Grand Committee
Arrangement of Business
The Deputy Chairman of Committees (Baroness Healy of Primrose Hill) (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. I ask Members in the Room to wear a face covering, except when seated at their desk, to speak sitting down and to wipe down their desk, chair and any other touch points before and after use. If the capacity of the Committee Room is exceeded or other safety requirements are breached, I will immediately adjourn the Committee. If there is a Division in the House, the Committee will adjourn for five minutes.
For the Grand Committee on the Telecommunications (Security) Bill, I will call Members to speak in the order listed. During the debate on each group, I invite Members, including those in the Grand Committee Room, to email the clerk, using the Grand Committee address, if they wish to speak after the Minister. I will call Members to speak in order of request. The groups are binding. Leave should be given to withdraw amendments. When putting the question, I will collect voices in the Grand Committee Room only. I remind Members that Divisions cannot take place in Grand Committee. It takes unanimity to amend the Bill, so if a single voice says “Not Content”, an amendment is negatived, and if a single voice says “Content”, a clause stands part. If a Member taking part remotely wants their voice accounted for if the Question is put, they must make that clear when speaking on the group. We will now begin.
Telecommunications (Security) Bill
Tuesday 13th July 2021
(2 years, 9 months ago)
Grand CommitteeRead Full debate Telecommunications (Security) Act 2021 View all Telecommunications (Security) Act 2021 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 15-II(Rev) Second marshalled list for Grand Committee - (13 Jul 2021)
Lord Alton of Liverpool
“(1A) The duty under subsection (1) includes a duty to review—(a) vendors of goods or services to public telecommunications providers which are prohibited in other jurisdictions on security grounds, and(b) the reasons for such a prohibition.”
Lord Alton of Liverpool (CB)
In moving Amendment 1 and speaking to Amendments 20 and 27, I first thank the noble Lords, Lord Blencathra and Lord Coaker, and the noble Baroness, Lady Northover, who have signed one or all of the amendments. This is a clear signal from across the Committee that the Bill must be strengthened to deal, first, with companies that have been banned in other jurisdictions, secondly, the need to dig deeper into the ownership and investment of companies and, thirdly, the desirability of acting in concert with our allies in Five Eyes.
These amendments sit comfortably alongside the call that we heard at Second Reading for additional parliamentary scrutiny, which the Intelligence and Security Committee has called for. At Second Reading, the noble Baroness, Lady Morgan of Cotes, said that we should focus on what other nations are doing:
“we have allies around the world and will want to be able to work with other companies and countries around the world to make sure we have that diversity of the supply chain.”—[Official Report, 29/06/21; col. 716.]
On 30 November 2020, the Secretary of State told the House of Commons:
“We must never find ourselves in this position again. Over the last few decades, countless countries across the world have become over-reliant on too few vendors”.—[Official Report, Commons, 30/11/20; col. 75.]
During our debate, the noble Lord, Lord Young of Cookham, told us:
“Other countries in the free world face the same challenges as the UK”.—[Official Report, 29/06/21; col. 718.]
The noble Baroness, Lady Stroud, urged us to work
“in close partnership with our Five Eyes allies”,
reminding us that
“We have known that Huawei is a security risk since 2013.”—[Official Report, 29/06/21; cols. 726-7.]
That should enable us to avoid what the noble Baroness, Lady Merron, described as “another costly security debacle”. My noble and gallant friend Lord Stirrup told us that we
“need to develop an approach ... that constantly monitors and rebalances this equation in the context of our complex and dynamic world.”—[Official Report, 29/06/21; col. 715.]
These amendments seek to address many of those points.
At Second Reading, noble Lords referred to companies that have caused security concerns in other jurisdictions, including Huawei, TikTok, ZTE Corporation, which the Government have named a high-risk vendor, Hytera Communications Corporation Ltd, Zhejiang Dahua Technology Company Ltd and Hangzhou Hikvision Digital Technology Company Ltd. I will return to Hikvision later. The noble Lord, Lord Fox, said that the Bill’s headline is
“a ban on the purchase of new Huawei equipment”.—[Official Report, 29/06/21; col. 711.]
Like the noble Baronesses, Lady Northover and Lady Bennett, he referred to the genocide against Uighurs in Xinjiang. I serve as vice-chair of the All-Party Parliamentary Group on Uyghurs and am a patron of the Coalition for Genocide Response. Following the House of Commons’ decision to name a genocide in Xinjiang, only last week the Foreign Affairs Committee published a damning report calling for a much stronger response from the Government. These amendments, like those to the Trade Act, which the House passed with three-figure majorities, are a modest attempt to force that stronger and effective response.
The noble Lord, Lord Blencathra, has frequently pointed to the way Chinese companies can fundamentally compromise our infrastructure and, through subsidies, asphyxiate UK industry. The one billion lateral flow tests that we have bought from the CCP are a glaring example. These amendments specifically address the telecommunications sector, but they provide a road map that could be emulated in other strategic sectors.
Finding ways to protect our strategic industries has never been more important. Last week, we learned that, in a deal estimated to be worth £63 million, the Newport Wafer Fab, the UK’s largest producer of semiconductors, has been acquired by the Chinese-owned manufacturer Nexperia. Nexperia is a Dutch firm but is owned by China’s Wingtech. Newport Wafer Fab is the UK’s largest producer of silicon chips, which are vital in products from TVs and mobile phones to cars and games consoles.
This acquisition is happening during an increasingly severe global shortage of computer chips. Kwasi Kwarteng, the Business Secretary, said that the Government are monitoring the situation closely, but do
“not consider it appropriate to intervene at the current time”.
When she comes to reply, perhaps the Minister could tell us why it is not appropriate, when the right time would be to protect a key national asset, and whether, following the Prime Minister’s subsequent expression of concern, the acquisition is being reviewed under the National Security and Investment Act, which at Second Reading we were all told would protect key national assets from dangerous foreign takeovers.
There is a lamentable lack of strategic coherence or consistency in our approach. On one hand, we have the noble Lord, Lord Grimstone, saying that he wants to deepen trade deals with China, while the Foreign Secretary tells us that slave labour in Xinjiang is “on an industrial scale”. We have the integrated review telling us that China is a threat to the United Kingdom, but the Business Secretary telling us that it is not appropriate to do anything at the present time.
This predatory absorption of our semiconductor industry is inimical to the material interests of our technology companies and to national security. Our Committee should consider carefully what is at stake here and why these amendments are so very relevant. Have the Government examined what is happening within the same sector in other jurisdictions, for instance? What assessment has been made of the dependency of United Kingdom manufacturers on China for imports of critical technologies such as semiconductors and semiconductor devices? The applicability of these amendments, by generating a review of other practices in other regions, is of course self-evident. We are starting with telecoms, but the same lessons apply across the board.
I also want to pursue an issue which the noble Lord, Lord Fox, and I raised at Second Reading. The Minister was asked about companies that operate and own CCTV security networks. UK local authorities are reviewing contracts for CCTV equipment made by Hikvision. This is being used to enforce China’s surveillance state in Xinjiang, but it is also operating CCTV equipment the length and breadth of Britain. Is that wise? Hikvision is banned in the United States but not here. I put a simple question to the noble Baroness at Second Reading, and I put it again: why not?
Last week in its report Never Again: The UK’s Responsibility to Act on Atrocities in Xinjiang and Beyond, the Foreign Affairs Committee said:
“Cameras made by the Chinese firm Hikvision have been deployed throughout Xinjiang, and provide the primary camera technology used in the internment camps.”
The committee heard concerns that facial recognition cameras made by companies such as Hikvision operating in the UK—I repeat: operating in the UK—are collecting facial recognition data, which can then be used by the Chinese Government. Dr Hoffman, who was one of the witnesses giving evidence to the Select Committee, said that Hikvision cameras are operating “all over London”. The committee said:
“Independent reports suggest that Hikvision cameras are operating throughout the UK in areas such as Kensington and Chelsea, Guildford, and Coventry, placed in leisure centres and even schools.”
The committee concluded:
“Equipment manufactured by companies such as Hikvision and Dahua should not be permitted to operate within the UK. We recommend that the Government prohibits organisations and individuals in the UK from doing business with any companies known to be associated with the Xinjiang atrocities through the sanctions regime. The Government should prohibit UK firms and public sector bodies from conducting business with, investing in, or entering into partnerships with such Chinese firms”.
So will we? It would be good to hear from the Minister.
In parenthesis, the committee also registered concerns about
“substantial research connections between the Chinese organisations responsible for these crimes and UK universities”,
and said that,
“the role of advanced technologies in the use of oppression in Xinjiang cannot be ignored.”
At Second Reading, the Minister referred to the report into export licences. The Select Committee complains that
“the Government has not made clear when the urgent export review will be concluded. The crisis in Xinjiang is far too urgent for delay.”
Again, it would be good to hear from the noble Baroness on that specific point about export licences. Can we at least be told what plans the Government have to impose import and export controls on firms linked to China’s military-civil fusion programmes? Are we acting in concert with our allies, as these amendments require, over Hikvision? As in the US, will this Bill be used or amended to enable us to ban it?
The Select Committee also referred to our duties under the Modern Slavery Act 2015. I refer to my interests as a trustee of the Arise Foundation. The committee report says:
“the issue of forced labour in Xinjiang is pervasive, widespread,”
and that
“In the Government’s own words, ‘no business can consider themselves immune from the risks of modern slavery’.”
This, too, is information that has been assessed in other jurisdictions and deemed to raise ethical and security issues of which we should make ourselves aware, as these amendments would require us to do. I can think of no compelling reason, other than vested interests, as to why we would not want to know what other jurisdictions are doing about these issues.
I turn again to telecoms. The argument for more concerted action was put well, in the context of Huawei, by Senator Marco Rubio, who said:
“Rejecting Huawei would not mean the UK going it alone, but joining a coalition of like-minded countries determined to ensure effective, market-based alternatives to Huawei are available.”
He is right. Have we examined this? Are we doing the same?
As long ago as 2018, the US put in place a block on ZTE, China’s second-largest maker of telecommunications equipment, because of violations of sanctions against Iran and North Korea. It has designated ZTE as a “national security threat” with government telecommunications funds banned from buying equipment from ZTE. Are we doing the same? In April, the Department of Commerce added seven Chinese supercomputing entities to the list, with Gina Raimondo, the US Secretary of Commerce, insisting that
“The Department of Commerce will use the full extent of its authorities to prevent China from leveraging U.S. technologies to support these destabilizing military modernization efforts.”
The US has gone further in examining investments, as these amendments do. Proposed new Clause 15 would require us to examine what others are doing in this respect. President Biden has issued an executive order banning US investors from trading shares in China Mobile, China Unicom and China Telecom. The list of firms in which US firms cannot invest comes to more than 60. I will not read out the full list today, but I have sent it to the Minister, who has kindly acknowledged receipt, for which I am grateful. Among those firms listed are a number specifically connected to surveillance technology including China Telecommunications Corporation, China United Network Communications Group, Hangzhou Hikvision Digital Technology, Huawei Technologies, Semiconductor Manufacturing International Corporation, China Mobile Ltd and China Telecom Corporation Ltd.
However, it is not just the US. Australia is another of our closest allies and a core member of Five Eyes, which is specifically mentioned in these amendments. In blocking a A$300 million takeover offer by China State Construction Engineering Corporation, Australia cited national security grounds. As long ago as 2016, Australia forbade a deal on the basis that China’s subsidies rendered it difficult for Australian bidders to make a competitive bid, with the Treasurer saying that it may be
“contrary to the national interest”.
In 2020, the Guardian Australia reported links between companies operating in sensitive sectors including the national science research agency and technology companies and operatives from the Chinese intelligence agencies, with one reported as having ties to the CCP’s United Front Work Department, a foreign-influence body described by President Xi Jinping as an “important magic weapon”.
Baroness Northover (LD) [V]
My Lords, we move into the scrutiny of the Bill, which seeks to balance the need for the United Kingdom to be at the forefront in technological development and connectivity—requiring the fastest and most efficient broadband, for example—with the need to ensure that we do not inadvertently open ourselves to malicious actors or states as we do so. It is therefore appropriate that the first group of amendments seek to strengthen the security side, recognising the complexity of modern threats. The noble Lord, Lord Alton, has as ever laid out the case extremely clearly and in detail, and I look forward to the noble Baroness, Lady Barran, replying as comprehensively. He has long made sure that in the Lords we delve deeply into these issues as we challenge the Government and hold Ministers to account.
These are sensible amendments intended to set the Bill in the context of what our allies are doing, drawing from their knowledge and experience and, as the noble Lord said, most importantly, working together. They propose actions that should be happening anyway but which we know can be easily set aside or overlooked as Governments address many pressing issues. Amendment 1 includes a duty to review telecoms vendors
“which are prohibited in other jurisdictions on security grounds”.
It is important that we both learn from other jurisdictions and act together. We have seen how China, for example, seeks to pick off states, as in its recent threat to ban Australian beef on the basis of what it had judged to be interference in its internal affairs. We also saw the Foreign Minister of New Zealand at first indicate that her country should go its own way in relation to China, clearly worried about China’s possible actions, before stepping back from that position in recognition of the fact that we really are stronger together.
There are clear risks. We see Canadian citizens used as pawns in a wider concern about Huawei. As China becomes ever more dominant economically, and under its current leadership, resistance to its positions will become ever more difficult. We have been unable even slightly to hold it back in relation to Hong Kong, and it is therefore vital that like-minded countries work together. Therefore, there are two reasons for seeing what other like-minded countries are doing: first, to see what risks they identify and, secondly, to decide whether we should act together, as we would hope they would act when we saw risks. We are of course in a weaker position globally as we are out of the EU, which has strength in numbers and economic power.
Amendment 20 would expand the powers to include ownership or investment, and this clarifies further where risks might be; for example, through the investment clout of certain players. This is clearly vital.
Amendment 27 would require the Secretary of State to review the UK’s security arrangements with countries banned by a Five Eyes partner and decide whether to issue a designated vendor direction or take similar action with regard to the UK’s arrangements with that company. This updates previous legislation where this risk was not so apparent as it is now, with the hugely increased economic and other associated power, for example, of China. Of course, the Five Eyes of the US, Canada, Australia, New Zealand and the UK are very much aligned on this. Certainly, the risks identified by the Five Eyes should be front and centre in our thinking. I would say that we should add in the EU. Had we still been in it, we would have had that major sphere of influence to strengthen our position further. That makes these amendments even more important.
As the noble Lord, Lord Alton, laid out, we have become very dependent on China in many areas. That is true not only in the area of the Bill but in the new green industries, for example. We need to be much more strategic than we have been in this regard up to now. As he also set out, we cannot build our business on human rights abuses even up to genocide.
I am sure the Minister will say that these amendments are not needed as all these actions will be taken, but they are tabled to make sure that they are. We know that this has not happened adequately up to now; we need to strengthen the Bill, as the noble Lord, Lord Alton, has stated. I therefore look forward to the Minister’s reply.
Lord Naseby (Con)
My Lords, I apologise to my colleagues that I was not able to speak at Second Reading. I am quite clear, as I suspect we all are, that the security of the UK’s telecoms infrastructure is vital. Sadly, we come pretty late to the scene. The expansion of 5G and full-fibre broadband should have happened years ago, so this is not before time.
I read economics at Cambridge and looked at a number of aspects of economic expansion there, particularly in relation to business sectors. It is all very well saying that we will try to prevent the supply chain to the UK network being dependent on a limited number of suppliers. That may be a good idea in theory, but I just reflect that we have a national grid which is every bit as important as 5G; we have one or two aircraft manufacturers, and we have a couple of shipyards, so I just wonder whether there are a whole lot of suppliers out there for the telecoms world—there will be others who are better qualified than me to judge that. However, it is clear that we need to identify areas of risk, and Huawei is clearly one of them.
I would just ask a couple of simple questions. The noble Baroness, Lady Northover, mentioned Five Eyes. Is there a co-ordinating structure for Five Eyes in relation to this particular structure? If so, where is it based, what is our contribution to it and who exactly is doing it?
Some of our colleagues may have read the recent trading standards report that has just come out—I read it only last evening. A massive number of scams is happening at this point in time and we are dealing with the trouble they cause.
Amendment 20 refers to
“a specified country or … sources connected with a specified country, including by ownership or investment”.
I have worked overseas, including in a fair number of countries in south Asia such as Pakistan, India and Sri Lanka, so I ask: who on the ground will actually be doing the work? Quite frankly, I know of nobody in any of our high commissions capable of doing that sort of analysis. Do we have a floating investigatory system? How are we going to judge the evidence properly?
On Amendment 27, we need to take care, clearly, but we must recognise that there may be a valid opportunity in a company that has upset the host Government. You and I would not know the situation, but we should be aware of that fact.
I am a bit sceptical about the security check. I made a freedom of information inquiry—it was nothing to do with telecoms—and, at the end of the day, the reason given for not producing all the evidence following my FoI request was the security of the country. It was never explained in words of one syllable—or indeed in any syllables at all—what aspect of my inquiry would affect the security of the UK. I would like to know this from the Minister: are we relying on Five Eyes or are we relying on Ofcom? Who is it specifically that will be doing this analysis?
The Earl of Erroll (CB)
My Lords, I want to say a few words on this. It is highly relevant that we keep a close eye, but on all vendors, including the ones that may seem okay at any given moment—the world keeps changing. I am not an apologist for, and nor do I wish to promote, China in any way whatever, but it happens to be there and it happens to have ripped off a lot of Cisco stuff a few years back and improved it. The Japanese did this to our cars, many years ago—nothing changes.
The real problem is that we do not manufacture this sort of stuff here; some of it is manufactured in Europe, and of course we are no longer part of that, but does that matter anyway? We are reliant for the supply of all this electronic equipment, and the components—such as chips, which I mention specifically —on China and many other places. The Americans also rely on China to manufacture components which they then put in their equipment. We had a security compromise a few years ago, when compromised components were put into some Cisco equipment. It is more complex than trying to ban one company or one country. But there are not many alternatives for us here, and that is the real problem. We need to get some home-grown stuff going and we need to get it done very quickly if we want to be really secure.
What are we going to do about it? The thing that worries me is that you cannot assume that your allies are always your friends in everything. We have to be particularly careful of being dragged into a trade war under the cover of security or defence—and this does happen. The cost of this whole thing is not so much that Huawei will try to cause us problems in some way unknown if we remove it from our system completely; there is the other side of it. If its technology is working and is better, and we can make sure in various ways that we are secure against what Huawei might do, its technology might get us to where we need to be in an internet world a lot quicker. I notice that we have already delayed quite substantially the rollout of broadband everywhere and 5G—everything seems to be stalling because of these rows, which to me are trade rows.
I fully understand the points of the noble Lord, Lord Alton, about supporting regimes that are doing appalling things around the world. The trouble is that there are an awful lot of them. Take the situation he mentioned, to do with cameras. It is actually the software that does the facial recognition, not the camera; it is purely a bit of hardware that takes a very good, high-quality photograph, and there are many alternatives to it. Who is supplying that facial recognition software? That is where I would really target, and I would bet it is China. If there are bits that are useful to us, we need to use them. We need to stay in the world and we need to get ahead. We are not ahead and we are going to drop behind more and more.
The other difficult thing about picking a fight with China is that, if we are really going to go net zero and start going all electric in the next few years, lithium supplies and processing are from China. There is already a shortage of chips and other things in the automotive industry; I am sorry, but we are reliant on an intertwined global supply chain which stretches all over the place. We must be very careful about singling out one country, but we are—and that is why the amendment is useful. We must have something that says that we are keeping a proper eye on the whole lot of them.
Lord Fox (LD)
This is an interesting debate—one that we started about a year ago. During the summer, on the then Telecommunications Infrastructure (Leasehold Property) Bill, many of these arguments were rehearsed. This Bill was held out, in a sense, as the carrot that would address these issues, and it has been some time coming.
To some extent, the initial issues that came up last year have been discounted, with the Government largely moving on the Huawei issue. However, as we have heard—and will hear over the course of Committee—many questions are unanswered. We should once again thank the noble Lords, Lord Alton and Lord Blencathra, and my noble friend Lady Northover for bringing forward these amendments, as well as the noble Lord, Lord Coaker. I will be interested to hear his perspective as, having been a Minister, he understands some of the trade-offs in decision-making—it is interesting that he chose to sign this amendment none the less.
I thank the noble Lord, Lord Naseby, for his Second Reading speech. He could not give it to us at Second Reading, so we got it anyway. There are some issues around industrial capacity which I will come back to.
The noble Earl, Lord Erroll, picked up a point on which I queried the Minister and did not get a response: at what point are we examining this technology? You have systems, sub-systems, components and software. Frankly, if we are doing this, it must be done at all levels. The capacity to do that and track a chip, a piece of software or something in the software which we do not even know is supposed to be there is a huge task. Do we have the capacity in the intelligence services, and the industrial ability, to do it? It is a very important question, as there is not much point having this if we cannot actually do it.
Before speaking to Amendments 1 and 20, I will say a few words on Amendment 27, the Five Eyes element. As we know, this requires the Secretary of State to review the UK’s security arrangements with companies banned by Five Eyes partners and to decide whether to take similar action on the UK’s arrangements with those companies. As I think my noble friend Lady Northover said, the Minister will no doubt say that we do this anyway. If we do this anyway then, to some extent, we should not be afraid of putting it in the Bill. It is important that we walk in as lock-step a way as we can with our Five Eyes partners, but the point of the noble Earl, Lord Erroll, is apposite; China understands that and will play the Five Eyes against each other. We must be aware of that; we must not be slavish in how we respond but canny, and work with our partners so that they understand why we are moving in the right direction.
Again, this comes down to capacity. The noble Lord, Lord Naseby, asked who does it. The NCSC is supposed to provide the ammunition for the Secretary of State and Ofcom to operate on. There are big questions around the interface between the NCSC and Ofcom and how they relate to each other. How, for example, does the highly secret information the NCSC is dealing with get to DCMS and Ofcom without either breaching security or eroding transparency, or both? We have big concerns about that, and obviously it will come up later.
The noble Lord, Lord Alton, raised Newport Wafer Fab, which until recently I thought was an ice cream firm somewhere in Aberystwyth. However, now I find that, as he set out, it is our only supplier of this equipment. That is an object lesson in itself but it is also completely appropriate to this point. In its response, BEIS confuses manufacturing capacity with technical novelty and has the idea that, because this is not technically novel, that somehow stops it from being valuable to this country. However, manufacturing capacity is central to the delivery of future technical novelty, and if you want somewhere to look, look at the communications industry. We were pre-eminent global leading companies in analogue communications technology; no country could match us. We lost that manufacturing capacity and the ability to innovate in the digital space, and that is why we have the supply chain issues we have today. If the Government have not learned this lesson, and it seems that BEIS has not, we have a long way to travel yet before we get to a sensible place.
In a sense we have heard from the noble Lord, Lord Alton, and others about specific issues but I would like to rise up a bit and look at the bigger picture slightly. In his Mansion House speech on 1 July 2021, Rishi Sunak crystallises the challenge and perhaps the dichotomy, and points us in a number of different directions at the same time. Your Lordships must excuse me, but I will read out a fairly lengthy passage which is appropriate to this debate. He says:
“And our principles will also guide our relationship with China. Too often, the debate on China lacks nuance. Some people on both sides argue either that we should sever all ties or focus solely on commercial opportunities at the expense of our values. Neither position adequately reflects the reality of our relationship with a vast, complex country, with a long history. The truth is, China is both one of the most important economies in the world and a state with fundamentally different values to ours. We need a mature and balanced relationship. That means being eyes wide open about their increasing international influence and continuing to take a principled stand on issues we judge to contravene our values. After all, principles only matter if they extend beyond our convenience. But it also means recognising the links between our people and businesses; cooperating on global issues like health, aging, climate and biodiversity; and”—
here we come to the rub—
“realising the potential of a fast-growing financial services market with total assets worth £40 trillion”.
What does a mature, balanced relationship look like in context? How nuanced are the examples that we have just heard about the Chinese? First, we can see that because of advanced concerns around the security of at least one Chinese vendor, the UK Government are mandating equipment to be torn out of our existing infrastructure and thrown away at the cost of several billion pounds. That is not a nuance. Secondly, we have heard from the noble Lord, Lord Alton, this time and previously, and we have seen the evidence of malevolence within China to its own people on a scale that is, let us say, unusual even for the age in which we live. Thirdly, we can see transparently what is going on in Hong Kong. That in itself is not a nuance either. Fourthly, we have the Chancellor’s stated desire to realise the potential of a fast-growing financial services market.
All this is the context in which Amendments 1 and 20 have been tabled. This gives the chance for the Minister to explain where she and the Bill sit on that nuanced scale, as the Chancellor puts it. He clearly sets out that the Government’s principles will guide our relationship with China, so what are those principles?
Lord Coaker (Lab)
My Lords, this is my first Grand Committee appearance, and I hope that I do not disappoint the noble Lord, Lord Fox. I have been in a number of committees, but not at this end of the building. I am still getting used to some of the processes and procedures, but I am very pleased to be speaking on this Bill.
From our perspective, the Bill is very welcome. The Government are clearly addressing a very real security concern that our nation has, and, in trying to deal with it, have not just my support but that of every single Member of the House of Lords. It is our country, and we want it looked after and defended properly. Many of the amendments and the comments that have been made so far today, and which will be made throughout the Committee and no doubt at Report and beyond, are about challenging the Government, not from an oppositional point of view but from one of trying to improve the legislation. We want to ask the Government testing questions to see where their thinking is. That is what all the various speakers have done so far today.
There are a number of particular issues. As others have said, the amendments in this group, from the noble Lord, Lord Alton, deal with the international context for the security of the telecommunications sector, however you define that. This is really important, because it affects—not infects—every single part of our lives. The noble Lord, Lord Alton, gave the example of Hikvision and CCTV. Whether it is the hardware or the software, this demonstrates that there are examples of new technology and telecommunications which impact on all our lives but which many of us probably do not view as causing a potential security threat to our country and nation. We have only to look at where that is going—whether you look at this sphere or the defence sphere—to know that we are going to see an increase in telecommunications, and in the use of space, drones, artificial intelligence and all those sorts of aspects.
One thing that I will talk about in other debates on other amendments is how you future-proof this—and that is part of some of the later amendments. Hikvision, which the noble Lord, Lord Alton, raised, is an interesting instance. At the nub of it is that, if our allies, who we depend on for our collective security, are banning companies such as Hikvision, as in the United States, how is it in our interests to defend our own security to not do the same? It is unfair to say that it has not been thought about, but there is something of a disjointed approach when one of our closest allies—if not our closest—has banned a tech company that we use. I am sure that there are very good reasons for it, and the Civil Service and others will no doubt tell the Minister X, Y and Z, but it defies common sense. Whatever the reality of it, it just does not appear to be a sensible option, so I very much support the example that the noble Lord, Lord Alton, gave. That is one of the reasons why I added my name to Amendment 27.
With regard to NATO and Five Eyes on a domestic and international level—I shall return to this point on Amendments 18 and 25—who actually holds the ring? Who is the person or what is the department that co-ordinates all this activity across government? Who holds the ring across government? You could say that it is the Prime Minister, but the Minister will know what I mean. Out of all the various aspects of government, who actually in the end decides? And if there is a conflict of interest between them, who then is the judge of that and how does that work on an international level? But as I say, that is more to do with Amendments 18 and 25.
Amendment 27 in particular, as I said, ensures a review of telecoms companies when a Five Eyes partner bans the operation of a vendor of goods or services to public telecommunications providers in its country on security grounds. That is eminently sensible. It a review. The amendment is, essentially, testing the Government by asking, “Why wouldn’t you have a review?” Why would you not—to use a security term—keep that under surveillance?
The Parliamentary Under-Secretary of State, Department for Digital, Culture, Media and Sport (Baroness Barran) (Con)
I thank all noble Lords for these amendments, which seek to strengthen the resilience of our telecoms networks by putting a new monitoring requirement on providers in relation to vendors in other jurisdictions, adding to the list of matters to which a requirement in a designated vendor direction may refer, and requiring the Secretary of State to review decisions taken by Five Eyes partners to ban vendors on security grounds.
We recognise the aim of having a comprehensive approach to telecoms security that includes the provider and government. The Bill follows this approach. A number of your Lordships said that I could be advised that the amendments are not unnecessary, but one issue the amendments raise is that of clarity of responsibility in the Bill. We believe genuinely that these amendments would blur some of that clarity.
The Bill as drafted is clear that it is the responsibility of government, not public communications providers, to set security duties and to designate vendors who pose a national security risk. In doing so, the Government, via the National Cyber Security Centre and other agencies, will monitor companies globally, including, of course, in the Five Eyes countries. It is then up to the providers to implement the security duties placed upon them and to comply with any designated vendor directions issued to them.
Amendment 1 in particular risks blurring these lines of responsibility and requiring telecoms providers to spend disproportionate resources on monitoring vendors internationally. This amendment seeks to place a new duty on public telecoms providers to review vendors of goods or services to those providers which are prohibited from other jurisdictions on security grounds, and to review the reasons for the prohibition. This would require public telecoms providers to monitor the policies and regulations of all other jurisdictions to understand whether those jurisdictions had banned certain companies from operating. This would be an onerous, disproportionate duty to place on industry.
Furthermore, in some cases, it may be impossible for telecoms providers to comply with the duty. The amendment states that telecoms providers must review the reasons for a vendor’s prohibition from a jurisdiction. As noble Lords will be aware, many jurisdictions have opaque decision-making processes, where it may be difficult, if not impossible, for telecoms providers to review the reasons for the prohibition of certain companies. Moreover, new Section 105A, which is inserted by Clause 1, places a strengthened overarching security duty on public telecoms providers. This duty is centred on an appropriately future-proofed definition of security compromises. Clause 1 therefore already ensures that telecoms providers undertake appropriate risk management to guard against any relevant threats to network security. In the light of this, I do not consider that this amendment is either proportionate or necessary, given the burden that it would place on telecoms providers and the duties already contained in the Bill.
Amendment 20 seeks to clarify that a requirement in a designated vendor direction may make provision by reference to the sourcing of goods, services and equipment from a specified country, or from sources connected with a specified country. While it is important that we protect our networks from the threats posed by hostile state actors, I do not consider this amendment to be necessary. As currently drafted, the Bill already allows for requirements to be included with provisions relating to the “source” of goods, services and facilities supplied by a designated vendor. I would consider that countries, and sources connected to countries, would already be captured by this wording.
Further, the list of matters that the noble Lord seeks to amend is explicitly non-exhaustive. The Bill is clear that the provisions of a requirement may refer to matters other than those listed in the Bill. It is therefore already possible for a requirement in a direction to refer to the country from which goods, services and facilities are sourced, if the Secretary of State considers that such a requirement is necessary in the interests of national security and proportionate to the aim that is sought to be achieved. As such, this amendment would not achieve anything that is not already possible under the provisions of the Bill as drafted.
Amendment 27 seeks to add a new section to the Communications Act 2003. This amendment would require the Secretary of State to review decisions taken by Five Eyes partners to ban telecoms vendors on security grounds and consider whether similar action is required in the UK.
A number of Members of the Committee, including the noble Lords, Lord Alton and Lord Coaker, and the noble Baroness, Lady Northover, stressed the importance of co-operation. She asked whether this was happening anyway. The short answer is that it is. The UK is already committed to a close partnership, and engages regularly with the Five Eyes. The UK’s telecom networks face similar challenges to networks in other countries.
The Government have engaged with partner countries on the approaches to high-risk vendors throughout the drafting of the Bill and will continue to do so once it is passed. I reassure the Committee that we are in regular contact not only with the Five Eyes nations but with other key partner nations—for example, Japan, France and Germany, to name but a few. Therefore, a requirement to review their decisions to ban a high-risk vendor and consider whether to issue a designated vendor direction in the UK would be unnecessary.
The noble Baroness, Lady Northover, asked more broadly how we worked with other countries in relation to national security. We have always maintained that each country needs to implement the mitigations that are right for their national circumstances. Of course in practice, Governments are adopting similar measures to address the risks, and adapting them to meet their own national circumstances. For example, the Netherlands, Germany and Australia have all either adopted or are planning to adopt security measures comparable to those set out in the UK’s draft secondary legislation, which the Bill would allow us to implement.
In July 2020, following advice from the National Cyber Security Centre, the National Security Council considered the impact of US sanctions in relation to Huawei. It considered that further action was needed, as the new US restrictions made oversight of Huawei products significantly more challenging and potentially impossible. That is another example of how the UK already regularly reviews security advice and requirements in response to international considerations.
Some of the issues raised were closely linked to the Bill, while others were slightly less so. The noble Lord, Lord Fox, asked how Ofcom and the NCSC would work together in practice. To formalise the relationship between the two organisations, they are in the process of developing a memorandum of understanding and have published a statement, available on the Ofcom website, that sets out the three key principles that they will follow. They are: first, that the National Cyber Security Centre will provide expert technical cybersecurity advice to Ofcom to support the implementation of the new telecoms security framework; secondly, that they will exchange information where necessary and permitted by law; and, thirdly, that the National Cyber Security Centre will continue to provide incident management support during serious cybersecurity incidents, both to telecoms operators and to Ofcom as needed.
The noble Earl, Lord Erroll, suggested that our broadband rollout programme had stalled—forgive me if I misheard—but I do not accept that. We as a Government remain committed to delivering nationwide gigabit and mobile connectivity as soon as possible. We have put in place £5 billion of funding to roll out next-generation gigabit broadband and have already connected more than 1 million hard-to-reach homes and businesses. Despite the pandemic, the expansion has been extraordinary, with 40% of premises now having access to gigabit-capable broadband, which will rise to 60% by the end of this year.
The Deputy Chairman of Committees (Baroness Healy of Primrose Hill) (Lab)
I have received a request to speak after the Minister, so I call the noble Lord, Lord Fox.
Lord Fox (LD)
I congratulate the Minister on introducing the Barran scale of nuance, which will no doubt become a classic in future. She did not address the issue of componentry, if you follow my drift. It seems to me, in analysis, that what tipped the balance in the sense of Huawei was the absence of American-made chips. Were that not to have happened, the NCSC would not have recommended the widescale removal that we have seen. That appears to be the implication. There seems to be an element of component monitoring going on, although in this case the monitoring appears to have been done more by the Americans than by the United Kingdom. It comes back to that fundamental point: at what level is the Bill going to be applied? Will it be applied on the overall capability of the system? In other words, is it a systems capability issue? Is it a subsystem operational outcome view, the individual pieces that go to make those subsystems, or the software that drives the overall system? How will the Bill actually be put into process?
Baroness Barran (Con)
I may need to write to the noble Lord about the technical details he has set out. I think for the approach to be effective it needs to incorporate all elements of that. An overall system cannot be a capable system if the subsystem is not. There needs to be coherence across the equipment that is supplied and our understanding of how it operates in practice and the component parts to inform the judgment about its security or not. I am happy to follow up in writing if he is agreeable.
Lord Alton of Liverpool (CB)
I thank all noble Lords who have participated in the debate and the Minister for her replies. I thought that the intervention just now by the noble Lord, Lord Fox, was important. It drives at one of the issues that we have debated today in the context of Nexperia and what is happening to a British company that has been acquired by a Chinese company through its Dutch affiliate. It is about computer chips. It is about semiconductors. It is about our ability to be able to control what goes into the technology that the Bill is very much about. That is not an on-the-side question; it is a very important central question and I look forward to seeing the response that the Minister gives to the noble Lord, Lord Fox, when she looks at it further.
I turn now to some of the contributions made today. The noble Baroness, Lady Northover, in a typically powerful and thoughtful intervention, invited us to delve more deeply. That is what we have been doing during this afternoon’s proceedings. She emphasised the importance of countries working together. She regretted, with sadness, that we have been forced to make some of these decisions about our own individual ability to acquire intelligence as a result of our decision to leave the European Union.
I thought it was interesting that, earlier today, the European Commission issued new guidance to combat forced labour in supply chains. It rather puts our laggardly and perfunctory efforts to shame. The guidance provides concrete, practical advice on how to identify, mitigate and address the risks. This issue has been referred to and the noble Baroness has said that she is going to write to us further on modern-day slavery and supply chains. High Representative/Vice-President Josep Borell says that the guidance
“will help EU companies to ensure their activities do not contribute to forced labour practices in any sector, region or country.”
It paves the way for future legislation which will have enforcement mechanisms and should introduce a mandatory due diligence duty, requiring European Union companies to identify, prevent, mitigate and account for sustainability impacts in their operations and supply chains.
Our amendments today would gather that kind of information. I simply do not accept that it is impossible for companies, in partnership with government—a point made by the noble Baroness in opposition to these amendments was that this would place too much responsibility on companies—or countries such as our own to collect this information. Like other noble Lords around the table, I have no staff. The information I gave to the Committee today is publicly available and, with a little bit of research, it can be obtained without too much difficulty. It is absurd to suggest that it is beyond the ability of companies or countries to collect information and share knowledge. The example from the European Union underlines what the noble Baroness said to us today.
The noble Lord, Lord Naseby, was, as always, asking all the right questions. From our many years together in another place, as well as here, I am always happy to stand with the noble Lord, not least because of his experience in many parts of the world. It is important to ensure that our people who are in post in many of our embassies are given the ability to ask these searching questions and to ensure that the information comes back to us, to prevent many of the expensive mistakes that have been made around Huawei, and which have been referred to during the debate, happening all over again.
My noble friend Lord Erroll was right to say that there are human rights abuses in many countries. Like him, I become indignant about some of those abuses; I do not argue, though, that we should no longer trade with those countries. I always prefer that we trade with countries that are on a trajectory to reform, that are law-abiding and that believe in human rights and democracy, but I accept that it would be impossible to take out of supply chains any country that carries out any kind of human rights violation.
However, there are certain markers that we can look to. One of them is our legal duty under the 1948 convention on the crime of genocide. This is not a word to be used lightly. The word “genocide” came into our vocabulary thanks to a Polish Jewish lawyer, Raphael Lemkin, who had seen over 40 of his own family murdered in the Holocaust. During the proceedings on the telecoms infrastructure Bill last year, I gave examples from that period of how companies such as Philips had their own forced labour in the camps where people were dying. I gave the example of Corrie ten Boom, a Dutch woman who had given refuge to escaping Jewish people trying to flee the Holocaust. She and her sister were arrested and sent to work in that factory; her sister died there. Corrie ten Boom wrote a deeply moving book called The Hiding Place. That is the comparison I seek to draw.
It is not just me. In April this year, the House of Commons said that what is taking place in Xinjiang is genocide—it is only the second time that it has ever made such a declaration, so this is of a different order. Where there is genocide, we, as signatories to an international treaty—the 1948 convention on the crime of genocide—have a legal obligation to predict the signs of genocide, prevent it from happening, protect those affected and prosecute those responsible. I accept my noble friend’s argument—we are not going to stop trading tomorrow with Gulf states or whomever it may be who is doing fairly odious things—but the crime of genocide is surely in a different league.
Lord Clement-Jones
Member’s explanatory statement
This amendment, along with similar amendments to Clause 1 in the name of Lord Fox, seeks to narrow the scope of the definition of “security compromise”.
Lord Clement-Jones (LD)
My Lords, I hope the Committee will forgive me if I move on to drier but—I hope the Committee will agree—important ground. In moving Amendment 2, I will also speak to Amendments 3, 4, 5 and 6.
Amendment 2, along with similar amendments to Clause 1 in the name of my noble friend Lord Fox and myself, seeks to narrow the scope of the definitions of “security compromise” and “connected security compromise”. As well as having concerns about oversight of the new powers of the Secretary of State, which we will debate later, there is also concern, reflected by the Constitution Committee, about the width of these crucial definitions and the consequences that flow, particularly as regards planned outages and the need to make a clear distinction between reporting on security compromises and on resilience.
I say this in the context of the impact assessment of 9 June, which stresses the large degree of uncertainty surrounding the costs to be incurred by business, amplified by the report of the Regulatory Policy Committee under its new chair. The Constitution Committee says:
“Clauses 1 and 2 impose duties on providers of a public electronic communications network or service … These include taking such measures as are appropriate and proportionate for the purposes of identifying and reducing the risk of security compromises occurring. The Bill defines security compromises, but the Explanatory Notes acknowledge this definition is broad and do not explain their intended scope. The consequences of a security compromise for providers are potentially significant, including substantial and costly duties of due diligence”—
this echoes the impact assessment. It goes on:
“The House may wish to consider whether narrowing the definition of security compromises would be appropriate.”
BT gave evidence to the Public Bill Committee in the Commons. Of course, BT is a provider which will need to comply with the provisions of the Bill, so I take the liberty of reading out much of its evidence:
“As currently defined, a ‘security compromise’ … would cover any planned network outage that may be required for maintenance or upgrading of the network, or any unplanned outages due to faults or wear and tear. These types of outages are relatively regular occurrences given the scale of our network and we always seek to minimise customer impact and restore service as quickly as possible. The duties on operators in the Bill that flow from this definition are significant—including network issues that cannot reasonably be considered as security compromises (rather resilience or availability issues) would create undue burdens on operators and potentially on OFCOM.
These outages are not the result of any unauthorised access or malicious intent, nor do they have consequences for the confidentiality of data or signals carried over the network. We do not believe it is the intention of the Bill to apply the same requirements (e.g. with respect to reporting or notification to stakeholders), or to make the same powers available to OFCOM, in relation to these types of incidents, as are intended to apply to ‘security compromises’.”
It goes on:
“The definition also seeks, we understand, to capture any compromise to the integrity of signals conveyed over a network. However, the way that this is expressed—by reference solely to compromises of the ‘confidentiality of signals’—is unclear and confusing. It could be significantly improved by making a simple amendment to refer to ‘confidentiality and integrity’.
The definition of ‘connected security compromise’ … is a simple definition referring to something that ‘occurs in relation to another public electronic communications network or a public electronic communications service’. Given the potential breadth of this definition, building some specifics on how the ‘connected’ element will be assessed in the overall Government/OFCOM guidance on ‘security compromise’ will be important.”
So a provider that will be considerably impacted by the Bill and the Constitution Committee have raised important issues about the width of these definitions. These amendments perhaps do not go as far as some providers would like, but they attempt to give greater certainty by specifying that compromises which involve security issues are covered, but not wider outages which do not have security implications. I very much hope the Government will heed both the providers and the Constitution Committee by narrowing the width of these definitions. I beg to move.
Lord Naseby (Con)
My Lords, I had the privilege of being an RAF pilot. The instructions we received as pilots in methods of security included the word “anything”. In other words, if you are flying a jet on a mission and you suspect something, “anything” is reported back, or you take remedial action. You do not try to refine that security by, in this case, reducing it or leaving any element of doubt. Thinking about it a little further, the “anything” could be technical. In this context, it could be competitive; it could be a company being taken over; it could be lack of finance; it could be fraud. Above all, it could provide a loophole. Therefore, Her Majesty’s Government are absolutely right in putting in the word “anything” and not trying to restrict it further.
The Earl of Erroll (CB)
My Lords, I rather agree with the noble Lord, Lord Clement-Jones, on this matter. The Bill is meant to be about security, not about “anything”. I have seen this happen with other legislation—that it suddenly becomes convenient to take something never intended for another purpose and, because it is very broadly worded, use it to beat some company or someone over the head over something completely unrelated. I am afraid that I agree that the Bill needs to be tightened up and brought down to security issues, not just “anything”.
For starters, a powerful, predominant supplier of routing equipment in the IP network would be a security risk. If anyone relies too much on one supplier—and they may unfortunately be pushed in that direction—it becomes a security risk, and we may have to close down some providers: “Oh dear, that’s our network finished”. That would be stupid. We are going to be anti certain companies. Companies get based or controlled elsewhere as takeovers happen internationally, so I see a certain amount of difficulty with this if it is very wide.
I come to what the noble Lord, Lord Fox, said. The reason we lost our manufacturing, of course, was that BT selected Huawei as the preferred supplier of the 21st-century network rewrite in 2005. That is the point at which we closed down our capability, effectively being blackmailed by America to get rid of Huawei while potentially blackmailed by Huawei, which could get too much control. We need to look at these strategic decisions where private companies that used to be government suddenly make companies that affect UK security. I have never been happy about that.
Lord Fox (LD)
My Lords, in response to the noble Earl, Lord Erroll, I say that it is also a huge issue when you have, essentially, a near-monopolistic private sector supplier, which makes any decision completely catastrophic for the under-bidder. I am speaking not to that but to Amendments 2, 3, 4, 5 and 6, which, as my noble friend Lord Clement-Jones pointed out, bear my name. He set out a very clear rationale for these amendments, which back up the concerns of the Constitution Committee and, indeed, some suppliers. Rather than reiterate those, I beg noble Lords’ indulgence to illustrate the point, inviting them to join me in a thought experiment. They need not worry—it is not going to hurt and I will not be pushing them into a Petri dish or anything like that. I simply ask your Lordships to imagine things the other way around: imagine that the Telecommunications (Security) Bill did indeed include the words currently proposed by my noble friend Lord Clement-Jones and myself, words that clearly identify that the focus of the Bill should be on the security of telecoms.
I ask noble Lords to continue to use their imagination that it was my noble friend and I who were proposing changes to include the words that are currently there; in other words, imagine that we were proposing to take the word “security” from this imaginary Bill and turn it into “anything”. Broadening the cover, as we have heard, would broaden the problem around any interruption very widely. I do not know but I dare say that, if we tried to do that, the Public Bill Office would have something to say, pointing to the Long Title of the Bill, which is:
“To make provision about the security of public electronic communications networks and public electronic communications services”
—in other words, security. Were we to try to take that word out and put in “anything”, I dare say the PBO would not allow us to do so.
