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, and others are participating remotely, but all Members will be treated equally. I must ask Members in the Room to wear a face covering except when seated at their desk, to speak sitting down and to wipe down their desk, chair and any other touchpoints 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.
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 groupings 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 this clear when speaking on the group.
Animal Welfare (Sentience) Bill [HL]
Tuesday 20th July 2021
(2 years, 9 months ago)
Grand CommitteeRead Full debate Animal Welfare (Sentience) Act 2022 View all Animal Welfare (Sentience) Act 2022 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 4-II Second marshalled list for Grand Committee - (15 Jul 2021)
Viscount Trenchard
Viscount Trenchard (Con)
My Lords, I am pleased to be able to move Amendment 17, which my noble friend Lord Forsyth of Drumlean had intended to move, but he is unable to be in his place today. I was unable to speak at Second Reading due to my incompetence in failing to put my name on the speakers’ list on time.
I was able to take the Animal Welfare (Service Animals) Act through your Lordships’ House in spring 2019, rightly removing the argument of self-defence from those who attempted to escape arrest by attacking and harming police dogs and horses. Finn’s law received unqualified support from all sides of the House, and I think it is highly desirable that, in this field, the Government should support legislation which is similarly supported by all parties.
Her Majesty set out the animal welfare programme in her gracious Speech with these words:
“Legislation will also be brought forward to ensure the United Kingdom has, and promotes, the highest standards of animal welfare.”—[Official Report, 11/5/21; col. 3.]
I fear that, whatever the Government’s intentions, this Bill will add nothing to our excellent standards and is likely to be counterproductive.
My Amendment 17 seeks to restrict the activities of the committee to policies that are in course of formulation, or at least have not been formulated. I support Amendments 18 and 23 in the name of my noble friend Lord Howard of Rising, which seek to ensure that the committee is not required to review policies that are already being lawfully implemented. I also support his Amendment 29, which ensures that on any further formulation of a policy already being applied the committee is not expected to report. All these amendments are designed to remove retrospectivity from the workings of the committee and its reports and recommendations.
Retrospective laws which upset legally compliant settled patterns of life and expectations are not good policy. They undermine the security and continuity of a way of life consistent with the values of the community and a sense of its continuity. Legislation which retrospectively changes a legal activity into an illegal one is likely to have adverse repercussions on decisions made reasonably and in good faith by citizens in the past. In the context of this Bill, that might cover farming or other business plans and investment or the purchase of property in order to carry on a particular activity or country sport.
I also support Amendment 35A in the name of my noble friend Lord Caithness. Measures which support conservation or biodiversity may very well not support crop protection or indeed human health. How to balance these conflicting policy areas while having to have regard to animal welfare for reasons different from those for which we look after animals so well in this country is an extremely complicated subject. Indeed, most policies that the Government might develop may well have negative consequences for at least one of the excluded areas in my noble friend’s amendment.
I am grateful for the support of my noble friend Lord Howard of Rising, and I beg to move.
Lord Howard of Rising (Con)
My Lords, I commented earlier in Committee on the potential problem which would be created if existing policy could be reviewed by the committee. The trouble that could be caused by reviewing existing policies is as nothing compared to the turmoil which could come from the ability to go backwards and review existing law. This would be an enormous power which very easily could, and almost probably would, get out of hand. It would require almost unlimited resources and place intolerable burdens on other departments of state.
In addition to that, unlike European countries, Britain has had animal welfare laws for 200 years. Allowing the committee to recommend repealing or amending already implemented law would be a recipe for unimaginable chaos and expense. I cannot believe that this is what this Bill intends. If the Bill is to have any sensible purpose, it must be limited to recommending on future policy and legislation which, by itself, would be a monumental task, without the potential of causing almost unlimited trouble by going back historically.
Lord Hamilton of Epsom (Con)
I support my noble friend Lord Howard of Rising’s amendment, to which I have put my name. It strikes me that the Government have not really thought this through very carefully, because if this is going to be retrospective and it will be possible for this committee to review all legislation that has already been passed, then this will provoke a need for massive new legislation stretching into the future. The Government have the option, I suppose, of ignoring recommendations from the animal sentience committee, but if they do not ignore its recommendations, then of course that means they will inevitably get involved in more legislation in the future. I am not sure that that was really the intention of the Bill in the beginning. Surely, the original point of the Bill—not that I am a great supporter of it—was that there should be some form of oversight of government legislation to ensure that the sentience of animals was being taken into account, but if it works retrospectively, then of course it has unlimited capacity for creating ever more work and expense, as has been mentioned by my noble friend. Therefore, I very much support his amendment.
Lord Trees (CB)
My Lords, I shall speak briefly to Amendments 18 and 23, which carry my name, and in support of Amendments 17 and 29. These all rule out scrutiny of policies established in the past and are consistent with my Amendment 3, which we discussed on the first day in Committee, which laid out the function of the committee and confined it to considering policies subsequent to the committee’s establishment. The arguments for not having any retrospective powers have been well made by others.
Baroness Deech (CB) [V]
One of the worst things in this Bill, with its miasma of uncertainty, is its retrospective effect. Along with others, this amendment is designed to cure this defect. We have to stop the committee considering, let alone making suggestions to change, policies that were established in the past, that are currently being lawfully implemented and on which people base their livelihoods, food and sporting pursuits.
As it stands, the Bill would allow the committee to reopen of its own volition policies that have been in place for perhaps a century, as some of our animal welfare laws have. It could make recommendations designed to undermine the use of animals in medical research, the practice of killing animals according to Jewish law and country sports, already hedged about with qualifications and reached by consensus a long time ago. We might accept that this committee, expert or not, will consider future proposals, but we cannot let it loose on the established law.
I say this not wholly as an advocate of the positions I have mentioned but as a reminder that retrospective legislation and changes of policy are to be assumed to be a bad thing. They may undermine settled patterns of life and livelihood, taking away certainty of freedom from criminal and civil prosecution. We cannot allow this committee to propose legislation to take away the validity of decisions made in the past and in good faith by people relying on the law as it was. In the case of the traditional Jewish way of killing animals for food, it has been permissible ever since the Jewish return to England some 350 years ago and it is established policy under UK regulations to permit it, as it was under EU legislation—although not that it could be relied on, as I explained in my last speech on this when I pointed out that the European Court of Justice allowed the Belgian prohibition of Jewish non-stunning methods.
As a legal situation, at common law, there is a presumption against retrospectivity. Article 7 of the Human Rights Act prohibits arbitrary prosecution, conviction and punishment. At common law, there is also a presumption against interference with vested interests. A leading judgment on this was in the case of Wilson v Secretary of State for Trade and Industry in 2003; one of the judges in that case, my noble and learned friend Lord Hope, is happily still with us. The judgment explained that there is a powerful presumption against statutes changing the substantive law in relation to events in the past; this is precisely what could happen if the powers of this new committee are not curbed.
There is also a presumption against legislation affecting vested rights unless Parliament is expressly making a new start for the future. So, on the one hand, recommendations by this new committee to change existing practices would be a waste of time in that, if they were acted on, they would be contrary to the rule of law; on the other hand, the Bill would accord better with human rights and the rule of law by making it express that its actions must be confined to future policy.
I hope that this amendment will be supported by the Government; otherwise, I can see legal action looming ahead on the horizon. This also applies to Amendments 18, 21, 23 and 29, all of which I support.
The Parliamentary Under-Secretary of State, Department for Environment, Food and Rural Affairs (Lord Benyon) (Con)
My Lords, the conspiracy theorists among you will wonder whether the insufferable heat in this Room is a plot by me to speed up events.
Lord Benyon (Con)
However, I can assure noble Lords that that is not how I operate. I am looking forward to lengthy discussions this afternoon.
I thank my noble friend Lord Trenchard for his Amendment 17, with which I will take Amendments 18, 23 and 29 in the name of my noble friend Lord Howard of Rising. I agree that we would gain little from a committee that devotes its energies to reopening old debates. We want a committee that improves the policy decision-making and implementation process now and in future.
However, policy is not a static thing. This afternoon, we have heard descriptions of policies that go back centuries. Policy is always being reassessed, reinterpreted and, above all, implemented. It would be difficult to pin down a working definition of established policy, particularly in statute, that does not shut the committee out of a number of areas where its scrutiny would be most valuable.
The Deputy Chairman of Committees (Baroness Healy of Primrose Hill) (Lab)
I have received a request to speak after the Minister from the noble Lord, Lord Bellingham.
Lord Bellingham (Con)
My Lords, I have a quick question to ask the Minister. The cost of the committee will be very substantial indeed, with its wide-ranging remit across all government. If these amendments are passed, can he tell us exactly what would be saved in the costs of running the committee?
Lord Benyon (Con)
I am sorry, but I did not quite hear the last part of the question. I wonder whether my noble friend could repeat it.
Lord Bellingham (Con)
Yes, indeed. If these amendments are passed, they will obviously greatly restrict the remit of the committee in what I think would be a very wise manner. Can my noble friend give this Committee some indication as to what would be saved in the costs of running the committee?
Lord Benyon (Con)
I understand the question and apologise for missing it first time. No, I cannot give my noble friend that assurance, because the work programme and what the committee would look at will change from year to year as developing evidence about animal welfare takes it down different priority routes. The amendments would obviously quite dramatically restrict the ability of the committee to influence government policy, but I cannot put a monetary value on that. It would be part of the economic impact assessment, which would have to take place at a different stage in this process.
The Deputy Chairman of Committees (Baroness Healy of Primrose Hill) (Lab)
I have also received a request to speak after the Minister from the noble Lord, Lord Hamilton of Epsom.
Lord Hamilton of Epsom (Con)
I want to follow up on the comments from the noble Baroness, Lady Deech, about ritual slaughter. We have been reading in the newspapers that, if this Bill becomes an Act of Parliament, it will become illegal to drop lobsters into boiling water to kill them. Is that one aspect of the thinking behind what the Government are doing? If that is the case, where does it leave pigs being slaughtered? They are highly intelligent animals and with a very high sense of smell. One might say that the slaughter of pigs does serious damage to them and to their feelings. I would just like to know where the Minister stands on this.
Lord Benyon (Con)
If my noble friend is referring to the article that I read at the weekend, it was full of inaccuracies and hyperbole, which is not what this Bill is about. At a later stage in this afternoon’s proceedings, we shall move on to talk about decapods and cephalopods. In relation to the amendments concerned, if the government Minister in the future felt obliged to include some of those species within the terms of the Bill, they could be looked at by the committee, which could advise a future Minister what they could or should be doing in terms of how different animals are treated at end of life. However, my noble friend is absolutely right to point out that there are gradations in unpleasantness involved for the animal, whether it is a pig or a lobster. The point is that the Bill does not dictate how a lobster is killed at the time of cooking or how a pig is killed at the time of slaughter. This is about informing policy using experts who can guide a Minister to take the right position. But that Minister, when considering all the factors that my noble friend mentioned, can take into account other matters, such as the value of sustainably produced seafood in a diet or the importance of the rural economy or the Government’s balance of payments in terms of rearing pigs. This Bill does not affect that, and so my noble friend can be quite relaxed about his concerns.
Viscount Trenchard (Con)
My Lords, I thank all noble Lords who have contributed to this debate, and I am heartened that both my Amendment 17 and the other amendments in the group, tabled by my noble friend Lord Howard, have received such unqualified support.
I totally understand my noble friend the Minister’s response that legislation does not stand still, and it is of course reasonable that, where the Government propose a new policy that requires changes to existing legislation, the committee or the Animal Welfare Committee might be tasked with looking at how the policy impacted on the welfare of animals, including having regard to their sentience, which any look at animal welfare automatically does anyway. Nevertheless, I find his answer unconvincing because I think that there is a real danger, especially since we know nothing about any requirements for the composition of the committee, that a huge amount of public time and public money would be spent looking at all past legislation that affects animal welfare. I worry that this would be counterproductive.
However, having heard my noble friend’s response, I will at least for now withdraw my amendment.
The Deputy Chairman of Committees (Baroness Healy of Primrose Hill) (Lab)
We now come to the group beginning with Amendment 20.
Amendment 20
Baroness Jones of Moulsecoomb (GP) [V]
My Lords, before speaking to my amendments, I should just say that there is a certain underwater quality to the sound, and it has been quite difficult to follow the previous group. I think that is because somebody called John Turner has not muted. There are quite a lot of people who have not muted on the call, and I think that is giving some feedback—oh, he has now. Thank you. Let us see if that improves things.
It is my pleasure to open this debate on this group of amendments—or at least those amendments that seek to improve the committee and strengthen its functions, such as those of the noble Baroness, Lady Young of Old Scone, and the noble Lord, Lord Mancroft. I remind all noble Lords that this was a government promise. Something has to come out of this that is positive and that the general public, who asked for this, understand as being a reasonable policy. The Minister said that expert scrutiny is needed and that policy is not static. Can we not live 100 or 500 years in the past? Can we understand that things have to move on? As he also said, animal sentience is a fast-evolving field, and we need to make sure that we are up there, aware and legislating in the right way.
I thank the noble Lord, Lord Trees, who signed my Amendments 27 and 41, and the noble Baroness, Lady Fookes. She is unable to be here for this group but she will be here later.
My Amendment 20 is the crucial one because it would toughen up the committee. I am not very welcoming of Amendments 21 and 22, which seem designed to weaken the committee into total obscurity. Why any scrutiny body would be reduced to the position of seeking permission from those it is scrutinising to actually do the scrutinising is beyond me, but then there are those who believe in the divine right of kings and see scrutiny of the Government as a bad thing.
I am very pleased that my Amendment 20 would have the opposite effect. I would like to see a strong, broad-based animal sentience committee that conducts deep analysis of all government policy to ensure that its impact on animals has been properly considered. I would much rather that the committee looked at everything in the round than sporadically look at piecemeal bits of policy. The former seems the right way to go, especially when the Bill is premised on the fact that these animals are sentient beings with the capacity to feel, perceive and experience. I have confidence that your Lordships can improve the Bill and give short shrift to the wrecking amendments that would reduce the sentience of the committee to a lump of stone. I beg to move.
The Earl of Caithness (Con)
My Lords, I will speak to these amendments because I have an amendment in my name, which I will come to in a minute. First, I agreed with the noble Baroness, Lady Jones of Moulsecoomb, when she said that she hoped the committee would look at policy in the round. That is what we all hope. However, we all fear that it will not. We need reassurance from my noble friend the Minister to convince us. We are not conspiracy theorists; we are practitioners who wish to see this operating sensibly in the United Kingdom.
The reason for my Amendment 38 is perhaps best illustrated when we look at Amendment 46, which is also in this group and is in the names of the noble Baronesses, Lady Young of Old Scone and Lady Hayman of Ullock. I look forward to hearing what they have to say on their amendment. I cannot detract from subsection (1) of their proposed new clause. It is quite right that, if a piece of legislation sets up a committee, that committee ought to report to Parliament to be properly scrutinised. But then we come to subsection (2), which is where I get a little concerned. First, in subsection (2)(b), the noble Baronesses propose
“an overview of the implementation of animal sentience requirements across government”.
As I read and understand this, if my noble friend the Minister is right that the animal sentience committee is all about—and I quote his words—“informing policy”, it should not be looking at the implementation of policy. That is for the Government and Ministers, having looked at whatever report comes out of the committee.
Lord Mancroft (Con)
My Lords, Clause 2 sets out the manner in which the animal sentience committee reports. In particular, Clause 2(2) sets out
“whether, or to what extent, the government is having, or has had, all due regard to the ways in which the policy might have an adverse effect on the welfare of animals as sentient beings.”
Assuming that there is an adverse effect, subsection (4) imposes a duty on the Government to have “all due regard” to this adverse effect. Amendment 44 ensures that, in making their response to the committee’s report, the Government include what steps they are going to take to remedy this adverse effect. The primary purpose of the Bill is to advance animal welfare, and the Government are setting up this animal sentience committee to provide a critique of the Government’s policies as a way of achieving this. The committee will publish reports and the Government will respond.
Amendment 44 deals with another what and when. What happens when the committee finds that the Government have not had all due regard for the welfare of animals as sentient beings? In the case of past policy, will it be repealed or amended? In the case of present policy, will it be paused? In the case of future policy, will it be suspended? What happens when a policy is found to have been answered negatively but cannot be repealed or amended? Do the Government continue with the policy in conflict with their own committee’s report? Can the Government then be subject to a judicial review? These are important questions, and it is therefore necessary that the Government in their response go to some length in trying to satisfy them so that they can continue governing.
It is equally necessary for businesses to be made aware of any changes, so that they, too, can prepare and make appropriate changes to their actions. We know what happened when Natural England suspended general licences. We cannot experience such chaos and such tragedies again. We all agree that we must do our best to prevent unintended consequences, especially ones that harm the welfare of animals and people’s livelihoods.
In short, that is what Amendment 44 seeks to do: to ensure that any actions to be taken are properly communicated and delivered in such a way as to avoid harming the welfare of animals, and in doing so to protect the associated livelihoods of those whom the action will impact. Be under no illusion: as drafted, the powers of this committee are significant. The demands on government will be even more significant and the potential consequences may be enormous. We must therefore have answers to the why, the what and the whens before this legislation becomes law; otherwise, it will be far too late.
Lord Hamilton of Epsom (Con)
My Lords, I will speak to Amendment 38, in the name of my noble friend Lord Caithness, to which I have added my name. I was not here—because I was at a previous engagement—when the debate was held in this Room about merging the Animal Welfare Committee and the animal sentience committee. My noble friend the Minister made the point that the two committees did two different jobs and therefore there had be two different committees. That was really accepted rather too glibly. There is no reason why we should not keep one committee and give it two different jobs to do. It is a pity that we seem to be so dedicated to the spread of bureaucracy and quangos in this way, when the Government have made it clear that they do not really agree with that.
However, let us leave that and move on to the fact that there is obviously potential for conflict between the Animal Welfare Committee and the animal sentience committee, as outlined by my noble friend Lord Caithness. We have to do everything we can to avoid that and ensure that they work together—not in opposition to each other, which seems highly likely knowing the way that Whitehall works. I therefore sincerely hope that my noble friend the Minister will look hard at this amendment, because it has great value.
Viscount Trenchard (Con)
My Lords, although I agree with the noble Baroness, Lady Jones of Moulsecoomb, and my noble friend Lord Caithness that the committee should look at policy in the round, I regret that I cannot support Amendment 20 in her name and that of my noble friend Lady Fookes. I also strongly support the objective of my noble friends Lord Forsyth of Drumlean and Lord Hamilton of Epsom in their Amendment 2, previously debated, that the duties of the animal sentience committee could better be given to the existing Animal Welfare Committee.
As my noble friend Lord Forsyth said on 6 July:
“It feels as if this is just a bit of window dressing, a bit of virtue-signalling, which is actually going to create great problems for the Government.”
My noble friend the Minister told the Committee that the Government
“want the animal sentience committee and the Animal Welfare Committee to have a constructive relationship, but it is not quite as simple as saying that we could hand over the ASC’s responsibilities to the AWC with no legal powers to back them up.”
That would of course have been far better.
I have the highest regard for my noble friend Lord Benyon, but I found his explanation as to why we need two committees completely unconvincing. It is a disproportionate and unnecessary response to the Government’s manifesto commitment. Those animal rights activists who support the Bill claim that the public want it. If you tell the man or woman on the street that there is an Animal Welfare Committee already and ask if he or she thinks we should have a second committee, you will get a different answer. My noble friend said:
“It is important to remember that the two committees have distinct roles. The Animal Welfare Committee exists to provide advice to Defra and the devolved Administrations, whereas we are establishing the animal sentience committee to scrutinise policy decision-making across the whole of government. Any relationship between the two would need to support these two distinct functions.”—[Official Report, 6/7/21; cols. GC 337-8.]
I do not think these functions are distinct in any way. Without exception, noble Lords who spoke on 6 July asked him to come back with at least some definition of the committee on Report.
I also support Amendment 16, in the names of the noble Earl, Lord Kinnoull, and my noble friend Lord Hannan of Kingsclere, which stated that the new requirements to consider animals as sentient beings in the formulation of policy should be limited to those areas covered by Article 13 of Title II of the Lisbon treaty. UK Parliaments have recognised the sentience of animals since the Cruel Treatment of Cattle Act 1822, and our animal welfare standards go far beyond what we were required to do under EU law. If the Government really think that they must establish a new quango of such dubious merit and opaque purpose, the four amendments in this group will at least restrict that quango’s activities to examining new policies under consideration rather than opening up the entire existing statute book to reconsideration at great expense.
Although I was unable to speak in the earlier debate, let me say that I also support Amendment 31, which would provide exceptions for religious rites and cultural traditions. Without that, a large part of Japanese cuisine —to which I am partial, having lived in that country for many years—would probably be deemed illegal.
I have added my name to Amendments 21 and 22 in the name of the noble and learned Lord, Lord Etherton. Amendment 21 could have been grouped with amendments that we have debated previously, which also sought to prohibit the committee reporting on established government policy. Amendment 22 would require the committee to obtain the consent of the Secretary of State before committing taxpayers’ funds.
I cannot support Amendments 27 and 41, in the name of the noble Baroness, Lady Jones of Moulsecoomb, because they assume that the committee’s answer to the question is binary—that is, yes or no. The existing draft at least raises the question of the extent to which the Government are having due regard to animal welfare in the formulation of policy. Surely this is an instance where the proportionality principle should be applied.
I strongly support Amendment 38, in the name of my noble friend Lord Caithness, to which I have added my name. If we must have two overlapping committees, at least the animal sentience committee should consult the Animal Welfare Committee and publish a note explaining its opinion on any report.
In Amendment 44, my noble friend Lord Mancroft seeks to find out what the Government might do in cases where the committee finds that they have not had due regard to the animal welfare consequences of any policy. Earlier, we debated the incorrect assumption of the Bill that any effect would be adverse. Obviously, any policy designed to make it easier for gamekeepers to cull predators has positive effects for the prey of those predators. I support my noble friend and look forward to the answer from my noble friend the Minister on this question.
I cannot support Amendment 46, in the name of the noble Baroness, Lady Young of Old Scone, because subsection 2(b) of the proposed new clause makes it clear that she intends that the committee’s remit should extend across government, whereas I believe that it should be limited to those areas that were previously covered by Article 13 of Title II of the Lisbon treaty, as I mentioned. Furthermore, the amendment raises the question of the other activities that the committee may have undertaken during any financial year.
There seems to be no limit to the scope and remit of the Bill. Unless it is appropriately restricted, the committee will need huge resources.
Lord Trees (CB)
My Lords, I will speak to Amendments 27 and 41, in the names of the noble Baronesses, Lady Jones of Moulsecoomb and Lady Fookes; they also carry my name.
These two amendments are linked. Amendment 27 asks the animal sentience committee to answer the question asked in Clause 2(2)
“in the affirmative, or … in the negative.”
For example, if the animal sentience committee states that the Government have had all due regard to animal welfare in the formulation and implementation of policy, Amendment 41 would remove the requirement in Clause 3(1) for the Secretary of State to lay a response before Parliament. This seems to be a common-sense reduction in the obligation of the Secretary of State while retaining the fact that the report of the animal sentience committee, whatever it concludes, remains a matter of public record. It removes the burden of work on the Secretary of State.
Baroness Bakewell of Hardington Mandeville (LD)
My Lords, it is a pleasure to follow the noble Lord, Lord Trees. This group of amendments is varied and I am grateful for the various briefings I have received, particularly from the Better Deal for Animals coalition. I am disappointed that some Peers taking part today are asking the Minister questions which he already provided full answers to on the first day in Committee.
Amendment 21 restricts the work of the animal sentience committee to impending policy and prevents it reviewing existing policy, even though there may be evidence that a review is necessary. I agree with the noble Viscount, Lord Trenchard: I am not sure why this amendment was not included in the previous group. Amendment 22 requires the ASC to obtain consent from the Secretary of State before beginning to construct the report on its work. The noble Viscount spoke to these two amendments.
The noble Baroness, Lady Jones of Moulsecoomb, has introduced Amendments 20, 27 and 41, which deal with ensuring that a report is produced by the ASC and that it should declare whether it is to be answered through the affirmative or negative procedure. The noble Lord, Lord Trees, has supported these amendments, as do we.
The noble Earl, Lord Caithness, has introduced Amendment 38, which is supported by the noble Lord, Lord Hamilton of Epsom, and the noble Viscount, Lord Trenchard. Again, this introduces more bureaucracy into the workings of the ASC by insisting that it consults the Animal Welfare Committee. While these two committees are complementary and should share information in order for both of them to be effective, I do not believe that making it a requirement that the view of the Animal Welfare Committee should be published in all the reports of the ASC is necessary. It may well be desirable and happen as a matter of course, but making it a legal requirement in the Bill is unnecessarily bureaucratic.
I also do not feel it necessary to include Amendment 44, proposed by the noble Lord, Lord Mancroft. The animal sentience committee is there to provide additional evidence to inform policy rather than directing policy itself. The Minister will decide whether they wish to take notice of this, and it is therefore unnecessary to put it into the Bill. Whether the Minister should have a duty to take notice of the advice is another matter, but attempting to prove whether the advice has been adhered to is not currently a requirement of the Bill. There are examples of other countries’ animal welfare legislation which offer advice: the Scottish Animal Welfare Commission; New Zealand’s National Animal Welfare Advisory Committee and its National Animal Ethics Advisory Committee; and the Dutch Council on Animal Affairs. All these bodies offer advice which their respective Governments may consider when forming policy; they do not direct policy themselves.
I put my name down on this group to be able to speak in favour of Amendment 46 in the names of the noble Baronesses, Lady Young of Old Scone and Lady Hayman of Ullock. For animal charities and the public to have confidence in the work of the ASC, a published annual report on its work will be necessary. Transparency, rather than bureaucracy, is essential.
We have seen through the first day of debate in Committee that there is some considerable opposition not only to setting up the animal sentience committee but to the way in which it will go about its work, and the groups of animals that it can consider. The Bill currently limits the animal groups to vertebrates, which is very wide. We will return to whether this should be widened in the last group of amendments this afternoon. On the first day in Committee, several Peers wanted to limit the group of animals to be covered by certain activities such as agriculture, transport or space, with others wanting to exclude the words “sentient beings”.
Given the level of unease around the Bill and the setting-up of the committee and its work, it is essential that a report of its deliberations and advice given to the Minister should be published annually. The noble Baroness, Lady Jones of Moulsecoomb, has also spoken in favour of a published report. As I have indicated, transparency is very important, and I look forward to the Minister’s response.
Baroness Hayman of Ullock (Lab)
In this group, I support Amendment 46 in the name of my noble friend Lady Young, to which I have added my name. This is a fairly straightforward amendment designed to enable the animal sentience committee to submit annual reports to both Houses of Parliament. I thank the noble Baronesses, Lady Jones of Moulsecoomb and Lady Bakewell of Hardington Mandeville, for their support. The amendment would ensure transparency and oversight of the work of the committee.
Coming to the points raised by the noble Earl, Lord Caithness—I thank him for his introduction to his amendment—he referred to the three points in subsection (2) of the proposed new clause in our Amendment 46. The first is
“a statement of the policies on which the Committee has reported”,
which I cannot imagine anyone would object to, as we need to know what the committee has been looking at. Then there is
“an overview of the implementation of animal sentience requirements”,
which is the part the noble Earl raised.
The reason for this provision is that I have often seen in pieces of animal welfare legislation, covering wildlife crime, for example, that legislation is brought forward in good faith but then not enacted. It does not get enforced and is not implemented properly. Often, that legislation does not work to deliver what it was designed to deliver. We want to have oversight of that and to ensure that other government departments co-operate with the committee in the way that is expected. That is the purpose behind it and I hope I have explained it to the noble Earl. Lastly, there is
“a statement of the other activities”.
I am aware that the noble Viscount, Lord Trenchard, took exception to that, but we think it is important that we get proper oversight of everything that the committee is currently expected to look at.
Just before I finish on these, the noble Earl, Lord Caithness, introduced his Amendment 38. I agree with the noble Baroness, Lady Bakewell of Hardington Mandeville, that it could bring in unnecessary bureaucracy. However, there are clearly important questions that he has asked the Minister to consider.
I support Amendment 20, in the name of the noble Baronesses, Lady Jones of Moulsecoomb and Lady Fookes, which would provide that the committee “must” produce a report when any government policy is formulated or implemented. Again, I agree with the noble Baroness, Lady Jones of Moulsecoomb, that we need a strong, broad-based committee that looks at everything in the round. We have talked about this before: the remit and the focus are of such importance that we all know exactly what is expected from the committee once it starts working.
I also support Amendments 27 and 41, in the names of the noble Baronesses, Lady Jones of Moulsecoomb and Lady Fookes, and the noble Lord, Lord Trees. I thank the noble Lord for introducing that amendment clearly. Again, this is all about proper reporting, which will be critical.
On Amendment 44, in the name of the noble Lord, Lord Mancroft, we agree with the noble Baroness, Lady Bakewell of Hardington Mandeville, that this does not necessarily need to be in the Bill. But in introducing his amendment, the noble Lord asked some important questions that need to be considered as we move forward.
Finally, Amendments 21 and 22, tabled in the names of the noble Lords, Lord Forsyth of Drumlean and Lord Etherton, and the noble Viscount, Lord Trenchard, were introduced today by the noble Viscount. We believe that these amendments are unhelpful. Amendment 21 amounts to a significant weakening of the animal sentience committee because of the way it restricts the committee’s work. By not being able to report on existing government policy, it rows back from the original vision of a body that is free to consider sentience questions right across the range of government policy. I know a number of noble Lords do not think this is necessary, but we think it is very important.
We also think it is important that the initial vision is retained in the Bill so that the animal sentience committee can make a positive contribution to policy-making. It can best do that as a public body that provides expert input to inform complex policy questions that touch on the welfare of animals as sentient beings. As we and the Minister have said, this is not about the committee making policy; it is about the committee informing, answering questions, passing comment and being there as a critical friend, if you like, for policy decision-making in this area.
If we erect arbitrary barriers to that expert advice, it will impoverish the policy process. We should not make laws that prevent Ministers accessing knowledge that could improve their decision-making. The noble Baroness, Lady Bakewell of Hardington Mandeville, mentioned the Scottish Animal Welfare Commission, which we know is carrying out this important work. It is an interesting example of what could be achieved if we move forward with the Bill as proposed. As the Minister said on the first day of Committee:
“In our manifesto, this Government as a whole committed to the introduction of new laws on sentience, with no suggestion of carve-outs or exemptions.”—[Official Report, 6/7/21; col. GC 288.]
We strongly support him in that ambition.
As we heard, Amendment 22 would require permission to be received from the Defra Secretary of State before a report could be prepared. We believe this would also significantly weaken the committee and reduce it from being a body that is free to consider sentience questions across government policy to basically a Defra scrutiny committee, which would then scrutinise only with the Secretary of State’s permission. We therefore cannot support the amendment.
This has been a really interesting discussion on this group. It has been good to hear all the different contributions from noble Lords. I now look forward to hearing the Minister’s contribution.
Lord Benyon (Con)
I entirely agree: this has been a really interesting discussion.
I thank the noble Baroness, Lady Jones of Moulsecoomb, for her Amendment 20, which would place a legal duty to publish reports on the animal sentience committee. This Bill makes provision to empower the committee to scrutinise Ministers’ policy formulation and implementation decisions with a view to publishing reports containing its views on whether Ministers have paid “all due regard” to the welfare needs of animals as sentient beings. When the committee publishes a report, this will trigger the accountability mechanism to ensure Ministers respond formally to Parliament. The committee will be able to issue reports on central government policy decisions, without exception. This includes past policies as well as policies in the process of being formulated.
Naturally, the committee will not be able to scrutinise every single policy-making decision. This would be an impossible undertaking for a single committee, so we will support the committee to identify and prioritise areas where it can have the most important impact. I am sure your Lordships would agree that the committee should focus on policies where it can add the most value.
As the experts, it is ultimately for the committee to decide how best to use its time. We therefore do not want to prescribe what it must do any further in statute, beyond the powers given to the committee in the Bill. We want to give the committee flexibility to work in a way that best suits its priorities. For example, the committee may decide to issue advice and input as a policy is being formulated. We will support the committee in identifying opportunities for this. I assure the noble Baroness that the committee will have a work plan that will be made publicly available. We think it best for the committee, as the experts, to decide what it chooses to look at.
We will, of course, work closely with the committee, which will have a dedicated secretariat to support its work. We want to ensure that the committee is appropriately resourced with sufficient membership and administrative support to make an impact and scrutinise the most important decisions but is not so large as to become unmanageable or overbearing. Your Lordships tried to pin me down on this when the Committee last met. I am happy to give a little more clarification. As has been said, your Lordships can look at the Scottish Animal Welfare Commission, with its 12 members and a proportionate dedicated secretariat, as a rough indication of the scale that we are looking at.
I offer my reassurances to the noble Baroness that it is very much intended that the committee will publish reports on how Ministers have paid “all due regard” to the welfare needs of animals as sentient beings. This will be a key tool in embedding consideration of animal welfare into the policy decision-making process.
The Deputy Chairman of Committees (Baroness Healy of Primrose Hill) (Lab)
I have received requests to speak after the Minister from the noble Lord, Lord Robathan, and the noble Earl, Lord Caithness.
Lord Robathan (Con)
I am moved to intervene briefly because the noble Baroness, Lady Jones, said that the people want it—I think I quote her exactly. I think the people want animals to be well treated; I think that everyone in this Room wants them to be well treated, and we have pretty good legislation that already protects animals, both domestic and wild, from unnecessary cruelty and ill treatment. However, in my 23 years in the House of Commons—I know that the noble Baroness represented people in the London Assembly—I can certainly say that nobody mentioned animal sentience. They mentioned lots of animal welfare issues, but nobody mentioned animal sentience. I think they were about as concerned about animal sentience as about the divine right of kings, which the noble Baroness also mentioned. Although the noble Baroness cannot intervene, perhaps my noble friend the Minister might say how many people came to him when he was an MP and said they wanted an animal sentience Bill.
Lord Benyon (Con)
I will explain why. My noble friend was—as the previous Speaker used to say—a great denizen of the House of Commons for many years, as he rightly reminds us. But, sadly, he was not there when the Government of the day decided, for reasons that have always been slightly obscure to me, not to include the provisions of Article 13 in the legislation that took us out of the European Union. Those of us who were there found a tsunami of emails and letters from people who may not have understood the most detailed aspects of animal sentience but were very concerned that the Government were not reflecting their views. This resulted in rather a lot of mid-air turbulence in trying to get to this point. Without baring the soul of the discussions over that time, I respectfully correct my noble friend to say that this was something people were very concerned about in the much wider sense of where animal sentience and animal welfare combine.
Lord Robathan (Con)
Perhaps my noble friend might list the constituents who wrote to him.
The Earl of Caithness (Con)
My Lords, I am grateful to the Minister for his very full reply. He did comment on my amendment; I will have to read what he said in the Official Report, but towards the end, he said quite rightly that the remit of the animal sentience committee was across Whitehall. That includes the devolved Administrations. The Scottish Animal Welfare Commission was set up specifically to look at how the welfare needs of sentient animals are being met by devolved policy. I am now unclear—perhaps my noble friend could help me—about how much of sentience is devolved and what exactly the committee will be able to do in the devolved countries. Will it be able to go to the Scotland Office and thus up to Holyrood, look at its policy and tell Scotland that it has to change its ways? I am not quite certain how this will work in practice. As this is Committee, it is an ideal time for my noble friend to explain the Bill a bit more to us.
Lord Benyon (Con)
I am grateful to my noble friend, and I hope to be able to reassure him. The job of the animal sentience committee will not be to walk into Holyrood and instruct our friends in Scotland how they should deal with animal sentience. It is a committee based around the UK Government that, as he rightly says, covers Scotland, but these matters are devolved issues—animal welfare is a devolved issue. But, on these small islands, it would be absurd if we were not working closely across borders with the devolved Administrations to make sure that our animal welfare laws broadly align. We have livestock bred in one country and slaughtered in another, or bred in one country and fattened in another. We have other activities, such as fishing and all forms of animal welfare, which require a cross-border understanding.
The Animal Welfare Committee’s remit is right across the country. The animal sentience committee will be restricted to the UK Government and will work with the devolved Administrations to make sure that the policies it is commenting on are properly managed in respect of the department to which it is making its report.
Baroness Jones of Moulsecoomb (GP) [V]
My Lords, I think that I may be interrupted by a vote at some point so I will try to be quick, although I might not be.
I thank the Minister for his comments; I will read them in Hansard to make sure that I have understood fully where our interests overlap and where there is any divergence. I also thank all noble Lords who took part in the debate. I listened carefully to everybody. I know that the noble Earl, Lord Caithness, the noble Viscount, Lord Trenchard, and the noble Lords, Lord Hamilton and Lord Mancroft, care deeply about these issues. Their views are valuable, but I found them quite repetitive. We have heard all this before. We have been told that the two committees will not clash and will have particular remits that will be extremely clear. I think that we perhaps underestimate the interest of both committees in terms of being able to understand where they might work together and where they absolutely must not because it is not relevant, so I do not have the same fears about any sort of overlapping.
I am happy that the noble Earl, Lord Caithness, and the noble Viscount, Lord Trenchard, agree with the concept of policy in the round. The minute they started agreeing with me, I started to wonder whether I did not know what I was talking about, but I will look into that.
The noble Lord, Lord Mancroft, is trying to tie the hands of the animal sentience committee. I just do not think that that is appropriate.
The noble Viscount, Lord Trenchard, mentioned animal rights activists. This term has been thrown at me since we did round one of this Bill; perhaps he can tell me what he thinks he means by it in reference to me. He can always send me a private email if he would prefer.
I offer a big thank you to the noble Lord, Lord Trees, for his comments and to the noble Baronesses, Lady Bakewell and Lady Hayman, for their support, which is incredibly valuable. They both made an excellent summary —much better than I did. I thank them for that.
The noble Baroness, Lady Hayman, talked about the committee being a critical friend, which is incredibly valuable and something that the Government do not have enough of. I would argue that your Lordships’ House is a critical friend, but we do not always have the same opportunities to support the Government when they change their mind.
The noble Lord, Lord Robathan, talked about the tsunami of people who wanted us to put animal sentience back into legislation. Of course, most people probably had not used that term before, but they certainly had once the Government had taken it out of the EU legislation that they moved over—
The Deputy Chairman of Committees (Baroness Healy of Primrose Hill) (Lab)
I apologise to the noble Baroness but I must adjourn the Committee for five minutes.
The Deputy Chairman of Committees (Baroness Healy of Primrose Hill) (Lab)
My Lords, the Committee is resumed and I call the noble Baroness, Lady Jones.
