Grand Committee
Trade Bill
Tuesday 6th October 2020
(3 years, 6 months ago)
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The Deputy Chairman of Committees (Lord McNicol of West Kilbride) (Lab)
My Lords, good afternoon. The hybrid Grand Committee will now begin. Some Members are here in person, respecting social distancing, and others are participating remotely, but all Members will be treated equally. I must ask Members in the Room to wear a face covering except when seated at their desk, to speak sitting down, and to wipe down their desk, chair and any other touch points before and after use. If the capacity of the Committee Room is exceeded, or other safety requirements are breached, I will immediately adjourn the Committee. If there is a Division in the House, the Committee will adjourn for five minutes.
A participants list for today’s proceedings has been published by the Government Whips’ Office, as have lists of Members who have put their names to amendments or expressed an interest in speaking on each group. I will call Members to speak in the order listed. Members are not permitted to intervene spontaneously; the Chair calls each speaker. Interventions during speeches or “before the noble Lord sits down” are not permitted.
During the debate on each group I will invite Members, including Members in the Grand Committee room, to email the Clerk if they wish to speak after the Minister, using the Grand Committee address. I will call Members to speak in order of request and will call the Minister to reply each time. The groupings are binding and it will not be possible to degroup any amendments for separate debate. A Member intending to move formally an amendment already debated should have given notice during the debate. Leave should be given to withdraw amendments.
When putting the Question, I will collect voices in the Grand Committee Room only. I remind Members that Divisions cannot take place in Grand Committee. It takes unanimity to amend the Bill, so if a single voice says “Not Content” an amendment is negatived, and if a single voice says “Content” a clause stands part. If a Member taking part remotely intends to oppose an amendment expected to be agreed to, they should make this clear when speaking on the group.
We will now begin. In Grand Committee in person you do not need to unmute the microphones: the microphones are working, so when I call you, just start to speak.
Clause 2: Implementation of international trade agreements
Lord Hendy (Lab)
It is a pleasure to speak to Amendment 17 and open the batting on a group of amendments on dispute resolution. Put shortly: Amendment 17 opposes investor-state dispute settlement arrangements —ISDS; Amendments 43, 44 and 52 seek to constrain it; Amendment 91 deals with tax matters; and Amendment 94 deals with disputes between state parties.
Amendment 17 is intended to prevent regulations permitting ISDS in the agreements, envisaged by Clause 2, which the Government are negotiating to replace existing EU agreements. Existing EU agreements are listed in the Library briefing. Some of them include ISDS; others do not.
The new agreements will differ from the existing EU agreements, not least by making the UK a party. There will be other modifications too, as explained in paragraphs 37 and 38 of the Explanatory Notes. The Bill envisages modifications. It does not require replication of the content of EU agreements—contrary to the Minister’s comment last Tuesday. Amendment 17 seeks, in the new UK agreements, modification of the content of existing EU agreements by the exclusion of ISDS where those agreements provided for it and its non-inclusion where EU agreements did not.
ISDS is often found in international trade agreements. Where it exists, it is wholly objectionable. ISDS has the power to override the supremacy of Parliament, to defeat the rule of domestic law, and it discriminates on grounds of nationality. Far from taking back control, as the noble Baroness, Lady Bennett, pointed out in our last sitting, ISDS is the surrender of control.
The inclusion of ISDS in the then proposed EU-US trade deal, TTIP, was the principal reason for 3 million signatures—half a million of them in the UK—on the petition against it. The legitimacy of ISDS in EU agreements is now in doubt. The judgment of the Court of Justice of the EU in Slovak Republic v Achmea on the Netherlands/Slovakia trade agreement, held that ISDS has an adverse effect on the autonomy of EU law and is therefore incompatible with EU law. This is an EU judgment we should follow.
ISDS is a mechanism whereby a corporation of one state party to the FTA can bring a claim for compensation against the other state. That sounds fine, until one appreciates that such claims are not brought in the courts of either state, nor under the laws of either state. ISDS is a system of arbitration usually conducted in secret. The usual basis for claims is that the accused state has failed to ensure “fair and equitable treatment” or has expropriated some asset of the investing corporation. Such claims are not open to any but foreign corporations. The claim is not that the host state has breached the law of the land but usually the converse: that domestic law has caused the foreign corporation loss of hoped-for profits.
Take the Philip Morris case, referred to by the noble Earl, Lord Caithness—
The Deputy Chairman of Committees (Lord McNicol of West Kilbride) (Lab)
My Lords, we are having some technical difficulties online. A number of our colleagues who are participating remotely cannot hear you as well as we can in the Room. If we cannot resolve it in the next minute or two, I will adjourn the Grand Committee for five minutes, until 2.42 pm. I apologise to the noble Lord, Lord Hendy, but it is more important that people online hear his comments.
The Deputy Chairman of Committees (Lord McNicol of West Kilbride) (Lab)
My Lords, the Grand Committee is resumed. We now resume debate on Amendment 17. I apologise to the noble Lord, Lord Hendy, for having to call on him to start again from the beginning. We have now resolved the technical difficulties so, from the top, the noble Lord, Lord Hendy.
Lord Hendy (Lab)
No apologies are needed. It is a pleasure to speak to Amendment 17 and open the batting on a group of amendments on dispute resolution. Put shortly: Amendment 17 opposes investor-state dispute settlement arrangements—ISDS; Amendments 43, 44 and 52 seek to constrain them; Amendment 91 deals with tax matters; and Amendment 94 deals with disputes between state parties.
Amendment 17 is intended to prevent regulations permitting ISDS in the agreements, envisaged by Clause 2, which the Government are negotiating to replace existing EU agreements. Existing EU agreements are listed in the Library briefing. Some of them include ISDS; others do not. The new agreements will differ from the existing EU agreements, not least by making the UK a party. There will be other modifications too, as explained in paragraphs 37 and 38 of the Explanatory Notes.
The Bill envisages modifications. It does not require replication of the content of EU agreements—contrary to the Minister’s comment last Tuesday. Amendment 17 seeks, in the new UK agreements, modification of the content of existing EU agreements by the exclusion of ISDS where those agreements provided for it and its non-inclusion where EU agreements did not.
ISDS is often found in international trade agreements. Where it exists, it is wholly objectionable. ISDS has the power to override the supremacy of Parliament and to defeat the rule of domestic law, and it discriminates on grounds of nationality. Far from taking back control, as the noble Baroness, Lady Bennett, pointed out, ISDS is the surrender of control.
The inclusion of ISDS in the then-proposed EU-US trade deal, TTIP, was the principal reason for 3 million signatures—half a million of them in the UK—on the petition against it. The legitimacy of ISDS in EU agreements is now in doubt. The judgment of the Court of Justice of the European Union in Slovak Republic v Achmea on the Netherlands/Slovakia trade agreement held that ISDS has an adverse effect on the autonomy of EU law and is therefore incompatible with EU law. This is an EU judgment that we should follow.
ISDS is a mechanism whereby a corporation of one state party to the international trade agreement can bring a claim for compensation against the other state. That sounds fine until one appreciates that such claims are not brought in the courts of either state, nor under the laws of either state. ISDS is a system of arbitration usually conducted in secret. The usual basis for claims is that the accused state has failed to ensure “fair and equitable treatment” or has expropriated some asset of the investing corporation. Such claims are not open to any but foreign corporations. The claim is not that the host state has breached the law of the land but usually the converse: that domestic law has caused the foreign corporation loss of hoped-for profits.
Let us take the Philip Morris case, referred to by the noble Earl, Lord Caithness, and the noble Lord, Lord Lansley. The Australian Parliament passed legislation requiring plain-paper packaging for cigarettes. Philip Morris challenged the legislation on constitutional grounds. It failed at every level, including in the High Court of Australia. It then transferred ownership of its Australian companies to a subsidiary it had set up in Hong Kong so as to enable an ISDS claim under the Australia-Hong Kong trade agreement. The claim failed, but only because the transfer of ownership of the companies to Hong Kong post-dated the activity giving rise to the claim.
Lord Hain (Lab) [V]
My Lords, the Covid-19 pandemic has shone a spotlight on unacceptable working conditions, especially those endured by many key workers, and on some of the downsides of globalisation—job insecurity, zero-hours contracts, unfairly poor pay, discrimination and lack of recognition—and it is a pleasure to follow my noble friend Lord Hendy’s very able and expert moving of Amendment 17.
The Covid-19 pandemic has emphasised the significance of employment laws and of gaps in international trade agreements, notably the inadequate protection of labour standards and the woeful lack of requirements that contractors for public sector work should abide by ILO conventions ratified by the UK. Ministers have been keen to distinguish between trade deals rolled over from pre-existing EU trade agreements and new deals yet to be struck independently of the UK. The focus of the Trade Bill is on the former, but if these are to be the foundations for future UK trading relationships in the post-Brexit period, they hardly look secure: far from it. Instead, the Bill is full of holes.
This amendment seeks to fill in some of those holes. It guards against regulations implementing any trade deal that permits investor-state dispute settlement arrangements that expose democratically decided laws to potential threat from foreign companies claiming billions in compensation for supposed losses. My noble friend Lord Hendy spelled out examples and I will add two others. These are not hypothetical threats. Canada has been sued for a moratorium on fracking in Quebec, and Mexico for attacks on sugary drinks to fight diabetes. The amendment will also prevent trade deals that contravene international standards of labour law, such as ILO conventions to which the UK is committed and articles of the European Social Charter, ratified by the UK.
Succeeding in global markets today demands more than matching your competitors’ prices. It means setting fresh standards of product quality and providing unparalleled levels of customer service. That can be done only by adopting world-class ways of working and by treating your workforce with respect for the standards set by ILO conventions. For the life of me —I mentioned this when I last spoke in this Committee—I do not understand why the Government are not accepting these amendments, unless they have an entirely different deregulated, low-labour-standards, low-tax, Singapore-on-Thames agenda for Britain. So I hope that the Minister will reassure us on that point when he replies.
Baroness Blower (Lab) [V]
My Lords, I am pleased to speak on Amendment 17, to which I have added my name.
While the history of trade negotiations may not be completely littered with the fragments of failed attempts, it is certainly the case that the Transatlantic Trade and Investment Partnership, TTIP, failed, after several years of negotiations, to come to any conclusion. In Britain, much of the opposition was on the basis of the perceived—and I believe very real—threat to our NHS: the threat that the NHS would not survive as a public service and that the writ of privatisation would run ever more unchecked. I was pleased to hear a most eloquent speech from the noble Lord, Lord Patel, offering a catalogue of already privatised and outsourced elements from our NHS, and, significantly, pointing out the dangers that this posed.
Equally, the opposition to TTIP, not just in Britain but across Europe, focused, as my noble friend Lord Hendy said, on the investor-state dispute settlement mechanism—ISDS. My noble friend gave chapter and verse on the reasons for opposing ISDS. I concur with his remarks and associate myself with those of my noble friend Lord Hain.
Let me add a perspective from the United Nations, specifically from the United Nations Conference on Trade and Development. As the Committee might expect, ISDS features in UNCTAD reports. In May of this year, we find the following in one of its reports:
“Foreign investors have used ISDS claims to challenge measures adopted by States in the public interest (for example … to promote social equity, foster environmental protection or protect public health)”—
all issues close, I am sure, to the hearts of many in this House. The report goes on:
“Broad ISDS mechanisms typically used in old-generation”
international investment agreements
“provide for the contracting parties’ advance consent to international arbitration and are characterized by broad scope, few conditions for investors’ access to ISDS and a lack of procedural improvements. As ISDS is at the heart of the IIA reform process, in recent IIAs countries have carefully regulated ISDS and at times omitted it”
completely.
UNCTAD goes on to make a number of recommendations, but I shall confine myself to this one:
“Replacing ISDS by settling disputes in domestic courts and/or through State-State dispute settlement”.
In July, UNCTAD returned to the question and said:
“Policy responses taken by governments to address the COVID-19 pandemic and its economic fallout could create friction with existing IIA obligations. This highlights the need to safeguard sufficient regulatory space … to protect public health and to minimize the risk of”
ISDS proceedings.
There are huge problems with the ISDS mechanism, from Philip Morris to the Portuguese metro and so many more. It would therefore be wise for the Government to heed the words of the United Nations—but, more so, to heed those of my noble friend Lord Hendy. ISDS should have no place in our future trade arrangements. I will listen extremely carefully and with great interest to the response from the Minister.
Baroness Kramer (LD) [V]
My Lords, I will speak to Amendments 43 and 44, which again deal with dispute resolution. In a way, these amendments need to be seen together, because Amendment 44 is perhaps a patch on the current system, while Amendment 43 takes us forward towards a resolution so that we can structure a suitable mechanism for dispute resolution under trade agreements.
Amendment 44 requires that legal proceedings against the UK under an ISDS would be heard in the UK courts. Essentially, it picks up the point made by the noble Baroness, Lady Blower, that one of the recommendations of dealing with the most egregious aspects of ISDS is to throw the issues back into the domestic courts. It provides a patch that would help us get through this immediate set of problems, because suddenly transparency, fairness and respect for domestic law come into the picture.
I am not going to repeat all the arguments already made very powerfully by the noble Lords, Lord Hendy and Lord Hain, and the noble Baroness, Lady Blower, about the flaws in ISDS. I think we can all accept that it is generally regarded as unfit for purpose in a modern, complex economy, with trade agreements that now cover so many issues. We probably all share the concern that rolling over existing ISDS in continuity agreements is generally very undesirable because it sets such a clear precedent for using ISDS again in future trade agreements. I think we all have a particular eye on the US FTA negotiations and are very concerned about ISDS provisions appearing in that.
The Deputy Chairman of Committees (Lord McNicol of West Kilbride) (Lab)
My Lords, I offer a gentle reminder that all mics in the Grand Committee are live at all times. If everyone’s mobile devices could be on silent and their notifications muted, it would be greatly appreciated.
Baroness Chakrabarti (Lab) [V]
My Lords, in the light of the way we have spent much of the past hour, I begin by recording my thanks to the members of your Lordships’ House’s staff who have been extraordinary in their patience and calm with the technical difficulties that we have all suffered. They have held everyone’s hand and been wonderful under fire.
It is my absolute privilege to follow the speeches we have just heard, particularly those of my noble friends Lord Hendy, Lord Hain and Lady Blower. I have lent my name to Amendment 17, drafted by my noble friend Lord Hendy. But before I speak to it, I will make a preliminary point of law that is relevant not just to Amendment 17 but to many of the amendments that your Lordships have discussed during these many hours of debate in Grand Committee, which I have had the delight of listening to very closely.
In the community and in the country at large, it is understood that it is dangerous to pontificate about the law and give legal advice without a certain level of qualification. That is so well understood that the profession is regulated and there are tight legal limits. That cannot be the case in the business of legislation, of course, because there is politics and policy on the one hand and the law on the other, with the journey—the process of legislation—in between. So, although I think that dinner-table lawyers are almost as dangerous as armchair medics or epidemiologists, I do understand that making claims about the law during legislative debates is sometimes an occupational hazard.
Your Lordships’ House is criticised in many quarters, but one thing that can often be said of it is that it contains a great many experts who contribute expertise from different areas of life and practice to the business of scrutinising legislation. My noble friend Lady Blower mentioned the noble Lord, Lord Patel. I do not think that she is alone in having benefited from his contributions, from a medical and public perspective, to your Lordships’ Grand Committee.
Of course, my noble friend Lord Hendy, who drafted Amendment 17, has been a practising barrister for 48 years—he will forgive me for pointing this out—working in particular as a labour lawyer but also on legislation and legal disputes, and he has spent 33 of those years in silk as one of Her Majesty’s Queen’s Counsel. So noble Lords can imagine that he would not have drafted an amendment to the Bill if it were outside the scope of the Bill; or, if he had, or if other noble Lords had drafted amendments that were beyond the scope of the Bill, the amendments would not be entertained in this way. They would not appear on the Order Paper and your Lordships would not have been asked to waste so many hours debating them.
That brings me to my preliminary point of law. In the many hours of Grand Committee that I have listened to in recent days, I have heard claims made, at times by the Minister and at times by some of his noble friends, notably the noble Lord, Lord Lansley, and others, suggesting that various amendments trying to restrict the vires of the regulation-making powers in this Bill are somehow beyond the Bill’s scope, or are irrelevant, or would clutter up the statute book—that was one comment I heard—or are otherwise inappropriate because they seek erroneously and improperly to clip the Executive’s wings when they are out trying to make trade agreements. That is one argument to the House that has emerged in your Lordships’ Grand Committee. Another argument that has been made is that the amendments completely miss the point of this draft legislation, because this legislation is purely about so-called continuity or rollover trade agreements; therefore, there is no need to place any additional hindrances or fetters on the regulation-making powers in the Bill to implement these rollover or continuity—other similar phrases have been used—trade agreements.
Well, the politics and the policy can come later, but let us be straight about the law here. That is just not correct. As a matter of law, that is not what is provided in the Bill, which allows for trade agreements, albeit with parties that have already been in an agreement with the European Union. They are trade agreements and there are regulations to be made under those trade agreements to implement them. That is the law. That is not spin. That is not politics. That is the law and the effect of this legislation.
Therefore, it is important to pre-empt the comments that will no doubt come from the Minister in due course and point out that it is completely appropriate for your Lordships and this Grand Committee to use amendments that have clearly been ruled as within the scope of the debate to restrain the vires, or the power, to make these regulations: that is, to say that it is perfectly appropriate that the regulation-making powers to implement these trade agreements—whether you call them continuity agreements or rollover agreements or even Charlie—can be constrained. Many amendments attempt to do that.
Your Lordships are perfectly free to say that some of the constraints should not be there as a matter of politics or policy: indeed, to say that we should not protect the NHS, workers’ rights, environmental standards, et cetera. That is fair for political and legislative debate, but in my view it is not okay—it is not straight talking with Members of your Lordships’ House—to suggest that these amendments are somehow beyond scope or inappropriate for debate in this way. I am afraid that, whatever else we are, some of us are lawyers first and last, just like some of your Lordships are distinguished medics, career politicians and so on. That is quite important.
This brings me to Amendment 17, and ISDS in particular. Obviously, this is dealt with with some care and precision in my noble friend Lord Hendy’s amendment, to which I have added my name, but I noted that, during the many hours of debate, other Members of the Committee have spoken to the evils of this system of secret justice, if such a thing is even possible. It seems to me that, whatever our differences in this Grand Committee and in your Lordships’ House, all Members ought to be concerned about ISDS and should seek to rule it out from being implemented by way of regulation-making powers in this Bill. In other words, if there is to be ISDS in future, it should require a new, separate Act of Parliament that can be consulted on and aired publicly, and debated line by line in both Houses of Parliament. All Members of your Lordships’ House, whether they are socialists, Greens, Liberals or Conservatives, ought to be scandalised by ISDS.
What is more, all people in our nations should be alarmed by the practice of ISDS, whether they voted to leave the European Union or to remain. Why? In a nutshell, because this practice prioritises unelected, unaccountable corporations over democratically elected Governments and the people they serve. That is the first reason. The second reason is that, as other noble Lords pointed out, it prioritises foreign corporations over domestic businesses. That cannot be right either.
Lord Lansley (Con)
My Lords, I am rather pleased to follow the noble Baroness, Lady Chakrabarti, since it gives me an immediate right of reply. If she looks carefully at the debates last week, which she was listening to, she will find that at no point did I assert that any of the amendments were out of scope—not least because I have put down further amendments myself that are intended to have an impact on the processes for making regulations for trade future trade agreements, and indeed which impact on schemes outwith the text of the Bill. I will come on precisely to that in Amendment 91 in this group.
I say gently to the noble Baroness, Lady Chakrabarti, that the making of law is not solely the province of lawyers. There is a very valued tradition in this House that we bring expertise from a range of different disciplines. As it happens, my discipline—my original training—is that of a civil servant. Some 39 years ago I wrote the instructions to counsel for a major piece of legislation, and just under 10 years ago, as Leader of the House of Commons, I was responsible for Parliamentary Counsel and the scrutiny of legislation brought before the two Houses, and for the structure of the legislative programme. For 40 years I have engaged in the process of legislation. The fact that I am not qualified lawyer in no sense excludes me from making the points that I made.
As it happens, I did not say that anything was out of scope. The point I gently made last week was that quite a number of the amendments we were looking at were intended to influence—
The Deputy Chairman of Committees (Baroness Fookes) (Con)
My Lords, I am sorry to stop the noble Lord, but I understand that there are still some problems with hearing. Is that true of other Members of the Committee? No? Perhaps we can resume and see how we get on.
Lord Lansley (Con)
I was making the point that in amendments last week, I was trying to help the Committee. The objective of quite a number of the amendments was to influence the content of future trade agreements, but the effect of the amendments would have applied only to the continuity agreements. We will need to understand that in particular on Report, and to seek in some cases to amend the Bill, and to do so with the effect that people are looking for.
To come back to this group, I spoke on Thursday, I think, about Philip Morris. I will not repeat any of that but will simply say that it gives rise to considerable sympathy on my part about the actions of some companies. However, the absence of investor-state dispute settlement—
The Deputy Chairman of Committees (Baroness Fookes) (Con)
My Lords, I am sorry to interrupt the noble Lord again, but there has been a request that he starts his speech again, because quite a lot of it was lost. May I trouble him to start again?
Lord Lansley (Con)
Since I have no text, it will not be the same speech, so if you will forgive me, I will not do that. It will appear in Hansard, and I encourage Members to read it there. In any case, I am now talking about the amendments in this group, as opposed to responding to the noble Baroness, Lady Chakrabarti, which noble Lords can read in Hansard.
On these amendments, I have great sympathy with what the noble Lord, Lord Hendy, was saying. When Philip Morris was frustrated on an investor-state dispute settlement, it effectively used Honduras and the Dominican Republic to use WTO procedures. So the absence of ISDS is not enough in itself—we have to ensure that we are proof against that. In fact, where Australia was concerned, as it happens, the public health exemptions in the WTO were sufficient in the last decision of the appellate body that the noble Baroness, Lady Kramer, regrets the absence of: the last decision it made in June was to uphold Australia’s position. We have to be very mindful of that.
Before I get to my own amendment, I will speak to the others. There is a very legitimate question. Are the Government planning simply to roll over existing EU agreements as they are, including where there are ISDS provisions and including with CETA in due course, where there is an investment court system? I am very interested to know what the Government’s intentions are. Certainly, my expectation is that it will be very difficult to have a continuity agreement while departing substantially from continuity.
As regards Japan, I do not have the text of the UK-Japan Comprehensive Economic Partnership Agreement, but while the EU-Japan agreement encourages mutual investment, Article 8.9.4 of it makes clear that, while market access, national treatment without discrimination and most-favoured-nation status are offered, it says that for “greater certainty”, most-favoured-nation treatment
“does not include investor-to-state dispute settlement procedures provided for in other international agreements.”
I will be very interested to know in due course whether the UK-Japan agreement says the same thing. I know that my friends in Japan take the view that we will not be able to accede to the CPTPP without accepting an investor-state dispute settlement. So this is a very interesting moment in understanding whether we are joining with the European Union in moving away from investor-state dispute settlement, or whether we subscribe to the Japanese view that it remains a legitimate vehicle in international trade agreements.
Amendment 43 proposes a multilateral investment tribunal. I wish that we could use such a process. The Doha round did not accept a multilateral investment provision—the proposal failed. We have bilateral agreements, but while they might be desirable they are not sufficiently widespread to allow us to get to a multilateral tribunal. Putting in legislation a requirement for such a tribunal when people have not yet signed up to one seems heroic.
Amendment 91 is not about investor-state dispute settlement; it is about disputes between states. The best example to have in mind is the dispute between the European Union and the United States. As a result of US action, the dispute reached the point where it was lawful under WTO rules for the EU to apply specific import duties against US exports into the European Union.
The Taxation (Cross-border Trade) Act 2018 relates to this, but why I am talking about a different piece of legislation? The original Trade Bill and the Taxation (Cross-border Trade) Bill were introduced at the same time, at the end of 2017. They were intended to be considered side by side and they cross-refer considerably. In this instance, it is entirely right for us to look at the Taxation (Cross-border Trade) Act and ask whether the parliamentary scrutiny arrangements relating to it are correct. Section 15 of the Act gives the Secretary of State the power to impose through regulations additional import duties as a result of an international dispute—for example, regulations to impose import duties on US exports. That power is exercisable through the negative resolution procedure, but in my view it should be an affirmative resolution procedure—this should be added to the list of affirmative resolution procedures in Section 32 of the Taxation (Cross-border Trade) Act.
The argument in the Government’s Explanatory Notes for using the negative procedure in the great majority of cases where customs duties are imposed is that there are so many such regulations that they have to be made in that way, otherwise they become impractical. That is patently not the case here. In this instance, I encourage my noble friend the Minister to agree that there will be relatively few international disputes that give rise to the imposition of such duties and that, when that happens, it will by its nature be of considerable significance and therefore should be in the form of regulations subject to the affirmative procedure.
Lord Judd (Lab)
My Lords, we are indeed fortunate to have had someone with the huge experience, not least internationally, of my noble friend Lord Hendy introducing the amendment, as reflected in the authoritative way in which he did so. I always applaud my noble friend Lord Hain, who said that he could not understand why the Government did not accept amendments. I am sorry to bring controversy to this discussion, but we must face the truth. I suggest to my noble friend that the explanation is quite clear. A bunch of ideologues in Number 10, such as we have never been exposed to in my time in politics, are determined to drive their strategy through. Their strategy is for a free-for-all and a totally unregulated society. They are fundamentally opposed to regulation and, with that, accountability. Unless we face that reality, we are just tackling everything down river without going to the source of the problem.
My noble friend was right to underline the importance of the protection of labour and employment standards. I was glad to hear my noble friend Lady Blower speaking. She was absolutely right to emphasise the importance of the UN and UNCTAD in particular. UNCTAD has played an important role in bringing the nations together to find a workable and just system across the world. My noble friend Lady Chakrabarti also has considerable experience. She emphasised the fact that we are talking about the law and our need to be vigilant in protecting the environment and the NHS.
Baroness McIntosh of Pickering (Con)
My Lords, I am delighted to follow the noble Lord, Lord Judd. I will speak in particular to Amendments 52 and 94 in the name of the noble Lord, Lord Stevenson of Balmacara, to which I have appended my signature. I would like to use this opportunity to probe my noble friend on the precise state of the dispute resolution mechanism generally, as well as in relation to ISDS, but I have a lot of sympathy with other amendments in this group.
I will leave the details of the amendments to the noble Lord, Lord Stevenson of Balmacara, but, using them as a vehicle, I refer to the Library Note, which states on page 8 that
“the Government states it may need to implement the results of an arbitration/alternative dispute resolution decision under a continuity agreement.”
On page 9 of the Explanatory Notes, the Government state:
“This could include, for example, implementing decisions made by a joint committee of the parties set up under a trade agreement or implementing the results of an arbitration/alternative dispute resolution decision.”
I will refer to some examples, although not as many as we had from the noble Lord, Lord Hendy, in his excellent opening speech on this group of amendments. There does not seem to be any parity given, in the EU application for the review of subsidies before the World Trade Organization, to Boeing. The dispute that the EU—and through it, the UK—has brought with regard to America giving subsidies in large measure to Boeing does not seem to have got very far very quickly, whereas the decision taken by the US Administration against the EU for the claim that was brought for subsidies and action for Airbus brought a very swift response from the US that has in particular harmed Scotch whisky.
In answer to the noble Baroness, Lady Chakrabarti, I entirely endorse what my noble friend Lord Lansley said: one of the reasons we are here is as legislators, whatever background we are from. I declare for the record that I am a non-practising Scottish advocate.
Scotch whisky is our largest export of food and drink—probably one of our largest exports of any product—and it suffered a 27% decline in exports in the fourth quarter of 2019. This has brought enormous tension within the UK. The Scottish Trade Minister has said on numerous occasions—most recently as reported in the Times this weekend, or perhaps today; I am not sure—that the Scottish Government would like to see a much more rigorous approach by the UK Government and the EU as a whole to see these subsidies lifted. It raises a more general question. I understand that the Trump Administration have made a general threat to walk away from the World Trade Organization mechanism.
So I will use this little debate to ask my noble friend: what is the status within the continuity agreements, particularly those that have already been signed, of the dispute resolution mechanism? Has it been squared off with the devolved Assemblies? Are they all in agreement as to what the mechanism will be? Does my noble friend share my general concern that it takes a woefully long time for a dispute resolution to be reached under the World Trade Organization—something that is now compounded by the threat on the table by one of the biggest players to walk away? In addition, can my noble friend tell us what the status is with the devolved Governments, and what the dispute resolution mechanism is that has currently been agreed under those rollover agreements?
I place on record my concern at the impact on one particular product, which happens to be our major food and drink export, beyond doubt—Scotch whisky—and ask when my noble friend the Minister might expect a resolution.
The Deputy Chairman of Committees (Baroness Fookes) (Con)
My Lords, the noble Baroness, Lady Bennett of Manor Castle, has withdrawn, so I now call the noble Earl, Lord Caithness.
The Earl of Caithness (Con)
My Lords, first, I thank my noble friend the Minister for the correspondence that we have had since our last discussion. I found his letter, which I got yesterday, very helpful. I also thank him for his continued efforts to assuage my concerns with regard to ISDS. He is getting there but he has not won yet. In his letter, he mentioned the Vattenfall case, because I brought that up with him and he kindly agreed to fill in some more detail for me. But surely the Vattenfall case merely confirmed that an ISDS was not necessary. It was actually the German Constitutional Court that sorted out the problem there. The courts, in an open and transparent way, must surely be the right way for trade disputes to be settled, rather than in the murky waters of an ISDS.
My noble friend also said that the UK had never faced an ISDS claim that had reached arbitration. That is absolutely right, and I think that the public reaction would have been a lot noisier and more visible to us all if a claim had reached arbitration. Surely the reason for the current situation is that our ISDS agreements tend to be with developing countries in which we are investing. Looking ahead, the situation will be very different if and when we sign a trade deal with the US, which has very big investments in this country.
It is interesting to note—and I would be interested in what the Minister thinks on this—that Canada, having had rather bad experiences with ISDS when it was part of NAFTA, withdrew from the ISDS in the new USMCA trade deal in order to get away from that difficulty. Unless we follow a somewhat similar pattern, I fear that the UK will get severely punished in the future.
I will pick up a theme started by the noble Lord, Lord Hendy, when he introduced this amendment and to which other noble Lords referred: the chilling effect of ISDS. In particular, my concern is the chilling effect on environmental regulations and environmental law in the future. ISDS has been used to challenge important regulations, such as those on fracking in Canada and, as I mentioned on Thursday, plain packaging for cigarettes in Australia. This has cost Governments in the countries involved a considerable amount of money. Governments have been reluctant to regulate in these areas because of the mere threat of an ISDS. If we are to fulfil the aim of the Prime Minister, which he stated to the party conference this morning, to have a green revolution to bring us back to economic prosperity, the one thing that we cannot afford is to have ISDS threats on environmental regulation hanging over us in the future.
What has not been raised so far in our debates is the report, Costs and Benefits of an EU-USA Investment Protection Treaty, which the former BIS department commissioned from the London School of Economics. Can my noble friend comment on it? It warned of going beyond
“the traditional core of favourable standards of treatment backed up by access to ISDS”,
containing
“provisions concerning the host state’s right to implement treaty-consistent measures to protect the environment”.
The report found that the UK would necessarily incur costs in defending itself against investor lawsuits, even if the UK wins, and that is something that has not happened to date. It goes on to say that it is
“virtually certain that such costs under an EU-US investment chapter will be higher than under the status quo”.
To quote from the report again,
“we suggest that an EU-US investment treaty would impose costs on the UK to the extent that it prevents the UK government from regulating in the public interest.”
That is exactly the point I have just been making: it is the chilling effect of ISDS. The report concludes that a treaty without ISDS would be a less costly option for the UK. As a minimum outcome, therefore, we should surely ditch ISDS as a matter of urgency, and I find it quite interesting that at least two of the countries with which we have rolled over continuity agreements, Morocco and South Africa, are ditching ISDS in other trade deals that they are doing.
Lord Purvis of Tweed (LD)
My Lords, I am very pleased to follow the noble Earl, because of his dogged approach on this issue, not only on this Bill but on the predecessor Bill and the Agriculture Bill. I commend him on his work and I will be referring to some of the points he raised, because I was reflecting on them as he spoke.
I shall primarily address Amendments 43 and 44, in my name and that of my noble friend Lady Kramer, and also reflect on what I thought was a very comprehensive speech by the noble Lord, Lord Lansley, and some of the points he raised within it. I have supported Amendment 91 in his name. This was raised at Second Reading by the noble Lords, Lord Hendy and Lord Freyberg, and the noble Earl, Lord Caithness. I commend the noble Lord, Lord Hendy, on the way he introduced this group and on allowing us to have this important debate: it is extremely important for the Bill and for UK trade going forward.
The Minister said, in summing up on Second Reading:
“ISDS is a subject which often causes excitement … I confirm that ISDS tribunals can never overrule the sovereignty of Parliament … There has never been a successful ISDS claim against the United Kingdom, but our investors operating overseas have often benefited from these agreements”.—[Official Report, 8/9/20; col. 749.]
I do not know about “excitement”, but there is genuine concern, which primarily comes down to two areas. One is that it is not clear yet what the Government’s position is on the agreements that are yet to be made, which will be continuity agreements, primarily with Vietnam, Canada, Singapore and Mexico, where, as we have heard in this debate, the European Union agreements have moved beyond ISDS. Can the Minister confirm that, in our negotiations with them, we will have follow-on from the European Union position? The second area of concern is what the Government’s position will be in the longer term. Are we moving away from the position we held when we were in the EU and towards a multilateral system?
I think it is helpful to remember the scale of this issue. It is not a minor issue. Across the European Union member states, more than 1,300 investment treaties have been signed with third countries, in addition to some 200 between EU member states. Non-EU states within Europe are party to more than 500, and we will now be in this category. This is just part of the 3,000 that exist worldwide. Most of these include ISDS provisions and often, as we have heard from UNCTAD—I shall refer to UNCTAD in a moment—it is very clear from the annual reports on the use of ISDS that companies have a view that public policy choices made by Governments will have an impact on their profits, and therefore they will use that ISDS.
The Minister seemed to suggest that the Government are in favour of ISDS because it disproportionately benefits British investors around the world. Statistically, that is true about the use of ISDS, so UNCTAD’s data is interesting. The United Kingdom is the third-highest home state of claimants of ISDS around the world. From 1987 to 2018, in the number of known cases, the UK was third, with 78. As the respondent state, we have had only one. So there have been 78 where we have been the home state and one where we have been the respondent state—so, on one reading, the Minister could be correct that this has been of benefit to British-based operations. But a bit more analysis is required as to what “British-based” means when it comes to some of the commercial operations, and where some of those cases have primarily concerned developing countries.
On the second aspect, it was helpful that the noble Earl raised some of the consequences of Covid-19, because it is not just America lining up. We have had reports that law firms have been studying decisions made by British authorities, including the London Mayor’s decision to close Crossrail construction during the pandemic, during the lockdown. While this was not underpinned by a statutory requirement, it is potentially vulnerable to those seeking compensation under the investment treaty. Will the Minister respond to the noble Earl’s question on how vulnerable the UK is at the moment?
The issue moving forward, as my noble friend Lady Kramer indicated, is that the EU has ratified four agreements with an ISDS mechanism: the Energy Charter Treaty, to which 53 European and central Asian countries are party; CETA, with Canada; and agreements with Vietnam and Singapore. Only the ECT is fully in force; the ISDS provisions in the three others will be implemented after all member states have ratified them. More importantly, those agreements include investment court systems and, last year, the Commission presented procedural proposals for the more transparent ICS for CETA. Can the Minister say what approach we will be adopting in our discussions with Canada? Are we seeking, in our agreement with Canada, an investment court system? These new transparent approaches will allow for mediation, which ISDS has largely overlooked, and an appeal mechanism that will then be binding on the parties. All of this has a public interest test, because they are party to the agreements with regards to the making of public policy, so what is our position on Canada, Vietnam, Singapore and Mexico?
It would, for many, be a fully retrograde step if we were not to seek continuity in those new agreements: it would negate the progress that has been made by the EU moving away from the ISDS system. Why is it progress? Well, as many in this Committee have indicated, it is not just the fact that Parliament remains sovereign—of course it does—but what use is sovereignty if the constraints on using that sovereignty are so significant? It is the chilling effect, as the noble Earl said, that is potentially blocking. We have seen attempts against France, Australia and Canada, all attempts under ISDS and intellectual property disputes, seeking either policy change from the Government, or compensation. Some of those could mean that regulations would have to be changed. This is the point: public policy should be made in the public interest, not in the shareholder interest.
The noble Lord, Lord Lansley, made the point about moving towards the long term. We have included that in our Amendment 43. He may refer to it as “heroic”, but that has never stopped the Lib Dems seeking those aims in the past. However, I think we have some strong supporters in the European Union with this approach, and we had strong support in the United Kingdom. The United Kingdom took part in the Council giving the mandate to the Commission for the negotiations towards a multilateral court system for trade. On 1 March 2008, the Council approved negotiating directives for a convention establishing a multilateral court for the settlement of investment disputes. That was a unanimous decision. The Minister will have to remind me, because I have slightly lost track of which Councils the Government refused to attend after we voted out of the European Union, but I am going on the basis—and he can correct me if I am wrong—that we were part of the unanimity in the European Union to move towards a multilateral court for the settlement of investment disputes. After that mandate was secured with United Kingdom support, discussions started on existing agreements, which we have rolled over, for moving towards an ICS approach rather than an ISDS one. We have rolled over 20 agreements so far. Where there have been elements of ISDS provision, the European Union is looking at them again to move towards a court system. Can the Minister say whether we will do the same?
The benefit of moving towards this is that we will be able to be part of an aligned movement of countries looking towards a more open and transparent approach, and that approach has been taken squarely from the European Union with regard to our colleagues in TTIP. The noble Lord, Lord Lansley, is right to ask this question. This will be a choice for the Government. Because of the transparency in the European Union, we know what the position is. We know what the mandate was. We know what the Government’s position was up until the end of December. We need to know their position now with the agreements yet to come.
Finally, I support Amendment 91 and will be brief on this. The noble Lord, Lord Lansley, is right. Any consequence of taking retaliatory action or imposing sanctions under the WTO—which we will be able to do under our membership of it—will, by definition, and inevitably, be serious and impact our country-to-country relations. As I understand it, we would be able to bring these forward only if we had the previous authorisation of the dispute settlement body at the WTO, having made a public case to it. It seems incongruous to me that we would have made a public case to the dispute settlement body of the WTO for approval but will not be doing the same to our own Parliament to make a decision on the ongoing consequences of the implementation of those regulations. I hope the Minister can clarify that the Government would be open to supporting that aspect.
Lord Stevenson of Balmacara (Lab) [V]
My Lords, I thank all the speakers in this debate. I also echo the thanks from the noble Baroness, Lady Chakrabarti, to the staff for allowing us to get to where we are. We might have had a rocky ride and have missed a few words here and there, particularly the exchange between the noble Baroness and the noble Lord, Lord Lansley, but we are here and we are making progress and we owe them a vote of thanks for keeping us going.
The debate has been rich and the issue has been given a good going over. As the noble Baroness, Lady Chakrabarti, and others have said, my noble friend Lord Hendy spoke powerfully on the key amendment with a huge amount of knowledge. He confirmed that we took the right decision to hold his speech over from last Thursday. It would not have done well to have had the first part last week and the second part today. I am glad we were able to hear it—some of us got it twice, but it was still jolly good—and I congratulate him on that.
The Minister of State, Department for Business, Energy and Industrial Strategy and Department for International Trade (Lord Grimstone of Boscobel) (Con)
My Lords, it has certainly been an erudite and extraordinarily interesting debate, and I congratulate all noble Lords who have taken part in it. I certainly understand the point made by the noble Baroness, Lady Chakrabarti, that it is right and proper that noble Lords should be allowed a free rein in debating these matters, and I entirely recognise the legal competence that we have in this House, which has been displayed to such great effect in the Grand Committee today.
Your Lordships might expect me to start off, as I always do, by saying that this Trade Bill does not deal with the implementation of FTAs with new partners, such as the USA or Australia. Instead, as noble Lords are no doubt tired of hearing me say, the Trade Bill provides powers to implement those trade agreements to which the EU and third countries were already signatories before we left the EU. I will come back later to the points that noble Lords have raised about the status of ISDS in those agreements.
Having said that, of course I understand completely the concerns that have been raised about ISDS, but I believe that these may be overstated. Perhaps I may be allowed a couple of minutes to try to elaborate this argument. We have heard that the UK has never faced an ISDS claim before an arbitral tribunal; nor has the threat of an ISDS claim affected our legislation. We are clear that the UK and treaty partners retain the right to regulate in the public interest, and this is already recognised under international law.
Before going into the detail of the amendments, which, understandably perhaps, focus on foreign investors in the UK, it is important that we remember that there are two sides to ISDS. It would not be right to let go unremarked the great benefit that UK investors overseas obtain from ISDS. Arguably, the benefit that our investors overseas obtain from ISDS is, for reasons that I will come to later, significantly greater than the benefits that overseas investors obtain in the UK.
We should not forget that ISDS disputes generally arise when private assets are expropriated by the state without paying compensation or where foreign investors are discriminated against compared to domestic investors. These two factors are the essence of the ISDS mechanism. I would suggest that these are perfectly laudable matters to want to protect for investors—either our investors overseas or foreign investors here. I ask that we remember these two points as we debate these amendments.
On Amendment 17, in the names of the noble Lords, Lord Hendy and Lord Hain, and the noble Baronesses, Lady Blower and Lady Chakrabarti, the proposed new clause would result in the UK being unable to implement a continuity agreement that contains ISDS unless the matter in respect of which an ISDS claim was brought had its exact parallel in UK domestic law for UK investors.
Of course, foreign investors in the UK already have access to legal redress against the UK Government through domestic remedies. These will often be quicker and more cost-effective than resorting to ISDS, and the UK’s courts and legal system are held in high regard internationally, so it is not surprising that people often choose to go to our courts in the UK. However, it is important for foreign investors to have a means of redress which is seen to be completely independent of the UK state, and, as I said previously, ISDS remains valuable for UK businesses when investing overseas. It is very much seen as a mechanism of last resort but may in some cases be the only form of legal redress available to investors.
Like other noble Lords, I admired the erudition of the speech made by the noble Lord, Lord Hendy, to which I listened closely. He set out a long list of cases and argued cogently that ISDS may have a chilling effect on a state’s ability to regulate in the public interest. My noble friend Lord Caithness also made that point. However, while some cases that were cited are examples of ISDS impinging on the rights of the state, investor protection agreements do not eradicate the Government’s ability to regulate in the public interest, and it is this right to regulate that is recognised in international law.
The UK has more than 90 bilateral investment treaties in place with other countries, and there has never been a successful ISDS claim brought against the UK, nor, importantly, has the threat of potential claims ever affected the Government’s legislative programme. Let me be clear to put people’s minds at rest: ISDS tribunals cannot overrule the sovereignty of Parliament; they cannot overturn or force any changes in law.
Further, it is likely that the UK’s treaty partners would insist on reciprocal provisions—if I may come back to the amendment—for the implementation of trade agreements. This would result in UK investors overseas being unable to bring an ISDS claim unless there are also equivalent forms of domestic legal redress in those states, which in many cases, or some cases, there will not be.
One of the key benefits of investment treaties is to agree the precise details for an effective and common form of legal redress. Requiring this to reflect different domestic laws could disadvantage UK investors overseas by introducing uncertainty in a well-understood mechanism and denying them the same means of legal redress available to other international investors. I will come later, if I may, to the point that these mechanisms evolve and improve over time.
The noble Baroness, Lady Blower, raised the potential impact of ISDS on the NHS, and I would like to deal with that quite straightforwardly. ISDS does not and cannot force the privatisation of public services. Under current UK agreements, claims can be made only in respect of established investments—that is when a company is already operating in the United Kingdom—and claims cannot be made in relation to an alleged failure to open up public services to a potential investor. ISDS claims can only lead to compensation where the tribunal finds that treaty commitments or obligations have been breached, and they do not lead to a change in the law.
To be absolutely clear, ISDS will not oblige the Government to open the NHS to further competition, and overseas companies will not be able to take legal action to force us to do so. The NHS will continue to be free at the point of use for everyone who needs it. Protecting public services, including the NHS, remains of the utmost importance to the United Kingdom.
Similarly, Amendment 43, in the names of the noble Lord, Lord Purvis of Tweed, and the noble Baroness, Lady Kramer, would require that the UK sign a trade agreement only if it commits all parties to pursue the establishment of a multilateral investment tribunal system and an appellate mechanism for the settlement of investor-state disputes. This would apply to both continuity agreements and future trade agreements, even though the latter are outside the scope of this Bill.