If we did however slip it past the PBO, I guarantee that the Minister of the day would tell us that this would subvert the Bill’s intention and would take away the Bill’s focus from security to some of the imaginary things that the noble Lord opposite suggested—or, indeed, a digger backing into a green box somewhere in Kent. This is not the “Telecoms (Mishaps) Bill” but the Telecommunications (Security) Bill. These simple and modest amendments focus the Bill on its stated objective.
Lord Coaker (Lab)
This is a really important discussion. I do not want to speak for too long but the noble Earl, Lord Erroll, was right to say that the Bill is about security and not just “anything”. None of us on the Committee wants to compromise the nation’s security or compromise the ability of our military personnel to conduct necessary operations. However, sometimes in legislation words really matter—they are the law of the land. That is why scrutiny of legislation in Committee like this is so important, word by word and line by line, otherwise—and I will have a series of questions for the Minister on this—down the line in one, two, three or five years, something will happen and everybody will go, “How was the word ‘anything’ included?” The unintended consequence of legislation is something that we need to consider, or people will ask how something happened—how that word was allowed.
With that in mind, it is important that the Minister explains to the Committee how this definition is arrived at. The starting point would be to ask her to explain the differences between having the word “anything” and having the phrase “security issue”. Can she give examples of how the Bill would be weakened by having that term rather than “anything”, and what “anything” means—apart from saying that it means “anything”? What does it actually mean, given that the Bill is supposed to be about security issues, as the noble Earl said?
The Government argue that the duty on providers is appropriate and proportionate to ensure that the effects of compromise are limited and to act to remedy the impacts. I understand why Ministers are keen to keep the definition wide, but on its own it is not good enough. For example, can the Minister explain whether there are any thresholds to what amounts to a security compromise, or is it “anything”, and what does that mean to an individual who might stray into territory that they are not sure about? How was the Bill’s definition arrived at? Who came up with it and what advice did they receive? Were alternatives suggested to it, what did security experts say to the Minister was necessary, and were there dissenting voices?
In seeking clarification, I wonder whether the Minister can explain why the definition does not include, as I understand it, the presence of supply chain components, as the noble Lord, Lord Fox, mentioned on the earlier group of amendments, if they represent a security threat. Maybe it does—but could the Minister clarify that? We need to know that to understand the diversification of the supply chain and how effectively or not it is proceeding. It is important to consider the components of the supply chain, particularly when identifying where they are a threat to our national security. As I see it, that is not included in Clause 1, but perhaps the Minister can tell me that it is and that I have not read the clause correctly. If so, where is it?
I go back to where I started. These amendments are important in testing how the Government have arrived at this use of “anything”. I know it sounds like semantics —what does “anything” mean?—but the point made by the noble Earl, Lord Erroll, is crucial. The Bill is a security Bill. That being so, why does “anything” appear and why is “security issue” not the appropriate way to describe this? Why is it not included in the Bill? It is necessary for the Committee to understand the Government’s thinking on this for us to consider whether we need to bring back this matter on Report.
Baroness Barran (Con)
My Lords, the Committee will recall that the UK Telecoms Supply Chain Review Report in July 2019 found that telecoms providers lack incentives to apply security best practice. This Bill is our response to its recommendations and takes forward the Government’s commitment in the report to introduce a new security framework, including new legal duties and requirements, to ensure that telecoms providers operate secure and resilient networks and services.
I thank the noble Lords, Lord Fox and Lord Clement-Jones, for tabling these amendments to Clause 1. Before I address them directly, I hope that it will be helpful if I set out some brief context for the clause as it appears in the Bill and try to address the challenges posed by the noble Lord, Lord Coaker.
Clause 1 inserts a new Section 105A into the Communications Act 2003. New Section 105A places a duty on public telecoms providers, first, to identify the risks of security compromises; secondly, to reduce the risks of compromises occurring; and, thirdly, to prepare for the occurrence of security compromises. To support the duty, new Section 105A creates a new definition of “security compromise”. The definition is purposefully broad and includes anything that compromises the availability, performance or functionality of a network or service, or that compromises the confidentiality of the signals conveyed by it. I thank my noble friend Lord Naseby for his support for this approach.
I am genuinely slightly puzzled by the remarks of the noble Lord, Lord Coaker, about what is included and excluded, because Clause 1 goes into great detail—which I shall not read out now, but I know the noble Lord has looked at it. Not only do we define what is included in “compromise” but we are explicit about what is excluded. This comprehensive approach will help ensure that telecoms providers protect their networks and services properly in the future. It creates a new duty on providers to take steps to reduce the risk of incidents and attacks seen globally in recent years.
As we have heard, the amendments tabled by the noble Lords, Lord Fox and Lord Clement-Jones, would narrow the definition of a security compromise. As both noble Lords noted, this was also a matter that the Constitution Committee recommended the House consider in its recent report. As I have said, the definition is designed to support a long-term approach to security. It aims to be focused enough to address risks that are specific to telecoms networks. At the same time, it is broad enough to ensure the Bill is future-proof and has flexibility to enable us to address new and evolving threats.
I appreciate that the noble Lords are seeking to ensure that legal obligations on telecoms providers are targeted and appropriate to specific risks, but it is important to remember that the framework within the Bill is designed to do exactly that. Certainly, we are not aiming, in the words of the noble Earl, to bash suppliers over the head. Rather, the broad definition in the Bill helps future-proof the legislation, whereas the specific security measures which narrow that focus will be set out in secondary legislation. I tried to get my head around the thought experiment from the noble Lord, Lord Fox, but I got stuck at the idea of trying to fit inside a petri dish, which would definitely be impossible.
The Deputy Chairman of Committees (Lord McNicol of West Kilbride) (Lab)
I have received one request to speak after the Minister, from the noble Lord, Lord Fox.
Lord Fox (LD)
The Minister brought up the review, which was very clear that there are huge potential market failures within the security and resilience telecoms market, the reason being that security is not valued by the networks. It is other things, such as network connectivity and price, which are of maximum importance to those networks—things that might come under the word “anything”, for example.
Let us be clear about the four reasons given by the review that security is undervalued by networks: insufficient clarity on cyber standards and practices; insufficient incentives to internalise the costs and benefits of security; lack of commercial drivers, because consumers of telecoms services do not tend to place a high value on security; and the complexity of delivering, monitoring and enforcing contractual arrangements in relation to security. All four of those issues, which I think are driving the purpose of this Bill, involve the word “security”. Far from these amendments watering down the intent of the Bill, the Minister is watering it down herself by including the word “anything” and ignoring the word “security”. I do not expect her to accept these amendments now, but I would like the department to go away and think about this very carefully, because a catch-all Bill catches nothing.
Baroness Barran (Con)
I hear the noble Lord’s concerns. We will of course take back his comments and reflect on them again. However, I know that officials working on this Bill have considered these points in enormous detail and would be happy to meet the noble Lord and discuss them, if that would be helpful. We believe that our framework does not water down but balances future-proofing with the precision and specificity that the noble Lord seeks. I hope we can follow up on that in a separate meeting.
Lord Clement-Jones (LD)
My Lords, I see a slight chink of light, perhaps, that may be opened by opened by a meeting with the Minister on this subject—because she will appreciate that none of the amendments tabled to the Bill, which we think is important, has been put down lightly, and definition is crucial.
I was somewhat baffled by the noble Lord, Lord Naseby, flying in his jet—I was thinking of perhaps pressing the ejector button, but I thought better of it. The idea that there is an analogy between flying a jet and what we are talking about here was a bit baffling. The only way that I could think of the analogy for a planned outage, which is exactly what the providers are worried about being subject to under this definition of “security compromise”, is where a jet does a planned manoeuvre and everyone scrambles and treats it as an incident—so I cannot see that his analogy holds at all.
I much prefer and give thanks for the contributions of the noble Earl, Lord Erroll, the noble Lord, Lord Coaker, and my noble friend Lord Fox, who, in doubling down on the points raised about the purposes of the Bill, illustrated exactly why we seek to have a much more precise definition. The big problem is that the flexibility demanded by the Government is effectively at businesses’ cost and causes uncertainty. That is the worry about the way that the Bill is currently drafted.
The Minister talked about future-proofing and doing it more precisely, in a sense, by setting out the duties by secondary legislation—but, of course, there are great concerns about the way that the secondary legislation is to be agreed and the codes of practice. So I suppose that, if I were going to ask for a quid pro quo, if there is to be a loose definition of “security compromise”, there must be a very tight way of agreeing the codes of practice and the secondary legislation—but I wonder whether the Minister will actually agree to that trade-off, as we go through the afternoon. I would like to have all of the amendments that we have tabled for today.
I really think that, when the Minister said that this would “undermine the whole approach”, it is good to have it in her script, but that is absolutely not the case. The last thing that we are doing by trying to tighten this definition is to undermine the whole approach; we are trying to create certainty for the providers so that, when they plan outages and there are other planned events, they are not caught by a sidewind when trying to comply with the terms of the Bill. This is a practical issue.
I understand what the Minister says about resilience and, to some degree, that is the case, but there is clearly a great deal of uncertainty surrounding the providers’ interpretation of the Bill, as it currently stands—and they are the ones that will be subject to this. As I said—without wishing to repeat myself too much—the Government’s impact assessment itself makes it very clear that the costs of this exercise, of having to comply with the Bill, are extremely uncertain at this point, and there is quite a lot of concern about that.
I am sure that, if we have a meeting with the Minister in due course, we will be able to persuade her to accept these amendments, and I look forward to it. In the meantime, I beg leave to withdraw Amendment 2.
The Deputy Chairman of Committees (Lord McNicol of West Kilbride) (Lab)
We now come to the group beginning with Amendment 7. Before I call the mover, the noble Lord, Lord Clement-Jones, I will run through the speakers’ list, so that everyone is clear: the noble Lord, Lord Clement-Jones, will be followed by the noble Lord, Lord Naseby, the noble Earl, Lord Erroll, the noble Lord, Lord Fox, the noble Baronesses, Lady Merron and Lady Barran, and finally the noble Lord, Lord Clement-Jones.
Amendment 7
Lord Clement-Jones
“(1A) Regulations under subsection (1) may not be made unless a draft has been laid before, and approved by a resolution of, each House of Parliament.”Member’s explanatory statement
This amendment would require Parliamentary approval before regulations regarding the duty to take specified security measures are made.
Lord Clement-Jones (LD)
My Lords, I beg to move Amendment 7 and will speak also to Amendment 12. New Section 105B introduced by Clause 1 affords the Secretary of State the ability to make regulations that have highly onerous provisions, laying down that a provider must take specified security measures. This is under the negative procedure, which is of course a near 100% guarantee of their coming into force. There is no provision for any independent or specialist oversight of these regulations, as we will discuss later. They cover a huge range of issues in great detail, including
“Network architecture … Protection of data and network functions … Monitoring and audit … Supply chain”.
These are all in the draft regulations, along with
“Prevention of security compromise and management of security permissions … Remediation and recovery … Governance and accountability … Competency … Testing … Assistance”.
Very helpfully—in a way—to my case in the last group, the Minister said that the whole purpose of the regulations was to specify in greater detail what the duties of providers would be. But, already, particular issues have been identified in the draft regulations by providers relating to patches, audit and monitoring, supply chains, foreign network operating centres—and the list goes on. So, there is already a feeling not only that these regulations are very detailed but that they should not be subject to the negative procedure. It seems extraordinary that regulations of such importance are not to be subject to greater parliamentary scrutiny.
Noting, obviously, that the noble Baroness, Lady Merron, will be speaking to her Amendment 11, I move on to my Amendment 12. The fourth report of the Delegated Powers Committee drew the attention of the House to proposed new Section 105E of the Communications Act 2003, which gives the Secretary of State power to issue, revise or withdraw codes of practice about security measures that should be taken by providers in the performance of their duties to prevent security compromises under Sections 105A to 105D. There is a duty to consult with Ofcom and providers but no oversight or approval role for Parliament.
In her letter to us after Second Reading, the Minister of course assured us that:
“Government will consult with affected public telecoms providers and Ofcom on any codes of practice that are issued. This will ensure that we have a full understanding of the code’s impact before it is finalised. A consultation on the first code of practice will take place after the Bill receives Royal Assent.”
I am glad to say that the Delegated Powers Committee, in the light of the importance of the codes to assessing compliance and in enforcement by Ofcom, were unconvinced by the department’s claim that this was too detailed and technical and “not legislative”. As the committee said:
“The Bill provides for codes of practice to play a significant role—both in relation to the exercise of OFCOM’s regulatory functions and in legal proceedings—in supplementing the important duties to take security measures that the Bill imposes on providers.”
It concluded:
“In our view, it is unacceptable for codes of practice that will have the significant statutory effects provided for in this Bill to be subject to no Parliamentary scrutiny procedure.”
As the UK communications council said, the combined effect of the two proposed provisions that I have talked about in these two amendments amount to a near-unfettered ability for the Secretary of State to interfere in the normal operations of what is an otherwise innovative and successful industry. Amendment 7, in particular, seeks to ensure that these regulations need to be approved by Parliament by the affirmative procedure. Amendment 12 would require approval from Parliament for codes of practice under the Bill. Where I differ from the committee and, it seems, the noble Baroness, Lady Merron, is on the procedure to be adopted. In my view, at minimum, it should be by the affirmative procedure. I beg to move.
Lord Naseby (Con)
My Lords, I am sorry that the noble Lord, Lord Clement-Jones, does not like my analogy of flying. I just remind him of a recent series of Boeing airliners that crashed with a huge loss of life when the security of flying was overridden by a piece of machinery. I stick by my analogy but I will not progress that any further in relation to these amendments.
The Bill says clearly:
“publish the code; and … lay a copy of the code before Parliament.”
However, it does not allow Parliament by right to debate that code and any amendments that come. This is a fast-moving market, as we all know. New opportunities have come up that will have a security dimension to them. There will be new developments, I hope, from our own technical universities so there must be some provision for the expertise that both the House of Commons and the House of Lords have within them to debate. Those of us who have been in Parliament for a few decades know that quite often there are unusual people who have a particular niche that they know something about. That is the benefit of the experience of Parliament.
I agree with the noble Lord that it ought to be done on the affirmative procedure. I sat in the chair for five years during the passage of all the Maastricht and other Bills and there are certain areas where it is absolutely crucial that it should be done by affirmative resolution. Therefore I certainly support that dimension.
The Earl of Erroll (CB)
My Lords, I can see that it might be useful to avoid scrutiny sometimes when we have to finesse difficult issues—say, balancing effectiveness and public perception of certain other issues, or whatever. We can also end up with an awful lot of SIs in front of both Houses and everyone feeling rather swamped and bored by them and no one really doing anything about them. The trouble is that we get more and more wide-ranging powers in Bills, and this is a particular example of it. The more we do that, the more careful we have to be about the secondary legislation, because that is where the devil resides and that is where the real control is. We have just passed something that enables a takeover by the Executive. In some cases that may be a good thing; in others it could be very dangerous. To be honest, because of the huge, general issues in these Bills, I now come down in favour of the affirmative procedure. We are going to have to scrutinise it.
Lord Fox (LD)
My Lords, harmony is breaking out across the Room, with the possible exception of the Minister. I will not reiterate my noble friend’s well-put argument but I refer the Minister—I am sure she has already read it—to the impact assessment. I am increasingly of the opinion that the single most useful document that comes with the publishing of a Bill is not the Explanatory Notes but the impact assessment. The department is to be congratulated on the quality of the one produced in this case.
Page 30 of the impact assessment covers the monetised and non-monetised costs of this. At the front of the assessment there is a number. However, point 6.1 says:
“This impact assessment makes an estimation of the costs and benefits of the options”.
It says it brings together “a number of sources” and notes that there are “limitations to the analysis”. The first is the
“lack of robust and specific data”—
that is a fairly serious limitation—
“for example on UK telecoms market size and the size of specific sub-markets”.
Therefore, the number on the front is based simply on—obviously, well-intentioned—estimates of the telecoms market. Furthermore, the costs are quantified based on equipment costs. They are not based on the friction of running a network under the constraints of this Bill, which is itself a glaring error in how one looks at the cost of this Bill in terms of impact.
It is not just about the cost and replacement of equipment—it is about the draft regulations to which my noble friend Lord Clement-Jones referred. They cover all aspects of the operation of the networks in this country. We are looking at a situation in which, if the Minister so chose, the regulations could be made and implemented such that the Minister ran the networks by remote control from the department. That is why these safeguards, parliamentary scrutiny and the affirmative process are an important safeguard to prevent attention—not, I am sure, from this Minister or this Secretary of State, who I am sure can be trusted with these regulations, but we do not know who will follow or what their intentions will be.
As the noble Earl, Lord Erroll, wisely said, to hand over these powers without simultaneously taking significant powers of scrutiny of the statutory instruments that will inevitably follow is the wrong way in which to pass a Bill in your Lordships’ House. For these reasons, along with the huge uncertainty of the cost of what we are doing here, I commend my noble friend’s amendments.
Baroness Merron (Lab)
My Lords, I speak to Amendment 11 in my name and welcome Amendments 7 and 12 in the names of the noble Lords, Lord Fox and Lord Clement-Jones. I was interested that the noble Lord, Lord Fox, referred to a chorus of agreement, which I certainly heard ringing out, expressing concerns about the role that Parliament should have in scrutinising on codes of practice that this Bill currently does not provide for. To me, the codes remind us that the Bill can provide us only with something of a framework, and for many areas there is a wait for the details to be filled in later. As the noble Earl, Lord Erroll, said, the devil, as always, is in the detail.
Clause 3 allows the Secretary of State to issue new telecom security codes of practice that will set out to providers the details of specific security measures that they should take. As we have heard referred to, the impact assessment states that these codes are the way in which the DCMS seeks to demonstrate what good security practices look like. However, I note that Ministers are proposing only to demonstrate but not actually to secure good practice, which I am sure is the real intent—and it would be very helpful if, through this debate, we could get to that place.
I am interested also to note and draw the Minister’s attention to the fact that the Government have said that these codes will be based on National Cyber Security Centre best practice security guidance. The Government have said that they will consult publicly, including with Ofcom and the industry, as we read in the Minister’s letter following Second Reading. That public consultation will be on implementation and revision. However, it strikes me as very strange that the National Cyber Security Centre is not a statutory consultee; can the Minister say why it is not?
I particularly make the point that, as the codes of practice will be admissible in legal proceedings, they have to be drafted accurately and we have to ensure that security input and expertise is fed into them. The National Cyber Security Centre, which is described as a bridge between industry and government and is, indeed, an organisation of the Government, would seem to be a body that should be, in a statutory sense, invited to make the input and offer its expertise, along with other departments and agencies. After all, we can see, when reading about the centre, that its whole reason for being is that it provides widespread support for the most critical organisations in the United Kingdom as well as the general public, and they are absolutely key when incidents, regrettably, occur. We are trying to address those incidents in respect of this Bill.
As we have heard from all noble Lords who spoke in this section of the debate today, the input needs to come from Parliament, which is why I tabled Amendment 11. As the Bill is drafted, the current reading is that a code of practice must be published and laid before Parliament, but there is no scrutiny procedure. I put it to the Minister that if codes have legal weight, why is Parliament being denied the chance to scrutinise them? We seem to have a complete mismatch there. I was taken by the words in the Delegated Powers Committee report, mentioned by the noble Lord, Lord Clement-Jones, in his introduction, which stated that this way of being was “unacceptable” and called for the negative procedure for codes. That is what Amendment 11 does. Can the Minister address specifically the words of that committee report? I refer her to paragraph 27, which says:
“In our view, the Department’s reasons are unconvincing … the fact that codes of practice would be produced after consultation with interested parties cannot be a reason for denying Parliament any scrutiny role; and … the Department appears not to have recognised the significance of the statutory effects of the codes of practice”,
as has been highlighted today. I therefore hope that the Minister will both comment on the report and seek to make what is a very important and significant change in this regard.
I will pick up on one additional point. The impact assessment also says that the codes of practice will have a tiering system for different-sized operators. The initial code will apply to tier 1, which serves the majority of businesses of critical importance to the United Kingdom. This will also apply to tier 2 medium-sized operators but with lighter oversight by Ofcom and longer timetables. Can the Minister offer a draft list of the operators in tiers 1 and 2, and can it be shared with noble Lords? I would also be interested to know whether the Minister has any concerns that tier 2 operators will somehow be worse at compliance. If she has those concerns, what support will be provided to small and medium-sized enterprises? I look forward to her reply.
Baroness Barran (Con)
My Lords, I have heard with interest the contributions of your Lordships regarding the parliamentary oversight of the secondary legislation and codes of practice associated with the Bill. I will try not to disrupt the harmony that broke out so agreeably.
Amendment 7 tabled by the noble Lord, Lord Fox, would apply the affirmative procedure to regulations made under new Section 105B in Clause 1. It would require secondary legislation to be laid in Parliament in draft and to be subject to a debate and a vote in both Houses. Both Amendment 11 tabled by the noble Baroness, Lady Merron, and Amendment 12 tabled by the noble Lord, Lord Fox, would require a statutory instrument to be laid in Parliament for the Secretary of State to issue or revise the codes of practice, under the negative or affirmative procedure respectively.
I will first address Amendment 7 and the procedure for the regulations. The Bill currently provides for the statutory instrument containing the regulations to be laid using the negative procedure. This is the standard procedure for instruments under Section 402 of the Communications Act. The only delegated powers in the Bill currently subject to the affirmative procedure are Henry VIII powers to retrospectively amend penalty amounts set out in the primary legislation.
Lord Clement-Jones (LD)
My Lords, I thank the Minister for that rather depressing reply. I also thank the noble Lord, Lord Naseby, for his support—I think we will have a fly-by in celebration. I thank too the noble Earl, Lord Erroll, my noble friend Lord Fox and the noble Baroness, Lady Merron, who raised some very interesting points, all supportive of greater scrutiny in both respects, which was very helpful. As my noble friend illustrated—the impact assessment is a mine of information—the lack of robust and specific data is one of the areas of great uncertainty, and there is the risk of running the industry by remote control without adequate scrutiny. There is great uncertainty about cost, and therefore there needs to be that level of scrutiny, and there is great concern about the role that Parliament should have.
I was fascinated by the Minister’s argumentation. It does not really matter whether a committee recommends something or not; the Government are not going to accept it. Apparently, it is not good enough to have the affirmative procedure because the committee did not recommend it; on the other hand, it is not good enough to have scrutiny of the codes of practice even though the committee did recommend it. Basically, the Government are saying, “Well, what the hell? We’re not going to agree with the committee on any basis.”
The Deputy Chairman of Committees (Lord McNicol of West Kilbride) (Lab)
My Lords, the Grand Committee will now resume. I think we were just about concluding the remarks of the noble Lord, Lord Clement-Jones.
Lord Clement-Jones (LD)
I might take that hint, but there is still a little bit of water to flow under the bridge.
The Minister knows that there is already a great deal of concern about both the regulations, which I have specified and gone through to some degree, and the forthcoming codes which we are assured will come out, so there is no doubt that the Government are fully aware of the providers’ concerns.
I thought the point made by the noble Baroness, Lady Merron, on the NCSC’s lack of involvement was very strong. That absolutely must be bolted into the Bill; it is fundamental in so many ways, and I do not think any of us really understands why that should not be bolted in.
I come on to the substance of what the Minister said: that using the negative procedure for the regulations was fine because we are not amending primary legislation. Do we now make a virtue of a non-Henry VIII power? Are the only powers that we think should now be subject to the affirmative procedure Henry VIII powers? We have moved some way. I am clearly getting far too long in the tooth to see those sorts of arguments being made by Ministers, especially when it is a matter of scrabbling around to keep the Bill as it is. I understand the “not invented here” principle, but it is a bit depressing to see it when the merits of a case are so strong.
The other time-old argument is “Don’t worry your pretty little heads; these are technical regulations. Parliamentarians can’t have too much oversight of a technical regulation—they might not understand it. They might get confused and lose sleep.” I do not know what the arguments are, but they are clearly bogus. We should go for the affirmative, and someone with the experience of the noble Lord, Lord Naseby—I am sorry to see he is not here—as a Deputy Speaker in the Commons knows full well that that is the appropriate form.
The words “legislative effect”, which the noble Baroness, Lady Merron, emphasised, as I do, are important in this context, and were raised by the Delegated Powers Committee. On this point about having no delay, regulations needing to be updated, and a code of practice needing to be flexible and updated, we have seen that this Government can pass Covid-19 regulations in a blink; they can do virtually anything they feel like at the drop of a hat and nobody says boo to a goose, so I do not think that is a very useful argument.
The other point the Minister made was that the code needs to be understood by its audience. Again, that is a “Don’t worry your pretty little head” argument—“Parliamentarians will not understand the code—it is not relevant to them; only the providers need to worry about it.” But providers are worried about the code, and they would be much reassured if they saw that there was proper scrutiny.
I am really sorry to say that I did not even see a chink of daylight in that group, sadly. I hope that we can move a bit further as the Bill progresses but, in the meantime, with great disappointment, I beg leave to withdraw the amendment.
Baroness Merron
“(7) In making regulations under this section, the Secretary of State must take the utmost account of the advice of the Technical Advisory Board and a Judicial Commissioner concerning the proportionality and appropriateness of any measure or description of measure specified in the regulations.”
Baroness Merron (Lab)
My Lords, I move Amendment 8 in my name and welcome the similar Amendments 9 and 19 in the names of the noble Lords, Lord Clement-Jones and Lord Fox. The Minister will recognise some similar themes in this group to those in the previous debate. The amendments are to Clause 2, which gives the Secretary of State the powers to make regulations which require providers to take specified measures in response to a specified security compromise and where a security compromise has a specified adverse effect on the network or service. The Minister will not be surprised that the amendments seek to understand what advice the Secretary of State will receive and where that advice will come from when making these regulations.
I am sure that we have all heard concerns about how these regulations are widely shared. For example, Comms Council UK has said that this represents an
“unprecedented shift of power from Parliament to the Minister in relation to how telecoms networks operate”,
and argues that
“the Minister will be able to unilaterally make decisions that impact the technical operation and direction of technology companies, with little or no oversight or accountability.”
Unsurprisingly, there has been a call for technical and judicial oversight, as reflected in these amendments, just as the Investigatory Powers Act 2016 established a Technical Advisory Board to advise the Home Secretary on the reasonableness of obligations imposed on communications providers. There is precedent here to which we can usefully refer.
Other concerns were expressed in Committee in the other place. The Digital Policy Alliance is familiar to a number of parliamentarians, especially the noble Earl, Lord Erroll, who is chair of that august organisation. I am sure that he is aware of the comments of its Dr Louise Bennett, who said:
“There is no mention in the Bill of a technical advisory board focused on the provisions of the Bill, and that would be a very helpful addition.”—[Official Report, Commons, Telecommunications (Security) Bill Committee, 14/1/21; col. 49.]
I agree. Such a board would, for example, be able to point out that new types of components were coming down the track. Does the Minister feel that such a board would be a helpful addition? If not, why not?
Have the Government considered expanding the remit of the current Technical Advisory Board to cover the powers in the Bill? Amendment 19 in the name of the noble Lord, Lord Clement-Jones, gives us a useful steer on how any such new board could be constituted. Without such a board, what technical advice will the Secretary of State receive? Who will it come from, and will it be published? I look forward to the Minister’s reply.
Lord Clement-Jones (LD)
My Lords, I am delighted to be on the same page as the noble Baroness on the insertion of a technical advisory board and judicial commissioner into the process. I note that she quoted Dr Bennett of the DPA; I am proud to be a DPA member and sitting opposite my chair. Others from the industry have made the same points. Comms Council UK has pointed out that there are no clear mechanisms for technical feedback or expertise to be fed into the drafting of the regulations and the codes of practice, which we discussed on the last group. It makes the point that many of the technical requirements that will be placed on its members are not in the text of the Bill but are in the accompanying regulations and the code, which we have heard has yet to be published. It is clear that, in these draft regulations made under Section 105B and 105D—
The Deputy Chairman of Committees (Lord McNicol of West Kilbride) (Lab)
My Lords, the Grand Committee is resumed—third time lucky. I call the noble Lord, Lord Clement-Jones.
Lord Clement-Jones (LD)
My Lords, I hope I am demonstrating the agility of which the Minister is so fond. As I said earlier in respect of the judicial commissioner, these amendments provide a ready-made mechanism for oversight concerning the proportionality and appropriateness of any measures in the regulations and codes. Taken together, Amendments 9 and 19, would require the Secretary of State to take into account the advice of the technical advisory board—and insert a new clause after Clause 14—and that of a judicial commissioner appointed under the 2016 Act. We have gone a little further in specifying the make-up of the technical advisory board, but we are clearly on the same page as the noble Baroness, Lady Merron, with her Amendment 8.
The Earl of Erroll (CB)
My Lords, I want to speak on this issue as I remember mentioning it at Second Reading. There is a person for whom I have huge respect, Dr Louise Bennett, whose extensive knowledge and sagacity I first ran into when we were talking about ID cards years ago and the whole problem of digital identity and privacy over the internet. If you really want to know about such things, read her work: she has produced a lot of work on this. I think a technical advisory board is essential: these are complex issues. The Minister said that the matters subject to regulation will be technical. I do not see how we can do this without a good technical advisory board, and it is good if we have some view of who goes on it, because it is too easy for these things to disappear off and no one thinks about them. We will keep needing cutting-edge advice and not have groupthink, and these matters are very tricky.
Between Amendments 8 and 9, I could not decide between taking “the utmost” and “full” account; there is a neat little difference in the wording. Otherwise, the point about laying it out properly is important. The other thing, which slightly goes back to our previous debate, is that we get into the whole problem of what are regulations, what is guidance, what are guidelines and what is a code of practice and the different legal stance of those different things. We have to be careful about using them as if they were interchangeable. Regulations will often give rise to a code of practice, breach of which is not necessarily an offence, but they can be linked back to a primary Act offence. We should not bandy those words around interchangeably; they are different. We need a technical advisory board and, between these amendments, we should do something about it.
Lord Fox (LD)
In quick response to, or doubling up on, the noble Earl, Lord Erroll, my understanding is that the code is enforceable by law. If it is not, perhaps the Minister can explain how the operators are expected to deliver.
This is relatively simple. The Minister has asserted that this is a technical issue. She has asserted that it is too technical for Parliament to be able to manage, but at the same time, as it is currently structured, there will be a self-referential group of people. If the Covid crisis has told us anything, it is that a self-referential group of people is not good at horizon-scanning. Security is a great big horizon scan. You normally know you have not got security only when you lose it and it is essential to take advantage of the diversity of technical opinion that exists in this country and elsewhere. It is extremely arrogant to believe that the sum of human knowledge is contained in one department, and probably one subsection of one department.
For those reasons alone, a technical advisory board is vital to secure the future of this country. That seems to me self-evident, but clearly it is not, so perhaps the Minister can explain. Was this discussed, when was it discussed and why was it dismissed as an option?
Both these amendments have very cunningly taken advantage of existing structures; they have looked at the Investigatory Powers Act 2016 and read across, with ready-made structures that can deliver both the technical advisory board and the benefits that I have just set out and a judicial commissioner to make sure that there is sufficient proportionality and appropriateness in those measures. It seems to me that it is for the Minister to explain, if this was good enough for the 2016 Act, why it is not appropriate to put it in this Bill for these issues.
Lord Parkinson of Whitley Bay (Con)
My Lords, I am grateful to noble Lords who have taken part in the debate on these amendments, which seek to require regulations and codes to reflect advice provided by technical advisory boards and a judicial commissioner. The amendment to Clause 2, tabled by the noble Baroness, Lady Merron, requires any regulations made under new Section 105D to reflect advice provided by the existing Technical Advisory Board to the Home Office and a judicial commissioner. Similarly, the two amendments tabled by the noble Lord, Lord Clement-Jones, would require regulations to reflect advice provided by a new technical advisory board and a judicial commissioner.
Each of these amendments concern regulations made under new Section 105D and codes of practice issued under new Section 105E. I appreciate that noble Lords are seeking to ensure that any regulations and codes of practice are appropriate and proportionate before they are made or issued. However, there are several difficulties with what they propose. First, Clause 2 already requires the Secretary of State to make these measures only when he actively considers that they are appropriate and proportionate, under the wording of subsections (2) and (4) of new Section 105D. To ensure that is the case, the Secretary of State would have to consider relevant advice, which could include technical security assessments provided by the National Cyber Security Centre. The noble Baroness, Lady Merron, asked whether the advice would be published. As is usual practice, we would not publish advice given to the Secretary of State on the new framework, but we will consult on the code, and we feel that is the best and appropriate way in which to draw together the views of all relevant parties and their expert advice.
Advice to the Secretary of State could also include relevant representations by public telecoms providers. To reassure the Committee on this point, we have received helpful feedback from telecoms providers on the illustrative draft measures that were published in January. DCMS continues routinely to engage with telecoms providers about this Bill and telecoms security more widely.
Similarly, Clause 3 requires that any codes of practice are finalised only after consultation with affected providers. The process of consultation, when taken together with the fact that codes can only give guidance on legal obligations and not expand their scope, as noble Lords noted, means that any final codes in effect will be appropriate and proportionate. The noble Lord, Lord Fox, asked whether it was enforceable by law. It is guidance, not law, but the code has certain legal effects, as set out in Clause 3. In that context, further advice from a technical or judicial panel would therefore be unnecessary.
We understood the amendment proposed by the noble Baroness, Lady Merron, to refer to the Technical Advisory Board to the Home Office. That board provides advice regarding the reasonableness of obligations imposed on telecoms providers under the Regulation of Investigatory Powers Act 2000 and the Investigatory Powers Act 2016. Each of these amendments risks confusing two separate sets of security arrangements.
Section 227 of the Investigatory Powers Act provides for the Prime Minister to appoint the Investigatory Powers Commissioner and judicial commissioners. The role of the Investigatory Powers Commissioner is to authorise and oversee the use of the investigatory powers, in the public. The Investigatory Powers Act regime is not comparable with the new framework set out by this Bill. Oversight of the Investigatory Powers Act regime by the Investigatory Powers Commissioner is considered appropriate because of the potential intrusion into the private lives of individuals as a result of the use of covert powers.
The powers to make regulations under this Bill are very different to those in the Investigatory Powers Act. They are focused on protecting public telecoms networks and services by improving the security practices of telecoms providers—so those two sets of arrangements should not be confused. Indeed, there are specific provisions in the Bill designed to ensure that it does not adversely affect lawful activity carried out by law enforcement authorities and the intelligence services under the Investigatory Powers Act. The judicial commissioner would therefore be the wrong body to advise the Government on the Bill’s regulation-making and code-issuing powers. For those reasons, the Government are not able to accept these amendments, but I hope that that explains why and reassures the noble Lords sufficiently for them to be content not to press their amendments today.
The Deputy Chairman of Committees (Lord Rogan) (UUP)
I call the noble Lord, Lord Clement-Jones—sorry.
Lord Clement-Jones (LD)
I must admit that I am somewhat baffled by the Minister’s response. The argument on the technical advisory board seems to be, “Oh, we’ve got enough technical advice, so we don’t need one”—but, clearly, it seems that there is a need for this. I quoted providers—I can go into the papers that we have received from them—as saying that real issues arise out of the regulations. These are technical and relate to things such as patches and audit and monitoring issues. There is a feeling that the department is just not listening on those issues, and what is needed is someone who is rather more dispassionate and can advise on the technical issues that are arising—perhaps, if it is seen as a conflict, someone like the noble Earl, Lord Erroll, who can genuinely advise on this kind of thing. It seems to me to be extraordinarily dismissive to say, “We’ve got enough advice. We don’t need a board of this kind”.
In the Investigatory Powers Act 2016, there is a very useful technical advisory board—it is not usable for this purpose because its function is rather different under that Act. When the Minister comes to the point about the judicial commissioners, saying, “Oh, no, they are for an entirely different purpose”, I say that, actually, if you read their function, it is four square with the kind of thing that would be useful under this Bill. They are talking about not technical issues but proportionality, appropriateness and so on—very much the kind of thing that they are dealing with under the 2016 Act.
So I am afraid that I do not buy what the Minister has to say, sadly; I just think that it is pushback based on the thinking that, “Well, the Bill’s the Bill and it’s all drafted, so we don’t really want to do very much with it by way of amendment”. That is the time-honoured government response to this kind of suggested amendment, but I believe that, constructively, both these aspects—a judicial commissioner and a technical advisory board—would make a great difference to the functioning of the Bill and would lead to much better regulations and codes of guidance at the end of the day.
Lord Fox (LD)
I thank the Deputy Chairman and apologise for speaking across him. I am a bit intrigued by the comment of the noble Lord, Lord Parkinson, on the subject of legal enforceability. He is correct to say that, as new Section 105H states, the
“provision of a code of practice does not of itself make the provider liable to legal proceedings”
—but it would not be liable only when the provision was not in force in time or when it was not legal. However, you would not bring a legal case anyway when it was not relevant or in force, so, to all intents and purposes, where the code is in force and relevant, it is legally enforceable. Therefore, it is legally enforceable.
Lord Parkinson of Whitley Bay (Con)
First, if I may, I will take back the point made by the noble Lord, Lord Fox, about new Section 105H under Clause 3; I will write to him to, I hope, alleviate any concerns and confusion. There are certain legal effects set out; I will write to him to clarify the point about legal enforceability.
I am grateful to the noble Lord, Lord Clement-Jones, for his appreciation. Part of the confusion here may be that two technical advisory boards are mentioned in these groups of amendments. As I think he noted, the one set up under RIPA has a different function, but we are certainly not being dismissive of the points that have been raised. Indeed, as I said, we have spoken to the industry and received helpful feedback from telecoms providers on the illustrative draft measures that were published in January. We will also be glad to look at the information that he mentioned—the views that have come his way—to make sure that these are reconciled; if he is happy to share them, we will look at them and come back him.
Baroness Merron (Lab)
I thank all noble Lords for their contributions. In view of the pandemic restrictions on the numbers that might sing in a choir inside, it is dangerous now to say that we are singing from the same hymn sheet—as the noble Baroness, Lady Barran, will recall from her time at the Dispatch Box. I do not know whether we would count as amateur or professional, so perhaps I could venture in that direction, but there is a sense among noble Lords of wanting to strengthen the Bill by ensuring that the Secretary of State has the best technical advice.
I thank the Minister, the noble Lord, Lord Parkinson, for his response. However, I take from it that a technical advisory board is not required. I share the confusion that was referred to earlier by the noble Lord, Lord Clement-Jones. On the one hand, in the previous set of amendments, we were advised that this is so technical that it is not appropriate for a particular aspect of parliamentary scrutiny, yet suddenly, it seems, it is not quite as technical but we need further advice. I am reminded of the words of the then Lord Chancellor, Michael Gove, who we will recall commenting in a debate over Brexit that we have “had enough of experts”; I suspect the Minister will have picked up from the amendments today that we feel we have not had enough of experts. I hope he will reflect on the fact that these amendments seek to assist the Secretary of State, and to assist this Bill to do the job it is here to do to very best effect. With that, I beg leave to withdraw the amendment.
Lord Clement-Jones
“(d) must ensure that the code of practice is necessary and proportionate to what it intends to achieve and does not place an undue burden on any electronic communications networks or electronic communications services.”Member’s explanatory statement
This amendment seeks to ensure codes of practice are necessary and proportionate.
Lord Clement-Jones (LD)
My Lords, in its evidence to the Bill in the Commons, BT said:
“we believe greater clarity is needed on OFCOM’s planned approach, with safeguards introduced in the Bill to ensure operator burdens are proportionate.”
Amendment 10 seeks to ensure that codes of practice are necessary and proportionate.
As regards Ofcom’s new powers to ensure compliance with security duties as set out in new Section 105M, how will these relate to Ofcom’s existing powers and duties under Sections 3 and 6 of the Communications Act 2003? Will this duty and the new powers Ofcom is being given still be subject to good regulatory practice so that, for example, it still must have regard to the principles of transparency, accountability, proportionality and consistency and not impose unnecessary burdens? How will this fit in with the statement to be made by Ofcom under new Section 105Y?
Amendments 16, 17 and 21 to Clauses 5, 6 and 19, in my name and that of my nobble friend Lord Fox, seek to ensure that the new powers for Ofcom introduced in the Bill are subject to requirements in the 2003 Act regarding carrying out and reviewing its functions. I was pleased that in her letter to noble Lords after Second Reading, the Minister explicitly said:
“When carrying out its security functions, Ofcom will remain bound by its general duties under Section 3 of the Communications Act 2003 as it is now. Section 3(3) provides a duty on Ofcom to have regard to the need for transparency, accountability and proportionality when carrying out its functions. Ofcom will also be bound by its duty under Section 6 of the Communications Act 2003 to review the burden of its regulation on public telecoms providers. If Ofcom fails to carry out its security functions in line with these duties, then it is likely to be subject to legal challenge.”
I very much appreciate those words, which are a very clear interpretation of the existing Act and the duties of Ofcom and the responsibilities it has in the way that it carries them out. Will the Minister repeat that assurance today?
The Earl of Erroll (CB)
My Lords, I want to say a few words on this because the key words “undue burden” stand out. It is very important that we do not put too many burdens, particularly unnecessary ones, on companies. In particular—and this is something that I have often looked at because I have done a lot of work with innovative and growing companies—you must not let large corporations stifle innovation. There is an attitude among them that regulations are for your enemies; they are a very good way of stopping up-and-coming competition. I have also noticed that departments tend to consult the companies which have significant market presence already and see them as being the people who know all about it. However, that does not take account of what is up and coming. The other thing is that they often have people on secondment from them or people who have retired from the companies and gone into the departments, so there can be some interesting biases within. With those few warnings, I think the whole undue burden issue is more important than people might think.
Lord Fox (LD)
The undue burden point touched on by the noble Earl, Lord Erroll, is really important. On a previous group I spoke about regulatory friction and the fact that this has not been costed into the impact assessment. Clearly, regulatory friction is harder for smaller companies to deal with than larger companies. I think that is the point that the noble Earl was making. It is one that I would also join up.
We should also not confuse lots of regulations with security. The whole point about people who wish to subvert security is that they understand the regulations and go round them. Indeed, sometimes regulations are a guidebook for security, in a sense, because they show the map around which you seek to find the chinks.
The point in the impact assessment about making the networks value security is right. On that, I completely agree with the Government. I am not sure that some of the measures in the Bill actually do that; what they do is create a regulatory load without necessarily adding value. Some of the measures that we spoke of in the last group of amendments, as well as in this, are about stripping this down to where value is added rather than simply more regulation being loaded up.
One of the great pleasures of speaking after my noble friend Lord Clement-Jones is that he normally says everything better than I would. He simply asked the Minister to repeat what was in the letter and to endorse the 2003 Act. I hope that he is able to grant his wish.
Baroness Merron (Lab)
I thank the noble Lords, Lord Fox and Lord Clement-Jones, for these amendments. As before, it is a pleasure to follow their contributions and that of the noble Earl, Lord Erroll.
On the codes of practice and Amendment 10, I understand the importance of not wanting to put undue burdens on businesses. We should make particular reference to the exceptionally difficult and testing times that businesses and the economy have had to suffer over the past year due to the pandemic. Obviously, a balance needs to be considered. We have to ensure that if the codes are going to be used, they are the most effective way of implementing security measures. How will the Government consider the impact of codes on businesses? For example, will there be specific consultation about undue costs in respect of businesses?
The concerns that we have heard in this debate give a further nod to concerns about lack of parliamentary oversight, which is missing from the codes. I again say gently to the Minister that by giving parliamentarians the opportunity to provide scrutiny there might also be the ability to review the impact on businesses.
Amendments 16, 17 and 21 would ensure that Ofcom’s new powers in the Bill were subject to requirements in Sections 3 and 6 of the Communications Act 2003. Section 3 focuses on the general duties of Ofcom, while Section 6 focuses on reviewing regulatory burdens. It would be helpful to hear from the Minister whether the Bill has been deliberately drafted for the new powers to fall out of scope of those sections in the Communications Act and, if so, why.
What review process will be faced in respect of Ofcom’s new powers? It is very important that, when new powers are given, there is an opportunity to review, reflect and amend, and to keep a close eye on whether those new powers are doing the job intended.
Lord Parkinson of Whitley Bay (Con)
I thank the noble Lords, Lord Fox and Lord Clement-Jones, for these amendments, and all noble Lords who have spoken in the debate. The amendments focus on the need for the regulations and code of practice to be proportionate, and to ensure that the duties of Ofcom are carried out in a transparent and similarly proportionate way.
I turn first to Amendment 10, tabled by the noble Lord, Lord Fox. This amendment to Clause 3 seeks to ensure that codes of practice are necessary and proportionate to what they are intended to achieve, and do not place an undue burden on telecoms providers. The Bill already includes provisions in Clauses 1 and 2 to ensure that security duties placed on public telecoms providers in the primary legislation and specific security measures set out in regulations must be considered to be appropriate and proportionate by the Secretary of State. The code of practice will provide the technical guidance on the steps that public telecoms providers should take to meet their security duties. I certainly agree with the noble Baroness, Lady Merron, about the extra—and indeed extraordinary—work that providers have done over recent months to keep us all in contact during the pandemic.
To help ensure that technical guidance in the code of practice is appropriate and proportionate, Clause 3 requires the Secretary of State to publish a draft version of the code of practice before it is issued, and to consult on its contents. This public consultation will take place after the Bill has attained Royal Assent; it will enable the voices of telecoms providers of all sizes—as noble Lords rightly pointed out—the wider sector, Ofcom, and any other affected groups to be heard and taken into account before the code of practice is finalised. Subsequent versions of the code of practice, which will be revised as technology evolves and new threats emerge, will also be subject to the same process of consultation before being issued.