Baroness Jones of Moulsecoomb (GP) [V]
Finally, I thank the Minister for his simple explanation of how the two committees will work. That is incredibly useful, and I hope that it calms the fears of the noble Lords who have worried about that during the course of the Bill. With that, I beg leave to withdraw the amendment.
The Deputy Chairman of Committees (Baroness Healy of Primrose Hill) (Lab)
My Lords, we now come to the group beginning with Amendment 28.
Amendment 28
Lord Moylan
Member’s explanatory statement
This amendment aims to ensure the academic robustness of the Committee’s work.
Lord Moylan (Con)
My Lords, I shall speak to Amendment 28, which is supported by my noble friends Lord Trenchard and Lord Hamilton of Epsom, and Amendment 42, which is linked. The purpose of these amendments is to require that any report of the animal sentience committee be peer-reviewed academically before publication and, connected to that, that the period for the Minister to respond to any such report be not three months after it is published, but three months after it is published in the said peer-reviewed journals. The second amendment is tidying up and consequential.
Science is at the heart of the Bill. Every proponent and supporter of it would agree that the claims for animal sentience must be scientific, not merely a sort of infantile anthropomorphism. At Second Reading, my noble friend Lord Inglewood said rather tellingly, and rightly I thought, that Bambi was an illusion. If our approach to animal sentience is simply that animals feel and look nice—what I would call Bambi-ism—then the whole Bill is pointless. The Bill has to rest on a proper scientific basis. I thought it was worth having a few moments while we are in Committee to discuss some things about the science of animal sentience because they have not as yet been debated. These amendments give an opportunity to do that and a rationale for them as well.
When we met a couple of weeks ago, the noble Baroness, Lady Hayman of Ullock, pushed back against any suggestion that there was no science behind animal welfare. Before she becomes too worried or excited, I am going to agree with her on this: there is indeed science behind it. She cited courses in animal welfare at the University of Glasgow and the University of Winchester and the Royal Veterinary College’s animal welfare science and ethics group, which specifically researches in the field of animal welfare, animal behaviour, veterinary ethics and law. What is notable and revealing about that list—as I say, I agree with everything the noble Baroness said, as a matter of fact and a matter of opinion on this point—is that nowhere in it is animal sentience.
It might be easily thought by the Committee that “Ah, you see, animal behaviour generally must include sentience” and so forth, and that it must be all wrapped up in there, but there is a genuine conflict between animal behaviourism and animal sentience as a scientific methodology. If one goes back, in the great part of the 20th century, studies of animals and animal welfare were based on behaviourism—the study of behaviour. So if you apply a stimulus, the animal reacts in a certain way; if that is repeated in other cases and experiments, you begin to establish a body of knowledge about the behaviour of animals. That scientific approach specifically eschewed trying to delve into what was happening in the animal’s mind, so to speak, because there is almost no scientific way in which one can establish that. It dealt with the epiphenomena of behaviour in trying to understand how to deal with animals and how to do so in a kind and humane fashion.
The origins of animal sentience science come much later. At Second Reading I mentioned the work of Professor Peter Singer and his seminal book Animal Liberation, published in 1975. I remind noble Lords that when a young man, Professor Singer was suddenly converted to vegetarianism and then, as a professional philosopher, later wrote a book trying to justify the choice he had made. At the root of this was the concept that what animals and humans had in common was sentience. It is not surprising that studies of animal sentience science as a discipline originated in that last quarter of the 20th century, but it is at odds with the traditional and established behavioural approach, which has not been abandoned, as the noble Baroness, Lady Hayman, illustrated when she listed the subjects of study there.
Lord Hamilton of Epsom (Con)
My Lords, I have added my name to my noble friend Lord Moylan’s amendment. It brings us back to the concern expressed on previous amendments about the committee’s composition—that people who feel very strongly about this will not necessarily share the broad spectrum of views on this whole issue. I have nothing against people being vegetarians or vegans but the reason why they are is because they cannot bear the thought of animals being killed to feed human beings. If we were to have a significant number of vegetarians and vegans on this committee, it might start producing rather strange judgments about animal sentience.
My noble friend Lord Moylan is absolutely right to express concern about this. This committee will have enormous power and its composition will be critical to the judgments it will come out with; that is why it is very important that it gets subjected to peer review and that others can comment about the judgments made by it. I am sure that my noble friend the Minister will say that he is determined to set this committee up in a way in which it is sensibly and broadly based and reflects all people who might have an interest in this matter, but of course it will be set up by statute and I have no doubt that subsequent Governments might have different views about its composition. That is why I think that we need some form of academic peer review so that this can be subjected to expert opinion from outside and have a bit more balance in some of its judgments. I support this amendment.
Viscount Trenchard (Con)
My Lords, I support Amendments 28 and 42 in the name of my noble friend Lord Moylan; I have added my name to Amendment 28. As my noble friend pointed out in his impressive speech at Second Reading, and again today, our animal welfare legislation to date has not been based on any animals rights deriving from our recognition of their sentience; it has been based on our moral obligations as rational human beings endowed with conscience. I agree with my noble friend that the scientific basis for the recognition of sentience needs to be examined. I do not believe that sentience is something that one species has and another does not. I am sure that all forms of life possess a degree of sentience—perhaps even trees and plants. It is not the reason why we should look after animals well.
This Bill could become a Trojan horse and be used by activist groups to attack proper wildlife management, farming and the economic well-being and way of life of our rural communities. Throughout my life, I have noticed that those who genuinely care for wildlife are often the same people who engage in country pursuits and field sports. They are often the people who understand animals, birds and fish better than most. They are prominent among people who perform acts of kindness towards animals and are most determined to spare animals suffering. I worry that the Bill will be used against them and that our rich and diverse wildlife will suffer.
These amendments will ensure that the committee’s work is underpinned by robust academic findings. I ask my noble friend the Minister to confirm that the Government will accept them.
The Deputy Chairman of Committees (Lord Lexden) (Con)
The noble Lord, Lord Howard of Rising, has withdrawn so I call the noble Lord, Lord Benyon.
Lord Benyon (Con)
I thank my noble friend Lord Moylan for his Amendments 28 and 42. Members of the animal sentience committee will be appointed through a rigorous procedure of fair and open competition. As I have said previously, the committee will be comprised of experts who will be best placed to decide what the committee’s priorities should be, although they will of course be able to consult others.
Peer-reviewed evidence from academic journals will have a role in informing the committee’s work. While we do not propose to dictate to the committee how it should set out its reports, it is usual for expert committees such as this to present well-reasoned reports that show their working. The Scottish Animal Welfare Commission, for example, publishes its reports online and includes its reasoning and references. However, I do not believe that it is necessary for the committee’s reports themselves to be published in academic journals. To require the committee’s recommendations to undergo a full academic peer-review process would be impractical and inappropriate, and would risk creating a process that would slow down the publication of the committee’s views and delay the opportunity for Parliament to hold Ministers to account.
It is key that the committee should be able to advise on policies while they are being developed. This amendment would severely compromise its role. The committee will publish reports, so it will naturally have an open way of working. I believe that this will provide transparency about its work. If a Minister felt that a report of the committee identified a need for further evidence or assessment, they would be free to highlight this in their response to the report.
Nothing would please me more than to spend time talking about the philosophy behind what we are talking about. We could even, if we had time, discuss Descartes’ Meditations on First Philosophy, in which he said that animals possess life
“nobler than any merely corporeal grade of being”.
However, in terms of how we approach this Bill, the definition of sentience is important. Our scientific understanding of sentience has come a long way in recent years and will continue to evolve. The Bill does not therefore have a fixed definition of sentience. It is not necessary to define sentience in statute for this Bill to work. We can all recognise that animals are sentient and that their welfare should be considered in decision-making; there is no need to make it more complicated than that.
Our GB-wide Farm Animal Welfare Committee issued a definition of sentience in 2019. The Scottish Animal Welfare Commission recently published a statement on sentience. There are some differences; this shows the importance of adopting a flexible approach that can evolve. It is worth noting that neither definition is set out in statute. The Scottish Animal Welfare Commission’s definition is one that it has adopted for its own purposes; similarly, if the animal sentience committee considers it expedient to adopt a working definition of sentience, it would of course be free to do so, but that is a discussion for its members to have.
I hope that this reassures my noble friend and that he will withdraw his amendment.
The Deputy Chairman of Committees (Lord Lexden) (Con)
My Lords, I have received one request to speak after the Minister. I call the noble Baroness, Lady Bakewell of Hardington Mandeville.
Baroness Bakewell of Hardington Mandeville (LD)
My Lords, I just want to refer to the contribution made by the noble Lord, Lord Hamilton of Epsom. He said that he hoped that vegans and vegetarians will not be on the committee as they might sway its decisions. Can the Minister confirm that the appointment of members to the committee will not be prejudiced against those of religious persuasions or other protected characteristics?
The Deputy Chairman of Committees (Lord Lexden) (Con)
My Lords, there is a Division in the Chamber. The Committee stands adjourned for five minutes.
The Deputy Chairman of Committees (Lord Lexden) (Con)
My Lords, it is time to resume. Perhaps the Minister might like to say a word in reply to the noble Baroness, Lady Bakewell.
Lord Benyon (Con)
I thank the noble Baroness for her question. It would not be our intention to edit the committee’s membership by their eating habits or by any other habits or disciplines. We want a balanced committee that draws together a wide range of expertise across the whole field of animal welfare.
Lord Moylan (Con)
My Lords, I am grateful to noble Lords who have spoken in support of the amendment, and to the noble Baroness, Lady Bakewell, for contributing to the debate. I reiterate the point that the science that underlies animal sentience is of crucial importance to the Bill and deserves further debate, which may come at a future stage in the Bill. To be absolutely clear on my own position in case it was not, I am not saying that there is no such thing as animal sentience science—I believe there is such a branch of science—but I am saying that it is a relatively new, relatively specialist and slightly political branch of science. It needs the buttressing of peer review.
In that regard, I was disappointed by the response of my noble friend the Minister. He said that the Government did not want to dictate to committees such as this because they usually did well-reasoned reports. I thought “usually” was interesting. I quite understand that the Minister does not appear to want to dictate to committees that do badly reasoned reports; he wants to stand aloof from good research, from good reason and from bad reason alike. But that is not a very good basis for carrying the public with you. When this committee comes into existence and produces its reports, I think that much of what it says will be met by the challenge, “Well, that’s not really science anyway.”
It is slightly remarkable that, given the opportunity by these modest amendments to rebut that challenge and say, “No, this is science at the cutting edge. It is the best science we have and we know that because we have ensured that it is properly peer-reviewed”, the Government have turned away in distain and said that they would rather have uncertain science and not have any checks on what the committee is going to do. I am sure that, if they reflect, they will think that that is not really a sustainable or credible position. For the moment, to allow them time to reflect, I am happy to see my amendment withdrawn.
The Deputy Chairman of Committees (Lord Lexden) (Con)
My Lords, we now come to the group consisting of Amendment 35A.
Amendment 35A
The Earl of Caithness
“(4A) Recommendations under subsection (3) must not be detrimental to—(a) conservation,(b) biodiversity,(c) crop protection, or(d) human health.”
The Earl of Caithness (Con)
My Lords, this amendment came to me when we were discussing the Environment Bill last week. I know that it is not drafted as well as it should be; I apologise to the Committee for that. I say to my noble friend the Minister, “Forget about the drafting. It is the principle of what I am trying to get at that is important here”.
Most of our conservation work to improve our biodiversity and wealth of species has been habitat-based. It has not been very successful because when we were in the European Union, and since our exit, the Government have not focused on the critical issue of management. Management requires human decision. There are some fairly easy examples to make about species and how people will react to them, but when you look at pests, people’s opinions start to vary and that perception could be translated into legislation. That is my concern here. Take deer, for instance. You can have lots of photographs and everybody will look at Bambi and ooh and ah, but deer are a pest that need to be controlled. We discussed this in the Environment Bill and there seemed to be unanimity there. It would be an easy species for a committee to make an emotional, rather than scientific, decision on.
One can get into more questionable species. What about rats and wasps? If you analyse what people think about them, they have less feeling for them and are much more prepared to allow proper pest control of those species than they are of some others. That is why local authorities have pest divisions that deal with wasps—I have had to use them—mice and rats. What about bedbugs? Until recently, they were fairly common in this country, and in lots of places they are sadly still common. People’s perception of a bedbug is not the same as their perception of deer or seals. We need to have a scientific basis on which to approach this matter.
We could turn to brown hares. Brown hares are on our biodiversity action plan and are rated an important species but, at certain times of the year, in certain parts of the UK, the hare is a pest, and there needs to be the ability to control it. The ability to control pests in the most humane manner possible was a great omission from the badger Act, and we are paying the price for that with the increasing amount of predation of ground-nesting birds by badgers. We have seen it with lapwings and curlews. I have given examples in the environment committee of the destruction of lapwing at the Game & Wildlife Conservation Trust farm up in Aberdeenshire, where the badgers have actually been photographed destroying the nests and reducing species as a result.
During debates on the Environment Bill, we came across the conservation covenants. These will be an important part of the Government’s policy on improving our biodiversity and species number, but, again, action needs to be taken with management in view, not just the habitat.
So, what I am getting at with this amendment is whether the Minister, when he gives the brief to this Committee, will include management and pest control as an important aspect for the animal sentience committee to take into account so that the policies it comments on and the position it urges the Government to take do not contradict with the Government’s well-intentioned position on conservation, biodiversity, crop production and human health.
I have talked mostly about conservation and biodiversity, but I would like to give an example that was raised during the debate on the Environment Bill by my noble friend Lord Lucas, again on deer. It was about a wood that the RSPB looked after in Dorset. The RSPB got round the problem of the deer by fencing that bit of wood so that the deer were no longer a problem. However, that forced the deer on to the neighbour’s land —this is pretty bad management—and the devastation of the crops growing on the adjacent farmland was much more intense because the deer were not allowed into that bit of woodland.
As usual, there is a balance to be struck in all this. I hope that my noble friend will be able to make some comments on this. I beg to move.
Baroness McIntosh of Pickering (Con)
My Lords, I am grateful for the opportunity given by my noble friend Lord Caithness in moving his Amendment 35A to probe my noble friend the Minister and the Government a little bit more on the cross-departmental responsibilities of the animal sentience committee. I also want to explore what the relationship will be within Defra and the relationship between existing legislation and soon-to-be legislation in the form of the Agriculture Act and the Environment Bill, the latter of which my noble friend Lord Caithness referred to. We spent some time in the first day of Committee on the amendments looking at pests—particularly deer, badgers, bats, grey squirrels and insects—and sentience. It begs the question: are insects to be treated as sentient beings within the remit of this Bill?
Lord Benyon (Con)
I thank my noble friend Lord Caithness for his Amendment 35A, which seeks to ensure that the animal sentience committee’s recommendations are not detrimental to conservation, biodiversity and other matters. The House has been clear that the committee should not usurp or encroach on the role of Ministers to formulate and implement policies in the public interest. It is, and will remain, for Ministers to decide policy and for Parliament to hold us to account. If the promotion of animal welfare is ever not fully compatible with other important goals, it is for us—not a committee—to determine the best course of action.
I agree entirely with my noble friends Lord Caithness and Lady McIntosh of Pickering. They are right to state their concerns about the anthropomorphisation—I think that is the right word but I am not sure; I look to the noble Lord, Lord Trees—of species. We make gradations of cuteness in our own minds. We look at a deer and compare it to a rat; we often do not mind very much what happens to the rat but mind when it is the deer, when the latter may be more of a pest in terms of conservation and biodiversity. As one person lecturing me on forestry when I was studying land management said, “Remember”—he was referring to grey squirrels—“it is not the squirrel’s fault that it is a pain in the backside”. His point was well made. Even allegedly non-interventionist activities, such as rewilding, actually require enormous amounts of interventionism when it comes to animal welfare. If you go to Knepp, that estate still has cattle, horses and pigs to manage, so there are animal welfare considerations.
However, I reiterate that the animal sentience committee is not there to make recommendations about how Ministers should decide what policy should be. The purpose of its recommendations is to highlight certain effects on which it has the expertise to assess, so that Ministers can understand those effects better. The committee’s members will be well aware that Ministers have myriad other important factors to consider when reaching their decisions—I hope this addresses my noble friend’s point—and that their recommendations are likely to relate to one of a number of important considerations that Ministers will want to take account of.
I fear that directing the committee to prejudge recommendations based on factors other than animal welfare would risk undermining the clear distinction we have drawn and force it to assess matters beyond its expertise. It bears repeating that, rather than being some sort of power-grabbing cabal, this will be a committee of experienced scientists, veterinarians and other experts. These will be level-headed, thoughtful people who are unlikely to wish to advise on matters beyond their remit.
There is also a real opportunity for the committee to add value to the policy-making process. I know that some of your Lordships fear that we will be told we must sacrifice important human needs, such as crop protection, to animals. Instead, the committee will help policymakers to reach intelligent solutions which allow us to advance human interests in ways that are compatible with the welfare needs of animals. I say to my noble friend that we both want to see the committee make suggestions on how well the welfare needs of animals have been taken into account in policy decisions. But I reiterate that it is for Ministers, not the committee, to decide how animal welfare itself should be balanced against other matters of interest, such as conservation and biodiversity.
To be specific on whether the Bill will interfere with pest control, the answer is no. Pest control is highly regulated. Rules ensure that the trapping and killing of vermin is humane, using permitted methods. I say to my noble friend Lady McIntosh that we are talking about vertebrates here. A vertebrate is an animal with a spine: mammals such as dogs, cats and cows; birds; reptiles; and amphibians, such as frogs and toads. Vertebrates do not include decapods and cephalopods —we might come to that later—arachnids, insects and myriapods. With those assurances in mind, I hope that my noble friend Lord Caithness will be content to withdraw his amendment.
The Deputy Chairman of Committees (Lord Lexden) (Con)
I have received two requests to speak after the Minister from the noble Lords, Lord Hamilton of Epsom and Lord Moylan. I call the noble Lord, Lord Hamilton.
Lord Hamilton of Epsom (Con)
My noble friend Lord Caithness mentioned the predation of badgers, which of course do not come under pest control; they are protected. He did not mention that badgers very much like eating hedgehogs. They are skilled at rolling them over and disembowelling them. When we worry about the decline in hedgehog numbers, very rarely does anybody mention that perhaps badgers are responsible for this.
Another protected species is the sparrowhawk. If you shoot a sparrowhawk you get fined £1,000 because all hawks are protected, but 34 songbirds every week account for their diet. We have to bear in mind that in nature, almost all species are predated on by others. We just want to get all this into perspective.
Lord Benyon (Con)
I would be going down a very dangerous path if I moved on to cats and how many songbirds they account for, and would probably find this getting out of hand, but my noble friend is absolutely right. What we seek to achieve through not just animal welfare provision but other legislation and regulation is a balanced countryside. We do not get it right; we are suffering a cataclysmic decline in species, which means that our children and grandchildren will not see the species that we have perhaps relied on seeing regularly. That is a tragedy that we are seeking to reverse through a variety of other policies. At the same time, when it comes to pest control, we can do it as humanely as possible, and we can have management techniques that protect both species and landscapes. It is not an exact science and it will be got wrong at certain times, but, by and large, I think there is a great unity of purpose in trying to reverse these tragic declines in species.
Lord Moylan (Con)
My Lords, given our discussion at our earlier session two weeks ago about the composition of the committee, I was struck by the Minister’s certainty that he could describe the members of the committee in such paradigmatic terms. I cannot recall his exact words—I will look at them in Hansard—but he said that the members of the committee would be knowledgeable, balanced, cautious, restrained and unwilling to rush into areas where they were not wanted. This must narrow the number of people who would qualify to sit on the committee to the point where I suspect the Minister must have a list of names already. If he has not, or is not willing to disclose it, is he at least willing to assure us that, when the public appointment process is launched and the person description drafted, the words that he has used now will be carried over verbatim into the person description for the applicants so that we get exactly who he appears to be promising us?
Lord Benyon (Con)
I am very worried about my noble friend. He appears to have a very jaundiced view of human nature. There are a great many people with those skills whom we meet every day, whether we are having our dog treated at the vets or talking to farmers or discussing wider policy areas in this field. I hope I can prove to him that his glass should be half full on this; we will find the right people.
The Earl of Caithness (Con)
My Lords, I am grateful to those who have taken part in this debate, in particular my noble friend Lady McIntosh of Pickering for her helpful contribution. When my noble friend Lord Hamilton intervened, I too immediately thought of cats and the very good debate on cats that we had before my noble friend the Minister joined the House, when the wonderful work and research done by SongBird Survival was referred to, because of the millions of birds that cats take every year.
I listened with care to what my noble friend the Minister said and was heartened by a lot of it. If what he said works in practice, I think that a lot of our concerns will evaporate. My fear is that when he goes and the Ministers change, the committee will undoubtedly change too, and then the trouble will begin. That will be a few years down the road; I do not wish my noble friend to leave his position any time in the next four years or even thereafter, because this committee will be too important.
I am grateful for what my noble friend said. I shall read it. He was absolutely right that this is not an exact science; it is not, but I fear that we have spent too much effort on habitats and not enough on management. Therefore, the problem has been exacerbated. I hope that, with my noble friend’s experience and knowledge, Defra will spend more time on management than it has in the past, because it is only through management combined with habitats, species and the right amounts of food given at the right times of year that we will be able to increase the biodiversity of this country, which has suffered in the recent past. I am happy at this stage to withdraw my amendment.
The Deputy Chairman of Committees (Lord Lexden) (Con)
We now come to the group beginning with Amendment 48.
Lord Moylan
Member’s explanatory statement
This amendment limits the application of the Bill to mammals.
Lord Moylan (Con)
My Lords, there are four amendments in this group in my name, Amendments 48, 52, 53 and 57. I will come in a moment to say exactly what they would do, but I shall make some preliminary remarks that arise from something my noble friend Lady McIntosh of Pickering said and which has not been sufficiently discussed. This is the famous metaphysical bit that the Minister has been worried about, although I hope to get through this while skirting Descartes—or anybody difficult or foreign, for that matter.
The difficulty we have is that we are asked to assess to what extent, in a meaningful way, we think that animals can feel pain. That requires us to think a little about what pain and feeling are. My noble friend Lady McIntosh brought up insects as an example of this, but it relates to other creatures as well. Pain itself, of course, is not just an interior experience; it is, to some extent, a social concept. Pain is an abnormality, but we learn from others that it is an abnormality that is expressive of something that requires a response. So, we learn as children, “Don’t put your hands on the coal. If you do put your hands on the coal, that is what we call pain; learn not to do it again.” There is a social element to it, and it is not by any means clear that that can be translated to animal experience. This is the problem of operating on a non-behavioural scientific basis.
We humans also have coping strategies for dealing with pain. When I know I am going to have an injection in my arm, I always make sure that I look the other way; that is a very small example of a coping strategy. That illustrates another thing about the human experience of pain, which is that very often it is worse in anticipation than in the experience itself. All of this is tied up with what we understand by pain: for humans, it is not simply a neurological experience that can be tracked by chemicals and electrons, although it has all those aspects to it.
It is very difficult to know how one can map that across the bulk of animals. It is easiest to do so, of course, in the case of mammals, because there we have a closer link with ourselves in terms of DNA composition and so forth. To map it to fish and birds is extremely difficult. Indeed, it is scientifically quite challenging to understand how the very limited neural capacity, or brain capacity, of fish and birds could accommodate that range of complex experiences of pain characteristic of humans and, perhaps, of primates and other higher mammals.
There is also a similar question about what it is to feel something. In ordinary English, “feel” has two aspects: I can feel a table—that is a physical sensation—but I can also feel love, disdain and other emotions. Nobody doubts at all that the vertebrates we are discussing can feel in the former sense but, simply as a matter of their neural and brain capacity, the notion that they even have the ability to feel love, affection, fear and complex emotions such as those is a very challenging one.
We really need to understand that sort of background before we do what the Bill does, which is to cast an extremely wide net. It includes all vertebrates, but it goes beyond that: it gives the Secretary of State the power, which I think is completely unprecedented, to decide that any invertebrate, including the insects referred to by the noble Baroness, Lady McIntosh of Pickering, are in fact sentient. That is the power given to him which, as I say, is almost incredible.
I turn to the detail of what my amendments seek to do. They would cut the thing in different ways. First, Amendment 48 suggests we “leave out ‘vertebrate’” and limit the scope of the Bill to mammals. This would make it much easier for the public, and for many members of this Committee and your Lordships’ House, to accept the Bill. It could be regarded as a first stage; there would be nothing to prevent the Government coming back subsequently and saying, “Having won over opinion on the question of mammals, we could now extend it to the broader class of vertebrates.” Amendment 52 explicitly invites the removal of fish—it is playing the same tune—and Amendment 53 proposes the removal of birds. These are all different ways of coming at the same thing.
Amendment 57 is slightly different, because I still cannot get over my outrage that Parliament is proposing to give the Secretary of State the power to designate any invertebrate as sentient. Here, simply for the sake of modesty and respectability, this amendment would limit that power to “cephalopods and decapod crustaceans”, simply because one knows from conversation and debate that that is the category of animals most likely to come within scope of this unprecedented power. It should none the less, in my view, be limited.
That is the purpose of these amendments and it is important that we explore them, because I do not accept that it is easy to map notions of feeling and pain on to these classes. Perhaps I may briefly refer to—
The Deputy Chairman of Committees (Lord Lexden) (Con)
My Lords, there is a Division in the Chamber. The Committee stands adjourned for five minutes.
The Deputy Chairman of Committees (Lord Lexden) (Con)
My Lords, we shall resume. The noble Lord, Lord Moylan, may complete his speech and move his amendment.
Lord Moylan (Con)
My Lords, I had just finished commenting on my own amendments when we were interrupted, so it was a convenient break, but before I conclude I shall comment on a few other amendments in this group.
Amendment 50, in the name of my noble friend Lord Robathan, would exclude the actions of wild animals upon other animals from the scope of the committee’s activities, and I think that must be sensible.
Amendment 56, from my noble friend Lord Trenchard, to leave out the power to designate invertebrates is in keeping with my amendment, and I support it.
My noble friend Lord Mancroft’s Amendment 59, which would require a scientific report that a being is sentient before it is redesignated as such by the Secretary of State under this very broad power, is an absolute minimum requirement and one that is very much in keeping with my comments on the previous group.
Finally, Amendment 49, in the name of the noble Baroness, Lady Hayman of Ullock, concerns cephalopods and decapods. As the same words are used in a different order it might easily be confused with my amendment, but on careful examination it has a very different effect. My proposal at least puts some decency on this unprecedented power so that it is confined to the most likely class of animals. I understand—and I am sure I can be corrected—that Amendment 49 effectively takes the decision for the Secretary of State and includes cephalopod and decapod crustaceans as sentient beings on the face of the Bill. That is quite different from what I am proposing, if I have understood the amendment correctly, and I do not think that without proper and rigorous scientific reports, as indicated by my noble friend Lord Mancroft, this august Committee is quite the place in which to make such a radical transformation in our understanding of the natural world. I beg to move.
Lord Robathan (Con)
My Lords, I shall confine myself to speaking to my Amendment 50 for reasons of brevity. The more astute Members of the Committee will have realised that this refers to Section 2 of the Animal Welfare Act 2006, but this seems to me, to a certain extent, the nub of the Bill. It concentrates on what we, as people, are responsible for.
As a slight side-issue, I was asked to change the language because, of course, these days parliamentary language should be gender-neutral. However, surely everyone—however ill-educated—knows that the term “mankind”, or “man” in this context, has always included all human beings, all humanity, of whatever gender. I mention that because language is important, and this is legislation. To have been not specific about “mankind” might have been an example of lack of clarity, of which I fear this Bill is also an example.
On the substance, if I am responsible for an animal, I have responsibilities and duties to that creature, be it my dog, my rather foolish hens—which are not laying eggs at the moment—a cow or, indeed, a pheasant. However, I am surely not responsible for the rats we all live with, nor the squirrels destroying the trees I have planted, nor if my dog catches a rat—it is a terrier, and that is what terriers do. We then come on to fish in a river. Is the owner of a particular stretch of river responsible for a fish moving up and down it? Fish have backbones and are indeed sentient beings. Or is a fishing club responsible? Am I responsible if I run over a squirrel or hit a bird in the road, which I try pretty hard not to do?
I regard myself as a conservationist. The noble Lord, Lord Randall, referred to himself as such in a previous debate. However, unlike him, I see the way this Bill is phrased as paving the way for interference in anything and everything. It has been suggested that it is a Trojan horse and that there will be mission creep. I think it will be an activists’ charter. My noble friend Lord Herbert said in another debate that we need clarity.
The Minister, for whom I have a very high regard—we go back quite a long way and he called me, I think, a “denizen” of the last Chamber we served in—said earlier today that there is a very specific role for the committee. What is that role? It is not clear to me, and I am afraid that the debates so far have not clarified the situation. I hope this amendment may go some way towards clarifying the situation: that we are responsible for those animals for which we are responsible and not responsible for those which we cannot be responsible for.
The Deputy Chairman of Committees (Lord Lexden) (Con)
My Lords, the next three speakers—the noble Baroness, Lady Jones of Moulsecoomb, the noble Viscount, Lord Trenchard, and the noble Lord, Lord Forsyth of Drumlean—have all withdrawn, so I call the noble Lord, Lord Mancroft.
Lord Mancroft (Con)
My Lords, I will speak to my Amendment 59 in this group. Clause 5(2) gives the Secretary of State the power to bring any invertebrate of any description within the meaning of “animal” and thus within the scope of the Bill—thus declaring them sentient in law. My noble friend Lord Moylan has already drawn attention to the extraordinary breadth of this new power. At Second Reading, he said:
“The clause that strikes me as most extravagant, however, is the one that gives the Secretary of State the unfettered power to declare, should he wish, that an earthworm is a sentient being. This is a power greater than that given by God to Adam in the Garden of Eden, which, as I recall, was restricted to the power to naming animals. Here, we are giving the Secretary of State the power to reclassify them almost without check.”—[Official Report, 16/6/21; col. 1921.]
I do not feel qualified to comment on the powers that God gave to Adam, so I will, if noble Lords forgive me, confine myself to this Bill.
Many noble Lords, including my noble friend Lord Randall, the noble Lord, Lord Trees, and the noble Baroness, Lady Bakewell, called for decapod crustaceans, including lobsters, crabs and crayfish, and cephalopods, including octopus, squid and cuttlefish, to be included in the scope of the Bill. Some argued this point on the basis of a film called “My Octopus Teacher” and were advised to have tissues on hand to watch it. However, the evidence contained in a tearjerker does not seem to be the best foundation for the law of the land. The law should be based on hard evidence—hard science and sound evidence—and that is where the problems on animal sentience start and lie.
While everyone agrees that animals are sentient, philosophers and scientists are still arguing about what that means. Does a dog, for example, have the same feelings as a crab, or a crayfish the same feelings as a cow? Perhaps that is why there is no definition of sentience in the Bill. Scientists are not agreed, despite the fact that in the previous debate the Minister gave us two separate definitions of sentience, although neither of them are included in the sentience Bill, which strikes me as a bit odd. So how will a committee opine on something that is neither defined and on which there is no widespread agreement, in fact, on which there is widespread disagreement?
The Government have commissioned an independent review of the sentience of decapod crustaceans and cephalopods. This amendment would require only that where the Secretary of State declares an invertebrate sentient, the scientific evidence on which the declaration is based should be published. It seems unarguable that such transparency on the science must be good, and I cannot imagine any arguments for hiding the evidence and not publishing it. If the Minister rejects the amendments, perhaps he can enlighten the Committee about why the science and the evidence should be hidden away.
The Deputy Chairman of Committees (Lord Lexden) (Con)
The noble Lord, Lord Howard of Rising, whose name is next on the list, has withdrawn, so I call the noble Baroness, Lady Bakewell of Hardington Mandeville.
Baroness Bakewell of Hardington Mandeville (LD)
My Lords, the last group of amendments is quite long and seeks to limit the scope of the Bill and the groups of animals considered to be sentient.
The noble Lord, Lord Moylan, has spoken in favour of Amendment 48, which would remove vertebrates in favour of mammals, Amendment 52, which would add fish, Amendment 53, which would add birds, and Amendment 57, which would limit the classification of invertebrates to cephalopods and decapods. The noble Lord makes a claim that animals are capable of feeling pain but not other emotions, such as pleasure. I fear I do not agree. A family pet dog is very capable of showing pleasure. When I get home after a week in London, our collie is overjoyed to see me, and there is no mistaking his enthusiasm. As regards the scope of sentience, we should be led by the science available for each group of animals.
Amendment 50, moved by the noble Lord, Lord Robathan, is to apply to domesticated animals in the British Isles,
“under the control of man”
and not living wild. I am certain that he would have been supported by the noble Viscount, Lord Trenchard, if he had not withdrawn. I support the noble Lord, Lord Robathan, in not changing the wording of proposed new subsection (1)(b). He is correct: we all understand what is meant by mankind, and I am not personally offended by the use of that word. While I sympathise with these amendments, I am not sure why it is necessary to limit the group of animals to be included or excluded. It is likely that by adopting Amendment 50 in particular, some animals which are being farmed and also live wild, such as deer—not really cute ones—are likely to be treated differently depending on their status. That is likely to cause unnecessary confusion.
The noble Baroness, Lady Jones of Moulsecoomb, put her name to Amendment 51, which we support. I am speaking in particular to Amendment 48 in the name of the noble Baroness, Lady Hayman of Ullock, to which the noble Lord, Lord Randall of Uxbridge, and I have also added our names. At Second Reading, reference was made to the evidence on decapod crustaceans and cephalopods being sentient beings. I am not naturally squeamish, but I found the deliberate shocking of shore crabs to see whether they were capable of feeling and remembering pain somewhat unpleasant. The experiment having been conducted during trials, the result is conclusively that they are sentient and have some advanced cognition. Similarly, the octopus is capable of feeling and remembering pain, so I believe both groups should be included in the Bill rather than being left to be added at some later stage.
The noble Lord, Lord Hamilton of Epsom, has raised some interesting publicity on the fate of lobsters and how those destined for the restaurant trade should meet their end. Given that the vast majority of lobsters reach restaurants in a live condition, I cannot see that the Bridlington lobster trade will be adversely affected by how lobsters are prepared for the table.
I can also see that some will think that the Bill is a back door to banning angling and the shooting of game birds. I believe that we are a long way from reaching that conclusion; I would not support it if that were the case.
I fully support moves to include decapod crustaceans and cephalopods in the classification of sentient creatures. I will listen carefully to the arguments in favour of the rest of the amendments in this group and the outcomes their tablers are looking to achieve.
In response to a question on the first group, the Minister gave the impression that the inclusion of these groups is something for another Minister. I hope he can confirm that the classification of animals included in this Bill should be widened at this stage and not at some date in the future.
The Deputy Chairman of Committees (Lord Lexden) (Con)
My Lords, the noble Lord, Lord Hamilton of Epsom, whose name is next on the list, has withdrawn.
The Earl of Caithness (Con)
My Lords, I support my noble friend Lord Robathan’s Amendment 50 and have added my name to it. It would be a sensible and logical addition to the Bill. It is absolutely right that where men and women are in charge of an animal they are responsible for it being treated in the most humane way possible, but if that same animal is running free and is wild, then it cannot possibly be under the control of a human being. Therefore, the words that my noble friend wishes to include in the Bill would make the position absolutely clear. I support him on that basis.
The Deputy Chairman of Committees (Lord Lexden) (Con)
My Lords, the noble Lord, Lord Randall of Uxbridge, who is next on the list, has withdrawn.
Lord Trees (CB)
My Lords, a crucial aspect of the Bill is determining which animals within the vast animal kingdom are sentient. Crucially, of course, that depends on how sentience is defined. The Bill does not attempt to define sentience, and various expert opinions, which I respect, have suggested that that is sensible. But we can be sure that, if and when the Bill becomes law, there will be those who will start to question the limit currently in the Bill or that proposed in Amendment 57, which I support. It is almost certain that at least some scientific opinion will be arguable and credible to propose further extending the range of animals included.
Current definitions of sentience include capacity to have feelings. I know of no way of determining what animals feel, but we know that many lifeforms sense and avoid potentially harmful stimuli, which we do, of course. Although we would sense pain on that occasion, we can only guess at the feeling the animal has, but presumably it is not a pleasurable sensation. Of course it is important to consider the science, but extremely respected scientists can and do differ even when confronted with the same data.
The frontiers of what sentience is will likely shift. I listened yesterday to the evidence given to the EFRA Committee in the other place by Jonathan Birch of the London School of Economics. He is the lead author of the LSE report referred to on the first day of Committee, which has yet to be published but has been carefully considering whether to include cephalopods and decapod crustaceans as sentient beings. Professor Birch commented yesterday with respect to the definition of sentience that the science is evolving. Indeed, the Minister commented in much the same way today.
Clearly it would raise huge issues were more and more animal taxa credibly—and, indeed, scientifically—argued to be sentient. So, although I accept that Amendments 59 and 60 are improvements on the current Bill, I feel that the range of animals included in the Bill should be a political decision determined by the Secretary of State and with the complete and full consideration of Parliament, where the cost-benefit considerations can be properly weighed—taking scientific opinion into account, of course, but not being bound by it.
Baroness Fookes (Con)
My Lords, I apologise to the Committee for not being here earlier in the afternoon when noble Lords debated amendments to which I added my name. Unfortunately, there was an additional meeting of the Constitution Committee, of which I am a member, meeting on a different day and at a different time. However, I am here now. I will speak to Amendment 51 in particular; in that connection, I have been asked by my noble friend Lord Randall of Uxbridge and the noble Baroness, Lady Jones of Moulsecoomb, to say that they fully support the remarks I intend to make about it.
I make no apology for wishing to see cephalopods and decapods included in the realms of sentience and not left until some future date. I am aware that the Minister is awaiting the LSE report to which the noble Lord, Lord Trees, referred. I would be interested to know from the Minister when we might expect to see that report and whether it is likely to be in time to make a decision about including these creatures in the Bill before it reaches its final stages. For my part, I believe that there is already sufficient hard evidence to make it perfectly acceptable to include them here and now.
It is interesting that, way back in 2005, the European Food Safety Authority’s Scientific Panel on Animal Health and Welfare considered these animals sufficiently sentient to be included. Since then, a lot of work has been done by Professor Robert Elwood of Queen’s University; I believe that he has provided good scientific evidence. I am happy to accept scientific evidence. I think mention was made earlier of one experiment where hermit crabs, which like to retreat to quiet places, were given an electric shock if they entered one refuge but not if they entered another. It soon became evident that they knew which one to choose and that they remembered it. Shortness of time forbids me from giving any further examples, but I firmly believe that there are good examples that give hard evidence. We know, too, that a number of other countries are ahead of us on this issue. They include, for example, New Zealand, some of the Australian states, Austria and even, surprisingly, Italy.
