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.