An impact assessment is also being conducted for proposed secondary legislation to be laid as part of the new framework, which will take into account the initial cost assessments from providers to ensure that the framework is balanced and proportionate. The precise make-up and design of each provider’s network remains a commercial decision. The Bill makes it clear that providers are responsible for the security of their own networks and services; providers also remain responsible for deciding how they recover their costs. As such, we expect the costs of ensuring adequate security to be met by individual providers.
I turn to Amendments 16, 17 and 21, tabled by the noble Lord, Lord Clement-Jones. These seek to apply Sections 3 and 6 of the Communications Act 2003 to Ofcom’s duties and powers under Clauses 5, 6 and 19 of this Bill. Section 3 of the Communications Act sets out Ofcom’s general duties; these include a duty on Ofcom to have regard to the need for transparency, accountability and proportionality when carrying out its functions. Section 6 of the Communications Act requires Ofcom to review the burden of its regulation on telecoms providers. These are all principles that we think are essential to the functioning of the new security regime created by this Bill. I am glad to repeat the reassurance given by my noble friend in her letter, which the noble Lord, Lord Clement-Jones, mentioned, that Ofcom is already bound by its general duties in Sections 3 and 6 of the Communications Act when carrying out its security function under new Section 105M, and when using any of its powers in this Bill. This will include Ofcom’s power to carry out an assessment of public telecoms providers’ compliance with their security duties under Clause 6 of this Bill, and powers for Ofcom to give inspection notices under Clause 19. As my noble friend said in her letter, if Ofcom fails to carry out its security functions in line with these duties, it could be subject to legal challenge.
The provisions in the Bill already ensure that the regulations, code of practice and duties of Ofcom are proportionate. Therefore, we do not think that these amendments are necessary, and we hope that noble Lords will be happy not to press them.
Lord Clement-Jones (LD)
My Lords, I thank the Minister for that—he pierced through the gloom of the afternoon, giving an assurance that existing duties of Ofcom will cover the new powers.
I think we have a Pepper v Hart situation that works for the other aspects on the code of practice. It is not just the regulations and the duties and powers of Ofcom that are subject to it; the way in which the code of practice will be drawn up is covered also by the duties under Sections 3 and 6 of the existing Act. I very much hope so, and I need to take away and read what the Minister had to say.
Baroness Merron
Baroness Merron (Lab)
My Lords, Amendment 13 seeks to speak up for consumers and to probe possibilities as to how we may act in their interests. After all, they are the ones who are, on an individual basis, and often in very large numbers, at the receiving end of security threats.
Amendment 13 would amend Clause 4, which places a duty on providers to take steps to inform users about security compromises or where there is a significant risk of a security compromise occurring which may adversely affect the user as a result. As we see in the clause, the provider must inform the user about the existence of the risk, the nature of the security compromise, what steps could be reasonably taken by users in response, and of course the name and contact details of a person who may provide further information. All those are welcome, and such a duty being placed on providers to report security incidents is right and proper. After all, for many years, we have heard calls from all sides to place a clearer and more comprehensive duty on providers to share information with users, who should not be kept in the dark. When they are affected by a breach, there are not just practical considerations; as we all know, such security breaches are extremely distressing and worrying, as well as compromising for those affected. It is right for them to have some sort of redress.
Let us reflect on the high-profile incidents where users have not been told of security incidents. For example, TalkTalk failed to inform 4,500 customers that their personal information, including bank account details, was stolen as part of the 2015 data breach. That was revealed only in 2019, when details were found online. I am sure that, like me, the Minister will completely understand how distressing this must have been for those people, who were not only affected but were given no opportunity by the company to do anything about it.
Clearly, we know that such behaviour by telecoms companies is unacceptable. However—and this is what the amendment seeks to assist with—Clause 4 does not give a timeframe for providers to inform consumers. This probing amendment suggests a 30-day window to do so. I understand that we have to be aware that this cannot lead to further security compromises that could result from informing the public, so that point has to be taken into account.
How quickly does the Minister think providers should inform the public of a security breach? I ask that because under Clause 4, which is very open, it could be months before users find out that their personal data has been stolen. How much worse for people to find out in that way and in that sort of timeframe?
The amendments we are debating today and the Bill we are considering are all about the protection of national security. In all that, let us remember consumers too, whose interests are key to these debates. The public have to know that their data is safe and when to take necessary steps if their privacy has been threatened in some way.
On Amendments 14 and 15, I should be interested to hear from the Minister whether an Ofcom backstop to halt providers speaking to users on security grounds already exists. Does Ofcom have the expertise already to make such a judgment, or would new experts—I use that word carefully but definitely—and new expertise be needed? I look forward not only to the Minister’s reply but to the comments of noble Lords participating in this debate.
Lord Clement-Jones (LD)
My Lords, I shall speak to Amendments 14 and 15. I wanted to say on the last group of amendments that I entirely agree with the noble Earl, Lord Erroll, about regulation. It is entirely possible for regulation to provide certainty, to stimulate innovation and, in the context of this Bill, to ensure that we have the right framework for our providers to ensure that our security is not compromised. So there is certainly no negativity in that respect towards regulation; the question is whether it is appropriate in the circumstances and not unduly burdensome for those subject to it. That is why the question of parliamentary oversight, which has been mentioned throughout this afternoon, continues to be important, and I think that it will come up again in the next group.
This amendment is on rather a different area. I have quite a lot of sympathy with Amendment 13 in the name of the noble Baroness, Lady Merron, but this is more nuanced than the Bill provides for. I want to quote again from the evidence of BT to the Bill Committee in the Commons. It said:
“We agree with the requirements on operators to support the users of their networks in preventing or mitigating the impact of a potential security compromise … In certain cases”—
and this is a sort of “however”—
“the security of the network may be put at greater risk if potential risks are communicated to stakeholders, providing malicious actors with additional information on potential vulnerabilities in the network that they may seek to exploit. We therefore believe that the Bill should explicitly consider such scenarios and not place obligations on communications providers to inform users of risks whereby doing so it will increase the likelihood of that risk crystallising.”
That is where our first amendment is going. BT further stated that
“the Bill also confers powers on OFCOM to inform others of a security compromise or risk of a compromise, such as the Secretary of State or network users. We understand the intention of the Bill in this regard and support the principle. We believe that this would be most effective when done in conjunction with the operator in question to ensure there is clarity and agreement, where possible, on the timing, audience and messaging of such information provision. This would also ensure that this does not cut across any other obligations that an operator may have, such as market disclosures. The Bill currently does not require OFCOM to consult with the operator prior to informing third parties of a security compromise (or risk of one).”
I think these are fair points. The Government must have an answer before Ofcom is faced with that set of issues. In this light, Amendments 13 and 15 make further provision about the duty to inform users of a risk of security compromise and specify that duties to inform others of “significant risks” of security compromises must be proportionate and not in themselves increase security risks.
The Earl of Erroll (CB)
My Lords, I put my name down to speak to this because the problem with putting a fixed time period on having to report security breaches is that it very much depends on what the breach is. We mentioned patches earlier. If it is a vulnerability in the software—or it may be the hardware—which requires a patch to be released, you must have the time to produce it and test it as fully as possible. You do not want the hackers out there to know what the vulnerability is until you can roll out the answer to it. That is what zero-day attacks are based on. Equally—the noble Baroness is absolutely correct here—you do not want this stuff swept under a carpet to sit there unused for years. Could our technical advisory board give advice at an incident level, or something like that?
Lord Fox (LD)
My Lords, this is an interesting and nuanced—to coin a word we used earlier—debate. I am probably the only person here who has had to deal with a national security issue that impacted a consumer brand in real time on television. I must say that 30 days was not an option—30 minutes was not an option. Picking up on the point of the noble Earl, Lord Erroll, the time is entirely dependent on the nature of the crisis or security breach. My fear is that 30 days becomes a target rather than an injunction.
I think the point here is “no burial”. I assure colleagues and others in this Room that our amendments do not intend to bury the issue either, but to introduce some equivocation in the event that not announcing something makes things more secure than announcing them. The point of this is not to protect the reputation or otherwise of the network, but to protect consumers and the integrity and security of the network. That is the decision Ofcom would need to make. That would be its call. Its default position would be that it needs to be communicated to consumers as quickly as is sensible, unless there is a reason not to communicate it, and it would be up to the network providers to put their position forward. However, there are definitely times when it should not be communicated. At the moment the Bill seems rather unequivocal in its approach.
The Deputy Chairman of Committees (Lord Rogan) (UUP)
I call the noble Baroness, Lady Barran.
Lord Fox (LD)
Sorry, I have not quite finished.
I would call Amendment 15 a “good manners” amendment. If Ofcom possesses information that the network provider does not, it simply calls for that network to be brought into the loop before the rest of us are. That seems good manners to me—you do not necessarily have to legislate for that, but these days it always helps. I have now finished.
Baroness Barran (Con)
My Lords, I thank the noble Baroness, Lady Merron, and the noble Lords, Lord Clement-Jones and Lord Fox, for tabling these amendments to Clause 4 and for their considered remarks. As we have heard, these amendments speak to reporting requirements placed on industry in the event of a significant risk of a security compromise and the powers bestowed on Ofcom in the event of a compromise or the risk thereof.
Amendments 13 and 14 amend new Section 105J. As the noble Baroness, Lady Merron, summarised, new Section 105J is designed to give users of telecoms networks and services relevant information when there is a significant risk of a security compromise, including the steps that they should take to prevent such a compromise adversely affecting them. Giving users this information will help ensure that, where possible, they can take swift action to protect themselves. It will also contribute to greater awareness of security issues, supporting users to make more informed choices about their telecoms provider.
The Deputy Chairman of Committees (Lord Rogan) (UUP)
I have received a request to speak after the Minister from the noble Lord, Lord Clement-Jones.
Lord Clement-Jones (LD)
My Lord, until the Minster replied, “nuance” was the word being used in the context of information being provided and required and so on. I am afraid that nuance was completely lost in that response. The response to Amendment 14 was that the NCSC, the Government, the Secretary of State and Ofcom know best and that is it. They have to release the information. They do not believe there are any circumstances where it should not be released. It is all there in the NCSC guidance and well, too bad—tough. That seemed to be just about the Government’s position. That is pretty extraordinary considering that the relationship with the providers is extremely important, particularly in these circumstances where there have been breaches. We have heard from noble Lords during the debate that the timing of giving the information is important but the very fact of giving the information may also be important. I am afraid that is part 1 of a rather depressing response.
Part 2 was almost worse because the amendment being put forward is the mildest possible one. Ofcom must consult the provider in question
“where reasonably practicable to do so.”
As for the idea that this is going to lead to horrendous delay, the Minister really had to scrape away to find a suitably negative response to that amendment. I am afraid that her response in both respects does not engage with the real issues and I think it is grossly unsatisfactory in the circumstances.
Baroness Barran (Con)
My Lords, I am sorry, as ever, to disappoint the noble Lord, Lord Clement-Jones. With regard to his first point, of course the relationship with providers is important, which is why we have worked so closely with industry throughout the preparation of the Bill. However, as the noble Baroness, Lady Merron, said so eloquently, the relationship with users is also very important; it is that balance that we are seeking to strike. I am sorry if the noble Lord found my remarks grudging or negative; there was a lot of thought behind them.
Baroness Merron (Lab)
My Lords, this has been a healthy debate. I thank all noble Lords who have contributed on the various amendments. I certainly noted from her response to Amendment 13 in my name that the Minister shares my understanding of the issues for consumers. The debate has shone a light on the fact that it is not possible to simply put one set of interests above another. I felt in the course of the debate that it has been understood that, while fixed time periods may create an unintended consequence, as the noble Earl, Lord Erroll, said, they do ensure that things are not swept under the carpet. That is really where the amendment was seeking to probe.
I appreciate the point made that, while timescale is at the discretion of telecoms providers, there are certain requirements on them. I still have a sense of nervousness; I hope that, as we proceed with this legislation, the telecoms providers will understand the importance of acknowledging and responding to the very real concerns, interests and threats to consumers when they consider what the words “reasonable and proportionate”, as well as the words “timely manner”, mean. With that, I beg leave to withdraw my amendment.
The Deputy Chairman of Committees (Lord Rogan) (UUP)
We now come to the Question that Clause 13 stand part of the Bill. As many as are of that opinion will say, “Content”—
The Deputy Chairman of Committees (Lord Rogan) (UUP)
I apologise to the noble Lord, Lord Clement-Jones.
Clause 13: Appeals against security decisions of OFCOM
Lord Clement-Jones (LD)
My Lords, we know how it is when you are on a roll. This reminds me that it is very unusual for somebody to have the opportunity to get in before the noble Lord, Lord Fox, draws breath, as the Chair did. “Very impressive footwork,” I thought to myself.
There has been a common theme this afternoon of a lack of oversight over aspects of this Bill in many respects—in particular, the regulations and codes. This lack of oversight is compounded by the fact that, under Clause 13, any appeal to the Competition Appeal Tribunal cannot take account of the merits of a case against the Secretary of State. The rationale for this, as the Constitution Committee says,
“is unclear and is not justified in the Explanatory Notes.”
I will quote the Explanatory Notes in full. Clause 13 provides that, in appeals against relevant “security-related” Ofcom decisions, the Competition Appeal Tribunal is to apply ordinary “judicial review principles”, notwithstanding any retained case law or retained general principle of “EU law”—by that they of course mean retained EU law. This means that the tribunal should not “adopt a modified approach” to proceedings, as required under retained EU law, which provides that the “merits of the case” must be “duly taken in account”.
Therefore, this provision disapplies aspects of the ongoing effect and supremacy of retained EU law, as permitted by Section 7 of the European Union (Withdrawal) Act 2018. The rationale for reducing the powers of the tribunal in respect of security matters is unclear and not justified in the Explanatory Notes. The House may wish to ask the Government to justify reducing the powers of the Competition Appeal Tribunal in respect of appeals under Clause 13. That is the motive behind this clause stand part debate.
The most authoritative judgment to date about the current standard of review is the Competition Appeal Tribunal’s TalkTalk Telecom Group plc and Vodafone Ltd v Office of Communications case. This addresses, inter alia, the standard of review on an appeal to the Competition Appeal Tribunal under Section 192 of the Communications Act. The judgment of Peter Freeman QC provides a good analysis of the context and history of the changes to the standard of review. I make no apology for quoting it at some length:
“Of particular relevance to how the Tribunal should approach this appeal are Article 4(1) of the Framework Directive and section 194A of the 2003 Act, as amended by the DEA17 … Article 4(1) provides: ‘Member States shall ensure that effective mechanisms exist at national level under which any user or undertaking providing electronic communications networks and/or services who is affected by a decision of a national regulatory authority has the right of appeal against the decision to an appeal body that is independent of the parties involved. This body, which may be a court, shall have the appropriate expertise available to it to enable it to carry out its functions. Member States”—
this is the key bit—
“shall ensure that the merits of the case are duly taken into account and that there is an effective appeal mechanism…’ … Section 194A provides: ‘The Tribunal must decide the appeal, by reference to the grounds of appeal set out in the notice of appeal, by applying the same principles as would be applied by a court on an application for judicial review.’ … The combined effect of these provisions is to require the Tribunal to apply the same principles as would apply in a judicial review case but also to ensure that the merits of the case are duly taken into account so that there is an effective appeal.”
At paragraph 139, the judgment concludes:
“Given that Article 4(1) continues to apply, it would appear that, in accordance with the Court of Appeal’s view in BT v Ofcom and the High Court’s view in Hutchison 3G, as set out helpfully by the Tribunal in the recent Virgin Media judgment, we should continue, as before, to scrutinise the Decision for procedural unfairness, illegality and unreasonableness but, in addition, we should form our own assessment of whether the Decision was ‘wrong’ after considering the merits of the case.”
“Article 4(1)” refers to the now-repealed framework directive. It should now be read as referring to Article 31(1) of the European Electronic Communications Code—the EECC. The transposition deadline of the EECC was just before the end of the transition period and iseb;normal;j therefore currently binding as part of retained EU law. The wording of the EECC is almost exactly the same as the framework directive in respect of appeals.
That is what will continue to apply across the remainder of the Communications Act for other appeals under Section 192 but is being changed by Clause 13 of the Bill, which amends Section 194A of the Communications Act in respect of security provisions. This is a very significant change to the appeals procedure in security cases. There is a single bald paragraph in the Explanatory Notes, no justification is given—as the Constitution Committee says—and neither is there any evidence of why it is necessary. What evidence does the Minister in fact have of the need to make this major change in respect of security decisions made by Ofcom? I beg to move.
The Earl of Erroll (CB)
My Lords, I saw this and thought that I really did not understand why the Government were doing it. I saw what the Constitution Committee had said and realised that it did not understand why it was needed. I cannot believe that you can have a proper appeal if you ignore the merits of the case. I probably have an overdeveloped sense of justice and I think that to have an appeal where you are not allowed to present half the case or whatever is not a proper appeal. In fact, what you find is that the system can use procedural things to run rings around people who have a very justifiable complaint about something. I did not like the look of it and I entirely agree with everything that the noble Lord, Lord Clement-Jones, said.
Lord Fox (LD)
My Lords, I am not going to attempt to outlawyer my noble friend Lord Clement-Jones. I may not be a lawyer, but I am suspicious or, indeed, perhaps ultra-suspicious. What is the department seeking to avoid by removing what would seem to be natural justice from this process? What are the Government seeking to protect themselves from in advance? Who are they frightened of?
I do not think I know the answers to these questions, but I know that there is someone or something there that the department is seeking to avoid in advance. For those reasons, we should be extraordinarily suspicious, just as suspicious as I am. I ask the Minister: what is the justification? What are the Government scared of?
Baroness Merron (Lab)
My Lords, I have been very interested to hear the arguments put forward by the noble Lords, Lord Clement-Jones and Lord Fox, and the noble Earl, Lord Erroll. As we heard from the noble Lord, Lord Clement-Jones, in his opening remarks, concern about oversight is driving this section of the debate. As we know, Clause 13 ensures that when deciding an appeal against certain security-related decisions made by Ofcom, the tribunal is to apply judicial review principles without taking any special account of the merits of the case.
I understand that this does not apply to appeals against Ofcom’s enforcement decisions and that the Government have said that this ensures that it is clear that the tribunal is able to adapt its approach as necessary to ensure compatibility with Article 6, the right to a fair trial. My questions to the Minister are about the legal advice that the Government have received on this clause. What legal advice has been received? Is this external legal advice as well as internal legal advice?
The clause states that
“the Tribunal is to apply those principles without taking any special account of the merits of the case.”
Can the Minister explain what “special account” is expected to mean?
Baroness Barran (Con)
I thank the noble Lords, Lord Clement-Jones and Lord Fox, for tabling this amendment to Clause 13. I am aware that the noble Lord, Lord Clement-Jones, has spoken extensively on the standards of appeal in this House. As the noble Lord remarked, this matter was also raised in the Constitution Committee’s recent report, where it asked for further clarification about the reasoning for the changes made by this clause. I will attempt to address this point today and answer the questions from the noble Lord, Lord Fox, about what we are worried about.
Lord Clement-Jones (LD)
My Lords, I have heard some ministerial pushbacks but, I must say, that circularity more or less takes the biscuit: “The Government believe that we need to change the standard and therefore we have changed it.” There is very little that one can get one’s teeth into in terms of the argument. It is simply that the Government believe that JR in its unlawfully rational or unfair incarnation should apply in this set of circumstances—and that is it, whereas, for the rest of the 2003 Act, the merits version of JR continues unabated.
The Minister made a few points. I thought “merely” was rather extraordinary; it is a very important change to the way the tribunal will operate in those circumstances. Providers will not appeal against these decisions unless they are of major importance. The process of going to the Competition Appeal Tribunal is not lightly undertaken. She used the words “a smooth regulatory process”. Of course Governments always love smooth regulatory processes, but how big is the steamroller employed in these circumstances? There was also the use of “appropriate”—a splendid weasel word.
This is the end of a very entertaining afternoon so I cannot really comment heavily on the Minister’s reply. However, she really could have done better. The noble Earl, Lord Erroll, and I asked for evidence of why in these circumstances—we have all just asked why—but nothing was forthcoming: no evidence, precedent or, “We did it that way and it didn’t work”. We have just decided within the bowels of Whitehall to do this—splendid, but the Government need to do better than that, even with their current majority. However, this is the end of a splendid set of debates this afternoon and I hope for better on another occasion.
The Deputy Chairman of Committees (Lord Rogan) (UUP)
My Lords, that concludes the work of the Committee this afternoon. I remind Members to sanitise their desks and chairs before leaving the Room.
House of Lords
Arrangement of Business
The Lord Speaker (Lord McFall of Alcluith)
My Lords, the Hybrid Sitting of the House will now begin. Some Members are here in the Chamber, others are participating remotely, but all Members will be treated equally. I ask all Members to respect social distancing and wear face coverings while in the Chamber, except when speaking. If the capacity of the Chamber is exceeded, I will immediately adjourn the House.
Oral Questions will now commence. Please can those asking supplementary questions keep them to no longer than 30 seconds and confined to two points? I ask that Ministers’ answers are also brief.
Pensions: Gender Gap
Baroness Altmann
To ask Her Majesty’s Government what plans they have to narrow the gender pensions gap; and what assessment they have made of (1) the under- payments of state pensions to married women, and (2) the reduced private pension contributions associated with female work patterns, in the development of those plans.
Baroness Scott of Bybrook (Con)
This Government recognise the challenge of the gender pensions gap resulting from historical differences in labour market participation. Through automatic enrolment and the new state pension, we are enabling more women to build up pension provisions in their own right, reducing historical inequalities in the pensions system. We are fully committed to addressing the historical state pension errors and ensuring that the individuals affected receive the state pension they are rightfully due in law.
Baroness Altmann (Con)
I thank my noble friend for her Answer but, given the gender pensions gap of 40%, which Prospect says has not improved over five years, what specific workstream is there with targets for reducing the number of women with lower state and private pensions and for publishing up-to-date numbers—including for women in multiple part-time jobs, who are excluded from the state pension and auto-enrolment and lose out in net pay schemes, category D pensions and pension credit? Secondly, can my noble friend explain why married women did not receive automatic state pension uplifts after 2008? Will she agree to meet to discuss improving women’s pensions?
Baroness Scott of Bybrook (Con)
My noble friend asks a number of very important questions. We are happy to meet to discuss them fully; there just is not time to do justice to them today. My noble friend also referred to people who may have several jobs that individually fall below the lower earnings limit in relation to national insurance qualifying years. Analysis of this group shows that it is not usually a working pattern that people do for many years; over an average 50-year working life, most people are still likely to build up sufficient qualifying years to maximise their state pension when they reach state pension age.
Baroness Warwick of Undercliffe (Lab) [V]
My Lords, 63% of adults in households claiming housing benefit are women. Women are the household reference person in 57% of social tenancies, and ONS figures show that those in their mid-30s to mid-40s are three times more likely to rent than 20 years ago. Given all that, many women will struggle to increase their pension savings above their current level. Will the Government consider a flat rate of tax relief on pension contributions, but set at a level above 20% so as to improve the retirement income position of low to moderate earners?
Baroness Scott of Bybrook (Con)
The noble Baroness brings up a very interesting point. I do not believe that we have discussed that, and it is not in our plans to deliver that, but I will take it back to the department and we will discuss it further—and I will write to the noble Baroness.
Lord Dobbs (Con)
My Lords, I am grateful to my noble friend for raising this Question in the first place. There are 12.5 million state pensioners, and they require a budget of more than £100 billion a year. That burden, if we can put it that way, is projected to double over the next 20 years. This is great news for pensioners, of course, but is there not a hidden imbalance in these figures because, in future years, that burden—that huge budget—will be borne by young people rather than the elderly? So is it not right that we should look very closely at the balance in all our budgetary provisions for pensions? In particular, is it not appropriate to look at the triple lock to see whether it achieves the right balance between those who receive and those who have to provide?
Baroness Scott of Bybrook (Con)
My noble friend must not forget that today’s working-age people are tomorrow’s pensioners. Future generations of pensioners, not just the current ones, will benefit from this uprating approach. In the long term, if the triple lock is maintained, younger people will benefit as the value of the state pension continues to rise above the trends of earnings rates and price growth.
Baroness Janke (LD) [V]
My Lords, divorced women face the largest gender pensions gap, so what measures will the Government take to ensure that, on divorce, pensions are split sufficiently for divorced women to receive their full entitlement to retirement income?
Baroness Scott of Bybrook (Con)
My Lords, to ensure that anybody is getting the correct amount of state pension, it is important that individuals report to DWP any change in their circumstances. This includes divorce, as it may affect their entitlement to the state pension. This has been the position under successive Governments of different political persuasions, who have then further made this information known in a variety of ways. I suggest that it is important to look at that information on GOV.UK.
Baroness Sugg (Con)
Can my noble friend the Minister tell me what action the Government are taking to address the disproportionate lack of engagement with pension saving by women?
Baroness Scott of Bybrook (Con)
My Lords, it is important that all savers can easily access their pension savings, so that they can plan to retire when they want. We are introducing pension dashboards to help make accessing pensions information much easier. We are also introducing shorter, simpler pension statements to help all members of the automatic enrolment scheme engage with their pension savings.
Baroness Deech (CB) [V]
Some 200,000 women have been underpaid their state pensions for up to 20 years. I might be one of them. I declare an interest as the proud recipient of £6.79 a week. Yet there is little movement on the part of the DWP, and I and those others cannot find out. Letters go unanswered and messages say, “Don’t contact us, we’ll contact you”. How long will it take to achieve repayment?
Baroness Scott of Bybrook (Con)
My Lords, the DWP is working extremely hard on making sure that these underpayments are repaid. It is putting in a new team of 360 people to work through it, and we hope that all those underpayments will be paid by the end of 2024.
Lord Davies of Brixton (Lab) [V]
My Lords, I thank the Minister for her reply, although in truth it leaves us none the wiser. Does she agree that there is a pattern here that is not simply, in her words, historical, since it is still happening, and not just through the continued discrimination against women in employment? There is also the clear failure to offer any pension to women on lower levels of pay on top of the inadequate new state pension. This pattern needs urgent attention. Governments can defer legislation that everyone agrees is necessary, but women cannot defer when they need a decent pension.
Baroness Scott of Bybrook (Con)
I lost some of the noble Lord’s question there. The state pension underpayment that we are talking about affects both men and women. We will have estimated costs and data in the department’s annual report and accounts, which will be published shortly. It is important that those people are paid what is owed to them and that we continue to ensure that women are getting their fair share of pensions into the future.
Baroness Bennett of Manor Castle (GP) [V]
My Lords, as the noble Lord, Lord Davies, just said, pensioner poverty is rising up to 18%—2.1 million people—with 30% of single female pensioners living in poverty. Is it not time for what might be called a universal basic pension, set at a rate so that no pensioner is living in poverty? People who spend a lifetime contributing should surely not be left, as 8% of pensioners are, worrying that they cannot pay an unexpected bill.
Baroness Scott of Bybrook (Con)
My Lords, the Government have no plans to look at the basic pension. What is happening now is that people—women in particular—are beginning to build up their pension schemes, and we are doing everything we can to ensure that, within the next 10 years, they will be equal to all other pensions.
Lord Jones of Cheltenham (LD) [V]
When looking at the various types of unfairness with women’s pensions that we have heard about today, will the Minister also look at the plight of those retired women who now live in countries where their UK state pensions are frozen? Is this not the greatest unfairness of all?
Baroness Scott of Bybrook (Con)
My Lords, this issue has come up before in this Chamber. We are looking at it, but we have no plans to change anything at this time.
Baroness Wheatcroft (CB)
My Lords, the noble Lord, Lord Dobbs, referred to the triple lock. Does the Minister agree with me that the triple lock merely enshrines the inequality in the pensions received by men and by women, which should be reason enough to examine it again?
Baroness Scott of Bybrook (Con)
No, I do not agree with the noble Baroness. We are committed to ensuring that older people are able to live with the dignity and respect that they deserve. The state pension is the foundation of the support for older people. As a result, the triple lock and the full yearly basic state pension is now £2,000 higher than it was in 2010. It is important that we consider that every year and ensure that we keep that fairness for both pensioners and taxpayers.
The Lord Speaker (Lord McFall of Alcluith)
My Lords, the time allowed for this Question has elapsed. We now come to the second Oral Question.
Folic Acid
(2 years, 9 months ago)
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Lord Rooker
To ask Her Majesty’s Government, further to the reply by Lord Bethell on 3 September 2020 (HL Deb, cols 444–5), whether they have yet been able to form a conclusion on the outcome of their consultation on the proposal to add folic acid to flour which closed on 9 September 2019.
The Parliamentary Under-Secretary of State, Department of Health and Social Care (Lord Bethell) (Con)
My Lords, I am pleased that substantial progress has been made on this work since I spoke to the House in June, including positive dialogue with all devolved Administrations. It is right that we remain committed to proceeding on a UK-wide basis and I am grateful to colleagues in the devolved Administrations for their energy and support. I assure the House that we are progressing this as a priority, and I look forward to updating the House after the Recess.
Lord Rooker (Lab) [V]
Can I assume that the Minister is aware of the statement from the Ministry for Primary Industries in New Zealand on 8 July, five days ago, that as a result of its consultation on folic fortification in 2019 it will fortify all non-organic wheat flour from mid-2023 and therefore join Australia and more than 80 other countries in mandatory fortification? Why are we so far behind New Zealand? The women of New Zealand had the vote 30 years before British women. Can I be assured that British women will not have to wait as long to have safer, healthier pregnancies and fewer babies with a lifelong disability?
Lord Bethell (Con)
My Lords, I pay tribute to the Government of New Zealand for focusing on this important issue and to the energy and passion of the noble Lord in his advocacy in this matter. I can give him the reassurance he asked for. This is a priority for the Government. We are taking it through the machinery of the British Government to ensure that it is rolled out safely, extensively and on a nationwide basis.
Lord Hunt of Kings Heath (Lab) [V]
My Lords, assuming that the Minister is able to come back to the House after the Recess and give the green light, can he say when we could implement this policy? Does he agree that the recent report of the Health Select Committee on maternity services underlined the importance of making this decision soon?
Lord Bethell (Con)
My Lords, it is not only its importance for maternity services that is on my mind. It is also the recently announced office for health promotion, which will lead the national effort to improve and level up the health of the nation in the round by tackling obesity, improving mental health and promoting physical activity. This important initiative should be seen in the context of that important strategy. I completely endorse the ambition expressed by the noble Lord.
Baroness Jolly (LD)
My Lords, why does the Minister tease the House? He says that fortification should happen, so there is no disagreement, but it does not happen. In June, just over two weeks ago, he said that
“we are committed to following the science and are totally persuaded by it … I reassure noble Lords that this remains a priority for the Government.”—[Official Report, 23/6/21; col. 221.]
Since that Question, 50 more babies will have been born with neural tube defects. This will not do. Has the Minister sought the view of the new Secretary of State? Could he share it with the House?
Lord Bethell (Con)
I look forward with great enthusiasm to my monthly updates to the House on this important initiative. We are moving as quickly as the machinery of government allows us to. Taking along all the nations is an important aspect, but, quite fairly, it requires consultation with and the engagement of the devolved assemblies, which is why we have written to them and are engaging with them accordingly. I am also pleased to share with the noble Baroness that we are actively engaged with Defra, which is undertaking a wider review of bread and flour regulations. We will be aligning its fortification plans with this measure in due course.
Lord Moynihan (Con)
My Lords, I congratulate the noble Lord, Lord Rooker, on his campaign, which I strongly endorse. Further to the question from the noble Lord, Lord Hunt of Kings Heath, will my noble friend at least set out the draft timetable for the implementation of this measure before the House goes into recess?
Lord Bethell (Con)
My Lords, I am looking forward to outlining the draft timetable, but I will not be able to do so before the Recess.
Baroness Finlay of Llandaff (CB)
My Lords, following on from the Minister’s answers, can he tell us whether a provisional target date has been set with the devolved nations for the implementation? Given that we know that 90% of women aged 16 to 49 currently have folate levels below that required to reduce the risk of neural tube defects and that 70% of adults—that includes men—have folate levels so low that they are at risk of anaemia, this is an urgent problem.
Lord Bethell (Con)
My Lords, I share the sense of urgency expressed by the noble Baroness in her articulation of those statistics. They are both worrying and entirely accurate. We very engaged with the devolved assemblies. Welsh and Scottish Ministers have expressed their support, but with Northern Ireland it is important that we consider all the implications of the Northern Ireland protocol. I am therefore not able to lay out the precise timetable now, but I reassure the noble Baroness that we are moving as quickly as we can.
Baroness Merron (Lab)
My noble friend Lord Rooker continues to press to protect newborn babies while, sadly, the Government have over a number of years continued to drag their feet. In preparation for the Minister’s forthcoming update, which he has promised the House today, what assessment have the Government made of the impact of the Covid-19 pandemic on the financial and practical ability of women to access prenatal vitamins, including folic acid? How has the pandemic affected awareness-raising to ensure that women are not missing out on vital nutrients in the early stages of their pregnancy?
Lord Bethell (Con)
I am sorry, I cannot answer the noble Baroness’s question directly. I am not sure whether an assessment has been made of the impact of the pandemic on the consumption of folic acid, but it has undoubtedly raised the importance of these kinds of preventive measures. We have never been more acutely aware of the importance of improving the health of the nation, and this is an important step in that direction.
Lord McColl of Dulwich (Con) [V]
My Lords, one of the first to indicate that folic acid could prevent spina bifida was Professor Richard Smithells in 1980. That was accepted 11 years later, which is nothing compared with the present delay. Spina bifida is one of the commonest congenital defects and is easily prevented by adding folic acid to flour, which is what the Americans did 23 years ago, thus preventing 1,300 babies having that tragic condition every year. We keep hearing about consultations and meetings, which some of us regard more as group psychotherapy than as achieving anything. When will action be taken?
Lord Bethell (Con)
My Lords, I completely understand and appreciate the sense of frustration and urgency that my noble friend expressed, but I emphasise that this is a massive national measure. It has to be conducted in a way that takes the nations with us, that people feel confident that the right processes have been adhered to and that there is no doubt about the safety of the measure. This is not a question of foot dragging, quite the opposite. We are doing this in a thorough way that reflects the practicalities and realities of the machinery of the United Kingdom Government.
Baroness Hayman (CB) [V]
My Lords, I understand the frustration the Minister must feel being brought to the House again and again on this issue, but can he understand the frustration just expressed by the noble Lord, Lord McColl of Dulwich, that British science of 40 years ago has influenced the activities of countries across the world, New Zealand being the latest, and yet somehow in this country we have not managed to act on the science that was produced here and families have paid the price for that? Will the Minister understand the urgency and the frustration of those of us who have been raising this issue for years and will he look again at a timetable for implementation?
Lord Bethell (Con)
My Lords, I completely understand the frustration. I pay tribute to all noble Lords who have campaigned assiduously for this measure. It speaks extremely highly of this House that it is so focused on getting over the line an important and emblematic measure that puts preventive medicine at the heart of our healthcare system. Personally, I do not feel any disappointment or anger. I am completely committed to this measure, as are the British Government.
Lord Balfe (Con)
My Lords, I have been raising this matter since I became president of the British Dietetic Association, and my presidency ended a year ago. It seems that we go round and round in circles. Some 80 countries in the world have solved these questions. Why is it taking HMG so long? Can the Minister assure us that before we break up next week, he will have made a definitive statement on dates?
Lord Bethell (Con)
My Lords, I do not need to explain to a seasoned veteran such as my noble friend that the British Government have had a lot on their hands in the past 18 months and that getting right important measures such as this, that touch the lives of every single person in the country—at least, all those who have bred—is an extremely delicate matter. That is why we have to do it in a thoughtful, constructive way. There is no cutting corners on a measure such as this. I reassure my noble friend that we are going through it as quickly as we can. I am not able to give him the timetable that he asks for, but I would like to return in the new term with further details.
The Lord Speaker (Lord McFall of Alcluith)
My Lords, all supplementary questions have been asked.
Universal Credit
Baroness Sherlock
To ask Her Majesty’s Government what steps they are taking to support people on universal credit.
Baroness Scott of Bybrook (Con)
The UK Government’s approach to welfare is to recognise the value and importance of work, making work pay and supporting people into work while protecting the most vulnerable in society. To support those on low incomes through the outbreak, we introduced a package of temporary welfare measures, spending £111 billion on welfare support for people of working age in 2020-21. This included around £7.4 billion of Covid-related welfare policy measures. However, our focus now has to be on the £30 billion plan for jobs, which will support people into long-term employment by helping them to learn new skills and increase their hours or to find new work.
Baroness Sherlock (Lab) [V]
Thérèse Coffey has confirmed that £20 per week will be cut from universal credit in September, overriding objections not just from Labour but from numerous charities and even six of her predecessors. Like the Minister, the Prime Minister argues that the emphasis should be on getting people into work, even though one-third of claimants are already in jobs, including many of the carers, drivers and shop staff who served our nation throughout the pandemic. Rather than repeat the tax credits debacle when the Government were forced into a late U-turn, will Ministers please rethink these questions and do the right thing now?
Baroness Scott of Bybrook (Con)
My Lords, the Government announced in the 2021 spring Budget a six-month extension to the temporary £20 a week increase to universal credit. Eligible working credit claimants also received a one-off payment of £500. However, as we see the economy opening, it is right that the Government should shift our focus to developing and pushing forward excellent schemes for people getting back into work. That is why we are investing £30 billion in the plan for jobs.
The Lord Bishop of St Albans [V]
My Lords, I am saddened to hear about the phasing out of the £20 uplift in universal credit. Her Majesty’s Government have made a very positive step towards tackling childhood obesity with plans to ban junk food adverts before 9 pm but there is a clear link between poverty and obesity, particularly where financial constraints make cheap, high-calorie food more affordable than healthy alternatives. How then do the Government aim to improve access to healthy food for those on universal credit?
Baroness Scott of Bybrook (Con)
My Lords, we help those most vulnerable in our society with free school meals and with free fruit and veg in primary schools. We are continuing to look at the obesity strategy to make sure that we are doing everything we can to ensure that people can afford to eat healthily.
Lord Farmer (Con)
My Lords, could the Minister give us an update on the contribution that UC work coach activity has made in alleviating workforce shortages in the hospitality and other sectors? How successful have they been in inspiring people to enter vocational careers, particularly in the prison and police services?
Baroness Scott of Bybrook (Con)
My Lords, as I said, we are investing over £30 billion in our ambitious plan for jobs, which is already delivering for people of all ages right across this country. We have fulfilled our commitment to recruit 13,500 extra work coaches who, through our jobcentre network, provide people with the support that they need to move into work across a wide range of sectors and vocations, including access to apprenticeships, vocational and basic skills training, careers advice and sector-based work academy programmes. I am happy to offer a further meeting with my noble friend to discuss these further.
Lord Bird (CB)
Does the Minister agree that if you are not very good at digital usage, if you find it difficult to get a bank account in spite of all the Government’s good efforts, or if you find it difficult to arrange your budget, this situation is very hard? For a continuous period, almost since the 1970s, we have infantilised people on social security and not given them any support to get off it. Now that we are giving them that support, all these things are happening at once. I meet hundreds of people who are struggling daily because they do not know how to handle the opportunities presented by universal credit.
Baroness Scott of Bybrook (Con)
The noble Lord brings up a very good point. What we need to do, and what we have done, is to train and recruit good work coaches, working from our jobcentres, who personalise the support they give to the most vulnerable in our communities but also help them to get good jobs and reach their potential.
Baroness Drake (Lab) [V]
My Lords, the pandemic has been highly unequal in its impact on different sectors, people and geographies. The Government can try to bury the bad news that they are cutting universal credit by £20 a week but they cannot disguise that this is delivering an overnight 5% cut to the incomes of 6 million poorer households. If the £20 cut goes ahead, as the Resolution Foundation points out, it will result in the lowest real-terms level of basic benefits for 30 years. In today’s environment, how does the Minister justify that?
Baroness Scott of Bybrook (Con)
As I have said, when the Government put in the £20-a-week increase in universal credit, it was always going to be a temporary position. We now have a comprehensive plan for jobs. There are jobs out there. We will support people in the short and long term by helping them to get new skills and increase their hours to find new work, whether they are young or old, and to ensure what we know is the best way out of poverty, and that is jobs.
Baroness Janke (LD) [V]
My Lords, further to the question from the right reverend Prelate, is the Minister aware that to afford the cost of the Government’s recommended healthy diet, a family on benefits would need to spend 75% of their income on food? What will the Government do to ensure that the cost of a healthy diet is fully factored into the calculation of benefit payments?
Baroness Scott of Bybrook (Con)
I do not think I can add anything further to what I said to the right reverend Prelate. We are looking at the obesity strategy. We have a great free school meals programme, which is also running through the summer and Christmas holidays. It is important that, through the obesity strategy, we continue to look at making good food affordable.
Baroness Primarolo (Lab) [V]
Will the Minister please explain how cutting £20 per week from universal credit for 6 million of the poorest households, many of whom are already in work, and pushing below the poverty line another 420,000 children who will therefore go hungry, can possibly be delivering on the Prime Minister’s promise of “levelling up” our communities?
Baroness Scott of Bybrook (Con)
As I have explained, what we are doing and what we intend to do is to take away something that was always going to be temporary and invest in making sure that these families get good jobs for the future.
Lord Lucas (Con) [V]
My Lords, I congratulate the Government on their Restart programme, but surely a year of unemployment before that kicks in is not necessary in the case of an enforced career change—for example, returnees from looking after children or those whose livelihoods have been destroyed by Covid.
Baroness Scott of Bybrook (Con)
My noble friend is probably talking about the Restart programme, which looks at referrals on a case-by-case basis with work coaches and can restart jobs for people who have lost jobs through the Covid pandemic. Those work coaches will look for the most appropriate route for an individual. These could be people who now need a career change. The other option for those having to change career could be the sector-based work academy programme, which also looks to invest in reskilling. This offers up to six weeks of training, work experience and a guaranteed interview for a real job to claimants in England and Scotland.
Lord Taylor of Goss Moor (LD) [V]
My Lords, the Minister keeps talking as if this is only for people out of work and the solution is to find work. However, this support goes to people on low incomes, including those in work. The level of support is now lower in real terms than it was 30 years ago, and the lowest as a proportion of wages it has ever been. Will she reflect on the fact that every single Conservative Secretary of State for Work and Pensions since 2010—all of the former Secretaries of State—believes that this cut should not take place?
Baroness Scott of Bybrook (Con)
The noble Lord talks about in-work poverty. Our focus today is still on supporting people financially through the Covid pandemic, but our long-term ambition remains to build an economy that ensures that everybody has the opportunity to enter and progress in work. Full-time work dramatically reduces the risk of poverty. We have a commission on in-work progression, which has published its report on the barriers to progressing for those on persistently low pay. The Government will consider its recommendations and respond later in the year.
The Lord Speaker (Lord McFall of Alcluith)
My Lords, the time allowed for this Question has elapsed.
Royal Yacht
(2 years, 9 months ago)
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Lord Hunt of Kings Heath
To ask Her Majesty’s Government what assessment they have made of the costs and benefits of the proposed new royal yacht.
The Minister of State, Ministry of Defence (Baroness Goldie) (Con) [V]
My Lords, the new national flagship will boost British trade and drive investment into our economy. The national flagship will be built in UK shipyards, creating both jobs and upskilling opportunities. It will play an important role in delivering the vision we will set out in a national shipbuilding strategy refresh, to be published later this year. The cost of the national flagship will be confirmed once we have concluded market engagement.
Lord Hunt of Kings Heath (Lab) [V]
My Lords, I see that the Government have already downgraded the proposed boat from a royal yacht to a national flagship. As the department has been lumbered with the responsibility for this extravagant folly, will she say what contribution she expects the boat to make to our defence—and I mean defence—capability? Will the department be fully compensated for the cost?
Baroness Goldie (Con) [V]
I am somewhat saddened by the noble Lord’s lacklustre attitude, because this is an exciting prospect for British shipbuilding, our skills base in that industry and the supply chain. It is opening a new chapter in our global engagement focus on trade, investment and British jobs. The MoD is responsible for the national flagship because our Secretary of State is the shipbuilding tsar, and more than any other government department we have significant experience in building ships. This new ship will be an innovative maritime mobile trade ambassador.
Lord Davies of Gower (Con)
My Lords, when such captains of industry as the successful business luminary, the late Sir Donald Gosling—who reportedly bequeathed some £50 million to the replacement of the royal yacht “Britannia”—see the sense in promoting Britain in the world, particularly as we seek new trading partners, does the Minister agree that the benefits of such a vessel will be invaluable?
Baroness Goldie (Con) [V]
The case for the new national flagship is not just well made, it is self-evident. It reflects the determination of this Government to do everything we can to boost investment in the UK economy, to create more jobs in the United Kingdom and to ensure that we have a facilitator in the form of this new flagship to engage meaningfully with global partners.
Lord Sikka (Lab) [V]
My Lords, this is another vanity project by the Prime Minister, just like his £53 million garden bridge and the £5.2 million estuary airport. Does the Minister agree that the proposed £200 million would generate more jobs by feeding hungry schoolchildren during the summer break, tackling domestic violence or hiring 6,600 new nurses?
