Grand Committee
Arrangement of Business
The Deputy Chairman of Committees (Lord McNicol of West Kilbride) (Lab)
My Lords, the hybrid Grand Committee will now begin. Some Members are here in person, respecting social distancing, others are participating remotely, but all Members will be treated equally. If there is a Division in the House, the Committee will adjourn for five minutes.
Nutrition (Amendment etc.) (EU Exit) Regulations 2020
(4 years ago)
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Lord Bethell
That the Grand Committee do consider the Nutrition (Amendment etc.) (EU Exit) Regulations 2020.
The Parliamentary Under-Secretary of State, Department of Health and Social Care (Lord Bethell) (Con)
My Lords, nutritional-related labelling, composition and standards are regulated to protect public health. It is essential that food businesses and enforcement officers understand the specific nutrition-related rules that must be complied with. This instrument enables that, making technical amendments to ensure that the regulatory framework remains functional throughout the UK from 1 January 2021. It implements no policy changes.
Trade from Northern Ireland to the rest of the UK will take place as it does now. At the end of the transition period, businesses in any part of the UK may continue to place their goods in any part of the UK internal market without new restrictions.
Primarily, this instrument reflects the Northern Ireland protocol by amending the Nutrition (Amendment etc.) (EU Exit) Regulations 2019 and revoking the Nutrition (Amendment) (Northern Ireland) (EU Exit) Regulations 2019. It also remedies deficiencies in retained European Union nutrition legislation which have come into force since March 2019. It delivers continuity for businesses and consumers by allowing nutritional products to be manufactured and sold to the same world-leading standards.
By way of background, I am sure that everyone will welcome a brief summary of the 2019 regulations. Made in preparation for our exit from the EU, those regulations make technical amendments, changing redundant EU-specific references and transferring functions and powers currently held by the European Commission to the appropriate authorities in each of the UK’s constituent nations. This is with the explicit aim of mirroring the existing regulatory system following the end of the transition period.
However, this instrument is now needed to give effect to the Northern Ireland protocol, which was agreed last year. The protocol requires that EU legislation is continued in its application in Northern Ireland. Consequently, the instrument removes Northern Ireland from the scope of the 2019 regulations and changes UK-specific references to Great Britain, preventing functions being transferred from the European Commission to the Department of Health in Northern Ireland.
Furthermore, the instrument revokes the 2019 Northern Ireland regulations, which amended domestic nutrition legislation in Northern Ireland in preparation for the end of the transition period. These amendments and revocations see that EU nutrition legislation continues to apply in Northern Ireland and that our obligations under the protocol are met. The instrument also remedies deficiencies in retained EU nutrition legislation that have come into force since 2019. These concern infant formula and health claims that can be made about foods.
The devolved Administrations have been involved in this instrument’s preparation and have consented to it. Further to this, we have provisionally agreed a common framework for nutrition that will maintain existing standards and promote common approaches to nutrition policy in the future. I am grateful to the Administrations for their continued collaboration.
Scrutiny by the House of Lords Common Frameworks Scrutiny Committee and committees in the Northern Ireland and Welsh Assemblies have now been completed, and their valuable input is currently being considered.
Furthermore, the draft instrument was the subject of a four-nation public consultation in July. Respondents represented sector stakeholders across the UK, including trade bodies, local authorities and businesses, with the majority supporting our approach. The Government’s response to the consultation was published on 24 September. Since then, my department has updated guidance for businesses regarding practical changes to nutrition legislation from 1 January 2021. That, too, was tested with stakeholders and published on GOV.UK on 17 November.
This instrument proposes no significant changes and, consequently, we estimate that there will be no significant impact on industry or the public sector. I assure noble Lords that the SI will provide continuity for business and consumers following the end of the transition period and uphold our obligations under the Northern Ireland protocol. I beg to move.
Lord Bourne of Aberystwyth (Con) [V]
My Lords, I thank my noble friend Lord Bethell for setting out these regulations very clearly and for dealing with the consultation on them. As he rightly said, the essence of these EU exit regulations relates to the Northern Ireland protocol and the withdrawal agreement. The EU nutrition legislation will continue to be applicable in Northern Ireland, while in Great Britain we will be able to set our own regulatory regime.
As my noble friend said, a consultation was carried out between 9 and 30 July 2020, inviting participation from food manufacturing and nutrition industry representative groups and the public more generally. Perhaps I may ask my noble friend, first, why the consultation period was so short. There were only 18 respondents. The responses seem quite probing and informative, but such a short period meant that inevitably those participating were relatively few in number.
I turn to some questions based on the consultation. Some 71% of respondents thought that the wording and technical details of the process needed clarification. That is a relatively high percentage, admittedly of a small number of respondents, but perhaps my noble friend can say what Her Majesty’s Government are doing in response to that. There were also requests for simplification of the process.
With regard to access to information on the process, trade bodies requested more regular updates than the current quarterly BEIS updates. What are the Government doing in response to that? Is there to be a more frequent response from BEIS to help trade bodies and those who need these updates?
In the consultation, the impact of the Northern Ireland protocol was also raised by many, expressing concern about the divergence. The consultation response —in, I have to say, a rare example of it perhaps not hitting the nail on the head—talked about how people were unable to estimate exactly how they would be impacted individually. That is scarcely surprising; it is not really evident at the moment, so I do not think that that is a sufficient answer to that concern.
On the consultation process, 82% expressed themselves satisfied, although there was some concern about the short period of the consultation, to which I have already alluded.
Perhaps I may compliment the Government on the consultation response that we see here. All too often over the years, as I am sure other noble Lords will agree, the quality of consultation responses has perhaps not always been what we would have wished for. However, in my view, this consultation response was set out in a very lucid and straightforward way. It was, in many ways, a model. In most cases, it also acknowledges shortcomings and seeks to address concerns, and that is to be welcomed. For example, on divergence, it highlights the common frameworks approach, which my noble friend also referenced, as successful. I agree entirely with this part of the consultation response, and I hope that we are able to pass that outcome and make this compulsory reading for the ministerial team dealing with UKIM. The common frameworks approach is successful and works, and it will be increasingly important, given that so much has now returned from Europe and we are dealing with—
Lord Bourne of Aberystwyth (Con) [V]
It is somewhat ironic that I was just stressing the importance of devolved arrangements when we were called to a vote on the United Kingdom Internal Market Bill. I was concluding my remarks, but I want to say that I am very pleased that the guidance has now been published—I think my noble friend said—on 17 November. I hope that has given those concerned sufficient time to become acquainted with the guidance and the impact of the regulations. I welcome that, given the impending nature of the new system that is coming into force.
I welcome the statement that officials across the four nations will continue to work closely together to prepare the United Kingdom for the end of the transition period. As I say, it is becoming very apparent that our devolved arrangements within these islands will be increasingly important in the years ahead, and that is now looming with the new period starting with 1 January 2021. I welcome that and support the regulations, subject to the remarks that I have made.
Baroness Ritchie of Downpatrick (Non-Afl) [V]
My Lords, I declare my interest as a member of the Common Frameworks Scrutiny Committee and thank the Minister for his explanation of the regulations which are being introduced primarily to implement the protocol on Ireland/Northern Ireland and to address the deficiencies in retained EU law. I agree with the Minister that it is important to protect public health.
I will concentrate on the areas that have an impact on the Northern Ireland protocol and the intersection with that particular common framework. I have certain questions that I would like the Minister to answer. If he cannot provide answers today, perhaps he will provide them in writing to me. I underscore the point again that public health is of vital importance. Therefore, where do the regulations intersect with the Nutrition Related Labelling, Composition and Standards common framework, which is currently subject to ongoing consultation? Was cognisance taken of this provisional framework in drawing up this statutory instrument? From what I gathered from the Minister, that was the case. I contend that there are issues and therefore a need for ongoing scrutiny and parliamentary reports where such intersections occur.
While Northern Ireland officials, Ministers, and particularly in this instance the Department of Health and Social Care and Minister Swann will no doubt participate fully in this framework, does the Minister anticipate any issues related to policy divergence between Northern Ireland and the rest of the UK at the end of the transition period? I note that the noble Lord, Lord Bourne of Aberystwyth, referred to certain issues to do with divergence in relation to the protocol.
What was the nature of the consultation with the Northern Ireland Executive and particularly the Department of Health and Social Care and the Food Standards Agency regarding the content of this statutory instrument? It is interesting to note that although Annexe 2 of the Northern Ireland protocol states that EU nutrition rules will continue to apply to Northern Ireland, I could not find any reference to that in the initial documents in the provisional common framework. That may have been corrected in the further documentation on this. Why is that the case? The likelihood of divergence will increase over time and could potentially have serious implications for the future operation of the UK-wide framework as well as for public health.
I come at this from a position of not wanting a border in the Irish Sea, and I come politically from the point of view that I do not want a border on the island of Ireland between the UK and the European Union. But issues thrown up yesterday by the Northern Ireland Retail Consortium have been amplified by the First Minister and Deputy First Minister in letters to the European Commission. There are currently two lists of foods: prohibited and allowed. If we want to ensure that public health is promoted in Northern Ireland, it is important that those foods on the prohibited list, such as seed potatoes and other types of seeds, can go on to that allowed list to ensure a continuation of a varied diet and varied access to foodstuffs and food supplies for all consumers in Northern Ireland. That is vital.
Two weeks ago at Oral Questions, I asked the Minister for the Cabinet Office, the noble Lord, Lord True, about this issue, and he said that it was a matter of ongoing negotiations. As we are just five weeks from the end of the transition period, I ask the Minister, the noble Lord, Lord Bethell, whether there has been any progress on those negotiations or any definite outcome. It is vital to not only our retail industry, but to public health, diet and food standards in Northern Ireland.
It is important that flexibilities are introduced to ensure that certain foods are moved from the prohibited to the allowed list to ensure good public health as well as a buoyant economy, and that local consumers have access to affordable food supplies and are not forced to resort further to food banks.