Not all trade agreements include investment protection and investment dispute settlement. It is therefore not appropriate to require all trade agreements to include a commitment to pursue a multilateral investment tribunal system. To include such a requirement on the UK and our treaty partners for ratification in such a manner would hinder the progress of UK trade policy. It would also require reopening agreements to make these significant changes.
The Deputy Chairman of Committees (Baroness Fookes) (Con)
I have received a request from the noble Lord, Lord Purvis, to speak after the Minister.
Lord Purvis of Tweed (LD)
My Lords, I thank the Minister for his comprehensive response to the debate on this group of amendments. I am grateful for that; it shows the seriousness of this issue. I and other noble Lords will reflect on his remarks.
I have two questions. The first relates to the amendment in the name of the noble Lord, Lord Lansley, which I support. As I understood it, if we were to bring retaliatory measures or sanctions, they would have to have been authorised by the dispute settlement body at the WTO, so by the time they came to Parliament, either under the negative procedure or the affirmative procedure, they would be public anyway. Therefore, Parliament’s ability to use the affirmative procedure would be based on what was already in the public domain.
Secondly, I am still not sure why the Government have not indicated that they will continue with their support for moving towards an investment court system in our continuity agreements with Singapore, Vietnam and Mexico, which are yet be signed, given that the European Union has stated categorically that moving towards such a system is the approach for those countries and is now, to quote the Commission in October 2019, “on the table” in all ongoing investment negotiations. I simply do not understand why the Government, who supported moving to a multilateral system, now say that they are fully engaged and cannot say what their position is yet. Why can the Government not simply say that they support this in principle and are working with others to bring it about?
Lord Grimstone of Boscobel (Con)
The noble Lord raises two good points. On the first point, I will, if I may, write to him setting out in more detail the disadvantages and advantages that I see of the negative as opposed to the affirmative process. On the court, I make it clear that we welcome changes in the ISDS mechanism and potentially the formation of an MIC if, once the details are worked out, it seems that nations will sign up to it and it will be workable and in the best interests of the UK. We do not have our head in the sand in these matters. Like the noble Lord, I recognise that, if improvements can be made to the ISDS process, it is incumbent on us to do that. The point that I was trying to get across was that these are still early days in the discussions at the UN on this and it did not seem right to put our weight firmly behind it until we see how the discussions move forward. But I assure the noble Lord that we are open-minded about this and we will see where it gets to.
Lord Hendy (Lab)
My Lords, I am very grateful to the Minister for his response and to my noble friends Lord Hain, Lady Blower and Lady Chakrabarti for supporting Amendment 17. I am also grateful to all noble Lords who made such elegant and persuasive contributions to this debate, which has been wide-ranging and has covered a lot of issues.
I will not presume on the time of the Committee by commenting on particular contributions, save for two. The noble Lord, Lord Lansley, mentioned the fact that the central issue in the Philip Morris case was litigated in the World Trade Organization dispute mechanism, where the case was lost. His knowledge of the WTO is certainly greater than mine, but my understanding is that the rules, and hence the basis of the claim in the WTO, were different from the basis of the claim under the ISDS, not least because the claim in the WTO—as I understand it; I could be wrong—was brought by nation states rather than investing corporations.
The Minister made many points in his summary that I would like to take up, but I must resist. I will make just three points. First, he said that there were great benefits to UK investors overseas. Of course I accept that that is the case, but there appear to me to be four points to bear in mind.
First, this country should not support a mechanism that provides an avenue of challenge to other democratic states, just as it should not support a mechanism that enables a challenge to our democratic state. A remedy under ISDS is not available to citizens of either state except for investing corporations, but many citizens are affected by the matters covered by these trade agreements—food standards, environmental standards and labour standards.
Secondly, the Minister overlooked the globalised economy that we now have. UK corporations can establish almost anywhere in the world, just as foreign corporations can. So UK corporations can take advantage of ISDS arrangements by establishing a subsidiary to bring a case against the United Kingdom. There are dangers there, too.
Thirdly, when overseas investors make their investments, they of course evaluate the risk that things could go wrong or that the state might change the law. That is a matter for them. I do not see why we should put at risk our democratic standards by inviting a mechanism to protect overseas commercial investors.
Fourthly, this country has an admired legal system, as do many other countries. It is wrong in principle to provide a mechanism of legal challenge that is outside the domestic laws of any country.
The Deputy Chairman of Committees (Baroness Finlay of Llandaff) (CB)
My Lords, we will now resume the Committee. I call on the noble Lord, Lord Hendy, to complete his remarks.
Lord Hendy (Lab)
My Lords, I will make two final points in respect of the Minister’s speech. My second point is that he said that ISDS cannot force the privatisation of public services. That is absolutely right, of course, but we cannot overlook the fact that ISDS permits a challenge to taking previously privatised services back into public ownership—something that Governments of all persuasions have done from time to time in the past, especially in times of emergency.
Finally, the Minister said that the Government were considering the merits of a multinational investment tribunal in place of the secret arbitration under ISDS. Of course, one accepts immediately that the EU’s proposal for an MIT gives transparency instead of secrecy, which is very desirable. But it does not resolve the central evil that ISDS challenges, on very broad terms, parliamentary decisions by the chilling effect of a threat of compensation which is measured in billions—a disincentive for any Government.
The issue of ISDS is obviously controversial and the Minister is plainly aware of the concerns of members of the Committee. I hope that those concerns, and those reflected in other amendments, will cause the Government further reflection. In those circumstances, I beg leave to withdraw the amendment.
The Deputy Chairman of Committees (Baroness Finlay of Llandaff) (CB)
We now come to the group beginning with Amendment 20. I remind noble Lords that anyone wishing to speak after the Minister should email the clerk during the debate.
Amendment 20
Lord Grantchester
“( ) Regulations may only be made under subsection (1) if—(a) the provisions of the international trade agreement to which they relate are consistent with standards for food safety and quality as set and administered by—(i) the Department of Health;(ii) the Food Standards Agency;(iii) Food Standards Scotland; and(iv) any other public authority specified in regulations made by the Secretary of State;(b) the Secretary of State is satisfied that mechanisms and bodies charged with enforcement of standards for food safety and quality have the capacity to absorb any extra requirement which may arise from the implementation of the agreement; (c) the provisions of the international trade agreement to which they relate are consistent with policy to achieve reduction in the risk of disease or contamination as set and administered by—(i) the Department of Health;(ii) the Food Standards Agency;(iii) Food Standards Scotland; and(iv) any other public authority specified in regulations made by the Secretary of State;(d) the provisions of the international trade agreement to which they relate are consistent with achieving improvements in public health through any food policy priorities set and administered by—(i) the Department of Health;(ii) the Food Standards Agency;(iii) Food Standards Scotland; and(iv) any other public authority specified in regulations made by the Secretary of State;(e) the provisions of the international trade agreement to which they relate comply with policy to achieve targets for farm antibiotic reduction set by the Veterinary Medicines Directorate;(f) the provisions of the international trade agreement to which they relate comply with retained EU law relating to food standards and the impact of food production upon the environment; and(g) any food or food products to which the provisions of the international trade agreement apply meet standards of labelling, indication of provenance, and packaging specified by the Food Standards Agency or Food Standards Scotland.”Member’s explanatory statement
This amendment would ensure that regulations made under Clause 2 can only be made if the trade agreement which the regulations would implement enshrines UK standards in legislation and adheres to UK standards of food production and food safety.
Lord Grantchester (Lab)
Amendment 20 is in my name and I thank the noble Baroness, Lady Bennett of Manor Castle, for adding her name to it. It concerns the importance of food safety and quality, and how these issues are administered through government departments and agencies for these matters. This includes the importance of nutrition.
We are all rightly proud of the high agricultural and food standards in this country. Many people believe that trade must not undercut those standards, not only to maintain fair competition for agriculture, the food service and food manufacturing sectors—and the diverse food chain—but to maintain and improve the health benefits to consumers from transparent certified and production regulations. These latter points have been underlined by the Mail on Sunday in a letter from Jamie Oliver, the people’s chef, and PE teacher Joe Wicks. The letter, with wide public endorsement, does not want the Government to
“trade away our children’s futures”.
Alongside the letter, a Delta poll found that 68% of people believed that the most important priority for Britain is to maintain high standards for food, even if that meant some trade deals did not materialise.
Amendment 20 has an overreach into the Agriculture Bill, which passed all its stages in the House last week, now that it includes important provisions on this issue. “Food standards” includes not only food safety but production standards, environmental protections and welfare. In this amendment, these regulated standards are administered by the named government department —the Department of Health—and the other executive agency, the Food Standards Agency, including Food Standards Scotland.
We all know the threat post by a potential trade agreement with America and Australia, for example. Although the Bill technically deals with precursor agreements, nevertheless it is important to clarify that these also pass these most stringent tests as they develop. In the case of Japan, these rollover deals can go further. It is material to this debate that the US has 10 times the level of food poisonings that exist in Europe.
The Global Economic Governance Programme of Oxford University has reported that as the Government transferred the entire acquis of EU law into UK law through the withdrawal Act, substantial decision-making powers were conferred on UK Ministers to amend the legislation. That includes amendments through secondary legislation, which carries far less scrutiny in its procedures than primary legislation. There are anxieties around the claimed certainty of the withdrawal Act, heightened by the Government’s bringing forward the internal market Bill, now with further amendments proposed and inserted into the Bill at a very late stage in its Commons consideration. That is why so little credibility is attached to the many protestations from the Government that their word that they will maintain the UK’s high standards in its negotiations can be relied upon. May I stress to the Minister that he reconsider his often-repeated assurances, since they are not being developed into meaningful, transparent procedures and are in themselves inadequate?
This amendment, under proposed new paragraph (e), also has cognisance of future dangers through antimicrobial resistance—AMR—on which UK agriculture has already demonstrated admirable awareness by reducing antibiotic usage considerably over recent years. I also underline proposed new paragraph (g), which draws attention to the issue of labelling, country of origin specifications and the importance of branding through geographical indicator schemes, which have proven so successful in driving high-quality exports. It would be helpful to have the Minister’s comments on the record that these provisions will continue to be recognised through continuity agreement enhancements.
Although it was not initiated by me, I have added my name to Amendment 23, in the name of the noble Lord, Lord Purvis, and other noble Lords, and I will speak only momentarily to it. The Government themselves brought forward this amendment on Report of the previous Trade Bill, which was so graciously steered through your Lordships’ House by the noble Baroness, Lady Fairhead. It was good to see her attending this Committee, and I look forward to hearing from her later. Our Benches were part of the cross-party consensus on which that government amendment was based. I am sure that, through these amendments, other proposers will underline the key necessity of maintaining statutory protections. Only 18 months on, can the Minister give cogent reasons why the Government should now wish to discard this important safeguard?
I thank the noble Baroness, Lady McIntosh, and other noble Lords for their supporting Amendments 24 and 25; I will speak to my Amendment 56 in this group. I also thank the noble Baroness, Lady Jones of Moulsecoomb, and my noble friend Lord Rooker for adding their names to this amendment. While it may appear onerous, I consider it important that government must produce a register that can ensure equivalence and a transparent baseline for a level playing field. That would be another way for the Government to deliver on their election promise to maintain the UK’s high agricultural, environmental, plant health and animal welfare standards.
My Amendment 67 in this group goes further by recognising the importance of animal sentience. The Government have agreed to introduce a measure recognising this to ensure that all future legislation on the welfare of animals is assessed against that standard. While the amendment does not seek to be the whole answer to this issue and does not define animal sentience, nevertheless it would be helpful to hear from the Minister what now is the Government’s view on this and when they might bring forward a specific Bill.
I thank the noble Baroness, Lady Jones of Moulsecoomb, for her Amendment 74 in this group and commend her for the thorough way she approaches the issues at all times—that ratification of trade agreements must be compatible and have equivalence with UK standards. The key approach of all these amendments is that modern trade agreements allowing imports of food into this country have to reflect the quality of food to which all domestic food must comply. Why allow substandard food that would be condemned here to be imported into the UK? This needs to be enshrined in legislation. I beg to move.
Baroness Kramer (LD) [V]
My Lords, I will speak to Amendment 23 in particular. All the amendments in this group have very similar goals—they just choose rather different avenues for achieving them.
Amendment 23 would require that trade agreements maintain UK statutory levels of protection for human, animal or plant life or health, animal welfare, the environment, employment and labour. I join noble Lords in supporting the noble Lord, Lord Grantchester, who, along with the noble Lord, Lord Purvis of Tweed, and I, is a signatory to this amendment. He said that upholding standards should not be a matter of trust. We live in a country where important principles are reinforced in law and in statute. That is exactly what this amendment tries to do; I suspect that the other amendments in this group are trying to do the same.
I particularly support this amendment because, as the noble Lord, Lord Grantchester, said, it uses the exact language of a government amendment agreed on a cross-party basis and introduced into the Trade Bill in 2019. On that basis, one would think that the Government would have no problem with it, yet they have removed that language from the Bill. That act of removal is very powerful. Choosing to omit a clause—in effect, withdrawing it—sends a message. I am sure that those countries with whom we are negotiating trade deals, whether they are continuity deals or future deals, have taken note. I am very sure that the United States has taken note of the decision to remove this language and the clause. As we know, actions speak louder than words. I also take the view that, if Amendment 23 does not apply to continuity agreements, why would anyone negotiating a future agreement suddenly insist that the precedent should be broken?
In this context, I want to pick up a point made by the noble Viscount, Lord Younger of Leckie, in the debate on an earlier amendment. He said that regulatory standards are not set in trade Bills. For many years, I worked in the United States as a banker in two major companies. I can tell the noble Viscount that his description will be real news to American companies, which have a long history of using dispute resolution mechanisms in trade Bills to achieving particular policies regardless of whether they override domestic legislation. As we look forward to negotiating a US-UK FTA, we must be well aware that everything we do will make that conversation either more difficult or easier.
In the United States, a complex mix of federal and state regulators set and uphold a wide range of standards. The fragmentation is one of the reasons why the US is so successful at keeping out imports; few exporters want to take on the highly complex US federal and state court systems. In the United States, where there is a very different culture, in nearly every company, there is a real taste for aggressive litigation. Many companies have deep pockets in which large amounts of money are set aside for litigation, making such companies effective at intimidating negotiating partners. In effect, they export US standards regardless of domestic legislation elsewhere.
We are in a period when trade is a tense issue. Historically, we would probably have said that most major developed countries would avoid trade battles with each other. We are not in that period any more. The US is at present taking a very aggressive view towards trade protectionism, and any kind of loophole or weakness within any trade deal will be fully exploited. When we say that we must have safeguards to protect our standards, I hope that the Government will recognise that that protection must extend to this Trade Bill.
Lord Rooker (Lab) [V]
My Lords, I have added my name to several of these amendments, but I shall stick to dealing with Amendment 20—indeed, part of Amendment 20. If it was being redrafted, Defra should be added to the list of bodies in paragraph (a): the Department of Health, the Food Standards Agency and Food Standards Scotland. It is not generally appreciated, but in 2010, when there was an attempt to abolish the UK-wide Food Standards Agency, the consensus in government was to remove aspects of its work to the Department of Health—nutrition and one or two other issues—and labelling and country of origin went to Defra. In fact, it was as a direct result of that action that Food Standards Scotland was set up, because the Scottish Government were perfectly satisfied with the way that the UK-wide FSA was operating. That is a minor point, but I want to concentrate on paragraph (b), which deals with the mechanism and the bodies charged with the enforcement of standards of food safety and quality, to make sure that they have the capacity to deal with the extra work.
It is worth pointing out, by the way, that although it is not politically sexy, the definition of food generally encompasses food and feed—feed being food for food production animals. That has not been taken very seriously in the past by the enforcement authorities. They are, generally speaking, local government. In the main, the Department of Health, the Food Standards Agency and Food Standards Scotland use local authorities for that role. Some issues they run themselves—the FSA runs the Meat Hygiene Service directly—but local authorities and environmental health officers are the unsung heroes of food safety and standards for the public.
The Government give us bad news in that respect. In the UK, local authority food hygiene interventions include hygiene inspection audits, sampling visits, verification and surveillance, advice and education and intelligence-gathering. It is absolutely crucial, but all of it will be under pressure with extra work from trade deals. Between 2010-11 and 2018-19, the total number of interventions in the UK reduced by 11%. They went down from 431,852 to 383,494. In England, the fall was from 331,000 to 305,000. In Northern Ireland, the fall was from 21,000 down to 14,000—a huge decrease. In Wales, interventions dropped from 31,000 to 25,000, and in Scotland, they went down from 47,000 to 38,000. I appreciate that with more modern risk techniques and technology, there can be reductions in certain checks, but these reductions are so substantial over that period that the position will be serious if extra pressure is put on because of the work from these trade deals.
I shall give just one local authority example to illustrate how serious the situation is in terms of people checking on our food safety. In Uxbridge in London—I just took it at random—there are 263 food business operations. Twenty-one of them, 8%, have not even been inspected. Thirty of them, 11%, have a food hygiene rating score of zero, one or two. Those are the three scores, of course, that are less than satisfactory, so nearly 20% of the food business operations in one local authority area are definitely a cause for concern. So, the issue in sub-paragraph (b), which aims to make sure that
“the Secretary of State is satisfied that … bodies charged with enforcement”
have the resources to do it, is quite serious, and is the one I want to concentrate on, because I do not want to repeat what others have said.
The Deputy Chairman of Committees (Baroness Finlay of Llandaff) (CB)
I remind noble Lords to switch off devices while we are in Grand Committee. It is quite disturbing and disruptive.
Baroness McIntosh of Pickering (Con)
My Lords, I thank the noble Lord, Lord Grantchester, for introducing this group of amendments. I congratulate the noble Lord, Lord Purvis of Tweed, on beating me to the starting post. I, too, pay tribute to my noble friend Lady Fairhead on this amendment, which had cross-party support as an amendment to the Trade Bill 2019 in the previous Parliament, and for her patience in meeting all of us who were involved in its drafting. She was very kind in taking different parts of the various groups of amendments, and it is bewildering to see that it is no longer part of this Bill.
I pay tribute also to those campaigns. The noble Lord, Lord Grantchester, referred to the Daily Mail. I add the Farmers Guardian and, closer to home, the Yorkshire Post. Yorkshire has a massive food cluster, in terms of farmers and food producers and processors, so this is a subject that is very close to their heart. The background to Amendment 23, as far as I can see—and also Amendments 24 and 25, which I shall come on to in a moment—is that it should reflect the work and the debates and the amendments on the Agriculture Bill, as the noble Lord, Lord Grantchester, set out. It also reflects the manifesto commitment, with which the Minister will be even more familiar, that we want to have high environmental standards and animal welfare going forward in our rollover agreements and in future agreements as well.
I go further and say that we have to have fair competition and a level playing field. I would like to have an assurance today from the Minister that he expects that imported food products will meet the same standards and that it is not the intention of the Government to allow in food products which will actually undercut our own producers, and then to proceed to place a tariff on them, with a label on the finished product to say that that is what it is. “This is chlorinated chicken, it does not meet our animal welfare standards, but it is safe to eat if that is what you want to eat.”
This takes us back to the very sorry situation we found ourselves in under—dare I say it—a previous Conservative Government, which I supported, where we unilaterally imposed a ban on sow stalls and tethers but allowed producers to produce pork with sow stalls and tethers in Denmark, Poland and other countries and then allowed those imports to be introduced onto our supermarket shelves. The consumer did not understand the farm tractor label and went on to buy on price, and the result was that more than 50% of our pig producers went out of production almost overnight. Surely, that cannot be the intention of the Government in this case. I make a plea to my noble friend to reinstate the original clause by adopting the amendment, either today or on Report. That is what most of us would like to see.
I thank the noble Baronesses, Lady Henig and Lady Ritchie of Downpatrick, for lending their support to Amendment 24. I would like to add food safety to this for the reasons that we discussed at the time with my noble friend Lady Fairhead, and which I repeat now. The case has been strengthened by the reference made by my noble friend Lord Gardiner when summing up the Second and Third Readings of the Agriculture Bill. He referred to the multiple protections that the Government have put in place, not least the role of the Food Standards Agency and Food Standards Scotland to which the noble Lord, Lord Rooker, referred. Keeping food safety in Amendment 23 would protect that.
On Amendment 25, I again thank the noble Baronesses, Lady Ritchie of Downpatrick, and my almost noble friend the noble Baroness, Lady Jones of Moulsecoomb, for supporting this amendment. I would like to put my noble friend Lord Trenchard’s mind at rest because when we have these debates he frequently says that he would like an assurance from the Minister that whatever we negotiate will be WTO-compliant. If he looks at the World Trade Organization pages, he will see:
“Environmental requirements can impede trade and even be used as an excuse for protectionism. The answer is not to weaken environmental standards, but to set appropriate standards and enable exporters to meet them.”
That is what we are trying to do here. We want to ensure that we make provision through any future regulations under the Bill—or any future trade agreement —that those regulations will not have the effect of lowering animal health, hygiene or welfare standards, the protection of the environment, food safety, hygiene, traceability or human and workers’ rights below EU or UK standards. The World Trade Organization goes on to say that we should be looking to have higher standards that could be met by all those wishing to participate in a particular free trade area agreement.
I will conclude by drawing my noble friend’s attention to the Dimbleby report that he was kind enough to read over the weekend. The executive summary on page 7 of National Food Strategy Part One states:
“Grasping the once-in-a-lifetime opportunity to decide what kind of trading nation we want to be. The essence of sovereignty is freedom—including the freedom to uphold our own values and principles within the global marketplace. In negotiating our new trade deals, the Government must protect the high environmental and animal welfare standards of which our country is justly proud. It should also have the confidence to subject any prospective deals to independent scrutiny: a standard process in mature trading nations such as the United States, Australia, and Canada. If we put the right mechanisms in place, we can ensure high food standards, protect the environment and be a champion of free trade.”
I would like an assurance from the Minister today that that is what he intends and to put at rest the minds of farmers such as Mrs Joan Riddell who has written to me from Banbury in Oxford. She wants an assurance that the high standards of our farmers in this country will be met. Will my noble friend say whether that is what we intend? What is the status of the Dimbleby report? Sadly, the Government will not have responded to it before we have passed the Agriculture Bill or the Trade Bill here or in the other place. Presumably, if the Government have asked Henry Dimbleby to report on this matter, they intend to follow his advice.
Baroness Henig (Lab)
I am speaking to Amendments 20, 23, 24 and 25. It is a great pleasure, as ever, to follow the noble Baroness, Lady McIntosh of Pickering, with whom I am in complete agreement. Ministers keep emphasising that this is a continuity Bill, no doubt to reduce its significance in laying a framework for future legislation in relation to trade deals but, as we have already heard, in one area this Bill is not a continuity Bill in the sense that it does not retain the crucial compromises relating to standards and regulations which were agreed on Report of the previous Trade Bill with the noble Baroness, Lady Fairhead.
Baroness Ritchie of Downpatrick (Non-Afl) [V]
My Lords, I am delighted to follow the noble Baroness, Lady Henig, who gave a comprehensive presentation in relation to this issue. I particularly support Amendments 23, 24 and 25.
To put it succinctly, food imports must, and should, comply with the highest food standards, which should be enforced in statute. Having said that, I think the general public want to know whether the animals and the produce that they eat are imported or indigenous, and that the husbandry involved and the agricultural production of the land are carried out in a safe way and are of a certain quality. It is important, therefore, that such regulations are placed in statute. This applies to rollover trade agreements and any future trade agreements.
I am a little perplexed as to why the government amendment that is captured in Amendment 23, in the names of the noble Lords, Lord Purvis of Tweed and Lord Grantchester, and the noble Baroness, Lady Kramer, was not carried over into this particular piece of legislation. Again, I ask the Minister to outline to the Members of your Lordships’ Committee why the Government decided not to include this amendment. Is it their intention to accept a cross-party amendment on Report, to which the Government would also be a signatory, thereby underlining their commitment to ensuring that food standards, food safety, animal health standards and other standards to do with imported agricultural produce are placed in statute, and thereby safeguarding lives and the good, safe quality of food?
We heard many conversations on this issue during the Committee and Report stages of the Agriculture Bill, and there is obviously a direct read-across here. But the bottom line in both Bills is the need to maintain statutory protection, because, without that, we could import food that could be often of inferior quality, which can impact on public health outcomes. Like the noble Baroness, Lady McIntosh of Pickering, I would like an update from the Minister on the Government’s position on Henry Dimbleby’s report, evidence from which we took for our report in the Food, Poverty, Health and Environment Committee back in February. What his report said was very cogent and very apposite at that time. Now, particularly with the Covid pandemic, it illustrates the point that there needs to be the highest levels of protection, but they must be placed in statute. That is why we called for the trade and agricultural standards commission to be given statutory permanency in the Agriculture Bill, because we wanted to see that protection. We want health and food standards to be protected. We do not want chlorinated chicken or hormone-infused beef being imported, which is of a lower standard than the food that is already indigenous to the United Kingdom.
I hope that the Minister can give us an update on the Government’s attitude and response to the Henry Dimbleby report and explain why Amendment 23 was not captured as it was in the original Trade Bill last year.
The Deputy Chairman of Committees (Baroness Finlay of Llandaff) (CB)
I call the noble Baroness, Lady Jones of Moulsecoomb.
Baroness Jones of Moulsecoomb (GP)
One day, I am going to send round a notice about how to say my name—but it does mean that I start every speech with a smile.
Noble Lords have covered almost every issue that I was going to speak on today, so I will be like a sparrow under a bird table and hop around to find things that I feel particularly strongly about. Noble Lords have spoken about environmental protection, animal welfare and sentience, and public health. I thank the noble Lord, Lord Grantchester, for his kind comments about Amendment 74 in my name, which is basically about ensuring food standards, food safety, environment protections and so on—that is what you would expect from a Green, of course.
The noble Baroness, Lady McIntosh of Pickering, mentioned the good progress that we made on the Trade Bill before with the noble Baroness, Lady Fairhead. She worked with us and I thought that we found a way forward. The noble Lord, Lord Stevenson, was also involved. I realise that the noble Lord, Lord Grimstone, is not in the same place—his party now has a majority of 80-plus in the Commons and he therefore does not need to talk to us in the same way—but the fact is that almost all the speeches have been united on our need for such protection in the Bill. That is partly because we simply do not believe the Government. It is not about individual Ministers, for whom we have a great deal of respect, even a liking; we just do not trust the Government. They have proved again and again that they have no respect for either the law or Parliament. We therefore need protections in the Bill because if they are not there, we do not believe that they will happen.
It is a case of understanding that trade is not trade on its own; trade has an impact on virtually every area of our public life. A climate emergency is happening now. Parts of America are burning to death and parts of the Arctic are melting into the sea, never to be ice again in our lifetimes. We must understand that trade has an impact on that. There is no argument with that. Personally, I feel that there is no option but to embed these ideas for how to be a more sustainable country in the Bill—in fact, in every Bill that we debate.
Next year, we will host COP 26. The noble Baroness, Lady Boycott, asked an Oral Question today about sponsors and so on. The Minister came back and said, “Well, you know, we’re going to judge our sponsors and their short-term action plans and that sort of thing.” I am afraid that that is just not good enough. We do not trust the Government to judge anything as sustainable or climate-friendly. You have to go outside the Government to find people who understand what sustainability means and what the climate emergency is. We have an opportunity as a country to show some leadership. Quite honestly, we do not have leaders in the Government at the moment; we have children who bluster and act like clowns. It is all very embarrassing, I am afraid.
I mentioned the Government’s majority in the House of Commons. The fact is that that majority lets the Government off the hook, unfortunately, and absolves them of any meaningful scrutiny. However, we scrutinise here and we can tell you that this Bill is not good enough.
I am still hopping around under the bird table. My Amendment 74 would prevent the ratification of any trade agreement that does not comply with UK standards, or at least
“standards that are comparable in effectiveness to those of the United Kingdom”.
It is a simple, effective amendment. I hope that the Government will read it and see that I am trying to be helpful, not difficult.
I echo the noble Baroness, Lady Henig, who pointed out that we do not yet know what criteria the Government are using for their trade deals, that they have not given us any sort of meaningful policy intent or criteria and that we do not know how they will approach and evaluate trade negotiations and trade deals. I assume that that is because they do not know themselves, but it would be really helpful if we had some guidelines from the Government on how they will take these issues forward.
With that, I will finish. I am deeply, deeply furious about the way in which this Government are handling the whole country. I cannot blame the Ministers here but, as British citizens, we should all be thoroughly embarrassed.
Baroness Noakes (Con)
I will not be following the same line of argument as the noble Baroness, Lady Jones. I remind noble Lords that the majority of the amendments in this group apply only to regulations made under Clause 2, which applies to continuity agreements only. All noble Lords who have the bogeyman of a trade deal with the United States in their minds when they make their speeches are barking up the wrong tree. These amendments would have nothing whatever to do with any trade treaty outside the continuity agreements.
This feels like Groundhog Day. Having just come through the Agriculture Bill, I see the same people making the same arguments. I have this nightmare that in every Bill going forward, for ever, the noble Lord, Lord Grantchester, the noble Baroness, Lady Jones, and a number of other noble Lords will be popping up with amendments in virtually the same form, whatever the basic content of the Bill, if they have half a chance of squeezing them into the long title.
These amendments go beyond food standards and all those things that so many impassioned words have been said about already into how food is produced. Noble Lords will be aware that, under WTO rules—they are our future in trading terms, if not our past—it is not allowed to mention food production methods without a scientific basis. That is one reason why the EU, and therefore the UK, has been in contravention of WTO rules. We need to come to terms with the fact that we are now living in the post-EU world where the WTO will be extremely important to us. I hope that my noble friend Lord Trenchard, who knows much more about the WTO than I do, will amplify that when he speaks later.
The noble Lords who have spoken know perfectly well what the UK Government’s stated policy is in relation to the standards that they are keen to see adopted in the way that the Government pursue business. UK law is aligned with EU law by virtue of retained law, so whatever trade agreements are entered into, it is not possible to import, for example, hormone-treated beef into the UK—even though there is actually no scientific basis for that, certainly on food safety grounds. Treaties do not and cannot change UK law. As I have said before, we do not customarily write every government policy into legislation. That would create a very cumbersome way of building up legislation.
Noble Lords have remarked in various ways how they think these policies need to be written into the Bill because they do not trust the Government or think that the Government are not sufficiently persuasive. They have often accompanied those remarks with a number of insults about either the Prime Minister or the Government in general. I have to say, it is not the approach of any Government involved in legislating to write into legislation things that appear to upset noble Lords on the Opposition Benches, or even on the Cross Benches. Noble Lords will be aware that, even if we wrote it into the Bill, it could easily be changed if the Government sought to change it in later legislation and Parliament agreed to that. As has already been mentioned, the straightforward electoral arithmetic now means that, with a majority of 80 in the other place, the Government’s policy can change. If we try to put anything into this Bill, it does not necessarily determine government policy for ever and a day, which is what noble Lords are trying to do.
The amendments in this group are not necessary and are, I believe, a waste of legislative time. I would fully expect the other place to reject them if they were pursued and passed on Report. I will speak in specific terms about one amendment only: Amendment 23. A number of noble Lords have referred to it as representing some kind of glorious compromise around the time of the previous Trade Bill. I will speak to it because my noble friend Lord Grimstone, the Minister, was not here at that time. He will have not been aware of the circumstances in which that amendment was put into the Bill.
We have to remember that, at that time, Parliament was barely functioning. It was more focused on resisting any form of Brexit in any way possible. Getting the Trade Bill through the House of Lords was an extremely difficult thing for my noble friend Lady Fairhead to try to achieve. Not to put it too mildly, the amendment that came forward was just an act of attempted appeasement to those noble Lords who were bent on obstructing anything related to Brexit. I say this to noble Lords: the world has changed. That amendment belonged in that era, and that era is behind us.
The Lord Bishop of St Albans [V]
My Lords, I plan to say a few words on Amendment 20, moved by the noble Lord, Lord Grantchester. I am also sympathetic to Amendments 23, 25 and 26.
Food production and environmental standards, as well as the safety that they enshrine, are crucial to a healthy agricultural sector that seeks to mitigate the dangers arising from poor practices and the low-quality products they produce. Ensuring continuity has been a big priority for a number of Members. Issues surrounding the responsible administration of antibiotics to livestock, for example, are not national issues but global public health ones. Despite the Bill covering existing trading arrangements, we should not forget that the raison d’être for leaving the European Union was the assertion of our sovereignty. It is therefore right that the existing arrangements, conducted while we were in the EU, ought to be scrutinised by the relevant departments to ensure that the UK does not inadvertently undermine measures to achieve reductions in the risk of disease or contamination—or, indeed, targets for antibiotic reduction.
This by no means seeks to discredit trading arrangements made while we were in the EU, which I am confident already abide by the regulations set forth in Amendment 20. However, the scrutiny put forward in this amendment will guarantee this and ensure that the UK reinstates its commitments to the environment, food standards and a safe and healthy agriculture sector globally through its existing trading partners. I look forward to hearing what reassurances the Minister can give us on this group of amendments, particularly on whether there is some way in which the broad drift of what many of them try to get at can be brought back in the hope that we do not have to table specific amendments on Report.
Lord Inglewood (Non-Afl) [V]
My Lords, I am pleased to speak to these amendments because I believe that each and every one of them is important—not least because of their implications as much as their substance, which matters a lot. After all, the legislation around which they are drafted was made entirely properly via the so-called community method, endorsed by Parliament during our membership of the European Union. As a result, they are as legitimate a piece of law as any domestic statute.
When we left the European Union, it was entirely sensible to slide the then acquis directly on to the domestic statute book and to add a provision enabling amendment by statutory instrument. After all, there is a need for all kinds of consequential adjustment. But it does not follow from this that they have to be amended by statutory instrument, merely that they can be. Equally, perhaps, they can as effectively be amended by Act of Parliament.
Clearly, too, when we left the European Union, the power that Parliament bestowed on the Union in respect of international agreements fell away. This means that such international agreements now again revolve around the use of the royal prerogative. However, as has been pointed out on many occasions, the character of the interdependent world in which we now live means that binding international commitments have a much bigger impact on this country than much domestic legislation, which of course is why the CRaG Act was put on the statute book. The reality is, as many people have pointed out, that the procedures under the CRaG Act are a shadow of substantive full parliamentary procedures in terms of scrutiny, checks and balances, transparency and so on, not least because the crucial international decisions are essentially completed before and not after UK parliamentary deliberation, and by then it is a bit late.
The reality of the world that we live in is that Parliament is given Hobson’s choice. In my mind, for serious, wide-ranging legislative change, that is very undesirable and comes about because of a congruence of our leaving the EU and the role of the royal prerogative. Its effect on legislators and the public is substantial in terms of diminution of their involvement, and scrutiny of what is going on. That is one thing for minor technicalities, but not for major policy changes.
The Government have argued this afternoon that they have made promises in respect of a whole range of these things. Of course they have, but, equally, it was interesting that the Chancellor said earlier today that he would try—I repeat, “try”—to deliver as many manifesto promises as he could. Already there is a bit of a let-out there. And let us be clear: it is not unheard of for Governments to change. After all, I think we have had four in the last five years and, dare I say it, sometimes promises are broken. While it is convenient for Ministers to have Parliament rubber-stamp their wishes, it is not Parliament’s role to do so. Rather, we should deliberate on and then accept, refuse or amend the Government’s proposals—and that is slightly different.
The bulk of the amendments in this group reinforce Parliament’s role in developing agricultural and/or food law. It is difficult to think of anything more important domestically than the quality, wholesomeness and origins of the food that we eat here, be it from the perspective of human physical and mental health, its impact on the NHS and public expenditure or its impact on land management and the environment across the country. In a properly organised world, I suggest that significant changes in respect of these matters merit full parliamentary scrutiny, and at least the amendment is a move in the right direction.
The environment and climate change are in the same category. After all, all carbon emissions, wherever they may originate, do not respect national boundaries, and the effect of excessive emissions, regardless of where they originate, is in general terms a bit like putting the whole globe into a microwave.
On top of all this, where proposed domestic change to ex-EU legislation involves breaches of international legislation—something which it is clear from the events of the last few weeks that the country does not like—I do not believe that the Government should be able to proceed towards that unless either the proper international withdrawal legal procedures have been followed or they have first had express parliamentary authority to proceed.
These amendments do not go as far as I would like, but they are a real step in the right direction.
Lord Wigley (PC) [V]
My Lords, I am glad of the opportunity to speak very briefly in support of the amendments that address issues of food safety and the importing of agricultural goods. I had intended to add my name to the lead amendment, Amendment 20, and I concur very much with the points made very effectively by the noble Lord, Lord Grantchester.
As was mentioned in the first bank of amendments that we debated last week, dealing with environmental issues, in this Bill we are overlapping significantly with the debates that we had on the Agriculture Bill. That is again the position as we address the safeguards needed against importing food of inferior quality to that produced in the UK or the European Union.
I am not going to repeat the arguments that I put forward on Report of the Agriculture Bill, but it might be as well to remind the Committee that amendments on those issues were carried in the context of that Bill and they are equally relevant in the context of this one. I hope that the Government will bear that in mind as they seek to pass a Trade Bill—namely, to make it acceptable to all parts of this House. I commend Amendment 20.
The Earl of Caithness (Con)
My Lords, much of what I wanted to say has already been said in this useful debate. I am supporting the noble Lord, Lord Grantchester, again. I have been doing that quite a lot in recent weeks. I have to say to him that it might not continue for very long after today, but it has been fun so far.
The House of Lords Select Committee on Food, Poverty, Health and the Environment made the important recommendation that food imports must be required to adhere to the same health, environmental and animal welfare standards as food produced in the UK. Like the noble Lord, Lord Rooker, I sat on that committee, and I was convinced by the evidence we received that it was necessary to put that on the face of the Bill. We have tried it with the Agriculture Bill, but it is also worth trying to get it in this Bill.
Let us be absolutely clear that restricting imports that are below standard will not solve the health problems of this country. We produce a lot of good, healthy food in this country, but the food industry turns it into processed rubbish that poisons us. As the Prime Minister said this morning, it was his obesity that caused a lot of the problems that he had when he got Covid. So it will not be a panacea, but it will help.
We need to be very careful that we do not malign the USA too much. The noble Baroness, Lady Ritchie of Downpatrick, mentioned chlorinated chicken. I have been to the USA every year for the last 21 years —except for this year, because I was banned from going because of Covid—but in each of those years I have eaten chlorinated chicken, and delicious it was, too. We chlorinate a lot of the food that we eat; a lot of vegetables are chlorinated. The point is that it is not the chlorination that is the problem but the standards in which the hens are kept before chlorination. Those animal welfare standards are the most important thing in this discussion.
So I am happy to support the noble Lord, Lord Grantchester, once again, and I wish him well with this amendment.
The Deputy Chairman of Committees (Baroness Finlay of Llandaff) (CB)
I call Lord Judd. We appear to be unable to reach the noble Lord, Lord Judd, so I call the noble Lord, Lord Beith.
Lord Judd (Lab) [V]
I am sorry about that. I had problems unmuting, and I was slightly taken by surprise because I thought I would be speaking after the noble Baroness, Lady Ritchie of Downpatrick.
My Lords, these are essential matters. Animal welfare, food safety and the environment affect us all, and they have huge implications for public expenditure because, if you get it wrong, the pressures on the health services and other care facilities become all the greater.
My noble friend Lady Henig dealt with the disturbing statistics from the United States. It is not very nice to think about dear American cousins in this light. However, it is true that deaths and hospitalisations in the States are—I called them troubling, but in a way they are quite threatening. As the noble Lord, Lord Inglewood, said, these things know no national frontiers.
We know that in the pressure for trade—trade is an end in itself—there could be terrific pressures to undermine all that we have built up, because we have built up a great deal in these spheres and can be quite proud of our record, although we cannot be satisfied with it yet, and to see that undermined with a scramble for trade would be shocking. We must monitor and have scrutiny in this area. Our families, friends and children are at stake. I so much agree with my good friend and fellow Cumbrian the noble Lord, Lord Inglewood, that it is sad about our having left the European Union. We need to work on these things effectively internationally and here was a chance to do that and contribute what we have—and we have a lot to contribute—to raising standards across Europe as a whole and from Europe moving into the world as a whole. This is a sad moment in our history—I state it again.
I commend all those who have tabled these amendments and all those who have worked and fought and struggled so hard over so many years to build up our standards. There is a great deal of understanding in the agricultural and farming community in this country about the importance of these things. The noble Lord, Lord Inglewood, was right: these amendments are a significant step in the right direction. They are not enough because we cannot give up the international struggle on the basis of our own standards.
The Deputy Chairman of Committees (Baroness Finlay of Llandaff) (CB)
I now call the noble Lord, Lord Beith. As we seem to be unable to reach the noble Lord, Lord Beith, we will move to the noble Viscount, Lord Trenchard.
Viscount Trenchard (Con)
My Lords, my noble friend Lady McIntosh of Pickering has already intimated that she expects that I will be presenting a different viewpoint from that which most noble Lords have presented on these matters, and she is completely correct, although I was indeed most happy to have support for what I am going to say from my noble friend Lady Noakes and, to some extent, from my noble friend Lord Caithness.
As I am one-quarter American—my mother was half-American and my grandmother was a farmer in Illinois and Iowa—I strongly resent the widely held belief encouraged by the Daily Mail that American food is bad and inherently worse than ours. I think the noble Baroness, Lady Henig, criticised food safety standards in the United States quite strongly and quoted Henry Dimbleby, but she quoted him selectively. He also said in his report:
“But negotiating trade deals is hard. Any blanket legislation requiring other countries to meet our own food guidelines would make it nigh-on impossible. We already import many food products from the EU that don’t meet UK standards. A blanket ban would make it impossible to continue trading even with this most closely aligned of partners.”
Chickens reared in Poland also come to mind, where stocking densities are massively higher than what we tolerate in this country. Are we quite as good as we think we are? From what I have been reading about pollution in the River Wye and other waterways in Herefordshire and the west country, I am not so sure.
To my noble friend Lady McIntosh, I would say that she is correct that the WTO permits countries to apply higher than international standards to food production, but only when it is not for protectionist reasons, and only when justified by science. The WTO has found the EU bans on GM crops and on hormone-treated beef not to be consistent with that: in other words, it does not believe that the science justifies the ban. Indeed, examination of the science behind the ban on hormone-treated beef suggests that the incidence of the hormone substance in the beef is absolutely minuscule and of no great significance: far less, for example, than found in half a dozen free-range eggs, commonly available in any supermarket.
I believe that the amendment in the name of the noble Lord, Lord Grantchester, is unnecessary, and since the Department of Health, the Food Standards Agency and other bodies have the statutory powers to maintain food safety, I am surprised that he sees it as necessary. I oppose his proposal to require trade agreements to comply with retained EU law relating to food standards, for the reasons I just mentioned. As noted in a previous debate, it will be a matter solely for the UK to decide on our food safety standards in future. The noble Lord is also misguided in thinking that all EU rules contribute to the maintenance of high safety standards: some do not. For example, the incidence of campylobacter infection in the UK is five times what it is in the United States because EU regulations prohibit the washing of poultry products in peracetic acid. I think it likely that in this respect, the US, as well as some other countries, might well have an issue with the UK’s food standards.
My noble friend Lord Caithness said that what is described by most noble Lords as “chlorine rinsing”—that is actually out of date, because peracetic acid is generally used instead of chlorine—has nothing to do with food safety. Indeed, American chicken tastes very good, so I agree with my noble friend. When I go to America, I do not worry about eating chlorinated chicken: it is not bad, it has nothing to do with food safety.
The noble Lord, Lord Purvis of Tweed, stated that his Amendment 23 is similar to a government amendment made to the Trade Bill introduced to your Lordships’ House in 2019. That may be so, but I nevertheless hope that my noble friend the Minister will resist it, for the reasons I have mentioned. UK levels of statutory protection will in future be a matter to be determined by UK statutory agencies and this Parliament. The same applies to Amendments 24 and 25 in the name of my noble friend Lady McIntosh. I think my noble friend’s attention to animal welfare standards compromises her attention to food safety. Furthermore, her Amendment 25 shows that she thinks standards are two-dimensional, higher or lower, rather than multidimensional. I ask the Minister to confirm that the UK will not enshrine in law any measure that treats EU and UK standards as identical. This does not mean that I am suggesting that the UK should depart from its current high standards in connection with the environment, food safety and workers’ rights.
Lord Purvis of Tweed (LD)
My Lords, it is a pleasure to follow the noble Viscount. I agree with one point he made in his speech: it is for Parliament to seek guarantees on our standards. In essence, that is what we are seeking to do: to have a statutory underpinning to ensure that our trading relationships and trade agreements do not undermine them through various different mechanisms which can be beyond amending primary legislation.
