed or used, as required by EU law? I would be grateful if the Minister would respond in detail to all the very specific points that I have raised.

[Baroness Jones of Moulsecoomb (GP)]

My Lords, the noble Lord, Lord Paddick, has compared these regulations to a dog masquerading as a cat. My feeling about them is that they seem more like the plotline from a political thriller than a reality that we ought to be facing. The regulations are actually a barefaced attempt by the Government to expand their creepy surveillance powers deeper and deeper into our lives. We seem to be the last bulwark here against the Government adopting Henry VIII powers that are simply unacceptable in these areas. These changes are unacceptable and we are going to do as much as we can to stop them. The Data Retention and Investigatory Powers Act was already hugely controversial, and these regulations seek to extend those powers even further.

Big changes to legislation, such as this, should be done through an Act of Parliament, rather than sneaking it through, without full scrutiny, under secondary legislation. I think it is quite outrageous of the Government to try to do this. In particular, I too was at that meeting on 10 October—one of the two Peers who attended, out of 800—and I feel that at no point have our concerns raised at that meeting been looked at, discussed or taken into account. I also take great issue with the definition of “serious crime” which these regulations use to justify state intrusion into people’s communications. Serious crime, we are told, is any offence which is capable of leading to a prison sentence of more than 12 months. Such serious crimes would therefore include possession of small quantities of cannabis, the obscene performance of plays or petty theft. I personally would not indulge in any of those, obviously, but I imagine there are categories that I could fall into, in total innocence, and that offends me very deeply.

Detecting and preventing even these pettiest of crimes would be grounds for the state to collect communications data. There does not need to be reasonable suspicion that you have committed an offence, just a general intention to make sure that you have not done anything wrong. Using these powers for so-called serious crime, the police will be able to gather the location data transmitted by your phone and any other electronic device. So with very few legal safeguards, the state can track you at will. These ever more oppressive data collection laws make it ever easier to spy on each and every one of us, for even the vaguest of reasons.

These laws are going the wrong way. Of course we need proper powers to tackle terrorism and truly serious crime, but alienating a lot of the populace is not the way to go. These powers should not come at the expense of the rights and freedoms of the majority of people, who are innocent of any serious crime. I feel that the Government are turning into an ugly, greedy surveillance monster, willing to sacrifice civil liberties that are, or should be, at the heart of real democracy.

[Lord Rosser (Lab)]

As the Minister said, the purpose of these regulations is to reflect a ruling of the European Court on communications data acquisition and retention that the Investigatory Powers Act 2016 is incompatible with European law. In the light of that ruling, these regulations have been brought forward, seeking to bring our legislation in line with European law, and of course what is before us also contains the code of practice to which the Minister referred.

The regulations and the code of practice provide for independent authorisation over the use of the relevant powers. The regulations also restrict the crime purpose for acquiring retained commissions to what is described as “serious crime”.

In the Commons, where this matter has already been discussed, we said that we did not oppose the changes made. We also said that we supported strong powers, but added that we supported strong safeguards. Although it is not entirely about safeguards, the issues that have been raised have also been about powers, but certainly much of the comment that has been made, although not exclusively, has been about the extent to which there are or are not appropriate safeguards in relation to these measures.

The noble Lord, Lord Paddick, raised issues about the definition of serious crime, which, as I understand it, is up to the member state to define. However, he also raised questions over the issue of whether the Government’s definition is too wide ranging, since it covers offences for which a penalty of 12 months’ imprisonment or more can be imposed, as opposed to what might realistically be expected to be imposed for the offence, and the fact that the definition covers, as the noble Lord said, any crime by a body corporate or any offence that involves as a key part of it,

“the sending of a communication or a breach of a person’s privacy”,

which it would appear could include minor transgressions as well as matters for which one would quite definitely expect these powers to be used.

On the issue of the custodial threshold, as the noble Lord, Lord Paddick, has said, it is in relation to offences which would, as I understand it—and as I think he understands it—carry a maximum of 12 months’ imprisonment. He has contrasted it to the present definitions, which can be found elsewhere, including under the Investigatory Powers Act, where the reference is to three years—I think the noble Lord said he expected it to be three years. That is of course, as he has already said, a very different issue to an offence having a potential maximum of 12 months, which it is now suggested it should be in this case.

Clearly, that having been said, and the decision having been made to lower the threshold—I think I know from what was said in the Commons what the Minister is likely to say in respect of that, and I will listen with great interest to her response—there is the issue of how, as far as the powers stand at the moment under these regulations, we will be able to stop them being abused by using them in respect of offences which could hardly be deemed to be serious. As the noble Lord, Lord Paddick, said, if you look at the kind of offences for which there can be a maximum of 12 months’ imprisonment, they can include—because you have a lower and a higher level of defence—types of offence which it would be difficult to describe as serious.

The Minister referred to the Office for Communications Data Authorisations. As I understand it, if there is a desire to use the powers under the Bill, it is to that office under the Investigatory Powers Commissioner that an application will be made. Reference has been made to using the powers in a way that is proportionate and necessary. Bearing in mind that we are talking about an offence being investigated and so do not know fully its level of severity or otherwise, an obvious question in the context of what the noble Lord, Lord Paddick, has raised is how those deciding whether to authorise the use of those powers will judge whether we are dealing with a serious crime.

I await with interest the Minister’s response to the points that have been raised not only by the noble Lord but by the noble Baroness, Lady Jones.

16:15

[Baroness Manzoor]

My Lords, I am glad that we have been able to have such a wide-ranging discussion, because this is a very important subject. All three noble Lords who have taken part in this debate have spoken of the vital role that communications data and investigatory powers generally have in protecting the public and bringing criminals to justice.

I assure the noble Lord, Lord Rosser, the noble Baroness, Lady Jones, and my noble friend Lord Paddick I all him my noble friend—that the Government take seriously the need for strong protections and safeguards. We want to ensure that the powers are still used appropriately and fairly.

I turn to the questions put to me; there were common elements in all of them. All three noble Lords raised the important issue of the serious crime threshold and suggested that it might be too low. UK law contains a variety of definitions of serious crime specifically designed to be relevant to the particular statute or power to which they relate. The existing serious crime threshold in Section 263 of the Investigatory Powers Act is a high threshold—conduct for which an adult could reasonably be expected to be sentenced to three years or more in prison or which involves violence, substantial financial gain or a large number of persons in pursuit of a common purpose. This relates to the much more intrusive interception of communications and bulk powers.

The Section 263 definition would exclude a wide range of offences where it would be appropriate to be able to acquire communications data; for example, child cruelty, stalking, harassment, some sexual offences and some offences relating to theft and fraud, as well as offences committed by a body corporate such as corporate manslaughter—I mentioned this in my opening comments. We have therefore proposed an adjusted version of the Section 263 definition for the purposes of acquiring events data to reflect its less intrusive nature and the importance of such data as a tool in investigating many serious online crimes.

An offence capable of attracting a year or more in prison is not a trivial matter. In addition to this serious crime threshold, a public authority will still need to show in every case that the data is necessary and proportionate for the specific investigation. The code of practice also provides detailed guidance on the factors that public authorities need to take into account when considering seriousness.

The noble Lord, Lord Paddick, referred to the European Court of Justice. The court acknowledges that the level of intrusion depends on the data being acquired. While the serious crime threshold prevents data below it being acquired, the important test of necessity and proportionality, combined with clear guidance on seriousness in the code of practice, will ensure that the level of seriousness is appropriate and that this appropriateness is taken into account. This is set out in a subsequent ECJ judgement.

The noble Lord, Lord Paddick, also asked about the carve-out related to communications. For this to apply, the communication must be integral to the offence. For example, it would ensure that if a person is being stalked or harassed online, this could be fully investigated, even if the specific offence being committed does not involve a sentence of 12 months or more. As I have said, such offences can quickly escalate, and it is important that such conduct can be investigated and action taken at the appropriate opportunity.

The noble Lord also asked about EU issues in terms of adequacy. As I have stated, the UK is already fully compliant with EU data protection legislation. We have implemented the new EU data protection framework, the GDPR and the law enforcement directive through the Data Protection Act 2018. We believe the changes we are proposing to our communication data, retention and acquisition regime will allow us to comply with EU law while continuing to keep the public safe, so there should be no impact on our ability to share data with the EU in the future. Although the European Commission can consider our national security arrangements as part of any adequacy decision, we do not feel it would conclude that the UK’s decision not to require independent authorisation in relation to national security requests makes the UK data protection framework inadequate. This is particularly the case in circumstances where we consider that no EU member state is required to put in place independent authorisation for its national security applications. Indeed, we know that other member states agree that national security is not within the scope of EU law, and therefore this judgment does not apply in national security cases. In any event, the regulations permit national security applications to be rooted through the OCDA, should that be considered appropriate or necessary, now or in the future.

A question was put about corporate offences, and why we are capturing them all. This relates to the question of the noble Lord, Lord Paddick, in terms of the carve-out. The carve-out ensures that communication data can be acquired in relation to serious offences such as corporate manslaughter, which are punishable only by fines. As with all applications for communications data, the necessity and proportionality test will prevent it being acquired in relation to more trivial matters, and I think that that is key.

As the noble Lord, Lord Rosser, indicated, the Commons approved these regulations on 15 October. If they are not approved by 1 November, we will be in breach of a court order. I understand the noble Lord, Lord Paddick, wishing to take this to the Floor of the House. I was not party to the meetings he had two weeks ago, and can only apologise that he did not receive the information he requested from those meetings until 10 am today. But I hope that he will reflect on the answers I have given.

There is nothing more I can add to what I have already said, but I remind noble Lords that there is still ongoing litigation in relation to domestic and EU courts on the investigatory powers. For example, the ECJ ruling raises the issue of notification. The Government’s position remains that our regime already provides for sufficient notification of individuals where appropriate and is consistent with the requirements of EU law and the European Convention on Human Rights. These regulations address the areas where the Government have acknowledged that changes are needed to comply with the requirements of EU law, and that is exactly what we are doing.

I hope that the noble Baroness, Lady Jones, feels that I have addressed the issues around the level or threshold of serious crime. She also asked whether we are extending the powers of the state. We are not extending our powers—rather, I understand that we are narrowing them. The current law permits communications data to be used for all crimes. This is about being fair and proportionate, being transparent, and having clear oversight of the data that is being requested and reviewed. This area has been greatly strengthened by that oversight.

The noble Baroness, Lady Jones, also raised the issue of using EU regulations as a way forward. I can only say that these regulations have been made under Section 2(2) of the European Communities Act 1972 which permits the Secretary of State to amend primary legislation by regulations to implement EU law obligations, as in this case. The regulations are of course subject to the affirmative resolution procedure which requires the formal approval of both Houses of Parliament, including a debate and vote in each House before they can become law, if noble Lords so wish.

The noble Lord, Lord Paddick, asked why we are not complying with all the elements of the judgment. We have accepted that there are aspects of our regime that do not meet the requirements of the ECJ judgment and it is those which the regulations address. Subject to the changes, we believe that our existing regime complies with the requirements set out in the ECJ judgment.

I have already addressed the issue of using the Section 263 definition for intrusive powers and I do not think that there is anything else I can add to that. The noble Lord and the noble Baroness both asked where such powers can be used. I have some examples before me that may help, but I hope that I will be forgiven if they are not fully inclusive. I will write to noble Lords. The examples include inciting a girl aged under 16 to have incestuous sexual intercourse, contempt of court, racially aggravated harassment, common assault, sexual communications with a child and child cruelty. Again, I will write to the noble Lord with further examples in order to provide greater clarity in this area and I will ensure that the information is distributed to all noble Lords.

[Lord Rosser]

I thank the Minister for her assurance that she will give the details in writing, which I am sure will be very helpful. I did ask how the Office for Communications Data Authorisations would make its judgment as regards whether to agree to authorise the use of powers under the Bill. As has been said, we are now in a situation where included in the definition of serious crime is a penalty which can be at its maximum a sentence of 12 months’ imprisonment. As I am sure the Minister knows, that covers an awful lot of offences where, in the normal course of events, you would not expect an individual found guilty of that offence, when you look at the nature of the offence, to get anything like 12 months.

I am still not too clear, and it would be very helpful if the Minister could address this, how the Office for Communications Data Authorisations would make its assessment when it relates to a crime for which the maximum penalty is 12 months. How will it be able to make the assessment of what the penalty is likely to be if the individual is found guilty of that offence? Presumably, if it were to end up going to court and a fine imposed, which can happen even for something that has a maximum penalty of 12 months, surely we would not expect them to agree to authorise a power under the Bill.

16:30

[Baroness Manzoor]

The noble Lord, Lord Rosser, makes a very important point. When I write, I will ensure that the issue of how it will be overseen by the oversight body and how it is dealt with is addressed very clearly. I will write to all noble Lords and I will also place a copy in the Library.

[Lord Paddick]

In that letter perhaps the Minister will expand further on harassment and stalking offences, which can quickly escalate, to use the expression she used. Of course, if stalking involves fear of violence, or serious alarm or distress—in other words, if it escalates—the maximum sentence is five years and therefore it would be covered anyway by the definition of serious crime as being something with a maximum sentence of 12 months. Therefore, an offence involving communications as an integral part would not be necessary. Perhaps she can clarify that as well when she writes.

[Baroness Manzoor]

Of course, I will be happy to do that. I shall address the points put by the noble Lord, Lord Rosser. He asked how we will prevent the powers being used for less serious offences, which is essentially the question on which I have been asked to write, but I shall try to give a brief view of our response. The Office for Communications Data Authorisations will receive a full case setting out the need for communications data. It will need to set out why the request is necessary, proportionate and sufficiently serious to warrant the intrusion. The IPA then provides for oversight of this.

The Investigatory Powers Act provides for an Investigatory Powers Commissioner, whose remit includes providing comprehensive oversight of the use of the powers contained within the Act and adherence to the practices and processes, which as noble Lords know are described in the code of practice. The IPC is a member of the senior judiciary and is entirely independent of Her Majesty’s Government or any of the public authorities authorised to use investigatory powers. That is very strong oversight. The IPC is supported by inspectors and others, such as technical experts and legal experts. The IPC and those who work under the authority of the IPC will ensure compliance with the law by inspecting public authorities and investigating any issue which they believe warrants further independent scrutiny. If there were any issue, they would be there in an independent capacity—it is not just somebody locally at the authorities making that decision.

The IPC must report annually on the findings of its audits, inspections and investigations. This report will be laid before Parliament and made available to the public, subject to any necessary redactions made in the public interest. Separately, the Investigatory Powers Act requires that the security, integrity and deletion of retained data by telecommunications operators is overseen by the Information Commissioner, who provides the UK’s data protection oversight function. Just to conclude on that, because the oversight is important, Section 260 of the IPA requires that the Secretary of State must publish a report reviewing the operation of the Act and lay it before Parliament after five years of its passing.

I hope that I have answered most of the questions that noble Lords have put to me. As I said, if there are any issues that I have missed or not grasped as fully as I could have done, I am happy to write to noble Lords and place a copy of the letter in the Library. I am aware that across from me there is greater expertise than I have, but I hope that I have been able to allay any fears and concerns and that noble Lords are assured that we are looking at safeguarding and protecting, as well as ensuring transparency, in this important area.

Motion agreed.

Civil Aviation (Insurance) (Amendment) (EU Exit) Regulations 2018

Wednesday 24th October 2018 Grand Committee

Considered in Grand Committee

16:36

Moved by

[Baroness Sugg]

That the Grand Committee do consider the Civil Aviation (Insurance) (Amendment) (EU Exit) Regulations 2018.

[The Parliamentary Under-Secretary of State, Department for Transport (Baroness Sugg) (Con)]

My Lords, these draft regulations will be made under the powers conferred by the European Union (Withdrawal) Act 2018 and will be needed if the UK leaves the European Union next March without a deal. The regulations amend EU regulation 785/2004, which sets out insurance requirements for air carriers and aircraft operators, and the domestic legislation made to implement this regulation.

EU regulation 785/2004 requires air carriers and aircraft operators to be insured in respect of passengers, baggage, cargo and third parties and against other risks such as acts of war, terrorism, hijacking, acts of sabotage, unlawful seizure of aircraft and civil commotion. It also requires air carriers and aircraft operators to demonstrate their compliance with the minimum insurance requirements set out in the regulation and makes provision for exceptional situations where a failure of the insurance market means that carriers are not able to demonstrate that they are adequately insured in respect of all the risks specified in the regulation.

The withdrawal Act will retain in UK law EU regulation 785/2004 in its entirety on exit day. The draft instrument that we are considering makes the changes necessary so that the EU regulation continues to function correctly after exit day, alongside the domestic Civil Aviation (Insurance) Regulations 2005, which were made to implement the EU regulation. This is essential to ensure that the regulatory regime in place after exit continues to make the UK a safe place for passengers to travel by air.

The changes that the draft legislation makes are technical in nature. Both the risks against which air carriers and aircraft operators must be insured and the levels of insurance required, which are measured in special drawing rights—an international reserve asset created by the International Monetary Fund—remain the same.

To illustrate some of the proposed changes: they ensure that the scope of the retained EU legislation is correct so that it applies to “the United Kingdom” rather than,

“a Member State to which the Treaty Applies”,

and ensure that EU processes set out in the regulation, which will not apply to the UK after exit, are replaced with equivalent domestic processes. The EU regulation also makes provision for certain legislative functions. For instance, Article 7 sets out the minimum insurance cover in special drawing rights per accident for aircraft according to mass, and the EU regulation provides that the values in Article 7 may be amended where this is required as a result of changes to multilateral treaties, such as the 1999 Montreal Convention.

As the EU legislative procedure prescribed in the regulation will not apply to the UK once it has left the EU, this SI makes provision for the Secretary of State to amend these values by regulations if, and only if, required as a consequence of changes to international treaties. To ensure that any use of these powers is subject to appropriate scrutiny, we have provided that any such regulations must follow the affirmative resolution procedure and be approved by both Houses of Parliament.

We remain confident of securing an agreement on aviation with the EU. Across Europe, people benefit from liberal aviation market access, and we are focused on securing the right arrangements for the future so that our aviation industry can continue to thrive and passengers across the UK and the EU can continue to benefit from high levels of connectivity and choice. However, irrespective of the outcome of negotiations, it is crucial that we prepare our regulatory and legislative framework so that it continues to enable the UK’s aviation industry to operate safely and effectively in all scenarios. I commend these regulations to the Committee.

[Baroness McIntosh of Pickering (Con)]

My Lords, I congratulate my noble friend on moving these regulations. I will take the opportunity to raise a number of personal concerns. I declare an interest in that when I was an MEP, I was Conservative spokesman for aviation in the European Parliament for a number of years, and at the time I met my husband, he was working for Delta Air Lines.

I imagine that the list my noble friend gave is not exhaustive, but there are increasingly incidents of drones—indeed, there has been a near miss. Is this currently covered by the EU legislation, and will that also transfer? Is this an opportunity that my noble friend and the Government may wish to look at in order to increase the cover? As I understand, there was a near miss involving a passenger aeroplane at a London airport, which would have had devastating consequences. I remember once looking at my insurance policy when I lived in a rented flat in Brussels, and one of the exclusions was from a plane falling from the sky. I wondered what the chances were of that happening, until a cargo plane did just that at Amsterdam airport, and the consequences were obviously absolutely devastating, not just for the passengers on the plane but for those in the apartments underneath.

I do not know whether this is the correct time to ask, but can my noble friend confirm that we will continue to have reciprocal cover, so that we will recognise the insurance cover of European carriers and other international carriers who use our airspace, emanating from EU airports? I understand that that is covered at the moment, but reading the specialist press, there seems to be some concern about whether this will carry on.

As my noble friend will be aware, there is deep concern among the airline industry, and no doubt airports as well, that we will continue to enjoy use of European airspace, and that our membership of EASA, the European Aviation Safety Agency, will continue. Does that fall within the parameters of these regulations or will my noble friend have another opportunity to update those of us who are concerned?

In her latter remarks, my noble friend said that the value of the insurance cover will continue to be reviewed. From memory, these values are set by either the Geneva or the Warsaw convention. Is my noble friend able to tell us when these values were last reviewed and whether in future we will continue to review the values of the insurance cover on a multilateral, reciprocal basis with our existing EU partners and others, such as Norway and Iceland, with which we will have reciprocal arrangements—I imagine that through the EEA they are already members of EASA—or is it the intention of the Government to do that on a bilateral basis? I believe that would be highly regrettable.

16:45

[Lord Berkeley (Lab)]

My Lords, I welcome the Minister’s introduction of these regulations. I imagine it is the first of a very large number of statutory instruments—and it just covers insurance. As the noble Baroness, Lady McIntosh, said, there is the whole question of EASA, which we will come to another day.

I have a few questions about the insurance cover itself. The Minister said that it covers the insurance requirements for air travel in the UK. Does that cover airlines registered in the UK? Does it cover airlines registered in the EU which are flying to or from the UK? Does it cover airlines registered in third countries which are coming into the UK and going on somewhere else or stopping here? Is there any requirement under these regulations for an airline registered in the UK to demonstrate that it has insurance outside the borders of the UK, specifically in the EU? I am sure that airlines do not think, “We just want to be insured in this country, we do not care what happens when we cross the frontier”, but it would be nice to have some comfort on that. Does the Minister expect the EU to want to know whether all these insurances that we have just talked about are valid in the UK before it will allow planes to arrive in its own airports from the UK? There is a large number of different scenarios here, leaving aside the fact that London to Dublin is the most traffic-heavy air route into and out of this country and Dublin will still be in the EU and apparently we will not be.

I would be grateful if the Minister could address those questions and give us some idea of what other SIs will be coming to cover all the other things that are required to enable continuity of flying after 29 March. I gather that either the Minister or her Secretary of State was given a bit of a telling-off by Mr Barnier for trying to prejudge the Brexit negotiations by going round every other member state and trying to get quiet deals with each one. I am sure she had a great time going round all those places but I do not know what has happened with this. I look forward to her comments.

[Baroness Randerson (LD)]

My Lords, the airline industry in this country is intensely competitive. It is a commercial environment where there is a real danger that airlines seeking to reduce costs will cut their insurance to the minimum in order to do so. It is obvious from this SI that freeing ourselves from EU standards means that we could allow airlines to have a lower level of insurance. The Minister read out an impressive but rather grim list of the risks that airlines face. Obviously those risks are also faced by their passengers and therefore I would be grateful if she could give some more detail about what restrictions will be put on airlines that are registered in Britain: how low can they go as regards their insurance cover?

It is obvious that the Government are anticipating a reduction because paragraph 7.3 of the Explanatory Memorandum makes it absolutely clear that this legislation will free airlines in the UK to take up lower levels of insurance cover than those required in the EU. It gives the example of “non-commercial operations”. As an aside, I would like to ask the Minister if she could define what the Government mean by that phrase. What sort of operations will need to have or will be allowed to have a lower level of cover? There is no point in freeing yourself up from EU controls if you are not going to allow variations from the standards that the EU has set. Will there be any guarantees of a minimum level of insurance cover or will we have some sort of free-for-all as a result of this? Air passengers will be concerned that there should always be an adequate level of cover.

I reiterate the question put by the noble Lord, Lord Berkeley: exactly how will this work? I have been trying to envisage the process. Thank goodness that several of our airlines have decided that they will neutralise some of the risks of Brexit and life after Brexit by registering in other countries. That covers their risks, which is a very good thing for them to have done. However, airlines are often based in more than one country. They may have their headquarters in one country but have most of their aircraft based in another one. Of course they fly between countries, so who will set the level of insurance that is required on each occasion? Will it depend on their country of origin, the flight that day, or will it depend on where the airline’s headquarters are based? If our UK-based planes fly from the UK to an EU country, will they not have the right to demand that those planes have an EU level of cover, not the reduced cover that the Government seem to envisage would be possible?

Finally, I put a rather prosaic point to the Minister. Paragraph 3.2 of the Explanatory Memorandum states:

“The territorial application of this instrument includes Scotland and Northern Ireland”.


What has happened to Wales, which has more than one airport? Can I ask for an assurance that the Scottish Government—sadly I cannot ask about Northern Ireland at this moment—have expressed their agreement to the concepts behind this SI and that the Welsh Government have done so as well, particularly since they do not seem to have been mentioned?

[Lord Rosser (Lab)]

I also thank the Minister for explaining the purpose of the regulations before us. Perhaps I may pursue the point that has been made about paragraph 7.3 of the Explanatory Memorandum to clarify what it means—or at least to establish that what I think it means is correct. It states:

“Article 6 sets out levels of insurance in respect of liability for passengers, baggage and cargo. Under Article 6(1), the minimum insurance cover for liability in respect of passengers is set at 250,000 SDRs per passenger”.


Can I take it that, as far as these regulations are concerned, there is no change and that the minimum insurance cover which applies at the moment will continue to be applied in the future and not be reduced? The memorandum continues:

“For non-commercial operations by aircraft with a MTOM of 2,700kg or less, there is an option for Member States to set a lower level of minimum insurance cover”—


I take it that that is the present situation with us being within the EU and that we already have the option because the memorandum says—

“which the United Kingdom has chosen to exercise. To ensure that the flexibility provided for in Article 6(1) is retained, Article 6(1) is amended to include a provision for the Secretary of State, by regulations, to set a lower level of minimum insurance cover in respect of non-commercial operations by aircraft with a MTOM of 2,700kg”.

Does the Secretary of State intend to go to a lower level of minimum insurance requirement than we have already exercised under what I understand is provided for under the existing arrangements? It is clear from looking at it that the Secretary of State could take the first opportunity to reduce it even further. What are the advantages of having the lower level of minimum insurance cover that the Secretary of State may set by regulations? To whose advantage is it? Is it safer to have a lower level of minimum insurance cover? It would be helpful to know what the advantages are and whether the Secretary of State intends to lower the level even further than I presume we have already reached.

[Lord Berkeley]

Will my noble friend clarify his thinking on non-commercial operations of aircraft with a minimum take-off or landing weight of 2,700 kilograms? That covers small private planes. Does he agree that it would be quite difficult if those private planes had such a small amount of insurance cover that anybody who might be affected by anything they did could be seriously out of pocket?

[Lord Rosser]

That would seem to be one issue, but I was posing the question to the Minister with no particular objective in mind other than simply to find out the thinking behind it, given that we have already moved to a lower level of minimum insurance cover than would have applied if we had not exercised the option. At the moment, I genuinely do not know what the thinking behind it is, to whom it is considered advantageous and whether there are any downsides. That is the point of my question and I hope that the Minister will be able to respond to it.

The Minister referred to international treaties. Paragraph 7.4 of the Explanatory Memorandum states:

“Article 6(5) sets out that the values referred to in Article 6 may be amended if required because of changes to international treaties … Article 7(2) sets out that the values referred to in Article 7(1) may be amended where it is required as a result of changes to international treaties, and this is amended to enable the Secretary of State, by regulations, to amend the values in Article 7”.


I think that the Minister has already said this, but I would like an assurance that those changes will be made only in response to changes in international treaties and that the Secretary of State will not use this instrument to make changes that are not required under international treaties.

17:00

Paragraph 7.2 of the Explanatory Memorandum—just to show that I read Explanatory Memorandums—says:

“Article 5(5) contains a provision which allows the Commission to determine the appropriate measures for the application of Article 5(1) in cases of exceptional insurance market failure. When the UK has left the EU, the Commission will no longer be able to perform this role in relation to United Kingdom air carriers and aircraft operators. Instead, these Regulations will allow the Secretary of State to make regulations which enable paragraph 1 to be applied with modifications”.

Has the Commission ever been required or found it necessary to determine the appropriate measures for the application of Article 5(1) in cases of exceptional insurance market failure? If in future this issue is to be covered by regulations made by the Secretary of State to be applied with modifications, what kind of modifications are being contemplated? Would those modifications always be in line with, or at least not inferior to, any that the Commission might determine in the exercise of its powers currently?

Finally, paragraph 10.1 on the consultation outcome says:

“Consultation took the form of regular meetings with representatives of air carriers, airports and others as well as representative trade associations both individually and on a bilateral basis and in group settings at stakeholder workshops”.

Does that mean that no passenger representatives were consulted, bearing in mind that this is about insurance?

[Baroness Sugg]

My Lords, I thank noble Lords for considering the draft regulations. Many questions have been asked and I will do my best to get through all of them, but if I do not I will follow them up in writing. As I have said, the regulations just make the changes necessary to ensure that the retained EU legislation setting out the insurance requirements continues to function properly. They do not change that legislation.

My noble friend Lady McIntosh asked about the level of insurance. The regulations do not change the prescribed level of insurance in any way. I agree with my noble friend that drones are a real threat and that is why we are taking action. We have brought in height restrictions and flight restrictions close to airports, but there is more to do on that. We will bring forward a draft Bill which will look at police powers, among other things.

Reciprocal cover on insurance is required under international treaties. That will continue to be the case. Our continued membership of EASA is a matter for negotiations, but we have made our position clear that it is in everyone’s interest that the UK should remain part of EASA. We have played a leading role in it and will want to continue to do so.

The noble Lord, Lord Berkeley, asked whom this insurance will cover. It will apply to all aircraft flying into the UK, including EU carriers, third-country carriers and UK carriers. Everyone who flies into the UK will be required to hold this insurance as a condition for their permit to operate in the UK. The noble Lord is right to point out the number of pieces of secondary legislation coming our way. There will be around 14 aviation SIs to get through.

[Lord Berkeley]

The noble Baroness mentioned international treaties. Will those need to be redone because we are leaving the EU or are they ones to which the whole world is signed up and so there will be no change? In other words, did we sign up to them or did we sign up to them through the EU?

[Baroness Sugg]

We signed up to the international treaties as a member state—as the UK—so we will not need to rejoin them. Obviously, EASA is a separate group of which we are a member as part of our membership of the EU, but we have signed up to the Montreal convention, for example.

Regarding the member states negotiations mentioned by noble Lords, sadly I have not been on a Europe-wide trip negotiating bilaterally with member states. We are working closely with the Commission on agreeing a liberal deal, and that kind of multilateral level agreement is our primary objective. We want to be as ready as we can be for when we leave the European Union, and so the noble Lord was quite right to point out that we have approached member states, but our preference would definately be a multilateral deal on that.

Turning to the questions from the noble Baroness, Lady Randerson, regarding the minimum level required and how low we could go. Just to be clear, it is not about reducing cover in any way. Article 7 sets out the minimum insurance for special drawing rights and that is carried across, so we will still have that same minimum level. I can assure all noble Lords that the amendments to regulations will be made only in response to an international treaty change.

[Baroness Randerson]

Can I ask for a little more clarification on that because the Minister said in a previous answer that these regulations are not changing the prescribed level of insurance in any way. Yet by freeing ourselves from the EU prescribed level, is it not up to us if we wish to change the level? I am happy to accept the Minister’s assertion that the Government have no plans to do that, but would these regulations enable the Government to change the prescribed level if they wished to in the future?

[Baroness Sugg]

I think with all the SIs we are doing, we are literally transcribing EU law into UK law and treating it the same way, as the UK, as we would as a member of the EU. I think any change of policy in the future is not going to be part of these SIs, it would be done as a separate policy decision and debated in the normal way in both Houses. All these SIs are specifically correcting deficiencies which will exist after the withdrawal Act to ensure we have the correct regulatory frameworks. They are not changing; any changes to the minimum requirements would be done if and only if there is a change to international treaties. Some of these SIs do have executive functions which are being carried across; that is why we are giving the reassurance that any time an executive function is used, it will be in the affirmative way.

I will say more about the minimum insurance cover as several noble Lords have mentioned it. Article 6.1 gives member states the power to set a level of minimum insurance cover in respect of the liabilities for passengers, baggage and cargo, and that is lower than 250,000 special drawing rights per passenger for non-commercial aircraft with a maximum take-off mass of 2,700 kilograms or less. In answer to the question asked by the noble Baroness, non-commercial just means that no money has changed hands for the flight. That applies primarily to light and experimental aircraft, and cover must be at least 100,000 SDRs per passenger. The UK has exercised that power, as have other member states, and set the lower minimum of 100,000 SDRs within the Civil Aviation (Insurance) Regulations. This SI does not give us an option to set it lower—not that we would want to—it just carries across the minimum level. I hope I have assured noble Lords that this is not an attempt to change that in any way. We have no intention of doing so.

In answer to questions on airspace, this is not dealt with in the same way as an air services agreement; it is an International Air Services Transit Agreement which accompanies the Chicago Convention. Almost all EU member states are separate signatories to an IASTA, meaning they allow overflights and will continue to do so whether or not we are a member of the EU. On the devolved Administrations, obviously aviation is primarily a reserved matter and civil aviation insurance is fully reserved in respect of all three devolved Administrations, but of course we are continuing to engage with them on all aviation matters.

There were a couple of questions from the noble Lord, Lord Rosser. I think the last exceptional failure of the insurance market was in response to 9/11. We are working closely with passenger representatives throughout the development of our position on EU exit and aviation in preparing these SIs.

[Lord Rosser]

If the Government are having discussions with passenger representatives, why did it not say so in the consultation outcome paragraph?

[Baroness Sugg]

I apologise that it did not. I will be looking at what we say in the consultation paragraphs in future to ensure that there is proper information to give assurance to noble Lords. I personally, my officials and indeed the Secretary of State regularly meet with industry and passenger interest groups to ensure that we are getting this right as we leave the European Union.

As I say, I hope I have answered the majority of questions. I apologise if I have missed any but there were quite a few, so I will follow up in writing. As I have said, we remain confident that we will reach an agreement with the EU, but of course it is important that we prepare our legislative framework in case we leave the EU with no deal. That is what this SI is doing. The regulations do not make any changes to the substance of the insurance requirements that air carriers and aircraft operators are expected to meet, but they are essential to ensuring that the retained EU legislation which sets out these requirements continues to work effectively in the UK immediately after exit day. That is what these SIs are designed to do. We need to ensure that we have the right regulatory and legislative framework to provide passengers and industry with choice, connectivity and value for money irrespective of the outcome of the negotiations. I beg to move.

Motion agreed.

Merchant Shipping (Monitoring, Reporting and Verification of Carbon Dioxide Emissions) (Amendment) (EU Exit) Regulations 2018

Wednesday 24th October 2018 Grand Committee

Considered in Grand Committee

17:12

Moved by

[Baroness Sugg]

That the Grand Committee do consider the Merchant Shipping (Monitoring, Reporting and Verification of Carbon Dioxide Emissions) (Amendment) (EU Exit) Regulations 2018.

[The Parliamentary Under-Secretary of State, Department for Transport (Baroness Sugg) (Con)]

My Lords, the draft regulations that we are considering will be made under powers in the European Union (Withdrawal) Act, and are needed if the UK leaves the EU in March without a deal. The regulations will amend EU regulation 2015/757 on the monitoring, reporting and verification of carbon dioxide emissions from maritime transport. The effective monitoring and reporting of carbon dioxide is an important step towards achieving a more environmentally sustainable shipping sector. The emissions data gathered will help the international community to develop more effective measures to reduce greenhouse gas emissions from ships.

The EU regulation established rules for monitoring, reporting and verifying CO₂ emissions from ships above 5,000 tonnes that make voyages starting or finishing in a port in an EU member state. Shipping companies have already prepared monitoring plans and have been collecting data since 1 January this year. Ships within scope are required to carry a valid document of compliance from 30 June 2019. The EU regulation applies only to ships visiting ports that are under the jurisdiction of an EU member state. Currently, it would therefore cease to have effect when the UK leaves the EU.

The changes made in the regulations are therefore necessary to ensure that the monitoring, reporting and verification requirements of the EU regulation continue to apply to ships serving UK ports. If we failed to correct the EU regulation, ships calling at EU ports would still need to report under the EU system but those trading between the UK and non-EU ports would not need to report. Not only would this create an uneven playing field between companies but the evidence on greenhouse gas emissions would be weakened.

The UK is a strong supporter of global action to tackle climate change. In April this year we helped lead a high-ambition coalition to secure agreement at the International Maritime Organization on an initial strategy on greenhouse gas emissions. That included an historic first emissions reduction target for ships of at least 50% by 2050, which is an important step forward in tackling emissions from international shipping, one of the last major sectors not to have an emissions reduction plan.

17:15

The IMO has also produced its own system for monitoring CO₂ emissions from ships. Its data collection system has a similar objective to that of the EU monitoring, reporting and verification regime, but it will be effective from 1 January 2019, a year later than the European system. The UK is allowing ship owners to develop data collection systems that cover both the MRV system and the IMO’s data collection system so that they have a unified system on board. The EU regulation aims to provide robust information on emissions from ships. If it did not continue to have effect, we would be weakening the evidence base on which the development of effective and proportionate measures depends.

The amendment to the regulations replaces references to an EEA state with references to the United Kingdom to ensure that legislative requirements continue to apply within the UK when it is no longer a member state. It amends the certificate of compliance to include a reference to a certificate of compliance issued by an EU member state, and repeals the provision about the expulsion order. It amends Commission Implementing Regulation (EU) 2016/1927, which provides ship owners with the templates needed for their monitoring plans and emissions reports, and the templates for the documents of compliance that are used by the verifier.

As well as amending the main EU regulation, this instrument makes a number of other changes, mainly technical and operational in nature, to ensure that the system continues to work. These changes are to Commission Implementing Regulation (EU) 2016/1927 on templates for monitoring plans, emissions reports and documents of compliance, and the Merchant Shipping (Monitoring, Reporting and Verification of Carbon Dioxide Emissions) and the Port State Control (Amendment) Regulations 2017. The latter regulations provide an enforcement mechanism for the EU regulation in the United Kingdom. In addition to ensuring that the same regulatory requirements continue to apply to UK-registered ships, the amendments ensure that UK regulators are able to enforce these standards against foreign vessels in UK waters, including EU vessels.

These regulations are intended to ensure that all ships visiting UK ports are subject to the same reporting requirements and that the UK continues to play its part in international action on greenhouse gas emissions from shipping. I commend them to the Committee.

[Lord Berkeley (Lab)]

My Lords, I am grateful to the Minister for introducing these draft regulations. Before I get into the substance, I would be interested to know how much monitoring has happened in the UK up to now, both in the ports and on the seas between the ports. As the Minister implied, and taking the Dover Strait as an example, ships going in a south-westerly direction may be going from a continental port to somewhere else in the world but they are still in UK waters for a time. It would be interesting to know what monitoring has taken place inside and outside the ports.

I declare an interest: until last year I was a trustee of Plymouth Marine Laboratory, which developed a very interesting means of checking the emissions from ships from up to five miles away; it was mainly CO₂ but other emissions as well. It tested it off Rame Head in Plymouth. I think it found that the few naval ships that were running on this kind of fuel were the worst offenders but I am sure that has changed. It does not really matter; the point is that it could do it. The idea would be to put this equipment in the middle of the Dover Strait, for example, where you could check ships going both ways. I do not know where that has got to, but it is important that monitoring is carried out not just in the ports but out at sea where the emissions can still be quite dangerous.

Can the Minister explain what the difference will be when we have left the EU? If a ship in the Dover Strait has set off from Rotterdam and is due to end up in China, how will we monitor the emissions, let alone enforce any limits? What are we going to do about that? It is all very well having these regulations. I believe that there is another regulation which requires cleaner fuel to be burnt when you are travelling in the English Channel, which I think is to the east of Lizard or Scilly and up to the North Sea. I think that that is going to change in a few years’ time in order to cover the whole of the UK. Has that position changed as a result of our potentially leaving the EU? How will the monitoring be done?

It is good that the Minister has brought forward these regulations, but my doubts are around whether there will be any monitoring at all, whether there is any monitoring, and what action will be taken if a ship is found to be exceeding the limits. I look forward to hearing her comments.

[Baroness McIntosh of Pickering (Con)]

My Lords, I will follow the noble Lord in the same vein by asking a simple question. I remind the Committee of my historic interest as the Conservative spokesman in the European Parliament on transport issues. Can my noble friend the Minister explain the current enforcement mechanism if either a UK-registered ship or an EU-registered ship breaches the carbon dioxide emissions limit? How does she imagine that that enforcement mechanism will change in the future? Presumably the whole point of having carbon dioxide emissions limits is to ensure that, along with every other form of transport, maritime shipping abides by air quality standards. Will we be able to enforce this unilaterally going forward?

I turn to something that is very topical. Is there currently any jurisdiction for the European Court of Justice over a breach of these emissions standards?

[Lord Teverson (LD)]

My Lords, I should declare that I am a board member of the Marine Management Organisation. I do not think that it conflicts with what we are considering here, but I mention it for the avoidance of doubt. I would like to respond to the noble Baroness, Lady McIntosh, by saying that in her role as leading the group in the European Parliament when the Conservatives were part of the EPP, which is exactly where they should still be, she was a fantastic advocate for her position. I was in a different group that sometimes became involved in things like trans-European networks, and I noted that she was very successful in what she tried to do. She presented a difficult opposition.

I want to come back to a few points about carbon budgets, which is what this comes down to. In her remarks the Minister alternated between talking about carbon emissions and greenhouse gas emissions. There is a very important difference between those two phrases. I would be interested in understanding whether these regulations are in fact concerned with greenhouse gases or carbon dioxide emissions. I know that they refer to carbon dioxide, but most of the monitoring that is done is for greenhouse gases. Although emissions of methane are lower, it is a much more potent greenhouse gas. The difference is important and I presume that it is particularly relevant to the shipping industry, given its emissions.

I congratulate the Minister on reminding us that international shipping is the one area where we still have not solved this issue internationally. In aviation we have this rather dodgy—if I am honest—offset system. We will see how it works, but I suspect that the Amazon rainforest will not grow at the rate that aircraft emissions will. Given that sympathy, I am interested to understand whether, given the fact that we have international paralysis, and with the Government perhaps frustrated by the fact that that sector is not represented within European or British carbon budgets, the UK, as the Climate Change Committee has often advocated, will take on its leadership role in this area again and start to reconsider whether the sector should be. I am not expecting a policy decision today in the Moses Room, but I will be interested to know if the Government will start to look at that issue.

When it comes to individual matters of these particular regulations, I shall quote from the Explanatory Memorandum as the legislation refers to European regulations all the way through and it is very difficult to read, as I am sure the Minister understands:

“The amendments … remove what will become redundant requirements on the UK to make certain reports to the Commission”.


I wanted to clarify whether those requirements, whatever they are, or those reports will actually now be made within the UK anyway.

I am in particularly interested in documents of compliance. I do not know much about this topic although I am sure the noble Lord, Lord Berkeley, is clued up on them. I presume that they will be issued by the Marine and Coastguard Agency. I am interested to understand whether these are existing EU systems. If they are, are we having to replace the IT systems? Are they ready? How many of these things do we issue at the moment and how many are we going to have to issue after March 2019, or after the transition period if we manage to come to an agreement? As we all know, IT systems and the increase in documentation and red tape are one of the biggest challenges in making Brexit work.

I have to ask about this ability to expel ships from a port, which we are getting rid of because we already have the ability to get rid of ships for safety and environmental reasons. I am interested to understand, in terms of EU legislation, what other scenarios the Government were thinking of in that legislation other than safety and the environment, in order to understand what rights we are forgoing.

[Lord Rosser (Lab)]

My Lords, these regulations have already been through the Commons, as obviously the Minister knows better than I do. We indicated our support for them when they were considered there last week, and I hope she will not be too surprised when I say that that is still our position today. In the Commons, in response to points that we raised about the impact of these regulations on compliance with the IMO strategy and targets for carbon reductions from shipping by 2050, the Government said they would provide assurances in writing. I am afraid I genuinely do not know yet whether those assurances—I see the Minister is waving the letter, so if one is not already on its way to me, I would be extremely grateful to receive a copy.

I turn to Part 2 of the annex to the Explanatory Memorandum, headed:

“Statements required when using enabling powers under the European Union (Withdrawal) 2018 Act”,


which refers to the undertaking that has been given by the Parliamentary Under-Secretary of State that:

“In my view the draft Merchant Shipping (Monitoring, Reporting and Verification of Carbon Dioxide Emissions from Ships) (Amendment) (EU Exit) Regulations 2018 does no more than is appropriate”.


The Explanatory Memorandum to the previous SI that we were considering went on to say that the changes,

“do no more than is strictly necessary”.

This one does not contain those words. It says:

“This is the case because the amendments being made do no more than ensure the continuing effectiveness of the existing regulatory regime”.

