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Oral Answers to Questions
(3 years ago)
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Mr Virendra Sharma (Ealing, Southall) (Lab)
James Sunderland (Bracknell) (Con)
The Chancellor of the Exchequer (Rishi Sunak)
Last week’s Budget set out an ambitious package to support business, enterprise and innovation: the super-deduction, new relief to incentivise investment, a reduction in business rates and investment in infrastructure, innovation and skills to drive future growth. This was a Budget that backed businesses across the United Kingdom.
Mr Sharma
Business rates are broken. Business owners on Boston Road and The Broadway in Southall in my constituency do not want hypocritical answers. They want the system fixed to support smaller businesses and help them to thrive. What will the Chancellor do to help them?
Rishi Sunak
Last week’s Budget set out a £1.7 billion tax cut for many small and medium-sized businesses across the UK. It will mean that retail, hospitality and leisure businesses will see a 50% discount in their business rates next year, up to the value of £110,000 each. That will, of course, benefit many of the shops in Southall that the hon. Gentleman mentioned, and hopefully I can do my bit by visiting to buy my Diwali mithai later this week.
James Sunderland
The Chancellor will know that Bracknell has successfully reinvigorated its town centre and continues to be a great place to do business. Noting that Bracknell and neighbouring Wokingham have one of the lowest centrally funded budgets in the country from central Government, will he please reassure me that east Berkshire will not be passed by when it comes to levelling-up funding?
Rishi Sunak
I can assure my hon. Friend that, whether through the levelling up fund, the community ownership fund or the community renewal fund, this Government have ambitions to level up across the entire United Kingdom. With regard to the local government funding he asks about, last week’s spending review set out £1.6 billion over the year of additional cash grant, the precise allocation of which will be set out in due course by my right hon. Friend the Secretary of State for Levelling Up, Housing and Communities in the local government finance settlement.
Mr Pat McFadden (Wolverhampton South East) (Lab)
I wish the Chancellor and my hon. Friend the Member for Ealing, Southall (Mr Sharma) a very happy Diwali. As well as all the tax rises on income and business that the Chancellor has announced in the past six months, buried in the Budget Red Book is a plan for a stealth tax on the self-employed of £1.7 billion over the next few years. After the past 18 months, in which many self-employed people have had no help at all, and when they are already being hit with the other tax rises he has announced, why are the self-employed now being hit with this extra tax rise, which he did not even mention in his Budget speech last week?
Rishi Sunak
There were no extra taxes for the self-employed in last week’s Budget; the right hon. Gentleman may be referring to a timing difference that was reflected in the Budget scorecard of previously announced policies. With regard to the self-employed, he should take a moment to reflect on the fact that this Government provided almost £30 billion of support to millions of self-employed people throughout the crisis, and I am very glad that we did so.
Mr Mark Harper (Forest of Dean) (Con)
May I first thank the Chancellor for the steps in the Budget to help retail, hospitality and leisure businesses? They have gone down very well in my constituency, where those businesses are important, were hit hard during in the pandemic and were grateful for the support they got. People have commented to me that the most useful thing he can do is to focus on getting the public finances in order, as he spoke about in the latter part of his speech, so that we get taxes on a downward path as we go through this Parliament. That is the best fiscal way to help businesses to prosper in the future.
Rishi Sunak
As always, my right hon. Friend makes an excellent point, and I thank him for the eloquent speech he made on this topic last week. I wholeheartedly agree with him. My intention and goal over the rest of this Parliament is to reduce taxes, and we both know that the best way to create growth and prosperity in this country is to unleash the entrepreneurial innovation of our private businesses.
Alison Thewliss (Glasgow Central) (SNP)
A happy Diwali to the Chancellor and all who are celebrating. Hospitality and tourism businesses face a tough winter, with rising fuel, staffing and supply costs. While the Scottish Government, to their credit, have brought in 100% rates relief, the Chancellor’s proposals of a few pence off a pint are small comfort in comparison. A greater help would be maintaining the 12.5% value added tax rate right through next year, not putting it back up to 20% in the spring. Will he bring forward proposals to do that and to support our tourism and hospitality businesses in the Finance Bill?