The final point I want to make is that I commend to the Minister the precautionary principle. Great publicity was given to it in the Environment Bill as one of five principles. It was given a good boost. I suggest that the precautionary principle is one to adopt here and now. As I understand it, it means that, if there is some evidence, you do not have to wait until something is proved to the hilt before you take action. On that basis, I have no hope that the Minister will accept Amendment 51 as it stands, but I hope for better things before the Bill reaches the statute book.
The Deputy Chairman of Committees (Lord Lexden) (Con)
The noble Baroness, Lady Mallalieu, whose name is next on the list, has withdrawn.
Baroness Hayman of Ullock (Lab)
I am speaking to Amendment 49 in my name and those of the noble Lord, Lord Randall of Uxbridge, and the noble Baroness, Lady Bakewell of Hardington Mandeville. I thank them for their support. Before I move on, I assure the noble Lord, Lord Moylan, that he has understood the purpose of my amendment completely correctly. We also support Amendment 51 in the names of the noble Baronesses, Lady Jones of Moulsecoomb and Lady Fookes.
Clause 5 currently defines “animal” as any vertebrate other than homo sapiens. Amendments 52 and 53 talk about adding “fish” and “birds” to the scope of the Bill. I know that they are probing amendments, but they are vertebrates—
Baroness Hayman of Ullock (Lab)
Okay. As I was saying, they are probing amendments that are basically asking for animals to come in that are already covered, as they are vertebrates. I am just a bit confused about that. If we look back to the European Council directive in 1998 which preceded the Lisbon treaty, fish and birds are included all the way back to then. I will be interested in what the Minister has to say and why the probing amendments are felt to be necessary.
Looking at Clause 5(2), we have had some debate about the fact that the definition could be widened in future to include invertebrates if evidence of sentience among invertebrates comes forward. We have put forward this amendment because we believe that evidence of sentience among two groups of invertebrates, cephalopods —for example, octopuses—and decapod crustaceans, is already established and has been for a number of years.
The noble Lord, Lord Moylan, spoke about the importance of scientific evidence in the debate on an earlier group, so I am sure he will be interested in the fact that back in December 2005, the Panel on Animal Health and Welfare of the European Food Safety Authority published a report that examined the scientific evidence about the sentience and capacity of certain invertebrate species to experience pain and distress. It concluded that decapod crustaceans and cephalopods can experience pain and distress, and that the largest decapod crustaceans are complex in behaviour and have a pain system and considerable learning ability.
As regards cephalopods, the scientific panel concluded that they have a nervous system and a relatively complex brain similar to many vertebrates and sufficient in structure and function for them to experience pain. Notably, they can experience and learn to avoid pain and distress, such as avoiding electric shocks. In addition, they have significant cognitive ability, including good learning ability and memory retention, elaborate communication systems and individual temperaments. More recently, a number of scientific papers strongly point to the conclusion that both cephalopods and decapod crustaceans are capable of experiencing pain and suffering.
Even more recently—the noble Lord, Lord Trees, referred to this—evidence was given to the Select Committee in July, this month, by Dr Jonathan Birch from the LSE, who is, of course, the author of the report that Defra is producing. He provided written evidence, along with Professor Nicola Clayton and Dr Alexandra Schnell from the University of Cambridge, and Dr Heather Browning and Dr Andrew Crump from the LSE. These are serious academics, who are the kind of people we should listen to when we consider scientific evidence in making decisions. If noble Lords will bear with me, I just want to pull up a couple of their points on this Bill. They say:
“In our opinion, the evidence vindicates the 2012 extension of the Animals (Scientific Procedures) Act 1986 to cover all cephalopod molluscs. We now have a very strange situation in the UK: all cephalopod molluscs are protected in science but they are not protected by robust animal welfare laws outside scientific settings.”
Coming to Amendment 57 in the name of the noble Lord, Lord Moylan—and perhaps to answer his considerations about this—they also say that:
“Regarding decapod crustaceans: although it would be possible for animal welfare law to protect some infraorders while excluding others, this has the potential to generate significant confusion. A better approach would be to protect all decapod crustaceans in very general legislation such as the Animal Welfare (Sentience) Bill”.
Having made that point, I would like to look at the work of the Scottish Animal Welfare Commission. In February this year, it issued a definition of sentience to cover both groups we have been discussing in light of the accumulating evidence, and that preceded the evidence I have just read out to noble Lords. Our amendment acknowledges this growing amount of evidence and seeks to embed it within the Bill by extending the definition of “animal” to cover cephalopods and decapod crustaceans. We know that they are already protected in some other countries—Australia, Switzerland, Norway and New Zealand—and in some states in the United States and Australia. The recognition of cephalopod and decapod crustacean sentience has already been acknowledged within the scientific community, so in our mind there is no good reason to delay acknowledgement of it within the Bill.
The independent review has been mentioned by the noble Lord, Lord Trees, and the noble Baroness, Lady Fookes. There is huge expectation that this report will be published soon, and it has a significant role to play in informing the Bill we have been debating in this Committee. It would be extremely useful if the Minister could give us an update on its progress because to have it before us before Report is very important.
Before I finish, I want to speak very briefly to a couple of the other amendments. First, on Amendment 50 tabled by the noble Lord, Lord Robathan, the noble Viscount, Lord Trenchard, and the noble Earl, Lord Caithness, I just feel a bit disappointed that it has been tabled to remove wild animals from the scope of the Bill. I do not think there is a case for their removal. I heard the noble Lords’ concerns around responsibility, and I would be very keen to hear some clarity from the Minister on this area. I really think that if we accept that animals are sentient by virtue of their biology, sentience applies whatever the condition an animal is in, whether it is wild, farmed or kept as a companion. Human activity—what we do—impinges on wild, farm and companion animals alike. So, consideration of how our activity impacts on the welfare of sentience should cover all animals that would come under the scope of the Bill at the moment.
Amendment 48, tabled by the noble Lord, Lord Moylan, and other noble Lords, would limit the Bill’s coverage to mammals, as we heard in the introduction. I would just like to make this point: when we consider whether an animal is sentient, we should not be affected by how like it is to us. That is not the point of sentience. As noble Lords, we need to consider this fact very carefully, and that is borne out again by the scientific evidence. On that basis, being an invertebrate should not automatically preclude sentience, so the limitations proposed by the amendment would then become an entirely arbitrary limitation given the overwhelming evidence I have just expressed concerning the fact that sentience exists across vertebrates.
I am aware that there has been quite a bit of press interest in our amendment. I know we are not allowed to use props, but I have a newspaper here, the Times, whose editorial on 8 July said, “Considering the Lobster” —it is almost getting a bit Lewis Carroll, is it not? The subheading was:
“Ministers are right to ban the practice of boiling shellfish alive.”
In light of this, I urge the Minister to take action and accept our amendment.
Lord Benyon (Con)
I will start with Amendment 48 in the name of my noble friend Lord Moylan. With it, I will take his Amendments 52 and 53, together with Amendment 59 in the name of my noble friend Lord Mancroft and Amendment 60 in the name of the noble Lady, Baroness Jones of Moulsecoomb.
It is evident that there is a rather wide range of views in the Committee about which animals should be recognised in this Bill as sentient. Some noble Lords wish to see the scope of the Bill immediately broadened to include decapods and cephalopods; others additionally wish to see the exclusion of certain classes of vertebrates. As drafted, the Bill defines an animal as a non-human vertebrate—that is, an animal with a backbone. The scientific evidence is clear that vertebrate animals can experience pain and suffering. It is on that basis that the definition of “animal” in the Animal Welfare Act 2006 extends to vertebrates.
Government policy will continue to be guided by scientific evidence. That is why we have future-proofed the Bill with a delegated power for Ministers to add different species of invertebrates to the definition of “animal” by regulation. We will use this power where supported by robust scientific evidence. This corresponds to the similar delegated power contained in the Animal Welfare Act. I am mindful, of course, that this House has mixed feelings about the inclusion of delegated powers such as this in public Bills. It is rightly expected that Ministers offer a good reason for their inclusion. I can assure your Lordships that we would not have taken the trouble to seek this power if we were not prepared to use it when needed. I can confirm that new additions to the remit of the Bill—new species—are subject to an affirmative resolution, so noble Lords can scrutinise them.
On Amendment 56, my noble friend Lord Trenchard would, had he been able to speak to it, have sounded a note of caution regarding the delegated power in the Bill. I can assure him that such a power will be exercised appropriately, as I said. That is why the affirmative resolution process applies; Parliament will have the final say on any extension to the Bill’s scope. If either House is not satisfied that Ministers have good evidence to justify their use of the delegated power, then its use can be vetoed. We know that scientific research is a continuous process and new evidence on sentience will emerge over time as our understanding increases. That is why we have included the delegated power. I am aware there may be different views on the inclusion of a delegated power in the Bill. However, this power is necessary to allow us to recognise other species as sentient if there is sufficient evidence to support it, and I can confirm we intend to use the power if that is the case.
Naturally, when we talk of possible extensions to the Bill’s scope, many noble Lords are thinking primarily about its extension to decapods and cephalopods. This is reflected in Amendment 57 in the name of my noble friend Lord Moylan, as well as Amendment 49 in the name of the noble Baroness, Lady Hayman of Ullock, and Amendment 51 in the name of the noble Baroness, Lady Jones of Moulsecoomb. As noble Lords know, my department has commissioned an independent review of the available scientific evidence on sentience in decapod crustaceans such as crabs and lobsters as well as sentience in the cephalopod class, which includes octopus, cuttlefish and squid. I can confirm that the report will be published before the Bill returns to the House on Report.
We want this Bill to stand the test of time. Our understanding of animal sentience has developed in recent years and will continue to do so. I say to my noble friend Lord Moylan that I would be reluctant to do away with the ability to extend the Bill’s scope to other species, subject to parliamentary approval, if that is what the evidence calls for.
Turning to Amendments 55 and 58, in the name of the noble Baroness, Lady Jones of Moulsecoomb, I am not sure whether there is anything to be gained from explicitly excluding or including foetuses and embryos from the committee’s remit, as the noble Baroness’s amendments would require. In practice, it would be difficult for the committee and government departments to identify the way in which a policy under consideration affects the welfare needs of a foetus or embryo, as opposed to those of the mother animal. It is therefore unlikely that the committee could find itself considering a policy beyond its remit.
To conclude my remarks on what species the Bill covers, I recognise that there are strong views advocating for many different directions. We want to ensure that any extension of the recognition of sentience is informed by engagement with the evidence from experts and stakeholders. Parliament can expect us to weigh the evidence carefully, with the assurance that it will always have the final say on the matter.
I saw and was profoundly affected by the documentary “My Octopus Teacher”, which has been frequently quoted. Other than the beauty of that particular animal, it also showed the healing power of nature for the individual who made that film. It is one of the most remarkable programmes that I have seen for a very long time.
I turn now to Amendment 50, in the name of my noble friend Lord Robathan, which seeks to refine the scope to kept animals. Your Lordships might wonder what is the point of recognising the sentience of animals that are outside human control, such as wild animals—the noble Baroness, Lady Hayman, made this point. It is simple: these animals are sentient and equally capable of feeling pain and suffering. Sentience is not a capacity limited to those animals under the control of man, nor does government policy impact solely on kept animals. There are numerous ways in which a government policy might affect wild animals. Crucially, we share an environment. Hence we should not limit the committee to considering the sentience of kept animals alone.
I will answer various points that have been raised. To my noble friend Lord Moylan, I will quote Rousseau’s Discourse on the Origin and Basis of Inequality Among Men: animals should be part of natural law
“less because they are rational than because they are sentient”.
I do not usually pray him in aid—his writings led to the French Revolution and the Terror—but I think that, in this case, he was right.
Like many others, my noble friend Lord Robathan referred to the words “Trojan horse”. I do not understand why they keep being used in the context of the Bill. The Trojan horse was a special forces operation, as he should be well aware, and it led to the sacking of a civilisation. I do not see that it has any corresponding circumstances here.
Finally, my attention was drawn to something in Hansard on 25 July 1979—so in the first few weeks of the then Conservative Government—where an MP who then went under the name “Miss Fookes” asked the Minister for Agriculture, Fisheries and Food
“what progress has been made with the Government’s review of their animal welfare policy”.
She was clearly on the march on animal welfare matters even then. In his reply, the Minister, Peter Walker—obviously late of this parish—set out the parameters that he thought were important for the Farm Animal Welfare Council, which is obviously a different organisation. However, his reply clearly sets out the level of expertise and—I say this to my Conservative colleagues—an enduring determination to improve the welfare of animals. It finishes:
“The actions the Government intend to take will provide a more efficient and effective means of furthering the interests of animal welfare.”—[Official Report, Commons, 25/07/1979; cols. 295-98W]
I could not have put it better than that in the context of this Bill.
Finally, as this is the last group, I thank every one of your Lordships who has spoken on the Bill today and at the previous session. As a new Member of this House, I can certainly say that its reputation as a place of careful consideration and scrutiny is well deserved. I hope that my noble friend will feel content to withdraw his amendment.
The Deputy Chairman of Committees (Baroness Garden of Frognal) (LD)
My Lords, I have received a request to speak after the Minister from the noble Lord, Lord Bellingham.
Lord Bellingham (Con)
My Lords, does the Minister think that there is a fundamental difference between a lobster and a prawn? If an image of a prawn is magnified many times, we see that it is not dissimilar to a lobster. Of course, when children go shrimping or catching prawns, whelks, cockles or mussels, those creatures are all put into boiling water, pretty well killed immediately and cooked. Does the Minister feel that there is a fundamental difference between those bigger crustaceans such as lobsters and crabs and the smaller ones?
Lord Benyon (Con)
I am not an expert, and that is why I want an animal sentience committee that will advise me and my successors on the rights and wrongs of dispatching species of all kinds. I cannot answer my noble friend. I understand the point that he makes. He is a seasoned political debater. This is an issue which requires people who will make decisions about such matters, and that should not be lay men like me.
Lord Moylan (Con)
My Lords, I am grateful to my noble friend the Minister and to other noble Lords who have spoken on this group of amendments, particularly my noble friends Lord Caithness, Lord Robathan and Lord Mancroft. I was pleased that the noble Lord, Lord Trees, felt able to express support for Amendment 57 in my name.
I also want on this occasion to thank the Minister for handling us so well. These have been two afternoons of extremely informative and at the same time very good-natured debate, and he has taken everything that we have thrown at him and come back with a dazzling display of intellect and sympathy, though it is mildly regrettable that the only philosophers he cites are all French—maybe he should have a closer look at that for the future.
I apologise for expressing myself badly if I conveyed to the noble Baroness, Lady Bakewell of Hardington Mandeville, that I did not think that dogs could feel pleasure. That is not what I intended to say. In fact, one of my amendments specifically preserved mammals as part of the scope of the Bill. I was trying to say that, while we can certainly understand pleasure and indeed pain in a dog or in the higher mammals, it is very difficult to understand what that means in any meaningful sense when one is talking about fish, for example. It was simply that point that I was trying to make; I am sorry if I did not express myself well.
I say to the noble Baroness, Lady Hayman of Ullock, that Amendments 52 and 53 would add fish and birds to a clause that excepts—it is an exception clause—so that it would except homo sapiens “and fish” and so on. It takes them out of the scope of the Bill. Clearly, the noble Baroness does not want them taken out. However, she was never going to express support so, in a way, it does not matter.
As a final point, I want to pick up on what the noble Baroness said about cephalopods and decapod crustaceans, and it is a bit of commentary on much of the Bill. I think that we are all agreed that the Bill has to say something, and we have a Bill here which is so empty of content that it would almost be a scandal if it passed in its current circumstances. Today and on previous occasions, we have discussed how it ought to say something about composition and about term limits—which we discussed last time. Perhaps there is a feeling that it ought to say something too about cephalopods and decapod crustaceans. Where we might differ around the Committee, because we have not sufficiently coalesced, is on what exactly it should say on those issues, but I think that many of us sitting here, from all political parties and groups, can probably agree with me if I say to the Minister that as the Bill stands, it is not good enough, and that when it comes back on Report we expect many things that we have said to be heard and the Bill to be improved in a number of respects.
I wish the Minister well in his endeavours to make the Bill better so that we are all as happy with it as we have been with him. I beg leave to withdraw the amendment.
The Deputy Chairman of Committees (Baroness Garden of Frognal) (LD)
My Lords, that concludes the Committee’s proceedings on the Bill. I remind Members to sanitise their desks and chairs before leaving the Room.
House of Lords
Introduction: Baroness Davidson of Lundin Links
Oaths and Affirmations
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 while others are participating remotely, but all Members will be treated equally.
The social distancing requirements in the Chamber have been removed, but I strongly encourage Members to continue to wear face coverings while in the Chamber, except when speaking, and to respect social distancing in relation to staff in the Chamber.
Oral Questions will now commence. Please can those asking supplementary questions keep them no longer than 30 seconds and confined to two points? I ask that Ministers’ answers are also brief.
Council of Europe Convention on Access to Official Documents
(2 years, 9 months ago)
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Lord Foulkes of Cumnock
To ask Her Majesty’s Government what plans they have to adopt the Council of Europe Convention on Access to Official Documents (CETS No. 205).
The Minister of State, Cabinet Office (Lord True) (Con) [V]
My Lords, I apologise for not being present in your Lordships’ House—I have been since the first lockdown—but I am currently isolating and will not be able to attend the House this week. The United Kingdom Government have no plans to adopt the Convention on Access to Official Documents.
Lord Foulkes of Cumnock (Lab Co-op)
I send my sympathies to the Minister but that is a very unsatisfactory answer, and I wish he was here in person so I could tell him to his face. Does he agree that, with certain limited exceptions, access to official documents is essential for transparency, good governance and a functioning democracy? A number of countries—Ukraine, Estonia, Finland, Hungary, Norway, Sweden and others—have agreed to adopt this convention. Can the Minister give us just one simple reason why the British Government are not doing likewise?
Lord True (Con) [V]
My Lords, the noble Lord always tells me that my Answers are unsatisfactory; I do not always agree with him. As it stands, the convention, which has not been adhered to by the overwhelming majority of EU nations, would not, in our view, allow for the appropriate protection of sensitive information or of journalistic independence, as Parliament intended when it passed the Freedom of Information Act 2000.
Lord Adonis (Lab)
My Lords, can the Minister help the House? Can he explain what it is about releasing the official documentation concerning the £37 billion test and trace scheme and the £12.5 billion of PPE contracts—including the VIP route, which has been roundly criticised by the National Audit Office—that might conceivably make the Government reluctant to sign this convention?
Lord True (Con) [V]
My Lords, I have given the House the reasons for the Government not wishing to adhere to the convention. However, the United Kingdom Government are absolutely committed to transparency and the principles behind the convention and recognise the work done by the Parliamentary Assembly of the Council of Europe in this sphere. We routinely disclose information well beyond our freedom of information obligations and in line with many of the provisions of the convention.
Lord Thomas of Gresford (LD) [V]
I am sure the Minister is entirely apprised of the fact that the Council of Europe is completely separate from the EU. The attitude of the Government on an issue such as this tends to smack of an anti-European thread in the Government, which I am sure is not in the interests of this country. Can the Minister kindly explain why such a universally accepted treaty should not be acceded to by this Government?
Lord True (Con) [V]
My Lords, I have underlined the principle of this Government’s belief in transparency. I refute the idea that there is anything anti-European here. The current adherents to the treaty are Bosnia, Estonia, Finland, Hungary, Lithuania, Montenegro, Norway, the Republic of Moldova, Sweden, Ukraine and Iceland. The majority of EU countries are not signatories. I think that answers the noble Lord’s point that this is some kind of EU line.
Lord Mackay of Clashfern (Con)
My Lords, can the Minister say whether a Cabinet paper would be an official document in terms of this treaty and, if so, would it be protected under Article 3k?
Lord True (Con) [V]
My Lords, my noble and learned friend is right to draw attention to this. Although protection for deliberations within public authorities is allowed for in the convention, it does not provide the specific exemption that Parliament felt was necessary in order to protect Cabinet collective responsibility, which is one of the key conventions underpinning our form of Cabinet government. It informed the Labour Government in 2000, at the time this Act was passed, and continues to inform us.
Baroness Smith of Basildon (Lab)
My Lords, the Minister has given quite inadequate answers as to why the Government will not adopt the convention. Can I press him on the issue of transparency and whether the Government would obey the law—their own laws? In February, the High Court confirmed that the failure to publish the details of all the PPE contracts is unlawful. The Government responded that they were working hard to do so. Just how far have the Government got? In March, more than 100 of the contracts awarded last year were still unpublished. Some 93% of contracts awarded to suppliers with political connections have been published late, and it is estimated that nearly £2 billion-worth of contracts have gone to those with Conservative Party links. The Government will not adopt the treaty, even though other countries have published this information. As of today, how many contracts awarded more than 30 days ago have yet to be published by the Government?
Lord True (Con) [V]
My Lords, on the specific question of the number that the noble Baroness asks about, I will have to write to her; I apologise for that. Obviously, the Government hold the principle of transparency as paramount. There are always issues of commercial confidentiality, as all noble Lords will understand. However, we go far beyond the requirements of the Freedom of Information Act in publishing information about the conduct of business within government.
Baroness Altmann (Con)
My Lords, I thank my noble friend for his answers and his assurance that there is not an anti-European element to this, which I wholeheartedly accept. However, does he agree that access to official documents is even more important in times of crisis and that there is a need for openness and transparency in public authorities, partly to restore trust but also to expose or reduce any corruption and make the public feel more confident in their authorities?
Lord True (Con) [V]
My Lords, wherever, if ever, corruption exists, it should be mercilessly rooted out and dealt with; I think that would be the united resolve of your Lordships’ House, of the Government and the whole of Parliament. All central government departments are required to publish datasets, including central government contracts, tender opportunities and contract award notices over £10,000, central government spending over £25,000, the gender pay gap data—I will not prolong the list, because other Members wish to ask questions. However, I stress to your Lordships that a great deal of information is voluntarily published by the Government and that we do and will adhere to the law.
Baroness Jones of Moulsecoomb (GP)
I am absolutely thrilled to hear that the Government are, in the words of the Minister, committed to transparency. A few Members of this House—I do not know how many—have been told that MI5 has files on them. Can the Minister therefore, in this spirit of transparency, get those files for us so that we can see exactly what information is held on us? I cannot believe that any of us is a threat to national security—apart from, obviously, the noble Lord, Lord Foulkes.
Lord True (Con) [V]
I could never conceive that the noble Baroness would be a threat to anyone and I rejoice in her kindly words always. The reality is that Parliament agreed in 2000 that it was appropriate to protect sensitive information from inappropriate disclosure and legislated for exemptions in some areas, including absolute exemptions for information relating to security and intelligence agencies and communication with the sovereign. That decision was taken by Parliament, and in the spirit of adhering to the law, the Government continue to follow that provision.
Lord Balfe (Con)
My Lords, I also have an MI5 file, which I discovered after a recent government publication. What distressed me was that all the information in it was wrong. Can the Minister make these files available so that MI5 at least has accurate information about why we are totally untrustworthy?
Lord True (Con) [V]
My Lords, the noble Lord would not expect me to have access to any such file, and we do not comment on security matters in any case.
Baroness Gardner of Parkes (Con) [V]
My Lords, given that England, Wales and Northern Ireland already have the Freedom of Information Act in place, could the Minister comment on whether, after 20 years of that Act, it is due for review to assess its effectiveness and whether it needs to be broadened to cover other bodies?
Lord True (Con) [V]
My Lords, other bodies are covered. If I said that it was time for a review, people would immediately say, “Oh, they are planning to do something different to what we have now.” There are no current plans for a review. Obviously, every piece of legislation is constantly kept under consideration both by Parliament, including your Lordships, and by those responsible for conducting government business, but currently there are no such plans.
The Lord Speaker (Lord McFall of Alcluith)
My Lords, all supplementary questions have been asked and we now move to the second Oral Question.
Human Rights Due Diligence
(2 years, 9 months ago)
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Baroness Sheehan
To ask Her Majesty’s Government what plans they have to make human rights due diligence mandatory for businesses, in particular those engaged in forest risk commodities.
The Parliamentary Under-Secretary of State, Department for Business, Energy and Industrial Strategy (Lord Callanan) (Con)
My Lords, the Government expect businesses to target their human rights due diligence approaches according to the UN Guiding Principles on Business and Human Rights. We currently have no plans to make this mandatory because there is existing legislation which holds businesses to account on human rights. All UK quoted companies are required to report on relevant human rights issues in their annual reports, and large businesses must publish supply chain transparency statements on steps they take to prevent modern slavery.
Baroness Sheehan (LD) [V]
My Lords, I thank the Minister for his reply. The European Commission plans to publish its sustainable corporate governance proposal this autumn, and UK companies operating in the single market would fall into its scope. I hear what the Minister says about the Government having no plans, but what consideration are they giving to keeping pace with the European Commission? Does he really believe that the current law is satisfactory to enable business practices to ensure that all commodities and services are subject to human rights and environmental due diligence processes?
Lord Callanan (Con)
Of course, we will keep these matters under review, but we believe that mandating compliance presents some practical challenges in definition, enforcement and so on. However, we will of course keep it under review.
The Lord Bishop of Southwark
My Lords, I draw the Minister’s attention to the policy of the National Investing Bodies of the Church of England on extractive industries, which has an explicit commitment drawn from the UN Declaration on the Rights of Indigenous Peoples to the
“free, prior and informed consent”
of indigenous communities on major projects. Indeed, the Church Commissioners and other Church of England investment bodies engage with investment partners across a range of industries, including where forest clearance is involved. Will Her Majesty’s Government consider the principle of the free, prior and informed consent of indigenous communities as a legislative requirement for companies incorporated in the United Kingdom but operating overseas?
Lord Callanan (Con)
I thank the right reverend Prelate for sharing that research. The UK is committed to supporting indigenous peoples and local communities, who play a vital role in protecting forests. Our proposals in the Environment Bill will require UK companies to conduct due diligence based on the laws of producer countries, in particular those laws that relate to land use and land ownership.
Lord Moynihan (Con)
I declare my interests as set out in the register. Does my noble friend the Minister agree that human rights due diligence should not be mandatory for businesses given the modern slavery and supply chain requirements, the welcome shareholder demands for ESG transparency, and the widespread adherence in this country to the UN Guiding Principles on Business and Human Rights?
Lord Callanan (Con)
As I said in my initial Answer, I agree with my noble friend. Human rights abuses are a wide and varied issue, which is why the UK Government prefer the approach of encouraging businesses to follow the voluntary framework of the UN Guiding Principles on Business and Human Rights.
The Earl of Sandwich (CB) [V]
My Lords, the rainforest needs urgent protection—we all know that, as does the Minister. The Government have already made good progress with the Environment Bill, but how will they enforce compliance; for example, on companies which are not in the Retail Soy Group or which do not intend to convert to sustainable products? Does the Minister agree that any UK financial services which clearly support the production or trading of forest risk commodities would be acting illegally and should be caught by Schedule 16 to the Bill?
Lord Callanan (Con)
The noble Earl is perhaps getting a bit ahead of himself, as we are still considering the Environment Bill—it is not in law yet. When it is, as I hope it will be, details on the enforcement regime will be subject to further consultation and regulations will be subject to the affirmative procedure so that the House can debate them fully.
Baroness Goudie (Lab) [V]
Given the complexity of supply chains and the way business with indigenous populations is conducted, will the Government give an undertaking that human rights should be written into the contracts of the small companies that then sell to larger companies, as well as the need for satisfactory equal pay and the gender lens? This is a complex situation and we need to get a grip of it and have it written into contracts.
Lord Callanan (Con)
The noble Baroness is right; this is indeed a complicated subject with a lot of different areas for consideration. We need to be careful not to impose undue burdens, particularly on small businesses.
Lord Oates (LD) [V]
My Lords, I hope the Minister will agree that Governments as well as businesses have a moral duty of due diligence on human rights. Can he therefore tell the House what due diligence the Government conducted prior to chartering a flight to deport Zimbabwe nationals tomorrow to a country where human rights are consistently violated? Will the Government now halt that flight and place a moratorium on further deportations until the Zimbabwean Government can demonstrate that they respect the human rights of their citizens and the rule of law?
Lord Callanan (Con)
I admire the noble Lord’s ingenuity in getting a question on deportation flights into one considering forest communities. I do not have the information about that particular flight—I was not aware of it—so I will write to him.
Baroness Sugg (Con)
My Lords, local indigenous communities are the best custodians of the forest, yet they are often not considered, consulted or listened to. Looking ahead to COP 26, how will the Government ensure that the voices of indigenous groups are heard?
Lord Callanan (Con)
My noble friend makes a very good point. The UK is working closely with the International Indigenous Peoples’ Forum on Climate Change and the UNFCCC Local Communities and Indigenous Peoples Platform to champion engagement and participation by indigenous groups in COP 26.
Lord Bassam of Brighton (Lab) [V]
A recent G7 communiqué said that the G7 was
“concerned by the use of all forms of forced labour in global supply chains”,
and G7 Ministers have been tasked
“to identify areas for strengthened cooperation and collective efforts towards eradicating the use of all forms of forced labour in global supply chains”.
Can the Minister clearly outline how this engagement will work ahead of the G7 ministerial meeting in October, and what do the Government want to achieve through this process?
Lord Callanan (Con)
The UK was the first state to produce a national action plan to respond to the guiding principles. We have continued to develop our approach, particularly with the Modern Slavery Act. We are working across the UK Government on this, and involving the devolved Governments in proper enforcement of the provisions.
Lord Sarfraz (Con)
My Lords, Eid Mubarak to all those celebrating. While we are very efficient in detailing the human rights abuses in overseas supply chains that we source from, we do not demonstrate the same enthusiasm when we export our trash to those same countries. What about the environmental and human rights abuses that happen in the global waste trade in which we participate? Can my noble friend see how this sends mixed messages internationally?
Lord Callanan (Con)
Businesses involved in the export of waste are required to take all necessary steps to ensure that the waste they ship is managed in an environmentally sound manner, throughout its shipment and during its recycling. Current penalties for breaching the legislation are a two-year jail term and an unlimited fine. My noble friend will be aware that the Environment Bill will introduce even tougher controls on illegal waste exports, including powers to make it harder for criminals to obtain and export waste illegally.
Lord McNicol of West Kilbride (Lab)
My Lords, I am supporting a project with Rewired.Earth, which aims to deliver full and proper ESG audits, including through the supply chains. If achieved, this would provide a huge step forward in delivering environmental, social and governance oversight, going a long way to answer the Question of the noble Baroness, Lady Sheehan.
With $110 trillion of worldwide investment already being directed through ethical investing, this would be a great opportunity for the UK. Do Her Majesty’s Government support the premise of ESG audits as a way for the UK financial sector to lead the way across the globe, both in financial investing and by creating a vehicle that can help save the planet?
Lord Callanan (Con)
As the noble Lord will be aware, we have just finished a consultation on the audit reform proposals, which include extending audit to some non-financial matters such as climate change. Of course, we will be very happy to consider all other proposals.
Lord Sikka (Lab) [V]
My Lords, in an earlier reply, the Minister said that he is considering enforcement issues. Given that the UK has no central enforcer of company law or regulator of corporations, and that auditors, just mentioned by him, have absolutely no expertise in human rights, how will the Government monitor compliance with and enforcement of any proposed legislation?
Lord Callanan (Con)
We are considering the issue of enforcement in the audit reform consultation that I mentioned in my previous answer. We are extending the powers of the FRC, creating a new audit reform regulator in ARGA and we will be issuing our response to the audit reform consultation later in the year.
The Lord Speaker (Lord McFall of Alcluith)
My Lords, all supplementary questions have been asked and we now move to the third Oral Question.
Chinese Products and Companies: Human Rights Violations
Lord Alton of Liverpool
To ask Her Majesty’s Government what steps they are taking to curtail reliance on Chinese products and companies linked to violations of human rights.
Lord Alton of Liverpool (CB)
My Lords, I beg leave to ask the Question standing in my name on the Order Paper, and in so doing declare my interests as the vice-chair of the All-Party Parliamentary Group on Uighurs and patron of the Coalition for Genocide Response.
Viscount Younger of Leckie (Con)
My Lords, in 2020, China was the UK’s third largest import market, and in 2019, more than 60,000 UK VAT-registered businesses imported goods from China worth about £46.4 billion. We want a positive and constructive trade relationship with China, but we will not sacrifice our values in doing so. In January, the Foreign Secretary announced a comprehensive package of measures to help ensure that no UK organisations are complicit in the serious human rights violations being perpetrated against the Uighurs and other minorities in Xinjiang.
Lord Alton of Liverpool (CB)
My Lords, given what the Minister just said, why has Hikvision, the Chinese company banned in the United States, which makes the surveillance cameras used to oppress Uighurs in Xinjiang, where the House of Commons has determined that a genocide is under way, and which has installed CCTV cameras all over the United Kingdom, not been banned here? Will he say what the cost of the 1 billion lateral flow tests that this country bought from China was, whether slave labour in China was used to produce them and why they could not have been produced in the United Kingdom?
Viscount Younger of Leckie (Con)
That was a series of questions from the noble Lord, and I start by applauding his persistence on this important subject. On his questions relating to the US, I shall have to write to him, but I may be helpful to him by saying that ensuring a tough response to modern slavery, which is part of what we are trying to do here, remains a great priority of this Government. The Government have already committed to strengthening the landmark transparency provisions contained in the Modern Slavery Act 2015, following the transparency and supply chains consultation.
Baroness Helic (Con) [V]
My Lords, what steps are Her Majesty’s Government taking to follow the example of Japan and the United States and encourage our companies to relocate key supply chains out of China and, where possible, back to the United Kingdom?
Viscount Younger of Leckie (Con)
I hope I can be helpful to my noble friend by saying a little more about the measures we are taking—which are being implemented by the Government—including strengthening the overseas business risk guidance; a review of export controls; introducing financial penalties under the Modern Slavery Act, alluded to earlier; and increasing support for UK government bodies to exclude suppliers complicit in violations or abuses.
Lord Singh of Wimbledon (CB)
My Lords, I fully support the need for sanctions against China and Chinese products for the gross abuse of human rights in the persecution of the Uighur Muslims and other minorities, and the people of Hong Kong. Does the Minister agree that our actions would carry greater weight if we looked closely at our policies? Does he agree that refugees fleeing the Middle East are human beings, and that jailing them for daring to try to escape their misery is hardly consistent with Christian teachings?
Viscount Younger of Leckie (Con)
The noble Lord makes an important and, indeed, a moral point. The UK launched the global human rights sanctions regime in July last year, giving us the power to address the very worst human rights violations across the world. We have already used that regime to place sanctions on more than 70 individuals and entities around the world. The noble Lord will know that this, for the first time, includes assets that are frozen and travel bans on four Chinese government officials.
Lord Collins of Highbury (Lab)
My Lords, according to the latest ITUC Global Rights Index, the UK now has trade deals with dozens of countries with the worst track records in the world for exploiting workers. During debates on the Trade Bill, the noble Lord, Lord Grimstone, argued forcibly against my amendment and that of the noble Lord, Lord Alton, because the FCDO’s Human Rights and Democracy report
“touches on many relevant issues”,
and would be
“enhanced in further reports.”—[Official Report, 23/3/21; col. 766.]
When I read the report that was recently published, it is clear that no enhancement has been made. Trade agreement is not even mentioned once. Can the Minister explain what has happened? Why have not the Government kept their word?
Viscount Younger of Leckie (Con)
We have taken a lot of action in this respect, and at the UN Human Rights Council in February 2021 the Foreign Secretary called on China to allow the UN High Commissioner for Human Rights or another independent expert urgent and unfettered access to Xinjiang. More countries than ever are speaking out about Xinjiang; China has already been forced through our actions to change its narrative about camps, and its denial of these violations is increasingly hard for it to sustain. We believe that the actions that we are taking are having effect, but it is not, of course, always a fast process.
Baroness Smith of Newnham (LD)
My Lords, I declare an interest as an officer of the APPG on Magnitsky. The Minister did not manage to answer any of the questions of the noble Lord, Lord Alton, about lateral flow tests. We are exhorted to take those tests twice a week before coming into the Chamber or into your Lordships’ House. Why are all those tests made in China and what due diligence has been carried out to ensure that none has been made using slave labour?
Viscount Younger of Leckie (Con)
My Lords, I do not have any information in my pack about lateral flow tests. Picking up on what the noble Lord, Lord Alton, said, I will certainly look into that and make sure that I write to him and the noble Baroness on those points.
Lord Dobbs (Con)
My Lords, we live in a “chips with everything” world and have recently seen what disruption to the supply of semiconductors can do in closing down vital manufacturing industries in this country. Taiwan is the biggest supplier in the world of semiconductors, and what happens there matters. What plan or strategy do the Government have to ensure that our manufacturing industries can deal with any disruption of supply?
Viscount Younger of Leckie (Con)
Supply to these markets is obviously important, certainly when talking about the Far East. Looking at that area, although I do not have figures on Taiwan, some crucial goods are imported and exported, and it is therefore important to keep those lines open.
Lord Hunt of Kings Heath (Lab)
My Lords, I know that the noble Viscount says that he has no information about lateral flow tests, but he must surely know that during the public procurement of those tests for the NHS, only 25% passed through all stages of validation, including assessments of performance and quality standards. Surely the Government must be concerned at the poor quality of imports, often from very dubious sources. Is it not the case that his department must be concerned that the UK becomes self-sufficient?
Viscount Younger of Leckie (Con)
I cannot comment on that; it is certainly a point that I am taking extremely seriously, as I said to the noble Baroness, Lady Smith, and the noble Lord, Lord Alton. I will take back the three questions on lateral flow tests, which is clearly an important subject.
Lord Blencathra (Con)
My Lords, several countries have accused China of committing genocide, and so has the House of Commons. The FCDO said in a Written Answer to me that China is running concentration camps, yet we are encouraging more trade with a country that is behaving like Nazi Germany. Is it not high time that we brought in sanctions to prohibit organisations and individuals doing business with companies known to be associated with the atrocities taking place in Xinjiang province?
Viscount Younger of Leckie (Con)
I alluded earlier to the named people affected by the sanctions system, which is ongoing and working. On 12 January, the Foreign Secretary announced the series of measures to which I alluded, which includes a review of export controls to make sure that we are doing all that we can to prevent the export of goods that may contribute to human rights violations.
Lord Jones of Cheltenham (LD) [V]
Last week, President Biden released formal guidance for US businesses operating in Hong Kong following the increased restriction of freedoms as a result of the national security law. When will the UK Government issue similar guidance?
Viscount Younger of Leckie (Con)
The UK has no plans at the moment to issue guidance but I am very aware of the United States export administration regulations, which contain a list of the foreign entities, including businesses, that are subject to specific licence requirements.