It is certainly not uncommon for there to be duties in law on Ministers that frame how they carry out their duties. Most legislation that comes before Parliament has such duties. We are seeking the equivalent for the new approach we have for Ministers and the Department of International Trade when carrying out their trade negotiating duties. There should not be any great surprise about that. This legislation has restrictions in Clause 8 on the new powers for HMRC. There are duties in Schedule 1 about how Ministers carry out their duties on consultation. There is no great surprise that this legislation has restrictions and duties. We are simply arguing that, when it comes to the elements within our amendment, we are expanding the scope of those restrictions and those duties. The noble Baroness, Lady Noakes, might consider that to be appeasement, which I will refer to a little further on, but I disagree with her.
I wish to move government Amendment 23. I want to use those words because I doubt I will ever be able to move a government amendment, but a government amendment was moved on the previous Bill and, without wishing to be facetious, I shall go a little further and quote:
“My Lords, I am bringing forward amendments designed to maintain UK levels of statutory protection when implementing continuity trade agreements … The fact that I am able to do so is testament to the cross-party working that makes this House so valuable, and I have no doubt that this process has enhanced the legislation.”
That was the Minister, the noble Baroness, Lady Fairhead. Later, she said it was
“an improvement to the Bill”.—[Official Report, 20/3/19; cols. 1439-40.]
That is testament to cross-party working. It is not déjà vu or Groundhog Day, and I say to the noble Baroness, Lady McIntosh, that it is not a race or sprint in which we got there first because she is a dogged campaigner on these areas. I think this is more of a relay race between legislation and different individuals. I hope the Minister feels from knowing and seeing the Agriculture Bill and this Bill that it is the settled will of a cross-party consensus that the Trade Bill should be strengthened by the reinsertion of what the Government themselves had considered a strengthening of it.
I want to refer back to the Agriculture Bill, as other noble Lords have indicated. When the noble Lord, Lord Gardiner of Kimble, summed up, he referred to me and the noble Lord, Lord Rooker. In rejecting what we had argued for at that time—although the House did not agree with the Government and passed the amendment—he said that
“none of the 20 continuity trade agreements signed to date would undermine domestic standards.”
He then set us a challenge, saying:
“I look forward to those noble Lords who are determined that this is not the case at least having the courtesy to say, ‘Actually, our fears have been allayed’. I set that as a challenge.”—[Official Report, 22/9/20; col. 1755.]
In around five years’ time, if I am still here, I will say to whoever the Minister is that allays have been feared. The powers under this legislation are for five years and the Government have indicated that some of these continuity agreements are likely to change. Countries that we have signed continuity agreements with will have changed their agreements with the European Union over that period because many of them are discussing changes. The UK will have to choose how it changes its agreements. We are saying that any changes being brought forward must comply with our statutory standards.
The Government have indicated that that is not really necessary because they have pretty much got all the agreements done anyway, so it is purely an academic exercise. We have signed 20 agreements and there are 18 to go. Half is not all of them done and dusted. Given the fact that the Government had this amendment in the legislation when 18 were signed, not 20, what has changed? The noble Lord, Lord Gardiner, did not give a proper response. I look forward to the Minister giving one. The noble Baroness, Lady Noakes, said it was because the previous Government appeased those who wanted to keep our statutory functions. I would be grateful if the Minister can indicate why the Government have changed their position.
I turn to the issue of whether we should be completely reassured that, as the Minister has said before, no trade agreement can ever change statutory provision. The noble Viscount, Lord Younger—who is now back in his place—indicated in the previous group that that would be the case. On the face of it, that is correct. Any trade agreement would require statutory changes, if necessary, to change the primary legislation. However, we have already seen decisions made, for example, on quotas on imported sugar. Decisions have been made over the summer that will have a big and damaging impact on our domestic agricultural market because we will be giving a competitive advantage to those who are operating without the environmental or labour standards that we find acceptable. They also undermine commitments that we have given to the least developed countries.
It also comes back to the issue of chicken. I have been struck by the Government’s language about chicken and the use of chlorine washing. It was helpful that the NFU gave us the details of some of the concerns about this. It comes back to the specific food hygiene regulation. We are carrying this regulation over but the Government have said that it will change on completion of the implementation period. I shall quote from it:
“Food business operators must not use any substance other than potable water—or, when”
a regulation
“permits its use, clean water—to remove surface contamination”.
That is what the Minister has quoted to us in the past, and that is correct, but I found it really interesting, because the Minister did not finish the quote. It goes on to say
“unless use of the substance has been prescribed by the appropriate authority”.
So materials can be used—in a trade agreement that we can accept from America, for washing any of their products—if we simply prescribe that by an approved authority, and that can be done by negative resolution.
My suspicions always grow when Ministers, when they want to give us reassurance, give us half the situation. The record of the Government this year up to now is, I am afraid to say, that they say they have no intention of doing something just before they do it. The Government say “Trust us, because we have no intention in our future trading relationships of undermining any environmental standards” in the same week as they appoint a trade commissioner, Tony Abbott. I remind the Committee that the week he was appointed, when we were raising concerns on standards in previous proceedings on this Bill and on the Agriculture Bill, he told a conference in London, when he was giving his top tip on how to achieve success in trade negotiations, that they needed,
“not to be held up by things that are not all that important, and not be distracted by things that are not really issues of trade but might be, for argument’s sake, issues of the environment”.
I think the House believes that those aspects are issues of trade. Therefore, the current legislation lacks the enhancements that had been made by the previous Government in their amendment.
In conclusion, the Government’s previous position was:
“A key aspect of that continuity is to ensure that UK statutory protections are maintained. These protections are highly valued by our businesses and consumers and are an important component of the UK’s offer to the world”.
That is correct, and our offer to the world should be the highest standards. The Minister, the noble Baroness, Lady Fairhead, continued:
“It makes it clear that the power can be used only in a way that is consistent with the maintenance of UK levels of statutory protection in the listed areas”—[Official Report, 20/3/19; col. 1439.]
but the agreements, some now very old, will need to be updated, and, in updating them or replacing them, we will have to ensure that any of those changes will be upholding our current standards.
The noble Viscount, Lord Trenchard, suggested that some of this may restrict our negotiators or put extra burdens on them. I do not agree, for an historical reason. The noble Lord, Lord Lilley, said on Second Reading that the party of free trade should not be imposing restrictions. That was half the story. We got rid of the Corn Laws and introduced free trade at the same time as we got rid of adulterated bread, beer and milk and put in place public food standards against them and against counterfeiting.
The Sale of Food and Drugs Act 1875 was a major precursor of the Food Safety Act 1990, itself the precursor of the standards that we are now inheriting. Upholding them is the strongest tradition of Britain, where we have led since Victorian times and other countries have followed. Reinserting this amendment, with the addition of food standards, by the noble Baroness, Lady Bennett, and others and the support of the noble Lord, Lord Grantchester, would be a very strong signal to our trading partners in the world that we will be upholding our standards—British standards.
Lord Grimstone of Boscobel (Con)
My Lords, no one listening to this debate today could be in any doubt about the importance that noble Lords attach to the maintenance of the highest standards in the areas that we have been discussing. To make the Government’s position clear, we entirely concur.
I turn to the amendments, starting with Amendment 20 in the names of the noble Lord, Lord Grantchester, and the noble Baroness, Lady Bennett of Manor Castle. It is intended to ensure that regulations can be made under the Clause 2 power only if they adhere to UK standards of food production and safety and that partner country products are in line with our domestic health policies and policy targets.
I was grateful to my noble friend Lady Noakes for reminding us that Clause 2, to which many of the amendments that we considering today relate, relates to continuity agreements, not to new free trade agreements. As your Lordships are aware from the many debates that we have had on this issue in both this Bill and the Agriculture Bill, the UK already has extremely high import standards of food safety enshrined in domestic law. I say again that we have no intention of lowering these; I completely reassure my noble friend Lady McIntosh of Pickering on this point.
The Deputy Chairman of Committees (Baroness Finlay of Llandaff) (CB)
My Lords, I have had a request to speak after the Minister from the noble Baroness, Lady McIntosh of Pickering.
Baroness McIntosh of Pickering (Con)
My noble friend Lord Grimstone has just confirmed my worst fears about this interchange of terminology between food safety and food standards. We owe the noble Lord, Lord Purvis, a great debt of gratitude because he clearly stated what Heather Hancock, as chair of the Food Standards Agency, has said on numerous occasions: that our current food safety standards can be changed overnight by the passing of a regulation—that is, a statutory instrument. I think he said that that could happen via the negative procedure, not even the full affirmative procedure.
There we have it. That is the problem. We are not even speaking the same language, which concerns me greatly. On food standards, whatever chemical you want to rinse with—such as chlorine—or hormone you want to inject your beef with, it is not something that the consumers of this country want to consume. I just wish that my noble friend Lord Grimstone would accept that this goes to the heart of our concern, reflected in this group of amendments and the other amendments that we will come on to when we discuss the International Trade Commission and what the future criteria will be.
It is not that the chicken or beef might be unsafe to eat; it is that the product does not meet the high standards of production that our farmers must meet. It will therefore undercut our farmers, who could potentially be put out of business. That is precisely what happened under a previous Conservative Government in the mid-1990s; as a result, 50% of pig producers—who were largely in north and east Yorkshire, I might add—went out of business. That is a position to which I do not want to return. Will my noble friend accept that this terminology is extremely important and that what the noble Lord, Lord Purvis, said in regard to the regulation being amended literally by the sweep of a pen is what goes to the heart of this argument?
Lord Grimstone of Boscobel (Con)
My Lords, of course I apologise if I caused any confusion in my remarks —but I stand by them. It would require a statutory process for these food standards to be altered.
Lord Grantchester (Lab)
I thank all noble Lords who contributed on this group of amendments and reflected on the provisions that they would bring forward. I thank my noble friend Lord Rooker for his experiences at the Food Standards Agency and for bringing up serious concerns over paragraph 9(b).
The noble Baroness, Lady McIntosh, drew attention to previous experiences when the UK imposed higher standards on its producers than the EU did, and the lack of redress that resulted in the closing of many UK businesses.
My noble friend Lady Henig underlined why the British public hold standards to be of key importance and that this must be clearly understood when food purchases are made by them. This point and other comments from the noble Lord, Lord Inglewood, and others were reflected around the Committee in the debate, and the Government were asked to show leadership. The Bill sends a clear message, both in and beyond continuity agreements. Principles do not rely on circumstances. The noble Lord, Lord Purvis, spoke very powerfully.
I thank the Minister for the consideration that he has shown. I am glad that he concurs, but he then seeks to wriggle out of what this requires. The evidence is the omission of Amendment 23 in the Bill. Partly why his assurances are so unconvincing is that there does not seem to be any coherent strategy between trade agreements and why trade deals are being pursued by the Government. Elements of that strategy could certainly address standards—that is, how they will be addressed through continuity agreements and beyond. We need to know how the UK Government will approach competing standards regimes.
Another element of a strategy could be climate change, which we addressed earlier in our debates. There does not appear to be any rationale for scrutinising trade deals in the recently established Trade and Agriculture Commission. The Government do not appear to look beyond Brexit and tomorrow’s headlines. There is no real answer other than Brexit.
When amendments to the Agriculture Bill on food standards were proposed in the Commons, the Government argued that their place was in, and their relevance was to, the Trade Bill. However, the Government have not put any such amendments in the Trade Bill. We are happy to enshrine the Government’s commitment in their place. Do they wish to vote against their commitment here?
The charge of protectionism is often levelled against these amendments, but who is being protected and against what? Free and fair competition is to be encouraged. That does not include constraining domestic production in law while allowing access to lower-quality produce that it would be illegal to produce here, for many good reasons.
The WTO allows recognition of standards in international agreements, especially in relation to mutual recognition and the outlawing of dumping practices. These are all serious considerations to be kept in mind in the drafting of amendments and in how best to reflect them in legislation. We will need to keep amendments in mind for further consideration while the Government reassess their approach. We will consider carefully the situation and how best to respond to complement the Agriculture Bill. However, in the meantime, I beg leave to withdraw the amendment.
The Deputy Chairman of Committees (Baroness Finlay of Llandaff) (CB)
We now come to the group beginning with Amendment 26. I remind noble Lords that anyone wishing to speak after the Minister should email the clerk during the debate.
Amendment 26
“(6A) No regulations may be made under subsection (1) by a Minister of the Crown, so far as they contain provision which would be within the devolved competence of the Scottish Ministers (within the meaning given in paragraph 6 of Schedule 1), unless the Scottish Ministers consent.(6B) No regulations may be made under subsection (1) by a Minister of the Crown, so far as they contain provision which would be within the devolved competence of the Welsh Ministers (within the meaning given in paragraph 7 of Schedule 1), unless the Welsh Ministers consent.(6C) No regulations may be made under subsection (1) by a Minister of the Crown, so far as they contain provision which would be within the devolved competence of a Northern Ireland department (within the meaning given in paragraph 8 of Schedule 1), unless a Northern Ireland devolved authority (within the meaning of paragraph 9 of Schedule 1) gives consent.(6D) No regulations may be made under subsection (1) by a Minister of the Crown, unless they have consulted with devolved administrations on the implementation of international trade agreements.(6E) No regulations may be made under subsection (1) by a Minister of the Crown unless the Minister has laid before Parliament a statement that, in the Minister’s view, the regulations do not undermine constitutional arrangements related to devolution.”
Lord Stevenson of Balmacara (Lab) [V]
My Lords, Amendment 26 is in my name and I thank the noble Baroness, Lady Finlay, for her support. This amendment would not only require Ministers to consult devolved Administrations in relation to trade matters but would provide a mechanism under which the procedures that flow from trade agreements would be dealt with in consultation, and with their consent. I shall also speak to Amendment 31, which is supported by the noble Baroness, Lady Finlay, and the noble Lord, Lord Bruce. Amendment 31 again deals with the question of consultation and would add a small section at line 40 of page 2 of the current Bill.
Amendment 50, which is also in this group, is a slightly different measure but an important one none the less; again, it is supported by the noble Baroness, Lady Finlay. Here, we try to bring forward for the consideration of the Committee the question of having a joint ministerial committee and the powers that it might need to discuss international trade issues in relation to the interests of the devolved Administrations. Before anyone in the Committee raises the question of whether we are aware of what we are doing, we are well aware that Amendments 26 and 31 deal with continuity agreements but that Amendment 50, being a proposed new clause, in fact points forward to the new free trade agreements in which we hope the Government will be engaged, and would provide a mechanism under which these could be considered in the context of the interests and involvement of the devolved Administrations.
As with all the others in this group, these amendments are about strengthening and protecting our current devolution settlement. In common with most amendments in Committee, they are probing in nature, although I hope it will be agreed around the Committee that they raise rather big issues, some of which overlap with the internal market Bill, shortly to be received in your Lordships’ House. My noble kinsman, the noble and learned Lord, Lord Hope of Craighead, has raised many of the issues covered by these amendments regularly over the years, and I look forward to his contribution later in the debate—although I think that is now likely to be on Thursday. I hope very much that he will be able to attend then.
These amendments stem from the well-known Sewel convention, which has served the country well for many years. But the problem with the Sewel convention, now incorporated into many devolution Acts, is that it covers only primary legislation. It was founded on the principle, however, that UK Ministers would not normally seek to legislate in primary legislation for issues that were not reserved under the devolution Acts. But the question of whether it should or could be made to apply to secondary legislation is still open.
At Second Reading the noble and learned Lord, Lord Hope, asked for clarification, but I am afraid that he did not receive much from the responses at that time. So I hope Ministers will take the opportunity now to be clear why, if the powers, for example, to modify retained EU law are to be used by Ministers in the UK Parliament to amend legislation in devolved areas, there is no mention of this in the Bill or a requirement to consult devolved Ministers, let alone a clear commitment not to legislate without obtaining their consent. These probing amendments give the Minister the chance to resolve these matters, which are of pressing importance given the imminent elections north of the border and in Wales. I look forward to his response.
Amendment 50 takes the argument a step further, post the implementation period, in the sense that we currently have very little understanding of what happens if consultation has been carried out but consent has not been obtained from any or all of the devolved Administrations on any matter, including, of course, trade. I am sure the Minister is aware that this is an important issue in the Internal Market Bill where mutual recognition and non-discrimination issues are the key to the smooth running of our internal sale and resale of goods and services.
We urgently need a means of settling disagreements, one that commands confidence and trust, so Amendment 50 is a probing amendment but it points the way, I think, towards reforming and restructuring the present, informal arrangements for the Joint Ministerial Committee in relation to international trade and gives it powers to approve mandates, receive progress reports and see the final agreements before they are ratified. The amendment is clearly complementary to Amendment 57, which is in my name, which deals with parliamentary scrutiny more generally and which is in a later group. I beg to move.
Baroness Humphreys (LD) [V]
My Lords, I begin by apologising for not having been able to take part at Second Reading. Amendment 27, tabled by my noble friend Lord Bruce of Bennachie, to which I have added my name, continues the theme that he and I highlighted at Third Reading of the Agriculture Bill: how we deal with conflict created by power being conferred on the Secretary of State or UK Ministers to make regulations in areas of devolved competence. I make absolutely no apologies for repeating our arguments in relation to the Bill today. It is in many ways similar in its objective to Amendment 26 and other amendments in this group to which noble Lords will be speaking. In essence, we are all seeking recognition by the UK Government of the powers of the devolved Administrations and, at the same time, a mechanism to ensure that their views are sought and taken account of.
In Clause 2, as the Senedd’s Legislation, Justice and Constitution Committee report on the Welsh Government’s LCM on the Bill points out:
“The international trade agreements potentially covered by this provision will encompass a wide range of policy areas falling within the legislative competence of the National Assembly for Wales”—
as it was at the time of writing—
“to include agriculture and fisheries.”
We all understand that the details of devolution settlements can be complex, but as the Senedd’s External Affairs and Additional Legislation Committee acknowledges and clarifies, international relations and the regulation of international trade are reserved matters, but implementing obligations arising from international agreements that relate to devolved matters, to which Clause 2 applies, are primarily the responsibility of the devolved Governments and legislatures. So why are the Government overlooking this?
The Senedd’s LJC Committee is also concerned, as I am, that the powers in Clause 2 (6)(a) allow UK Ministers to make regulations that amend the Government of Wales Act 2006, a legislative provision that is worthy of attention and scrutiny by this Committee as well. These powers, we are assured by the UK Government, will not be used to legislate in devolved areas without the consents of the devolved Governments. This wording, it has been argued, has presumably been used to exclude the devolved Parliaments from consultation. I would be grateful if the Minister will clarify this.
Herein lies another problem for those of us who wish to support and defend our devolved legislatures. Are we to believe those words, “We are assured by the UK Government”? There was a time when a response from a Minister at the Dispatch Box would be accepted as the word of the Government, but experience has shown us that we need to be wary. How easily, it seems, the hard-earned powers gained by the Senedd and the other devolved Administrations can be clawed back by this Government. For more than 20 years, successive Labour, coalition and Conservative Governments have added to the powers of the devolved Administrations, making them the effective legislatures we have today. They crave more powers and, in the case of the Senedd, more Members.
Sometimes Governments can behave in the same way as the very worst of parents in exercising their powers. Domineering and unthinking, they eventually and sometimes belatedly understand that removing rights bestowed on their children leads only to resentment. The best of parents listen to the opinions of their offspring and build a relationship of mutual respect and trust, ensuring that the family remains close. The UK has often been described as a family of four nations, but it is a union that we all agree is most unequal. For many of our citizens, it is a union that is no longer working as well as it could, hence the calls for Scottish independence and a growing openness to the prospect of independence for Wales. Chipping away at the powers of the devolved Administrations only adds to the volume of those calls.
I know how willing the Welsh Ministers are to work co-operatively with the UK Government and the other devolved nations. They have contributed effectively to the development of frameworks in many areas and are content to take that process further. In reacting to the publication of the internal market Bill the Counsel General for Wales, Jeremy Miles, said that the Welsh Government were the first to highlight the need
“to develop a new form of joint governance .... in order to manage the intersection between devolved competence and the internal market”.
His comments are equally relevant to this Trade Bill.
As a signatory to Amendment 27, it has my support. Proposed new subsection (6A) would allow for consultation with the devolved Parliaments in order to obtain their consent to regulations and proposed new subsection (6B) would provide qualified majority voting, ensuring that if more than one Parliament withheld consent the regulations could not proceed. It would provide a mechanism for that co-operation, consultation and consent.
Baroness Finlay of Llandaff (CB)
My Lords, I echo the comments of previous speakers on this group. I want to put Amendment 26 in context. I have supported these amendments because of the difficult interface between the power to undertake trade negotiations, which is reserved, and the right of the devolved institutions to legislate on and regulate those areas of policy which have been their responsibility for more than two decades, such as plant and animal health, food standards and environmental standards. Amendment 26 would ensure that the devolved Administrations consent to legislation that UK Ministers wish to make which is within devolved competence when that legislation is a consequence of trade agreements they have entered into. This should be wholly uncontroversial. If you decide to tarmac over the driveway to your house and think it would be more effective and look better if your neighbours’ drive was similarly treated, you would ask for their agreement before instructing the contractor to do it.
Of course, it would not cause a problem were the UK Government serious about working with the devolved institutions to ensure that their interests are reflected and respected in negotiations. Unfortunately, there is some doubt about that and some fear that there is no desire to work with the other nations of the UK. If the Government are not putting in the work to build such a consensus agreement with the democratically elected institutions of these islands, then we must try to induce them to do so. If they are they will find willing partners, certainly in the Welsh Government; I am sure we will return to that theme later in the internal market Bill. For smooth functioning, a market must have common frameworks; that will not be achieved with a system of diktats from Whitehall.
Amendment 31 is simple but important. The sunset provision suggested by the Government allows for the powers to be renewed again and again. Others may have a view on the appropriateness of that, but the amendment simply requires the consent of the devolved Governments for those extensions to be granted. As I made clear, the Bill and its consequences potentially constrain the powers of devolved institutions to operate freely in areas of devolved competence. The case for this seems unanswerable.
Viscount Younger of Leckie (Con)
My Lords, I beg to move that the debate on this group of amendments be adjourned.
The Deputy Chairman of Committees (Baroness Fookes) (Con)
My Lords, that concludes the work of the Committee this evening. The Committee stands adjourned. I remind Members to sanitise their desks and chairs before leaving the Room.
House of Lords
Introduction: Lord Sikka
Introduction: Lord Field of Birkenhead
Arrangement of Business
The Lord Speaker (Lord Fowler)
My Lords, the Hybrid Sitting of the House will now begin. Some Members are here in the Chamber, respecting social distancing, others are participating remotely, but all Members will be treated equally. Oral Questions will now commence. Please can those asking supplementary questions keep them short and confined to two points, and I ask that Ministers’ answers are also brief.
Covid-19: Transport Industry
(3 years, 6 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Baroness Randerson
To ask Her Majesty’s Government what additional support they plan to give to the transport industry to enable that industry to address the impact of the Covid-19 pandemic.
The Parliamentary Under-Secretary of State, Department for Transport (Baroness Vere of Norbiton) (Con)
My Lords, the pandemic has had a significant impact on the transport industry. The Government recognise the key role that transport plays in supporting economic activity and maintaining social ties, which is why they have stepped in to support the industry where they can, to ensure that public transport is there for those who need it.
Baroness Randerson (LD)
Road traffic is back to pre-pandemic levels of congestion, while trains and buses are running almost empty. The Government are reorganising the rail industry but so far have provided only emergency funding for buses. Does the Minister accept that the commercial model for the bus industry was already failing before Covid-19? The Government now have the opportunity to create a green bus revolution. Will they reform subsidies to encourage environmental efficiency and give more powers to local authorities?
Baroness Vere of Norbiton (Con)
The noble Baroness may be interested to know that bus demand is currently running at about 55% of normal, which is encouraging, but she is quite right, and will know that we had always planned to do a bus strategy this year. Of course, we are starting from a very different place from where we had hoped to be, but it will include an awful lot of recovery work, as she so rightly outlined, and set out how we will get 4,000 zero-emission buses on our roads.
Lord Snape (Lab)
Is the Minister aware that the coach industry feels particularly aggrieved, having been excluded from the industry-specific grants that have so benefited buses and trains? Is she also aware that long-standing family companies such as Travel De Courcey, based in Coventry, have already gone to the wall because of the economic situation? Can she offer any comfort to these vital parts of our transport industry, as far as the future is concerned?
Baroness Vere of Norbiton (Con)
I am aware of the very difficult situation that the coach industry finds itself in. It is a very diverse sector with, as the noble Lord points out, a large number of family-run businesses. About 80% of revenue in the coach sector comes from tourism, and we are working very hard with DCMS to ensure that where tourism—particularly domestic tourism—can take place, it does. Much of the remaining 20% is home-to-school transport, and the Government have made available £40 million for the first half of this current term, for local authorities to procure extra vehicles.
Lord Young of Cookham (Con)
My Lords, further to the Question of the noble Baroness, Lady Randerson, in 10 days’ time, the emergency funding that the Government agreed with Transport for London to keep the buses and Tubes running runs out. Can the Minister reassure the House that there will be some agreement thereafter? If the Mayor of London has asked for £5 billion, how will any future burden be shared between the national taxpayer, travellers and London’s council tax payers?
Baroness Vere of Norbiton (Con)
My noble friend mentions the figure of £5 billion: well, the Mayor of London would say that, wouldn’t he? As part of the first bailout, the Government commissioned a government-led review of TfL’s finances and I am afraid that it did not make happy reading, even prior to the pandemic. Multi-year fare freezes are indeed a great vote winner, but eventually one has to make very difficult choices, so the Government will be ensuring that the Mayor of London makes those choices in order to get TfL back on to a financially sustainable footing so that we can protect the interests of the UK taxpayer.
Lord Bradshaw (LD) [V]
My Lords, to judge by both personal observation and hearsay, not much effort is being made by train operators to collect revenue due to them. Will the Government make sure that they understand that it is a duty to collect fares from passengers?
Baroness Vere of Norbiton (Con)
I thank the noble Lord for his question. This is the first time I have been made aware that some train operating companies are not collecting the amount of revenue that they should. To my mind, having also travelled on trains recently, they seem to be functioning very well and nothing much has changed in respect of revenue collection.
Lord Vaizey of Didcot (Con)
My Lords, it is an honour to speak after the noble Lord, Lord Bradshaw, who was my constituent for 14 years; in spite of being a Liberal Democrat, he was extremely well behaved. The Minister will know that transport policy encompasses such innovations as e-scooters. Will she look at the myriad regulations in different boroughs across London, which are holding back the rollout of public e-scooters? Will she also look at legalising e-scooters for private use and removing pointless regulations such as requiring a driving licence in order to use any scooter?
Baroness Vere of Norbiton (Con)
My Lords, I again remind my noble friend and the whole House that riding an e-scooter off private land is currently illegal unless it is part of a trial. However, the Government have rolled out these trials across the country, the entire purpose of which is to gather evidence, so that we can look at the regulations to which my noble friend refers and make appropriate changes in order to benefit from such developments in micro-mobility.
Lord Singh of Wimbledon (CB) [V]
My Lords, in the wake of the pandemic, the Government have promised new structures and relationships with rail and other providers based on value for money and traveller satisfaction, but will the Minister ensure that the needs of long-suffering, isolated rural communities are also taken into account?
Baroness Vere of Norbiton (Con)
The Government have huge ambitions for the rail industry throughout the country, in both urban and more rural areas. As the noble Lord probably knows, we have entered into emergency measures agreements with the train operating companies to make sure that they can continue to provide those services. With regard to cut-off places— places that no longer have trains—the Restoring Your Railway Fund will support the reopening of railways where possible.
Lord Rosser (Lab) [V]
May I return to the question asked by my noble friend Lord Snape? The Minister said that the 20% of the sector involved in school transport was getting support, but what about the other 80%? What additional support will be offered to that 80% of the coach industry, and with what objectives in mind? It includes small operators which, as small businesses, form the backbone of the sector and are really struggling. The Government have yet to tell us what they intend to do to support the great bulk of the coach industry.
Baroness Vere of Norbiton (Con)
The Government have already put in an unprecedented package of financial support, which has recently been extended through the winter economic plan to make sure that support is provided not only to coach companies but to all sorts of companies across the country. As I said to the noble Lord, Lord Snape, we are working with DCMS to try to open up tourism wherever possible, but coach companies are being innovative and getting business where they can. I recently visited York Pullman, in York, and was heartened to see that it is looking to find more innovative ways back into work. I know it is difficult, and we continue to engage with the coach sector as the pandemic progresses.
Baroness Scott of Needham Market (LD) [V]
My Lords, in March the Government announced a fund to improve electric vehicle infrastructure, particularly charging. Does the Minister agree that if post-Covid recovery is to be largely car-based, it is essential to bring forward that fund early so that more people will buy electric vehicles? Can she update the House as to when this money will become available?
Baroness Vere of Norbiton (Con)
The Government do not want the recovery to be mostly car-based. We are keen to encourage passengers back on to buses and trains, and we are clear that people can use public transport and should do so safely. The noble Baroness mentioned electric vehicles. Of course, the Government have a huge commitment to expanding the number of charge points and supporting consumers when they buy their electric vehicles.
Lord Mann (Non-Afl)
My Lords, if we are to become the Saudi Arabia of wind power by 2030, why are we not going to become the world leader in electric cars, looking to the future rather than the past when the Government spend their money?
Baroness Vere of Norbiton (Con)
I reassure the noble Lord that we are already a world leader in the manufacture and design of electric cars and their rollout across the country. The other important element to bear in mind is the Government’s commitment to connected and autonomous vehicles, which, of course, go hand in hand with the development of electric cars.
Lord Davies of Gower (Con)
My Lords, I declare an interest as co-chair of the All-Party Group on General Aviation. General aviation is of course the bedrock of aviation in this country—where young pilots are trained for the future—and has taken a particular hit, along with the rest of aviation, during this Covid-19 crisis. Will the Government consider looking at VAT in respect of general aviation? Will the Minister perhaps consult with the Treasury on this issue?
Baroness Vere of Norbiton (Con)
The Government recognise the important role that general aviation plays in providing the grass-roots element from which so many who go on to the commercial sector come. I reassure my noble friend that the Government are focusing carefully on aviation recovery work, which will include general aviation. It will look at regional connectivity, economic growth, decarbonisation and, perhaps most importantly in the field of general aviation, workforce and skills.
Lord West of Spithead (Lab)
My Lords, the Minister will be aware that many maritime businesses have worked incredibly hard to keep supply chains open and goods flowing during the Covid crisis. However, this has resulted in businesses exhausting their cash reserves, leaving very little funding for them to begin the vital work of decarbonising the maritime industry. Will the Minister confirm that the Government will provide the necessary funding, requested by the maritime industry in recent meetings, to kickstart the urgent process of decarbonisation?
Baroness Vere of Norbiton (Con)
The noble Lord will know that the Government published their Maritime 2050 strategy a little while back. Of course, our commitment to decarbonisation remains extremely strong. There are a number of conversations going on at the moment about maritime decarbonisation, and some ideas have been put forward for the spending review.
The Lord Speaker (Lord Fowler)
My Lords, all supplementary questions have been asked and we now move on to the second Oral Question.
United Kingdom Government-Northern Ireland Executive Joint Board
Lord Lexden
To ask Her Majesty’s Government when the next meeting of the United Kingdom Government-Northern Ireland Executive Joint Board will be held; and what will be on the agenda.
Viscount Younger of Leckie (Con)
My Lords, the first meeting of the joint board, which has oversight for transformation in health, education and justice where these draw on funding provided under the New Decade, New Approach agreement, took place on 22 July. We are looking to schedule a further meeting very shortly—this autumn—for which an agenda has yet to be finalised. It will, however, include a review of progress to date.
Lord Lexden (Con)
How often do the Government envisage meetings of this important new board linking Westminster and Stormont taking place? What assessment have the Government made of the stability and prospects of their fellow board member, the Northern Ireland Executive, restored to work at the beginning of the year?
Viscount Younger of Leckie (Con)
It is not clear how many meetings will be held each year, but suffice it to say that with the last one held in July and one coming up shortly, they will be frequent enough. The joint board has no specific powers of statutory underpinning; it is a discursive forum to facilitate close working between the UK Government and the Executive. Finally, the assessment is that the NDNA has proved vital in light of the pandemic. It is fair to say that it has worked well due to the commitment and leadership of the Northern Ireland political leaders.
Lord Empey (UUP)
Will my noble friend ensure that at future meetings of this body attempts will be made to ensure that the people in the devolved regions—not only in Northern Ireland—understand the sources of funds for public services? It is not clear in the devolved regions where the money is coming from and, specifically, how much additional money comes to the regions from Parliament, as opposed to money raised locally.
Viscount Younger of Leckie (Con)
My noble friend makes a very good point about the accountability of funds. He will know that part of the establishment of the joint board is setting up a fiscal council tasked with assessing and reporting on the sustainability of the finances and spending proposals. As he said, it is important to put the funding for Northern Ireland in the context of funding for the other devolved Administrations.
Lord Liddle (Lab)
What discussions have been taking place in this area on the question of the customs border in the Irish Sea? Can the Minister enlighten us? It seems to me that there is a misunderstanding on the part of the Government. They say that this problem will be solved if, as we hope, there is a trade deal, but the reason for that is that at present there is regulatory alignment between Great Britain and Northern Ireland. If the Government’s objective with Brexit is to diverge over a whole range of areas, as they envisage, will there not have to be a proper customs border in the Irish Sea, and does that not require extensive consultation with the Northern Ireland authorities?
Viscount Younger of Leckie (Con)
I admire the noble Lord’s ingenuity in steering the Question in that direction. However, I remind him that the purpose of the joint board is to review the use of funding provided under the NDNA agreement. These matters are not, as such, for the joint board.
Baroness Suttie (LD) [V]
Does the Minister agree with the House of Commons Northern Ireland Affairs Select Committee report on the New Decade, New Approach agreement where it highlights the need for a long-term financial plan for the implementation of the agreement but acknowledges [Inaudible] on public finances in Northern Ireland? Will he confirm that long-term financial planning will be on the agenda of the next meeting of the board?
Viscount Younger of Leckie (Con)
I think I picked up most of what the noble Baroness said. I know that some information has come out from the Northern Ireland Affairs Committee. One recommendation was for an annual report, and that is linked in with the question that the noble Baroness asked about sustainability in the future. It is not an unreasonable request but we would need the agreement of the First Minister and the Deputy First Minister to take that forward.
Lord Dubs (Lab) [V]
My Lords, first, will support for the aerospace industry in Northern Ireland be on the next agenda of the board? Secondly, will the victims payment scheme be on the agenda, and do the Government propose to indicate what money they will make available for that scheme?
Viscount Younger of Leckie (Con)
I cannot say what will be on the agenda beyond, as I said earlier, a discussion about the progress that the joint board has made so far. However, I will certainly take the point that the noble Lord has raised back to officials. I think that we will be able to explore the victims payment scheme during the next Question, but this is very much a matter for the Executive to take forward. The funding is there and comes out of the block grant.
Baroness Neville-Rolfe (Con)
My Lords, the services sector accounts for 75% of gross value added in Northern Ireland and 22% of external sales by Northern Ireland firms. Can my noble friend suggest that helping this sector, hard hit by Covid, should be on the board’s agenda? It ranges from retail and transport to health and professional services, and from tourism to the arts. For example, “Game of Thrones” has brought new visitors to Castle Ward as the location for Winterfell, home of the House of Stark, and many other beautiful places, but I worry that Northern Ireland faces a chilly winter.
Viscount Younger of Leckie (Con)
My noble friend makes a good point about the services sector, and I saw for myself the site of “Game of Thrones” when I was in Northern Ireland three or four weeks ago. The services sector is very important: it accounts for over 80% of employment and a total of 634,000 jobs. However, I remind my noble friend that the focus is much more on health, education and justice as part of the joint board’s remit.
Lord Foulkes of Cumnock (Lab Co-op)
My Lords, will this board be the forum for discussion about the Prime Minister’s proposal for a feasibility study of a bridge or tunnel between Northern Ireland and Scotland? If not, where will that be discussed?
Lord Caine (Con)
Will the agenda for the next meeting of the joint board include the establishment of a UK government hub in Northern Ireland, which is envisaged in the New Decade, New Approach document, was a commitment in the last two Conservative Northern Ireland manifestos and would underline the importance that we attach to Northern Ireland’s position within the United Kingdom?
Viscount Younger of Leckie (Con)
My noble friend makes a good point about emphasising the union. This Government continue to want to show the importance of the union and how all parts of the UK, including Northern Ireland, benefit from it. The city deals are one example of direct funding to the devolved Administrations.
Baroness Smith of Basildon (Lab)
My Lords, I have listened carefully to the answers from the Minister, but can I take him back to the Question asked by the noble Lord, Lord Lexden? He asked when the next meeting would be—to which he received an answer—and what would be on the agenda. All I have heard so far from the Minister is what will not be on the agenda, despite some excellent suggestions from the noble Baroness, Lady Neville-Rolfe, my noble friend Lord Liddle and others. Perhaps I may press him on this, because there is a sense of urgency here. We were greatly appreciative of the work of the former Secretary of State in securing the New Decade, New Approach deal, but if all the Minister can tell us about the agenda is that there will be a review of the progress that has been made, it does not leave us with much confidence that real progress is being made. The point made by the noble Lord, Lord Caine, about the manifesto is apt. I hope that the Minister can give us some meat on the bones here and tell us exactly what will be discussed and what will be on the agenda. That was the Question.
Viscount Younger of Leckie (Con)
Indeed, the noble Baroness is right, and I have taken on board her question. This is very much a matter for the Executive and I do not have in front of me the details of the agenda. However, at the first meeting, the terms of reference were agreed, and it remains up to the Executive to decide whether to make this, and indeed any other matter relating to the agenda, public.
Lord McCrea of Magherafelt and Cookstown (DUP)
I am sure that the Minister is aware of the deep concern over the threat by the EU to block the free movement of goods, including food, from Great Britain to Northern Ireland. In the event of the Union not coming to an agreement by December, will the Government give an assurance that they will exempt goods and food from the EU-commanded checks? This has major implications for Northern Ireland industry.
Viscount Younger of Leckie (Con)
I will take note of that point because, again, the noble Lord’s question takes us further from the point raised about the joint board.
The Lord Speaker (Lord Fowler)
My Lords, all supplementary questions have been asked and we now move to the third Oral Question from the noble Lord, Lord Duncan of Springbank.
Northern Ireland: Payments to Victims of the Troubles
Lord Duncan of Springbank
To ask Her Majesty’s Government what progress they have made in the delivery of payments to victims of the Troubles in Northern Ireland.
Viscount Younger of Leckie (Con)
My Lords, the UK Government brought forward legislation establishing a victims’ payment scheme in January. They did so both to fulfil their legal obligation and because they are committed to doing what they can to progress a scheme that acknowledges the harm caused to those people injured through no fault of their own during the Troubles. Implementation of the scheme is a matter for the Northern Ireland Executive. We will continue to prioritise supporting the Executive’s delivery of this scheme because victims have waited too long already.
Lord Duncan of Springbank (Con)
My Lords, I am conscious that, during this pandemic, these individuals will be shielding. Money should be in their hands by now and it is not. When I was pushing forward this legislation in this House, two things were clear—one, there should be backdated payments and, secondly, there should be interim payments based on a simple, basic formula. Can my noble friend confirm that these elements have not been lost sight of during this particular stage and that progress will be made in real time? Otherwise, there will be nobody to pay the money to.
Viscount Younger of Leckie (Con)
My noble friend is absolutely right. Speed is of the essence, as I and other noble Lords said back in June. Now that the designation of the department has taken place, what matters is moving as quickly as possible to deliver for the victims. The Justice Minister has set out a potential timeframe and highlighted key deliverables, such as appointing members to the board and developing the IT systems and application forms.
Lord Cormack (Con)
My Lords, my noble friend Lord Duncan of Springbank was immensely energetic on this issue when he held this portfolio. It is an absolute scandal that people who deserve this money are dying by the week. Soon many more will be dead. Will my noble friend ensure that he tells the Secretary of State that he should immediately summon a meeting with the leaders of the Northern Ireland Executive to ensure that these payments are made well before Christmas?
Viscount Younger of Leckie (Con)
Perhaps I can reassure my noble friend and play straight into his question. The Secretary of State is and always has been firmly committed to seeing that this scheme is introduced as speedily as possible and payments made to victims who have waited too long. He meets regularly with the First Minister and Deputy First Minister to discuss a range of important issues—and particularly this scheme as a priority.
Lord Loomba (CB)
My Lords, as noble Lords are aware, the anticipated timescale for beginning payments to the victims is spring 2021. Can the Minister tell us if the Government are committed to shortening this time? If so, how are they aiming to work with the Minister of Justice in Northern Ireland to expedite matters to achieve a quicker resolution so that victims are not waiting longer than necessary for recompense?
Viscount Younger of Leckie (Con)
The Northern Ireland Office is doing its best to support the Executive in speeding up this process. I gave some indication earlier as to what is required and what has started to be done. We all very much hope that the March date can be brought forward. The Secretary of State is leading the push for greater speed.
Baroness Smith of Basildon (Lab)
My Lords, the Minister knows my particular interest in this issue, as a former Northern Ireland victims’ Minister. I, too, pay tribute to the noble Lord, Lord Duncan, who has really pushed this and shown a real commitment. Let us be clear what is happening. The reason why the Department of Justice is dealing with this issue is because the High Court said that the Northern Ireland Executive was acting unlawfully in delaying implementation of the scheme. The Minister of Justice, Naomi Long, has outlined the operational steps that need to be undertaken, but she says that not all of them are in her department’s control. There would seem to be a role for the NIO in asking for updates of what is happening and providing support to her, to try to make these other operational areas happen. What steps is the NIO taking and when was the last meeting with Naomi Long to discuss this?
Viscount Younger of Leckie (Con)
The noble Baroness is right when she talks about the review. The judge made a clear ruling that the Executive Office was acting unlawfully in not designating a department. This is now happening—this process is now taking place. I cannot tell the noble Baroness precisely what is happening at this moment, but I reassure her and the House that the Northern Ireland Office continues to regard this as a priority. It is doing its best to work with the parties to take this forward and to get the payments made at the earliest opportunity.
Lord Bruce of Bennachie (LD) [V]
My Lords, as the noble Baroness, Lady Smith, has pointed out, Naomi Long, the Northern Ireland Justice Minister has—to her great credit—volunteered her department for this challenging task. She says that she is determined, if possible, to progress this by an earlier date than March. But surely the Governments need to work together to overcome these challenges. This is a UK scheme. Does the Minister recognise that UK Ministers cannot walk away from either the funding or the delivery of the scheme? They will be held accountable. If funding or operation are not adequate, they will not escape the blame.
Viscount Younger of Leckie (Con)
The noble Lord’s question is unnecessary. The funding is there; it has never been a block. It comes through the block grant. In the background to the funding through the block grant, the UK Government have provided very generous financial support to the Northern Ireland Executive since the start of this calendar year. This has included an additional £2 billion through the NDNA financial package and £260 million from the Budget.
Baroness Bennett of Manor Castle (GP) [V]
My Lords, both the noble Baroness, Lady Smith, and the noble Lord, Lord Cormack, referred to meetings. My information is that the Northern Ireland Executive is seeking meetings with both the Secretary of State and the Treasury. Have those meetings taken placed or are they planned? Of course, the Treasury is reflecting on the issue of funding, the point just raised by the noble Lord, Lord Bruce. My information is that the Northern Ireland perspective is that this cannot go ahead without funding from Westminster.
In his supplementary question, the noble Lord, Lord Duncan, said that this money, in backdated and interim payments, is urgently needed. Could Westminster not find some money to at least cover some payments now to ensure that people get the compensation they desperately need?
Viscount Younger of Leckie (Con)
The noble Baroness is putting cart before horse. As I said earlier, the money is there; it has never been a block. The point that I made earlier is that certain systems need to be expedited and set up by the Ministry of Justice, and we are giving it every support. Payments cannot be made until those things are done, but it is not a matter of the money not being there.
Lord Blencathra (Con)
My noble friend will be aware that, during the Troubles, 1,441 brave men and women of the British Armed Forces and the Ulster Defence Regiment were murdered, as well as 319 men and women of the Royal Ulster Constabulary. They were among the bravest of the brave. Collectively, more than 20,000 of these people were injured and their families traumatised. Can my noble friend assure me that the injured and the relatives of these servicemen and women and police officers will be in the front line for any payments? After all, they were in the front line defending this country.
Viscount Younger of Leckie (Con)
We should always remember all those who were caught up in the Troubles. The Northern Ireland Executive are responsible for the delivery of the scheme and for processing applications. This will be a matter for the independent board, which will consider applications carefully before expediting payments.
Baroness Kennedy of Cradley (Non-Afl) [V]
My Lords, the debate about the funding of the victims’ payments scheme is clearly frustrating its progress. In September, there seemed to be a suggestion that it was up to the board to assess the number of victims that will be supported by the scheme—and therefore its cost. Do the Government have their own assessment of the cost of the scheme? If so, how does the Minister know whether the funding that the UK Government have supplied is adequate?