Baroness Goldie (Con) [V]
The duty of government is to make decisions and judgments. It is the judgment of this Government that the creation of and investment in the new national flagship is a very substantial means of enhancing global engagement, with the specific intention of improving trade relations and identifying and inviting potential global customers to invest in the UK, create jobs and thereby create the wealth and expenditure for the very worthy purposes to which he has referred.
Baroness Smith of Newnham (LD)
My Lords, there might be all sorts of very good reasons to have a national flagship, but will the Minister tell the House what the benefit of this to defence is going to be? How does she envisage naval staff being available to equip the ship?
Baroness Goldie (Con) [V]
In common with all government departments, the MoD wishes to play its role in supporting the Government. The noble Baroness will be aware that the carrier strike group is currently conducting an important mission overseas, and that is attracting interest from a variety of sources, not least those who wish to engage with us globally with a view to looking at trade opportunities. This proposal complements that approach. Manning the flagship will be a Royal Navy responsibility, but that will be factored into our existing commitments.
Baroness Gardner of Parkes (Con) [V]
My Lords, will the Minister comment on whether, in the light of government borrowing being so high at £303 billion following the Covid pandemic, the money to be spent on a new royal yacht is money that we cannot spare at the moment and the project should be delayed accordingly?
Baroness Goldie (Con) [V]
My Lords—[Inaudible]— the estimated bill cost for the new national flagship, it is unhelpful to refer to this as a royal yacht. In concept, purpose and function, the flagship is completely different. The estimated bill cost is less than 0.1% of the defence budget over the next four years, and that will be met from within the defence settlement. We are satisfied that that can be comfortably accommodated.
Lord Coaker (Lab)
My Lords, it is both disappointing and shocking that the Minister has now confirmed that the capital costs of building the flagship will be met from the defence budget. Does the Minister not understand that the core of the objections from many Lords in this debate is that the money is coming from the defence budget? If the Government are determined to go ahead with this, would it not be better for the MoD’s money to be spent not on this prime ministerial vanity project but on another maritime patrol aircraft or frigate? That is the nub of the questions that the Minister is being asked: why is this a priority for the MoD?
Baroness Goldie (Con) [V]
As I indicated, the MoD is one government department but we operate in conjunction with others. We consider it our duty to support these other government departments in their respective obligations and missions. As I also indicated earlier, the MoD spend on shipbuilding will double to over £1.7 billion a year over the life of this Parliament, while the national flagship is less than 0.1% of that defence budget over the next four years.
Lord Berkeley (Lab) [V]
My Lords, I would like to explore why the MoD is the right department to take forward this vanity project. When we debated its record on procurement a couple of weeks ago, we heard that the 400 tanks it had ordered cannot reverse, cannot go forward very fast and cannot fire on the move. The staff inside also had to be changed every hour and a half because it was too noisy. Why is the MoD the right department to procure this, rather than the business department?
Baroness Goldie (Con) [V]
As I indicated on a previous question, the Defence Secretary is the Government’s shipbuilding tsar and the MoD’s role as the lead department for this project reflects our knowledge and experience in shipbuilding and procurement. That has been a very active part of our defence engagement and continues to be so, with a really proud and substantial shipbuilding programme in process.
Lord Wallace of Saltaire (LD)
My Lords, if this is to be primarily concerned with promoting international trade, should it not be funded by the Department for International Trade? Since that department is concerned about the tip towards the Pacific, it would be absurd to base this ship in Britain. Will it be based at Bahrain, Diego Garcia or Singapore? Lastly, since this is a pet project of the Prime Minister, do the Government plan to name the ship Dilyn?
Baroness Goldie (Con) [V]
There may be much speculation about the name of the ship but it is premature to discuss that just now. It will be announced in due course. The noble Lord makes an important point about the underlying purpose and function of this flagship. He is quite right that it is to be mobile and a maritime asset. Many of the major cities in the world with which we wish to engage for trade purposes are coastal; he is therefore correct that we anticipate this vessel’s role to be mobile. It will go to where the need is and where we wish to engage, at the time we wish to undertake that engagement.
Lord Dubs (Lab) [V]
My Lords, everybody wants to boost British shipbuilders, but does the Minister not agree that other ways of doing it are more relevant for the purposes of our defence? The Minister talked about investment and boosting trade. Is not this whole project a vote of no confidence in the good work that our embassies and consulates do throughout the world? Is it not a way of saying, “You’re not good enough—we’re going to find a different way of doing it”?
Baroness Goldie (Con) [V]
I disagree with that last assessment by the noble Lord. This is entirely complementary to what we currently do with our Diplomatic Service and through our trade ambassadors and trade emissaries—an added facilitator to help support these important endeavours. It is all about finding investment and orders for the UK, boosting UK jobs and bringing that investment to this country. That is a collective government responsibility and I therefore anticipate that this vessel, although being built under the aegis of the MoD, will be operated and work closely in conjunction with our overall government endeavours and ambitions.
The Lord Speaker (Lord McFall of Alcluith)
My Lords, all supplementary questions have been asked.
Racism in Sport
(2 years, 9 months ago)
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Lord Coaker
To ask Her Majesty’s Government, in the light of the recent racist abuse directed towards members of the England football team, what action they are taking to tackle racism in sport.
The Parliamentary Under-Secretary of State, Department for Digital, Culture, Media and Sport (Baroness Barran) (Con)
My Lords, I take this opportunity to thank the England team, not only for what they achieved during the European Cup, but the manner in which they achieved it. It was a magnificent performance, which raised the spirits of the whole nation. What followed in terms of racist abuse is wholly unacceptable. The Government have been working with the football community to address this problem. My right honourable friend the Secretary of State has held talks with a number of footballers and other sports people to hear first-hand the appalling abuse suffered. The Online Safety Bill will address the racist abuse of footballers online, including anonymous abuse.
Lord Coaker (Lab)
In praising quite rightly, the brilliant leadership of Gareth Southgate and the inspirational England team, will the Minister join me in calling out those who dismissed taking the knee against racism as gesture politics or those who refused to condemn fans booing the players? As the Minister says, we are all disgusted and condemn the appalling racist abuse of Bukayo Saka, Jadon Sancho and Marcus Rashford. But people are also furious—they are demanding action now from the Government. How are the Government going to force social media companies to act now? Promises have been made before, yet we are still waiting. Why are we not seeing more prosecutions? This activity is illegal offline, so it must be illegal online. We would not stand for it on the street.
Has the Minister had discussions with government colleagues, the police, the CPS and others demanding that these racists—whatever we want to call them—are prosecuted and do not hide behind anonymity? Will the Minister agree with me that the Government urgently need to set out a series of practical steps outlining action before the next England game? Will she join me in saying that that will happen? Action, not words, is the call from the British public.
Baroness Barran (Con)
I thank the noble Lord for the focus on action, because that is exactly where the Government are looking. In response to the various points he raised, my right honourable friend the Secretary of State has already met with the policing Minister to review what further steps can be taken, including any additional protection for the players that the noble Lord referred to. In terms of leadership on this issue, the Prime Minister has been absolutely clear that people should feel free to show their respect and condemn racism in whatever way they choose. In terms of next steps, I have already talked about the Online Safety Bill. We have also recently launched safety by design guidance and made a substantial investment in safetech.
Lord Addington (LD)
While thanking the Minister for her assurances, can she tell us now exactly what the duties of the online platforms which carried the abuse will be under the new Bill? What sanctions will they face if they do not fulfil these duties?
Baroness Barran (Con)
The Bill will create a regulatory framework which applies to all platforms whatever their size in relation to illegal online abuse and, particularly for the largest platforms, to harmful but legal content. We fully expect that racism and racist abuse will be a priority category. In terms of sanctions, there are fines of up to 10% of global turnover, blocking of sites and, indeed, potentially criminal sanctions for the leadership of those businesses.
Lord Woolley of Woodford (CB) [V]
My Lords, I too thank the England team and its manager Gareth Southgate for providing so much joy for millions during the Euro football championship. Does the Minister agree with me that not only must the deluge of racist abuse towards black players be condemned and perpetrators brought to justice but it should not be fuelled in the first place by politicians, some of whom, if we are honest, in effect encouraged fans to boo the national team—a brilliant team that took a collective stand in taking the knee against the very racism that the black players were subject to after Sunday’s defeat?
Baroness Barran (Con)
I absolutely agree with the noble Lord about the appalling deluge of abuse that the players suffered. I have already, in response to the noble Lord, Lord Coaker, set out exactly what the Prime Minister has said on this matter. The other thing that is very clear is that there is a yawning gap between what social media companies say they do on their sites and what all our experiences are—including, particularly in this case, the players affected.
Lord Dobbs (Con)
My Lords, these are not football supporters. They are sick. They are scum. They are cowards because they hide behind the anonymity of social media, which clearly have been incapable of putting their own house in order. I support the Government in their efforts to bring social media to their senses. We have friends in the social media world. Could our colleagues in this House, who know him so well—the Liberal Democrats, for instance—draw to the attention of Nick Clegg the difference between his previous principles and his current position? Surely he should be encouraged to take a lead and do so much more in fighting this sort of racism and bring us back to the position where we can get on with the beauty of the English game.
Baroness Barran (Con)
My noble friend is absolutely right. Social media companies follow every aspect of our lives and I think we are all surprised that they could not have anticipated better some of the events that have occurred in the last 48 hours. The Online Safety Bill will specifically address issues around anonymity.
Lord Faulkner of Worcester (Lab) [V]
My Lords, I welcome and endorse the tribute paid by the Minister and my noble friend Lord Coaker to Gareth Southgate and the England team. They are genuine role models in whom we can all take a great sense of pride. The Minister will recall that she answered an Oral Question from me on this subject on 23 March. She said:
“The police already have a range of legal powers to identify individuals who attempt to use anonymity to escape sanctions for online abuse.”
May I ask her what those sanctions are and what progress has been made in making football a specific priority in the hate crime unit looking at online discrimination against protected characteristics, as specified under the Equality Act 2010? She spoke about imposing a duty of care on social media companies with
“clear systems of user redress and strong enforcement powers from Ofcom.”—[Official Report, 23/3/21; col. 724)
Lord Parkinson of Whitley Bay (Con)
I am sorry to interrupt the noble Lord but half the time for this PNQ has already lapsed and we need to make more progress.
Baroness Barran (Con)
I am happy to write to the noble Lord and address any other points that he wishes to make. The Investigatory Powers Act allows police to acquire communications data such as an email address and the location of the device from which illegal anonymous abuse is sent, which can be used as evidence in court. We hope that this will act as a clear deterrent in future.
Baroness Uddin (Non-Afl)
My Lords, like my grandsons and my granddaughter, I loved every England game. For me, football did come home to unify a divided nation, which stood with the profoundly thoughtful leadership of Gareth Southgate and Harry Kane and with magnificent players like Shaw, Grealish, Saka, Rashford, Sancho, Mount, and the man of many matches, Raheem Sterling.
Given their and our message that there is no place in our sports or institutions for racism and Islamophobia, with hindsight, does the Prime Minister regret his divisive and disrespectful comments? Will the Minister say what additional action the PM and the Government are taking to eradicate institutionalised structural racism and Islamophobia and its devastating impact in all aspects of our conduct and policy? They should take a leaf out of the England team’s efforts—
The Lord Privy Seal (Baroness Evans of Bowes Park) (Con)
My Lords, I am sorry, but can we please keep questions short? It is extremely disrespectful to the rest of the House.
Baroness Barran (Con)
I can only repeat to the noble Baroness that the Government have been absolutely clear that racism is unacceptable online or offline and that we respect people’s choice to condemn racism in whichever way they feel is right.
Lord Campbell of Pittenweem (LD)
My Lords, may I ask the Government to consider legislation to the express effect that racism in sport should be an aggravated crime, thereby allowing greater powers in sentencing?
Baroness Barran (Con)
The noble Lord will be aware that racism is already an aggravating factor in many crimes. I am happy to take his suggestion back to the department.
Lord Clark of Windermere (Lab)
My Lords, I declare an interest as a director of Carlisle United Football Club, where we are all simply appalled by the racist abuse. The Times today suggests in a leader that this is not solely a British problem. Therefore, will Her Majesty’s Government raise it at the international forum to see whether we can help solve it? Domestically, when discussing this problem with the football authorities, will they include a relatively new body, Fair Game, which is composed largely of lower league clubs and will offer a different perspective?
Baroness Barran (Con)
The Government are determined to do everything within their power to stamp out the awful racism that we saw. Obviously, it is an extremely long-standing problem and one that extends across the world. We will use every opportunity to address it.
Baroness Jones of Moulsecoomb (GP)
Surely the Government can see that when senior politicians, such as our Prime Minister and the Secretary of State for the Home Office, make dog-whistle comments and do not slap down racism, the Cabinet and Government themselves have a problem.
Baroness Barran (Con)
I do not accept what the noble Baroness says. I have quoted twice now what the Prime Minister has said, which has been crystal clear on this subject. The Home Secretary has also been clear that there is no place for racism in this country, and she knows very well from her own experience.
Lord Triesman (Lab) [V]
My Lords, I declare an interest as a former chairman of the Football Association. I am delighted to hear what is going to be done about social media; it is going to have to be enforced. I share the view of the noble Lord, Lord Dobbs, that the people displaying their hooliganism and racism are scum; they have nothing to do with England or its football team.
As chairman of the FA I sought legislation that would enable us to ban for life—one strike and they are out—anybody convicted of any of these crimes from every football ground in the United Kingdom: no excuses, no second chances. Would the Government support that?
Baroness Barran (Con)
The Government are well aware that football banning orders can have a great effect on those implicated. This is one thing we are looking at.
Lord Mann (Non-Afl)
I proposed six weeks ago to the Secretary of State that the Football Spectators Act 1989 be amended to include online hatred. Can the Government do that in advance of the online harms Bill? A simple amendment to that Act would give far greater powers for dealing with this problem.
Baroness Barran (Con)
The noble Lord is very familiar with the approach we are taking to address online harms, which we hope will be comprehensive and effective. I will take his suggestion back to the department, but I cannot reassure him today at the Dispatch Box whether we can progress it.
Baroness Blower (Lab)
My Lords, I recognise this is outwith the Minister’s brief, but does she agree that we must now include specific anti-racist teaching in the curriculum for initial teacher education and in the national curriculum, given that racism in sport reflects racism in society at large?
Baroness Barran (Con)
The noble Baroness is right; it is outwith my brief. What I will say is that the Government take incredibly seriously the racist behaviour we have seen in this case but also, sadly, in others. I agree that thinking about how children grow up and their expectations is really important.
Lord Mackenzie of Framwellgate (Non-Afl) [V]
My Lords, it is intolerable that the slightest excuse or whim, such as the missing of a penalty, can result in the raining down of racial abuse on social media against young sportsmen representing their country at the highest level. Does the Minister agree that this clearly illustrates the importance of removing anonymity for those who peddle racial and other hate speech on such platforms?
Baroness Barran (Con)
The noble Lord will be aware of some of the issues around anonymity. It is important that platforms—and this will be required in the Bill—have a functionality that does not allow anonymous users, or those using pseudonyms or multiple different names, to perpetrate their hateful abuse online.
The Lord Speaker (Lord McFall of Alcluith)
My Lords, all supplementary questions have been asked.
Parliamentary Works Sponsor Body
(2 years, 9 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Baroness Evans of Bowes Park
That Baroness Doocey be appointed as a Parliamentary member of the Parliamentary Works Sponsor Body in place of Baroness Scott of Needham Market.
Procedure and Privileges
(2 years, 9 months ago)
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16:53 - Division conducted remotely on Lord Adonis’s amendment to the Motion. - Ayes: 234 / Noes: 296 - Lord Adonis’s amendment disagreed.
17:19 - Division conducted remotely on Lord Balfe’s amendment to the Motion - Ayes: 112 / Noes: 376 - Lord Balfe’s amendment to the Motion disagreed.
Baroness Evans of Bowes Park
That the Report from the Select Committee Procedural adaptations arising from the hybrid House; Interim option of voting using PeerHub; Ongoing virtual participation by disabled members (1st Report, HL Paper 41) be agreed to.
The Lord Privy Seal (Baroness Evans of Bowes Park) (Con)
My Lords, I speak to the Motions standing in my name and in the name of the Senior Deputy Speaker. As the Lord Speaker said, this Motion is being debated alongside a Business of the House Motion and a Motion on allowances, both of which are in my name, which is why I am opening this debate.
Before I go any further, I once again put on record my thanks to the staff of the House for all of the work they have done to support us over the past 16 months. I also thank the Chief Whip, the Front Bench and all the fantastic people who work in our offices, specifically some unsung heroes—many of your Lordships will have relied on them for support during our hybrid proceedings but you may not fully appreciate the role they have played. Jane Burfoot, Leann Twinley, Matt Taylor, Hannah-Louise Gadsby, Charlotte Johnson and James Anoom have all patiently assisted noble Lords from across the House with the myriad speakers’ and participants’ lists and so much more. On behalf of us all, thank you.
The virtual then hybrid systems we have been using for the last 16 months have served their purpose: they allowed the House to continue to meet through three national lockdowns and to carry on scrutinising legislation and holding the Government to account. Despite the unprecedented and challenging circumstances, in the last Session 55 Bills were passed and, when added together, 341 Statements, UQ repeats and PNQs were debated.
Although I agree with the Constitution Committee, which concluded that our hybrid scrutiny has been “less effective”, no one can say we did not do our job as best we could in the most difficult of circumstances. Throughout the pandemic we have worked hard to ensure that our practices and procedures have remained compatible with the public health situation, and that will not change.
All the proposals before noble Lords today have been informed by the debate that took place on Thursday 20 May, by representations from across the House and by an informal consultation exercise carried out last week via PeerHub. They give effect to a series of measures agreed and proposed by the commission and the Procedure and Privileges Committee in respect of the working practices of the House from 6 September onwards, after the remaining public health restrictions have been lifted and ensuring time for the House authorities to implement them.
Subject to the agreement of the House today, the hybrid system and remote voting will come to an end at this point, after the Summer Recess. There will be no more speakers’ lists for the amending stages of Bills; Grand Committee will return to the Moses Room; and interventions, which noble Lords across the House have said they have missed most, will once again be possible. Statements, Urgent Questions and Private Notice Questions will go back to being taken at the earliest convenience and without speakers’ lists.
We all know the limitations of the hybrid system, and I am pleased that the package before the House will return the vast majority of our working practices to what they were before the pandemic. However, we have learned from the experience of the last year and are therefore recommending that the House keeps some of the changes that we believe have made our processes more effective and efficient.
If these Motions were agreed to, Private Notice Questions, which were extended at the beginning of the pandemic, would continue to last for up to 15 minutes, rather than go back to 10. Speakers’ lists, for the business that will still need them, would continue to close two working days before a debate or Question takes place, rather than the night before. The legislation tabling deadline would stay at 4 pm and the Table Office tabling deadline at 5 pm—both one hour earlier than their pre-pandemic cut-offs. A ballot would continue to be held for Questions for Short Debate to be taken in Grand Committee once every five weeks. This would be in addition to the return of balloted general debates, balloted topical QSDs and dinner break business. The Companion would be updated to discourage the late degrouping of amendments before the amending stages of Bills. The requirement to convene a Reasons Committee would cease; a standard Reason would be given instead when the Lords disagree with a Commons proposition without proposing an alternative.
There would also be changes to the arrangements for Oral Questions. The extension of Question Time to 40 minutes and Secretary of State’s Questions to 30 minutes would be retained, so each Question would have up to 10 minutes rather than revert to the pre-pandemic seven and a half. Oral Questions would continue to be allocated by ballot, removing the need for noble Lords to queue up for hours on end outside the Table Office in the hope of securing one. The wording of Oral Questions would not be able to be changed with less than 48 hours’ notice, and a speakers’ list for Oral Questions would continue to be used. Because we were all aware that opinion across the House was—and remains—divided on this issue, the Procedure Committee decided to ask the opinion of your Lordships. It was subject to a vote via PeerHub in which the whole House was invited to take part. Of the 551 Members who responded, 59% voted in favour of keeping speakers’ lists for Oral Questions, hence the proposal before your Lordships today.
I can see from the Order Paper that this decision is not universally popular but, as with all measures, the Procedure and Privileges Committee will keep it under review from September. Of course, if the House agrees to these Motions, Members will be able to contrast having lists for Oral Questions with having Statements, UQs and PNQs without them once we return.
One of the great achievements of the past 16 months was the work done to rapidly adapt the House of Commons system, MemberHub, for use in this House as PeerHub. It proved a secure and mostly reliable way for noble Lords to vote remotely. We would not have been able to continue scrutinising legislation without it and, once again, I put on record my thanks to the digital team that worked so hard to both build PeerHub and support our use of it. However, the commission has decided—again, subject to your Lordships’ agreement —that remote voting should cease from September and that the relationship between attendance at Parliament and casting a vote in a Division should be restored. Voting is at the core of what being a legislator is, and we believe that it should be done in the House. In the longer term, voting will take place using pass readers, and we will bring proposals on this to the House in the autumn. However, while that system is being developed, PeerHub will continue to be used as an interim measure. From September, noble Lords will be asked before they vote whether they are in a place of work on the estate and will not be able to vote if they answer “no”.
Finally, it has been proposed that a small number of Members who may be unable physically to attend the House on the grounds of long-term disability should continue to be able to take part in our business remotely. Eligible Members would be free to choose their mode of participation and take part either physically or remotely. The commission has decided that requests to become an eligible Member should be considered by an additional support group chaired by the Senior Deputy Speaker. If the package before the House is agreed, further details on how a request can be made will be circulated.
Eligible Members who choose to participate remotely will not have the parity with physical speakers that we have seen throughout the hybrid House. Nor will remote participation be immediately available in the Moses Room for technical reasons; a solution is being worked on, but it will take some time. But, by giving sufficient notice, eligible Members will be able to take part remotely in all business in the Chamber. Eligible Members would also be exempt from having to declare that they are present on the estate when voting. Of course, making the Chamber and House as accessible as possible remains a key priority and we will look to make improvements where we can to ensure that Members can participate physically in the House if and when they wish to do so.
I stress again that the Procedure and Privileges Committee and the commission will keep all these adaptations under review and consider them further if necessary. But I hope that, for the most part, your Lordships will be satisfied with the progress we are hoping to make to get our House back to how it should be. I look forward to hearing noble Lords’ contributions on these matters today and returning to a fuller, livelier and more effective House in September. I beg to move.
Amendment to the Motion
Lord Adonis
At end insert “but that this House believes it should sit from 1pm on Mondays, Tuesdays and Wednesdays.”
Lord Adonis (Lab)
My Lords, I first thank the noble Baroness for her introduction. She quite rightly paid tribute to the staff of the House, and we all pay tribute to them too, but it is fitting that we also pay tribute to the Leader of the House herself for the way she has guided us through these very turbulent times over the last 15 months. She has proved very sensitive to the feelings of the House, and we are very grateful to her. Thanks should also be extended to my noble friend Lady Smith of Basildon, who has done an excellent job as leader of my party, the noble Lord, Lord Newby, on behalf of the Liberal Democrats, and the noble and learned Lord, Lord Judge, in respect of the Cross-Benchers. The House has shown itself in a very commendable light in the way it has adapted to this great public health emergency we have had to deal with.
The Leader said that we are seeking to keep some of the changes we have adopted over the last year that we generally agree are worthwhile. I suggest to your Lordships that one of the changes we should consider keeping is meeting earlier. My proposition this afternoon is that, just as we have been meeting earlier on Mondays, Tuesdays and Wednesdays throughout the pandemic, we should continue to meet earlier on the basis that we also adjourn earlier and have a new equilibrium of meeting earlier and adjourning earlier.
There are two reasons why this is particularly important, which are partly to do with when we do our business but also how we do it. In terms of when we do our business, it is only because of custom and practice from time immemorial that the House started its business mid-afternoon—and indeed, going back 50 years or so, in the late afternoon. Almost every other parliamentary assembly in the world has started meeting earlier in the day as it has adapted to modern conditions. The House of Commons now meets earlier than us on every day of the week.
The arguments for meeting later are now superseded. It used to be said that we had to juggle the demands of holding other full-time jobs with membership of the House. I am very sympathetic to noble Lords who work in banks, in the City, as lawyers and in other professions that carry on until the late afternoon, but the biggest second job that almost all of us have is as members of families—as parents and carers who need to be available in the evenings, which, by definition, you cannot be if the House is sitting in the evenings.
Of course, no set of arrangements suits everybody. I am fully aware that meeting earlier and adjourning earlier would inconvenience some Members. But from the many conversations I have had on this issue over the last few days, and over many months while we have been meeting in this way, I think the generality of your Lordships think that meeting at 1 pm—which, after all, is the middle of the day, so we are not exactly taking over the whole working day—and adjourning at 7 pm or 8 pm, as a normal practice, is a great improvement on the conditions in which we have worked, which have simply been inherited from time immemorial.
I am aware this poses a particular issue in respect of Monday for noble Lords who come from the north of Scotland, which has been put to me. If this amendment is passed today, I would recommend that the Procedure Committee look at whether the precise arrangements for Monday should be further reviewed. Maybe 2 pm on a Monday, rather than 1 pm, would be better for noble Lords coming substantial distances.
As for how we do our business, though, which is as important as when we do it, it seems absolutely imperative that we look at meeting earlier. The practical effect of beginning our proceedings in the middle of the afternoon, as all noble Lords who have conducted the business of the House know, is that we essentially have two House of Lords sittings. We have a Sitting where there is a full House, which is roughly from 2 pm or 3 pm to about 7 pm, then we have a residual House from 7 pm, made up of only those die-hard Members actually conducting the business in the Chamber, and it goes through to the end at 10 pm.
I once conducted the Committee stage of a Bill from where the noble Baroness sits with four Members of the House for three hours while we got to the end of a Bill. This is perfectly common after your Lordships come into the House after dinner. This suits the Government very well indeed. I see a Chief Whip on one side and a former Chief Whip on the other. There is nothing that suits the Government better than that the business of the House should be conducted with nobody present. This limits the opportunities for debate and intervention and, in particular, it removes the potential for votes. Everyone knows that in the normal course of events, with normal voting, you cannot have votes after 7.30 pm because you simply cannot conduct a House. You have only a narrow window, which will become narrower, because we have just agreed to extend Question Time, and we now have Private Notice Questions almost as a matter of course. There will be only a very narrow window, of about two and a half hours in most sittings, when it is practically possible to conduct votes in the House.
Walter Bagehot, in his famous book on the English constitution from 150 years ago, said:
“An assembly—a revising assembly especially—which does not assemble … is defective in a main political ingredient.”
A fundamental problem with the House of Lords, if we revert to our previous arrangements, is that for about half our sittings, we essentially do not assemble. Only a tiny subset of your Lordships assembles. It is not possible for most Members, because of their other responsibilities, to take part in these sittings in the late evening—or it is not their desire to do so, and it is not possible to have votes. Whereas, if we conduct our business like every other institution in the country does, in prime time, then from 1 pm until 7 pm or 8 pm, almost all Members will be available. We will be far more inclusive in our conduct of the business, and it will be possible to conduct votes throughout that period. For those Members of the House who are not in the Government, which includes the generality of Members on both sides, our conduct of business would be improved.
Just one final remark: we are a self-regulating assembly. When we set up the office of the Lord Speaker, which was very controversial at the time, I remember the noble Lord, Lord Strathclyde, who I am delighted to see is speaking later, told us frequently through many hours of debates that the Government’s proposal should not be accepted, in respect of the abolition of the office of Lord Chancellor and the creation of the Lord Speaker, because we are self-regulating and should make these decisions ourselves. We are a self-regulating House, but that does mean that we should regulate ourselves. We should not shy away from making these decisions about the conduct of our own business. Meeting earlier and adjourning earlier is an idea whose time has come. I beg to move.
Lord Cormack (Con)
My Lords, I am delighted to take part in this debate. I begin echoing the well-deserved tribute from my noble friend the Leader of the House to all those who have made it possible for us to continue during these difficult times. I should like to make a particular vote of thanks to the digital support team. As one who had not used a computer before, I have been able to take part in your Lordships’ House when I have not been present—although I have been present most of the time—entirely because of the team’s patient tuition. The team has been marvellous.
I must begin on a note of dissent from the noble Lord, Lord Adonis. He made a persuasive case, but I am afraid I think it was a superficial one. It did not take sufficient account of the fact that we always almost boast about our expertise, and one of the reasons we can do that is that a significant number of Members of your Lordships’ House do other things before they come in at 2 pm. There is also the important point that there is a clash with committees—both party committees and Select Committees, which we should prize. I also say to the noble Lord that—although perhaps he does not eat as many luncheons as I do; it does not look as though he does—to lunch with people before we sit at 2.30 pm can be extremely helpful.
It is for the convenience of a large number of Members of your Lordships’ House that we revert, as the committee is proposing, to sitting at 2.30 pm on Mondays and Tuesdays, 3 pm on Wednesdays, 11 am on Thursdays and, if we sit, 10 am on Fridays. Therefore, I cannot support that amendment. When the noble Lord generously invited me to support it, I let him know that I could not.
I want to concentrate my remarks on Questions. I am delighted to know that UQs, Statements and PNQs will be taken in the old way. But I do not think it is a good idea to have a printed list for the main Question Time of the day. It destroys spontaneity. Often, I have come into your Lordships’ House—and I know this applies to others because I have discussed it—not thinking I would take part in a particular Question, but I am provoked to do so by some ministerial or other remark with which I could not associate myself, or to give support to a colleague who has had an unsatisfactory answer from the Minister. I believe that spontaneity is a tremendously important part of your Lordships’ House’s proceedings. Therefore, I strongly urge that we discard the list.
I know it was done for the best possible reasons but I was a little troubled by the fact that we had an opinion poll. A lot of people did not know about it. I spoke to two Members of your Lordships’ House with whom I keep in regular touch, and I do not mind mentioning them: the noble Baroness, Lady Boothroyd, and the noble Lord, Lord Hennessy. Until I warned them that this opinion poll was being taken on PeerHub, they had not heard of it. There are others I have discovered since. It was also a pity that it was a binary question, because there are other ways of doing this, as my noble friend Lord Balfe will point out when he speaks to his amendment to the Motion in a few minutes’ time.
I come back to spontaneity, which is a very important part of our proceedings. It is crucial that we hold the Government to account. This has not happened over the last 16 months. That is no one’s fault—but it has not happened, and the Government have been the beneficiaries. We have not been able to intervene on a Minister or to get up and challenge a ministerial statement. As I say, I blame no one, but the sooner we can get back to that, the better, because your Lordships’ House, a House of scrutiny and of holding to account, wishes to be able to fulfil those functions to the full. It is truly important that we are able to do that and at the moment, under this printed list system, we are not able to. So I am urging, in my amendment, that by 31 October at the very latest this is reviewed, because I think we are going to lose a very great deal.
I shall end on a very different note. The committee that has been looking at these things has been reviewing our procedures. It has said that it will continue to review our procedures, and one of the procedures I hope it will continue to review—I mention it today because there is no chance of debating it next week—is Standing Order 68, under which, on Wednesday next week, without any debate or discussion, this House that wants to value everybody is not going to value three of our colleagues by voting to half-suspend them from the facilities of the House. I think that is shameful and I hope that my noble friend will take this message back to her committee, and that high on the agenda when it next comes to review our proceedings will be reviewing Standing Order 68. For a man or a woman to be condemned without any opportunity to explain, or have his or her colleagues explain, is a denial of natural justice.
Lord Balfe (Con)
My Lords, I begin by associating myself with the remarks of the noble Lords, Lord Adonis and Lord Cormack, thanking the Leader and the staff and the Leaders of the other parties here for the way in which we have managed to get ourselves through the last year. Before I move on to my amendment, I will offer support to the noble Lord, Lord Adonis, for his. He mentioned people coming down to London on a Monday and said we might need to look at it. That is exactly why we need to start earlier, certainly on Tuesday, Wednesday and Thursday—because most Members do not have other jobs. Most Members, if the House is not sitting and they are from outside London, are basically just kicking around, looking at the newspapers, et cetera. I think they would be much better employed if the House was sitting, and I hope that serious consideration will be given to the amendment moved by my noble friend Lord Adonis.
Much has been said about the dignity of the House. My contention is that the least dignified part of the House used to be the scramble at Question Time, with people shouting against each other and generally trying to get in to a debate, without anyone regulating it at all until, if it got totally out of order, the Government Whip would get up and say, “It’s the Cross-Benchers’ turn” or something like that. It was totally undignified. People watching on television or in the Gallery could not understand what was going on. When I first came here, the advice I was given was, “Sit as near to the front as you can and carry on shouting. Pretend you do not know there is anyone else behind you and you will probably get in.” This is not the way to conduct a Question Time.
I am sorry to put extra work on to my good friend the Lord Speaker, but I think that having the Lord Speaker choosing people to ask supplementaries as the debate goes along does combine spontaneity with being able to share the questions around the House. No one, I think, is suggesting that the House of Commons does not have a reasonably fair Question Time. There, the Speaker provides this service, and I think it is a most important service to provide. I also think that those of us who have not been in the House of Commons feel somewhat at a disadvantage at the way in which Commons procedures such as that are used in this House—not that that is a complete Commons procedure. So I advise and hope that we will ask the committee to look at the matter and report by 31 October.
My amendment does not say that it should start now, because I appreciate that there will be points that have to be looked at. There will have to be guidance and discussion as to how Question Time should be structured, with the Lord Speaker or one of his deputies calling the person to ask a question—but it will, in my view, enable a certain amount of spontaneity, governed by a certain amount of discipline and the ability to give people the opportunity to ask a question and spread it around the House, not only between Members but between different types of Members. I very much hope that we will look at that.
This is not to denigrate what has gone before, but I have to say I always thought Question Time was the least dignified part of the proceedings of this House and that, if we are a self-regulating body, one thing we surely should regulate is good manners in the Chamber. Shouting against each other does not conform to my definition of good manners, so I ask Members to look favourably on this. We are asking the Procedure and Privileges Committee to report by 31 October; we are not taking a decision but offering a guide that I hope Members will feel able to issue to this committee. It may, of course, come back and say it does not work—in which case we would have to think again. But I think that, if it can find a way of making it work, we will have a more dignified and better House.
Baroness Brinton (LD) [V]
My Lords, for the last year your Lordships’ House has moved forward in its processes and has even joined the 21st century by using Zoom, Teams and electronic voting, in the Chamber and remotely. The decision to move to hybrid working was necessary and it is important to say a big “thank you” to all those who have made it possible. So I echo the thanks of the previous speakers, but I want to mention the commission, the clerks, all the Whips’ offices and the myriad invisible staff who have come to our aid to make it work. I especially thank the broadcasting teams, who onboard us with patience and courtesy, and help problem-solve when things do not quite work. Above all, I thank everybody who has made this work across the House.
We have to learn the lessons of what worked well for us and what we can change to improve our future ways of working, and this report proposes some of those. I think that retaining the extended time for Questions, and, indeed, speakers’ lists, are sensible. For those such as the noble Lord, Lord Cormack, who want us to return to bobbing, I say that there are some who always find it difficult to get in over noisy colleagues, and for those of us who cannot stand there is immense frustration that we are invisible to the rest of your Lordships at Question Time and too often spoken over. The proposals of the noble Lords, Lord Cormack and Lord Balfe, do not quite address the problem that we wheelchair users face.
On voting, keeping the principle of electronic voting is good, but forcing Members on to the main Parliamentary Estate to use it seems somewhat short-sighted. As a disabled Peer, I know that the most suitable offices for wheelchairs are in Millbank, but it is not possible to reliably get out of the building, across the road and into Parliament in time to vote. The reality is that people just do not see wheelchairs. They do not give way in lifts; cars do not give way on crossings; and at bottlenecks coming into Parliament, wheelchairs always seem to be pushed to the back. That means we have to stay in the main building, often in offices unsuitable for wheelchair users. Having these stands to tap in would be very helpful.
My main focus today is to thank the commission, its sub-committee and especially the Lord Speaker for listening to the disabled Members of your Lordships’ House. To say we were distressed by some of the comments from the Benches opposite during the previous debate in May is an understatement. We felt devalued and excluded by other noble Lords, to be told that if we could not physically come in, we did not deserve our place in your Lordships’ House. Some Members opposite even suggested that we should retire because we were “frail and elderly”. We are not; we are disabled, and, under the law of this land, all organisations are required to make reasonable adjustments for disabled people to help them overcome the barriers they face. These proposals are a start and, I believe, a trailblazer for disabled parliamentarians in Westminster. I hope that the commission will keep the practical working of these proposals under review. As an opposition Front-Bencher, I am not quite sure how some of these proposals will work in the heat of debate on a Bill, but I believe that the House authorities are prepared to help Members like me give it a go.
I would like to restate something I said in the previous debate: I am desperate to return to the Chamber, and I will as soon as it is safe for me to do so. But, as I mentioned in that debate, there are some other Members of your Lordships’ House who are excluded from these proposals but who cannot come to Parliament for the foreseeable future. I refer to the clinically extremely vulnerable, who were told yesterday by the Government in revised formal guidance that, from next Monday, because all other restrictions will be lifted and because of the large surge in Covid cases, they must keep themselves safe and not meet people inside, not come into contact with unvaccinated people, and ensure that they keep socially distant from others, whether inside or outside. I believe that this makes it impossible for them to resume their seats in the physical Chamber. Some of these clinically extremely vulnerable people are disabled, but not long-term. Others may not define themselves as disabled, and they are not the “frail elderly” referred to by noble Lords opposite in our previous debate. But, under these arrangements, they are to be excluded from your Lordships’ House, despite Ministers and these people’s hospital consultants saying that they should not come to London and to Parliament because it is not safe for them. I do hope that the commission will reconsider this small group of people.
Finally, can the Leader of the House say what will happen if further restrictions need to be imposed in the future? Can hybrid facilities be reinstated if necessary? I hope, with every single other Member of this House, that it will absolutely not be necessary—but, as Israel and the Netherlands have recently discovered, the virus and its variants may have further shocks for us all.
Lord Blunkett (Lab)
My Lords, in an earlier debate on reform, I remember saying that in a race I would always back the tortoise rather than the hare when it came to reforming your Lordships’ House. The hare is constantly being shot at; I think the tortoise at the moment is hovering on the finishing line. At least we have seen some movement towards change and modernisation, which is extremely welcome. I add my thanks to all those who have been mentioned so far. In particular, I emphasise what the noble Baroness, Lady Brinton, said in relation to the Whips, who have had the most horrendous task in keeping us in some sort of order while keeping fairness.
I will make one or two observations on the amendment of the noble Lord, Lord Adonis, relating to timing. As I have already said to him, so he knows I feel this, I am extremely sympathetic to what he has put forward in relation to Tuesday and Wednesday—and, by the way, there are committees on a Thursday, so the idea that we infringe on committees on a Thursday but not on a Tuesday and Wednesday is a little odd, to say the least. Although the way in which we have conducted ourselves has been extremely impressive in the circumstances, as the Leader of the House spelled out, we have actually been working much longer hours than the House of Commons. We have seen the House sitting very late, and I fear that, with the level of business that is likely to be presented to us, we will end up in the worst of all worlds: we will start later and end much later, but we will expect people to be around for votes much later.
So there is a great deal in it, other than on a Monday, when those who live in Scotland, the north, parts of Wales and the West Country would have a hell of a job getting here for lunchtime. In my days as a Cabinet Minister, having to come down on a Sunday meant that, by the time I had done other duties, I had virtually no weekend at all, and I am certainly not keen to go back to that. So, if we could ask the Leader of the House, with the Procedure and Privileges Committee, to bring forward an alteration to that, I would be in favour and I would vote for the amendment from the noble Lord, Lord Adonis.
The lesson of the past 16 months has been more than just how people have stepped up and been extremely helpful—the comment made about the broadcast team is particularly apposite. But I think it has had another effect: more of the staff of this House, and indeed Members, have understood some of the challenges for those who have a variety of disabilities—not being able to get off mute is one of the least of them. People have discovered that they really need help and support. While I am in favour of very limited external connectivity for those with severe disabilities, I make another appeal: those of us who want to be here on a regular basis, and can be because of the nature of our special needs, would welcome a bit more understanding and support, including continuity of support for assistance. There is no point in telling people that they should be here and then getting snooty, which has happened in the past. It happened in the Commons when I first entered it, and it does happen here. Some people really do not understand what the challenge is, because, like a good goalkeeper—I will not mention anything to do with Sunday night—when you save easily, it looks easy, but actually it is often very difficult indeed.
Finally, I welcome the changes very much, but I hope that in the future we will review perhaps how we can blend in, on the remaining business of Bills and Statements, the ability of Members to be named. It is extremely helpful for me to know, as it was just now, that it was my turn. I can count and quite often I can hear who the previous speaker was, but guessing that you have got it right is not too clever. The modest changes that I hope we will agree to today will take us a further step towards self-regulation that is underpinned by decency and common sense. If we get that right, we will have a greater degree of respect and a much better reputation outside this House.
The Deputy Speaker (Lord Brougham and Vaux) (Con)
The noble Baroness, Lady D’Souza, has withdrawn, so I call the noble and learned Lord, Lord Mackay of Clashfern.
Lord Mackay of Clashfern (Con)
My Lords, it is a great privilege to speak after the noble Lord, Lord Blunkett, whose career I have followed with great interest for many years. I wish him continued attendance in the House; he is always welcome.
I begin by thanking the Leader of the House and all those who have been concerned with helping us during this pandemic to reasonably participate in the responsibility of helping the Government to get through legislation that is satisfactory and attempting to stop legislation that we do not always consider to be completely satisfactory. In the period of tremendous trouble that we have just come through, which has not necessarily finished, we have been able to do what I regard as a pretty good job.
Before I speak briefly about the three amendments, I want to say that I very much support the need for disabled people to be able to participate as much as possible in the affairs of this House. I regard their point of view, which I have considerable experience of hearing, to be extremely valuable in deciding not only what is relevant for disabled people but other matters where they have a special point of view.
I join the noble Lord, Lord Adonis, in mentioning the leaders, and I would like to add the Lord Bishops as another group that has been extremely helpful when participating in the previous time.
I must say that I am fairly attracted to the argument of the noble Lord, Lord Adonis, but it has been fundamental that this is a part-time House that includes people who have full-time work. From the House’s point of view, the value of that is that they bring expertise to legislation in particular but also to other aspects of the House’s business. Therefore, the times at which we start is a very balanced question. I came from Edinburgh this morning, so it is not all that difficult, but it does require a fairly early start.
On the second point, made by my noble friend Lord Cormack, I agree with my noble friend Lord Balfe that Question Time before the pandemic was not always the most dignified aspect of the House’s activities. Not many of us worked on the assumption that one should in honour prefer one another. It is important that Question Time is more organised than it was, and the idea of having a list is satisfactory in that respect. But it may be wise to reduce the total time allowed for the listed questions in order to enable the asking of supplementary questions that may arise, to be dealt with at the discretion of the Lord Speaker or whoever is on the Woolsack. We have experience of listening to Question Time when the Minister’s Answer, short as it may be, does not always fully meet the point that the main Question has put, and an opportunity to raise that kind of question would be rather useful. In the vote that has been referred to, I voted to have the list, but there was no option to vote for something such as that—but I did take the opportunity to make that point in discussion after the vote.
It seems to me that voting is now a matter of some importance. We should be willing to give our attention, if we can, to being here to vote, and the restriction on voting is satisfactory. On the other hand, those who are disabled should be exempt.
I have overstayed my time and I would like to conclude.
Lord Grocott (Lab)
My Lords, one of the things that was really noteworthy about the Procedure Committee report was this entirely novel way, as far as I can make out, of the House reaching decisions—that is, to have a kind of opinion poll before we reach our decisions. Under the normal procedures of the House, whether it is a Bill, a debate or anything else, you have the debate and then test the opinion of the House. In this system, it seems that you test the opinion of the House and then have the debate. That seems to me—well, I can think of some of rude ways of referring to it—to stand procedures on their head, and I am not sure that I like it. No doubt the Senior Deputy Speaker will be able to refer to this when he sums up.
But I will say this: if we are to have this kind of system in the future, my word, we need some ground rules—they certainly do not come out in the Procedure Committee’s report—about what kinds of decisions we test opinion on before the debate, and what kinds we do not. There are two contrasting examples of very important decisions that I can refer to: one is whether to have a speakers’ list for Oral Questions and the second is whether to change our sitting times, as my noble friend Lord Adonis referred to. The Procedure Committee dismisses the question of the House’s sitting times in just a sentence. The only justification it gives for testing the opinion of the House in the way that it has on speakers’ lists is because of “the divergent views” on the subject—but there are divergent views on every conceivable subject that ever comes before this House. If that is the only ground the Procedure Committee has to offer for having this system, it is a pretty poor basis.
There is a real problem with this way of making decisions, which the noble Lord, Lord Cormack, touched on. By the way, I very much sympathise with the amendment in the name of my noble friend Lord Adonis. In the five sitting days of the week—Monday to Friday—we have four different starting times, and the only two days that are the same are Monday and Tuesday. I cannot think of any other public-facing organisation that has four different kick-off times in five working days.
However, the other problem with having these kinds of pre-debate opinion polls is that most of these questions do not lend themselves to a binary decision—they are not a simple “this or that” question. I will be frank with the House: on the question of speakers’ lists, I do not like the system that was in operation prior to the Covid crisis. I have said so many times; I initiated a debate on it five years ago to say that the Lord Speaker should be the person to play a role in that. But I certainly do not like the idea of the lists being published in advance and continuing with that method. I would love that idea if I was still on the Government Front Bench. When you are there to answer questions at Question Time, it is an absolute joy if you know exactly who is going to ask them. You can generally, with reasonable accuracy, anticipate precisely what question they will ask. If you know the subject and the person asking the question, you know what the question will be, so it is a great benefit to the Government Front Bench.