I am as guilty as the next person in these debates in traversing and travelling in various directions. As well as this statutory instrument on nutritional matters, there is the other common framework about food and feed policy approaches that throws up issues about the Northern Ireland protocol. I am simply asking for equality and access to all the same foodstuffs that we currently have, so that all consumers can access a good-quality diet at an affordable cost.
The Deputy Chairman of Committees (Lord McNicol of West Kilbride) (Lab)
My Lords, the next speaker, the noble Lord, Lord Bhatia, will be followed by the noble Baroness, Lady Thornton.
Lord Bhatia (Non-Afl) [V]
My Lords, this instrument was prepared by the Department of Health and Social Care and laid before Parliament. Its purpose is to reflect the Northern Ireland protocol by amending and revoking the nutritional regulations 2019 and to remedy deficiencies in retained European Union legislation on nutrition.
The NIP was designed as a practical solution to avoid a hard border on the island of Ireland, while ensuring that the UK, including Northern Ireland, could leave the EU as a whole. It necessarily included a number of special provisions which apply in Northern Ireland only for as long as the protocol is in force.
Nutrition law is a devolved competence; however, this policy area has been designated by the UK Government for consideration for a common approach. The justifications for a common approach are twofold. First, as these laws originally relate to the cohesion of the EU single market, it is appropriate that similar consideration is given to the UK’s internal market. Secondly, the statutory instrument will ensure a swift, smooth and orderly EU exit that minimises disruption for business and consumers, which is why I support it. Nutrition is an important part of our daily life. In this pandemic era, there are many families unable to have nutritious food, so the health of the family suffers, causing long-term harm, particularly to the children.
Baroness Thornton (Lab) [V]
I thank the Minister for introducing these regulations. I agree with the noble Baroness, Lady Ritchie, that the documentation was both clear and comprehensible. I also compliment her on her command of these issues, which is of course entirely to be expected.
As the Minister set out, these are important regulations that largely make technical changes to retained EU law so that references to the UK become references to Great Britain instead. This is because the Department of Health in Northern Ireland will not have the same functions transferred to it as the rest of the UK, and the amendments will therefore ensure that EU law continues to apply in Northern Ireland and that EU retained law in England, Scotland and Wales will therefore be effective.
Needless to say, while we recognise that these regulations are necessary and reflect the Northern Ireland protocol, they contravene some of the countless commitments made by the Conservative Government on the treatment of Northern Ireland. What would be the effect of this SI if the Government had their way on the United Kingdom Internal Market Bill, currently being voted on in the Chamber, and threw the international agreement and protocol out of the window? What would happen to measures such as this statutory instrument?
I understand that the devolved Administrations were involved in the drafting of this instrument, as is quite correct. Can the Minister confirm whether the UK is centred on maintaining existing standards and promoting common approaches to nutritional policy going forward? I agree with the important questions posed by all noble Lords, particularly the noble Lord, Lord Bourne. What assessment have the Government made of other potential future divergences which might arise from, for example, UK food labelling? What safeguards are in place to prevent regulatory divergence? We know that labelling specifically is a critical concern for food and drink manufacturers in Great Britain and Northern Ireland. As has been outlined, we will have different trading rules in Great Britain and Northern Ireland from 1 January. There is a great risk that labelling use in Britain will no longer be legally recognised in Northern Ireland or on the continent. I hope that the Minister can assure the Committee that that will not be the case. This is because it is quite possible that there may be food labelling regulatory divergence between the EU and Northern Ireland and Great Britain after the end of transition. Much will depend on trade deal negotiations, which may very well require regulatory alignment, including requirements for food manufacturers exporting across the channel to update their food labels for products placed on the UK or EU market.
This is not a long lead-in time. Does the Minister recognise the impact that delays in negotiations have had on operators? Is he confident that operators will have enough time to apply these changes, especially given the additional workplace challenges many have faced due to Covid?
It is also conceivable that there would be the political will to change current EU laws where there are particular public health concerns in the UK, including measures around, for example, addressing the obesity crisis by requiring calorie contents in alcoholic drinks. Given the link between Covid-19 risk factors and obesity, for example—and that is a good example—will the Minister confirm whether the Government have any such plans to deal with that kind of eventuality?
Lord Bethell (Con)
My Lords, I thank all noble Lords for their extremely valuable contributions to this important debate. This statutory instrument is incredibly important. However, I reassure noble Lords that it does no more than is absolutely necessary to reflect the Northern Ireland protocol in law, ensuring that our obligations under the withdrawal agreement are met and to remedy some deficiencies in retained EU nutrition legislation, and that its passage is critical to ensuring a functioning regulatory system across England, Wales, Scotland and Northern Ireland.
My noble friend Lord Bourne asked why the consultation occurred over such a short period and why it had seemingly so few responses. The engagement was as expected. It reflected probably the contentiousness of the proposals or otherwise, and it very much followed Cabinet Office consultation and guidelines. As such, it completely met the expectations of those who managed the consultation process. It was none the less an incredibly valuable process and we are extremely grateful to all those who participated in it.
I pay my respects to the expertise of the noble Baroness, Lady Ritchie, in this matter and thank her very much for her kind comments about the arrangements and the process. In essence, her questions were largely about what provisions we were making for policy divergence. I reassure her that no divergence is anticipated. We are not putting in place mechanisms for divergence, because we are not planning to create it. We are simply reading across the current legislation and putting in place through this SI mechanisms to ensure that it can stay in place.
The noble Baroness, Lady Ritchie, asked about prohibited foods versus allowed foods. The list of prohibited foods to which she refers is out of scope of this instrument. However, the UK is proud of its world-leading food, health and animal welfare standards, not least those which relate to nutrition. We will neither lower our standards nor put the UK’s biosecurity at risk as we negotiate new trade deals. I can assure the noble Baroness that the Government remain committed to promoting robust food standards nationally and internationally and to protecting consumer interests to ensure that consumers can have confidence in the food that they buy.
The noble Baroness, Lady Thornton, also asked about maintaining standards. I reassure her too that we do not currently envisage divergence. Were divergence ever to hove on to the agenda, we would of course consult on any new regulations, and that would be the time to take on board comments from industry. If a common approach cannot be agreed or would not be appropriate for one or more nations, and divergence between the UK nations occurred, the UKIM Bill provides for goods made and labelled in any of the UK nations to be recognised and sold in any of the others, subject to the NIP, without discrimination.
I hope very much that I have been able to answer the questions raised by noble Lords, and with that in mind I commend these regulations to the Committee.
The Deputy Chairman of Committees (Lord McNicol of West Kilbride) (Lab)
The Grand Committee stands adjourned until 3.45 pm. I remind Members to sanitise their desks and chairs before leaving the Room.
Arrangement of Business
The Deputy Chairman of Committees (Baroness McIntosh of Hudnall) (Lab)
My Lords, some Members are here observing social distancing, 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 Room is exceeded or other safety requirements are breached, I shall immediately adjourn the Committee. If there is a Division in the House, the Committee will adjourn for five minutes.
The microphone system for physical participants has changed; your microphones will no longer be turned on at all times, to reduce the noise for remote participants. When it is your turn to speak, please press the button on the microphone stand. Once you have done that, wait for the green flashing light to turn red before you begin speaking. The process for unmuting and muting for remote participants remains the same, except as demonstrated otherwise by the clerk; that may be slightly different.
Coronavirus Act 2020 (Expiry of Mental Health Provisions) (England and Wales) Regulations 2020
(4 years ago)
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Lord Bethell
That the Grand Committee do consider the Coronavirus Act 2020 (Expiry of Mental Health Provisions) (England and Wales) Regulations 2020.
Relevant document: 33rd 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 am pleased to speak in support of the regulations, which were considered and agreed to in another place on 18 November. During the debate on the six-month review of the Coronavirus Act held in September in the other place, my right honourable friend the Secretary of State for Health and Social Care announced the Government’s decision to sunset the emergency provisions to allow for temporary easements of the Mental Health Act 1983 in England, as they are no longer necessary. These provisions may be found in Schedule 8 to the Coronavirus Act. The regulations therefore seek to enact this decision and so expire provisions in Schedule 8 to the Coronavirus Act 2020.
The emergency provisions, which these regulations seek to remove, were introduced to protect the safety of patients by ensuring that mental health services could continue to provide vital care and treatment if there were extreme staffing shortages during the pandemic. The need for them has been kept under continual review, particularly as the Government are extremely conscious that the provisions, had they been commenced, would have had serious consequence for individuals involved.
We are pleased that, due to the resilience and resourcefulness of the NHS in England and its staff, the provisions have not been commenced as they have not been needed. It is huge testament to the dedication and dynamism of NHS staff that mental health services continue to be able to provide support to people detained under the Mental Health Act, while under the extensive pressures resulting from the pandemic.
The Government, NHS England and NHS Improvement have taken a huge range of steps to support mental health services so that, despite ongoing workforce pressures resulting from the Covid-19 pandemic, they can continue to deliver vital care and treatment to individuals. The department and NHS England and NHS Improvement issued Legal Guidance for Mental Health, Disability and Autism, and Specialised Commissioning Services Supporting People of All Ages during the Coronavirus Pandemic. That guidance set out how the Act’s code of practice may be interpreted during this period. For example, it allows for the delivery of statutory forms electronically to allow mental health staff to work more flexibly and reduce risk of Covid infection. It also set out how video technology can be used for medical assessments to be carried out remotely under the Act, to make it easier for two doctors to examine a patient during the pandemic period.
The department has also supported the Care Quality Commission in bringing in a modified second opinion appointed doctor—SOAD—service, which allowed this service to work remotely. This enabled procedures around assessing and approving the medical treatment of patients detained under the Act to continue as normal, rather than enacting powers that would lessen this important safeguard. These measures, coupled with the resilience and innovation of mental health staff, have been effective in mitigating pressures on mental health services, avoiding the need to commence the emergency powers.