Viscount Younger of Leckie (Con)
I can give a little more detail. The noble Baroness is right: we do not know precisely the number of people caught up in the Troubles. A figure of 40,000 has come my way. Therefore, she is right that we do not have the exact figure. A figure of £800 million has been bandied about, but we believe that it is wholly in excess of what will be required. This needs to be taken forward by the board, which will make the decisions.
COP 26: Sponsors
(3 years, 6 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Baroness Boycott
To ask Her Majesty’s Government what progress they have made towards identifying sponsors for COP 26; and what criteria are used in the appointment of any such sponsors.
The Parliamentary Under-Secretary of State, Department for Business, Energy and Industrial Strategy (Lord Callanan) (Con)
My Lords, the Government have set strict sponsorship criteria for COP 26 to partner with companies committed to fighting climate change and running their businesses in a sustainable manner. The Government have published an online form for companies to register their interest in sponsorship and are already in discussion with a number of companies. We are looking for companies committed to reaching net zero by 2050 with a credible short-term action plan to achieve this.
Baroness Boycott (CB) [V]
I thank the Minister for his reply. I am very glad to hear that we are setting standards; I have indeed read the form. However, I want to press a little further. I understand that conversations have taken place between some leading oil companies and the team funding COP 26. Governments around the world are, as we know, still subsidising the fossil fuel industry, and even if many of them are developing alternative energy streams, these are still an actual fraction of their output. While this remains a fact, allowing any fossil fuel company to sponsor the climate talks seems to me not dissimilar to allowing a tobacco company that produced vaping products to sponsor something like the Olympics. Can the Government guarantee to the House that the process of sponsorship of this critical meeting will not allow any greenwashing on behalf of any company? Will the Government further agree that all the sponsorships will be very clear and transparent, and if not open to full public scrutiny, open to scrutiny by the House?
Lord Callanan (Con)
We will be working most closely with organisations that are committed to taking real, positive action and have strong climate credentials; for example, companies which have committed to achieving net zero and have published a credible plan of action on how they will achieve this.
Baroness Blackstone (Ind Lab)
My Lords, what exactly will sponsors receive, apart from exhibiting space, in return for their money? Will the Minister confirm that no sponsor will be allowed to sit in on any part of the negotiations?
Lord Callanan (Con)
We are looking for both monetary and value-in-kind sponsorship. Value in kind refers to goods and services that are acquired, or highly desirable, in exchange for branding, etcetera. There is of course no question of companies taking part in negotiations.
Lord Oates (LD)
My Lords, in his reply to the noble Baroness, Lady Boycott, the Minister said that sponsorship would be restricted to companies committed to net zero by 2050, with credible and short-term action plans to achieve it. In the light of that criteria, does he not think it time that the Government themselves had a credible short-term action plan?
Lord Suri (Con) [V]
My Lords, what do the Government believe these companies can offer compared to companies that are already focused on green energy? Have the Government taken the stance that large global corporations may be of no use?
Lord Callanan (Con)
I did not quite catch all that the noble Lord said but I can confirm that we are looking for both monetary and value-in-kind sponsorships from companies that, as I said, have a credible short-term action plan and are committed to net zero.
Lord St John of Bletso (CB)
My Lords, I apologise for having asked a question earlier on. Ahead of COP 26 next year and given concerns about greenwashing, and with the positive move of UK businesses pledging to environmental targets of net-zero carbon by 2050, what are Her Majesty’s Government doing to make sure that these companies deliver on these targets? With a gap of over 1 million people in the green economy, how are the Government promoting the upskilling of workers in this sector of the economy?
Lord Callanan (Con)
We will be closely studying and monitoring companies that come forward for these sponsorship opportunities, which will favour taxpayers’ money—that is the ultimate objective. We will study their plans carefully and monitor them as they progress.
Lord Grantchester (Lab)
According to overnight reports, the Government are planning for all 30 million homes in the UK to be powered by gusts of wind from offshore wind installations. The Government have always maintained that they stay technology-neutral in their encouragement of renewable energy sources. Yet the Conservative Party has advised that the sun does not always shine brightly, nor the wind blow consistently. Can the Minister confirm whether the Government are now picking winners and losers among green technologies and whether this will be reflected at COP 26 in its sponsors?
Lord Callanan (Con)
No, we are not picking winners. We always examine a range of different technologies and we are backing a range of different technologies. The contract for difference auctions will not discriminate between different technologies and we will keep them all under constant review.
The Lord Bishop of Rochester
My Lords, while I understand that the focus of formal sponsorship is on businesses, is the Minister able to confirm that Her Majesty’s Government are also keen to engage in similarly deliberate ways with other bodies, including faith communities? These communities are highly motivated—indeed mandated—to care for God’s creation, locally and globally, and many, including the Church of England’s General Synod, have already committed to challenging targets for carbon reduction.
Lord Callanan (Con)
We are always willing to consider sponsorship opportunities if the right reverend Prelate wishes to offer them. To be serious, we will of course be engaging with both NGOs and faith communities in this endeavour as well.
Lord Randall of Uxbridge (Con) [V]
Can my noble friend confirm that before appointing any sponsors for the COP, Her Majesty’s Government will undertake due diligence in the supply chains of any companies under consideration with regard to negative environmental impact?
Lord Callanan (Con)
My noble friend makes a very good point. We will be carrying out due diligence on all potential sponsors. As I said, we are looking for companies that are running their businesses in a sustainable manner and working to reduce their environmental impact through net-zero targets; that will include studying their supply chains as well.
Viscount Waverley (CB) [V]
My Lords, a leader article yesterday stated bluntly that:
“The global climate crisis is the emergency of our times.”
How many heavy hitters are being targeted that meet the committed criteria outlined by the Minister? Can he give any indication of examples? In addition, and underlining other contributions this afternoon, will the Government agree that COP 26 sponsor selection must focus unreservedly on those fully committed to the cause, and not on those only paying lip service out of self-serving expediency?
Lord Callanan (Con)
I can certainly agree with the latter part of the noble Lord’s questions. We need to pick companies that are walking the walk as well as talking the talk. We hope to announce some names shortly.
Baroness Goudie (Lab) [V]
My Lords, while they are doing their due diligence, will the Government look carefully at the way pension funds that decide to become a sponsor are investing, and at how all supply chains, of British and global companies, are working? Further, given that companies are pushing to have 30% women on their boards, will the Government look at ensuring that we have at least 30% women on our COP delegations—unlike the present COP delegation to the UN which has no women at all?
Lord Callanan (Con)
We will of course conduct due diligence on all potential sponsors and will ensure compliance with rigorous government standards on all matters.
Baroness Jones of Moulsecoomb (GP)
My Lords, the noble Viscount, Lord Waverley, made an interesting point that companies ought to be truly climate credible. Which climate-credible people in the Government will make the decision on which companies are climate credible?
Lord Callanan (Con)
As in all these matters, the ultimate decisions will rest with Ministers. We will judge companies closely against the criteria that we have already published, and I am sure that the noble Baroness will want to hold me to account for those decisions.
The Lord Speaker (Lord Fowler)
My Lords, all supplementary questions have been asked, and indeed all Questions on the Order Paper answered.
Lord Speaker’s Statement
The Lord Speaker (Lord Fowler)
My Lords, the Hybrid Sitting of the House will now resume. Before I call the noble Lord, Lord Arbuthnot of Edrom, to ask address the Private Notice Question on Post Office prosecutions, I should inform the House that the Question concerns the Post Office’s decision not to challenge the forthcoming appeals in 44 cases that are pending in the Court of Appeal. As the House will be aware, part of my role is to decide whether, in specific circumstances, it is appropriate to waive the application of the sub judice rule, under which we do not debate matters pending the courts. I have decided that, in this case, it is right to do so. This is a rare step and one that I do not take without advice and thoughtful consideration.
I have taken the view that it is in the public interest for the House to be able to consider this matter, given that it is known that the appeals will not be contested. It is relevant to my decision that, yesterday, Mr Speaker took a similar decision to allow an Urgent Question on the same topic in the House of Commons. In taking this decision, I ask all noble Lords to exercise their normal caution about referring to individual cases and to avoid referring to the minority of cases that remain contested.
Post Office: Horizon Accounting System
(3 years, 6 months ago)
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Lord Arbuthnot of Edrom
To ask Her Majesty’s Government, further to decisions by the Criminal Cases Review Commission and the Post Office in relation to the Horizon accounting system, what is their response to the 44 appeals not being opposed by the Post Office.
Lord Arbuthnot of Edrom (Con) [V]
[Inaudible.]—the largest number of referrals by the Criminal Cases Review Commission in history. Yet the Government are expressly excluding from the scope of their inquiry the Post Office Ltd prosecution function, the Horizon group damages settlement and the conduct of current or future litigation. Given that the sub-postmasters who sued remain impoverished and, in many cases, bankrupted by the Government, why have the Government excluded these most important things? Why are they punishing those brave people who brought this essential litigation?
The Parliamentary Under-Secretary of State, Department for Business, Energy and Industrial Strategy (Lord Callanan) (Con)
The noble Lord was getting a bit ahead of himself in asking his supplementary question before he asked his main Question, so I will answer that main one first and then come on to the second one.
The answer to the Question that he originally posed to me as a Private Notice Question is that, on 2 October, the Post Office announced that it would not oppose 44 of the 47 cases referred to the Court of Appeal by the Criminal Cases Review Commission. This is an important milestone for the postmasters appealing their convictions. It is now for the courts to decide whether their convictions should be overturned, and it would not be appropriate for the Government to comment on these cases until that process is complete.
I will now move to the question which the noble Lord just asked. The settlement was agreed in December and was full and final; for this reason, it has been excluded from the scope of the inquiry.
On the question of its prosecution function, the chief executive of the Post Office, Nick Read, has assured the Government and confirmed publicly that the Post Office is not currently conducting any private prosecutions and has no plans to do so.
As regards current and future litigation, of course only the courts can decide on criminal matters, such as whether to overturn the postmasters’ convictions, so it would not be appropriate for the inquiry to look at these questions, especially when the court process is still ongoing.
The Lord Speaker (Lord Fowler)
My Lords, I think we have dealt with both questions there.
Lord Harris of Haringey (Lab) [V]
My Lords, we are all very grateful to the noble Lord, Lord Arbuthnot, for continuing to press this issue doggedly over the last decade. Under the framework document, the Post Office business plan must address
“the state of the relationship … with the community of postmasters.”
The sole shareholder—the Government—is required to meet the CEO
“at least twice a year”.
Ministers have known all about this grotesque scandal. It is not good enough to hide behind the pretence that these matters were merely operational. At how many of those biannual meetings did the Minister pursue this? If he did not, surely that is negligence? If he did, why has it taken so long?
Lord Callanan (Con)
I am not the Minister directly responsible for the Post Office; Paul Scully is the Minister who is directly responsible. He has regular meetings with the Post Office chief executive, and, indeed, I have also met him to discuss this matter. This scandal has been going on for the best part of a decade now, through successive Governments and Ministers. We are not trying to hide behind anything. That is why we have announced this inquiry with a High Court judge to try to get the bottom of these matters. It has been extensively looked at and the High Court opined on it, but we think that more can be done, and I assure the noble Lord that we want to see these matters properly examined and the appropriate blame apportioned.
Lord Dholakia (LD)
My Lords, the Criminal Cases Review Commission refers cases of miscarriage of justice to the Court of Appeal. In this case, we understand that it will not receive a challenge from the Post Office on this matter. When the matters have been dealt with, would the Minister promise that the matter will be referred to the Crown Prosecution Service and the police to see what further action could be taken in relation to this matter?
Lord Callanan (Con)
The CPS is already examining the conduct of Fujitsu in this case, but the noble Lord will understand that it would not be appropriate for me to comment on those proceedings.
Lord Stevenson of Balmacara (Lab) [V]
My Lords, in earlier responses to questions on this issue, the Minister has confirmed that, although the review is not a statutory inquiry under the Act, the reviewer—we now know his name—will get full access to the Post Office’s and Fujitsu’s papers and personnel. Can the Minister confirm that the reviewer will have similar rights of access to Ministers and civil servants involved in this case?
Baroness Ludford (LD) [V]
My Lords, I too pay tribute to the noble Lord, Lord Arbuthnot, for bringing a measure of justice to this case. In a debate in February, he said:
“It is hard to find words strong enough to condemn the people in charge of this catastrophic fiasco. What have the people in charge suffered as a result? One of them, Paula Vennells, has been given a CBE and now sits on government-sponsored boards. None of the rest, as far as I can see, have suffered at all.”—[Official Report, 25/2/20; col. GC 87.]
When the Minister, the noble Lord, Lord Callanan, answered a question from the noble Lord, Lord Arbuthnot, in March, he said:
“There is no question but that the Post Office management at the time behaved disgracefully but none of them is now in post.”—[Official Report, 5/3/20; col. 719.]
None the less, what are the Government doing to hold these people to account, at least by reviewing honours and public sector appointments awarded?
Lord Callanan (Con)
The noble Baroness makes a very good point. I made my views clear on this matter earlier in the year, and I have written to the Department of Health and Social Care—the letter is now public—expressing my views on this. Of course, there are appropriate procedures that need to be followed in appointments and in honours, but personally I would have no problem with those matters being looked at.
Baroness Ritchie of Downpatrick (Non-Afl) [V]
My Lords, as this is a reserved matter, has the Minister and the Minister for the Post Office had initial discussions with the Northern Ireland Executive to ensure that the inquiry by Sir Wyn Williams will be all-encompassing and cover all the issues that emerged in the Horizon programme in Northern Ireland post offices, with assurances that such actions will never happen again and that those people will never suffer such undue burdens?
Lord Callanan (Con)
It is for Sir Wyn to decide how the inquiry gathers the necessary evidence, but I imagine it will want to gather evidence from all affected postmasters, including those in Northern Ireland. The noble Baroness makes a good point and I will ask my officials to speak with the Northern Ireland Executive on this matter.
Lord Foulkes of Cumnock (Lab Co-op)
My Lords, will the Minister tell the House how many lawyers were engaged opposing the sub-postmasters’ appeals? How much taxpayers’ money has been spent on it? How much of that money was spent since it was realised it was the Horizon scheme to blame, not the sub-postmasters?
Lord Callanan (Con)
I am afraid I cannot give the noble Lord a direct answer. I do not know how many lawyers were engaged. I will try to find out and will write to him on this. I should imagine a lot. But I do not know the number because the matter was one for the Post Office. We have announced the inquiry. These are matters that the inquiry will want to go into. I am sure Sir Wyn will want to pursue this. I hope he will produce the appropriate conclusions and will attach the blame—if there is any—to those who are responsible.
The Lord Speaker (Lord Fowler)
My Lords, all supplementary questions have been asked.
The Deputy Speaker (Lord Palmer of Childs Hill) (LD)
My Lords, the Hybrid Sitting of the House will now resume. The time limit on the Motion is one and a half hours.
Health Protection (Coronavirus, Restrictions) (No. 2) (England) (Amendment) (No. 4) Regulations 2020
(3 years, 6 months ago)
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Lord Bethell
That the Regulations laid before the House on 14 September be approved.
Relevant document: 27th Report from the Secondary Legislation Scrutiny Committee
The Parliamentary Under-Secretary of State, Department of Health and Social Care (Lord Bethell) (Con)
My Lords, I will start by summarising the changes to the regulations. These regulations, which were made on 13 September and came into force on 14 September, amend the Health Protection (Coronavirus Restrictions) (No. 2) (England) Regulations 2020. They mean that people may not participate in social gatherings, in any place, inside or out, in groups of more than six. The exceptions are members of the same household, two linked households, or exceptions that apply such as for work and schools. This is the measure we call the rule of six; its sole purpose is to halt the spread of the virus by breaking the chain of transmission.
Our message is clear. Those who flout the rules cannot do so with impunity. However, for those who follow the rules, we will provide support and encouragement. That is why the regulations gave police powers to enforce these legal limits, including issuing fines to a maximum of £3,200. It is also why we have introduced financial support for those in isolation.
After a period in the summer of reduction, or stabilisation, in the transmission of the virus, the headline numbers were clear: by mid-September we were seeing daily case numbers rise rapidly in most parts of the country. For example, on 14 August 2020, 1,168 confirmed cases were announced; whereas a month later, on 11 September, 3,286 confirmed cases were announced. That is why the Government, the Chief Medical Officer and the Chief Scientific Advisor jointly agreed the changes we announced.
We know that an increase in infections leads to increases in hospitalisations and deaths, and early indications were of hospital admissions increasing. For example, on 14 August, 99 patients were admitted to hospital; whereas on 11 September, 219 patients were admitted to hospital. We also looked at international data on the feedback on the transmission of the virus in large groups from contact tracing and the advice of infection control teams on the local front line who said the old rules were clearly being flouted. That is why we took the decision to act promptly to introduce these changes.
Regulations such as these are meaningful only if people comply with them. We recognise that in the last eight months the sum of all our regulations had become confusing for many people. Anecdotally, local leaders told us that the term “households” was not well understood—and could be misunderstood as including people’s extended family, whether or not you lived with them—and that a numerical limit was likely to be better understood. Our instincts and these anecdotes were supported by evidence from the Health Protection Research Unit at King’s College London, to which we owe thanks. That is why we have moved to the rule of six: one number; in all settings; inside and out; at home or in the pub. Clear, easily understood guidance, based on clear principles—that is what we have sought to do.
To be clear, in this instance, the buy-in of the public and adherence of the majority are more important than the epidemiological transmission analysis and fine-tuning points of the committees of experts. Breaking the chain of transmission is all that matters. We tightened the regulations so they exactly reflected the guidance, rather than there being one set of numbers in guidance and another set in the legal framework.
I accept that there are seemingly many inconsistencies, injustices and perceived unfairnesses in rules such as these. I have heard many of them already. Probably everyone in this Chamber has an instance where the rules do not seem to make sense. We cannot legislate for every scenario. The virus does not respect special circumstances, however moving. However, there is wisdom in simplicity and there is effectiveness in being easily understood. That is why the rules were simplified and strengthened: so that they were easier to understand, people knew where they stood, the police can act without hesitation and we can get the virus under control. If we achieve that, it is our sincere hope and expectation that the measures will be effective, and we can potentially lift the restrictions.
Let me say a few words about the impact of the measures—I note of course that they have been in place for only three weeks. We have seen the proportion of people who have socialised with six or more people from outside their household at the same time reduce by over a third to 7% last week, compared to 12% in recent weeks.
Let me say a few words about the impact of the measures by giving some examples of where local lockdowns have worked. In Northampton, the weekly incidence rate on 21 August was 116 per 100,000, mainly because of an outbreak in the Greencore factory. We brought in measures and the prevalence rate was brought down to 25.8 per 100,000. Swindon was put on the watchlist, the rise there being linked to a large-scale workplace outbreak and car-sharing issues. These were addressed and the prevalence was brought down to 15. I could go on. I accept that the picture for local lockdowns is complicated, and there are places where the numbers have gone up and have come down, but where measures have been supported by communities, we have broken the chain of transmission.
I want briefly to say something about the way these measures were introduced. Our natural inclination is to lift restrictions wherever and whenever we can. In the summer, we were hopeful that the country had got the message, that our exhortations on hands, face and space had got through and that, except for some local outbreaks, we had basically got a lid on it. However, the numbers told another story. It was therefore essential that the Government moved quickly. As in the past, we used the powers under the public health Act. Our lawyers diligently crossed every “t” and dotted every “i”, so the paperwork was not laid until hours before the measures became law.
None of this is ideal. The Government accept that parliamentary scrutiny has an important role to challenge the detail and to build support. That is why the Secretary of State for Health and Social Care told the other place last week that, for significant national measures with effect in the whole of England, the Government would consult the House of Commons wherever possible and hold votes before the regulations came into force.
I reassure noble Lords that the Government have heard the message on this point and that we are building on the success of these regulations to take them forward. For that reason, I beg to move.
Lord Lamont of Lerwick
To move, as an amendment to the above Motion, at end to insert “but that this House regrets the failure of Her Majesty’s Government adequately to consult the public in the preparation of the Regulations and the impracticality of enforcing the measures”.
Lord Lamont of Lerwick (Con)
My Lords, I have tabled this amendment to raise a few questions about the rule of six, on which I am grateful to the Minister for his comments. He has already conceded that there are lots of inconsistencies and injustices but that these are put there in the name of simplicity. However, for many people, that makes it more difficult for rules to be accepted as legitimate.
Many people want to know the basis on which the rules are made and the scientific basis for the rule of six. The very fact that there are different regimes in different countries in the UK, all based on exactly the same science, suggests that there cannot be a precise basis for the figure of six. Is it just fingers in the air for each country of the UK?
Six means that a family with four children cannot have a family gathering with even one set of grandparents. If a couple invites another couple from next door and have two children upstairs, that counts as six, but if the couple who have been invited have three children next door, for some reason the three do not count. How can this be logical and how can it be fair in terms of spreading the risk of infection? It does not make sense. Why cannot children under 12 all be exempt, as in Scotland and Wales? What is the point of the rule anyway, when one can go into a carriage on the Tube or into an office or supermarket and find oneself positively close to a lot more than six people?
It becomes more difficult to understand when one considers some of the exemptions; for example, that for “linked families” and “support bubbles”. What exactly is a linked family? What exactly is a support bubble? Who decides whether a support bubble is genuine or just a convenient excuse?
The SI that we are considering has a limit of 30 for a wedding, but it has already been altered to 15 in another statutory instrument. The 30-person limit was guidance and not law in July but overnight became a 15-person limit on 28 September without any parliamentary process. This law affects many couples and an important sector of the events industry. A rather dry, cynical, mathematical friend of mine pointed out that, at a wedding, there are two main participants: each gets seven and a half friends. At a funeral, there is one body, who gets four times as many friends. This may not be the most appropriate way of looking at it, but it has a certain logic. Can the Minister explain what his logic is and why it is superior?
There are so many different events. At a christening, is it true that a baby counts as one of the total for the six? As for Halloween on 31 October, apparently parents will be fined if children go trick-or-treating in groups of more than six. The fine, I am told, is £200; perhaps the Minister will tell me that it is £3,000. Is the person who answers the door to the trick-or-treater included in the total of six?
Edmund Burke once remarked that
“laws reach but a very little way.”
There is a limit on how far laws can influence behaviour, and a wise Government do not pass over-intrusive laws.
My amendment refers to the difficulty of enforcing these rules. How is this to be done? Will police officers force their way into private houses? The police in Glasgow have announced that they have already broken up 300 gatherings in private homes. What will this do for public support for the rules? Two Ministers have suggested that people should inform on their neighbours. It is one thing to report your neighbour if you see that he is building a bomb factory, but if he is holding a barbecue for seven people, are you really going to report him?
I deplore any suggestion that we should become a nation of informers like the old East Germany. As the Minister said, the whole point of the rule of six was to simplify things, but when the regional variations are added on top, it becomes absurdly complex. As well as the national rule of six, there are seven local regimes, and that is on top of the variations between the devolved Administrations. As we saw the other day, Ministers, including the Prime Minister, struggled to explain what the rules were in the north-east of England—I sympathise, with the “gotcha” journalists all around him—but ordinary people face fines if they do not know what the rules are. A noble Lord on the other side of the House drew my attention the other day to a cartoon in one of the newspapers which showed a man in a pub talking to his companion, and he said to him, “I’ve just downloaded a wonderful new app. It tells you whether in the last 14 days you’ve been in close proximity to anyone who understands the rules.”
My amendment refers also to the lack of consultation. With this SI, as with others, we have the element of retrospection. The SI was introduced on 13 September and became law one minute after midnight—which probably left some people breaking the law in the wrong house at the wrong time. Last week, MPs won the right to have a say in the implementation of national rules. That is welcome; I hope it will really happen, and it should have happened earlier. Local government matters. Some mayors have complained about a lack of emails, a lack of phone calls and no documentation.
Last week, when we had the debate, I put to the Minister a direct question which he did not answer. May I put it to him a second time? The Health Secretary has talked of eradicating—that is the word—the virus. The PM, in his interview on “The Andrew Marr Show”, referred to bringing the virus
“to an end in the speediest possible way”.
What does this mean? Other Ministers give the impression that government strategy is simply to suppress the virus until there is a vaccine. If so, what is there to stop the virus bouncing back every time the rules are relaxed? Are we to continue suppressing the economy until there is a vaccine? What happens if there is no early vaccine? That is the key question I hope the Minister will answer. What exactly is the government strategy?
I am not arguing that we should let the virus rip. We need rules, but we have not had satisfactory explanations. I do not intend to divide the House, but I say this to the Government: this cat’s cradle of rules is in danger of collapsing under its own weight. Popular consent is undermined by arbitrary rules that are hard to follow. For rules to have legitimacy, people need to understand the rationale, and above all, government needs to observe the appropriate limits of laws.
Lord Hunt of Kings Heath (Lab)
My Lords, it is a great pleasure to follow the noble Lord, Lord Lamont, and surely he is right. It is one thing to publish and enact regulations, which, from the Government’s view, are simple, but there has to be some rationality behind them. I hope the Minister will answer the question. He said there was no science at all behind the plucking out of the figure of six; can he confirm that that is so? Also, I do not understand why the Government did not exempt young children in England. What on earth is the reason for that? Does he not agree that Government would carry more credibility if there was some confidence in the overall direction we are going in? As the noble Lord, Lord Lamont, has pointed out, different Ministers have been saying different things today about the endgame.
It is not surprising: we have seen a litany of failures, such as the original behaviour by Mr Cummings, which was so damaging to public confidence, and the contrast between the “world-beating” test and trace system and the shambles we have seen week after week. Watching Mr Johnson on “The Andrew Marr Show” on Sunday, when he spoke of the tension between the interests of the economy and public health, which, of course, we understand, he came across as indecisive, late to act and failing to find a way to steer between these two options. The result is that we have failed in both.
Public confidence is very important, and so too is parliamentary scrutiny. Mr Speaker intervened last week. Mr Hancock agreed that, where possible, the Commons would have a vote on national regulations in the future. What opportunity will this House have? In all the talk about new rationalisation of local lock- down regulations into three tiers, can we be assured that Parliament will debate this before they are introduced?
Baroness Barker (LD)
My Lords, on 21 September, the Joint Committee on Human Rights said:
“Assessments of the proportionality of measures must be up-to-date, based on the latest scientific evidence, and formulated as a result of a precautionary approach to minimising overall loss to life. Importantly, the Government must be transparent in justifying its decision-making, including in explaining how it has balanced competing interests and the evidence on which the balancing decision has been made.”
Twice, now, I have asked the Minister: What is the evidence base for this rule of six? I have had unsatisfactory answers.
On 14 September, the noble Lord said that the phenomenon they had noticed was that large groups of people, sometimes in pubs and other places, would seemingly say that they were from two households. It was
“proving to be extremely flexible in the minds of many people. Therefore, putting an integer into the formula makes it much clearer.”—[Official Report, 14/9/20; col. 1002.]
We now have regulations under which it is possible for a person to meet and socialise with 35 people from six households in the course of a week. The public has figured out that that, in public health terms, is an absurdity. It will not work. I am surprised that, during freshers’ week, more students have not got into trouble inadvertently due to the lack of clarity.
Between March and September, Dominic Cummings has, without competitive tendering, paid people and bodies such as Hanbury Strategy £946,000 to
“research public attitudes and behaviours in relation to”
the pandemic. That information is paid for by taxpayers’ money. It is not the property of the Government or the Conservative Party, so I ask the Minister: when will that and similar reports be published so that Members of Parliament can scrutinise the basis on which decisions such as these are being made? We are six months in, and the Prime Minister does not know what we are doing, local authorities do not know what we are doing and the general public are bamboozled by the lack of clarity and consistency. It is time for us to get real about this and stop putting people in danger.
Lord Bilimoria (CB) [V]
My Lords, we are talking about the rule of six. I declare my various interests.
The hospitality industry employs 4 million people and has been one of the hardest hit in this crisis. The British Beer and Pub Association said:
“Make no mistake, a 10pm curfew will devastate our sector during an already challenging environment for pubs.”
During the current circumstances, every hour of trading is crucial to the survival of pubs. For many, this curfew will render their business unviable. Can the Minister explain on what scientific basis this 10 pm decision was made? I understand that fewer than 5% of infections come from the hospitality sector, and evidence from our trade shows that 10% of drinks are consumed after 10 pm. So, why are the Government doing this, and will they remove this 10 pm restriction?
Another aspect is that Sir Bernard Jenkin, the chair of the Liaison Committee, wrote to the Prime Minister on 29 September, saying:
“We would also like to understand what new measures the Government will be taking to achieve the ‘moonshot’ of 10 million tests per day.”
Will the Minister acknowledge that mass testing is now available? In America, there is Abbott’s BinaxNOW test—10 million were produced last month, and there will be 50 million per month from this month onwards. This is a $5 test that gives a 15-minute result on whether, on an antigen basis, you have Covid or not, with 97-98% accuracy. Why are we not getting such a test over here and making it widely available? I have heard that this Abbott test has not been approved here in the UK. Could the Minister confirm this? If that is the case, why has the FDA approved it, and why have other countries, such as Greece, which has dealt with the pandemic relatively well—it has 36 deaths per million versus our 633, which is very sad. Is this a question of the best being the enemy of the good?
The Lord Bishop of Rochester
My Lords, like others, I tend to think that carrots are more effective than sticks. It is, therefore, vital, if people are to behave as the Government might wish, that they understand and assent to the reasons for particular restrictions.
My understanding of the rationale for the rule of six is that is about restricting the mixing of households. I understand that, and I seek, in my role and personally, to abide by that principle. But what the Minister has said notwithstanding, the anomalies do not help to gain that consent. If I have understood things correctly, I may, in a given period, be a part of more than one group of six, and thereby, I am multiplying the households with which I have contact. Yet, as many have observed—and there are other examples—a couple with three children cannot meet with two grandparents at the same time, even though that would only be two households in most instances.
I genuinely worry about the effect of these regulations, particularly the rule of six, on the long-term flourishing of family life and cohesion, if they persist for too long. My simple point is that the rule of six gives a kind of cliff edge, which could surely be graduated without compromising the principle about household mixing. I rather hope that Her Majesty’s Government will be able to think creatively about how that might be done.
The Deputy Speaker (Lord Palmer of Childs Hill) (LD)
I call the noble Lord, Lord McColl of Dulwich. He is not there. I call the noble Baroness, Lady Donaghy.
Baroness Donaghy (Lab) [V]
My Lords, we are caught between the Scylla and Charybdis of the so-called libertarians in the Conservative Party and the well-meaning, but not very competent, government action to deal with the pandemic. The regret Motion in the name of the noble Lord, Lord Lamont, is really a fundamental challenge to the Government’s strategy and should not be supported. However, those of us who want the Government to succeed in saving more lives need more clarity and consistency and, in particular, actual delivery of an effective test and trace system, with care homes and health staff given priority for testing and receiving results in good time.
It is very easy to mock with regard to funerals and weddings and to give examples of inconsistency. What is not easy is delivering effective policies that we all want to unite behind. Please could the Government do better?
Baroness Walmsley (LD) [V]
Mr Johnson presented the new regulations as a simplification and a strengthening of the coronavirus mitigation regime, based on consultation with the police and feedback from the public that the existing rules had become quite complicated and confusing. However, the Explanatory Memorandum recorded that a public consultation had not taken place, and nor had a regulatory impact assessment, which is why the noble Lord, Lord Lamont, has highlighted the public consultation issue. Perhaps if it had occurred, the public, or local authorities in particular, would have been able to highlight some of the illogicalities of the rules, because now they are even more confusing.
I, too, would like to ask why the rule of six in England includes children, even when they are upstairs in bed, when school-age children can go to school and work in their class or year bubble of dozens of children? This appears to be contradictory. Why are children under 12 excluded from the rule of six in Wales and in Scotland but not in England? Is there evidence in England that young children are more contagious than they are in Wales? If so, why can they go to school? I would really like to know on what scientific evidence the decision is based.
Secondly, I would like to ask about people with a learning disability or autism, for whom contact with family is vital in helping to maintain their well-being, especially during the pandemic. Current guidance on visitation is mainly aimed at care homes; other settings, such as supported living, have little guidance. There is no information, for example, about people with a learning disability visiting family in the community. Will the Minister ensure that this gap is filled? Will he ensure that people who may have difficulty social distancing or following other guidelines are considered when decisions are being made about the prioritisation of testing at a national and local level?
Viscount Waverley (CB) [V]
My Lords, remarks do not target the noble Lord, Lord Bethell. If possible, he would be mentioned in dispatches as being of excellent ministerial calibre, but he has political masters. The light-hearted but serious remarks of the noble Lord, Lord Lamont, can be extended beyond the lack of public consultation to constitutional neglect by the Executive in undermining the functions of Parliament to scrutinise and hold the Executive to account. Statements and questions have their place but are not sufficient. The other place must debate and be given the opportunity to impact directly the decisions of government.
The Government had a simple and practical choice: allow parliamentarians, who are the agents of the people, to fulfil their role, or decide at the outset that existing statutory provisions should be set aside. They chose the latter course. This undermining of the role of Parliament as the prime guardian of our constitution is regrettable; provisions of the Civil Contingencies Act 2004 that ensure appropriate parliamentary and civil consultation were at their disposal. The subsequent manner in which secondary legislation has been introduced has brought widespread confusion, and council leaders and some police chiefs are uncertain how to interpret local requirements, let alone enforce them.
The mindset of inadequate “consult and inform”, together with the impracticality of enforcing measures, should be reversed, with correct governance reinstalled. The urgency of the situation requires it.
Lord Lipsey (Lab)
Balderdash. Twaddle. Gobbledegook. Piffle. Oops, I am sorry, my Lords, I misspoke. I do not want to talk about the content of this order but about its communication, or rather non-communication, led by the Prime Minister.
Every time I speak to friends, I ask them this question: we all know that we are allowed to see only six people indoors at once, but can they be different people, or does it always have to be the same six? Of those who claim to know, a majority think that it is okay to host two guests or family members one night, and two different guests or family members another. But if we are to believe the noble Lord, Lord Bethell— I always believe him—they are wrong, as he said this afternoon and in a Written Answer to me on 10 September:
“Support bubbles should be exclusive. This means people should not … make connections with multiple households.”
I accept that communicating these rules is hard, especially since the utterly meaningless “Stay alert” was substituted in England for the clear, if unpalatable, “Stay at home”. It is particularly hard if, like me, you live in both Wales and England, or if you live in one of the local areas subject to stricter restrictions. It has been made immeasurably harder still when Ministers, from the Prime Minister down, are quite unable to spell out from day to day, even if they know, what the regulations they have flashed through Parliament with minimal scrutiny mean.
Lord Robathan (Con)
My Lords, I give my commiserations to my noble friend the Minister, who yet again finds himself in the stocks on this particular debate. I support my noble friend Lord Lamont’s regret Motion, which was introduced with typical aplomb and great good humour. I point out to the House that humour and ridicule are not far separated. I hope that he might divide the House, but he seems to be a little bit pusillanimous on this, which is not like him at all.
By what can we judge the rule of six? There was no consultation, there has been no parliamentary scrutiny until today, and, as the Motion says, it is totally impractical. Every day, and yesterday would be no exception, an average of 1,700 people die in the United Kingdom. According to the National Health Service, yesterday the total number of coronavirus deaths, every one tragic, was 19. Could my noble friend confirm that that is correct? The NHS news release yesterday of deaths in hospital in the preceding 24 hours was 10, all aged between 67 and 91, and all but one patient, who was aged 85, had known underlying health conditions.
Does my noble friend think, therefore, that the rule of six is working? Surely it has not had long enough to stop infections, and it has been widely ignored, as we hear. He said that it would reduce by one-third the number of people gathering, but I am not sure that is enough to stop the spread of infection. Does he think that actually this rule of six is entirely pointless, and that it is entirely pointless to stop young people meeting as they are not going to suffer serious illness or death? Could he also explain “long Covid”, to which he often refers, because is not any respiratory illness difficult to overcome? If you have pneumonia, it is quite likely that you may spend up to six months with effects from that.
Finally, on testing, what proportion—I am told it is a high proportion—of these tests bring back false positives? It seems to me that the testing, and the number of infections, is not the most important thing. The most important thing is who is dying and who is suffering very serious illness as a result of getting Covid.
Baroness Mallalieu (Lab) [V]
I, too, am sorry for the noble Lord, Lord Bethell, but the fact is that the Government are making a mess of handling this health crisis. As the mayor of Manchester has said, the public have had just about enough of it. Parliamentary democracy has been sidelined, and basic civil liberties have been cancelled. In their place we have been given ever-changing draconian regulations, often incomprehensible, unenforceable and apparently based on speculation, someone’s pet theory or pure guesswork, and all done without any prior debate. This regulation is a good example.
Back in March, we gave the Government almost carte blanche; we wanted them to succeed and we still do. Now, we know a great deal more about Covid and its potential death rate. More people have died of flu and pneumonia over the same period, and many more are likely to die from conditions that have been untreated as a result of this epidemic. We also know that current repressive policies are destroying our industries, our culture, our sport and indeed our way of life.
Randolph Churchill said, “Trust the people”. The Government have not done that, but if they do not do it then people will stop trusting the Government, and that is what is happening. Of course we need rules, but we need sensible ones which everyone can see are sense and which are enforceable. Some people are foolish and irresponsible, and they are now, but no one wants to get Covid and most people will co-operate with things they think are worth doing. If you order people to obey laws which they can see make little sense and which are almost wholly unenforceable, and if you try in this particular regulation to ban things such as “mingling”—whatever that is—you undermine respect for the whole rule of law and you will come to a tipping point in compliance, even with the most law abiding among us. We are reaching it now, and I support the noble Lord, Lord Lamont.
Lord Bourne of Aberystwyth (Con) [V]
My Lords, I strongly support a very strong response to this virus and believe we need to bear down upon it very heavily. An unadulterated libertarian approach to this public health crisis would be disastrous for our country and our people. I believe the public will respond to clear, consistent messaging, and I urge the Government to ensure that such messaging is better focused, clearer and consistent, because that has not always been the case. Indeed, there is often confusion about the basic messaging. I agree with other noble Lords and with my noble friend Lord Lamont that we need more parliamentary input and proper scrutiny in order to be able to look closely at the regulations and offer support to the Government.
On a completely different front, although one that is clearly related to the virus, I would like to say something about Chris Whitty and Sir Patrick Vallance. It was dreadful that they were attacked in the other place. I am very pleased that that has not been the case in your Lordships’ House, because they are public servants and not able to respond. They are doing a very difficult job in difficult circumstances and they deserve our support.
I would welcome confirmation from my noble friend that ultimate success will come only with a vaccine, and, in the shorter term, with effective testing and tracing. Clearly there is still much work to be done on both of those fronts. On the former, it is more difficult for the Government to take a lead on the vaccine, but in relation to test and trace, they really do need to get their act together.
I support these regulations. I cannot support the amendment, though I understand the motivation of my noble friend Lord Lamont in bringing it forward.
Baroness Wheatcroft (Non-Afl) [V]
My Lords, these regulations came into effect 28 minutes after they were laid. That is far from satisfactory. The Minister himself accepted that there were many inconsistencies in the regulations now. As others have pointed out, the lack of logic is what makes people so angry about the ever-changing rules with which they are expected to comply.
The noble Lord, Lord Lamont, raised many valid questions, including the contrasting rules between weddings and funerals. A friend of mine, a priest, is suggesting that there should not be any split families over Christmas: the host simply has to slaughter a turkey and stage a humanist funeral. Such jokes arise because the regulations do not make sense. I can see the point in limiting the mingling of households, but where is the sense in preventing grandparents, from one home, meeting with a second household of their son, his partner and their three children? Regulations need to make sense, but they also have to be based on a degree of humanity if people are to abide by them.
Many families are now facing problems with childcare. It is fine under the regulations for them to send their offspring to a nursery or to a registered childminder, but how much more sense might it make for those children—maybe from two different households—to go to the home of their grandparents to be looked after while their parents contribute to the economy? Would that not be a healthier solution? It would limit the mixing of households, but it is not allowed. We need some common sense.
Lord Wood of Anfield (Lab)
My Lords, governing in these torrid, complex, challenging times is not easy. None of us should pretend that it is. I have three questions and a plea for the Minister, specifically about the rule of six.
First, given that scientific studies have shown that the risk of transmission is 20 times greater indoors than outdoors, why does the rule of six abandon that distinction? I know the answer: simplicity. I understand the force of that, as the noble Lord, Lord Lamont, said. However, if the Government want to use the authority of science to generate legitimacy for and adherence to rules, and the science suggests that a rule is not grounded in science, they must at the very least bring the public inside their reasoning for why there is an exception. You cannot simply cite science and say that it always supports your conclusions, and not mention it when it does not, and then simply keep citing the mantra: “We will always be led by science”.
Secondly, have the Government considered the unintended perverse behavioural effects of the rule abandoning this outdoor/indoor distinction? Eliminating the distinction between gathering in groups of up to six outside, where the risk is very low, and gathering in groups of up to six indoors, where it is around 20 times higher, means that people who want to break the rules, and are determined to do so, are incentivised to gather indoors and not outdoors, where the rules are more likely to be enforced. Why did the Government not follow the Welsh option of having more relaxed rules for outdoor gatherings?
Thirdly, if we look to our partners in western Europe, we see variations in rules, of course, but also some constants. Public gathering limits are considerably higher: 10 in France, 50 in Germany, and none in many countries. Private household gathering limits, apart from in Ireland, are rare, and mask wearing is considerably more compulsory in public than in the UK. Taken together, this suggests the UK is becoming an outlier: it is restriction heavy and face-mask-wearing light relative to other countries. Is this because our science knows something that they do not, or is it because the British people behave differently from those in other countries? What is the reason for the UK being an outlier in the portfolio of measures we seem to be taking?
Lastly, I make my plea. The Government rightly adopt a mixture of national rules and local variations. However, across England, local authorities have consistently complained about an absence of consultation, decision sharing and refining of rules in the light of local circumstances. Can the Government please now commit to greater responsiveness and flexibility towards local considerations, to allow a local refinement of rules that are, after all, unlikely to be equally appropriate for Camden, rural Dorset and Manchester?
Lord Cormack (Con)
My Lords, here we are again: post-legislative scrutiny and a hapless Minister, who has worked with prodigious vigour—we all salute him for that—given a frankly indefensible brief. The hallmark of a good law is clarity and simplicity, so that we all understand what it is. Here we have a law that is continually riddled with new anomalies and new inconsistencies. My noble friend Lord Lamont pointed out a number of them with his customary good humour, but it is not really funny, is it? This is touching the lives of people throughout our country, in a cruel way in many cases.
The rule of six was most effectively ridiculed in your Lordships’ House a week ago. Not that it was a directed ridicule, but our new noble friend Lady Morrissey said with quiet pride that she has nine children, seven of whom were still at home. We have got to have a law that can be seen to be fair. We have got to have laws that can be seen to have been properly discussed and debated in the other place, and indeed in your Lordships’ House where there is an accumulation of ministerial and medical knowledge second to none in any chamber in the world. We really must get the horse before the cart, because we are not doing that at the moment. Of course I feel sorry for my noble friend, who I genuinely like and admire, but he is being given an indefensible brief. May we hasten the day when he has one that he can truly defend and that we can all support.
Lord Liddle (Lab)
My Lords, I put my name down to speak with some reluctance because I am getting fed up with saying the same thing about the lack of parliamentary accountability and the way in which these regulations have been introduced. It is scandalous and high time that something was done. I agree that the most important point was made by my noble friend Lord Hunt, who asked whether the Minister could guarantee that when further major changes to these regulations are introduced—the new so-called three-tier system—the House can debate them before they are implemented and become law. This could be done through new arrangements for a special committee, agreed through our Procedure Committee, or by the whole House.
The noble Lord, Lord Lamont, gave a sparkling speech, much of which I agreed with. If regulations can be ridiculed in such a successful manner, they cannot be sensible and command public assent.
I end on a policy point. Far from stressing the rule of six, if we are to control this disease, it is most important to get the test and trace system right and tackle the fact that a low proportion of the people being contacted and asked to self-isolate are doing so. Getting that system right and involving local authorities on the ground is most important, as well as personal contact to persuade people to self-isolate.
Baroness Neville-Rolfe (Con)
My Lords, I, too, support the amendment of my noble friend Lord Lamont on two grounds. The policy is wrong for reasons that I will explain, and I am disturbed by the level of scrutiny the regulations have enjoyed.
I appreciate that life is difficult for the Government and that there are many uncertainties, which is not dissimilar to the problem that businesses face most of the time. The more difficult the problem, the more important it is to keep a cool head and have proper impact assessments or cost-benefit analyses—call them what you will. The bottom line is that urgency is not a good excuse for bad decision-making.