Lord Robathan (Con)
My Lords, the global economic power that China has established must concern us all. What assessment have Her Majesty’s Government made of the intentions of that global reach? Is it purely about the economy or is China in fact trying to establish a hegemony that will lead to it being able to dictate to the rest of the world how it behaves?
Viscount Younger of Leckie (Con)
It might be both of those but if we look at the work being done through the G7, which is the high-level stuff, trade Ministers have committed to work together to protect individuals from forced labour, including mitigating the risks of it. We are convening a technical discussion in order to share lots of data and evidence. G7 leaders are committed to continuing to work together through domestic means and multilateral institutions to protect individuals. That very much relates to my noble friend’s question on China.
The Lord Speaker (Lord McFall of Alcluith)
My Lords, the time allowed for this Question has elapsed. We now come to the fourth Oral Question.
National Food Strategy Independent Review
(2 years, 9 months ago)
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Lord Brooke of Alverthorpe
To ask Her Majesty’s Government what steps they will take in response to the recommendations of the National Food Strategy independent review, published on 15 July.
The Parliamentary Under-Secretary of State, Department for Environment, Food and Rural Affairs (Lord Benyon) (Con)
My Lords, we should like to thank Henry Dimbleby and his team for their work on this independent review. We are committed to carefully considering the review and its recommendations and responding with a White Paper in the next six months setting out the Government’s ambition and priorities for the food system. That will support our exceptional British food and drink producers, protecting and enhancing the nation’s health and the natural environment for generations to come.
Lord Brooke of Alverthorpe (Lab) [V]
My Lords, I am grateful to the Minister for that reply. There was considerable dismay in many quarters last week at the Prime Minister’s public perfunctory dismissal of the National Food Strategy’s recommendations on the need for sugar and salt taxes. Can the Minister ensure that all levels of government understand that the sugar tax on soft drinks that this Government—or, I should say, Mrs May’s Government—introduced in 2018 was seen generally as a success? It did not raise prices but instead encouraged manufacturers to reformulate their products on a healthier basis. Why should the principle of that sugar tax not be extended to help ease the country’s obesity crisis and a salt tax be similarly explored, instead of being so summarily dismissed?
Lord Benyon (Con)
The noble Lord is absolutely right to say that the soft drinks industry levy—it is not a tax—has been a great success. The sales-weighted average sugar content per 100 millilitres in fizzy drinks reduced by 43.7% between 2015 and 2019. It is worth looking at how Henry Dimbleby has nuanced his recommendations by proposing a look at wholesale sugar and salt used by the industry to make food items that are becoming a serious problem to the health of this country.
Lord Berkeley (Lab)
My Lords, are the Government proud of our status as the second most obese nation in the world after the United States, with which, presumably, they have a special relationship? Surely a tax on salt and sugar will reduce obesity and the cost to the NHS and, maybe, even make people happy. Why are the Government not doing it?
Lord Benyon (Con)
The noble Lord raises an important point. The Government have set out a very clear obesity strategy, with particular emphasis on children. Henry Dimbleby’s report is stark in its warnings about the health trends that have been created in this country. They are mirrored in other countries as well, but we have a serious problem. What the ground-breaking obesity strategy sets out is important. It is not just about what we eat but about how we encourage people to eat, through using watersheds in advertising and a range of other means. We are considering this report and all its recommendations, and will publish a White Paper within six months, which may satisfy the noble Peer.
Baroness Boycott (CB) [V]
My Lords, I am encouraged to hear the Minister say that the Government want to encourage people, particularly children, to eat better. I ask specifically about the recommendations in the Dimbleby report, and I declare an interest here as one of its advisers. The holiday activity fund ensures that poor children get a decent meal in the holidays; the early start vouchers enable pregnant mums and young kids to get fresh fruit and vegetables; and the extension of free school meals enables all people in poverty to have one decent meal a day. What are the Government going to do about these recommendations or will they again wait for Marcus Rashford to run them up the publicity flagpole, then give in?
Lord Benyon (Con)
We are very grateful to the noble Baroness for her involvement in this report. She knows we have increased the Healthy Start programme; we have provided schools with fruit and vegetables; and we have had an impact particularly on low-income families, in the variety of ways we have supported them. Food and our diet have to be looked at holistically with household income and all the pressures on it. Within a month, we as Ministers will be clear about how to respond to this and will take forward six work streams, most of which will please the noble Baroness, and we will publish that White Paper within six months.
Lord Bourne of Aberystwyth (Con) [V]
My Lords, the national food strategy is clearly important and timely. It should help us as a country combat carbon emissions and deal with the obesity crisis, so graphically underlined by the pandemic. Like others, I encourage the Minister to bear in mind the great success of the soft drinks industry with the 28% reduction of sugar, inducing change in producer behaviour. I also ask my noble friend to ensure that there is concerted action in this important area across the devolved Administrations.
Lord Benyon (Con)
My Lords, Henry Dimbleby’s report was focused on England, but he worked very closely with the devolved Administrations as well. Our food network and supply chains are interwoven, as they are with the European Union and beyond, so we absolutely will.
Baroness Walmsley (LD) [V]
My Lords, will the White Paper include ensuring that people without gardens who wish to grow their own healthy food have access to land for allotments without having to pay high fees? Will local authorities be funded to provide these facilities in the interests of public health and to encourage school gardens? Does the Minister accept that children who grow vegetables eat vegetables?
Lord Benyon (Con)
Getting children used to the production of food is a vital part of helping them to enjoy it, so I am absolutely on the same side as the noble Baroness. I would like to see a great many more schemes being developed. It is probably not for the Minister to do this from here, as local schemes are best suited, but I will work with other departments to make sure that that is happening.
Baroness Hoey (Non-Afl)
Does the Minister share my disappointment that the national food strategy made no mention of the importance of physical education and sport for young people in schools? We are seeing that being very reduced—not in private schools, but it is still being reduced in our state schools. Surely for a youngster starting off, getting the opportunity to learn about sport and physical education means that they will be much healthier, whatever they eat.
Lord Benyon (Con)
The noble Baroness is right that this is not my ministerial responsibility, but what we are doing in Defra to encourage people to get outside, to learn outside and to enjoy the outside is really impressive. We are working with other government departments to help her ambitions come true.
Baroness D'Souza (CB)
My Lords, the national food strategy proposals are evidence based and are further steps towards correcting the UK’s diet, which is the worst in Europe. The Prime Minister’s dismissal of a salt and sugar tax is a political decision. Can the Minister assure the House that, in future, scientific evidence will form the basis of decisions affecting the health of the whole country?
Lord Benyon (Con)
My Lords, scientific evidence is the basis of what my department works for and through. We will certainly apply scientific and societal evidence to inform our White Paper. I assure her that that will happen across government.
Baroness Hayman of Ullock (Lab)
The report highlights some key questions for the UK’s trade policy. The UK cannot work to transform its own food system and support people to make food choices that are better for their health and the environment if we allow foods to be imported that are produced to lower safety, environmental or welfare standards. I ask the Minister how the Government will heed the report’s warning on the worrying precedent that the Australia deal could set on food standards for imports.
Lord Benyon (Con)
Australia is a country that shares our values and it is important that we have a free trade agreement with it. The noble Baroness will be pleased that it contains a chapter on animal welfare, which is often overlooked in criticisms. I assure her that the Government’s commitment to standards will be underpinned throughout all the trade agreements we sign.
Lord Berkeley of Knighton (CB) [V]
Would the noble Lord accept and consider two points? It is not just sugar or salt but the combination of the two that often makes many foods moreish, if not addictive—Chinese takeaways and tomato ketchup, for example. Secondly, it is not just obesity that we should worry about, as another noble Lord said, but the chemical and psychological effect on mood and behaviour. Anyone with children knows the hyper-effect of sugar on children’s moods.
Lord Benyon (Con)
One of the most fascinating parts of the report was when it spoke about satiety. The junk food cycle is based on the desire to eat more than we need to feel sated. That is a real problem and a cycle that we have to break if we are to tackle obesity and other wider health issues.
The Senior Deputy Speaker (Lord Gardiner of Kimble)
My Lords, the time allowed for this Question has elapsed.
Minimum Energy Performance of Buildings Bill [HL]
Tuesday 20th July 2021
(2 years, 9 months ago)
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Conduct
13:07 - Division on Lord Cormack's amendment. - Ayes: 107 / Noes: 331 - Amendment disagreed.
13:22 - Division conducted remotely on the Motion - Ayes: 315 / Noes: 86 - Motion agreed.
Lord Mance
That the Report from the Select Committee The conduct of Lord James of Blackheath, Lord Kalms, Lord Willoughby de Broke and Baroness Mone (3rd Report, HL Paper 36) be agreed to.
The Senior Deputy Speaker (Lord Gardiner of Kimble)
I remind the House that, under Standing Order 68, reports from the Conduct Committee resulting from an investigation under the Code of Conduct are non-debateable.
Lord Mance (CB)
My Lords, I beg to move that the third report of the Conduct Committee be agreed to. As your Lordships are aware, and as has just been said, the House, by Standing Order 68, has decided that such a report is decided without debate, so I will confine myself to a brief introduction.
On 3 November last year, the House agreed to a recommendation from the Conduct Committee, consistent with the independent reports of Naomi Ellenbogen QC, as she was, and Alison Stanley, that all Members of the House be required to undertake Valuing Everyone training—a study course—by 1 April this year. Nearly all Members did so by the deadline.
The House recognised that some Members might, for exceptional reasons, not be in a position to undertake this. In a report on 18 May, the commissioner identified seven Members as falling within this category. She held that a further 47 Members were in breach by failing to take the course by the deadline, but she accepted sufficient remedial action, arrangements or promises made by them to undertake the course in the immediate future.
The four Members who are the subject of the present Conduct Committee report did not proffer any exceptional reason for not taking the course. Of the four, one, although in breach, then explained to the Commissioner that she was willing to undertake the course; she has now done so. A second, the noble Lord, Lord James of Blackheath, has very recently, since the Commissioner’s report was published, also agreed to undertake the course and has signed up to do it tomorrow.
The second Motion in my name before the House therefore relates only to the two remaining noble Lords, Lord Kalms and Lord Willoughby de Broke, who have not appealed the Commissioner’s finding that they breached the Code of Conduct, and have continued to refuse or fail to undertake the course. This second Motion therefore seeks to restrict their access to staff of the House and other Members of the parliamentary community, as well as facilities, until they undertake the training. The Committee believes that this is a proportionate sanction which balances the importance of protecting staff with the undoubted right of the two noble Lords to continue exercising their core parliamentary functions.
I include a further word on Standing Order 68, under which the two Motions in my name fall to be decided. The report recommending the new Standing Order was agreed in a full sitting of the House after nearly two hours of debate on 30 April 2019. Members who are the subjects of reports by the commissioner have a full right of appeal to the Conduct Committee, a right which I stress again that neither noble Lord has exercised in this case, but certain sanctions can only be imposed by the House itself on recommendation of the committee. The Standing Order was designed to promote an objective and independent process protecting complainants who cannot speak for themselves and ensuring that future complainants know that their conduct will not be debated on the Floor of the House. A similar Standing Order exists in the House of Commons.
The amendment in the name of the noble Lord, Lord Cormack, is a matter for the House. There is little that I wish to say. Standing Order 68 will apply on 12 October, as the House will be no more or less legitimate then than it is today. Delay would not change the appropriateness of the sanction but could convey an unfortunate message about the House’s willingness to enforce its own agreed code. I beg to move.
Amendment to the Motion
Lord Cormack
Leave out after “that” and insert “consideration of the Report from the Select Committee The Conduct of Lord James of Blackheath, Lord Kalms, Lord Willoughby de Broke and Baroness Mone (3rd Report, HL Paper 36) be deferred until 12 October.”
Lord Cormack (Con)
My Lords, I have put down this amendment for one simple reason. By voting for it—and I intend to test the opinion of the House—we will give ourselves time to reflect on the wisdom of Standing Order 68 and to decide whether it is in accordance with natural justice to impose penalties on those who have done no personal wrong or injury to anyone within or outside the House but who are being punished because they have not followed, within a prescribed time and in a difficult year, an instruction to follow a training course on how to behave. Standing Order 68’s constraints, within which I am having to speak, do not permit of others to speak in this debate. However, I know that many in your Lordships’ House share my concern.
The Standing Order prevents discussion. I know that a number of colleagues share my feeling that in the high court of Parliament we should not be forbidden from exercising our judgment on the recommendations of a small group of colleagues and outsiders who are deciding sanctions on a small group of other colleagues. We may debate at length the recommendation of every other Select Committee but, to those reports from the Conduct Committee, we can only say “content” or “not content”.
This final week of term is a very full one, and our brief September sitting is very crowded, with four long days devoted to the vast and important Environment Bill. In October there should be a chance to look at how we regulate and organise ourselves, perhaps reflecting on Harold Macmillan’s famous reminder that:
“Quiet, calm deliberation disentangles any knot.”
I submit that we have tied ourselves in a very restraining knot. I urge that we begin to untangle it today. Do we really want to treat former captains of industry and others as recalcitrant schoolboys and say: “Because you didn’t do your prep, you can’t go to the tuck shop or the library,” especially as the Library has a number of books on good behaviour?
I urge those of us who share my concerns to vote for this amendment, which does not pass any judgment on the report that the noble Lord, Lord Mance, has moved, but which gives us an opportunity, during the forthcoming recess, after a very tiring and difficult year, to reflect, “Have we got this right? Is this the way to treat colleagues?” I beg to move.
Lord Mance
To resolve that, in accordance with paragraph 159 of the Guide to the Code of Conduct, and without prejudice to their ability to carry out their parliamentary duties, Lord Kalms and Lord Willoughby de Broke be denied access to certain facilities of the House and be restricted in their access to certain services, as set out in paragraph 18 of the 3rd Report from the Conduct Committee; and that these arrangements shall continue until they have completed Valuing Everyone training.
Medical Devices (Northern Ireland Protocol) Regulations 2021
(2 years, 9 months ago)
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Lord Bethell
That the draft Regulations laid before the House on 16 June be approved. Considered in Grand Committee on 12 July
Medical Devices (Coronavirus Test Device Approvals) (Amendment) Regulations 2021
(2 years, 9 months ago)
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14:10 - Division conducted remotely on Baroness Thornton’s amendment. - Ayes: 229 / Noes: 230 - Baroness Thornton’s amendment disagreed.
Lord Bethell
That the draft Regulations laid before the House on 17 June be approved.
Relevant document: 8th Report from the Secondary Legislation Scrutiny Committee (special attention drawn to the instrument). Considered in Grand Committee on 12 July.
The Parliamentary Under-Secretary of State, Department of Health and Social Care (Lord Bethell) (Con) [V]
I beg to move.
Amendment to the Motion
Baroness Thornton
At the end to insert “that this House welcomes that the draft Medical Devices (Coronavirus Test Device Approvals) (Amendment) Regulations 2021 introduce a quality approval process for all COVID-19 tests sold in the UK; but regrets that the regulations assume a change in policy by not making guaranteed provision for the continuation of free NHS COVID-19 tests and will therefore rely on private sector testing for which fees are charged; further regrets that private sector tests do not appear to be integrated with the NHS test and trace system, including legal requirements to report and self-isolate; notes with concern that Her Majesty’s Government have previously stated that regular testing is an essential part of the easing of coronavirus restrictions; and calls on Her Majesty’s Government to guarantee that reliable, high-quality, free NHS tests remain available to all beyond 19 July to support the effective management of COVID-19.”
Baroness Thornton (Lab)
My Lords, noble Lords who have read the record of the debate on this SI in Grand Committee will not be surprised that this regret amendment has been brought to the House today, given the Minister’s inability to answer the questions posed by noble Lords or indeed to reassure us over our concerns. Since then, we have had a weekend of further chaos on testing, tracing and isolating, which we will discuss tomorrow when the House takes the latest Statement on the matter. I understand that it is the 49th such Statement; it is certainly the 49th in the Commons.
For complete clarity, as the amendment states, I say that we on these Benches are in favour of guaranteeing and improving the quality of Covid tests. We also recognise that the private sector has a role to play in providing tests for those who wish to travel abroad on holiday and for business purposes. My amendment highlights the issues that were of concern to the Grand Committee and which prompted many questions, based not least on the excellent report from the SLSC, that I am afraid went unanswered.
I thank the Minister for his letter yesterday, which provided much-needed clarity on some of the issues raised and contained the kind of details that would have been helpful in last week’s debate. These regulations are not being introduced with the urgency characteristic of previous points in the pandemic, and they must be introduced and debated in a considered fashion.
This is a public health pandemic and surely no barrier, particularly a financial one, must be put in place that hinders testing and tracing, yet there has been deep unease that lateral flow tests were guaranteed to be free only until the end of July and that people could subsequently be charged under plans being considered by the Government. The Minister’s letter includes welcome confirmation that free NHS tests and universal testing will continue until the end of September. That raises the question of why the Minister could not give us that answer last week in Grand Committee. He should have been well prepared for it given the public interest, media reports and indeed the SLSC report on this instrument, which specifically raised concerns about changing policy and recommended that free testing continue. Can he confirm when that decision was made and when it will next be reviewed?
The noble Lord, Lord Scriven, asked some thoughtful questions about the supply of tests and their reliability. He asked the Minister to explain the Government’s intention on charging for tests, particularly for employers who want to institute testing regimes to bring their staff back into their premises and to protect the public and their customers while doing so. He eloquently made the point that businesses have lost significant revenue over the last week and have asked whether it is right to expect them to meet further costs at this stage. Since April, companies have been able to order rapid lateral flow tests for their workers. While we now know that individuals can still claim free tests through the NHS, at least until the end of September, there seems to be confusion as to whether the scheme for companies has closed. The Government’s website says the cut off for new orders was 19 July—the UK Government’s freedom day in England—as the requirement for masks and social distancing ended. Can the Minister confirm whether the scheme for businesses will also run until September? Does he agree that responsible employers who are ensuring their workers are regularly undertaking lateral flow tests should be congratulated on their approach rather than suddenly being asked to source tests from a private provider, which would dramatically increase costs?
My noble friend Lord Rooker, the noble Lord, Lord Moynihan, and the noble Lord, Lord Lansley, all raised the issue of the missing impact assessment, which the Explanatory Memorandum said would be published in time for the parliamentary debate, which was on Monday 12 July. Again, the Minister failed to answer this question during Committee, but his letter of 19 July reveals that the impact assessment has been red-rated by the independent Regulatory Policy Committee and withheld. Noble Lords will be aware that red-rated impact assessments are deemed not fit for purpose. This is deeply concerning. In his letter, the Minister further committed to publishing the impact assessment as it currently stands and a supporting statement “shortly”, and therefore before the parliamentary vote, following the opinion of the RPC, outlining the areas where further improvements can be made. Here we are, over a week later, about to vote—possibly—yet this important documentation has still not been published. Can the Minister explain why this has not happened, despite his assurance? Where does the buck stop for this latest failing?
Finally, the noble Lord, Lord Scriven, and I are very concerned about the seeming lack of link between test and trace and the proposed new private testing regime. While the noble Lord’s letter to me notes that it is
“vital that we introduce a regulatory regime to ensure COVID-19 tests available on the market are of sufficient quality and produce accurate results”,
it does not offer assurance in detail about how this regime and the NHS Test and Trace will work together to provide a comprehensive safe regime that the UK can depend upon. I sincerely hope that the Minister can provide some much-needed clarity.
There are many matters to regret here: the impact, or lack of it, the policy changes, the process and the timeliness. This was not an urgent matter, the Minister said. It could have been done over a month or so, and it would have definitely benefited from that. I beg to move.
Lord Hunt of Kings Heath (Lab)
My Lords, I am very glad to support my noble friend in her Motion. I want to put two points to the Minister. The context of this SI is the poor quality of many tests. Paragraph 7.2 of the Explanatory Memorandum makes the point that, during public procurement of lateral flow tests for the NHS,
“only 25% passed through all stages of validation including assessments of performance and quality standards.”
That is a pretty shocking statistic. Can I take it that most of these tests came from China? We had an Oral Question on this from the noble Lord, Lord Alton, only a few minutes ago. That being so, can the Minister assure me that Uighur slave labour in Xinjiang was not used in the manufacture of those tests?
Lord Alton of Liverpool (CB)
I thank the noble Baroness, Lady Thornton, for giving us the opportunity to have a discussion around this; I will support her amendment. I am very pleased to follow the noble Lord, Lord Hunt of Kings Heath, and to echo some of his remarks and questions.
In doing so, I return to a Question that I put during Oral Questions, in an earlier part of our proceedings today, where I specifically asked about the number of lateral flow tests that have been produced and where they have come from. My interest in this originated during a hearing of the International Relations and Defence Select Committee, when were told by a witness that he was delighted that a package had arrived at his home containing a lateral flow test and that it had originated in China. This prompted me to ask a Written Question about how many of these tests had been produced in the People’s Republic of China. The Answer I was given was staggering: we had bought not 100,000 or 1 million, but 1 billion. I also asked, in that same Question, two other things: how much this had cost British taxpayers and which companies, both British and Chinese, were involved in these deals. I did not get an answer to the second two parts of my Question, so I tabled a further Written Question, asking again. It stands on our Order Paper today as having the greatest longevity of any unanswered Written Question. It was tabled on 12 May and it was due to be answered by 26 May; it is now 20 July. It is grossly discourteous to the House for Written Questions not to be answered in this way—it would have maybe saved the Oral Question having to be asked earlier on.
At the heart of that Question is the issue of due diligence. I echo something that the noble Baroness, Lady Smith of Newnham, asked during our earlier exchanges. The duty is on the Government, not on individuals, to ascertain, as the purchaser of these lateral flow tests, what the supply chain transparency is. I should mention two things here: I am a vice-chair of the All-Party Group on Uyghurs and I have a Private Member’s Bill before your Lordships’ House on supply chain transparency. What due diligence has been done in establishing the provenance of these lateral flow tests, and why have we not had answers? Perhaps the Minister can give the answers to us now. Who are the companies that have been involved in the purchasing of these tests and what has been the cost overall?
I would also like to ask the Minister something that was put to him on 12 July by the noble Lord, Lord Rooker, in Grand Committee. It is always a pleasure to find myself on the same side of arguments as the noble Lord, Lord Rooker. When I took my seat in another place, over 40 years ago, it was the noble Lord, then as Jeff Rooker MP, who welcomed me; I am glad he has lost none of his bite.
The noble Lord asked the noble Lord, Lord Bethell— I read the Minister’s reply and he did not appear to answer him in that debate, so I simply reiterate the noble Lord’s question:
“why do we need to buy the NHS Test and Trace kits for the lateral flow test, the one being given out by local chemists, from one of the Chinese Communist Party-approved companies? How do we know they are not made with slave labour? What kickbacks go to that corrupt political party? What efforts are being made to get them made in the UK—dare I say Europe—or, indeed, Commonwealth countries? We now have the capacity to check the tests in laboratories. Why have we not done something about manufacturing capacity? Why are we reliant—we appear to be reliant—on the fix of the Chinese industrial structure, which is controlled by the Communist Party or it cannot operate?”—[Official Report, 12/7/21; col. GC 430.]
That is at the heart of this question and of the debate today. It is not a trivial issue. One billion of these tests have been purchased by the UK. Just think what the costs of that will be: if it is 50p a time, that is half a billion pounds; if £1 a time, that is £1 billion. We have a right to know.
This is a point that the noble Baroness made in her remarks earlier: there needs to be not just due diligence but transparency. As far as I am concerned, there has not been sufficient transparency. We are right to press on this, just as it was right earlier to raise the issue of Hikvision. These are cameras that have been put up in our town centres and high streets all over this country, in NHS hospitals and in schools, and they are manufactured in Xinjiang. They are the same cameras being used to monitor Uighur people, 1 million of whom are incarcerated in camps. That company has been banned in the US but not here, and I would be keen to hear from the Minister what the Government—because he will be speaking for the whole Government—are doing to enforce such a ban in the UK.
Lord Scriven (LD)
My Lords, we on these Benches support the principle of this SI. Of course we want to see a mandatory standard for tests. I do not think anyone who spoke in Grand Committee argued against the principle of the SI, but there are concerns about a few issues in it. The Minister replied to the issues raised in Grand Committee with soothing words rather than convincing answers, hence the noble Baroness, Lady Thornton, has tabled her amendment to the Motion today.
I want to raise a few of the issues that the Minister either ignored by not answering or used soothing words about but did not give convincing answers to. The first question is: if we are to have a mandatory standard for tests, why have we got new Clause 39A, which is an exemption from the mandatory tests and standards that can be applied at the stroke of a ministerial pen? What is the point of having a mandatory standard for safety if the Secretary of State, at the stroke of his or her pen, can decide to do away with that? In what circumstances and for what reasons would the Secretary of State wish to bring in tests that would lower the mandatory standard, and how would the public know that they were purchasing a test that did not meet the statutory standard that had been set?
I want to address the issue of openness and transparency, as raised by the noble Lord, Lord Alton, and the noble Baroness, Lady Thornton, regarding the validity of the standard of the test as well as human rights issues. Where is the research in public on the validity of the standard of the lateral flow tests, particularly the one from China brought in via Innova, the main intermediary for a Chinese company? This test, as raised in Grand Committee, was given a class I notice in America, and an FDA email says it is not effective and gives the instruction:
“Destroy the tests by placing them in the trash”.
That is the same lateral flow test bought for billions of pounds by the UK. Again, there were soothing words from the Minister in Grand Committee about this: he said that the Government were working with the FDA. That might be true but having two differing positions— the Government saying that the test is safe while the FDA says to throw it in the trash—is not working together. Could the Minister elucidate on why the British Government still feel these tests are safe when the FDA says they should be thrown in the trash? Which part of the FDA’s analysis do the Government disagree with?
The key issue for me is the one that the noble Baroness, Lady Thornton, has already raised: this is not linked into the total public health system to deal with the virus. The key issue is not the standard of the tests themselves but that it should be linked into test and trace. To say that we are going to have a high standard without linking it into the test and trace system is like saying you want the best electric car in order to be environmentally friendly, buying it and then, once you get it home, realising that the nearest charging point is 100 miles away. This is not fit for purpose. To be so, tests must be integral and integrated into the test, trace and isolate part of the public health response to coronavirus.
I ask the Minister, as I and others did in Grand Committee: if someone carries out a private test, how does that link into test and trace? There is no mandation anywhere in UK law to say that a private test, once proved positive, has to be fed into the test and trace system. All the evidence suggests that the way to deal with the virus most effectively is to break the chains of transmission within 48 hours. If tracing is not told that you have tested positive, there is no way to have an effective public health response. So, even if you have the best standard of tests, with no tracing or isolation the chain of transmission will continue.
When I and others asked in Grand Committee, the Minister said that this is also a significant public health policy change. I am not aware of any infectious disease anywhere in the UK or in the world where a market approach to the testing of infectious diseases has become the bog-standard approach, but that seems to have been the Government’s policy after September.
The Minister mentioned Germany in Grand Committee, saying that that country had moved to a specifically private-led testing system. There are two differences in the German system. First, it is controlled by state subsidies; to do it, the companies get a state subsidy, which has now been reduced significantly so the level of private testing is levelling off. Secondly, and most importantly, there is a mandatory requirement in German law to report positive cases from those positive tests to the national Covid test and trace system in Germany.
This statutory instrument, while well intentioned, is riddled with weaknesses. It is not linked to the test and trace system and will not help keep the country safe. It will not have the desired effect, and we will end up with a system that basically has a good standard of tests but then does not do the next, vital part, which is to trace people and then support them in isolating.
That is why we on these Benches will support the amendment to the Motion tabled by the noble Baroness, Lady Thornton—unless the Minister can come up with convincing answers this time, not just soothing words.
Lord Bethell (Con) [V]
My Lords, I thank the noble Baroness, Lady Thornton, for her support for the regulations in the round, for her supportive words about the role of the private sector in the round and for raising many important points in her amendment to the Motion, stressing the vital role of NHS testing as we continue to manage the pandemic.
I want to clarify that these regulations are not connected to the future of free NHS testing. This SI, as noble Lords have noted, is solely focused on ensuring the quality of any Covid test in the UK and that they are of the same standards as I would procure for the NHS.
It is self-evident that poor-quality tests, when used privately, could pose a risk to the health of not only the individual but the public. All that is necessary for entry of Covid test products into the UK market is controlled by EU CE marking, which, as noble Lords noted, is currently a self-declaration process for most Covid-19 tests on the UK market. The performance declaration made as part of this EU marking does not need to be independently verified ahead of sale of such tests. There is no legally binding agreed process for establishing performance. That just is not good enough. It became clear as I sought to procure tests at scale for the national effort that many kits that had passed a CE mark were not fit for the real world. I say to the noble Lord, Lord Hunt, that it is not right that the quality of tests correlated to any particular nation; this applied to all nations.
I say to the noble Lord, Lord Alton, that we have audited the supplies of medical devices and there are no current slavery or human rights concerns. We do, however, remain vigilant. I regret that his question on sourcing has not been answered, particularly because there is a very large amount of public material on the procurement framework, the suppliers to it and the arrangements we make to run that framework. I will address that gap with speed, and with regret.
I reassure the noble Lord, Lord Scriven, that there is a very large amount of published material on the internet on the validation of tests, including the protocols and the results from Oxford University and Porton Down, which conducted the validation of the tests. These validation protocols have been assessed by a very large number of experts, and I would be glad to send him links to the protocols and the assessment processes. I reassure him that our tests have been tested against alpha, beta, gamma and delta variants and successfully detect all of them.
The noble Lord, Lord Alton, referenced “kickbacks” to the Communist Party. I very kindly and respectfully ask him to remember that British officials have operated a remarkable procurement programme during the pandemic at the very highest standards of integrity. I gently ask him to provide evidence for such accusations before making them in the House.
To the question of why we buy so many tests from China and not from Britain, the simple answer is that they pass our protocol and meet the requirements of the procurement framework regarding quantity, speed and product design, for example. We buy them to ensure a good deal for taxpayers and effective tests for the public.
I completely agree with the noble Lord, Lord Hunt, that we need a strong UK manufacturing base. I reassure the noble Lords, Lord Alton and Lord Scriven, and others who have raised this point that we have a major programme on this, with subsidies, expertise and support available. I would be glad to arrange a briefing session to run noble Lords through all the measures we have in place to support the UK diagnostics industry. I believe the high-quality regulations we are discussing today provide the certainty business and investors need to invest in the UK diagnostic system. We need this market to provide additional capacity at the time of the pandemic, to ensure that we have outstanding testing capability while also encouraging innovation.
I was keen to take an evidence-based approach to developing this policy, so we ran a very successful consultation that had a broad range of respondents. Some 73% agreed that mandatory validation of tests prior to entry to the market was the best approach; 88% of those agreed that this should be legally backed; 71% agreed that a validation process would not significantly reduce supply; and 79% agreed that mandatory validation processes will increase safety.
In April this year we launched the universal testing offer, so now anyone in England can access free LFD self-tests by ordering online or collecting then at over 9,000 pharmacies across the country. To reassure the noble Baroness and all noble Lords concerned about this, our recently published road map out of lockdown made it clear that we are keeping in place key protections, including free testing for people with symptoms, but we are standing down the workplace testing regime, as the noble Baroness, Lady Thornton, rightly pointed out, from 19 July.
On the rationale for regulation, I welcome the support of the noble Baroness, Lady Thornton, for NHS tests, which have always been of the highest standard. The objective of the legislation is to ensure that the same high standards for tests that we see upheld when the Government buy them are equally reflected in the testing market for all consumers. That market already exists in this country; over 1,000 providers are already going through the UKAS accreditation process. These tests are being used to enable activity across many areas of the economy, including travel, film, TV production and sport. It is critical that we put in place processes to ensure that these tests are high quality and accurate: that is what this law does.
On the integration of private tests and the NHS test and trace system, I reassure the noble Lord, Lord Scriven, and the noble Baroness, Lady Thornton, that significant work has already successfully linked private sector testing results with the NHS Covid app, the JBC and test and trace. When a test is conducted by a testing provider, whether public or private, the result of that test, whatever the outcome, is legally required to be reported to PHE as a notifiable disease by the provider. To the noble Lord, Lord Scriven: this is true for a private test or a public test, and I would be glad to send him a copy of the long-standing regulations that make this law. This must be done within 24 hours for all positive tests. Any self-administered test provided by the Government can be reported via our online portal by members of the public. Any positive test reported to PHE will be passed on to our contact tracing system.
The draft impact assessment has now been published in the interest of transparency, as has an impact statement. It is a living document, and we want to make the best analysis available. We intend to update the impact assessment and address the RPC’s comments ahead of the introduction of the second SI in the autumn. I would like to put on record my thanks to the RPC for working so closely with us and at such pace on this matter.
I want to ensure that all tests are available in the UK, whether they are offered by the NHS, a charity or a private provider, and whether they are supplied by a British diagnostic firm or an overseas firm. I thank the noble Baroness for giving me this opportunity to respond to her important points. I beg to move.
Baroness Thornton (Lab)
My Lords, I start by thanking the Minister. I feel for the Minister, and I wish him well in his self-isolation, and I congratulate him on his immediate and unfussy decision to obey the ping and the trace system. I hope he is going to have a great summer, because I think he has earned it.
I thank the noble Lords, Lord Hunt, Lord Alton and Lord Scriven, for their support and the questions they have asked. I apologise to the House that we did not put this amendment down in the first place. It should have come straight to the floor of the House rather than going through the Grand Committee first. It was only the gathering concern in Committee that led me and other noble Lords to the conclusion that we needed further discussion about this.
It is not up to the noble Lord, Lord Alton, to prove the veracity of the sources of any goods we purchase through the NHS or anywhere else. If it is being bought by the Government, it is up to the Government to demonstrate that those supply lines are not exploitative and do not use slave labour. That is part of the transparency we are calling for. I do not think the Minister answered very well on that matter.
I am concerned that workplaces, as I suspected, will now have to pay for the testing regime we have. I am somewhat reassured by the noble Lord assuring us that tests have to be fed in through the test and trace system wherever they happen, but I am concerned that, given that workplaces will now have to purchase all those tests, the system will break down quite quickly over the summer. We still have many questions and regrets, so I wish to test the opinion of the House.
Arrangement of Business
The Deputy Speaker (Baroness Watkins of Tavistock) (CB)
For Report on the Leasehold Reform (Ground Rent) Bill, I will call Members to speak in the order listed. Short questions of elucidation after the Minister’s response are discouraged. Any Member wishing to ask such a question must email the clerk. The groups are binding. A participant who might wish to press an amendment other than the lead amendment in a group to a Division must give notice in debate or by emailing the clerk. Leave should be given to withdraw amendments. When putting the Question, I will collect voices in the Chamber only. If a Member taking part remotely wants their voice accounted for if the Question is put, they must make this clear when speaking on the group.
Leasehold Reform (Ground Rent) Bill [HL]
Tuesday 20th July 2021
(2 years, 9 months ago)
Lords ChamberRead Full debate Leasehold Reform (Ground Rent) Act 2022 View all Leasehold Reform (Ground Rent) Act 2022 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 1-R-I Marshalled list for Report - (15 Jul 2021)
15:46 - Division conducted remotely on Amendment 9 - Ayes: 243 / Noes: 238 - Amendment 9 agreed.
16:11 - Division conducted remotely on Amendment 26 - Ayes: 219 / Noes: 243 - Amendment 26 disagreed.
16:51 - Division conducted remotely on Amendment 27 - Ayes: 245 / Noes: 256 - Amendment 27 disagreed.
Lord Greenhalgh
That the Report be now received.
Clause 1: Regulated leases
Amendment 1
Lord Greenhalgh
Member’s explanatory statement
This amendment excludes leases of multiple dwellings from the definition of “regulated lease”.
The Minister of State, Home Office and Ministry of Housing, Communities and Local Government (Lord Greenhalgh) (Con)
My Lords, I take this opportunity to thank all noble Lords who have participated so far in the debates on the Bill and who have met me to discuss the policy and principles behind it. These discussions have led directly to the first set of amendments under consideration today. The government amendments in this group provide greater clarity in two key areas—rack rents and intermediate long leases—addressing issues that emerged both at Second Reading and in Committee.
First, government Amendment 1 inserts the word “single” into Clause 1 to put beyond any doubt or ambiguity the fact that the Bill is intended to apply only to a lease of an individual dwelling. My noble friend Lord Hammond has noted, both in this Chamber and in various meetings, that, as drafted, the Bill could perhaps be interpreted as also applying to cases where a lease is made up of multiple dwellings, held collectively.
Where a lease is for multiple dwellings, such as a where a business has a lease for all or part of a building, the intention of the policy is that there should be no restriction on such leaseholders arranging their finances with the superior landlord in a manner that suits the commercial needs of both parties. This amendment clarifies that the Bill is intended not to capture such leases but to protect individual leaseholders.
Noble Lords will have heard me say many times that this is narrowly focused legislation. Ending this legitimate practice is not, and never has been, the intention of this Government. By amending this clause so that it refers to a long lease of a “single” dwelling, we ensure that this legislation does not inadvertently put an end to this business model. The addition of this word provides welcome clarity on this matter, and I hope that the amendment will attract support from across the House.
Government Amendments 2 and 38 concern the exemption from the provisions of the Bill in cases where a leaseholder has taken up a long residential lease without the customary payment of a premium and instead pays a full rent for the term of the lease. As I am sure your Lordships are aware by now, the purpose of the Bill is to protect the large majority of leaseholders who pay a substantial premium on the granting of a lease, often with a mortgage, from further rental charges. Our guiding ambition here has been to put an end to the otherwise continuing unfairness of such leasehold arrangements.
It has been brought to my attention by noble Lords, particularly my noble friend Lord Hammond, that a small number of long residential leases are let where no premium is paid for the granting of the lease and where, instead, a market rent is paid by the leaseholder. I thank once again my noble friend Lord Hammond for drawing our attention to this issue with the drafting of the Bill. It is perhaps no surprise that a former Chancellor should have such attention to detail, and we are grateful to him.
Although such arrangements would still be possible for a lease of 21 years or less, we understand that there are occasions when such arrangements may take place with leases over 21 years—a commonly understood definition of a long lease. I reiterate that it is not the intention for the Bill to apply to long rental leases such as these, so, for the purposes of clarity, the Government have tabled these amendments. They provide that regulated leases will be only those leases granted in exchange for a premium; as a consequence, we have also defined a “premium” in government Amendment 38 as
“any consideration in money or money’s worth for the grant of a lease, other than rent”.
I trust that this allays the concerns of the House on the matter of market rents for long leases.
Amendment 3, in the name of the noble and learned Lord, Lord Etherton, would remove new leases where there is a “deemed surrender and regrant” from the provisions of the Bill. I am grateful for his explanation that his amendment is to address concern that landlords may be reluctant to change a lease, even where requested to by a leaseholder, if this would result in a deemed surrender and regrant because this would mean that the peppercorn limit would apply.