In reaching their decision to remove the provisions, the Government have listened to stakeholders and to Parliament. Three parliamentary committees have recommended that we take this step. The Joint Committee on Human Rights report on the Government’s response to Covid argued that the need to maintain robust safeguards for patients detained under the Mental Health Act was heightened, and cautioned that if we enacted the provisions they would weaken the protections available. The Women and Equalities Committee noted concern that the provisions went against the direction of travel towards reform of the Mental Health Act, to
“a more balanced system with more safeguards, more choice and less restriction”,
as set out in the independent review of the Mental Health Act 1983. Further, the Public Administration and Constitutional Affairs Committee report on the Government’s response to Covid and the Coronavirus Act noted the concerns of the mental health charity Mind and its call for the removal of these temporary powers.
The decision to expire these provisions has been positively received by a wide range of stakeholders—including the Law Society and Rethink Mental Illness, which said that the decision came as a relief to many people living with mental illness and their loved ones—and by the House of Commons.
The Secretary of State was not persuaded, even during the initial Covid peak, that switching these powers on was necessary because our mental health services have shown incredible strength and ingenuity, for which I express immense gratitude to NHS staff. These powers are no longer required, and these regulations seek to expire them.
I will take a moment to briefly remind noble Lords about the contents of the provisions that these regulations seek to expire. The provisions would have enabled an approved mental health professional to apply to detain an individual under the Mental Health Act following the advice of one registered medical practitioner, where securing two recommendations was considered impractical or would have led to undesirable delay. The provisions would also have allowed for an extension of the time that hospital in-patients could be temporarily detained, pending an application for longer detention under the Mental Health Act.
For those in contact with the criminal justice system who have a mental illness, the provisions in the Act would have extended the amount of time a person can be remanded to hospital, allowed an accused or convicted person to be sent to hospital on the recommendation of just one registered medical practitioner rather than two, and extended the procedural time limits for transferring a prisoner to hospital.
Since the Coronavirus Act was enacted, the Government have remained committed to keeping all its aspects under close review and have stated that any provisions no longer necessary will be sunsetted. The Act will expire in its entirety two years after the date it was passed, but also contains a power allowing for the expiry of some provisions to be brought forward ahead of that time. It should be noted that these regulations will not expire the transitional provisions within Schedule 8 to the Act; however, those will have no legal or practical effect.
The Mental Health Act 1983 applies to both England and Wales. The application of the regulations differs for each country. I will therefore seek to clarify their effect on Wales. First, those easements which relate to health services in Wales will remain available to Wales. Health is a matter devolved to the Welsh Government. But, secondly, those easements concerning the operation of justice under the Act—that is, for patients under sentence or subject to criminal proceedings—will be removed for both England and Wales. These remain matters reserved to Her Majesty’s Government. With the exception of provisions relating to the Welsh mental health review tribunal, none of these provisions has been commenced. Should it ever be deemed necessary to return to these provisions, the Government will seek to introduce new legislation.
I thank the staff of NHS mental health services, who have coped without the need to turn on these emergency powers through their hard work, supported by the department and NHS England and NHS Improvement and through innovative approaches. I beg to move.
Lord Blunkett (Lab)
My Lords, I unequivocally endorse the Minister’s words of appreciation of the work of everyone, at every level, who has maintained a degree of service that has avoided the use of the powers under Schedule 8. It is an unalloyed pleasure not to be giving the Minister a hard time, given that, as far as I can see and looking back in history, no other Minister in the Lords has taken more flak for the Government as a whole for so little reward. It is therefore a pleasure to be able to say that this is a very welcome move.
Noble Lords will remember, because they were either in the Chamber or, more likely, watching, the powerful speech made by the noble Baroness, Lady Grey-Thompson, back on 25 March, when the Minister was putting the Bill through this House. On both disability and mental health, she understandably warned of the danger to the rights of so many people from the measures that were felt at the time to be needed to ensure that functioning services could continue, albeit without the safeguards that all of us would wish. This afternoon we acknowledge that those safeguards are being put back in place—their erosion has not been needed—and, as the Minister said, that is due to so much hard work and ingenuity by so many people. I am sorry that the Welsh Administration feel that they still need the measures as a backstop. I hope that they will not, after their two-week lockdown, feel that they still need to be used.
I just ask the Minister in a friendly way whether he can identify—if not this afternoon, perhaps he can write to me—any service level agreement from the Treasury in relation to the £3 billion announced by the Chancellor of the Exchequer in respect of mental health services? While the withdrawal of the powers under Schedule 8 is entirely welcome, the capacity within the system before the Covid pandemic was under enormous strain, and that has obviously been made worse by the number of people who have experienced mental health and stress issues over the past nine months. Many more will experience these over the winter until we have the vaccine onstream and can get back to some sort of normality.
Capacity will remain a major question for all of us, and I hope that the Minister will be able to confirm that a proportion of the additional resource being allocated to getting the health service back onstream and undertaking the diagnostic and treatment requirements that have so often been delayed will also apply to the capacity of the mental health services. With that, I welcome the regulations very strongly.
Baroness Tyler of Enfield (LD) [V]
My Lords, removal of the mental health provisions from the Coronavirus Act, which represented a significant reduction in protection and safeguards for people subject to the Mental Health Act is, as the noble Lord, Lord Blunkett, said, very welcome. Serious concerns have been raised about whether it would ever be human rights-compliant to enact the provisions. Even before the Covid-19 crisis hit, mental health services were severely stretched, with waiting times and barriers to access which would be considered unacceptable in any other area of medicine.
Turning to the scale of need, psychiatrists have reported an increase in patients needing urgent and emergency care during the crisis, and the latest NHS Digital figures show the highest recorded figures for mental health contact. According to the Centre for Mental Health, there are approximately 10 million extra people with mental health needs due to the pandemic. A survey conducted in late spring by the charity Rethink showed that almost 80% of people with pre-existing mental illnesses reported that their mental health had got worse or much worse as a result of the pandemic, and the ONS found that almost one in five adults in Britain experienced depressive symptoms in June 2020—roughly twice the number before the pandemic. Against this backdrop, it is crucial to the nation's Covid-19 recovery that existing mental health funding commitments in the NHS long-term plan are delivered in full and that services are resourced to support those who had new or worsening mental health difficulties because of the crisis. It is not either/or, it is both/and.
It is of course welcome that eventually an extra £500 million was promised in the mental health winter plan, published on Monday, to help with discharge to community care, workforce issues and addressing waiting times. This is a good start, but unlikely to be sufficient and, crucially, does not come onstream until the next operational year, leaving a gaping hole in the tough winter period ahead. What commitments can the Minister give that some of this new money will be spent on preventive work and early intervention to stop mental health issues escalating to crisis point and putting additional pressures on expensive police, A&E and in-patient services?
In the long term, it is not just a case of mental health services surviving the pandemic; they will need drastically to expand and improve to deal with the long-term impact of social isolation, mass unemployment and pandemic-induced anxiety.
The powers we are debating weakened an Act that was already in need of major reform. The independent review of the Mental Health Act put forward proposals to improve the system and increase patient rights. Can the Minister update the Committee on when the Government will provide a full response to the independent review and publish their proposals to take forward reform of the Mental Health Act, with a clear implementation timescale? The two-year anniversary of the publication of the Mental Health Act review will be 6 December 2020. I strongly hope that the Government’s response will not be delayed beyond that point.
Lord Bilimoria (CB) [V]
My Lords, the coronavirus and the isolation of lockdown are impacting not just our physical health but our mental health, as people deal with loneliness, stress and anxiety. Whether we are working from home, furloughed or travelling to our workplaces, the drastic changes to our workday can take a toll. Employers must play a vital role in supporting the mental health of their workforce by prioritising and promoting a positive well-being culture.
The CBI, of which I am president, has been working with firms of every size and sector to help tackle the challenge of mental health in a pandemic. The Law Society, a member of the CBI, supports these regulations, which will expire provisions in Schedule 8 to the Coronavirus Act 2020 which would weaken Mental Health Act 1983 protections if brought into force. The Law Society states that it recognises that, at the onset of the pandemic, these exceptional emergency provisions were considered potentially necessary to support healthcare professionals in responding to the immediate crisis, but that, as they have not been used in England to date, as the Minister said, they should be expired so as to restore the full certainty of important statutory protections for vulnerable people.
The Law Society also recommends that the Government consider expiring the provisions under Schedule 12 to the Coronavirus Act alongside the expiration of those under Schedule 8 being implemented by these regulations. However, if Schedule 12 remains in force, the Law Society recommends that the Government publish improved guidance clarifying how to conduct the required process under these easements and provide detailed guidance to assist local authorities in making human rights assessments. Do the Government intend to expire the provisions under Schedule 12 to the Coronavirus Act, which weaken statutory protections for vulnerable people under the Care Act 2014 and the Social Services and Well-being (Wales) Act 2014, alongside the expiration of those under Schedule 8? Will the Minister commit to providing improved guidance on the easements under Schedule 12, clarifying how local authorities should conduct relevant processes and make human rights assessments?
Lord Davies of Brixton (Lab) (Maiden Speech)
My Lords, I thank everyone whose kindness has made taking on my new role so straightforward. I thank the doorkeepers and attendants who have guided me more than once along different corridors. I thank the parliamentary staff who have supported my induction, and my party colleagues and the Front Bench team who have guided me through the rules and practices of this House. I must also thank my noble friends Lady Blower and Lady Osamor for supporting me at my introduction. Finally, I owe particular thanks to John McDonnell MP, who encouraged me to take up this new challenge, and my family, who have given me their support despite the disruption in their lives.
I aim to be an asset to this House, contributing my particular skills and knowledge. There is my lifetime of activity in the trade union movement, where I am glad to join a number of old colleagues. More notable is that I am an actuary, the first in this House for more than 70 years. The only other was the first Baron May of Weybridge. He was a prominent public figure and a formidable character, so it is odd that during his 11 years in the House he never made a speech. That means, I am proud to say on behalf of myself and my profession, that this is the first time an actuary has ever spoken in Parliament. I can certainly say that it will not be the last.