17:30

Although I think I know the answer to the question I am asking, I would nevertheless be grateful if the Minister could say why there is no reference to “strictly necessary”. This raises the difference in definition between “appropriate” and “necessary”. Of course, “appropriate” could mean whatever the Government think is appropriate, whereas “necessary” is a rather tighter definition. I think I know what the Minister will say in response to that point, and I would be grateful to hear it direct from her, rather than assume that I have got it right.

The noble Lord, Lord Teverson, raised the fact that the amendments,

“remove what will become redundant requirements on the UK to make certain reports to the Commission”.

I think the noble Lord said, in effect, that the reports are going to be made elsewhere. I reiterate the question he asked about that: are the reports going to be made to Parliament, for example, that were previously made to the Commission? I also note that paragraph 7.4 of the Explanatory Memorandum says that the amendments,

“insert, omit or amend definitions to ensure compatibility or consistency with other legislation”.

Is that a reference to UK domestic legislation, to other EU legislation, or to both?

Paragraph 7.5 of the Explanatory Memorandum says:

“While the amended legislation is intended to preserve the exiting regulatory framework it will not do so in its entirety”.

I suspect that that is going to be the nature of the Minister’s response about the non-use of the word “necessary”. However, it goes on to say:

“Ships visiting ports in the United Kingdom will be required to carry a Document of Compliance which will in future be issued under the United Kingdom regulatory framework”.

Will the Minister say a bit more about precisely what that will involve, since it appears to me—I may be wrong—that these regulations are bringing in something new and different. It goes on to say that,

“legislation will not require ships to monitor and report on voyages which do not start or end at a port in the United Kingdom”,

and to make reference to a broadly similar regime being introduced, I think by the IMO, through an amendment to the International Convention for the Prevention of Pollution from Ships. It refers to it being covered subsequently, or implemented into domestic law, under a separate statutory instrument. When is that going to happen? Is this an IMO amendment that is some way away, or is it, to use a maritime term, something that is on the horizon?

Another point raised by, I think, the noble Lord, Lord Teverson, was the power to issue expulsion orders. I will be very interested in the response he gets, but I will come at it from a different angle. Although it says quite clearly in the Explanatory Memorandum that it is not our policy to ban or expel ships from a port unless there is immediate risk to safety or the environment, why, nevertheless, do we not keep this discretionary power in, since there may be an occasion in the future when we would wish to use it? I do not see the point in taking out a discretionary power when circumstances could change: we do not know what is going to happen in the future.

Paragraph 11 of the Explanatory Memorandum says:

“The Maritime and Coastguard Agency will issue guidance to industry on the revised reporting regime which will apply after the UK withdraws from the European Union”.

Will the Minister say a bit more about this revised reporting regime? What form will it take? I notice that over the page, under “Impact”, it says:

“There is no, or no significant, impact on business, charities or voluntary bodies”.

Let us take the reference to business. If we do not yet know what this revised reporting regime is going to be, how can we assert so confidently that there is no significant impact?

[Baroness Sugg]

My Lords, I thank noble Lords for their consideration of these draft regulations. Again, I will endeavour to answer as many questions as I can; those that I cannot, I will follow up in detail in writing. Shipping, like other modes of transport, has a responsibility to control emissions. That is what we are doing with this SI, which replicates the current EU regulations.

My noble friend Lady McIntosh and the noble Lord, Lord Berkeley, asked about monitoring and enforcement. I will go through the main requirements of the current regime. By August 2017 ship owners had to send the monitoring plan for their vessels to an approved verifier. That plan includes information such as the fuel consumption of the ship and how it will be monitored. It will be done in many different ways. The noble Lord described an interesting way of monitoring, which I had not come across. It will be up to the owners of vessels to explain how they are doing the monitoring and to get that approved. From January this year, ships have had to collect CO₂ data on their voyages for the calendar year. That data is collected and recorded separately for each voyage. By 30 April 2019 ship owners must submit their accumulated yearly data to the verifier. By 30 June each year after the reporting period, the document of compliance for the ship will be issued by the verifier and will be valid for 18 months from the reporting period.

[Lord Berkeley]

I am grateful to the Minister for her explanation. Can she explain who they submit these documents to?

[Baroness Sugg]

Yes, absolutely. They are issued by the independent verifiers and then checked by the MCA. On compliance and enforcement, the existing regulations bring in fines if people fail to comply. That also allows for the detention of non-compliant ships that come into UK ports. Inspectors from the Maritime and Coastguard Agency will ensure that ships have the correct documentation and will do the enforcement on UK-flagged ships. Other ships using UK ports will also be liable for inspection as part of the port state control regime. Non-compliant ships can be detained and their owners prosecuted via the courts and fined. The enforcement will stay the same, it will just be done under the UK regulation rather than the EU regulation.

I hope I have answered the point made by the noble Lord, Lord Teverson. Rather than it being about greenhouse gas emissions or carbon, it is about the fuel consumption and reducing that over time.

[Lord Teverson]

I am trying to understand whether this is about just carbon dioxide monitoring or greenhouse gas monitoring because if it is just carbon, it is not compatible with UK carbon budgets, which include national shipping. There is a big difference. It seems a fairly straightforward question to me—yes or no? The Minister is welcome to write to say yes or no.

[Baroness Sugg]

I probably will have to write to the noble Lord with details on that. The current monitoring system is about fuel consumption by vessels. When collated, that information will help inform future policy on the reduction of emissions, which will obviously cover greenhouses gases and carbon. I will take up the noble Lord’s offer of writing to him in detail on that.

The noble Lord also asked about the documents of compliance. We want to ensure that the MRV system works as smoothly as possible after we leave the EU so we have taken the decision to recognise all EU MRV certificates issued by other member states as being equivalent to our own. We have the capacity to issue our own but we have already stated that we will recognise those from member states and we hope, of course, that the EU will mutually recognise ours.

We will also ensure that there is no duplication of reporting for ships travelling between the UK and EU states. If a ship notifies us that it has submitted all its verified voyage data to the EU we will not require it to provide us with a duplicate report. We are trying to minimise the burden on businesses as we leave the EU.

[Lord Teverson]

I thank the Minister and I will not intervene again. I welcome the fact that we will recognise EU documentation. That is an excellent decision that will reduce bureaucracy. Do we need to invent a new IT system ourselves and have we managed to do that? I suppose that that is the key point here.

[Baroness Sugg]

No. We already have the ability to issue these certificates so a new system is not needed.

Reference was made by the noble Lords, Lord Teverson and Lord Rosser, to expulsion orders. It is not the Government’s policy to ban or exile ships from a port unless there is an immediate risk to safety, as both noble Lords said. Neither of those conditions would apply to the requirements under this regime. It is a reciprocal requirement that will no longer be relevant when we are not a member state. There will be a practical problem in that when we exit the EU, there is no requirement under the European regulations to notify non-EEA states that a vessel has been banned from an EU port. There is actually no mechanism if we leave without a deal either for us to tell the EU or vice versa. That is why it has not been replicated. However, there is no reason why we cannot share data in the future. As we made clear in the White Paper, it is in our interests and those of the EU that we should continue to co-operate through the EMSA. However, that will be subject to negotiations.

The question of reporting was raised in the other place and I will certainly forward the letter from my honourable friend Nusrat Ghani on this to the noble Lord, Lord Rosser, and others. On the assessments of the impact of the maritime sector on carbon dioxide, we have not retained the paragraph on that in the draft regulations because that obligation applies specifically to the European Commission rather than to member states or to the UK in particular. It is necessary for the effective functioning of the MRV system, so the Secretary of State has taken over responsibility for what was previously held by the Commission. There will be an obligation on the Secretary of State to publish the results of the CO₂ data which we will receive annually from ships in much the same way as the Commission will be doing with the other 27 member states. We will just be taking on the responsibility to publish the data, which obviously will be made available to all those who are interested in it.

Under our domestic legislation, the Secretary of State would not be required to conduct a similar biennial review of the impact on the global climate. The fact that it is not in retained EU legislation of course does not preclude us from undertaking such a review and we are keen to maintain our position of leading the way in this area. I have already spoken about our leading role in the agreement with the IMO in April.

The noble Lord, Lord Rosser, mentioned the IMO system which will take effect on international voyages from 1 January 2019. The systems are very similar in that they both apply to vessels of 5,000 gross tonnes and over, but there are a few differences. The European regime which we are carrying over applies only to voyages undertaken to carry passengers and cargo for commercial purposes rather than other maritime activities such as dredging. It requires more information such as on the cargo being carried by the vessel and more transparency in terms of disclosing data. It also includes a more robust verification process. Ideally, we want to see the IMO and EU systems become aligned while maintaining the environmental integrity of the overall scheme. That is something that we will continue to work on with our international partners in order to achieve it going forward. However, as I said in my opening remarks, at the moment we are allowing the systems on UK-flagged vessels to collect the data so that they are able to report to both systems easily enough.

I hope that I have covered the points which were raised, but if I have not gone into them all in detail, I will certainly write to noble Lords. I hope that noble Lords will agree that the objective of the regulations, which is to maintain an effective regime to monitor emissions from ships, is the right thing to do.

Motion agreed.

European Union (Withdrawal) Act 2018 (Consequential Amendments) Regulations 2018

Wednesday 24th October 2018 Grand Committee

Considered in Grand Committee

17:45

Moved by

[Lord Callanan]

That the Grand Committee do consider the European Union (Withdrawal) Act 2018 (Consequential Amendments) Regulations 2018.

[The Minister of State, Department for Exiting the European Union (Lord Callanan) (Con)]

My Lords, I am grateful for the opportunity to be here today to discuss the regulations before the Committee, which form one small part of the Government’s wider programme of secondary legislation that is being brought forward before exit day to ensure that the UK’s legal system continues to function effectively once we leave the EU.

So far my department, the Department for Exiting the European Union, has laid three statutory instruments using the consequential powers granted to us under the European Union (Withdrawal) Act 2018. This is the first of those SIs to be debated under the affirmative procedure. These three statutory instruments made using the consequential powers are of an essentially technical nature, as will become apparent. To be fair, during the passage of the European Union (Withdrawal) Act, some concern was raised in this place and the other place about the scope of those powers. The Government were clear at the time that these consequential powers would be used for changes of a small and technical nature. I hope noble Lords will see that this statutory instrument is indeed extremely technical, with the purpose of ensuring a functioning statute book upon exit from the EU.

Specifically, these draft regulations make technical consequential repeals and amendments to certain pieces of legislation using the consequential power in Section 23(1) of the European Union (Withdrawal) Act, for two main purposes. First, they repeal legislation that has become redundant in consequence of the repeal of Sections 1 to 13 of the European Union Act 2011 and Section 5 of the European Union (Amendment) Act 2008—I hope noble Lords are following this—which provided mechanisms for the approval or ratification of certain EU decisions or treaty changes that would result in the transfer of power from the UK Government to the EU.

Sections 1 to 13 of the 2011 Act and Section 5 of the 2008 Act were repealed on 4 July this year, following the acceptance by this House and the other place that these were redundant in the context of our exit from the EU. This matter was pursued particularly by the noble Lord, Lord Adonis, during the passage of the Act, and the Government set out on Report that the repeal of this legislation would be effected shortly after Royal Assent, and indeed that is what we did.

In consequence of those repeals, legislation that approved matters in accordance with those Acts has become redundant. That includes Sections 1 and 2 of the European Union (Croatian Accession and Irish Protocol) Act 2013, which approved the accession of the Republic of Croatia to the EU and the protocol on the concerns of the Irish people on the Treaty of Lisbon. It also includes the European Union (Approvals) Act 2017, which approved decisions that allowed Albania and Serbia to participate as observers in the work of the European Union Agency for Fundamental Rights, and an agreement between the EU and the Government of Canada regarding the application of their competition laws.

Also now redundant is Section 23(1) of the Constitutional Reform and Governance Act 2010, which created an exemption from the normal procedures on scrutiny of treaties under that Act where a treaty was approved following the procedures in the 2008 or 2011 Acts instead.

17:49

Sitting suspended for a Division in the House.

17:58

[Lord Callanan]

This legislation is being repealed in consequence of the repeal of the 2008 and 2011 Acts, which has rendered them redundant and no longer necessary. Removing this legislation from our statute book is consistent with our goals of ensuring an effective, functioning statute book on exit day by providing clarity and avoiding confusion by making reference to legislation that no longer exists within our statute book. For reassurance, I make it clear that the repeal of the legislation that approved matters in accordance with the 2008 and 2011 Acts does not have any effect on the validity of anything done in relation to those decisions or treaty changes approved by them.

Secondly, these regulations also make consequential amendments to the Statutory Instruments Act 1946, the Laying of Documents before Parliament (Interpretation) Act 1948, and the Statutory Rules (Northern Ireland) Order 1979, to reflect the introduction of a new category of law, called “retained direct EU law”, into the UK’s legal system. Retained direct EU law is the directly applicable EU law that existed immediately before exit day that will be converted into UK law on exit day by the European Union (Withdrawal) Act.

The Statutory Instruments Act established a number of rules that apply when making SIs, and similarly, the Statutory Rules (Northern Ireland) Order applies when making statutory rules—the Northern Irish equivalent—under powers in primary legislation. To provide certainty, it is important that we ensure that these same rules apply to instruments made under powers in retained direct EU legislation so that it is clear what procedures must be followed to ensure that instruments made under powers in retained direct EU legislation are properly made.

These regulations therefore make consequential amendments to the Statutory Instruments Act 1946 and the Statutory Rules (Northern Ireland) Order 1979 to make it clear that the normal rules apply to making statutory instruments and statutory rules under powers in retained direct EU law. This will create certainty about the proper procedures to be followed where such powers are used in the future and will assist Parliament in considering the use of such powers.

Similar provision has already been made to deal with Scottish statutory instruments made under retained direct EU legislation through the amendments to the Interpretation and Legislative Reform (Scotland) Act in Schedule 8 to the European Union (Withdrawal) Act. Therefore, these regulations take an approach consistent for the purposes of England, Wales and Northern Ireland with that taken for Scotland by the Act itself.

The Laying of Documents before Parliament (Interpretation) Act established the rules for laying documents before Parliament where an Act or piece of secondary legislation required that documents be laid before Parliament. Similarly, therefore, the consequential amendments made to the Laying of Documents before Parliament (Interpretation) Act will ensure that the same rules on laying documents before Parliament apply where retained direct EU legislation requires those documents to be laid before Parliament.

Given that these regulations amend primary legislation that is of constitutional importance, we thought it would be appropriate to allow Parliament the opportunity to debate these regulations through the use of an affirmative instrument. However, I hope that after my explanation noble Lords will agree that this is a sensible use of the consequential power, and that what we are seeking is appropriate to ensure continuity as a new category of law is introduced into our legal system on exit.

[Baroness Ludford (LD)]

I thank the Minister for his explanation, which, in so far as is possible on the subject, was admirably straightforward. He is quite right, as he said at the beginning, that there was—and will continue to be—a lot of controversy over the ministerial powers in the European Union (Withdrawal) Act. This one is perhaps not yet of mountainous dimensions in terms of controversy, but I have some questions.

First, no doubt simply because of my unfamiliarity with the field of secondary legislation, can the Minister remind me whether there are any limits on the ability of SIs to amend primary legislation under the Act? I have entirely forgotten—perhaps mercifully—a lot of the debates on the Bill. The regulations amend primary legislation. I would welcome a reminder of whether there are any limits on that.

My second question is about the European Union (Croatian Accession and Irish Protocol) Act 2013. I appreciate that the implementation of those measures—the accession of Croatia and the Irish protocol to the Lisbon treaty—is not affected by these regulations, but what will happen to their implementation when and if the ECA is repealed? How will they continue to be implemented? They have been implemented through the European Communities Act by making them EU treaties for the purposes of that Act. Paragraph 2.7 of the Explanatory Memorandum rightly states that their,

“implementation is unaffected by these regulations”,

but that prompted me to wonder what happens when and if the ECA is repealed. I would be grateful to learn how they carry on being in force, or will that matter be dealt with during the standstill transition by repealing a lot of the European Union (Withdrawal) Act in the EU withdrawal agreement Bill? I hope that I do not stray too far, but this subject is quite complicated.

Similar issues arise in relation to the decisions mentioned in paragraph 2.11. I remember spending time during the passage of the European Union (Approvals) Act 2017 speaking about Albania and Serbia being observers in the work of the fundamental rights agency—I cannot remember whether I referred also to the Canada competition laws; it was in the same Act, so I must have done. These approvals are no longer necessary if Sections 1 to 13 of the European Union Act 2011 are being abolished, so the 2017 Act becomes redundant. The Explanatory Memorandum states:

“The repeal of the Act approving those decisions has no effect on the validity of those decisions or anything done in relation to those decisions”.


So if we repeal the European Union (Approvals) Act 2017, paragraph 2.11 of the memorandum states that such repeal,

“has no effect on the validity of those decisions”,

which is interesting. How are they still valid? The Government are repealing the Act which approved the decisions about Albania and Serbia being observers in the fundamental rights agency, et cetera, but they state that it has no effect on the validity of the decisions. On what basis, then, do those decisions approving Albania and Serbia continue to be valid?

That takes me back to my previous point. That statement implies that we want those decisions to continue to be valid. If we want to continue the validity of the Serbian and Albanian observership in the fundamental rights agency, I presume that we want to continue the validity of the recognition of Croatian accession and the Irish protocol. I am wondering whether my question about how they get knocked out by the repeal of the ECA is correct, because presumably they are on a similar level. If the Albania and Serbia observerships are to remain valid—which they would be in a standstill transition anyway—presumably that also applies to the Croatian accession, et cetera. So how do they continue being valid, and if they do, will they still be valid after 29 March? I apologise if I am just being dense.

Then there is the question about the Statutory Instruments Act 1946 applying. Obviously, that is welcome. It is interesting that it is being done now. Perhaps the Minister could remind me why the Government did not agree to incorporate this in the EU withdrawal Act. Our attention is drawn to the 12th report of the Delegated Powers and Regulatory Reform Committee, published last February. One of the things it objected to was tertiary legislation—the ability for Ministers or other bodies to make further subordinate legislation without there having to be any parliamentary procedure or any requirement for it to be made by statutory instrument. The committee wanted all tertiary legislation to be subject to the same parliamentary control and time limits as are applicable to secondary legislation. If I understand this correctly, it talks about the Statutory Instruments Act 1946 applying to SIs. Does it apply? The DPRRC report also referred to tertiary legislation which is not made in statutory instruments. Is this extension of the 1946 Act limited to what is made under statutory instruments or does it meet the entire objection in the DPRRC report of last February? I hope the question is clear, because I am confused about why the Government are doing this now and did not do it in the Bill.

I am also trying to understand the scope of this welcome reform—whether further transparency and normal rules of scrutiny should apply. The answer would appear to be only where that secondary legislation is in statutory instruments, and not if it was made by some new agency, for instance. In paragraph 2.12, the Explanatory Memorandum talks about the ability to subdelegate regulations made under certain withdrawal Act powers—tertiary legislation made by an agency, for instance. It says that,

“it is important that the Statutory Instruments Act 1946 is amended to cover these scenarios”,

so you would think that meant all tertiary legislation, but then it goes on to say,

“so that there is certainty about the proper procedure for making SIs under such powers”.

I am dependent on the report from last February to understand that not all tertiary legislation is made in SIs. I suppose it makes sense, but I am a novice in secondary legislation. What is the extent of the concession—the welcome reform—that the Government are proposing for the extension of the Statutory Instruments Act 1946? Does it apply to all tertiary legislation, including that not made under SIs or by Ministers but by other bodies?

I think that covers all my questions. I hope that I have not been too confusing and that the Minister is able to answer my questions.

18:15

[Baroness Hayter of Kentish Town (Lab)]

My Lords, I thank the Minister for introducing the first of what I hope is going to be a very small and select group of DExEU orders. Indeed, luckily for myself, for the noble Baroness, Lady Ludford, and for the Minister, I think the vast majority of these Brexit orders will be handled by other departments. However, I do wonder how on earth our colleagues covering those departments will cope, given the near 800 they will have to handle between now and March. They have not exactly got off to a great start: since the Act received Royal Assent on 26 June this year, a mere 71 have been laid, and only two have completed their passage through Parliament.

The delay is slightly hard to understand if the bulk are indeed to make relatively simple, perhaps technical amendments. Why then have we only seen such a tiny proportion of them so far? I assume that the pace will quicken in the coming months, but the tardiness to date means that while 45% of the time between Royal Assent and the supposed exit day has passed, only 9% of the likely total number of orders have so far been laid. Can the Minister therefore confirm that proper time will be allocated to those of our colleagues who will have to handle this to do the necessary scrutiny, that full consultation will take place with all outside stakeholders—this was something we discussed a lot during the passage of the Bill—and that feedback from those stakeholders will be available to our colleagues as they go through the various statutory instruments?

The sheer number of orders exposes the sheer scale of the legislative challenge facing Parliament. It also puts into perspective the Prime Minister’s claim that Brexit is 95% complete. As far as our work is concerned, that is clearly not the case. I have a slight problem with the 95% figure anyway. I am reminded of the man falling from the 10th floor of a building. After going past the first nine floors, he said, “So far, so good”. I hope that we are not facing the same crash that he did after the 10th floor. Aside from this particular order, I know that work is now gathering pace in the Secondary Legislation Scrutiny Committee: I can say only good luck to the committee.

Turning to the order in front of us, while it may be what the Minister calls “technical in nature”—which I think means “hard to understand”—it gives effect to decisions taken by both Houses during the passage of the withdrawal Act. As has just been mentioned, during debates on that Act, there was quite a bit of confusion over the new category of “retained direct EU legislation”. The provisions in Schedule 2, which respond to our Delegated Powers Committee, will, we hope, provide some certainty about the exercise of the relevant powers, particularly for our learned friends: I trust that they are clearer now about the significance of how those powers will be used. We certainly welcome the confirmation that the withdrawal Act powers to make secondary legislation will be exercised under the normal rules for SIs, with which we are familiar.

I want to raise one other point, absolutely unrelated to this one but within the broad remit of Brexit. Yesterday we read that Sir Bernard Jenkin said:

“While some SIs may need to be rushed through with less consideration, they can always be amended later”.


First, we simply must not rush these through. I am sure that is not the intention of the Government. On our Benches and those of the noble Baroness, Lady Ludford, it is not something we would want to happen. Secondly, and perhaps more substantially, given how important some of the SIs will be to maintaining standards on environmental, consumer and workers’ protection, and that they will include some quite important decisions about the supervision and enforcement of those standards, that comment from Sir Bernard Jenkin—I recognise that he is not a Minister—seems to fly in the face of the government assurances we received many times during the passage of the Bill that any such change to any of these standards or anything else would be by primary and not secondary legislation. We were very clear, I think, that secondary powers were going to be used for a lift and shift so the existing rules could be brought across but not for changes. Perhaps the Minister could confirm what I know he has said before—but now that we are into the SIs it is important for him to say it again—that from the point of view of the Government there is absolutely no intention to allow any backdoor changes to legislation in the way suggested by his honourable friend in the other place.

Of course, the order is based on the assumption that we will have a deal. Given the wishes of some of the Minister’s close friends that we should not have a deal and the inability of the Government so far to strike a deal, the risk of no deal looks alarmingly likely. All of us in this Room, because we are a bit sad, have read all the technical notices about what would happen in the event of no deal, but it is not clear what the task facing this House would be in those circumstances in relation to statutory instruments that would need to be got through very quickly. If the Minister has any information on that, perhaps he could share it with the Committee.

As your Lordships will have gathered, the order itself presents us with no problems. I hope that that will be the case for all the others that will come our way.

[Lord Callanan]

I thank the noble Baronesses for their comments and questions. I will try to deal with as many as possible and then write to them on any that I have not answered.

The noble Baroness, Lady Ludford, asked: are there limits to the ability of SIs to amend primary legislation? The noble Baroness, Lady Hayter, touched on this point as well. The consequential power is a standard power to make consequential amendments as appropriate—that famous word again, about which there was much debate during the passage of the legislation. These amendments may repeal or revoke but of course the use of that power will be strictly constrained. Provisions in the European Union (Withdrawal) Act speak about the scope of that power.

The noble Baroness’s second question concerned protocols to do with Croatia and Ireland. The answer is that even though the power to make the regulations is going, the regulations that were made under that power will carry on as appropriate. She also asked about the 1946 Act and why the SI applies only to powers conferred on Ministers and not to powers conferred on regulators. The SI makes consequential amendments to the Statutory Instruments Act 1946. The Act applies only to SIs made by Ministers, government departments, Welsh Ministers or the Privy Council. It is less common for legislative powers to be delegated to other individuals or bodies such as regulators, and where legislation confers on a regulator the power to make legislation it also makes special provisions as to how the power is to be exercised and scrutinised. In this case, the SI does not address those particular powers.

On the question of the consequential amendments made in the withdrawal Act for Scotland but not for England, Wales or Northern Ireland, the Act addresses a wide range of issues and impacts on the application of a large number of existing pieces of legislation. As far as possible at the time, those were addressed in the Act. However, it was also recognised that it would be impossible for the Act to identify and address every single amendment that was needed to existing legislation, and that is why at the time the Act conferred on Ministers the limited power to make regulations containing those amendments that are appropriate as a consequence of that Act.

The noble Baroness asked me what happens to the implementation of the Croatian and Irish protocols when the ECA is repealed. The protocol/treaty will still apply until exit day and in a no-deal scenario since those protocols/treaties presuppose EU membership and the protocol will become retained EU law unless repealed, which goes back to the point that I made earlier. So even though the power to make those regulations is being repealed, the regulations and Acts that were originally made under them still apply.

I turn to the comments from the noble Baroness, Lady Hayter. I totally accept her point about the considerable number of SIs that are required. I shall give her some numbers if that is helpful. As the drafting, legislation and negotiations have progressed, departments have had a clearer picture of what legislative requirements are needed by exit day. This has meant that we currently anticipate that the number of SIs might actually be fewer than the figure of 800 to 1,000 that was quoted and that I used many times during the passage of the Act. However, the exact number of SIs needed will depend on a number of factors and the total number is fluctuating; some are able to be combined into one while others will require a number of different individual SIs. Departments began laying Brexit SIs straight after Royal Assent and over 70 have already been laid. Our aim continues to be to be prepared for all scenarios. Again, without harming the negotiations, some SIs would be applicable in both deal and no-deal scenarios, some are applicable only to a deal and some are applicable only in a no-deal scenario.

We expect that the number of SIs being laid will significantly increase from this month onwards, and we are working closely with departments to try to ensure a manageable flow throughout so that Parliament has the proper time to scrutinise them and we have the critical legislation that is required in place by exit day. The secondary legislation programme is on track and we remain confident of the passage of the required number of exit-related SIs before exit day. I said there had been about 70; the exact number as of Friday 19 October is that 72 SIs have been laid or made, with 38 in July, 34 before the Recess, four in August, 10 in September and 19 so far in October. That includes the 43 proposed draft negatives that have been submitted to the sifting committee for consideration.

The noble Baroness referred to comments made by Bernard Jenkin in the House of Commons. I have not seen those particular remarks but I assure her that we have no intention of tabling SIs and then altering them later. We are doing a considerable amount of work to improve the quality of statutory instruments and to ensure that Parliament is appropriately informed and that the appropriate back-up documents, briefing documents and statements are provided along with the SIs. There is no question of back-door changes to legislation. Actually, we would have had the power to propose this particular SI as a negative procedure—it would have been legally possible—but we thought that as it potentially alters legislation of constitutional significance, it would be appropriate to be up-front and take it as an affirmative statutory instrument, so this is legislation by the front door. I hope she will accept that.

Once again I thank both noble Baronesses for this good debate and for their contributions. This statutory instrument aims to make consequential amendments to legislation in order to clarify how new powers and duties in retained direct EU legislation and new powers in regulations made under the European Union (Withdrawal) Act will work within our existing legal frameworks. The instrument will also repeal some provisions of primary legislation that are redundant due to the commencement of provisions in the European Union (Withdrawal) Act that were brought into force by commencement regulations made on 3 July 2018. The instrument will also make some transitional and savings provisions in relation to those repeals. With that, I beg to move.

Motion agreed.

Greater Manchester Combined Authority (Adult Education Functions) Order 2018

Wednesday 24th October 2018 Grand Committee

Liverpool City Region Combined Authority (Adult Education Functions) Order 2018

Cambridgeshire and Peterborough Combined Authority (Adult Education Functions) Order 2018

Tees Valley Combined Authority (Adult Education Functions) Order 2018

West Midlands Combined Authority (Adult Education Functions) Order 2018

West of England Combined Authority (Adult Education Functions) Order 2018

Considered in Grand Committee

18:31

Moved by

[Lord Agnew of Oulton]

That the Grand Committee do consider the Greater Manchester Combined Authority (Adult Education Functions) Order 2018, the Liverpool City Region Combined Authority (Adult Education Functions) Order 2018, the Cambridgeshire and Peterborough Combined Authority (Adult Education Functions) Order 2018, the Tees Valley Combined Authority (Adult Education Functions) Order 2018, the West Midlands Combined Authority (Adult Education Functions) Order 2018, and the West of England Combined Authority (Adult Education Functions) Order 2018.

[The Parliamentary Under-Secretary of State, Department for Education (Lord Agnew of Oulton) (Con)]

My Lords, these six orders, if approved and made, will provide for the transfer of certain adult education functions and the associated adult education budget—the AEB—to the mayoral combined authorities. This provides an opportunity for them to help their residents to fulfil their potential in life and contribute to the growth of the region. As noble Lords will be aware, in 2015 and 2016, through a series of devolution arrangements agreed between the Government and the mayoral combined authorities, we made the commitment fully to devolve the AEB to specified mayoral combined authorities. These orders will deliver on this commitment.

These orders are made under the Local Democracy, Economic Development and Construction Act 2009. They will transfer certain adult education functions of the Secretary of State, as set out in the Apprenticeships, Skills, Children and Learning Act 2009, to the mayoral combined authorities in relation to the area of each specified mayoral combined authority for the academic year 2019-20 and thereafter. This transfer does not include the functions in so far as they relate to apprenticeships or those subject to adult detention.

In the 2015 spending review, government made available £1.5 billion annually until 2020 for the adult education budget. Across England, this budget is supporting adults with the skills and learning they need to equip them for work, an apprenticeship or further learning. These facilities provide an integral stepping stone, particularly for disadvantaged adult learners.

In 2016-17, the AEB supported adults to study English, maths and courses of English for speakers of other languages, full level 2 or 3 qualifications and a wide range of community learning provision. Devolution will mean that mayoral combined authorities are able directly to shape the adult education provision available to their residents. This means that, from the academic year 2019-20, the provision can be more focused around local area need.

We are currently undertaking a wide-ranging programme of skills funding reforms across areas such as T-levels and apprenticeships. Post-16 education plays a crucial part in supporting future economic growth. In leaving the EU, it is important that our homegrown workforce is skilled and able to make the most of the new opportunities that arise. Devolution of the relevant functions and the associated AEB forms a key part of these reforms. Alongside devolution, the department is opening dialogue with mayoral combined authorities and other sectors on how skills provision and reforms can best be shaped to fit the needs of local areas.

These orders will transfer certain adult education functions of the Secretary of State in the Apprenticeships, Skills, Children and Learning Act 2009 to the mayoral combined authority in relation to its area. They will enable the transfer of that relevant part of the AEB to the mayoral combined authority. In particular, the following functions will be exercisable by the mayoral combined authority instead of by the Secretary of State in relation to its area: Section 86, which relates to education and training for persons aged 19 or over; Section 87, which relates to learning aims for such persons and the provision of facilities; and Section 88, which relates to the payment of tuition fees for such persons.

Conditions are set in relation to the transferred functions—in particular, that the mayoral combined authority must have regard to guidance issued by the Secretary of State and must adopt eligibility rules in accordance with any direction of the Secretary of State. The Department for Education will transfer the relevant part of the adult education budget to the mayoral combined authorities to undertake the functions. It will be the responsibility of each area to manage its overall AEB allocation efficiently and effectively to ensure that it delivers for its local residents. The department is assisting the mayoral combined authorities to be ready for taking on the functions and has provided implementation funding to each of them to prepare effectively.

From the 2019-20 academic year, the mayoral combined authorities will be responsible for providing funding for statutory entitlements for eligible learners in maths and English up to and including level 2, first full level 2 for learners aged 19 to 23, first full level 3 qualifications for learners aged 19 to 23, and the forthcoming digital skills entitlement. We talk about the northern powerhouse and the Midlands engine among others. Skills are an essential driver for economic growth in all our regions.

We are already seeing the mayoral combined authorities make a real difference locally. For example, Tees Valley Combined Authority has implemented the Tees Valley Routes to Work pilot. This is an innovative pilot that has a total fund of £7.5 million, with £6 million from the Department for Work and Pensions and £1.5 million from the combined authority cabinet. It will run until 31 March 2021. Routes to Work will support at least 2,500 individuals who are long-term unemployed or who have significant barriers to employment. The pilot aims to move at least 375 individuals, 15% of the cohort, into sustainable employment. It aims to work with those most disengaged from the labour market and support them in engaging, identifying and addressing any potential barriers that they may face in gaining employment.

In Greater Manchester the mayoral combined authority has implemented the Working Well programme. This stream of work responds to one of its strategic aims of reducing long-term unemployment and helping more residents into sustained employment. The £52 million devolved programme offers intensive and tailored support to individuals who are out of work due to poor health or disability and the long-term unemployed, to help to address their barriers to employment. The programme, which takes referrals from Jobcentre Plus, will support around 22,000 individuals over its five-year life. In the first six months more than 1,700 residents had started to receive support.

Those examples give a picture of the specific interventions currently taking place at a local level and illustrate the positive impacts that devolution can have. Devolution gives all mayoral combined authorities the opportunity to address the skills challenges that they face and enhance economic growth in their areas. The scale of the challenges faced is both significant and different dependent on region. For example, there are currently 41,000 Greater Manchester Combined Authority residents with no qualifications. There are significant variations between residents’ skills levels across the districts. West Midlands Combined Authority currently has the lowest employment rate of any of any mayoral combined authority—72.3%, against a national average of 78.4—whereas Liverpool City Region Combined Authority has one of the highest rates of economically inactive residents of any combined authority area. Similarly, despite employment levels rising at a rate faster than the national average, Tees Valley Combined Authority still has higher levels of claimant unemployment compared to national averages, with a Tees Valley average of 4.2% compared to 2.2% nationally. Cambridgeshire, Peterborough and West of England combined authorities have skills shortages and hard-to-fill vacancies that are constraining local businesses. These examples show that each area has specific challenges. These can be addressed through the devolved AEB, and the orders give the mayoral combined authorities the opportunity to address specific regional problems.

The orders will enable mayoral combined authorities to support their residents into good jobs with opportunities for people to progress and develop; improve the earnings potential of their low-paid, low-skilled workers; and help to deliver a thriving and dynamic economy. Without these orders, the mayoral combined authorities will not have the ability to address these challenges and bring greater prosperity to their regions. I beg to move that these orders be approved.

[Lord Watson of Invergowrie (Lab)]

My Lords, I thank the Minister for his introduction. No doubt he will share my relief that in your Lordships’ House we are considering all six of these orders together, not following the procedure adopted in another place, where they required three sittings over a period of eight days. I think we can do things more efficiently.

The devolution of powers and funding for adult education that the orders introduce is welcome, as much of the most effective adult education provision is delivered locally in line with the needs of local communities. The Explanatory Memorandum characterises the transfer of functions as giving local areas a prominent role in managing and shaping their own economic prosperity. Who could argue against that? But—there is almost always a but—the transition from national funding to devolved funding may have unintended consequences for some national providers if it disrupts their existing local provision. A long-established national charity, the Workers’ Educational Association, is one such provider that may be adversely affected. I declare an interest as a former employee of the WEA. I shall say more about that organisation in due course, but before doing so it is appropriate to put the effect of these instruments into context.

The Explanatory Memorandum also states:

“The transfer of the specified functions to the combined authorities will result in an associated transfer of funds to each combined authority to facilitate the exercise of those functions. This will take the form of a proportion of the overall adult education budget moving from the Department for Education to the specified combined authority”.


The key question mark over the future delivery of adult education concerns how much funding will transfer and how that will affect the ability of the combined authorities to deliver a full provision. The Minister delivered an upbeat assessment of what the combined authorities will achieve through the powers contained in these orders, but the current experiences of providers are not so upbeat.

The report published last month by the Institute for Fiscal Studies, which the Minister and his officials will be aware of, found that between 2004 and 2016 the number of adult learners fell from 4 million to 2.2 million. That alarming 45% drop means that apprenticeships now account for over one-third of total adult education funding, as opposed to 13% in 2010. That may be good news for those fortunate enough to work for an employer that is part of the apprenticeship programme, but of course millions more people never get the chance to undertake an apprenticeship, such as those working part-time, in the gig economy, for a microbusiness or on zero-hours contracts.

For the majority of adult learners, the IFS report painted a rather bleak picture. The numbers show that there are fewer evening classes and opportunities for people to learn, whether it be to improve literacy and numeracy, to update technical skills that might help get a job or a promotion, or to take GCSEs and A-levels to help to access higher education. Each year there are 1.8 million fewer adults able to improve their life chances through education. This is not the place for discussing the Open University, but in recent debates in your Lordships’ House I have highlighted the serious decrease in adult part-time education on Open University courses since the tripling of tuition fees in 2012, and that fits with the pattern across adult education.

Of course, cuts in funding which have the inevitable consequence of reducing the numbers participating in adult learning have a direct impact on the economy. One of the obvious benefits of adult education is helping people, as the Minister said, to equip themselves with the skills that employers need now and will need even more in the future. This is a pressing issue, with fewer EU nationals being allowed to bring their skills to the UK. In the context of our leaving the EU, opportunities for upskilling and reskilling should surely be going up not down, yet figures on enrolments in key areas of the labour market are worrying. Enrolments in health and social care courses dropped by a third between 2006 and 2016. The reduction was of a similar percentage in both construction and engineering. If the Minister, his department and the Government are not concerned by these figures, I think we should be told why.

18:45

There is an urgent need to improve productivity and acknowledge the risks to millions of jobs from new technologies. The National Retraining Scheme is being designed to address both, but will need major investment to fill the gaps from that 45% drop in adult learning. Spending on adult learning—indeed, on any form of education—needs to be seen as an investment for the long term. Benefits accrue to learners, their families and the communities they live in, as well as to employers and the economy as a whole. The next spending review will be an opportunity to show that, post-Brexit, the Government recognise that. That assumes that the Government will still be in power at that time, but for all our sakes I suggest that we do not go there.

It would be appropriate if it were to be done by a Labour Government, because of course the two pieces of legislation that we are discussing today, in terms of the powers, stem from the legislation of 2009. That brings me to an anomaly, because the orders will transfer certain adult education functions set out in the Apprenticeships, Skills, Children and Learning Act, yet the transfer does not, as the Minister said, include the functions in so far as they relate to apprenticeships. Will the Minister explain why that should be the case? Perhaps pre-empting that slightly, in one of the debates on these orders in another place, the Minister for Skills said:

“In some ways, apprenticeships have been devolved down to the smallest point possible, in that they are in the hands of employers”.—[Official Report, Commons, Delegated Legislation Committee, 15/10/18; col. 9.]

Strictly speaking, that is the case, but we believe that the combined authorities could play a significant role as facilitators in gathering employers together and helping them to demystify the new order in terms of apprenticeships.

Some progress has been made in the devolution of adult skills funding, but it needs to be set in the context of a wider spread of apprenticeships and skills funding. That is highlighted by the sharp downturn in apprenticeship starts since the levy was introduced. I am on record as saying that I believe that that is down to initial teething problems and that those figures will rise, but one potential avenue that could be explored is devolved skills and the implications of the adult education budget’s relative narrowness. Devolving apprenticeships, including for adult apprenticeships and other skills funding, and not just the adult education budget, would be a positive step down that route. When these orders were being considered in another place, the Minister for Skills stated her belief that the devolution of further education should be the way forward in terms of community growth and cohesion. That is certainly a view that we share, and I am sure that the Minister does too, but the task ahead is achieving it, with future funding at best uncertain.

Turning to transitional funding in preparation for the full implementation of these orders, this will apply for the academic years 2019-20 and 2020-21 and will be funded nationally by the Education and Skills Funding Agency. It was announced earlier this year, in the form of an Answer to a Written Question in another place, and involves criteria all of which apply only to four residential colleges. That does not take into account the manner in which the Workers’ Educational Association delivers adult education, which is as a national provider but with the emphasis on local delivery through a network of regional offices.

The WEA is one of the providers currently in receipt of a national Education and Skills Funding Agency grant to deliver much of its work. The combined authority areas have introduced specific protections to guard against destabilisation of the existing local provider base during the transition period, but not all of them have yet determined what will happen to providers which deliver local provision but within the framework of a national funding settlement, such as the WEA. Such providers may be expected to enter into competitive bidding processes, even where they are already well-established and delivering high-quality and effective provision in the combined authority.

Lack of transitional support introduces uncertainty and fragmentation into the WEA’s budgeting, with the result that it may have to downsize significantly as a result of reduced national funding, and this will impact on its ability to deliver much of its substantial programme across England. As much as a third of the WEA’s funding could be affected by the transition from national grant to devolved funding to the combined authority. I cannot imagine that is what the Government intended when they developed the policy that these orders will implement. For devolution to be fully effective, support must be offered to the full range of community-based local providers, even those which operate within national structures, and especially those already working with the most disadvantaged. The WEA is not the only organisation to be caught—apparently by accident—in the rollout of these orders. It is—as would be expected—involved in discussions with the skills teams in each of the combined authorities, but I hope that the Minister, if he cannot answer now, will be able to write to me to address the issues I have raised.

In conclusion, I repeat that we welcome these orders and much of the thrust behind them, and shall not be opposing them.

[Baroness Pinnock (LD)]

My Lords, I welcome the orders that will devolve elements of the adult education budget that are currently held centrally to the mayoral combined authorities. I always welcome devolving budgets to authorities, either combined or local. We can have local decisions to help local people, which is much better than having national decisions made by people in London who, in my experience, know little about the folk I represent in Yorkshire. One of the factors that is holding back business development, business expansion, economic development and GVA in many regions, and in the north in particular, is a lack of appropriate skills and the low levels of skills in the population compared with the more prosperous parts of the country.

I want to highlight four issues, broadly supporting what we have before us today. The first, which the noble Lord, Lord Watson, also raised, is that of funding. The question should be: how much funding are each of the combined authorities going to be allocated, and how does this allocation of additional funding fit in with the significant reduction of government funding to further education colleges, where much of the skills provision is delivered? It does not bode well for the adult education elements of the budget. I know from my own experience in Yorkshire that there is a huge demand for construction workers, yet the colleges delivering those skills are finding it difficult to do so because of the funding squeeze on them. There is also a danger that we will end up with a very fragmented adult skills funding mechanism and delivery. This will not help achieve what the Government have set out in what the noble Lord, Lord Agnew, has said; namely, enabling those areas of the country with combined authorities to really support skills being developed by people who left school without the appropriate skills for the economy and for their own well-being.

The second point I want to make is about one of the phrases in the document; it talks about the challenge of encouraging more training and education. Obviously, as someone who has spent a lifetime in education, I totally support that. What is interesting is that the Government have had rather limited success in addressing the issue of what are crudely called NEETs—those who are not in employment, education or training. We ought to focus much more attention on that group of people, who, as we have heard, will need those skills for their lifetime of employment, and the country needs them to have skills. I want to understand, from that element of what is before us, how that is going to be measured. We are talking about it being important to encourage them, so how are the Government and the combined authorities going to measure that?

The third issue that I want to raise is the business of consultation, which the noble Lord, Lord Watson, has raised in a different way. All the documents say there is no need for additional consultation because it was done three or four years ago for the original orders for the combined authorities; adult education and skills were in all those original functions for the combined authorities, and this is just giving the funding to allow that to happen. However, now that we have a specific defined allocation and devolution of a function and funding, a consultation ought to take place in those combined authority areas as to how that should be carried out. There are institutions that will be affected one way or another—one in particular, as the noble Lord, Lord Watson, has pointed out—and I think there ought to be consultation among providers in those areas to listen to any issues that they raise. I am disappointed that in here it says that no consultation will be necessary.

The fourth issue that I want to raise is accountability. Right from the start of combined authorities, I have been concerned about the lack of accountability for the devolved functions and the funding that has been made available. The governance model that the Government have decreed is very light on accountability. Perhaps the Minister will be able to describe how the combined authorities will be held accountable to the Government for the delivery of the function that is being devolved, and how he anticipates the constituent local authorities being able to hold the combined authority decision-makers to account in a public way. I hope he will not tell me that they all have scrutiny panels or committees, because I do not think they have the necessary powers to really hold the combined authorities to account for the functions that they fulfil and the public money that they spend.