Perhaps I should be more sympathetic to the other group to whom it is a great benefit, having been a Chief Whip: it is great news for the Whips. If it is not the Lord Speaker or randomness deciding, the party groups, one way or another, have to find a mechanism for determining who the questioners should be. When I was Chief Whip, I would have loved to have decided who among our side was going to ask the questions; quite a few would have been waiting quite a while for that opportunity. So, this system hands power to the Government Front Bench—to Ministers—in particular, and to Whips in general.
I do not like that system either but, of course, there is a third way—to coin a phrase—which is the suggestion of the noble Lord, Lord Balfe: we do the same as pretty much every assembly across the planet with procedures anything like our own does, and give some authority to the Lord Speaker. That authority has slowly accrued over the years since the post was established, to more or less universal agreement. We now actually have the Lord Speaker announcing business, and we have had, as my noble friend Lord Blunkett said, the Lord Speaker announcing who is going to speak next. I do not want there to be Stalinist control, but light-touch control from the Woolsack seems the best way of dealing with things. This was neither of the options on the ballot paper, if I can put it in those terms, when the House was consulted. I certainly support that amendment, and I really hope that the House can think again about the idea of a rigid speakers’ list.
One final point: a rigid speakers’ list is a huge change in our procedures. Since I have been here, every other major change in our procedures has always been introduced initially for a trial period, usually for six months, to test the water. If the House decides to go ahead with this system without accepting the amendment, which I hope does not happen, I feel very strongly that, after six months of operating with rigid speakers’ lists, we should have the opportunity to decide whether we want to make this permanent.
The Deputy Speaker (Lord Brougham and Vaux) (Con)
I advise noble Lords that the speaking time is about five minutes.
The Lord Bishop of Chichester
My Lords, my right reverend friend the Bishop of Birmingham, who is our convenor, regrets that he cannot attend today’s debate. As Bishop on duty, I offer some thoughts on behalf of these Benches. On behalf of my right reverend friends, I thank the Leader of the House and the leaders of the parties, and especially all the staff who have seen us through this extremely challenging time. All of us have a particular debt of gratitude to those in the digital and technical spheres, which many of us struggle with. I noted earlier that it has enabled some of my right reverend friends to share with the House the interior of their splendid cathedrals, so that has been great. I am grateful to the noble and learned Lord, Lord Mackay, for his recognition that being present in the House is also a very important contribution on our behalf.
I speak as a relative newcomer to your Lordships’ House, and as one of those Members, found on all sides of the House, who combines their service here with a significant full-time outside commitment. It is one of the strengths of this House that it gives space for this, so that membership is not just for what might be described as the full-time, professional politician. The assessment of any change to our procedure should not only test efficiency in our working practices and the capacity for inclusion in them but demonstrate how it will enable those who are not full-time to participate as fully as possible to bring into the debate and scrutiny this House exercises the wide range of experience that they bring.
We also need to be wary of the impact any change might bring to our working culture and how we embody the principle of being self-regulating. In this House, I believe it is possible for fairness, courtesy and inclusion to animate even the most robust moments in the handling of Oral Questions, which we saw prior to the introduction of speakers’ lists.
Though no Bishop serves on the Procedure and Privileges Committee, I can say with confidence that, if invited, one of us would gladly take part and wish to contribute to its work. I am grateful to the committee for this report, which suggests removing barriers to participation in some key respects. Keeping some aspects of the hybrid House in place to help our colleagues with disabilities take a more active part is a very welcome step indeed, as is the end of in-person queuing outside the Table Office for putting Oral Questions, which has prevented many of us finding space on the Order Paper. I also welcome the decision to retain Questions for Short Debate.
For those of us who attend less frequently the opportunity to vote remotely has been an incentive to pay much more detailed attention to the business of the House, so the move away from that is not entirely positive. However, I welcome the transition to voting here by electronic means. It is something we have been doing for some time in the Church of England in the General Synod.
Where I have most concern—this comes back to the point about culture and self-regulation—is having speaking lists for Oral Questions every day. Prior to Covid, Oral Questions so often revealed, at their best, the forensic, persistent and responsive aspects of this House. It might not have been a perfectly regulated system, or to everyone’s taste, but there is a risk that, in streamlining our processes, we might trade away something central to the function of this place, which is about close and effective scrutiny of government. In this, as the noble Lord, Lord Cormack, said, spontaneity is an important element. Many of your Lordships will understand when I say that when the spirit moves, it does not always give two days’ working notice.
Therefore, I welcome the amendment from the noble Lord, Lord Cormack, on speakers’ lists. I hope we can agree an extension to a review of this, so that more consultation with Members can take place. I also welcome the comments from the noble Lord, Lord Grocott, about not putting the cart before the horse, which is perhaps a polite way of interpreting his comments. I hope that the cumulative effect of reforms, as we now return from the Covid arrangements, will ensure that they are not simply playing to the needs of business managers and for the benefit of the Government —which, again, the noble Lord, Lord Grocott drew our attention to.
I find it difficult to support the amendment from the noble Lord, Lord Balfe, where I fear there could be unhelpful politicisation of the Speaker’s role. However, I welcome the comments made by the noble Lord, Lord Adonis, in his amendment. Apart from the question about Monday, I think that the earlier starting times are something we would welcome.
Lord Brown of Eaton-under-Heywood (CB)
My Lord, I hope not to detain your Lordships for very long. Largely, I support the proposals in the main Motion.
There is really only one point on which I want to speak, which arises under chapter 2 on page 8 of the report: the interim option of voting using PeerHub. In my view, this is clearly a sensible option to allow us to continue voting by PeerHub until the technology is in place to enable us to move, as is planned, to swipe cards. I also support the proposal that to vote by PeerHub the Member should have to be on the Parliamentary Estate, which I hope includes Millbank so that those such as the noble Baroness, Lady Brinton, can continue to vote. Among the benefits, I hope, of being on the estate is that it may reduce the number of occasions when Members get in a muddle and misunderstand precisely what they are voting for, and, as a result, vote the wrong way, contrary to what they intended. One knows of several cases, in recent times, where that has happened.
My central point, however, is that there is a real problem—and to my mind little or no advantage—in stipulating not only that the Member must be on the estate but that he or she must also be in “a place of work”. That expression is not defined. To my mind, it is incapable of being given a useful definition in this context. What is intended to be encompassed? What is intended to be excluded and why? Clearly, it has to include places such as the Library, Lobbies, the Royal Gallery and so forth, where Members actually often work at desks. Presumably it would, and should, include corridors and other common space where Members meet and discuss parliamentary business and so forth.
I have heard it suggested that the reason for including this requirement is to safeguard the House from possible reputational damage if a Member were to vote by PeerHub in restaurants or bars, but work may very well be done even there. I have written speeches in the Bishops’ Bar myself. In any event, the most that could be required would be that the Member briefly wanders into the corridor in order to press a button. Who would be advantaged by that? Because there is so little point in excluding places of refreshment—and if it were necessary it could be done explicitly—it is difficult to give any cogent definition of what constitutes a place of work.
I am on the Conduct Committee, under the excellent chairmanship of the noble and learned Lord, Lord Mance. For some years before that, I had the honour of chairing the Sub-Committee on Lords’ Conduct. It is against that background that I am troubled by the veiled threat underlying this additional requirement. In this context, we are reminded of our obligation to act always on our personal honour, but it seems wrong to threaten a breach of the code without a clear, positive idea of just where we are allowed to vote and where we are not. This provision does nothing to advance Members’ faith and confidence in the disciplinary process and the concept of personal honour. If anything, it risks bringing that out of favour.
We would never allow this degree of imprecision, this manifest uncertainty, if we were scrutinising legislation, so I suggest we should not do so here either. I invite the Senior Deputy Speaker, when he winds up, to say it that is only if a Member is in a place of refreshment on the estate—if it is thought necessary to exclude that —that they cannot properly confirm, when voting, that they are at a place of work on the estate.
Lord Tyler (LD) [V]
My Lords, tempting as it is to dive straight into the minutiae of the committee’s report and the associated Motions, I will spend my allotted time on the wider issues facing your Lordships’ House. What is the context in which we are taking these decisions? There are two crucial issues we have to address before we get too absorbed in the detail.
First, it is not good enough simply to revert to the way we operated pre-pandemic. We were not doing a perfect job then and pretending that we were, and trying to repeat the way we operated, will not be good enough. We have a chance to do better. I will look in a little detail at one area crying out for improvement, in a moment.
Secondly, we would be foolish and myopic not to acknowledge, and welcome, the notable silver linings there have been to the awful clouds of Covid. Most significantly, the House has found new ways to communicate, engage and listen, thanks to the remarkable efforts of all those who have helped us develop technical solutions to the problems we did not have 18 months ago—as several Members have referred to. This is so obvious that I do not need to say much more on that score, but it is important that we recognise that the recommendations before us are clearly transitory, cautiously tentative and in no way future-proofed for the further technical evolution that may take place. Perhaps we will have to wait for the full restoration and renewal programme to roll out before we can begin to appreciate the potential improvement in the way that the whole of Parliament can work.
Meanwhile, there are specific issues that were not addressed effectively before the pandemic and which our current ongoing review should address. In the interests of brevity, I will concentrate on the scrutiny of secondary legislation. I know from personal experience how effective the Delegated Powers and Regulatory Reform and Secondary Legislation Scrutiny Committees are and, equally, how relatively weak and haphazard the Commons system is. But that is not where the problem lies. Despite all the meticulous examination and advice from the DPRRC and SLSC, a farcical false choice faces the House as a whole, bringing the whole process into disrepute. The current options are to approve an SI without incorporating the necessary improvements recommended by those committee colleagues, on the one hand, or to refuse point blank to do so, on the other. As a result, we hardly ever do the latter, and have to fall back on pathetic regret Motions, which Ministers blithely ignore.
Ever since the report of the 2006 Joint Committee on Conventions, whose recommendations both Houses approved in toto, there has been pressure to find more practical and positive ways forward. Should there be a middle way? Should we have an amendment possibility for SIs? Should we have a specified delay of implementation while Ministers have to consider amendment? Should we be able to have a Motion that sets out reservations and invites the Minister to reconsider, or some mixture of those alternatives? I know that the Hansard Society, the Institute for Government and the UCL Constitution Unit have been thinking through possible improvements. We should invite them to advise us, as we go forward.
Meanwhile, tinkering is not enough. Extending Grand Committee sittings from four hours to five, as suggested by the report before us today, is surely pointless if the outcome of the SI debates itself remains pointless. It is also true that the Commons would naturally need the same alterative processes. With secondary legislation, we are not in competition with them, since the proposal comes to each House directly from the Government. This is not intra-parliamentary, but a direct exchange between the Executive and the legislature. What is certain is that the experience of the last 18 months means that we cannot simply revert to previous practice.
In the 2006 committee, I recall with enthusiasm the vigorous defence of your Lordships’ House to exercise its right—indeed, responsibility—to refuse to accept inadequate SIs, notably then from the noble Lord, Lord Strathclyde, Leader of the Conservative Opposition. The clear theme was to assert that there was no point in having a second Chamber if it could not occasionally say no. I wish he had been so forthright when we were faced with clearly inappropriate secondary legislation, under both Covid and Brexit, in more recent months.
I am struck by the extent to which Members of both Houses seem to have become conditioned to accept this major fault in our scrutiny system. MPs and Peers who have arrived since December 2019 may think that this is both normal and immutable. They have known nothing else. Certainly, Henry VIII powers seem to have become dangerously habit-forming for Ministers, and all too many scrutineers, in either House, may have succumbed to that addiction too. The Leader of the House implicitly acknowledged this today.
The failure of Parliament to do its duty with the hugely significant Brexit and Covid secondary legislation, under the inevitably difficult constraints of the last 18 months, is just one of the lessons to be learned. But hoping to revert to the previous system would be insufficient and a clear dereliction of duty. There is no room for complacency. I hope all concerned acknowledge that today’s Motions, and the debate on them, comprise only a temporary and limited step towards more effective analysis of our shortcomings and opportunities for improvement.
Lord Strathclyde (Con)
My Lords, I join all those, especially the Leader of the House, who gave fulsome congratulations to the House authorities, IT department and the leadership of the House itself, who effectively put in all the changes to this House since March 2020.
Having said that, and nothing I say takes away from it, the hybrid House we have at the moment is considerably worse than the House we had before. There is a matter of process and essential principle in this, which the committee report we are now discussing has avoided; namely, that when emergency measures were introduced with minimum debate, for reasons we all understand, the first job of the Procedure Committee should have been to say that, when the House returns in September, all the emergency measures will be dumped and we will go back to where we were.
That does not mean that there is no case for, for instance, tabling Questions or amendments electronically —of course there is—but it would be better if the committee were to start the process of change, which many Peers have discussed, by making the individual case and therefore having a debate. The noble Lord, Lord Adonis, has a perfect example of that: sitting times is a very good question, but he forgot to mention the role of Ministers. We rely on Government Ministers being well briefed and understanding the questions they are dealing with. The fact is that, if we sat very much sooner than we do, they would not have the opportunity to be briefed or carry out their job. The noble Lord was a distinguished Secretary of State in the House of Lords, which is something we all support. I hope he agrees that Ministers play an important role in this House and that we need to give them time.
The noble Lord, Lord Hennessy, used to talk about the “emotional geography” of the House. It is hard to define, but we know it when we feel it: that sense that we have gone on for too long, a sense that we should not be talking or a desire to have one speaker rather than another. These are important matters and we should not lose sight of what we are all here to do: to hold the Government to account, to provide scrutiny and revision of legislation in detail, and to hold general debates on which Members of this House are particularly expert.
The main issue with this report is on Oral Questions. Here, I have to agree with my noble friend Lord Cormack. First, there is the question of timing: 40 minutes. It is not so long ago that Lord Williams of Mostyn, a very distinguished Leader of this House—I think he may have been noble and learned—introduced in a Leader’s Group the idea of having five Questions in 40 minutes. It seemed like a good idea at the time but was an unmitigated disaster. We dropped it after a bit because the House does not, or did not then, have the patience to continue Questions much beyond 30 minutes. The House that I joined originally had only 20 minutes for Questions, which was far better. This is an example of where less is more.
Secondly, there is the question of lists. Imagine a situation where we all come back in September, the House is full and the Back-Benchers suddenly realise that they are here not as participants but as spectators because the list had been decided days ago. I take nothing away from what my noble friend Lord Cormack said but I really hope that the Senior Deputy Speaker will reflect on it again.
Thirdly, the noble Baroness, Lady Brinton, spoke extremely effectively about those in wheelchairs. More thought needs to be given to that process. At Question Time, the House is very good at picking up Lord Bishops and making sure that they speak; it is perhaps true that people in wheelchairs do not catch the eye of the Front-Benchers or the Back-Benchers as much as they should.
My final point is on PNQs. I understand why the Lord Speaker and his predecessor wanted to have more PNQs but, now that the emergency has gone, when we come back in September, please can we go back to the normal practice of having very few PNQs? After all, what is the difference between a PNQ and an Urgent Question? We already have provision for Urgent Questions. PNQs should be reserved for rare and special occasions, often affecting your Lordships’ House, rather than on general matters.
Lord McConnell of Glenscorrodale (Lab)
My Lords, it is a pleasure to follow the noble Lord, Lord Strathclyde. I echo entirely his endorsement of the various thanks that were spoken so well by the Leader at the beginning of this debate.
I have attended the House in person pretty consistently since early June last year. Having been a strong advocate for a full lockdown in early March, I made a conscious decision that, if people were having to work in shops, on public transport, in schools, in hospitals and in health services, if possible—and if willing—Members of Parliament should be in attendance in the Chamber. I have done that consistently over the past 13 months, so I warmly welcome the fact that the House will return in full in September. I strongly support the principle that, apart from for those Members who are exempt, voting should take place on the Parliamentary Estate. That is right for the second Chamber of the United Kingdom Parliament, and will enhance our business and reputation.
However, I have some concerns about the proposals before us today. Last week, in the opinion poll—as it has been described—on the future of speaking lists, I reluctantly voted in favour of continuing with them. I was a Member of the Scottish Parliament from when it gained its full legislative responsibility on 1 July 1999. One of the mistakes that was made early on in the Scottish Parliament at Holyrood was instituting a system of speaking lists for Questions to Ministers. I tried to change it after I became First Minister; ever since, I have advocated for change when I have occasionally had the chance to speak about it. It did not just take the spontaneity away from the questioning of Ministers; it constantly let Ministers off the hook and reduced accountability rather than enhancing it. This regulation of Questions also made the whole session significantly less interesting for members of the public, whether they were in the gallery or watching through the media. It was a mistake in Holyrood and it would be a mistake to continue with this system indefinitely here.
However, I voted for it because I support the proposal from the noble Lord, Lord Balfe, in principle. As the noble and learned Lord, Lord Mackay of Clashfern, explained, having a list that is then enhanced by the occasional spontaneous question to follow up on a non-answer would be worth trying in your Lordships’ House in those circumstances. I hope that the Procedure Committee will continue to discuss this and not simply close off any further review as a result of the opinion poll that took place last Monday.
I also have some sympathy with the proposals from my noble friend Lord Adonis on starting times. I would vote without hesitation for earlier starting times—probably even earlier than my noble friend is proposing—for the House on Tuesdays and Wednesdays. The leaders are aware of this but I was dismayed last year when the decision was made, for what I understand were technical and practical reasons, to move the starting time of the House on Mondays to an earlier time. At that time, because of the number of trains and other forms of transport that were available—not just from where I live in Stirling but from many miles north of that and from Northern Ireland too—some Members were not able to be here at 1 pm on a Monday. It was physically impossible for them, as it was for me and many other noble Lords who were further away and were therefore unable even to apply to be on the speakers’ list for a Question for the Monday 1 pm session.
I do not think that I will vote for my noble friend Lord Adonis’s amendment today but I implore the Procedure Committee and those responsible to look at this issue. It is possible to move the starting times further forward on Tuesdays and Wednesdays, but I want the Procedure Committee and the other administrative committees of this House to take more account of the fact that many of us do not live in the metropolitan area around London. They need to take account of that in their decision-making and remember it, because participation in this House should be based on the principle of equality for all Members, with all Members able to take part on the same basis. We are rightly making provision for that today in terms of those Members who have long-term disabilities, but we should also take into account those who live far away. This should be true in relation to allowances as well.
I will not divide the House on the fourth Motion in front of us and I will not speak for long about it, but we have shown over the past 15 months that we can amend the allowances system when there is an absolutely proper need to make a change. It is fundamentally wrong that this House continues with an allowances system that, since 2011, has resulted in those Members who have property in London and the surrounding area and are therefore able to commute into London benefiting to the tune of nearly £300,000. Before 2011, the daily allowance was £86.50. It was changed overnight to £300. In general, the allowances that could be claimed by Members who lived outwith London, including the overnight allowance, were reduced by £34.50. This discrimination has now been taking place for a full decade. It is fundamentally wrong. It discriminates institutionally against Members who do not have property in London. It is time to change it. This Motion reinstitutes the position as it was before, builds in the annual uprating and does not make the change necessary to make this House equal. It is time that it did.
Lord Berkeley of Knighton (CB) [V]
My Lords, there are many ways in which this hybrid way of working allows great freedom—possibly too much freedom —where people can vote from their beds. However, importantly, it allows participation from those who are physically limited, whether they are disabled or find it hard to travel, so I am very pleased that the House authorities are enacting new roles for those limited in their movement. I am sure that the noble Lord, Lord Shinkwin, who follows me, will speak about this.
I commend much of the speech made by the Leader of the House. She is an excellent figurehead at the prow of our vessel. As a broadcaster, I congratulate the broad- cast team, who allow me, in mid-Wales, to speak today. Given that they have enabled me to speak like this, why does the hybrid system somehow leave me so profoundly dissatisfied? Why do I feel that this way of contributing remotely is indeed remote? I sat in your Lordships’ Chamber last week and still felt that, for all its technical accomplishment, the proceedings were, by virtue of disembodied screens, oddly removed, so I absolutely concur with a return in early September to where we were.
I was discussing these feelings with a senior colleague in the Lords, who summed it up perfectly when he simply asked me: “Should we be considering our convenience or how best to scrutinise legislation and hold the Government to account?” That is the vital point. It brings me neatly to the importance of our physical presence in Westminster and our ability to intervene, and so to Oral Questions and speakers’ lists. My concern is that, as we have heard, the inability to intervene can become stultifying. Like the noble Lord, Lord Cormack, I used to enjoy sitting in the Chamber for Oral Questions. It was too rowdy sometimes, but now if I heard something that seemed ill informed, I could no longer seek amplification or correction. We have heard various ideas on this, which is why this debate has been extremely useful.
The speakers’ lists preclude spontaneous intervention and correction. Furthermore, the increasing habit of Ministers to prepare answers to solicited questions can sometimes be sensible, for instance when complicated figures are needed, but on other occasions has all too often led to a stock reply that does not really answer the point and, as I just said, there is no way of pushing for more information. We should be here—or rather, there—to listen and then to vote.
I endorse the points made by the noble Lord, Lord Grocott. I am one of those who has another job—two, in fact—so I am a little nervous of the timetable suggestions of the noble Lord, Lord Adonis, along the lines expressed by the noble and learned Lord, Lord Mackay of Clashfern. Yet I feel that this is selfish in some ways and that I should simply practise what I preach and bow to the wishes of the House on this.
Lord Shinkwin (Con)
My Lords, it is a pleasure to follow the noble Lord, Lord Berkeley of Knighton. I will confine my remarks to the impact of the Select Committee’s proposals relating to participation by disabled Members of your Lordships’ House.
For me, these proposals are best summed up by the assertion in paragraph 45 of the Select Committee’s report that:
“The contribution disabled members make to the House’s debates and decisions is integral to the work of the House”.
The measures proposed will, as my noble friend the Leader of the House made clear, give effect to that very welcome affirmation. It is an affirmation not just of the disabled Members of your Lordships’ House but of the collective expertise and experience that, together, the House brings to the legislative and scrutiny process of this diverse United Kingdom.
I agree with those noble Lords who rightly feel passionate about the ability of your Lordships’ House to subject the Government to effective scrutiny, which is of course essential for the exercise of parliamentary democracy. It is no less essential that we recognise that if it is to the exclusion of diversity—in this case disability—scrutiny is less effective because it fails to draw on the breadth of lived experience of all noble Lords to which my noble and learned friend Lord Mackay of Clashfern alluded. For a House which prides itself on that unique combination of expertise and experience not to accommodate the needs of its disabled Members, for example, to be able to contribute remotely, particularly for disability-related reasons, does not make sense.
Like the noble Baroness, Lady Brinton, I was dismayed to hear some of the comments made when the House last debated these issues. While this may not have been the intention, as a disabled Member of the House, I was left feeling not only that I and other disabled Members did not add value to our proceedings and debates but that the very validity of our contributions was in question.
We are fortunate to command a wealth of wisdom because of the range of expertise and experience that other noble Lords have referred to. It is also an inescapable fact that many noble Lords are wealthy to a disproportionate extent relative to the general population. I begrudge no one their wealth, but with wealth comes responsibility—a responsibility to ensure that it cannot be used as a stick with which our detractors can beat your Lordships’ House. We urgently need to become more representative and more diverse, especially in relation to disability, because diversity is our best defence against such attacks. The measures under consideration today, and the way they have been developed in meaningful consultation with disabled Members, recognise that and enable it to happen.
I close with this observation. It gives me no pleasure to say that the way in which we are addressing this need, particularly regarding how disabled Members have been listened to and meaningfully involved in developing these proposals, is in marked contrast to the unfortunate way in which I fear that the DWP has traduced the Prime Minister’s promise of
“the most ambitious and transformative disability plan in a generation”
to mere rhetoric. The cynicism with which the DWP has treated disabled people in the development of the national disability strategy, which is apparently due to be bounced on us next week, is staggering. I thank the Lord Speaker, the Clerk of the Parliaments and the Procedure and Privileges Committee for taking a very different approach. I urge noble Lords to support these proposals.
Baroness Hamwee (LD) [V]
My Lords, I suspect that many of us are largely unaware of the thought and work that went into the adaptation, so I too add my thanks. I appreciate that there is no satisfying everyone, so thanks are also due to those who have been wrestling with these proposals. I very much support what my noble friend Lady Brinton had to say and what I think that my noble friend Lady Tyler of Enfield will say, and we have just heard a powerful speech from the noble Lord, Lord Shinkwin.
I am sympathetic to the points made by the noble Lord, Lord Adonis, for the reasons he gave and because what we do should not be a test of stamina. Sitting at 10 pm or 11 pm is better than the 2 am sessions to which I became accustomed when I was first a Member of your Lordships’ House, but it should not be any indication of being feeble to admit that one probably does one’s best work earlier in the day. I admire those who think that they can be as productive very late at night as earlier.
However, I really want to refer to a couple of issues which I appreciate are relatively narrow. The first is on groupings of amendments, or rather their degrouping. I do not disagree with the recommendation that degrouping should be discouraged after publication of the groupings, provided that “discouraged” is applied to mean just that. I well understand the tangles one can get into if one’s notes have to be reorganised at the last minute. I find it as difficult as anyone when we receive briefings which can be described only as arriving after the last minute. But just occasionally, it becomes clear during debate early on a Bill that an issue will get a full airing only if it is considered separately, so “discouraged” should not mean precluded. I make this point because there are occasions—not today—when an advisory speaking time is treated as if it is a hard stop or firm cut-off.
More importantly, perhaps, I also want to mention two aspects of voting mechanisms. As we have heard, there is a recommendation that, in the interim, PeerHub should be used in “a place of work” on the estate. We should take very serious note of so senior a lawyer as the noble and learned Lord, Lord Brown, and his observation that the term is incapable of construction. Every part of the estate is used as a place of work, even if that is not its primary function. We are so short of places to meet people who want to discuss a current issue, or other Members to discuss legislation—there are any number of work-related reasons. Because we are short of places to work, we make use of the refreshment facilities. Those of us who have desks are often in rooms shared with several other people where there is no space for a visitor’s chair, quite apart from the disturbance that would be caused to colleagues if we had meetings there. A meeting in a place where coffee is served may be accompanied by a cup of coffee, but that is a courtesy and not the purpose of the get-together.
If I may briefly look further ahead, if we are to use pass readers—I have some reservations about that, given that we have PeerHub, but perhaps that is for another day—I hope they will be readily accessible. If they are placed only around the Chamber, one wonders about the benefit. For instance, Members of the House come and go from Portcullis House and there are often votes during meetings there, which can be very disruptive and physically difficult for a number of noble Lords. If we have to have that new technology, let us make it work for us to the maximum. That applies to the immediate issue and for the future.
Lord Rooker (Lab) [V]
My Lords, I begin with my thanks all round to everybody who has been involved in making this place work. I have had 12 months of the hybrid system, not 16, and I have had massive help in operating remotely. In fact, other than a year ago when I had to come in person to be sworn in—because that is the only way you can do it—I think I have turned up on four or five occasions in the last couple of months. I found the Chamber eerie and uncomfortable in some ways, yet I love the Chamber and want to get it back as near to normal as possible as quickly as possible. In fact, other than on the merchant shipping Motion later on, this will probably be my last Zoom contribution.
In some ways, I much agree on the oral ballots. After I became a Back-Bencher and realised how to get a Question tabled, on occasion I spent a couple or three hours on that because, once I had determined that I wanted a date, the only way I could guarantee to get it was to turn up outside the office with books and papers by about 10 am or 11 am and sit there until 2 pm. That way, I would get my date. In the ballots I have not had much trouble getting an Oral Question—although it is true that I put in one Question on life expectancy for 23 consecutive days before it came out in the ballot. Nevertheless, it came out.
On the lists for Questions issue, by the way, I did not vote because I refused to accept the stark conditions of one or the other. I had said so in the debate as well, but decided that I would not vote. If the amendments today are pushed to a vote, I will vote for all three of them because I agree with bits of them all. I am not saying I agree with every part of them, but the noble Lord, Lord Balfe, certainly has my support.
The possibility of instant reaction in the House is pretty crucial, but not under the old bearpit system. It was a bearpit and, while I will not embarrass them by naming them, we have some Members with exceptionally foghorn voices who were verbal bullies at getting their way. I used to notice this because, at one time when I was a Minister, I served as deputy to my noble friend Lady Amos for two years. I was then saddled—that was the word, in a way—with the regulation of Question Time when things went wrong. It was not an easy time, but the fact is that it was a bearpit. Many people were put off, so they can see the benefit of the speaker system, but a complete speaker system is controlled by the Front Bench. I agree with my noble friend Lord Grocott on this: the Front Benches on both sides should not really be involved in choosing the questioners.
The noble Lord, Lord Strathclyde, made a very fair point: are Members going to come back in their large numbers in September as participants or spectators? I know which I would prefer: as participants. Coming back just to watch people on speakers’ lists is not really effective, although it would be cushy for the Minister. To go back to my time as a Minister, it was easy to work out who the questioners would be. You could more or less guess with your staff the issues they would raise, because you would cross-check what they had done in that field in other areas, including debates and other Questions. It should not be like that. My view on the speakers is that it is probably impossible to have four on a list and maybe six chosen by the chair. I can see the impracticality of that. Nevertheless, there is merit in having a bit of precision to start with.
The right reverend Prelate made a point. I do not wish to be critical, but the Bishops are not in the same position as everybody else because, under the old bearpit system, the minute one of them stood up, everybody shouted “Bishop! Bishop!” and the right reverend Prelate got to speak. They did not really have to get involved in the bearpit; they just had to stand up.
Some issues need looking at again. I do not deny that I would prefer to avoid the bearpit but to have some precision. It is therefore about the chair, and the chair has to be trusted. I know people say, “You want to make this place like the House of Commons”. Well, in some ways, including in this respect, the House of Commons is better organised than we are; there are other aspects where we are better organised than the Commons. We do not have to mirror each other but, for heaven’s sake, if the Commons does something really well and it is organised with satisfactory conditions, we could adopt that here.
I know that we tried it in the past and had a vote, with people saying, “We’re self-regulating and don’t want to give the chair any powers”, but it is time to trust the chair. That would not put politics into the chair because we can all work it out: the chair will take advice—that is where the clerks are in the wrong place, of course, which is another issue of making the Lords like the Commons. The fact of the matter is that today’s debate is not an open and shut one. There will still have to be some flexibility on changes after we get back in September. We cannot carry on as did.
Baroness Jones of Moulsecoomb (GP)
My Lords, it is a pleasure to be involved in this debate, but I am going to struggle not to argue with all the previous speakers I have disagreed with.
On behalf of the Green group, I welcome the report from the Procedure and Privileges Committee and its proposals, and I give a huge thank you to the staff who have been able to keep us going through the hybrid times. I am too short-sighted to see the clock up on the wall, so perhaps the Chief Whip can give me a signal when he is ready to stop me talking—at five minutes, not before.
While the Green Party would like to see the wholesale reform of parliamentary practice—not least the replacement of your Lordships’ House with an elected upper Chamber—we are happy that some of the best bits of the hybrid House are being retained. One of the issues is accessibility for people with disabilities, which is something that we have to take seriously; it is ridiculous that someone who cannot walk or cannot hear as well cannot participate as much as everyone else.
I am very pleased that electronic voting will continue. The old system of noble Lords shuffling through the corridors was ridiculous. What a waste of valuable time. Please do not tell me that there were lots of good conversations; I was there and I heard them. I hope that the Procedure Committee will continue to seek ways to improve the voting system so that we can become a more efficient and modern institution.
On the issue of interventions, the noble Lord, Lord Cormack, knows that I have a soft spot for him, unlike the noble Lord, Lord Adonis, for whom I do not have a soft spot, but in this case the noble Lord, Lord Adonis, is absolutely right. The noble Lord, Lord Cormack, calls him superficial but quite honestly, when he then defends starting late because it enables lunch with friends, he reaches heights of superficiality that no one else has so far.
I found the previous system of interventions very bullying. The right reverend Prelate described the spirit moving people. What spirit is that? The bullying spirit? The spirit that prevents women standing up because they feel threatened by the behaviour of the House? Having this system may not be ideal. I am slightly swayed towards the amendment from the noble Lord, Lord Balfe, which I was not before, by the comments from the noble Lord, Lord Grocott. It would be a fine system if one got on with the Lord Speaker, but one cannot guarantee that—I especially feel that I cannot guarantee it—so I might vote for that but I might not. I definitely will not vote for the amendment in the name of the noble Lord, Lord Cormack.
I hate to disagree with the noble and learned Lord, Lord Mackay of Clashfern, but he describes this as a “part-time House”—well, tell that to those of us who were here at 11.50 pm last night. For many of us it is a full-time job. Quite honestly, if other people have jobs that they have to go to, let them stay away. The rest of us will carry on scrutinising the Government, which I think we have done extremely well under the hybrid House system.
I have a speech prepared but I have not actually used any of it yet. We are losing an opportunity not to use more of the hybrid systems that we put in place. We have a chance to move on and not be—I was going to say “such dinosaurs”, but actually dinosaurs were incredibly successful for millions of years—so old-fashioned. There was nothing magical about the way the House was run before. We could take this opportunity to be more modern. It has happened in wider society that people are reluctant to go to their jobs in office buildings and so on. Why can we not reflect that and accept that remote voting and remote participation are part of what we do?
It is good that we are accommodating people with disabilities, but there are people who have other needs and demands on them—for example, caring responsibilities. There are people with partners or children who might perhaps benefit from being part of debates but cannot actually come into the House.
While we are thinking about modernising, we really should put in processes for maternity and paternity leave—they have sort of done that in the other House but not properly—and breastfeeding. We really ought to think about these issues. Greens lead the way, let us not forget; your Lordships are all 40 years behind the Green Party at the moment, particularly on the other side of the Chamber. The Chief Whip is signalling me to stop. Let us think about issues that are not the issue of individuals so that they can be a general thought, and let us make sure that we are a little more progressive than we have been.
I have said before that I will not take interventions from now on. I think they are rude and shows a loss of self-control by the people who get up and shout. We have always had the option of coming in after the Minister, and that could be retained. You need not lose your temper, bluster and shout someone down to get in and make an intervention; you can just do it in a civilised way.
The Earl of Clancarty (CB)
My Lords, I agree with the noble Lord, Lord Adonis, on a start time for the House of 1 pm, for all the reasons that he has laid out. The last year has suggested, to me at least, that 1 pm on a Monday is a fairly civilised—one might say laid- back—time to start, but in a good way, giving Members enough time to get here if they have far to travel and carry out any morning business. However, a 2.30 pm start time now seems positively lazy. I support the noble Lord’s amendment and will vote for it.
On the issue of a speakers list for Oral Questions, I understand the arguments for it, but I support the amendment by the noble Lord, Lord Cormack. The House may be packed at Question Time at first but I believe that, following the lifting of restrictions, people would drift away. Previously there was always the possibility that anyone could intervene on Oral Questions, and therefore it has been a time that involved everyone in the House. In the end it depends on what the House wants, of course, but we should be clear that Question Time would not be the exciting focus of the day any more if it remained in the current form. Instead it would be—as indeed it already is—more akin to a procession of Written Questions and Written Answers spoken out loud than a vital conversation.
Most of us on speakers’ lists have had emails from the relevant department asking what our question is. Pre-Covid, of course, those emails were sent only to the original questioner. Those who would benefit most are Ministers, who would have significantly greater control over sessions. To me, that does not feel properly like holding a Government to account. However, I hear the suggestions of the noble and learned Lord, Lord Mackay of Clashfern, and the noble Lord, Lord McConnell, for additional supplementaries, although that might make Question Time rather complicated.
The other issue with speakers’ lists is that there is quite a lot of wasted effort involved, not least by the one, two or more speakers who drop off the list because of a lack of time. Even if they get in, if they are some way down the list—I know from talking to colleagues that this is not an uncommon practice—they might prepare a number of questions in addition to the one that they really wanted to ask, since a repetition of that question may not feel appropriate.
That does not mean that the House could not be more disciplined in the way that it has traditionally operated at Question Time. The practice of going clockwise around the House, with a question from each grouping when volunteered, worked well until it got ignored. If we returned to the previous system, there is no reason why that practice could not be reaffirmed, though it would need to be spelled out to all Members as the accepted way of doing things.
With regard to the hybrid House, it is right that disabled Members can still participate virtually and vote remotely. I am glad that we are continuing in some form with electronic voting. One thing to consider is that electronic voting would allow for abstentions to be recorded. Whether they are party abstentions announced or not announced by Front-Bench spokespeople or decisions made by individual Members, they are a fact. They are real decisions, and Members in the Chamber at the time when a vote takes place will be aware of these decisions. It seems wholly wrong to me that something as fundamental as the way in which Members vote should be privileged information. The public have a right to know. Most other modern parliaments record abstentions, and we should do the same.
Baroness Goudie (Lab) [V]
My Lords, I welcome the opportunity to discuss the commission’s proposal for procedures for the workings of the House of Lords from 6 September. We, as a Government and a country, are moving forward as global Britain with modern ideas for the future.
I have enjoyed working with the hybrid system. I have had no difficulties and any small problems were quickly remedied. The technical team is excellent. What is the rush for us to come back fully in September? Many companies, whether FTSE 100, FTSE 350 or large family firms, are offering their staff to come back in their own way or not to come back at all. I am not suggesting that, however.
The Prime Minister recently said:
“We’re removing the Government instruction to work from home where you can but we don’t expect that the whole country will return to their desk as one … We’re setting out guidance for business for a gradual return to work”.
This is why I question yet again the rush for us to come back.
Further, what does the committee mean by “disability”? A number of members of staff and many Members of this House are extremely vulnerable or having treatment, or have compromised immune systems. The Prime Minister urged us to think of others and to consider the risk. I ask noble Lords to consider the risk to ourselves and to the staff and gradually, over the next 12 months, to keep the hybrid model.
This model could be improved even further. The wi-fi on the estate is not up to speed or to the standard of many firms or other institutions. Will we invest more in wi-fi and further connections to the estate? In certain parts of the estate the wi-fi does not work at all. Trying to vote on your phone in the House is impossible. It is impossible to make a phone call. Wi-fi may work for a small number of colleagues, but we know from experience that the function declines with more people in. What is being done to improve it? We have been asking for a number of years but nothing has happened.
Card readers do not always function well when it comes to opening doors. They need to be looked at again and a fuller report given.
How are we going to circulate and filter the air in the Chamber, Committee Rooms and other rooms? Will further work be done on that? It is almost impossible to open windows. Is the House being fitted with proper air ducts to ensure safety for Members, staff and those who come in to give evidence? Social distancing should still be paramount, in particular in the Chamber and Committee Rooms. I can see Members looking very bored with this, but we have to do it. Social distancing is vital, as we know.
Experts warn of the inherent risks of rushing back. I will vote this afternoon in favour of the amendment moved by my noble friend Lord Adonis about starting earlier. We have to give further consideration to our working practices and we should not rush back on 6 September and throw everything away.
The Deputy Speaker (Lord Duncan of Springbank) (Con)
The noble Viscount, Lord Trenchard, has scratched, so I call the noble Lord, Lord Elder.
Lord Elder (Lab)
My Lords, I will make three points. First, I strongly support the amendment in the name of the noble Lord, Lord Cormack, and I am hugely sympathetic to the proposal put forward by my noble friend Lord Adonis. We need a degree of flexibility. I am not sure that it is entirely worked out, but an earlier start on Tuesday and Wednesday would seem sensible and rational, and could bring a good deal of scope for the proceedings of the House.
Secondly, I will say something about committees. It is not clear to me what the outcome of this is. Most people seem to think that Zoom has worked very well in committees. I beg to differ. The committees I have been on since I came into the House worked most effectively when there was a lot of discussion between Members outside the committee. Chatting to people in the quarter of an hour before the committee started was enormously useful. Going for a coffee with someone afterwards was enormously useful to see whether edges could be smoothed over and whether agreement could be reached. Zooming does not do that. It seems to me that Zoom has put a great deal more power and control in the hands of the chair and the secretary, and diminished the contribution of Members. We should look very carefully at what we are doing about committees. Committees were one of the strongest elements of the House and that is slipping away from us, in the way that the views of some committees are now being largely dismissed. We must be very careful where we go on this.
Thirdly, I back very strongly the points made by my noble friend Lord McConnell. Ten years ago, before the new system of allowances was introduced, the daily allowance for someone staying outside London was higher in cash terms than it is now. For people in London it is about twice what it was in cash terms. The effect has been to make a tremendous difference to the importance of London and the south-east as there is now a disincentive for people from far away to come here.
We must find a way to have something closer to equality. My way of doing that would be to say, in exactly the same way as we do with travel, “Claim for accommodation in London and produce receipts.” It would put a little more work on the accountants department but it would get us closer to equality. At the moment, if you live in London and have no additional expenses the daily allowance goes straight into your bank account, but if you live outside London you are paying for accommodation, travel—you do not get free travel, even if you are of the age at which you get it in this part of the country—and all your food: you have to eat out, as you are not able to go through to the kitchen and make yourself breakfast. That is the kind of equality that you get—if I may say so—in Animal Farm: all Peers are created equal, but some, on expenses, are much more equal than others. We must try to do something about that as a matter of urgency.
Baroness Deech (CB) [V]
I am sorry to have to disagree with the noble Lord, Lord Cormack, who is normally a fount of wisdom, but I associate myself with his remarks about the suspension, or part suspension, of some Members because they did not take the Valuing Everyone course. That course is insultingly inappropriate. I have taken it twice. The entire message could be put on a postcard. The Procedure and Privileges Committee’s report mounts a rather feeble defence of it, which I do not accept.
I also associate myself with the remarks of the noble Lord, Lord Elder. Londoners do not know how much it costs to rent even a modest hotel room in London if one comes from outside London.
I also thank the staff and others who have achieved a miraculous adaptation of our debates and committee meetings to the virtual platform. Not only have there been very few glitches, but they dealt patiently and courteously with Peers’ lack of expertise and they have made the word “unmute” as familiar a word in our proceedings as “order” used to be. The effect of our adaptation to lockdown has been to precipitate the workings of this House much further into the 21st century. Indeed, given the snail-like pace of the restoration and renewal building programme, we will soon have modern practices in a building scarcely able to accommodate them. Having chaired a review of the law relating to disabled people in 2016, I would have appreciated then the ability for our disabled witnesses to appear virtually and to have been spared the journey and, in some cases, the challenges of access and speaking. Future committee witnesses will be greatly advantaged and their scope widened by the ability to give evidence remotely.
I intend to address Questions. Certainly allocation by ballot is much to be preferred to the queue with sandwiches outside the Table Office. Speakers’ lists are also an improvement on the previous situation when those with the loudest voices and thickest skins prevailed, and quite frequently precious minutes were wasted in the embarrassing scenario of several noble Lords shouting to attract simultaneously until the Leader of the House sorted it out. It was also hard to see why we all had to give way to the right reverend Prelates. A mixture of listed and spontaneous interventions is well worth considering. We should also get rid of the pointless “My Lords, I beg leave to ask the Question” et cetera and instead have the questioner voice the Question so that watchers and listeners know what it is.
The criteria that should apply to lists for Questions or, in the alternative, spontaneity are those that underlying the purpose of Question Time. In my view they are: holding the Government to account by compelling answers to questions and extracting commitments and dates; seeking information that is not otherwise forthcoming; allowing all Members of the House a chance to ask questions in pursuit of their interest, not just those best placed with Ministers; and injecting an element of surprise that forces Ministers to prepare for every possible question without knowing in advance who will question them or on what aspect.
Holding the Government to account is equally well achieved by lists, providing that the questioners are fairly chosen by the leaders of their groups. That choice, over which some may have doubts, is at least as fair as giving the Floor to the loudest interveners, often the same few people under the old system. Under both the old system and the speakers’ list system, Ministers can and do avoid answering the question directly and can be brought back to it by subsequent interveners, so 10 minutes per Question is welcome; one wishes it were longer. Seeking information is equally well achieved by either system, backed up by Questions for Written Answer.
Do all Members of the House get a look-in? My own calculations show that women Members have enjoyed 34% higher participation than before, even allowing for the extension to 10 minutes. It was not so much that women interveners were underrepresented numerically under the old system; it was more that the same few formidable women with the strongest voices and the least hesitancy dominated the women’s team. It is now more varied.
The element of surprise is lost in having a speakers’ list, or rather, it may be that the Minister’s team knows in advance or researches the particular angle a Member is likely to pursue. This is an even greater drawback if, as appears to be a growing practice, the Minister’s staff ask the Member in advance what they are going to ask. This practice should be discouraged. For that reason, were it practical, a slot or two reserved for interveners who have not signed up would be of benefit. Therefore, I see much in the amendment of the noble Lord, Lord Balfe.
Lord Davies of Gower (Con)
My Lords, I shall be fairly brief, but to the point. I very much look forward to your Lordships’ House returning to some normality in September. This has indeed been a difficult time, but I would like to heap as much praise as I possibly can on to all those behind the scenes who have allowed the House to continue to function so smoothly since the introduction of hybrid proceedings. I am in no doubt that much has been learned and that, in many respects, our working practices have moved forward in a very positive and modernising way from an IT perspective.
I do not intend to go through the Procedure and Privileges Committee report paragraph by paragraph, but I will make the following brief observations. On the issue of speakers’ lists for Questions, I was interested to see that a good majority of the House voted to retain such lists. There is no doubt in my mind that previously, the situation could be quite intimidating for some noble Lords. I note from the House of Lords Library paper that since changes were made to the way supplementary oral questions are selected during hybrid proceedings, more female Members are taking part. Since March 2020, the proportion of supplementary questions asked by female Members has been higher, on average, each month when compared to previous years. This must be a very positive move in the right direction. I therefore wholeheartedly support the recommendation that there should be speakers’ lists for normal and topical Oral Questions and Questions to Lords Ministers who are members of the Cabinet.