Rishi Sunak
The reduced rate of VAT was put in place to support the hospitality industry during coronavirus. It extends all the way to next spring; it does not step up until next March, as the hon. Lady pointed out. As she also pointed out, the Government are putting in place business rates support to help businesses in that industry—as I said previously, up to £110,000 for each business next year through a 50% discount on their business rates, with Barnett consequentials flowing to Scotland as a result.
Jonathan Gullis (Stoke-on-Trent North) (Con)
Brewers have gone through a really challenging time throughout the pandemic, so the Chancellor’s announcement of a reduction in the draft beer duty rate was extremely welcome. Keith and Dave Bott, owners of Titanic Brewery, want to pass on their thanks to the Chancellor directly and hope that he can come and enjoy the Bulls Head in Burslem to celebrate this fantastic achievement.
Rishi Sunak
I thank my hon. Friend for the kind invitation, which he also sent me by phone. I look forward to accepting it soon and to celebrating Stoke’s success in not one, not two but three levelling-up fund bids.
Nick Smith (Blaenau Gwent) (Lab)
The Exchequer Secretary to the Treasury (Helen Whately)
Current stresses on supply chains are a consequence of global factors; as economies around the world recover, demand is outstripping supply. Where it makes sense, we are taking action to support UK supply chains, such as increasing the supply of lorry drivers to help the haulage sector meet demand for deliveries.
Nick Smith
Last week’s National Audit Office report on supply chain finance highlighted that huge contracts involving Greensill Capital, signed off by the Treasury, provided no benefits to the NHS. Does the Minister accept the NAO report, and will she ensure that in the future, contracts are properly awarded to avoid this kind of insidious lobbying?
Helen Whately
I am sure that the Government will be responding to the NAO report in due course, but I can assure the hon. Member that the Treasury works very hard with the Department of Health and Social Care to make sure that funding for the NHS, which we are increasing substantially, goes to good use and improves care for patients.
Bridget Phillipson (Houghton and Sunderland South) (Lab)
Mr Speaker,
“energy price rises…increased evidence of supply bottlenecks …shortages in key occupations”.
Those are not my words but those of the Office for Budget Responsibility, which has issued a clear warning that the Government’s supply chain chaos will weigh on the recovery beyond its current forecast. Can the Minister help businesses and families prepare by explaining how much this chaos will cost the country this year?
Helen Whately
I thank the hon. Member for her question. I do not agree with the picture that she paints. As I said earlier, there are global factors affecting challenges to the supply chain. We are providing support where it is appropriate. Specifically on energy costs, customers are already supported by the energy price cap, and we are providing £500 million extra help to households that need it during this winter.
Bridget Phillipson
The run-up to the festive period is a busy and crucial time for many businesses. They simply cannot afford delays in getting goods to warehouses from our ports, yet that is exactly what the logistics industry is warning that the shortage of heavy goods vehicle drivers is causing. Can the Minister guarantee that no presents will be missing from under the tree this Christmas because of her Government’s complete failure to plan ahead?
Helen Whately
We are indeed taking steps to support the haulage sector, where there is a long-running situation with vacancies for HGV drivers. The action we have taken includes making available 5,000 temporary visas for the short term, increasing the number of tests available so that there is greater capacity for new drivers to take tests, changing cabotage restrictions, and funding improved facilities for drivers. In the longer term, we need to see both better pay and better conditions for lorry drivers.
Liz Twist (Blaydon) (Lab)
The Economic Secretary to the Treasury (John Glen)
Distributional analysis published at the Budget and spending review last week shows that in 2024-25, tax, welfare and spending decisions made since the spending round two years ago will have benefited the poorest house- holds most as a percentage of income. This Government believe that work is the best route out of poverty. That is why the Government are investing £6 billion in labour market support over the next three years.
Liz Twist
Analysis of the Chancellor’s Budget and tax and spending plans for the next six years shows that they will cost women an additional £48 billion over that period. That is a staggering amount of money to be taken from women, and it is in contrast to the planned tax cuts for banks. Is that why the Government have failed to produce an equality impact assessment for this Budget, as they are required to—because the Chancellor knows that his tax choices are totally unfair?