In summary, I support what is being proposed here. I know from the examples that have been given that the combined authorities will set up different models to fit the needs of the people in the regions, and that is positive. However, there are some issues that we need to be concerned about: consultation is one, accountability another, and the third is the fragmentation of funding. I look forward to the Minister’s response.

[Lord Agnew of Oulton]

I thank noble Lords for their comments and questions. I thank the noble Lord, Lord Watson, and the noble Baroness, Lady Pinnock, for their broad although perhaps qualified support. I will try to address the various questions that they have both raised.

To start with the funding question, as that is something that both speakers raised, the overall budget, as I mentioned in my introductory words, is £1.5 billion a year, which was set for this current spending review. In aggregate, the amount of money being devolved to these combined authorities—including the Greater London Authority, which has a slightly different legal structure, although we have issued a delegated letter to that authority to give it the same or very similar powers—is about £750 million. I cannot speak for beyond the spending review, but I can certainly reassure noble Lords that this is an area of huge focus of this Government. We are very committed to supporting adult learners into improving their skills and their future life chances.

19:00

The noble Lord, Lord Watson, asked about apprenticeships. As he will be aware, it is still a relatively new programme and it has undergone some of the most profound change since, probably, the Second World War. I think the view is that at the moment it is best managed centrally until we have a steady state. As the noble Lord will be aware, only a few weeks ago we increased the amount of funds that could be devolved down the supply chain from 10% to 25%. We need to ensure that we are getting it right before we begin devolution of that activity.

On the question of transitional funding, just over £6 million has been awarded to the mayoral authorities to help them to get ready for the transition of these tasks. That money has started to be released and will continue over the next year.

I can see that the noble Lord speaks with passion about the WEA; indeed the noble Lord, Lord Bird, wrote to me about that organisation earlier in the year. We have publicly recognised the work being done by the WEA and similar organisations, although the WEA in particular, given its long history—I think it was founded over 100 years ago—has a major role to play in delivering adult education and fostering a culture of lifelong adult learning.

Devolution gives the WEA an opportunity to work with the mayoral combined authorities to shape the ways in which they can contribute to meeting the skills needs locally so that more people of all ages and backgrounds are given opportunities to develop skills and experience. It is vital that providers such as the WEA make contact with the MCAs and support them so that the local economy and workforce have the skills and expertise that they need for the future. We have provided some guidance to the MCAs for the transitional years, which includes providing knowledge transfer sessions and workshops covering the practical processes of administering the AEB programme.

19:02

Sitting suspended for a Division in the House.

19:13

[Lord Agnew of Oulton]

My Lords, I shall finish off on the WEA. Devolution gives the WEA an opportunity to work with the mayoral authorities and shape the ways in which they can contribute to meeting skills needs locally so that people of all ages are given those opportunities. It is vital that providers such as the WEA make contact with the MCAs to support them.

[Lord Watson of Invergowrie]

The WEA provides the contacts for these opportunities and possibilities. At the moment it is delivering adult education courses but it may not be able to do so in the future. There is not going to be a transitional period during which it can adjust. As I say, it is discussing these issues with the authorities but it may not always be successful, and that is the problem. There could then be a significant reduction in what the WEA is able to provide.

[Lord Agnew of Oulton]

What I can offer the noble Lord is that if he does not feel that the mayoral authorities are engaging constructively with the WEA, he should write to me and I will take the matter on. When the noble Lord, Lord Bird, wrote to me in April, I passed the letter on to the Minister, my right honourable friend Anne Milton, who wrote to the noble Lord and offered to meet him. I reassure the noble Lord, Lord Watson, that I believe such providers to be a very important part of the further education landscape and we certainly do not want to see them put out in the cold.

To address the questions asked by the noble Baroness, Lady Pinnock, on NEETs, or that category of vulnerable young adults, we are trying to help them through further studies in GCSE English and maths. In each case, more than 500,000 adult learners are studying maths and English to get them on to a platform that will enable them to go on and acquire the broader skills that are needed. We already require information about further education to be submitted to the DfE and we will continue to complete the individualised learner records in respect of provision delivered to learners resident in authority areas. This will continue to feed through into the national statistics publications. For transparency, the national statistics publications will include provision delivered to residents of the authority areas.

On accountability, we have put in place a number of measures to deal with the issues raised. There will be a robust governance arrangement between the department, the Education and Skills Funding Agency and the MCAs to govern the transitional year. As part of these arrangements the department is working with the MCAs to monitor and evaluate the performance of AEB-funded provision. This is assisting the MCAs in determining their commissioning and provision strategy when the budget is devolved from 2019-20 onwards. The Secretary of State has issued guidance on the approach an MCA should take to commissioning adult education. This includes guidance on how the approach should align to the existing adult education funding milestones which a provider operates under when commissioning. They have statutory requirements, which gives the department powers to intervene in the event of a failure to deliver decent provision.

Introducing these orders now will allow the mayoral combined authorities the opportunity to work with providers to tailor adult further education provision in preparation for the academic year 2019-20. This will give their residents the chance to reach their potential, improve their earnings and gain progression in their jobs. It will allow the skills system to deliver in responsive ways to sustain a flexible labour market. I commend these orders to the Committee.

Motion agreed.

International Solar Alliance: Framework Agreement

Wednesday 24th October 2018 Grand Committee

Motion to Take Note

19:19

Moved by

[Baroness Jones of Moulsecoomb]

That the Grand Committee takes note of the Framework Agreement on the establishment of the International Solar Alliance.

[Baroness Jones of Moulsecoomb (GP)]

My Lords, I feel that I should do something that Ken Livingstone told me never to do, which is to start with an apology. I feel the Minister might not have expected to deal with this particular issue; I gather it is quite unusual to table a debate on a treaty like this. I thank the Government Whips for allowing this to happen; I know we are always short of parliamentary time, so I am very grateful to have this opportunity.

I felt compelled to bring this debate when I saw the Government’s accompanying notes to the International Solar Alliance Treaty. At first I was excited; it looked like a very positive step forward. However, that excitement gave way to disappointment and now I almost feel despair. It was bad enough getting the UN report this month about having only 12 years to make a difference to our future as humanity, and I feel the Government are not acting in the best interests of this country or indeed globally.

My excitement came from the ambitions of the International Solar Alliance. It is an international agreement, formed at the United Nations by treaty between 121 states. Importantly, the alliance is being led by India, which makes it the first large-scale climate initiative to be led by a developing country. Together the signatories seek to raise $1 trillion US dollars for investment in solar power, and by 2030 the treaty aims to provide affordable green energy to a billion people who do not currently have any electricity. These are lofty goals and a considerable source of excitement. They demonstrate an understanding that green investment gives the opportunity to significantly increase the living standards of the world’s poorest while protecting the ecological resources on which all our livelihoods depend. So far, all good.

However, my excitement gave way to disappointment when I read the Government’s Explanatory Memorandum to the treaty, written by the Secretary of State for International Development. Those notes celebrate the UK’s involvement in the alliance but then nakedly expose the true lack of ambition behind our involvement. It is stressed that our membership,

“places no legal or policy requirements on the UK”,

and that,

“initial UK ISA collaboration will be through existing UK government funded programmes”.

The focus is placed on developing our bilateral relationship with India, with this being a nice green gesture to move that along. It seems to me that the largest contribution that our Government will be making is creating new commercial opportunities and investment opportunities for UK business. My conclusion from the Explanatory Memorandum is that we are signing up to yet another impressive-sounding green initiative but then doing absolutely nothing of substance. I find this deeply disappointing and a continuation of this Government’s “promise big; deliver disaster” approach to green issues.

My disappointment then gave rise to despair when the International Panel on Climate Change published its report this month. These are the world’s leading climate scientists, who have been asked to give an authoritative review of the world’s climate future. It makes grim reading and, frankly, blows the ambitions of the International Solar Alliance out of the water. The IPCC report sets out the devastating scientific consequences of what will happen if global temperatures rise by more than 1.5 degrees Celsius, which at current rates is likely to occur between 2030 and 2050, well within the lifetime of our children and grandchildren. The report makes clear that limiting temperature rises to 1.5 degrees will expose 10 million fewer people to the impacts of rising sea levels, particularly in small island nations such as the British Overseas Territories. They are why we are involved in the alliance in the first place; we would not normally merit being included, but we are because of those territories.

Fish stocks, which Brexit has suddenly got so many people passionate about, will be devastated if temperatures rise beyond 1.5 degrees. Other risks of climate change, such as drought, crop failures and disease, will all be lessened by keeping temperature changes below that amount. Even someone like me, who has spent most of my life warning about the dangers of climate change, was deeply depressed to see all this written in one place and to be reminded of the rate at which we are hurtling towards climate breakdown. The IPCC report tells us that even the best-case scenario is bad. A 1.5 degree change will still wipe out 70% to 90% of the world’s coral reefs and lead to the displacement of millions of climate refugees. Importantly, though, the panel tells us that that limit is achievable with the right mix of political will, financial resourcing and international co-operation.

This is where the International Solar Alliance, and our Government’s attitude towards it, are really exposed. The ambitious $1 trillion investment by 2030 is pennies when compared to the $2.4 trillion that the IPCC says must be invested in clean energy each and every year to avoid catastrophic climate change. More than 2% of world GDP must be invested in avoiding climate change if we are to keep within safe limits. The report also highlights the importance of tackling global poverty and reducing inequality. Put simply, we cannot save the planet unless we significantly improve the livelihoods of the world’s poorest. When I talk about saving the planet, I do not mean the planet itself because the planet will survive whatever we do to it. What I mean is preserving the ecosphere that we as a human race need to survive.

It is noteworthy that the very reason why we are able to sign up to the International Solar Treaty, whose membership is limited to tropical nations, is because of our territories that lie in the tropics. It is those overseas territories, most of which are small islands and coastal nations, that are most exposed to the risks of climate change.

Before I conclude, I want to stress how much our domestic energy policies are undermining any possibility of showing climate leadership on the world stage. This Government have decimated subsidies and support for domestic solar panels and made new onshore wind power virtually impossible. The 10:10 Climate Campaign says:

“Incredibly, the government is now planning to stop guaranteeing that people will be paid for the surplus energy their solar panels produce. Instead, in effect, the power will be donated for the energy companies to sell on. People installing solar after March next year will be left empty handed. Meanwhile millions of pounds go to fossil fuels. That isn’t just unfair. It’s quite literally daylight robbery—and it’s terrible news for the solar industry”.


We seem to have completely abandoned financing for energy efficiency and insulation schemes. The Green Deal was a failure and nothing ever replaced it, and of course our Government are obsessed with fracking to open up a whole new source of fossil fuels right at the time when we should be locking carbon up in the ground. I do not see how anyone can take us seriously when they see such anti-green policies in the UK.

Those are the reasons why I have called this debate today. I challenge the Government to increase their ambition on the global stage. We really ought to be making green investment the central plank of our international aid and development efforts. I want to give Ministers the opportunity to clarify their dismissive approach in the Explanatory Memorandum and set out a pathway for rapidly increasing our investment in the alliance.

Lastly, I ask the Minister to set out the Government’s analysis and response to the IPCC report, as we are reminded that climate change is the most pressing—and depressing—issue of our time. We all want to avoid climate catastrophe. I beg to move.

[Lord Teverson (LD)]

My Lords, I declare an interest, which will become apparent later, as a trustee of the Green Purposes Company, which holds the green share in the Green Investment Bank.

I welcome this debate. I do not think the noble Baroness should apologise at all because I do not think I would have been fully aware of this treaty if it had not been for this debate. I am going to take a rather different approach but I agree with the vast majority of what she has just said. We probably need Claire Perry from the Commons rather than the Minister here to answer some of these questions, although I am sure he will answer them very adequately.

I thought that this alliance and the agreement itself were good news globally at a time when we have bad news in terms of climate change, with the international consensus rather falling apart in this area. I also welcome the fact that India is the leader in this. I have to say that the history of India in climate change talks internationally has not been great. In fact the country was a blocker of some of the earlier global agreements on climate change—for good reason, in many ways, in that as a developing nation it sees the problem is one that has arisen from industrialised, developed countries and one that we are now throwing back to economies such as India to help us to solve, having been profligate in terms of our emissions in the past. Indeed, as the memorandum states, there are still issues in India with regard to the development of solar through protection in tariffs and in terms of wanting, understandably, to have its own internal solar industry rather than rely, as much as the rest of the world does, on China’s production.

19:30

Given “global Britain”, in a way it is rather a shame that this initiative was spearheaded by President Macron rather than by ourselves. That shows how France, which is obviously one of our closest European partners, is in many ways pushing ahead in many of these areas where we are hesitating and potentially retreating, particularly in meeting our fourth and fifth carbon budgets.

I was also pleased that this was not just about solar as we understand it here, which is a distributed energy, but is about putting energy back into the grid, and about individual commercial or domestic buildings. The fact that it is around water pumps and spreading the needs in this area is very positive. However, I was quite surprised that the Explanatory Memorandum centred only on solar PV. I would have thought that solar thermal was just as important, and I presume that the treaty includes that technology as well. Although on the whole these houses probably do not need the heating that we require here in the northern hemisphere winter in terms of hot water, that is still an important area where solar thermal can work well.

I identify completely with the view expressed by the noble Baroness, Lady Jones, that the memorandum is all about what UK plc can do and not rest of the world. But I welcome the fact that it will be an opportunity for the City to use its expertise in green finance, the London Stock Exchange and the issue of green bonds, to expand that activity to the benefit of a wider community. At the moment in green finance, we have gone down in the league tables—I have an Oral Question on this in the House next week—from number one on green finance to number three, with Sweden and Amsterdam now ahead of us. Countries such as France are issuing green sovereign bonds when we have not got that far yet.

The Green Investment Bank, which I was sad to see privatised recently, particularly when we have the challenges ahead that we do, is a manager of a British government fund, possibly through the Foreign Office, which has made investments in India quite recently. I would be pleased to understand whether the rest of that programme will coinvest British government money in this area and whether that programme will continue. I very much welcome it, even though placing some of that money has been quite difficult.

The irony of this treaty is that India is asking us to do this. Given our colonial background, India has decided that because the remains of our empire are scattered across the tropics, we should be a part of this agreement. Some of my question comes back to what the noble Baroness, Lady Jones, said. Are we at least going to use our leverage and resources and give our help to some of those overseas territories that are within the tropics? Are we going to be practical in making this agreement and alliance work for our overseas territories that are in the region of concern for this alliance?

I am sure I read in the Explanatory Memorandum that the overseas territories had been consulted on this, and I would be interested to understand whether the communities that represent Chagos have been specifically consulted on this agreement. Obviously it affects them and their future, not only where they are at the moment but where they want to be in the future.

The numbers are mind-boggling, although small in comparison with the $1 trillion that we need to save the planet. I am interested to know, and perhaps the Minister could tell us, which ATM that will come out of.

[Lord Collins of Highbury (Lab)]

My Lords, I am grateful to the noble Baroness for initiating this debate, and I, like the noble Lord, do not think she should apologise at all. When I read that she had put down a Motion on an international treaty, it prompted me to do the same, so I am having a debate on an international treaty next Tuesday. It is a great opportunity for more public scrutiny of treaties.

Like the noble Lord, I think this is a good agreement, and we should praise the international community and the United Nations for their focus on this, and also praise Britain’s involvement. I have a number of questions, which have already been partly raised. Why this is good is that from a DfID responsibility, we know that the key to economic development is access to energy. Many local economies, particularly in Africa, are inhibited from growing because they cannot access energy, and I think the key to this ISA—if I can call it that—is that it will not only use existing new technologies but a range of them that are not simply reliant on big generation. It is moving into smaller and local generation that can help more remote economies to grow.

I have some specific questions. Initially, DfID said that its engagement would be limited to providing expertise, and that there would be no monetary contributions, but then in the memorandum it states that the United Kingdom,

“may consider committing financial resources”,

directly. Have discussions taken place with the ISA over potential future financial contributions?

I also want to pick up the point that we are members of the alliance because of our overseas territories; the noble Lord raised the fact about consultation. The memorandum confirms that all the overseas territories were in agreement with our membership. That is good, but what else did they say? Did they actually ask how it will impact on them, what concerns do they have, and will they be able to utilise it? What is DfID’s programme in terms of the alliance and the overseas territories? The Minister may not be able to reply tonight, but it would be good to receive information about how the overseas territories were engaged.

I agree completely with the noble Baroness in terms of us advocating one thing internationally and doing something else domestically. The noble Lord has said many times that the UN 2030 agenda does apply. It is universal, so what we are practising in the alliance is something we should be implementing. We are accountable for all the SDGs—the decision to set up the alliance came out of the UN 2030 agenda and the SDGs. I hope that the Minister can talk about how the policy that DfID is leading on will be addressed in the cross-department activity on the implementation of the SDGs. Perhaps he will commit in the report that is going to be made next year to the United Nations—our voluntary review of the SDGs—on how we will meet this particular aspect.

I have mentioned the possibility of direct financing, but of course we have a development instrument in the United Kingdom, a huge one for which the Government have committed to providing additional investment funding, and that is the CDC. Of course, the CDC does have as part of its five-year business plan a commitment to address the SDGs. I am not sure whether the CDC is an instrument that might be involved in the implementation or be part of our ISA engagement, particularly in terms of investment. One of the things I have raised in the past, along with many other noble Lords, is the fact that there are CDC investments which are not carbon neutral. It has made investments which are contributing to global warming mainly because, as I have said before, there is an urgent need in some developing countries for access to energy. I would like to see how the CDC strategy fits in with the memorandum that has been circulated.

In the end, it is important that we are able to review these international agreements. I will conclude by saying that we welcome the Government’s commitment to the alliance. I hope that that will be more than just simply providing specialist assistance and that we ensure that we support fundamental changes. As the noble Lord said, India has a requirement to use energy and it has been utilising quite dirty energy. We want to see our support being given not only to middle-income countries but spread across all developing countries. Given that, I welcome the report.

[The Minister of State, Department for International Development (Lord Bates) (Con)]

My Lords, I join others in thanking the noble Baroness, Lady Jones, for raising this issue and initiating this debate. It gives us a good opportunity to put several points on the record. I shall try to cover most of the questions which have been raised. Some relate specifically to other departments and therefore I will take up the kind suggestion of the noble Lord, Lord Collins, to write to noble Lords about them.

Perhaps I may begin, as did the noble Baroness, Lady Jones, by setting out the Government’s position in relation to the alliance and then move on swiftly to the specific questions. The International Solar Alliance is a ground-breaking initiative which aims to accelerate the deployment of solar energy. That deployment is critical to achieving the seventh sustainable development goal which seeks to ensure access to affordable, reliable, sustainable and modern energy for all. The ISA plans to raise $1 trillion of investment for solar projects, enough to provide 700 million of the 1.1 billion people who are currently without electricity with solar energy. It was quite right of the noble Lords, Lord Collins and Lord Teverson, to point out the rural aspect of this issue because most of those who do not have access to energy live in rural areas. The development of off-grid solar energy sources therefore offers life-changing opportunities for them. In doing so, it would reduce CO₂ emissions by over three gigatonnes per year. That is around 10% of the global CO₂ emissions from energy—a very significant contribution to SDG 13 on tackling climate change. In doing so, the ISA will also support global development, providing the energy that enables businesses to be productive, services—such as health centres and schools—to function, and providing safe and affordable light and heat to the hundreds of millions of people who currently live without it. The ISA can play a critical role in contributing to the low carbon future we need to ensure that dangerous climate change does not wipe out past development gains. If we are to protect our citizens and companies, we must tackle climate change abroad as well as at home; UK membership of the ISA will help this to happen.

19:45

The UK stated its commitment to the ISA when the UK Prime Minister met the Indian Prime Minister in April 2018 at the Commonwealth Heads of Government Meeting. At this meeting, the UK identified four areas where the UK could collaborate with the ISA. The UK’s four “I’s”—as they are known—are investment, innovation, implementation and institutions. On investment, the ISA has set an ambitious target to mobilise $1 trillion by 2030. Five years ago, this target would have seemed unachievable when the global green bond market was worth just $13 billion. In 2018, the global green bond market is expected to raise over $200 billion, much of which will be done through the City of London, showing that the ISA’s targets are entirely possible. These figures also indicate that private finance, much of it from the UK, will have a crucial role to play.

The second “I” is innovation. The ISA’s success will depend to a significant extent on the development of the next generation of solar technology and business models. These will increase efficiency, reduce costs and improve the viability of solar investment. The third is implementation, which is critical to success. The ISA is about delivery on the ground, not grand conferences. For example, DfID’s Africa Clean Energy Programme is already working with ISA partner countries to develop viable projects for ISA investment along with UK partners such as the Shell Foundation and the Carbon Trust.

The final “I” is for institutions as they need to play their role in making the solar revolution a reality. At the international level, the UK is working with multilateral institutions to meet their commitments to investment in clean energy countries. We will also work with ISA member countries to develop the national level institutions required to develop a flourishing national solar sector. This is why the ISA is such an important contribution to 21st century institutions.

I turn to the points raised during the course of the debate. I will start in reverse order because they piled up as they were received. The noble Lord, Lord Collins, asked about the UK contribution directly. We are not yet a full member so we cannot currently contribute. We are in discussions with the ISA about a secondment opportunity so that UK expertise can begin to work directly with institutions in India. This is alongside the aligned partners already signed on for working with renewables and investment in the City and we will consider further contributions in due course.

19:48

Sitting suspended.

19:55

[Lord Bates]

The noble Lord, Lord Teverson, asked specifically about the British Indian Ocean Territory and the Chagos Islands. We have regular dialogues with the overseas territories: there are Joint Ministerial Councils that are chaired by my noble friend Lord Ahmad and which I attend as the Minister responsible for some of the islands that are eligible for overseas development assistance. Of course, their attentions have been focused on the consequences of climate change, including hurricanes in the Caribbean last year. There was certainly a lot of interest and support for doing more on this. We are having discussions on the development of geothermal on Montserrat and about solar and wind on St Helena. These are very important elements.

It might be helpful for the Committee to note that at the ISA General Assembly on 3 October the restriction on members having to have a territory within the tropics was removed from the original provision. It is correct that France and India established the ISA in 2015 in Marrakesh, but it is incorrect to suggest that the UK is slipping behind France. More solar is installed in the UK than in France. Significantly, 49% of all EU solar investment is from the UK. In the first half of this year, one in five EU electric vehicles was sold in the UK, second only to Germany.

Internationally, we do more too. The Powering Past Coal Alliance has been launched with Canada. Over the weekend I was in Copenhagen at the partnering for green growth summit. The initiative is being led very powerfully and effectively by the Prime Minister of Denmark. There was significant recognition on the international stage of the contribution that the UK is making in terms of green growth finance. One of the delegates specifically mentioned the Powering Past Coal Alliance which was launched around a year ago, and of course the International Climate Finance facility.

As for how this links with the SDGs, we had a light grilling by the Environmental Audit Committee just a couple of days ago on our readiness for the SDGs. What I was able to say there I also say to the Committee, which is that we view these issues through the lens of the SDGs: they are the best hope we have and they must be applied rigorously, as the noble Lord, Lord Collins, said, domestically as well as being the focus of our efforts internationally.

The noble Baroness, Lady Jones, spoke about fracking. In the UK we have been regulating for gas and oil drilling for many years and we have tough regulations in place to ensure on-site safety, prevent water contamination and mitigate air pollution. All projections suggest that the UK will require gas for decades ahead. By 2030 we could be importing three-quarters of the gas we need, and that is the rationale for exploring an alternative section of development.

We welcome the IPCC report on 1.5 degrees. We are a world leader when it comes to cutting carbon intensity but the evidence is clear: Governments, businesses and communities must take further action to confront this challenge. That is why we are asking the international climate experts of the Committee on Climate Change for a road map to a net zero economy, including how emissions might be reduced and the expected costs and benefits of doing so. Those will also be followed up at the next meeting, which will take place in Katowice in December.

The noble Baroness, Lady Jones, asked what we are doing domestically. The UK was the first country to introduce legally binding emission-reduction targets through the Climate Change Act of the previous Labour Government 10 years ago. Our current 2050 target is to reduce greenhouse gas emissions by at least 80% relative to 1990 levels. That was set in 2008 and we are already making progress, as evidenced by our strong domestic performance. However, there is more to do. Low-carbon innovation is at the heart of the Clean Growth Strategy published last year, and over £2.5 billion of government investment in low-carbon innovation from 2015 to 2021 is a key part of delivering that. This forms part of the largest increase in public spending on UK science, research and innovation in almost 40 years.

The noble Lord, Lord Teverson, asked about the specific bodies that might be involved in the ISA. We have a list that I am happy to provide to him, but the one that he may have been referring to is the India/UK virtual clean energy research centre, UK Research and Innovation India, formerly RCUK India, one of those announced some time ago by my colleague Sam Gyimah, a Minister at BEIS.

On what we are doing domestically about renewals and emissions reduction, we are committed to maintaining our position as a global leader in renewable energy. We hope that the ISA will present opportunities for British business abroad. Private sector investment, subsidy-free, may soon be a viable option for technology. The key message here is that the SDG gap in terms of funding to meet the SDG goals is running at some $2.5 trillion per year, and therefore it is impossible for $150 billion of aid flows to go anywhere near meeting that. That is the reason why we need to use vehicles such as the CDC, the City of London and the ISA to leverage in private sector capital investment. Of course, that is now available because the technology is now so advanced that solar-powered energy is indeed competitive and economic and can provide a return on investments.

We are pleased to see that the establishment of technologies such as onshore wind and solar is reducing the cost. If this continues, they may have the capability to play a significant role in the generation mix in future. No decisions have been taken about the future of CfD allocation rounds for established technologies but it is right that we should focus support on those technologies where the need is greatest.

[Lord Teverson]

Perhaps I can give the Minister good news. He may not be aware of this but UK Climate Investments is the organisation in question. The British Government, along with Lightsource Renewable Energy and UK Climate Investments, part of the Green Investment Group, are putting in the seed asset for the partnership that will lead to a 60-megawatt project in the Indian state of Maharashtra. The Government have made that investment this year and I congratulate them on that programme, but I was interested to understand what else they would manage to deliver in future.

[Lord Bates]

The noble Lord’s skills know no bounds. Would he like to take a place in the Box behind me? That is very good research and I am grateful for it.

Solar PV is a UK success story. The last eight years have seen the technology deployed rapidly, with over 99% of the UK’s solar PV capacity deploying since May 2010. In 2015, 49% of total EU investment in solar PV occurred in the UK. We have installed more than twice as much capacity as any other European country—more than Germany, France and Australia combined.

On how the UK is contributing to the environment of climate change following the IPCC report which the noble Baroness, Lady Jones, asked about, we have launched our 25-year environment plan. It sets out how we will replenish depleted soil, rid seas and rivers of rubbish and cut greenhouse gas emissions. We have talked specifically about eliminating avoidable plastic waste and supporting the creation of a new northern forest. We have embedded environmental net gain principles for development, including housing and infrastructure. We have created a new network of sites covering 500,000 hectares where nature and wildlife can thrive, and we have implemented a sustainable fisheries policy.

Those are the main points that were raised during the debate, but of course I will review the Official Report and write to noble Lords should there be any gaps.

[Lord Teverson]

Can I clarify a point? The report says that all the overseas territories were consulted. As the British Indian Ocean Territory is on that list, who do the Government consult with?

[Lord Bates]

The noble Lord makes a very specific point. He will be aware of some of the challenges we are currently facing in our consultation with the Chagossians, who are based largely in Mauritius. I do not have the name of a specific individual, but I can certainly undertake to write to the noble Lord and set out any other points that have not been covered.

[Baroness Jones of Moulsecoomb]

I thank the Minister for his response. He has raised a lot of issues and I could not keep up with them all. I can assure him that, probably against his preference, I shall pick up on them when I read the transcript. I thank the noble Lords, Lord Teverson and Lord Collins, for supporting me. I take back my apology for bringing this issue to the table. Ken Livingstone was right: one should never apologise.

The noble Lord, Lord Teverson, appears to be more optimistic than I am. Perhaps it is my job in the House of Lords to bring a hefty dose of green pessimism to our debates so that we have to stretch ourselves to accommodate it. As regards the noble Lord, Lord Collins, I am absolutely delighted that I have set a precedent for testing these treaties. It allows for more scrutiny of the things that the Government are doing.

The noble Lord, Lord Bates, talked about the road map and I would be interested to hear more about that. I am sure that there are links which I can refer to. We cannot live on past glories. I realise that some of the things he talked about are happening not because of the Government but in spite of the Government. People like me have put solar panels on their houses in spite of the Government slashing feed-in tariffs simply because the technology is becoming cheaper. The Government should support solar panels. I lived on a semi-tropical island in the Seychelles for six years and I am well aware of the impact that climate change is going to have on many islands in the Indian Ocean, as well as other places. Even a small rise will mean the loss of a lot of land because many of the islands’ perimeters are quite shallow. That in turn will mean the loss of livelihoods. I can well understand why the small island states are extremely anxious about the fact that we are such big polluters. It is up to us as well as places such as China, India and the USA to make sure that we limit our disastrous carbon emissions. One of the points made in the UN report is that we have to reduce inequality and poverty. That will be a major factor in helping to reduce our impact on the planet. It is something that I believe in very strongly as well. Most of these states do have a source of energy. The tides are small, the waves are often big, but of course they have the sun, so solar energy is a way to find more energy.

On fracking, I am sure the Minister knows that up at Preston New Road in Lancashire the fracking started and within days there have been six tremors. Fracking is a nasty way to recover fossil fuels at a time when we should be keeping fossil fuels in the ground. Fracking is not only unnecessary—it is not necessary for a secure energy future—it is dirty and dangerous. I am delighted about the growth of green finance, but Greens have strong suspicions about the growth of finance and whether or not there is real green finance. It is wonderful if there is growth in green areas, but there has to be a concomitant scaling back in other areas.

Finally, I know that a Conservative Government, naturally, but a Labour Government as well—or even a Lib Dem Government—would care very much about the cost of things. The question of how much this is going to cost us is a good one, but of course the real question, the question Greens always ask, is: how much will it cost us if we do not do it? Actually, the amounts are phenomenal, and they include global insecurity and a lot of quite bad impacts on us. I beg to move.

Motion agreed.

Committee adjourned at 8.11 pm.

House of Lords

Wednesday 24th October 2018 Lords Chamber

Wednesday 24 October 2018

15:00

Prayers—read by the Lord Bishop of Salisbury.

Lord Speaker’s Committee on the Size of the House

Wednesday 24th October 2018 Lords Chamber

Announcement

15:06

[The Lord Speaker (Lord Fowler)]

My Lords, I would like to say a few words about the latest report by the Burns committee on the size of the House, which is now available in the Printed Paper Office and online. I am pleased to announce that in the first year of the scheme, the target for departures was exceeded, and there have been 42 departures from the House since the beginning of this Parliament. As she promised, the Prime Minister has shown restraint on new appointments and we are on course to reduce the size of the House to 600 Members within the timeframe set out in the original report. Importantly, I should add that we are achieving this reduction without the benefit of legislation. Lastly, I would like to pay tribute to the noble Lord, Lords Burns, and his committee for their very hard work.

Child and Adolescent Mental Health Services

Wednesday 24th October 2018 Lords Chamber

Question

15:07

Asked by

[Baroness Tyler of Enfield]

To ask Her Majesty’s Government what is their most recent assessment of access to treatment in Children and Adolescent Mental Health Services.

[The Parliamentary Under-Secretary of State, Department of Health and Social Care (Lord O'Shaughnessy)]

My Lords, the Government are improving and expanding access to children and young people’s mental health services. Because of the additional £1.4 billion available for these services, we expect that an extra 70,000 children and young people will access NHS specialist mental health services each year by 2021. We are either on track or exceeding waiting time targets for eating disorders and early intervention in psychosis, and the plans published in the Green Paper will further widen access to mental health support.

[Baroness Tyler of Enfield (LD)]

I thank the Minister for his Answer. Last week, Action for Children reported that one in three young people now have mental health issues. It also estimated that only a quarter of those who need help are currently able to access treatment from NHS services; this is quite often because they are not considered “ill enough”. I am particularly concerned by the often non-existent provision of crisis care for young people who are experiencing suicidal thoughts, self-harming, or just desperately needing help, often in the evening or at weekends—certainly outside of nine-to-five office hours. Could the Minister say whether setting up 24/7 crisis care provision for children, young people and their families will be a key priority for the Government in the forthcoming NHS long-term plan?

[Lord O'Shaughnessy]

I certainly think that is an interesting idea which I am very happy to feed into that process. I know the noble Baroness is a great campaigner on this issue, and the numbers of young people who are suffering from mental health problems are, frankly, terrifying. On the point about access, she was right that around one in four children and young people have been able to access these services. Our ambition, which we are on track to meet, is that this should rise to 35%. Clearly, we ought to reach 100%, but that involves recruiting a very large workforce, which we are in the process of doing.

[Baroness Watkins of Tavistock (CB)]

My Lords, can the Minister comment on whether there will be significant investment in trying to take psychology graduates into mental health nursing to enhance the number of people entering the profession?

[Lord O’Shaughnessy]

I do not know the specifics on psychology graduates; I will write to the noble Baroness. If the number of nurses in mental health nurse training at the moment comes through into the profession, there will be 8,000 more mental health nurses by 2020. I am sure we will be keen to recruit them from wherever we can.

[Baroness Wheeler (Lab)]

My Lords, on the issue of 24/7 services, CQC evidence suggests that the number of children visiting A&E departments for mental health treatment has more than doubled since 2010. Earlier this year, a CQC review highlighted growing demand as children, young people, their families and carers find that they have to reach crisis point before they can get help. On top of this, the recent FOI response to the BBC’s “Panorama” programme showed that at least 1.5 million under-18s were estimated to be living in areas where there are no 24/7 child mental health services. What steps are the Government taking to join up services across health, education, local councils and the voluntary sector to ensure that these vital crisis and support services are available and funded?

[Lord O’Shaughnessy]

I recognise that there is variability across the country. Indeed, waiting times vary, which is not acceptable. That is why a new four-week waiting time standard is being trialled as part of the Green Paper I mentioned. I should also point out that new, community-based eating disorder clinics are being set up so that people do not have to go to an A&E environment and can access something that is better for them, frankly, both more easily and locally.

[Baroness Fall (Con)]

My Lords, I start by commending the Government for their important work in this area. It remains true that many people who seek help are often either not helped at all or put on a waiting list. Can the Minister outline the exact thresholds that are used when many people who seek referral are turned away? In the interests of transparency, it would be important for us to know what they are.

[Lord O’Shaughnessy]

I thank my noble friend for her question. The definition is a “diagnosable mental health condition”. That is the performance target, or threshold, we work against. At the moment, unfortunately, only around 30% of children and young people with a diagnosable condition access care and treatment but we are clearly trying to increase that figure.

[Baroness Parminter (LD)]

My Lords, have the Government made an assessment of the number of children and young people referred to community eating disorder services? Given that anorexia has the highest mortality rate of any mental health disease, how many of those referrals do not go on to get treatment?

[Lord O’Shaughnessy]

The noble Baroness makes a very important point. There are 70 new or enhanced community eating disorder services. The intention is that they should serve over 3,300 children and young people every year.

[Lord Roberts of Llandudno (LD)]

My Lords, what consideration is being given to refugee children who come with tremendous trauma from the camps in Dunkirk and Calais? Is any consideration given to them and the threat that when they reach the age of 18, their status changes and they can face deportation? Can we not do something to relieve that anxiety?

[Lord O’Shaughnessy]

As I hope the noble Lord will know, refugee children have as much right to access these services as other children. I should also point out that a new mental health assessment trial is being funded by the Department for Education specifically to design mental health assessments for looked-after children of all kinds, including refugee children.

[Baroness McIntosh of Hudnall (Lab)]

My Lords, can the Minister say what work his department is doing with the Department for Education in making consistent the level of pastoral care available in schools, particularly for young people who have experienced mental health problems and may not be in an acute stage but need ongoing monitoring?

[Lord O’Shaughnessy]

I am pleased to tell the noble Baroness that extensive work is being done. It was summed up in the plans outlined in the Green Paper last December and revolves around two things: every school having a designated senior lead for mental health and the recruitment of mental health support teams that will sit in and around schools. It is precisely about joining up education workers and health workers in the community to provide that kind of support.

[Lord Ramsbotham (CB)]

My Lords, too many people in our young offender institutions are suffering from mental health problems. The Minister mentioned the likely increase in the number of nurses, but one of the problems with the young offender institutions is that there is an acute shortage of child and adolescent psychiatrists. Will he please tell the House what the situation is regarding those vital people?

[Lord O'Shaughnessy]

I hope the noble Lord will forgive me if I do not have the specific number on psychiatrists. The plans to extend the mental health workforce as a whole cover all settings, including the recruitment of a further 1,700 children and young people’s therapists. I will find out whether the young offender institutions are included in that and what the figure is for psychiatrists.

Brexit: Economic Forecasts

Wednesday 24th October 2018 Lords Chamber

Question

15:15

Asked by

[Lord Strasburger]

To ask Her Majesty’s Government whether their forecasts for the next ten years show a better outcome for the United Kingdom economy if the United Kingdom were to remain in the European Union than if it were to leave.

[The Minister of State, Department for International Development (Lord Bates) (Con)]

My Lords, the UK is leaving the EU on 29 March 2019 and will begin to chart a new course in the world. The Government’s proposals set out in the 12 July White Paper are the best way to protect jobs and avoid a hard border between Ireland and Northern Ireland. When we bring forward the vote on the final deal, Parliament will be presented with the appropriate analysis to make an informed decision.

[Lord Strasburger (LD)]

My Lords, as full EU members we currently enjoy the best possible trading terms with the EU 27. Any other deal must, by definition, be worse. Our Government are striving for a deal with our biggest trading partner that can only downgrade what we have now—that is worth thinking about. Does the Minister know of any other country that has deliberately degraded its trading relationship with its biggest customer?

[Lord Bates]

I do not accept the proposition behind that question. The world is changing. Some 90% of the growth that will happen over the next 10 years will be outside the European Union. Six of our largest trading partners are in the EU, including Germany, France and the Netherlands, but the United States is No. 1, China is growing very significantly and there is Switzerland too. This is a great country in which to invest and trade. That is why we have the largest stock of foreign direct investment and why our exports and employment continue to grow, and I expect that to go on happening once a deal is reached.

[Lord Davies of Oldham (Lab)]

My Lords, the Minister is answering on a hope and a prayer. In this age of uncertainty, to claim categorically that Brexit will be beneficial to the nation is extraordinary. Will he not accept that economic predictors in the past have been broadly correct? They have been right over the last seven or eight years that the economic growth rate in the United Kingdom would decline to one of the lowest in the G7. They also got right that the people who would pay for austerity would be working people, as their wages would not increase over this period. But there was one prediction that the Government got wholly wrong; the Minister partially reflected on it a moment ago. That was for the Prime Minister to go post-haste to the President of the United States to take steps towards an advantageous trade deal after Brexit. What was the reply? “America first.”

[Lord Bates]

As far as we are concerned on this negotiation, we want a deal, we expect a deal and we want good, positive relations with our European friends. If it is important that we continue to have access for goods worth £423 billion into the EU, is it not also crucial that it continue to have access so that it can sell us goods worth £518 billion each year? It is in the enlightened self-interest of both parties to reach a deal, and that is what the Prime Minister seeks.

[Lord Howell of Guildford (Con)]

My Lords, in dealing with this Question, would it not be best to ask what will happen to the European Union over the next 10 years? Visegrad countries are pulling away, nationalism is growing in many European member states, Italy is considering whether it should leave the European Union, and Greece continues to have difficulties. Would it not be wise for us to work for a modern and completely different kind of European co-operation in the future, which might be better for Europe and us?

[Lord Bates]

My noble friend speaks with great knowledge and expertise in these areas. Of course, one of his points is the one I made right at the beginning: the fastest-growing economies will be outside the European Union. Last year, our exports to India rose by 31% and to China by 15%. Those are significant sums. Not just the UK but the EU needs to wake up to the competition around the world, and to ensure that we have markets that can compete in that new environment.

[Lord Howarth of Newport (Lab)]

My Lords, what are the Government’s economic forecasts for the next 10 years worth when their forecast of catastrophe in the 12 months following the referendum was so abjectly wrong?

[Lord Bates]

The noble Lord will remember the catastrophe that happened in 2008. I do not necessarily want to remind him of that. Growth has continued in every quarter since the referendum. We expect that to continue and that is what we are working for. We are also working for a deal—that is what the Prime Minister is working for tirelessly. She deserves our full support.

[Baroness Kramer (LD)]

My Lords, I am tempted to comment on our shocking growth numbers at 1.2% compared with those of the US and the EU, which are close to 6%. The noble Lord is relying on future free trade agreements. I am shocked to learn how low the utilisation of free trade agreements is. The requirements to qualify for zero tariffs under any existing free trade agreement are so heavy in documentation on rules of origin, certification, dealing with royalties and valuation that the overwhelming majority of companies choose to pay the tariff rather than opt for the zero. In some free trade agreements only 10% of qualified transactions opt for the zero tariff because of the costs; at best it is only 60%. Does that not damn the future trading relationships that he describes?

[Lord Bates]

I point out to the noble Baroness that some of the markets in which we are trading most successfully and where growth is increasing are ones that we do not have a formal free trade agreement with and where we operate on WTO terms. But that is not the objective we are setting for the future; we want a good trade agreement with our friends in the European Union and good free trade agreements that we will be able to negotiate with other countries around the world.

[Baroness Deech (CB)]

My Lords, I have had the advantage of listening to the noble Lord, Lord King of Lothbury, speak about the reliability of economic forecasts. In summary it was, “Stuff happens”. No one 11 years ago would have foreseen what would happen in 2008 or the problems with the eurozone ever since. Indeed, the Treasury document that we had to see in private across the road itself fluctuated 5% this way and 5% that. Will the Minister understand if we take the forecasts with a great dose of salt?

[Lord Bates]

We should do, although of course we look at them. We somehow behave as though economic forecasts are some kind of target that we have to meet, when they are not. Our future is entirely in our own hands. What is better news for us is that it is entirely in the hands of British businesspeople, who have shown themselves to be world leaders the world over. I have great confidence in them and their ability to continue.

Freedom of Religion or Belief

Wednesday 24th October 2018 Lords Chamber

Question

15:23

Asked by

[Baroness Anelay of St Johns]

To ask Her Majesty’s Government what plans they have to (1) promote freedom of religion or belief, and (2) mark International Freedom of Religion or Belief Day on 27 October.

[The Minister of State, Foreign and Commonwealth Office (Lord Ahmad of Wimbledon) (Con)]

My Lords, as the Prime Minister’s special envoy on freedom of religion or belief, I am leading the work with our diplomatic network to achieve an increased focus in our efforts on this agenda across government. We are seeking to effect change in key countries and to promote respect in education, supported by £1 million of funding. In this respect, I am also working across Whitehall to bring together ministerial colleagues from DfID, the Ministry of Housing, Communities and Local Government, the Department for Education, and defence. We are marking the international day with an event, which I am delighted to be co-hosting with my noble friend Lord Bates, on 7 November.

[Baroness Anelay of St Johns (Con)]

I thank the Minister for his Answer. He holds an important position as the Prime Minister’s special envoy. Can he explain what progress has been made in, for example, providing religious literacy training to departments such as the Department for International Development, so that it can cope better with some of the challenges it faces in countries such as China, Pakistan and Nigeria, where there are repeated assaults on the idea of freedom of religion or belief?

[Lord Ahmad of Wimbledon]

My noble friend raises a significant point about literacy in the important area of freedom of religion or belief. You need only cast your eye around the world to see how freedom of religion or belief is being usurped in many countries, including some of those named by my noble friend. With regard to increasing our focus on this, the noble Baroness will be aware of the work done through the diplomatic network, and I am already speaking to colleagues across DfID, and in the Ministry of Defence, to ensure that those deployed to our international posts are well versed in the local challenges on this important priority.

[Baroness Northover (LD)]

My Lords, has the Minister noted the 40% increase in religious hate crimes in the United Kingdom between 2017 and 2018? In that context, does he feel it appropriate that Tommy Robinson was entertained in the Lords by a Member of this House?