The noble and learned Lord has explained that the two common circumstances where a leaseholder may request that a lease is varied are a change to the demise —for example, to include additional land or property—or to change the term. I will address the concerns about the change to the demise first. We agree that such variations would usually take place in a way that results in a deemed surrender and regrant and that the Bill would discourage that because the resulting new lease would need to be for a peppercorn ground rent.
However, the same outcome can also be achieved with the agreement of the leaseholder by the grant of an additional separate lease, meaning that the ground rent can remain on the unaltered existing lease. This might also be done by altering the lease and extending the lease for a single day. This would then be caught by Clause 6, thereby allowing the ground rent for the existing term to be retained. As we have discussed previously, any extension would be at a peppercorn rate. We believe that this is an achievable workaround that means that variations for the leaseholder’s benefit can be introduced without detriment to the landlord’s existing rights.
Lord Etherton (CB)
I wish to speak to Amendment 3, in my name. I am extremely grateful to the Minister for speaking to me about my concerns about Clause 1(4). It is important that today, we have had an acknowledgement that Clause 6, which I understand is the way the Government intend to deal with preserving the right of a landlord to continued receipt of ground rent for the duration of the original lease, does not extend to a situation where the tenant requests, and the landlord might otherwise agree, subject to this Bill, to grant an extended demise or an extended grant of property.
At the moment, the Bill does not address one of the two circumstances in which, in the normal course of events, there will be a deemed surrender and regrant by operation of law, which operates irrespective of the intention or awareness of the parties. The Minister says that it does not matter because the landlord can always agree with the tenant to grant a separate lease of any extended area of land which the tenant wishes to include in the lease, and that the landlord would otherwise be willing to grant. This leaves a very messy situation. Clause 6—which, with respect, is not entirely straight- forward—is intended to deal with the second situation whereby there is a deemed grant and surrender, and that is where there is any extension to the duration of the lease.
The second normal circumstance is not addressed at all. It is an everyday occurrence, not an unusual one, for a tenant and a landlord to agree informally to changes in the area of the lease. Therefore, subject to the solution that is proposed, which is a separate lease of this grant of extended land included within the lease, there is nothing in the Bill that addresses this. This can be dealt with quite simply, either by taking out Clause 1(4) or by extending Clause 6 to include this second situation, which is the granting of greater land than is currently within the original lease. It makes absolutely no sense to include something dealing with the one but not the other, when those are the only two circumstances which would normally give rise to a deemed grant and surrender. It leaves a lacuna in the Bill, in that there still may well be a landlord who is not aware of the terms of the Bill and who may not appreciate that granting, in accordance with the tenant’s request, a greater piece of land to them has the effect of removing the ground rent to which the landlord would otherwise be entitled.
Although I very much welcome what the Minister has said about many of the amendments he has tabled, and his explanation, legally speaking we are left with a very untidy situation. There is now a distinction between the two circumstances in which there is a deemed surrender and regrant, one being expressly dealt with in Clause 6, and the other not at all. That could lead to a landlord with no awareness of the situation—and with no intention of doing so—losing the benefit of the ground rent under the original lease.
The Earl of Lytton (CB) [V]
My Lords, it is a pleasure to follow the noble and learned Lord, Lord Etherton, and I thank the Minister for introducing this group of amendments, in which I have two: 5 and 39. I declare my property interest but hasten to add that it does not involve long leasehold; I also declare my interest as a property professional. I particularly thank the Minister for meeting me this morning at short notice; I very much appreciate that and I think it is fair to say that we had a frank and generally constructive conversation. I am indebted to the British Property Federation for the comments it sent me, to the Wallace Partnership Group for its observations on the Bill, and to the Homes for Later Living group, which is a retirement homes specialist.
The pivotal point here is the question of who takes on the responsibilities of property management and things such as safety oversight, particularly in complex buildings. I am thinking of developments such as Salford Quays, but there are others in the pipeline, including King’s Cross and Battersea, that will come on stream and are in the process of evolving even as I speak.
The British Property Federation believes—and I agree with it—that most leaseholders in these large, complex, often urban developments will not want to take on the sort of responsibilities implicit in the management and future-proofing of the common areas and common parts of buildings in these multi-occupied developments. Hardly had I considered that point when it was pointed out to me that a poll by Savanta found that only 31% of people would willingly take on the management of their apartment block, even when faced with the option of saving on ground rent. I have some experience that reinforces this, so much more so when we come to the scale of some of these urban and often redevelopment situations that are truly industrial in their complexity.
A buy-to-let investor is hardly going to have interest in participating in the day-to-day running of an estate. Freeholders, with a nil or peppercorn rent and no other interest beyond the maintenance and management charges that may be taken away from them by right to manage, are hardly going to have an interest in taking on costs that they might not be able to recover. By that I mean costs on things such as long-term capital expenditure on visual improvements or repurposing parts of the development—matters that are not a service charge and therefore there is some question as to the degree to which they could be recovered. With no skin in the game, how is the freeholder going to finance or forward-fund these things? For practical purposes, the Bill ends up providing us with the opportunity for non-responsive freeholders.
If leaseholder-led arrangements fail or the leaseholders want to hand back the management process, an effective freeholder is traditionally there as a backstop to take on the responsibilities. Curiously, under the Bill that onus will persist, with the freeholder having a peppercorn rent. I question whether the liabilities will in fact be shouldered in that way or can be imposed in practice.
I do not intend to press either of my amendments, but it is worth my while going into Amendment 5 in a little more detail. The amendment would make leases that meet certain criteria excepted leases and therefore still able to operate on a ground rent principle. Freeholders would thereby be incentivised to invest in the property in the long term and to bring their expertise, their ability to deal with complex developments at scale and their property management skills and safety oversight.
As buyers of individual long leaseholds, consumers would still have the choice at the market-wide level as to whether they wanted to live in a block run by a freeholder and pay a ground rent or to purchase a flat in a communally run block. Consumers would also retain the right, as they have now, to enfranchise or exercise their right to manage and take over the block, which the Government have said they will seek to make easier as they work on a second leasehold reform Bill.
I propose the choice of a functioning leasehold system in larger and particularly complex apartment building arrangements because, as I say, there is good evidence that a lot of leaseholders do not want the responsibility of running these blocks. It must be pointed out that service charges relate to current expenditure. They do not customarily cover future investment, improvement or adaption and may potentially be challengeable by leaseholders.
A point about retirement developments was rather eloquently made by Homes for Later Living. These often have specialised development models, including extensive communal facilities, so although they are not the same as these large, mixed-use commercial redevelopments, they have some of the same problems.
Lord Stunell (LD)
My Lords, my noble friend Lady Grender is very sorry that she is not able to be present, having led for this side of the House in the previous stages of the Bill. She has put into my somewhat inadequate hands the job of taking us to the next stage. I thank the Minister for his very helpful approach to all sides of the debate so far—in the preceding stages and, indeed, right up to this morning, as the noble Earl, Lord Lytton, has commented.
These government amendments are examples of clarifications that have emerged as a result of our discussions; I am sure we would all agree that they are leading to an improvement on the Bill in its original form. Not all of us brought to bear the knowledge and background of a former Chancellor of the Exchequer, which was credited by the Minister a few minutes ago, but, even so, we have been treated with courtesy and respect, and we very much appreciate that.
I turn briefly to the proposals tabled by the noble and learned Lord, Lord Etherton, and the noble Earl, Lord Lytton. The noble and learned Lord made the point that an untidy situation will be left should his amendment not be adopted by the Government. The noble Earl, in his extremely technical presentation of the difficulties and intricacies of leases on big developments, has also shown very clearly the further unfinished business that the Bill by no means addresses. Because of my own interest in the Building Safety Bill, I picked out his suggestion that that Bill—in its current form, at least—could put on to property owners obligations that they will no longer be funded to support should various scenarios sketched out by the noble Earl come to pass.
The Minister’s initial response was that he could not accept Amendment 5; I take that to mean that neither does he accept the arguments that the noble Earl has just presented to your Lordships’ House. It seems to me that, if not here then at some later stage, he will have to answer and have properly investigated the question of whether the Building Safety Bill, if enacted in its present form, would lead to an unacceptable outcome because it would mean that the obligation to inspect, certify and rectify would be placed on the shoulders of a person or body without the means to do it.
The Minister has very helpfully said that he will consider the practical consequences outlined by the noble Earl in relation to Amendment 35. I will be very interested to see how that proceeds. He gave us a little hint that something might come up at a later stage of the Bill. I hope that that will be the case.
In conclusion, I say only that the Minister has been presented with strong evidence from every side that this is an incomplete Bill. It does not tackle the whole problem even in terms of its own limited reference point. I am grateful, as I think the whole House will be, that improvements are being made, but further improvements are needed and the urgency of proceeding to the second stage of leasehold reform is underlined every time one of your Lordships contributes to this debate.
Lord Lennie (Lab)
My Lords, the amendments in this first group, like most that have been tabled on Report, are technical amendments that do not alter the central provisions of the Bill but none the less aim to improve its application. Amendments 1, 2 and 38, each tabled by the Minister, deal with the definition of “regulated leases”. Specifically, they exclude leases of multiple dwellings, with Amendment 2 adding that a regulated lease is considered such only
“if it is granted for a premium”.
Can the Minister confirm whether there have been any impact assessments or informal consultations on the application of these changes?
Amendment 5, tabled by the noble Earl, Lord Lytton, probes the relationship between the Bill and “large and complex buildings”. He gave a large and complex explanation of his amendment. In there somewhere, I think he said that the commonhold might present a solution to the complex problem raised, but it is probably a little more difficult than that. These Benches fully support the removal of ground rent for all leaseholders, but I hope the Minister can confirm what support and engagement are ongoing with this impacted group.
The noble and learned Lord, Lord Etherton, has probed the provision on “deemed surrender and regrant”. I look forward to further clarification from the Minister on this as well—to tidy up the somewhat contradictory nature of the legislation in Clause 1(4) and Clause 6, as the noble and learned Lord explained.
Lord Greenhalgh (Con)
I thank noble Lords for their ongoing engagement and for the substantive points raised. I want to pick up on the issue raised by the noble Earl, Lord Lytton, of orphan freehold syndrome, in particular with regard to complex leases. I point out that leaseholders can collectively exercise the right to manage; they can appoint a managing agent to discharge the stewardship function that the noble Earl outlined.
The noble Lord, Lord Lennie, asked whether we carried out an impact assessment for the two technical changes, which really preserve what is happening today and were not meant to be captured by the provisions of this narrow Bill. We have not carried out any impact assessments. We are looking to continue a practice that we see as being sensible, on occasion. It was never meant to be captured as part of this Bill, so it is not something that requires a full impact assessment as such.
Once again, I commend Amendments 1, 2 and 38 in my name. These changes address important points raised by noble Lords in previous debates on the Bill. I thank noble Lords for recognising that they do so. I think they will agree that they improve the legislation—indeed, as a direct result of the scrutiny in this House—and that it will not have effects beyond those intended. I have listened carefully to the noble Earl, Lord Lytton, on his two amendments; I remain of the view that Amendment 5 is inconsistent with the intent of the Bill and that the case for Amendment 39 needs further consideration.
The Deputy Speaker (Lord Brougham and Vaux) (Con)
I have received a request from the noble Baroness, Lady Greengross, to speak after the Minister.
Baroness Greengross (CB) [V]
My Lords, can the Minister confirm that the definition of rent in the Bill is not intended to include other fees and charges, such as event fees and indexed service and management charges, which the Law Commission has concluded play a key role in supporting consumer choice in the UK retirement community sector? Do the Government still intend to implement the Law Commission’s recommendations in this area?
Lord Greenhalgh (Con)
My Lords, I can confirm that the definition of rent does not include the items that the noble Baroness, Lady Greengross, mentioned. I cannot state, at this stage, exactly how we will take forward the legislation for the next stage beyond the measures that we have already announced, which are to make enfranchisement easier, to adopt full-throated commonhold—we have already created a commonhold council—and to look at issues around the right to manage, but I am sure that we will be able to give the noble Baroness a response in due course, and that will play a part in the next stage of reform.
Lord Greenhalgh
“(aa) it is granted for a premium,”Member’s explanatory statement
This amendment provides that a lease will only be a regulated lease if it is granted for a premium. “Premium” is defined in Lord Greenhalgh’s first amendment to Clause 22, page 13, line 28.
The Deputy Speaker (Lord Brougham and Vaux) (Con)
We now come to the group beginning with Amendment 4. I remind noble Lords that anybody wishing to press this or anything else in this group to a Division must declare that in debate.
Clause 2: Excepted leases
Amendment 4
Lord Greenhalgh
Member’s explanatory statement
This amendment, with Lord Greenhalgh’s second amendment to Clause 22, page 13, line 28, allows the Welsh Ministers to make regulations under Clause 2(6)(b) in relation to premises in Wales.
Lord Greenhalgh (Con)
My Lords, all the amendments in this group relate specifically to Wales. This legislation applies to Wales as well as England, and it is our intention that it works in the best way possible for leaseholders in both England and Wales. We have been working with colleagues in the Welsh Government to understand how the Bill might impact leaseholders in Wales. I take this opportunity to thank Ministers and officials within the Welsh Government for their constructive engagement on the legislation.
Amendments 14 to 24, 45 and 46 make a common-sense change to the legislation that I hope all noble Lords will agree is appropriate. They would see breaches in Wales taken to the relevant residential property tribunal—the leasehold valuation tribunal—instead of the First-tier Tribunal. These are pragmatic amendments, and I hope that they will have support of noble Lords from across the House.
The other amendments in this group confer powers on Welsh Ministers that would, as the legislation is currently drafted, be exercised by the Secretary of State. We have carefully considered which of these powers it would be appropriate to confer and which should be restricted. For instance, we share the concerns that my noble friend Lord Young of Cookham raised at Second Reading about the potential for different commencement dates in England and Wales. This would cause unnecessary confusion for both leaseholders and developers working in both jurisdictions. However, there are areas where we believe that powers should be given to Welsh Ministers to allow them to align these reforms with the housing policy that they are pursuing for Wales.
First, Amendment 4, read with Amendment 40, would give Welsh Ministers the power to update definitions of excepted leases in relation to community housing. This would give the Welsh Government more flexibility and allow them to ensure that this legislation is fit for the purpose of Welsh community housing schemes, including work related to co-operative housing. These amendments recognise the importance of the devolution settlement and are intended to facilitate the Welsh Government in exercising their powers in relation to housing policy.
Secondly, Amendments 11 and 12, read with Amendment 40, would allow Welsh Ministers to increase the size of the penalty in line with changes in the value of money. This would allow them to ensure consistency of approach with other penalties in their competence. For example, they could increase the penalties for breaching the provisions of this Bill in line with increases to other housing-related penalties set by the Welsh Government, even if the UK Government decided not to increase the penalty in England. Conversely, the Welsh Government could decide not to increase penalties even where they were raised in England. However, it is important to note again that any increase, whether in England or in Wales, would only be in line with inflation. It is therefore unlikely that we would see a large gap open up between the levels of penalties in the two jurisdictions.
Amendment 13 would enable the Welsh Government to produce their own guidance for enforcement authorities to achieve the best fit with the Welsh context. This recognises that the Welsh Government’s understanding of the different local authority structures in Wales would ensure the effective implementation of this legislation there. The Welsh Government would also ensure that the guidance is translated into Welsh. We will, of course, work closely with the Welsh Government to ensure consistency across all guidance on enforcement.
I mention at this point that we no longer intend to move Amendments 31 to 34, 36 and 37, related to conferring the powers for Welsh Ministers to make consequential amendments in relation to the Bill. As noble Lords will know, consequential amendments are essential in ensuring consistency across legislation. While we have made every effort to identify where existing legislation needs to be updated in drafting the Bill, we need to ensure that further changes can be made when needed.
Not moving these amendments today does not mean that we are no longer seeking to provide Welsh Ministers with the appropriate powers. However, following discussions late last week with the Welsh Government, we both agree that further engagement is required to ensure that we achieve the right result in setting out how Welsh Ministers and the Secretary of State should exercise their respective powers under Clause 20. To that end, we intend to continue our constructive discussions over the summer and reach an agreeable position to bring forward any appropriate amendments at a later stage. The Welsh Government want to ensure alignment of this legislation, including within the context of their ongoing codification of Welsh law. Our continued joint working should ensure that this can be achieved.
Amendment 35, the final amendment in this group, provides that the default procedure for regulations made under the Bill by Welsh Ministers is the negative procedure.
Taken together, the amendments in this group will ensure that the Bill works in the Welsh context. They recognise the interconnected nature of property law and housing policy and give reasonable powers to Welsh Ministers to adapt this legislation to ensure the best fit for Wales. The amendments that we have not moved will continue to be discussed and do not have a significant impact on the operation of the Bill as currently drafted. I beg to move.
Lord Lennie (Lab)
My Lords, I welcome these technical amendments to recognise the role of the Welsh Government in these matters. While I will not go through each in turn, I would appreciate clarification on a few broad points.
First, the Government stated that provisions are not within the legislative competence of the Senedd Cymru. Can the Minister confirm whether the Government received any advice to the contrary, and whether this was anything to do with the decision to withdraw the amendments that were originally scheduled? Secondly, why were the amendments not included in the initial draft of the Bill? Thirdly and finally, can the Minister detail how the Government have engaged with both the Welsh Government and the wider Senedd during the passage of the Bill?
I am sure the Minister will agree that the principle of devolution has become a cornerstone of our modern democracy; that is exactly why I welcome these amendments. I look forward to clarification on the questions that I have put to the Minister.
Lord Greenhalgh (Con)
My Lords, I will have to write to the noble Lord on exactly what occurred. I know that this issue raised its head only very late last week. I am happy to outline that and put a copy in the Library in response to those questions.
We want to ensure that this legislation works for both England and Wales. This group of amendments achieves this by giving certain powers to Welsh Ministers that would otherwise be exercised by the Secretary of State. We have worked closely with the Welsh Government on this issue and I hope that these amendments will have your Lordships’ support.
The Deputy Speaker (Lord Brougham and Vaux) (Con)
We now come to the group beginning with Amendment 6. Anyone wishing to press this or anything else in the group to a Division must make that clear in debate.
Amendment 6
Lord Mackay of Clashfern
“Leases with an option of redemption
(1) In this Act a lease with an option of redemption means a lease which meets the following conditions—(a) it is a long lease of a dwelling,(b) it is in force on the “relevant transition date”, and(c) it is not an excepted lease.(2) The “relevant transition date” is the day on which this section and the other relevant provisions of this Act come into force in relation to leases of that kind.(3) After the relevant transition date the tenant has an option to pay a capital sum to the landlord, on payment of which the rent payable under the lease shall be a peppercorn rent.(4) The capital sum in subsection (3) shall be calculated in accordance with a formula specified by regulations made by the Secretary of State.(5) The option to pay a capital sum to the landlord set out in subsection (3) may only be exercised within two years of the relevant transition date.”
Lord Mackay of Clashfern (Con)
My Lords, this amendment repeats one I put forward in Committee. It is obvious that the Government’s policy suggests that the ground rent arrangements that apply at the moment are unfair to many people. This Bill prevents that kind of arrangement being made for the future but does not cover many people suffering from the present disadvantage.
It has been made clear to me by the Minister—indeed, fairly clear from the start—that dealing with the existing position is quite complex. The Competition and Markets Authority has dealt with it, and we have seen some arrangements that have come out of that. I was particularly pleased to notice that one at least of these arrangements looked quite like what I had proposed in the new clause in Amendment 6—paying off what remained of the obligation according to some formula.
I move this amendment only to emphasise the need for early implementation of the next stage. I am sure that the Government wish to move quite quickly, but I think we need as a House to make sure that that is made quite clear to the Government. I know that among the other proposals is one to make it easier to move to commonhold. Long ago when I was Lord Chancellor, I was keen to promote the idea of commonhold, because I had been brought up under a system of tenement property where people owned their own property. I was keen to seek to avoid the idea of leasing all the property. Of course, commonhold was difficult, but it has come in as a reasonable proposal now, and I would be very keen to see it being easier to get there than it has been in the past.
I very much welcome what the Government are proposing in this area. I am supported very much in that by my noble friend Lord Young of Cookham who did the much more difficult task of tabling a very full amendment in Committee for dealing with the matter. I left the main difficulty with the Minister, which I think is always quite a wise thing to do.
I simply move this amendment for the purpose I have mentioned and do not propose to insist on it at all.
Lord Berkeley (Lab)
My Lords, I support the amendments in this group and I am grateful to the Minister for finding the time to have a meeting with me. It was very helpful.
I shall come on to another amendment I have later. For this group, the noble and learned Lord, Lord Mackay, mentioned the need to speed things up. I entirely support that. We should get the rest of the Law Commission’s report on the statute book as quickly as possible. The noble and learned Lord’s amendment and that from my noble friend Lord Lennie are fundamental in trying to, shall we say, stem the tide of very unfair practices that seem to have developed in some parts of the market. I do not know how widespread it is, and I am quite surprised that the CMA has not been more helpful because its role, after all, is to look after the interests of consumers. Sometimes I feel that it possibly does not do that, but we can discuss that another time.
I have the pleasure of being on your Lordships’ Built Environment Committee that has just started one inquiry—out of two—into housing. At our meeting this morning, I was struck by three of the witnesses all saying that security of tenure was one of the biggest problems in housing. Whether it is leasehold or rental, it does not really matter very much. It is important to understand that people need to have some comfort that they can continue to live where they are living if they want to, and that the amount that they pay cannot go shooting up because of the wishes of the owners or other people involved in a way that could not have been foreseen when they took out the lease. It is not good when people are locked in—there are many press comments about it—and cannot sell. What do they do? That is before you get into the problem of cladding, which again is outside this discussion.
I am not sure whether my noble friend’s amendment or that of the noble and learned Lord is the best one. They both try to find some way of providing financial comfort to those who have been caught in this sudden upsurge—to me anyway—of increasing ground rents or other similar charges.
When we do these stages, it is funny that the Minister answers before the amendment has actually been proposed—but that is another thing we will get to. I look forward to my noble friend speaking on this matter, as he is much more knowledgeable than I am on it. I shall also be very interested to hear what the Minister has to say. It is really important that something like this is done very quickly, long before the next stage of the Law Commission’s report becomes a Bill.
The Earl of Lytton (CB) [V]
My Lords, I am largely supportive of this group of amendments, particularly the one moved by the noble and learned Lord, Lord Mackay of Clashfern. It always seemed to me that some of these clauses, particularly relating to escalating ground rents, were unfair, with hidden implications that were not apparent to purchasers at the time when they were entered into. The CMA intervention is welcome but the ongoing blight continues. This is certainly an evil that causes me to support this amendment very much.
I also support Amendment 9. This seems to be a logical provision against pre-emption and creates, as I see it, greater transparency, which really should be the hallmark of landlord/tenant relationships in this area.
It is unfortunate perhaps that I am speaking before Amendment 26 has been spoken to. I see it as potentially retroactive, and think it might remove the value of an asset without fair compensation. In its specific scope, it would not distinguish between a fair and reasonable ground rent and one that was flagrantly unfair. I do not in any way defend leasehold interests as such, but if we go down this road it has much wider public interest and property law implications.
Again with Amendment 30, I would have liked to have spoken after the noble Lord, Lord Stunell, whom I believe will speak to it, but, from a technical standpoint, the question of rent is a payment that in this instance the tenant makes to the landlord for the bits of the property which exist but which are not within the tenant’s specific demise under their leasehold. It is not a service charge. Are we at risk of getting rent and services provided for rent confused—in other words, the use of property as opposed to a tangible benefit in terms of the service charge? In general, however, subject to those points, I support this group of amendments.
Lord Stunell (LD)
My Lords, I will speak to Amendments 7, 8, 9 and 30. I will focus most of my remarks on Amendment 9, but I cannot speak without first saying that the amendment tabled by the noble and learned Lord, Lord Mackay of Clashfern, which I see as essentially introducing an early buy-out option for existing leaseholders, is the next necessary step and should have been endorsed by the Minister and incorporated in this legislation. It is yet another of the unfinished bits of business dogging our debates on the Bill. Like others, I am looking forward to Amendment 26 being presented by the noble Lord, Lord Lennie, which, as far as I understand its meaning and intention, has essentially the same purpose of moving forward the implementation of leasehold reform for that cohort of existing leaseholders who will be left out of this legislation. As such, in principle, we support that strongly.
Amendments 7, 8, 9 and 30, tabled by my noble friend Lady Grender and myself, are various alternative approaches to ensure that if the limited circumstances of this Bill are as far as the Minister is prepared to go, it is at least not a cause of exploitation of existing leaseholders who may be very close to agreeing an informal lease extension. The process of informal lease extensions is a well-accepted norm in the leasehold industry and, as was discussed extensively at previous stages of this legislation, one which comes into play when the existing lease is within sight of its end. That may be some distance away but nevertheless the value of the lease is declining rapidly, and perhaps its mortgageability on resale is compromised because there is not a sufficient existing term of the lease. If a completely new lease is not to be entered into, an informal lease extension may be negotiated between the leaseholder and the proprietor.
The noble Earl, Lord Lytton, described Amendment 9 as an anti pre-emption provision. Perhaps his three-word soundbite says it all. The risk at the moment is that an owner—or, should we say, one of the less-scrupulous landlords—may see this as an opportunity to preserve the value of his asset by offering an informal leasehold extension on terms which would be applicable under the current legislation now to pre-empt the possibility of that extension value declining to nil once the new legislation comes into force.
The Government have set their face against either of the approaches set out by the noble and learned Lord, Lord Mackay of Clashfern, at least at this stage, and I suspect that they will strongly resist the amendment proposed by the noble Lord, Lord Lennie. That is a pity and comes despite the evidence that has been put on the table by the Leasehold Knowledge Partnership and the examples given by my noble friend Lady Grender in Committee, which were referred to extensively at Second Reading. That leaves precisely the problem that I have outlined. An informal leasehold extension may very well be useful to both parties when the leaseholder is shortly to sell or is making arrangements prior to disposal, but clearly it is dangerous if the leaseholder simply wants to continue their lease.
It is also dangerous if the condition for entering negotiations is that the lawyers will be appointed by the owner, and it is dangerous if the new terms which are inserted into that leasehold extension are not drawn properly to the attention of the leaseholder. The evidence shows that it is not unusual for escalator clauses to be built into those leasehold extensions, which are not transparent and not brought clearly to the notice of the leaseholder who is going to sign. The risk is that unscrupulous landlords can see very clearly that, after Royal Assent, their golden goose will be stuffed. If I can mix my metaphors, they have an incentive to offer new lamps for old when it comes to extensions. To offer informal leasehold extensions to unsuspecting leaseholders locks them into a new, unfavourable set of terms when, if they had waited, under the full enactment of the Bill they would have been eligible for its new provisions limiting the ground rent to a peppercorn.
We have tried to fix this statutorily. Amendments 7 and 8 set this out in different ways, but Ministers resisted our efforts strenuously. We have had discussions with the Minister, which I have very much welcomed. He has been very generous with his time and with his officials’ time in working on this problem. Amendment 9 is therefore really quite modest in its intent and its impact. It simply proposes that landlords should have an obligation to alert their leaseholders in advance of these changes coming into force of informal leasehold extension terms being altered by this new legislation. It is a proportionate safeguard which is not onerous on landlords but gives leaseholders a clear sight of the forthcoming changes before they commit to less favourable terms under the existing law. It does not prevent those to whom the balance of advantage still lies with a speedy signature on the existing terms for an informal leasehold extension from choosing to do so, but it seeks to protect the unwary from making a costly mistake which ultimately, as in one or two of the examples which my noble friend Lady Grender brought to the House in Committee, may lead to them losing that property entirely.
I intend to test the opinion of the House on Amendment 9 when the appropriate moment arises.
Lord Lennie (Lab)
My Lords, I will speak primarily to Amendment 26 in my name, which would ensure that the Government bring forward legislation to end ground rent for existing leaseholders. I also add my thanks to the Minister for making himself and his officials available and for seeking to explore whether there is any chance of a solution to this. There was not, although he described this problem as “a top priority for the Government”. That is something that the noble Lord, Lord Young, heard when, in the other House, he was trying to deal with the question of hereditary Peers in this place. He was persuaded not to move an amendment by the then Government and was promised that legislation would be forthcoming. That was 20 years ago.
Millions of people are trapped in these contracts and the Government must end the feudal system for them as well as for new leaseholders. That is the whole purpose of this amendment—to make life equal for all leaseholders. Almost 5 million properties in England are leasehold dwellings—around one in five of all homes —and the House will be aware that many of them, if not all, are seeing their ground rent increase at incredible rates. The noble Lord, Lord Blencathra, memorably described this in Committee as a legal racket. That is what it is: it leaves a loophole available which sees rents increasing without any explanation, for no service whatever to leaseholders. It is creating immense misery and financial difficulties and there is no reason for the Government to maintain the system when they have already acknowledged how outdated ground rent is.
That is why the amendment would ensure that the Government bring forward early legislation within 30 days to end the practice once and for all. The amendment of the noble and learned Lord, Lord Mackay, identifies the same issue and tries to deal with it, but I am afraid I do not believe it goes far enough. Ground rent must be ended for leaseholders, including those in existing arrangements, and for that reason I will be testing the opinion of the House on Amendment 26 at the appropriate time.
I confirm the support of these Benches for Amendment 9 in the name of the noble Lord, Lord Stunell, and I also welcome other amendments he has tabled to probe aspects of these provisions. Amendment 9 raises the crucial point that leaseholders must always be informed of arrangements, and I hope the Minister will accept that point. With that, however, I will leave it to the Minister to respond.
Lord Greenhalgh (Con)
My Lords, several issues have been raised in relation to existing leaseholders in previous debates and engagements, and I thank noble Lords for their close examination and engagement with the Government on these issues. However, as I have stated previously, this Bill is deliberately focused tightly on only new residential long leases.
As noble Lords will know well by now, the Government are approaching their leasehold reform programme in two stages. First, the ground rent Bill before us today is intended to look ahead and transform the economic relationship between leaseholders, freeholders and developers. A comprehensive leasehold reform Bill will follow during the course of this Parliament to end unfair practices in the leasehold market, ensure that consumers are protected from abuse and poor service, and reinvigorate commonhold.
Noble Lords are understandably keen to know precisely when this second and more comprehensive leasehold reform Bill will be introduced. They will of course understand that scheduling of legislation is a complex process, and that consideration must be given to the Government’s wider legislative agenda. It is therefore simply not possible to make such concrete commitments at this stage. However, your Lordships should rest assured that the Government have no intention of going slowly when it comes to leasehold reform, which is one of the Secretary of State’s top priorities.
Amendments 6, 7, 8, 26, and 30 ultimately seek to widen the scope of the Bill so that it applies to existing leaseholders. Amendment 6, moved by my noble and learned friend, Lord Mackay of Clashfern, would allow existing leaseholders to pay a capital sum to reduce their ground rent to a peppercorn. As I have laid out in previous debates on the Bill, while we are sympathetic to the aims of this amendment, the Government do not believe that it is necessary. Existing legislation already allows leaseholders of flats to reduce their ground rent to a peppercorn on extending their lease through the statutory route. Meanwhile, leaseholders of houses can buy the freehold of their property and so eliminate ground rent altogether.
In January of this year, the Government committed to allowing existing leaseholders to buy out their ground rent without the need to extend the term of their lease: for example, where their lease is already long. For the purposes of calculating the premium payable for this, the ground rent will be capped at 0.1% of the property value, making it significantly cheaper for leaseholders with onerous ground rents. We will also introduce an online calculator to simplify the process of enfranchisement and ensure standardisation and fairness. We believe that these measures will achieve broadly the same effect as my noble and learned friend’s amendment, so I cannot accept it today.
Amendment 7, in the name of the noble Baroness, Lady Grender, and the noble Lord, Lord Stunell, would restrict ground rent for existing leaseholders who enter into non-statutory lease extensions to 0.1% of the value of the landlord’s interest in the dwelling. It is important to state for the record that the peppercorn requirement will apply to the newly extended portion of the lease once an extension has been granted under the voluntary route. In addition, for the period of the lease that reflects the term that remained on the original lease, the ground rent cannot be higher than in that lease. There will be no opportunity for a landlord to use the point of lease extension to increase ground rent.
I have discussed Amendment 8 with the noble Baroness, Lady Grender, and the noble Lord, Lord Stunell, and we are of course all of the view that we do not wish to see exploitation of this legislation. However, it cannot be right that we take away the option of a non-statutory lease extension which would enable the leaseholder to pay a lower premium in return for continuing to pay some ground rent on the remaining term of their lease, with limitations as set out in the Bill. Where a leaseholder wishes to follow this route, Clause 6 allows for a monetary ground rent to continue to be paid on the remaining part of a lease—that is, the “pre-commencement lease”. This can be common where the leaseholder wishes to agree this approach with their landlord in return for a reduced premium payment.
The “voluntary” or non-statutory process is a more flexible route to lease extension and can in some cases actually be more cost effective and quicker for both the leaseholder and the freeholder. Naturally, therefore, as I am sure we would all agree, we do not want to remove that option from the Bill. I can reassure the House that as part of taking forward the Law Commission’s recommendations on leasehold enfranchisement we will be considering the matter of non-statutory extensions further, and when the time comes we will again seek input from noble Lords on this important issue.
Amendment 9 is also in the name of the noble Lord, Lord Stunell, and the noble Baroness, Lady Grender. Attempting to amend the Bill as proposed in the amendment will not guarantee the outcome that the noble Baroness, Lady Grender, wishes to see, and the Government continue to consider this issue a matter of implementation detail rather than something to change on the face of the Bill. Amendment 9 would require all landlords to inform leaseholders of the changes introduced by the Bill before entering a formal or informal renegotiation or extension of an existing lease. Where a landlord failed to do so, they would face a penalty of between £500 and £30,000. However, the drafting of this amendment means that it would cover only the period from Royal Assent to the commencement date.
I appreciate that consumer rights and awareness is of particular concern to the noble Baroness, Lady Grender, and indeed the noble Lord, Lord Stunell, and I would be very keen to work with them and others on the issue of implementation. We have concerns that, while we recognise the need to ensure that leaseholders are aware of their rights and are not rushed into a lease extension before this Bill can take effect, we also need to ensure that any penalties are fair, justified and as far as possible are not incurred accidentally. Were the fines set out in the amendment to apply immediately upon Royal Assent, there is limited time to ensure that landlords are aware of the requirements and could end up receiving a fine for extending a lease in line with a request from a leaseholder.
We agree with the principle of this amendment, and I have discussed with the noble Baroness that we would like to work with her on the implementation of the Bill. This will include, for example, provision of comprehensive information to conveyancers, landlord representatives and leaseholder groups to ensure awareness of the new ground rent limits.
I have had constructive conversations with the noble Lord, Lord Stunell, and the noble Baroness, Lady Grender, about how we might get the word out about these upcoming changes. Several solutions were proposed and I was particularly taken by the noble Lord’s suggestion about engagement with the legal profession to ensure that it can best advise its leaseholder clients. I have asked my officials to consider how we might take forward these proposals. This is important not just so that leaseholders are aware of their rights but so that landlords know what is required of them and do not inadvertently receive a large fine. However, we do not believe that financial penalties should apply as proposed by the noble Lord’s amendment, and I hope that he will not move it.
Amendment 30, again in the names of the noble Lord, Lord Stunell, and the noble Baroness, Lady Grender, would put a requirement on landlords to write to their leaseholders to justify the payments by reference to the expenses to be met from the ground rent, or else to confirm that the ground rent is not used to pay any expenses. We agree that transparency is vital in the leasehold sector. However, we do not believe that this is the appropriate way to ensure that existing leaseholders are better informed about ground rents. As noble Lords know, ground rents are charges paid with no clear service in return. Most leaseholders will be aware of this and it is unclear what benefit they would get from receiving a letter from their freeholder or managing agent to that effect.
However, we are working to prepare the sector and leaseholders alike, assessing where better advice and support can be provided through ongoing regular engagement with the sector and our delivery partners. However, I acknowledge the broader concerns raised by the noble Baroness, Lady Grender, and the noble Lord, Lord Stunell, in their Amendments 7, 8, 9 and 30 about pre-commencement leases and the consumer awareness challenges in the run-up to this legislation coming into force. It is a noble intention, and we are agreed that leaseholders should have the right information to hand when making important decisions about whether to extend or vary their lease.
I am grateful to noble Lords for raising their concerns about the implementation of this Bill. I understand that it is noble Lords’ desire, as it is mine, to improve the Bill and see it delivered as smoothly as possible. That is why my officials are working carefully to craft an implementation plan that takes account of these concerns, as outlined by the noble Lord, Lord Stunell, and the noble Baroness, Lady Grender, to do what we can to ensure that leaseholders are aware that this change in the law is coming and that they are equipped with the information they need to make the decision that is right for them.
This is a good opportunity to inform your Lordships that I can today commit to the House that the commencement date for this legislation will be within six months of Royal Assent, an issue which my noble friend Lord Young raised on numerous occasions. This issue was raised multiple times at previous stages and, while writing the date into the Bill would be inappropriate for reasons that I hope noble Lords will understand, I am pleased to make that commitment today.
More broadly on consumer awareness, the Government are pleased to hear the recent update published by the CMA on 23 June, whereby settlements secured with a leading housing developer and an investor in the leasehold sector have committed them to changes that will benefit thousands of leaseholders by refunding homeowners who saw their ground rents double, and allow leaseholders to buy the freehold of their properties at a discount. One of those companies has also committed to extending the timeframe that prospective buyers are given to exchange contracts after reserving a property, and to providing people with more up-front information about the annual costs of buying a home.
I am sure that noble Lords will also be pleased to hear that that includes ensuring that all marketing materials provided to consumers before the signing of a reservation agreement clearly and prominently state a greater level of information of benefit to the leaseholder—for example, the tenure of the property, the ground rent payable and any circumstances that may potentially lead to an increase in service charges. These landmark commitments will ensure greater transparency for leaseholders, thereby helping future buyers to make informed decisions without feeling pressured by time constraints. The CMA has made excellent progress, and that is just the start. We support the ongoing investigation and believe it will send a clear signal to others in this sector to follow this lead or face legal action.
Finally, Amendment 26, tabled by the noble Lord, Lord Lennie, would require the Government to produce draft legislation within 30 days to reduce ground rents to a peppercorn in existing long residential leases. I have listened carefully and appreciate the noble Lord’s sense of urgency in wanting to address issues faced by existing leaseholders. I can reassure the House that the Government are working at pace to bring these reforms forward. However, I must once again state that arbitrary deadlines are not useful in this context. It is, frankly, not possible to publish a Bill to the timescale proposed by that amendment. The reforms we are planning are a once-in-a-generation shake-up of the leasehold system, with the effects being felt for years to come.