One thing that Lord May did was to play a significant role in bringing down a Government. Unfortunately, it was the 1931 Labour Government. I may not be able to go that far, but I shall use to my time to hold the Government to account.
A key skill that you must learn as an actuary is to explain what you do. The application of higher maths to finance sounds too technical, yet the assessment of mortality sounds too gloomy. As an actuary who specialises in pensions, my role has been to provide advice for trade unions when seeking to improve or, increasingly, to defend the pensions provided for their members. I am sorry to have missed the debates on the Pension Schemes Bill, but I have followed them and know that there are many pensions experts in the House. I look forward to joining them, particularly when we consider the further pensions Bill that the Pensions Minister has promised for this Parliament.
Turning to the statutory instrument before us today, I must state my keen and continuing interest in mental health. We know that these extraordinary powers were not required during lockdown, which is testament to the hard work of our mental health staff. They have coped without recourse to such drastic emergency measures and it is clearly right that they should now be expired. Mental health difficulties need to be discussed during this pandemic. We should understand the importance of social and financial stability in the face of the virus. We now realise that resilience lies not within an individual but within our community. Given the dire economic effects of both Brexit and the pandemic, it is vital to consider the NHS response to the increase in mental health difficulties. The proposed investment in mental health services is welcome, but it is still inadequate and barely makes up for the loss of support over the past 10 years. We need more investment. We also need to modernise the Mental Health Act. Public attitudes have improved markedly in the past 10 years, but the law has failed to keep pace. Of course, the pandemic has slowed progress, but we need the promised White Paper. Can the Minister promise to bring it forward as a matter of urgency?
Lord Hunt of Kings Heath (Lab) [V]
My Lords, it is a great pleasure to follow my noble friend and I congratulate him on a fine maiden speech. As he said, he brings to your Lordships’ House a wide range of experience in the trade union movement, service on the GLC and as chair of ILEA, where he was a forceful champion of comprehensive education. However, I rather think that his being the first actuary to enter the Lords for more than 50 years will cause the most challenge to your Lordships. He will discover that we float figures around the House like confetti to justify whatever position we happen to take. Happily, this usually goes unchallenged, yet with my noble friend in place I suspect that we will need to be on our mettle and to expect robust scrutiny in the future.
As my noble friend said, it has not been necessary to use the powers in the regulations and their removal is warmly welcomed. Although the regulations are concerned with the requirements under the Mental Health Act 1983, this debate inevitably raises wider issues in relation to mental health provision during the pandemic and beyond.
We know that the pandemic has had a significant impact on the country’s mental health and well-being. What is the Minister’s assessment of this and what measures are being taken to restore services and deal quickly with the backlog of patients? Does he agree with the assessment of Scientists for Labour that there has been a stark decline in the availability of services? Research by Mind from May 2020 reported that the restrictions on seeing people, being able to go outside and worries about the health of family and friends are the key factors driving poor mental health. The Centre for Mental Health predicts that at least half a million more people may experience a mental health problem as a result of the pandemic. Does the Minister agree?
As part of the lockdown in March, dramatic changes were made by NHS mental health services, including discharging patients from in-patient community services and moving to online provision. Has the impact of that been measured? Does he accept that eye contact often plays an important role in cognitive behaviour therapy? We need to reflect on that before assuming that services can always be online in the future. Will the Minister agree to publish a comprehensive plan to restore levels of service, including a thorough assessment of what changes in demand for services are arising from the pandemic?
The Deputy Chairman of Committees (Baroness McIntosh of Hudnall) (Lab)
My Lords, the noble Baroness, Lady Warsi, has withdrawn from the debate and so I call the next speaker, the noble Baroness, Lady Fox of Buckley.
Baroness Fox of Buckley (Non-Afl)
I warmly welcome the noble Lord, Lord Davies of Brixton. I know that he is well respected by trade unionists outside this place and he will bring to us a refreshing brand of politics. We will not always agree, but I like someone who gives us a feisty challenge. He cannot possibly have got lost here as often as I have done as a new girl in the past few weeks, so if I find the noble Lord, I will try to put him on the right track, although that will probably get him even more lost.
For once, I want to congratulate the Government on rolling back a piece of legislation. Indeed, I hope that we will see a lot more of this because it seems that so much of the Coronavirus Act 2020 is draconian, disproportionate and frighteningly illiberal. Even the assurance that it is temporary or for an emergency is of little consolation. I would personally expire the whole Act, but perhaps the Minister could start by looking again, as has already mentioned, at the provisions in Schedule 12 that also severely weaken the statutory protection for the vulnerable.
The need to protect the vulnerable against an overweening and arbitrary state power is exactly why Schedule 8 was always such an egregious and frightening position. For good reason, sectioning people is made difficult. The power to deprive individuals of their liberty under the aegis of mental health and for their own good has a sinister history: think of the lunatic asylums of the past, the Soviet use of psychiatric hospitals, and so on. We are right not to section people lightly, but perhaps the Minister could reflect on a number of unresolved ironies.
Lockdowns themselves are an example of the state depriving the whole citizenry of their liberty under the veil of public health. Locked up and locked down is a thin line in my view. Can the Minister assure us that when the lockdown ends on 2 December, it will not happen again? One worry about Schedule 8 has been the extension of the length of time that the mentally ill can be incarcerated on the say of one doctor. My worry is the endless and never-ending extension of the length of time that society is incarcerated on the say of one—dare I say?—Matt Hancock.
Will the Minister comment on the devastating impact that we have heard about so eloquently from fellow noble Lords that lockdown measures have caused a lot of damage to mental health in the community. Many, both young and old, are consumed with anxiety, deprived of their autonomy, subject to a form of solitary confinement and feel lonely and isolated. There is also fear not only of the virus but about the cataclysmic effect of lockdown on jobs and livelihoods.
Sufferers of dementia in care homes are locked away from families and stimulation, leading to a deterioration in their mental capacity, and in some instances, tragically, to premature death. In other words, lockdown and its ugly sister, tiering, are bad for the mental health of the well, let alone the mentally ill.
I have a final question. I note with horror that the Welsh Government are not expiring Schedule 8. Will the Minister do what he can to cajole or persuade his counterparts in the Senedd as soon as possible? I declare an interest as I am from north Wales, but I find it rather shameful that the mentally ill in Wales seem to need safeguarding from their own Parliament.
Lord Walney (Non-Afl)
My Lords, I add my praise to the noble Lord, Lord Davies of Brixton, on making an accomplished maiden speech and I welcome him to the House. He notes that he is the first actuary ever to speak in the House of Lords. I guess that it is something of a coincidence that at least two former Ministers in the Department for Work and Pensions will have had a great deal of contact over the years with actuaries: the noble Lords, Lord Blunkett and Lord Hunt of Kings Heath. I served as a special adviser with the noble Lord, Lord Hunt, and we had a number of conversations with actuaries over the years. I hope that this does not damn him with faint praise, but the speech of the noble Lord, Lord Davies, was the most engaged and enlivening to be given by an actuary that I have yet had the privilege of listening to. I know that he will enlighten the House in many ways in the years ahead, and I welcome him.
Let me praise the Minister and his colleagues in the Department of Health and Social Care for taking this early step to remove these provisions. It is an unusual and commendable act to take swift action on a measure that was due to expire anyway, and it sends a welcome message about the Government’s attitude to mental health issues in that they have clearly heard and understood the grave concerns of many advocacy groups and individuals about the draconian level of these powers. It will help vulnerable individuals at an incredibly difficult time in their lives because of the trauma of lockdown restrictions to know that these provisions are no longer hanging over them. Let me give credit where it is due.
I will echo a number of previous speakers in raising concerns about the overall system. It is a symbol of the way that public services tend to act in that they have a bare level of functionality at the crisis end but remain desperately lacking at the preventive and therapeutic end of mental health provision, which remains a yawning gap. As many speakers have said, including the NHS Confederation, the peak has probably not yet come, and I hope that in the months ahead we will hear far more from the Government and the Minister about what action can be taken on that front.
Baroness Barker (LD)
My Lords, I warmly welcome the noble Lord, Lord Davies of Brixton, to your Lordships’ House and congratulate him on his speech. I was unaware of his professional background, but his explanation has led me to understand why there is such a sense of excitement among those Members of your Lordships’ House who are mere accountants. I look forward to the noble Lord joining the long-standing gang of Members who take a considerable interest in mental health and who often act as a bulwark against Members of the House of Commons who feel unable to take action on mental health legislation because of the grief they get from the popular press.
I declare an interest as a member of a special advisory panel for Rethink Mental Illness; I am indebted to it and to Mind for their briefings. When the Coronavirus Act went through, the mental health provisions were among the most controversial and the most feared, not only by lobby groups and patient groups—there was also a considerable amount of discomfort on the part of mental health professionals about what was being done. Under the Mental Health Act 2007, there is already a lack of patient involvement in decision-making, specifically in mental health. That is a fundamental flaw.
It was, on that basis, wrong to take away the safeguards that are the subject of these statutory instruments, and I am very glad that they have not had to be used. They have not had to be used because of the extraordinary efforts of both staff and indeed patients in the early part of this year. Both Mind and Rethink have done a considerable amount of work talking to people who were in acute services in particular. The surprising finding was the extent to which patients were deeply grateful to staff for continuing to look after them when the staff might well have been putting themselves in danger.
The extent to which patients were comfortable with incarceration during Covid was directly related to two factors: first, their ability to contact friends and family remotely and, secondly—because they are people just like the rest of us—the extent to which they were enabled to get out into the grounds and get fresh air. It is worth noting at this point that, in the recently announced hospital-building programme, only one of the new hospitals will be a mental health hospital. Given that we are likely for some considerable time to be going in and out of periods of physical restrictions because of the virus, we should do well to look at the physical estate of mental health services.
I agree with others that the £3 billion announced is very welcome, but there is a grave danger that it will be stretched way too thinly. A lot of it was earmarked before we entered the current situation. As others have said, and as the studies done by Mind and Rethink have shown, it is evident now that people are coming into community services with a greater degree of severity of mental distress and agitation. This is a clear signal that we will, in the coming months, see a much greater level of more severe illness if we do not put money now into rapidly accessible community services—patients are telling us that they cannot access those services. What efforts will be made to ensure that input of both staff and resources into a greater degree of community services?