[Lord Ahmad of Wimbledon]

On the second point, I do not think that it is right. We need to take a long hard look at ourselves as a House, and I am sure that the House authorities have been alerted to the presence of the said individual. The views he expresses are not just appalling for the community he targets—we are all, rightly, appalled. It is important that we review our procedures to ensure that individuals such as Tommy Robinson do not enter the heart of democracy. I am minded, however, to defer that to the House authorities.

On the important issue of rising religious hatred and hate crime, I think we all stand united against it. We have seen an increase in anti-Semitism. I have spoken out very strongly on that, and I think that I represent many in this House in speaking out, whether it is against anti-Semitism, Islamophobia, anti-Muslim hatred or any form of religious hate crime. Regrettably and tragically, there are people in our society who target us—those who have spoken out—for that very reason. It is important that we unite against this and that a clear and unequivocal statement comes from this House, from the Houses of Parliament and from the country as a whole, to those who seek to divide us: “We are united against you, and we will defeat you”.

[Baroness Bryan of Partick (Lab)]

Does the Minister agree that each and every one of us in this House shares the responsibility to ensure good racial and interfaith relationships, and that this House has a specific responsibility to ensure that its own estates are not used in that way?

[Lord Ahmad of Wimbledon]

I am sure, as I said earlier to the noble Baroness, Lady Northover, that the House authorities have taken note. I also agree, however, with the premise of the noble Baroness that each of us has a responsibility. We need to raise the bar: no longer should it be about tolerance; it is about respect and understanding, and that is what we should be promoting.

[Lord Singh of Wimbledon (CB)]

My Lords, does the Minister agree that freedom of religion and belief is an absolute right, and that it would become more of a reality if we, and other leading countries, put aside considerations of trade and so-called strategic interests in its pursuit?

[Lord Ahmad of Wimbledon]

The strategic relationships that we have around the world are important—indeed, the Statement I made yesterday reflected that—but I assure the noble Lord, and your Lordships’ House, that human rights in the broad sense are an important consideration and priority in the relationships we build across the world.

[Baroness Eaton (Con)]

Will my noble friend the Minister work with FCO and DfID country heads to produce a country-specific strategy for promoting freedom of religion and belief?

[Lord Ahmad of Wimbledon]

My noble friend makes a very practical and useful suggestion, and I am looking at my new role to see whether we can provide that kind of country detail.

[Lord Collins of Highbury (Lab)]

My Lords, I strongly associate myself and the rest of these Benches with the remarks of the Minister in respect of the person who attended this place last night. We strongly support his attempts to stop that kind of behaviour. We do all have a responsibility. One of the things that happened at CHOGM was a conference at Lambeth Palace, involving religious leaders and politicians. Can the Minister tell us a bit more about what progress has been made since CHOGM? It is not simply a matter of Governments; it is about all community leaders and faith leaders taking the initiative.

[Lord Ahmad of Wimbledon]

The noble Lord raises an important point, and we of course welcomed the progress at CHOGM. I have continued to work closely with Lambeth Palace and other faith leaders as well. I am working closely with the Vatican, through Archbishop Gallagher, and I recently met His Highness the Aga Khan. We are looking across the piece with leaders from different faith communities, and from humanist societies as well, to ensure that we can work together as one on this important priority.

Brexit: Civil Service Impartiality

Wednesday 24th October 2018 Lords Chamber

Question

15:30

Asked by

[Lord Luce]

To ask Her Majesty’s Government what steps they are taking to protect the impartiality of the Civil Service following recent political criticisms of the Brexit process.

[Lord Young of Cookham (Con)]

My Lords, before I answer the noble Lord’s Question on the Civil Service, noble Lords may have heard that Sir Jeremy Heywood has announced his retirement as Cabinet Secretary to concentrate on his recovery from ill health. The whole House will wish that recovery to be swift and complete and we look forward to welcoming him to your Lordships’ House, where the wisdom, patience and humour that marked his career in the Civil Service can be harnessed by this House as it scrutinises legislation and holds the Government to account.

[Noble Lords]

Hear, hear.

[Lord Young of Cookham]

My Lords, the Ministerial Code is clear that Ministers must uphold at all times the impartiality of the Civil Service. This impartiality is a fundamental tenet of our system of government, set out in legislation and in the Civil Service Code. As always, the Civil Service is focused on doing its duty to implement the decisions and policies of the Government, including on negotiations and preparations for the UK’s withdrawal from the European Union.

[Lord Luce (CB)]

My Lords, I am grateful to the Minister for his Answer. He speaks with authority, having been a civil servant as well as a distinguished former Minister. I am sure the whole House will appreciate the tribute he has paid to Sir Jeremy Heywood. Since a politically impartial and independent Civil Service recruited on the basis of merit, in which civil servants are advised to speak fearlessly in giving advice to Ministers, has been one of the strengths of our unwritten constitution in the last 150 years, will the noble Lord condemn all those politicians—of all political persuasions and different views on Brexit—who blame the civil servants for policy decisions which are the sole responsibility of Ministers? Does he not agree that this is damaging to confidence and trust in the Civil Service?

[Lord Young of Cookham]

As the noble Lord has indicated, I have an interest to declare: I was myself a civil servant in the 1960s, working for such agreeable political masters as George Brown and John Stonehouse. But on the serious issue the noble Lord raises, I agree entirely with what he has just said. I think that Oliver Robbins has the most difficult job in the Civil Service; it is quite wrong that he should be the lightning conductor for those unhappy with the negotiations. I deplore the anonymous allegation that he is following his own agenda, against the wishes of Ministers.

[Baroness Hayter of Kentish Town (Lab)]

My Lords, this may be a sad day for the Civil Service in losing Sir Jeremy Heywood but it is a happy day for us. I am sure that even the Lord Speaker, having commended us on reducing the size of the House, will welcome this exception for our new colleague. We wish him well. The best tribute to him will be if we can continue what he says in his farewell letter: that he has tried,

“to challenge lazy thinking and … to find solutions rather than simply identifying … obstacles”.

Our tribute should be that the Civil Service can continue to do that without being attacked because, rather like saying “Fake news”, those who attack it are doing so to undermine the words that civil servants say. When the Minister reaffirms the independence of the Civil Service, as I am sure he will, will he urge those Brexiteers to play the ball and not the man?

[Lord Young of Cookham]

I agree with what the noble Baroness has just said and I am grateful for her tribute to Sir Jeremy. The noble Lord, Lord Hennessy, has best summed up the merits of our Civil Service, speaking of its,

“core values of integrity, propriety, objectivity and appointment on merit, able to transfer its loyalty and expertise from one elected government to the next”.

I agree with the noble Baroness’s final point that, whatever one’s politics, one should play the ball and not the man. Ministers bear responsibility for any difficulties in negotiations, not civil servants.

[Lord Lamont of Lerwick (Con)]

My Lords, as someone who strongly supports Brexit, may I say how much I support and agree with what the noble Lord, Lord Luce, has said? I deplore all the attacks made on civil servants. I particularly deplore—and have said this to several people—attacks on Sir Jeremy Heywood. He was my Private Secretary in three separate jobs and is an outstanding civil servant, devoted to giving impartial advice. I am deeply sorry to hear about his illness and wish him all the best.

[Lord Young of Cookham]

I am grateful to my noble friend. Like him, I worked with Sir Jeremy. I sat round the Cabinet table for a number of years with him and worked with him when I was Chief Whip and Leader of the House. One of his successes was building on the work of his predecessors and creating a more open, diverse, plural Civil Service that was also more professional but never lost sight of the basic principles of the Civil Service: honesty, openness, impartiality and integrity.

[Lord Armstrong of Ilminster (CB)]

My Lords, speaking for all his predecessors as Cabinet Secretary, I share and express our regret that Sir Jeremy Heywood has felt obliged to retire on health grounds. Sir Jeremy served many Prime Ministers and, as we have just heard, many Chancellors of the Exchequer. He served with great skill, unremitting hard work, distinction, impartiality and integrity. He has given the state some service and is well deserving of the gratitude and approval of the Government, Ministers, his colleagues in the Civil Service and both Houses of Parliament.

[Lord Young of Cookham]

I agree with the noble Lord’s every word and gently suggest that there will now be so many former Cabinet Secretaries in this House that perhaps they should form their own group.

Intermediate-Range Nuclear Forces Treaty

Wednesday 24th October 2018 Lords Chamber

Private Notice Question

15:38

Asked by

[Lord West of Spithead]

To ask Her Majesty’s Government what is their assessment of the impact on this country of the United States withdrawing from the Intermediate-Range Nuclear Forces (INF) Treaty.

[Lord West of Spithead (Lab)]

My Lords, I beg leave to ask a Question of which I have given private notice.

[The Minister of State, Foreign and Commonwealth Office (Lord Ahmad of Wimbledon) (Con)]

My Lords, we are aware of the statements made by the United States on the future of the INF treaty. However, it is important to recognise that the United States has not formally withdrawn from the treaty. While the treaty remains in force the United Kingdom will continue to support it and, in particular, to press Russia to return to full and verifiable compliance. We, of course, want to see the treaty continue to stand, but that requires all parties to abide by it and at the moment one side is in violation. Russia needs to respect its obligations as this treaty has made a valuable contribution to European security for over 30 years.

[Lord West of Spithead]

My Lords, the greatest existential threat to our people and nation is a miscalculation during a period of increasing tension, leading to an ill-thought-through use of a nuclear weapon. Indeed, Putin’s strategy of de-escalation posits early use of a nuclear weapon. The repudiation of the INF treaty—and let us face it, these weapons can hit us all in Europe but they cannot hit America—and the breakdown of US/Russian relations bring this existential threat to our nation, the only existential threat that is there, much closer. I think all of us should be extremely concerned.

Will we bend every sinew to try to get Trump and Putin in the margins of the number of meetings that they are having over the next few months to relook at a whole raft of limitation treaties and possibly renegotiate an intermediate-range treaty, a ballistic treaty and also an arms reduction set of treaties? Only in that way will we ease back on this risk of an existential threat to our people.

[Lord Ahmad of Wimbledon]

The noble Lord speaks from great experience in this respect. I assure him that the United Kingdom will do all within its power to ensure that this treaty is sustained and strengthened. But it is a bilateral treaty between the United States and Russia and one party—Russia—has not complied. The other positive note in this respect is that, as the noble Lord will know, at the last NATO meeting in July all NATO partners stressed the importance of sustaining this treaty. It has kept the peace for more than 30 years, and that is evidence of its importance.

[Lord Collins of Highbury (Lab)]

My Lords, by leaving the treaty the US has no way of pressuring Russia into compliance. The Minister is right about the need to ensure compliance. With the New START treaty on strategic arms due to end in 2021, we could be left with no limits on the arsenals of nuclear states for the first time since 1972. So my noble friend is absolutely right to raise this critical issue. Will the Minister tell us what conversations we had with our ally the United States and whether the United States consulted any of its European allies on this question before making this announcement?

[Lord Ahmad of Wimbledon]

My Lords, the noble Lord mentioned the New START treaty. It is important to recognise that major strides have been made in de-escalation and the destruction of missiles. That treaty remains on the books. Both sides are complying with it, and we will continue to work to ensure that it is sustained. On this treaty, we all heard the US President make the announcement. The issue of Russia’s non-compliance was not new to the NATO alliance. It was reflected in the communiqué in July. The noble Lord will also be aware that subsequent to the discussions a member of the US Administration recently visited Russia, and we hope that productive discussions will come from that. We continue to work very closely with the United States and other NATO allies to ensure that our efforts over the past 30 years are not just sustained but strengthened.

[Lord Hannay of Chiswick (CB)]

Will the Minister answer the question asked by the noble Lord, Lord Collins, about consultation? It is surely rather important that there was some consultation—perhaps there was not—because countries in Europe who are in the alliance are much more in the firing line than the United States. Can he say whether the United States consulted us or any other European allies—and, if so, what opinion did we offer?

[Lord Ahmad of Wimbledon]

I think I have partly answered the second part of the noble Lord’s question. The US has not withdrawn from the treaty. President Trump announced an intention to withdraw. On consultation prior to him making that announcement, this was discussed at the last NATO meeting, so American concerns about the treaty came as no surprise. On the specific question of the announcement, we were informed subsequently, but the material issue of the non-compliance of Russia was not new to the US or to any NATO ally.

[Lord Robathan (Con)]

Will my noble friend tell the House whether there is any evidence that Russia has been breaking the treaty, and to what extent? If there are now a great many more weapons capable of being aimed at Europe or anywhere else, that is quite disturbing.

[Lord Ahmad of Wimbledon]

It is not just the United Kingdom: all NATO allies have long-standing concerns about Russia’s deployment of a range of new capabilities that undermines strategic stability in Europe specifically. Returning to the point made by the noble Lords, Lord Collins and Lord West, that this issue of is primary importance to Europe, I assure my noble friend that, acting together as NATO, we will continue to pressure Russia to ensure that all treaties that have been signed are not only respected but strengthened.

[Lord Campbell of Pittenweem (LD)]

My Lords, is the Minister concerned about the erosion of nuclear arms control, as evidenced by this statement of intent by President Trump following his determination to resile from the nuclear arms deal? Added to that is the uncertainty about the renewal of the Strategic Arms Reduction Treaty. In all those circumstances, what prospects does this demonstrate to us for the review conference in 2020 of the nuclear non-proliferation treaty? What work are the Government already embarking on in relation to that review?

[Lord Ahmad of Wimbledon]

The noble Lord raises an important point about the renewal of that treaty. I assure him that we are working across NATO to ensure not only that the principles of that treaty are sustained but that the peace that we have seen on the continent through the de-escalation and reduction of weapons of all kinds—both nuclear and others—is not just sustained but maintained. There is a concern that I have already alluded to. In recent years we have seen Russia’s non-compliance and concerns about its technology-enabled development of new capabilities. It is right that NATO stands firm against this and we will continue to work very closely with NATO allies including—importantly—the United States.

[Lord Anderson of Swansea (Lab)]

My Lords, the Minister appears to have conceded that this was yet another surprise unilateral announcement by the President, without consultation with allies. But the President was right in one respect: things have moved on since this bilateral treaty. China is outside the treaty. Are there any prospects at all of engaging China in any form of treaty similar to the INF?

[Lord Ahmad of Wimbledon]

The noble Lord talks again about the concerns of the United States, which are about not just China but North Korea and other countries that are not subject to such bilateral agreements and are therefore outside the remit of such a treaty. It is important to recognise that, in the world we live in today, there is a real need to acknowledge that different alliances need to be strengthened and that some countries are developing certain technologies in this area. The important task is to ensure that our dialogue, along with our partners, is sustained not just with Russia but elsewhere. Indeed, we are encouraged—certainly when it came to the discussions between the United States and North Korea—by the agreements that have been reached on the de-escalation of various capabilities in that region of Asia.

Financial Regulators’ Powers (Technical Standards etc.) (Amendment etc.) (EU Exit) Regulations 2018

Wednesday 24th October 2018 Lords Chamber

Motion to Approve

15:48

Moved by

[Lord Bates]

That the draft Regulations laid before the House on 16 July be approved.

Relevant document: 38th Report from the Secondary Legislation Scrutiny Committee.

Considered in Grand Committee on 17 October.

Motion agreed

Building Societies Legislation (Amendment) (EU Exit) Regulations 2018

Wednesday 24th October 2018 Lords Chamber

Motion to Approve

15:48

Moved by

[Lord Bates]

That the draft Regulations laid before the House on 19 July be approved. Considered in Grand Committee on 17 October.

Motion agreed.

Department for Transport (Fees) (Amendment) (EU Exit) Regulations 2018

Wednesday 24th October 2018 Lords Chamber

Motion to Approve

15:48

Moved by

[Baroness Sugg]

That the draft Regulations laid before the House on 19 July be approved. Considered in Grand Committee on 17 October.

Motion agreed.

Third Parties (Rights Against Insurers) Act 2010 (Consequential Amendment of Companies Act 2006) Regulations 2018

Wednesday 24th October 2018 Lords Chamber

Motion to Approve

15:48

Moved by

[Lord Keen of Elie]

That the draft Regulations laid before the House on 28 June be approved.

Considered in Grand Committee on 17 October.

Motion agreed.

Non-Domestic Rating (Nursery Grounds) Bill

3rd reading (Hansard): House of Lords
Wednesday 24th October 2018 Lords Chamber

Third Reading

15:48

Motion

Moved by

[Lord Bourne of Aberystwyth]

That the Bill do now pass.

[The Parliamentary Under-Secretary of State, Ministry of Housing, Communities and Local Government and Wales Office (Lord Bourne of Aberystwyth) (Con)]

My Lords, I express my thanks to noble Lords for their helpful insight at Second Reading and support throughout proceedings. Additional thanks are due to Duncan McLaren at the Valuation Office Agency, Eleanor Griggs and Michael Parker at the National Farmers’ Union, the Farmers’ Union of Wales and the select nurseries that provided assistance.

I also thank officials and the Bill team who have contributed to the Bill: Phil Shere and Kirsty Roberts at Defra, and my own officials—Nick Pellegrini, Lisa Gouveia, Joshua Hardie, Matthew Scales and Ed Clark—for their work and support in preparing the Bill.

The Bill has wide support across the House, restores a long-standing policy position and will support a vibrant and sustainable rural economy. I beg to move.

Bill passed.

Ivory Bill

Report stage (Hansard): House of Lords
Wednesday 24th October 2018 Lords Chamber

Report

Relevant documents: 31st, 35th and 36th Reports from the Delegated Powers and Regulatory Reform Committee

15:50

Clause 1: Prohibition on dealing in ivory

Amendment 1

Moved by

[Lord Cormack]

1: Clause 1, page 1, line 8, leave out paragraph (d)

[Lord Cormack (Con)]

My Lords, I am sorry that there are not more in the House at the moment. I think if I were to ask any of your Lordships, individually or collectively, if you believed in the deprivation of the value of legitimately acquired private property, you would give a unanimous answer.

I have a retired friend in Lincoln who has spent his life collecting English watercolours. Some are very beautiful and he has collected them because he believes that they are beautiful but also because he always felt that in acquiring a watercolour, he was safe- guarding his money and knew that if he or his wife came upon difficult times, he could realise his assets. So it is, so it should be, and so, if he hits on hard times, it will be.

But if he had been like the gentleman who wrote to me only last week and collected ivory chess sets made at the same time that the watercolours were painted—the late 18th and early 19th century—he would be facing the prospect of having no assets that he could realise. This must surely be the law of unintended consequences. It cannot be that any Government, least of all a Conservative Government, would wish to act in that way against someone who has studiously—I use the word properly—collected items of interest and of some value, though not superb national value necessarily, and done no harm in the process.

There is probably not a single Member of your Lordships’ House—I hope there is not—who is not fundamentally opposed to the activities of ivory poachers. To that degree, we all welcome the Bill and applaud the Government’s desire to deal with poaching and punish those who trade nefariously in ivory items. But how many elephants will be protected in 2020 by forbidding someone from selling an ivory chess set made in 1820?

In Committee, I moved a slightly more far-reaching amendment, but I had the impression that it would not necessarily prosper, so I have made this amendment much simpler. It merely deletes the paragraph in Clause 1 that refers to,

“exporting it from the United Kingdom for sale or hire”.

If we are to prevent people realising their own legitimately acquired assets, surely we will not prevent them selling them in a country where it is entirely legal—as it is in France—to sell their ivory objects.

This is common justice as well as common sense. I beg to move.

[Lord Hague of Richmond (Con)]

My Lords, I have listened carefully to my noble friend Lord Cormack but I am opposed to his amendment, which would be destructive of the objectives of the Bill. It is important on this and other amendments to remind ourselves of the objectives of the legislation. Our ultimate objective and the objective of international policy on the ivory trade is to end the demand for new ivory. We probably all agree that this is the ultimate answer. Whatever we do in anti-poaching measures, conservation and the interception of shipments is really only mitigation. The answer to keeping elephants alive today is to end the demand for ivory.

That means bringing that demand to an end in China, Vietnam and south-east Asian countries. For years, some of us have been trying to persuade them of that, including when I was Foreign Secretary and began the conversation with China about ending its domestic ivory market. Now I am pleased to say that China closed its domestic ivory market at the beginning of this year. The British Government, including my noble friend the Minister at the Illegal Wildlife Trade Conference two weeks ago, were persuading other Governments to close their domestic ivory markets, including that of Laos, which is an important piece of the jigsaw, and, I hope, Vietnam and Malaysia in the future.

In every one of these conversations, including that with China, the first thing they say is, “Are you going to do the same? Are you going to close your domestic ivory market?” Secondly, they say, “If you don’t stop your exports from the United Kingdom, it is much harder for us to close our markets if thousands of items are exported as they have been each year”. The CITES figure is of 54,000 ivory pieces from the UK in a 10-year period, largely into Far Eastern markets. It is not credible to say to those countries, “Please close your domestic ivory markets so we save the elephants for the future. However, we are going to have a lot of exemptions and export to wherever we can from the United Kingdom. We have all these nice things we picked up during the Empire and we would like to be able to sell them in the future”.

It is very important to what is becoming a sensibly agreed international policy, not only that we support the Bill in general but that we do not make an amendment that would cut out of it the prohibition of exports, which would largely defeat the object of the Bill.

[Lord Cormack]

I am grateful to my noble friend but that does not address the issue of antique ivory. He may not be aware that most of the ivory exported is in the form of piano keys, but let us forget that for a moment. Does my noble friend think that in his desire to preserve the rainforest—a desire I am sure he and I share—it would be sensible to prohibit the sale of 18th-century mahogany furniture? His argument is devoid of logic, which is unusual for him.

[Lord Hague of Richmond]

We have not come to that point on the rainforests, but I would do whatever was necessary to save them. There is no doubt that the legal trade in the UK is cover for an illegal and illicit trade. We can see it for ourselves. Last month, I went to Heathrow Airport to meet the Border Force officials and Royal Mail personnel whose job it is to open suspicious boxes and so on coming into this country. I have seen with my own eyes and opened the boxes of the new worked raw ivory from elephants being killed today that is made to look as though it is antique ivory. That is why the United Nations Office on Drugs and Crime says that, globally, there is no doubt that a legal trade is cover for an illicit trade. So there is a powerful logic in enacting the Bill as it stands, including paragraph (d), referred to in Amendment 1, if we are to play our part internationally in saving the elephants of today.

16:00

[Lord Carrington of Fulham (Con)]

My Lords, I support my noble friend Lord Cormack’s amendment. I really just want to add to my noble friend Lord Hague that one of the great problems that the drafters of the Bill faced, and never really answered, is the claim that there is an inability in the ivory markets to tell the difference between modern ivory, newly carved from poached elephants, and antique ivory. It is in fact extremely easy to do and is done as a matter of course; indeed, it is enshrined in the Bill by museums having the expertise to determine whether an ivory item presented as of exceptional international and domestic importance—and therefore exempt under the Bill—is old or new. There is the expertise to determine whether ivory is old or new and to tell whether an ivory chess set—the example used by my noble friend Lord Cormack—is an old ivory chess set or one carved for the Hong Kong market. The reality of all this is that we are destroying a great many highly prized historical artefacts in this country for, probably, zero effect on the elephant population. That is the great tragedy of the Bill.

[Baroness Jones of Whitchurch (Lab)]

My Lords, noble Lords will not be surprised by this, but we are very much opposed to this amendment. The noble Lord, Lord Hague, put the case much more strongly than I will, but I was disappointed by the position of the noble Lord, Lord Cormack, on this. The very fact that his amendment focuses on exports goes to the heart of what the Bill is about. I am sorry that he has sought to start this debate in such a negative way. I hoped that we would have learned from our debates in Committee and that we had made the case in Committee, as the noble Lord, Lord Hague, said, that we are trying to stop the illegal exports of illegal pieces. That is the heart of the problem.

The latest CITES statistics show that there has been a dramatic increase in the amount of both raw and worked ivory being exported from the EU: in 2014-15, the last two years for which data are available, the EU exported 1,258 tusks. That is what has happened according to the CITES information. Over and above that, as the noble Lord, Lord Hague, said, there is the undercurrent of all the illegal trade of which nobody has any record. That is at the heart of this, and I am very sorry that we have started this debate looking at exports, which is the real problem that we have. I know we will go on to talk about other issues, but I regret this and I hope that the noble Lord, Lord Cormack, in other contributions that he might make, will do more to persuade us that he really understands the basis of the Bill. He said that he welcomed the Bill, but I think he has more of a responsibility to demonstrate how. I therefore urge noble Lords to oppose the amendment.

[The Parliamentary Under-Secretary of State, Department for Environment, Food and Rural Affairs (Lord Gardiner of Kimble) (Con)]

My Lords, my noble friend’s amendment would allow commercial exports of ivory to be exempt from the ban. Given the rationale of the Bill, this amendment would be contrary to its purpose. We have heard from all sides, and we are all united behind the need to tackle the devastating decline in elephant populations, which is being driven by the global demand for ivory. While key demand markets are primarily in the Far East, the UK has, by introducing the Ivory Bill, acknowledged that its own legal ivory market is one of the largest in the world. By closing this market we want to ensure that the UK no longer plays a role in driving the global demand for ivory, including in the Far East.

Currently, the UK ivory market is linked to the Far East. As I mentioned in Committee, a 2016 report by TRAFFIC, the wildlife trade monitoring network, shows that a shift has taken place over a number of years, with the UK legal market increasingly serving consumers in the Far East. UK Border Force officials have uncovered numerous antique ivory items being sent to Asian markets, often mislabelled as items other than ivory. Market surveys in the Far East have also shown that demand for ivory rarely distinguishes between legal and illegal ivory, with both found to be sold side by side. It cannot be denied that antique ivory from the UK is being exported to those markets, where it fuels the social acceptability of ivory and, in turn, perpetuates the demand.

I thank my noble friend Lord Hague for setting it out so clearly—indeed, the noble Baroness, Lady Jones, has said it much better than I possibly could—and I agree with every word he said. If we were to exclude exports from the UK’s ban, as proposed by this amendment, we would not only be allowing this link to continue but would also be condoning, internationally, the export of ivory items to demand markets. This would set back the actions already taken by other countries such as the United States and China by allowing new markets to grow in the Far East. It would also undermine the global movement to close markets and remove the value associated with ivory, which African elephant range states are calling upon us to do.

My noble friend Lord Hague referred to—as I will describe it—this global movement. The Illegal Wildlife Trade Conference was held earlier this month in London, where the UK Government launched the international Ivory Alliance, which will work to close domestic markets and reduce demand for ivory. It was a privilege to introduce a session at the conference—jointly chaired by my noble friend Lord Hague and Dr Zhou Zhihua of China, with a panel including the Assistant Deputy Secretary from the US Department of the Interior and the former New Zealand Prime Minister Helen Clark—which focused on the importance of closing domestic ivory markets.

The action the UK has taken by introducing this Bill is already helping to encourage other countries to take action. As my noble friend Lord Hague has said, both the Cambodian and Laotian Governments announced at the conference that they will be closing their domestic markets. This is an important step forward. Our work in the UK has also resulted in an Australian parliamentary committee recommending that Australia close its domestic market. The committee urged the Australian Government to follow the UK’s approach, which they described as an example of best practice.

Our actions are already having an impact and will continue to, if we make the right decisions. The current restrictions in place are not strong enough and there is an international movement, endorsed by a CITES resolution, to address the gap and in turn protect elephants. The UK must play its part, and it is for these reasons that the Government cannot support my noble friend’s amendment. As is customary at this stage, I therefore respectfully ask him to withdraw it.

[The Earl of Clancarty (CB)]

If this amendment is not passed, what would happen to objects that are confiscated at the border? I am thinking in particular of significant cultural objects that were destroyed in America, because all ivory is disallowed from entering the United States.

[Lord Gardiner of Kimble]

I say to the noble Earl, as my noble friend Lord Carrington mentioned, that there is no intention to destroy any objects. Indeed, there are further amendments on exemptions that we think strike the right balance regarding outstanding and the rarest items. We have a strong and proportionate package of exemptions, which will come up in the next group of amendments.

[Lord Cormack]

My Lords, the Minister’s response to that intervention from the noble Earl illustrates the lack of knowledge among those who are indulging in the gesture politics occupying us this afternoon. The fact of the matter is that, as the noble Earl, Lord Clancarty, referred to, already the United States is destroying items that have ivory as an ingredient. We will come to that later in today’s debate, but take as an example an Art Deco figure with an ivory head and a silver body. The ivory head would be taken out. There is a particularly graphic example of a Victorian salt and pepper pair, dating from, I think, 1874. They were beefeaters, and the faces were ivory. They were destroyed. This is the stuff of madness.

My noble friend Lord Hague speaks with passion, and I hope I rival his passion in wanting to preserve elephants, but he does not seem to understand the difference between antique objects and artefacts and modern things. He talked about fakes, but there are fakes in every walk of life and in every form of antique—we know that. But we would not clamp down on the sale of pictures because occasionally a fake appears on the market. We have to be moderate and sensible in our approach.

I will reflect on what has been said and I may well bring something back on Third Reading. I shall certainly test the opinion of the House on a later amendment this afternoon, but—

[Lord Gardiner of Kimble]

With respect, on this matter and with this amendment, I have no option but to tell my noble friend that I will say exactly the same at Third Reading. He says he intends to bring it back at Third Reading, but it is really a matter that we should deal with today, on Report. That is the way to deal with it. We have considered it in ministerial meetings and it goes to the very heart of the Bill. To take “exporting” out rides a coach and horses through the Bill’s premise, and I respectfully tell my noble friend that, at Third Reading, I will say exactly the same. If he does wish to test the opinion of the House, it should be at Report.

[Lord Cormack]

My Lords, obviously I will reflect on what my noble friend has said. I wish to test the opinion of the House on a later amendment but, for the moment, I will withdraw this one.

[Lord Grocott (Lab)]

My Lords, before the noble Lord, Lord Cormack, sits down, he is normally on the ball on such issues but unless the Companion has changed, this is not an appropriate way to put down an amendment on Third Reading. That is done only on a narrow basis, including due to new information or clarification of something that was unclear at an earlier stage. I think he may have a bit of trouble with the Table Office should he try to put down a similar amendment on Third Reading. I am surprised by what he has said, as he is so fluent in these matters. I hope he will acknowledge that, on this, I am right and he is wrong.

[Lord Cormack]

I am aware of the general position—of course I am. But we are at the first debate and we do not know quite how the Bill will emerge today from Report. We will then reflect. The noble Lord would agree, I am sure, that that is entirely logical and sensible. For the moment, however, I beg leave to withdraw my amendment.

Amendment 1 withdrawn.

Amendment 2

Moved by

[Lord Cormack]

2: Clause 1, page 1, line 21, leave out “ivory in it” and insert “more than 20% of ivory in the case of furniture or other objects and 30% in the case of musical instruments”

[Lord Cormack]

My Lords, this is an amendment about which I feel particularly strongly, because it illustrates very graphically some of the nonsense in the Bill. The sentence that I wish to amend is Clause 1(5)(b), which states,

“an item that has ivory in it”.

If one accepted—and I do not—that there is any fairness at all in depriving people of the value of antique ivory objects, surely one can accept that something with an element of ivory in it does not need to be embraced by this Bill. We are talking of such things as the escutcheons on chests of drawers, the insulators of the handles of tea-pots and coffee-pots and the handles of fish-knives and fish forks. What a bureaucratic morass we will create if every item with ivory in it comes within the ambit of this Bill.

16:15

Later we will move to the percentage of ivory and to specific items. Indeed, the next amendment on the list, Amendment 22, also in my name, deals with ivory miniatures. There is an arbitrary limit in the Bill, and Amendment 22 proposes that it leaves out the words,

“with a surface area of no more than 320 cm²”.

We discussed the question of ivory miniatures in Committee. The Government have accepted that ivory miniatures should be exempt, and I am grateful for this. Many miniatures, though not all, particularly from the second half of the 18th century and the first two decades of the 19th century, were painted on ivory; of course, others were painted on vellum and other materials. The Government conceded that it would be a destruction of the heritage of many families with collections of family miniatures if we were not to allow those who had fallen on hard times to sell them, so ivory miniatures under 320 square centimetres are permitted. But why that arbitrary limit? As the noble Duke, the Duke of Wellington, reminded us in Committee, many ivory miniatures are slightly bigger than that.

Amendment 22 is a very simple, sensible amendment, which should certainly be put to the vote. All it asks is: let us not have the limit. We know that a miniature is a miniature. We are not suggesting that great oil paintings were painted on ivory or that miniatures are great things in size, but that they should not be so scrupulously and specifically defined. Surely that makes a great deal of sense. Whatever view one takes on the Bill and on items of antique ivory or items containing ivory—[Interruption.] Oh dear, I hope that is not the Library calling.

One accepts that a great bureaucracy will be created here. Even though the Bill will today, I hope, be made better than it was in Committee, we will have people paying registration and other fees, and we will have people with the power to go into houses and see what the occupants have got and all the rest of it. It is a much improved Bill, and we will come to that later, but we should make the bureaucracy as simple as we possibly can.

I do not want to detain the House long. We have had significant debates in Committee and many noble Lords raised these points at Second Reading, but I believe that it is a modest step that I am suggesting. I beg to move.

[Baroness Quin (Lab)]

My Lords, I will speak to my Amendment 28, which is grouped with Amendment 2, which has just been moved by the noble Lord, Lord Cormack. Once again, I seek to entertain Members of your Lordships’ House with tales of the Northumbrian pipes. My amendment covers a very narrow part of the music industry, but I hope that it will receive sympathetic consideration today. I should declare that I am the president of the Northumbrian Pipers’ Society, which is not a paid role but one that I am very proud to have. I also declare that I own two sets of Northumbrian pipes, but neither contains any ivory.

In Committee, sympathy was expressed on all sides about the fact that the sale and hire of a small number of Northumbrian pipes—even a small number of Northumbrian pipes is quite a large proportion of the Northumbrian pipe market—would be caught by the Bill. I was very grateful that the Minister agreed to meet, and got his officials to meet, representatives of the Northumbrian Pipers’ Society to discuss their concerns about the Bill. I am also grateful to the senior official who met Andrew Davison, the chair of the Northumbrian Pipers’ Society. They discussed things in some detail in Newcastle. I know that that was appreciated by members of the piping community.

However, following that consultation and the serious look that Defra undoubtedly gave to the situation of the Northumbrian pipes, the Minister wrote to me and said that, while he recognised that a number of instruments were made after 1975 with ivory repurposed from billiard balls and other ivory items found in antique and bric-à-brac shops, those instruments would not meet the Clause 8 exemption for musical instruments as the ivory would have been worked into its present form after 1975, even if it came from—I understand that it almost always does—an older piece of ivory. That decision by the Government still causes concern among Northumbrian pipers, as the Minister will understand. Therefore, I tabled the amendment in my name to try to deal with this particular issue.

In his letter, the Minister said that although they had looked closely at the particular circumstances of the Northumbrian pipes, he regretted that it did not prove possible to amend the Bill in such a way as would not undermine the premise of the Bill or inadvertently create a significant, exploitable loophole. I agree with the Government’s desire to avoid the creation of a loophole—very much so—so the amendment that I have tabled tries to deal with that particular problem. The amendment states:

“An item that has ivory in it is exempt from the prohibition if it is a musical instrument that has been certified by the Northumbrian Pipers’ Society, or a similar approved organisation, as being a set of, or part of a set of, Northumbrian pipes made before the passing of this Act, and covered by a valid Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) certificate”.


Even if that is not the perfect formulation, something like that is an alteration that could be made to the Bill in order to deal with this specific issue.

I listened carefully to what the noble Lord, Lord Hague, said about exports and I agree completely, but we are not talking here about exports but about a limited UK market, which is being somewhat threatened by what has been proposed. Therefore, it behoves us to try to look for a way through to see if an appropriate amendment can be made.

I know that, all along, the Government have not wanted amendments to the Bill and have wanted speedy passage of it, but as we can see from the Order Paper today, the Government have had to introduce a large number of amendments themselves. Given that the Bill will go back to the House of Commons, it seems to me that it gives us an opportunity to make one or two minor amendments, such as the one that I am proposing, which in no way undermines the principle of the Bill.

We are talking about ivory from old billiard balls and broken umbrella handles; I have seen some of the instruments that have been made with ivory of this kind. I also believe that it is very difficult to remove ivory from most of the Northumbrian pipes that I am talking about, without causing both irreparable harm to the pipes and quite a bit of damage to the ivory itself. We are also talking about small quantities of ivory. If there was a verification process of the kind I am talking about, that would deal with the issue in a way that would be satisfactory to pipers, as well as helping to keep this important regional musical tradition going.

In tabling this amendment, I have had the support of the noble Lords, Lord Vinson and Lord Beith, both of whom live in Northumberland and understand the issue of Northumbrian pipes very thoroughly. Therefore, I hope the Minister will take account of the amendment. I am glad that my noble friends on the Front Bench have a later amendment which talks about a report on the workings of this Bill and what effect it might have on the sale and hire of musical instruments in the UK. I am very grateful for that particular form of words, and hope to support that amendment at a later stage. In the meantime, I hope that the Minister will give careful consideration to the fairly minor and limited nature of the amendment that I am putting forward.

[Lord De Mauley (Con)]

My Lords, I once again declare my interest as chairman of LAPADA, the art and antique dealers’ trade association. The views I express today are my own, but they are informed by my involvement with LAPADA. I will speak to my Amendment 23 in this group, which, like my noble friend Lord Cormack’s, goes to the matter of the 10% de minimis rule. Given some of what I am about to speak of, I would like to say at the outset that my noble friend the Minister is not personally responsible for this Bill. When I had his job at Defra, I was the Minister responsible for the UK’s contribution to efforts to bear down on illegal wildlife trafficking, but by a quirk of restructuring of ministerial responsibilities, he is not. As always, he has conducted himself perfectly correctly through the passage of this Bill, even if I would have loved him to have persuaded his colleagues of its perverseness.

I am very disappointed to report that I have received no response on the points I raised concerning Art Deco artefacts and the UK’s ivory export figures—points which I at least regard as important. A vital element in any decision-making process is that those decisions should be made with as full a knowledge of the facts as is possible in the circumstances. For the last 18 months, profoundly misleading information about the extent of the UK’s role in the international movement of antique and worked ivory objects has been allowed to circulate and be regularly repeated, without being corrected by those who have been in a position to refute, or at least clarify, it.

In the period leading up to the Government’s ivory consultation, the UK’s “official” ivory export figures were employed by several high-profile wildlife organisations to justify their demands for a very restrictive ban on the sale of antique ivory. I refer to the information supplied by Defra to CITES each year. The Born Free Foundation claimed that for the period from 2006 to 2015, the UK’s exports represented 54% of the ivory exports from the entire EU, and that these exports comprised 25,352 ivory items. Indeed, my noble friend the Minister stated in Committee that, between 2005 and 2014, the UK had been responsible for 31% of the ivory exported from the EU for commercial purposes. The Environmental Investigation Agency claimed that the UK is the “world’s largest” ivory exporter. From this language, any sane, trusting person who cares about the welfare of endangered species would be forgiven for imagining that the UK exports thousands of ivory tusks to China as a commodity for carving—something that, if true, would indeed help to fuel the Chinese passion and demand for ivory. I should point out that, in fact, the world’s largest supplier of ivory to the world’s ivory markets is, of course, the continent of Africa.

The EIA announced:

“UK ivory exports are stimulating consumer demand globally, especially in Hong Kong and China, two of the world’s largest markets for both legal and illegal ivory. Even as the Government of China works towards closing its domestic ivory market by the end of 2017, the UK continues to inject a large amount of ivory into China”.


By any reckoning, those are strong and serious allegations, made even more powerful by the language employed and the standing of the body making them.

16:30

It is unsurprising, therefore, that the story was widely taken up by media organisations including the BBC, the Times, the Guardian and the Independent. This, combined with information pushed out by the wildlife NGOs direct to their supporters, formed an important part of the background commentary taken on board by the thousands of wildlife campaigners who responded to the Government’s consultation last autumn. Those were the 70,000 respondents referred to by my noble friend the Minister when he reported at Second Reading that there had been overwhelming support for an ivory ban. In that debate, he referred to some figures—he repeated them in Committee—computed by TRAFFIC, notably that UK exports to China of objects containing ivory numbered 11,000 between 2010 and 2014.

However, my noble friend failed to cite analysis available directly from his own department concerning the numbers and types of ivory objects exported to China. Those who drafted his speech chose instead to quote third-hand information and interpretation by an NGO of the basic data held on the database of an intergovernmental organisation—information which, in turn, had been prepared by his department solely with CITES statistics in mind. I am not questioning the arithmetic of these third parties in generating such seemingly large export figures but I am seriously concerned about both the lack of care with which the numbers have been interpreted and, I have to say, the reticence of the government department from which they were originally sourced to explain them properly. It is particularly surprising if we bear in mind that the Government already had plans to introduce a ban that was to be among the toughest in the world.

Since Committee, the fellow trade body to LAPADA, the British Antique Dealers’ Association, to which I pay tribute, has made a freedom of information request to Defra. Using the data from that response, it has been able to demonstrate that no less than 74% of the published numbers of ivory items granted re-export permits by the UK over the past three calendar years—2015, 2016 and 2017—constituted piano keys. In 2016, Defra data showed that they represented as much as 81%. It does not take many pianos with ivory keys to cause the export figures to be bumped up enormously, because a piano usually incorporates 52 white keys. If one removed ivory piano keys from the export numbers and treated items such as chess sets as a single export, the true picture of the UK’s exports of worked ivory antiques amounts to an average of just 585 worked items a year, plus 58 pianos. In 2016, the official ivory export numbers prepared in the format required by CITES amounted to over 5,700 individual components or items, but those exports actually represented 541 worked ivory items or sets, plus 93 pianos. Removing pianos from the equation, the true number of antique exports that year amounted to less than 10% of the number submitted by the Government to CITES.

In the last few years, the UK’s ivory exports have amounted to just a few dozen items a month. No serious analysis could ever conclude that such low numbers of exported portrait miniatures, inlaid boxes or netsuke could have had an impact on the large ivory markets in places such as Hong Kong, whose registered ivory stockpile is equivalent to more than a million small carvings. The UK does not permit the commercial export of old ivory tusks, but between 2015 and 2017, CITES data shows that other EU countries—the noble Baroness, Lady Jones, referred to this in the previous debate—exported many hundreds of them, particularly to Hong Kong. Since a large old tusk can be fashioned into many small carvings, the tusks exported in 2016 by Belgium alone were equivalent to 20,000 carved items. If we take account of the piano keys issue and the fact that other EU countries have until recently been exporting hundreds of ivory tusks weighing many kilograms each, suggesting that in recent years the UK has been the world’s largest supplier of ivory to the world’s markets is nothing short of misleading. And it is not just misleading as to the numbers; it also wrongly characterises the nature of the exports. These are exports of small numbers of antique objects, often of cultural significance, which happen to incorporate ivory. They are not exports of reworkable tusks. I find it hard to understand why the very department which all along has held the key to this sort of information has failed to provide and use it and thereby properly inform the debate about an ivory ban.

Months have passed during which misleading figures have been employed by those seeking a very tight ban. Antique dealers are angry that full and transparent information was not voluntarily offered by Defra. Goodness knows how many hours of Civil Service time have been devoted to this Bill. Surely someone could have thought to provide a comprehensive analysis of the types of ivory goods being exported, particularly given that, as I understand it, BADA made such a request in its own submission to the consultation last December. If we do not know the quantities and types of different ivory objects being exported, how on earth can we ensure this well-intentioned Bill is properly targeted?

First, the Secretary of State has acknowledged that the UK ivory market has not been directly linked to the trade in recently poached ivory. Secondly, as I have demonstrated, the legal export trade in antiques made from ivory amounts to just a few dozen items a month. Consequently, suggestions that the sale in the UK of genuine antique teapots and Victorian sewing boxes is resulting in large exports to the Far East and helping to glamorise the purchase of ivory there, are just hogwash.

There have also been frequent references by campaigners and in some government literature to the idea that, unless the UK stops the sale of most genuine ivory antiques here, there is the risk that legal antique ivory could be exported into China and may become mixed with illegally sourced ivory, thereby supporting demand for poached ivory. This represents a sloppy and lazy analysis. If we are talking about importing raw ivory tusks into Hong Kong, I would of course agree. We know that the ability of Hong Kong to import raw tusks from other EU countries has opened up a loophole to justify the existence of poached raw tusks kept in the storerooms of workshops there, but that is not what is happening in respect of the UK’s exports. Most of the types of antiques traded in the UK that contain elements of ivory, such as Georgian inlaid boxes or silver fish slices comprising 15% or 20% ivory, are of no interest to ivory buyers located in the demand markets of Hong Kong, Vietnam and China. The other types of ivory objects, such as solid ivory carvings, can indeed be of interest if they are from the Asian culture. But, as I have already explained, their export numbers amount to a handful a month. Why, therefore, do we need to prohibit the sale here of many thousands of genuine historical and cultural objects which are either of no interest to the demand markets or, if they are, are exported in such small quantities, and will be sufficiently highly priced, that they could never be masking the sale of cheap modern bangles and Buddhas?