On the issue of time allocated to Oral Questions and Private Notice Questions, I again support the recommendation that total question time for normal and topical Oral Questions be 40 minutes, and that the time allocated to Lords Ministers who are full Cabinet members be 30 minutes.
When one finds oneself last on the list of speakers, it is particularly frustrating to have to miss out on participating due to other noble Lords having over- stretched the time limit on their question. I therefore wonder whether some sort of rigid cut-off mechanism could be introduced which would enable a fairer allocation of time for each question.
I look forward to the return of voting in person, an essential ingredient of procedures in the House—a point made well by my noble friend Lord Lamont, who argued against allowing Members to continue to vote remotely, saying that it enabled some Members to claim that they were participating without interacting meaningfully with the business in the Chamber—excepting, of course, the arrangements for disabled Members.
On start times, I cannot for the life of me see why we are proposing to start so late on a Monday, Tuesday and Wednesday. My personal preference is to keep the current hours. From a selfish point of view—and I know this applies to others—it would allow those of us who have to travel substantial distances to make our way home to our families without having to stay an extra evening in London. Without going into it, I share the view on expenses of the noble Lord, Lord Elder.
Save for the issues that I have mentioned, I largely welcome the report’s recommendations. I will certainly be supporting the amendments in the names of the noble Lord, Lord Adonis, and my noble friend Lord Balfe.
Baroness Fox of Buckley (Non-Afl)
My Lords, I came into this House during the hybrid measures, so for me, this has been normal. Despite the nightmare descriptions of bullying, bear-pit Question Time—although I am not sure why the noble Baroness, Lady Jones, thinks that women are always the victims of this—I do not want the hybrid House, however ingeniously conceived or executed by the wonderful staff, to ever become the new normal again, because it is bad for democratic accountability.
I have attended physically as much as possible. As I have been focusing on apprenticeships in preparation for the skills Bill, it has reminded me that no matter how much you study the theory or the rules, it is best to learn on the job. May I take this opportunity—it is cheating, I know—to say that as an apprentice Peer, I have made every mistake in the book? I have stood at the wrong times, faced the wrong way during Prayers, made Second Reading speeches in Committee, confused Committee stage with Report, missed my supplementary questions and voted against my intentions by pressing the incorrect button. I apologise, and noble Lords might think that I would be glad to cover my embarrassment by having a near-empty Chamber, but actually it was the graciousness of those physically here in person—Peers, clerks and doorkeepers—who took me to one side and gently corrected me, that helped me get the hang of it; slowly. My point is that through real-life interactions, you can learn the ropes. Zoom will never replace the pressure of human interactions or the importance of informal chats.
This is perhaps a clue as to why, if you want to encourage Valuing Everyone—or, indeed, anyone—mandating a tick-box online training course is a shoddy substitute for creating an offline culture of open discussions about difficult and challenging behaviour. By the way, whoever thought that the punishment for non-attendance of a course allegedly designed to improve relations with staff should be to ban those Peers from all face-to-face communications with the same staff perhaps needs to attend a course in valuing common sense. Crucially, the fact that the controversies about Valuing Everyone and the punitive and unfair responses to non-attendance have not been fully debated or argued about in this House feels like the epitome of what has been lacking here in recent months.
In a scathing article in the Times, Iain Martin wrote of a “ghost Parliament”. He quoted one MP who talked of Chambers “full of negative energy” or “drained of energy”. I agreed with the article’s critique that some were too keen to treat Parliament as a normal workplace and not keen enough, even now, to return to normal. If ever there was a good excuse for an “us versus them” rule exemption, surely it would have been to honour the public by ensuring scrutiny and pushback against the Government removing people’s liberties so easily. I therefore wish that the proceedings had been less hybrid and that these Chambers had been packed.
At the very time when the Executive needed to be prodded, probed and interrogated over the 457 statutory instruments controlling every aspect of public life, Parliament was reduced to stultifying and formulaic set speeches read out—and, yes, I am reading mine out; it is a bad habit—often non-sequiturs, with no ability to push each other for clarity or to dig deeply into Ministers’ answers or explanations. What has been lost is the meaningful, interactive spontaneity that the noble Lord, Lord Cormack, and so many other noble Lords have discussed. That has been a loss for democracy. In that, we need to change. Even now, I worry about a slothful return to spontaneity and normal. Should not these Benches be packed to the gunnels on 19 July, rather than waiting until September? Even in that last week, surely there are plenty of worrying developments that need our fullest attention, with renewed talk of vaccine certification via security data collection and surprise votes on mandatory vaccines for care workers.
Do we not need to be here—all of us—to hold the Government’s feet to the fire on all this? Surely, it would be a real show of leadership in encouraging a full-time return to work among the public if we led by example.
Finally, speaking of the public, I relish the return to the estate of the banished public. Both Houses need to feel the presence and pressure of hordes of lobbyists—not the paid variety but the constituents, lobbying MPs and Peers on matters of urgency, and the grass-roots activists denied the right to look parliamentarians in the eye and challenge them to account for decisions. I look forward to filling the place up with groups of sixth-formers, full of awkward-squad teenagers stroppily asking why the House of Lords should not be abolished —a fair enough question—and activists from across the country and across political divides demanding answers and actions. Without the public valuably putting both Houses under pressure, Parliament is denied its lifeblood and raison d’être. We owe it to the public to resume normal business as urgently as possible on their behalf.
Lord Davies of Brixton (Lab) [V]
My Lords, first, I support the amendment in the name of my noble friend Lord Adonis. I am also in favour of speakers’ lists for Questions, having discussed the matter with noble friends who have more experience than me. However, there are two other matters I want to raise: allowances and ballots for Oral Questions.
The issue of allowances is clearly germane to this debate. Whatever your view of remote participation and its effect on the work of the House, it has been of benefit by facilitating the participation of those who live some distance outside London. The return to the physical House will mean a big change for them, not least in the additional costs for accommodation that they will now have to bear. The unfortunate but inevitable effect is that it will limit their participation. The conclusion I draw, as argued forcefully by my noble friends Lord McConnell and Lord Elder, is that the current system of allowances needs to change to maintain the wider geographical participation that I am sure we all want to see. As someone who lives within walking distance of the House—or a short trip using my freedom pass —I have no personal interest in any change. I know nothing of how the present system is arrived at, although I appreciate the sensitivity of the issue. But, as a newcomer, it looks manifestly unfair. The return to physical sittings is the appropriate time for it to be reviewed. I am unclear whose responsibility this is, but I ask that the matter be given some genuine thought.
Then there is the issue of ballots for Oral Questions. I will focus on ballots for Oral Questions, but my remarks apply to all ballots. I am in favour of ballots rather than queues, but I suggest that the system of ballots needs to be improved. Virtually all the Members I have spoken to about the ballot system believe that they are discriminated against, even though the system is properly random. They feel that their Questions never get chosen, while others’ get chosen many times. This is inevitably determined in large part by how many Questions you ask, but the truth is that you can be randomly discriminated against. Luck may simply not be on your side. My suggestion is that in place of the present system, which is random selection with replacement, we move to random selection without replacement—at least for a specified period. In other words, those who get selected in one ballot will have less chance of being selected in those that follow. There are a number of ways by which this could be achieved, but at this stage I simply want the principle to be given some consideration.
Lord Robathan (Con)
I join others in congratulating the House authorities and all those involved in making this hybrid virtual Parliament work over the past 16 months. I also congratulate the leadership of the House. My noble friend the Leader of the House should take this as a compliment. She does not get many from me; I give her one—and others involved, as well.
These virtual hybrid sittings have been a lot better than nothing—they have allowed us to continue our work—but this has not been a parliamentary assembly. I agree with much that is in this report. I agree also with the noble Lord, Lord Grocott, who sadly is no longer in his place, on the business of opinion polls, which seem to me to be exactly the wrong way to go forward in the way we did. I note the lucidity of my noble and learned friend Lord Mackay. Some people say there should be a retirement age in this House; I do not agree. Should I be spared and get into my 90s, like my noble and learned friend, I hope I have some element of the lucidity that he showed in his excellent speech.
I turn to the delicate subject, which people are particularly unhappy to discuss, of exemptions for disabled people. I listened intently to my noble friend Lord Shinkwin, who obviously has a personal and very good understanding of this. I can see that we can do an awful lot better. I, too, appreciate the excellent contributions of some of the disabled Peers here, who add enormously to our diversity and help us understand. I have had four hip operations, which is quite a lot, but I am not disabled. While appreciating that—and I see that we can do better—I quote the noble Baroness, Lady Brinton, who said that the House authorities can help. I think the House authorities could probably help more. It is a question of looking at what help there can be. We should look again, for instance, at part 17 of the financial support document entitled Additional Financial Support Available to Members with a Disability. Of course, people who find it more difficult should have all the support they can. We should show all these people real respect. They make incredibly valuable contributions.
However, we should be cautious about how we view attendance. This is a parliamentary assembly—to take part, you need to assemble. It is about emotional geography, which my noble friend Lord Strathclyde referred to, apparently quoting the noble Lord, Lord Hennessy: talking to people, understanding the mood of the House—which noble Lords have referred to—and understanding the point of view of others. This, too, is important: disabled people who bring benefit to this House also need the assembly. They need the informal discussion and the spontaneity, which has been referred to. Therefore, we should be extremely cautious about how we proceed on that line.
Finally, as a former Deputy Chief Whip in the other place, I entirely agree with the noble Lord, Lord Grocott, who said that there is a particular value to the Front Bench in listing speakers. For that reason, I do not agree with it. By so doing, there would be no spontaneity, as my noble friend Lord Cormack said, and no difficult questions. That is why I shall support my noble friend Lord Cormack in the Division.
Baroness Tyler of Enfield (LD) [V]
I welcome some of the relatively modest procedural changes being proposed today, such as retaining lists for Oral Questions and changing our working hours to make them more family-friendly, argued very cogently by the noble Lord, Lord Adonis.
However, my main purpose today is, first, to register my deep disappointment that a real opportunity has been missed to overhaul and modernise our working practices, many of which were designed for a very different age, despite the many voices calling for change in our debate on 20 May, which seem to have been ignored. Secondly, while strongly welcoming the proposed new arrangements for those with long-term disabilities—I found the contribution of the noble Lord, Lord Shinkwin, particularly poignant—I draw specific attention to the plight of those Members with long-term health conditions, the clinically extremely vulnerable, those with shorter-term disabilities and those with caring responsibilities, for whom no provision is being made after remote participation finishes.
My starting point in our debate in May was that the ability to participate remotely, while developed to deal with the pandemic, should continue in certain forms to give everyone in your Lordships’ House an equal chance to participate. I was not alone in voicing those sentiments.
We are taking decisions today on the future working practices of the House at the same time as the Government have decided—recklessly, in my view—to scrap all measures introduced to keep us safe in the face of rapidly rising infection rates driven by a far more transmissible variant. This has real consequences for those for whom leaving home to take public transport and entering public buildings, such as Parliament, will become impossible if they cannot guarantee that others will be wearing face coverings after that ceases to be a legal requirement. That includes Members of this House who are clinically extremely vulnerable, as well as those living with family members who fall into this category.
Parliament, as we all know, with its many small and narrow corridors, its very crowded areas around the Chamber and its really tightly packed Division Lobbies, is an extremely difficult building to make Covid-secure. So I ask the Leader of the House whether, in September, we will be following the Chief Medical Officer’s advice to continue to wear masks in crowded indoor spaces, of which this Chamber is clearly one? What assurances can she give me that concerns about overcrowding will be taken into account when new proposals to vote in person using pass readers are put to the House in the autumn?
For me, this is personal. Having had two knee operations in the last nine months, my mobility has been severely impaired, making me effectively housebound for much of the period. Using the Tube has been pretty much impossible for me. Participating remotely, which I have done continuously during this period, has been my only real means of participating and contributing. In brief, I have had a short-term disability. So yesterday I sought some advice from employment law experts on how the requirements of the Equality Act 2010 to provide reasonable adjustments applies to people who may not have a long-term disability, as defined in the Act, but nevertheless have an impairment which impacts on their ability to perform day-to-day activities. I was advised that any good employer would be expected to make reasonable adjustments in these circumstances. I was also advised that, if someone had caring responsibilities that required them, for example, to be present at a prescribed time to supervise medication, it would be considered discrimination by association not to make reasonable adjustments to allow them to do so, if the means existed—which they clearly do; the system for remote participation is up and running.
So will the Leader say what legal advice has been sought on how removing the ability to participate remotely for those relatively few noble Lords with real and genuine needs to do so complies with the Equality Act? Will she also explain why there was no consultation about the new arrangements for people like myself with shorter-term disabilities—those with post-operative restrictions, the clinically vulnerable, and so on—and why the definition of “disability” has been drawn so tightly?
Finally, I make a heartfelt plea that the House of Lords Commission, which will be overseeing the process for deciding who will be eligible for continued remote participation, will look again at the issues I have raised, in the hope that good sense and common decency will prevail.
Lord Dubs (Lab) [V]
My Lords, I join in thanking the staff for the very helpful way in which they have supported us during the last 16 or 18 months of the pandemic.
When we had the opinion poll, as described by my noble friend Lord Grocott, I voted in favour of lists, not because I like lists but because I feared that, if we rejected lists, we would go back to a situation of no change under any circumstances. My preferred choice would be to have the Lord Speaker choosing people to ask supplementaries. After my time in the Commons, I was absolutely shocked at Questions in our House. There are many things about our House that are better than in the Commons, but Question Time is certainly not one of them. I found it intimidating, I found that I was easily bullied—I still am—and there was no chance to be spontaneous; it was a matter of whether one had any chance at all of getting in.
By the way, I mean no disrespect to the right reverend Prelate when I say that the House gives way to the Bishops’ Bench. They have a better chance, so I do not think he should vote in support of the amendment to the Motion suggesting that we should have lists. My preference is absolutely to have a Lord Speaker doing the selection of Members to ask supplementaries, so I shall certainly support the amendment in the name of the noble Lord, Lord Balfe. I remember the days of the queues, not so long ago, to try to get a Question, sitting outside the Table Office. One had to sit sometimes for two hours in advance. It was totally ludicrous. Passers-by said, “Whatever are you doing here?” Two hours of your time, maybe even longer if you wanted to be certain, and then the undignified bearpit process of trying to get in on a supplementary.
Of course we need flexibility. I believe in the Lord Speaker choosing people. I am sure the Lord Speaker would be pretty fair to those with disabilities; would be fair in terms of choosing people specialising in the subject, rather than anybody; and would be fair in terms of timing if he or she had some flexibility in terms of giving more time to one question than to another. All that, to my mind, would be a matter of spontaneity, so I shall support with enthusiasm the amendment in the name of the noble Lord, Lord Balfe.
As regards voting on the estate, of course there have to be exceptions and we have to define what a “place of work” is, but I think that, unless people have disabilities, all people should vote on the estate. I did not quite follow the excellent speech of the noble Baroness, Lady Brinton, in one respect, about Millbank House, because, under the proposed system, as I understand it, she would be able to vote from Millbank House. I am in Millbank House myself and I am bound to say that, while I move pretty quickly—or I did before the pandemic—I found sometimes that getting to a vote from Millbank House when a Division was called took some time because of traffic at the pedestrian crossing and so on. As for Portcullis House, coming over for a Division takes some doing. I know Members of our House who never go to meetings in Portcullis House because, if there were to be a Division, they simply would not get back in time.
While we are on this, I support the amendment in the name of my noble friend Lord Adonis. I remember when we used to sit very late, which might still be the case this autumn, and I had to make sure I knew the timing: my last Tube home was at 12.35 am and I would race to get the last Tube to save a £40 or £50 taxi fare. So I understand the difficulties and I am well aware that I can move quickly and Members of this House who are not able to move so quickly, or who are disabled and can hardly move at all, should have better provision made for them than is the case now.
To conclude, I support my noble friend Lord Adonis in his suggestion of different timings. I am on the Joint Committee on Human Rights, and we always meet on a Wednesday afternoon. One has to forgo either the Select Committee or what is going on in the Chamber. This is quite possible and it is normal to have to juggle timings a bit, so that one can decide whether one is in a Select Committee or whether one is in the Chamber. As I said earlier, I very firmly support the amendment in the name of the noble Lord, Lord Balfe. I do not believe we can go on with the present system, or that the list system will be able to continue. Surely it is not a breach of our traditions of being a self-governing House if we stop the bearpit that characterised Question Time up to the pandemic.
Baroness Greengross (CB) [V]
My Lords, when I entered the House of Lords 21 years ago, I never imagined that one day I would be moving and debating amendments to government legislation remotely from my dining room table. Much of the technology that we have come to use every day did not exist at that time. Had this pandemic happened even a few years earlier than it did, I am not sure how Parliament would have coped. As Covid-19 restrictions ease and the world starts to open, it makes sense that increasingly Members return to the Chamber.
I note the moves by the noble Lord, Lord Cormack, and others to restore the normal working practices of the House to what they were prior to the pandemic. While I understand this desire to uphold the traditions of the place, it would in my view be a mistake not to embrace the various changes and improvements that have happened during this time—in particular, the use of technology, which we now have an opportunity to incorporate into normal practice going forward.
I welcome moves to allow those with a long-term disability to continue to work remotely. My personal experience of participating remotely at the start was very mixed, as, like many of us, I struggled with using this technology at first. However, as things turned out, it was very fortunate for me that Parliament was working remotely. In October last year, I was diagnosed with advanced cancer and over the next six months I went through a course of intensive chemotherapy. During this time, the Domestic Abuse Bill came to the Lords and, due to remote participation, I was able to table and speak on amendments aiming to prevent the abuse of older people, which I have continued to do. Had it not been for remote proceedings, my involvement in this and other legislation during this time would have been significantly less or nil. Also, were it not for remote Divisions, I would have struggled to vote on this and other important legislation. For Members who have health or disability issues, the hybrid proceedings model is very good and removes barriers to participating.
I also welcome and fully support the amendment from the noble Lord, Lord Adonis, proposing that the House meets at 1 pm on Mondays, Tuesdays, and Wednesdays, rather than at 2.30 pm to 3 pm, as the Government propose. As the noble Lord outlined, starting later means less time for questions and debates, and means Divisions happening later in the evening, when potentially fewer Peers will vote.
I will not, however, support the amendments in the names of the noble Lords, Lord Cormack and Lord Balfe. For those concerned with the traditions of this place, I would argue that, in implementing hybrid proceedings and remote Divisions over the last year, the Lords have in fact upheld one of the greatest traditions of the world’s oldest Parliament. During this crisis, the House showed resilience and agility by finding a way to uphold its important constitutional role in challenging times, as it has done so often in our nation’s past. The House of Lords, often perceived as stuffy and old fashioned, has in fact shown the world how a modern Parliament can embrace technology and change—something it has done much better, in my view, than the other place.
Lord Trefgarne (Con)
My Lords, I will not detain your Lordships for more than a little while. First, I share the tributes paid by almost every noble Lord who has spoken to the staff and supporters of the House, who have kept us operating in a hybrid manner since these difficulties arose a year or more ago.
First, I am afraid I do not agree with what the noble Lord, Lord Adonis, is proposing in his amendment to the Motion. I believe that we should sit rather later in the day than we do at present because, as several noble Lords have said, it will allow experts in other fields to practise their profession before they come here. That is sometimes very important.
Secondly, I agree with what my noble friend Lord Cormack is proposing. I speak with some experience in this matter: I think I still hold the record for having answered more questions from the government Dispatch Box than any Minister, ever. I have perhaps been overtaken by my noble friend Lord Bethell more recently, but I think at one point I had answered 900 questions, so I can claim some knowledge and experience. It is right that Ministers should be properly answerable when they face questions, and I am therefore not in favour of a pre-printed list of speakers and hope that we will not proceed with that.
Finally, on the amendment proposed by my noble friend Lord Balfe, I am not necessarily against the idea of the noble Lord the Lord Speaker calling questioners, but we would need to provide some guidance for him if that is to be implemented, in which case I might not necessarily oppose it.
Lord Hunt of Kings Heath (Lab) [V]
My Lords, I join other noble Lords in paying tribute to the amazing efforts of our superb staff.
I have found the debate today fascinating and of a high order. However, it is a pity that it is taking place after the committee has agreed its report and not before. I suspect that is the reason that the committee seems to have combined the worst aspects of how we worked pre Covid with the worst aspects of our current working. As a result, we risk ending up with a House out of kilter with modern working practices, anaesthetised debate and further control exercised by the Government and party Whips. My noble friend Lord Grocott gave a very good illustration of that.
Why are we not allowing flexible working to continue? Up and down the country, employers are adjusting to what we have learned during the pandemic—that more flexible working suits employees and employers. Yet here we are insisting that we all must return to the old way of working. The Government even want us to return to outdated working hours. As my noble friend Lord Adonis has argued, working late into the evening is not conducive to effective working. Only the Government gain from the House starting its business in the middle of the afternoon, leaving far less time for questions, debates and, mostly crucially of all, votes in prime time, before attendance drops off rapidly after 6 pm. Why should we be so destructive of family life?
My second concern, which I share with the noble Lord, Lord Cormack, is about the recommendation to keep speakers’ lists for Oral Questions. Oral Questions should provide the pivotal moment for the House. In normal circumstances, the House is full, and Ministers are on their mettle as questions come at them from all sides—questions which, at their best, are short, spontaneous and follow the debate, rather than pre-packaged. Sadly, Oral Questions during Covid have been anything but. Even with the extension of 10 minutes, not everyone on the full list of speakers always gets in. This is due to long-winded questions followed by often pre-ordained questions read out by some Members seemingly oblivious to what the Minister has said or to the debate that has gone before. Frankly, it has become a bore, where Ministers get away with much and often answer in kind with their own long and laboured responses. I appreciate that there has been a vote on this, and I understand that some Members did not like the unruly nature of Oral Questions before the pandemic, but surely my noble friend Lord Grocott was right about the binary nature of the question. I ask the Senior Deputy Speaker: why were we not asked about the timings of the House? Why are we not allowed to discuss and vote on whether we should have a proper Speaker?
If we are to have 10 minutes and a speakers’ list for each Question, surely, if Members know in advance that they are going to be on the list, it is not asking too much of them to stick to the advisory time limit for their words. If they do not, why can they not be pulled up immediately? This is not happening because, of course, the Lord Speaker is not able to call order. Those who argue against the amendment in the name of the noble Lord, Lord Balfe, say that it is the end of self-regulation. Well, I am afraid that self-regulation is not working. When I first came to the House in 1997, it did—Members gladly gave way to others, but that no longer pertains. The current role of the Leader in assisting the House does not seem to be working. I do not think there is any substitute for us having a Speaker who can ensure that some of the issues raised today about the difficulties of, say, disabled Members getting in, can be dealt with. It would retain the essential spontaneity that we need.
I will vote for all three amendments, but I appeal to the Senior Deputy Speaker to reflect hard on this debate, go back to his committee and, over the Recess, work on a new scheme to put to us in the autumn. At the least, he should agree to an extensive review of our procedures in the autumn, taking full account of Members’ views and allowing us to become the modern and effective Chamber we all want to be.
Baroness Rawlings (Con) [V]
My Lords, I fully support the Procedure and Privileges Committee’s report and the decision for the House to return to as normal as possible with your Lordships being present in the House, except, of course, severely disabled Members. It is also important that we return to the practice that your Lordships should be physically in the—[Inaudible.]
Could my noble friend the Minister clarify whether Members of your Lordships’ House are obliged to attend Select Committee meetings physically or whether they will still be able to continue attending online? I am not talking about anyone who is giving evidence. Will it still be illegal to attend any meeting from a car or train if we continue to be able to participate remotely?
Legislation was passed during the Covid lockdown without any debate in your Lordships’ House and without any votes. This diktat is considered legal as it is included now in the Standing Orders. This point does not—[Inaudible.] I wonder whether it could be clarified by the Minister for your Lordships.
Baroness Evans of Bowes Park (Con)
The noble Baroness keeps cutting out so it is probably best that we move to the next speaker.
The Deputy Speaker (Lord Duncan of Springbank) (Con)
Yes, the next speaker is the noble and learned Lord, Lord Judge, who is present.
Lord Judge (CB)
My Lords, I will try not to. Just about everything that can be said in this debate has been said, so I am going to say a bit more. I ask noble Lords to notice that I am speaking just before the wind-up speeches from the leaders of the two main opposition parties. I underline that the Cross-Benchers are not a party or group. I see the noble Lord, Lord Strathclyde, is not in his place, but could somebody remind him that I have said that? I am speaking on behalf of myself and nobody else.
I support the Senior Deputy Speaker’s report, but then I would, would I not? I am a member of the commission and of the Procedure and Privileges Committee. There are so many committees that I am a member of, I can probably speak for every single committee in this House.
I think we are envisaging a return to a pre-pandemic normal but one that is enlightened by some of what we have learned in dealing with the pandemic. There are a number of matters I could draw to noble Lords’ attention. We have discussed disability. I am so glad about that; the Cross-Benchers raised it almost at the very outset. There was an absolute unanimity of view that we had to use our new technological skills to ensure that disabled people could continue to play their part in the House. I am absolutely delighted that that is going to happen.
I do not support the amendments but I respect them. I am one of those larks: I love getting up in the morning and there was a time when I actually used to enjoy getting up for work in the morning. I am not an owl, so I am attracted to earlier starts—though 1 pm is not that early. But before we agree to that amendment, could we check that we would not be reducing the contribution made to this House by experts who continue to use their expertise outside this House?
Some noble Lords referred to the grand people, the doctors and the lawyers, but what about the engineers, teachers, university professors and—if I may say so to the noble Baroness, Lady Jones—the environmentalists, who are still at work? They have a contribution to make and we need to be very careful that we do not adjust the times and lose their contributions. I am not saying that it will happen, but it is not something that we should plunge into.
I am also a little concerned about the work of Select Committees. We now have many more Select Committees. We do not have the proper facilities for all of them: a facilities room with audio, broadcasting facilities, facilities to work in a hybrid fashion. We need to check that, if we have an earlier time, we will not make it more difficult for members of committees to attend the Chamber. They have an invaluable contribution to make and should not be disqualified because they are simply following their duties as members of a committee.
I have great sympathy with the amendment in the name of the noble Lord, Lord Cormack; I was one of those in the minority when the ballot took place. I believe—and continue to believe notwithstanding the result of the ballot—that speakers’ lists for Oral Questions have been disadvantageous to everybody except Ministers. Ministers have got away with obfuscation for 18 months now. We are not doing anything about it if we have a speakers’ list. However, the House took a different view: a view which I respect and do not share. We have to abide by it, at any rate for the time being.
We have to be careful not to get carried away about how discourteous everybody is during Oral Questions. Yes, there are some people who behave badly; most of us do not. I think it is also very bad behaviour for people to go on asking questions at great length so that numbers eight, nine and 10 on the list do not get reached. It is a different form of discourtesy, but it is discourtesy nevertheless.
As for the amendment in the name of the noble Lord, Lord Balfe, there is a very important principle involved. We need to consider whether we rewrite the way in which the House conducts its business in relation to the principle of self-regulation. It is a principle; chapter 4 of the Companion to the Standing Orders is absolutely clear about it, and there is a lot of chapter 4. The Lord Speaker
“observes the same formalities as any other member of the House, addressing the House as a whole, and not an individual member”.
There is much to be discussed in the noble Lord’s amendment but it is appropriate for examination in a single-issue debate, not as an add-on to this debate, because it has some very fundamental questions to answer about the way the House does its business. Let us return to the enlightened normality.
I will add one word recognising one speech in particular: did not the noble Lord, Lord Tyler, speak a great deal of sense about government control of the way we do our work?
Lord Newby (LD)
My Lords, I echo the comments of the Leader of the House and others about the way in which the staff rose to the challenge of introducing a century and a half of change into your Lordships’ House in about three weeks. That was most impressive, and they deserve all our thanks.
I cannot agree with the noble Lord, Lord Strathclyde, who I am rather distressed to see is not in his place, who said that we should return as if there had been no pandemic and then think about whether we want to make any changes. No organisation does that. That seems to be the worst of all worlds, whatever changes you then decide to make. I am very pleased we have not adopted that approach.
Of the changes that are being proposed, which take account of a changed ability to do things, the two most significant are: first, the continuing support we are going to give to disabled people; and, secondly, electronic voting. As far as allowing disabled people to participate in your Lordships’ House virtually in future goes, this is a tremendous improvement to the way we do things. Over a long period, we have said that we are very keen that your Lordships’ House should have disabled Members, but then made it impossible, in effect, for them to participate in many cases. Allowing them to participate in all cases where they are physically able to do so from their own homes is clearly an advantage.
The only wrinkle I put on what has already been agreed is that I hope that when the group that looks at these things does so, it will adopt a pretty wide definition of what is allowable for people who are disabled to continue to participate. In today’s debate two particular categories of people have been mentioned, beyond those who are already covered by the disability scheme.
The first is those who are clinically extremely vulnerable as we come out of the worst effects of Covid but have not left it. It would seem perverse if people who are clinically extremely vulnerable now, but do not have a long-term disability and have been able to participate for the last 18 months, should be denied that ability for a few months until they are allowed to come back.
I also think we should look further at the suggestion made by the noble Baroness, Lady Tyler, about short-term disability. She gave an example of her own case. Another case might be if a noble Lord on the Government Front Bench broke their leg in the middle of a Bill. Why should that Minister not be able to participate from home when they are still perfectly capable intellectually but have a short-term disability? We need to look at that as part of what is, in general terms, a very welcome change.
Secondly, on electronic voting, it is a huge improvement to be contemplating not voting through the Lobbies. Many of us have spent many of the happiest hours of our lives chatting to chums shuffling through the Lobbies, but the alleged benefits of being able to nobble Ministers and others going through the Lobbies is, frankly, greatly overdone. Having the continuing use of modern technology to vote, thus saving time, is a great boon.
I hope, though, that we will allow voting to take place in Millbank House, for the reasons my noble friend Lady Brinton and others gave. I hope we will allow people to use their passes and pass readers in the Committee Corridor so that we do not have a whole corridor of people traipsing down from a committee, sometimes several times during the committee, then traipsing back up again. It will save a lot of time.
The noble Lord, Lord Dubs, made a suggestion I had not heard before but has a lot to recommend it: that we should be able to vote in Portcullis House. It is quite difficult getting back from Portcullis House anyway, but many Members of your Lordships’ House go there for meetings of all-party groups and party groups, and other meetings. It would make our lives easier without undermining any principle of being on the estate at the point at which votes are taken.
I note the comments of the noble and learned Lord, Lord Brown, about the problems we might have in defining working areas in September and sanctions relating to that. I would just point out to him that we are talking about a couple of weeks, we hope, during which this system will operate. I would not have thought it would cause too many problems.
I had a lot of sympathy with the noble Lord, Lord Hunt of Kings Heath, when he said we might have missed one or two tricks in what we are planning to do. Personally, I think there is a lot to recommend the proposals made during our debate on 20 May to allow people who live several hours away to participate in non-legislative business. Again, it would broaden the number of people that could speak and I do not think it would undermine any principle of democracy that your Lordships’ House rightly holds dear. We have had that debate, however, in the commission and elsewhere. I think the case simply has not been won, but that is a pity.
On the amendment from the noble Lord, Lord Cormack, my interest is to return to spontaneity because, as a leader, if I get up I can certainly trump people behind me, as I have found out to their fury in the past. Therefore, I have no personal benefit in having a speakers’ list. I should also say, without going too far into the substance of this, that the idea that Ministers have been obfuscating in their answers just over the last 18 months is, to put it mildly, stretching the point.
The important thing about what we do next is that we have asked people what they think. The noble Lords, Lord Cormack and Lord Grocott, described this as an opinion poll. It is as though you had a general election and, instead of having a vote, you had an opinion poll in which 40 million people voted, because over 500 people voted in this opinion poll. As to whether they knew what they were doing or whether we debated or thought about it, I remind your Lordships that we had had a full day’s debate on 20 May in which this issue was discussed at some length, among many others. The noble Lord, Lord Grocott, probably remembers it.
We have also had 15 months of actually operating the system. It is not a new system. People are not wondering how it might work; we know how it has worked up until now. People have formed a view about whether they think it was beneficial. In my view, this is a perfectly valid ballot of Members. I agree that it is contentious, but that is why the Procedure Committee decided to have the ballot in the first place—because opinion was sharply divided in that committee and probably more evenly balanced than in your Lordships’ House as a whole. It is slightly odd that Members of your Lordships’ House object to being asked their views on something, rather than allowing a committee to push something forward on its evenly balanced view.
The noble Lord, Lord Cormack, also talked about the report from the Procedure Committee. We will debate that at some length next week, and there is certainly no question of issues not being debated in your Lordships’ House. But the one thing I really took issue with the noble Lord, Lord Cormack, about was the suggestion that, in some way, the operation of that committee is a denial of natural justice. I just do not believe that is the case. If anybody who sat through the debate on the case of Lord Lester of Herne Hill believes that was natural justice and what we have now is not, then I am afraid their definition of natural justice is very different from mine.
There are questions about what exactly we do with Question Time. The proposal from the noble and learned Lord, Lord Mackay, for example, was really interesting and one we should consider.
The amendment from the noble Lord, Lord Balfe, falls if you accept that the ballot we had stands, so I do not intend to discuss that.
The final amendment was from the noble Lord, Lord Adonis. I have considerable sympathy with the view that we start somewhat earlier, for the reasons he gave. However, his amendment does only part of the job. I would support it to a greater extend if it were coupled with a firm proposal that the House finish earlier as a matter of course if we start earlier. At present, we sit early but, as last night’s midnight finish demonstrated, we are sitting longer and still at ridiculously late hours. However, this is a live and important issue, and I hope, given the concerns that the noble Lord, Lord Adonis, and others expressed, that this is something that the Procedure Committee will return to after the summer, whatever the outcome of the vote we have this afternoon.
That principle of returning to things applies to everything else. Nothing is set in stone. We must continue to evolve, as we have done in recent months, by experience. By accepting the proposals before us, we are taking the best of what we have done differently over recent months without closing the door to further improvements. I commend the report to the House.
Baroness Smith of Basildon (Lab)
My Lords, this has been a long and interesting debate. It shows the challenges the Procedure Committee faces: just because a Member of the House thinks one thing, it does not mean there is an automatic cohort of others that agree on that point. There are a lot of crossed interests and different views, which strikes to the heart of the issue. When we looked at the different issues, it was felt that fundamental and significant change could not be proposed by the Procedure Committee unless there was widespread agreement on it and these were things we would return to on another day. I will come back to that.
I concur with all the comments that have been made about the staff of the House and the way they responded to our demands. When we initially had to become remote and then hybrid there was no blueprint and no equipment; we were starting absolutely from scratch. The Leader of the House, the leaders of other groups and the Convenor will recall the many meetings over many days and long hours when they were contacting us and serving us well to ensure we could operate. I think that the noble Baroness said that they served their purpose, and they did, because we have been able to function as a House, albeit not in the way we would genuinely wish to.
It is worth reflecting on the past 16 months. I have to say, 16 months ago, I thought that Zoom was an ice lolly, I had never heard of Teams and the words “Can you unmute?” were not ones that came easily. We have all learned a lot. Last Tuesday, I celebrated an important personal milestone of the pandemic: in addition to being in the Chamber, I had seven meetings, none of which took place over Zoom. They were all physical meetings because they were small groups in larger rooms. It was a much better experience with better outcomes and was not so exhausting.
Few, I think, would argue that conducting all the proceedings remotely or in a hybrid way is ideal. It has not been easy. There were the doubters who said that we would never cope with it. As we have heard today, we have had our moments, including asking “Can you hear me?” and “Can you unmute?” and having people drop out. However, if it were not for the people who made that happen—I pay particular tribute to the staff who developed and managed the Peers’ hub; it has been an excellent innovation and I hope that we keep it to a very large extent—we would not have done something that others doubted we could do. We have excelled ourselves. I still think that our Peers’ hub remote voting is significantly better than the nonsense we have seen at the other end of the building, with a conga to go and vote, then proxy voting. I would never be comfortable with somebody voting on my behalf; I would much rather do it myself.
However, we also have to look at the deficiencies. Too often, our debates have taken much longer. Yesterday was a prime example: the House sat from noon—lunchtime—until two minutes to 12 last night. We know the difficulties. It is easy enough to make a speech or make a point remotely, but it is far harder to debate, discuss and engage. We have managed it, but not in the way we would like.
The committee’s report has my support, which is not to say that it is not a compromise. The decision on electronic voting came from the debate on 20 May when more than 70 Members of your Lordships’ House took part. There was strong support for retaining the Peers’ hub or some form of electronic voting but views were divided, although they were mainly in support of voting on the premises, not remotely, in view of the fact that voting is quite a collective activity. I think one noble Lord admitted that they got it wrong because they were not with colleagues. I am agnostic on where the voting terminals should be when we move to voting without the Peers’ hub. We must look at what will benefit the House and our debates. Voting is a political activity and when we are together we engage in that political debate, which is important.
A few noble Lords said that this is the wrong way round and that we are having the vote on the Peers’ hub and the decision on the committee’s report before we have had the debate. There was a debate on 20 May to which the Procedure Committee and noble Lords listened carefully before proceeding with a way forward. However, as I have said, it was also felt that, where there was fundamental and significant change—I have no doubt that there will be further change—it should done by agreement and having the opportunity, when the House returns physically and is not just working remotely or in a hybrid way, to consider some of these matters further.
I welcome what the report said about disabilities. I was initially concerned—I expressed this to your Lordships’ House—that it was saying that, for Members with disabilities, we should offer the opportunity to work remotely. First and foremost, we want to ensure that we do as much as we possibly can as a House to ensure that those with disabilities can participate fully in the work of the House. If part of that is through remote working, it should be undertaken, but it should never be the default position that somebody with a disability is asked to work remotely, unless it is in their interests and they wish to do so.
In many ways, I am slightly disappointed that so much of the debate concerned Oral Questions; I suppose it is because of the ballot we had through the Peers’ hub. To me, the most important thing that this House does—that is not to demean the role of Questions and Statements—is our legislative work and the role we play in legislation which, to me, has been the hardest part to undertake in a hybrid way. Those who have been engaged in legislation have often done so until very late at night; we talked about the Environment Bill last night, but when we were considering the Fisheries Bill and other legislation, the House regularly sat until midnight. The point was made my noble friend Lord Adonis and others that we are not at our best when we are starting at 12 pm and finishing at 12 am. I hope that more physical debates on legislation will ensure that we do not have those very long sittings. They were not helpful to anybody and often became exchanges of speeches that sometimes do not relate to other speeches that were made earlier when we had had a proper debate on legislation in the Chamber.
I want to look at the amendments in the names of the noble Lords, Lord Balfe and Lord Cormack. I have to say to the noble Lord, Lord Cormack, that I concur with the point made by the noble Lord, Lord Newby: whether we agree or not—although I did not vote, I would have voted the other way, to remove the speakers’ lists—the House took a decision. When we discussed this with the Procedure Committee, it was decided that we would review it at a later date because Members may feel differently when we are back physically and there should be the opportunity to look at all these decisions then. However, it is not fair to say, “I don’t like this decision. I therefore want to change it”, so I cannot support the amendment in the name of the noble Lord, Lord Cormack. It will be reviewed by the committee, as the committee agreed; it is right that we should do that because, when we return physically, we may have a different view.
There has not been a golden age of Ministers answering questions fully or us having proper scrutiny of those Ministers, but I do think that Questions are conducted better without lists. However, it is the choice of the House, and I think that it was possibly a majority of the members of the Procedure Committee who preferred to keep the lists. We felt that, because there was a difference of view across the House, the House should take that decision, rather than the usual channels or the Procedure Committee. It will be reviewed when we return.
I say the same as the Lord Speaker: I have some sympathy with this. The House does not cover itself in glory when Members get shouted down. I wince when it is regarded as an issue for female Members of the House—I have never had great difficulty in making myself heard—but it can be for inexperienced Members who are perhaps not used to a political setting and find it uncomfortable. However, again, for me, that matter comes under the more fundamental change that, when the House sits physically, the Members who are here can consider. So I cannot support the noble Lord, Lord Cormack, on this point either.
We have an opportunity in the next few months. My noble friend Lord Grocott mentioned six months; in fact, that was the timescale I put to the Senior Deputy Speaker and the Leader in terms of reviewing matters. When we are back physically and have done things in a certain way for six months, we will have a sense of what works and what does not. We will have such an opportunity with Questions. Oral Questions and UQs will have a list but Statements and PNQs will not, so we will have an opportunity to compare the two and see which the House prefers. That is a good way to take this forward. I hope that noble Lords will not press their amendments to a vote tonight but instead accept that these matters will be reviewed.
I always listen to the noble and learned Lord, Lord Mackay, with great respect. However, I take issue with one thing he said today: that this is a part-time House. It is not a part-time House. We are a full-time House. We actually sit longer than the House of Commons. We do have part-time Members; this House has never expected all its Members to be full-time Members. Saying that this is a part-time House misunderstands and misrepresents the scale of the work that we do and the issues that we raise. Racism in football, for example, has not been addressed by the other House yet but it was addressed in this House today through a PNQ. I am sure that the noble and learned Lord did not mean to, but we should not demean the role of this House.
I have great sympathy with my noble friend Lord Adonis, who spoke very powerfully. Indeed, his speech mirrored something that I raised with members of the Procedure Committee and the Leader early on: not that we should start earlier and finish earlier, but that we should examine that. A number of committees take place and a number of issues are raised. Many Members of the House are engaged not just in outside activities but in activities in your Lordships’ House, such as meetings with Ministers and working on Bills. Some also have to travel. Those who work on legislation play quite a detailed role in getting ready for that day’s work. This is something that we should discuss.
However, the worst reason I have ever heard for opposing my noble friend’s amendment was the comment from the noble Lord, Lord Cormack. I regret to say this to the noble Lord, but the idea that we should sit later because it is helpful to have lunch with people does a great disservice to the many Members of this House working internally and externally, getting ready for legislation and Bills, and preparing speeches to ensure that they are fully prepared when they come to your Lordships’ House. I hope he will reflect on that comment as we move forward.
However—call me a cynic—my noble friend’s amendment is one side of the equation but not the other. I am nervous: knowing the battles that my noble friend Lord Kennedy, and previously my noble friend Lord McAvoy, had in trying to get the Government not to sit too late into the night but to have proceedings end at a reasonable time, like 10 pm, I am really concerned that, if his amendment was accepted as it stands on the Order Paper today, we would find ourselves sitting at 1 pm and going later and later. If we change the hours, there should be a debate in this House, and full consideration of the impact across the House, on having an earlier start time and just moving the day forward. I would accept that, but that is not what his amendment does. I hope he will reflect on that. I think it is something the Procedure Committee will reflect on, take soundings on and come back to, but I do not think passing an amendment today that just says we will sit at 1 pm on Mondays, Tuesdays and Wednesdays really makes the point or addresses the issues in the way we would wish to. I regret to say to my noble friend that I would not be able to vote for that amendment, although I would very much like to revisit the hours at which the House sits as we move forward.
I have two further brief points to make. When the commissioners met, we predicated all these things on when the House returns physically, which we expect to be on 6 September. There has to be some doubt, with the rise in infections, that this will be the case. The delta, or Johnson, variant is actually quite rampant now. I hope it is the case; I certainly am longing to return to our physical proceedings. But I hope the noble Baroness can make a commitment that the commission will meet prior to that to confirm or, only if essential, delay in the light of prevailing circumstances.
Secondly, the Government have said that they will stop the free tests. If that is the case, and the Covid tests are not made available, I hope that your Lordships’ House will continue to provide a testing regime for those who work in the Palace.
The Senior Deputy Speaker (Lord Gardiner of Kimble)
My Lords, I respect all the points made this afternoon. It has been a very thought-provoking debate. I have no doubt that my words will not satisfy most in all regards, other than that I think we all recognise how much we have gained from the experiences we have gone through but want better times ahead. In the words of the noble Baroness the Leader of the House, the package of proposals before your Lordships is designed to facilitate a return to “a fuller, livelier and more effective House” when we return in September.
Of course, I join the noble Baroness, as almost all noble Lords who spoke did, in thanking everyone. In my turn, I thank all noble Lords and particularly all members of staff for working together. This is a very important point: we have all worked together on these matters in rising to the challenges presented to us by the pandemic. It has been a period of innovation and exceptionally hard work. Again, I want to emphasise, because there have been words about this, that I identify the House I have had the privilege to be in for 11 years with hard work. I think noble Lords work extremely hard, as do the people who come to work here as well as us. These efforts meant that, working at an unprecedented pace, the House was able to find ways to continue its work despite the constraints. In recognising how much has been achieved, we all also understand that we have lost some of the character and spontaneity of our proceedings. The proposals before your Lordships today represent seeking to return to that character but incorporate elements of the practices we have adopted during the pandemic which the committee believes have worked well. I say also to all noble Lords that the committee—and indeed the commission—considered with all seriousness the points made in the debate of 20 May, but also much discussion on all these matters.