In all the Government’s lockdown announcements, I have never seen anything acknowledging that those areas of the country that have been under severe lockdown for several months might have a greater need of mental health services than those that have not. Is that part of the analysis that the Minister’s department is undertaking? This is part of the question that I really wish to put to him. We are sitting waiting for the Government’s response to Sir Simon Wessely’s review. To what extent will the things that been learned during these last six months go into that review? For example, what have we learned about disproportionate levels of mental illness and lack of services among black and minority-ethnic communities, and what are we doing about children and young people? Can he tell us to what extent we have learned the lessons of the last six months and whether they will be in that new legislation?
Baroness Thornton (Lab) [V]
I am very pleased to agree with the Minister on this statutory instrument, but I first welcome my noble friend Lord Davies of Brixton and congratulate him on his maiden speech today. He and I have known each other for many years, but have not really seen each other for probably the best part of 30 years. We hark back to the days when I was the chair of that venerable Labour institution the Greater London Labour Party, and my noble friend was a leading member of the GLC and the Inner London Education Authority. A couple of abolitions, many general elections and a Labour Government later, here we are in the House of Lords, and in probably its strangest state in its whole history. I welcome my noble friend; he is one of the very smartest people, and an actuary, as he says—the first here—and will, I am very sure, bring great value to our deliberations. And he should not worry: there will definitely be another pensions Bill along very soon.
When we were putting this emergency Covid legislation on the statute book in March, the easements that are the subject of this statutory instrument were the cause of much concern, because they concerned people’s liberty and human rights, which should not be put aside lightly, if at all. That is what we were saying at the time. They would have increased the amount of time that someone could be detained, decreased the number of qualified people required in the detainment procedure and weakened the Mental Health Act 1983 protections, if brought into force. I am grateful, like other noble Lords, for the excellent brief by the Law Society and its support for these regulations.
We recognise that, at the onset of the pandemic, these exceptional emergency provisions were considered potentially necessary to support healthcare professionals in responding to the immediate crisis. As they have not been used in England to date, they should indeed be expired—so I congratulate the Minister—and thus restore the full certainty of important statutory protections for vulnerable people. I add my thanks and gratitude to the mental health staff who have made things work so successfully under the most difficult conditions that we are able to put aside this part of the Coronavirus Act.
Are the Government considering expiring the provisions under Schedule 12 to the Coronavirus Act alongside the expiration of the provisions under Schedule 8 to the Act implemented by these regulations? As noble Lords will know, Schedule 12 makes modifications to provisions under the Care Act 2014 and Social Services and Well-being (Wales) Act 2014, allowing local authorities to suspend their statutory duties to assess, develop and review individuals’ care plans, carry out financial assessments, and meet care and support needs. Local authorities must still carry out the above where a failure to do so would breach obligations under the European Convention on Human Rights but, for the majority of vulnerable people in the care of local authorities, this high bar provides little to no protection.
Six months on, it is deeply worrying that the Government still envisage the need to enact this watering down of conditions. Can the Minister provide an update on the number of times that these provisions have been used, why they were enacted and what impact they have had on residents? Can he provide assurances that provisions within this Act for care homes are not currently being enacted and describe the conditions under which they might be used?
We are of course still finding out the mental health cost of Covid, and it is disturbing that the Chancellor and Secretary of State for Health refer to the additional funding that the NHS needs to catch up on the cost to patients and treatment of Covid, but do not make the same commitments for social care or mental health. That is of great concern and is very short-sighted, as my noble friend Lord Hunt said. When will we see the results of the Mental Health Act review and promised reform, as the noble Baroness, Lady Barker, mentioned? We need to give more attention and resources to mental health.
A study from researchers at Oxford University found that nearly one in five people who has had Covid-19 was diagnosed with a psychiatric disorder—such as anxiety, depression or insomnia—within three months of testing positive for the virus. Not only do we have immediate issues, there are many coming down the track.
Lord Bethell (Con)
My Lords, I thank noble Lords for a thoughtful and at times very generous debate, for which I am enormously grateful. I thank the noble Lord, Lord Davies of Brixton, for a remarkable maiden speech and offer him a sincere welcome. He laid out his stall very clearly, first as a man of numbers—as many have noted, the debates of the House of Lords benefit from those who are numerate and articulate with numbers as well as words—secondly, as a supporter of the trade union movement, and I look forward to his interventions as a trade unionist; and thirdly, as a man of compassion. He spoke movingly about mental health and the provisions in these regulations, and has marked himself out as someone who I hope will make an important contribution to our health debates—he will be extremely welcome indeed.
We are aware that many people are facing unprecedented strains due to the pandemic and the measures to contain it. The mental health of everyone is absolutely critical in these unprecedented times. We know that some people will experience exacerbated mental health problems as a result of the pandemic, as has been noted by the noble Baroness, Lady Barker. Moreover, people with existing mental health conditions and front-line workers are particularly susceptible.
The noble Baroness, Lady Tyler, noted that self-reporting has gone up. Public Health England’s Covid-19 mental health and well-being report concluded that the UK population’s self-reported mental health and well-being worsened during the pandemic. The largest decline was in April 2020.
Average levels of mental distress have been reported as going up, as the noble Baroness, Lady Fox, noted, although by 8.1% measured by GHQ 12, not the high levels that some noble Lords have referred to, indicating an increase in the severity of mental health problems overall. A robust follow-up survey from July 2020 of children and young people aged five to 16 who were interviewed for the national mental health prevalence survey in 2017 suggests that rates of probable mental health disorder have increased from one in nine in 2017 to one in six in July 2020—a very regrettable development.
We understand that there is increasing evidence of significant mental health consequences for people who have contracted Covid and evidence that Covid itself impacts the central nervous system, which can affect mental health and well-being. Survivors of Covid appear to be at increased risk of psychiatric disorder. For patients with no previous psychiatric history, a diagnosis of Covid was associated with increased incidence of a first psychiatric diagnosis in the following 14 to 90 days, compared with six other healthcare events.
I reassure all noble Lords who have spoken that mental health continues to be a priority for this Government. We are doing our utmost to ensure that our mental health services are there for everyone who needs them during the pandemic. I reassure the noble Lord, Lord Blunkett, that that is why in today’s spending review the Government have announced £500 million more for mental health support for new specialist services for children and young people, plus extra assistance for people with severe mental health illnesses and faster help for those afflicted by depression and anxiety.
The well-being and mental health support plan for Covid-19 published this week is a demonstration of the Government’s firm commitment to support the mental health of everyone throughout this winter and beyond. It outlines the support available to people over the coming winter. This is just one element of our work to deliver a modern mental health service and meet the demands created by the pandemic. We have announced two new commitments to support individuals: first, a winter discharge support package backed by £50 million, which will boost capacity and support good-quality discharge from mental health in-patient settings to help reduce pressures on in-patient beds and keep patients safe over the winter. Secondly, we are taking action to support the physical health of individuals with serious mental illnesses this winter, including support for systems to deliver local, system-level tailored engagement with patients and to develop national thought leadership on outreach.
We are absolutely committed to continuing our investment in expanding and transforming mental health services in England. This will amount to an additional £2.3 billion of extra funding a year on mental health services by 2023 to 2024. I reassure the noble Lord, Lord Hunt, that we are taking a range of steps to support mental health services to be able to manage pressure over the winter period.
Above all, it is essential that the message is heard loud and clear across the country that NHS mental health services remain open for business and will be available throughout the winter. The earlier people receive support on their mental health, the more likely they are to benefit. However, in April this year, only 57,000 referrals were made, compared to 133,000 in April 2019. While figures for more recent months show that referral rates are recovering, they are significantly below last year’s. To help address this, last week we launched a new phase of our NHS Help Us, Help You campaign to encourage anyone suffering from anxiety, depression or other issues.
We will continue to make sure that mental health services, including hospitals providing in-patient treatment get equal access to PPE. All health and social care staff can access priority testing when they show symptoms, including those providing mental health services in hospitals. NHS staff without symptoms can also be tested at the discretion of their NHS trust. Hospitals can test patients, including those admitted with mental health conditions, even if there is a higher prevalence of Covid-19 in their area.
GP surgeries have been requested by NHS England to make improvements to ensure that the physical health of those living with severe mental illness is protected this winter. This includes asking practices to identify people with severe mental illnesses who are clinically vulnerable and offering those people comprehensive physical health checks and follow-up interventions, free flu vaccines to those eligible and a care plan review as appropriate.
The NHS has worked hard to keep mental health services going during the first peak, using technology where needed, but also face-to-face appointments where appropriate. All mental health trusts have established 24/7 urgent mental health helplines, where people experiencing a mental health crisis can access support and advice. In addition, we have provided £10.2 million of extra funding to support mental health charities, including the Samaritans and the Campaign Against Living Miserably.
Talking therapies will continue to be made available remotely, so that people can access help safely from home. The NHS will work to ensure that the option of face-to-face support, quite rightly alluded to by the noble Baroness, Lady Barker, and the noble Lord, Lord Walney, is provided to people with serious mental health illnesses where it is clinically safe to do so.
Public Health England has published its surveillance tracker to monitor the impact of Covid-19 on the population’s mental health. This is a proactive step which will help to ensure that our response to the effects of Covid-19 on mental health and well-being is shaped by emerging data.
The Government have committed more than £400 million over the next four years to refurbish mental health facilities, getting rid of dormitories in mental health locations and benefiting the patients of 40 trusts across the country. We are committed to supporting our staff and investing in the workforce. NHS England and NHS Improvement are also investing £15 million to ensure that all staff get rapid access to expanded mental health services. Staff who are referred will be assessed rapidly, will be treated by local mental health specialists and, where appropriate, will be referred to specialist centres of excellence.