Thirdly, we should be honest and openly admit that this Bill is really about sending a signal to the world that the UK really cares about the plight of the African elephant. I am happy fully to support this. I welcome the provisions in the Bill that incorporate the inspection and certification of items, particularly solid ivory carvings, because the UK should do its bit to reduce the opportunities for poached ivory to be laundered as old ivory.

In the context of the recent Illegal Wildlife Trade Conference, I am also delighted to hear that the Ivory Alliance 2024 has been set up by Governments to tackle the demand for illicit ivory in those countries that act as key transit and demand markets. I understand that the intention is to introduce ivory bans in those markets. I understand why endeavours such as the alliance mean that it has been necessary for the UK to take, and be seen to take, the lead. This does not, though, mean that the Bill cannot still retain its impact and fulfil its principal aim of helping conserve elephant populations while, at the same time, allowing the sale of items that have neither a direct nor indirect impact on the demand for poached ivory in those demand markets.

The Bill exempts musical instruments containing less than 20% by volume of ivory while for all other items the threshold is 10%. No evidence has been brought forward by anyone to explain the particular features of a Georgian tea caddy containing 12% ivory that render it more likely to be reused or valued for its ivory content than a set of bagpipes with the same ivory content. Neither is in demand in China. The vast majority of historical objects where ivory is not the predominant material are not valued on the basis of their ivory content. This would apply to items containing a slightly higher proportion of ivory than the Government’s proposed 10%, such as 19th century Vizagapatam inlaid boxes. The ivory is incidental and integral in such items and not vulnerable to re-carving. The boxes are therefore not purchased for their ivory content. Besides which, little bits of ivory inlay just one or two millimetres thick have no resale value. No evidence has been put forward by the Government to suggest otherwise.

The same applies to plenty of other objects that comprise less than 20% ivory. Indeed, had this not been the case it would have been hard for the Government to proceed with their 20% threshold for musical instruments. Had the Government possessed evidence that sets of bagpipes are being purchased with a view to removing and re-carving the pipes’ ivory mounts then I am sure they would have been reluctant to opt for a 20% threshold for instruments. Besides which, somebody buying a mixed-material object with the express purpose of removing and reusing its ivory content is certainly not interested in its original purpose, musical or otherwise. They will simply look at the price and the amount of ivory incorporated in it.

No evidence has been brought forward by anyone in any of the debates to suggest that where ivory represents less than 20% of a historical object it contributes to poaching. Furthermore, the proportion of ivory in objects such as wooden boxes inlaid with small slivers of ivory will be extremely difficult to calculate. There are many such boxes hovering around the 10% threshold. Owners will be required to perform complex calculations to determine the proportion of ivory. This is completely unnecessary because, regardless of the proportion of the ivory content, small slivers of inlay have no possible reuse. I have previously restated that I am concerned as to how much time will be devoted by hard-pressed wildlife crime officers to the process of checking these computations.

The House should be made aware that other countries use 20% as a cut-off. For example, in France, items incorporating less than 20% ivory do not need to apply for a sales certificate. Those with more than 20% need government confirmation that they were created before 1947. New York state also employs a cut-off of 20%. The amendment proposed by my noble friend Lord Cormack would change the Clause 7 threshold from 10% to 20% and thus bring consistency to the new law, rendering it fairer and simpler to understand and apply, without in any way fuelling ivory markets in the Far East.

[Lord Inglewood (Non-Afl)]

My Lords, I shall speak to my Amendments 24, 32 and 36. Before so doing, I reiterate my declarations of interest in the register from Committee stage. In particular, I am president of the British Art Market Federation. I also own a number of ivory objects, as defined in the Bill. At least as relevant as that, I begin by saying that I like and am interested in old things. I had the privilege to chair for 10 years the Reviewing Committee on the Export of Works of Art. I am proud that I was appointed by the party opposite and reappointed by the party on this side of the House.

The purpose of my three amendments, which are linked, is simply to remove the requirement for registration of those items containing a de minimis amount of ivory, as described in Clause 7, prior to any possible sale. My arguments seem, in general terms, rather aligned with those of the noble Baroness, Lady Quin, and those concerned about musical instruments. The fundamental point is that my amendments entail no change to the substantive law being proposed, nor to the fundamental structure of the scheme around which the Bill is made.

We all know, as others have said, that we all support the underlying purpose of the Bill, which is to stop elephants being slaughtered for their tusks. The means that have been deployed to bring that about is to stamp on and out the trade in ivory that endangers elephants, graphically and appropriately known as bloody tusks.

The point behind my amendment is simple. The category of items I am looking at has no impact on the trade in ivory to the Far East that is endangering elephants. This point is recognised on all sides. The Government have spelled that out in the Bill’s Explanatory Notes. The conservation movement has specifically said the same, for example in the World Wildlife Fund’s briefing on the Bill. TRAFFIC, probably the most respected collector and interpreter of data about the ivory trade, as reported in the Art Newspaper, agrees. The art world—I draw your Lordships’ attention to a couple of articles by that respected authority Anna Somers Cocks in the Art Newspaper over the summer—is absolutely clear that these items in no way have anything to do with the demand in the east for ivory. Rather, we are talking about—as has been mentioned—inlays, shards and veneers: thin slivers of ivory, not the kind of thing that the noble Lord, Lord Hague, saw at a London airport. The Far Eastern market likes chunks and lumps of ivory that can be carved. The kind of things that I am concerned about cannot be, because they are physically no longer capable of being dealt with in that way.

16:45

It is very relevant that the general approach adopted in the Bill is paralleled elsewhere in the world in this thoroughly commendable and good attempt to outlaw elephant poaching. This pattern invariably includes a de minimis exemption, defined slightly differently from jurisdiction to jurisdiction. As far as I have been able to establish, however, nowhere else on earth is there a requirement to register these de minimis items. This is an example of British exceptionalism.

The category that I am concerned about includes the most numerous items: there are thousands, or possibly tens or even hundreds of thousands, of things in this country that fall within the definition of Clause 7. Many of these have already been mentioned, including brown furniture and tropical hardwood. Most, but not all, of these things are of relatively low value—£150 or less. I do not say that nothing in this category is expensive, but the vast bulk of these items are not, in any way, at the top end of the antiques world’s interest. Finally, while these things are not necessarily identical, they are all very similar, because the vast majority were made in different places across the country by skilled craftsmen from pattern books.

At the risk of stating the very obvious, registration involves two things: first, you have pay a fee. Secondly, you have to actually register. What would be involved, as a result of the Bill, is quite time-consuming and not necessarily completely straightforward. If you want someone else to register for you, you will invariably have to pay for it. The Government have assured us that the fee payable will not be high, but they have also said that it will have to be in line with the HM Treasury guidelines on cost recovery. Given that the vast majority of possible registrations do not come from this category, the conclusion that I have rather reluctantly come to is that the real reason for introducing the requirement to register is not to protect elephants in Africa and Asia but to use it as a cash cow to bankroll the registration system in this country.

In this context, the definition of “high” depends on the value of the item in question, regardless of the personal circumstances of its owner at the time. As I have said, we are not talking about very expensive things. Secondly, in addition to the fee there is the cost of completing the form, which may involve someone else doing it, thereby incurring an additional charge. How might this work? Somebody gave me this example. If you live in London and your surviving parent, at the other end of England, dies, you may take from their house the odd piece of furniture or whatnot. Most people, however, live in quite small houses and would ask the local auctioneer to clear out their parent’s house. The auctioneer would no doubt do it but would say, “We cannot sell anything that has a bit of ivory in it unless we register it, and we will charge you for that”. By the time you have concluded that you will not get much for the contents, and that you will have to pay the auctioneer’s commission, the registration fee and the cost of the person carrying it out for you a couple of hundred miles away, you will ask yourself whether much is left over. Given that things do not always sell at auction, before you know it this whole process will cost more than the value of the item in question. That is a pretty strange state of affairs.

[Viscount Hailsham (Con)]

If that happens, there is a real risk that the artefact in question will be destroyed.

[Lord Inglewood]

It is as the noble Viscount rightly says. But some will then say, as mentioned in Committee, that it is not necessary: “Selling it doesn’t matter—give it away to a charity shop”. What is a charity shop to do with it? It will want to sell it to somebody else, so it will be caught by the requirements for prior legislation. The only way that I can see this chain of argument evolving is that we may end up with refugees from other parts of the world surrounded by battered Georgian furniture, which seems a pretty surreal destination.

As the noble Viscount, Lord Hailsham, said, the likely result of all this is that a significant quantity of all the items—which, let us not forget, have real cultural and historical significance for this country—will end up on the tip. In addition, let us not forget that going to the tip along with the ivory will be a lot of tropical hardwoods such as mahogany, rosewood and so on. For a country that cares about these things and tells the world how much they matter, as we do, to legislate and consign them to the tip in Britain seems ludicrous, and a sad end to the ivory and mahogany involved. If I might misquote John Betjeman:

“Goodbye to old things. We who loved you are sorry

They’ve carted you off by refuseman’s lorry”.

By no stretch of the imagination could these things harm anyone or anything. In a free country one should, as a matter of principle, be able to sell freely items of that character. You should not need a state commissar’s authorisation to do so. From what I have heard, the Government’s case for this registration is illogical, not based on the evidence, completely disproportionate, philistine and a gratuitously destructive proposal. As a consequence, I am strongly opposed to it.

[The Duke of Wellington (Con)]

My Lords, I shall speak to Amendment 22 but, before doing so, I should like to support the noble Baroness, Lady Quin. I knew little about Northumbrian pipes until she spoke in Committee but her amendment seems entirely reasonable and I really hope that the Government will support it.

As I did in Committee, I declare an interest in that my family’s collection of works of art includes many items containing ivory but, as I also said in Committee, this is really a non-interest as I have no interest whatever in selling any of those items. However, the main point of the Bill, which I think we all support, is to try to protect elephants. I therefore completely support it and am very persuaded by what the noble Lord, Lord Hague, said in respect of Amendment 1. I agree with him that to exclude exports from the Bill would undermine some of its objectives and am very pleased that the noble Lord, Lord Cormack, withdrew that amendment.

However, I say to the Government that some of the restrictions on the exemptions are too restrictive. Amendment 22, which I am speaking to, has great substance and we should support it. After all, the Government have accepted the principle that portrait miniatures should be exempt. As we all know, they are painted on a tiny sliver of ivory. In no way does the value of a portrait miniature consist of its ivory content; it is in the quality of the painting or the identity of the sitter. Therefore, one really cannot pretend that it is a significant factor that so many portrait miniatures are painted on ivory.

The Government, therefore, have rightly accepted this principle. However, it is so surprising that they then restrict this to miniatures with an area of 320 square centimetres. I think I remember the noble Lord, Lord Gardiner, in replying in Committee, saying that this restriction would capture 90% to 95% of miniatures. I have to say to the Government that if you accept the principle of exempting miniatures but wish to capture only 90% to 95%, why not exempt all portrait miniatures? That seems logical and I cannot imagine that it creates a loophole that would give any concern to all of us who support this Bill.

That is really the main thrust of what I wanted to say. I really hope the Government will think again on the matter. I am minded to support a number of other amendments about percentage of content and other matters, which seem to make the Bill a little more flexible. It will be easier to establish that an object is exempt if we do not define the percentage of ivory content too narrowly. Therefore, I hope some of these other amendments will be put to the vote.

[Baroness Neville-Rolfe (Con)]

My Lords, like others I am in favour of conservation, especially of endangered species. I noted with satisfaction the introduction of this Bill, intended to help with the conservation of elephants. Like most Members of this House I find elephants fascinating. They are magnificent creatures that have impacted on human history in many varied ways—by accompanying Hannibal, by logging in the Asian jungle and by delighting us in literature such as Kipling’s Jungle Book and in Disney’s blockbuster.

Many other noble Lords are much more expert in this area than I am so initially, I did not seek to contribute, for instance at Second Reading. However, I was approached by an acquaintance who is an antiques auctioneer in my native West Country. He complained that the detailed arrangements proposed in the Bill—the subject of this group of amendments—would have a significantly adverse effect not only on business but on many who enjoy artefacts, often made with small amounts of ivory. Comparable conservation benefits could be achieved by less onerous arrangements.

I examined the detail of the Bill about which complaints were being made. I am afraid that I was disappointed to find that his claim was in essence true. As the Bill stands, many objects which have given pleasure to many people sometimes over many decades or, indeed, centuries will be rendered valueless and unsaleable. There is every chance that as a consequence, many will simply be dumped—the logic of my noble friend Lord Inglewood’s example. This is appalling, especially since the conservation benefits for elephants from such actions when the Bill comes into effect in 2019 will be vanishingly small. Claims to the contrary are, if I am polite, unconvincing.

In the impact assessment of 23 May there appears to be no estimate of the disposal cost of dumped items as over time, millions of low-value products are sent to landfill or to be burned. It is indeed one of the least impressive impact assessments I have seen. For example, there is an assumption that the many small antique businesses and market stallholders will spend only half an hour each on familiarising themselves with the new rules, and at an hourly rate of £11.34, that would not pay for the time of a lawyer or a responsible business owner or manager seeking to address the minutiae of the new rules and registration process. My experience of business suggests that the cost of compliance will be 10 or 20 times that.

17:00

Impact assessments are meant to be about avoiding needless and verified cost, not an opportunity for uncosted and contentious statements such as that in paragraph 62:

“Benefits to UK citizens whose welfare will be enhanced from the knowledge that the UK is playing its part to bring an end to the illegal trade in ivory that is threatening to bring extinction to African elephants”.

That does not sit well besides the news in this week’s Sunday Times that export numbers from the UK are actually quite small and more than half seem to be piano keys individually catalogued. My noble friend Lord De Mauley suggested that the figure is higher than that. I say in passing that the ivory costings are not a good precursor to the impact assessments for the new legislation and SIs that we are going to have post Brexit.

In my quest to support the Minister’s policy, I have tried, but failed, to find any proper peer-reviewed academic articles proving a link between these modest UK sales and the onerous new controls, despite the creditable interest in this whole subject of so many charities and others that want to do the right thing. Indeed the one peer-reviewed article the Library found for me suggested that a failure to enforce CITES and other ivory legislation and the absence of effective anti-poaching controls in the elephants’ homelands are at the heart of the problem. More resources for both would yield substantial dividends.

I have made inquiries of the government machine to see whether the measured representations already made by some noble Lords in Committee might have produced some amelioration in the technical provisions of this Bill on Report. However, I was not encouraged, hence my support today for Amendments 23, 24, 32 and 36 in this group and Amendments 3 and 4 in the next group. They would all to some extent mitigate the adverse effects to which I have referred. They would represent a welcome move towards common sense, which I always like to apply to legislation that comes before this House. I urge the Minister to accept them.

[Viscount Hailsham (Con)]

My Lords, I rise to speak to my noble friend Lord Cormack’s Amendment 2, but what I have to say is in support of all the amendments in this group, including that tabled by the noble Baroness, Lady Quin, on Northumbrian pipes. Sharp-eyed noble Lords will have noticed that I put my name to a number of these amendments and then withdrew it. That was not because of lack of support but because I thought I was not going to be here performing professional duties, and I thought it discourteous to your Lordships’ House to sign amendments and not be here. That depends on noble Lords’ point of view.

I think everyone who has spoken in this debate and all the other debates about the Ivory Bill endorses the principle of trying to prevent elephant poaching—it is a dreadful thing—and thinks that we need to do all we can to stop it. As a matter of fact, robust action against poaching is probably the most effective way, but an effective, proportionate and reasonable way of disrupting the trade is also appropriate. That is the purpose of this Bill, but we have to apply the test of proportionality to identify whether the actions contemplated by the Bill are proportionate in their consequences both ways. There are two very serious disadvantages associated with what this Bill is about—I shall come to the amendment specifically.

The first, which my noble friend Lord Cormack dealt with quite correctly and at some length, is the interference with private property. This Bill is flagrant interference with private property, and my noble friend Lord Inglewood takes the same view. At the same time, there will inevitably be a consequential loss and destruction of the artefacts. The description of trying to sell a low-cost bit of brown furniture—although of quite interesting historical value—and it proving impossible will inevitably lead to the skip.

There is therefore a cost in all of this: a cost to principle and a cost to artefacts. That takes me on to the question: what will this Bill achieve in stopping the elephant poaching or trade? I share the view of my noble friend Lord De Mauley: I suspect very little. What this is actually about is sending a message, but messages go unheeded and unheard, and I am sure that this one will. It is about making gestures, but often these gestures should not be made. I remember the Dangerous Dogs Bill. I remember unit fines in the magistrates’ court. These were gestures that should never have been made and messages that should never have been sent.

Against that background, I turn to the way of addressing what has been identified. This Bill is going to pass, and I agree with my noble friend the Duke of Wellington that it should pass. However, there are defects within it, and the defects are being addressed by looking at the exemptions. This House should be trying to enlarge the exemptions and seeking to put in further provisos. It is in that spirit that I propose to support probably all the amendments in respect of which your Lordships’ opinion is sought, and I hope there will be quite a few Divisions. I think, too, however—and this will be to the great relief of your Lordships’ House—that the views I have expressed, which are general to the amendments in this group, actually apply to all the other amendments and will not require any repetition from me.

[Lord Carrington of Fulham]

My Lords, I rise to speak to my Amendment 25, which is a very specific amendment and rather esoteric, but I will come on to that in a moment because I really just wanted to register my agreement with the previous speakers that this Bill is far too restrictive. We are banning ivory items and ivory inlays and items containing ivory that have no possibility of being recarved in the Far East for sale on to that market and no prospect of having any value in themselves. An ivory carver sitting in Vietnam, for instance, would have no interest in carving a sliver of ivory to go into a false 18th century box. It would just make no sense at all and it would be nonsense. We ought to have a sense of proportion about what we are trying to do in this Bill.

What we are trying to do is to stop large lumps of ivory being exported to countries where they will be recarved and converted into the items that their populations think are attractive and for which they will pay good money. This is not an emotional business; it is purely a financial business. If we ban the export of large items of ivory, or their sale in this country—because they will be smuggled out of this country eventually, just as rhino horns are smuggled out of here, which is a similar problem—we will achieve what we can achieve in respect of saving the African elephant using the antique ivory trade.

As has been said, the protection of the African elephant is not down to what is sold at Christie’s in King Street in London. It is down to whether we can finance the actions against the poachers, whether we can train the police and protection officers in those countries, whether we can arm them properly, and whether we can ensure that the supply routes where the ivory is taken out of the country are shut down. That is what it is really all about. It is not about this gesture politics Bill. That is what it is about, and that is what we should be concentrating on.

I add something that has not been mentioned because it is not politically correct to do so. A lot of ivory is not obtained by rogue poachers; it is done with the connivance of people who are very powerful in the countries where the elephants are, and they make a lot of money out of it.

My noble friend the Minister assures me that several of the countries which have large numbers of elephants are in favour of us banning the sale of ivory. I am perhaps too cynical. Perhaps I have lived too long a life dealing with rogues and rascals both in politics and in business, but if I were trying to make money out of selling ivory, I would try to shut down part of the market which I thought conceivably—however misguidedly—could be competition. In other words, I would of course say, “Ban the ivory market. Ban, ban, ban”, so that I can kill the elephants in the savannah and make money by selling those tusks to Hong Kong.

I should apologise, because perhaps I should have made that speech during Committee but, as some noble Lords will know, I was under the depredations of various surgeons then, so I apologise for not making it then.

My Amendment 25 is rather esoteric. It is even more esoteric than the Northumbrian pipes of the noble Baroness, Lady Quin. Under the Bill, an item which is detachable and can stand alone is an individual item and is therefore treated as such. This is not usually important, but it is very important if you are dealing with scientific instruments. The way that 18th-century or early 19th-century mercury barometers are regulated is by a little knob that pulls out. It is detachable and independent of the barometer itself. You would use it to adjust the vernier on the scale to measure the height of the mercury and to put pressure on the mercury reservoir at the bottom of the barometer, when you regulated the barometer to show the correct barometric pressure, to make sure that the mercury was at the right level. So it has two functions.

My amendment is specifically designed to say that this knob should be treated as part of the barometer, not as a separate item, because these knobs were almost always an ivory disc—not dissimilar, I have to say, to the discs used in so many other things, such as portrait miniatures, tickets for theatres, and so on, which have no commercial value for recarving. They have commercial value because there are artistic elements to them, but the knob has no commercial value. If I tell your Lordships that they are 2.54 centimetres in diameter, those of you with a scientific bent will know that that is an inch. They are of a maximum of an inch in diameter, very thin and on a metal shank. All I am trying to do by the amendment is to ensure that antique dealers do not have to throw away the integral knob when they sell the barometer.

[The Earl of Clancarty]

My Lords, I apologise for not having spoken at Second Reading, so I shall speak very briefly. I fully support Amendment 2, tabled by the noble Lord, Lord Cormack, as well as the other amendments in the group. I believe very strongly in the protection of endangered species, but I also believe strongly in the protection of cultural heritage. The principles I hold on culture are no different from those I held on a previous Bill that passed through this House concerning the protection of cultural property in time of war. As it stands, this is a lop-sided Bill. We need to prevent the destruction of our cultural heritage, which, for some objects, is a far more likely outcome than the Minister thinks, unless the exemptions are allowed.

17:15

[Baroness Bakewell of Hardington Mandeville (LD)]

My Lords, I rise briefly to speak against this group of amendments, and I shall not repeat arguments made at length at Second Reading and in Committee. I have tremendous respect for the noble Lord, Lord De Mauley, and his obvious passion for antique ivory and for others who have spoken in this debate, but I fear that I am not persuaded by their arguments.

It is essential in ensuring the success of the Bill when it passes into law that the restrictions and exemptions are very limited. To increase the exemptions to 20% for furniture and other objects and to 30% for musical instruments and to have unlimited size on pre-1918 portrait miniatures risks driving a coach and horses through the Bill. Any widening of the criteria will increase the market for ivory objects, weakening the entire purpose of the Bill by allowing trade in many additional items containing significant amounts of ivory. Similarly, moving away from the de minimis cut-off should be rejected. Registration of ivory-bearing items is fundamental to ensuring that items sold commercially meet the criteria set out in the Bill.

Having listened to the arguments made in Committee and this afternoon, I acknowledge that there is no meeting of minds over the rationale for the measures in the Bill. The Government and those of us who support the Bill believe that these restrictive measures will help to protect the elephant. Those who oppose it do not believe that this will happen and are therefore not prepared to support these measures. This is regrettable in the extreme. Everything that we know about CITES supports the Government’s Bill. We do not support making the Bill more flexible in terms of exceptions. I urge your Lordships to reject this group of amendments.

[Lord Vinson (Con)]

My Lords, if one passes a Bill that defies common sense, one is inviting the law to be broken. Most people will never have heard of the Ivory Bill and will just carry on giving, swapping or doing what they do. However, if the Bill is drafted in such an overly restrictive manner, as previous speakers have illustrated so well, it will invite people to be dishonest. This amendment is important because it enables common sense to be brought back into the whole equation.

[Baroness Flather (CB)]

My Lords, the more difficult it is to register, the more difficult it is to decide what needs to be registered and the more difficult it will be to maintain the register. You cannot watch everybody doing everything. It is very important that matters are simple and can be taken on board by everybody. When I was 12 years old, my father had my portrait miniature painted on ivory. I hope it will not be caught by the Bill.

[Lord Marlesford (Con)]

My Lords, I agree with the Bill and its intentions, but it has failed the test of proportionality in many respects. I would not have supported my noble friend Lord Cormack’s amendment, because I thought it was too wide, but I support Amendment 24, in the name of my noble friend Lord Inglewood, on the need for de minimis registration. To introduce bureaucracy of that sort is quite crazy. Some of us have been fighting for years to prevent intrusion into people’s houses. I am glad to say that that has been reduced with the help of the Law Lords and happens much less now.

However, something like this is absurd. I remind your Lordships that in 1966, when there was a Labour Government and an economic crisis—they went together at that time—they introduced a statutory instrument requiring anybody who owned more than three gold coins to hand them in, but it was tokenism. People did not do it, of course. I remember various questions being asked about how many convictions there had been, and how many coins had been handed in. The answer was none.

Unenforceable law is bad law and we really must not encourage it. Some of the provisions of the Bill are so OTT that we must stand up to them, particularly as they have nothing intrinsically to do with the Bill. I support my noble friend Lord Inglewood’s amendment.

[Lord Grantchester (Lab)]

My Lords, my noble friend Lady Quin has spoken eloquently on the effect of the Bill on future generations of Northumbrian pipers. Like her, we cherish musical tradition and would not wish the music played by pipers and enjoyed to cease. I pay tribute to the department for organising a visit by a member of its team to assess the instrument and thank her for meeting the society. However, as has been reported back to the department, some of the pipes have problems under the Bill. It is my hope that the Northumbrian Pipers’ Society itself can take on a role in seeing that instruments are recycled to new pipers through bequests and other measures, and that new instruments avoid the provisions of the Bill. It would be difficult to create a new exemption for Northumbrian pipes. As the House will later see, we have tabled Amendment 78 to report on the effects of the Bill on musical instruments more generally. Evidence provided through the consultation, including from the Musicians’ Union, showed that the vast majority of commonly played and traded instruments, including violins, pianos and bagpipes, comprise less than 20% ivory.

Turning to Amendment 2 and others in this group, we do not support what they wish to achieve, which amounts to a reduction in the provisions and effectiveness of the Bill, which is a commitment of both parties to introduce a ban on the sale of ivory. The Bill includes limited exemptions to the ivory trade that are sufficiently narrow to ensure that they will not contribute to the poaching of elephants. The carefully crafted clauses represent the culmination of a productive collaboration between NGOs, law enforcement, museums, art dealers and musicians. It is Labour’s view that the Bill strikes the right balance. I call on all the proposers of amendments in this group to withdraw or not to move their amendments so that future generations can enjoy living in a world with elephants.

The Illegal Wildlife Trade Conference, held earlier this month in London, underlined the importance of the UK putting in place a near-total ban on UK ivory sales as soon as possible. This legislation builds on the resolution agreed at the 2016 Conference of the Parties to CITES to phase out domestic ivory markets and will give the UK greater credibility in continuing to press other key countries in south-east Asia with a history of ivory trade to commit to closing their markets and to implementing strong domestic ivory bans. China closed its ivory market in 2017. Ivory poaching is now the fourth-largest crime sector after arms, drugs and trafficking. I remind your Lordships’ House that 20,000 elephants are killed each year, or some 55 a day.

I turn to Amendment 24 in the name of the noble Lord, Lord Inglewood, which seeks to remove registration as a precondition of allowed sales of de minimis objects. The noble Lord raised concerns about proportionality and others have followed with remarks on both the registration fee and administration involved, which would necessitate photographing, measuring and examining the object for any distinguishing features before uploading the information to a database. I am sure the noble Lord would accept that photographing, measuring and examining the object for any distinguishing features would be part of any normal process of listing an item for sale at an auction house or on an online marketplace. It is our view that registration is necessary for enforcement. The proposed system places a small administrative responsibility and a small financial cost on the seller, who, in turn, will gain from the exemption to the ban on dealing in ivory. Crucially, by registering an item through the system, the applicant will be confirming that, to the best of their knowledge, all the information provided is correct and the item therefore meets the exemption. The APHA, the regulator and the police will have access to the registration system to enable them to carry out any enforcement and monitoring action necessary. The APHA will also carry out spot checks on items registered to check for accuracy and compliance. This is also a key and necessary part of the regulations.

Amendment 22 in the name of the noble Lord, Lord Cormack, would remove the size criterion for portrait miniature exemptions. The noble Lord will recall from our previous consideration of this issue that the Government added the category of portrait miniatures to the list of exemptions in Committee in the other place. Emma Rutherford, a representative of Philip Mould & Co, an expert on portrait miniatures, gave evidence on how the exemption for portrait miniatures could be refined to add a size limit, and agreed that the suggestion of six inches by eight inches would be sensible. This is 320 square centimetres, which would allow between 90% and 95% to be exempt. The Government have moved considerably on many of these features and I therefore call on the House to reject these amendments.

[Lord Gardiner of Kimble]

My Lords, these amendments relate to the scope of the ban and, in particular, some of the exemptions to it. I emphasise how uncomfortable I am in having to address this to a number of my noble friends, but I do so with great sincerity. The department has undertaken extensive consultation with a broad range of stakeholders, including the music sector, the antiques sectors and all the sectors engaged, as well as NGOs interested in conservation, to shape the Bill and, in particular, to establish a narrow and carefully defined set of exemptions.

I was struck by what my noble friend Lord Hailsham said—he used the word “proportionate”. The architecture of this proportionate approach has been carefully designed to balance the need to close our domestic markets with consideration of the interests of those who currently own certain items of ivory and the obligation to protect our cultural heritage. I think that my noble friend Lord De Mauley was in his position at Defra when my party had a manifesto pledge, in 2015, for a total ban. We have considered with the consultation that there are proportionate ways of approaching what is an imperative: to do everything that we can to stop the incidental and direct pressure on the elephants on this planet. That is why I will cut to the chase and say that the Government cannot support the amendments in this group. But I would like this opportunity, as is only reasonable, to set out why in more detail.

Amendment 2, tabled by my noble friend Lord Cormack, serves to alter the definition of ivory in Clause 1 of the Bill. This amendment would mean that any item with less than 20% ivory or any musical instrument with less than 30% ivory would be excluded from the ban, meaning that it would remain legal to deal in such items. Indeed, they would be within the scope of the rest of the Bill. The amendment does not state whether this threshold refers to volume, weight or another measurement. There is no backstop date referred to. This amendment would mean that items of any age with less than 20% ivory or any musical instrument with less than 30% ivory would not be affected by the ban and would only be subject to existing CITES regulations. This amendment would greatly undermine the scope and purpose of the Bill.

My noble friend Lord Cormack’s Amendment 22 refers to the exemption for pre-1918 portrait miniatures. The amendment would remove the size qualification, excluding the frame, from the exemption. We had this discussion in Committee, and my noble friend the Duke of Wellington referred to his own personal and rather considerably sized portrait miniature, which he rightly said he had no intention of dealing or selling. As the noble Lord, Lord Grantchester, said, this size qualification was developed from evidence provided during a House of Commons evidence session by a portrait miniatures expert. This evidence suggests that the size qualification, as we have heard, would include in the exemption 90% to 95% of pre-1918 portrait miniatures, which is the majority. Any item that falls outside this size qualification may also be exempt as an item of outstanding artistic, cultural or historical value and importance if it meets the criteria, which will be set out in regulations. The Bill makes clear that a frame would not be included in the calculation of the surface area of a portrait miniature. As I said, we will be developing detailed guidance on how to measure surface area, in consultation with relevant stakeholders.

17:30

Amendments 23 and 26 would raise the thresholds for the de minimis exemption, which is for pre-1947 items with low ivory content, and for the pre-1975 musical instruments exemption respectively. The thresholds for these exemptions—10% for de minimis and 20% for musical instruments—were established in close consultation with industry experts and wider stakeholders. We believe that they demonstrate a proportionate approach and retain the integrity of the Bill’s overarching purpose. We must not lose sight of the importance of this purpose: to close our ivory markets and to help to ensure the future of a magnificent species. To broaden the scope of these exemptions would serve to weaken the ban, undermine the carefully balanced architecture of our exemptions package and threaten the very purpose of this Bill.

The 10% de minimis threshold will allow dealing to continue in items such as inlaid furniture but will prevent dealing in other items that contain larger amounts of ivory. Information on how volume should be assessed will be outlined in guidance. When registering an item, the owner will conduct a self-assessment on the volume of ivory in their item in line with this guidance, meaning that the item will not be damaged. There are parts of the world that interpret the de minimis threshold differently. For instance, in California, a 5% threshold is in place. I can tell the noble Lord, Lord Inglewood, that in New York state a permit is also required for sale. I will find out whether that is the case in other parts of the United States or the world.

Through our consultation, and evidence from the Music Industries Association heard during the Commons Committee stage, we are assured that the majority of commonly played and traded musical instruments and accessories contain less than 20% of ivory, which is our threshold for this exemption.

Amendments 24, 32, 35 and 36, tabled by my noble friend Lord Cormack and the noble Lord, Lord Inglewood, deal with the requirement to register items under the de minimis exemption prior to engaging in commercial activity. The effect of these amendments would be to remove the need for items meeting this criterion to be registered by the owner prior to their sale or hire. As I have explained, the de minimis exemption is one of five separate categories of exemption to an otherwise total ban on sales. As such, it is imperative that it is treated in the same way as the other categories in order not to undermine the integrity of either the Bill or the compliance process.

The compliance process is, of course, also the key means of providing reassurance to purchasers that they, too, are acting in compliance with the ban. A person who purchases an item that has not been registered may also be found to be in breach of the ban and liable to sanction. A responsible purchaser should therefore inspect the registration document, and may also cross-reference it against the entry in the online database, before committing to the purchase.

I very much understand the point raised by the noble Lord, Lord Inglewood, and the noble Baroness, Lady Flather. However, the Government consider that an online self-registration system represents the most proportionate means of ensuring compliance. We will put in place an efficient, easy-to-use and non-bureaucratic process designed to meet the needs of all users. It will place a small administrative responsibility and a small financial cost on the seller—the person who will benefit financially from the exemption. We recognise that potentially a substantial number of items would fall under this exemption and that there may be cases where an individual has a high volume of similar items requiring registration. That is why we are developing this system in close consultation with a variety of stakeholders who will use it, including owners and dealers of pre-1947 items with low ivory content, to make sure that it is able to meet their specific needs as far as possible.

The online self-registration system will encourage people to engage actively with the new measures by confirming that their item does indeed meet the exemption. This registration process will be important for both buyers and sellers, as it will provide assurance to both parties that the commercial exchange taking place is fully compliant with the law. People purchasing ivory items that are exempt from the ban and have been correctly registered will be secure in the knowledge that their purchase is legal. The online self-registration process will be quick and easy to use. I emphasise that there is no intention for the process to be burdensome and bureaucratic for those wishing to engage in legal activities in ivory. There will be provision for those unable to access the online system to register their items through offline means. The noble Lord, Lord Inglewood, used the words “cash cow”. I should say that a small fee will be charged, but again there is no intention that this will be prohibitive to users. We believe that this is indeed a small cost when considering the critical objectives that this compliance process will help us to achieve.

[Lord De Mauley]

I am very grateful to my noble friend. Can he give us an indication of what the level will be?

[Lord Gardiner of Kimble]

No, my Lords, I am not able to give an exact sum.

[Lord Cormack]

An approximation.

[Lord Gardiner of Kimble]

No, I am not going to give an approximation. I used the words “a small fee”, and it will be considered in what would be the normal manner in which fees are considered. I have put on record that it will be a small fee. It is not intended to be burdensome or bureaucratic. I emphasise—given that we wish to reduce demand for ivory, as it is no longer a desired object around the world because of the continuing slaughter of elephants—that we need to do everything we can. That is why we want to protect sellers and buyers in those exempt areas which we have agreed in the Bill and to give them an assurance, given the fact that around the world we are seeing the closure of domestic markets of ivory, that this protects future sellers and buyers of the items within our exemption package.

I believe, and the Government believe, that the online self-registration system will have a range of benefits. It will provide assurance to those dealing in ivory through an exemption that they are complying with the law. It will also be an essential tool in identifying breaches of the ban. Enforcement officers will be able to use material submitted to the online system to monitor compliance and to support investigation into potential offences.

Of course, every individual has the right to own and enjoy items made of or with ivory and to bequeath and inherit those items without the need for registration. Indeed, many of these items will have sentimental value. It is only in the case of selling, hiring or using an item for commercial gain that registration will be required, which we believe is a proportionate response. We must ensure that robust measures are in place to enforce the Bill. Therefore, it is critical that all exempt items are subject to registration to support the rationale of the Bill but also, as I said, to support the interests of the sellers and buyers of exempt ivory.

Amendment 25, tabled by my noble friend Lord Carrington, seeks to clarify, with reference to the de minimis exemption, what is to be considered integral to the piece. Ivory must be,

“integral to the item’s design or function and contemporaneous with the item”.

I preface my remarks by saying that I am very pleased to see my noble friend returned to his place following his time in hospital. We have given this issue very careful consideration, and I hope that my forthcoming explanation will provide him with reassurance as to the intent of this exemption.

My noble friend correctly identifies that the ivory content of an item meeting this exemption must be incorporated into the piece at the time of its manufacture and to constitute an irremovable aspect of the item’s form and function. The ivory cannot, of course, have been added at a later date or be superfluous to the design and/or function of the item. As drafted, the Bill takes account of these concerns. Clause 7 provides that the ivory must be integral to the item, and may not be removed without difficulty or without damaging the item. Most obviously, that would apply in the case of inlaid furniture. But it would also apply where the ivory element were part of a detachable part of the item that is itself integral to the piece. If I may explain further, I would point to a teapot or serving dish with an ivory handle to the lid. The lid is clearly integral and contemporaneous to the teapot or serving dish, and the ivory handle is integral to the lid. Therefore, providing that the total volume of ivory in the item is less than 10%, it would meet the de minimis criteria.

There are other types of items, such as barometers and maybe small sewing boxes, for which the ivory content may be an entirely separate element, such as a knob on a barometer or the lid of a sewing box. These elements were clearly designed to be removable yet are integral to their design and purpose. For instance, without the knob—my noble friend Lord De Mauley raised this in Committee and my noble friend Lord Carrington raised it today—one may not set the mercury level on a barometer, and without the lid, assuming that it is less than 10% of the volume of the whole piece, the item could not function as a box. We will set out in guidance not only what I have described as examples but more fully the points that my noble friends have raised.

Amendment 28, tabled by the noble Baroness, Lady Quin, would add a new clause after Clause 8 to exempt any,

“musical instrument that has been certified by the Northumbrian Pipers’ Society, or a similar approved organisation, as being a set of, or part of a set of, Northumbrian pipes made before the passing of this Act, and covered by a valid … (CITES) certificate”.

In Committee, I gave an undertaking that my officials would meet the representatives of the Northumbrian Pipers’ Society, and a very informative meeting was held.

As the noble Baroness knows, I am sympathetic to the Northumbrian piping community and the traditions. However, her amendment would constitute a widening of this exemption. Interestingly, my official identified that most pipes contain less than 20% ivory by volume, which was the initial concern in Committee. It then became more apparent during the detailed consideration —for which I am most grateful to the Northumbrian Pipers’ Society—that some Northumbrian pipes were made after 1975 with ivory repurposed from other items, and therefore will not be covered by the musical instruments exemption. The noble Baroness’s amendment would, however, allow Northumbrian pipes made with ivory right up until this year to be exempt from the sales ban. We believe that that would create an unjustifiably broad exemption for one instrument over all others. I should emphasise that those instruments not covered by the exemption will still be able to be played and enjoyed, and that the ban will not affect the ability to pass on or donate those instruments for future generations.

I apologise to noble Lords for taking some time, but I want to emphasise that the Government have embarked on considerable consultation in bringing forward the exemptions package. We remain of the view that they are reasonable. Phrases such as “gesture politics” do not chime with me. I attended the Illegal Wildlife Trade Conference, as I said on an earlier group of amendments. The word that came from that group, which represented over 80 countries, was “leadership”. It was about the leadership that this country is taking. That point was endorsed by five heads of African states. I hope that my noble friend Lord Carrington will forgive me, but my impression from meeting people at that conference was that they were not cynical.

[Noble Lords]

Oh!

[Lord Gardiner of Kimble]

They were not cynical. They were men and women from countries that are the most dramatically affected by the slaughter of elephants. These are the vulnerable villages and communities of Africa that are losing one of the most important economic engines for their prosperity. If any of those people had heard some of the comments this afternoon about gesture politics and cynicism, they might have despaired of this country. That is not the purpose of this legislation. Its purpose is to ensure that this country does everything possible—everything—to play our part in saving one of the planet’s most important and iconic animals. I have to say—and I will close with this—that in the end, whatever points my noble friends have made this afternoon, the interests and importance of these animals must always come before those of privately owned objects.

17:45

[Lord Cormack]

My Lords, I do not think there is anyone in your Lordships’ House who would find a bad word to say about my noble friend Lord Gardiner. He is rightly popular in all parts of the House; he is assiduous, diligent and personable. In every sense, he is someone we can all like. However, he has a touching faith in certain people from certain countries, and a touching faith in his ability to create an unbureaucratic system. I beg to differ. I do not want to make a long speech; I made a very short one in moving this amendment, and my noble friend has made a fairly considerable response—for which we are grateful, of course. The fact of the matter is that he fails to understand that you can be passionate about preserving elephants—as I think every Member of your Lordships’ House is—but at the same time see that this Bill is riddled with anomaly, and has many faults.

As for miniatures, why let 5% or 10% “get away”? Why not have a clause that covers and preserves all miniatures? And why have this obligation to register everything? It will create a great bureaucracy. No elephant in 2020—or 2019, when this Bill comes into force—will be saved by the insistence on registering a chest of drawers with ivory escutcheons made in 1790 or 1810. No elephant will be saved by insisting that, if a miniature comes above the stipulated size, it cannot be sold. The noble Baroness, Lady Bakewell, and I know we will never agree on this. She talked about miniatures and failed to accept the point made by my noble friend the Duke of Wellington, who said that their ivory content is of no substance or value at all—never mind the fact that it is generally 200 years old. It is the work of art, or the likeness of the person depicted, that gives value to the miniature, not the thin bit of ivory on which it is painted.

We could have a much better and less bureaucratic Bill if only these simple points were registered and accepted. I know that my noble friend is obdurate. I know, from talking to the Secretary of State—who is always courteous, but is inflexible on this—that my noble friend really has no leeway when he stands at the Dispatch Box. However, I would like to test the opinion of the House.

17:49

Division 1

Ayes: 20

---

Crossbench: 11
Conservative: 6
Bishops: 1
Labour: 1
Independent: 1

Noes: 323

---

Conservative: 130
Labour: 95
Liberal Democrat: 54
Crossbench: 29
Independent: 9
Democratic Unionist Party: 3
Green Party: 1
Plaid Cymru: 1

18:06

Clause 2: Pre-1918 items of outstanding artistic etc value and importance

Amendment 3

Moved by

[Lord De Mauley]

3: Clause 2, page 2, line 11, leave out “pre-1918” and insert “pre-1947”
Member’s explanatory statement
Without this amendment, Art Deco objects of outstandingly high artistic, cultural or historical value, for example, will not be eligible for an exemption certificate.

[Lord De Mauley]

My Lords, some noble Lords have noticed that the wording of Amendment 3 was jointly tabled by my noble friend Lord Carrington of Fulham and me in Committee. At that time, I said that I reserved the right to bring it back on Report, particularly as some of the issues I had raised had not been addressed in the Minister’s responses. I want to reiterate what I said in the last debate but the points are all, none the less, relevant. The types of items that would be exempted by the amendment to change the Clause 2 date from 1918 to 1947 could in no way be seen as directly or indirectly encouraging demand for ivory in Asia. Unless they are musical instruments or contain less than 10% ivory, items incorporating ivory may be sold only if they are,

“of outstandingly high artistic, cultural or historical value”,

and must predate 1918. Objects such as pianos with ivory keys need only predate 1975, and the low ivory content objects, 1947.

Art Deco style is a highly regarded genre that flourished between the Great War and the Second World War. The V&A Museum held a major Art Deco exhibition in 2003 and some of the 20th century’s greatest designers and sculptors, including Demétre Chiparus, produced Art Deco artwork that sometimes incorporated ivory elements. One of his works—the sculpture in bronze with ivory elements—was regarded as such an important work of art that it sold at auction for a six-figure sum. Examples of his work feature in the collection of the world-renowned Museum of Fine Arts in Boston. Yet as the Bill stands, it would perversely forbid the sale of the most outstanding and rarest examples of Art Deco design while allowing the sale of ordinary upright pianos mass-produced as recently as the 1950s. Changing the dateline for Clause 2 from 1918 to 1947 would bring it into line with the Clause 7 exemption dateline for objects comprising less than 10% ivory.