Such an assessment should cover at least four issues. First, is there a medical and scientific case for the measure? There seems no logic behind the rule of six other than a general wish to slow down the infection rate, but we can surely do better than that. My noble friend Lord Lamont set out the nonsenses clearly in his typically brilliant and witty speech. Dr David Strain of Exeter Medical School, in an area without much Covid, put it succinctly. He said:
“There is no science behind it and there is no logic as to why six would be useful.”
Therefore, my first question to my noble friend the Minister is: what is the scientific justification for the measure? I have asked this several times and have yet to receive a satisfactory reply, including in the Minister’s introduction.
The second issue, not yet focused on, is whether the rule can be justified economically. It is killing our service sectors—pubs, entertainment and spectator and community sport. Where is the assessment of damage that the Government should have done before embarking on such a huge step? Socially the measure has many adverse effects, notably in separating families. My third question is whether these adverse social effects are necessary or acceptable. I suspect not. Fourthly, can such a rule be implemented and enforced properly? On that, we know the answer: it cannot.
The measure fails on all four counts. Accordingly, it should be replaced with something more realistic and less damaging. I endorse everything that my noble friend Lord Lamont said regarding scrutiny.
Lord Bhatia (Non-Afl) [V]
My Lords, although the requirement in England limiting group meetings to no more than six people, indoors or outdoors, came into effect on 14 September, data from the Joint Biosecurity Centre has indicated that the incidence rates of Covid-19 around Birmingham are significantly above the national average, and increasing. The data also indicated that a high proportion of the new cases were due to transmission within or between households. The regulations therefore impose tighter restrictions on those living within the protected areas of Birmingham City Council, Sandwell Metropolitan Borough Council and Solihull Metropolitan Borough Council. They prohibit those living within the protected area from gatherings of two or more persons from different households in private dwellings in or out of the protected area, except for linked households as defined.
The regulations allow visits to care homes only in exceptional circumstances. When the restrictions were announced, the Secretary of State for Health and Social Care, Matt Hancock, said:
“After seeing cases in the West Midlands continue to rise, the decision has been taken in collaboration with local leaders to ban households mixing in Birmingham, Sandwell and Solihull.”
Can the Minister say how many people have been arrested or fined since the rules were declared?
Baroness Massey of Darwen (Lab) [V]
My Lords, safety is, of course, paramount. Somehow, the messaging from the Government seems not to be acceptable to many. It is seen as irrelevant and sometimes incomprehensible. A young man from Leicester said to me recently, “The advice from the Government about mixing with other people makes no sense—too complicated. I would just like 100% clarity on what I can and can’t do but with an explanation based on the science behind any restriction.” It concerns me that local councillors, political leaders and people in communities complain about a lack of consultation. The Mayor of Middlesbrough called it
“a monstrous lack of communication and ignorance”.
Communities need to feel communicated with. I have much sympathy with the amendment to the Motion moved by the noble Lord, Lord Lamont.
I give another example. The other day, I asked the Minister a question about encouraging people to take up the NHS Covid app. One noble Lord asked how many university students had downloaded it. The Minister replied that he could not give an answer to a “reasonable question” and that we did not have that kind of demographic insight. I do not blame the Minister but that suggests that we have no knowledge of who is doing what at a local level, including in the hotspots in the north of England. I suggest that we need these granular demographic insights and efforts to influence behaviour, not only locally but in specific cases, such as among university students and younger people. We need to attract and involve younger age groups in the light of findings that, while few may be ill, many may have the virus but be asymptomatic. We also need insights from older age groups. Asking people to restrict their movements and groupings, and behave differently, means involving them in decision-making. The Government handing down edicts will simply not work.
Baroness Noakes (Con)
My Lords, I endorse everything that my noble friend Lord Lamont said and I shall list as many of my concerns with the regulations as I can in the two minutes that we are allowed.
First, the rule of six is not based on science. Indeed, the Minister revealed its basis when he said on 14 September that the Government had relied on
“marketing advice from our communications department”.—[Official Report, 14/9/20; col. 1000.]
He also referred to focus groups. The Minister might think that that is science-based but most would disagree with him.
Secondly, Ministers would double down by encouraging snitching. That is not the kind of society I want to live in. Thirdly, the rule lacks logic. It is illegal for seven children to gather together to feed ducks, but it is perfectly okay for 30 adults to go out shooting them—the ducks, that is.
Fourthly, the order lacks precision. It makes mingling yet another way to break the law, but does not define it. On 14 September, the Minister said that it was
“a concept which, frankly, I do not think needs much description”.—[Official Report, 14/9/20; col. 999.]
Frankly, I think that that is an unacceptable way to legislate. Fifthly, as usual, there is no analysis of impact or alternatives and no attempt to explain the balance between the competing interests of our economic future, non-Covid mental and physical health matters and the narrow Covid impact.
I could go on, but sadly I have run out of time. I regret that my noble friend Lord Lamont is no longer pursuing his earlier fatal Motion. That would have had my vote.
The Deputy Speaker (Lord Haskel) (Lab)
The noble Baroness, Lady Uddin, has withdrawn, so I call the noble Lord, Lord Hutton of Furness.
Lord Hutton of Furness (Lab)
My Lords, I hope that the measure we are discussing today will have the effect that the Minister and the Government intend—that it will limit the spread of the coronavirus in our society. But anyone who thought that the rule of six was going to inject some clarity and simplicity into the regulatory framework needs only to read the 25 pages of these regulations and the seven new definitions, along with the interesting new legal concept of “mingling”, which has never before surfaced in British legal history; good luck to the judges in making sense of that particular term.
I hope that the measure will have some impact—we all want it to. I have three brief points to make; many of them have been made already. First, the Government now have to find a different way of legislating to impose these restrictions. I do not believe that the Public Health (Control of Disease) Act 1984 is a viable platform for this legislation because we need more parliamentary scrutiny. I echo the noble Viscount, Lord Waverley, in inviting Ministers to reconsider the use of the Civil Contingencies Act 2004. As a minimum threshold of parliamentary scrutiny in this field, where our cherished personal freedoms are being overridden, the minimum requirement of 30 days’ duration for any new law is a threshold that we should follow.
Secondly, but better still, the Government should consider again devolving much more of the responsibility for imposing local restrictions to tackle the Covid epidemic to local authorities. I do not think that central government can manage the workload of doing this. The Government have centralised everything in their response to the Covid pandemic and that is failing. They have to find a different way of proceeding. If we go on this way, we will run the risk of civil disengagement and, worse still, of civil disobedience, which would bring disrespect for the law into mainstream public behaviour in the UK, which would be a tragedy.
Thirdly and finally, at the very least, we must avoid examples of last-minute lawmaking behind closed doors. Now that Parliament is sitting again, there can be no justification whatever for laws which impact on the lives of so many people being introduced with 30 minutes’ notice from behind closed doors.
Lord Dobbs (Con)
My Lords, “hundreds of thousands” of people would die if we simply “let the virus rip”. That is what the Health Secretary said last week, but I am baffled because I have no idea who is making these silly suggestions. The Prime Minister has said that some people think we should
“give up and let the virus take its course”.
Who is proposing that? It worries me when we go to extreme lengths to deal with extreme arguments; that only adds to the confusion, and there is confusion. I share the confusion of my noble friend Lord Lamont about the 10 pm pub curfew and about how we are going to get through Christmas with the rule of six.
Kate Bingham, the head of the Vaccine Taskforce, in an interview with the Financial Times, has offered a rather more interesting insight: less than half the population is going to get the vaccine—if there is one. There will be no vaccinations for the under-18s because it is aimed primarily at those over 50. Looking at the death rates rather than the infection rates, that seems to make great sense. It suggests that we can and must be far more flexible in our approach by differentiating between those most at risk and younger, healthy people who are not going to die from the disease. If we can do that and put aside the one-lockdown-rule-fits-all approach, we could put our economy back into shape much more quickly. We could speed up medical help for non-Covid patients and we could strike a stronger balance between the competing medical, economic and social tensions. However, it is news to most that not everyone is going to get the vaccine and I hope that my noble friend will be able to shed a little light.
Lord Beith (LD)
My Lords, I thank the noble Lord, Lord Lamont, for tabling his amendment to focus attention on the deficiencies of process which have attended these and related regulations. I very much welcome the fact that my noble friends Lady Bakewell and Lady Walmsley, the noble Baroness, Lady Wheatcroft, and others have pointed out some of the awful inconsistencies that are resulting from these kinds of regulations. The noble Baroness, Lady Massey, quite rightly pointed to the failure to consult closely with local government in a number of instances where, if proper consultation had taken place, it could have made a real difference.
Confusion is widespread, as is inconsistency. A resident of Berwick, where, according to the Government’s dashboard figures, there are three cases per 7,000 people, is being subject to the same restrictions as those in parts of Tyneside 60 miles away, where in one area there have been more than 280 cases per 7,000 people. The regulations lack any ability to distinguish. Indeed, a citizen of the north of England, whether the north-east or the north-west, having secured a copy of the regulations we are debating today, might think that they would be able to glean what the law is, but they would be mistaken because they would also need to look at a series of other regulations. They would find themselves bound not just by the rule of six but by the rule of two, which is actually the rule of not meeting anybody else at all. You are not even allowed to meet one other person; you are the only person you are allowed to meet under those regulations.
To understand the law, the citizen would also need to look at the Health Protection (Coronavirus, Restrictions) (North of England, North East and North West of England and Obligations of Undertakings (England) etc.) Amendment Regulations 2020, which were made on 29 September and came into force at midnight on that day, but were laid before Parliament only at 10.30 am the following day, and therefore accessible to us—10 and a half hours after they had come into force. As far as I could establish, they were not on the Government website at 8 am that day. The Prime Minister had no idea what the provisions were anyway, while the previous statutory instrument relating to the north-east had to be amended within hours of being made.
I welcome that the Government have promised parliamentary votes on major orders of national application, but I have to say that the loss of freedom in Berwick, Blackburn or Bolton is no less significant than the loss of freedom in London and other parts of the country. Some of these local orders are of massive significance in terms of the civil liberties they abrogate.
I agree with the noble Lord, Lord Hutton of Furness, who made a related point, that we need to question the Government’s attitude to the made affirmative procedure under which orders come into force before Parliament has considered or approved them. They have been overused. I recognise that sometimes there is a case for using them to guarantee that an order will come into effect quickly if there is a very serious need for it, but Parliament can act quickly if the Government are prepared to co-operate. I hear criticisms of Parliament, such as by the noble and learned Baroness, Lady Hale, for not having considered and debated these matters, but the Government control the agenda in the House of Commons, so Parliament’s inability to act quickly is a matter for the Government to resolve. I am glad to see that the Minister has noted that point because it can be the Government who hold up debate.
I do not see why new restrictions which have been announced many days—or even a week or more—before they come into force cannot be debated. When they are announced, the order should be laid before Parliament and strenuous efforts made in the days before they come into force to have at least the short debates for which our procedures provide. The capacity for democratic control over major incursions into people’s freedoms should not be diminished because not enough resources have been made available to draft the orders in time.
Parliamentary scrutiny can identify bad drafting and increase the chance that at least some people inside and outside Parliament will actually understand what the law is. There are several threats to the effective application of emergency measures: when the public do not understand them or the reasons behind making them, a point which has been illustrated in this debate by a number of noble Lords; when those responsible for enforcing them do not know what is the law and what is guidance, a mistake which has even been made by police forces and the Crown Prosecution Service; and when the measures are themselves defective to the point that even those responsible for carrying them out have failed to recognise that they are, so that prosecutions have to be abandoned or fail. All these problems would be addressed and reduced by parliamentary scrutiny. As the noble Lord, Lord Lamont, has argued, there needs to be a clear government strategy and we need to know what it is.
Baroness Thornton (Lab) [V]
I start by asking the Minister a procedural question, as other noble Lords have. Will we in this House get to discuss the statutory instruments following the debate on the renewal of emergency legislation in the Commons? We know that the Commons will be able to vote. My understanding of what the Minister has said is that we will not get to see these statutory instruments in advance. I had been rather optimistic and excited, because I thought we might see an end to the dozens of pointless, time-expired statutory instruments that we have had to endure for the last few weeks and months—and indeed can look forward to between now and Christmas.
I fully understand why the noble Lord, Lord Lamont, is frustrated by the rule of six and has asked many pertinent questions. I thank the noble Lords, Lord Hunt, Lord Liddle, Lord Lipsey and Lord Wood, and the noble Baronesses, Lady Donaghy, Lady Massey and Lady Mallalieu, for making strong, sensible and quite often witty remarks today—which is quite hard when you are discussing statutory instruments that have already been in place a couple of weeks. The theme running through their remarks, and those of other noble Lords today, is that we are all fed up with these unsatisfactory legislative and accountability decisions.
I have a few questions of my own. As we know, it is now illegal for groups of more than six to meet. That is simple and clear, we are told by the Secretary of State and the Prime Minister. The law applies to all parts of England, except of course places with local lockdown rules, where the rules may be tighter. It is therefore clear, as long as you know the rules and the lockdown situation in your area. We are told that the reason for this restriction is the rise in coronavirus cases in England. The Government have decided to lower the number of people allowed to socialise at any one time to help keep people safe. Scotland took similar steps, cutting the number of people who can meet but excluding children under 12. Wales too has its own rule of six, which came into force on the same day, but it does not apply to children under 11 and covers only indoor meetings. Northern Ireland has stopped people meeting indoors completely, but allows six people to meet in the garden and up to 15 in a public area.
Can the Minister please point me to the science that has led to all these different decisions? His explanations did not provide that, and I dispute the idea of this being at all simple. We did not see an impact assessment. Would it be possible to see one? When is the effectiveness of the rule of six to be reviewed? When will there be an assessment of its impact on the young? The Children’s Commissioner has asked for children to be excluded from the rule in England, and I agree with that.
Last week, when she responded to the Prime Minister’s Statement, my noble friend Lady Smith pointed out that she could have breakfast with one group from this House and lunch with a different group—I think she even invited some of us to join her for a curry in the evening. This was to demonstrate the fact that the rule is flexible and probably rather unclear. I think that she is right, and I am looking forward to having a curry with my noble friend.
These rules will work only if people comply. While the police have powers to fine people who break the rule of six, forces in England and Wales have said that they will do so only as a last resort. I do not understand how that works, because people will be in a group of six or more only for a very short time. How on earth will the police issue warnings to all those people and then watch them to see whether they get themselves into another group of more than six? Can the Minister confirm how many fines have been issued for breaking the rule of six and their value? The penalty for failing to wear a mask or breaking the rule of six has now doubled to £200 for a first offence. I would like to hear from the Minister whether that is working as a deterrent.
The Metropolitan Police also said that officers will not generally pursue people retrospectively—whether famous or otherwise—if photographs or video footage emerge of them breaking these rules, including the rule of six. Does the Minister agree with that approach? Does he share my concern that people flouting the rules and getting away with breaches undermines public faith in their effectiveness? Perhaps that could act as a deterrent.
On the other hand, does enforcement of the rule of six rely on people grassing up their neighbours? Can the Minister confirm how these regulations will be enforced in public spaces? For example, if an employer suspects that two or more groups of six in his pub are actually together, and in breach of the rules, what enforcement action are they required to take?
One of the more controversial exemptions from the rule of six is for those involved in certain sports, including shooting and hunting. Will that also be reviewed? Does the Minister accept that these are often social occasions and that, if we follow his line of thought on pub curfews, people will be less likely to observe social distancing guidance across the piece?
In other words, it is a very confusing framework and the rule of six is very far from being simple.
Lord Bethell (Con)
My Lords, I am extremely grateful for this debate, not because it was particularly enjoyable for any Minister to be described in the terms that I was—although I am grateful for some of the kind words—but because it was an important one. What I heard, loud and clear, was huge frustration: it was like listening to an elastic band being stretched to breaking point—not a pleasant sound. However, it was an important moment when we heard quite clearly the deep and heartfelt concerns of noble Lords about the key issues around this statutory instrument. I will address those concerns in turn.
Fundamental is the science, and I will talk a little about the background to this statutory instrument because there is clearly enormous concern about that—about the Government’s strategy and its complexity, and about the sheer volume, sophistication and confusion of the guidelines and the requests that are being made to the public, and the process by which these instruments are being put together. It is a lot to bite off, but I will cover it as well as I can.
I want to convey to noble Lords that in the past six months our understanding of the virus has changed dramatically. From receiving telephone calls from the front line of the health system we now have a massive information system plugged into the Joint Biosecurity Centre, which was designed by the best minds that the Government have from the intelligence services, the data services and the Cabinet Office. That gives us a very clear picture of what is going on on the ground. Some of that information is data flows from the health system, hospital logs and test and trace, while some is local intelligence from infection control teams on the ground, local resilience forums and local councils. Some of it is then filtered by analysts with epidemiological training, who plug into the proper scientists—the white-coated scientists—who provide their own analysis.
I do not offer this Chamber a volume and say, “This is the science”. Rather, I offer a huge amount of technical insight that is pored over every day, is delivered in extremely sophisticated dashboards, is interrogated by inquiring minds and is challenged by sceptics. We now have a much clearer day-to-day picture of what is going on, in the country as a whole and in different parts of it. When we drafted these regulations, we considered all that information.
The story being told in mid-September was that the public had miscued: that they had, during the summer, massively relaxed their behaviour. The key form of transmission—the trigger to a huge amount of infection —was families taking an extremely lax interpretation of what social mixing they could do. The insight that came from the ground—not from the top—was that we needed to give a much clearer, more easily understood and more enforceable story, or instruction, to the public in order to separate people.
For all that has been said in the Chamber, it is clear to all of us how this disease is spread. It is spread in the aerosol from our breath and by our touching and feeling things. At the end of the day, what we are talking about here is something deeply uncomfortable. We can rightly challenge the regulations for being too complex, and I have enjoyed the speeches that poked fun at some of the difficult and potentially ludicrous parts of sophisticated and complicated guidelines. I can hear the frustration in that kind of challenge, but the bottom line is that social distancing means putting space between ourselves and the people we love. There is no avoiding that bottom line.
You can try to blame the laws, if you like, and blame the regulations for being at fault—“We’ve drafted bad regulations”. But it is not the regulations; it is the space. We all want to spend a lot more time with the people we worry about and care about. We want to enjoy the conviviality of groups we know and trust. We want to plug into the networks of spiritual connection, interest, power and familial connection. These regulations emphatically break those connections. Where there was love, they put in space. I cannot apologise for that. I cannot change it or find some form of words that transforms that simple fact, or in any way changes the grim realities of how we have to limit the transmission of this disease.
I completely hear the ridicule. I feel the frustration and I do not doubt that things could have been done better. Some of these regulations could have been written better. My noble friend Lord Lamont has rightly queried the differences between weddings and funerals. There is an explanation for why they are treated differently, but it would be churlish of me to stand here and plod through it in a bureaucratic and, frankly, frustrating manner. However, I would be glad to write to my noble friend with that explanation. The honest truth is that they are hurtful, they do damage the way in which we show our love, and they will leave a lasting effect on the psychological health of the country and on the economy. I would like quickly to address those two points.
I have been questioned on the strategy many times but, as most noble Lords know, the strategy is clear. The Prime Minister was clear about it last Thursday, as was the Chancellor this morning. We will suppress the virus, while supporting education and the economy, until we eliminate it by vaccine, therapeutics and mass testing. This is a middle way. It emphatically is not a national measure to lock down the country—we tried that and it was horrible, although successful and made a big difference—nor is it running hot. It is the middle way. Therefore, we have to accommodate. We have complexity. We are using local lockdowns and we are trying to instruct by consent, rather than by force. We are trying to be flexible with those who have special needs. Most importantly, we are letting those trying to defend their jobs and education pursue those interests. Those are our two major priorities.
Time is tight, so I will address just a couple of points. As a father of four children, three under 12, I completely hear the point on children. There are many parents and grandparents here who feel it harshly, but the research from the front line was crystal clear: people were using children’s birthdays, drop-offs and congregations around children to flout the rules and create events where infection was happening. Clarity and preventing those nodes of transmission became a priority, which is why we have pursued the route we have.
In reply to my noble friend Lord Dobbs, I can be crystal clear: the Vaccine Taskforce has done brilliantly in researching, identifying and buying vaccines. Advice on how they will be distributed will be given by the JCVI. Our policy on vaccine distribution will be to listen to the JCVI, which has yet to pronounce on it.
My noble friend Lord Robathan is right that some of long Covid is post-viral fatigue, but there is more to it than that. Neurological, cardiac and renal failure are being seen in many people, which is extremely alarming.
I have to draw stumps there. I reassure the House that we have learned the lesson about parliamentary scrutiny, which builds support and brings the light of scrutiny to these measures. We would not have had this debate today, with all the pain and frustration that has been present, if we had had more debates like it previously. My right honourable friend has given a commitment in the other place to bring measures to the House more promptly. In response to the noble Baroness, Lady Thornton, it will be up to the usual channels and the Joint Committee on Statutory Instruments to bring these instruments to the Chamber for debates more promptly, as has rightly been suggested today.
Lord Lamont of Lerwick (Con)
My Lords, I thank all noble Lords who spoke. We had an excellent debate, with many good speeches and many new points made. I also thank the Minister, for whom a lot of sympathy was rightly expressed. He comes here for debate after debate, is attacked and attacked, and bears it with great good humour and is absolutely on top of his brief. He said he heard the sense of frustration in this debate loud and clear and would take that away; I hope he conveys that to the Government. He emphasised again and again that the Government have more and more information. It is one thing to have that, but are we using it to get on top of the virus? I am not sure I heard an answer to my question about the virus just bouncing back every time we go through suppress, relax, suppress, relax.
There was near unanimity in the House that the message has not been clear. It is messy and confused, which makes compliance with the law more difficult. These are not just rules; they are laws. People are subject to arrests and fines. Compliance is much more difficult without public acceptance. Important points were also made about the need, as the Government have said, to consult Parliament well in advance of legislation. That is profoundly important, but I am grateful to the Minister for saying that he has heard the frustration of the House and will convey it back to the Government. With that, I beg leave to withdraw my amendment.
Arrangement of Business
Baroness Penn (Con)
My Lords, there is an issue with the sound in the Chamber, so we will need to adjourn for a further 15 minutes, until a convenient moment after 3 pm.
Debt Respite Scheme (Breathing Space Moratorium and Mental Health Crisis Moratorium) (England and Wales) Regulations 2020
(3 years, 6 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Agnew of Oulton
That the draft Regulations laid before the House on 9 September be approved.
The Minister of State, Cabinet Office and the Treasury (Lord Agnew of Oulton) (Con)
My Lords, the regulations before us today will establish a breathing space scheme for individuals who live in England and Wales. This is a temporary period of respite from creditor action to help people in problem debt consider their options and engage with professional debt advice. To many in this Chamber, the scheme will need no introduction, as noble Lords were the driving force behind amendments to the Financial Guidance and Claims Act 2018, under which the Government present these regulations today. Since then, of course, the Government have had to make unprecedented policy interventions to save jobs and support livelihoods due to the impact of Covid-19, so the need for this scheme is even more pressing.
A breathing space—or, to use the term in the regulations, a moratorium—will pause most enforcement action, creditor contact, and interest and charges on a person’s qualifying debts. There are two kinds of moratorium. The first, a breathing space moratorium, lasts for 60 days and is open to anyone who engages with debt advice and meets the eligibility criteria. The second, a mental health crisis moratorium, available where a person is in mental health crisis treatment, extends those protections for as long as that treatment lasts, plus 30 days.
Professional debt advice providers have a central role in the scheme. They can initiate a moratorium for anyone who meets the relevant eligibility criteria and conditions. They should not do so if it would be inappropriate—for example, if their client could go into a debt solution like an IVA or bankruptcy straight away, or if they could manage their finances without a moratorium. There are other important safeguards to ensure that clients are complying with the scheme’s rules as far as possible. For example, certain ongoing liabilities such as a mortgage or rent must be paid as they fall due during a breathing space moratorium. If they are not, or if the client is not engaging with debt advice, the debt adviser can decide whether the breathing space moratorium should continue.
Of course, the Government recognise that, during mental health crisis treatment, it will be harder to engage with debt advice in this way and that it may be less reasonable to expect the individual to keep up specific obligations on them. The scheme anticipates this, with alternative access for people in mental health crisis treatment to a moratorium with equally strong protections that last longer, and where the conditions on the debtor are relaxed. This type of moratorium can only be accessed once an approved mental health professional has certified that a person is in crisis treatment. The debt adviser need not provide advice directly to the person but will still check that the relevant eligibility criteria are met and that an AMHP has provided the necessary evidence. A breathing space moratorium can only be accessed once every 12 months, but there is no limit to the number of times that a person can enter a mental health crisis moratorium.
I will now move on to implementation and begin by addressing the recommendations made by the Secondary Legislation Scrutiny Committee. It recommended that the Government consider establishing a comprehensive debt adviser register. Access to professional debt advice is crucial, but our view is that instead of creating a new register, this can be best achieved by working with the Money and Pensions Service and other stake- holders to clearly direct people to free debt advice provision, including on GOV.UK and via MaPS’s existing online tools. In its most recent report on the regulations, the committee also suggested that the Government should bring forward the start date for the scheme to earlier than May 2021, in response to Covid. Simply making the regulations does not give effect to the scheme’s protections; creditors large and small need time to change their systems and debt advice providers need to plan and train their staff. This is against the backdrop of everyone making unprecedented efforts to help people affected by the financial impact of Covid. While the Government appreciate the committee’s intent, they are firmly of the view that May 2021 is ambitious but achievable. The Government continue to work to support implementation next May, and detailed scheme guidance is to be published by the end of this year.
Beyond the committee’s recommendations, there are other areas of implementation that I would like to bring to noble Lords’ attention. A barrier to individuals seeking help with debts can often be fear of the impact any intervention will have on their credit score. The Government have considered this issue carefully. Debt advice providers need clarity on this to advise their clients, and the Government are mindful to avoid unintended consequences for debtors and creditors in the scheme. A moratorium is not a payment holiday or a payment deferral scheme. Other than pausing interest and fees, no new arrangements are made regarding the debts protected in a moratorium, so the Government do not consider it appropriate to ask creditors to pause reporting to credit reference agencies. Credit files take up to 50 days to update, so the impact on an individual during the 60-day moratorium would in any case be limited.
The Government have also considered whether it would appropriate to seek a new flag or code to show a breathing space on a credit file. This could have longer-lasting effects and, in the mental health crisis moratorium, sensitive information about a person’s treatment could be inferred from credit files. This is not acceptable. We therefore propose that creditors should continue to report payments in line with their existing arrangements, encouraging payments to continue during the moratorium wherever possible. The Government will keep this position and its effects under review.
The breathing space scheme will encourage people to engage with professional debt advice and create the necessary space for them to make better decisions based on that advice. Importantly, it will also protect people receiving mental health crisis treatment until they are more able to engage in this way. I hope we can agree that these regulations are a positive step forward in an area that has long been important to many in this Chamber, with the potential to change lives. I beg to move.
Lord Blunkett (Lab)
My Lords, I declare an interest regarding my work with alternatives to payday loans. Everyone taking part in this debate will be in favour of the modest but important measures encapsulated in these revised regulations. They are the very least we can do, given the enormity of the impact of the Covid-19 pandemic. The Government should now take two steps.
First, the Government should bring forward the implementation date from May to January. I take the Minister’s point about preparation, but many things have changed over the last eight months. People have moved more quickly than they could ever have envisaged in changing the way they operate, drawing on expertise they did not know existed. Three months would be a perfectly adequate time to get our act together nationally and locally and to implement the scheme. Secondly, consideration should again be given a register of independent advisers, because it is already clear that many unprincipled people are prepared to take advantage of what is now a tsunami of debt for individuals and companies.
Debt, by its very nature, is not deferment for ever: as the Government will find over the years to come, it is deferred repayment. For individuals and businesses across the country, including those that have taken out bounce-back loans, the day of reckoning eventually comes and it is really important that we are in a position to understand how best to schedule their repayments over a manageable period, so that their other outgoings are not affected and their livelihoods are not destroyed.
I heard a woman on the radio in the last two days saying that she was making impossible choices about whether to keep a roof over her head or to eat. She had chosen to keep a roof over her head. Other people do not, and there are knock-on consequences. I know a small company that refurbishes and then rents out houses; these are not always the most popular kind of people in my party, but I put this out as a real possibility for action across the country. This company has reached an agreement with Sheffield City Council in effect to become a social landlord. It refurbishes, maintains and is responsible for the property. The council is responsible for the tenant and the rent due, and therefore for supporting and helping that tenant to continue to pay their rent and to have a roof over their heads.
That kind of collaborative deal is something that I believe we should look at urgently. There will be hundreds of thousands of people, both those renting and those with mortgages, who find themselves in enormous difficulty. Some will do what my grandfather described as “a midnight flit”. Simply, that means that they up and go without paying anything they owe and try to make a new life somewhere else. That is already happening.
My other point is how much we can build on the work of Money and Mental Health and the campaigns that it and many others have run, such as tackling the threat that people face in the kinds of approaches that are made, the letters they receive, the knock on the door. Again, I heard someone just in the last 48 hours talking about their 16 year-old daughter being confronted at the door with a bill for £2,000. There is an enormous amount here to build on. The Government need to be sure-footed and extremely willing to put aside previous determinations of timing and methodology and, instead, work with all those who are willing to do so. They need to ensure that this debt crisis—that is what it is—does not become a prolonged crisis that destroys the livelihoods, living space and well-being of people across the country.
The Lord Bishop of Rochester
My Lords, I welcome the opportunity to speak in this debate, and I broadly and warmly welcome the provisions in these regulations. While the effects of the pandemic certainly give increased importance to these provisions, the issues are, of course, of very much longer standing. I pay tribute to organisations, including the Children’s Society, which have long campaigned on these matters, as well as to the honourable Member for Rochester and Strood, Kelly Tolhurst, my own Member of Parliament, who, before she was made a Minister, proposed a Private Member’s Bill in the other place to address some of these issues.
It is estimated that 2.4 million children in England and Wales live in households with problem debt. Some 600,000 families spend more on overdue bills than they do on food. This issue has devastating social consequences for families and for wider communities, as well as for businesses, contributing significantly to mental ill-health, homelessness and relationship break- down. The matter is urgent.
Therefore, in welcoming these regulations, I want to touch on the implementation date. If it is not possible to bring this forward, I urge that it is not delayed, despite any issues there may be about implementing it. Rather, that date should be protected with vigour. I also urge that serious attention be given to connecting this with other policies and provisions to support those, especially families, experiencing debt and financial crisis. The noble Lord, Lord Blunkett, has already referred to the connection with housing issues, and there are others.
It is encouraging to know that there is support for these provisions from within the enforcement sector, and to read about some of those organisations’ guidance to their staff on how they should act properly and in accordance with humanity and with these regulations. I applaud, and am a committed supporter of, organisations in the debt advice sector, many of them charitable. I am pleased and proud to see many lay people within congregations in my diocese volunteering to be trained as debt advisers, many of them with backgrounds in the financial world. Also, a number of churches host debt advice centres, many under the umbrella of CAP— Christians Against Poverty—an organisation with a long track record in debt advice. These and other such institutions and initiatives will need to be sustained, and of course funded, if these regulations are to achieve their intent.
I have a handful of concerns or questions to raise. It is good that benefit and council tax debt is included in the definitions of debts to be covered by these regulations. I hope, however, that Her Majesty’s Government might think again about the exclusion of debt that arises from advance payment of universal credit. Such debts are not insignificant and, again, can contribute to the problem. The 60 days provision is, of course, welcome; I believe that it is an extension from an earlier proposal. However, I would welcome some assurance from the Government that this will not be reduced in any future review of these regulations.
It is important that those delivering this scheme locally are able to refer indebted people to other sources of support and sound advice, whether from local authorities or from within the charitable sector or other places. Clear guidance about this for debt advisers—those who are offering the advice—would be incredibly useful. That is probably not something for government to mandate in detail, but rather to make sure that it happens in particular local areas so that people can be clearly signposted to organisations that can support them beyond the debt advisers themselves.
I am sure that this is not the last time we will debate these issues; the current circumstances mean that debt will continue to be an issue on the national agenda. However, I welcome these regulations as a good step in the right direction.
Lord Kirkhope of Harrogate (Con) [V]
My Lords, I declare my interest as a founder member of the Mental Health Act commission back in the 1980s. It is because of that interest that I wish to concentrate my remarks today mostly on the aspects of the regulations that refer to mental health.
I am sure we all appreciate that debt and mental health are a bit of a vicious circle. Worrying about finances and having limited capacity, and possibly limited assistance, in dealing with money matters can exacerbate mental illness, often to the point of triggering a crisis. It follows that a person’s critical mental state means that managing finances becomes an impossible burden. I therefore welcome these proposals, which, despite applying only in limited circumstances, bring some relief to a number of those in receipt of critical treatment throughout the period in which that treatment is necessary. This breathing space is important. However, it should not be regarded as just a delay to the inevitable but as an opportunity for resolution of outstanding pressures.
I am a little disappointed that the second part of the proposals, for a statutory debt repayment plan, is not being introduced at the same time. Indeed, no date has yet been suggested by the Government. Can my noble friend the Minister give us any indication as to when those proposals might be introduced, and what, if any, problems are preventing a date being set? A moratorium of limited time and scope, without these additional provisions, may just kick the can down the road, especially if other assistance is not fully deployed in the meantime. As these first proposals are now to come into effect in May next year, speed in completing the other provisions is essential.
The Financial Guidance and Claims Act 2018, to which my noble friend the Minister has referred, provides us with the powers that we are examining and which are needed to obtain debt respite, but without a wider scheme in place we are taking risks in proceeding with this element alone. They surely rely on each other to have the best chance of success. For those who are not currently under mental health crisis treatment, the regulations set out the means whereby they can get advice, as well as the criteria and qualifications needed by those who give such advice and have the powers afterwards to trigger a moratorium, pending, I hope, some settlement of the issues. Is my noble friend happy with the qualification requirements for those entrusted with those responsibilities?
Even with great care, the process itself can be daunting to anyone with a mental illness. The specific exclusions of certain categories of debt under regulation 5(4) are difficult to understand, especially if they currently include universal credit allowances and third-party deductions or if a VAT-registered business is involved. While the regulations are otherwise reasonably clear, some people may regard any moratorium as cover for all their debts at the time, so it must be clearly explained to them—as my noble friend the Minister has said—that their general ongoing liabilities must still be met, if possible, during the break. Is my noble friend happy that the qualified advisers will be able to convey this message and deliver an appropriate outcome for clients?
These general provisions apply equally to those receiving mental health crisis treatment, but, pursuing a different course, they must get relief in reliance on the approved mental health professionals, who will then need to notify the debt adviser in order to trigger a moratorium. Bearing in mind the historic and long-standing communication problems between AMHPs and local authorities, for instance, over responsibility in mental health matters, can my noble friend offer some further explanation as to how this process might be expected to work?
Sadly, many mental health patients have episodes of crisis that can be repetitive, and, in such cases, there may be difficulties in implementing the breathing space for them. It could be for one crisis treatment followed by the 30 days set down in the regulations and then a further 60 days arranged by the debt adviser. However, if further crisis treatment is necessary, this could be a very long-term situation, which can lead to misunderstandings or, even, unfairness all round. I know that the regulations acknowledge this different approach, as they, of course, limit other cases to only one breathing space in any 12-month period.
The issue of published guidance is also important. It must not be just for debt advisers or AMHPs; it must also be available in simple language for those who might benefit most from it and, surely, also for creditors, who are directly affected by these proposals. I am pleased to see that the provisions will be reviewed after five years, but I hope that, as implementation takes place, there will be careful monitoring and, if necessary, adjustments will be made as and when required. Finally, I hope that my noble friend can reassure us on that point as well.
Baroness Janke (LD) [V]
My Lords, I thank the Minister for his clear presentation, and speak in support of these regulations. We very much welcome the incentive the Government are providing here for people with problem debts to seek debt counselling. People with problem debt will have the chance to apply for a breathing space of 60 days, with a freeze on enforcement action, interest and charges. There will also be the opportunity—as the noble Lord, Lord Kirkhope, has said in detail—for people suffering a mental health crisis to apply for a moratorium to take stock of their position and not to face the stress of being threatened with recovery action.
Owing significant sums of money is a very frightening experience. I know because, when I was a local councillor, I met lots of people in this position, and it can be made very much worse by being pursued to repay debt, particularly when on a very low income. It is stressful and fraught with threats of insolvency, eviction and bailiffs. As other noble Lords have said, these have knock-on effects on other services. Creditors’ overzealous use of court orders, debt collectors and bailiffs has led to dreadful experiences and compounds the desperation for vulnerable people and the risk of debt spiralling out of control through fear.
The moratoriums will provide time and resources for debtors to receive debt advice and for a sustainable repayment plan to be agreed. The statutory debt repayment plans are a welcome part of these regulations, but they are not as yet included. What timeframe are the Government looking at for SDRPs? Through the extension of continued breathing space protections, SDRPs would give people a safe way to pay back their debts and reduce the harm that debt causes.
Will the Minister also let us know what plans there are to publicise the scheme? In one of the briefings we had, we heard that—certainly—half the people who approach debt counsellors say that they had been worrying about their debts for a year or more before seeking advice. However, nearly eight in 10 surveyed said they would have got advice earlier if they had known this could stop interest charges, collection and enforcement action. Six in 10 said they would have sought advice earlier if they had known it would deliver the temporary help from creditors that they needed. Therefore, it is important that the Government give a great deal of thought to how these new regulations will be publicised to the people who need them.
I wonder whether the Minister is confident that the service can cope, particularly with the further increased demand caused by the Covid-19 pandemic and the projected economic consequences. Many debt counselling organisations, such as the CAB, have ever-increasing client lists. Members of my family who work as volunteers for the CAB have drawn this growing problem to my attention. Cuts to local authority budgets have meant that funding for the service has fallen dramatically over recent years.
Can the Minister also tell us how realistic he considers the tight timescales for conducting reviews are, given the pressure on the agencies and the specific assessments that are needed for people suffering from mental health problems? What will happen to people who suffer long-term mental health issues as well as recurrent episodes, as the noble Lord, Lord Kirkhope, mentioned?
It is intended that these regulations will come into force on 4 May, and others have said that they would like the scheme to be brought forward, which I also support. However, if the scheme is to be successful, there needs to be protection for creditors. Creditor organisations will need to adapt their systems, policies and processes to ensure that they are able to fulfil the new regulations in order that no action is taken against individuals who are subject to a moratorium, no interest fees and charges accrue during it, debtors are not contacted regarding the debt during the period of the moratorium and no action is taken to challenge the grounds in applying for a moratorium that should be taken before the deadline to do so expires.
What plans do the Government have to support creditors to adapt their organisations to the new regulations? I know that the noble Lord, Lord Blunkett, said that a great deal has advanced in this area, but I would be interested to hear the Minister’s assessment, and I very much look forward to his response.
Lord Tunnicliffe (Lab) [V]
My Lords, as ever, I am grateful to the Minister for introducing these important regulations and to all noble Lords who have taken part in the debate. It is a good illustration of the breadth knowledge of the specialist areas that we find in our House, and the extent to which there has been consensus on this matter is gratifying.
I also express my gratitude to the Secondary Legislation Scrutiny Committee, which brought a previous iteration of this instrument to the attention of the House. It has since engaged in correspondence with the Treasury regarding its plans for effective signposting to the new measures, as acknowledged in the committee’s 27th report and paragraph 11 of the Explanatory Memorandum.
These regulations are an example of the value that your Lordships’ House brings to the scrutiny of legislation. My noble friends Lord Stevenson of Balmacara and Lord Mackenzie of Luton, and several others, took up this cause during the passage of the parent Act. It is to the Government’s credit that they heard and accepted the arguments, bringing forward their own amendments on Report. Given the volume of legislation that we are currently dealing with, perhaps the Minister could remind his colleagues that good things can come from having an open mind and working together.
The breathing space scheme introduced by this instrument has been long championed by organisations such as StepChange. It is based on a successful scheme that has been working in Scotland for a number of years and is designed to offer people with unmanageable problem debt greater access to the financial advice they need—and at an earlier stage, too. We are delighted to note that the Government accepted the views expressed by virtually everyone they consulted on the draft regulations and agreed to include in the scheme all unsecured debts, including those owed to the Crown. There is also a welcome focus on special support for those who suffer from mental stress as a result of their debts. This will make a huge difference, particularly as the pandemic continues.
Implementing a 60-day freeze on charges, fees and certain forms of interest, as well as a pause in enforcement action, will provide valuable time for advice to be sought, provided, considered and ultimately acted upon. It seems obvious to say it, but complex debt cases take time to resolve. Recognition of that will, I hope, lessen the stress and anxiety faced by those who feel that their situation is spiralling out of control. Dedicated provisions for those experiencing a mental health crisis are particularly important. The taking into account of treatment lengths and recognition that mental health problems often recur undoubtedly strengthen the scheme. I hope that we will see such issues considered in future policy-making.
The impact assessment published alongside the instrument makes clear the scale of the problem. Out of 9 million overindebted people in the UK, just over 1 million seek and receive advice each year. Estimates suggest that between 650,000 and 2.9 million people would benefit from debt advice but do not actively seek it, often due to the stigma of problem debt. The impact assessment suggests a clear net benefit to society, and the regulations include five-yearly reviews. Although it will clearly take some time to assess the full impact, can the Minister indicate whether the department plans to publish any interim analysis before 2026? This new scheme will undoubtedly help to encourage more people to seek help, but the problem of stigma requires further work. Is the Minister able to comment on the steps being taken?
Ministers have met their target to launch the new scheme in May 2021, which is to be welcomed. We could perhaps have arrived at this destination at an earlier date—the parent Act received Royal Assent back in May 2018. Earlier publication and consideration of the detail would also have afforded financial institutions additional time to prepare.
We all agree that the new scheme will be of significant value, but we must also be mindful of the fact that it is only one part of a very complex puzzle. As noted in the Explanatory Memorandum, plans to introduce the option of a statutory debt repayment plan are ongoing. I wonder whether the Minister will feel able to go beyond the contents of paragraph 2.1 of the EM by naming a target date for the SDRP to be introduced.
I will end with a brief comment on the timing of this instrument, which is hugely symbolic, if coincidental. Covid-19 and the economic challenges that it has presented have forced millions of people to deplete what little savings they had, and in many cases to take on personal debt. I raised this point in the recent Private Notice Question on personal savings.
Although it is good that we have reached this important milestone, we must also acknowledge the challenges that lie ahead. Unemployment is likely to rise in the coming months and this could have a profound impact on levels of personal debt. I hope the Minister can reassure the House that the Treasury is not only aware of this risk but proactively considering how to mitigate it.
Lord Agnew of Oulton (Con)
My Lords, I thank noble Lords for their thoughtful contributions, and I am grateful for the chance to respond to the points that have been raised.
I think we can all agree that current events make the case for this scheme to be introduced as soon as possible. I understand the point made by some noble Lords about the need to try to bring it in sooner. However, we have worked extensively with the sector and we feel that it is unlikely that we will be able to bring it in much sooner, probably due more to the need to train advisers than to issues related to the lending sector. The noble Lord, Lord Blunkett, and the right reverend Prelate the Bishop of Rochester are concerned about that. However, we want the scheme to work well, so we want to get it launched properly.
The noble Lord, Lord Tunnicliffe, my noble friend Lord Kirkhope and the noble Baroness, Lady Janke, asked about the SDRP. Many of the challenges apply in relation to the statutory debt repayment plan, which is complex; the Government want to ensure that the strong protections promised can be achieved. The financial services Bill will shortly be debated in Parliament. It contains a clause to give the Government the full range of powers they need to implement the SDRP and ensure that the protections that it offers mirror those in the breathing space regulations. Secondary regulations will then need to be prepared, appropriately consulted on and made. I cannot commit today to a specific date for introducing the SDRP, but I assure noble Lords that the Government are aware of the desire to see the second part of the debt respite scheme up and running as soon as possible.
We have also heard concerns that creditors will struggle to be ready, given the challenges of operating in the pandemic. The Government understand those concerns, but the scheme is, and remains, a priority in the current circumstances. The date of May feels like a reasonable compromise to achieve its introduction and have it working properly.
Noble Lords asked specific questions about how the scheme will work. The noble Lord, Lord Tunnicliffe, asked how the Government will prevent stigma in the scheme. I am aware that stigma can cause people to delay seeking advice. I am assured that this is being considered in the scheme design, including in the approach to credit referencing, which I set out for noble Lords in my opening speech. The Government’s intention is that the scheme’s strong protections should incentivise more people to see the value of taking advice earlier.
The noble Lord, Lord Blunkett, asked about unscrupulous advisers. I assure him that the FCA requires the provision of sound, impartial debt advice that is in the best interests of consumers. Debt advice providers cannot charge a fee in connection with the moratorium. Fee-charging debt advice firms must also signpost clients to sources of free debt advice. They must be transparent about the fees and charges payable by their clients and must ensure that those fees and charges do not undermine their clients’ ability to make significant repayments to creditors. The FCA’s most recent thematic review of the sector, published in March 2019, found significant improvements in the standard of advice given. The FCA takes supervisory and, if necessary, enforcement action where it finds that harm is caused by firms providing inappropriate debt advice.