A number of noble Lords, including the noble Lord, Lord Davies, and the noble Baroness, Lady Tyler, asked about Sir Simon Wessely’s independent review of the Mental Health Act. I reassure noble Lords that work is well under way to respond to the review, and we will publish our White Paper in due course. This will pave the way for far-reaching reforms to the legislation and practice, strengthening the rights of patients and upholding the principles of dignity, autonomy and choice, which were enshrined in the review’s recommendations.
Since the Coronavirus Act was introduced, the Government have remained committed to keeping all elements of it under close review and to sunset any provisions that are no longer needed. As I set out earlier, the emergency modifications to the Mental Health Act made by the Coronavirus Act were designed to protect patients by supporting services to be able to continue if unprecedented constraints in the mental health sector put patients’ safety at risk during the pandemic. These provisions were only ever to be used as a backstop, as I told the Committee earlier.
The noble Lord, Lord Blunkett, referred to the very moving speech of the noble Baroness, Lady Grey-Thompson. I remember her words extremely well. Decisions, over which we have no control whatever, about our uselessness will be taken by someone else in the next few months. I am very pleased that the provisions have not been switched on. I reassure noble Lords that at all times the Government have remained conscious of the need to balance those provisions against the rights of individuals detained under the Mental Health Act.
Those provisions have not needed to be switched on due to the adaptations that have been made because of the resilience and commitment of NHS staff. As a result, we believe that now is the right time to remove them so that it is clear to patients, carers, staff and stakeholders that they will not be used. The approval of these regulations by this House to remove these emergency provisions is an important milestone on the journey towards much-needed reforms to the Mental Health Act. These reforms—
The Deputy Chairman of Committees (Baroness McIntosh of Hudnall) (Lab)
The Division Bell is ringing. I wonder whether the Minister is coming to the end of his remarks.
The Deputy Chairman of Committees (Baroness McIntosh of Hudnall) (Lab)
If the Minister would like to finish, I will then adjourn the Committee and there will be plenty of time for noble Lords to vote.
Lord Bethell (Con)
These reforms, which will see that patients have greater autonomy and control over their care and treatment, will be set out in the Government’s forthcoming White Paper on this subject.
The Deputy Chairman of Committees (Baroness McIntosh of Hudnall) (Lab)
The Grand Committee stands adjourned until 5 pm. I remind noble Lords to sanitise their desks before they leave the Room, and to vote, should they wish to do so.
Arrangement of Business
The Deputy Chairman of Committees (Baroness McIntosh of Hudnall) (Lab)
My Lords, the hybrid Grand Committee will now resume. Some Members are here in person, respecting social distancing, while 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 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.
The microphone system for physical participants has changed. Members’ microphones will no longer be turned on at all times in order to reduce noise for remote participants. When it is your turn to speak, please press the button on the microphone stand. Once you have done that, wait for the green flashing light to turn red before you begin speaking. The process for muting and unmuting for remote participants remains the same. The time limit for debate on the following statutory instrument is one hour.
European Union (Withdrawal) Act 2018 (Relevant Court) (Retained EU Case Law) Regulations 2020
(4 years ago)
Grand CommitteeRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Stewart of Dirleton
That the Grand Committee do consider the European Union (Withdrawal) Act 2018 (Relevant Court) (Retained EU Case Law) Regulations 2020.
Relevant document: 32nd Report from the Secondary Legislation Scrutiny Committee
The Advocate-General for Scotland (Lord Stewart of Dirleton) (Con)
My Lords, the instrument before the Grand Committee today relates to the question of which courts should be able to depart from retained EU case law. From January, UK courts, rather than the Court of Justice of the European Union, or CJEU, will be the final arbiter of laws that govern our lives. In order to promote legal clarity and certainty in our law following our departure from the EU, Parliament has provided that EU law that we have chosen to retain is to be interpreted in line with EU case law which we have also chosen to retain.
The way in which our law is interpreted by courts and tribunals does not remain static over time. Our departure from the EU has, naturally, brought with it a change to the context in which the law is considered, and we want our courts to be able to reflect that in their decisions where appropriate. Without the ability to depart from EU case law, there is a risk that UK law will remain tied to an interpretation from the CJEU that is no longer appropriate in the UK.
For that reason, the European Union (Withdrawal) Act 2018 vested in the UK Supreme Court and, in Scotland, the High Court of Justiciary, in specified cases, the power to depart from retained EU case law, applying their own tests for deciding whether to depart from their own case law when doing so.
This instrument will extend the number of UK courts with the power to depart from retained EU case law to include courts at Court of Appeal level across the UK. In making such decisions, the test to be applied by these courts is to be the same as that used by the UK Supreme Court in deciding whether to depart from its own case law—namely, whether it is right to do so.
The instrument will achieve our aim of enabling retained EU case law to evolve in a more timely way than otherwise might have been achieved through the status quo. It will also help to mitigate the operational impacts on the UK Supreme Court and the High Court of Justiciary that would have arisen if the power to depart from retained EU case law were reserved solely to those courts. It will further assist those courts by providing prior judicial dialogue on these complex issues from the Court of Appeal level.
I am sure that your Lordships are familiar with the terminology but, first, I shall briefly explain what I mean by retained EU case law. Retained EU case law is defined in the 2018 Act as, broadly, any principles and decisions of the CJEU as they have effect in EU law prior to the end of the transition period. This includes cases which were referred to the CJEU by the UK, as well as those referred by other member states. This is a vast and complex body of case law that spans many different areas of law.
In amending the 2018 Act through the European Union (Withdrawal Agreement) Act 2020, Parliament provided the power to make regulations to extend the list of courts which may depart from retained EU case law, to set the test to be applied by those courts and to specify any considerations that courts should take into account in coming to such decisions. This instrument extends the list of courts that can depart from retained EU case law to: the Court of Appeal of England and Wales, the Court Martial Appeal Court, the Court of Appeal of Northern Ireland, the High Court of Justiciary, when sitting as a court of Appeal in relation to a compatibility issue or a devolution issue, and the Inner House of the Court of Session, the Lands Valuation Appeal Court and the Registration Appeal Court in Scotland.
The instrument also sets out that the test to be applied by these additional courts when deciding whether to depart from retained EU case law will be the same test used by the UK Supreme Court in deciding whether to depart from its own case law. This test is well established and is capable of being easily understood and applied without any further guidance. It is anticipated that applying the same test to that used by the UK Supreme Court will foster a consistent approach across the jurisdictions and, in turn, on appeal to the UK Supreme Court. There is a wealth of case law underpinning the UK Supreme Court’s test which has evolved over time to ensure that courts consider changing circumstances and modern public policy.
The Government have decided against specifying a list of factors to be considered by the courts with the power to depart from retained EU case law, as the UK Supreme Court’s test is underpinned by a significant amount of case law, which provides considerable guidance. The instrument does not change the operation of the doctrine of precedent, which, practically speaking, means that when a court reaches a decision on whether to depart from retained EU case law, that judgment has the same precedent status as other judgments from that court.
As required in statute, the Government have consulted senior judiciary across the UK, a consultation process that was also extended to the devolved Administrations, as well as to representatives across the legal services sector, businesses and other organisations, and was open to the public. The consultation ran from 2 July to 13 August, with a response published on 15 October. That consultation sought views on whether to extend the power to depart from retained EU case law to the Court of Appeal and its equivalents across the UK, or to the High Court and its UK equivalents.
Having considered the responses fully, the Government have concluded that extending the power to Court of Appeal level courts strikes the appropriate balance between enabling retained EU case law to evolve more quickly, where appropriate, and providing legal clarity and certainty. It also assists in managing the operational impacts by ensuring cases are considered in a timely way. Furthermore, extending the power at this level will mitigate the impacts of potentially large volumes of divergent decisions, both within and across the UK jurisdictions, as decisions of these courts are binding on themselves and courts below as well as being persuasive across the UK’s three legal systems. Where such divergence occurs, this can be resolved more quickly by the UK Supreme Court if it is not required to consider all questions of whether to depart from retained EU case law.
I know that there was significant interest from your Lordships when the power to make this statutory instrument was introduced during the passage of the 2020 Act. I hope that your Lordships will be reassured by the consultation that has taken place and the careful approach that is being taken in extending the power to Court of Appeal level courts only.
An impact assessment has been published alongside the consultation response. Any impact is heavily dependent on both litigant behaviour in bringing proceedings seeking a departure from retained EU case law and, of course, the outcome of that litigation. However, based on a qualitative assessment, we assess that any impact on an increase in case volume as a result of this instrument is manageable at Court of Appeal level, helps to maintain legal certainty and mitigates pressure on the UK Supreme Court.
This instrument enables our courts to be better able to consider whether to depart from retained EU case law than the status quo provided in the 2018 Act. Providing these seven courts with the ability to depart from retained EU case law will allow timely evolution of our case law. It will relieve pressure on the UK Supreme Court and avoid our case law becoming fossilised. We are taking an approach that balances the importance of legal clarity and certainty with the need for the law to evolve with changing circumstances.
Lord Beith (LD) [V]
My Lords, when the EU withdrawal agreement Bill was being considered in the House, the Constitution Committee had serious concerns about the provisions under which this statutory instrument is being made. We were concerned that the Bill left it to Ministers to decide which courts could depart from previous European case law on retained European law and what test they should apply when doing so. That has quite serious rule of law implications that were neatly illustrated by the Minister when he described the possibility of a range of factors being specified when courts are considering such matters, an option that helpfully, the Government in the end did not take. That is one of the good features of this statutory instrument.
These are not powers that we were content to leave in the hands of Ministers. There is the added problem that the powers could be extended to the lower courts whose judgments could not bind other courts—even to magistrates’ courts. This would lead to legal confusion. In a powerful debate in the House at Report, I moved an amendment drafted by the noble Lord, Lord Pannick, that we would return to the matter. The noble and learned Lord, Lord Keen of Elie, offered to table a compromise government amendment very much along the lines of this instrument, restricting the extension so that it would cover only the Appeal Court or its equivalents, and specifying that the test to be applied when deviating from previous case law was the same test that the Supreme Court would apply. But he was embarrassingly overruled by a higher authority in No. 10, apparently because the Prime Minister wanted no amendments to the Bill at all, presumably for broader political reasons.