I have outlined some of the changes, including on enfranchisement, transparency, a commitment on commencement and the ongoing work of the Competition and Markets Authority. I hope that the information I have given satisfies noble Lords that we take the issues facing existing leaseholders very seriously and that we are working at pace to deliver the improvements that all noble Lords here today want to see. As they will no doubt appreciate, this ambitious reform programme is complex and has many interdependencies. Therefore, while being mindful of the need for progress, it is important to take the time required to get it right. It is for these reasons that the Government cannot accept these amendments and I urge that they be withdrawn or not moved.
Lord Mackay of Clashfern (Con)
My Lords, I am greatly obliged to the Minister for his answers and, so far as I am concerned, the commitment to bring the legislation into effect is an important one that we were given some time ago. So far as my amendment is concerned, I am keen that the new proposals come forward quickly but their nature is such that it would be impossible to formulate them in a clear timescale of the kind suggested. However, that is for others say. I beg leave to withdraw my amendment.
Lord Stunell
“Duty to inform the tenant
(1) Before entering a formal or informal renegotiation or extension of an existing lease, the landlord must inform the tenant of the changes introduced by this Act, if the sections of the Act in relation to prohibited rent are not yet in force.(2) An enforcement authority may impose a financial penalty on a person if the authority is satisfied beyond reasonable doubt that the person has breached the duty in this section.(3) The amount of the financial penalty under subsection (2) is to be such amount as the authority determines but—(a) is not to be less than £500, and(b) is not to be more than £30,000.(4) This section comes into force on the day on which this Act is passed.”Member’s explanatory statement
This amendment would require landlords to let tenants know of the upcoming changes to ground rents to try and prevent lease extensions before the changes in this Bill are implemented.
The Deputy Speaker (Lord McNicol of West Kilbride) (Lab)
My Lords, we now come to the group consisting of Amendment 10. Anyone wishing to press this amendment to a Division must make that clear in the debate.
Clause 9: Financial penalties
Amendment 10
Lord Greenhalgh
Member’s explanatory statement
This amendment increases the maximum penalty that an enforcement authority may impose.
Lord Greenhalgh (Con)
My Lords, in constructing a penalty regime for any landlords who breach the provisions of this legislation, we wanted to set the penalty at a level that was proportionate but acted as a deterrent. As the average ground rent is around £250 per year, we felt that £500 would be a reasonable and proportionate minimum penalty. Once again, I remind noble Lords that this would be paid in addition to repaying the prohibited rent with any interest due, and that £500 is a minimum penalty amount. Breaches across multiple leases could also be penalised, resulting in heavy fines.
However, both at Second Reading and in Committee, noble Lords felt that the balance between proportionality and deterrence was not quite right. The noble Baronesses, Lady Grender and Lady Jones of Moulsecoomb, and the noble Lord, Lord Naseby, were among those who made very strong arguments that the proposed regime was set at too low a level to act as a serious enough deterrent to freeholders, particularly larger freeholders with high annual turnover. In addition, while local authorities should not design their enforcement strategy to function as a revenue stream, we have been clear that we believe that any penalty recovered through the enforcement process should cover the cost of that enforcement.
I have listened carefully to the arguments made in Committee in favour of higher financial penalties and considered the impact that changing these amounts would have. We have concluded that the maximum should be raised to £30,000 which, as some noble Lords may know, is in line with this Government’s Tenant Fees Act 2019. However, we intend to keep the minimum penalty at £500, in recognition that this is proportionate where, for example, a small freeholder charges a non-peppercorn rent.
For those noble Lords who think we are a soft touch, I note that this is the first example of a minimum penalty in leasehold law. This amendment will significantly strengthen the enforcement regime and further deter freeholders from attempting to breach this legislation. I beg to move.
Lord Stunell (LD)
My Lords, I enthusiastically welcome this amendment from the Government. I am very pleased that the Minister has seen the strength of the arguments put forward by noble Lords from all around the House on this issue. It is not just that the original figure would not have been a significant deterrent for those determined to carry on with bad practice. Worse than that, it was not going to be sufficient to fund or permit trading standards to carry out their enforcement duties. The enforcing body around the country is short of funds and staff, and a new burden placed on it to enforce this provision without the means to do so was a recipe for failure. I am delighted that the Minister has seen the compelling strength of the view that my noble friend Lady Grender and others advanced passionately and congratulate him on persuading his colleagues around government of the need to move forward on this as he has.
Lord Lennie (Lab)
My Lords, the sole amendment in this group increases the maximum penalty to £30,000 per lease, in line with other housing legislation—namely, the Tenant Fees Act. I am pleased that the Minister has brought forward this change following concerns raised in Committee, but I trust that the sum of £30,000 has not been decided purely based on precedent —not just because there is not a direct precedent to compare it to. The use of £30,000 penalties in this legislation will apply to freeholders, many of which are incredibly wealthy businesses. Does the Minister believe that £30,000 will be sufficient deterrent in such cases? As I said, I am concerned that this figure has been chosen because of the so-called precedent. Can the Minister dissuade us of that notion by confirming that an impact assessment has been carried out and, if so, tell us when it will be published?
We welcome an increase in the maximum penalty, but I am not entirely confident that it will be sufficient deterrent. I look forward to the Minister’s assurances.
Lord Greenhalgh (Con)
My Lords, I point out that the maximum penalty would apply per lease and, for highly complex buildings, that soon multiplies to a substantial amount of money, so we believe that we have got the balance right in meeting the need for deterrence while recognising that some freeholders are not in the class of those that own considerable amounts of property. The amendment should be broadly welcomed and will strengthen the enforcement regime as a result, responding directly to the points made at various stages of the Bill. I believe it significantly strengthens the legislation.
Lord Greenhalgh
“(9) The relevant authority may by regulations amend this section so as to change the minimum amount or the maximum amount.”Member’s explanatory statement
This amendment, with Lord Greenhalgh’s second amendment to Clause 22, page 13, line 28, enables the Welsh Ministers (instead of the Secretary of State) to make regulations changing the amount of the minimum and maximum penalties for breaches of Clause 3 in relation to leases of premises in Wales.
Member’s explanatory statement
This amendment is consequential on Lord Greenhalgh’s amendment to Clause 9, page 7, line 37.
Lord Greenhalgh
(b) the Welsh Ministers about the exercise of its functions under this Act in relation to a lease of premises in Wales.”Member’s explanatory statement
This amendment requires enforcement authorities to have regard to guidance issued by the Secretary of State in relation to enforcement action in England and by the Welsh Ministers in relation to enforcement action in Wales.
Lord Greenhalgh
Member’s explanatory statement
This amendment, with Lord Greenhalgh’s amendment to Clause 17, page 11, line 17, requires applications for the recovery of prohibited rent paid under a lease of premises in Wales to be made to a leasehold valuation tribunal (instead of the First-tier Tribunal).
Member’s explanatory statement
This amendment is consequential on Lord Greenhalgh’s amendment to Clause 13, page 9, line 24.
Member’s explanatory statement
This amendment is consequential on Lord Greenhalgh’s amendment to Clause 13, page 9, line 24.
Lord Greenhalgh
Member’s explanatory statement
This amendment and Lord Greenhalgh’s amendment to Clause 14, page 10, line 5 are consequential on Lord Greenhalgh’s amendments to Clause 13, and enable a leasehold valuation tribunal to order interest to be paid on amounts of prohibited rent that it orders to be repaid to the tenant under that Clause.
Member’s explanatory statement
See the explanatory statement to Lord Greenhalgh’s amendment to Clause 14, page 10, line 4.
Lord Greenhalgh
Member’s explanatory statement
This amendment, with Lord Greenhalgh’s amendment to Clause 17, page 11, line 17, requires applications as to the effect of Clause 7 on the terms of a lease of premises in Wales to be made to a leasehold valuation tribunal (instead of the First-tier Tribunal).
Member’s explanatory statement
This amendment is consequential on Lord Greenhalgh’s amendment to Clause 15, page 10, line 19.
Member’s explanatory statement
This amendment is consequential on Lord Greenhalgh’s amendment to Clause 15, page 10, line 19.
Member’s explanatory statement
This amendment is consequential on Lord Greenhalgh’s amendment to Clause 15, page 10, line 19.
Lord Greenhalgh
Member’s explanatory statement
This amendment is consequential on Lord Greenhalgh’s amendments to Clause 13.
Lord Greenhalgh
“(1) For the purposes of sections 13 to 16 and the Schedule, the “appropriate tribunal” is— (a) in relation to a lease of premises in England, the First- tier Tribunal;(b) in relation to a lease of premises in Wales, a leasehold valuation tribunal.”Member’s explanatory statement
This amendment defines the “appropriate tribunal” for the purposes of Lord Greenhalgh’s amendments to Clauses 13 to 16 and the Schedule.
Lord Greenhalgh
Member’s explanatory statement
This amendment corrects the drafting of Clause 17(b) to reflect the fact that the right to apply to a tribunal for a declaration as to the effect of the Bill on the terms of a lease does not extend to a tenant’s guarantor.
Lord Greenhalgh (Con)
My Lords, I will speak very briefly on government Amendment 25, which is a minor technical change to correct a small drafting error.
Clause 17 defines “tenant” for the purposes of Clauses 10, 13 and 16. Clause 16(1)(b) enables an enforcement authority to assist a tenant in an application as to the effect of Clause 7—that is, in regard to the effect of a term reserving a prohibited rent on the terms of a regulated lease. This amendment rectifies a discrepancy in the Bill, in that the assistance provided under Clause 16 would not extend to the tenant’s guarantor, as a guarantor does not have the right to apply for a direction as to the effect of Clause 7. This amendment ensures that there is no discrepancy between the clauses of the Bill. I beg to move.
Lord Lennie (Lab)
My Lords, obviously we welcome this amendment to the drafting error in the original Bill. Can the Minister explain briefly what the consequences would have been if it had not been identified? I mean briefly; I do not want a whole essay on the subject. Is there a risk that similar errors could be identified in other legislation which relates to guarantors?
Lord Greenhalgh (Con)
I thank the noble Lord for testing my knowledge of the consequences of a small technical amendment. I am just glad that we picked it up; I will have to write to the noble Lord on what the consequences would have been had we not done so. This happens from time to time. I am fairly new to the House but, when we find these errors, there are plenty of opportunities to correct them before the Bill receives Royal Assent.
Lord Lennie
“Ground rent for existing long leases
Within 30 days of the day on which section 3 comes into force (for any kind of lease), the Secretary of State must publish draft legislation to restrict ground rents on all existing long residential leases to a peppercorn.” Member’s explanatory statement
This amendment aims to ensure that the Government introduces further legislation to remove ground rent for all leaseholders, whereas the Act currently only applies to newly established leases.
Lord Lennie (Lab)
My Lords, I beg to move and wish to test the opinion of the House.
The Deputy Speaker (Lord McNicol of West Kilbride) (Lab)
My Lords, we now come to the group beginning with Amendment 27. Anyone wishing to press this or anything else in this group to a Division must make that clear in the debate.
Amendment 27
Baroness Pinnock
“Review of the financial impact of the Act
(1) Within 6 months of the day on which this Act is passed the Secretary of State must carry out a review of the financial impact of this Act on leaseholders.(2) The review must make a recommendation as to whether further legislation should be introduced to extend the ban on ground rents to existing long leases.(3) The recommendation in subsection (2) must take into account the potential financial impact of an extension of the ban on ground rents on those leaseholders and tenants who have been charged for the cost of fire remediation work.”Member’s explanatory statement
This amendment would require a review of the financial impact of this Act and make a recommendation as to whether a further extension of the ground rents ban could benefit existing leaseholders, especially those facing bills for fire remediation work.
Baroness Pinnock (LD) [V]
My Lords, I speak to Amendment 27 in my name and those of my noble friends Lady Grender and Lord Stunell. I draw the attention of the House to my relevant interests in the register as a member of Kirklees Council and a vice-president of the Local Government Association.
Amendment 27 asks that:
“Within 6 months of the day on which this Act is passed”
the Government
“carry out a review of the financial impact”
on leaseholders. Reviewing the impact of legislation is important, especially in instances such as these, where changes to an already complex situation are likely to result in unforeseen consequences—despite many noble Lords and the Minister doing their utmost to ensure that all aspects are fully considered. The amendment then goes further to ask that the review actively considers and makes a recommendation about “further legislation” —either for or against it.
Subsection (3) of the proposed new clause makes specific reference to those leaseholders and tenants who have been charged for “fire remediation work” consequent to the Grenfell tragedy. Noble Lords will notice that I am taking the opportunity provided by this Bill to raise again very grave concerns many of us have for those leaseholders and tenants who are, through no fault of theirs, at the heart of the cladding scandal.
The fact that up to 1.3 million households are at a very considerable risk of bankruptcy as a direct result of serious construction failings must never be allowed by decision-makers to remain unresolved. Leaseholders have done everything right and nothing wrong, yet they are being expected to pay for the failures of construction, developers and materials manufacturers.
I recognise that the Government have provided over £5 billion towards remediation but the total cost is anticipated to be over £15 billion—the vast proportion of which is being passed via so-called service charges to leaseholders. We are not talking about charges that are in any way affordable. For example, Pippa in Leeds has a bill for £140,000. The highest bill I have seen was reported in the latest article on this issue in the Sunday Times: a staggering £204,000.
Perhaps the Minister will be able to provide advice on how these leaseholders are to pay the bills that have landed on their doormats. He will be aware that a leaseholder’s major asset is their flat and that, currently, has no value. It is not only the costs of remediation that are pressing down on leaseholders, there are service charge increases—consequent, again, to the cladding scandal.
I have heard from a leaseholder today, who says: “I am knee-deep in service charge admin. I am being harassed with bills that I know are inflated and incorrect, and with huge penalties for late payment. No one should have to live like this. It takes a toll on every aspect of your life, and that is before consideration of planning bills.”
It is not only leaseholders who fear the worst. The Investors Chronicle has reported in the last two weeks that this may become the next PPI scandal. Flat sales are in decline. They affected flats are neither sellable nor mortgageable. Before long, the Government will have to take action to save leaseholders from bankruptcy and homelessness and the housing market in flats from collapse. This amendment simply asks the Government to take stock within six months and, in doing so, to be cognisant of the leaseholders whose dreadful plight I have described. The leaseholders have done everything right and nothing wrong, which is a phrase I cannot attribute to developers, constructors, material manufacturers or the Government, as the final regulator. Between them, they have responsibility for this absolute scandal.
I will listen carefully to the Minister’s response. However, if he is not inclined to accept this simple amendment, I give notice of my intention to seek the opinion of the House. I beg to move.
The Earl of Lytton (CB) [V]
My Lords, I welcome the opportunity to speak to the amendment just moved by the noble Baroness, Lady Pinnock.
I am a fan of what I see as post-occupation evaluation. I welcome the amendment for that alone. I would more comfortable if it did not just refer to leaseholders, because the whole dynamic—as regards the ongoing interaction between leaseholders, freeholders, management and so on—is ever moving. That needs to be seen in the round. It should include not just the financial matters referred to in the amendment but a more holistic measure in terms of the sense of place, security, ability to control or influence outcomes and user contentment. I suspect that the Government have a system anyway for reviewing the effects of legislation, but I ask whether that is frequent enough to meet the noble Baroness’s objectives. In general, I support the other amendments in this group.
The noble Baroness referred to the driver behind this being the tragedy of Grenfell. Although the process of evaluation and what has come out of it may be seen, in government terms, to be moving at lightning speed, it has not been nearly fast enough for leaseholders and those who pay service charges. The consequences of that have been amply exposed by the noble Baroness and are ongoing. This is truly a tragedy for many households, which have walked unknowingly into a situation created by the neglect of others. The auguries are not particularly good. The proposal, as I interpret it, to leave the power in the hands of leaseholders to claim—admittedly on a longer timeframe—against those who did not observe basic construction standards creates an almost insuperable hurdle.
It is appropriate that I pay tribute to those outside the House who have promoted the polluter pays principle. I know that this matter has been brought to the attention of the Government, and it would place the basic strict liability on those who failed to make the grade in construction standards. My question is: when are the Government going to act on it? I consider the matter of such importance that if the noble Baroness decides to test the opinion of the House, I shall be voting with her.
Lord Stunell (LD)
My Lords, this is a devastating case, again, of unfinished business. We have talked several times about unfinished business in respect of reforming the whole leasehold system. The noble Baroness, Lady Pinnock, has spoken with great passion about the need to deal with the unfinished business of getting the damaged blocks discovered since the Grenfell fire put back in a safe and workmanlike position. That is a terrible story, which is still unravelling and still producing—I think we can say—shock and amazement as the evidence comes out of the inquiry at Grenfell. As the noble Baroness, Lady Pinnock, said, it is not an isolated failure. I ought to have started by reminding the House that I was the Minister with responsibility for building regulations between 2010 and 2012, which was well before this but is nevertheless relevant.
There was a failure of regulation, a failure at every level of the supply chain, a failure of the designers and a failure of those responsible for monitoring progress. Of course, the fallout is not simply that one building was found to be dangerous and defective and burned at the cost of 72 lives, but that more than 400 other buildings have been found to be equally defective or worse. As is so often the case, once you begin to look, you see plenty else. The British Woodworking Federation estimates that 600,000 defective fire doors are installed in buildings in this country. In that context, it is good to know that the Government have come forward with a compensation scheme, allocating £5 billion. Perhaps the Minister can tell us whether the guidelines for applying for that compensation have yet been published. My last understanding is that they have not, but maybe he can bring some information to your Lordships’ House today.
It has to be right that this House considers the situation facing those leaseholders and, in so far as we can, safeguards their position. This is actually a very modest amendment; it calls only for a review within six months, not for the spending of government money, so there is nothing for Ministers to shy away from. It would simply make sure that this legislation, relevant to the ongoing tragedy of Grenfell and the ongoing battle that hundreds of thousands of leaseholders are facing with enormous bills—which the noble Baroness, Lady Pinnock, eloquently spelled out—cannot be passed by your Lordships’ House without serious consideration.
I know that the Minister has repeatedly found himself at the Dispatch Box having to say essentially the same thing: “This is not the time; this is not the place; this is not the right legislation.” We have to reply to him: “Well, when is the time? Where is the place? Where is the legislation?” We need to see some answers. Certainly, this is a matter we wish to press in the oncoming vote.
Lord Lennie (Lab)
My Lords, I will speak to Amendments 28 and 29, in my name, and welcome Amendment 27, moved by the noble Baroness, Lady Pinnock, and also in the name of the noble Lord, Lord Stunell.
Amendment 28 is intended to raise four issues, which I have focused on at previous stages of the Bill: lease forfeiture, transfer fees, redress schemes and enfranchisement. This amendment is intended to probe, and, while I will not introduce each issue again, I hope that the Minister can provide clarification in the following areas. On lease forfeiture, can the Minister confirm that legislation will be forthcoming to prevent possession being taken over small debts? On transfer fees, has the Minister made an estimate of how many freeholders are placing charges on the sale of properties? On redress schemes, will the Minister consider a trial for the most serious of leasehold abuses? Finally, on enfranchisement, what assessment have the Government made of the obstacles currently in place?
The intention of Amendment 29 is to raise the need for the Government to champion commonhold arrangements. The House will be aware that the Mayor of London is committed to furthering commonhold, and his manifesto pledged to trial the arrangements in London. Can the Minister confirm what support will be offered to the mayor as part of these pilots? Will he make a statement on the Government’s policy on commonhold?
Finally, I turn to Amendment 27, which calls for a review of the relationship between the Bill and those facing bills for “fire remediation work”. Unfortunately, the Government have again ignored those people during the drafting of this legislation. This Government’s continued mismanagement of the remediation work is one of their most shameful aspects. I hope that the Minister will use this opportunity to finally change track and at last deal with the issues of remediation costs being charged to leaseholders for building safety faults. Rather than another betrayal of their promises to leaseholders, we need legal protections to ensure that millions of pounds of building safety remediation costs are not passed on to innocent home owners and tenants.
Lord Greenhalgh (Con)
My Lords, this group of amendments calls for a variety of impact assessments to be produced. It is, of course, very important that we understand the impact that this legislation will have. That is why we have already produced an impact assessment, which I would encourage all noble Lords to read.
Amendments 27 and 28 would both require impact assessments relating to how this legislation would impact on issues facing existing leaseholders. As throughout the passage of the Bill, I understand noble Lords’ desire to assist existing leaseholders. Noble Lords will be well aware by this point that this is just the first of a two-part legislative programme, with further leasehold reform due later in this Parliament.
We have considered the impact of the Bill on existing leaseholders, and this is informing the process of policy development, ahead of future legislation. This is within the broader context of the important work being done by the Competition and Markets Authority to address unfair terms and mis-selling. As discussed previously, we are committed to measures to help existing leaseholders through significant changes to the enfranchisement valuation calculation, making it cheaper for many leaseholders to extend their lease, buy their freehold or buy out their ground rents.
Noble Lords can rest assured that my officials have been listening very carefully to all of the points that have been raised during the debates on the Bill. However, producing detailed impact assessments is likely only to distract from the important work that is being done on leasehold reform.
The noble Baroness, Lady Pinnock, again raised historic fire and building safety remediation costs. I was struck by the very high bill of around £204,000 per leaseholder that was quoted. This may be a building in Manchester, but I would be very keen to know further details and to understand the approach that has been taken. Very often, when I have inquired and understood the situation, I have found that the most proportionate response is not necessarily considered by the building owner—but I would be very interested to look into that case in more detail.
In response to the noble Lord, Lord Stunell, I say that we are very aware of the polluter pays Bill and the work that is being led by Steve Day of RAQ. We are looking at it very carefully to see whether it could further enhance the proposed Building Safety Bill. Of course, we have already looked at strengthening redress by extending the statutory limitation period in the Defective Premises Act 1972 from six to 15 years, applied retrospectively. This could provide further support to ensure that it is the polluter who pays. We are looking at that very carefully, as I said.
Also in response to the noble Lord, Lord Stunell, on the Building Safety Bill, I say that the first £1 billion of this has of course been in play and spent. In fact, the fund is very much overcommitted. Further details around the further £3.5 billion will be published in September, but works are not being delayed because of that. I am happy to provide assurance that the further expenditure will therefore be outlined at that stage.
Baroness Pinnock (LD) [V]
My Lords, I thank all noble Lords for their contributions and support on the very important issue I have raised again today. I particularly thank the noble Earl, Lord Lytton, for his supportive contribution. He is a recognised expert on these issues, and he expanded on my points. He has raised them before, and I certainly think the Government need to listen carefully to what he has to say.
The Minister has been handed the impossible task of defending the indefensible. Unfortunately, he always has to rely on the fact that future Bills will help solve this problem—but the future will never come soon enough for leaseholders struggling now. They have these bills now and will have to pay them by the end of the year.
As my noble friend Lord Stunell said, this is just a modest amendment. All it seeks is a review of the Bill’s impact in six months, with special reference to leaseholders who have been adversely and gravely affected by the consequences of the Grenfell tragedy.
I apologise to the House for not having moved my amendment formally at the end of my initial speech. I beg to move it now, but I also have to say that, having heard what the Minister said, I wish to seek the opinion of the House on this matter.
Lord Greenhalgh
(b) Senedd Cymru, if the regulations are made by the Welsh Ministers,”Member’s explanatory statement
This amendment provides that the default procedure for regulations made under the Bill by the Welsh Ministers is the negative procedure.
Lord Greenhalgh
““premium” means any consideration in money or money’s worth for the grant of a lease, other than rent;”Member’s explanatory statement
See the explanatory statement for Lord Greenhalgh’s second amendment to Clause 1, page 1, line 5.
Lord Greenhalgh
““relevant authority” means—(a) in relation to a lease of premises in England, the Secretary of State;(b) in relation to a lease of premises in Wales, the Welsh Ministers;”Member’s explanatory statement
This amendment defines “relevant authority” for the purpose of Lord Greenhalgh’s amendments to Clause 2, page 2, line 21 and Clause 9, page 7, lines 37 and 39.
The Deputy Speaker (Lord Duncan of Springbank) (Con)
We come to Amendment 41. Anyone wishing to press this amendment to a Division must make that clear during the debate.
Amendment 41
Lord Greenhalgh
“(2A) A sum expressed to be payable in respect of rates, council tax, services, repairs, maintenance, insurance or other ancillary matters is not rent for the purposes of this Act merely because it is reserved as rent in the lease.”Member’s explanatory statement
This amendment clarifies that service charges and similar payments are not to be treated as rent only because they are reserved as rent in the lease.
Lord Greenhalgh (Con)
My Lords, before coming to the detail of this amendment, I want to stress the importance of the broad definition of “rent” as it appears in the Bill. Your Lordships are aware of the Government’s position. We believe it is vital for the effectiveness of the Bill that the definition of ground rent is drawn up in such a way as to head off the potential for avoidance measures by the small proportion of landlords who are intent on abusing the leasehold sector for their own financial gain. Any attempts to change this approach would do little more than provide a fixed obstacle around which a nimble landlord may divert with relative ease, certainty and confidence.
Alternative versions for the definition of a rent that stray away from this approach have been considered but they all reached the same conclusion and were found to be lacking. It is precisely because of the broad definition of rent in the Bill that any landlords and their investors seeking to charge what is in essence a ground rent by any other name will need to think very carefully if they believe the definition provided in the Bill offers an easy workaround—it does not. That is to say, if a landlord were to attempt to charge a ground rent by any other name and that charge provided no meaningful benefit or service to the leaseholder, that charge may be considered within the nature of a rent for the purposes of the Bill, and a tribunal or enforcement authority could consider the case for enforcement against that landlord.
I believe that Amendment 41 will provide further clarity regarding the meaning of a “rent” for the purposes of the Bill. Noble Lords will recall that there was a good deal of debate over that definition in the Bill in Committee. My noble friend Lord Young made reference to the Law Society and raised his concerns that the wide definition of rent contained in the Bill could give rise to unnecessary litigation as the lawfulness of certain charges being able to continue as being “reserved as rent” was not wholly clear.
I have listened carefully to the arguments made by my noble friend and others and am not unsympathetic to the views expressed that tighter wording of what is considered a rent would provide even greater clarity for both leaseholders and landlords. The amendment therefore provides that valid charges, even if they are “reserved as rent” in a lease, are not intended to be captured by the provisions in the Bill just because they are “reserved as rent” within a lease.
It is not our intention for valid charges, such as the charging of insurance or service charges, to be adversely affected by the Bill. Neither is it the purpose of the Bill to address the practice of reserving as a rent charges that are not in fact rent. The amendment simply clarifies that, just because a charge is reserved as a rent, it does not automatically follow that it is a prohibited rent for the purposes of the Bill.
I reassure noble Lords that the amendment does not give a green light for landlords seeking to avoid the measures of the Bill to merely reserve any charge as a “rent”. As I have described, the definition of a rent is drawn deliberately as widely as possible and will capture any charge that is in fact in the nature of a rent, whatever it is called. I beg to move.
Lord Stunell (LD)
My Lords, I always welcome efforts by Ministers to clarify the law, although I sometimes struggle to understand exactly how the law has been clarified. It has been suggested that this is, if you like, a step of relaxation or at least inclusion that will permit landlords to get away with—I think that is the technical term—bad practice. I am sure the Minister will reassure me that that is absolutely not the case and, far from opening a door, it is trying to make sure that the door is firmly shut.
I fear that the technicalities of this will be worked out in the law courts over time, whatever provision the Minister puts in the Bill or takes out of it. I wish him luck and I hope he has succeeded in what he hopes to succeed in. I guess we shall find out, when we do the evaluation in a year or two, how accurate that is.
Lord Lennie (Lab)
My Lords, the Minister will be glad to hear that this amendment is another technical change that we on these Benches fully support. However, has the department identified whether the same drafting issue is present in any earlier legislation?
Lord Greenhalgh (Con)
My Lords, we could not have had more different responses to the government’s amendment. I would like to assure the noble Lord, Lord Stunell, that this is indeed a clarification around enabling landlords to continue to pass legitimate valid charges. It will not promote the practice of continuing ground rents by another name, and I made that point very clearly in outlining this in my speech. I am sorry it was quite technical; obviously, people with legal eyes helped me to formulate the syntax but I give that assurance. But the noble Lord is right: only time will tell how the legislation will work in practice.
In response to the noble Lord, Lord Lennie, I have never heard anything quite so overwhelmingly positive about an amendment that I have moved—perhaps we are reaching a new era in understanding. I am not aware of this being relevant in any other part of our approach to the reform agenda that we are putting forward. However, leaseholder legislation covers many decades. Despite having studied some land law in the 1980s, I am not in a position to give a very detailed legal answer on that point.
The Deputy Speaker (Lord Duncan of Springbank) (Con)
We now come to the group beginning with Amendment 42. Anyone wishing to press this or anything else in the group to a Division must make this clear in the debate.
Clause 23: Crown application
Amendment 42
Lord Berkeley
Member’s explanatory statement
This would remove the Duchy of Cornwall from the definition of Crown Land since the Duchy describes itself as a private estate.
Lord Berkeley (Lab)
My Lords, in moving the amendment in my name, Amendment 42, I will speak also to Amendment 43. This returns to the subject of the Duchy of Cornwall, which we discussed at some length in Committee. The Minister responded very helpfully, at col. GC 362, setting out the current exemptions from existing legislation for the right to buy. He also mentioned that the Crown Estate had given a parliamentary undertaking that it will not seek any special arrangements. He mentioned the comments on the Law Commission report about the concerns that the Duchy of Cornwall had on enfranchisement itself. Not much has happened since then.
The Minister did say that he would write to the Duchy of Cornwall. I would be interested to know whether he has written, whether he will put a copy of the letter in the Library and whether he has had an answer. If he has, it will be the first that any Minister has published—a first certainly for any noble Lords who have written. As I have mentioned before, the Duchy of Lancaster and the Crown Estate respond very helpfully and in a timely manner to letters from me and others; that does not apply to the Duchy of Cornwall. Mind you, the Duke of Cornwall is visiting the Isles of Scilly today; maybe that will remind him that there needs to be an answer, but I am not holding my breath.
The Duchy of Cornwall has confirmed, in its latest annual report, that it is in the private sector. On that basis, I would like to reinforce my argument: if it is in the private sector, as it says it is, then it should obey the same rules, laws and everything else that the rest of the private sector has to. There are many other private estates—earlier today, somebody mentioned the Grosvenor Estate—and they will all comply with the legislation, I am quite sure. Therefore, it seems to me that, in respect of this particular clause, the Duchy of Cornwall should be removed from it, which would turn it into the private estate that it says it is.
Amendment 43 reinforces the arguments about Crown land not including land belonging to the Duchy of Cornwall. This is the continuation of my probing amendment. I certainly will not seek the opinion of the House, but I will be interested to hear whether the Minister has made any progress on this, because it will, I hope, have much more effect on the next Bill, which we hope will come soon. I beg to move.
Lord Lennie (Lab)
My Lords, I welcome the amendment of my noble friend Lord Berkeley, which returns the House’s attention to the application of ground rents charged by the Crown, such as the Duchy of Cornwall. It is a bad day to be away from the Scilly Isles, but there you go. My noble friend is probing the issue again, after clearly incomplete answers in Committee. I look forward to the Minister’s response.
Since the Minister was also unable to provide answers to my questions during Committee, I hope he will be able to do so on this occasion. They are these. First, can he confirm how many Crown properties this relates to? Secondly, do the Government intend to engage the residents of these homes?
Lord Greenhalgh (Con)
I now turn to Amendments 42 and 43, brought to your Lordships’ House by the noble Lord, Lord Berkeley. I understand that it is his wish for the Duchy of Cornwall to be considered as private land and not Crown land under this Bill. Irrespective of the definition, both Crown land and private land are captured by the Bill. This Bill will therefore apply to the Crown Estate, of which the Bill stipulates the Duchy of Cornwall is part. As I am sure noble Lords are all aware, the Duchy of Cornwall is a private estate which has a Crown exemption. However, the purpose of this Bill is not to decide how these estates are defined; rather it is to get a better deal for future leaseholders to prevent them being exploited by ground rent in the leasehold market.
The Duke of Cornwall’s estates will be treated as any other private landlord under the provisions of this Bill and will no longer be able to collect ground rent in future leases. I will clarify again that this Bill is narrowly focused on ground rents and not all leasehold matters. That is why, in response to the noble Lord, Lord Berkeley, we have not yet written to the Duchy of Cornwall about the issues around enfranchisement and other matters, but we will be doing so as part of the second stage of the legislation. I will obviously keep noble Lords informed if we get a response, but the noble Lord, Lord Berkeley, seems rather sceptical of that. Nevertheless, we have made that commitment and will write at that stage.
The Government have committed to an ambitious, large-scale reform programme, and we will deal with all these other issues not related to ground rents in the near future. I am very sorry that, on two occasions now, I have not been able to give a precise response to the noble Lord, Lord Lennie, but I will make sure that we get the information to him at the earliest opportunity, in writing, and lay a copy in the Library—I believe that is precisely what you have to do in these circumstances.
The Government will consider the concern of the noble Lord, Lord Berkeley, regarding the Crown Estate exemptions from the parliamentary undertaking on enfranchisement rights for leaseholders in the next stage of the leasehold reform programme. I can also reassure the noble Lord that the Government will consider his concern in tandem with the Law Commission’s recommendations on the issue of enfranchisement rights for leaseholders. On that basis, I ask the noble Lord to withdraw the amendment.
Lord Berkeley (Lab)
My Lords, I am very grateful for the Minister’s response and I will read it with great interest. He has tried to answer most of my questions, even if he has not yet got my noble friend’s numbers. We will look forward to seeing them in the Library. It is very important that what he has said may well set a precedent for the next Bill. That is why we will need to read what he has said with great interest. In the meantime, I beg leave to withdraw the amendment.
The Deputy Speaker (Lord Duncan of Springbank) (Con)
We now come to the group consisting of Amendment 44. Anyone wishing to press this amendment to a division must make this clear in the debate.
Clause 25: Commencement
Amendment 44
Lord Lennie
Member’s explanatory statement
This amendment aims to ensure that the provisions also apply to retirement properties, whereas at present the Bill will prevent provisions coming into force for retirement properties before April 2023.
Lord Lennie (Lab)
My Lords, this amendment may be the final one to be considered by the House today, but I hope the Minister agrees that the issue at hand is very important none the less. It relates to retirement properties, which are excluded from the main provisions of the Bill. I was grateful for the Minister’s confirmation in Committee that they will soon be included, following the transition period. While this is welcome, I hope the Minister confirms that there are no reasonable circumstances in which this period would be extended.
Over 50,000 people in the UK live in retirement community units and they each deserve the same housing rights as everyone else. That is why I remain concerned that they will not benefit from the provisions until much later. I have no intention to divide the House on this issue, but I hope the Minister recognises that I am not alone in raising it, given the interest in Committee.
Finally, I ask the Minister to confirm how the department is informing these 50,000 residents of their leasehold rights and that they will be delayed by at least two years. I beg to move.
Lord Stunell (LD)
My Lords, I speak only briefly to say that the noble Lord, Lord Lennie, has raised an important issue that was debated in Committee, to some extent, when I heard voices calling in both directions. The overwhelming requirement of this legislation is that it leaves certainty in the market about the position of leaseholders. However partial or slow it may be, or however much you might criticise it overall, the noble Lord, Lord Lennie, has advanced a very strong case that this should apply to all leasehold contracts from a set date and not with a phased introduction.
I would be interested to know if there is a reason for this staggered introduction and, if so, what it is. A number of major landlords run very large businesses on the leaseholding of retirement homes, not all of which have always proceeded entirely ethically. There have been some well-evidenced scandals, one of which I played a part in unravelling when I was at the other end of this building. I hope the Minister has not been too influenced on this provision by any pressure he may have received from landlords about some complexity, difficulty or whatever with an earlier introduction. I would be interested to hear the Minister’s justification for the subsection that the noble Lord, Lord Lennie, is proposing to delete.
Lord Greenhalgh (Con)
My Lords, in considering Amendment 44 in the name of the noble Lord, Lord Lennie, it is important to once again lay out the rationale for the transition period for the retirement sector. In October 2018, the Government launched a consultation on reforms to the leasehold system, which attracted over 1,200 responses. In our response to the consultation, published in June 2019, we announced that we would
“proceed with the proposal to exempt retirement properties”
from the peppercorn ground rents policy. This decision was made on the basis that developers of retirement properties incur additional costs, as a result of the communal spaces that are characteristics of these kinds of developments.
However, having reviewed this in further detail, we concluded that arguments in favour of an exception did not outweigh the desirability of ensuring that those who purchase retirement homes are able to benefit from the same reform as other future leaseholders. Therefore, we decided to capture retirement properties in the Bill, so that those who live in retirement housing are protected from exploitation in the same way as other leaseholders. We announced this in January this year, and it is effectively a change in the Government’s position. I am sure all noble Lords agree that, as a basic matter of fairness, those buying retirement properties should also benefit from these reforms.
As a result of this change, we have consulted closely with the retirement sector and continue to do so. As such, we have decided to grant a transition period in recognition. As a result of their initial exemption, this new transition period will allow developers of retirement properties time to adapt to the forthcoming changes. We believe this transition period has been fairly granted, in balancing the needs of developers and fairness to leaseholders. It will be sufficient to allow the retirement sector to adapt to the changes. The Government do not wish to extend the period at the expense of leaseholders. I give that undertaking; we believe we have got it right.
As it stands, the commencement date for retirement properties is no earlier than 1 April 2023. We have no reason to believe that the commencement date will be any later than this. Given the sector was first informed in January this year, this commencement date has given them over two years’ notice.
This issue has been carefully considered and we believe we have struck the right balance for both lease- holders and developers. Indeed, in Committee, we had a competing amendment from the noble Lord, Lord Best, which would have extended this transition period. I am sure noble Lords agree that our proposals are a pragmatic and fair compromise between these two positions. I beg to move that the noble Lord withdraws Amendment 44.
Lord Lennie (Lab)
I will briefly comment on the position that has been arrived at on retirement properties. Initially, there was to be an exception for retirement properties; then it was decided that there would not be. That was from 1 April this year, giving two years’ notice. The main argument of the noble Lord, Lord Best, was that this would cause price rises, as it would falsely inflate the market from people not receiving ground rent and prices would therefore go up. That may have had some justification, but was not part of the Government’s assessment of what would happen to retirement properties. I am happy to withdraw the amendment, but we need to look closely at the impact this has on retirement property leaseholders.
Lord Greenhalgh
Member’s explanatory statement
This amendment, with Lord Greenhalgh’s amendment to Clause 17, page 11, line 17, requires an appeal against action taken by an enforcement authority in relation to a lease of premises in Wales to be made to a leasehold valuation tribunal (instead of the First-tier Tribunal).
Member’s explanatory statement
This amendment is consequential on Lord Greenhalgh’s amendment to the Schedule, page 16, line 37.