Turning to the amendments before your Lordships, that in the name of the noble Lord, Lord Adonis, invites us to set the House’s start time at 1 pm on Mondays, Tuesdays and Wednesdays. As mentioned in the report of the Procedure and Privileges Committee, the House would otherwise revert—should the report and the Leader of the House’s Business of the House Motion be agreed to—to the pre-existing sitting times of 2.30 pm on Mondays and Tuesdays and 3 pm on Wednesdays. As has always been the case, the diversity of the membership of this House and the range of commitments that noble Lords maintain mean that it is not possible to find times that suit everyone. The noble Lord, Lord Adonis, generously raised that as part of his speech. For some Members, earlier sitting times would undoubtedly be more convenient, potentially allowing for an earlier finish—although the noble Baroness, Lady Smith of Basildon, suggested that there have not always been early finishes as well. However, I am particularly mindful of other noble Lords who come from across the United Kingdom and the importance of ensuring that all Peers from all parts of the United Kingdom can attend this House in reasonable time. Earlier sittings would undoubtedly be difficult to accommodate on certain days of the week, and this is what I picked up from Peers from across the United Kingdom. As referred to, there are others who may have significant commitments outside the House, but from whom we want to hear the essential contributions that they make in afternoon and later proceedings.
Having taken on this post, I am also mindful of the immense work that your Lordships undertake in Select Committees and other bodies, which tend to make full use of mornings in particular for meetings. I refer particularly to Wednesdays, because the later start enables some group meetings which do not conflict with Select Committees to be convened before the House sits. The sitting times have evolved over the years. While I will, I am afraid, ask the noble Lord to withdraw his amendment, I have no doubt that the points raised are very pertinent, and we will want to keep them under review. In other words, to do a very quick flick, as it were, to 1 pm would have consequences that I would not advise going into at this juncture. But I think we want to consider all these points because, after all, our purpose is the smooth running of the House.
The amendment in the name of the noble Lord, Lord Cormack, regrets the proposal from the committee to have speakers’ lists for Oral Questions and Questions to Lords Ministers who are full members of Cabinet, and it asks the committee to reconsider this point by 31 October. The committee recognised in our deliberations that there were good arguments on both sides of the matter over speakers’ lists for Questions. On the one hand, there are those who value principally the spontaneity of unlisted questions. On the other, there are those who value the scope for lists to enable what has been a wider range of noble Lords to ask questions and—I wrestle with how to put this—perhaps a less boisterous atmosphere in which to ask a question.
The noble Lord, Lord Grocott, in particular led the charge of complaint about this consultation. I understand that many of your Lordships did not like the fact that a majority of noble Lords voted in the way that they did. I would say to the noble Lord and to others that it is surprising the number of noble Lords who have come to me and said, “How refreshing to be consulted in this way; what an innovation. It hasn’t happened quite this way before. Are you sure you’re not going to turn into a radical Senior Deputy Speaker?”
The Senior Deputy Speaker (Lord Gardiner of Kimble) (Non-Afl)
I thought that might amuse a few.
We did genuinely want to hear—and I say the word “genuinely” very seriously—what the feel of the House was. One of the things we have all missed is distinguishing the mood of the House. What are the shrill voices with a pet subject? What is the general context in which the mood of the House gathers as we try to do things well?
The number of noble Lords who took part in the consultation on this question was 551. A clear majority favoured having lists, and that majority informed the committee’s decision about what to propose to the House. I hope this is very clear: it is, of course, a decision for the House itself to take. As a committee, we took a responsible line. There were so many different views at the debate on 20 May and we wanted your Lordships to express a view so that, in our mind, we could be responsible in bringing something back that we thought might meet the mood of the House at the moment, and I stress the words “at the moment”.
As I have said, the effect of the amendment from the noble Lord, Lord Cormack, is to mandate a review of this decision by 31 October. I respectfully suggest that the amendment is not necessary, given that the committee is committed to reviewing this and other arrangements after we have had some experience of their operation. Only five sitting weeks are likely to have taken place by the noble Lord’s deadline, within which I assume the committee would also need to have conducted its review. With a majority of 97, the result of the consultation—I repeat that it was a consultation—was clear, but the committee’s report states that the operation of speakers’ lists will be kept under review. I say particularly to the noble Lords, Lord Grocott and Lord McConnell of Glenscorrodale, that we can gauge the effect of operating lists, noting of course that lists will not extend to Private Notice Questions, Urgent Question repeats and Statement repeats, so we will all be able to compare and contrast within the dynamics of the House meeting in person.
The amendment from the noble Lord, Lord Balfe, would ask the committee to produce proposals for a Commons-style Question Time, with the Lord Speaker given the role of selecting and calling noble Lords to ask questions, rather than operating on either self-regulation or the list system as proposed by the committee. As with the amendment from the noble Lord, Lord Cormack, the committee would be charged with presenting the alternative by 31 October. The noble Lord’s proposal is a fundamental one: moving your Lordships’ House from self-regulation to what, in effect, would be regulation by the Woolsack. Today’s Motions are about the return from the hybrid House, alongside the changes that the committee recommends should be retained. Before we take any further steps, I suggest to your Lordships that we should see how the House responds to the list system for some Questions and self-regulation for Urgent Questions, PNQs and Statements. I believe that is a good basis on which we can make some sound consideration.
As well as the constitutional and procedural dimension to the proposal made by the noble Lord, Lord Balfe, there are some important practical aspects that I believe I should pose. Our Chamber is not the same as that in the other place. The position of the Table places the clerks at a considerable distance from the Woolsack, unlike in the Commons where they sit in front of the Speaker’s Chair, for accessing officials’ advice. Even with the wonders of instant messaging technology, this would be more challenging without work to reorganise our Chamber. The Lord Speaker sitting on the Woolsack is also, with no disrespect, much less well placed to see noble Lords in all corners of the Chamber than is Mr Speaker from his raised position in the Chair. None of these points would be insurmountable, but I do not want the House to consider that making the change proposed by the noble Lord is simple or straightforward. My view is that we should first look at how we return to the House, and see how the House fares, before we make decisions such as that.
A number of other very important points were made by noble Lords, in particular the noble Baronesses, Lady Brinton, Lady Goudie and Lady Tyler of Enfield. We will continue to follow public health rules and guidance. The important question of eligibility for virtual participation has been under consideration by the commission. It has been agreed that requests should be considered by the additional support group. I say to the noble Lord, Lord Robathan, that this was a group established by the commission last year to decide on requests for additional financial support from Members with disabilities. It was felt that this group would be well placed to consider requests for virtual participation as well. I will chair that group alongside the three Chief Whips and the Convenor of the Cross-Bench Peers. I understand that some Peers may wish to avail themselves of this eligibility in readiness for 6 September. We will make sure we circulate details for requests for continued remote participation very shortly, in the next day or so.
I very much agree with the noble Lord, Lord Blunkett, who I was delighted to meet 10 days ago. He made a point that the noble Baroness, Lady Smith of Basildon, made as well. The noble Lord, Lord Shinkwin, also raised this in terms of the integral nature of all Members of this House and the work they undertake. If we are not doing this as well as we should—and there is always room for improvement—we need to find ways of ensuring that all Members, particularly those with long-term disabilities, see coming to the House as a natural way of engaging. At no point do any of us want the message to be that remote voting is the option for those noble Lords. We gain so much from their presence in this House, but we also recognise that we need to ensure that when their disability is such that they cannot attend, they are in a position not only to vote but to participate wherever that is possible.
Further work is being done on ventilation. The main ventilation in committees is fresh air—an interesting point to make in London. The level of ventilation in the Chamber and a selection of Lords Committee Rooms has been assessed by the monitoring as satisfactory, but it was a well-made point that it is something we should always consider.
On the point the noble Baroness, Lady Hamwee, raised about degrouping, we deliberately used the word “discourage”. For the assistance of the House and of all noble Lords, in particular the Opposition Front Bench—which perhaps does not have some of the support mechanisms that the Government Front Bench has—degrouping is unreasonable unless there is a really strong reason for it. That is why we brought that forward. Again, it is for the smooth running of the House and the certainty of your Lordships.
On the point made by the noble and learned Lord, Lord Brown of Eaton-under-Heywood, and the noble Baroness, Lady Hamwee, we deliberately said that all noble Lords voting using PeerHub will be asked by the system to confirm that they are voting from a place of work on the Parliamentary Estate. They will be able to proceed to cast their vote only if they confirm that they are. I would be remiss if I did not draw all noble Lords’ attention to the existing requirement in the code for us all to act on our
“personal honour in the performance of”
our “parliamentary duties and activities”.
We should all be mindful, clearly, that we are voting for the laws of this land. This needs to be an event that we take with due seriousness. I think noble Lords should, with respect to the noble and learned Lord, understand that a place of work means, overwhelmingly, as it says, on the Parliamentary Estate. That is what we decided was the best way of defining this. I know it is not precise, but we thought this was the most pragmatic way for this interim system. Committees are in a position to decide for themselves when they meet, and remote witnesses have undoubtedly worked very well.
I am reminded by the Whip that I should conclude. I thank all noble Lords who have taken part in this debate and assure your Lordships that the Procedure and Privileges Committee will continue to reflect on the points made about how the House works. My purpose and that of the committee is to enable your Lordships and our work to flourish. Following the debate on 20 May and many discussions, we have sought to bring forward a series of Motions that we believe will be helpful to the House—not just to noble Lords but to our excellent staff. The Motions in my name and that of the Lord Privy Seal return the House, as from 6 September, to its original procedures, with some important innovations. We have responded, rightly, to the request that Peers with a long-term disability should have the opportunity to participate remotely when they wish.
I seek noble Lords’ approval, constantly mindful that we should always consider where we might do things better. That is why we will need to reflect on and consider many of the points made by noble Lords. Your Lordships’ committee seeks noble Lords’ approval in our joint endeavours to assist your Lordships in fulfilling their vital role in the national discourse and their constitutional duties. I ask the noble Lord, Lord Adonis, to withdraw his amendment and invite your Lordships to support the Motions tabled in my name and that of the Lord Privy Seal.
Lord Adonis (Lab)
My Lords, there is a great deal of support in the House for the idea of meeting and adjourning earlier, so I am going to press this amendment. I urge colleagues who support that principle, even if they have somewhat refined ways of doing it, to vote for this, because it is a complete delusion to think that an alternative proposal will come forward any time soon. Perfect moments for reform of the House of Lords come forward about once a century so, if noble Lords pass this opportunity by, it may be that their grandchildren have an opportunity to vote on a new proposal. If a noble Lord is a hereditary Peer and the hereditary Peer by-elections continue, they may even be able to participate in that decision, but the likelihood is that none of us will be able to.
Nothing was further from my thoughts than that I would be denying the noble Lord, Lord Cormack, his lunch. I will take an opportunity after the debate to introduce the noble Lord to the concept of the sandwich. It has a long aristocratic pedigree; it was invented 300 years ago by an Earl. It is not quite as old as Lincoln Cathedral—about a third as old, by my calculations. It enables one to reconcile lunch with fulfilling one’s duties in the House in the early afternoon.
Lord Cormack
At end insert “but that this House regrets the recommendation to have speakers’ lists for oral questions and believes further consideration should be given to this matter by 31 October at the latest.”
Lord Cormack (Con)
My Lords, I am rather gratified by that result, but not for the reasons that the noble Lord, Lord Adonis, and the noble Baroness, Lady Smith of Basildon, indicated. I feel that one thing that will now survive is the Long Table. One of the greatest features of your Lordships’ House is its collegiate spirit, and nowhere is that better exemplified—and nowhere is there better conversation, which often influences many people—than at the Long Table.
I listened very carefully to the debate and, like many of your Lordships, I heard every speech, and I am persuaded that, because we will have Statements and Urgent Questions taken in the old manner, there will be a proper opportunity for the House to compare and contrast. I accept the assurances given by both the noble Baroness, Lady Smith of Basildon, and my noble friend Lord Gardiner of Kimble that this will be kept under review.
I accept the good reasons why the opinion poll, as I called it, was taken. It was not a decision of the House, but I think that it would be more sensible not to press this amendment to a Division today and to allow the review to take place. I very much hope that this will show that Questions are not the bear pit that some have suggested and that it is possible to run them in a very civilised and sensible way, as they normally were, although they occasionally got out of hand. I therefore will not move my amendment.
Lord Balfe
At end insert “but that this House believes that the Lord Speaker should call members during oral questions, in a manner similar to that which pertains in the House of Commons; and calls on the Procedure and Privileges Committee to consider this matter and report by 31 October at the latest.”
Lord Balfe (Con)
I am afraid I am not going to be as helpful as my noble friend Lord Cormack. Some interesting points have been made during this debate. One of the most interesting is the fact that this proposal has been around for many years; indeed, I understand it was considered in 2006, when it was decided that it would not be quite this much of a regulated House.
I tabled a very reasoned amendment, which gives until 31 October for the points to be sorted out. The amendment
“calls on the Procedure and Privileges Committee to consider this matter and report”—
not to agree it but to consider it—because I think we need to consider the way forward for this House. I am gratified that a number of noble Lords have indicated their support and, on their behalf as much as mine, I would like to test the opinion of the House on this quite fundamental way of us going forward.
The Lord Speaker (Lord McFall of Alcluith)
The question will be decided by a remote Division. I instruct the clerk to start a remote Division.
The remote voting period is now open. Members are now invited to record their votes using the remote voting system. Members will have 10 minutes to record their votes. I will make an announcement when the remote voting period has ended. Clear the Bar.
The Lord Speaker (Lord McFall of Alcluith)
My Lords, as noble Lords are aware, there were technical problems with the Division system, but I am told it is now functioning so I will extend the Division by three minutes.
Baroness Smith of Basildon (Lab)
Can I just check with the Lord Speaker: if people have already voted, is that taken as a vote? Is there a way of putting the extension on the screen, and extending it for more than three minutes, as a number of Members have left the Chamber thinking they were unable to vote? I am not convinced that an extra three minutes is long enough.
The Lord Speaker (Lord McFall of Alcluith)
The votes of those who have voted will be recorded. Why do we not go for 10 minutes? Is that okay? Very good.
Baroness Smith of Basildon (Lab)
Can a message be put on the screen that the vote is still open for the next 10 minutes, please?
Business of the House
(2 years, 9 months ago)
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Baroness Evans of Bowes Park
That with effect from 6 September the previous motions agreed on 4 June 2020, 28 July 2020, 12 October 2020 and 9 February relating to the sittings of the hybrid House and the hybrid Grand Committee shall cease to have effect; and that until further notice:
(1) the provisions of Standing Orders 52 (Divisions), 53 (Votes counted in the House) and 54 (Voting in wrong lobby) shall not apply; and
(2) members may only cast their votes through the House of Lords remote voting system, in accordance with guidance set out in appendix 2 of the First Report of the Procedure and Privileges Committee (HL Paper 41).
Standing Orders (Public Business)
The Senior Deputy Speaker
That the standing orders relating to public business be amended as follows:
Insert the following new Standing Order:
“24A Arrangements for virtual participation by disabled members [13 July 2021]
(1) Members who may be physically unable to attend the House on grounds of long-term disability and may be eligible under the procedure agreed by the Commission can apply for eligible member status and if granted they may choose to participate virtually in proceedings in the Chamber.
(2) Eligible members may choose to participate virtually in all business of which there is sufficient notice:
(i) in business with a speakers’ list, eligible members should indicate that they wish to take part remotely when signing-up to speak;
(ii) in business without a speakers’ list, eligible members should indicate their wish to take part remotely by a given time the previous working day. In such business there will be a fixed point at which eligible members participating remotely are called to speak by the Chair.
(3) Eligible members may vote electronically or by telephone whether on or off the Parliamentary Estate.”
Allowances
(2 years, 9 months ago)
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Baroness Evans of Bowes Park
That:
(1) The Resolution of the House of 22 July 2020 (House of Lords Allowance), the Resolution of the House of 6 May 2020 (House of Lords Allowance) (as amended), and the Resolution of the House of 20 July 2010 (House of Lords Allowance) (as amended) cease to have effect in respect of attendances after 5 September 2021.
(2) Members of this House, except any Member who receives a salary under the Ministerial and other Salaries Act 1975 and the Chairman and Principal Deputy Chairman of Committees, should be entitled to an allowance in respect of each day of attendance on or after 6 September 2021 as provided for below.
(3) “Attendance” means attendance—
(a) at a sitting of this House,
(b) at a meeting or virtual meeting of a Committee of this House, or
(c) on such other Parliamentary business as may be determined by the House of Lords Commission.
(4) The amount of the allowance payable to a Member should be–—
(a) £323, or
(b) £162, if paragraph 5 applies.
(5) This paragraph applies if—
(a) the attendance relates to parliamentary business conducted away from Westminster, or
(b) the attendance is at Westminster but the Member elects that this paragraph should apply.
(6) In respect of attendance under paragraph 3(a), Members who have been deemed eligible by the process established by the Commission to participate virtually in sittings of the House are entitled to claim an allowance when they do so.
(7) In respect of attendance under paragraph 3(b), only Members of that Committee, or Members authorised to attend a meeting of such a Committee by the Chair, are entitled to claim an allowance.
(8) The provisions of this Resolution apply in accordance with guidance issued under the authority of the House of Lords Commission.
(9) In relation to the year beginning with 1 April 2022, and each subsequent year beginning with 1 April—
(a) any formula or mechanism included in the IPSA determination for the year as a result of section 4A(4) of the Parliamentary Standards Act 2009 (adjustment of MPs’ salaries) should be treated as applying for the purposes of adjusting for that year the amount of the allowance payable to a Member of this House, and
(b) accordingly, the amount of the allowance payable to a Member in respect of a day of attendance in that year should be—
(i) the amount obtained by applying the formula or mechanism to the amount payable by way of allowance (under paragraph 4 or this paragraph) in the previous year, or
(ii) where no formula or mechanism is included in the determination, the same amount payable by way of allowance (under paragraph 4 or this paragraph) in the previous year.
(10) In paragraph 9(a) “IPSA determination” means a determination under section 4(4) of the Parliamentary Standards Act 2009.
(11) Any fraction of a pound in an amount obtained under paragraph 9(b)(i) should be rounded up to the nearest pound if the fraction is 50p or more, but otherwise should be disregarded.
Early Years Foundation Stage (Miscellaneous Amendments) and Childcare Fees (Amendment) Regulations 2021
(2 years, 9 months ago)
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19:05 - Division conducted remotely on Lord Watson of Invergowrie’s Motion - Ayes: 216 / Noes: 232 - Motion disagreed.
Lord Watson of Invergowrie
That this House regrets that the Early Years Foundation Stage (Miscellaneous Amendments) and Childcare Fees (Amendment) Regulations 2021 introduces the Reception Baseline Assessment that takes effect in September 2021, when the workload of teachers will be significant, schools will be focused on re-opening, and special attention will need to be paid to those children who were unable to develop their language skills because of social isolation during the pandemic; and calls on Her Majesty’s Government to provide schools with the flexibility to defer implementation of the Reception Baseline Assessment for the cohort of children starting Reception this year until January 2022.
Relevant document: 53rd Report from the Secondary Legislation Scrutiny Committee, Session 2019-21 (special attention drawn to the instrument)
Lord Watson of Invergowrie (Lab) [V]
My Lords, I make no apology for the wording of this regret Motion being based on the Secondary Legislation Scrutiny Committee’s report, which very clearly set out the concerns felt by committee members after they had considered these regulations and their effect.
I want to make it clear that in tabling this regret Motion we are not anti-assessment. Assessment in schools is integral to measuring a child’s progress, which at this time is more important than ever. However, the reception baseline assessment that is the subject of these regulations does not assess, nor is it intended to, the progress of children—at least, not within a timeframe that would enable any improvements to be made. It is not a diagnostic assessment; it is designed as a data-collection exercise, with the data collected used to measure the progress of a child from reception to the end of key stage 2. The information will be locked away for a period of seven years, then used to measure school performance. The results will not be given to parents or teachers, other than a “narrative statement” with comments such as “the child recognised fewer than 10 numbers”.
The purpose of the baseline assessment is to produce a score by which the Government claim it will be possible to measure the quality of education. That ignores the views of experts such as the British Educational Research Association, which has said it is not possible to test four year-olds and get reliable data.
The Government say that the aims of the changes are
“to improve outcomes for all children at age 5, especially disadvantaged children and to reduce teacher and practitioner workload so that more time can be spent interacting with children in their care.”
There is nothing to disagree with there, but the baseline assessment was designed prior to the pandemic—an event that has disrupted children’s education and development in ways that could not have been foreseen and which will increase the extent to which children from disadvantaged families arrive at school less well-prepared than their more affluent counterparts. If the Government had said that the intention was to identify those children and provide them with specific, targeted help, that would have been welcome, because none of the paltry recovery funding that caused Sir Kevan Collins to resign is to be spent on under-fives.
The baseline assessment cannot be properly evaluated until 2028, when the first cohort tested at reception has taken their key stage 2 SATs. Perhaps the Minister can provide her understanding of how a 20-minute snapshot test taken at the age of four can be compared with the results of three days of tests taken under exam conditions at the age of 11, particularly when school cohorts can change markedly from reception to year 6. Children move schools, as do teachers and school leaders. The child’s unique pupil number will follow them, but if they begin at one school and move to another, perhaps even to a third, how can the school at either end of that process be measured?
Reception teachers will still carry out their own observation-based assessments over a period of weeks to gain a comprehensive and holistic picture of what each pupil can do. This will provide better information than anything gained from a snapshot 20-minute test. The Secondary Legislation Scrutiny Committee raised questions as to the various stages of development at which children present on their first day at school. For instance, a difference in age has been shown to produce pronounced developmental differences. Autumn-born children have demonstrated a strong advantage in attainment over their younger, summer-born peers in assessments similar to the one proposed.
I hope that the Minister can tell us what recognition will be given to contextual factors in the interpretation of the data. It is generally recognised that the only proper way to make comparisons between schools is to make adjustments for the prior attainments of their pupils when they enter those schools, and to control for other relevant characteristics of pupil intakes such as parents’ educational levels, family income and having English as an additional language. Such adjustments lead to what are known as value-added comparisons, a term that the Government have used in relation to the baseline assessment.
We are told that the assessment will be
“covering material that many pupils will already be familiar with.”
No doubt some will be familiar with that material, depending on what they have previously been taught, but what about those children who have not had the same experiences at home or in an early years setting? Children whose background experiences have not prepared them to answer the maths and English questions may have high levels of curiosity, motivation, and persistence, which will help them to make rapid progress in school, but the test cannot measure such things, nor can it measure motor skills.
When Schools Minister Nick Gibb MP began to experience pushback against the baseline assessment he wrote to all Conservative MPs to explain why it was happening and attached a factsheet in response to criticisms. The burden of administering the test was written off as being carried out “in normal teaching time”, but it is far from normal for teachers to spend many classroom hours in the crucial first weeks of reception taking children aside one-to-one to ask them structured questions. What will be the experience of the other 29 children during that time? That is why a delay is necessary.
Just last month, the Department for Education published a thematic report from the international early learning study, Young Children’s Development and Deprivation in England. It confirms that both family and school deprivation are related to lower development in emergent literacy, emergent numeracy and mental flexibility. It provides clear evidence that by measuring children’s numeracy and literacy outcomes, the baseline assessment is actually providing a proxy for measures of deprivation. That is particularly the case in the light of the pandemic, which should have occasioned a review of the baseline assessment on the grounds that the basis for the baseline has shifted, and certainly not in a positive way, for so many four year-olds. There is no shortage of evidence as to the significant impact on early years children, particularly those from disadvantaged families.
Teachers are currently planning for reception intakes of pupils who in many cases will not be school-ready. Teachers are having to modify their approaches and will be making continuous assessments, using their professional judgment, of the children in front of them. Requiring pupils to complete a baseline assessment at this time could be enormously challenging. A delay would give teachers time to prepare and enable them to focus on supporting children who faced a pared-down early years education. In preparation for these regulations, an equality assessment was conducted in January 2020. That is now hopelessly out of date. What steps have Ministers taken to satisfy themselves that the baseline assessment is now a fair measure, given the new set of challenges and the increased inequalities created in early years as a result of the pandemic?
If the baseline assessment is being used as a form of measurement with which to judge progress made during primary school, would it not make more sense to delay the process to help avoid a situation whereby pupils are producing results that are not reflective of their abilities due to education lost to the pandemic? Is it realistic to expect that a baseline assessment conducted in autumn 2021 is going to be useful or reflective of anything normal, let alone as a measure of progress in 2028? A delay would help support recovery in a way that is manageable for teachers and meaningful for children. With the reception baseline assessments set to be introduced in less than two months, those are all questions that parents are entitled to hear the Minister answer. I look forward to her response. I beg to move.
Lord Addington (LD)
My Lords, the more that I have thought about the Motion of the noble Lord, Lord Watson, who did a pretty good job in assessing what is happening, the more I cannot see why we are approving these regulations at all, to be perfectly honest. Unless we are going to use the information more quickly than after seven years, or whatever the period is, it will not make much difference to the pupils. Anything that does not make any difference for them but takes up teaching time is counterproductive, I should have thought.
If you are making an assessment in order to have a lovely idea of where pupils are and how a school is changing, seven years is a hell of a long time. How many head teachers will still be in place at the end of that period? How many teachers will have changed? That is relevant. What have we learned in the past 18 months or two years? What has been confirmed? Parents usually decide the start a child gets in life and the way in which that continues. If a child has had a disrupted school experience but has parents who will read to them, who have books in the house and who make sure that that child is not spending their entire time watching TV but watching even slightly better programmes, reading a book or listening to something on tape, that child will do better than children who do not get that. Therefore, affluence, aspiration and so on are the dominant factors.
These proposals are not going to tell us much. They will be introduced at a time when schools are going to have one of the weirdest ever and most varied intakes of pupils. All the normal conditions will have a multiplier on them. That is what we are saying. If the Government are hell-bent on bringing in these regulations for whatever reason, I suggest that some delay, even by a year, would make sense because you will still get the data and a more normal response. Bringing in the regulations now, rather than in a few months’ time, does not make any sense, to be honest.
There is some suggestion that areas such as language skills and special educational needs can be assessed. I cannot let that go without saying that there is a variety of categories of special educational needs, some of which are neurological and some are not. The assessments will not really help because people will be struggling in the dark again. We know that those from less affluent backgrounds are not spotted because of all the issues upon which I have already commented. If a child does not have good verbal reasoning and therefore cannot express themselves, the difference between what that child can achieve on paper or verbally cannot be assessed. That may be down to the environment, which has, I say once again, been disrupted.
There seems to be no good reason for these proposals, other than for assessing the general development of a school over a period. The noble Lord, Lord Watson, is right in calling for a delay but he might have been a little timorous on the amount of delay required.
Lord Knight of Weymouth (Lab)
My Lords, I remind you of my interests in respect of education, in particular that I am chair-elect of E-ACT academy group, which has a number of primary schools.
My understanding of the tests is that classroom teachers in reception will spend 20 to 30 minutes one to one with a child, who may be aged four years and a day, or four years and 364 days—which is a huge age range in relative terms, if you have been alive only that long—recording the answers to questions in respect of literacy and maths and so on that have been devised by the National Foundation for Educational Research. Teachers will record them as faithfully as they can, and the questions are adaptable, so they will change according to the answers given. If my understanding is incorrect, I would welcome the Minister letting me know.
I can see the temptation for Ministers to put a baseline at the beginning of primary in order to be able to measure the success of primary schools. Ministers in the past have been tempted; the Labour Government that I was a member of had a go at this, and it was withdrawn, and there was a pilot of this relatively recently, which was also withdrawn. In the end it is always withdrawn because it does not really work, so I am hugely sympathetic to the noble Lord, Lord Addington, and very supportive of my noble friend Lord Watson and his Motion.
If this was about child development, I could support the regulations because, like my noble friend, I believe in the importance of assessment as a fundamental part of teaching, but it must be assessment for learning. The problems always come when you redouble the use of that assessment for accountability. In this case, it is not being used for learning and child development at all. We are not measuring any of the physical, social and emotional aspects of a child; we are just measuring some of the cognitive ones as best we can, given the huge range of capability that children of that age have.
The results will not be shared with parents, nor really with teachers, and I do not really understand how that will work in data protection terms. Indeed, I think the Information Commissioner is still waiting to hear how withholding the results from parents will work in data protection terms. It is not at all about child development; it is solely about accountability. Can it work on that basis? Can it work with the variety of results that children of that age will be able to produce?
Given the very different experiences of preschool learning—especially in this coming year—and a decline in the numbers able to attend nursery education during Covid, I see huge variability in what we will get. You get children moving schools during the primary phase, because it is a long phase, and the more churn you have in the school environment the more the results and the accountability measure for the school will get skewed. I foresee that a head teacher who is cynical or anxious about accountability will want to pull in as many summer-born children as possible because they will come in low on the scores, so that they can maximise progress. I foresee that same anxious head teacher looking at children who want to come in after the baseline assessment has taken place and looking anxiously at whether they are likely to be under or over the baseline average for the school because that, in the end, will affect accountability.
Those issues are all really problematic. Then there are the issues of the data itself. The data will be recorded and will be relatively secret but, as I understand it, it will then link to the national pupil database. I would be interested to hear from the Minister how that and the fair processing regulations around data will work. I am afraid that the Department for Education does not have a very good record with the Information Commissioner on the handling of personal data. Quite a significant amount of personal data about children will be held. Can the Minister reassure those listening that that data will never be made available to commercial interests, about which there have been some questions asked of the Department for Education in the past? I am concerned about reliability.
I offer an alternative to the Minister, if she wants this sort of accountability school by school. You can use samples of tests; you can choose to sample a number of children in a school, which is cheaper and quicker. You are not taking teachers out of class for quite as long. If it takes 20 minutes—I cannot remember the maths—it becomes something like 10 hours of lost teacher time, right at the beginning of the school year, when it is most important to spend time getting a child socialised and used to being in school. You would lose less time if you did sampling. It would be cheaper and you would still have reasonable results, which would be just as reliable as the slightly dodgy, unreliable things that this test would produce.
As the noble Lord, Lord Addington, said, there are issues around SEND, special educational needs and disabilities, and whether they will properly be accounted for in the adaptive questioning that will be carried out, because you need quite high levels of adaptive questioning in the system as it is being designed.
From my point of view, I do not think this will work. If the Minister really believes that it can work, she or her department need to take time to look at this and answer some of the questions before bringing it in. September is definitely not a safe and reliable time to bring it in, so I urge her to listen to the Motion and, if it is pressed, I will support it.
Baroness D’Souza (CB) [V]
My Lords, once again the issue of monitoring and evaluation is upon us, this time to measure a child’s progress throughout his or her primary school years. But, as we know, there are flaws in all measuring systems, and in the reception baseline assessment more than most. It is based on the mistaken and unproven assumption that all four to five year-olds can be tested as a reasonably uniform group. We know this not to be true: very young children do not display their true abilities in a context outside familiar relationships and practical experience. For this reason alone, the reception baseline assessment arises from a false premise—that variation between children is a negligible factor and that difference between schools overrides socioeconomic background influences.
I am therefore led to believe that the decision to implement the baseline assessment in the new school year, in September, is purely political or has that context. The conclusion must be that the baseline assessment has been created to compare schools and their performances, not the individual achievements of children. As such, it is clearly a political and somewhat arbitrary decision, not one based on relevant and recent research.
The British Educational Research Association concludes that
“too much reliance is being given to test data that cannot bear the weight of interpretation placed upon them”.
Many noble Lords have made and will continue to make these points, but it seems extraordinary that, in times of such concern about our children and the severe difficulties that the pandemic has posed for many of them—increased poverty and all that implies, catch-up and mental health issues—this effectively takes teachers away from their primary task of building relationships with four to five year-olds. That the Government plan to expend £9.8 million on a baseline assessment programme is, to my mind, not a good use of money and somewhat extraordinary.
Would that sum not be better spent on appointing an overall senior figure, preferably at Cabinet level, to co-ordinate the many excellent projects from expert organisations, including the Education Select Committee; and to ensure that the DfE spends its scarce resources wisely and, most importantly, effectively to support the education of children from early years, and does not waste precious time and money on assessments that will prove nothing of value? At the very least, in view of the criticisms that have already been made, and no doubt will be made, in this debate, will the Government not agree to delay the implementation of this faulty plan for a few years to come?
Baroness Blower (Lab)
My Lords, it is pleasure to speak in the debate alongside my noble friend Lord Knight and the noble Lord, Lord Addington. As a former teacher, I can say categorically and without fear of contradiction that I am not anti- assessment, which is a central part of the teaching and learning process, but reception baseline assessment has very few friends and supporters. A teacher who engaged in an earlier iteration of this process described baseline assessment in no uncertain terms. She said it was unreliable, unethical, immoral and expensive, and that it should go once and for all. That is not the proposal before your Lordships’ House today, but it is worth considering why any early years professional should feel like this and how widespread that feeling is.
Is it unreliable? The British Educational Research Association, a highly regarded body, points out that assessing very young children—we are talking here about four year-olds, who have been locked down during this pandemic—is inherently unreliable. As the BERA report points out, any results would have
“little predictive power and dubious validity”.
Is it unethical? The reception baseline assessment is an accountability measure whose sole purpose is to judge the performance of schools. It is not to assist any child in any way at all. What is provided by the test is explicitly of no diagnostic value. They are to be used only as a cohort measure and the data will be used only at the end of year 6, as other noble Lords have said, to measure school-level progress. Yet, as other noble Lords have also said, over seven years a school cohort could change by up to 50%. Trying to reflect all the various changes accurately in any kind of algorithm could never really do so properly. Previous experience of the ill-fated and discredited algorithm for GCSEs demonstrates this. The current legislation also provides no information on the precise use to which the data will be put, other than that it will be entered on the national pupil database. Can the Minister expand beyond saying that it will be black-boxed?
Is it immoral? I am sure we all know that the first few days and weeks in a reception class are important for establishing, supporting, encouraging and nurturing relationships between children and their families and the team of early years professionals. But 69% of teachers involved in a 2019 pilot believed that the tests had had a negative impact on the settling-in period, which is not surprising when one realises that the teacher has to leave the classroom for 20 to 30 minutes at a time to conduct these tests with each child. For a class of 30, that could represent up to 15 hours of teaching time lost in those first important days of term.
However hard the teacher tries, though, according to University College London research, children know that they are being tested. This leads to some becoming anxious and feeling stressed, and to some possibly even feeling a sense of failure. That is a pretty inauspicious start to an education for any child.
Finally, is it expensive? My noble friend Lord Knight has already referred to the fact that if this were needed, we could do it much more cheaply by simply sampling. There is plenty of academic research on that being a suitable way of recording what cohorts can do. In my view, however, teacher time ought to be more highly valued than it is at present. I am sure it will be argued that the reception baseline assessment will reduce teacher workload, particularly in comparison with the early years foundation stage profile.
It is true that the early years foundation stage profile takes a lot of teacher time, but it is valuable teacher time productively spent. Frankly, any money spent on this reception baseline assessment system, which has attracted an open letter from 700 experts, educationists and parent groups describing the government plans as “pointless and damaging”, alongside an expert panel from BERA describing the assessment as
“flawed, unjustified and totally unfit for purpose”,
looks like a significant waste of resources, however much it is.
Research from University College London in 2020 showed that 86% of head teachers have negative opinions about reception baseline assessment, and research from More Than a Score, a campaigning organisation with which I have worked, found that 65% of parents are opposed to the testing of four year-olds as they start school. This should not be how children start the important lifelong learning journey on which they should engage. It is simply not appropriate.
Viscount Hanworth (Lab)
This Motion expresses regret at many aspects of the Government’s approach to education and I wish to express my regret over an issue that does not fall directly under the rubric of the Motion but which is nevertheless a matter of prime importance. It is a matter that I have already raised with the Minister, to whom I have sent a substantial dossier, and with whom I have requested a meeting, although as yet with no response.
On 22 February, I asked the Government what estimate they have made of the proportion of teacher posts in London and elsewhere in England that are currently filled by supply teacher agencies. I was told that the department does not hold data, but that nevertheless it is recognised that supply teachers perform a valuable role by covering temporary staff absences. What the Department for Education seems to have failed to recognise is that in England, many—if not the majority of—young teachers who are beginning their careers work as supply teachers, who are paid for the hours that they work. The fees charged by their agencies reduce their wages significantly. Schools have an incentive to employ supply teachers because this relieves them of the need to provide holiday or sickness pay, a consideration when budgets are tight. It also facilitates financial retrenchment, since they can more easily reduce staffing costs by releasing the supply teachers.
These circumstances have arisen at a time when local authorities have been losing control of the governance of the profession, through the rise of independent schools and academies. Hitherto, local authorities were the agents that supplied teachers to schools. Nowadays in England teachers are supplied by commercial agencies which have incentives that are not always well aligned with the best interests of education.
By coincidence, the Lords Secondary Legislation Scrutiny Committee, of which I am a member, has received notice of a statutory instrument that proposes a 10% reduction in the hours to be worked by early-career teachers. This is intended as a means of reducing the wastage whereby a large proportion of young teachers leave the profession within a few years. This allowance is confined to those who have obtained permanent posts, who are in the minority, and it does not take much thought to understand that it poses a disincentive to appoint teachers to permanent posts. I marvel at the obtuseness of the officials at the Department for Education who have proposed this policy. I regret that I did not take the opportunity to pour scorn and derision on it in a Grand Committee, when it could have been called into question.
In response to an inquiry from the Secondary Legislation Scrutiny Committee relating to the statutory instrument, the Department for Education stated:
“Supply agencies … are private companies and as such have discretion over individual pay—the teacher’s terms and conditions (including pay) will be a matter between the supply teacher and the agency by which they are employed.”
This seems to indicate that in the present circumstances, neither the Government nor the local authorities have any leverage to apply to the problem. They are simply ignoring the problem. I believe that the circumstances that are revealed are undermining the teaching profession and are the principal cause of the wastage whereby a large proportion of young teachers leave the profession within a few years of joining.
There is an urgent need to address this problem and I believe that some steps that could be taken are self-evident. I would welcome an opportunity to acquaint the officials at the Department for Education with the devastating facts that I have learned. I also hope to discuss with them the possible remedies.
Baroness Bennett of Manor Castle (GP) [V]
My Lords, as happens all too often in these debates, I find myself beginning with the regret that the regret Motion is not something stronger. None the less, I thank the noble Lord, Lord Watson of Invergowrie, for tabling this Motion and ensuring that the House has the chance to air these issues.
I start from a very different philosophical position from that of the noble Lord, Lord Watson. I believe that tests and exams are a harmful part of our system. They are far too dominant, consuming vast hours wastefully in preparation and cramming, and are a major contributor to mental ill-health. To what purpose? They test how well you do tests and exams and little more. I can say that from personal experience, having over the years got high marks in subjects of which I knew little to nothing, simply by working out what I needed to do for the test, rote learning it and forgetting it as I walked out the door of the exam room. I am not proud of that, but that is what the education system taught me to do.
For many people, we know that tests and exams are a hugely stressful, damaging experience, in which they cannot show their true colours, skills, talents, ability or knowledge. In the modern world, with search engines at your fingertips and the need to think creatively, critically and flexibly, they are particularly poorly equipped as any kind of preparation for life—a life that will require you to co-operate with others rather than compete against them. Preparation for life is what our education system should be, not just exams.
Some of those arguments will not apply to these tests. One would hope that they will not be stressful and that there would not be cramming for them, although, given the panicked competition some parents feel and the pressure on teachers, that cannot by any means be guaranteed. None the less, there are powerful arguments against them and the strongest was made to me some years ago by a school head in North Yorkshire when these tests were first mooted. She said: “I don’t want to start children’s school lives by damaging them with a test”, surprising herself, I think, as she found herself near to tears at the thought. That is a view I have subsequently heard from many caring teachers and expert scholars, and is reflected in the briefings that I and, I am sure, many others have received.
The More Than a Score campaign group—in which I declare an interest as I work with it regularly—notes the utter senselessness of testing four year-olds. You could run the same test three days running and get three utterly different results: it depends on how the child is feeling at the time. I note too that the petition against reception baseline assessment had 112,000 signatures.
For many children standardised tests are utterly unsuitable: those with special educational needs, with English as a second language or, as we all know too well, with the massive, indefensibly ridiculous disadvantage of a summer birthday—a great flaw in our rigidly age-straitjacketed educational system. The settling-in period for primary school is different for different children. For some it is a great adventure, for others it is a terrifying ordeal no matter how much care and compassion they are shown. That is definitely going to show in the test results.
I note that the British Educational Research Association expert panel questioned the accuracy of the data and how it could be used to support children's learning, stating that these tests cannot be “accurate or fair”. Under normal conditions, in the early weeks as children start, schools make assessments of their educational needs. But they do it in a non-intrusive and continuous way, using the teacher’s professional judgement rather than a one-off binary test in which answers are recorded as “yes” or “no”, with no space for comments.
There is also a further risk of damage in reducing the time for play. We know that play is crucial for the development of children’s linguistic and cognitive skills, as well as beneficial for well-being and self-regulation. If you have a class of 30 taking 30 minutes for each test, that is 15 hours of lost teaching time in the first few weeks, not including the time spent preparing for the assessment and recording the results.
I also wish to add my voice to the question raised by the noble Lord, Lord Knight of Weymouth, noting that we have no guarantee that this data will not be sold to commercial organisations. In the Minister’s answer could we have that guarantee?
It is telling that we are being told that this aims to close the attainment gap, yet there is absolutely no evidence of how it might do that. We do have a huge problem with the attainment gap, reflecting the fact that levels of inequality—and poverty—in our society are extraordinarily wide. Schools can help, of course, but they cannot fix this problem. The only certain way to reduce the attainment gap is to end poverty and reduce inequality.
This test does nothing at all for teachers or pupils. It is designed and intended solely as a system measure. It is, therefore, all about the data and not about the child. I seem to have taken part in a lot of medical debates in your Lordships’ House in the past year. One of the phrases that comes up again and again in those is “First do no harm”. The proposal for these baseline reception assessments does harm and there is no evidence of benefit.
I agree with the noble Lord, Lord Addington, that we should not use Covid as a reason for delaying the introduction of these tests, as strong as that reason is. We should simply abandon the whole misguided idea of reception baseline assessments. They are, like far too many things we see from this Government, a piece of theatre—a simulacrum of action, rather than an effective delivery of change. That would require actual resources, funding and support for schools—action to tackle the poverty and inequality that are the cause of the attainment gap.
Lord Hunt of Kings Heath (Lab) [V]
My Lords, I support my noble friend’s regret Motion but, like other noble Lords, I go further and say that never is the right time to introduce these absurd baseline tests for four year-olds. They should be allowed to wither on the vine. But this is all on a par with Michael Gove’s introduction of rigid exam systems, built on by Nick Gibb’s rote learning and testing, rather than the development of skills that would be useful to pupils in later lives and work, and actually stimulating during their school years.
I recall Ed Balls deciding there was too much testing in education and withdrawing the SATs for key stage 3—for 13-year-olds. They were pointless and have not been missed. We are all aware that SATs increase stress for the pupils who undertake them and the staff who run them, and we are aware of the perverse incentives they give to head teachers. In what way does this improve the education of young people? As the More Than a Score campaign group has put it,
“statutory tests have been cancelled for two years now with zero negative impact on pupils’ education or on school performance. Paradoxically, while their absence has barely registered, their presence creates unwarranted stress on young children and schools, narrows the curriculum, and generates a fear of failure within the whole school community”,
and, as I said, they lead to perverse behaviour by head teachers under pressure.
Has anyone heard from parents, staff or children a cry of, “Oh no, we didn’t have year 2 or year 6 SATs?” No, because they are pointless. It is interesting that private schools do not have to do SATs. In 2018 it was calculated that only 18% of them do so. Schools that have the choice do not generally use them; state schools do not get that choice. Yet the Government now want to introduce the additional test for children starting school at the age of four—and they seem to think that September, after 18 months of Covid restrictions, which have had a big negative impact on the development of children, is the right time to implement this.
Looking at Covid, we know that childcare settings and support have been closed or limited and that parents are under intense pressure and often less able to devote time to the development of their preschool children because of the pressure to support the education of school-age children. We know that half of parents questioned said that their child was not spending time playing with friends in their home, meaning that they were missing out on vital socialising skills. How on earth could the Government think that this is the right time to introduce such a deeply flawed approach to education? Why would anyone want schools across the country to devote time to these baseline assessments rather than support young children often worse prepared for formal education than their predecessors?
The Government have said that each child will need to be assessed by a teacher for 20 to 30 minutes to collect data for the Minister’s department. This data will not benefit the child in any way. For a class of 30 children, that is a minimum of 10 hours’ learning time in the first weeks of school. It could be 15 hours. The data will not be used to support children. As we have heard, it will be used by the DfE to judge the school. The data will be collected by teachers at just the time when they should be settling young children into the school environment, not wasting their time testing them.
We know that there are serious questions about the reliability of these tests based on pilot testing. My noble friend Lord Knight speaks with great authority on that. We have already heard about the educational experts who have written to the Government about the RBA, saying that it was pointless and damaging. I know that this Government distrust experts, because they want to hear only prejudice. Is it not time, however, that they listened to the evidence and began to trust teachers and head teachers?
Kevin Courtney, joint general-secretary of the NEU said:
“In yet another end-of-term announcement, the government is confronting schools with new, unnecessary and harmful policies.”
What do the Government have against our teachers? I hope the Minister will be able to respond.
One advantage of home education during Covid is that parents have seen what a restricted and tedious curriculum this Government have forced into primary schools. As one parent put it:
“The curriculum is joyless, both to teach and to learn. In some parts it is developmentally inappropriate. For example, too little time is spent on the foundations of maths.”
Another commented:
“I was shocked and dismayed by the content of the English curriculum. It appeared that children were learning how to classify language to satisfy testing requirements and nothing more.”