Turning to my Amendment 4, to benefit from the Clause 2 exemption and be granted an exemption certificate, an historical artefact incorporating ivory needs to be inspected by appointed specialists and to pass the hurdle of being,

“of outstandingly high artistic, cultural or historical value”.

The antiques trade supports the concept of ivory artefacts being checked by third parties and granted exemption certificates—something both LAPADA and BADA suggested should happen more than two years ago. As I said at greater length in Committee, reports compiled by concerned parties into the problem of identifying old ivory have all focused on the low-priced, solid ivory carvings and trinkets and not on culturally valuable works of art such as portrait miniatures or inlaid Georgian furniture. The trade fully agrees that all solid ivory carvings should be subjected to third-party scrutiny since they are more difficult to appraise than objects made from a mixture of materials. Other materials provide a context in which the style, workmanship and condition of the ivory element can be judged.

Regrettably, the unnecessarily narrow formulation of the Clause 2 exemption will end up prohibiting the sale and, over time, result in the inevitable loss of many thousands of genuine antique objects that fail to meet the “outstandingly high” requirement. Among examples of what will become prohibited items are Victorian chess sets, ivory crucifixes, Georgian silver teapots with ivory handles, 18th-century ivory portrait silhouettes, and 19th-century sandalwood sewing boxes. I could add to this list items of cultural significance for other cultures, such as Japanese netsuke. These types of item are not made from modern ivory and have been acknowledged by the Secretary of State as having no connection to the trade in recently poached ivory. They are all capable of being assessed for authenticity by knowledgeable specialists who can readily tell them apart from most modern-day bangles or trinkets. I point out to your Lordships that museum curators and experts such as those on “Antiques Roadshow” regularly make judgments about antique objects and most of the time do not need scientific evidence to do so. Scientific dating of ivory is, though, available as a last resort.

There is no evidence that Far Eastern buyers are purchasing vast quantities of items such as English silver cutlery with ivory handles or 19th-century gentleman’s travelling boxes containing inserts with ivory lids. Those who appreciate history and an understanding of our past are concerned for the many thousands of objects which are of intrinsic historical, social and cultural value but will fail to meet the “outstandingly high” test. That the Bill does not ban their ownership or prevent their being inherited or gifted to a museum will not prevent their destruction or loss over time. Museums do not have the resources or storage space to accept large additional numbers of artefacts, many of which will already be represented in their collections. There is no guarantee that the family members of an owner of an early 19th-century chess set will want to inherit and care for it themselves. What precisely will be its fate if it has no resale value? I can tell your Lordships now: it will be thrown in the bin. An item that is part of our cultural and social history will simply be unavailable to future generations.

One cannot understand history and learn its lessons by destroying it. I would be more willing to accept losses such as this if I felt that some good would come of it—that the life of a living elephant in Africa would be saved as a consequence. Yet no one has provided any evidence to demonstrate that the sale in this country of a genuine, third-party authenticated Victorian chess set has any direct or indirect connection to the poaching of elephants in Africa. First, if it has been checked as being genuine, by definition it cannot be made from poached ivory. Secondly, as I have already demonstrated, it is untrue to suggest that large numbers of these items are being shipped to the Far East. Thirdly, the United Kingdom is not itself importing raw ivory to fabricate fake Victorian chess sets. To be quite frank, we do not have the skills to do so anyway. Finally, British antique collectors are not interested in any modern ivory items.

The Bill’s aim is to help to conserve elephant populations and, more specifically, to reduce poaching. Paragraph 6 of the Bill’s Explanatory Notes expresses the entirely understandable desire that objects from the UK should not, whether intentionally or inadvertently, contribute to markets that create a demand for ivory. The vast majority of the many thousands of cultural objects that will fail the current Clause 2 test are of no interest to Asian buyers because they do not acquire English or European antiques. Where the Explanatory Notes refer to a demand for ivory, they automatically characterise all objects made from ivory as homogeneous and interchangeable, regardless of their age, cultural origin or historical significance.

Since most of the ivory objects offered for sale in the UK are of no interest to Chinese buyers and those that do hold their interest are exported in only very small numbers, restricting exemption certificates to items that are of “outstandingly high” rather than “high” artistic, cultural or historical value is disproportionately restrictive. The term “outstandingly high” never featured in the Government’s consultation document. The concept envisaged a year ago was that “significant” cultural or historical items should be exempted. No one has brought forward any evidence to demonstrate why this change was required to fulfil the Bill’s aims.

My small amendment would therefore result in the Secretary of State’s assessors being required to conclude that objects containing more than 10% ivory are of high artistic, cultural or historical value. This would remain a significant hurdle for objects to surmount: assessors would be required to conclude that an item that incorporates ivory provides us and future generations with a high degree of valuable historical or cultural information. The sale of ordinary mundane objects such as bangles or ivory chopsticks would continue to be prohibited. I beg to move.

18:15

[Lord Cormack]

My Lords, I wish to refer briefly to Amendment 6, which is grouped with my noble friend Lord De Mauley’s leading amendments, as is my Amendment 5. I will not speak to that amendment; my noble friend Lord De Mauley has effectively covered it, because I also want to take out the word “outstandingly”.

My Amendment 6 would take out the words “an important” and put in “a significant”. That might sound of no significance, but it is. My noble friend Lord De Mauley talked about the sorts of objects we will be dealing with here. One of the things that attracts me to social history is the things that people used and gave. I once knew a man—I have mentioned him in your Lordships’ House in earlier debates—who had an amazing collection of theatre and race tickets. Many of them were in ivory. They could not be called outstanding and I do not think that any of them could be called important, but significant they most certainly were. This was a collection that reflected the social history of the mid-18th century: the people who patronised the playhouses or went to the racecourses and gained admission by presenting an ivory ticket or token. A large collection such as the one my friend had is of some value. Many of the examples were indeed individually unique; no other tickets to that particular theatre or performance were known to exist.

I referred to this earlier when I talked about the first amendment: he collected these things because of their intrinsic interest and his own fascination with social history, but also because of the knowledge that collectively, even though he probably had not given more than £10 or £20 for any individual item, the collection was worth something. He knew that if he fell on difficult times or wanted to help a son or daughter, there was a little nest egg that would probably produce a few thousand pounds. If we enact the Bill, we will deprive a collection and a collector like that. We are effectively confiscating private property. We are not physically destroying it, although, as my noble friend Lord De Mauley said a few minutes ago, that might well be the ultimate result, but we are saying to somebody that that property, legitimately and lovingly acquired, is no longer theirs to dispose of for any money at all. That is unjust and wrong. I return to the old, worn record: how does preventing the sale of such a collection, the items in which are all of some significance, help in any way to preserve an African or an Asian elephant in 2019 or 2020?

We are all concerned about the elephants—we keep coming back to that—but there is nothing incompatible between being desperately keen to save elephants and being desperately keen to save elements of our social history.

[Lord Carrington of Fulham]

My Lords, I do not want to intervene for long, but there is a slight problem with the definition of “outstandingly”. What is outstanding to one expert may well not be to another. I raised this at Second Reading. It comes down to what sort of museum collections you are trying to create. Museums such as the V&A or the British Museum are interested only in outstanding items, and they can define what they mean by an outstanding item by reference to what they already have in their collections: to be outstanding the item should add to that collection.

Many museums, however, are not trying to do what the British Museum or the V&A do. The example that I have used before is the Geffrye Museum, a series of old almshouses on the continuation of Bishopsgate, just outside the City of London. The Geffrye Museum recreates middle-class rooms down the ages. Those middle-class rooms will have ivory items—ivory cutlery and tea caddies for example—none of which is outstanding in itself. However, items are outstanding in the sense that the Geffrye Museum considers them exemplars of what was used at that time by middle-class people—and increasingly, in some museums, by working-class people in this country. The definition of outstanding is, therefore, somewhat open to interpretation and it would be much better to remove “outstandingly” and replace it with a word such as “significant”, which would allow much more leeway in deciding whether an item is worthy of a national collection or is something that no one is interested in preserving.

[Baroness Neville-Rolfe]

My Lords, my concern is with the effects of this Bill, which may come to be criticised in the fullness of time, as elephant stocks recover and beautiful objects are lost as a result of it, and collectors of Art Deco work containing ivory are stopped in their tracks. I accept that, as we have heard from the Minister, Defra Ministers consulted during the Commons stage of this Bill, but the debate here has shown that some further changes are needed in the interests of common sense. So I support the amendments in this group from my noble friend Lord De Mauley.

I hope that the Minister will be a bit more receptive than he was towards the previous group, and ask whether he can think of any ways to reduce the concerns of people such as us about the perverse effects of these arrangements, for example in the guidance he described earlier.

[Lord Hague of Richmond]

My Lords, as on Amendment 1, I briefly draw attention to the importance of international co-operation in implementing the policy of which the Bill is a part and which these amendments would affect. We will not be able, by anything we do in our Parliament of our own volition, to save the African elephant, but we are able to be part of a concerted and perhaps, one day, successful international effort, represented by, among other things, strong bans on domestic markets.

I mentioned in my earlier intervention that China is now implementing a near-total ban, and the effect of China announcing that last year was to reduce the price of ivory in China by about two-thirds in one year. Pursuing that policy is the way to destroy the profits and attractions of the criminal networks engaged in this trade. That is why strong domestic bans in many parts of the world—in range countries, demand countries, transit countries—are so important.

If I have understood these amendments correctly, they could represent a more serious dilution of the exemptions in the Bill than the previous group. That would be serious, because in some respects it would leave us with much less of a total ban than exists in the United States or China. The Minister was right to say, on the last group, that the Government have consulted widely, and I believe that they have reached the right balance, so unlike my noble friends I would not encourage him to be more receptive to this group than to the last.

[Baroness Bakewell of Hardington Mandeville]

My Lords, I am grateful to the noble Lord, Lord Hague, for so eloquently setting out the case. The removal of “outstandingly” or “outstandingly high” would substantially increase the number and types of items that qualify for exemption. The purpose of the outstanding artistic value exemption is to allow the older items of exceptional artistic value to be traded.

The exemption before us would undermine that purpose and risk weakening the Bill by enabling trade in many pre-1947 worked items. The proposal of the noble Lord, Lord Cormack, to replace “important” with “significant” will similarly severely weaken the exemption criteria. It will already be possible for Art Deco items to be purchased by museums from private owners under Clause 9, which intentionally does not specify the age of ivory artefacts that can be acquired by museums. It is unwise and unnecessary to widen the exemption further.

As I said, those who support extending the exemptions do not see that this increase in items containing ivory will impact on the elephant population. Unfortunately, they are not correct. It is also wrong to assume that anything that is not exempt, or does not get a certificate, will be destined for the rubbish dump. Families will keep their personal artefacts and furniture containing ivory and pass them on to their children or grandchildren. Unfortunately, a lot of hysteria is being generated.

The monitoring of the elephant population, particularly in Africa, is much more sophisticated nowadays—due to the use of drones—than previously. The sad truth is that the population is down to 400,000. For the first time since records were kept, the number killed each year is higher than the number of live calves born. It is time to make a stand, and it is obvious that this House—across the political divide—supports the Bill. While the Ivory Bill is not perfect, it is a significant step forward in protecting the elephant. We must show the world that we are serious, in the hope that others will follow suit. We cannot support this group of amendments.

[Baroness Jones of Whitchurch]

My Lords, I shall respond to these amendments, which would move the applicable date for exemptions from pre-1918 to pre-1947 and would lower the threshold for exemptions, allowing larger numbers of items containing ivory to be bought and sold.

As has been said, these amendments will considerably weaken the impact of the Bill. As the Minister explained in Committee, 1918 was chosen because it defines items which are 100 years old and therefore classified as antiques. A move to include more recent items for exemptions, as suggested in Amendment 3, would inevitably increase the number of items containing ivory in circulation. It would include a much wider group of objects than the Art Deco items which the noble Lord seeks to protect. In any prohibitive Bill of this kind, it is impossible to find a perfect date from which to apply the constraints. As we have mentioned several times, we would have preferred a complete ban on ivory sales but, if there has to be a cut-off date for exemptions, we agree that 1918 has the best logic. Of course, as has been said, that would not affect the ownership or gifting of items, nor the continuing trade in Art Deco items which do not contain ivory.

18:30

We have similar objections to Amendments 4, 5 and 6. We believe that the criteria should be set higher, if anything. Indeed, we proposed an amendment in Committee to curtail exemptions to the rarest and most important pieces of their type. Our aim should be to avoid all subjective definitions or scope for ambiguity to ensure that the market for ivory is properly closed down and that the professionals making the judgment have a clear mandate within which to operate.

As we have heard and debated several times now, some noble Lords opposite have never accepted that there is a link between the antique ivory trade and the current slaughter of elephants. The noble Lord, Lord Cormack, described the debate as a worn record and I think we are all beginning to feel a bit like that. But a growing body of evidence shows that illegal new ivory is smuggled across borders and mis-sold online as antique ivory. That is at the heart of our debate but I do not feel that there is any meeting of minds on the issue.

[Lord Cormack]

It is perfectly possible to forbid online sales, full stop. We would not object to that. Again, as has been implicit in all our arguments throughout every stage of the Bill, it is perfectly possible to insist that only registered auction houses and registered dealers, whose expertise has been established, can deal in ivory. All of that we have said time and again, so it is quite unfair for the noble Baroness to make such a sweeping statement.

[Baroness Jones of Whitchurch]

I find it ironic that the noble Lord talks about sweeping statements. The fact is that we talked about having a complete ban on online sales. Indeed, colleagues on the Lib Dem Benches proposed that in Committee; it is perhaps sad that they have not brought it back on Report. The noble Lord, Lord Cormack, will also know that the reason we are here today is that we already had a ban, which was meant to constrain what auction houses and so on were doing. It was then found that illegal pieces were passing through the auction houses.

I am not saying that the Bill is perfect; it is not, but it is a considerable step forward from the previous legislation. The Government would not be pursuing the Bill, with our support, if they did not feel that the evidence was compelling and overwhelming. The noble Lord, Lord Hague, is absolutely right: we have to close down the domestic ivory market, not for its own sake but because this is part of an international movement. Only when we all share the same broad objectives internationally will we actually be effective in all this.

I was quite offended by some of the comments from the Benches opposite in the previous debate, which somehow implied that there was a conspiracy among some African countries on this issue. I do not see it on that basis. I too attended the Illegal Wildlife Trade Conference and the Minister was absolutely right. There were Heads of Government there and people in various senior positions from all round the world, including the African nations. They were absolutely passionate about needing to protect the elephants and protect their economic interests in the longer term, and therefore to close down the illegal ivory trade. Until we all understand why that is necessary, we will not be able to make much progress on this. On that basis, I therefore urge noble Lords to reject all these amendments.

[Baroness Vere of Norbiton (Con)]

My Lords, these amendments seek to widen the scope of the Clause 2 exemptions, which provide for:

“Pre-1918 items of outstanding artistic … cultural or historical value”,


and which are rare and important examples of their type. Their effect would be to increase—in some cases quite significantly, as noted by my noble friend Lord Hague—the number of items that would meet the criteria to be exempted under this category. This exemption is just one of a package of five carefully balanced and deliberately limited exemptions. This package was developed following extensive consultation with stakeholders and represents what we believe is a proportionate and reasonable approach, while retaining the integrity of the Bill’s critical purpose. The exemption in Clause 2 recognises that there is a strata of items, made of or containing ivory, which are traded for their artistic, cultural or historical value rather than their ivory content. This exemption is specifically intended to be narrow and applicable only to rare and important items of their type.

Amendment 3, tabled by my noble friend Lord De Mauley, would change the backstop date of this exemption from 1918 to 1947. That would significantly increase the number of items which fell under the exemption. I recognise my noble friend’s concerns that ivory items from the Art Deco period would not be included in the exemption. However, I emphasise that the intention of the Bill is to ban dealing in ivory with narrow exemptions. In the case of any ban, there will always be items that fall outside any exemptions. We believe, as I am sure many other noble Lords do, that the 1918 backstop date is reasonable and proportionate.

However, as per the exemption set out in Clause 9, acquisitions by qualifying museums will not be affected by the ban—this was noted by my noble friend Lord Carrington and mentioned in her speech by the noble Baroness, Lady Bakewell. Significant items from the Art Deco and Art Nouveau periods may be sold to accredited museums, where they may be enjoyed by the public and preserved for the nation. I reiterate: the Bill has no impact on any individual’s right to personally own, bequeath, gift or inherit these items.

Amendments 4, 5 and 6 would alter the definition of items in this exemption by removing “outstanding” or “outstandingly high”, and replacing “important” with “significant”. The effect of these amendments would be similar to others, by significantly increasing the number of items which fall into this category. In setting the criteria for this exemption—my noble friend Lord Carrington raised this—we will draw on existing criteria used to assess pre-eminence and national importance, such as the Waverley criteria and the export licensing regime for cultural objects. We will of course consult and work alongside expert institutions, museums and other key stakeholders to establish regulations setting out the detailed criteria for this exemption.

We are clear that items must be valued for their artistry, historical or cultural value, not their ivory content. As my noble friend Lord Gardiner and my right honourable friend the Secretary of State have said on a number of occasions, the Government intend to reduce the desirability of ivory items domestically and internationally. But nothing in the Bill will prevent anyone continuing to appreciate, enjoy or admire the artistry or craftsmanship of any ivory item that they own, have collected, have been given or have inherited.

My noble friends Lord De Mauley and Lady Neville-Rolfe talked about the inevitable loss of items. Why will these items be lost? The items might be artistic— perhaps an Art Deco sculpture. Why would they be destroyed? They might be theatre tokens, as in the case mentioned by my noble friend Lord Cormack. These items are interesting and elements of our social history; you would not destroy them.

[Lord Cormack]

They are also personal property, legally and properly acquired by people who felt that they would at some stage be able to sell them if they needed to. This is an invasion of private ownership and the principle of being able to dispose of what you legitimately acquired and own.

[Baroness Vere of Norbiton]

I think that we have been through that particular hoop a number of times. Indeed, this Bill complies with the European Convention on Human Rights. It is a proportionate response to an issue of global concern.

These objects will not be destroyed. Perhaps even if individuals no longer want them, they could do what I do and give them away or use Freecycle for items with little sale value. I find items on Freecycle last for about a day. There are many options available to individuals who want to pass on their items containing ivory.

With that explanation, I hope that my noble friend feels able to withdraw his amendment.

[Lord De Mauley]

My Lords, I have seen the result of the whipping by the three main parties in your Lordships’ House this afternoon, despite none of them addressing, or apparently even understanding—as was amply demonstrated a moment ago by my noble friend the Minister—the critical points some of us have raised. To divide the House on Amendment 3 would be futile and I am not in the business of wasting the House’s time. Let me therefore withdraw the amendment by quoting our Lord from Luke, chapter 23, verse 34:

“Lord, forgive them, for they know not what they do”.

Amendment 3 withdrawn.

Amendments 4 to 6 not moved.

Amendment 7

Moved by

[Lord Gardiner of Kimble]

7: Clause 2, page 2, line 18, leave out “guidance issued” and insert “regulations made”
Member’s explanatory statement
Clause 2(3)(c) currently allows the Secretary of State to use guidance to specify matters that must be taken into account when considering whether an ivory item is of outstandingly high artistic, cultural or historical value. This amendment requires these matters to be specified in regulations instead.

[Lord Gardiner of Kimble]

The amendments in this group arise from the recommendations made by the Delegated Powers and Regulatory Reform Committee in its report on the Bill. I thank the committee for its report, which has been extremely helpful in developing further how key parts of the Bill are to be implemented. The committee made a number of recommendations suggesting that negative resolution regulations, instead of guidance, should be used to set out certain matters.

First, Clause 2(3)(c), which allows for “other matters” that may be taken into account when deciding whether a pre-1918 item is of outstanding artistic, cultural or historical value, will be amended to be set out in regulations. “Other matters”, in this context, are in addition to consideration of the rarity of an item and the extent to which it is an important example of its type. Such matters might include an item’s religious significance, scientific importance or whether it has previously been on public display.

The Government agree with the Delegated Powers and Regulatory Reform Committee that in this case, guidance would not be an appropriate method of detailing the other matters that prescribed institutions—museums with expertise in ivory items—should take into account when providing advice on whether items are of outstanding artistic value and importance. As the committee notes, setting out regulatory requirements in guidance can mean that a person can have an element of choice about whether to follow them. This is not the Government’s intention and we therefore accept the committee’s recommendation.

Amendments 7 and 11 also replace powers to set out in guidance additional information that those applying for an exemption certificate under Clause 2 and those registering items as exempt under Clause 10 must include in their applications. This is in addition to that set out in the Bill under Clause 3(1) and Clause 10(1). Work on the implementation of the Bill has revealed that it already lists all the information we will need to issue exemption certificates and handle registration applications. We therefore accept the committee’s recommendations with respect to Clauses 3 and 10 by requiring additional information requirements to be set out in regulations rather than guidance, should a future Government need to do this. While important details will be set out in regulations, the Government will still produce guidance that will help applicants navigate their way around the application processes for both the exemption certificate and registration regimes.

Amendments 14 and 38 remove Clause 4(8) and Clause 11(5) from the Bill. These provisions allow guidance to be used to set out how applications for exemption certificates and registrations must be made. Guidance may, for example, require applications to be made electronically or online. The Government have decided to allow maximum flexibility with regard to how applications may be made and will therefore be removing these powers from the Bill because they will no longer be necessary.

Applicants for exemption certificates and those registering items as exempt will be able to apply online or download forms to be completed in hard copy for postal submission. They will also be able to telephone or email requests for copies of forms to be sent to them by post. This is to reflect the diversity of persons who may wish to submit applications, which may range from private individuals without internet access to large auction businesses.

18:45

[Lord Cormack]

Will they be able to apply by post? Do they have to download it or get it by email? My noble friend said they can send things in by post. Many of these people will be very elderly and will not necessarily be familiar with modern devices.

[Lord Gardiner of Kimble]

I will make sure that I get a precise note. The whole purpose of us saying that people can apply online and offline is precisely to cover the diversity of private individuals, as I mentioned. I will just check for my noble friend whether a form can be sent or whether it has to be downloaded.

The answer, apparently, is that there will be a range of opportunities for people to receive forms—online or not. I am told that a hard copy application can be requested by telephone. I think that covers, in one way or another, most people in this country.

The committee also recommended that Clause 5 should include more details about the appeals regime, rather than leaving it to secondary legislation. Amendments 17 to 21 deliver the committee’s recommendation. First, the amendments set out in the Bill that the First-tier Tribunal will hear any appeals against a decision by the Secretary of State not to issue an exemption certificate or to revoke an existing certificate. As many of your Lordships will know, the First-tier Tribunal has wide experience of hearing appeals concerning regulatory matters and, indeed, is the body to hear appeals against decisions to serve civil sanctions in Schedule 1 to the Bill. The amendments also set out in the Bill the grounds on which an appeal may be made and the powers of the tribunal on hearing an appeal. The only matters that will be left to secondary legislation will be any further grounds that the Secretary of State may wish to add and the cost of an application for an appeal to the tribunal. I acknowledge once again the recommendations of the Delegated Powers and Regulatory Reform Committee, and I beg to move.

[Baroness Jones of Whitchurch]

My Lords, I support these amendments. We are very pleased that the Government have listened to the Delegated Powers Committee and have addressed its concerns about too much detail being contained in guidance. We will return to this issue when we debate our Amendment 40, which seeks to establish regulations about how those dealing in ivory can verify the exempted status of the piece being bought or sold.

We also welcome government Amendments 17, 18 and 21, which considerably tighten up the basis on which appeals on exempted certificates can be made. We raised this issue in Committee and are very pleased that the Government listened to those arguments and have produced specific grounds for appeal that cannot be used to undermine the clarity of the decision-making process. We therefore support these amendments.

[Lord Gardiner of Kimble]

My Lords, I think it is customary that I thank the noble Baroness very much for her support for this group of amendments. It is an indication of the importance of the work of your Lordships’ House and the committees.

Amendment 7 agreed.

Amendment 8

Moved by

[Baroness Vere of Norbiton]

8: Clause 2, page 2, line 18, leave out “Secretary of State” and insert “appropriate national authority”
Member’s explanatory statement
See the explanation of subsections (1A) and (1B) inserted in clause 37 by the Minister’s amendment at page 22, line 24.

[Baroness Vere of Norbiton]

My Lords, the UK Government have acted in accordance with the devolution settlements and engaged throughout the process with each of the devolved Administrations on the territorial extent and implementation of the Ivory Bill across the UK. I am pleased to say that the Governments of Scotland and Wales have both clearly expressed their support for the Ivory Bill. We have also worked closely with the Northern Ireland Department of Agriculture, Environment and Rural Affairs.

The UK Government’s engagement with the devolved Administrations concluded that dealing in ivory items either within a devolved country or between a devolved country and another part of the UK is a devolved matter. For instance, a dealing conducted wholly within Scotland or between Scotland and Wales will be devolved. Dealings between any part of the UK and a third country remains a reserved matter. The UK Government have therefore come to an agreement with the devolved Administrations to ensure that these devolved interests are protected through a number of amendments tabled in the name of the Minister.

The government amendments ensure that most regulations under the Bill that apply in relation to Wales, Scotland or Northern Ireland may be made only by, or with the consent of, Welsh Ministers, Scottish Ministers or the Department of Agriculture, Environment and Rural Affairs in Northern Ireland. If a devolved Administration does not provide consent, it can make its own regulations. The only exceptions are the powers to set fees by regulations and the publication and consultation of enforcement guidance, which remain exercisable by the Secretary of State but will require consultation with Welsh Ministers, Scottish Ministers and the Department of Agriculture, Environment and Rural Affairs in Northern Ireland. These exceptions are made simply because the power to prescribe fees and the publication of enforcement guidance are technical matters.

We have also agreed to a minor amendment to specify Scottish Ministers as the appropriate body to publish a list of accredited museums. This change was requested by the Scottish Government as a reflection of the different status of Museums Galleries Scotland and Arts Council England and does not alter in any way the effect of this provision.

I assure noble Lords that the Scottish Government and the Welsh Government have confirmed that they are content that these amendments accurately reflect their devolution settlements and their rights under those settlements. These two devolved Administrations will issue legislative consent Motions ahead of Third Reading and the appropriate official procedure will be followed with respect to Northern Ireland. I beg to move.

[Lord Grantchester (Lab)]

I thank the Minister for her introduction and explanation of these amendments concerning the devolved Administrations. I listened carefully and I have one or two queries. It would be helpful if she could clarify the source and inspiration behind the amendments, bearing in mind that they were not tabled for Committee and so their impact was not debated. Will she outline the problem that her department seems to have stumbled across and to which these amendments are the solution? They seem to point to inconsistencies in the Bill between devolved competences and Clause 37(1)(b), on regulatory provision, that I need to grasp. Has the Minister’s department run into problems during dialogue on the Bill with one or other of the devolved Administrations? She did not seem to suggest that.

The Minister’s letter dated 19 October concerning the government amendments stated that the Secretary of State will be able to make regulations with the consent of the relevant Administrations, leaving aside for this purpose the requirement merely to consult on the fees or guidance. I remain unconvinced about how the involvement implied under consent will lead to more effective implementation of the Bill. On the contrary, there is concern that these amendments could result in unwarranted duplication of legislation and bureaucracy, at best, and regulatory divergence and differences at worst. It is regrettable that this group of amendments has been tabled so late in the process and that the House has not had more time to consider the matter. Will the Minister explain why she concluded that these provisions are necessary, bearing in mind that this is a reserved matter, as she said, and that there does not seem to be any policy differences between the UK Government and the devolved Administrations? Does she share the concern that the authorities will have to duplicate the canopy of administration when they may not have the required expertise in dealing with ivory or the trade in endangered species? Can she assure the House that these amendments will not lead to a delay in implementing the Bill or in commencing regulations or to it being implemented on different dates in different parts of the UK?

[Baroness Vere of Norbiton]

I thank the noble Lord, Lord Grantchester, for his comments. I reassure him that these amendments came out of lengthy discussions over time. They were laid when they were laid—in good time for consideration by your Lordships on Report, I think—as a result of a timeline issue. It was necessary to establish whether certain issues were devolved or reserved matters. In my opening remarks I made it very clear that we have listened carefully to the devolved Administrations and that we now fully understand how we can practically make sure that the Bill works in every country of the United Kingdom. I agree with the noble Lord that there could be concerns about bureaucracy and duplication but I think that because of the conversations we have had with the devolved Administrations, that will not be the case. Many of the systems will be used by every country. The enforcement regime will be the same, although it will be conducted by different people north of the border. OPSS, the enforcer in the first instance, operates nationally. When we look at these amendments, it is important that we respect the devolution settlement that we have reached with these nations. We thank the other Governments for their support in pushing this forward. Although the noble Lord has concerns, I reassure him that I believe they will not come to pass.

Amendment 8 agreed.

Amendments 9 and 10

Moved by

[Lord Gardiner of Kimble]

9: Clause 2, page 2, line 21, leave out “Secretary of State” and insert “appropriate national authority”
Member’s explanatory statement
See the explanation of subsections (1A) and (1B) inserted in clause 37 by the Minister’s amendment at page 22, line 24.

10: Clause 2, page 2, line 21, leave out “his or her” and insert “the authority’s”
Member’s explanatory statement
This amendment is consequential on the Minister’s first amendment at page 2, line 21.

Amendments 9 and 10 agreed.

Clause 3: Applications for exemption certificates

Amendments 11 and 12

Moved by

[Lord Gardiner of Kimble]

11: Clause 3, page 2, line 39, leave out “guidance issued” and insert “regulations made”
Member’s explanatory statement
Clause 3(1)(g) currently allows the Secretary of State to use guidance to specify information that a person applying for an exemption certificate must provide. This amendment requires the information to be specified in regulations instead.

12: Clause 3, page 2, line 40, leave out “Secretary of State” and insert “appropriate national authority”
Member’s explanatory statement
See the explanation of subsections (1A) and (1B) inserted in clause 37 by the Minister’s amendment at page 22, line 24.

Amendments 11 and 12 agreed.

Clause 4: Further provision about exemption certificates

Amendment 13 not moved.

Amendments 14 to 16

Moved by

[Lord Gardiner of Kimble]

14: Clause 4, page 4, line 21, leave out subsection (8)
Member’s explanatory statement
Clause 4(8) currently allows the Secretary of State to issue guidance setting out the form or manner in which anything required by clause 3 or 4 may or must be done. This amendment removes this power.

15: Clause 4, page 4, line 28, leave out “guidance issued” and insert “regulations made”
Member’s explanatory statement
The effect of the current definition of “specified information” is to allow the Secretary of State to use guidance to specify information that must be provided to the Secretary of State when a person other than the original holder of the exemption certificate deals in an item. This amendment requires the information to be specified in regulations instead.

16: Clause 4, page 4, line 29, leave out “Secretary of State” and insert “appropriate national authority”
Member’s explanatory statement
See the explanation of subsections (1A) and (1B) inserted in clause 37 by the Minister’s amendment at page 22, line 24.

Amendments 14 to 16 agreed.

Clause 5: Fresh applications and appeals

Amendments 17 to 21

Moved by

[Lord Gardiner of Kimble]

17: Clause 5, page 4, line 34, after “appeal” insert “to the First-tier Tribunal”
Member’s explanatory statement
This amendment provides that an appeal against the refusal or revocation of an exemption certificate is to be made to the First-tier Tribunal.

18: Clause 5, page 4, line 36, at end insert—
“( ) An appeal under subsection (1)(b) may be on the ground—(a) that the decision was based on an error of fact,(b) that the decision was wrong in law, or(c) that the decision was unreasonable,or on any other grounds that are prescribed by regulations made by the appropriate national authority.( ) On an appeal under subsection (1)(b), the First-tier Tribunal may—(a) confirm the Secretary of State’s decision to refuse or revoke the exemption certificate,(b) require the Secretary of State to issue an exemption certificate, or to cancel the decision to revoke an existing exemption certificate, or(c) remit the decision to refuse or revoke the exemption certificate to the Secretary of State for reconsideration.”Member’s explanatory statement
The subsections inserted by this amendment set out the grounds for an appeal against the refusal or revocation of an exemption certificate, confer power on the appropriate national authority (see the Minister’s amendment of clause 37 at page 22, line 24) to prescribe further grounds in regulations, and set out the actions that the First-tier Tribunal may take on an appeal.

19: Clause 5, page 4, line 37, leave out “Secretary of State” and insert “appropriate national authority”
Member’s explanatory statement
See the explanation of subsections (1A) and (1B) inserted in clause 37 by the Minister’s amendment at page 22, line 24.

20: Clause 5, page 4, line 37, after “make” insert “further”
Member’s explanatory statement
This amendment is consequential on the Minister’s amendment at page 4, line 36.

21: Clause 5, page 4, line 39, leave out subsection (4) and insert—
“(4) The Secretary of State may by regulations make provision requiring an appellant to pay a fee of a prescribed amount.”Member’s explanatory statement
The effect of this amendment is to remove paragraphs (a) to (d) of the existing subsection (4) of clause 5. Those paragraphs are no longer necessary because the Minister’s amendment at page 4, line 36 will enable the matters in question to be dealt with by First-tier Tribunal Rules.

Amendments 17 to 21 agreed.

Clause 6: Pre-1918 portrait miniatures

Amendment 22 not moved.

Clause 7: Pre-1947 items with low ivory content

Amendment 23 not moved.

Amendment 24

Moved by

[Lord Inglewood]

24: Clause 7, page 5, line 15, leave out paragraph (d)
Member’s explanatory statement
This amendment removes registration as a precondition of allowed sales of de minimis objects containing ivory.

[Lord Inglewood]

I am very grateful to the Minister for the way in which he responded to my earlier concerns in our previous debate. I found myself almost seduced by his silver tongue. I found myself wondering whether perhaps he was right, but all along there was a niggling doubt in the back of my mind. As I said in my remarks, the scheme which is being adopted globally to deal with ivory poaching is basically the same right around the globe. The interesting thing about that is that there is nowhere else on earth where there is a registration scheme associated with de minimis exemptions. It is also interesting that in the consultation that was held prior to the Bill, there was no mention of registration. It was a matter that came into the frame—if I may put it that way—right at the last minute. That makes me wonder.

My amendment does not change the substantive law, nor does it change the scheme that this Bill is intended to put into effect. If this amendment were to be passed, two things would follow. The first one is that the very real concern of my noble friend Lord Hague—that somehow we would be outside the scope and general thrust of the international efforts to deal with ivory poaching—could not be the case. We would merely be doing what other people are doing. Equally, the noble Baroness, Lady Jones, made the important point that we do not want to be out of synch with other people. Indeed, you could make quite a strong case for saying that, on the basis of the facts, by including my amendment, we would actually be more aligned with other countries around the world rather than less so. I find it odd that we are being told that the right way to tackle this is rather different from the way that the rest of the world does so. It should be a matter for your Lordships to decide whether we want to be a bit different from everybody else or whether we follow the international pattern. Against that background, I would like to test the opinion of the House on this important matter.

19:02

Division 2

Ayes: 18

---

Conservative: 11
Crossbench: 4
Labour: 2
Independent: 1

Noes: 249

---

Conservative: 117
Labour: 76
Liberal Democrat: 44
Crossbench: 6
Democratic Unionist Party: 3
Green Party: 1
Independent: 1
Plaid Cymru: 1

19:15

Amendment 25 not moved.

Clause 8: Pre-1975 musical instruments

Amendment 26 not moved.

Amendment 27

Moved by

[Baroness Quin]

27: After Clause 8, insert the following new Clause—
“Report on the impact of this Act on the hire and sale of musical instruments
At the end of the period of five years beginning with the day on which this Act is passed, the Secretary of State must lay before each House of Parliament a report on the impact of this Act on the hire and sale of musical instruments containing ivory in the United Kingdom.”

[Baroness Quin]

I briefly move Amendment 27, which asks for a report on the impact of the Bill—the Act when it receives Royal Assent—on the hire and sale of musical instruments. The amendment calls for such a report at the end of a period of five years beginning with the day on which the Act is passed. However, since tabling my amendment, I note that my noble friend Lady Jones has tabled Amendment 41, which is in many ways a more satisfactory version of my amendment, because it calls for a more wide-ranging report—including the point that I make in my amendment—on an annual basis. I hope that the Minister will look favourably on Amendment 41 and, because of the existence of that amendment, will say nothing further about Amendment 27.

[Lord Grantchester]

I shall speak to Amendments 41 and 78 in this group. Amendment 41 would require the Secretary of State to prescribe appropriate categories for the purpose of publication and specifically precludes the release of any information that would be unlawful or might lead to the identification of the owner. At this stage, I ask the Minister to go somewhat further than she did in Committee and clarify more specifically what the Government can do, at what intervals and through what media, to give confidence that the Bill is working effectively.

Amendment 78 requires the Secretary of State to publish an annual report covering the implementation and impact of the ivory ban domestically and internationally. This includes the work of the various bodies involved, including the Office for Product Safety and Standards, the Animal and Plant Health Agency and the National Wildlife Crime Unit. We feel that this is very important given the concerns raised in Committee about the resources—or, perhaps more accurately, the lack of resources—available to these organisations, as well as their specific role in the implementation of the Bill.

We also feel that it is important to consider the hire and sale of musical instruments containing ivory, as my noble friend Lady Quin explained. The 20% exemption for musical instruments is designed to allow most instruments to be exempt from the Bill, including pianos and bagpipes. Although we do not support more widely drawn amendments, we must be aware of the impact that the ban will have on this artistic activity.

Importantly, we would also want the report to build on any international reports considering the impact on nations or communities that generate income from ivory. Poachers who kill elephants are usually poor and looking for a way to feed themselves and their family. However, education and development are needed so that communities can be turned to recognise the value of elephant tourism. An elephant is worth 76 times more alive in a savannah than in a market place. The report could augment the view that managed conservation with tourism will offer an alternative sustainable income to elephant communities and wider populations of Africa. Will the Minister go a little further than she was able to go in Committee?

[Baroness Bakewell of Hardington Mandeville]

My Lords, I support Amendments 41 and 78, which were debated in Committee and the Labour Front Bench said they would be bringing them back. While I support them, I am interested in what the Minister has to say.

[Baroness Vere of Norbiton]

My Lords, the Government fully appreciate the sentiment behind the amendments in this group. Monitoring the implementation and impacts of the ban on the ivory market and other affected sectors is very important.

I turn first to Amendment 41, in the name of the noble Baroness, Lady Jones, on the publication of a report on matters relating to the exemptions to the ban. In Committee, there was widespread agreement in your Lordships’ House about the importance of transparency and providing information to the public. I believe that the Government’s commitment to share publicly information on exemptions, in line with the Data Protection Act, was welcomed. We are committed to publish data on appeals, the number of items registered and the number of exemption certificates issued and revoked each year and to include a breakdown of these numbers into categories such as statues, reliefs, furniture and musical instruments. The noble Baroness’s amendment reflects these commitments, for which I am grateful, and I am happy to repeat them today. I cannot, however, agree that an amendment is needed and hope that the commitments that the Government have made will suffice.

I turn to Amendment 78, again in the name of the noble Baroness, Lady Jones, regarding a report on the impact and implementation of the Bill. I appreciate that the noble Baroness has reflected points raised in Committee in this amendment. I reassure your Lordships’ House that, as a matter of course, the Government will assess the impact and implementation of the ban over time, in particular its enforcement. Much of this information will be available in the public domain and subject to public scrutiny.

It might assist noble Lords if I give a number of related examples of where this kind of information is already provided publicly. Perhaps this will assist the noble Lord, Lord Grantchester, in understanding the types of information that we will be publishing. The regulatory body that we have chosen to help enforce the ivory ban, the Office for Product Safety and Standards, already publishes an annual report which includes its activity over the year for each of the different regulatory areas the body covers. The Animal and Plant Health Authority, which will administer the registration system among other things, submits annual trade data on used permits to the secretariat of the Convention on International Trade in Endangered Species—CITES. This data is available publicly on the CITES database. The National Wildlife Crime Unit, where appropriate, issues press releases on closed cases it has been involved in, often including the penalties issued. These publications will continue, and we will consider how we can provide further information that will complement but not duplicate them. An obligation in the Bill to produce reports would risk duplication and be a considerable and unnecessarily expensive undertaking.

With regard to the Department for International Development, a number of announcements were made at the Illegal Wildlife Trade Conference earlier this month about additional funds being made available from DfID and Defra, including £46.6 million to protect endangered species and a £20 million round of UK Aid Match for wildlife and conservation issues. Any programme that is run by DfID must publish an annual review online demonstrating its results.

With regard to nations generating income from ivory, as referred to in Amendment 78, we believe that the decline in elephant populations deprives some of the poorest countries in the world of their natural resources, which impacts economic growth and sustainable development. The illegal ivory trade is conducted almost uniquely by organised criminal groups and the money from this despicable trade rarely reaches local communities and the people who need it.

At the request of the noble Baroness, Lady Quin, I will not respond directly to her amendment, but I hope that she takes comfort from my words about the types of data that we will be drawing out and the categories of items that we will be able to summarise.

I hope that I have been able to reassure the noble Lord, Lord Grantchester, and the noble Baroness, Lady Jones, and that the noble Baroness, Lady Quin, feels able to withdraw her amendment.

[Baroness Quin]

My Lords, I beg leave to withdraw my amendment.

Amendment 27 withdrawn.

Amendment 28

Moved by

[Baroness Quin]

28: After Clause 8, insert the following new Clause—
“Northumbrian pipes
An item that has ivory in it is exempt from the prohibition if it is a musical instrument that has been certified by the Northumbrian Pipers’ Society, or a similar approved organisation, as being a set of, or part of a set of, Northumbrian pipes made before the passing of this Act, and covered by a valid Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) certificate.”

[Baroness Quin]

My Lords, I spoke to this amendment earlier. I felt that I was proposing a tightly drawn amendment which would remove any opportunity to create a loophole of the kind that the Government feared. I was disappointed that the Government did not take the opportunity to accept the amendment or say that they would look at it with the view to introducing an amendment later dealing with the points that I raised. Normally, I would be tempted to test the opinion of the House, but I recognise political reality when I see it. Certainly, since the Government, the Opposition Front Bench and the Liberal Democrat Front Bench did not express their support, I beg leave to withdraw the amendment.

Amendment 28 withdrawn.

Clause 9: Acquisitions by qualifying museums

Amendments 29 to 31

Moved by

[Lord Gardiner of Kimble]

29: Clause 9, page 6, line 1, leave out paragraph (a) and insert—
“(a) in the case of a museum in England, the Channel Islands or the Isle of Man, it is shown as being accredited in a list published by or on behalf of Arts Council England;(aa) in the case of a museum in Wales, it is shown as being accredited in a list published by or on behalf of the Welsh Government;(ab) in the case of a museum in Scotland, it is shown as being accredited in a list published by or on behalf of the Scottish Ministers;(ac) in the case of a museum in Northern Ireland, it is shown as being accredited in a list published by or on behalf of the Northern Ireland Museums Council;”Member’s explanatory statement
This main effect of this amendment, which is about how museums are to be identified as “qualifying museums” for the purposes of clause 9, is to replace the reference to Museums Galleries Scotland with a reference to the Scottish Administration. It is also intended to clarify the drafting.

30: Clause 9, page 6, line 10, leave out “Secretary of State” and insert “appropriate national authority”
Member’s explanatory statement
See the explanation of subsections (1A) and (1B) inserted in clause 37 by the Minister’s amendment at page 22, line 24.

31: Clause 9, page 6, line 11, after “(a)” insert “, (aa), (ab), (ac)”
Member’s explanatory statement
This amendment is consequential on the Minister’s amendment at page 6, line 1.

Amendments 29 to 31 agreed.

Clause 10: Registration

Amendment 32 not moved.

Amendments 33 and 34

Moved by

[Lord Gardiner of Kimble]

33: Clause 10, page 6, line 37, leave out “guidance issued” and insert “regulations made”
Member’s explanatory statement
Clause 10(1)(f) currently allows the Secretary of State to use guidance to specify information that the owner of an item must provide when applying for registration of the item. This amendment requires the information to be specified in regulations instead.

34: Clause 10, page 6, line 38, leave out “Secretary of State” and insert “appropriate national authority”
Member’s explanatory statement
See the explanation of subsections (1A) and (1B) inserted in clause 37 by the Minister’s amendment at page 22, line 24.

Amendments 33 and 34 agreed.

Amendments 35 and 36 not moved.