Arrangement of Business
The Deputy Principal Chairman of Committees (The Earl of Kinnoull) (CB)
My Lords, the Hybrid Sitting of the House will now resume. The time limit for the following debate is one and a half hours. I call the noble Lord, Lord Bethell. Lord Bethell?
Lord Parkinson of Whitley Bay (Con)
My Lords, I suggest that we adjourn for two minutes to see whether the technical connections with my noble friend can be restored. If not, I have his opening speech.
Health and Social Care Act 2008 (Regulated Activities) (Amendment) (Coronavirus) Regulations 2021
(2 years, 9 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
20:04 - Division conducted remotely on Baroness Wheeler’s amendment. - Ayes: 221 / Noes: 211 - Baroness Wheeler’s amendment agreed.
Lord Bethell
That the draft Regulations laid before the House on 22 June be approved.
Relevant documents: 8th and 10th Reports from the Secondary Legislation Scrutiny Committee (special attention drawn to the instrument)
The Parliamentary Under-Secretary of State, Department of Health and Social Care (Lord Bethell) (Con) [V]
My Lords, more than ever, the social care workforce demonstrates unwavering compassion and dedication for our elderly and most vulnerable. We are proud of and immensely grateful to them. I pay huge tribute to their tireless work during this pandemic to protect people who are most vulnerable to Covid-19, including their incredible efforts to support the vaccination rollout across the sector, to bring in infection controls and to provide pastoral care during this most heartbreakingly lonely episode.
To date, 1.2 million social care workers in England have been vaccinated. This is an incredible achievement and an important step for staff to protect themselves, their loved ones and the people they care for from becoming seriously ill or potentially dying from Covid-19. However, there is a tipping point here. It is a tipping point of safety when it comes to care homes, where many of our most vulnerable priority-list loved ones live. We are not quite there yet.
SAGE recommends that 80% of staff and 90% of residents should have received their first dose of the vaccine to provide a minimum level of protection against coronavirus outbreaks. We have all been witness to the incredible pace at which vaccination programmes have been rolled out. I am delighted to report to the House that 96% of those living in older-age care homes have received their first dose and 93% their second dose. Meanwhile, 93% of those living in younger-age care homes have received their first dose and 88% their second dose.
In many places, take-up among care home staff is also impressive. Some 87% of those working in older-age care homes have had their first dose and 76% their second dose. This compares with 83% and 73% respectively for staff working in younger-age care homes. However, there is also significant variation at a regional and a local level. Only 65% of older care homes in England are meeting SAGE’s stipulated safety tipping point in the latest published data. This drops to an even more worrying 44% in the London area.
As a result, despite very high levels of vaccination, testing, PPE and other infection control measures, we are still seeing outbreaks in care homes, where residents are incredibly vulnerable to the serious effects of this terrible disease. Since January this year, care homes have tested staff more than 21 million times and made proper use of 1.2 billion items of PPE. Yet nearly 14,000 care home residents have died because of the virus this year alone.
This winter will be challenging and, in the face of rising case rates across the country, we need to make sure that we have done everything we can to prepare and to minimise the risks for residents in care homes and the incredible staff who care for them.
This is the context. It makes this legislation critical. By November this year—and subject to the usual parliamentary approval and, we hope, a helpful and practical 16-week grace period—anyone entering a CQC-registered care home in England must be vaccinated, unless a valid exemption applies. This will apply to all care home workers, agency staff and volunteers. Visiting healthcare workers, tradespeople, hairdressers and CQC inspectors will also be obliged to follow the new requirement.
We have considered this policy incredibly carefully, consulting thoroughly and extensively to get this right both for residents who are so vulnerable to Covid and the staff who go above and beyond in caring for them every day. The policy will therefore apply to all people over 18 who work inside a care home unless they have a medical reason not to be vaccinated.
Further limited exceptions have been made to ensure that this works on the ground. Emergency services, people providing emergency assistance and those undertaking urgent maintenance work can all enter a care home without needing to show that they are vaccinated. Visiting family and friends are also exempt, given the significant well-being benefits such contact provides. While we would always encourage all these people to take up an offer of a vaccine, we have acted on the advice from SAGE that a balance must be struck.
Before I turn to our assessment of the impact this may have on the workforce, I acknowledge the vital role the Secondary Legislation Scrutiny Committee has played in its calls for further details outlining the Government’s current analysis of the expected impact of the draft regulations. Following its eighth report, we made an impact statement available to this effect, and we note the further points raised in its 10th report yesterday. I can also confirm to the House that we will be publishing a full impact assessment as soon as possible.
After everything care home staff have done in the pandemic, we owe them the greatest consideration and respect. We understand that providers and their staff need time to prepare for these changes, which is why the 16-week grace period immediately following the enactment of regulations will allow staff who have not been vaccinated to make arrangements to have both doses. Unfortunately, we recognise that there will be some staff who will choose to leave rather than be vaccinated. Our central analysis estimates that around 7% of current staff may not meet the requirement by the end of the 16-week grace period. This equates to 40,000, out of a workforce of 570,000, who may need recruiting to replace staff who do not meet the requirement.
However, this estimate is very uncertain. We just do not know yet exactly how staff will respond to the requirement, not least because staff turnover in this sector is around a third each year. I am grateful to Professor Martin Green of Care England for talking me through these concerns. Of course, we do not want to lose valuable care home staff who have made an enormous sacrifice over the last year and a half, and we will continue our efforts to drive uptake across the sector. We owe it to ourselves and to their commitment to try our hardest. However, our overriding priority has to be the safety and well-being of the people they care for.
Before closing, I pay a final tribute to all care home staff, past, present and future, who have played a vital role in our nation’s recovery from the pandemic. We did not take lightly the decision to introduce this legislation. However, the risks that this winter will undoubtedly pose to the most vulnerable in our society make clear the choice that we must make: to do everything in our power to protect them. With that sentiment in mind, I commend these regulations to the House. I beg to move.
Amendment to the Motion
Baroness Wheeler
At the end to insert “but that this House regrets that the Regulations do not include any information about how the legislation will operate and that this will be left to guidance that will not be available until the end of July; further regrets that a full impact assessment has not been published including analysis of the number of current staff who may not comply and the potential impact on care homes if care home staff become ineligible for work because they are not fully vaccinated or medically exempt; notes that the Secondary Legislation Scrutiny Committee recommended that the debate on the instrument should be deferred until the operational guidance and full impact assessment has been published; and calls on Her Majesty’s Government to provide stronger supporting evidence for permanently requiring staff to have received both doses of the vaccine or, if they have not, to be banned from entering their workplace.”
Baroness Wheeler (Lab)
My Lords, I thank the Minister. I am moving my amendment in the light of the deep concerns of the Secondary Legislation Scrutiny Committee in its eighth report. I listened to its 13 July questioning of Nadhim Zahawi, the Vaccine Minister, which was held on the same day that the SI was debated in the Commons. The committee produced a further, 10th report yesterday in response to this. As its eighth report says,
“effective Parliamentary scrutiny is impossible”
by the House because crucial operational guidance and the impact assessment are not available, because none of the practical information about how the guidance is to operate is in the actual legislation before us, and because no reasons have been provided as to why the legislation is not a restricted pandemic measure rather than the permanent measure that the Government are proposing.
The Commons debate was focused on the failure to produce the impact assessment so essential for understanding the full consequences of the legislation. The Health Minister promised that we would have it before our debate today; the Vaccine Minister instead undertook to provide an impact statement, which the committee still had not had at the time of its further report. I am still not clear which piece of the last-minute information promised has been delivered, and the Minister’s speech may have confused me still further about what is and what is not available.
So we have more documentation and more information but not the full and detailed impact assessment that is needed. Overall, we still do not have the answers to the committee’s fundamental questions: why has the vaccination programme not managed to achieve the required levels despite care home staff being prioritised, and why the regional variations? Why has there been no detailed analysis of the impact the policy will have on care home staff and the possible risk to the viability of care homes as a result? We still have had no real analysis of the degree and nature of the opposition to the proposals expressed during the consultation, which could provide helpful guidance on how it is to be addressed.
This SI is muddled, confused and disjointed and, in places, contradictory—across the SI itself, the Explanatory Memorandum and in the Government’s consultation response. This makes even more urgent the publication of clear and detailed guidance which includes not just the practical detail the committee wants to see but the full policy framework. We are assured that the guidance has been produced in consultation with the sector. Can the Minister confirm that this has included care home providers from both large and small group homes, and the staff unions? Is there now a firm publication date, other than just the end of the month, in 11 days’ time, that we have been promised?
Specifically on consultation, the Government’s consultation response document itself admits that 57% of respondents were against the mandatory vaccination of staff. Nadhim Zahawi stressed to the committee how important it was to “carry people with us” and our Minister told the House on 8 July:
“We are in a consultation … it is an honest consultation. We have to take people with us: this is not something that we can impose on people against their will.”—[Official Report, 8/7/21; col. 1454.]
How will the Minister now honour that commitment, and how does he square it with the legislation that the Government have actually produced?
In its report, the committee is particularly scathing about the DHSC’s failure to provide justification for the substantial policy change from using the SAGE advice, mentioned by the Minister, of at least 80% of care home staff needing a first vaccination in order to provide a minimum level of protection against Covid-19 to the requirement for them to have two doses or they will be banned from the workplace and stand to lose their job. Why this shift and what is the detailed evidence which led to such a major policy change?
Despite our deep concern about the health and safety of care home residents, no one doubts the impact that mandatory vaccination will have on care home staff in their jobs, the risks to the viability of care homes and the confusion that will reign, especially in small care homes coping with even worse staff shortages and recruitment problems than they currently have and trying to administer and monitor the trades- person, et cetera, visiting arrangements. The National Care Forum has been particularly vocal on that latter point. We just do not know the scale and extent of the risk in a sector that already has 100,000 unfilled posts.
These are dedicated staff who have been in the front line of care through the pandemic. We need to understand why there is vaccine hesitancy among the minority of staff and build and strengthen the excellent work that has been done with so many to allay fears and assuage concerns arising from cultural or personal health fears.
Can the Minister explain how the Government will ensure that the 16-week grace period is used to intensify and ramp up the take-up campaign and ensure the targeting of regions and areas where there is relatively low take-up? Will it be extended if the impact assessment and implementation plan show that that is needed?
Paragraph 12 of the EM contains only five short points dealing with the serious staff shortages that the care sector will face, starting with the bald understatement that there will be
“the short-term cost of dealing with staff absences”.
Moreover, the EM goes back to the Care Act 2014 provision, which assumes that local authorities have a contingency plan to address workforce shortages and care provider closures. Given the Government’s sweeping council social care funding cuts for the past 10 years, we know just what state councils would be in if they tried to meet that contingency. Last week ADASS reported up to 250,000 vulnerable people across England languishing on social care waiting lists for care assessments or service reviews to check their physical and mental state. Will additional funding be made available to councils to meet the extra costs of staff shortages and turnover?
In conclusion, the House must be reassured that there will be a detailed, coherent, well-resourced and fully thought-through plan for moving forward and finding solutions for carrying and taking people with us—in the words of the Ministers—and addressing the major challenges that implementing the mandatory vaccination of care home staff will present. We must be reassured that the Secondary Legislation Committee’s rightful concerns have been fully addressed. For the record, its 10th report, published yesterday, stresses that, despite the welcome “further information and explanations” from the Government,
“we remain unclear about the justification for some of the policy choices underlying these Regulations and also the basis on which the department struck a balance between public health benefits and the impact on the rights of individuals.”
I look forward to the contributions of other noble Lords and the Minister’s response, and I will wish to test the opinion of the House on this very important issue. I beg to move.
Baroness Tyler of Enfield (LD) [V]
My Lords, this is an extremely tricky issue, and I find myself deeply conflicted. On the one hand, I strongly support the principle of mandatory vaccination of care home workers, for reasons I will explain. On the other hand, I think the Government have gone about it in entirely the wrong way. As so often in this pandemic, we are trying to reconcile forces that pull in entirely opposite directions—in this case, the public health need to safeguard some of our most vulnerable citizens, which in my view is overwhelming, pitched against the individual liberties of care home workers.
For me this is deeply personal. My mother is a long-term care home resident and in the first wave of the pandemic, when hospital patients were being transferred to the home without proper testing, there was a significant number of deaths. I need hardly say that this was deeply distressing for my whole family and, I know, many other families up and down the country.
Care homes have a duty of care to their residents, which in my view they are not fulfilling if they do not require care workers who perform close-contact and intimate tasks to be fully vaccinated, unless they have a medical exemption. In my view, anything else would be negligent. Let us never forget the human tragedy this cruel pandemic has wreaked in care homes. Some 20,000 care home residents died in the first wave, accounting for 44% of all excess deaths for that period in England and Wales. We surely owe it to all who died and their families to ensure that care home residents receive every possible protection at a time when cases are rising again with a far more transmissible variant. Today we learn from the latest ONS figures that care home deaths are on the rise too.
Months ago, Professor Chris Whitty expressed the view that front-line health and care workers have what he termed a “professional responsibility” to get vaccinated, to reduce the risk that Covid poses to patients and care home residents. It seems odd that the mandatory hepatitis vaccination for some front-line health workers is hardly, if ever, queried.
I regret that today we are not looking at both NHS and social care workers together. According to the evidence provided to the Secondary Legislation Scrutiny Committee, published only yesterday, take-up of the first dose in the care home workforce stands at 85.6% but with significant variation, as the Minister set out.
It is clear from the two reports of the Secondary Legislation Scrutiny Committee and the debate in the other place on 13 July that this SI is deficient in many respects. The confusing data provided in the Explanatory Memorandum, the lack of an impact assessment—particularly on the workforce implications—and detailed operational guidance not being available until the end of the month are inexcusable. Frankly, I also found it peculiar that the regulations cover a range of tradespeople and other service providers who are unlikely to have close contact with residents. In reality, proper parliamentary scrutiny was pretty much impossible. I totally get that.
I have argued from the outset that far more support was needed to improve vaccine take-up rates among care workers. In early days, slow vaccine take-up was partly due to practical problems, such as vaccinators coming to homes with enough vaccine only for residents, staff being expected to travel to vaccination centres but not given time off or money to get there, and those staff not on duty when vaccinators came missing out. Despite all the efforts made locally to encourage staff to have the vaccine, crucially, the Government should take more proactive steps for carers to be paid for time spent on getting vaccinated, especially if they have to come in when they are not on shift and if they have to take time off because of any short-term reaction to the jab. These things are critically important to low-paid staff, some of whom are on zero-hours contracts.
GPs spending time in care homes talking to staff who are vaccine hesitant has proved highly effective. On top of this, I feel the Government should step in to help with the costs of redeployment and retraining for staff who still refuse to have the vaccine. Without seeing the operational guidance, we do not know whether this will happen.
It is with a heavy heart and after much thought that I am unable to support the amendment in the name of the noble Baroness, Lady Wheeler. I am sympathetic to its intent and broadly support the first three elements, but I cannot support the final element, which says that stronger supporting evidence for requiring staff to be vaccinated is required. The case is clear, and we need to see both more action and more support to ensure that more lives are not lost. However, we need to see the right action.
I plead with the Government, even at this late stage, to think again and to provide the help and support I have outlined above. I also feel that it sends out the wrong message to the public, who will not be following the minutiae of parliamentary procedures and impact assessments and the like. The message will simply be that we do not support the principle of mandatory vaccine for care workers other than those with the medical exemption, which I do, and strongly. This is the right policy but, sadly, the Government have gone about it in entirely the wrong way. It should also apply to NHS workers and it was wrong to exclude them. However, two wrongs emphatically do not make a right.
Lord Lansley (Con)
My Lords, I am very glad to follow the noble Baroness, Lady Tyler of Enfield. Like her, I would not be in a position to be able to support the amendment to the Motion. I support this statutory instrument but, I have to say, with some reluctance—and it is not simply because of the procedural issues. It is a step we should take only in a health emergency. I will come back to that point before I conclude.
I am grateful to my noble friend, who explained the SI with his customary clarity, but we are especially grateful to the Secondary Legislation Scrutiny Committee, whose painstaking work has illustrated many of the issues, including those I want briefly to refer to. I am looking for my noble friend in responding to this debate to give one explanation and two sets of assurances.
The explanation is because I simply do not understand why care homes have been brought forward and legislated for in this way where other settings have not been. I cannot understand the difference between a care worker going into a domiciliary care setting with a vulnerable person and how that differs from a care worker in a residential care home. I cannot understand how the vaccination of a residential care worker is different from the vaccination of a healthcare worker in a geriatric ward in a hospital. Why are these things different? If the Government are going to move forward on this, they should have moved forward on all these settings together and should have had the clear argument presented rather than what appears to be a piecemeal argument. I hope that my noble friend will explain why the Government have proceeded in this piecemeal fashion with a further consultation to come, which may lead to different conclusions even at the margin for other settings and for care homes, which will create unnecessary confusion.
Secondly, I am looking for an assurance about support for the care home sector. My noble friend said that the statement of impact—which I found on the government website but of course not published alongside the legislation—says that the Government’s central estimate is 40,000 potential losses of staff. This is in a sector where Skills for Care reported 112,000 staff vacancies in the autumn of last year and where we know that there is a dependence on workers from overseas, some of whom have gone back home and not returned. The sector needs help. The impact statement says that recruitment on average costs £2,500, which is £100 million for the sector in consequence of this measure. That is before you begin to look for the other support it needs from the healthcare system, its general practice colleagues, and in dealing with the insurance sector and others. I hope my noble friend will be able to say that the Government will add significantly—at least that £100 million—to the infection control fund, which is £1.1 billion, and do so in close consultation with the care home sector to give it the support that it needs.
Thirdly, and finally, the point of reassurance I am looking for is that I expected, having discussed this with Ministers, that this statutory instrument would be brought forward with a sunset clause. That is transparently something that should apply during the emergency. It would be reasonable if the Government had said, “This time next year, we should be deciding whether legislation of this kind should be renewed, and a sunset clause would enable that to happen.” I have no confidence that a review, as Regulation 7 says, means that if the review concluded that legislation in this form was not needed, it would not be retained. I am sorry, but I am afraid that from the parliamentary point of view, that is unacceptable. Therefore I am looking for my noble friend to make it absolutely clear that if Ministers conclude next year that the review says that this legislation is no longer needed, they will ensure that it is repealed.
Lord Campbell-Savours (Lab) [V]
My Lords, I greatly welcome this debate and the tabling by my noble friend of her very relevant amendment. According to the Explanatory Note, the regulations provide that for,
“the purposes of preventing, detecting and controlling the spread of infection, registered persons … must secure that a person … does not enter the premises used by A unless B meets specific requirements”,
which are then set out. However, the list of requirements excludes the crucial requirement that is now the subject of a national debate: the wearing of masks. The regulations appear to put in place a non-statutory framework governing mask use, thereby relying on a voluntary approach under guidance notes. Guidance notes will not work. They will be widely ignored, perhaps even in care homes to some extent.
In anticipation of liberation day, there already has been widespread non-compliance in wider society. We are ignoring at our peril the experience of countries worldwide where the real benefit of mandatory masking under properly enforced regimes has been at the heart of policy, not only in care homes but in wider social interactions. Masking crucially helps to alert the public to the real dangers of the virus.
If, as I suspect, and for reasons that I understand, the Government remain torn, they should put the wider question of masking in its broader application to the House of Commons. Let MPs take that decision this week before the House rises. Let them face up to their responsibilities. They will have to listen to a divided public while arguing their case. The whole issue could then be decided on a free vote. It is not unprecedented. An informed decision on masking cannot be ducked and if the Government themselves are uneasy over the decision, Parliament, where I believe there is majority support, must take it.
Mandatory masking is absolutely crucial in the building of public confidence in the Government’s wider Covid relaxation strategy. I am convinced that the alternative is increased Covid hospitalisation as a more liberalised regime leads inevitably to disease spread, cancelled operations in the NHS, a lack of confidence in public protection leading to increased workplace absences, further damage to the high street with the possibility of renewed restrictions, public anger over government vacillation, further deterioration in the public finances and a prolonged epidemic.
The mask is a signal, an alarm bell and constant reminder. It acts as an amber light and is the only way in which one can signal to the public the danger of infection and the scale of personal risk—the risk from onward transmission to colleagues and friends, and the need to be constantly on the alert. The moment that one drops the requirement for a mask, the public will act defensively by withdrawing from public engagement, whether at the place of work or socially, or they will mistakenly conclude that the problem is past and life is returning to normal, which it is not. That is my fear.
Liberation day is potentially opening the door on a disaster and I cannot understand why those who oppose lockdown but who are calling for an early return to normality cannot support mandatory masking. It helps their case and would facilitate the early return for which they yearn. It secures a wider form of individual freedom. I say to the Government that they need to get real and take the lead. The public are looking to the Government to show the way. Either take a big decision to maintain masking or let the Commons take it on a free vote.
Do not get bogged down in misinterpretation of what constitutes liberty. Your liberty should not be at the cost of my liberty that dropping the guard in care homes will soon expose. If, as an individual citizen, I have to lock myself away and lose my freedom as a consequence of you securing your freedom, we then need arbitration. Care homes, offices, shops, public transport and, indeed, all public places are similarly at risk and threatened by this new approach. I plead with the Government, even at this late stage, for sanity in the policy that they are pursuing. Please do not make this grave mistake.
Baroness Noakes (Con)
My Lords, whether or not noble Lords agree with the intent behind this statutory instrument, they ought to share my deep sense of outrage at how Parliament is being treated.
We have become inured to the cavalier way in which the Department of Health and Social Care uses secondary legislation to interfere with citizens’ lives but this instrument reaches a new low. For the first time since the Victorian era, vaccination will be mandated by law. I believe that it is wholly inappropriate to use unamendable secondary legislation to cross that line. It raises deep issues of civil liberties and human rights and should have been fully scrutinised in primary legislation. Furthermore, the department’s contempt for Parliament is demonstrated by the lack of accompanying operational detail or an impact assessment, as has been pointed out.
The department has doggedly resisted releasing full impact assessments on Covid instruments. Whenever possible, it has hidden behind the small print of Cabinet Office rules on impact assessments to claim that they are not required. The small print does not cover today’s statutory instrument so the department has instead resorted to—there is no easy way to say this—lying. The Explanatory Note and the Explanatory Memorandum state that a full impact assessment has been prepared and is available. The Minister in the other place admitted last week that it has not even been prepared. As we heard last night, a flimsy document called an impact statement appeared on the website, but this falls far short of an impact assessment, and an impact assessment published after Parliament has considered an instrument does nothing to contribute to parliamentary scrutiny.
The department has rightly drawn the condemnation of the Secondary Legislation Scrutiny Committee of your Lordships’ House, which recommended in its eighth report on the instrument that this consideration be delayed until both the detailed impact assessment and operational guidance were available. Yesterday’s 10th report emphasised the many questions left unanswered. The department has cocked a snook at Parliament by ramming this instrument through now.
Allowing proper parliamentary debate in September would do nothing to delay the implementation of the policy. It already has a 16-week implementation gap built into it. The consultation showed that more people opposed the policy than supported it. UNISON does not support it. The Government cannot claim that they are acting in uncontroversial territory. I suspect that the real truth is that this policy would never survive the scrutiny that a fully informed debate would bring. It is also far from clear that the policy solution is the right one. As the Minister pointed out, 96% of residents of older-age care homes and 92% in working-age care homes have had a first vaccination dose, with the figures for staff being 86% and 83%, which is well in excess of the SAGE guidelines of 90% for residents and 80% for staff, so in aggregate there is no problem.
The Minister has said that only 65% of older-age care homes were meeting that guideline, falling to 44% in London, although he gave no figures for the two-thirds of care homes in that sector that cater for working-age adults. These limited data do not provide support for the intrusive rules in these regulations; rather, they speak to the need for more targeted interventions on a local basis and with smaller care homes to level them up to the very great achievements that have been made so far at national level.
None of this is explored, because we have no impact assessment, in particular in relation to care home staffing. Last night’s impact statement came up with a central estimate of a one-off cost of £100 million in respect of the recruitment of 40,000 staff who would be lost because of the instrument, but I do not think that that estimate will stand up to much scrutiny.
If some staff decide not to be vaccinated—as is entirely their right to do—they will be forced out of employment in the sector, but the Government have no evidence presented that there are people willing and able to come into the sector to replace that large number of people going out of it. There is no excess capacity in the market for care home staff, as many care home operators will testify. The impact of the loss of care home capacity is simply not addressed in the impact statement, along with a host of other consequential issues.
While I agree with the amendment from the noble Baroness, Lady Wheeler, I shall not be voting for it this evening, because it is a mere gesture and it does not defend the role of Parliament; but neither shall I vote for the Government.
Lord Hunt of Kings Heath (Lab)
My Lords, I will be supporting my noble friend’s amendment; I am very glad that she has put it before us. Like the noble Baroness, Lady Noakes, and other noble Lords, I cannot help but feel that this regulation is not the way to deal with such an important and sensitive subject. Even at this late stage, I appeal to the Minister to allow it to be delayed until the autumn, when the full impact assessment and the guidelines are made available. This is not the way to treat Parliament.
This is a challenging issue, and I am very mindful of the opinion of Big Brother Watch, which I respect. It warned that mandatory vaccination is
“crossing … the Rubicon on medical choice, medical confidentiality and bodily autonomy …vital components of the right to privacy.”
Equally, I have been alarmed at the unwillingness of some staff to have the vaccination. In these uncertain times, I accept that action normally considered as unacceptably undermining our personal liberties may have to be taken in the wider interest.
In the end, I come down in favour of the principle of the regulations, but I am dismayed by the way in which the Government have handled them. We have already heard the criticism of the Secondary Legislation Scrutiny Committee. It is an absolute disgrace that the Government have not produced either the operational guidance—even though they say it will be produced within a few days—or the impact assessment, which is required to be submitted to the Regulatory Policy Committee for independent scrutiny and presented to Parliament. Why has this not been done? To expect us to agree to the incursion on personal liberty, in the way that these regulations provide for, is very bad indeed.
My guess is that the Government are very uncomfortable with what a proper RIA would say. Clearly, what has happened is that, once again, the poor old residential care sector has been picked upon and could be devastated as a result of these regulations. The Government are embarrassed by this, and therefore do not want Parliament to know the full facts. If the Minister says it is because officials have been working very hard and are not ready, I just do not believe it. His department has so much form in treating this House with contempt that I am afraid I cannot give it the benefit of the doubt on this. This is a deliberate attempt to hide from Parliament the consequences of a hugely important policy decision. It will not be forgotten. Like the noble Lord, Lord Lansley, I would like an assurance that this will last only for a minimum period of time.
I always work very well with the Registered Nursing Home Association, which says that, at the moment, it does not know how staff will react—how can it? It has been asked to respond to the current draft guidance, and it says that it is very light on, for instance, exactly how the regulator—the CQC—will regulate this regulation. There is an oral statement that the CQC will be proportionate but, as it asks, what does that mean when the requirement is that 100% of staff need to be vaccinated? It also says that the guidance is very light on the issue of what providers and local authorities, as commissioners, should do to support those services that are short of vaccinated staff. Will the Minister give us an assurance that this will be dealt with in the guidance that will be produced in a few days’ time?
The Care Provider Alliance is concerned about the overall impact of losing critical staff. It says that we currently have around 112,000 vacancies. If the Minister is right, and another 40,000 vacancies are added on top of that, how on earth will the sector cope with that? On the point of the noble Lord, Lord Lansley, about the inconsistencies, one must assume that those 40,000 people will find jobs, either in the NHS as care assistants, in the domiciliary care sector or in any of those sectors where they are not required to be vaccinated. How on earth can that be seen as a sensible policy?
I will finish on a completely different subject. I want to raise the case of Christian Scientists. In discussion with the late Lord Weatherill, as a Minister in 2000, I was able to agree a special provision in the Care Standards Act for Christian Scientists. At the time, I said from the Dispatch Box:
“the Government have no intention of preventing or discouraging people from being cared for in accordance with the principles and practices of the Church of Christ, Scientist.”—[Official Report, 28/3/00; col. 740.]
The issue today concerns the two homes that the Christian Scientists run in England. The Church believes that it should be permitted to claim a religious exemption from Covid-19 vaccination. Will the Minister confirm the assurances that I gave to the House from the Dispatch Box 21 years ago? Would his officials meet with the Church to discuss the details?
Lord Cormack (Con)
My Lords, I have been calling for the vaccination of care home workers for months and months. I believe that, when we have had to have so many restrictions imposed upon us—on the number of people we could have in our own homes, where we could go and what we could do—it is entirely reasonable to say that those who care for the most vulnerable members of society should be obliged to be vaccinated. I think that that is reasonable. The noble Baroness, Lady Tyler, indicated that that was the line that she took.
However, I have been doing this for month after month after month, going back to the very beginning of this year, if not before. I regret infinitely the way in which there has been prevarication. It seems to me so obvious that, if this had been said at the beginning of the year, proper legislation could have been produced.
My noble friend Lady Noakes talked about the contempt with which Parliament has been treated. I do not think that anyone since Cromwell has treated Parliament with greater contempt, over a whole range of issues. We are a parliamentary democracy, and the Government are answerable and accountable to Parliament. We have been through an extraordinary series of emergencies, when it has been understandable that certain measures had to be taken, but there has been far too much retrospective legislation, far too much secondary legislation and far too many Henry VIII clauses. I beg the Government and my noble friend Lord Bethell—I am sorry that he is not here; he cannot be with us because he is in isolation. He has not treated your Lordships’ House with contempt—far from it—but there has been an arrogance that has not been attractive.
It is right that we proceed, but it would have been very much better to have primary rather than secondary legislation. Lessons should be learned. We have to come back—the noble Baroness, Lady Tyler, made this point in her speech—to the fact that a very large percentage of those who perished from Covid were in care homes. There were all sorts of factors such as the release of people from hospital to care homes. But the plain, blunt fact is that over one-third—probably 40%—of those who make up the frightening statistic of those who have died were in care homes. Those in care homes are, by very definition, not very mobile, particularly the elderly in care homes. They are fixed.
I first brought this to the attention of the House and Ministers because of a great friend of ours who had a mother who has since died. She was 99 when she died and she had a long life and a good life, until towards the end. Our friend used to say to us, “I have to dress up in all manner of accoutrements, I cannot hold my mother’s hand”—and she could not until just a week or two before she died—“and I cannot communicate with my deaf mother properly.” And yet, in the care home in which she was being well looked after, something like one-third of those looking after her most intimate needs were refusing to be vaccinated. That cannot be right.
Of course, I do not believe in compulsory vaccination regardless, but I do believe it is entirely reasonable to say that those in certain positions have an obligation to their vocation and those they are looking after to do so as safely as possible. We know the efficacy of vaccination; it is not perfect, but it gives a high degree of protection. It is therefore entirely reasonable that we ask those fulfilling those tasks to be vaccinated. But it could have been done in a much better way. The policy could and should have been announced at the beginning of the year because the facts have not changed. There would have been ample time then for primary legislation.
I will not, of course, support the amendment to the Motion moved very eloquently by the noble Baroness, Lady Wheeler, although I respect her very much. I shall vote for the Government; I will be voting with relief but, at the same time, with a heavy heart.
Baroness Foster of Oxton (Con)
My Lords, on my election to the European Parliament more than 20 years ago, it became clear early on that the Commission—or the Executive—wielded great power. There were no business impact assessments, despite our enacting primary legislation. The Commission was not keen to change the status quo, but some of us were, and eventually it gave way—albeit reluctantly. But the battles continued, as it would never admit that it was wrong. As for us, the politicians, a little courage and fortitude to hold your ground is very difficult and it is so much easier just to give in. The EU sought more and more centralising powers and aimed to micromanage every element of our lives, so we left—quite literally. When the vaccine debacle blew up last year, it summed up why we had had to go. We wanted to take back control—well, most of us did, anyway.
I do not underestimate the challenges in making the most difficult decisions that Ministers have had to make. Initially, the British people wholeheartedly supported the actions that were taken. The vaccine was and is the silver bullet, and we all bought into it. However, in my view, the hand of the state is now riding roughshod over the will of the people, still controlling everything we do and how we are allowed to think. If you question, say, a lockdown or a mask, you are accused of wanting to “let rip”—not my words. If you publicly disagree, you are normally too stupid to understand, and if you actually demonstrate then obviously you are an anarchist, which the majority plainly are not. So when Ministers turn up to the Dispatch Box, hiding behind the 2020 emergency powers Act, without a full business impact assessment and wishing to broaden the scope without consultation, that is a step too far.
I am a great supporter of the vaccines but I will not support coercion or anyone being forced to have it to keep their job or feed their family. This debate is now moving away from public health and into the realms of state control. The goalposts move daily. The public and businesses have no idea what is happening next. Contradictions abound. “Ping-gate”, as it is called, is causing chaos. It was always advisory but the public were deliberately kept in the dark. Thousands of workers and children have been self-isolating who are fit and well—500,000 last week. Test and trace is all over the place while, in my view, forcibly testing school children with no symptoms has been an outrage.
And so to holidays. The Minister decides and announces that France is now in amber plus, despite the fact that the beta variant is in Réunion, which is 6,000 miles away. It is a bit like a new “foxtrot” variant emerging in the Falklands. Portugal went back to amber—naturally, post the Champions League—and the Balearics are where all the families go, so they are in amber too, but not if it is a pilot. At concerts in Liverpool three months ago, Royal Ascot, Wimbledon and Wembley there was no distancing and no masks and there have been no spikes so they were not dangerous.
This brings me to SAGE. Some 366 members sit on 10 working groups and committees, 18 of whom remain anonymous. I do not question their integrity but they are unelected, wielding powers that affect our freedoms, movement and association with people. It beats me how they would ever agree—but they do not, really, because different medics and scientists contradict their colleagues on mainstream media every day, normally those appearing to want to wallow in bad news. The behavioural commissions admitted that they had used scare tactics and propaganda to make the public comply—terrified, more like it.
So here we are, 18 months down the line. Ministers and politicians cannot continue to hide behind the science, advisers, focus groups and opinion polls. It is about being accountable, transparent and bold. Can you imagine a Thatcher Government or the likes of my noble and learned friend Lord Clarke and my noble friends Lord Tebbit, Lord Lamont, Lord Lilley and Lord Forsyth, or many others in this House, not rigorously challenging the advice?
In conclusion, no one gave any Government the authority to take away the civil rights that we earned over centuries. We fought and died for them. No Government can demand respect; they have to earn it. We, the people, will take back control. We will get back to normal. So it behoves the Minister, along with his colleagues, to make sure that that happens. It gives me no pleasure to speak out against my own Government but, in my view, to remain silent today would have been remiss of me.
Baroness Bennett of Manor Castle (GP) [V]
My Lords, I preface my remarks by noting that I have had two vaccinations, which I got at the earliest opportunity. I recommend that everyone who possibly can do the same.
What we have in these small but extraordinarily significant regulations is a collision between the Government’s social care policy—the one we were told was “clear” and “prepared” two years ago, but which, we have learned this afternoon, is not expected to be available until the autumn—and their Covid policies. These are two areas of the greatest government failure—two areas of confused, confusing, contradictory and clearly disastrous policies, which, when put together in these regulations, produce what could be a disaster as well as a severe procedural tangle. The likely outcome of this policy is a dangerous diminution of care provision for some of the most vulnerable in our society, and great stress, worry and possibly loss of employment for those—mostly low-paid, too often insecurely employed, mostly women, many from minoritised communities—who care for them.
As is all too often the case, I regret that the regret amendment, which I support and which the Green group will back, is only that and not stronger. In this, I may be in rare agreement with the noble Baroness, Lady Noakes. Nearly two years ago, the first vote I took part in in your Lordships’ House—in that strange, archaic procedure of trooping down long corridors, attaching myself to another Peer to check I was heading in the right direction—was on a regret amendment. That Peer, a Lib Dem, kindly explained that it was a vote but it would not change anything, to my considerable disappointment.
We talk a lot about affirmative and negative instruments and wrestle with the Government about converting the latter to the former. But really, if we are not prepared to actually stop something that is as clearly wrong and chaotically mismanaged as this, should we not think about what is askew with our constitutional arrangements —those antique, accidentally accreted structures, which we have managed to demonstrate, through the Covid-19 pandemic, can be quickly modernised when there is the will?
I am sure many noble Lords will have received, as I did, a briefing from Neil Russell, chairman of PJ Care Ltd. I do not know Mr Russell, but I know a cri de coeur when I read one, and that is what his briefing was. He calculates, believably, with figures that broadly reflect the scant information we have from the Government, that 5% of staff may, as a result of this, leave the sector—75,000 staff in a sector that already has 100,000 vacancies. There is clearly a risk that some homes will be able to poach workers from those that cannot keep them.
We have a disastrously financialised care home sector—something that the Financial Times, among other unlikely media outlets, has increasingly been highlighting—with a significant degree of ownership concentrated in the hands of hedge funds that have, on their classic model, loaded them with debt while shipping out massive profits of 12% to 16%, usually off to tax havens. However, that situation could be even further worsened by this measure, with large chains being able to ship staff around while smaller, independent family businesses and the few remaining homes run for public good not profit do not have that option.
Workers in this sector have made their views clear. The UNISON briefing says this measure is
“counterproductive, risks serious staff shortages and could drive the problem underground.”
I am not suggesting doing nothing. I note the article titled “Excess mortality for care home residents during the first 23 weeks of the COVID-19 pandemic in England” in the BMC Medicine journal. Up to 7 August 2020, there were, tragically, nearly 30,000 excess deaths in all care homes: 65% of those were confirmed or suspected Covid-19.
To protect the residents of care homes—as the Government so comprehensively failed to do last year exactly when Germany was applying strict testing and quarantine requirements for residents returning to or entering homes, meaning far fewer deaths—is obviously crucial. But the London School of Hygiene & Tropical Medicine study, to which other noble Lords referred, emphasises
“the importance of COVID-19 vaccination remaining voluntary.”
It says:
“Feeling pressurised had damaging effects, eroding trust and negatively affecting relationships at work, and often exacerbated COVID-19 vaccination concerns and hardened stances on declining vaccination.”
That is not surprising. It is human to think that if you are being forced to do something, there is a reason why that force is necessary.
Many, presented with the evidence and given time to think it over, are likely to come on board—the right way for any medical procedure to be given—with full informed genuine consent. UNISON presents a half-page list of useful voluntary measures that could and should be undertaken. I particularly highlight the need to remove any financial disincentives.
I started with my personal experiences. After both doses, I felt pretty rotten for three or four days and less than perky for a few more. I say that not as a discouragement, but as an honest account. That is the kind of honesty we need to build trust and confidence. It is obviously vastly preferable to catching Covid or passing it on to others, but I am lucky; I have a job where I can mostly work sitting down or, if I suddenly need to bail out of the day, I can. For a low-paid care worker, one struggling to pay the rent and put food on the table and knowing vulnerable people depend on them, those luxuries are not available. We need to make sure people who work in care homes can choose to have these vaccinations, and are not forced into them.