The right reverend Prelate the Bishop of Rochester asked about the inclusion of universal credit debts. Universal credit overpayments will be included in the breathing space scheme from day one. Universal credit advances and third-party deductions will be included in the breathing space scheme on a phased basis as early as possible after the policy starts. These two additional aspects require significant IT changes, which need to align with the requirements of the wider UC programme. The Government recognise the importance of including all universal credit debts in the scheme as soon as possible.
The noble Lord, Lord Kirkhope, asked about approved mental health professionals. They are qualified and experienced, approved by local authorities, and have specific expertise and training in mental health and mental capacity law. They are experienced in supporting people in crisis and usually based in community crisis or home treatment teams. The Government will provide guidance on the scheme and are working with MaPS to smooth the process for AMHPs to reach debt advice providers.
The noble Lord, Lord Kirkhope, and the noble Baroness, Lady Janke, asked whether debt advice providers would be able to navigate the definition of excluded debts in the regulations. This point will be covered in the guidance. The Money and Pensions Service is working in partnership with the Money Advice Trust to develop and deliver an online training module, which will inform and support debt advisors with the introduction of the scheme in May 2021. The intention is for the training to be accessible to all debt advisors across the sector. MaPS is also working to provide debt advice providers with access to support on technical questions.
It is a complex scheme, necessarily so, given the wide range of public and private debts included. I explained in my speech that the Government will publish scheme guidance by the end of the year to offer further explanation where possible. The noble Lord, Lord Kirkhope, asked for whom this guidance will be provided. I can confirm that it will be prepared for debt advice providers, creditors, AMHPs, and GOV.UK will include a high-level overview of the scheme.
The Government are fully committed to closely monitoring the impact of the breathing space scheme, and developing and monitoring an evaluation strategy to facilitate an effective post-implementation review. As in all such matters, financial services firms will need to take their own legal advice on their approach. In addition to the government scheme guidance, I understand that the FCA will publish a consultation on guidance for firms shortly.
The right reverend Prelate the Bishop of Rochester asked about training. Government support for debt advice has already seen an extra £37.8 million support package made available to debt advice providers this year. The Government are working closely with MaPS on training for debt advice providers to help ensure that they will be ready to offer the scheme.
The noble Baroness, Lady Janke, asked about demand for the scheme. Moratorium can be accessed only via professional debt advice, so the take-up rate of the scheme is constrained by the available supply of that debt advice. Covid-19 poses many uncertainties, and we will continue to monitor the evolving situation. The noble Lord, Lord Tunnicliffe, was also concerned about the impact of Covid-19 and the downturn of the economy. The Government recognise that people are struggling with their finances during this very difficult time and have put an unprecedented package of support in place to try to help people during the pandemic. We will keep this area under close consideration.
I believe that the breathing space scheme will encourage people to engage with professional debt advice and create the necessary space for them to make better decisions based on that advice. Importantly, it will protect people receiving mental health crisis treatment until they are more able to engage in this way. I hope we can agree that these regulations are a positive step forward in an area that has long been important to many in this Chamber, with the potential to change lives. I beg to move.
Arrangement of Business
The Deputy Speaker (Lord Haskel) (Lab)
My Lords, hybrid proceedings will now resume. Some Members are here in the Chamber, respecting social distancing, and others are participating remotely, but all Members will be treated equally. If the capacity of the Chamber is exceeded, I will immediately adjourn the House.
Immigration and Social Security Co-ordination (EU Withdrawal) Bill
Tuesday 6th October 2020
(3 years, 6 months ago)
Lords ChamberRead Full debate Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020 View all Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 121-R-II Second marshalled list for Report - (30 Sep 2020)
17:25 - Division conducted remotely on Amendment 27 - Ayes: 312 / Noes: 211 - Amendment 27 agreed.
The Deputy Speaker (Lord Haskel) (Lab)
I will call Members to speak in the order listed in the annexe to today’s list. Interventions during speeches, or before the noble Lord sits down, are not permitted, and uncalled speakers will not be heard. As this is Report, other than the mover of the amendment or the Minister, Members may speak only once in each group. Short questions of elucidation after the Minister’s response are permitted but discouraged. A Member wishing to ask such a question, including Members in the Chamber, must email the clerk.
The groupings are binding, and it will not be possible to degroup any amendment for a separate debate. A Member intending to press an amendment already debated to a Division should already have given notice in the debate. Leave should be given to withdraw an amendment. When putting the question, I will collect the voices in the Chamber only. If a Member taking part remotely intends to trigger a Division, they should make this clear when speaking on the group.
During the debate on Amendment 20, the noble Lord, Lord Ramsbotham, indicated that he intended to press Amendment 23, which was grouped with it, to a Division. I will therefore begin by inviting the noble Lord, Lord Ramsbotham, to move this amendment formally. No further speeches will be heard on this amendment. I will now put the question. Does the noble Lord, Lord Ramsbotham, wish to move Amendment 23 formally?
The Deputy Speaker (Lord Haskel) (Lab)
We now come to the group consisting of Amendment 24. Once again, I remind noble Lords that Members other than the mover or the Minister may speak only once and that short questions of elucidation are discouraged. Anyone wishing to press this amendment to a Division should make this clear in the debate.
Amendment 24
“Recourse to public funds
(1) For the purpose of this section, a person (“P”) is defined as any person who, immediately before the commencement of Schedule 1, was—(a) residing in the United Kingdom in accordance with the Immigration (European Economic Area) Regulations 2016 (S.I. 2016/1052);(b) residing in the United Kingdom in accordance with a right conferred by or under any of the other instruments repealed by Schedule 1; or(c) otherwise residing in the United Kingdom in accordance with any right derived from European Union law which continues, by virtue of section 4 of the European Union (Withdrawal) Act 2018, to be recognised and available in domestic law after exit day.(2) Regulations under section 4(1) may not be made until the Government has brought forward legislative measures to ensure that P can access social security benefits, where P is habitually resident, including repealing or amending the following provisions insofar as they relate to P—(a) section 3(1)(c)(ii) of the Immigration Act 1971;(b) section 115 of the Immigration and Asylum Act 1999;(c) any provision in subordinate legislation, which imposes a “no recourse to public funds” condition on grants of limited leave to enter or remain; and(d) any other enactment or power exercised under any other enactment, which makes immigration status a condition to access social security benefits.”Member’s explanatory statement
This new Clause seeks to restrict measures prohibiting access to public funds.
Baroness Bennett of Manor Castle (GP) [V]
My Lords, Amendment 24, which appears under my name, is one of a suite of amendments that I moved in Committee. I continue to stand by all of them, but in achieving a disappointing response from the Minister then, I have restricted myself to just one. I record now, as I did then, the role of Liberty in working on all of them. When I saw that no one else had brought forward a similar amendment, I felt that this issue had to be raised in any immigration Bill.
This amendment is about “no recourse to public funds”. It is something I find myself talking about so often that the phrase rolls off my tongue like poetry, but of course this is the stuff of nightmare, of personal desperation and great suffering. It is the situation of the victim of domestic violence facing the choice between homelessness and penury for herself and her children and the very real danger of being maimed or killed if she stays. It is the situation of the child going hungry, suffering the miserable, desperate pangs that prevent concentration or hope, when his peers get free school meals.
I assume there is no Member of your Lordships’ House who would deny the human right to life, but “no recourse to public funds” denies access to the most basic essentials. People are forced to rely on the fragile, overstretched resources of specialist charities, and people fall through the cracks of that hopelessly underresourced, fragile net of support.
I fear that in this Bill, the Minister and I are trapped on a merry-go-round. I believe I can foresee the response I am likely to receive: that this is discriminatory if applied only to people newly covered by immigration law, EU and EEA citizens, and not to everybody. At the risk of sounding like a recording, I want this to apply to everybody. The Government could and should end any application of the “no recourse to public funds” rule. In this amendment, I have tried to save as many as the rules of the Table Office will allow me. Saving some people from being penniless and homeless, from hunger and abuse, and perhaps from death, is better than saving none. I beg to move.
Baroness Lister of Burtersett (Lab)
My Lords, I thank the noble Baroness, Lady Bennett, for tabling Amendment 24. In supporting it, I will not repeat the evidence I rehearsed in Committee showing the damaging impact of the “no recourse to public funds” condition on children denied free school meals, in particular—she mentioned that particular group. But I will draw attention to a national survey published since then by the Children’s Food Campaign and Food Active, which found that nine out of 10 parents agreed that eligibility for free school meals should apply regardless of immigration status.
I also want to return to some specific points I raised in Committee. First, I would like to thank the noble Baroness the Minister for responding to my question about data in her letter. I hope the department will follow this up with the Children’s Society, to see how it might improve the data so as to provide a better indicator of the levels of hardship created and the demographics of the groups worst affected.
In Committee, the noble Baroness the Minister referred to what I said about the temporary extension of eligibility for free school meals to support families with NRPF. But she did not acknowledge the point I made that this was a partial concession covering only some NRPF families, nor that the concession has now been withdrawn. I asked what possible justification there could be for this, and I quoted from a letter from 60 organisations to the Education Secretary, which among other things noted that these children will face having to make up half a year of lost learning on empty stomachs. Could the noble Lord the Minister who is speaking today respond to that point now and, at the very least, commit to taking it up with colleagues in the Department for Education?
According to a briefing from the Children’s Society and others, the Government have indicated that there will be a full review of the free school meals system and that that is needed before the extension to NRPF families can be made permanent. But why? Why does it need a full review? Hunger cannot wait for a review. What is the scope and timetable of this review? If the Minister cannot answer that now, please could it be covered in a subsequent letter?
The Minister did not respond either in Committee or in her letter to a specific question that I posed, echoing the Work and Pensions Select Committee. I asked for a definitive clarification as to whether local welfare assistance funds counted as public funds for these purposes. They act as a kind of safety net below the safety net—a rather ragged safety net below the safety net—but if even those are not available, it makes life that much harder for this group. Again, if the Minister does not have the answer, could it please be covered in a subsequent letter?
The comprehensive improvement plan, published last week in response to the Windrush Lessons Learned Review, identified the NRPF as one of six primary streams in the compliant—aka hostile—environment. It is interesting that the Home Secretary, as far as I can see, did not refer to this rather important plan of the Home Office in her speech on Sunday at the Conservative Party conference. But in contrast to the plan’s emollient tone, while talking about compassion and so forth, we have learned in the media—and I know that the Minister will say that he cannot respond to leaks, but it did not seem like a leak; it seemed like it had been deliberately placed—that there is a push by Downing Street to
“radically beef up the hostile environment in 2021.”
If this is true, it makes a mockery of the review of the hostile/compliant environment detailed in the Home Office’s plan. Can the Minister provide a categorical denial that the intention is not to radically beef up the compliant/hostile environment, because that certainly was not what Wendy Williams was calling for?
I refer back to the exchange that I had in Committee with the Minister on the Windrush Lessons Learned Review—and I thank her for the offer of the meeting. It seems to me from the comprehensive improvement plan that the review of the hostile/compliant environment will not include questioning its legislative underpinnings. For instance, it will not question the right-to-rent legislation itself, but simply how it is being implemented. What if the review concludes that the legislation itself is not proportionate in meeting the Government’s stated aims, which is part of what Wendy Williams’s recommendations said it should be looking at? I would be very happy if the Minister responds to say that I have misinterpreted what the plan says, and that the terms of reference are that it is open to those reviewing the hostile/compliant environment to question the legislation, if that is where the evidence takes them. Surely—going back to my first point—the denial of free school meals to hungry children is not proportionate.
Baroness Smith of Newnham (LD) [V]
My Lords, I support the amendment in the name of the noble Baroness, Lady Bennett. The concept of no recourse to public funds is one that causes significant difficulties to a small number of people, but for those individuals it can be very significant. Quite how many people fall under this provision is perhaps a little bit unclear. I cite a paper on no recourse to public funds written by Professor Catherine Barnard, a colleague at Cambridge University—and I declare it as an interest that she is a colleague. She quotes Stephen Timms at the Liaison Committee in May raising with the Prime Minister the issue of destitution as a result of no recourse to public funds. The Prime Minister is reported to have said:
“You have raised a very, very important point if a condition of their leave to remain is that they should have no recourse to public funds. I will find out how many there are in that position and we will see what we can do to help.”
Does the Minister know whether the Prime Minister has yet been able to answer that question of how many people fall into this category? Will he tell us what plans the Prime Minister has to help individuals who have no recourse to public funds? I suspect that his briefing does not include answers to those questions, so I confine myself to reiterating the concerns raised by the noble Baronesses, Lady Bennett and Lady Lister of Burtersett. That is really to say that, while ideally the provision for no recourse to public funds should be looked at in its entirety, in the confines of this Bill we understand that it can only be the case for EU nationals. However, in the context of the Covid crisis, it has become clear that individuals can face very significant difficulties that are not covered by the normal provisions for seeking benefits precisely because they fall under this condition of no recourse to public funds. Will the Government think again on this issue? It relates not to people who are coming to seek benefits, who simply say that the United Kingdom is a country where they think they are going to be able to benefit from the system. It rather relates to individuals who are already here, exercising their rights as EU nationals. It is a finite number of people, and surely they deserve our help and a degree of generosity.
Baroness Neville-Rolfe (Con)
My Lords, I rise to express concern about Amendment 24 in the name of the noble Baroness, Lady Bennett of Manor Castle. She has highlighted some hard cases in the cause of her apparently wide-ranging proposed new law. That is an approach that I always discourage. I think legislation of this kind has to be carefully thought about, assessed for cost and consulted on.
In Committee, the main focus of amendments on this issue was to seek greater support from public funds during coronavirus. The Minister explained that some of the Government’s coronavirus measures—quite generously, one might say—applied to those with no recourse to public funds, who are the subject of the amendment of the noble Baroness, Lady Bennett.
I believe that migrants coming into the UK should be able to maintain and support themselves and their families without posing a burden on our hard-pressed benefit system. I do not know much about the detail of the arrangements for prohibiting access to public funds, but I know that taxpayers already foot large bills for lawyers to prioritise immigrants’ needs and to block the deportation of those who do not have the right to remain.
We cannot introduce an immigration system, as posited here, that has the effect of attracting migrants—whether from the EU, which is today’s subject, or elsewhere—for welfare benefits and not for work. This will not win the support of UK citizens who are struggling to make ends meet and are facing job losses and fiscal deficits as a result of the coronavirus crisis. In short, those who are, in reality, economic migrants should be contributors to the public purse, as I think many are. I hope that the House will reject this amendment.
Baroness Hamwee (LD)
My Lords, in replying to this and the other amendment on no recourse to public funds in Committee, the Minister, the noble Baroness, Lady Williams, said, according to Hansard, that Home Office analysts were looking at the data to determine what figures could be “reduced”. I would like to think that that might have been about reducing the numbers of people with no recourse, but I suspect that it was a misprint for “produced”. The noble Baroness is nodding.
Almost all the speakers have lit on the issue of lack of data. It occurs to me that a lack of data indicates something of a shortfall in interest among the policy makers on the impact of the policy that they are making. Like much that relates to the immigration system, this amendment is about humanity and common sense: common sense because of the important public health argument about ensuring that people are not prone to disease that can be prevented and that children are fed well enough to be educated and to grow into good citizens, and humanity for obvious reasons.
Hard cases are not to be excluded when we think about policy; they have to be considered to bring attention to bad law. I do not think that the taxpayer is a single cohesive figure. Taxpayers have a wide range of views and there are quite a lot among us who would like to see our taxes spent differently and better. If that means more tax being raised, that is a price that we understand we have to pay.
Lord Rosser (Lab) [V]
My Lords, Amendment 24 in the name of the noble Baroness, Lady Bennett of Manor Castle, would prevent regulations being made under Clause 4 until the Secretary of State had provided legislative measures to ensure that EEA and Swiss nationals in the UK are not subject to no recourse to public funds. This includes repealing or amending relevant no recourse to public funds provisions in the Immigration Act 1971 and the Immigration and Asylum Act 1999. I assume this means any regulations under Clause 4 and not just regulations relating to no recourse to public funds.
We had an amendment in Committee that would have had the effect of not applying the no recourse to public funds rules during the current Covid-19 pandemic, and then until such time as Parliament decides. To keep the amendment within the scope of the Bill it applied only to EEA and Swiss nationals. We have been calling since April for no recourse to public funds to be suspended for the duration of the coronavirus crisis. We asked the Government to lift no recourse to public funds as a condition on a person’s migration status to ensure that nobody was left behind in the public health effort undertaken in the fight against the coronavirus. In June, the Home Affairs and Work and Pensions Select Committees recommended that the Government should “immediately suspend NRPF” for the duration of the pandemic on public health grounds. The Work and Pensions Committee said:
“As a result of the no recourse to public funds condition, many hardworking and law-abiding people are being left without a social safety net and at risk of destitution and homelessness.”
Our amendment found no favour with the Government —as, indeed, may prove to be the case with every amendment on this Bill, with the exception of perhaps just one. As set out in Hansard, I asked—as did my noble friend Lady Lister—for some numbers in relation to no recourse to public funds. The Minister said they were not part of published statistics, but that Home Office analysts were looking at the data to determine what figures could be produced. As has been pointed out by the noble Baroness, Lady Hamwee, it said “reduced” in Hansard, but it has now been confirmed that it should have said “produced”. Whatever the situation, it would be very helpful if the Minister could say exactly when the Home Office analysts expect to complete the exercise that they are undertaking in relation to figures, information and data available.
This amendment goes further than our amendment in Committee on no longer applying NRPF, in that it does not relate only to the period of the pandemic and does not leave it for Parliament to decide if and when its terms are no longer to apply. Like the noble Baroness, I await the Government’s response.
Lord Parkinson of Whitley Bay (Con)
My Lords, I thank the noble Baroness, Lady Bennett of Manor Castle, and all other noble Lords for their contribution to this debate. I completely understand the concern that they have expressed for the welfare of people with no recourse to public funds, especially during the current pandemic. As the noble Baroness, Lady Hamwee, says, it is a matter, first and foremost, of humanity, but the Government cannot accept this amendment.
As noble Lords will be aware, the Government’s general expectation is that people immigrating to the United Kingdom should be able to maintain and accommodate themselves without recourse to public funds. That reflects the importance of maintaining the confidence of the public in general that immigration overall brings benefits to our country, as it certainly does, rather than costs to the public purse. Those restrictions, which have been in place under Governments of all political hues for many years, are an important plank of immigration policy designed to assure people that public funds are being protected for those who are normally or habitually resident in the UK, reflecting the strength of their connection to the United Kingdom. This includes those with indefinite leave to remain, refugees, protected persons and people granted discretionary leave.
I acknowledge the level of concern that has been expressed today, and, indeed, in Committee, particularly regarding the deprivation of children. The noble Baroness, Lady Lister of Burtersett, asked a number of questions about children. She generously suggested that I could write to her on the timetable for the review and other points, and I am very happy to commit to do that so she can have the fullest possible answer. I will certainly ensure that the point she raises about free school meals has been heard by the Department for Education. I am sure it has been but I will take that forward and make sure it is reinforced. On free school meals generally, they are not listed as public funds under immigration legislation; they are available to the most disadvantaged pupils, including asylum-seeking children whose parents or guardians receive support under Part 6 of the Immigration and Asylum Act. I hope that that gives her some reassurance in the meantime, but I will certainly take the point forward, as she asks.
The noble Baroness will not be surprised that I cannot comment on leaks, so I shall not, whatever their suspected provenance. I can point her to the words of my right honourable friend the Home Secretary, both in her speech to the Conservative Party conference over this weekend—which I am glad the noble Baroness noted was marked by its compassion—and also in a number of Statements she has made in another place about the Wendy Williams review, committing herself and the Home Office to taking on board all the recommendations that Wendy Williams had made and shifting the culture of the Home Office. I would direct the noble Baroness to those words for the view of the Home Office.
Regarding children more generally, where a child is in need, local authorities are already required to provide support through Section 17 of the Children Act 1989. Recognising the potential financial impact on local authorities at the moment, the Government have allocated more than £4.3 billion to those in England, and additional funding under the Barnett formula to the devolved Administrations, to help them respond to the pressures of Covid-19 across all the services they deliver, including services helping the most vulnerable people. The funding will mean that councils can continue to provide vital services, including adult social care and children’s services. To ensure that children who have been affected by the no recourse to public funds condition are protected from destitution, as we pointed out in Committee, people with leave under the family and human rights routes can apply to have this condition lifted through a change of conditions application. Change of condition decisions are being prioritised, at this difficult time, and dealt with compassionately. The change of conditions team in UK Visas and Immigration is working through applications as quickly as possible and is exercising flexibility when seeking additional evidence, which is often needed, to help reduce unnecessary delays. Additional staff have also been trained to work on these cases in response to the increased demand and urgency during the pandemic.
The noble Lord, Lord Rosser, and the noble Baroness, Lady Hamwee, asked about the statistics that would be produced—not “reduced”—on this. The Home Office chief statistician recently replied to a letter from the UK Statistics Authority on the subject. He made clear in that letter why it is not practical for the Home Office to produce an estimate of the total population subject to no recourse to public funds at any one time. However, the Home Office has acknowledged that there is a clear public interest in publishing the number of applications to have the restriction lifted by making a change of conditions application. I am pleased to say that these data have now been published, and will be released as part of the regular migration transparency data henceforth.
The Deputy Speaker (Lord Haskel) (Lab)
My Lords, I have had no requests to speak after the Minister, so I call the noble Baroness, Lady Bennett of Manor Castle.
Baroness Bennett of Manor Castle (GP) [V]
My Lords, I thank the noble Lord for his response, although I am disappointed, but not surprised, by the direction of his comments. I apologise for the misidentification of the respondent. I think other noble Lords will join me in being pleased that the Home Office will produce these figures, as raised by multiple noble Lords. We will all look forward to seeing and scrutinising those.
I must thank the noble Baroness, Lady Lister, for her powerful and detailed analysis of the Government’s current position and their review plans, and I note her overview, “Hunger cannot wait for a review”. As the noble Baroness, Lady Smith, referred to, we are talking about destitution. Everything is in the context of Covid-19 now, and it seems that at the Tory party conference today the Prime Minister suggested that is going to be the case for the next year.
The noble Baroness, Lady Neville-Rolfe, asked about the cost of this amendment. I would say, some things are priceless: ensuring that we do not see Victorian conditions of destitution in the UK in 2020 is something we should seek to deliver with every sinew, as human beings. She referred to the bills for immigration matters—for people exercising their legal rights, that means getting what the law entitles them to. I note that the noble Baroness, Lady Lister, cited figures showing that the British public overwhelmingly do not want children to go hungry. That is what we are talking about here; as the noble Baroness, Lady Hamwee, said, this is about humanity.
I note the amendment in Committee that the noble Lord, Lord Rosser, referred to, which is something we could go back to in the context of Covid-19. Noble Lords will have had heard me refer in other cases to universal basic income as the best solution of all—we could then ensure that nobody was left stranded or left with nothing.
I understand that the restrictions on scope have not allowed me today to make this the amendment I would like it to be on no recourse to public funds. On this occasion I will not be pushing it to a Division, but I fully expect to take a different approach in future.
The Deputy Speaker (Lord Haskel) (Lab)
We now come to the group consisting of Amendment 27. I remind noble Lords that Members other than the mover and the Minister may speak only once, and that short questions of elucidation are discouraged. Anyone wishing to press this amendment to a Division should make that clear in the debate.
Amendment 27
Lord McColl of Dulwich
“Grant of leave to remain for confirmed victims of modern slavery who are EEA nationals
(1) Immigration rules must make provision for leave to remain in the United Kingdom to be granted to a person aged 18 years or over when—(a) the person is either a Swiss national or an EEA national who is not also an Irish citizen; and(b) there has been a conclusive determination that the person is a victim of slavery or human trafficking; and(c) subsection (2) applies and subsection (8) does not.(2) This subsection applies if the person meets one or more of the following criteria—(a) leave is necessary due to the person’s circumstances, including but not restricted to—(i) the needs of that person for safety and protection from harm including protection from re-trafficking;(ii) the needs of that person for medical and psychological treatment;(b) the person is participating as a witness in criminal proceedings; (c) the person is bringing any civil proceedings including pursuing compensation.(3) Where the person is receiving assistance from a support worker, the recommendations of the support worker must be considered in assessing that person’s circumstances under subsection (2)(a).(4) Immigration rules must provide for persons granted leave to remain in accordance with this section to have recourse to public funds for the duration of the period of leave.(5) Immigration rules must provide for leave to remain to be granted from the day on which the conclusive determination is communicated to a person for at least 12 months.(6) Immigration rules must allow a grant of leave to remain under subsection (5) to be extended subject to the requirements of subsection (7).(7) In determining whether to extend a grant of leave to remain under subsection (6), and the period of time for which such extended leave should be provided, the person’s individual circumstances must be considered, and whether that person meets one or more of the criteria in subsection (2).(8) A person may be refused leave to remain if—(a) the person is a sexual or violent offender; and(b) the Secretary of State considers that the person poses a genuine, present and serious risk to members of the public.(9) If subsection (8) applies, the Secretary State must ensure the person affected is given reasons for the refusal in writing.(10) In this section—“competent authority” means a person who is a competent authority of the United Kingdom for the purposes of the Council of Europe Convention on Action against Trafficking in Human Beings;“conclusive determination” means a determination that a person is, or is not, a victim of slavery or human trafficking when the identification process conducted by a competent authority concludes that the person is, or is not, such a victim;“EEA national” means a national of a State which is a contracting party to the Agreement on the European Economic Area signed at Oporto on 2 May 1992 (as it has effect from time to time);“immigration rules” in this section has the meaning given by section 33 of the Immigration Act 1971;“sexual or violent offender” means a person falling within the definition of a “sexual or violent offender” in section 327 of the Criminal Justice Act 2003 (section 325: interpretation) or who has been convicted of an offence under the law of another country which would have constituted an offence falling within those subsections if it had been done in England and Wales;“victim of slavery” and “victim of human trafficking” mean a person falling within the definition of a “victim of slavery” or “victim of human trafficking” in section 56 of the Modern Slavery Act 2015 (section 56: interpretation).”
Lord McColl of Dulwich (Con) [V]
My Lords, I am very pleased to speak to Amendment 27 in my name and that of the noble Lords, Lord Kennedy and Lord Alton, and the noble Baroness, Lady Hamwee. I would like to thank my co-signatories for their support, and that of the noble Lord, Lord Randall, who would have been here to speak in support of my amendment had it been reached yesterday, but is unable to join us today. I would also like to thank the former Conservative Party leader, the right honourable Sir Iain Duncan Smith, for his support for my amendment, expressed in our joint PoliticsHome article yesterday. I should say at the outset that I very much hope that the Government will accept it, but if they do not it is my intention to test the opinion of the House.
I make no apology for raising once again the difficult situation that confirmed victims of modern slavery will face as a consequence of the current drafting of the Bill before us. By “confirmed victims”, of course, I mean those who have been through the national referral mechanism and received a positive conclusive grounds decision that they are indeed victims of modern slavery.
I am grateful to my noble friend Lord Parkinson, who responded to my Amendment 7, and to my noble friend Lady Williams, who responded to Amendment 81. The Government have made all the right noises about protecting trafficking victims, but it is clear, as I shall explain, that in future victims of modern slavery who come from EU countries will be significantly worse off than they are currently.
As a firm supporter of Brexit and advocate for victims of modern slavery, I know that, while free movement must end, the restoration of our sovereignty does not require us to create a situation in which the effective rights of some confirmed victims of modern slavery are diminished. Parliamentary sovereignty actually gives us the opportunity to improve provisions for all victims of modern slavery if we want to. It does not necessitate that we should acquiesce to the effective erosion of the rights of any confirmed victims. That we should inaugurate the Brexit era by doing so for EEA national victims is, in my judgment, unthinkable.
One of the main ways in which a confirmed victim of modern slavery who is an EEA national can seek help for their recovery today is through their treaty rights to remain in the UK and access public funds: in other words, to get benefits and access to local authority housing. In the event that an EU citizen is unable to exercise their treaty rights, perhaps because their ID documents were taken from them by the traffickers, or they have no paperwork to evidence the work they were doing while being exploited—for those exploitations, by their very nature, do not meet the requirements—they have the second fallback option of applying for what is known as discretionary leave to remain.
At the end of the transition period, and once any opportunity to apply for settled or pre-settled status has passed, victims of human trafficking who are EEA nationals will be worse off because they will lose one of the key avenues to support that is available today—exercising their treaty rights—and that will be replaced by nothing.
The confirmed victim will simply be left with the option of applying for discretionary leave to remain. This may not matter if there were a statutory basis for granting discretionary leave, with statutory criteria to make up for the loss of the opportunity for confirmed victims to access support through their treaty rights.
Discretionary leave is only given on a discretionary basis to confirmed victims in very special circumstances set out in the guidance, when they are not eligible for any other form of leave such as asylum or humanitarian protection. The criteria are that a victim is assisting police with investigations into trafficking or modern slavery, that there are compelling personal circumstances which mean the victim needs to stay in the UK, or that the victim is making a claim for compensation against their traffickers and needs to remain in the UK to pursue that claim.
As a Minister said in 2017, discretion to grant leave to remain has been considered as “exceptional”. That might have been acceptable when EU citizens had an opportunity to access treaty rights, but they will no longer be able to do so and it is unlikely that EU victims will be considered for asylum in the future.
In order to really understand this effective erosion of the rights of confirmed victims of modern slavery who are EEA nationals, it is also important to consider their lot in the wider context of that of victims who are non-EEA nationals. Many non-EEA nationals will have the option of applying for asylum, which, as I said, will not be open to EEA nationals; some will be granted humanitarian protection and the remainder will be automatically considered for discretionary leave. Given these other routes, it may not be surprising that discretionary leave has been considered “exceptional” for non-EEA victims as well.
Internal Home Office data, reported to the House of Commons Work and Pensions Committee in 2017, showed that just 12% of all victims of modern slavery were given discretionary leave in 2015. Of these, 52 cases were EEA nationals and 71 non-EEA nationals. On 24 September, the Government confirmed that they do not have current data in a reportable form for the different immigration outcomes for victims of modern slavery. This lack of data begs the question as to how the Government will measure the impact of changes in immigration policy on victims of modern slavery if there is no baseline from which to measure.
In July, the Centre for Social Justice, published a report on modern slavery, It Still Happens Here: Fighting UK Slavery in the 2020s. It states:
“For many, having no recourse to public funds poses further barriers to moving people on safely, putting victims at risk of homelessness and destitution, and making it more likely that they will fall back into exploitation and trafficking.”
Lord Alton of Liverpool (CB)
My Lords, I am very happy to be a co-signatory to Amendment 27, tabled by the noble Lord, Lord McColl, along with the noble Lord, Lord Kennedy of Southwark, and the noble Baroness, Lady Hamwee. I remind the House of my non-pecuniary interest as a trustee of the anti-trafficking charity, Arise Foundation.
Characteristically, at midnight last night, the noble Lord, Lord McColl, who is in his 88th year, was waiting to move this amendment. If he had been required to, he would have stayed all night, such is his commitment to this cause. I admire him greatly for that. Over several decades, I have been truly fortunate to get to know the noble Lord. I have often found myself on the same side of arguments and deeply admire him on many fronts, not least in the use of his skills as a surgeon in life-saving and life-changing work on the Mercy Ships and his indefatigable efforts to raise in the House the plight of victims of modern slavery. It was also good to see the article on PoliticsHome yesterday by the noble Lord and the right honourable Sir Iain Duncan Smith MP setting out the case for this amendment.
In 2015, I participated along with many other noble Lords throughout the debates on the Modern Slavery Act and warmly congratulated the then Home Secretary, Theresa May, on pioneering with great skill and determination world-class legislation, a rarity in enjoying bipartisan and bicameral support. Following our debate in Committee on 16 September, I sent our debate on the noble Lord’s earlier amendment to Lady May, as she now is, and received a warm response encouraging us all to continue to champion and speak up for victims of modern slavery.
It has been deeply shocking for us all to see the way in which human traffickers have been fuelling the migrant crisis in Calais, Dunkirk and Zeebrugge. We have heard in our debates on amendments to this Bill about how young children have been exploited, used as pawns in a lucrative and sometimes deadly trade. The House will recall that it is less than 12 months since the deaths of 39 Vietnamese people trafficked into Tilbury. I was particularly pleased to hear what the noble Baroness, Lady Williams of Trafford, said yesterday in your Lordships’ House about what she and the Home Secretary, Priti Patel, are determined to do to end this murderous trade in human misery.
No one can doubt the vulnerability of victims of trafficking and modern slavery by those who manipulate and exploit them. The Government are right to accept that other vulnerable groups such as refugees have conferred upon them an immigration status that recognises their vulnerability. When someone is recognised as a refugee in the UK, they are offered an initial period of five years’ leave to remain. That is not the case for victims of trafficking. Confirmed non-EU victims of modern slavery are able to apply for asylum, but for completely understandable reasons this option has not been open to EU nationals. That is what this amendment addresses.
After 1 January, EU victims who are trafficked into the UK will not have any free movement rights and, unless the rules change, will not be able to apply for asylum. Their immigration options are therefore slim. I am sure that the Minister will respond by confirming that victims of modern slavery are able to apply for discretionary leave to remain. Currently, non-EU nationals are automatically considered for this discretionary option if no other immigration path is available; EU nationals are not.
Looking into the background for discretionary leave to remain, I realised that the facts of who the individuals are who get such leave, and why, are opaque—to put it mildly. The Home Office has published guidance on when a victim of trafficking can be granted leave to remain. The guidance is totally discretionary and sets out three criteria on which leave to remain can be given. A person may get leave to remain, first, if they are seeking compensation for their exploitation or, secondly, if they are assisting police with criminal investigations. The third criterion is defined as “personal circumstances”. The data on how many individuals receive such discretionary leave and under which of those criteria is far from clear.
In 2017, the then Home Office Minister wrote to the noble Lord, Lord Field, when he was Member of Parliament for Birkenhead. What a pleasure it was to be here today when the noble Lord took his seat; I know that he will bring great commitment to the fight against human trafficking during his time in your Lordships’ House. In that letter, the Minister made some clear statements that DLR was the last resort and given only when there are “exceptional or compelling reasons”. Since then, no DLR data has been published in response to multiple Parliamentary Questions. This point is raised in the report of the organisation, After Exploitation, entitled Hidden Futures, published on 27 September. The report demonstrates that the Government have multiple opportunities to provide the data on the immigration outcomes of victims of trafficking. Only last week, on 29 September, the Government responded to a Parliamentary Question in another place by the Member of Parliament for Nottingham North, saying:
“Numbers and reasons for grants of discretionary leave to remain to victims of modern slavery do not currently form part of modern slavery published statistics.”
Less than a week earlier, on 24 September, the Government said that the data was not held in a reportable format. It begs the question: why not? There is considerable confusion about the immigration outcomes for victims of modern slavery and even about whether there is any data that would give such clarity.
Notwithstanding the Government’s failure to be forthcoming and transparent on this issue, in 2019 the British Red Cross was able to get information through freedom of information requests about the grants of discretionary leave to remain and it published in its report, Hope for the Future, some of its findings. These suggest that between just 8% and 9% of all victims of modern slavery were granted leave to remain between 2015 and 2017. Given the small numbers granted DLR, which the noble Lord, Lord McColl, referred to, and the fact that the individuals who are vulnerable enough to be subject to trafficking are unlikely to be those who meet the requirements of the new points-based immigration system, it is clear to me that Parliament should now act.
Without Amendment 27, European Union nationals who are victims of trafficking will find themselves significantly disadvantaged compared to the status quo. Ending free movement must not be associated with an increase in exploitation. Given that, unlike non-EEA nationals, who are considered automatically, EU nationals will have to apply for discretionary leave to remain and given that so few grants are made, EU nationals who are unable to claim residency and the benefits associated with that immigration status are more likely to find themselves destitute and subject to potential retrafficking.
Lord Morrow (DUP) [V]
My Lords, I am pleased to add my support to Amendment 27 in the name of the noble Lords, Lord McColl, Lord Alton and Lord Kennedy, and the noble Baroness, Lady Hamwee. In Committee, when introducing my Amendment 81, I made plain my grave concerns about the possible negative impact that ending free movement will have on victims of modern slavery. I said then, and I reiterate today:
“I am not opposed to the end of free movement.”
However, as I said then,
“it absolutely does not follow that we have to create a situation in which a significant proportion of trafficking victims have uncertain immigration status and will lose recourse to public funds.”—[Official Report, 16/9/20; col. 1343.]
This, however, is precisely what will happen, courtesy of the Bill before us, if the Government do not accept Amendment 27.
With the ending of free movement, victims of modern slavery who are EEA nationals and who arrive in the UK from 1 January onwards will no longer be entitled to stay in the UK or to access benefits, beyond the period of support granted under the national referral mechanism. This means that the effective rights of these confirmed victims of modern slavery will be subject to significant erosion, and there is currently nothing in the Bill to put in their place.
As the noble Lord, Lord McColl, said, from next year EEA victims, who have never enjoyed the option of asylum that many non-EEA victims can access, will lose the immigration status and recourse to public funds that they currently enjoy through treaty rights. The only remaining option for victims from EU countries to gain a credible immigration solution will be through an application for discretionary leave to remain. All victims can seek discretionary leave at present but, as with accessing the option of asylum, EU nationals are again at a disadvantage. Unlike victims of other countries, victims of EEA countries are not, at present, automatically considered for a grant of discretionary leave.
Amendment 27 would remedy this difference and ensure that all EEA nationals who are confirmed by the NRM as victims of trafficking are given a grant of leave if they meet the criteria set out in the amendment, which are similar to criteria by which applications are currently assessed under guidance. I urge the Government to support this amendment to ensure that there is a clear route for EEA nationals to have the option of immigration security and recourse to public funds to enable them to recover.
In reflecting on this, we must not forget that care for confirmed victims of modern slavery is not just about fulfilling our moral obligations to the victims, who, let us not forget, have been exploited in the UK; it is also in our self-interest. There is no point spending taxpayers’ money finding victims, then taking them through the national referral mechanism, only to release them without the requisite immigration security to enable them to access the kind of help they need to recover. Failure to provide them with security and tailored support will leave them vulnerable to being re-trafficked and make it impossible for them to have the space needed to consider giving evidence against their traffickers in court. This is unsustainable. Securing increased testimony from victims in court is crucial if we are to see an increase in the stubbornly low conviction rate of traffickers.
In reflecting on these imperatives, the truth is that, while we badly need Amendment 27 to pass today, we also need a more far-reaching solution that provides immigration certainty and support for all confirmed victims, including UK nationals. This is a position which all 27 organisations that make up the Free For Good campaign agree with. That is why the Modern Slavery (Victim Support) Bill, introduced to the House by the noble Lord, Lord McColl, and sponsored in the other place by Sir Iain Duncan Smith, is so important.
It is odd that if someone is recognised as a refugee they automatically get five years’ leave to remain, but if they are recognised as a confirmed victim of human trafficking they get no statutory leave to remain on that basis. I am not entirely sure why we consider that we have a lesser obligation to people whose lives have been exploited and traumatised in the UK than we have to refugees. I am not saying for a moment that the way we treat refugees should become less generous. I am not saying that at all. My point is simply that we should treat confirmed victims of modern slavery more generously.
The Modern Slavery (Victim Support) Bill states that, once someone has been through the national referral mechanism and is a confirmed victim of modern slavery, they should be offered specialist tailored support to help them recover and a minimum of 12 months’ leave to remain to access that support. In that context, they will be protected from re-trafficking and be much more likely to have space to consider giving evidence against their traffickers in court.
Moreover, it will benefit not only England and Wales but Scotland and Northern Ireland by providing immigration security to those who are given support after they have been in the NRM. I note that, in the commemoration of UK Anti-Slavery Day later this month, a Motion is to be debated at Stormont on 13 October that calls on the UK Parliament to pass the Modern Slavery (Victim Support) Bill.
In conclusion, I hope the Minister will agree to act to ensure that there is a clear immigration path for confirmed victims of modern slavery who are EEA nationals, and to accept Amendment 27. To lead the way on modern slavery and to take immigration policy back into the hands of the UK Parliament, I call on the Government to make time for the Modern Slavery (Victim Support) Bill to become law by the end of the year. In the 2017-19 session, it cleared the House, unamended, in less than four hours. If the Government want it, this very Conservative Bill—sponsored, as it is, by a former leader of the Conservative Party and the noble Lord—could easily become law by Christmas. Rather than inaugurating the Brexit era on 1 January by eroding the effective rights of some confirmed victims of modern slavery, we could strengthen the rights of all victims, on a basis that, as the University of Nottingham’s Rights Lab has demonstrated, will save the Government money.
The Deputy Speaker (Baroness Pitkeathley) (Lab)
My Lords, the noble Lord, Lord Randall, has withdrawn and I understand that the noble Baroness, Lady Bennett, is no longer with us. The noble Lord, Lord Naseby, has also withdrawn, so I call the noble Baroness, Lady Hamwee.
Baroness Hamwee (LD)
My Lords, discretionary leave is a precarious response, as we have heard, and it is not frequently granted. We support the amendment and the Private Member’s Bill of the noble Lord, Lord McColl, as I have said on many occasions.
Some victims—though one would prefer to say “survivors”—want to get back home as quickly as possible. Others want to stay in order to recover—as far as recovery is possible—and for other reasons, as set out in proposed new subsection (2) of the amendment. One of the frequently expressed concerns about our response to slavery is the limited period provided for recovery after rescue, and 12 months is hardly a big ask.
One of the findings of the independent review of the Modern Slavery Act, published last year, was that few victims pursued or were granted civil compensation where that was possible. I therefore particularly support paragraph (c) of proposed new subsection (2).
Participating as a witness seems to be a factor that leads to the granting of discretionary leave. That can be a very big ask—I have used that word before—of the victim. Evidence is obviously important in prosecuting traffickers and exploiters, but granting leave to remain—the immigration response—should not be a transaction balanced by the person being prepared to give evidence. The issues that have been raised of course go far beyond the Bill. In Committee, we were reminded of the Government’s commitment to a world-leading system—and we have led the world.
Regarding the programme to transform the identification of and support for victims, and the legal framework, this is the second debate this afternoon in which data has been mentioned. Data is important. It indicates, among other things, a real interest in the impact of policy. That framework could, if we get it into the Bill, repeal the current provisions and be extended to all victims, which is what the noble Lord, Lord McColl, seeks—as do all noble Lords who have spoken. Having that framework in prospect should not preclude agreement to the amendment.
Lord Kennedy of Southwark (Lab Co-op)
My Lords, Amendment 27, proposed by the noble Lord, Lord McColl of Dulwich, has been signed by the noble Lord, Lord Alton of Liverpool, the noble Baroness, Lady Hamwee, and myself. The noble Lord, Lord McColl, has been tenacious and resolute in his efforts to speak up for victims of modern slavery, and it is very much to his credit that he has continued to be a voice for the victims of these appalling crimes. It is a matter of much regret that, so far, the Government have not been minded to listen to him. I join the noble Lord, Lord Alton of Liverpool, in his warm tribute to the noble Lord, Lord McColl. I have respected and admired the noble Lord since my earliest days in this House. He is a thoroughly good and decent man, and an example for all of us to follow. He set out a powerful case for the amendment. If it is not accepted, I have no doubt that it will be carried by a large majority when the House is divided. It was good to note his confirmation that he had the support of the honourable Member for Chingford and Woodford Green in the other place—not somebody who would normally be described as a lefty do-gooder.
The amendment provides for the circumstances whereby a person over the age of 18 is to be granted leave to remain in the United Kingdom, and proposed new subsections (2) and (8) set the necessary parameters for granting this status. The amendment is of course confined to EEA and Swiss nationals, but that is to get it within the scope of the Bill. Many victims of modern slavery are vulnerable people who are British and so do not need this additional protection, but that does negate the importance of helping those victims from abroad.
Lord Parkinson of Whitley Bay (Con)
My Lords, I thank my noble friend Lord McColl of Dulwich for instigating this important debate and I join other noble Lords in paying tribute to him for his dedicated and unswerving commitment to supporting the victims of modern slavery. As the noble Lord, Lord Alton of Liverpool, said, it is a commitment that is strong at any hour of the day and one that applies to all noble Lords who have spoken—and would have done to my noble friend Lord Randall of Uxbridge, who, as my noble friend said, would have spoken today had we reached this group sooner.
The Government are equally committed to tackling this heinous crime, which has absolutely no place in our society. We are now identifying more victims of modern slavery and doing more to bring the perpetrators to justice than ever before, and we are committed to supporting victims and survivors and helping them rebuild their lives. However, we do not accept that the victims of modern slavery who are EEA citizens should automatically be granted leave to remain in the UK, which is what my noble friend’s amendment seeks to do.