How damning that is about the wretched education system this Government are putting on to our children.
I hope the Minister will listen to what is said tonight. This baseline testing really goes to the heart of the dreadful education system that the Government are putting on our children, which is having such a negative impact on their development.
Lord Storey (LD)
My Lords, I very much agree with the noble Lord, Lord Hunt, about SATs in primary schools, but I gently remind him that it was his Government who brought in a whole raft of testing through SATs in our primary sector. Never mind—a sinner reformed and all the rest.
First, I thank the noble Lord, Lord Watson, for this regret Motion. It is important to assess four and five year-old children in their first few months in school. Children start school in different ways. Some are excited and eager to start to play and learn. Some are shy and nervous at this big change to their lives, and some are very frightened at this big step. Those first few days and first few months—indeed, the first term—are an enormously important time for them to settle into their classroom environment; a time to gradually learn through play and discovery. The reception class teacher and teaching assistants need to get to know the child, work with the child and play with the child. This time of observation and learning is absolutely crucial to a child’s development and critical in the assessment of a child’s needs and development. It is a time for the early identification of any special needs a child may have.
These early weeks and first term are the time not only to get to know the child but to arrange to meet the parents, grandparents and carers, not just at the classroom door, but through home visits. In this way, the teacher can really understand the whole child—their interests and skills, the things they like doing, the things that make them happy and the things that make them unhappy.
Why do I have concerns about reception baseline assessment? The Department for Education says that by giving each child a baseline assessment when the child first starts primary school, schools will not only have a clearer idea of how much progress pupils are making but should be able to identify which children are likely to need extra help.
Children of just four and five already have to contend with the anxiety of starting school and are often daunted by unfamiliar tasks at this stage. Concentration levels may be an issue, particularly for summer-born pupils almost a year younger than their autumn-born peers. It would be good if the Government took a proper look at these children and brought forward proposals on how to support them.
Checks administered on a one-to-one basis are time consuming for teachers as well. At the very time they should be getting to know the children, they will be spending time—20 to 30 minutes per child—probably out of the classroom. With a class of potentially 30 children, that is several hours when the teacher could have been with the children in the classroom.
The Government have an interesting history on baseline assessment. In September 2016, the DfE was due to introduce a reception baseline check for all children. The Government suggested that the new tests would ensure higher standards and allow all pupils to receive the attention they needed and build on areas of weakness. Schools piloted three different types of assessment. A third of the pilot schools had tests carried out one to one with a reception teacher; these focused on the very basics of learning such as counting and picture, letter and number recognition. The NFER assessment used common reception resources such as counting beads, plastic shapes and number and picture cards, and the children worked through activities while the teacher recorded their progress on a digital device. The other third of schools decided to use an assessment that relied on teachers’ observations of children’s skills within the normal day-to-day school routine. This method of assessment was designed so that the children did not even know they were being tested.
In the summer of 2016, the baseline check was put on hold indefinitely and teachers were told to continue with the early years foundation stage profile pending further decisions. This decision was taken because the Government confided that the three pilots could be taken by the same child and come out with different results. So we see that the data provided by reception baseline assessment is sometimes—indeed, often—unreliable.
Administering tasks and tests, which takes teachers away from the classroom at the very time they want to get to know the children, is not the right way to proceed. Let me give an example. Imagine this: little Elizabeth starts reception. She is nervous and in wonder mode. In her first few days, as she is getting to know the classroom environment and the teacher, she is taken out of the classroom and tested. She then goes back into the classroom. What happens to those results? Do her parents get to know them? Do her next six teachers get to know them? What happens at the end of those seven years? What happens if little Elizabeth has not made the progress she should have made? Will the Government do anything to the teachers or to the school? What is the purpose of those tests and that assessment?
As has been said, now—when schools are still struggling with the problems of Covid—is certainly not the time to experiment with this baseline assessment. As we have also heard, at a time when early years resources are quite limited, now is not the time to spend money on an ambitious scheme when we do not know whether it will be successful.
Baroness Wilcox of Newport (Lab)
In this debate, we have learned that the reception baseline assessment is a short assessment taken in the first six weeks in which a child begins reception. As my noble friend Lord Watson stated at the outset, we are not against assessment.
This debate refers to the Childcare Act 2006 and the Early Years Foundation Stage (Learning and Development Requirements) Order 2007, which underpin the requirement for schools to administer the RBA. The legislation has been amended to ensure that the assessment is included in these requirements on a statutory basis; this statutory basis forms the basis of this regret Motion in the name of my noble friend Lord Watson, who argued comprehensively for a flexible delay in the light of the pandemic, allowing teachers to focus on the greatest needs of those in need.
We have learned that the RBA assesses a child in early mathematics, literacy, communication and language and that its purpose is to form the starting point for cohort-level school progress measures. We understand the purpose and need for a baseline assessment of where a young child begins their formal entry into education and that data is used as a benchmark for recognising progress, but many noble Lords have argued powerfully in this debate for the complete abolition of the test, and I understand their views.
However, the basis of this regret Motion is to highlight the fixed position of the statutory basis beginning in September. We are asking for a little more flexibility to be written into the regulations so that schools, which have been through the most incredible and incredulous time since March 2020, have the ability to administer the test according to their particular circumstances throughout the autumn term and do not remain fixed to the window of six weeks, as noted in the administration.
I am pleased to see in the guidance that scores are not shared or published, to prevent labelling or streaming of children or judgment of early years providers, and that teachers receive a series of narrative statements informing them how the child performed on the day but, as my noble friend Lady Blower noted, the current legislation does not make explicit what will happen to that data. Furthermore, she informed us of the unsettling effect that such testing has at the start of a child’s education.
The teachers’ guidance document notes that the RBA assessment should sit alongside the important activity that takes place during the first term of reception. If the Minister agrees to review the timeline so that assessment could take place during the most appropriate time for the school and the early years pupils in the first two terms of reception, it would assist many schools and pupils to concentrate on other important activities that could take place at the optimum time for the school and the pupils after the most disrupted 18 months of learning in our experience.
My noble friend Lord Knight made many apposite points, including about the efficacy of taking up scarce teacher time that could be better used in direct classroom learning. Parents may be concerned about the pressure and disruption that RBA will place on very young children, many of whom have had a very disrupted early years experience due to the pandemic.
Can the Minister assure the families of children undergoing these assessments that every effort will be made to ensure that they are at ease and that the assessments are not disruptive to school integration? How will the impact of catch-up time for lost learning be factored in? Some children starting reception and undergoing these tests will have just turned four, whereas some of their fellow pupils will have already turned or will soon turn five. How will this large age discrepancy be accounted for in the assessment? I support the Motion.
The Parliamentary Under-Secretary of State, Department for Education and Department for International Trade (Baroness Berridge) (Con)
My Lords, I thank the noble Lord, Lord Watson, for tabling this Motion and I welcome the opportunity to discuss the regulations. I also thank the Secondary Legislation Scrutiny Committee for its detailed examination of the regulations. At the start of the debate, I particularly want to welcome and thank the noble Lord, Lord Knight, as chairman-elect of E-ACT, and I look forward to working with him in its delivery of excellent education.
The reforms to the early years foundation stage that form part of this statutory instrument have been several years in the making—with consultation, of course. The aim is to strengthen the early years curriculum, assessment and practice to improve outcomes for all children and to close the disadvantage gap, which the noble Baroness, Lady Bennett, mentioned.
There has been considerable research into and evidence about the developmental stage, particularly over the past five to 10 years, which underpin this. The changes were devised with child development experts using the latest evidence on what is most important for supporting the learning and development of our youngest children. The early years foundation stage reforms were consulted on, and more than 3,000 schools have taken part in the early adoption year this year. It is important to note that, as the noble Lord, Lord Storey, and other noble Lords mentioned, the purpose of those reforms is to free up more pupil and teacher contact time for teachers to get to know their students, which helps to identify many of the special educational needs that the noble Lord, Lord Addington, often speaks about.
Likewise, the reception baseline assessment, or RBA, has been developed over a number of years with the Standards and Testing Agency working closely with teachers and school leaders at every stage. The noble Baronesses, Lady D’Souza and Lady Blower, among others, mentioned the British research project and validity. As I say, this has been piloted in the majority of primary schools and a validity report was published in February 2020 that provides evidence that the RBA satisfies four key requirements: first, that assessment is age appropriate; secondly, that the assessment results provide a fair measure of pupil performance; thirdly, that pupil performance is comparable within and across schools; and fourthly, that the meaning of RBA data is clear to those responsible for assessing the progress measure.
It is important to note at this point, given that many noble Lords raised the issue, including the noble Baroness, Lady Blower, that this is not an attainment measure but a progress measure and it is not unethical. We have the Progress 8 measure at secondary schools, and it is akin to that. We have had no challenges, saying that that is an unethical way to handle data. It is a short, interactive and practical assessment and will use age-appropriate resources that are easy for pupils to handle. Pupils do not have to prepare for this, either in school or at home. It will be very similar to other on-entry assessments currently carried out in reception classes in most of our schools. Most noble Lords mentioned teacher workload, and the good news is that once fully established, it will form the baseline for primary progress measurements, in place of key stage 1 assessments. Most noble Lords would, I hope, welcome the reduction in workload.
Noble Lords have rightly highlighted specific concerns about the RBA and the timing of its introduction, but the Government are confident that we are taking the right approach. It is important that we hold schools to account for the progress they make with their pupils, ensuring that all pupils are being supported to achieve, regardless of their background, prior attainment or additional needs. The RBA will enable us to do this in a fairer way. The noble Lords, Lord Knight and Lord Storey, and the noble Baroness, Lady Wilcox, mentioned the different cohorts and summer-born and autumn-born pupils. This is a measure of a cohort in those schools, so summer and autumn-born pupils will be spread across the country. A school will not be disadvantaged because the summer and autumn born, while not spread equally across the population, are spread across our schools generally, so this will not be detrimental.
On the value we place on teachers, particularly in the earliest foundation stage, we do value them and that is why £153 million has been allocated for professional development for early years. The RBA means that primary progress measures will in future include the crucial first three years of primary school, which, of course, key stage 1 currently does not. We know that not all pupils start school at the same point in their development, and the RBA will enable us to understand the progress pupils make throughout their time in that school. That is one of the reasons why, when we consulted in 2017, a clear majority agreed with moving the baseline assessment point away from key stage 1 to reception.
The RBA will give parents better information with which to make informed decisions about schooling and, once fully established it will, as I say, end the key stage 1 assessments. It is not a measure of attainment; it is just an assessment at all entry points. I say to the noble Baroness, Lady Wilcox, that if we give more flexibility than six weeks or delay until January 2022, it will not be a meaningful comparison for the children who enter in September, once you move that baseline point. It is for students when they enter school, within that six weeks. That is the validity of this report, so delaying until January 2022, when most students will have started in September, would undermine the validity of the data.
A number of noble Lords, particularly the noble Lord, Lord Knight, raised the issue of data protection. We have regularly consulted with the Information Commissioner’s Office when developing the data aspects of the RBA, and we are confident we are taking the right approach. The data will be stored on the national pupil database in a way that means it cannot be accessed by anyone other than the analysts who will, in X years’ time, be using it to measure progress. It will not be available to commercial organisations because of data control—I think that is the technical name. In order to be valid, this needs to be delivered as close as possible to the start of reception, so, unfortunately for noble Lords, we cannot delay until January.
I know that noble Lords are concerned about teacher workloads, and we are enormously grateful for the work that teachers have done during the pandemic. We have been taking decisive action to make improvements and reduce teacher workload.
I would like to reassure noble Lords that preparation time for teachers is limited and the RBA should take no longer than 20 minutes per child, with the average assessment taking 14 minutes. In addition, one of the principal aims of the changes to the early years foundation stage was to reduce the workload. Schools—and, if they wish, parents—will also receive a series of short narrative statements about the child’s performance in the assessment, which can help inform classroom practice, including understanding where children’s language skills may need further attention, so that children are given the right support at this critical time. Because it is a progress measure, and even though we have had the pandemic and we know the effect, schools will be given credit for this. Obviously, it is based on where the child has started: it is not an attainment measure but a progress measure, so overall, schools will be given credit for all the catch-up that we know they have been working hard on recently.
In relation to children with special educational needs, measures have been specifically developed with a SEND reviewer. We are confident that the test can be adapted, and the feedback from the 3,000 early adopter schools which, even during Covid, chose voluntarily to do this, is that, actually, many children enjoy it. It is more like a quiz kind of assessment; it is age-appropriate to them. Some wanted it to carry on because they were so enjoying what they were doing in the classroom, so it is not a traditional form of exam.
The RBA is about fairness for schools, parents and pupils. It will provide a baseline for a fairer progress measure for schools, and ultimately reduce the overall assessment burden and provide parents with better information. Along with the reforms to the early years foundation stage that these regulations introduce, RBA will improve provision in early years and reception. Covid-19 makes that improvement all the more urgent.
The noble Viscount, Lord Hanworth, mentioned a matter that in fact relates to a different statutory instrument, so I will write to him.
I hope I have reassured noble Lords that this will have a positive impact and will enable schools to be given credit overall for the catch-up they will be doing with our pupils, because this is a progress measure, not an attainment measure, and we will be introducing it as of September this year. Schools have had the information about the tests since March 2021, so there has been sufficient advance notice to the workforce.
Lord Watson of Invergowrie (Lab) [V]
My Lords, I thank the Minister for her response. I also thank all noble Lords who have spoken. It is not often that I am accused of being timorous, as suggested by the noble Lord, Lord Addington, but I am sure he meant it as a compliment. The Back-Bench speakers were all opposed to reception baseline assessment; only the strength of their rhetoric varied. The Minister must have felt that she was very much swimming against the tide, although I suspect that is not a position that she is entirely unfamiliar with.
I thank the Minister for her valiant attempt to respond to noble Lords, but ultimately she merely reinforced the Government’s position that the reception baseline assessment will have a start date of September. For that reason, I wish to test the opinion of your Lordships’ House.
Arrangement of Business
The Deputy Speaker (Baroness Garden of Frognal) (LD)
We now come to the Merchant Shipping (Cargo Ship) (Bilge Alarm) Regulations 2021. My Lords! Lord Storey, I am standing. The time limit for this debate is one hour.
Merchant Shipping (Cargo Ship) (Bilge Alarm) Regulations 2021
(2 years, 9 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
20:12 - Division conducted remotely on Lord Berkeley’s Motion - Ayes: 179 / Noes: 211 - Motion disagreed.
Lord Berkeley
That this House regrets that the Merchant Shipping (Cargo Ship) (Bilge Alarm) Regulations 2021 (SI 2021/592), introduced as a result of the accident involving the ‘Abigail H’ at the port of Heysham in November 2008, have taken over 11 years to be introduced; further regrets that this delay has put at risk the safety of crews of 425 ships of a similar type on the UK Ship Register; and notes that nine similar incidents to those at Heysham had been reported to the Marine and Coastguard Agency since 1996.
Relevant document: 4th Report from the Secondary Legislation Scrutiny Committee
Lord Berkeley (Lab) [V]
My Lords, I declare my interest as honorary president of the UK Maritime Pilots Association. I thank the Secondary Legislation Scrutiny Committee for drawing our attention to these regulations.
In moving this Motion, I want to make it quite clear that, of course, I support the Merchant Shipping (Cargo Ship) (Bilge Alarm) Regulations 2021. I shall explain why, but my concern—my regret—is that it has taken over 11 years to introduce these regulations and that the incident was not just a one-off. I believe it is a question of the safety of over 400 ships of a similar type on the UK Ship Register, and nine similar incidents to that which happened at Heysham—which I shall come on to—were reported to the Maritime and Coastguard Agency in the last 25 years. My concern, which I shall explain, is about the delay.
I am sure that noble Lords will have read the excellent Marine Accident Investigation Branch report into this incident from 2009. They will know that four people were asleep on board this dredger, which was tied up to a quay, and that four of the crewmen were suddenly thrown out of their bunk because water had come in and made the vessel unstable. It was a merciful relief that the vessel heeled and tipped towards the quay, which stopped it going further, rather than heeling out the other side, rolling into the deep water and maybe causing loss of life. This is a really serious issue. As the MAIB report said:
“It is unlikely that the mooring lines would have restrained Abigail H if it had rolled away from the quay, and the crew were extremely fortunate to escape without injury.”
As I said, this was not a one-off: it affects over 400 ships around the coast. I have lived for many years in Cornwall next to a small shipyard that builds and repairs fishing boats and other small boats. I have seen their condition: some of them are very good when they come in and some are not so good; some of them are dredgers and some do other small works. It is quite normal for the crews to sleep on board these ships when they are in the water because it obviously saves on their accommodation costs and they can keep an eye on the ship. It is therefore really important that they feel comfortable. They do not want to have water round their toes or for the ship to tip over. The MAIB recommendation is that vessels of more than 24 metres in length and 500 gross tonnes should be fitted with bilge alarms. I have seen ships sink in the port of Fowey just because stopcocks were not closed properly, which is not a good thing to happen.
Why do people sleep on ships? Apart from the safety reasons, and saving money on accommodation onshore, it is also often because they are in tidal work. They cannot go ashore that easily and it is perfectly reasonable for this to happen. The MAIB report was quite clear that it thought the “Abigail H” was in good condition, but noble Lords may know that it is quite difficult to find the source of a leak in such a small ship. If you have to replace the fittings which you think may be wrong, you probably have to take it to a dry dock. That costs money, and many shipowners probably say that they cannot afford it.
I went on to look at what a bilge alarm is. Going on the web and googling “bilge alarm” shows that they are available for £100. I find it incredible that we have been waiting 13 years for some legislation requiring such ships to fit bilge alarms which will cost only £100, plus the fitting costs if you do not do it yourself.
This could have affected over 400 ships with two, three or four people on board and there have been nine similar incidents in the last 25 years. The industry must have been aware of this but, clearly, some of the owners did not think it a very good idea. It is therefore good to have the regulations to install these alarms. My concern is that it has still taken 13 years, and people who operate these ships often think “It’s not going to happen to me”. I have seen that, and it is the way life is.
The other concern is that many people are beginning to feel that the Department for Transport puts maritime issues low on its list of priorities. It runs the railways in minute detail; it gets very involved in air and airports, rightly; it is getting involved in net-zero carbon for many elements of transport but not so much, I think, for UK- registered vessels. I am not sure it has really given seafarers the support they needed during the Covid pandemic.
The Environment Bill, which is going through your Lordships’ House at the moment, says that it covers inshore and offshore regions, but I am not sure how seriously the Government are taking the needs of ships and ferries when it comes to maritime conservation zones, et cetera. I am worried about the minimal budget that the MCA has to do these essential safety and inspection works. I am sure that if this had been an air incident, it would have happened a lot more quickly than in 13 years.
This is a story of a £100 bilge water alarm not being installed. Ministers may say that the crews of the 425 vessels did not die, so there was no hurry. But this is the basic philosophy of the Health and Safety at Work etc. Act 1974 and the subject of safety regulations, which noble Lords are all familiar with. The whole safety culture is based on what the Act says about compliance, to ensure that this never happens. If it costs only £100 for the piece of equipment, why has it taken 13 years?
I shall be interested to hear what the Minister says. I will not divide the House against this regulation, which is very welcome, but I think it is right to draw the attention of the House to such unacceptable delays in requiring a small but essential piece of safety equipment, in the hope that, if this Motion is accepted, it may incentivise the Government to allow more resources for essential safety issues. Even though they are not as high-profile as air and rail, they still affect people. I shall be interested to hear the Minister’s response, but I may wish to seek the opinion of the House.
Lord Patten (Con)
My Lords, I have only three points to make. First, I welcome the eventual bringing forward of these regulations, which have been on the shelves of successive Labour, coalition Liberal-Conservative and Conservative Administrations since 2008. It is good that they have come forward and, as the noble Lord, Lord Berkeley, just said, it is good that no one suffered in the interim. I do not think that legislation should be left to lurk, even in draft form, in the way these regulations have, so I warmly welcome them.
Secondly, I have one positive suggestion to put to my noble friend the Minister who will be winding up this debate. I am not a marine surveyor, nor a marine engineer, and I am ashamed to say that I have never been down a bilge, but the universal vessel to be fitted under these regulations by warning systems and guards of one sort or another is relatively small. There is a serious suggestion that the equipment should include alarm alerts linked directly to the Maritime and Coastguard Agency at times of potential danger for seafarers—perhaps at night or in challenging weather—who might be on the move and not lucky enough to be moored alongside. I would like this to get proper consideration.
Thirdly, I believe that seafarers feel quite voiceless about these issues. The men and women are not listened to; they are well down the queue behind the ship managers and owners, ship insurers, P&I clubs, legal firms and others. They are often heard only by and through the efforts of voluntary organisations and charities. So it was interesting to see in the impact statement in the Explanatory Memorandum, at paragraph 12.1—let it not be said that no one has read these regulations—that there is no significant impact from the regulations on charities or voluntary bodies.
In practice, it is the other way around. These voluntary bodies make a great impact on behalf of seafarers, including those men and women working inshore, dredging or fishing, who are indeed generally voiceless. If it were not for the voluntary organisations, I do not think their voices would be heard much or at all.
The work of voluntary organisations in the maritime world, whether it be with small boats like these or vessels at the other end of the size scale, such as those lumbering container ships or cruise liners, includes always trying to help keep the crew in touch with their families, which is very welcome. We should be thankful that the voluntary organisations do this, as well as helping the crew if they are in need of medical or dental treatment or a dockside chaplain to come and give them counselling.
We are very lucky to have outfits such as the Sailors’ Society, the excellent Anglican Mission to Seafarers and indeed my lot—the Roman Catholic Apostleship of the Sea; they all play their part in helping people in need of help. By coincidence, it was only this past Sunday, two days ago, that the Apostleship of the Sea held its Sea Sunday. It is part of the largest global seafarers’ charity, known as Stella Maris—I know that noble Lords are all accomplished Latinists and will know that that means “star of the sea”. Stella Maris works globally in nearly 60 countries, with many staff at the dockside in some 335 ports, the last time I looked. Many of those are in the UK and deal with small vessels, which may not always be particularly well maintained. They make a real impact. If it were not for the voluntary organisations and the organisations that I have listed—it is a very long list, and I have pointed out only a few of them—I do not believe that the voice of seafarers would be heard. These charities very often listen to the voiceless.
I ask my noble friend and her department, where she does very important work, to do all that is possible to make sure that the Department for Transport decides to ensure that, challenging though it is sometimes, the voice of the average man and woman seafarer is heard, as well as the normal statutory list of invitees—the noble Baroness, Lady Randerson, will remember this from her time in the Welsh Office—who are always wheeled out by civil servants, who say, “We must consult this or that organisation.” We need to consult the people really concerned—the seafarers; I do not think that they have a voice.
Baroness Bennett of Manor Castle (GP) [V]
My Lords, I thank the noble Lord, Lord Berkeley, for securing this debate, which is, at the level of detail, about a specific and very disturbing case. As the noble Lord outlined, there was a known, clear, evident solution to a dangerous safety risk, one that the crew of the “Abigail H” escaped without serious injury and risk of deaths only through the luck of a vessel rolling one way rather than another. It has taken 11 years to implement. In the meantime, we have subsequently seen nine similar incidents, while 425 similar ships on the UK ship register remain at risk.
I support this regret Motion while noting the conclusion of our Secondary Legislation Scrutiny Committee, but it is a matter of concern that the Department for Transport has failed to follow up promptly Marine Accident Investigation Branch recommendations.
I note also that the subsequent sinking of “Abigail H” led to the release of 100 litres of lubricating and diesel oil into the marine environment—our already pollution-choked, much-damaged marine environment. It is hard to believe that, had this been a safety issue with cargo planes or with HGVs, we would not have seen far faster action, or certainly a greater outcry until action was taken. This raises a far broader issue than bilge alarms, as crucial as they are to hundreds of vessels. It raises the whole issue of safety—human and environmental—in the marine environment.
Last week, I think, the noble Lord, Lord Teverson, asked an Oral Question on human rights at sea. Human rights are supposed to be universal but it is only now that human rights at sea campaigners are seeking effectively to secure those rights because they are not in place. Although there have been some improvements regarding fishing, it is acknowledged as being one of the most dangerous jobs on these islands. The Fishing Industry Safety Group has a commendable vision of zero deaths but given that there have been 71 deaths in the past decade, we are a long way from that.
I note that working on cruise ships in the pre-Covid age—ships that regularly polluted our ports and caused enormous environmental damage—was notoriously exploitative and unsafe for the crew. Covid has only helped to expose the conditions faced by so many of those working on cargo vessels, the crucial foundation of so much of our lives in our import-based society: safety is terrible, pay is low and flags of convenience make it a wild west with no sheriff in sight.
What is going on? Why do we have that lack of knowledge? Certainly now, few people in the UK go to sea, are employed in maritime jobs or know someone who is. According to the latest figures that I have found, there are about 220,000 such jobs in the UK. That is a change from the past when, for good or ill, many Britons went to sea or came into contact with seafarers from all around the world who went to sea in their service.
However, it is hard not to think that this is not a question of “out of sight, out of mind” but deliberate, careful ignorance. We bear a responsibility for what happens in the vessels that sail from or arrive at our shores, whichever flag of convenience they fly—certainly if they fly our own. Their environmental impacts, too, are our responsibility. In your Lordships’ House, when we next debate trade, I invite noble Lords to consider that issue and think about the underpaid, overworked seafarer putting their life in danger to bring us the latest must-have toy or fashion item to be worn casually and discarded. They should think about the climate impact of the fuel that brings them, the damage done when containers fall from vessels, as they regularly do, or when rust-bucket ships break up and sink, spilling their cargos into oceans, to drift and endanger animal life, and sometimes human life, as they do.
We cannot say that that is a cost over the horizon. Overall, it is a real and present danger, which the “Abigail H” highlights our current failure to attend to.
Lord Rooker (Lab) [V]
My Lords, I am very happy to follow the previous three speakers—my noble friend Lord Berkeley, the noble Lord, Lord Patten, and the noble Baroness, Lady Bennett. In 1974, I made my maiden speech on industrial safety and served on the Standing Committee that introduced the Health and Safety at Work etc. Act, so I appreciate the broad encompassing nature of that legislation. I do not intend to repeat anything that the previous speakers have said, but to ask six questions. I will expect answers probably not from the Minister today but at some point by letter.
First, how many other delayed orders are lying around in the department? What is the list of current issues about which the department says, “Oh, we are waiting for parliamentary time. This is something we need to do”?
Secondly, has the Minister asked any questions about the delay? In some ways, I would expect the answer to that in her wind-up. I am keen to know because there are obviously different Ministers with different responsibilities in the department. Have Ministers asked questions about delayed orders that have been put on the rack over the 11 years of slothfulness?
Thirdly, in relation to these regulations, have there been representations at any time over the years from the Welsh, Scottish or Northern Ireland Governments? These regulations cover the UK and, therefore, the devolved Administrations are involved and affected. Have those Governments raised the issue of the delay with the Westminster Government and the department?
Fourthly, is there any record of trade union representations made over the years regarding why this statutory instrument has been delayed? From what the noble Lord, Lord Patten, and my noble friend Lord Berkeley said, we are dealing with an area that is probably not well unionised. Nevertheless, representatives have a legal responsibility to be asking the questions. Have there been any trade union representations over the years about the 11-year delay?
The fifth question is whether any Select Committee ever raised the delay, over the years, during other inquiries. These things pop up from time to time, as I have found from sitting on the EU Energy and Environment Sub-Committee. All kinds of ancillary issues were raised, which we sometimes went off at a tangent on and inquired about ourselves, so it would be interesting to know about that pressure.
My sixth question is whether the issue of this order and its going to Parliament, because that recommendation was there, was covered in any of the new Ministers’ briefs for the 2010, 2015, 2017 and 2019 general elections. In my cellar, I have the first-day briefs for the departments I was moved to in Whitehall—six of them. I have a big one for 1997, when there was an expectation of a change of Government, but that is not the issue. This still happens when the Government do not change. The department has to produce briefs for incoming Ministers—the Government might change, but departments do not know that until election day—of the current workload on the department, the current issues and what requires parliamentary time. I want to know whether this order and the recommendation requiring it to go to Parliament were covered in any of the first-day briefs for new Ministers, after any of those four general elections, because it is the responsibility of the accounting officer in the department to make sure that those briefs are full and comprehensive.
I do not expect the Minister to answer these questions now, but they are quite specific, so I would like detailed answers that the House can see, in due course.
The Deputy Speaker (Baroness Garden of Frognal) (LD)
The noble Lord, Lord Bhatia, has withdrawn, so I now call the noble Baroness, Lady Randerson.
Baroness Randerson (LD)
My Lords, I am grateful to the noble Lord, Lord Berkeley, for ensuring we have this opportunity to press the Department for Transport about the lengthy backlog of maritime safety legislation. I also thank the Secondary Legislation Scrutiny Committee for its work in diligently drawing our attention to the frequent shortfalls in this Government’s attitude to legislative rigour. It usually criticises the Government for taking excess powers for themselves, with too little parliamentary control or scrutiny but, for the backlog in maritime legislation, the problem is the opposite. The committee first drew our attention to this backlog a couple of years ago. I recall a Moses Room debate in which it featured strongly.
When challenged about the backlog, there has been no real explanation from the Government so far. The Secondary Legislation Scrutiny Committee, in its report on the Merchant Shipping (Prevention of Air Pollution from Ships) (Amendment) Regulations, draws attention to the Department for Transport’s original aim to deal with the backlog by the end of last year. Since the backlog goes as far as 2008, the problem is obviously nothing to do with either Brexit or Covid. The committee is clear that it wants an explanation of why the Department for Transport has not dedicated more resource to clearing the backlog. Listening to noble Lords this evening, I think we are united in that view.
Let us be clear about the impact this has. We are supposed to pride ourselves on being a seagoing nation. The Government trumpet global Britain as their aim. Later this year, they will host COP 26, no doubt pushing the view that they are tackling climate change head on, yet they are knowingly allowing our maritime industries to work with outdated safety and environmental standards.
In respect of the air pollution regulations that I referred to earlier, it has left the Maritime and Coastguard Agency without adequate enforcement powers for over five years, since 2016. In relation to the bilge alarm regulations that are the subject of this Motion to Regret, the situation is even more grave. First, the rest of the backlog relates to implementing international standards, but the bilge regulations are the product of a domestic maritime accident, and of recommendations made in 2009 by the Maritime Accident Investigation Branch. That was 12 years ago. The Explanatory Memorandum states that this life-saving measure—which the noble Lord, Lord Berkeley, points out would cost £100—would apply to 425 ships on the UK register. It also notes that there have been nine similar incidents since 1996, so this is not an overcautious approach.
The response of the Department for Transport is that
“only a relatively small number of vessels are in scope of this proposal so it was initially viewed as disproportionate to advance this regulatory package on its own.”
Since this is a negative instrument, if it had come to us a decade ago, it would have been almost unnoticed and almost certainly not debated. No one here this evening is opposing these regulations. This delay represents an approach which values human life very cheaply. It is unacceptable.
Like the noble Lord, Lord Rooker, I finish with some questions for the Minister. Why is there such a backlog? Exactly how many pieces of legislation are we waiting for? Can the Minister please undertake this evening to place a list of all the overdue legislation in the Library, for public record? Why has the Department for Transport not assigned more staff to clearing this backlog, and what is its target date for doing so? What assessment have the Government made of the impact of our outdated maritime safety and environmental legislation on working practices aboard UK-registered vessels, and what has been the impact on our international reputation as a maritime power? Finally, the Minister will be aware of the phrase “flags of convenience”. Do the Government have any evidence of ships seeking to register in the UK specifically because our maritime legislation is out of date and does not adhere to the highest and best standards?
Those engaged in our maritime industries, as the noble Lord, Lord Rooker, and other noble Lords, have indicated, feel overlooked and disregarded. The Government need to put that right.
Lord Rosser (Lab) [V]
My Lords, I too congratulate my noble friend Lord Berkeley on securing this debate. These regulations came into force on 30 June, following the sinking of the vessel “Abigail H” at Heysham in November 2008, introducing new regulations on the installation of bilge water alarms on merchant vessels of a certain size to provide warning when the accumulation of bilge water threatens their buoyancy or safety. As we have heard, there has been a long gap between the 2008 incident and the introduction of these regulations, suggesting that the Government have been slow to act to prevent similar accidents.
The Maritime Accident Investigation Branch, which said that the crew of the “Abigail H”
“were extremely fortunate to escape without injury”,
made recommendations in 2009, including that vessels greater than 24 metres in length but less than 500 gross tonnes be fitted with bilge alarms. In 2020 the Maritime and Coastguard Agency consulted on proposed regulations intended to introduce a requirement in line with the MAIB recommendation. Just two responses were received, one from a marine surveyor and the other from the Law Society of Scotland. Can the Government comment on the significance or otherwise of the low number of responses? Is it a reflection of the length of time—over a decade—between the MAIB recommendations on the specific incident involving the “Abigail H” and the consultation on the subsequent regulations?
The regulations that we are discussing have now followed, largely unchanged, from the consultation exercise. The intended outcome of the regulations, as we know, is that all ships greater than 24 metres and less than 500 gross tonnes will have to be fitted with a bilge-water detection and alarm system that will alert the crew to any ingress of water so that any necessary action can be taken. This requirement will apply to new ships from the date the regulations come into force and to existing ships from a year later. The requirement covers relevant UK ships, wherever located, and applies to all other relevant ships when within UK waters.
Can the Minister confirm the anticipated cost per vessel of implementing the terms of these regulations? Currently, vessels that are under 500 gross tonnes and are 24 or more metres in length fall outside the requirements of the International Convention for the Safety of Life at Sea and existing workboat and fishing vessels codes. The lack of regulations for these vessels has led to accidents, including the sinking of the “Abigail H”. The Secondary Legislation Scrutiny Committee queried why the regulations had taken this length of time to implement, given that the “Abigail H” sank in 2008 and the MAIB recommendations were made a year later, in 2009.
In response, the Department for Transport indicated that the Maritime and Coastguard Agency, an executive agency of the DfT, continually reviews the priority of the regulatory changes needed, then added:
“As only a relatively small number of vessels are in scope of this proposal, it was initially viewed as disproportionate to advance this regulatory package on its own.”
I may be interpreting these words harshly but they sound suspiciously like saying, in a more roundabout way, that administrative convenience in bringing forward these regulations took priority over ensuring the safety of vessels affected and their crews as soon as possible. The Explanatory Memorandum talks about exploring “alternatives to mandatory regulation”, but that does not explain away a delay of over 11 years. Can the Minister comment on my interpretation of the meaning of the words used by the Department for Transport?
The SLSC noted that 425 ships of a similar type to the “Abigail H” are listed on the UK Ship Register, and that nine instances of flooding on such ships have been reported to the MAIB since 1996. As a result, the committee said:
“We do not regard 425 as a negligible number of ships and crews and it is a matter of concern that the DfT has failed to follow up promptly the MAIB’s safety recommendations.”
Can the Minister say whether the Department for Transport regards 425 as a negligible number of ships and crews? How many, if any, of the 425 ships now already have the required bilge-water detection and alarm system fitted?
The SLSC referred to
“an acknowledged backlog of international marine legislation”
that the DfT has yet to implement, and added:
“As this recommendation in relation to bilge alarms comes from a UK source, it would appear that there is also a separate backlog of domestic legislation yet to be implemented”—
an issue raised by my noble friend Lord Rooker and the noble Baroness, Lady Randerson. The SLSC has said it wishes to see a fuller explanation of why the department has not dedicated more resources to resolving this long-standing backlog problem, which it initially aimed to address by 2020, as well as an explanation setting out the extent of the remaining backlog and how long it is estimated that it will take to clear it completely.
Could the Government in their reply respond to all the SLSC’s requests for information and explanation I just mentioned on the legislative backlog? Is the backlog related only to international marine legislation or is there also a backlog of domestic legislation? If so, what is its extent and by when will it be cleared?
Like my noble friend Lord Rooker, I would like answers to the questions I have raised either today or subsequently in writing. We await the Government’s response, but if the background picture to these regulations is broadly as has been set out then we will support my noble friend if he decides to seek a vote on his regret Motion, albeit, like my noble friend, we support the regulations themselves.
The Parliamentary Under-Secretary of State, Department for Transport (Baroness Vere of Norbiton) (Con) [V]
My Lords, I am grateful to the noble Lord, Lord Berkeley, for providing the opportunity to debate these regulations—or, more correctly, the timing of the regulations and the circumstances in which they have now been made. I thank all noble Lords for their contributions. I will focus on the regulations and matters relating to them and will write with further details, particularly on the excellent points raised by my noble friend Lord Patten, and the very detailed questions from the noble Lord, Lord Rooker, and many other noble Lords.
I turn first to the content of the statutory instrument. The Government are absolutely committed to ensuring the safety and welfare of seafarers, which I believe is reflected in the volume of regulations that the department brings to your Lordships’ House. These are but one of a set of such regulations that came into force on 30 June 2021. We know that they increase safety by introducing a requirement for cargo vessels of 24 metres or more in length and under 500 gross tonnes to fit bilge alarm systems. I will not go into further detail around that, so let us turn to the background to the regulations.
The regulations fulfil the Marine Accident Investigation Branch, or MAIB, recommendation 2009/141. It was raised following the sinking of the grab hopper dredger “Abigail H”, as many noble Lords noted. Many noble Lords also noted that there were no fatalities as a result of this incident, which was, of course, very fortunate. To prevent a less fortunate outcome, these regulations make it mandatory to install the bilge alarm systems that were advised in marine guidance note 425, which was issued in September 2010 in response to the MAIB’s 2009 “Abigail H” incident report.
There was a consultation on these regulations. It was a 10-week public consultation from 2 October to 10 December 2020 via the GOV.UK website. There was a press release announcing the public consultation, which went to marine trade press and industry press. Notice of the consultation was posted on the MCA’s Twitter account. Of course, we cannot force people to respond to a consultation; sometimes they do not for any number of reasons. It may be that the people who run these vessels are very focused on it and therefore do not want to or do not have time to respond to a consultation. But these regulations are not controversial, so it does not surprise me that we did not get a massive response to the consultation.
The regulations improve the safety of seafarers and were long expected. It is worth reinforcing that the guidance to introduce bilge alarms had been in place since 2010. In the pandemic we have done many things to protect public safety by guidance rather than mandating in law, so I do not feel that, given that the guidance was in place for such a long time, getting these regulations in place now was as big an issue as potentially noted by noble Lords today.
But I will comment on the delay, because it is right that I do so. I accept that there has been a delay in implementing this mandatory requirement, but I remind noble Lords that the guidance was out there a very long time ago. The delay in making that guidance mandatory reflects the thorough and complex nature of the process, as well as the wide reach of regulations that the MCA is responsible for, and the need to continually review the priorities of regulatory changes in order to meet our international obligations and domestic safety and environmental obligations. In this case, the potential risk to the 425 vessels and their crews, to which these regulations apply, and the fact that only two similar incidents occurred after this guidance was published, meant that, as priorities changed, including as a result of the UK’s exit from the EU, other regulatory developments took precedence.
Given that the guidance was issued back in 2010, and the industry was advised and consulted on the development of this mandatory guidance, I believe it was reasonable to expect that a good proportion of the 425 vessels referred to would have already had bilge alarm systems fitted prior to the regulations coming into force, although we cannot know that. Although the guidance issued was not mandatory, we expect responsible owners and operators to take guidance from the MCA very seriously, and that they would look to enhance the safety of their vessels even in the absence of a mandatory obligation.
Further, of the nine incidents to which the noble Lord, Lord Berkeley, referred, seven occurred prior to the publication of the MAIB report into the “Abigail H”. Of the remaining two incidents, accident investigation data indicates that both were minor and neither needed investigation by the MAIB. There have been no further similar incidents.
The noble Lord, Lord Rosser, said that 425 vessels was a relatively small number. It is a small number in the context of the 63,230 vessels currently listed on the UK Ship Register. Furthermore, many of the cohort of 425 vessels would be of lower risk anyway, since crews do not customarily sleep on board or because they would already have had the required equipment fitted. I also point out that the MCA will not customarily collect information on the number of vessels with this required equipment on board, but it will monitor compliance with this requirement through the survey and the inspection regime it usually carries out.
The noble Lord, Lord Berkeley, mentioned how cheap these systems are. I do not know which website he was looking at, because I have slightly different figures. I believe the cost of installing a bilge alarm is roughly £2,500. That is what we assumed in the impact assessment. Given that, I possibly would not buy one for £100, but it will of course vary from vessel to vessel. To verify this cost, the first question of the consultation specifically asked for evidence of the costs associated with the installation of the water level detectors and bilge alarms needed to comply with the regulations. But, as noted previously, we did not receive very much response to that consultation, and I suspect that was because the industry had either already complied with the regulations or knew that they were coming down the track.
I turn to maritime regulations more broadly. The maritime sector is highly regulated and has to take into account international obligations, amendments to previous EU regulations and the development of domestic legislation. Each strand is usually complex and highly technical and requires transposing to domestic law by way of secondary legislation, which is both time- consuming and resource-intensive. The noble Baroness, Lady Randerson, assumed you could knock off a negative SI in an afternoon. That is absolutely not the case; it takes many weeks and months of intensive work to ensure that even a negative SI, which will not necessarily receive parliamentary scrutiny, is up to the standards we would expect for our statute book.
Keeping pace with international amendments, often issued annually, is extremely challenging and results in many of the domestic SIs always being in need of updating. So, over the years, priority has been given to the implementation of the EU directives and regulations to avoid EU infraction proceedings, and this has resulted in the backlog of international obligations, with our domestic regulations becoming out of step with the latest requirements.
The MCA has recently provided a progress update to the Secondary Legislation Scrutiny Committee on its road map of international maritime legislation that is required to be implemented into the UK domestic regime by SI; it should all be completed by the end of 2023. Significant progress has already been made. We have made 12 SIs in 2020 and early 2021, and a further 10 proposed SIs are well progressed and are either at consultation stage or the final stages prior to making and laying.
I trust that noble Lords agree that the introduction of these regulations is important to ensure the safety of crews on board small cargo vessels—indeed, I will take that as a given, because I believe that they do. I hope they will also appreciate that we have to continually assess our priorities to meet our international and domestic obligations, given the availability of resources within the department, within government and, of course, within Parliament.
The MCA has commenced an ambitious programme of regulatory updating which, in the last two years, has reduced the number of outstanding recommendations by the MAIB by 30%. This leaves 14 recommendations which are actively being worked on at present, eight of which will be completed later this year. I hope I have been able to explain the Government’s position and I therefore ask noble Lords to vote against this regret Motion.
Lord Berkeley (Lab) [V]
My Lords, I am very grateful to all noble Lords who have spoken in this short debate and of course to the Minister for her response. It has been a very interesting debate—I was really surprised and enthused by some of the comments. The noble Lord, Lord Patten, talked about the voiceless seafarer and admitted that he had not been in the bilges; going into the bilges is not a thing you would want to do unless you really had to. Both he and the noble Baroness, Lady Bennett, talked about the crews and the fact that they need looking after. Many of us thought that they were probably suffering, particularly during Covid.
My noble friend Lord Rooker asked six really excellent questions. I have to say that I do not think the Minister answered many of them, but I am sure she will be writing to him and we will all see copies. However, the delays are still there. The noble Baroness, Lady Randerson, also talked about the delays and mentioned the word “disproportionate”. I think there are many, including in the Department for Transport, who think that this is not that serious: they are small regulations and do not matter very much. I hope I am not right.
My noble friend Lord Rosser also asked a number of questions, including another version of whether this is being done just for administrative convenience. The Minister was interesting in her response, because she said that the guidance on these issues had been published in 2010 and I think she liked to believe that most of the ships involved in this category would have already fitted bilge alarms. If that is the case, and she has not presented any evidence for or against it, why have the Government brought these regulations at all? It has taken 10 years, but if the guidance has forced or encouraged all the shipowners involved to install bilge alarms, why do we need regulations?
My gut feeling is that for ships like this—I have seen quite a few of them—for whatever reason the shipowners do not like doing things they do not have to do. One can understand it. I may have got the price of a bilge alarm of £100 wrong, compared with the Government’s estimate of £2,500—you could probably spend £500,000 on one if you wanted to. The noble Lord, Lord Patten, suggested that there should be online alerts to the MCA, which probably would cost about that, but the point is that, in terms of the cost to the operators, it is not great.
I go back to my noble friend Lord Rooker’s comments about when he was involved in creating the Health and Safety at Work etc. Act, and the ALARP principle—as low as reasonably practicable. I would suggest that installing a bilge alarm, whether for £100 or £2,500, it is certainly something that could be done to comply with the ALARP principle, on which on all our safety regulations, as my noble friend said, have been based.
I am afraid we did not really get an answer from the Minister on why there were so many delays to the legislation. There were lots of them—some caused by Brexit, some international and some domestic. I know of one situation, drawn to my attention by a Cornwall council that wanted to create a new harbour authority there to look after all the little harbours that nobody else owns. It is not big job but it is very important. It has been waiting several years for this to go through, so that it can do things with the harbour to help the local economy.
I am very grateful to all noble Lords who have added to the discussion of these regulations. We need to put more pressure on the Department for Transport and the Government to provide resources—to give the MCA resources—so that we have no more of this. It may affect only a few people. Do they matter much? I believe they all matter, but there is a view that they are just tramp steamers going around the coast and nobody sees them much, compared with an airline or anything else. We have to change the attitude. I am grateful to all noble Lords who have spoken, but I would like to test the opinion of the House on this Motion.