The noble and learned Lord, Lord Mackay of Clashfern, indicated in a speech in that debate that the Prime Minister had in fact committed himself in the election to every court in the land being able to deviate from retained EU law. Anyway, we won the vote, but it was overturned by the Commons, so we were left with Ministers holding the power to choose the courts to which this would be extended and to choose the test that would be applied. Everything would depend on the regulations. As the Minister has pointed out, there was a consultation that revealed differences of view. The results were open to different interpretation depending on how you count those respondents who wanted no deviation from previous case law. That is not my view. While based on precedent, law has to evolve over time. For my part, the statutory instrument brings us to the outcome that I sought in my amendment, albeit by a very long way round.
I accept that these provisions may have avoided what could have been a bottleneck in the Supreme Court, as the noble and learned Lord, Lord Thomas of Cwmgiedd, warned. However, I am bound to question some curiously chosen words in Paragraph 7.5 of the Explanatory Memorandum:
“Extending the power to this limited list of additional courts will help to achieve our aim of enabling appropriate and timely departure from retained EU case law.”
Is that phrase in place to please the Brexiteers? Is it meant to be a signal to the courts that they should deviate as much and as soon as possible?
If so, I think that it creates false expectations, because I do not think that that is what the courts will actually do. The scale of activity will depend on how much litigation is brought forward and the courts can be expected to abide to apply the test of the Supreme Court with due regard to the facts, to precedent, and to the need to keep the law up to date with changing circumstances. I do not believe that the courts will be drawn into a rush to get rid of as much European case law as possible as quickly as possible. However, all in all, I think that the instrument is what is needed.
Lord Mackay of Clashfern (Con) [V]
My Lords, it was of great interest to me to listen to my noble and learned friend explain so clearly the origin and scope of this instrument. As the noble Lord, Lord Beith, said, the House of Lords was very interested in this particular provision when it came forward in this year’s withdrawal Bill. The Prime Minister had apparently said during the election that every court would be able to entertain this question of whether a decision of the European Court which was part of the retained case law should be departed from.
This House noticed that the provision in the Bill did not contain any machinery for taking a case from, for example, the magistrates’ court to a court that could decide the issue. In the amendment that the noble Lord, Lord Beith, referred to—which I proposed—there was a provision for a method of doing that, so that the Prime Minister’s wish, or answer, that all courts would be able to do it would be met by, for example, the magistrates’ court referring the matter in the way that I had proposed to the Supreme Court or whichever court might then be able to deal with it.
That amendment was, as the noble Lord, Lord Beith, said, passed by a substantial majority in this House but, because of the rush to get the withdrawal Act approved, it was decided to not give effect to it in the House of Commons. There is, therefore, no method in place for reaching from, for example, the magistrates’ court in England to the Court of Appeal. I raised this point with my right honourable friend the Lord Chancellor when he sent me a copy of the instrument. The truth is that there is no way of doing that effectively.
This leaves me with a question which I would be glad if my noble and learned friend could answer. If a point is to be raised about the validity of a judgment of the European Court that is part of the reserved EU case law and it needs to be dealt with in a case coming forward in the magistrates’ court, would the magistrates’ court be allowed to consider that case at all, or is there some provision in the jurisdiction of the other courts to allow a case that would normally be within the magistrates’ court’s jurisdiction to be referred instead to another court that is not of the same level but which is able to deal with this particular problem? It was suggested to me that there are various methods of going from the lower courts to the higher court, but I am not aware—I would be glad if my noble and learned friend could make me aware—of whether there is a mechanism to get, for example, from the magistrates’ court in England to the Court of Appeal. If not, it means that the Prime Minister’s answer to the question at the election may not be open for a result at the moment unless and until primary legislation can be introduced in order to make such arrangements. I would have thought that such arrangements could possibly be made using the rule powers of the various rule-making committees, but I am not sure whether that it so. Anyway, I am glad to raise it in order that my noble and learned friend is able to deal with it.
The Deputy Chairman of Committees (Baroness McIntosh of Hudnall) (Lab)
My Lords, I think a Division is about to be called and I therefore recommend that we do not call the noble Lord, Lord Thomas of Gresford, until after the Division in order not to have to interrupt him. Is the noble Lord content to wait until the Division has been completed?
Lord Thomas of Gresford (LD) [V]
My Lords, it is an allergy—an itch that has to be scratched. This bumbling Government are allergic to the very sound of the name “the European Court of Justice”. It sends a shiver down the spine—if they have one at all—of a significant section of the Conservative Party. I have never understood this, since, as I have pointed out on a number of previous occasions, the United Kingdom was remarkably successful in developing the procedures of that court and in conducting cases successfully before the court on behalf of the UK Government, with a success rate of over 90% of contested cases.
In 1966, Lord Gardiner, then Lord Chancellor, made a Statement on behalf of the Judicial Committee of the House of Lords to the effect that the committee was prepared to modify its previous practice and to depart from a previous decision when it appeared right to do so. He added the very important rider:
“In this connection they will bear in mind the danger of disturbing retrospectively the basis on which contracts, settlements of property and fiscal arrangements have been entered into and also the especial need for certainty as to the criminal law.”—[Official Report, 26/7/1966; col. 677.]
Some time ago the Minister told us that that Statement is well understood; I am not so sure that that is right.
That need for certainty could not be more important than in the context of commercial dealings between this country and the EU, over which we are agonising at this crucial time—this very day. Retained EU law will remain part of our domestic law after the transition period, in five or six weeks’ time. What could be more disturbing to contractual arrangements, trade and to prosperity than to have differing interpretations of the same provisions, set out in the same terms, in both UK domestic law and EU law as it is understood by our near neighbours?
I have direct experience of the way in which the Judicial Committee, now the Supreme Court, exercised its power to modify a previous decision. In 1982, I appeared for the appellant before the Judicial Committee in the case of Caldwell. My case was that recklessness as an ingredient of a criminal offence involved a subjective state of mind. My argument was defeated by 3:2 in the Judicial Committee on the basis that recklessness could be established objectively even if the defendant gave no thought at all to the risk. Lord Diplock delivered the majority opinion but Lord Edmund-Davies was on my side. The result of the case drew intense academic criticism, led by Professor Glanville Williams, whom some of us will remember with affection, if only for his magisterial textbook on the criminal law. Some 20 years went by, until in the case of R v G&R, the Judicial Committee reversed that decision. Lord Bingham, who delivered the unanimous opinion of the committee, said:
“Despite its power under Practice Statement … [1966] … to depart from its earlier decisions, the House should be very slow to do so, not least in a context such as this.”
However, to return to the present and being “reassured by the consultation”—I take it that that is a touch of wry Scots humour on the part of the Minister. From the Government’s point of view it was a complete failure. The Explanatory Memorandum shows that only 20% of the consultees agreed with this proposed extension of the power to depart from retained EU case law to other courts and tribunals. Further, only 9% believed that these proposals strike the right balance between legal certainty and the evolution of the law. Only 5% thought it maintained the necessary degree of predictability in the law and provided certainty.
On the contrary, a decisive majority of those consulted about the changes proposed in this statutory instrument were against any change at all, on the basis that it was a recipe for uncertainty. Why did the Government go on with this SI? Allergy—it is that nagging itch.
The clue to the problems which arise is in paragraph 7.4 of the Explanatory Memorandum, which states:
“Without the ability to depart from retained EU case law, there is a risk that retained EU law remains tied to an interpretation from the Court of Justice of the European Union that is arguably no longer appropriate in the UK.”
I stress “arguably”. I was wondering whether I should say anything adverse to this SI at all, since it will undoubtedly make good money for lawyers. The Minister will know that certainty of the law assists the settling of disputes without litigation. Uncertainty breeds litigation, from which, frequently, only the lawyers benefit. I would have thought that, under current practice, the Supreme Court’s power in the ultimate to depart from European case law would be more than enough to satisfy the Tory itch in the rare cases where the need for departure arises, but now litigants will argue at Court of Appeal level for a departure from settled EU case law. If the protagonist of a departure is successful, it is inevitable that the losing party will take the case for a final decision to the Supreme Court, which could hardly refuse leave to appeal if our Court of Appeal or its equivalent had introduced an ambiguity into the law. The changes will not reduce the burden on the Supreme Court, as has been suggested.
Whoever drafted this SI and the Explanatory Memorandum is not in touch with the real legal world, the world that responded to the consultation. Paragraph 10.9 of the memorandum states:
“The risk of driving large volumes of cases and legal uncertainty was the main reason cited in opposition to this proposed approach. It was also noted that the risk of divergence in decisions between jurisdictions was greater with this approach.”
The Bar Council submitted to the consultation that
“departing from the CJEU precedent is pointless unless the lower court has power to depart from the domestic precedent as well—but a power to depart from precedents set by high courts (or, in the case of the Court of Appeal, its own past judgments) would be a major disruption of the system of precedent on which legal certainty depends in a common-law system.”
In response, the Government have preferred specifically to stick with the current system of domestic precedent, thereby making the policy behind this SI, to quote the Bar Council, “pointless”.
Another area which introduces a sense of unreality is the courts to which this power to depart is extended. I know nothing of the land valuation court in Scotland nor am I anxious to know, but, as chair of the Association of Military Court Advocates, I cannot conceive how the decisions of the European Court of Justice are relevant to courts martial proceedings in any way whatever, yet the Court Martial Appeal Court heads the list. Was the drafter of this SI confusing the European Court of Human Rights, which has had a great deal to say on military justice and, as a result of its decisions, has considerably improved our system, with the European Court of Justice? It is frequently done. Perhaps the Minister can enlighten me. I do not suppose that he has, as yet, caught the itch.