Granting leave to remain is appropriate in some cases, but the individual circumstances of a case are what must be central to the decision. I hope that all noble Lords will agree that a decision on whether leave is granted should not be determined by someone’s nationality. That is certainly an approach which complies with our international obligations under the trafficking convention. Where leave to remain is granted, it is normally where the victim is supporting the police either in an investigation, through being a witness in court or because of a requirement for medical treatment that needs to be provided in the UK—or, as the noble Baroness, Lady Hamwee, noted, because they are pursuing compensation for the exploitation that they have suffered. It is perhaps worth reiterating, as we touched on in Committee, that the most common nationality among all referrals in 2019 to the national referral mechanism was British, with UK nationals accounting for 27% of all those being referred, so tackling this abhorrent crime is separate from immigration policy.
For those who are not UK nationals, some victims of modern slavery already have leave to remain in another capacity or may qualify for a more advantageous status, such as refugee status. Victims from the EEA, who, as my noble friend noted in his opening remarks, may find that not possible, may also qualify for leave to remain under the EU settlement scheme. There is a further option that my noble friend did not touch on in his remarks, which is that victims can apply for support from the Home Office modern slavery victim care contract, which includes accommodation and support. We want to ensure that all victims and survivors, who are often very vulnerable people, as has been made apparent so powerfully today, have the support that they need.
For those who do not qualify for leave to remain, the Government are committed to supporting them to return to their home country and to rebuild their life. As the noble Baroness, Lady Hamwee, said, they often want to do that as soon as possible. We have links with NGOs around the world, including a memorandum of understanding with La Strada Poland, which supports the victims of modern slavery when they return home and helps them reintegrate into their communities. The Government are proud of the work we are doing to stamp out this abhorrent crime and I was pleased to hear the noble Lord, Lord Alton of Liverpool, pay tribute again to the world-leading legislation which has been passed in this area.
A blanket policy of granting discretionary leave risks creating the incentive for some—a minority of individuals—to make false trafficking claims in an attempt fraudulently to obtain leave to remain. We have to ensure that the system we have put in place is focused on those who truly need our help and is not abused by the sort of organised and callous criminality which, as has been said, profits from human misery. It is for these reasons that we believe that my noble friend’s amendment is unnecessary, and I hope that he will withdraw it.
Lord McColl of Dulwich (Con) [V]
My Lords, I thank all noble Lords who have taken part in this debate. I thank the noble Lord, Lord Alton, for his kind remarks and for all the support and hard work that he does on this and many other subjects. I also thank the noble Lord, Lord Morrow, who has done such wonderful work in Northern Ireland, and the noble Baroness, Lady Hamwee, for her support and her amazing stamina. She never seems to get tired.
To respond to the debate, it is clear that my Amendment 27 does not—I emphasise this—automatically grant leave to remain to all EEA nationals who are confirmed victims of modern slavery. It guarantees leave only where the criteria in the amendment are met, which will require an assessment of the circumstances in each case. The amendment does ensure that all confirmed victims who are EEA nationals are automatically considered for leave to remain. Without this change, confirmed victims who are EEA nationals will not only lose one of the avenues for recovery currently accessible to them—immigration status and recourse to public funds through treaty rights—they will find themselves at a disadvantage when compared with victims who are not EEA nationals and who are already automatically considered for discretionary leave to remain.
Without Amendment 27, EEA confirmed victims of modern slavery will be significantly worse off as a result of the Bill. It is unthinkable that this House should acquiesce to allowing the rights of some victims of human slavery to be moved backwards, and so I wish to test the opinion of the House.
The Deputy Speaker (Baroness Pitkeathley) (Lab)
My Lords, we come to the group consisting of Amendment 27A. I remind noble Lords that Members other than the mover and the Minister may speak only once and that short questions of elucidation are discouraged. Anyone wishing to press this amendment to a Division should make that clear in debate.
Amendment 27A
Baroness Hamwee
“Rights and applications after the commencement of this Act
(1) In the event that a person with settled status granted pursuant to the Scheme applies for British citizenship, the period of residence in the United Kingdom which was the qualification for settled status must be treated as not being in breach of any provisions referred to in subsection (6).(2) A person resident in the United Kingdom on or before 30 June 2021 shall be treated as not being in breach of any provisions referred to in subsection (6) if he or she is in scope of eligibility for leave to remain under the Scheme.(3) The Secretary of State may not refuse an application by a person for settled status or pre-settled status under the Scheme made during the period ending on 30 June 2021 on the basis that he or she does not hold or has not held comprehensive sickness insurance.(4) The Secretary of State may not refuse an application for settled status under the Scheme made after 30 June 2021 by a person with pre-settled status on the basis that he or she does not hold or has not held comprehensive sickness insurance.(5) “The Scheme” means the scheme known as the EU Settlement Scheme for settled status or pre-settled status under Appendix EU of the Immigration Rules and the terms “settled status” and “pre-settled status” are interpreted accordingly.(6) The provisions referred to in this subsection are all provisions applicable to the person’s residence including the Immigration Acts and the Immigration Rules.”
Baroness Hamwee (LD)
My Lords, the amendment was written with the aid of anti-migraine tablets after some perhaps slightly unfocused exchanges in the previous stage and on the first day of Report about the grace period for the EU settlement scheme and comprehensive sickness insurance. I will not be seeking the opinion of the House.
I have tried to note situations that are giving cause for concern. I am aware that we now have a statutory instrument, and I hope that today’s debate can contribute to our consideration of that. As I said last week, those who know the subject were still poring over the SI, and I do not know whether they have yet come up for air.
I am seeking assurances, through this debate, that the propositions set out in the amendment accurately reflect, and are reflected by, the statutory instrument—I suppose it should be the latter. If what I am asking for cannot be put on the record today, a letter would be very welcome.
The first assurance I seek is that once someone has settled status he can be confident that he will be treated as not having been in breach of immigration provisions during the qualifying period; in other words, that nothing will come back to bite him—not the sort of language one uses in legislation. The second is that a person resident in the UK before the end of the grace period, and eligible for leave to remain, will be treated as not being in breach of those provisions. The third is that an application for status, whether settled or pre-settled status, may not be refused because the applicant does not, or has not had, comprehensive sickness insurance. I acknowledge that there could be another basis for refusal. Fourthly, I would like an assurance that the lack of CSI may not be a reason for refusing settled status after the same date to someone who holds pre-settled status.
I do not for a moment believe that the amendment is perfectly drafted but I hope that my objective is clear. It would be helpful if the Minister’s response is as jargon-free as possible and in the sorts of terms I have used.
On 16 September, the Minister said:
“The grace period statutory instrument does not change the eligibility criteria for the EU settlement scheme and those criteria do not include CSI.”—[Official Report, 16/9/20; col. 1340.]
Later, however, she said that the grace period maintains CSI as a requirement for lawful residence during the grace period, for students and people who are self-sufficient, and that
“EEA citizens’ rights to live and work in the UK will not change during the grace period, nor does the grace period SI change the eligibility criteria for the EU settlement scheme. Therefore, there is no change to the Government’s policy that comprehensive sickness insurance is not required to obtain status under the EU settlement scheme.”—[Official Report, 30/9/20; col. 244.]
My amendment is directed at what that means in practice because, with regard to the scope of the regulations, the Minister went on to say:
“People need to exercise free movement rights to benefit from the savings in the grace period SI. We are not inventing rights of residence to save them, because that is not what the withdrawal agreement says.”—[Official Report, 30/9/20; col. 244.]
What the withdrawal agreement does say in Article 18(3) is this:
“Pending a final decision”,
and I stress that phrase,
“by the competent authorities on any application referred to in paragraph 1”—
in the case of the UK this relates to applications to the EUSS—
“and pending a final judgment handed down in case of judicial redress sought against any rejection of such application by the competent administrative authorities”,
and I stress the next bit as well,
“all rights provided for in this Part”,
which are residents’ rights and all related equal treatment rights in the agreement,
“shall be deemed to apply to the applicant, including Article 21 on safeguards and right of appeal, subject to the conditions set out in Article 20(4).”
On the first day of Report, the noble Lord, Lord Rosser, explained the concern raised with both of us by the3million that:
“In their current form, the regulations appear to exclude a large cohort of people from having a legal basis to live in the UK during the grace period and whilst their application is pending. The regulations limit a legal basis to live in the UK to those who were ‘exercising treaty rights’ in accordance with existing EEA regulations by the end of the transition period.”—[Official Report, 30/9/20; cols. 240-41.]
The organisation amplified this by saying:
“Crucially, there will be people who are eligible for status via the EUSS who will not have a legal basis to live in the UK during the grace period. Furthermore, anyone who has … submitted an application to the EUSS before the end of the transition period … is pending a decision after the transition period ends … Will have to demonstrate they fall within the scope of the regulations to have the benefit of its protection.”
Generally, those protected by the regulations will be economically active at the end of the transition period, and they will have the benefit of legal protections during the grace period and while their application is pending. However, that is not the case for those who are not economically active by the end of the transition period, such as an EU citizen dependent on a British spouse and without private health insurance. As my noble friend Lady Ludford said, the technical term is comprehensive sickness insurance, but really in this country we know it as private health insurance, which fulfils what is meant by comprehensive sickness insurance.
Baroness Whitaker (Lab)
My Lords, I have little to add to the magisterial introduction made by the noble Baroness, Lady Hamwee, to Amendment 27A, but I will emphasise the deficit of the Bill as it stands especially with regard to Roma women with settled status who look after their children full-time and who apply for British citizenship. The underlying problem—in real life rather than in Home Office rules—is that while their children are little, the mothers have a weak connection to the labour market, like other full-time mothers. I am surprised that this Government should prejudice mothers in this way.
So, because they cannot prove they were exercising treaty rights—according to the Home Office, which does not accord with the European Commission’s interpretation—by showing that they have comprehensive sickness insurance, their application fails. I remind your Lordships that Theresa May, as Home Secretary, recognised this injustice and promised to do away with the requirement for CSI in these cases. So it is very odd that updated Home Office guidance in 2020 changed the application process to direct caseworkers to check whether such applicants had CSI. An undefined power of discretion has not proved much use in rectifying the injustices to full-time mothers. It is shocking that the Government have not honoured the earlier commitment.
In her letter to us of 29 September, the Minister said that the Government’s policy is that CSI is not required to obtain status under the EUSS. Nevertheless, the grace period SI maintains CSI as a requirement for lawful residence during the grace period as a student or self-sufficient person, such as a full-time mother, under the saved EEA regulations because, according to the Home Office, this is consistent with EU law. This is not the European Commission’s view, and it is not right or just that applications are turned down because there is no CSI.
Baroness Ludford (LD)
My Lords, I will go over very similar ground to that raised by my noble friend Lady Hamwee.
The background is that, under the withdrawal agreement, the UK is obliged to create a grace period following the end of the transition period. During this grace period, EEA citizens have the opportunity to apply by a deadline for a new immigration status through the EU settlement scheme, as it is called in the UK.
As EU rights will end on 31 December, the Government need to create an interim status for those who have yet to acquire their new status via the EU settlement scheme—hence the grace period SI. As we know, it sets the deadline for applications to the settlement scheme as 30 June next year, but the Minister said last Wednesday, on the first day of Report, that it would also
“protect the existing rights of resident EEA citizens and their family members during the grace period.”
What does “existing” mean? A fact sheet published in July also used that adjective when it said that the power in Section 7 of the European Union (Withdrawal Agreement) Act 2020 would be used—as has now happened with this grace period SI—to make regulations
“to protect the existing rights of those individuals who are eligible to apply to the EU settlement scheme”.
As the noble Lord, Lord Parkinson, did in Committee on 16 September, the Minister said last Wednesday that she could reassure us—here, I repeat a quotation given by my noble friend—that
“EEA citizens’ rights to live and work in the UK will not change during the grace period, nor does the grace period SI change the eligibility criteria for the EU settlement scheme. Therefore, there is no change to the Government’s policy”,
which, as we have learned, was set by Theresa May,
“that comprehensive sickness insurance is not required to obtain status under the EU settlement scheme.”
Therefore, so far we have established two government statements: first, that the existing rights of those eligible to apply to the EU settlement scheme will be protected; and, secondly, that acquiring settled status will not involve a requirement for CSI. So far, so good. Ministerial assurances seemed to accord with Article 18(3) of the withdrawal agreement, which provides that, pending a final decision, all rights provided for in the citizens’ rights section of that agreement shall be deemed to apply to the applicant. That means residence rights and all related equal treatment rights.
However, things then get somewhat murkier. Last Wednesday, the Minister added a caveat—again, quoted by my noble friend—when she said:
“People need to exercise free movement rights to benefit from the savings in the grace period SI. We are not inventing rights of residence to save them, because that is not what the withdrawal agreement says.”—[Official Report, 30/9/20; cols. 243-4.]
When I checked back, I saw that the noble Lord, Lord Parkinson, had explicitly said on 16 September in Committee:
“The grace period SI maintains”
comprehensive sickness insurance
“as a requirement for lawful residence during the grace period for a student or self-sufficient person under the saved EEA regulations, as is consistent with EU law.”—[Official Report, 16/9/20; col. 1340.]
I will not go round all the houses again, but I beg to differ with that last comment, as I believe that the Commission is pursuing infringement proceedings—it is taking a while; it launched them in 2012—over the Government’s wrong interpretation of CSI as meaning private health insurance. In this country, it should mean accessing the National Health Service. However, for current purposes, I will just concentrate on the first part of the noble Lord’s statement: namely, the proposal that during the grace period students and self-sufficient persons will have to show that they have CSI—that is, private insurance—in order to qualify as lawfully resident.
The remarks confirm that in their current form, limiting a legal basis to live in the UK to those who were “exercising treaty rights” in accordance with existing EEA regulations by the end of the transition period, the regulations appear, as my noble friend said, to exclude a large cohort of people from having a legal basis to live in the UK during the grace period and while their application is pending. In general, a worker and someone who is self-employed will benefit from legal protections, but those not economically active by the end of the transition period will likely be unable to do so, with the consequences that my noble friend enumerated—possible removal, the denial of NHS treatment, being put out of a job, or whatever.
Even where someone successfully lodges an application with the EU settlement scheme, if they are awaiting a decision beyond the end of the grace period and are not in scope of the regulations, they will not have the legal protections it offers. Therefore, someone with a complex EUSS case could be without a legal basis to remain in the UK for many months beyond the grace period.
As a taste of things to come, a case has been brought to my attention where parents seeking to renew their five year-old son’s British passport were told that the EU citizen father had to supply evidence of having had CSI—I repeat: private health insurance—when he was a student many years ago.
To recap where I think we are, we have three government statements: first, that the existing rights of those eligible to apply to the settlement scheme will be protected in the grace period; secondly, that CSI is not a requirement for acquiring settled status; and, thirdly, that CSI is a requirement for some people to have lawful residence in the grace period. We can add in a fourth, given in the course of this Bill: that discretion will be exercised—we have not heard how—in regard to the absence of CSI in assessing eligibility for citizenship.
I am struggling to make sense of how those four statements fit together and to understand how the Government really intend to treat people. So far as I can see, it leaves matters as clear as mud and full of contradictions and obstacles. It seems that the Government are set on making a person cross a crocodile-infested river of legal uncertainty over residence before they can reach the safe shore of settled status.
Therefore, I back up the questions that my noble friend asked the Minister about the practical implications for people who do not fall within the scope of the regulations. Will there be further regulations to cover those eligible for settled status but not in scope of the regulations? When they apply for settled status, will they be told, “Oh no, we don’t need to ask you for CSI, but in the meantime, under the grace period SI, you need CSI”. It is like being on a chessboard, although I can think of some other analogy.
I have one last question. Are the Government willing to consider changing the draft regulation from stating a requirement to have been “lawfully resident”—which, as we know, according to the Government’s interpretation is an extremely loaded term—to a requirement simply to have been “resident”? Given that this definition operates for only six months, save in cases where a settled status application has been made, this might be a simple, workable solution that could save a lot of people a lot of anxiety. This sounds like an awfully complicated and arcane situation. It is, and in the real world a lot of people are affected by it. They are represented by the the3million group, which, again, is doing sterling work, although, as far as I know, even it has not got its head round it, so I do not know what hope there is for someone like me.
I hope the Minister can bring some coherence to this situation, or display a willingness to look again at the regulations under the grace period SI to see if the Government are creating unnecessary hurdles for people who were told they would not need CSI or settled status when perhaps applying later for citizenship. It seems to be creating an awful lot of unnecessary hassle.
Lord Rosser (Lab) [V]
The grace period regulations limit a legal basis to live in the UK to those who were “exercising treaty rights” in accordance with existing EEA regulations by the end of the transition period. This must mean that such citizens who are not exercising their treaty rights fall outside the protection of having a legal basis to live in the UK. This appears to cover a potentially significant number of people, including those who have not held comprehensive sickness insurance.
Amendment 27A ensures EU nationals cannot have an application denied for citizenship, settled status, or pre-settled status on the basis they have not held comprehensive sickness insurance. It is clear from the debate there is considerable confusion—which I share—about the actual position. Surely, any doubts, confusion or uncertainty would be removed by the Government accepting this amendment or returning with their own amendment at Third Reading. That would help clarify the situation.
I conclude by simply saying this, as I do not want to repeat all the valid points that have been made. If Government will not do that, could the Minister spell out the circumstances in which an EU national would have an application denied for citizenship, settled status or pre-settled status on the basis they have not held comprehensive sickness insurance?
Baroness Williams of Trafford (Con)
I thank all noble Lords who have spoken in this debate, particularly the noble Baroness, Lady Hamwee, who has tabled Amendment 27A. I hope I can provide clarification.
The new clause has three main purposes. First, it seeks reassurance that comprehensive sickness insurance is not, nor will be in future, an eligibility criterion for applications to the EU settlement scheme. Secondly, it seeks to provide that if someone is eligible to apply to the scheme, their previous residence should be deemed lawful, whether or not that was the case under the EEA regulations. Thirdly, the new clause seeks to remove the lawful residence requirement from British citizenship applications by those who hold settled status under the EU settlement scheme.
Let me address the noble Baroness’s concern about comprehensive sickness insurance, which has been raised several times during consideration of the Bill. Subsections (3) and (4) of her proposed new clause concern eligibility to apply to the EU settlement scheme. I can assure the noble Baroness that currently, there is no requirement for comprehensive sickness insurance or previous lawful residence under the EEA regulations in order to be eligible to apply under the scheme. This will not change for applications made after the transition period, nor after the grace period. I can reassure the House that an application made before or after the deadline of 30 June 2021 will not be refused for failure to hold comprehensive sickness insurance. Accordingly, the amendment is not necessary.
I turn to proposed new subsection (2), which seeks to provide that the previous residence of anyone who is eligible to apply to the EU settlement scheme by the deadline of next June will be deemed to have been lawful whether or not it in fact was. In doing so, the intention is to support applications for citizenship, which I will come to shortly. However, the effect of this amendment is wider. It would create new residence rights for those who do not have them at the end of the transition period, as they are not complying with free movement law and have yet to apply to the EU settlement scheme. Those who are currently here without residence rights will continue to have no residence rights until they apply to the EU settlement scheme; that is why we are encouraging them to apply to the scheme.
In line with the withdrawal agreement, the Government are using secondary legislation under the European Union (Withdrawal Agreement) Act 2020—the so-called “grace period SI”—to save the existing rights of those EEA citizens and their family members who are lawfully resident in the UK at the end of the transition period under 2016 EEA regulations. The noble Baroness, Lady Ludford, asked me to set out the existing rights; they are pre-settled or, indeed, settled status. This means that an EEA citizen, or their family member, who is resident in the UK at the end of the transition period but is not exercising free movement rights will still be able to apply to the EU settlement scheme by the deadline of 30 June next year. However, they will not have any residence rights under free movement law protected during the grace period. This is for the simple reason that they do not possess these rights at the end of the transition period. This reflects the current situation, as set out in the free movement directive and the EEA regulations.
The noble Baroness’s amendment seeks to create new EU rights of residence beyond those saved by the grace period SI once free movement has ended. That cannot be right, nor accepted by the Government. Having an EU “right to reside” provides other rights beyond the right to stay in the UK, as it can confer access to social security benefits. I am sure noble Lords would agree that, at this juncture, after we have left the EU, it would not be appropriate to widen EEA citizens’ benefit eligibility any further than those groups who are already entitled to it.
This brings me to the final limb of the new clause, which I think is probably its main objective, concerning how EEA and Swiss citizens who hold settled status might then proceed to naturalise and become British citizens. The noble Baroness will be aware that the power to determine naturalisation applications from all migrants—not just EEA and Swiss citizens—is set out in the British Nationality Act 1981. Under Section 6(1) of the Act, an applicant is required to show that they have sufficient residential ties here. For example, they must have resided here lawfully for at least five years and they must no longer be subject to any immigration time restrictions. Proposed new subsection (1) would require any residence before the granting of settled status to be treated as lawful, regardless of whether it actually was or the circumstances under which it occurred. That cannot be right, and I do not consider it unreasonable to ask anyone wishing to become British to have resided here lawfully.
Amendment 27A seeks to treat those with settled status under the EU settlement scheme differently from other EEA and Swiss citizens, and also non-EEA citizens. I believe the noble Baroness is most concerned about those who—as the noble Baroness, Lady Ludford, outlined—are here as students or are self-sufficient. This is because free movement rules require them to hold comprehensive sickness insurance after their initial three months of residence in order to be lawfully resident. This is not a new issue. Had a student or self-sufficient person previously made an application for permanent residence documentation without holding CSI, they would have been refused.
The noble Baroness may be aware that, even where CSI has not been held by a student or self-sufficient person, it does not mean that a naturalisation application must be refused. The British Nationality Act permits the application of discretion to this requirement in the special circumstances of a particular case. Caseworkers will therefore continue to examine each application to understand why the individual did not comply with the EEA regulations, as well as any reasons which can nevertheless allow an application to be granted. This is already set out in published guidance for decision-makers. However, it is right that we assess on an individual basis, rather than having a general rule to overlook any non-compliance.
The noble Baroness, Lady Whitaker, made a point which we went over in detail yesterday, about people who are applying either to the EU settlement scheme or for citizenship, which are two different things. There are a lot of voluntary organisations to help people who might need assistance through this process, but naturalisation as a British citizen is not part of the EU settlement scheme; nor is it covered by the withdrawal agreement. We welcome people who make the personal choice to become British citizens, but there is no need for any new arrangements because of our leaving the EU. The existing system already applies equally and fairly to all applicants. I hope that I have given the noble Baroness the assurance that she sought and that she is happy to withdraw her amendment.
Baroness Hamwee (LD)
My Lords, I am grateful to those who have taken part in this debate. My noble friend Lady Ludford asked whether this was a chessboard, but I think it is more like snakes and ladders: up you go, you think you are settled and then you slither downwards into what she called the “crocodile-infested” waters of CSI.
When the Minister referred to “lawful residence” under the British Nationality Act I wrote a question to myself about whether this meant treaty rights—which you would need to have had CSI to exercise—to which I think the answer is yes. She then mentioned discretion. One always has a concern about discretion because the law should provide, not leave things to caseworkers, but the situation that we have posed is not unusual.
I do not intend a pun here, but the issue is not settled. I am glad that we have had this exchange. I do not pretend to know whether I am comforted. I think I am not, as noble Lords will understand from my last remarks, but much better that I leave the experts to use what the Minister has shared with us when they are considering the regulations. I thank her and beg leave to withdraw the amendment.
The Deputy Speaker (Baroness Morris of Bolton) (Con)
My Lords, we now come to the group consisting of Amendment 28. I remind noble Lords that Members others than the mover and the Minister may speak only once, and that short questions of elucidation are discouraged. Anyone wishing to press this amendment to a Division should make that clear in debate.
Clause 5: Power to modify retained direct EU legislation relating to social security co-ordination
Amendment 28
Lord Flight
“(2A) The power to make regulations under subsection (1) does not include power to make provision inconsistent with the withdrawal agreement as defined by section 39 of the European Union (Withdrawal Agreement) Act 2020 (interpretation).”Member’s explanatory statement
This amendment would ensure that the power to make regulations under subsection (1) can only be used in ways consistent with the UK’s obligations under the EU Withdrawal Agreement.
Lord Flight (Con) [V]
My Lords, I am sorry that I must participate by telephone, but Zoom did not work for me today. Amendment 28 would ensure that the power created by the Bill could be used only in ways which are consistent with the UK’s obligations under the UK-EU withdrawal agreement.
The retained direct EU legislation set out in Clause 5(2) is the full gamut of EU legislation on social security co-ordination. Under the withdrawal agreement, the UK is committed to apply this legislation to all those within the scope of Part 2 of the agreement —“Citizens’ Rights”— and to some others. It seems strange that essentially financial matters to do with pensions are mixed with other social matters here.
The Deputy Speaker (Baroness Morris of Bolton) (Con)
Is the noble Lord moving his amendment?
The Deputy Speaker (Baroness Morris of Bolton) (Con)
Well, the noble Lord has actually spoken, so he needs to move it for everybody else to respond.
Lord Flight (Con) [V]
Right. I will withdraw the amendment when I sum up at the end.
The Deputy Speaker (Baroness Morris of Bolton) (Con)
The noble Lord, Lord Naseby, has withdrawn, so I call the noble Baroness, Lady Hamwee.
Baroness Hamwee (LD)
My Lords, on the first day of Report, on an equivalent amendment to Clause 4, the Minister gave an assurance that the Government have absolutely no intention of acting incompatibly with the citizens’ rights provisions in the withdrawal agreement. However, as the noble Lord, Lord Flight, has said, that is not the point. He set out very carefully the social security provisions which are the issue here. The concern is that the use of regulations, or secondary legislation, to modify the primary legislation that is the basis of the various benefits could wittingly or unwittingly modify them—“modify” is a polite legislative word for “cause a lot of people a lot of problems”. If this amendment were part of the Bill, it would protect against this.
Last week, the noble Lord referred to the establishment under the 2020 Act of the Independent Monitoring Authority, and I was grateful for that. I share a rather wry smile with noble Lords because provided for in the authority’s powers is that it may make applications for judicial review—we all know the Government’s expressed position on activists and lawyers using applications for judicial review and generally not liking frequent resort being made to them. There is of course a review of the use of judicial review going on at the moment. So I thank the noble Lord for that moment of amusement in this complicated area. I support the amendment.
Baroness Sherlock (Lab) [V]
My Lords, as we heard from the noble Lord, Lord Flight, this amendment would prevent regulations made under Clause 5 including any provisions that could be inconsistent with the withdrawal agreement. I presume that the aim is to avoid any action that might serve to undermine the rights of UK citizens in the EU and EU citizens here that were guaranteed under the withdrawal agreement.
As the noble Baroness, Lady Hamwee, said, we have had this debate at earlier stages and on Clause 4. On the basis of those past debates, I think there is a decent chance that the Minister will say that this amendment is unnecessary. But as the noble Lord, Lord Flight, pointed out: what is the downside? Given the uncertainty caused by statements elsewhere about the nature of the withdrawal agreement and the extent to which the UK is committed to it, the Minister will understand why some noble Lords are nervous and want the kind of assurances that one would hope she should be able to give without difficulty.
The noble Lord, Lord Flight, explained the terribly important issues that are covered by Clause 5. This will be our only engagement on Report with the subtle joys of this clause. I raised many of the issues about social security co-ordination at Second Reading and in Committee, and felt that I did not get satisfactory answers in Committee. However, I have now received a letter from the Minister, the noble Baroness, Lady Stedman- Scott, which has provided more information. In the light of that, I do not intend to move Amendment 29 in my name in the next group.
I remain very concerned about the implications for too many people of the loss of reciprocal arrangements for social security co-ordination, but I recognise that we will not get anything more at this stage of the Bill. I hope that the letter I mentioned will be placed in both Libraries. Because it contains information about new developments which were not reflected in the draft regulations shared with us in Committee, it would be helpful if the letter were displayed as soon as possible in the relevant place under the “will write” section of Bills before Parliament, so that its contents are readily accessible to those who are interested.
These are very important issues. I look forward to hearing what the Minister has to say.
The Parliamentary Under-Secretary of State, Department for Work and Pensions (Baroness Stedman-Scott) (Con)
My Lords, I am grateful to the noble Lord, Lord Flight, and the noble Baroness, Lady Hamwee, for speaking to this amendment. The Government have given written assurances in every Bill document throughout the passage of the Bill on this point; I have reiterated those assurances in Committee, and I will do so again here.
I can assure the House that Clause 5 does not enable the Government to alter the rights guaranteed to those in scope of the withdrawal agreement. The entitlements of this cohort are guaranteed by Sections 7A and 7B of the European Union (Withdrawal) Act 2018, as amended by the European Union (Withdrawal Agreement) Act 2020. The power at Clause 5 will not and cannot affect those provisions. Rather, it allows for EU law retained by Section 3 of the European Union (Withdrawal) Act 2018 to be modified. The rights under the withdrawal agreement are therefore provided by a distinct and separate legal mechanism in relation to that of retained EU law, and this power will not affect the rights of those within the scope of the agreement. This includes those examples given by the noble Lord, Lord Flight, such as state pension uprating, the S1 scheme and the aggregation of contributions. It is therefore the Government’s view that Amendment 28 is unnecessary, on the grounds I have set out.
I note the request of the noble Baroness, Lady Sherlock, for my letter to her to be placed under the “will write” section—I am so pleased that that makes sense—of Bills before Parliament.
I reiterate that it is the Government’s view that Amendment 28 is unnecessary, on the grounds I have set out. I hope that with this explanation, the noble Lord, Lord Flight, will withdraw his amendment.
The Deputy Speaker (Baroness Morris of Bolton) (Con)
My Lords, I have received no requests to ask a question of the Minister, so I now call the noble Lord, Lord Flight.
Lord Flight (Con) [V]
My Lords, this amendment addresses the aggregation of social security contributions across the EU, mutual healthcare and, in particular, the payment of pensions and pension increases to pensioners living in different EU countries. It is important that citizens’ positions are protected. The noble Baroness, Lady Stedman-Scott, has given a satisfactory undertaking that these areas cannot be affected by the clause in question and that this amendment is therefore not necessary. I beg leave to withdraw the amendment.
Baroness Hamwee
(a) (Time limit on immigration detention for EEA and Swiss nationals),(b) (Initial detention: criteria and duration), and(c) (Bail hearings)which come into force six months after the day on which this Act is passed.”Member’s explanatory statement
This amendment provides that new Clauses "Time limit on immigration detention for EEA and Swiss Nationals", "Initial detention: criteria and duration" and "Bail hearings" come into force six months after the Act is passed.
The Deputy Speaker (Baroness Morris of Bolton) (Con)
My Lords, we now come to the group beginning with Amendment 32. I remind noble Lords that Members other than the mover and the Minister may speak only once, and that short questions of elucidation are discouraged. Anyone wishing to press this, or anything else in this group, to a Division should make that clear in the debate. I should inform the House that if Amendment 32 is agreed to, I cannot call Amendment 32A.
Schedule 1: Repeal of the main retained EU law relating to free movement etc.
Amendment 32
Lord Pannick
Lord Pannick (CB) [V]
My Lords, last but I hope not least, Amendment 32 is in my name and in the names of the noble Lords, Lord Rosser and Lord Beith, and the noble Baroness, Lady Hamwee.
Amendment 32 addresses a very odd provision in paragraph 4(2) of Schedule 1. As currently worded, it states that provisions of the EU regulation on free movement for workers cease to apply if
“they are inconsistent with … the Immigration Acts”
or
“capable of affecting the interpretation, application or operation of any such provision.”
I suggested in Committee, with widespread support from all sides of the Committee, that the parliamentary draftsmen could and should do better than that. Paragraph 4(2) as currently drafted defies the need for legal certainty. The Bill should set out which provisions of the workers regulation will cease to apply.
The Minister promised to look at this matter, and she indicated that she would discuss it with me. Faithful to her word, as she always is, she has discussed the matter with me—for which I am very grateful—and has now tabled Amendment 32A, which satisfactorily addresses the point. I am very grateful to her. Amendment 33 addresses a similar problem, but sadly it has not received a favourable response from the Minister.
Paragraph 6(1) of Schedule 1 tells us that
“EU-derived rights, powers, liabilities, obligations, restrictions, remedies and procedures cease to be recognised and available in domestic law”
in two circumstances—that is if
“they are inconsistent with, or … capable of affecting the interpretation, application or operation of,”
a provision of the Immigration Acts, or if
“they are otherwise capable of affecting the exercise of functions in connection with immigration.”
I simply do not understand how advisers on immigration law, far less those individuals who are the subject of immigration law, are supposed to work out what their legal rights and obligations are. Legal certainty requires, in my view, that the schedule should set out those EU-derived rights et cetera which are disapplied, or those which are retained. Your Lordships’ Constitution Committee, of which I am a member, criticised the legal uncertainty in our 11th report of this Session published on 2 September.
I think the only answer the Minister could possibly give to the concern I have identified about legal certainty is that Ministers and parliamentary draftsmen do not now know which provisions of EU law survive and which do not. That rather makes my point, I think. However, I do not intend to divide the House on this matter, troubling though it is. I beg to move.
Lord Beith (LD)
My Lords, my name is attached to the noble Lord’s Amendments 32 and 33 because they address two long-standing concerns of the Constitution Committee. The first is the broad and unjustified use of Henry VIII powers. The second is the confusing and counterproductive complexity of immigration law, which we believe needs to be clear and consolidated. That is why I support these amendments. I welcome the fact that the Government have addressed the first of these issues by tabling Amendment 32A, which makes more specific the scope of the power, confining it, as the noble Lord, Lord Pannick, has said, to Articles 2 to 10 of the workers regulations.
I would have welcomed a similar willingness to move on the issues that the Constitution Committee has raised in relation to paragraph 6 of Schedule 1, which nullifies EU-derived rights and remedies. The noble Lord, Lord Pannick, has quoted some parts of paragraph 6 and they are really extraordinary: rights should disappear because
“they are inconsistent with, or are otherwise capable of affecting the interpretation, application or operation of, any provision made by or under the Immigration Acts”
and, even stranger, because they are
“otherwise capable of affecting the exercise of functions in connection with immigration.”
I can think of all sorts of functions that people might consider were “in connection” with immigration, but we really need laws that are clearer than that.
Adrian Berry, chair of the Immigration Law Practitioners’ Association, said when he gave evidence to us:
“How is the ordinary person, never mind the legislator, to know whether the law is good or not in a particular area if you draft like that?”
I know that parliamentary draftsmen have had a pretty heavy diet of work lately, not least with Covid-19 orders, but it is possible to do better than that, unless the instructions given to them were so unspecific as to leave things so wide open that they had to draft the legislation in that extraordinary way.
Paragraph 69 of the Explanatory Notes tries to explain why this is necessary, but fails to do so—at least I find it completely unpersuasive. I did learn a little more about Chen carers than I knew previously, which was almost nothing. I am sure that my noble friend Lady Hamwee thinks of little else at some stages of the Bill than the quite obscure provision that resulted from the Chen case before the European Court of Justice. However, I certainly found the argument unpersuasive.
The committee says:
“The statute book requires clarity rather than obscurity and provisions such as these threaten to frustrate essential ingredients of the rule of law.”
An essential ingredient of the rule of law is that it is on record and visible and capable of being understood, particularly by those who practice it professionally, but preferably by a wider range of people as well, including those who may face either a penalty or, in this case, the inability to have a right to which they believe they are entitled as a consequence of wording as vague as this.
There is still time to improve this: the Minister could come back at Third Reading with an amendment that makes clear the purpose of this paragraph, and I am only sorry that she has not done so thus far.
Baroness Hamwee (LD)
My Lords, the explanation of the noble Lord, Lord Pannick, of how unsatisfactory the Bill is, particularly Schedule 1, was a model of clarity, unlike the schedule. He has also left us, from the earlier stage, with a vision of straining to read the Emperor Caligula’s laws, and that will stay with me, possibly longer than Schedule 1.
The comments of the Constitution Committee on the complexity of immigration law being a serious threat to the ability of lawyers and judges to apply it consistently were, in a way, reassuring to those of us who struggle with it, but otherwise not reassuring at all, as the noble Lord and my noble friend made clear in their speeches. I am very sorry to disappoint my noble friend by not wandering off into comments on case law. I support the amendment.
Lord Rosser (Lab) [V]
I congratulate the noble Lord, Lord Pannick, on having persuaded the Government to introduce their Amendment 32A, in the light of his comments on this in Committee, and on tabling Amendment 32, to which I have added my name.
The similar concern over wording that resulted in Amendment 33 has not been addressed by the Government. Amendment 33 would remove paragraph 6 of Schedule 1. As noble Lords know, paragraph 6, like paragraph 4(2), is broadly drafted. It provides that any EU-derived rights, powers, et cetera, that are inconsistent with or “capable of affecting” the Immigration Acts or functions cease to be recognised.
The Delegated Powers and Regulatory Reform Committee and the Constitution Committee have both expressed their strong concerns about the sweeping powers that the Government are seeking to take under the Bill—powers that will not be subject to any effective parliamentary scrutiny. In Committee, in response to the noble Lord, Lord Pannick, the Minister said:
“I totally understand the point that the noble Lord makes about certainty. In addressing this, I should like to meet him, because I totally get what he is saying. He is not being difficult; he is just asking that we lay out the law and provide certainty.”—[Official Report, 7/9/20; col. 580.]
Why then are the Government not also prepared to lay out the law and provide that certainty over the EU-derived rights, powers, et cetera, that are being referred to in paragraph 6 of Schedule 1? I hope the Minister will answer that point in her response.
One has already been mentioned as a possibility. Bearing in mind that, in Committee, the Minister also said
“I note that the drafting of paragraph 6(1) of Schedule 1 ensures that nothing is missed that might mean free movement was only partially repealed”,—[Official Report, 7/9/20; col. 576.]
that could mean that the Government are not prepared to move on paragraph 6(1) because they do not rate their ability to ensure that the Bill says all it needs to say to ensure that free movement is fully repealed. To cover up for their anticipated deficiencies, the Government take these powers to act without full parliamentary scrutiny and leave people in a situation where the legislation, in paragraph 6(1) of Schedule 1, does not enable them to identify the exact nature of their obligations and rights. If that is the motive for not moving on paragraph 6(1) of Schedule 1, in the way that the Government have on paragraph 4(2), one can say only that that is not the purpose for which use of these powers was originally intended. No doubt we will hear from the Minister why the Government have not moved on paragraph 6(1) of Schedule 1 or at least produced their own amendment in response to Amendment 33 of the noble Lord, Lord Pannick.
Baroness Williams of Trafford (Con)
My Lords, I thank the noble Lord, Lord Pannick, and other noble Lords who have spoken to Amendments 32 and 33. I was grateful for the opportunity to meet the noble Lord and draft Amendment 32A as a result.
I understand why noble Lords find these provisions difficult to follow. They are, however, essential in repealing EU free movement. Paragraphs 4 and 6 of Schedule 1 disapply elements of retained EU law, where they are inconsistent with or affect the interpretation, application or operation of the Immigration Acts. “The Immigration Acts” is a commonly used legislative shorthand for the UK’s domestic immigration legislation. Most importantly, it includes the Immigration Act 1971, which sets out the requirement for non-British and non-Irish citizens to have leave to enter or remain. “The Immigration Acts” is defined in Section 61 of the UK Borders Act 2007, and the Bill, once enacted, will be added to that definition by Clause 3.
These phrases therefore clarify that the retained EU law in question does not provide a back-door route to enter or reside in the UK outside of the system of leave to enter and remain, once the main free movement legislation is repealed. That system is made up partly of Immigration Rules made under the 1971 Act. That is why the words
“by or under the Immigration Acts”
feature in these paragraphs.
Lord Pannick (CB) [V]
I thank the Minister, certainly for government Amendment 32A, which deals with the concern that we have expressed in Amendment 32. However, the Minister’s attempt to defend paragraph 6(1) of the schedule is, I am afraid, wholly unconvincing. Her observations do not provide me with any useful clarification as to how the paragraph is going to apply. As the Minister has said, there are too many provisions and the position is too uncertain, and therefore the legislation cannot list the provisions. What she is suggesting, as I said in my opening remarks, is that the position is too uncertain for clarification, but the inevitable consequence is that the position is too uncertain for those who are advising immigrants and for immigrants themselves. They cannot possibly know with certainty how this provision will apply. I should respectfully warn the Minister that, if and when paragraph 6(1) is the subject of litigation in individual cases, the Government may well find that the courts will adopt a very unsympathetic approach to it and will give it the narrowest possible interpretation because it is so lacking in certainty. That is the real risk that the Government are running.
I have never seen a provision like paragraph 6(1) before in legislation—that is, a provision that depends on whether something is capable of affecting the exercise of functions—and I hope never to see such a provision in legislation again. I shall regard it as one of the increasing number of undesirable consequences of the decision to leave the EU and as setting no precedent for any other legislative content. I beg leave to withdraw the amendment.
Member’s explanatory statement
This amendment ensures that paragraph 4(2) of Schedule 1 applies only to Articles 2 to 10 of the Workers Regulation.
Covid-19 Update
(3 years, 6 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Baroness Thornton (Lab) [V]
I thank the Minister for this Statement, which was made yesterday in the Commons, and for the one made on Thursday in the Commons. It seems like a good idea to take them both together, since the news about the unreported and untracked positive tests needs urgent scrutiny, and the Minister does not have to suffer double the pain of explaining the very real problems we face with the winter and the second spike.
For example, today, we see another increase in positive tests—14,522 cases reported, with two-thirds of those in the north and north-west. To summarise, we have had people being told to travel hundreds of miles for a test; hundreds of children out of school unable to get a test; tracers sitting idle, watching Netflix; care home tests taking days to be processed; the Minister’s hyperbole, saying this could be a moment of national pride, like the Olympics; and a Prime Minister in a complete muddle over the rules. The Prime Minister seems to be able to learn large chunks of Greek by heart, so why, when he does regional media, could he not at least learn which lockdown rules apply where? It is not much to ask.
The questions from my honourable friends Jonathan Ashworth and Stella Creasy in the Commons yesterday were very pertinent. The reason why they needed to ask what the contractual teams were for the contracts supplying test and trace is that they are not working well and a large amount of public money is being spent on them. Is it not sensible to ask if there is a break clause if goods being purchased with public money are faulty or not working properly, given that they have been sold to us as world-class and planet-beating? What did the Secretary of State say to these questions? Unfortunately, he reverted to the government line of blaming Public Health England. Can we see the terms and conditions and profit margins on all these contracts? Is it true that there is no break clause addressing whether these contracts do what they are supposed to? As the former chair for a few years of the procurement committee of a local CCG, at a very lowly level in the NHS, I can tell the Minister that these are vital questions which have to be asked—questions for which I would expect to be held to account.
Does the Minister agree that transparency would ensure proper governance and accountability for those charged with the stewardship and responsibility of spending public money? Let us examine this for a moment. Is it true that Public Health England’s older version of Excel has a 65,536-row limit, meaning that, in the data transfer from the big CSV file, rows were chopped off? Can the Minister confirm that the data could not be handed over to Public Health England due to the size of the Excel spreadsheet files? Why are critical databases in a national pandemic being hosted on Excel spreadsheets? Is it true that the upgrade to a later version of Excel, which copes with just over 1,000,000 rows, costs about £100? Is this an issue with one particular lighthouse lab or across all the lighthouse labs? Public Health England’s sources say that they report the data when they get it from NHS Test and Trace, so if the information is coming in incomplete, they cannot do their job.
We know that the budget for test and trace is in the region of £10 billion to £12 billion, and it seems to me that an IT audit might have been a good place to start. Was there one? What did it say? We know it is true—so, presumably, does the Secretary of State, who is ultimately responsible for Public Health England—that Public Health England’s budgets were cut by 40%. So, is it the case that Public Health England had no IT upgrades of any kind recently? Given what we know, is it legitimate to ask where all that money has gone?
Why in October, after all the promises of the Prime Minister, the Secretary of State and the noble Baroness, Lady Harding, are we now facing the possibility of 60,000 people unknowingly spreading Covid in their homes and communities, which might account for some of the sudden increases seen today? Have all those people been contacted, traced and isolated?
These are not irrelevant, disloyal or silly questions: they are vital if these matters are to be remedied. They are vital if the Government are to dispel what communities are feeling, described on Sunday by the leader of the Labour Party, Keir Starmer, as
“This deep sense of despondence, anxiety. And actually, what they want is hope.”
We on these Benches want the Government to do that: to give hope. Assuring us that they have everything under control will, however, not work anymore, because it is clearly not true.