Lord Wei (Con)
My Lords, I declare an interest as an adviser to Future Planet Capital, a sustainable investment firm that has a stake in Vaccitech, the start-up that licensed the intellectual property and original R&D relating to what is known as the AstraZeneca vaccine, of which I have received two doses. I begin by congratulating the Minister for running the marathon of this past year or so, managing the demands of the pandemic tirelessly and responding swiftly to requests, certainly from me, for information or action. For example, I remember us speaking at one point early in the pandemic about the need to restrict inbound travel from Italy. He and his colleagues at the Foreign Office ultimately took the necessary action.
I recognise the reasons behind this measure, given the high number of fatalities and infections that have taken place in care homes and facilities over the course of the pandemic and the need to ensure that those in them are protected. It is a step in the right direction proactively to seek to ensure that safeguards are in place, given that, last year, we found that the speed of events could, at times, truly overwhelm us and the system. To this end, I echo the Minister’s tribute to staff in the social care system who have tirelessly sacrificed to protect those in their care.
My main point is that, while seeking to vaccinate those working in care homes may make sense in the short term, I would love to see a more systemic approach by the Government to make our health and social care system more resilient generally, rather than reacting to events after the horse has bolted. By doing so, we would be able not only to address the problems we face in our social care system and its funding, but to deal with the long waiting lists we face and ultimately make our economy and society less of a hostage to whatever crisis next turns up to fill our hospitals with patients.
Hospitals and care homes are particularly vulnerable within our wider system right now, because they concentrate a lot of vulnerable people and thus make it easy for the virus to reach them, relatively speaking. Of course, defending them helps, but I would love to see more thinking in government to tackle root causes, such as whether we should be concentrating so many vulnerable people in one place at all and whether more diagnosis, care and treatment could be done at home, remotely, in the community or in smaller facilities. If they have to be in larger units, bubbles could be created within them, so the truly vulnerable are separated from the others. Only in that way, I believe, will we truly eliminate the likelihood of future lockdowns.
However, today we are talking not about this more holistic or comprehensive approach to preventing infection, but about the measure before us. I support it in principle, but the challenge is in the transition. Those who work in care homes today did not sign up to compulsory vaccination when they applied and accepted their job offers, so there is an ethical issue about what we do about those who choose, rightly or wrongly, to object for their own ethical and other reasons. If this were another job, for example in certain units in the Army where vaccination is the expected behaviour upon receiving an offer, this would not be an issue, but we now face having to impose it retrospectively on current workers. More thought needs to be put into how we deal with this dilemma. For example, could the Minister consult the care sector to explore what roles people who have been a front-line carer could play, which would not require vaccination, either remotely or on site, but separated from vulnerable service users? Could steps not be taken to separate different groups of patients in care homes based on the latest clinical science? This would at least reduce the risk of discrimination and the perception of rules being changed arbitrarily and after the event, rather than in a planned way.
Ultimately, we have to accept that we are still fighting this pandemic and that emergency measures like these are needed, but we also need to remember that we are in a democracy and that you cannot unvaccinate someone, so, unlike other measures, this cannot be temporary or reversible. We have to give more thought to what we do to look after those who object to being vaccinated, even if we may disagree with them, rather than casting them and their concerns aside, even if for the very worthy cause of keeping service users healthy, protected and alive. It is a very slippery slope, changing the terms of someone’s job such that they suddenly find themselves forced to do something against their conscience. Let us hope that this and future Governments will do this only very rarely and ensure that they have thought through the implications for everyone, including workers, carefully in the future.
Baroness Fox of Buckley (Non-Afl)
My Lords, there have been some excellent speeches in this debate. I speak the day after the rather misnamed “freedom day” was used by the Prime Minister to herald a “show your papers” society. No doubt the threat of domestic passports—a policy that the Minister for Vaccines has regularly described as discriminatory—is just a ploy to nudge or blackmail young people to get vaccinated or be denied access to nightclubs and public life.
Today I am here to speak against another illiberal measure: mandated vaccines for care workers. That message is, “Get vaccinated or you will be denied access to your job”. Have the Government abandoned using the usual democratic means of persuasion—convincing citizens of the merits of policies—and resorted instead to a lazier, coercive approach, bypassing Parliament while they are at it?
The Government claim that they have tried extensive communications programmes to try to persuade care workers to get jabbed, but how hard have they tried? I think the UNISON suggestions were very helpful. We have heard from the noble Baronesses, Lady Noakes and Lady Bennett, about some other ways we can have targeted persuasion, peer-to-peer reassurance initiatives and so on. I just do not believe that we have tried hard enough.
We all understand that vaccine hesitancy among care workers is a moral dilemma. Ideally, those who work with vulnerable people should not put them in danger, and it would be better if they were immunised. As my mother lived in a care home and my aunt is still a resident, I am sensitive to the idea that, in certain protective environments, following health and safety rules is key to the job. If care workers who have intimate contact with our loved ones refused to wear PPE, for example, we might think them negligent, so I can see both sides. Can the Minister concede that this is an ethical minefield? This legislation is a blunt instrument that does not take into account any nuance at all.
Ministers say that the policy is based on consultation, and they claim that they have listened to the experiences and concerns of providers and people living and working in care homes, but have they really listened? A majority of the consultation respondents did not support mandated vaccines, and 62% of care home residents themselves are unsupportive of the proposal.
The consultation is credited with the extraordinary decision to broaden the scope to include, with limited exemptions, everyone who enters a care home, regardless of their role. Can the Minister explain whether the driver who regularly delivers food should be sacked too? What about the hairdressers and the arts and crafts teachers who went into my mum’s home and who service homes? Will they be banned? Will there be bouncers at the door? Will homes have fewer services?
Then there are the unintended consequences. A recent study by the London School of Hygiene & Tropical Medicine was very clear that the Covid-19 vaccine should remain voluntary for care workers or it would risk negatively affecting relationships at work, hardening stances against the vaccine and undermining the trust in all vaccines and the process of policy-making.
Let me be clear: I am an enthusiastic supporter of vaccination. The 18th-century Edward Jenner is one of my personal heroes. Specifically, Covid vaccines are proof that humanity can deploy scientific ingenuity in managing and overcoming deadly challenges. I have no time for the anti-big-pharma tropes or the rejection of pharmacological interventions—nature does not know best. But I also believe in freedom, specifically freedom of choice and conscience, and surely it is dangerous and regressive to weaponise medical interventions as the price of freedom. Ever since trade unions and radicals forced the repeal of the Contagious Diseases Acts in 1886, the voluntary principle of opting out has worked well. At the very least, overturning that principle in law should require far more scrutiny than a rushed-through statutory instrument given only 90 minutes of debate. I thank the noble Baroness, Lady Wheeler, for forcing us to at least have this debate, but this is not the way it should be done.
The Government insisted that this was necessary, however, to protect vulnerable residents. That might be more convincing if so many vulnerable people had not died of Covid in care homes due to government policies that were not debated. All right, that was an emergency but more recently the welfare of the many of the same vulnerable residents has been jeopardised by draconian restrictions on visits from families. I commend to all noble Lords Midsummer Milestones, a briefing paper from John’s Campaign and supporters of Rights for Residents, to get a visceral sense of the horrors inflicted on those in care homes by the mandatory 14-day isolation rules. The protective ring around care homes really does ring hollow and now the everyday heroes of care homes, who worked their guts out during the pandemic, feel victimised. I have received droves of emails from front-line staff who say that they feel like third-class citizens.
Finally, and ironically, this policy could make care homes less safe in the future. We have already heard that if only 5% of staff refuse the vaccine and are sacked, that will mean tens of thousands of workers leaving a sector that already has severe staff shortages. Does the Minister think homes should operate with dangerously low staffing levels or close down? Many professionals believe that mandated vaccine policy will see them close altogether, with a loss of 50,000 beds. Does the Minister realise that that would mean residents ending up in hospitals, increasing pressure on the NHS? Oh, the irony.
This SI is not serious policy. I will abstain because regret is not strong enough for how I feel. The issue requires proper, nuanced, moral argument in this House—the vulnerable deserve it.
Baroness Brinton (LD) [V]
My Lords, I declare my interests as a vice-chair of the All-Party Group on Adult Social Care. Many have spoken from the heart, including my noble friend Lady Tyler, about the principles of ensuring that those who need to be cared for by the care sector are kept safe. From these Benches we unequivocally support that principle but we argue that this SI itself is flawed, as demonstrated by the eighth and 10th reports of the Secondary Legislation Scrutiny Committee. These echo the concerns of cross-party MPs in their debate on this SI last week.
First, it is important to say that a year ago the shockingly high death toll in care homes was because neither residents nor staff were protected by our Government. In the early days, patients with Covid were discharged from hospital into homes. Worse, staff could not get access to proper PPE. I do not take the view of our Prime Minister—as reported by Dominic Cummings—that anyone over 80 is going to die soon anyway. For too many, Covid is a very nasty disease, as he well knows. Shame on him for dismissing the lives of anyone over 80.
I turn to the regulation itself. There is still no impact assessment. The statement of impact, hurriedly published yesterday, does not answer the questions raised in the Commons debate last week and does not provide the evidence for its assertions. Further, it is not clear exactly where the boundaries of the Minister’s powers lie in the regulation and what ability there is, therefore, for mission creep and Henry VIII powers.
One example is the nature of the evidence required for vaccination status. It might be an app. It might be an NHS letter. There is no evidence yet for your Lordships’ House to understand how secure this process would be. Nor are the duties under law of the registered person in a care home or a care company stated. The Secondary Legislation Scrutiny Committee pointed out that it was not certain
“whether that would provide a sufficient defence to a registered person if they needed to contest a sanction for non-compliance.”
The real concern from the evidence given by Ministers and their officials is the actual size of the problem they are trying to solve. SAGE has said that the target for staff vaccinations should be around 80% and, in his opening speech, the Minister said that we are so nearly there with the vaccinations and then quoted the data to confirm that, despite localised variations. The 10th secondary legislation report says:
“It became evident that the DHSC are trying to target this legislation on particular groups of people”.
It is not explained in the Explanatory Memorandum, perhaps because it is those people in deprived areas, younger staff and ethnic minorities.
I reassure the noble Lord, Lord Wei, the noble Baroness, Lady Fox, and others that, for months, the care sector and unions have been working with vaccine-hesitant staff. Back in January, a GP in Newcastle was reported as saying that the single most effective tool to overcome vaccine hesitancy was getting local doctors who staff know to listen to their concerns and answer them. Care providers confirm that this technique is highly effective and, frankly, it is probably why the SAGE targets and more are achievable. Why are the Government not backing this route, which would appear to overturn staff hesitancy more than any other technique, and certainly more than coercion?
There is a long litany on the lack of legislative compliance, commented on by many noble Lords, in addition to the lack of the vital impact assessment. The sector has faced a perfect workforce storm in the last 18 months. Brexit has resulted in large numbers of EU staff leaving the UK. Now, as restrictions are lifted, staff are being wooed by those able to pay premium salaries in hospitality and, in rural areas, agriculture. Social care providers say that there are already over 120,000 vacancies. They know that they will have to sack those who refuse vaccinations and will find it even harder to recruit from an ever decreasing pool. All the Government say is that it will cost the sector £100 million—much better to work with the sector to do this voluntarily.
To workforce issues, we must add the lack of detail in the Explanatory Memorandum about how this proposed system would work. Nor do the SI or the EM have key definitions, again leaving your Lordships’ House in the dark. I add to the comments of others about the inconsistencies of targeting just this sector and not others in the NHS. So, care assistants, plumbers and hairdressers must be vaccinated if they are going into care homes, but not GPs and other doctors—that is extraordinary.
I end by returning to the fundamental issue of whether there is a need for this SI. One of the largest care organisations, Four Seasons Health Care, challenges the Minister’s assertions that care homes are not safe at the moment. In its evidence, it said:
“Since March 5th 2021 we have had 2 covid deaths, during which time 955 residents have passed away. Covid therefore accounts for 0.2% of all our deaths in the past 18 weeks.”
Can the Minister provide the nationwide data on deaths in care homes over the last four months? I believe it matches these figures, so is this SI necessary? The Government admit that SAGE’s target was met, but have said there should be even more vaccinations. Other than the Minister, every speaker tonight has raised problems with these regulations, from all sides of the House. From these Benches, we say that the litany of minor and major issues means that the instrument should not be brought into effect, so we will support the amendment of the noble Baroness, Lady Wheeler.
Lord Bethell (Con) [V]
My Lords, I thank noble Lords for their considered questions and huge interest in the instrument laid before us today. Tragically, there have been more than 30,000 deaths recorded among care home residents during this pandemic. We have a duty to do all we can to prevent further suffering. Testing,PPE and infection prevention can go only so far in the mitigation of risk. Ensuring very high levels of vaccination for people living and working in care homes is an essential public health intervention for a serious vaccine-preventable disease.
To answer my noble friend Lord Lansley, the residential care workers covered by these regulations are handling the most vulnerable and elderly in priority list 1, which is why we started with them. Forthcoming consultations will address those who work with priority lists 2 to 4 and, in response to the noble Baroness, Lady Brinton, we may ultimately consult on extending further into the rest of the health and social care workforce. My noble friend Lord Lansley asked about resources. Our focus has been on ensuring that the social care sector has the resources it needs to respond to the pandemic. On 27 June, we announced a further £251 million of adult social care Covid-19 support, through an extension of the infection control and testing fund.
I say to my noble friend Lady Foster, who spoke with such passion on individual choice, that it is worth bearing in mind that many people are not afforded much, if any, choice in who cares for them. We have heard from people with lived experience of care. They want to know that the person who cares for them is vaccinated. I am not instinctively a supporter of mandatory measures. I note my noble friend’s philosophical points on this with great interest. I am even less keen to impose obligations on those people just at the time when the rest of society is opening up around them. But the noble Baroness, Lady Tyler, put it very well. She made a strong case, with moving personal testimony, that it is right that we protect the most vulnerable, even if it would take us further than we would normally go. We simply cannot be in a position where those most in need of care and the highest level of protection from the threat of Covid face a lottery of risk depending on the level of vaccine uptake by those working in their care. My noble friend Lord Cormack has spoken on this on several occasions extremely movingly.
It is not our intention to compel anyone to take the vaccine against their will. We can, and should, make it an essential criterion for working in care homes—to make it an explicit duty of care, providing peace of mind to colleagues, residents and all who visit. Barchester, a large care home provider with over 16,000 staff, already requires staff to be vaccinated. The evidence there gives us real cause to be hopeful, showing that, having taken the time and effort to engage with employees, understand their concerns and encourage them to take up the vaccine, only 0.5% of staff left the workforce. I reassure the noble Baroness, Lady Wheeler, that there have been huge efforts to drive vaccination take-up among care home staff in recent months already. In response to the noble Baroness, Lady Brinton, and others who have spoken on this point, I would welcome the opportunity to update noble Lords on these efforts, in detail, at a suitable briefing.
We have heard the arguments made by the noble Baroness, Lady Tyler, that social care teams need support. That is exactly why vaccination teams have visited care homes to offer vaccinations to both residents and staff, with actions at the national, regional and local level to improve access and address concerns. To answer the concerns of the noble Baroness, Lady Wheeler, on guidance, I reassure the House that we recognise the need to introduce these changes with the utmost care and sensitivity. To the noble Baroness, Lady Brinton, we are working with representatives from the sector to produce detailed operational guidance to support implementation. The noble Baroness, Lady Tyler, is right that the implementation is complex, so we will also be working with Skills for Care, the charity focused on workforce development, to ensure that guidance and best practice are available to support providers and local authorities. I say to the noble Lord, Lord Campbell-Savours, that the wearing of masks in a care home setting is properly governed by regulations. I reassure him that the guidelines are rigorously enforced.
I will address the heartfelt, tough and, if I may say, challenging remarks of noble Lords on the impact statement. I reassure noble Lords that this Minister, this department and this Government fully respect Parliament, and the scrutiny and challenge brought by Parliament and this House. We have published an impact statement. I say to the noble Lord, Lord Hunt, that there is no question of us trying to hide that. But it is very complex. I hope the House will appreciate that there is an enormous amount about this pandemic that is unprecedented. The noble Lord, Lord Hunt, put it well. We cannot be sure how staff will react to this unprecedented measure. That is what drives the financial model, but how do we know how many will leave the sector or take a lateral move to a non-sensitive role?
Much about the vaccine has confounded expectation. Who would have thought a year ago that the take up of the vaccine among the elderly would be in the mid-90% range, or that the take-up among the young would be incredibly encouraging? As I said, one major care home provider has already brought in such a measure and saw a drop-off of less than 1%. That is why the drafting of the impact assessment has been such a struggle. There is no question of hiding or of misleading the House. We are working with partners to generate the most credible calculations possible. We will publish the impact assessment as soon as possible and we are using this time to hammer out the best estimate we can.
To the concerns of the noble Baroness, Lady Wheeler, I say that it is right that we start with care homes, where residents and staff are the top priority, and we intend to consult further on the rest of health and social care. It is also right to acknowledge the important role of the Joint Committee on Statutory Instruments in considering the regulations. I acknowledge fulsomely the vital role of the Secondary Legislation Scrutiny Committee in scrutinising the legislation and holding the Government to account. We are particularly grateful to the committee for giving us the opportunity to explain the policy in further detail in an evidence session last week.
Baroness Wheeler (Lab)
My Lords, I thank the Minister for his response and all noble Lords for their contributions on this very important SI. Of course, I join in the tributes to social care staff across the sector during the pandemic. As I said in moving the amendment, my focus is on the Secondary Legislation Scrutiny Committee’s rightful concerns about the inadequacy of the legislation and the Government’s failure to produce the essential guidance needed or the full impact assessment of the risks to the future of many care homes from the huge disruption that will take place. It is not an SI that is pandemic-restricted, a temporary measure; instead it is permanent legislation, which makes the quality of the SI even more important and reinforces the inadequacy of the legislation we have before us today on such an important issue for care homes, their staff and residents.
My noble friend Lord Hunt and the noble Lord, Lord Lansley, sought an assurance from the Minister that the measures will be temporary and time-limited, but we did not get that assurance. Once again we have an SI that seeks to extend unspecified government powers in legislation without justifying why those powers are needed. In other words, this is, as the Secondary Legislation Scrutiny Committee says,
“guidance exceeding its ancillary function and taking on the role of legislation”.
Noble Lords raised many points and I fear there is just not time now to respond to them. Overall, this SI remains an incoherent, muddled and confused piece of legislation and further last-minute information and reassurances from the Government have not made it any clearer or dealt with the key issues that need to be addressed. I wish to test the opinion of the House.
Legacy of Northern Ireland’s Past
Baroness Smith of Basildon (Lab)
My Lords, it is a shame that Statements are not read out in your Lordships’ House now. I know that it saves time and it can feel a bit odd when all a Minister does is read out another Minister’s Statement word for word, but it helps to understand why certain questions are being raised in the debate that follows. If it is the intention to continue in this way, perhaps we could consider having just a precis of the main points prior to the comments and questions.
The issue before us today is a Statement on the legacy of Northern Ireland’s past—but this past is closely bound to the present and the future, which has always made the process of moving forward to a peaceful future more challenging. The euphemistically called Troubles saw over 3,500 people killed and tens of thousands injured. As a former Northern Ireland Office Minister with responsibility for victims and survivors, I met so many, including veterans, from across communities, who still carry the physical and psychological scars of that time. Beyond that, the pain of so many and the impact on local communities reached into more areas of life than I had previously anticipated. I listened and heard what they had to say, and it has to be said that, at times, those conversations about the way ahead and the future were difficult and challenging for all of us—but no progress is ever made without understanding the other side.
In Prime Minister’s Questions last week, the Prime Minister said that the plans before the House and those before us today would allow Northern Ireland to
“draw a line under the troubles”.—[Official Report, Commons, 14/7/21; col. 365.]
We cannot live in the past, but the phrase “draw a line under”, referring to something so vast as that period in Northern Ireland’s history—and that of Great Britain —implies a lack of understanding.
Alongside the Statement, the Government’s Command Paper wisely states:
“The best outcomes for Northern Ireland have been achieved when we have collectively taken bold steps.”
However, the difficult truth for the Government is that there is no collective support for these proposals. The Government have failed to undertake the meaningful and genuine engagement and discussions in order to build collective support. There is no strength or wisdom to be found in the Government unilaterally announcing a policy or process that seems to have no support beyond 10 Downing Street.
These plans have been resolutely rejected by victims and survivors in Northern Ireland and Great Britain and across the political spectrum by all five parties in Northern Ireland. Today Stormont was recalled urgently to debate the proposals. The Motion before the Assembly stated that
“victims and survivors should have a full, material and central role and input into the content and design of structures to address the legacy of the past”
and called on the Assembly to reject the Government’s proposals
“for a statute of limitations”.
I do not need to tell the Minister—I am sure he is very much aware of it—that the Motion was unanimously supported and passed without a vote. It is quite an achievement for the Government to unite every Northern Ireland political party. In addition, the Irish Government are also opposed to this approach.
As well as those in Northern Ireland, there is great concern here in Great Britain. Even today, as the families of the victims and survivors of the Birmingham bombing petitioned Downing Street, they have still not had any communication from the Government about what this means for them. What we need today from the Government is some clarity, honesty and humility—clarity and honesty that this is not the way forward that victims were promised. Only last year, the Government promised to legislate on the Stormont House agreement through the New Decade, New Approach deal. Instead of progress on Stormont House, the proposal rides roughshod over it.
Can the Minister say something about how Operation Kenova fits into the Government’s plans? I give the example of Tom Oliver, who was abducted and murdered by the IRA in 1991 at the age of 43. As part of Operation Kenova, his family reported yesterday that new DNA evidence gave them “fresh hope” for the investigation. They have illustrated this as “a prime example” of why cases should not be closed. Does the Statement mean that the Government intend to shut down all live cases regardless of their status? Have they sought legal advice to ensure that this is compliant with the duty to provide effective investigations under Article 2 of the ECHR?
I think everybody in your Lordships’ House today knows how difficult this is. But we also know it is possible to make progress when some dismiss it as impossible. That is where the humility comes in. We do not want the Government to squander an opportunity to seriously address very real, genuine concerns about the legacy of the past, through a failure of effective engagement. I put it to the Minister, with a genuine commitment to co-operation, would it not be better to pause, listen and work with others to consider all options—including other options—for moving forward?
Baroness Suttie (LD) [V]
My Lords, I echo the words of the noble Baroness, Lady Smith of Basildon, about not hearing the original Statement; it does make for a slightly peculiar debate, even remotely, as I am this evening. It is also regrettable that such an important issue is being discussed so late in the day.
It is now 18 months since renewed hope was given to the people of Northern Ireland through New Decade, New Approach in January last year. That was an approach agreed by the previous Conservative Government, the Irish Government and had broad support across the communities and parties of Northern Ireland. Last week’s Statement represents a dramatic and deeply unwelcome move away from the Stormont House agreement, with its approach of peace and reconciliation, towards a blanket amnesty that does not distinguish between those who broke the law and those who upheld it. As the noble Baroness, Lady Smith, has said, almost uniquely, last week’s Statement in the House of Commons by the Secretary of State for Northern Ireland succeeded in uniting all five of Northern Ireland’s parties against these proposals.
These proposals are insulting to the victims and their families, across all communities and backgrounds, who have already waited so long to see justice and to be able to have closure. It would be interesting to know whether the Government can give a single example of when such an approach has ever succeeded in promoting a move towards genuine reconciliation. It is hard not to conclude that these proposals owe more to pressures from within the Conservative Party and certain elements of the media than to a genuine desire to deal with the legacy of the past and seek lasting peace and reconciliation.
The approach now adopted by the Government has introduced equivalence between all veterans, the vast majority of whom served the community with honour and respect for the rule of law, and terrorists, who deliberately sought to cause death. Justice and equality before the law are essential elements of trust in the law, which is a vital element of a path to reconciliation and moving on from the legacy of the troubled past.
Given the strength of opposition to these proposals in Northern Ireland, can the Minister say whether it remains the Government’s intention to impose this approach over the heads of Northern Ireland political parties and victims’ groups? Does he not fear that these proposals risk being seen as having no legitimacy and no credibility? Can he clarify their impact on inquests and ongoing investigations and prosecutions? Can he say whether the Government’s proposals apply only to Troubles-related deaths or to any other crime committed by members of proscribed terrorist organisations between 1968 and 1998? If an investigation concludes that an individual’s death was caused by a member of a proscribed organisation or a member of the security services, will the option to pursue the individual responsible via a civil claim also be closed off?
As Sir Jeffrey Donaldson MP put it so powerfully in the House of Commons last week:
“I want to take the path to reconciliation, but I cannot believe that the path to reconciliation is made easier when we sacrifice justice. The victims have to be at the centre of this, and I would urge the Secretary of State, in taking forward his proposals, to listen to their voices. This must be a victim-centred process; it cannot be at their expense.”—[Official Report, Commons, 14/7/21; col. 396.]
Viscount Younger of Leckie (Con)
I thank the noble Baronesses, Lady Smith and Lady Suttie, for their comments and questions. I also particularly thank the noble Baroness, Lady Smith, for her sensitive words about the victims, because of course they remain very much in our minds.
I echo the thoughts of both noble Baronesses about the way the House has to be at the moment and my inability to read out the Statement. I have echoed similar words before—I think it was on the Ballymurphy Statement—when I agreed with the comments made that it is often better to have the Statement read out, because it provides a sensitive and suitable base from which to discuss challenging issues.
As the Secretary of State set out last week in the other place, while Northern Ireland today is undoubtedly a fantastic place to live in, work in and visit, the unresolved legacy of the Troubles remains and casts a long shadow. We bear in mind that Northern Ireland is celebrating its centenary year; noble Lords may see that I am wearing the badge. However, the legacy continues to impact and permeate society in Northern Ireland, both for those who were directly involved and affected and those who were not but live with the trauma of previous generations.
It is now a painful reality that the focus on criminal investigations is increasingly unlikely to deliver successful criminal justice outcomes. More than two-thirds of Troubles-related deaths occurred more than 40 years ago, and it is increasingly difficult for the courts to provide families with the answers that they seek. Time is not on our side. If we do not act now, we will condemn current and, importantly, future generations to ongoing division and prevent the reconciliation needed for Northern Ireland to move forward.
That is why—to give a little bit of background—the Secretary of State published the Command Paper, which sets out, very briefly, the three key measures: the new independent body that would focus on the recovery and provision of information; a package of measures that includes a major oral history initiative, consistent with what was included in the Stormont House agreement; and, as has been mentioned, a statute of limitations to apply equally to all Troubles-related instances.
I want to try and address some of the questions raised. The noble Baroness, Lady Smith, stated that there had been no engagement and particularly that there was no collective support. Okay, I note what she says. However, I point out to her that there was 18 months of preparation for this Statement, and we have indulged in a lot of engagement, particularly in recent months, with a range of groups. Part of the point of this Statement is that these proposals are leading to an intense and short period of engagement with all groups within Northern Ireland, including victims’ groups, to see how we can find a way forward. That is the honesty and the clarity for which the noble Baroness, Lady Smith, was looking. We should be open about that.
Operation Kenova has proved to be valuable in terms of drawing out information about the Troubles, which we are looking to build on by drawing out reconciliation and bringing out historical information that we hope will provide some comfort to victims, should they wish this. However, part of the reason we have brought forward these proposals is that Operation Kenova has led to no prosecutions, and that is a sad fact.
The noble Baroness raised the issue about Tom Oliver. It would be inappropriate for me to comment on a matter under criminal investigation, but the Government are clear that a continued focus on criminal justice outcomes will deliver neither justice nor information to the vast majority of families. That is why obtaining information, as I said earlier, which we know is so important to many victims and survivors, is the cornerstone of the proposals that the UK Government have put forward. We want to deliver tangible outcomes for as many families as we possibly can.
The noble Baroness, Lady Smith, made great play—and I understand why—about why we are bringing forward these proposals and cannot find an agreement. We are determined to drive progress and deliver legislation on this issue, but we are consulting first. This paper sets out our proposals and, as I said earlier, it will be an intensive and time-limited period of engagement. There are many different perspectives on this difficult issue, which we recognise, but we must all work together to find a way forward that works for Northern Ireland, which comes back to a point the noble Baroness made. These issues are sensitive; they will require courage and, importantly, they will include collaboration.
The Principal Deputy Chairman of Committees (The Earl of Kinnoull) (CB)
We come to the 20 minutes allocated for Back-Bench questions. I ask that questions and answers be kept short.
Lord Caine (Con)
My Lords, like the noble Baroness, Lady Smith of Basildon, I have spent many, many hours in meetings with victims and survivors of the Troubles and was also heavily involved in the Stormont House negotiations in 2014. My noble friend will be aware that all previous attempts by successive Governments to deal with legacy have foundered because of lack of consensus in Northern Ireland. None the less, is it not the case that for any proposals to succeed, they will require significant support from across the community? Can he therefore assure the House that legitimate points and concerns raised during this short and intensive consultation will be fully and properly considered?
Secondly, does my noble friend agree with me that without the contribution and sacrifice of the Royal Ulster Constabulary George Cross and the Armed Forces, there would have been no peace process in Northern Ireland and no 1998 agreement? Will he, therefore, picking up on the point made by the noble Baroness, Lady Suttie, assure me and the House that this Conservative and Unionist Government will never accept any equivalence between those who upheld the rule of law in Northern Ireland and those terrorists who sought to destroy it?
Viscount Younger of Leckie (Con)
On the last point, my noble friend is right that there is no moral equivalence between veterans and service personnel who defended the rule of law and those who sought to destroy it, particularly from terrorist organisations. On the way forward, and slightly repeating what I said earlier, we will enter an intensive but brief period to engage with all parts of the community, including victims’ groups, to allow them to discuss and consider their proposals. On my noble friend’s point about the RUC and the Armed Forces, they have served with bravery, professionalism and distinction but, it must be said, with some exceptions.
Lord Dodds of Duncairn (DUP)
My Lords, people talk about moving on, but it feels that many families of victims of terrorism in Northern Ireland are being asked to move aside, which is unacceptable and intolerable. Their rightful desire for justice, already tempered by concessions to terrorists such as release from prison after two years, on-the-runs’ letters and royal pardons secretly delivered, has been sacrificed. The latest step from the Government has been greeted with a mixture of anger and disbelief. The Government talk about not making an equivalence between terrorists and members of the Armed Forces and the police, but these proposals are in grave danger of breaching that principle. I have great respect for the Minister and know that he cares deeply for Northern Ireland. Why are the Government setting aside the unanimous political consensus in Northern Ireland and, more perplexingly, the unanimous views of victims of the terrorists?
Viscount Younger of Leckie (Con)
I, in return, very much respect the huge amount of experience and knowledge that the noble Lord has from his continuing time in Northern Ireland. The UK Government understand, fully appreciate and are very sympathetic to the immense difficulty for some families of accepting any prospect of a shift from criminal justice outcomes. However, this approach offers the best chance of giving more families some sense of justice through acknowledgement, accountability and restorative means, rather than a focus on retributive justice, by looking at reconciliation and how we can deliver for victims in order to end the cycle of investigations.
Lord Mandelson (Lab) [V]
My Lords, it must be right in principle that every family bereaved in the conflict should have access to an effective investigation and meaningful process of justice, regardless of the perpetrator. This, rightly, has guided every Government since the Good Friday agreement. However, in practice, we must be honest with ourselves that effective, conclusive investigations in the numbers demanded is simply not possible. The likelihood of prosecution is remote and therefore the original perpetrators, for all practical purposes, are being shielded by the rule of law, not living in fear of it. Therefore, it is reasonable to weigh alternative approaches. We should consider the Government’s proposals on their merits, however painful it is—and I acknowledge that it is painful—for victims’ families to accept a statute of limitations.
However, there is a suspicion that the Government might be half-hearted about a system of information retrieval if it is introduced, and that the Prime Minister let the cat out of the bag when he talked of drawing a line under the so-called Troubles the other day. Does the Minister accept that if any new body is created to retrieve information and confront people with the truth, it must be genuinely independent and powerful—fearless and fearlessly led? If not, it would be much worse than useless; it would be an insult to, and a betrayal of, every bereaved family in Northern Ireland. Do the Government accept this?
Viscount Younger of Leckie (Con)
Indeed, and again, I appreciate the knowledge and huge experience that the noble Lord has from his time in Northern Ireland and when he was in government throughout all those years. I reassure him that we indeed wish to set up a fully independent body to look at this. It is very important that it is fully independent, and the issues relating to that independence will be laid out, as we will see over the coming weeks. Again, we are consulting and we would like to hear from all parties on this. However, the noble Lord will also know—I appreciate his helpful remarks—that Northern Ireland has already seen difficult but necessary measures put in place that have in the past put aside normal criminal justice processes for the cause of peace and reconciliation. He will know that this includes the early release of prisoners, restricting prison sentences to just two years, even for the most heinous Troubles offences, and concluding the process of secretly decommissioning paramilitary weapons. Therefore I believe he is right that we are in a position where we need once again to explore alternative proposals.
Lord Campbell of Pittenweem (LD)
My Lords, may I begin by endorsing the powerful response to the Statement from my noble friend Lady Suttie? If you look in the body of the Statement, you see that these issues are described as being “complex and sensitive”. Given that all political parties in Northern Ireland have united in their opposition, how can the Government possibly expect that they can implement these proposals? What price devolution of power if they attempt to do so?
Viscount Younger of Leckie (Con)
I am afraid I do not accept the rather negative views from the noble Lord. That may be the case, and I am not complacent about the views that have been expressed so far. However, I say again that these are genuine proposals that we have put on the table which we wish to talk about to all parts of the community. Our hope is that in discussions and in listening to what they think, we will be able to find a way forward. I say to the noble Lord, who has not put forward any alternative proposals himself, that there is nothing else on the table and we need to look at alternative means, as I said to the noble Lord, Lord Mandelson.
The Principal Deputy Chairman of Committees (The Earl of Kinnoull) (CB)
The noble Baroness, Lady O’Loan, and the noble Lord, Lord Hannan of Kingsclere, have withdrawn, so I call the noble Lord, Lord Dannatt.
Lord Dannatt (CB) [V]
My Lords, it is now some three years since I led a debate in your Lordships’ House to call for legislation to end the unfair and unreasonable pursuit of veteran soldiers arising from their actions during the Troubles, the vast majority of which were firmly within the law. I therefore welcome the statement of intent that puts forward a statute of limitations to end all investigations that might lead to prosecutions in a continued but sadly vain attempt to seek the truth through the criminal justice system, as the collapse of recent trials has shown. However, I am sure that the Minister agrees that no one is above the law, so I press the question of whether, in the event of new and compelling evidence becoming available, the Government intend to insert a clause in the proposed legislation to cover that eventuality. If not, why not?
Viscount Younger of Leckie (Con)
I am sure that the noble Lord will be part of the proposals that we have put forward and that we will engage with him. I am not able to give an answer to him at the moment. He is right that nobody is above the law. I appreciate his general welcome for these proposals and I recognise, as he also will, that these measures are intended to bring greater certainty for all communities, including veterans and the families of victims. Our proposals—again, they are proposals—will move the focus away from this endless cycle of investigations into the past and on to a future based around reconciliation and delivering answers for all victims.
Baroness Hoey (Non-Afl) [V]
My Lords, does the Minister understand the dangers of an amnesty—let us call it what it really is—playing into the hands of Sinn Féin/IRA’s long-term war strategy of rewriting history to establish moral equivalence between legitimate soldiers and police, who donned the uniform and in the vast majority of cases served with restraint and honour, and the terrorist, whose sole aim was to murder, bomb and destroy lives? Does he accept that this moral equivalence is exactly what these proposals are bringing about?
Viscount Younger of Leckie (Con)
I would like to correct the noble Baroness: this is not an amnesty, and we never said that it was or would be an amnesty; it is a statute of limitation. There is a difference, which is that there will be no pardons. However, we must be clear that, with the passage of time, the number of convictions flowing from any investigative process is likely to be extremely low, as I said earlier. If our focus is criminal justice, we will fail almost every family.
Lord Dubs (Lab) [V]
My Lords, there is an equivalence in the pain that all victims feel. I do not see how the Government are going to move forward unless there is a drastic change in their proposals. Do the Government have any further plans to consult the community and to amend their proposals so that there is some element of acceptance for what is, at the moment, a unanimous view against the Government’s idea?
Viscount Younger of Leckie (Con)
I find the noble Lord’s comments quite helpful, because they allow me to say again that this is a consultative process and that we will be listening to views expressed. As I said earlier, for some, what we are proposing may—and will—be very difficult to accept. We recognise that these issues are highly complex, sensitive and steeped in—how shall I put it?—a dark history, and therefore will be, as they have been for decades, hard to address. I acknowledge the noble Lord’s point about the pain of all victims.
Baroness Ritchie of Downpatrick (Non-Afl) [V]
My Lords, a previous Conservative Government negotiated the Stormont House agreement, upon which many parties in Northern Ireland agree. They also, jointly with the Irish Government, commissioned New Decade, New Approach in January last year, which saw the restoration of institutions, and which contained a commitment to implement the Stormont House agreement. However, both of those elements have now been ditched and binned by this Conservative Government. So I ask the Minister: do the Government, having signed up to previous agreements and ditched them, now have any credibility, when all five political parties in Northern Ireland, along with the Irish Government, the Northern Ireland Assembly and victims, have opposed this latest Statement containing proposals because it violates and undermines the position of victims and survivors? We must always remember that reconciliation—a truly reconciled society—requires justice and accountability.
Viscount Younger of Leckie (Con)
I note the comments made by the noble Baroness about the Stormont House agreement. As I think I said earlier, we continue to adhere to the principles of the agreement. I think we should be positive rather than negative in looking at these proposals and at the details within the Command Paper. I am sure that the noble Baroness, with her experience of Northern Ireland, has already gone through it with a fine-tooth comb, but I encourage her and all others involved in this process to look carefully at what we are proposing, to engage with our process intensively and to help us find an alternative way forward in this very difficult matter.
Baroness Harris of Richmond (LD) [V]
My Lords, in the other place, the Minister was content to use the quote from the excellent report by the noble and right reverend Lord, Lord Eames, and Denis Bradley published back in 2009. But what have the Government done to consider, even in part, that report, which went to enormous lengths to address precisely what the Government are still talking about today, 12 years later?
Viscount Younger of Leckie (Con)
The noble Baroness brings to light the problems that we have all been facing over decades in Northern Ireland; and here we are, with the Government looking at, and working extremely hard to find, a way forward. I took note of the Secretary of State’s comments at the end of the Statement. We are at a point where we must find a way forward, having the victims in mind. We must also look at a process of reconciliation and not look to find routes that are simply not going to lead to any prosecutions.