Clause 11: Further provision about registration

Amendment 37

Moved by

[Lord Cormack]

37: Clause 11, page 7, line 13, leave out from “section 10” to end of line 15 and insert “remains valid if the ownership of the item passes by inheritance to a member of the family of the registered owner.”
Member’s explanatory statement
This amendment is designed to reduce the administrative arrangements which will follow the enactment of this Bill.

[Lord Cormack]

My Lords, I will not detain the House very long on this amendment, which is similar to an amendment I moved in Committee. I was disappointed in the response that I received. This amendment does not touch at all on any of the exemptions or provisions of the Bill; it merely makes the point that if somebody has a certificate, it should remain valid if the ownership of the item passes by inheritance to a member of the family of the registered owner. That seems to me to be sensible, fair and equitable and I cannot understand why anybody would be opposed to it. I beg to move.

[Lord Carrington of Fulham]

My Lords, Amendment 39 is a probing new clause, because I think the issue is already covered in the Explanatory Memorandum. The concern is that if an ivory item or collection of ivory items is not registered, it cannot be sold. If it cannot be sold, it has no value. If somebody dies and a valuable collection of ivories is in their estate and they have left their estate to, say, their children, then the ivories will pass to the children, as I understand it, under the provisions of this Bill—indeed, that is made clear in the Explanatory Memorandum.

19:30

My concern is not to do with the Bill and not even really with the Explanatory Memorandum, but with those wonderful, devoted ladies and gentlemen at HMRC. Like many colleagues here, I have had dealings with HMRC over the years and, perfectly reasonably, the tax inspectors’ view is that their job is to maximise the tax revenue. They wish to obtain every last penny they can under the provisions of the taxes Acts.

There is something that I want to avoid—and to make clear in this new clause—when an estate has a valuable collection of ivories, or indeed any ivories at all. Let us say for the sake of argument that there is a collection of ivories of museum quality—netsukes worth £100,000, for example; a substantial amount—and the estate is well above the inheritance tax threshold. When looking at probate, HMRC will come along and say, “You are passing this extremely valuable collection on to your children under your will”. If this collection had been registered, it would have a value. It might be a value that a museum would pay; it might be a value, if it were less than 10% ivory, such that you could sell it on the open market, but it would have a value. But without it being registered, it has no value. This new clause tries to tease out this issue and hopefully get it on the record, and to make it clear to HMRC that an ivory item that is not registered has no value and therefore no value for probate, so the wonderful inspectors at HMRC should keep their sticky fingers off it.

[Lord Gardiner of Kimble]

My Lords, my noble friend Lord Cormack’s amendment aims to enable a person who inherits a registered ivory item from a relative also to inherit the title to that registration. Self-registrations for items meeting the de minimis, musical instruments or portrait miniatures exemptions, or for items to be sold to an accredited museum, are in the name of the owner. If a new owner subsequently wishes to deal in that item, or wants to ensure that it is registered as exempt for any other reason, he or she must register it online in their name. A person inheriting a registered ivory item would assume the responsibilities of ownership of that piece, including the decision whether to register it in their name, in line with their specific circumstances. If a person inheriting or taking possession of an ivory item is unsure whether it is registered, this would not affect their rights or responsibilities as the new owner. Because the registration is associated with the individual, it therefore falls to the person inheriting the piece, as the new owner, to register the item if they wish to undertake dealing in it. I repeat: if they wish to undertake dealing in it.

The Government are working closely with interested parties to develop an online self-registration system for ivory items that will be quick and simple to use and meet the needs of all users. I also reassure noble Lords that an offline system will also be made available to cover the points that have been raised in other amendments. Of course—I emphasise this to my noble friend—for items under the rarest and most important items of their type, the exemption certificate remains with the item when it is passed to a subsequent owner. That is the distinction.

I turn to my noble friend Lord Carrington’s amendment concerning ivory items passing through probate. This is an important issue and I can reassure your Lordships that the Bill will not impact on, or cause additional burden to, those involved in such situations. The ivory ban does not affect one’s right to bequeath or inherit any ivory item, regardless of whether it meets an exemption, is registered or is certified. An ivory item may therefore be bequeathed without requiring registration by either the person inheriting the item or the executors of the estate.

The matter of inheritance tax has been clarified in your Lordships House before and I am happy to do so again for the record. Her Majesty’s Revenue and Customs confirms that ivory items will be considered to have nil value on the open market for inheritance tax purposes unless that item has been registered or certified as exempt. Items registered or certified as exempt will be assessed against their market value in the normal way and may therefore be subject to inheritance tax. With this explanation, I hope that my noble friend can withdraw his amendment.

[Lord Cormack]

Like the noble Baroness, Lady Quin, I too know when I am beat. I do not think it would serve any purpose to press this amendment. I am mildly comforted by what my noble friend said; maybe we can have conversations on this as the Bill comes into force. I beg leave to withdraw my amendment.

Amendment 37 withdrawn.

Amendment 38

Moved by

[Lord Gardiner of Kimble]

38: Clause 11, page 7, line 32, leave out subsection (5)
Member’s explanatory statement
Clause 11(5) currently allows the Secretary of State to issue guidance setting out the form or manner in which anything required by clause 10 or 11 may or must be done. This amendment removes this power.

Amendment 38 agreed.

Amendment 39 not moved.

Amendment 40

Moved by

[Baroness Jones of Whitchurch]

40: After Clause 11, insert the following new Clause—
“Guidance
The Secretary of State may by regulations produce and publish guidance to enable a person dealing in ivory to verify the exempted status of an item.”Member’s explanatory statement
This amendment would enable the Secretary of State to lay verification guidance before both Houses of Parliament.

[Baroness Jones of Whitchurch]

My Lords, Amendment 40 concerns verification regulations. As we debated in Committee, it is imperative that the exemption processes introduced in this Bill are robust and proportionate. In Committee, we introduced a probing amendment that would allow the Secretary of State to create a verification system to enable buyers to ensure that they were complying with the law. We felt that this was particularly important, given that the definition of “dealing” in Clause 1 specifically includes buying as well as selling ivory. Even the noble Lord, Lord De Mauley, with whom we on these Benches have found little common ground with regard to this Bill, concurred that it was a most sensible suggestion.

In response, the noble Baroness, Lady Vere, agreed that a potential buyer must be able to verify that it is legal to purchase the item before finalising the sale. She outlined how a buyer wishing to check the legality of buying or hiring an item would be able to confirm that it had been registered or certified as exempt and look it up on the online system via the item’s reference number. This would enable them to compare the photos and description on the system with the object they intended to purchase. This was a welcome commitment from the Government. I was disappointed, however, by the noble Baroness’s insistence that we do not need regulations to underpin such a system.

Noble Lords will be aware that the Delegated Powers and Regulatory Reform Committee report raised concerns about the scope of regulation-making powers contained in the Bill, concluding that the delegation of powers was inappropriate in many areas. We agreed with this view and feel strongly that it would be inappropriate for the purpose of establishing a verification system too. The verification process described by the noble Baroness, Lady Vere, must be subject to parliamentary scrutiny and should be set out in regulations. We feel that this is very important, given the legal implications for breaking the prohibition on dealing, as well as issues involving privacy and the protection of personal data. Indeed, it was for this reason that the noble Lord, Lord Gardiner, advised that the Government would be unable to publish photos or descriptions of specific items exempted. We need to be much clearer about the verification processes that would underpin the Bill and the protections that would be afforded to the buyers, particularly when they are making online purchases, when fake sales particulars are all too often a hazard.

Having reflected on the Minister’s earlier response, we also believe that the negative procedure offers an appropriate level of parliamentary scrutiny for the verification of exempt items. Therefore, we hope that noble Lords will support this amendment, which would insert regulations, but to be approved only through the negative procedure. I beg to move.

[Lord Gardiner of Kimble]

My Lords, this proposed new clause would provide the Secretary of State with a new delegated power to make regulations and publish guidance to enable a potential buyer of an ivory item to check its exemption status prior to purchase. I reassure the noble Baroness that the Government will ensure that compliance, by both sellers and purchasers of ivory items, is fully facilitated. The Secretary of State will issue non-statutory guidance, which will set out the detail of each exemption and the requirements for self-registration or certification of exempted items. The guidance will also contain clear advice, for both buyers and sellers, on compliance, including the process by which a potential buyer will be able to check a registration or certification before purchasing an item. I also make the point that verification is in the Bill. We will provide administrative guidance to assist both the buyer and the seller.

I note that the amendment tabled by the noble Baroness would create an additional delegated power for the Secretary of State, by allowing him to specify how many items should be verified. Furthermore, to lay regulations to specify this would be a duplication of the relevant provisions already in the Bill.

Before I set out for your Lordships precisely how the registration system will work, which is important, and thus the measures in place to enable verification, I also note that the Delegated Powers and Regulatory Reform Committee of this House has considered the Bill in detail and made a number of recommendations to reduce the number of delegated powers, which, as we heard on earlier amendments, the Government have addressed.

Ultimately, it will always be in the seller’s interest to ensure that the exemption certificate or registration document is available at the point of sale. It would be appropriate for an antique dealer or auction house to display the certificate or registration details alongside the item or show it to customers at the point of sale. For online sales, we would similarly anticipate that a seller would show proof that the item has been registered or an exemption certificate issued.

We are currently working on the design and build of a new online system to enable owners of exempt items to register them prior to sale or hire. A potential buyer wishing to check the registration of an item will be able to look up that item on the online system, using the unique registration number provided on the seller’s registration document. The buyer will be able to view the information concerning that item held on the database to satisfy themselves that it indeed relates to the item in question. This will allow buyers the comfort that the seller has complied with the process and to verify the registration document.

For items with an exemption certificate under Clause 2 of the Bill—that is, the rarest and most important items of their type—we would in practice expect the seller to make the exemption certificate available to the potential buyer. Similarly, the potential buyer will also be able to consult the online database using the unique identification number on that exemption certificate.

That is why we do not need a power in the Bill to provide the means for buyers to verify that they can legally buy a certified or registered ivory item: as I have explained, it is our intention that this will be achieved through the functionality of the online registration system. This provides a clear means for the buyer to verify the legitimacy of their intended purchase. Furthermore, the Government will publish non-statutory guidance, which will set out exactly how sellers should provide buyers with the assurance that they are entitled to sell an item and that the transaction will therefore be lawful.

Before the Bill is commenced, we will run an awareness-raising campaign to ensure that relevant stakeholders and members of the public are fully aware of the new legislation and associated guidance. As such, we believe it would be unnecessary to include additional powers in the Bill to enable a potential buyer of an ivory item to check on the exemption status of an ivory item. As I have explained, this is precisely why perfecting the online registration system is so important and why work is under way on that.

I believe that the Government have covered the points that the noble Baroness seeks to address, given the explanation and a bit more detail. As the online system is developed, I am happy to ensure, for any noble Lords interested in these matters, a continuum of assurance that this work is well in hand. On that basis, I say to the noble Baroness that these points are covered. I sincerely hope she feels able to withdraw her amendment, because the Government have covered this point.

19:45

[Baroness Jones of Whitchurch]

My Lords, I am grateful to the Minister for that response but I am disappointed by what he had to say. I had hoped that he would have reflected a little more on the debate we had in Committee on these issues. He acknowledged that the Delegated Powers Committee has already been critical of the amount of delegation included in the Bill. He went on to talk about producing administrative guidance or non-statutory guidance, which is a continuation of that non-specific process. He then said that the Government were working on the design of the registration scheme. I understand that it may not currently be fully functioning, but that is all the more reason we need to see the detail and need regulations that spell it out.

I am sorry that the Minister was not able to meet us further on this. There are big issues around implications for privacy and data protection. There is a legal underpinning: if you break this law, sanctions will be taken against you. It is not a frivolous issue; it is important. It is not simply about buying and selling but about complying with the law and not complying with the law. I am therefore sorry to say that, unless the Minister is able to tell us that he is prepared to come back to this at Third Reading, we would like to test the opinion of the House.

19:48

Division 3

Ayes: 82

---

Labour: 63
Liberal Democrat: 16
Independent: 1
Crossbench: 1
Green Party: 1

Noes: 127

---

Conservative: 113
Crossbench: 8
Democratic Unionist Party: 3
Independent: 2
Liberal Democrat: 1

19:59

Amendment 41 not moved.

Clause 12: Offence of breaching the prohibition or causing or facilitating a breach

Amendment 42

Moved by

[Baroness Jones of Whitchurch]

42: Clause 12, page 8, line 7, leave out subsection (2) and insert—
“(2) It is a defence for a person charged with an offence under this section to prove that they did not know or suspect, and could not reasonably be expected to know or suspect, that the item is ivory, is made of ivory or (as the case may be) has ivory in it.”Member’s explanatory statement
This amendment permits a defence of ignorance, with the onus on a person to prove that they did not and could not have been expected to know or suspect that an item contained ivory, to help tackle the problem of deliberately mislabelling ivory items as other substances.

[Baroness Jones of Whitchurch]

My Lords, Amendment 42, which deals with the defence of ignorance in Clause 12, would remove the provision in the Bill stipulating that an offence has been committed only if the person knew or ought to have known or suspected that an item contained ivory. Under our amendment, it would be a defence if a person proved that they did not know or suspect, or could not have known or suspected, that an item contained ivory. That might sound as though there is not much difference, but there is an important difference in the burden of proof, and that is something that we seek to strengthen.

We considered this issue in Committee but failed to have a meeting of minds on the wording of this clause. At the time, the Minister, the noble Lord, Lord Gardiner, advised that the provision had been included to help tackle the issue of illegal ivory in items being deliberately mislabelled as another substance, and to protect those who fall victim to such ploys who genuinely did not know that an item they were dealing with contained ivory. Of course, we know that mislabelling is common. Numerous studies have found that new elephant ivory offered for sale is often mislabelled as ivory from other species or another material altogether, such as bovine bone. In some instances, this may well have been due to genuine unawareness, although deliberate mislabelling is a well-known tactic used in the illegal ivory trade to evade detection and facilitate illegal sales. In those circumstances, a seller might provide other information to indicate more discreetly to buyers that the item is indeed ivory, such as close-up photographs that depict cross-hatching, a tell-tale sign of ivory, or code words used in the trade to surreptitiously indicate that an item is made of or contains ivory.

We must have a form of wording that differentiates between those who are playing the system and know perfectly well what they are trading and others who have been genuinely duped. If we stick with the original wording, it would too easy to claim that you were unaware of what you were buying and would make enforcement a real challenge for the agencies, which would have to prove that you knew it was ivory.

Our amendment allows for a defence of ignorance but introduces a higher evidential threshold than in the clause as currently drafted. It also brings it in line with the provision in Clause 12(3), which allows for a defence if an individual can demonstrate that they took all reasonable precautions to comply with the law. I am therefore moving this amendment and I hope noble Lords will see the sense of our arguments. I beg to move.

[Baroness Vere of Norbiton]

My Lords, I thank the noble Baroness, Lady Jones of Whitchurch, for her amendment to Clause 12(2). The purpose of the current subsection (2) is to outline the criteria required to demonstrate that an offence has been committed. Subsection (3) provides a person accused of an offence with the defence that they took reasonable steps to avoid the commission of that offence. The purpose of subsections (2) and (3) together is to provide a balanced and proportionate framework with regard to prosecutions under the Bill, and to tackle the problem of illegal ivory items being deliberately mislabelled, while also providing a defence that allows a person to prove that they took the reasonable steps needed to ensure that the item was not elephant ivory.

Amendment 42 is explained by the noble Baroness, Lady Jones, in the Member’s explanatory statement published alongside the amendment as permitting the “defence of ignorance”. As noble Lords will know, there is no defence of ignorance in UK law. It is not permissible for someone accused of a crime, be it large or small, simply to claim that they did not know that it was illegal to do something. If we were to accept the amendment, we would also be suggesting that an individual would be able to prove a negative—to prove that they did not know something. That would be extremely problematic.

Furthermore, the amendment as drafted does not in fact reflect a “defence of ignorance” as referred to in the Member’s explanatory statement to the amendment. To explain a little, the amendment would remove the criteria in Clause 12(2), which outlines the requirements that must be satisfied for an offence to occur. Subsection (2) provides legal certainty on what constitutes an offence. It states that an offence is committed in relation to an item only, first, if a person knows or suspects or, secondly, if the person should have known or suspected that the item involved in the commission of an offence is elephant ivory or has elephant ivory in it. Subsection (3) essentially achieves the desired effect of the noble Baroness’s amendment. It states:

“It is a defence for a person … to prove that the person took all reasonable precautions and exercised all due diligence to avoid committing the offence”.


In fact, subsection (3) goes further than the amendment, as it explicitly states what a person must prove to rely on that defence. Furthermore, in this case the individual will be seeking to prove a positive action. It is a far easier prospect to prove that due diligence has been undertaken than to prove a negative—that they simply did not know.

Let us have a quick look at how the Bill would operate if the noble Baroness’s amendment were accepted. Mrs Smith goes to a car-boot sale and sees a lovely box, which is very similar to her grandmother’s. She is not a very well-off lady, she owns absolutely no antiques and she pushes the boat out on that day and pays a tenner for this box as a treat. The box has a tiny, almost imperceptible, amount of ivory in it. Is Mrs Smith a criminal? It is not our intention that she should be. Removing subsection (2) makes the law far less clear because in that subsection is the outline of the requirements that must be met for an offence to occur. In the current draft of subsection (2), the elements of an offence are clear. To remove the subsection, as suggested in the amendment, would upset the firm legal foundation of the Bill. Removing the criteria for the offence in subsection (2) would cause significant uncertainty and risks overwhelming the enforcement system with Mrs Smiths, while the real criminals are left free to continue to break the law by dealing in ivory on much larger scale.

The Bill seeks to be balanced and proportionate. Removing subsection (2) would achieve neither aim. The police, enforcement bodies and the courts can use their professional discretion when considering the approach to use, based on a number of factors—for example, whether that person knew about ivory trading, whether it is a repeat offence or whether there is any evidence of deliberate mislabelling. Discretion is very welcome, but it must be based on a firm foundation of effective law. The amendment of the noble Baroness runs the risk of criminalising those who are not criminals at all.

Clause 12(2) and (3) are very carefully phrased. They protect individuals where there is absolutely no intent to breach the ban, and where the person could not be reasonably expected to know that the item was ivory or even contained ivory. It is not our intention to criminalise these people; that would be disproportionate and counterproductive. I have listened very carefully to the arguments put forward by the noble Baroness, Lady Jones. It is the Government’s intention in subsections (2) and (3) to be clear and proportionate, and I believe that is the case. Given this explanation, I hope that the noble Baroness will feel able to withdraw her amendment.

[Baroness Jones of Whitchurch]

My Lords, the Minister and I agree that it was never our intention to criminalise Mrs Smith at the car-boot sale, and that is part of the argument that I had intended to set out. We were trying to criminalise those people who were playing the game and deliberately trying to mislead people. I am pleased that the Minister said that there was no defence of ignorance in UK law. Our worry was that that was exactly how her wording came across, because the original amendment says that an offence is being committed only if the person knew or ought to have known or suspected than the item contained ivory; that implied a defence of ignorance.

However, I hear what the Minister says: we have to look at subsections (2) and (3) together, and, perhaps because of the late hour, I will not choose to pursue it on this occasion. I therefore beg leave to withdraw the amendment.

Amendment 42 withdrawn.

20:10

Consideration on Report adjourned until not before 9.10 pm.

Discontinuing Seasonal Changes of Time (EUC Report)

Wednesday 24th October 2018 Lords Chamber

Motion to Take Note

20:09

Moved by

[Lord Whitty]

That this House takes note of the Report from the European Union Committee on the Commission Proposal for a Directive of the European Parliament and of the Council discontinuing seasonal changes of time and repealing Directive 2000/84/EC (COM(2018)639, Council Document 12118/18) (22nd Report, HL Paper 200).

[Lord Whitty (Lab)]

My Lords, I shall speak to both Motions in my name at the same time. In some ways, this is a slightly esoteric Motion, but the subject matter concerns every single citizen. I thank the members of my sub-committee and the Select Committee for their help in producing this draft reasoned opinion and presenting it to the House tonight.

It is important to recognise that the decision this evening relates to the issue of subsidiarity and whether this House wishes to submit a reasoned opinion. It is not on the subject matter itself. The subject of the report is obviously the Commission’s proposal to replace the obligation to apply seasonal changes of time—to turn the clocks back or forward—with an obligation to discontinue this practice. We have probably all heard over the years different views on whether that would be a sensible thing or not for different groups in different parts of the country. This House has debated the issue several times over the years. But the issue tonight is whether we consider that the Commission’s proposal is in order in terms of subsidiarity and in terms of the persuasiveness of the assessment that the Commission has made on single market grounds.

The timing of this proposal is important. It would see the end of changing the clocks. Member states would retain the discretion to choose which time zone they operated in, but there would be no seasonal clock changes. Effectively, member states would be required to opt for permanent winter time or permanent summer time—presented to the people, there is no choice between those, but in effect that is what it means. The Commission’s intention is that this would come into force in April next year. That means in the proposed transition period, which, if the UK and the EU reach a deal, means that it would clearly apply to the UK. Even without a deal, the proposal could have significant implications, particularly for the island of Ireland.

I come to the proposed reasoned opinion. Since the coming into force of the treaty of Lisbon, national parliaments have a formal role in the scrutiny of EU legislative proposals, notably through examining compliance with the principles of subsidiarity. Subsidiarity is defined in Article 5 of the Treaty on European Union like this:

“the Union shall act only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States, either at central level or at regional and local level, but can rather, by reason of the scale or effects of the proposed action, be better achieved at Union level.”

National parliaments then have eight weeks from the transmission of a proposal to issue a reasoned opinion. Each parliamentary chamber has the ability to do so. If the vote is agreed by more than one-third of all the votes allocated to national parliaments, the Commission is obliged to review its proposals. That is the so-called yellow card procedure.

The decision to send a reasoned opinion must be agreed by the whole House. That is a rare proposition. The last time that the House agreed to send a reasoned opinion was in January 2016 on a proposal on reforming EU electoral law. The House of Commons is clearly also considering this proposal. The appropriate committee has not yet reached its conclusion but will do shortly and, if it is agreed, the Motion will be put to the whole House.

I emphasise that the report and hence the decision are on the question only of subsidiarity and not of policy. The policy of summer time arrangements has been the subject of many domestic and parliamentary debates. Noble Lords may well have received even in the last few days representations from safety organisations and representatives of the agricultural and construction sectors. But because of the importance of this, our Select Committee has treated the question of subsidiarity as a preliminary matter. If this proceeds further, there may be a point for the sub-committee to consider the objective benefits or otherwise of the detailed policy, but the yellow card procedure, checking that the Commission has observed the principle of subsidiarity, is a very important first step.

The proposal’s subsidiarity statement, which is the first of the three main points, is that under Protocol 2 annexed to the treaties, draft legislation,

“should contain a detailed statement making it possible to appraise compliance with the principles of subsidiarity”.

The Commission’s proposal, in our opinion, does not meet that obligation. The subsidiarity statement is very limited and cites “increased questioning” of the current arrangements, although there is not much evidence of that, but we note that this mainly seems to arise because of an opinion poll conducted across the EU. The vast majority of responses came from three countries—indeed, 70% of the responses came from Germany, where for some reason it has been a live issue for debate in recent months. The proposal also referred to various studies and reports on the application of summer time arrangements, but none of those cited reports ended up recommending abandoning the current system.

The second issue is that Protocol 2 requires the Commission’s consultations to,

“take into account the regional and local dimension of the action envisaged”.

In the case of this proposal, the impact of losing summer time arrangements varies considerably between and within member states due to the interplay between longitude, latitude and time zones in determining daylight hours. That is particularly important for the UK, where it is well known that the benefits and drawbacks of permanent summer time or permanent winter time would significantly differ between the northern and southern parts of our kingdom.

The potential implications for the UK are exacerbated by the devolution settlement in Northern Ireland under which the setting of the time is a devolved matter, which is not the case for Scotland and Wales. Indeed, we note that in a no-deal scenario, if Great Britain as a whole decided to maintain summer time arrangements, Northern Ireland would separately have to choose between having a one-hour time differential for half the year either with the Republic of Ireland or with Great Britain.

My last point concerns the internal market objective. The Commission’s proposal points to the importance of harmonised summer time arrangements for the functioning of the internal market under Article 114. However, harmonisation is already provided for under the current arrangements. Very sensibly, a few years ago, the Commission proposed and it was adopted that where we switched time, the date of switching had to be co-ordinated for the same day, which is of great benefit to the transport sector and for those of us who, for a few weeks of the year, were completely confused as to what the difference either side of the channel was going to be. That was a sensible calling into question of the previous arrangements under internal market arrangements. But the Commission has not adequately explored in this context an additional option, which is the possibility of allowing member states to choose whether or not to observe seasonal clock changes, but requiring co-ordination for the date for those that do so.

Towards the end of the preparation of this report, we received an Explanatory Memorandum on the proposal from the Government. I understand that the Minister concerned is Sam Gyimah, a colleague of the noble Lord, Lord Henley. The committee was familiar with Sam Gyimah because we recently received a useful contribution from him in relation to the Galileo project. He is obviously a busy chap, as he is responsible for time as well as space. His Explanatory Memorandum agreed that the harmonisation was already provided for under the current arrangements, and that the Commission had not demonstrated how its proposals would enhance that. Therefore, the Government are broadly on the same side as us on this. The noble Lord, Lord Henley, will explain their position later. They also highlighted that the proposal would require a huge exercise to assess how a permanent switch to summer time or winter time would affect all sectors and regions of the UK’s economy. Given the timescale of this coming into effect, there would be very little time for that to be carried out.

For those reasons, the report concludes that the Commission’s proposal to discontinue seasonal changes of time does not comply with the principle of subsidiarity and does not sufficiently make the case under internal market rules. Considering that geographical and other factors come into play for the UK in particular, that leads us to the conclusion that the member states are best placed to determine whether seasonal changes remain appropriate within their jurisdiction. On this occasion, we conclude that the Commission has failed to observe the principles of subsidiarity and has exceeded its powers. I therefore beg to move.

20:21

[Lord German (LD)]

My Lords, I pay tribute to the staff and clerks of this House for drawing up this reasoned opinion, and also to the noble Lord, Lord Whitty, for chairing the sub-committee so well and presenting this reasoned opinion to the House.

I do not intend to use this debate to promote the merits of retaining or abolishing daylight saving time. The House of Lords has debated this matter on several occasions and come to its conclusions. It is quite clear that there are different opinions across the United Kingdom. However, the principle of whether abolition should be within the competence of the European Union is at the heart of the matter for debate and decision here today.

As the noble Lord, Lord Whitty, says, this reasoned opinion debate opportunity presents itself to the UK as we are currently full members of the European Union. If the timetable for the European Union legislation implementation, as outlined in the draft directive, is followed, then the proposed European law would come into effect in March or April of next year, meaning that the UK—should we leave the EU with a deal—would be obliged to implement it during the transition period. If we fail to change this legislation at this point, and if the UK leaves the European Union without a deal, then the potential for time differences between the UK and Ireland, and thereby also across the Northern Ireland border, would vary for six months of the year.

The European Union believes that it has competence to bring forward this proposal to ensure the proper functioning of the internal market. This debate and decision—because this House has one vote in the European Union, as does the House of Commons—if given appropriately, could mean that the European Union would have to change its mind if sufficient numbers of parliaments across the European Union agree. The purpose of this debate is, first, for Parliament, and the House of Lords, to assert that matters regarding major time changes should be left to member states; and secondly, to pass the reasoned opinion, then build agreement with other member state parliaments so that a yellow or red flag can be raised, causing the Commission to think again.

The principle of subsidiarity serves to regulate the exercise of the Union’s non-exclusive powers. It rules out Union intervention when an issue can be dealt with effectively by member states at central, regional or local level, and means that the Union is justified in exercising its powers when member states are unable to achieve the objectives of a proposed action satisfactorily, and added value can be provided if the action is carried out at Union level.

Under Article 5(3) of the European Union treaty, there are three preconditions for intervention by Union institutions in accordance with the principle of subsidiarity. First, the area concerned does not fall within the Union’s exclusive competence; that is called non-exclusive competence. Secondly, the objectives of the proposed action cannot be sufficiently achieved by the member states; that is necessity. Thirdly, the action can therefore, by reason of its scale or effects, be implemented more successfully by the Union; that is added value. It is on the second of these preconditions—necessity—that the case is being made to Parliament today.

First of all, I want to deal with the counterargument that might be put to us by the European Union: that the United Kingdom agreed to synchronise daylight saving changes across the European Union under a European Union directive, and therefore, they would maintain, the competence required by the European Union has already been demonstrated.

Apart from the legal base of this legislation over the 2000 directive, here I must turn to the principle of proportionality: that actions must be limited to what is necessary to achieve the objectives set. Unfortunately, the Government’s Explanatory Memorandum is woefully thin on this matter. It is quite thin gruel, because it places the principle of proportionality under the heading “subsidiarity”, which is of course a separate principle. However, putting the Explanatory Memorandum aside for a moment, the argument from the European Commission is that it is safeguarding the proper functioning of the internal market in respect of time arrangements through harmonisation. But we already have harmonisation of time: our clocks move to and from daylight saving time at the same time as those of other member states. The Commission fails to adequately explain why the abolition of daylight saving time would bring proportionate benefits to the internal market beyond the harmonisation we currently have.

As well as that, a change from daylight saving time harmonisation to abolition altogether is a major change to the arrangements in this country, and indeed in other member states which operate daylight saving time alterations twice a year. Put simply, moving the date at which we altered our clocks to a common date meant we shifted our clocks a week or so differently than we had been used to. Something we already did every year was subsequently done on a uniform date: a relatively minor change with little meaningful negative impact. However, abolition altogether would mean a different time for six months of the year, which I maintain is a major change to our arrangements. I believe that this House can justifiably argue that the change proposed breaches both the subsidiarity principle and the proportionality principle under which the European Union operates.

I turn now to the evidence which the Commission has provided. It cites as evidence of the need for change an assessment paper on the impact of the 2000 directive harmonising the dates for daylight saving time for the European Parliament, and a paper outlining the results of a public consultation. I will take each of these in turn.

The assessment paper helpfully points out that,

“EU legislation did not introduce summer time in the EU, but instead harmonised existing national legislation”.

That is a very important point, because that argument again strengthens the case for subsidiarity. The document further states:

“No EU government has called for a change to the current DST provisions”.


This is another argument which poses no question about the necessity for intervening with member state governments.

The paper makes further conclusions which are relevant to this debate. First, it concludes:

“DST benefits the internal market, leisure activities and generates marginal energy savings”.


Secondly, it says that,

“the impact of DST on various other sectors … remains inconclusive”,

and, in terms of health, the evidence is mixed, with some good and some poorer effects. Obviously, if you change the arrangements, there will still be some good and some poor effects. Taking these factors together, the current system has not given rise to significant complaints, either economic or social.

The public consultation seems to be one of those surveys where the questions asked—and to whom they were asked—give rise for concern. There were 4.5 million respondents, of whom 3.1 million came from Germany. The next biggest responding country was France with 393,000 respondents—about one-eighth the size of the German sample. Given the small numbers from other large member states, including the United Kingdom, it seems obvious to me that two factors were at play. First, clearly an effort was made in Germany to achieve a high response, through whatever methods, which was not emulated elsewhere. My second conclusion is that the relatively low numbers for the majority of member states indicates that those with concerns were more likely to respond than those who were happy with the status quo. I hesitate to mention one of the five questions that was put. I ask myself, what is the obvious answer to the question, “Would you prefer permanent summer time or permanent winter time”? Answers on a piece of paper.

The reasoned opinion drawn up by this House illustrates these matters well and explains the case for powers over time changes remaining with member states. Here and in the European Union, we are well organised on the current daylight saving time arrangement. The clocks go forwards and back at a time we all know; the airlines have their schedules ready and use them accordingly. The status quo is working. My plea to the Government is to assist in getting the support of other Parliaments to provide reasoned opinions as well. I request the noble Lord, Lord Whitty, to understand what steps this House will take, having passed this reasoned opinion, to promote it to other Parliaments in the short timescale left. I support both Motions before us.

20:32

[Lord Rooker (Lab)]

My Lords, I support entirely the contents of the speech made by the noble Lord, Lord German. I ask myself, where did this all come from? I do not know where the issue was initiated. I did not even know about it until I saw it on the Order Paper; it had not reached the EU sub-committee I serve on and I did not see any reference to it in the media. It looks like the kind of diktat that really puts people off the EU.

I am an avowed remainer; I will vote remain whatever the deal. I do not care; I will not vote differently. When David Cameron went to negotiate, I said, “Whatever he brings back, I will vote remain”. That is it. It gets up my nose that somebody somewhere in Brussels had this little idea and rigged a consultation of sorts, quite clearly. It beggars belief that 70% of the responses came from one country. I find that amazing. It does not make sense. It is a one-size-fits-all argument, typical of Brussels to the core. There was no real consultation. In any case, there is no time for a genuine consultation on this major change because after this weekend, that is effectively it. This is what the EU is after. The change will come into force in April next year. It is also the time of the Euro elections. Where has all this come from? Why the rush? I do not understand.

I have read the select committee report a couple of times. The reasons for the change are entirely spurious. I do not accept either the proportionality argument or the argument for the internal market, given what I know about the EU. Obviously, we are talking about the report. I must make it clear that I support the move to permanent summer time in principle. I have no argument with that. There is overwhelming evidence for it: energy savings, fewer accidents, less crime, more leisure and sports and more tourism. Even the NFU in Scotland supports it, although the NFU for England and Wales is neutral. Techniques and everything else have changed since it was done earlier.

I will not go into the details but there is overwhelming evidence that it would be advantageous. In fact, RoSPA put the case for not just one, but two, extra hours, as well as for trialling it. I know that there was a trial back in the 1960s; I vaguely remember it. However, this diktat comes along with virtually no warning, no general support across the EU for it, no debate about it—certainly not in this country—and all of a sudden, we are expected to go along with it. I simply cannot accept that the EU is dictating for all the wrong reasons. That is what the report is about. I support the committee and the recent amendment. As I say, in any event, we should be allowed to trial this on a time basis. There was a two-year trial, I think, in the 1960s; I would probably trial this for five years.

Above all else, this is a matter for member states, not the EU Commission. I want the UK to remain a member state but supporting the EU when it comes along with issues such as this really gets up my nose. I support the committee.

20:35

[Baroness Randerson (LD)]

My Lords, I am grateful that the debate is sufficiently late in the evening for it not to have provoked a long list of people wanting to debate the issue of summer time and winter time changes rather than the specific report.

As a member of the committee, I confess that I had some doubts about the decision to produce this report on a reasoned opinion. I rather felt that, notwithstanding the forceful remarks of the noble Lord, Lord Rooker, the issue of subsidiarity had been effectively established. After all, years ago we accepted the EU’s right to instruct us, as the noble Lord, Lord Whitty, said, to synchronise our dates for moving to and from summer time. If we think that the EU can tell us when to do that, what is different about its right to tell us to make a decision about which time zone we want to be in and to stick to it for the whole of the year? Effectively, the EU established its power and influence on this in past years. Maybe the Minister can reflect on that in his response.

However, I share the concerns that this is not the time to do this. In particular, I have very serious concerns that the lead-in period to this change is very short—unrealistically short—because there will be practical issues. There are transport timetables that have already been sorted out for the next year, for example. Then there is the technology of all the systems in our homes that are set and timed to change twice a year. I assume that will all need adjustment in due course if this change were to be introduced. When I was young, when summer time and winter time came in you went and solemnly changed the hour on the clock. Then we went through this nightmare scenario where you had to read an instruction book of about 100 pages first so you could work out how to change the hour on your digital clock or heating system or whatever it was. Now, thank goodness, we have gone through to a phase where these changes happen automatically, but I assume that someone has to tell them to do that automatically, and that they are set to do it in a particular way. If we are going to change the way we do things, there needs to be a substantial lead-in time so that technological solutions can be found.

There is justifiable criticism of the response to the consultation by the EU. It is worth saying that this was the largest ever response to any EU consultation, so I do not think you can criticise the numbers. What you can criticise is the lack of balance in the number of respondees. Germany responded enthusiastically because there was a lively public debate on this, but its interests on this are very different from those in the very north of the EU and particularly different from those in the very south. Therefore, it is important that every country has a number of respondees to represent the interests of that concern from their country.

Although I think synchronisation with the rest of the EU is desirable in many ways, there is, at the very least, an important issue about delaying it for a proper and lively debate, so that this is something Europe looks to in maybe three, four or five years’ time rather than within the next calendar year.

I reflect on the concerns expressed by my noble friend Lord German about Ireland. The problems on the Irish border—if this goes ahead and we are not members of the European Union—will be compounded by being in a different time zone from the rest of the EU for part of the year.

The evidence from across the world demonstrates that the impact of time differences on the ability to trade effectively is considerable and that is what the EU was aiming at: to improve trade circumstances. If we could trade as easily with the USA and Australia as we can with the EU, then, clearly, we would have a much higher proportion of our trade with those two countries, but the time zones make a big difference. There is an issue of common sense here. Why have Turkey, Norway and Switzerland—three countries that are not members of the EU—aligned themselves with the EU in changing their time from winter time to summer time on the same dates? They have done it because it suits business and, I dare say, we would continue to do the same thing in future, so it makes sense to simplify our time zones and reduce our differences with our trading neighbours.

However, what we are doing to ourselves over Brexit is equivalent to putting ourselves on the other side of the world in terms of time. Pragmatically, and in reality, we need to concentrate on the issues that are of most concern to us at this time and we do not need to be distracted by this particular concern.

I am prepared to accept that we should not sign up to this initiative, at least not at this time and without better preparation. The words of the noble Lord, Lord Rooker, ring true with me that this is not the time to do this. The issue of summer time, winter time and those changes is hugely divisive across the country, between the north of Scotland and southern England. At this moment, our country is bitterly divided on Brexit, and the last thing we need to do is add to those divisions by messing around with the clocks.

20:44

[Lord McNicol of West Kilbride (Lab)]

My Lords, I am grateful to my noble friend Lord Whitty for his introduction to the EU Committee’s report on discontinuing seasonal changes of time and for introducing this Motion on the same subject. Tonight is my first time at the Dispatch Box.

EU legislation on summer time arrangements was first introduced in 1980 with the objective of unifying existing national summer time practices and schedules, thereby ensuring a harmonised approach to the time switch within the single market. On this side, we recognise that some benefits could be obtained from the removal of member states’ seasonal time changes, although, in reading the European Commission’s directive, I am far from convinced by how great those benefits would be.

More importantly, we believe that member states should always be central to determining whether seasonal time changes remain appropriate in their own territories. As my noble friend Lord Whitty’s committee has demonstrated, ending seasonal changes of time does not comply with the principle of subsidiarity. The noble Baroness, Lady Randerson, touched on this, citing the earlier change in alignment of when the clocks were changed. I suggest that the changes proposed are fundamentally different and would have a larger effect on more parts of the United Kingdom, so the subsidiarity issue is relevant.

Within the UK, we must always consider the strength of feeling across each of the home nations, despite the issue being reserved to Westminster for Scotland and Wales. Furthermore, we must be conscious that there are no equivalent reservations or expectations for Northern Ireland. Are we really considering, as touched on earlier, the possibility of Northern Ireland being out of alignment with the rest of the United Kingdom and/or the Republic of Ireland for six months of the year? Further consultation is clearly needed across the board on whether discontinuing seasonal changes of time is the right route for the United Kingdom.

One further concern lies in the fact that this proposed EU directive appears not to have considered all the possible scenarios and options. Does the Minister agree that other possible changes should be explored before any final decision is made?

In a similar vein, the report talks about various studies on how the use of summer time arrangements works, yet none of those reports mentioned in the proposal says that we should abandon the current system of seasonal changes of time. In looking at the detail of the proposed changes, in particular considering the interplay between longitude, latitude and time zones on determining daylight hours, we are very concerned to note that a move to a permanent winter time or a permanent summer time would have differing ramifications for different parts of the UK.

Having to choose between a permanent summer time or a permanent winter time has both benefits and drawbacks depending on whether we are talking about the south-west of England or the north-east of Scotland, Orkney or Shetland. If the UK chooses a permanent summer time, it would mean lighter evenings; however, in Scotland, where there are shorter winter days, children and adults would have to travel to school and to work in the dark. Having longer, lighter mornings has been supported by many morning workers, including postal workers, the construction industry and farmers. Can the Minister point me to any recent research about the various options which may be considered? Do the Government agree that any changes under consideration should be preceded by a consultation with each nation and region of the United Kingdom?

The Government’s Explanatory Memorandum highlights that public consultation and an assessment would be required on how a switch of time zones could affect all sectors of the UK economy. Will the Minister give the House an assurance today that the Government will give consideration to the strength of feeling of those workers and industries which would be most impacted by any change?

As my noble friend Lord Rooker touched on earlier, RoSPA has taken the argument a stage further and asked whether we could adopt a “Single/Double British Summertime”, or SDST. SDST would mean that we adopt GMT plus one during the winter months and GMT plus two over the summer period. This, RoSPA argues, would allow lighter evenings all year round, and would result in fewer people being killed and injured in road accidents. Unfortunately, we currently see an increase in the number of pedestrian deaths due to darker evenings in winter months. Do the Government agree that more time is needed for the UK to decide what the best option is?

Finally, do the Government also accept the powerful arguments made by our EU Committee that it would be better if the EU gave more weight to the principle of subsidiarity and ensured that member states were able to decide seasonal time changes within their own territories?

20:51

[The Parliamentary Under-Secretary of State, Department for Business, Energy and Industrial Strategy (Lord Henley) (Con)]

My Lords, I take this opportunity to welcome the noble Lord, Lord McNicol, for a second time to the Dispatch Box, because it will be a rare moment for him to take part in a debate where there is quite such a degree of unanimity—in this House—on EU matters. I hope, as the noble Lord, Lord Whitty, put it, that we get unanimity in another place in due course, and that that will strengthen the Government’s hand. For the benefit of the Chamber, I will set out the Government’s position in due course.

The final questions from the noble Lord, Lord McNicol, are important and need to be addressed at some point in the future, but they are not a matter for this debate. Like the noble Lord, Lord Rooker, I have my views, he has his views, and the noble Baroness, Lady Randerson, has her views—we all have our views, and at some point they will have to be discussed and the benefits argued in relation to accidents, energy and a range of other issues. It is very important that we in this country do it, because, as the noble Lord made clear—I know where he is from—there are different views in the north of England and in Scotland. It affects Northern Ireland in a different way. On top of that, there are the complications that arise because this is a devolved issue in Northern Ireland but a reserved issue in Scotland or Wales.

There is a host of complications. As the noble Baroness, Lady Randerson, said, this is not the moment to discuss them. Just as a diversion, however, I remind her of her former noble friend Lord Tanlaw, who, I think, was also my noble friend for a while, and a noble friend of the Cross Benches for a time. He had very strong views on the subject of clocks and timing, and on a very regular basis brought them before this House. That is not a matter for today.

I start by saying a few words about the backdrop to the proposals before setting out the Government’s views and what we wish to do. We have been aware for some time that several member states in the eastern part of the EU have been lobbying for the abolition of daylight saving. It was reported just over a year ago that Poland was planning to scrap daylight saving unilaterally, but in the end that did not happen. In response to lobbying from those member states and the European Parliament, however, the Commission agreed to review the summer time directive. That review included a public consultation, which took place in July and August this year.

The noble Lord, Lord German, spoke about that consultation and the noble Lord, Lord Rooker, made other comments in more robust and Rooker-esque words—I think he said that he felt it had possibly been rigged. But as the noble Lord, Lord German, made clear, there were some 4 million responses, with some 84% favouring the abolition of daylight saving, but they were disproportionately from Germany and one or two other countries. We felt that the high number of responses was partly due to two citizens’ campaigns, which encouraged people to vote to abolish daylight saving. Following this, President Juncker moved quickly to confirm that the Commission would bring forward proposals regarding the summer time directive. Those were announced on 12 September.

I turn, as the Commission did, to the principles of subsidiarity and proportionality. I am sorry that the noble Lord, Lord German, felt that we had confused or muddled the two together in our Explanatory Memorandum. In areas of shared competence such as that which we are discussing, the European Union can bring forward proposals but must do so within the constraints established in Article 5 of the Treaty on European Union. These are that the European Union may act,

“only if and insofar as the objectives of the proposed action cannot be sufficiently achieved by the Member States”,

and that,

“the content and form of Union action shall not exceed what is necessary to achieve the objectives of the Treaties”.

European Union action in this context must be both necessary and add value in such a way that it would not be better achieved by the member states.