Surely, what is needed is transparency and a strategy, expressed with clarity, that everybody understands and supports. It is, furthermore, urgent. Tonight, a group of leaders of the largest councils in the north—Manchester, Leeds, Newcastle and Liverpool—has written to the Prime Minister asking for, among other things, significant local control and support. I beg the Minister not to chant the mantra that test and trace are working closely at local level, because clearly they do not believe that it is. Again, it does not seem to be true. I hope that the Government will respond positively to these councillors.
Yesterday, Jeremy Hunt asked whether responsibility for NHS and care home staff testing should be moved to hospitals and laboratories, and that idea was repeated by the Nobel laureate Paul Nurse, of the Crick Institute, on the radio this morning. The fundamental problem is that there is no strategy: there is a vacuum. That is because there is division in the Cabinet over which strategy should be followed. This needs to be remedied and a clear way forward explained.
Finally, with regard to the part of the Statement concerning treatment: will the Minister clarify whether the establishment of Orbis will be in co-operation and collaboration with EU medicine protocols or in competition with them? Will Parliament scrutinise Orbis, and when?
Baroness Barker (LD)
I thank the Minister for yet again turning up at the crease to defend what is becoming increasingly indefensible: the poor performance of the NHS Track and Trace system.
The noble Baroness, Lady Thornton, was right to note the admission in this Statement that 16,000 positive results had not been uploaded, and that by yesterday only 51% of those people had been contacted, despite the injection of resources into NHS Track and Trace over the weekend to try to make up the deficit. Given that we know that each person who tests positive is likely to report between four and five contacts, that is potentially 60,000 people who last week were walking around, not self-isolating and possibly infecting others. It is not their fault—they did not know. It is a really significant breach of trust.
In the part of the Statement that I find most curious, the Secretary of State said that the Chief Medical Officer’s analysis of the Government’s assessment of the disease as a result of the new data was that
“its impact has not substantially changed.”
Can the Minister give us further detail about that? The omission of 60,000 people not having any impact does not add up at all. The Secretary of State went on to say that the Joint Biosecurity Centre had confirmed that
“it has not impacted the basis on which decisions about local action were taken last week”.—[Official Report, Commons, 5/10/20; cols. 625-6.]
When will that data come through and when will we be able to see the impact on local areas? As these statements make clear, the virus is beginning to have different impacts in different places. Can the Minister say at what point directors of public health were informed about this breach? Six months in, it is clear that, when local authorities are properly resourced and given correct and timely information, the virus is managed and contained. The major problems come about when decisions are made centrally, poorly communicated and badly executed.
Time and again, it comes back to track and trace, whether it is about a lack of skills and capacity or a lack of foresight. Who could not have foreseen the impact that hundreds of housefuls of students moving around the country in September would have on transmission?
Yesterday when this Statement was debated in another place, speaker after speaker, mostly from the Conservative Benches, got up to complain about the effect of the 10 pm arbitrary cut-off. They explained how well-run businesses, especially in the hospitality sector, will be going to the wall because of continued use of blunt instruments designed nationally and applied over wide geographical areas. How long will it be before the Government realise that local people—local professionals, directors of public health and environmental health officers—have detailed knowledge about businesses in their area, their hygiene ratings, their previous breaches of licensing conditions and where crowds congregate? When we can get decision making to a more local and granular level, we will be better able to protect good businesses without jeopardising public health.
I welcome the announcement of hospital funding for upgrades to A&E departments. We need a greater capacity for A&E. However, could the Minister give the House the definition currently used by this Government of what constitutes a new hospital?
On the Orbis project, we go into this having left a safe and highly effective system of medicines regulation, one where patient safety is paramount. How does the Government propose to withstand the commercial imperatives of American pharmaceutical companies in these circumstances?
The public are getting very worried about the extent to which the Government continue to wing it. It is time for them to bear down on the fundamental flaw in their strategy—thinking that they know best in the centre, above people who are professionals at a local level.
Lord Bethell (Con)
My Lords, I thank the noble Baronesses, Lady Thornton and Lady Barker, for their remarks. The noble Baroness, Lady Thornton, is entirely right about the situation that we face. The latest update, as of 4 o’clock today, is that we have 14,542 daily positives today: 2,833 are in hospital with Covid; of those, 496 are on ventilators, and I am sad to report there were 76 deaths.
These are numbers that make us extremely focused on the challenge of Covid. Earlier today we debated the rule of six, when there was a large amount of challenge about whether such rules on social distancing were really necessary. We were reminded in clear terms about the social impact of separating those who love each other. Here we are talking about the impact on the health of the nation and the threat presented to those who are vulnerable, elderly and have pre-existing conditions. Getting the balance between these two things is extremely challenging, but that is the strategy of the Government—to bear down on the virus while protecting the NHS, education and the economy until we can see a way out through the vaccine, through therapeutic drugs and through mass testing. That is our approach.
I make no bones about it; the errors made over last weekend with the data was extremely regrettable. It undoubtedly causes grave concern among those in Parliament and the general public. I cannot hide from anyone the importance, impact, and severity of the situation. However, I would like to say a few words in mitigation. First, I pay tribute to those at PHE who have pulled together a remarkable system in extremely difficult circumstances, across the length and breadth of the country, integrating many systems into one. I know that that may seem like a trivial challenge and beside the point when we are dealing with a national emergency like this, but these are incredibly complex and difficult tasks. They have involved extremely committed personnel on the technology side of things who have personally checked a huge amount of the numbers. As my noble friend Lady Harding explained, it was through the perseverance of some of those personnel that the mistake was identified.
Between 17 and 23 September, 87,000 were identified through our testing and tracing programme; that is a phenomenal number of contacts where we had the opportunity to intervene and break the chain of transmission. Some 83.7% of those were reached and asked to isolate. I completely appreciate the concerns of those speaking in the Chamber today about the test and trace programme, but those figures are remarkable. That we have set up a system that can intervene in the lives of so many who are carrying coronavirus and can bring to bear such pressure on the disease after such a start as we had at the beginning of the epidemic is a phenomenal achievement. I know that the last thing one wants to be, at this stage of things, is a hollow champion of empty achievement, but that is a hell of a thing for this country to have got to.
There have been questions about the collaboration between the centre and northern leaders, and I cannot hide the fact that there are some quite fruity discussions on the pages of the newspapers and news channels between different community leaders. However, we have to be adult about this and acknowledge that there are different roles for different parts of government. The mayor of a city simply does not have a huge laboratory in which to do tens of thousands of tests a day. The mayor of another city simply does not have a control room filled with PhD analysts who can crunch the numbers and run massive supercomputers with complex algorithms to look at millions and millions of items of data within minutes. These are not the functions of local government, nor will they ever be.
Likewise, the JBC, the Department of Health and Social Care and the Cabinet Office do not have the local knowledge of what is going on on the ground and are not expected to speak a wide range of languages. We do not know what the behaviours are of people on a street-by-street basis. That is the role of local government, and it is through the collaboration of the local and national that we will beat this disease. To try to throw up a false dichotomy and set up test and trace as a scapegoat to blame and punish for the frustrations we all feel about the disease is counter- productive and reveals a shallow understanding of a complex situation.
The noble Baroness, Lady Thornton, said that perhaps care home testing should be sent to hospitals. In many cases, hospitals are involved in care home testing and handle the staff of care homes, but hospitals have to cover their own clinical demands, and pillar 1 is stretched to do the testing of hospital staff and patients. Landing that additional burden is not something that the NHS would welcome.
With regard to the northern leaders and their running commentary on the work of test and trace, I reassure the House that the conversations held in private on a daily—and sometimes hourly—basis have an altogether more collaborative tone. I have been privy to a large number of those conversations; there is a huge amount of expertise on both sides of the conversation, and one should not take too seriously the knockabout commentary in the newspapers and on TV.
The noble Baroness, Lady Barker, asked for an update on contact tracing, and she is entirely right. To have missed a substantial number of contacts during those days was a really big disappointment, but we have moved a huge amount of resources in order to catch up. There has been a phenomenal catch-up already, and I understand that my right honourable friend the Secretary of State will be updating the other place on the progress of that shortly.
I reassure the Chamber, however, that all those who had a positive test were informed promptly. There was no omission in that respect. Therefore, the primary index case, and the person of greatest threat to community transmission, was identified and isolated, and that chain of transmission was shut down.
I will now address the questions about the CMO and the JBC and their analysis of our numbers. I reassure the noble Baroness, Lady Barker, that the integrity of the CMO is unimpeachable; if he judges that the change in numbers has not changed policy, I reassure the Chamber that that is a good judgment that is completely consistent with the way in which we have behaved over the last few weeks.
The noble Baronesses, Lady Thornton and Lady Barker, both asked about Project Orbis. This is a welcome move, enabling the UK to join an international framework to provide concurrent submissions and regulatory views of oncology products, which may allow UK patients to receive earlier access to medicines in the future. I pay tribute to colleagues at the MHRA, who I know have worked really hard on collaborating with American, Canadian and Australian regulators. I am extremely optimistic about the dividends from this collaboration. It augurs, promisingly, similar future collaborations across the health sphere.
The Deputy Speaker (Baroness Pitkeathley) (Lab)
My Lords, we now come to the 30 minutes allocated for Back-Bench questions. I ask that questions and answers be brief, so that I can call the maximum number of speakers.
Lord Craig of Radley (CB) [V]
My Lords, cars can kill, but driving is not banned. Medical treatment reduces the mortality of those badly infected, but will banning work, study and family meetings through lockdowns and crashing the economy be the right strategy for months to come while leaving the more vulnerable to choose which precautions to adopt?
Lord Bethell (Con)
My Lords, I completely sympathise with the observations of the noble Lord. No one wants to see the economy crashed. No one wants to see families separated. Nor do we think that locking up those who are either vulnerable or elderly is a thoughtful or reasonable way to approach this epidemic. What we are seeking is a middle way—a strategy that balances the needs to preserve the economy, education and the NHS with the importance of suppressing the virus and breaking the chains of transmission. That is the approach that we are pursuing today, and it continues to be our strategy going forward.
Baroness Rawlings (Con) [V]
My Lords, the Minister said in the Statement that all people testing positive are required by law to self-isolate. Can he tell the House what the fine is if someone breaks the law? Have all the people who travelled on the train and tube with Ms Ferrier MP been traced and tested? If so, how, and if they tested positive, have they been quarantined?
Lord Bethell (Con)
My Lords, the case of the SNP MP has shocked the nation. I do not want to comment on it in detail. I do not have the details of what after all is a private matter. That is for the police and the House authorities to examine.
However, the principle to which my noble friend refers is very clear and simple. If you are positive, you isolate. If you are contacted by the contact-tracing system, you discuss your recent contacts with the contact tracers, who will coach you and rehearse with you fully the length and proximity of those contacts and will give a thoughtful clinical judgment on which ones need to be subjected to further contact and isolation procedures.
This is absolutely essential to breaking the chains of transmission. It has a huge amount of support among the public and a tremendous amount of compliance, and we are building on the existing compliance with the enforcement regime that we brought in recently. I call upon all members of the public to support this important approach.
Baroness Clark of Kilwinning (Lab)
The Minister will appreciate that the 10 pm curfew, the restrictions already in place in many parts of the country and, indeed, the likely further restrictions that will be brought in, given the levels of Covid, will have a big impact on employment. Other countries are continuing with their furlough scheme, but the scheme that we are introducing to replace it is not as generous. Will the Minister not accept that unless the Government put significant further financial support in place, we will face huge levels of unemployment in this country, with millions of people out of work, an increase in poverty and probably the worst recession that any of us have ever known?
Lord Bethell (Con)
My Lords, the impact of all the restrictions, on the hospitality sector in particular, are particularly acute. I completely recognise the noble Baroness’s point that this touches on the lives of many hard-working people from low-income backgrounds who have casual labour arrangements with the hospitality sector. There are millions of people involved, and this epidemic has hit them particularly hard. That is why we put schemes in place like the furlough scheme.
The Chancellor spoke very movingly this morning on the “Today” programme about his intentions and his determination to ensure that people are protected from the worst outrages of Covid. We are also putting in economic measures to avoid the kind of recession which the noble Baroness describes. The honest truth is that other parts of the economy are doing extremely well. It is an awful shame and sadness that, once again, Covid is hitting the most vulnerable the hardest, and the noble Baroness is quite right to identify the people she does.
Lord Farmer (Con)
My Lords, in the other place yesterday, the Secretary of State was very definite that the virus is transmitted from surfaces. However, this has been recently disproved, for example by Professor Gandhi of the University of California and the microbiologist Emanuel Goldman, who state that while the virus may persist on surfaces, the traces involved are not viably infectious. Will their important new research now be instilled into our response to Covid, so that we can start to move on to “project hope”?
Lord Bethell (Con)
My Lords, I am extremely grateful for my noble friend’s recommendation. It is a source of huge frustration, and amazement to me on some level, that the precise nature of transmission in all cases is not crystal clear. I am not sure that I would completely agree with my noble friend that it has been thoroughly disproved that the disease can never be transmitted from surfaces. In fact, there are others who think that this may actually be a very important vector of transmission. We certainly do not understand the full nature of the way in which aerosol transmission behaves, and it is likely that it is a mixture of them both. That is why we urge the country to comply with the Hands, Face, Space protocols.
Baroness Armstrong of Hill Top (Lab) [V]
My Lords, it is significant that, in what can only be seen as a gloomy Statement, no reference has been made to the most vulnerable, many of whom were in the shielded category. National Voices has been listening to these people over the summer and published its report today. Too many in the most vulnerable category say that they feel, and felt, abandoned. They say, for example, that they want to be:
“given information that is relevant to me, in a way I understand.”
That is what many in the country, around all of this, are actually asking for. If we get it right for the most vulnerable, we might begin to get it right for the rest. When are the Government, after promising that they were going to issue more guidance and support to those shielding, actually going to do that?
Lord Bethell (Con)
My Lords, I am touched by the testimony of the noble Baroness. I pay tribute to the work of National Voices, which has presented an extremely thoughtful and helpful guide and presented the testimony of those who have been under the extremely harsh regimes of shielding. She is entirely right that those who have had to go into the most extreme forms of lockdown depend the most on government guidelines. Those guidelines can be complex, and people can feel confused or lonely and separated because of their status. We have invested a huge amount in local authorities and in charities specifically to reach those groups. It is through that kind of civic and public service support that we can work with those people. It is not properly the role of central government to have individual communications with those who are shielding at home. We rely on our partners, and we have provided an enormous amount of resources to ensure they can do that job properly.
Lord Hamilton of Epsom (Con)
My Lords, if I was diagnosed with coronavirus today and subsequently recovered or showed no symptoms over the next couple of weeks, in 27 days I might get knocked over by a bus and killed, and that would be registered as a Covid-related death. My question to my noble friend is this: why are we including all these deaths that are nothing to do with Covid in the overall statistics that we publish every day?
Lord Bethell (Con)
My Lords, if my noble friend caught Covid today and recovered in two weeks’ time, I would personally celebrate that enormously, as I am sure would others in the Chamber. He is right that we have existing protocols for identifying cause of death, and we approach Covid in exactly the same way we do all other causes of death. This is to help our demographic analysis. Of course, the example that he gives—which is entirely correct—is an extreme example, but it is helpful for us to understand, when we are doing retrospective analysis, who has been touched by Covid in order to explain at a later date where the causes of those deaths may have come from. A death that is not apparently from Covid today may in future have a clearer connection.
Baroness Donaghy (Lab) [V]
I have a question for the Minister and a follow-up to his response about local government. How can the Government prove that public money being spent on test and trace and IT systems fulfils all the requirements of public procurement? I support my noble friend Lady Thornton in her expression of concern. Some years ago, I was a non-exec director at King’s College foundation trust, and the responsibilities of the board for good governance, accountability and proper procedures for public procurement were very clear. I do not have the same feeling for the contracting and other procurement services in the Government today. The Minister says the Government are extremely focused. It feels more like the Mad Hatter’s tea party.
Secondly, the Government’s response to the approach today by council leaders in the north for help, including local test and trace systems, has been made clear by the Minister this evening. Frankly, it was breath-takingly patronising. Will he take the offer from local government seriously?
Lord Bethell (Con)
My Lords, I will tackle those in reverse order. I would not seek to be patronising for a moment. We value the contribution of local leaders enormously, and if I hit the wrong note then I regret that. What I was trying to get across is that the rhetoric in the public media and the realities of the day-to-day conversations between government and local government are not exactly as they might appear. The roles performed by both are complementary, rather than a zero-sum game. It is worth in this Chamber remembering that.
On procurement, the noble Baroness is entirely right; there is a real tension between the absolute requirement to move quickly to meet the challenge of Covid—to stand up facilities and services that did not previously exist—and to move on a national population-wide scale in a way that is not frequently seen in the health system. I can reassure the noble Baroness that a huge amount of work is being done on the auditing, checking and supervision of these contracts. They are not entered into in either a naive or flaky way—quite the opposite. We have put a huge amount of audit and legal resources into striking the right contracts. Cabinet Office colleagues provide a huge amount of analysis and challenge to the way in which these contracts are drafted and in checking against the delivery of the products and services involved.
The Deputy Speaker (Baroness Pitkeathley) (Lab)
The noble Lord, Lord Robathan, has scratched, so I call the noble Baroness, Lady Bennett of Manor Castle.
Baroness Bennett of Manor Castle (GP) [V]
My Lords, questions in your Lordships’ House on this Statement have understandably focused on Covid-19, but the Statement as delivered in the other place is a broad-ranging survey. It starts by talking about treatments for Covid and then shifts to approvals for new cancer treatments; it looks at the expansion of urgent and emergency care; and those mysterious 40 new hospitals appear yet again, as the noble Baroness, Lady Barker, alluded to. In that context, I ask the Minister whether this Statement is sufficiently balanced. If this is a survey, where is the public health element?
Covid has exposed, even more than we recognised before, a deeply unhealthy society with terrible diets, inadequate opportunities for exercise, poverty, stress, and a mental health epidemic. We know from Victorian and early 20th-century times that it is public health measures that really make the difference. In facing up to tackling Covid, surely that is the direction in which we need to be looking. For example, new research today showing the impact of air pollution includes some very stirring suggestions that childhood exposure has an impact on the rates of dementia and Alzheimer’s. My questions to the Minister are these. Are the Government paying enough attention to public health? Is their strategy sufficiently balanced? Are they funding and doing enough on the broad measures that will create the healthier society that is so clearly desperately needed in the time of Covid or at any other time?
Lord Bethell (Con)
In her analysis of the Statement, the noble Baroness is, as ever, inspiring and optimistic. I am extremely grateful for her remarks. The Building Back Better programme will put a vision for public health at the centre of our efforts. We will build on this awful epidemic to ensure that our public health outcomes improve.
Lord Rooker (Lab) [V]
My Lords, the Minister will be pleased to know that I do not intend to ask any questions about the report from the department on testing between 17 September and 23 September. As the noble Baroness, Lady Barker, said, there is a reference in the Statement to the Chief Medical Officer and his analysis. I have a simple, very specific question. On what date, and at what time on that date, did the Chief Medical Officer become aware of the missing data issues? On what date, and at what time on that date, did he issue his analysis? If these answers cannot be given now, I would like a commitment that I will receive a letter with the answers.
Lord Bethell (Con)
I am grateful for the noble Lord’s question. My right honourable friend was very clear. The Chief Medical Officer analysed our assessment of the disease and its impact, and assessed that it had not substantially changed as a result of these data. The Statement from my right honourable friend is crystal clear. I will be glad to send the noble Lord a copy of that Statement if he does not have it.
Lord Balfe (Con)
My Lords, this afternoon’s release from the Office for National Statistics tells us that:
“There were 215 deaths involving … COVID-19 … in England and Wales in the week ending 25 September”.
This remains far below the numbers seen earlier in the pandemic and accounts for just 2.2% of all deaths in the latest week. Our liberties are being trashed and our freedoms removed. When will the Government get down to putting some hope into things? Most people do not know what the rules are, and if they do they are getting round them. I should like a commitment as to when we can open up surgeries and hospitals, and a promise that by Christmas people will be able to visit their elderly relatives in care homes and those who are unfortunate enough to be in hospital. Can we not have a bit of hope, as opposed to this constant gloom?
Lord Bethell (Con)
I hear my noble friend’s frustration, and he is right to call for hope. We all want some hope—we are all feeling exhausted by Covid. But it is ironic that my noble friend mentions the low level of deaths as though that were a bad thing. To me, that number is a source of huge pride, because it shows that we have kept a lid on Covid—our NHS is improving the treatment of people who have Covid and we are winning the battle against Covid. I celebrate that.
Lord Mackenzie of Framwellgate (Non-Afl) [V]
My Lords, it is increasingly apparent that the key to successful test, track and trace is the provision of a speedy test result, without which the whole process is delayed. Sir Paul Nurse of the Crick Institute makes the case for locally based laboratories to do this more efficiently. A similar argument applies to using the skills of local authorities to track and trace contacts. Will the Government reconsider their obsession with a centralised, world-beating system?
Lord Bethell (Con)
I completely endorse the views of Sir Paul Nurse on this and on all matters, wherever I can. The noble Lord is entirely right: speed is critical, which is why we have put major laboratories in regions up and down the country. There are nearly a dozen of them now; they are paired with the pathology networks of the NHS, and our tracking and tracing system works closely with local government. When the large call centre-based tracking and tracing has gaps or when local teams can supplement, augment or complement the work done by the major teams, we seek those opportunities wherever we can.
Lord Hunt of Kings Heath (Lab) [V]
My Lords, I remind the House that I am president of the Health Care Supply Association. I come back to procurement and contracting. Will the Minister respond to the question of my noble friend Lady Thornton about a break clause in the contract with the private suppliers of test and trace? Will he confirm that Public Health England is fully a part of his department, that its staff are officials of his department and that the Secretary of State is fully accountable for its performance?
Lord Bethell (Con)
My Lords, I cannot give a detailed analysis of the thousands of contracts that the test and trace system have gone into, but I reassure the noble Baroness, Lady Thornton, and the noble Lord, Lord Hunt, that these contracts are pragmatic, commercial and thoughtful. The interests of the taxpayers are paramount, and a substantial team of commercial professionals and lawyers from the Department for Health, the NHS and the Cabinet Office is focused on making sure that we get value for money.
The noble Lord, Lord Hunt, is right: PHE is entirely accountable to the Department for Health. I do not know the precise status of the contracts for staff, but they are an important and valued part of the Department for Health’s family, and we work extremely closely together.
Lifetime Skills Guarantee and Post-16 Education
(3 years, 6 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Watson of Invergowrie (Lab) [V]
My Lords, Labour broadly welcomes the contents of the Statement and we certainly share the stated determination of the Secretary of State to raise the status of further, technical and vocational education. However, we cannot welcome his statement that,
“for decades, this sector has been overlooked and underserved, playing second fiddle to higher education.”
That is an attempt by the Conservative Party to spread the blame for the role of successive Governments over the past 10 years in starving further education of the support it needed to make its full contribution to supplying the skills that our economy needs. That and the failure of the advanced learner loan scheme acted as barriers to many young people accessing further education.
For those looking to access training beyond level 3, it seems from the Statement that they will have access only to a flexible loan system. This does not seem to be a Government who listen to what people want and respond to the mistakes of the past. The need for training and retraining is urgent. Last month, the Open University’s latest business barometer revealed that 56% of UK employers continue to experience skills shortages.
I shall repeat some of the questions put to the Secretary of State when he made the Statement in another place last week. My colleague Kate Green MP put several questions to him, very few of which received an answer. I therefore hope that the Minister might do so now. On apprenticeships, the Statement talks of addressing some of the barriers that small and medium-sized enterprises continue to face three years after the apprenticeship levy was introduced. What additional support will be made available to that crucial sector of the economy, as well as to non-levy payers, to enable apprenticeship opportunities to be increased?
The Statement says that the lifetime skills guarantee will bring about equality between the further and higher education sectors. If that is to be the case, can the Minister say whether learners who study for the new funded courses at levels 2 and 3 will be eligible for maintenance support on the same basis as that which applies to higher education courses?
For adults not qualified to level 3, the Statement says that everyone
“will be able to call on a flexible lifelong loan entitlement for four years”.
There are around 9 million people in that category. Should they all want to participate, it will work out at about £250 per head. Does the Minister really believe that that is sufficient for anyone to build the necessary skills and qualifications that they will need? That figure is reached by dividing up the £2.5 billion we have been promised will represent the value of the national skills fund. When the Secretary of State made the Statement last week, he told the shadow Secretary of State:
“We launched the national skills fund, announced in our manifesto.”—[Official Report, Commons, 1/10/20; col. 545.]
Only the second part of that is true. Not only has the fund not been launched but the consultation on it has not even commenced, as the Minister will know because last week she told me in a Written Answer that no date for it has yet been set. Is she any closer to being able to do so today? That is symptomatic of general government lethargy in relation to skills and job creation, which is inexcusable, given the urgency of the situation. Another example is the Chancellor’s announcement in July of 30,000 traineeships to get young people into work. That is a good idea but, three months later, procurement of the contract for that has still not commenced. Why is that?
The final piece of evidence is the Statement itself. It is upbeat and full of good intent but its provisions are scheduled to come into effect not next week or next month but next year—six months down the line—in April. Who knows what state the country will be in by then? However, we now know that we face an existential crisis of unemployment and the need for skills and retraining is acute. Why do the Government not see things that way?
Lord Storey (LD)
My Lords, this is very good news. I do not have to sit on the Bishops’ Bench to say, hallelujah. As the chief executive of the Association of Colleges said:
“For many years, further education colleges have not received the recognition they deserve.”
In fact, for 20 years or more, we have allowed further education and vocational education to wither. The skills gap is huge: you have to look no further than the Grenfell inquiry, which daily produces examples of people carrying out tasks and supervision far beyond their skill level, with catastrophic consequences. The forthcoming building safety Bill will impose big requirements on design, construction, supervision and regulatory personnel, who will need CPD in-service training, plus a stream of incoming trained starters. There are critical safety gaps at present.
The Chancellor’s scheme of £3 billion to spend on retrofitting energy improvements to homes—which, by the way, is to be done by next April—opens up another huge gap. Most small jobbing builders do not have the full range of skills needed and there are not enough energy performance assessors to prepare or supervise them. Of course, the loss of EU workers is keenly felt in London and the south-east. The work visa plan is unworkable for an industry in which peripatetic working around different jobs with different employers is normal. There is no evidence that anybody has a grip on these issues. That is why this Statement is critical and we hope that “rolled out as promised” or “build, build, build” will be a joke.
An entitlement to a fully funded level 3 qualification and more flexibility in levels 4 and 5 are important steps forward, as the Government begin to implement the Augar review. We very much welcome the proposals on apprenticeship, which have lost their way in recent years. We welcome more training funding for small and medium-sized enterprises and more flexibility on how the levy-paying employers can use their funds. Can the Minister tell us whether the apprenticeship measures will be funded from the existing £2 billion a year apprenticeship budget?
The Minister will be familiar with the recommendations of the independent Commission on Lifelong Learning, convened by our former leader, Vince Cable, so this is something that we very much welcome. We would be glad of the opportunity to talk to the Minister about it. What consultations have already taken place with the sector about the detail of the plans, how they will look and how they will be rolled out in practice?
I am sure that people working in adult education and skills will welcome the ambitions that the Government are setting out. It sounds like they are being asked to alter ways of working and upscale capacity massively with a few months’ notice and during a pandemic. They need to be thoroughly consulted on these proposals and supported with the practicalities of delivering them.
We welcome the commitment to fund courses for anyone who left school without an A-level or its equivalent. It is, of course, essential to ensure that the benefit of this new plan is felt by those who need the support the most. As an aside, it seems that we are getting nearer to the day when GCSEs will no longer be needed.
Given the pace of change in the jobs market due to AI and automation, and the number of job losses being projected as a result of the pandemic, the Government should consider more ambitious proposals to give funding support to more people, with the introduction of universal personal education and skills accounts.
There is no mention of university technical colleges, which have done an excellent job. Does the Minister see an enhanced role for them? No doubt the noble Lord, Lord Baker, will pick up this point. In addition, in reply to a Written Question from me a couple of days ago, the Minister revealed that there are now 390,109 young people on education, health and care plans. Will these young people be supported through the FE sector with the resources that they need? Finally, although this is not mentioned in the Statement—I raised this last time—I want to write to the Minister, if she does not mind, about the Kickstart programme and how it is not involving 16 and 17 year-olds.
The Parliamentary Under-Secretary of State, Department for Education and Department for International Trade (Baroness Berridge) (Con)
My Lords, I am grateful to both noble Lords for welcoming the Statement. I believe that when I was at the Dispatch Box for the first time, I mentioned that this had for too long been the Cinderella of the sector, but it no longer is. The paucity of investment in this sector has been going on for decades, as the noble Lord, Lord Storey, outlined. However, £1.5 billion of capital investment is going into the FE sector for buildings, which have also been neglected.
There are skills shortages. That is why one hears that, at the heart of the institutes of technology, apprenticeships and the review of levels 4 and 5, there is a need for employers to lead on these technical qualifications to ensure that they fill the skills gaps which both noble Lords mentioned.
As the noble Lord, Lord Watson, outlined, the newly funded courses at levels 2 and 3 are FE courses. Obviously, they are generally more flexible, so, although there is a need for learner support—to pay the costs of travel and, perhaps most importantly, the costs of childcare for people undertaking those courses—they are not funded in the same way as higher education maintenance loans. More often than not, this training is done by people who are already in some kind of employment and are reskilling. Of course, that is not always the case, as some people are claiming universal credit. However, we are fully funding courses, and funding for training will no longer be restricted to those aged 23 or under. That restriction has been removed, so any adult who does not currently have a level 3 qualification will have their tuition paid. That is a dramatic change, recognising that, as I think the Augar report mentioned, if you do not have a level 3 qualification by the age of 18, you will almost certainly not get one.
In relation to support for SMEs and the apprenticeship levy, we have previously made it easier for the larger levy payers to transfer the levy down their supply chain, often to SMEs. We have opened up the apprenticeship service to all SMEs and are looking at further initiatives to try to ensure that SMEs have access to it. We have changed the number of reservations that apply to SMEs. Previously, they could reserve three places; now, they can reserve 10, so that they get the opportunity to hire. We also announced that £2,000 would be made available per young person hired as a new apprentice, in addition to the £1,000 that was previously announced. Only if we ensure that small and medium-sized enterprises can hire the apprentices they need will we see the beginning of the recovery.
I am glad that the noble Lord, Lord Watson, has his beady eye on the procurement part of our work. In fact, procurement began this week of the 30,000 traineeships announced in July.
The level 3 offer will begin in April 2021, and we are encouraging FE colleges to take this up as soon as they can. It is intended to enable them to build the capacity they need to build at that level. However, the new digital bootcamps are available immediately. They started last month in the West Midlands and other regions, and provide flexible, intensive training aimed at getting people into that type of work in their region. We have put another 62 courses on to the Skills Toolkit. I went on it myself to see what training is available online. It provides digital skills and numeracy training. Therefore, there are things immediately available to people who currently need to retrain.
On the consultation that the noble Lord outlined, as I said, employers are at the heart of all the initiatives I have set out. Our response is not lethargic—we recognise that a need exists. There is also the Kickstart fund of £2 billion, which the noble Lord mentioned. It will mean that jobs are guaranteed for young people, so there is no lethargy in this regard. We obviously need to assist people while they are at a point of transition and uncertainty in their lives. I will welcome any further input or ideas from either noble Lord, as we need to work together to ensure that people are supported.
The Deputy Speaker (Lord Bates) (Con)
Before we commence with 20 minutes of questions from the Back Benches, I point out that a number of Members, both remote and present, have dropped out of the debate so it may be helpful if I read out the order in which I will call speakers. I will first call the noble Lord, Lord Baker of Dorking, then the noble Lord, Lord Knight of Weymouth, then the noble Baroness, Lady Garden of Frognal, followed by the noble Lords, Lord Empey and Lord Aberdare, the noble Baronesses, Lady Bennett and Lady Warsi, the noble Lord, Lord Curry of Kirkharle, and finally the noble Lord, Lord Lucas.
Lord Baker of Dorking (Con)
My Lords, I fully support the speech made by the Prime Minister a week ago in Devon, when he set an ambitious target of equalising practical and technical education with academic education. That is a very ambitious target which no Prime Minister since 1945 has had or indeed implemented, and it has my full support. I am very grateful for the mention of the colleges that I support, the university technical colleges. At the moment, they are by far the most able and successful technical schools in the country. We are having a record year in recruitment and we have incredible destinations. Last year, one of our colleges on the north-west coast of England produced 90% apprentices, which is absolutely incredible when the national average is 6%.
The speech that Boris made had a Boris flourish in it:
“Now is the time to end the pointless, snooty, and frankly vacuous distinction between the practical and the academic.”
Of course it is. The trouble is that, since 1945, there has been a huge drive to send people to universities, which is good for social mobility but it means that graduates have had disproportionate esteem, disproportionate political influence and disproportionate reward compared with those who make things with their hands. This is the time when we have to elevate the intelligent hand: to train not only the brain but the hand as well.
I am particularly concerned about the level of youth unemployment today, which for 18 to 24 year-olds is 13.4% and likely to rise to 20%. Nothing could be worse for an 18 year-old than to start their lives on the dole: it is a blemish that will affect them all their lives. My proposal is that, instead of being on the dole, they should engage in a year’s or perhaps two years’ further training for a higher national certificate or diploma, through which they will get skills that will help them to get a better job a year later. At the moment, the youngsters who do that have to take out a loan of £6,000 to £8,000. That should be stopped for the next two years, and these courses should not only be free but should have maintenance grants to help students with their living costs, because they will not be eligible for unemployment pay. I will set out the details when I have more than a minute or two to speak.
Baroness Berridge (Con)
I too pay tribute to the work of my noble friend. It was my pleasure to host a round table of UTCs which have been particularly successful. The noble Lord, Lord Storey, mentioned them as well. In fact, a new UTC was opened in September in Darlington. The colleges have been particularly involved in the T-levels, which were introduced to give parity at the age of 16 between A-levels and T-levels, and to make sure that such attitudes are a thing of the past—that those with technical skills or who make things with their hands are viewed with the same esteem as those with academic qualifications. Indeed, 81.6% of our 16 to 18 year-olds are in education or apprenticeships, which is as high as it has ever been.
However, we are aware that it is the young who could be hit hardest during this crisis, which is why there is additional support for employers to take on young apprentices. The Kickstart scheme is open to those who are young and claiming universal credit, and there are 30,000 traineeships, which the department has just begun to procure. These are a work-based progression for young people, to make them ready for work or an apprenticeship. I am sure that I can get a response to my noble friend’s proposal that levels 4 and 5 should be free, but that is not what is being offered at the moment. What is being offered is level 3 tuition fees for anyone who does not have a qualification at that level.
Lord Knight of Weymouth (Lab) [V]
My Lords, this announcement is welcome—as far as it goes. It is logical to start with the unqualified, but what of the many with middle and higher-level skills who are being squeezed by technology and finding that universal credit is catastrophic for them and their families? They cannot fund their reskilling. Has the Government’s National Skills Fund got anything to offer the squeezed middle?
Baroness Berridge (Con)
My Lords, in relation to reskilling, there are, as I have outlined, the digital boot camps that we have offered so that people can gain training as they do that work. If they lack that level 3 qualification, they will be able to do that, but, as I say, there has been a particular focus on young people, who are more vulnerable to the effects of what is happening at the moment.
Baroness Garden of Frognal (LD)
My Lords, I declare an interest as a vice-president of City & Guilds, for whom I worked on vocational qualifications and skills for 20 years. Statements like this have been made by successive Governments for very many years, yet little has been done to promote vocational, practical and technical education and training in schools, where the message must start. Can the Minister say whether league tables will cease to be based on A-levels and GCSEs? Will schools be encouraged to celebrate their apprentices, BTEC and work-based leavers with the same enthusiasm they give to their university entrants? Until schools are proud of all their successes, there is little hope of any real change.
Baroness Berridge (Con)
My Lords, these are not just statements of intention; today, I have outlined that the numerous initiatives that have been started by the Department for Education and the Department for Work and Pensions are matched by funding. They will be a reality—some of them are already. The noble Baroness is completely right: in relation to the UTCs, which are important in promoting technical education, there is now a duty on the local authority and on schools to make sure that young people are made aware of that offer. The careers service has a link with employers locally so that they are brought into schools to outline the needs and skills that they have.
Teachers have been assisted to make sure that they are also aware of the apprenticeship offers because, unfortunately, as the noble Baroness will know from a Select Committee we both sat on, many teachers have not gone through these routes. We have been helping and training them and giving them the links so that they can make people aware of these offers. We want a greater take-up of level 3 and, particularly, levels 4 and 5 qualifications and for them to be validated by employers as making people qualified for jobs.
Lord Empey (UUP)
My Lords, I broadly welcome the trajectory of the Statement, but, speaking as someone who had responsibility at home for skills and both further and higher education, I assure my noble friend that simply giving people training on its own is not enough. If it does not lead to a job, there is demoralisation and the young people find themselves going round in circles doing different courses and getting demoralised as they go. Important though apprenticeships are, for employers, it is not simply about money: unless there is an outlet for that apprentice, there is no job.
I personally believe that the biggest problem we face in our broader education sector is snobbery. It has been referred to, and we can call it whatever we like, but that is what it is. We do not value vocational education the same as academic education. When will the noble Baroness tell us what steps will be taken to ensure that those young people do not have their morale destroyed by not having some role? If those people cannot find a job, will her department consider the idea of reintroducing the old-style ACE scheme, where at least people had employment in a social enterprise to tide them over until such time as a job in the private sector became available?
Baroness Berridge (Con)
My Lords, I assure the noble Lord that there is no snobbery in the Department for Education; we want to promote parity of esteem for vocational and technical qualifications across our sector. The Prime Minister and the Secretary of State are behind this Everybody has a role to play in ensuring that these skills are seen and respected; television programming over the last 10 years has shown the importance of construction in many of the programmes that they have chosen to produce. We have also invested £900 million in work coaches, who are essential to getting alongside people on a one-to-one basis to help them into work. There is £17 million for the new workplace academy programmes, which are helping people with their CVs and job interviews.
The noble Lord is correct: one of the things we have to do for young people is this review, particularly of level 4 and level 5 qualifications, of which there are over 4,000. I remember sitting with the noble Baroness on a Select Committee and seeing the plethora of avenues and qualifications that were there, so that the pathway is clearer for young people and they get a qualification that an employer says is relevant and equips them for the job that they want. I can only draw attention, once again, to the £2 billion for the Kickstart scheme, which is about jobs for young people who find themselves on universal credit at the moment.
Lord Aberdare (CB) [V]
My Lords, the Statement sets out a range of laudable and important aspirations and I very much hope that, unlike so many previous attempts, these will actually be delivered. I have two questions for the Minister. First, the Statement includes funding for extra careers advisers. Can she assure us that this will form part of a comprehensive approach to investing in professional high-quality careers advice and guidance to all who need it, from primary school children to adults of all ages without the gaps that currently exist? Secondly, what will the Government do about the perverse incentives that currently lead schools to try to keep young people in formal education rather than encouraging them to consider apprenticeships?
Baroness Berridge (Con)
My Lords, yes, the funding that has been announced for the National Careers Service—that is the adult careers service. The Careers & Enterprise Company is available in schools and I know that additional funding has been given to that to ensure that young people are made aware of those opportunities. In relation to apprenticeships, as I have already outlined, through the Careers & Enterprise Company we are assisting schools to promote those. Fire It Up was our campaign to make sure that young people are aware of those apprenticeships. We are encouraging schools to know their destination data: it is important to know where those young people go on to, so that the best opportunity for the young person is put first by our schools and colleges.
Baroness Bennett of Manor Castle (GP) [V]
My Lords, I can only express my pleasure that the Government have suddenly been converted to lifelong learning after a decade of slashing the funding and support for it. The Statement refers to the risk that jobs will no longer exist because of technology. I would add that that is also the case because of environmental factors, Covid and many other changes in our society. I have two questions for the Minister. Would she acknowledge that narrowly focused job and skills training is not the right way to operate in this fast-changing landscape, and that employer-focused training that teaches for the jobs of today, rather than preparing people, particularly young people, for decades in a fast-changing workplace, is not the right way to go? What we need is creativity to encourage a love of learning and curiosity. The teach-to-the-test ethos pushed in our schools, focused on exams, is absolutely the wrong direction. What we need is to encourage an enthusiasm for soil, for growing food and other plants, for repairing things, for upcycling and recycling—something like, perhaps, the national nature service that the NGOs have been promoting. Do we not need that broader focus?
We should also acknowledge the fact that so many of our jobs now wear people down. The noble Lord, Lord Storey, referred to the construction sector, where 60% of manual construction workers are self-employed. Just the grind of getting through the day, of finding jobs, of getting an income, makes it very difficult for people to engage in training. We need to look at the broader issues that can keep people from training even if it is available.
Baroness Berridge (Con)
The noble Baroness is correct that, obviously, for many people, the concept of a job for life is a thing of the past. People have numerous careers or jobs during their working life. I can assure her that the curriculum taught in our schools is knowledge-based and it is rich. Young people are encouraged to explore nature and to use the outdoors. I know that many schools, whether it is forest schools or woodland schools, et cetera, have adopted that. Obviously, teaching about the environment is an important part of that.
She is entirely right, as well, that employers need to be at the centre of this. That is why there has been this transference on to employers. The institutes of technology will be a partnership of employers, universities and FE colleges. Apprenticeships are employer-standard led, and also there are local skills advisory boards that bring together local employers, the LEPs and others. There will now be a national skills and productivity board, so that we have a structure around employer engagement in these qualifications.
Baroness Warsi (Con)
My Lords, I draw the House’s attention to my entry in the register of interests.
I welcome the Statement, particularly the announcement of a flexible lifelong learning loan. Picking up a point raised by the noble Lord, Lord Watson, I ask my noble friend this question, of which I gave notice: when do the Government anticipate this loan becoming available? As we come to the end of the furlough scheme, where many sadly will lose long-term jobs and possibly seek to retrain, do the Government see the necessity of speeding up the consultation process and the legislative process to implement these announcements?
Baroness Berridge (Con)
My Lords, as I have outlined, the level 3 entitlement will begin in April next year. I assure my noble friend that we will consult and legislate as necessary as fast as we can. We recognise that the changes happening out there in the workplace are swift, and we will act as soon as we can.
Lord Curry of Kirkharle (CB) [V]
My Lords, my interests are as recorded in the register—in particular, as far as this debate is concerned, a keen interest and involvement in rural issues and agriculture. I have been assisting and sponsoring the establishment of an institute of agriculture and horticulture tier, which receives valuable support from Defra and the Department for Education, and we hope that this will create a vehicle through which the Government can help to deliver its ambitions.
I would like to ask three questions, if I may. First, it is great that the Government have recognised that improving skills is a continuous process, but I would like reassurance from the Minister that the department appreciates the huge potential that remains unlocked within the rural space due to a lack of appropriate skills and fragmented delivery. Can the Minister confirm that rural businesses are involved in the bootcamp pilots that are being arranged?
Secondly, on the rural economy, we have heard from the Minister already that the role of SMEs will be recognised. However, in the rural space we have a much higher proportion of SME businesses; we have a very small number of large businesses, and tens of thousands of very small businesses. This represents a particular challenge in the application of the apprenticeship scheme and the use of the levy. Can the Government be as flexible as possible in the use of the levy to allow greater uptake in these small sectors within the rural areas?
Lastly, the role of LEPs in supporting the Government’s new ambitions in encouraging the uptake of opportunities to improve skills is hugely important. Can the Minister confirm that the LEPs will be playing their part in supporting this agenda?
Baroness Berridge (Con)
My Lords, yes indeed. As I have just outlined, the LEPs play their role in the skills advisory board at local level, and we are looking to be as flexible as possible with regard to SMEs and the use of the levy. I can assure the noble Lord that bootcamps are being done in various regions, including, in the next lot, areas such as south Derbyshire. On the question of rural spaces, I will have to write to him in relation to the figures that he required.
Lord Lucas (Con) [V]
My Lords, I congratulate the Government on this Statement and on the commitment it exemplified. Will my noble friend confirm that within this policy we will be supporting the Inspiring Digital Enterprise Award, from idea.org.uk? The award is designed to help people who have had to change career, or who are coming back after a period of unemployment, to realise that they have the potential for a career in the digital sector and to hone their enterprise and employability skills at a basic level—all of which is free. Will my noble friend also confirm that the Government understand that many people, particularly if they have lost a job in a sector that is contracting, will need to start to retrain at a level below that at which they are qualified? They may have a degree and need to go back to level 3 or 4 training to find a new place. Will taking a step back to make a new life going forward be something that the Government will fund?
Baroness Berridge (Con)
My Lords, I am grateful to my noble friend. This is precisely why it is a four-year offer, so that those who have a degree might then be able to take level 4 or level 5 training. I regret that, despite copious briefing here, I have not heard of the specific award that my noble friend mentioned, so I will write to him to outline what the department is doing in relation to that.