Lord Ponsonby of Shulbrede (Lab) [V]
My Lords, the Labour Party does not support these regulations. When responding to the government consultation, both the Bar Council and the Law Society expressed a strong preference for the power to depart from retained EU case law to be reserved only to the Supreme Court and the High Court of Justiciary in Scotland. In its response to the proposed changes, the Law Society clearly stated that
“the power to depart from retained case law should not be extended to UK courts … beyond the Supreme Court ... Any change from this position constitutes a major shift in the administration of justice. This could result in a lack of legal certainty through the emergence of novel judgments that are either not binding on other courts or are inconsistent with precedent.”
Those serious concerns should not be overlooked by the Government.
On 2 July this year, the Government launched a consultation on whether the extension would be the right thing to do. The noble Lord, Lord Thomas, went through the findings of that consultation, and he teased the Minister about his wry Scottish sense of humour, because of course the results of the consultation were very different and far more negative than he intimated.
My honourable friend Alex Cunningham, when speaking in the other place, explained that granting the power to depart from retained EU case law to the lower courts is likely to encourage litigation by parties who hope to overturn an earlier judgment that relied on EU case law, and subsequently will increase the volume of cases. That will inevitably put additional pressure on the courts, which already face a significant backlog due to both the pandemic and the cuts that we have seen in the courts system over the past 10 years.
Both the legal sector and trade unions expressed their opposition to the Government’s proposals. Unions are hugely concerned about the impact that a mass departure from retained EU case law would have on workers’ rights. Unions were also clear that the Government should not go ahead with the plan because it would undermine the doctrine of precedent and cause significant uncertainty and disruption to both employers and employees.
We accept that the courts should have the power to divert from EU case law vested in UK law, but that power should remain exclusively with the Supreme Court. We request that the Minister address all the concerns expressed by the legal profession and the trade unions. Will he outline why the Government have chosen to proceed with these regulations? Can he help outline what they plan to do to ensure that the courts under the Supreme Court are able to operate effectively, and to ensure that the changes do not simply result in increased litigation and, ultimately, in even more appeals to the Supreme Court? What reassurance can he give to trade unions that their fears are unfounded and that workers’ rights will not be compromised as a result of the changes proposed in this statutory instrument?
We believe that, based on current evidence, the Government cannot truly justify the changes brought in by the statutory instrument. The Labour Party has sought to work constructively with the Government as they have embarked on their programme of introducing necessary secondary legislation across all areas for use after the transition period. However, on this occasion, we do not feel that the changes to be implemented by these regulations are justified. We will not vote against the regulations, but we do not support them.
Lord Stewart of Dirleton (Con)
My Lords, I am grateful for the contributions to this debate and I would like to respond to the points made.
First, I acknowledge the contribution of the noble Lord, Lord Beith, who pointed out that consultation has taken place. I emphasise that the terms of the legislation seek to strike a balance which is intended to prevent an overwhelming rush of work to the court at the highest level. We also intend to maintain judicial independence.
My noble and learned friend Lord Mackay of Clashfern raised the matter of the approach which he had urged at an earlier stage whereby there should be a means of referral from the lower courts to the higher—to those courts which are capable of taking a decision in these matters. There is no provision for any courts to refer below the Court of Appeal, including the magistrates’ court. Matters will find their way into the appellate level of courts capable of hearing these matters in the normal way by decisions being taken and themselves appealed against. It seems very likely that appeals in these contexts would be more or less inevitable given the novelty of the situation but also acknowledging the likely temporary nature of the situation as the law recovers full independence.
The noble Lord, Lord Thomas of Gresford, spoke about there being an allergy on the part of the Government and the Conservative Party against mention of the CJEU. Having gone over my notes and counted four occasions when I mentioned that court in the first two pages of my notes, I am driven to conclude that the noble Lord was speaking figuratively, although at the end of his speech he said that I had perhaps not yet developed the allergy.
On the matter of the response of the consultees, the noble Lord said that I might perhaps be exercising something of a sense of humour when I spoke positively of it, given the overall terms in which the consultation had been responded to. However, I take from the consultation that there was support for the cautious approach taken in terms of the SI, balancing competing needs between access to the courts, the need to avoid a particular higher level of court being overwhelmed with applications and the need for legal clarity. In the circumstances, it seems inevitable that there will be some increase in the burden of work on the higher courts resulting from the unprecedented decision of this country to leave the European Union. That degree of disruption is, as I say, inevitable. However, I submit that the terms of this SI admit a useful and productive method by which that new burden of work can most readily be assimilated over time.
On the noble Lord’s point about the range of courts capable of taking on this function with regard to the statutory instrument, he made reference to the Lands Valuation Appeal Court in Scotland. The seven courts were chosen specifically for their appellate status, the availability of appeals to them and the absence of availability of appeals from them.
The noble Lord, Lord Ponsonby of Shulbrede, indicated the Labour Party’s position and sought reassurance with regard to the concerns that were raised by trade unions and the legal profession. Nothing in this statutory instrument seeks to impose at all on any of the courts any view which the Government may hold. Indeed, the statutory instrument may be read as emphasising the importance that the Government place on the independence of the courts and of judicial discretion. Other than through reiteration of the 1966 test laid down by the House of Lords, there is no prescriptive list of factors to be taken into account by the courts taking on this function.
The Government see this instrument as an important part of the United Kingdom’s future standing to ensure that more courts are able to depart from retained European Union case law but in a timely and appropriate manner. We consider this to be a proportionate and sensible approach to this unprecedented and novel situation as the United Kingdom becomes the first country to leave the EU. We consider that extending the power to courts at the Court of Appeal level, to the Court of Appeal and to its equivalents, strikes the right balance between the provision of legal clarity and certainty and enabling the law to appeal more flexibly.
I am grateful for your Lordships’ learned contributions to the debate. I hope that your Lordships agree that the statutory instrument is a necessary one, therefore I commend this draft instrument to the Committee.
The Deputy Chairman of Committees (Baroness Fookes) (Con)
The Grand Committee now stands adjourned until 6.15 pm. I remind Members to sanitise their desks and chairs before leaving the Room.
Arrangement of Business
The Deputy Chairman of Committees (Baroness Fookes) (Con)
My Lords, the hybrid Grand Committee will now resume. Everyone taking part is here in person, but 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. The microphone system for physical participants has changed. Your microphones will no longer be turned on at all times, in order to reduce the noise from remote participants. When it is your turn to speak, please press the button on the microphone stand. Once you have done that, wait for the green flashing light to turn red before you begin speaking. The process for unmuting and muting for remote participants remains the same. The time limit is one hour.
Business and Planning Act 2020 (London Spatial Development Strategy) (Coronavirus) (Amendment) Regulations 2020
(4 years ago)
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Lord Greenhalgh
That the Grand Committee do consider the Business and Planning Act 2020 (London Spatial Development Strategy) (Coronavirus) (Amendment) Regulations 2020.
Relevant document: 34th Report from the Secondary Legislation Scrutiny Committee
The Minister of State, Home Office and Ministry of Housing, Communities and Local Government (Lord Greenhalgh) (Con)
My Lords, these regulations were laid in draft before this House on 2 November. If approved and made, they would roll forward the existing temporary disapplication of the legal requirements for the Mayor of London to keep his current spatial development strategy available for public inspection and to provide a hard copy on request. Of course, the strategy must be available for inspection free of charge online.
These regulations are part of a wider package of government measures to ensure that the English town planning system can continue to play its role and operate safely and efficiently during the coronavirus pandemic. The Plain English translation of the Mayor of London’s spatial development strategy is the London Plan—that is how it is referred to in local government.
The rules that authorities must follow when preparing plans, including consultation and the documents which must be made available at each stage, are set out in law. Earlier this year, in response to the coronavirus pandemic and with the support of stakeholders, the Government amended these rules. In the interests of public safety and to ensure that plans could progress through the system and support economic recovery, we made some changes.
We temporarily removed requirements for authorities to make plans and other related documents available for inspection at council offices and other places, since these offices are either closed or restricted in terms of who can access them. We also removed the requirement for hard copies of these documents to be provided on request. Documents are still required to be made available on the authority’s website.
We also published government guidance on how authorities should consider how they can continue to promote effective community engagement by means which are reasonably practicable, in particular, to reach those sections of the community that do not have internet access. Because of the current level of uncertainty about the future spread of coronavirus, we have proposed to roll these measures forward for 12 months, from the point they expire on 31 December 2020.
My officials have discussed the current measures with the Local Government Association’s planning advisory service and the Planning Officer Society. Neither organisation had heard of any issues or concerns. It is important to stress that we all hope the Greater London Authority and other authorities will be able to discharge these duties sooner than 31 December 2021.
These changes do not prevent authorities displaying documents in public buildings or sending out hard copies. We are simply continuing the existing disapplication of the former requirement while coronavirus remains prevalent. These are proportionate and pragmatic changes that have been widely welcomed by public and private sector alike. I commend this instrument to the House.
The Deputy Chairman of Committees (Baroness Fookes) (Con)
The noble Baroness, Lady Jones of Moulescoomb, has withdrawn, so I call the noble Lord, Lord Kennedy of Southwark.
Lord Kennedy of Southwark (Lab Co-op)
My Lords, I thank the noble Lord for setting out the purpose of these regulations. At this point, I always look with admiration at the skills of many Members of your Lordships’ House who manage to deliver a witty, entertaining speech on a measure of the type before us today. I do not have those skills and I have no questions to ask. I am happy with the regulations.
Lord Greenhalgh (Con)
I have to disagree with the noble Lord, Lord Kennedy of Southwark—I think he has an immense degree of humour. I have really enjoyed my time at the Dispatch Box, and in this rather strange cubicle, because he does have a great sense of humour. Most importantly, he cares, and he wants the best legislation to come out of this place. It has been a pleasure working with him so far. I agree that this measure is very uncontroversial; we can both conclude that it is good that this is taking place and that it is proportionate.
The Deputy Chairman of Committees (Baroness Fookes) (Con)
That completes the business before the Grand Committee this afternoon. I remind Members to sanitise their desks and chairs before leaving the Room.