The Government do not doubt the European Union’s competence to bring forward proposals on this subject. Indeed, the European Union has been regulating this area via multiple directives since it first introduced legislation on summer time arrangements in 1980. However, the proposal we are discussing differs from its predecessors in a crucial way: while the others sought to advance the harmonisation of time in line with the objectives of the treaties, this new proposal starts from an existing position of harmonisation. In this context, any proposal seeking to change the current arrangements should be supported by evidence that clearly demonstrates the benefits for the Union, member states and their citizens. We believe that the Commission’s proposals fall short on this point.

The Commission states in its own proposals that the current body of evidence is inconclusive on energy saving, overall health impacts and implications for road safety, and that technological advances in agriculture have largely offset the disruptive effect of biannual time changes. Providing a reasonable timeframe for member states to carry out a proper consultation and impact assessment would have gone some way to remedy this lack of evidence. Yet under the current proposal, member states are expected to have concluded this work and all the necessary domestic measures required to implement the directive by 1 April 2019.

On these points, the Government share the concerns of the committee. The European Commission has not presented a compelling case for the need to legislate on this subject matter to further advance the objectives of the treaties. The Commission affirms that the proposal “does not go beyond” what is,

“necessary to achieve the objective of continuing to safeguard the proper functioning of the internal market as regards time arrangements”.

Yet the existing directive already ensures harmonisation of time across the Union and the Commission does not demonstrate how the proposal under discussion would enhance that.

The Government recognise the benefits of harmonised time arrangements with our neighbours, which the evidence supports. But when we take those as our starting point, we should be cautious about initiating change in the absence of scrutiny and analysis proportionate to its potential impact. Again, I make it clear that the Government fully support what the committee has said. I am grateful for its work on this and I hope that the noble Lord will move his second Motion.

My advice is that another place will consider this matter shortly. I hope at that moment my honourable friend—referred to by the noble Lord as the Minister for time and space—will be able to respond in a similar manner.

I give an assurance that we will continue to work with other member states. As the noble Lord, Lord Whitty, made clear, the views of other member states and other member state parliaments are crucial. In fact, I will be travelling to Austria for a meeting of one part of the Council in the next week to make this point as vigorously as I can. Possibly I will not be allowed even as long as eight minutes to speak, knowing the constraints of how Councils tend to operate. But we will be trying to persuade other member states to see the light on this and I hope we will be able to persuade the Commission to see daylight on this.

21:00

[Lord Whitty]

My Lords, I thank the Minister for his support for the committee’s position. We have a high degree of unanimity in this Chamber. I thank all noble Lords who have spoken. I was very pleased to be present at my noble friend Lord McNicol’s appearance at the Dispatch Box. He seems as if he is going to do a decent job. He once took a job that I once had, and he was quite good at that too.

I hear what my noble friend Lord Rooker said that, effectively, this is the sort of proposition that gets the Commission a bad name. I agree with him that despite what we might individually think about the substance of this, this is not an appropriate way of proceeding.

I thank the noble Lord, Lord German, and the noble Baroness, Lady Randerson—who are both members of the committee—for their support on this and, indeed, in the discussion that we had on the committee. In particular, I thank the noble Lord, Lord German, for underlining the proportionality argument, which perhaps in retrospect I did not emphasise enough. That is an important dimension and probably answers some of the points raised by the noble Baroness, Lady Randerson. While this may potentially be within the remit of the Commission, subsidiarity requires that you adopt a proportionate approach and decide that this cannot best be pursued within the individual member states.

The noble Lord, Lord German, asked how we will pursue this with other parliaments. The timescale is short, but I assure him and the House that the noble Lord, Lord Boswell, the chair of the main committee, and I will try to ensure that our parliamentary contacts are aware of the importance of this issue to the United Kingdom and the difficulty of proceeding at the kind of pace that the Commission proposes, without trial and without notice. I hope we will get a response from our parliamentary colleagues. The Minister has indicated that he will pursue it with his ministerial colleagues in the other member states. I hope this is an occasion on which unanimity will be broader than within this House and another place and will actually prevail.

It is, of course, an historic occasion in that this could be the last reasoned opinion that this Parliament puts into the legislative process before Brexit. I congratulate all noble Lords present tonight for contributing to what I hope will be a significant intervention by Parliament, indicating that national parliaments do, indeed, have an influence on the way in which Europe operates. Having said that, my thanks again to them and to the staff who have helped produce this report.

Motion agreed.

Subsidiarity Assessment: Discontinuing Seasonal Changes of Time

Wednesday 24th October 2018 Lords Chamber

Motion to Resolve

21:04

Moved by

[Lord Whitty]

To resolve that this House considers that the Commission Proposal for a Directive of the European Parliament and of the Council discontinuing seasonal changes of time and repealing Directive 2000/84/EC (COM(2018)639, Council Document 12118/18) does not comply with the principle of subsidiarity, for the reasons set out in the 22nd Report from the European Union Committee (HL Paper 200); and, in accordance with article 6 of the Protocol on the application of the principles of subsidiarity and proportionality, instructs the Clerk of the Parliaments to forward this reasoned opinion to the Presidents of the European institutions.

[Lord Whitty (Lab)]

My Lords, I have already spoken to this Motion in my earlier remarks. I beg to move.

Motion agreed.

9.04 pm

Sitting suspended.

Ivory Bill

Report stage (Hansard - continued): House of Lords
Wednesday 24th October 2018 Lords Chamber

Report (Continued)

21:10

Clause 15: Power to stop and search vehicles

Amendment 43

Moved by

[Lord Gardiner of Kimble]

43: Clause 15, page 9, line 38, after “powers” insert “on police or customs officers”
Member’s explanatory statement
This amendment is consequential on the Minister’s amendment leaving out clause 17.

[The Parliamentary Under-Secretary of State, Department for Environment, Food and Rural Affairs (Lord Gardiner of Kimble) (Con)]

My Lords, I should say at the outset that the Government and I are sincerely grateful to the Constitution Committee for the clear recommendations outlined in its report, which we have considered thoroughly and addressed through the Government’s amendments to the Bill. I also express my gratitude to the noble and learned Lord, Lord Judge, and my noble friend Lord Cormack for raising this matter in Committee. At that stage, I promised that I would consider it fully and return to it on Report. Since then I have met the noble and learned Lord with officials on a number of occasions with a view to bringing forward the amendments tabled today. He asked me to say how much he regrets that he had to leave to fulfil a long-standing commitment outside the Parliamentary Estate. I am also permitted to say that he was prepared to put his name to the Government’s amendments to Clauses 17 to 19, and his name would have been on the Marshalled List had it not been for some timing on the day on which he sought to do so. Through those discussions, the Government have tabled a series of amendments that both address the concerns previously raised by the noble and learned Lord and my noble friend, and ensure that the ivory ban continues to be underpinned by robust and proportionate enforcement.

I must first clarify that, when I refer to accredited civilian officers, I am referring to officers of the regulator, which will be the Office for Product Safety and Standards. OPSS is part of the Department for Business, Energy and Industrial Strategy. In Committee, I also acknowledged the Constitution Committee’s recommendation that the Government could more clearly define the enforcement role of accredited civilian officers. We have taken on board these recommendations by removing Clause 17 from the Bill, and proposing two new clauses, which will be inserted after Clause 22. Together, these ensure that the powers conferred on accredited civilian officers are set out separately from those conferred on police and customs officers. This ensures that the role of accredited civilian officers as regulators of compliance is now much clearer in the Bill.

The noble and learned Lord, Lord Judge, previously raised concerns about the extent of the powers conferred on accredited civilian officers to enter and search a premises. The Government have tabled a number of amendments that significantly restrict the powers of accredited civilian officers and I would like to explain these restrictions further. These amendments mean that accredited civilian officers no longer have a specific power to enter premises for the purpose of raising awareness of the provisions of the Bill. This amendment further clarifies OPSS’s core responsibility of assessing compliance with the sales ban.

The first of the proposed new clauses, “Accredited civilian officers: powers of entry”, clearly outlines when an accredited officer may enter a premises. “Premises” is defined in the Bill as any place, including,

“(a) a vehicle, vessel or aircraft;


(b) a tent or moveable structure”.

Subject to giving reasonable notice, accredited civilian officers may enter a premises if they reasonably believe it might be used in connection with the dealing of ivory, such as the back office of an antiques shop—that is, an area that is not publicly accessible—for only one of two reasons. The first is for the purpose of assessing compliance; the second is if there are reasonable grounds to suspect there is evidence relevant to an offence on that premises.

21:15

OPSS officers may also lawfully enter a premises open to the public without giving notice. Such public spaces would include a shop, an antiques fair or a street market. Having entered such a public premise, the officer may assess compliance of items, but if they wish to enter any non-public part of the premises, such as a back office to a shop, they would need to give reasonable notice.

The Government’s amendments make it absolutely clear that accredited officers will no longer have the power to apply for a search warrant to enter any premises—that means dwellings and non-dwellings. The power to apply for a search warrant will be limited to police and customs officers only.

Government amendments remove the power to search from accredited civilian officers, and replace it with a power to “examine”. Other powers of accredited civilian officers confer the power for an officer to examine visually or measure anything that they believe may be relevant evidence—for example, an item that appears to be made of or contain ivory on display in a shop and which does not appear to fall within an exemption. They may also request any person on the premises to produce any relevant document, such as an exemption certificate or registration, that may demonstrate compliance or otherwise with the ban. If an officer identifies an item or document that is relevant evidence of an offence, or is relevant evidence to an investigation into whether an offence has been committed, the officer may seize that item or document pending further investigation.

I understand that it is the purpose of my noble friend Lord Cormack’s amendments to remove the power of seizure from accredited civilian officers. We believe, however, that this power is critical to regulating compliance. For example, if an officer suspects that an ivory item does not fall within an exemption but is on display for sale, it is important that the officer has the power to seize that item as relevant evidence of an offence. As I previously stated, the amendments I just outlined address the concerns raised by my noble friend by explaining why it is necessary for an accredited civilian officer to be able to seize an item on the grounds that it is evidence of an offence having been committed, or relevant evidence to an ongoing investigation.

We believe that the amendments strike a careful balance between ensuring that officers have only the necessary power, while ensuring that they remain able effectively to carry out their duties as regulators of the sales ban. To further restrict their powers would leave them unable to carry out their duty. Without OPSS officers, the duty of assessing compliance would fall solely to the police, and we do not believe that that is proportionate. Any ivory ban is only as effective as its enforcement, as was made abundantly clear at the Illegal Wildlife Trade Conference I recently attended.

I turn to an issue on which I have had considerable discussion with the noble and learned Lord, Lord Judge: the Constitution Committee’s recommendation that regulatory functions in the Bill should be subject to the Regulators’ Code. We fully concur with that recommendation, but are unable to address the point through an amendment to the Bill. The noble and learned Lord and I had considerable discussions on the matter, and he entirely understood the mechanism by which this needs to be done.

The Regulators’ Code is given effect by the Legislative and Regulatory Reform Act 2006. Section 24(2) provides that bodies and enforcement functions must have regard to the Regulators’ Code if they are listed in the Legislative and Regulatory Reform (Regulatory Functions) Order 2007. Using the order to ensure that the regulator is subject to the code would be consistent with the intention of Parliament when it approved Section 24(2) of the 2006 Act and would follow the correct procedure laid out in that Act.

Laying secondary legislation to amend the 2007 order to include the regulatory functions of the Bill will be a priority for the department as it works to implement the Bill. Officials are in close contact with the Department for Business, Energy and Industrial Strategy, which holds responsibility for the Legislative and Regulatory Reform Act 2006.

With these government amendments, I hope your Lordships will accept that we have taken appropriate actions to restrict and better define the role of OPSS and taken on board the recommendations made by the Constitution Committee and the noble and learned Lord, Lord Judge, and my noble friend Lord Cormack. I know that the noble and learned Lord, Lord Wallace of Tankerness, who is in his place, also contributed in Committee on these matters. I hope that noble Lords will feel that the Government have sought to address these matters in the most appropriate fashion. I beg to move.

[Lord Cormack (Con)]

My Lords, I thank my noble friend for adding his name to some of the amendments that I tabled and for listening clearly and sympathetically to what was said in Committee. I had the privilege of a brief conversation with the noble and learned Lord, Lord Judge, yesterday and he told me that he was pretty well satisfied and very sorry that, because of the engagement to which my noble friend referred, he could not be with us this evening. I said that I would mention our conversation and his satisfaction was certainly influential as far as I am concerned.

I have not got the whole loaf that I asked for in Committee, and my noble friend will recognise that, but he has gone a long way to easing our concerns. I shy away from the idea of civilian accredited officers but I accept the logic of what my noble friend said a few moments ago and I am content. I only wish that he could have been as conciliatory and obliging on some of the other amendments that I moved on the Bill, but I realise that his room for manoeuvre was somewhat limited. I thank him very much and give my full support.

[Lord Wallace of Tankerness (LD)]

My Lords, as a member of the Constitution Committee I subscribed to the amendments which were moved by the noble and learned Lord, Lord Judge, in Committee and I was delighted to be able support the concerns that he articulated so well about these provisions, which the Government have addressed very fairly. They have gone a considerable way to meeting the concerns that were expressed in the Constitution Committee’s report.

I know from conversations that I have had with the noble and learned Lord, Lord Judge, that he has been very appreciative of the time and consideration that the Minister has given to these issues. We have here a set of amendments which very much address these concerns, in terms of the restriction of the powers of accredited civilian officers, the role of OPSS and the designation that will be forthcoming under the 2006 legislation. It is a very good model of how this House works where a Committee produces a report and the Government listen and engage and come forward with some substantive changes which acknowledge the concerns that were originally raised. I am happy to support the amendments.

[Lord Grantchester (Lab)]

My Lords, I rise briefly in appreciation of these amendments, which are designed to address concerns about civilian use of policing powers. I, too, thank the noble and learned Lord, Lord Judge, for his interventions in Committee. I am grateful to the Minister for his willingness to carefully consider these issues and bring forward these amendments tonight. I also place on record our gratitude to your Lordships’ Constitution Committee for its scrutiny of the Bill and the recommendations that prompted the Government to rethink its approach to civilian enforcement bodies. These amendments deal with the concerns over policing functions, including the power of entry, search and seizure being exercised by civilian officials, and bring a more reassuring approach to their enforcement.

[Lord Gardiner of Kimble]

My Lords, I thank my noble friend Lord Cormack, the noble and learned Lord, Lord Wallace of Tankerness, and the noble Lord, Lord Grantchester, for their support for these government amendments. I agree with the noble and learned Lord, Lord Wallace of Tankerness, that the function of this House is to consider these matters very carefully. We in government were very seized of the points that were made. I absolutely assure your Lordships that we have no intention of overstretching what I think is a better definition of what was the accredited civilian officer responsibilities. We have got there, and I am most grateful. I place on record again not only the Constitution Committee’s work on this but that of the noble and learned Lord, Lord Judge, who I am sorry cannot be here tonight, because his contribution to getting us over the line and working together was another very strong example of how we get better legislation.

Amendment 43 agreed.

Amendment 44

Moved by

[Lord Gardiner of Kimble]

44: Clause 15, page 9, line 39, leave out “sections 17 and” and insert “section”
Member’s explanatory statement
This amendment is consequential on the Minister’s amendment leaving out clause 17.

Amendment 44 agreed.

Clause 16: Power to board and search vessels and aircraft

Amendments 45 and 46

Moved by

[Lord Gardiner of Kimble]

45: Clause 16, page 10, line 22, after “powers” insert “on police or customs officers”
Member’s explanatory statement
This amendment is consequential on the Minister’s amendment leaving out clause 17.

46: Clause 16, page 10, line 23, leave out “sections 17 and” and insert “section”
Member’s explanatory statement
This amendment is consequential on the Minister’s amendment leaving out clause 17.

Amendments 45 and 46 agreed.

Clause 17: Powers to enter and search premises

Amendment 47

Moved by

[Lord Gardiner of Kimble]

47: Clause 17, leave out Clause 17
Member’s explanatory statement
This amendment leaves out clause 17, under which accredited civilian officers have power to enter and search premises. Instead, the new clauses inserted by the Minister’s amendments after clause 22 give accredited civilian officers a more limited power of entry, and a power to examine documents and other items, but not a power to conduct a search.

Amendment 47 agreed.

Clause 18: Warrants authorising entry and search of premises

Amendment 48

Moved by

[Lord Cormack]

48: Clause 18, page 11, line 17, leave out “or an accredited civilian officer”
Member’s explanatory statement
This amendment and the others which are similarly worded would prevent the appointment by the Minister of accredited civilian officers with powers of entry and seizure.

Amendment 48 agreed.

Amendments 49 to 54

Moved by

[Lord Gardiner of Kimble]

49: Clause 18, page 11, line 21, leave out “or an accredited civilian officer”
Member’s explanatory statement
Clause 18(2)(a) currently allows an accredited civilian officer to apply for a search warrant in England and Wales or Northern Ireland. The effect of this amendment is that this will no longer be possible.

50: Clause 18, page 11, line 23, leave out “, an accredited civilian officer”
Member’s explanatory statement
Clause 18(2)(b) currently allows an accredited civilian officer to apply for a search warrant in Scotland. The effect of this amendment is that this will no longer be possible.

51: Clause 18, page 11, line 25, leave out “or an accredited civilian officer”
Member’s explanatory statement
This amendment is consequential on the Minister’s amendments at page 11, lines 21 and 23.

52: Clause 18, page 11, line 32, leave out paragraph (d)
Member’s explanatory statement
This amendment is consequential on the Minister’s amendments at page 11, lines 21 and 23.

53: Clause 18, page 12, line 8, leave out “or accredited civilian officer”
Member’s explanatory statement
This amendment is consequential on the Minister’s amendment at page 11, line 17.

54: Clause 18, page 12, line 9, at end insert—
“(7) In this Act “premises” includes any place and, in particular, includes—(a) a vehicle, vessel or aircraft;(b) a tent or moveable structure.”Member’s explanatory statement
This amendment takes the definition of “premises” from clause 17 (which is left out by one of the Minister’s other amendments) and adds it to clause 18.

Amendments 49 to 54 agreed.

Clause 19: Further provision about search warrants

Amendment 55

Moved by

[Lord Cormack]

55: Clause 19, page 12, line 18, leave out “or an accredited civilian officer”

Amendment 55 agreed.

Amendments 56 to 59

Moved by

[Lord Gardiner of Kimble]

56: Clause 19, page 12, line 19, leave out “or accredited civilian officer”
Member’s explanatory statement
This amendment is consequential on the Minister’s amendment of clause 24 at page 11, line 17.

57: Clause 19, page 12, line 22, leave out “or accredited civilian officer”
Member’s explanatory statement
This amendment is consequential on the Minister’s amendment of clause 24 at page 11, line 17.

58: Clause 19, page 12, line 25, leave out “or an accredited civilian officer”
Member’s explanatory statement
This amendment is consequential on the Minister’s amendment of clause 24 at page 11, line 17.

59: Clause 19, page 12, line 28, leave out “or accredited civilian officer”
Member’s explanatory statement
This amendment is consequential on the Minister’s amendment of clause 24 at page 11, line 17.

Amendments 56 to 59 agreed.

Clause 20: Powers of examination etc

Amendments 60 to 63

Moved by

[Lord Gardiner of Kimble]

60: Clause 20, page 13, line 2, leave out “an” and insert “a police or customs”
Member’s explanatory statement
This amendment is consequential on the Minister’s amendment leaving out clause 17.

61: Clause 20, page 13, line 3, leave out “, 17”
Member’s explanatory statement
This amendment is consequential on the Minister’s amendment leaving out clause 17.

62: Clause 20, page 13, line 4, leave out subsections (2) to (4) and insert—
“( ) The officer may carry out any examination or measurement of anything on the premises that the officer thinks is or may be relevant evidence.”Member’s explanatory statement
The effect of this amendment is to remove the power of a police or customs officer to test an item that the officer thinks is or may be relevant evidence, and also the power to take a sample of the item (possibly in a way that might damage it).

63: Clause 20, page 13, line 18, leave out “, 17”
Member’s explanatory statement
This amendment is consequential on the Minister’s amendment leaving out clause 17.

Amendments 60 to 63 agreed.

Clause 21: Power to require production of documents etc

Amendments 64 and 65

Moved by

[Lord Gardiner of Kimble]

64: Clause 21, page 13, line 22, leave out “an” and insert “a police or customs”
Member’s explanatory statement
This amendment is consequential on the Minister’s amendment leaving out clause 17.

65: Clause 21, page 13, line 23, leave out “, 17 ”
Member’s explanatory statement
This amendment is consequential on the Minister’s amendment leaving out clause 17.

Amendments 64 and 65 agreed.

Clause 22: Powers of seizure etc

Amendments 66 and 67

Moved by

[Lord Gardiner of Kimble]

66: Clause 22, page 14, line 4, leave out “An” and insert “A police or customs”
Member’s explanatory statement
This amendment is consequential on the Minister’s amendment leaving out clause 17.

67: Clause 22, page 14, line 4, leave out “, 17”
Member’s explanatory statement
This amendment is consequential on the Minister’s amendment leaving out clause 17.

Amendments 66 and 67 agreed.

Amendments 68 and 69

Moved by

[Lord Gardiner of Kimble]

68: After Clause 22, insert the following new Clause—
“Accredited civilian officers: powers of entry
(1) An accredited civilian officer may on giving reasonable notice—(a) enter premises that the accredited civilian officer reasonably thinks may be used in connection with dealing in ivory (including any item that is made of ivory or has ivory in it) for the purpose of assessing compliance with the provisions of this Act, or(b) enter premises on which the officer has reasonable grounds to suspect that there is relevant evidence.(2) In this Act “accredited civilian officer” means an officer of the Secretary of State who is authorised by the Secretary of State for the purposes of this Act.(3) A notice under this section must—(a) be in writing,(b) be given to the occupier of the premises,(c) set out the purpose of the proposed entry, and(d) explain the effect of section 27 (offences of obstruction).(4) The requirement in subsection (3)(b) may be complied with by delivering or leaving the notice at the premises or sending it there by post.(5) This section—(a) does not authorise the entry into premises used wholly or mainly as a dwelling;(b) authorises entry only at a reasonable time.”Member’s explanatory statement
The new clause inserted by this amendment confers powers of entry on accredited civilian officers. These powers are more limited than those currently given to accredited civilian officers under clause 17, as the new clause does not confer a power of entry for the purpose of promoting awareness and understanding of the provisions of the Bill once enacted.

69: After Clause 22, insert the following new Clause—
“Other powers of accredited civilian officers
(1) This section applies where—(a) an accredited civilian officer enters premises under section (Accredited civilian officers: powers of entry), or (b) an accredited civilian officer who is lawfully on premises has reasonable grounds to suspect that there is relevant evidence on those premises.(2) The officer may carry out any examination or measurement of anything on the premises that the officer thinks is or may be relevant evidence.(3) The officer may require any person on the premises to produce any document or record in the person’s possession or control that the officer thinks is or is likely to be relevant to—(a) the question whether a relevant offence has been committed, or(b) the investigation of a relevant offence.(4) The officer may—(a) seize and detain or remove any item found on the premises;(b) take copies of or extracts from any document or record found on the premises.(5) An officer to whom a document or record has been produced in response to a requirement under subsection (3) may—(a) seize and detain or remove the document or record;(b) take copies of or extracts from the document or record.(6) The powers under subsections (4) and (5) may be exercised only—(a) for the purposes of determining whether a relevant offence has been committed, or(b) in relation to an item that the officer concerned reasonably believes to be relevant evidence.(7) The officer may require any person on the premises to provide any help or facilities, with respect to matters under the persons’s control, that the officer considers would facilitate the exercise of a power conferred on the officer by this section.(8) This section—(a) does not confer power to search a person;(b) does not confer power to seize an item that is an excluded item (see section 23).(9) Subsections (3) and (4) of section 21 apply for the purposes of this section as they apply for the purposes of that one.”Member’s explanatory statement
The new clause inserted by this amendment contains most of the powers of accredited civilian officers that are currently contained in clauses 20, 21 and 22, but not the power to break open containers.

Amendments 68 and 69 agreed.

Clause 23: Excluded items

Amendment 70

Moved by

[Lord Gardiner of Kimble]

70: Clause 23, page 14, line 24, leave out “section 22” and insert “sections 22 and (Other powers of accredited civilian officers)”
Member’s explanatory statement
This amendment is consequential on the second of the new clauses inserted by the Minister’s amendments after clause 22.

Amendment 70 agreed.

Clause 24: Further provision about seizure under section 22

Amendment 71

Moved by

[Lord Gardiner of Kimble]

71: Clause 24, page 15, line 5, after “22” insert “or (Other powers of accredited civilian officers)”
Member’s explanatory statement
This amendment is consequential on the second of the new clauses inserted by the Minister’s amendments after clause 22.

Amendment 71 agreed.

Clause 25: Notices and records in relation to seized items

Amendment 72

Moved by

[Lord Gardiner of Kimble]

72: Clause 25, page 15, line 25, after “22” insert “or (Other powers of accredited civilian officers)”
Member’s explanatory statement
This amendment is consequential on the second of the new clauses inserted by the Minister’s amendments after clause 22.

Amendment 72 agreed.

Clause 26: Powers of entry, search and seizure: supplementary provision

Amendment 73

Moved by

[Lord Gardiner of Kimble]

73: Clause 26, page 16, line 7, leave out “17” and insert “(Accredited civilian officers: powers of entry)”
Member’s explanatory statement
This amendment is consequential on the Minister’s amendment leaving out clause 17 and the first of the new clauses inserted by the Minister’s amendments after clause 22.

Amendment 73 agreed.

Clause 27: Offences of obstruction etc

Amendment 74

Moved by

[Lord Gardiner of Kimble]

74: Clause 27, page 16, line 39, leave out “or accredited civilian officer”
Member’s explanatory statement
This amendment is consequential on the Minister’s amendment of clause 19 at page 12, line 22.

Amendment 74 agreed.

Clause 28: Retention of seized items

Amendment 75

Moved by

[Lord Gardiner of Kimble]

75: Clause 28, page 17, line 6, after “22” insert “or (Other powers of accredited civilian officers)”
Member’s explanatory statement
This amendment is consequential on the second of the new clauses inserted by the Minister’s amendments after clause 22.

Amendment 75 agreed.

Clause 29: Forfeiture of seized items by court on application

Amendment 76 not moved.

Clause 30: Appeal against decision under section 29

Amendment 77 not moved.

Amendment 78 not moved.

Amendment 79

Moved by

[Baroness Vere of Norbiton]

79: After Clause 33, insert the following new Clause—
“Contracts of insurance etc
(1) A transaction under which a person acquires an item in pursuance of an existing contract of insurance is not a purchase or sale of the item for the purposes of this Act.(2) A transaction under which an item—(a) is acquired by a regulated insurer acting in the course of the insurer’s business as such, or(b) is acquired, in pursuance of a regulated insurance contract, by a person who is or was an insured person in relation to the item under that contract,is not a purchase or sale of the item for the purposes of this Act.(3) In this section—“existing contract of insurance” means a contract of insurance entered into before the day on which section 1 comes into force;“insurance” includes reinsurance;“regulated insurance contract” means a contract of insurance effected or carried out by a regulated insurer;“regulated insurer” means a person who has permission to effect or carry out contracts of insurance under Part 4A of the Financial Services and Markets Act 2000.”Member’s explanatory statement
Under this amendment the prohibition in clause 1 would not apply to a transaction under a pre-commencement insurance contract; or in a case where (for example) a regulated insurer acquires title to an item from an insured person who has been paid out following a theft, or re-sells the item to the insured person if it is later recovered.

[Baroness Vere of Norbiton (Con)]

My Lords, this new clause tabled in the name of my noble friend the Minister and to which the noble Earl, Lord Kinnoull, has added his name means that existing insurance arrangements concerning ivory items are, for the most part, not affected by the Bill. It also ensures that owners will be able to continue to insure ivory items by exempting regulated insurance activities from the prohibition in Clause 1. Noble Lords will recall that this matter was raised by the noble Earl, Lord Kinnoull, in Committee and I am extremely grateful to him for bringing this matter to the attention of your Lordships’ House and for his ongoing assistance in this matter. I am sorry only that he has had to travel this evening and will therefore not be able to contribute to this debate.

The proposed new clause contains measures that will provide comfort to owners of items containing ivory and to insurers. It ensures that any insurance policy for, or covering, an item containing ivory that is extant at the time of commencement of this Bill is not affected by the Bill.

Secondly, the proposed new clause also exempts from the prohibition at Clause 1 a transfer of ownership from an insured person to an insurance company where the activity is regulated under the Financial Services and Markets Act 2000, as the result of the insurer paying out on a claim made against that item. Further, if that item is subsequently recovered and the original owner chooses to exercise their right to buy it back from the insurer in exchange for return of the consideration paid out, this will also be exempted from the definition of dealing in Clause 1.

However, should the original owner choose not to exercise this right, the insurance company will not be permitted to sell the item on to a third party for its pecuniary salvage value unless that item meets one of the categories of exemption and is registered or certified as such. The proposed new clause also covers transactions between insurers and reinsurers, for example when there is a takeover of an insurance business or when policies are transferred between insurers and reinsurers.

While the objective of the Bill is to prohibit the trade in items containing ivory, there is no desire to have an undue impact on the insurance industry or on consumers who own such items and wish to insure them. There will also be a desire for museums to be able to insure items containing ivory alongside other important pieces within their collections. This proposed new clause allows them to do so.

This proposed new clause will not in any way undermine the main objective of the Bill: to prevent trade in items containing ivory. It does, however, ensure a functioning insurance market for those owners of items containing ivory who wish to access it. I beg to move.

[Lord Grantchester]

I rise merely to thank the Minister for clarifying these issues around insurance, which will be helpful to many people. The noble Baroness has our support.

Amendment 79 agreed.

21:30

Clause 35: Meaning of “ivory”

Amendments 80 to 82

Moved by

[Lord Gardiner of Kimble]

80: Clause 35, page 21, line 4, leave out “Secretary of State” and insert “appropriate national authority”
Member’s explanatory statement
See the explanation of subsections (1A) and (1B) inserted in clause 37 by the Minister’s amendment at page 22, line 24.

81: Clause 35, page 21, line 7, after “regulations” insert “made by the Secretary of State”
Member’s explanatory statement
This amendment is consequential on the Minister’s amendment at page 21, line 4, read with the Minister’s amendment of clause 37 at page 22, line 24.

82: Clause 35, page 21, line 10, at end insert—
“( ) Regulations made by the Scottish Ministers under subsection (2) are subject to the affirmative procedure.( ) A statutory instrument containing regulations made by the Welsh Ministers under subsection (2) (whether alone or with other provision) may not be made unless a draft of the instrument has been laid before the National Assembly for Wales and approved by a resolution of the Assembly. ( ) Regulations made by the Northern Ireland department under subsection (2) may not be made unless a draft of the instrument has been laid before the Northern Ireland Assembly and approved by a resolution of the Assembly.”Member’s explanatory statement
This amendment is consequential on the Minister’s amendment at page 21, line 4, read with the Minister’s amendment of clause 37 at page 22, line 24. (For the meaning of “subject to the affirmative procedure” see section 29 of the Interpretation and Legislative Reform (Scotland) Act 2010; for the meaning of “the Northern Ireland department” see the Minister’s amendment of clause 36 at page 21, line 36.)

Amendments 80 to 82 agreed.

Clause 36: Meaning of other expressions

Amendments 83 to 86

Moved by

[Lord Gardiner of Kimble]

83: Clause 36, page 21, line 19, leave out “17(7)” and insert “(Accredited civilian officers: powers of entry)(2)”
Member’s explanatory statement
This amendment is consequential on the Minister’s amendment leaving out clause 17 and the first of the new clauses inserted by the Minister’s amendments after clause 22.

84: Clause 36, page 21, line 20, at end insert—
““the appropriate national authority” has the meaning given by section 37(1A) and (1B);”Member’s explanatory statement
This amendment inserts a signpost to the definition of “the appropriate national authority” inserted in clause 37 by the Minister’s amendment at page 22, line 24.

85: Clause 36, page 21, line 36, at end insert—
““the Northern Ireland department” means the Department of Agriculture, Environment and Rural Affairs in Northern Ireland;”Member’s explanatory statement
This amendment defines “the Northern Ireland department” for the purposes of the Minister’s amendments of clauses 35 and 37 and Schedule 1 that use the expression.

86: Clause 36, page 21, line 41, leave out “17(7)” and insert “18(7)”
Member’s explanatory statement
This amendment is consequential on the Minister’s amendment of clause 18 at page 12, line 9.

Amendments 83 to 86 agreed.

Clause 37: Regulations and guidance

Amendments 87 to 91

Moved by

[Lord Gardiner of Kimble]

87: Clause 37, page 22, line 24, at end insert—
“(1A) In this Act “the appropriate national authority” means—(a) the Secretary of State, for regulations that do not apply in relation to Wales, Scotland or Northern Ireland;(b) the Welsh Ministers, for regulations that apply only in relation to Wales; (c) the Scottish Ministers, for regulations that apply only in relation to Scotland; (d) the Northern Ireland department, for regulations that apply only in relation to Northern Ireland.(1B) But in the case of regulations that apply in relation to England and any other part of the United Kingdom, or in relation to any other part of the United Kingdom and not England, the appropriate authority is the Secretary of State if each necessary consent is given.The “necessary consent” is—(a) the consent of the Welsh Ministers if the regulations apply in relation to Wales;(b) the consent of the Scottish Ministers if the regulations apply in relation to Scotland;(c) the consent of the Northern Ireland department if the regulations apply in relation to Northern Ireland.(1C) The Secretary of State must consult the Welsh Ministers, the Scottish Ministers and the Northern Ireland department before making regulations prescribing a fee under section 3(1)(h), 4(7)(b), 5(4) or 10(1)(g).”Member’s explanatory statement
The inserted subsections (1A) and (1B), read with the amendments substituting references to “the appropriate national authority”, require most regulations under the Bill applying outside England to be made either by the relevant devolved authorities or with their consent. Under the inserted subsection (1C) the Secretary of State must consult those authorities before setting fees by regulations.

88: Clause 37, page 22, line 25, leave out subsection (2) and insert—
“( ) A power to make regulations under this Act—(a) is exercisable by statutory instrument, in the case of regulations made by the Secretary of State or the Welsh Ministers;(b) is exercisable by statutory rule for the purposes of the Statutory Rules (Northern Ireland) Order 1979 (S.I. 1979/1573 (N.I. 12)), in the case of regulations made by the Northern Ireland department.”Member’s explanatory statement
This amendment is consequential on the amendments replacing references to the Secretary of State with references to the appropriate national authority. (The amendment does not mention regulations made by the Scottish Ministers because the relevant provision is made by section 27 of the Interpretation and Legislative Reform (Scotland) Act 2010.)

89: Clause 37, page 22, line 26, after “regulations” insert “made by the Secretary of State”
Member’s explanatory statement
This amendment is consequential on the amendments replacing references to the Secretary of State with references to the appropriate national authority.

90: Clause 37, page 22, line 28, at end insert—
“( ) A statutory instrument containing regulations made by the Welsh Ministers under this Act, other than regulations under section 35(2), is subject to annulment in pursuance of a resolution of the National Assembly for Wales.( ) Regulations made by the Scottish Ministers under this Act, other than regulations under section 35(2), are subject to the negative procedure.( ) Regulations made by the Northern Ireland department under this Act, other than regulations under section 35(2), are subject to negative resolution within the meaning of section 41(6) of the Interpretation Act (Northern Ireland) 1954.” Member’s explanatory statement
This amendment is consequential on the amendments replacing references to the Secretary of State with references to the appropriate national authority.(For the meaning of “subject to the negative procedure” see section 28 of the Interpretation and Legislative Reform (Scotland) Act 2010.)

91: Clause 37, page 22, line 29, leave out subsection (4)
Member’s explanatory statement
This amendment is consequential on the Minister’s amendments to clause 2 at page 2, line 18 (first amendment); to clause 3 at page 2, line 39; to clause 4 at page 4, lines 21 and 28; to clause 10 at page 6, line 37; and to clause 11 at page 7, line 32.

Amendments 87 to 91 agreed.

Schedule 1: Civil sanctions

Amendments 92 to 98

Moved by

[Lord Gardiner of Kimble]

92: Schedule 1, page 29, line 6, leave out “Secretary of State” and insert “appropriate national authority”
Member’s explanatory statement
See the explanation of subsections (1A) and (1B) inserted in clause 37 by the Minister’s amendment at page 22, line 24.

93: Schedule 1, page 29, line 14, leave out “Secretary of State” and insert “appropriate national authority”
Member’s explanatory statement
This amendment is consequential on the Minister’s amendment at page 29, line 6.

94: Schedule 1, page 29, line 15, leave out “Secretary of State” and insert “authority”
Member’s explanatory statement
This amendment is consequential on the Minister’s amendment at page 29, line 6.

95: Schedule 1, page 29, line 17, leave out “Secretary of State” and insert “authority”
Member’s explanatory statement
This amendment is consequential on the Minister’s amendment at page 29, line 6.

96: Schedule 1, page 29, line 18, leave out “Secretary of State” and insert “authority”
Member’s explanatory statement
This amendment is consequential on the Minister’s amendment at page 29, line 6.

97: Schedule 1, page 29, line 19, leave out “he or she” and insert “the authority”
Member’s explanatory statement
This amendment is consequential on the Minister’s amendment at page 29, line 6.

98: Schedule 1, page 32, line 11, leave out “consult any persons” and insert “consult—
(a) the Welsh Ministers, the Scottish Ministers and the Northern Ireland department, and(b) any other persons”Member’s explanatory statement
This amendment requires the Secretary of State to consult the Welsh Ministers, the Scottish Ministers and the Northern Ireland department before publishing guidance (or revised guidance) under paragraph 21 of Schedule 1.

Amendments 92 to 98 agreed.

Schedule 2: Search warrants: England and Wales and Northern Ireland

Amendments 99 and 100

Moved by

[Lord Gardiner of Kimble]

99: Schedule 2, page 34, line 9, leave out paragraph (d)
Member’s explanatory statement
This amendment is consequential on the Minister’s amendment of clause 18 at page 11, line 17.

100: Schedule 2, page 35, line 36, leave out “or an accredited civilian officer”
Member’s explanatory statement
This amendment is consequential on the Minister’s amendment of clause 18 at page 11, line 17.

Amendments 99 and 100 agreed.

Amendment 101

Moved by

[Lord Cormack]

101: Schedule 2, page 36, line 3, leave out “or an accredited civilian officer”

Amendment 101 agreed.

Amendment 102

Moved by

[Lord Gardiner of Kimble]

102: Schedule 2, page 36, line 7, leave out “or accredited civilian officer”
Member’s explanatory statement
This amendment is consequential on the Minister’s amendment of clause 18 at page 11, line 17.

Amendment 102 agreed.

Amendment 103

Moved by

[Lord Cormack]

103: Schedule 2, page 36, line 18, leave out “or accredited civilian officer”

Amendment 103 agreed.

Amendment 104

Moved by

[Baroness Jones of Whitchurch]

104: Insert the following Preamble—
“Whereas in 1989 the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) agreed to ban the international trade in African elephant ivory; and the resolution adopted at the 2016 Conference of Parties to CITES agreed to phase out domestic ivory markets which contributed to poaching or illegal trade in ivory:
And whereas it is expedient to give effect in the United Kingdom to the restrictions on domestic trade:”
Member’s explanatory statement
This amendment would insert a Preamble linking the Bill to the resolution adopted unanimously by governments at the 2016 Conference of Parties to the UN Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) which called on all governments to close domestic ivory markets which contribute to poaching or illegal trade in ivory.

[Baroness Jones of Whitchurch (Lab)]

My Lords, I am moving Amendment 104, which deals with the Government’s obligations in the international CITES resolution. We debated this issue in Committee and it remains a concern to a number of the wildlife and elephant charities. This amendment would insert a preamble linking the Bill to the resolution adopted unanimously by Governments at the 2016 conference of parties to the Convention on International Trade in Endangered Species of Wild Fauna and Flora—CITES. This calls on all Governments to close domestic ivory markets, which contribute to the poaching of and illegal trade in ivory.

As we explained in Committee, the government amendments introduced on Report in another place, while welcome, had the accidental consequence of removing the explicit link between the Bill and CITES. There is now nothing in the Bill to make it clear that this legislation was drafted partly in response to the resolution adopted unanimously by Governments at the 2016 conference of parties to CITES.

We raised this concern in Committee, where the Minister, the noble Lord, Lord Gardiner, reaffirmed the importance and relevance of CITES. However, he argued that an explicit link in the preamble was unnecessary, given that the aforementioned government amendment made it possible to go further than CITES and broaden the scope of the Bill to all ivory species.

While we welcome this provision, we nevertheless believe that such a preamble would strengthen the Act against possible judicial and European Court of Human Rights challenges by confirming that the legislation enables the UK to comply with international obligations to control domestic ivory markets under a UN-backed treaty. Moreover, as the Minister himself noted:

“No other provision in the Bill could be limited by a reference to CITES”.—[Official Report, 12/9/18; col. 2353.]


We therefore do not accept that the reference to CITES is as limiting as the Minister would have us believe. Indeed, there are precedents for this, notably in the original legislation to implement CITES in the UK under the Endangered Species (Import and Export) Act 1976. This Act also covered thousands of non-CITES species.

We believe that this amendment, contrary to what the Minister has argued, would have the effect of strengthening rather than weakening the Bill. I beg to move this amendment and hope that noble Lords will support it.

[Lord Gardiner of Kimble]

My Lords, the noble Baroness’s amendment would insert a preamble to the Bill to reference the Convention on International Trade in Endangered Species of Wild Fauna and Flora, or CITES, and the important resolution agreed at the CITES COP 17 regarding closing elephant ivory markets.

In Committee, I assured the noble Baroness that the removal of a link to CITES in the Bill was not an unintended consequence. It was as a direct result of the amendment made in the other place to enable the Secretary of State to broaden the scope of the Bill in the future to all ivory-bearing species, rather than only those listed under CITES. We are confident that there is no need for a reference to CITES in the Bill, and we do not believe that it would provide additional protection to the Bill, for example against legal challenge.

In Committee, I reassured your Lordships that, as a very active party to CITES, the UK will continue to be bound by and committed to its obligations under this important convention. The UK ivory ban is consistent with our obligations under both CITES and the EU wildlife trade regulations, and therefore neither need to be cited in the Bill. It is also the case that the ban goes much further than both CITES and the EU wildlife trade regulations in restricting the commercial dealing in ivory.

For example, amending Clause 35 to remove reference to CITES species and include reference to all ivory-bearing species means that all ivory-bearing species—not only CITES species—can be added to the scope of the Bill in the future if the outcome of an information-gathering exercise, such as a consultation, supports this. Therefore, the UK has gone further than outlined in the CITES resolution on elephant ivory. While I appreciate the noble Baroness’s intention to provide protection to the Bill, again I must say that we do not believe the preamble is required.

I want to make one other practical point following advice I have received. The noble Baroness referred to a preamble from much earlier legislation. It is now the case that primary legislation uses the long title to specify a Bill’s objectives, instead of a preamble.

I well understand all the connections with CITES and the EU trade regulations, but this Bill goes further. Therefore, we cannot support the noble Baroness’s amendment, for the reasons I have outlined, and I ask her to withdraw it.

[Baroness Jones of Whitchurch]

My Lords, I am grateful to the Minister for his response. We accept that the Bill has gone further than the original CITES treaty. Our objective in putting the CITES reference in the preamble was to firm up the Government’s justification, if you like, for having the Bill in the first place. We have been debating this for several days now and we are still trying to justify why we have to do it, and this is part of the continuing justification.

Given that there is still some unhappiness out there—if not indeed in your Lordships’ Chamber—our intention with what has been proposed in the Ivory Bill was to give it some legal extra bottom, if you like, in terms of why we are doing it by referring to a UN-backed treaty. Nevertheless, I accept that the Minister is saying that this was not an unintended consequence but was in fact deliberate. Time will tell whether it would have helped to have our reference in the preamble, because only in time will we know whether there are legal challenges to this.

However, given the lateness of the hour, we do not intend to move to a vote. I therefore beg leave to withdraw the amendment.

Amendment 104 withdrawn.

Civil Liability Bill [HL]

Wednesday 24th October 2018 Lords Chamber

Returned from the Commons

The Bill was returned from the Commons agreed to with amendments. It was ordered that the Commons Amendments be printed. (HL Bill 135)

House adjourned at 9.41 pm.