John Glen
The hon. Lady must have missed a number of measures announced by the Chancellor in the Budget last week in which significant investment was made to support families through the household recovery fund and support for women in particular to get back into the labour market, alongside a whole range of other interventions.
Saqib Bhatti (Meriden) (Con)
One issue concerning me at the moment is the lack of access to cash in the north of my constituency, which suffers from significant degrees of inequality. I was pleased to be at the opening of Kingshurst post office, which will restore some cash services, but the issue remains a problem as retail banks reduce their estate. Does my hon. Friend agree that shared banking hubs are a good way forward? Will he highlight to the House what work is being done to increase access to cash?
John Glen
Banking hubs will absolutely be a part of the solution, alongside a whole range of other interventions. The Government have committed to legislate on this matter, but in the meantime, I am very hopeful that industry will come forward with meaningful proposals for a range of options to deal with the declining use of cash and ensure access is available everywhere.
Tim Farron (Westmorland and Lonsdale) (LD)
The colossal economic inequality facing rural communities is something that I hope the Government take seriously. Is the Minister aware of the collapse of local housing in communities such as mine—and indeed in the Chancellor’s next-door constituency—into the second-home and holiday-let markets? Following the Welsh Assembly Government’s example, will the Minister look at doubling council tax on second-home properties, so that communities such as mine do not lose their local populations and become riddled with ghost towns?
John Glen
The Government are looking at tightening up the rules around second homes and council tax. We would be very happy to engage with the hon. Gentleman on the matter.
James Wild (North West Norfolk) (Con)
Lucy Allan (Telford) (Con)
The Chief Secretary to the Treasury (Mr Simon Clarke)
It has just been announced, through the spending review, that the NHS will receive: over £12 billion of capital funding for investment in and maintenance of the NHS estate; £5.9 billion for diagnostics, technology and elective recovery; £4.2 billion for at least 70 hospital upgrades and 40 new hospitals; and funding to eradicate mental health dormitories. That is on top of £500 million of additional capital funding given for the second half of this year to help tackle the elective backlog. It means that NHS capital budgets will have increased by over 8% year-on-year above inflation since the start of the Parliament.
James Wild
I welcome the funding for the new hospitals programme, and highlight to the Minister that the Queen Elizabeth Hospital in King’s Lynn, with 200 props holding up its structurally deficient roof, has a compelling case to be one of the new schemes. Given the inevitable need to rebuild the Queen Elizabeth Hospital, does my right hon. Friend agree that it is far better to have a properly funded new hospital using modern methods of construction, rather than its being an unplanned cost, with emergency funding constantly being needed to prop up its failing building?
Mr Clarke
I welcome my hon. Friend’s clear and obvious passion for improving the lives of his constituents. As well as committing £3.7 billion to make progress on the 40 hospitals named last year, the Government have committed to fund a further eight new hospitals by 2030. The process for selecting those eight is being led by the Department of Health and Social Care and will be based on a range of criteria, including clinical need and deliverability. I encourage my hon. Friend to engage in that process, but I am happy to have any further discussions that would be useful.
Lucy Allan
I thank the excellent Front Bench team for a brilliant Budget which benefited every member of my constituency. I know the Treasury team cares passionately about delivering value for taxpayers. When it comes to significant capital spend for NHS projects, such as the Shropshire plan to build a state of the art critical care unit on the Welsh border, where costs have escalated from £312 million to £560 million, will my right hon. Friend say who is responsible for ensuring value for money and how they are held to account? Can he also assure me that no more cash will be allocated to that project until a ringfenced sum is allocated for accident and emergency care in Telford?
Mr Clarke
I thank my hon. Friend for her kind words about the Budget. I agree: it was a major fiscal event, one which puts the country on a strong path for continued growth. She is absolutely right to highlight the importance of delivering value for money. That is certainly something I take very seriously. It is, obviously, a shared responsibility across Government. In terms of the specific concerns she raises about that case, I urge her to speak to colleagues at the Department of Health and Social Care about the right hospital configuration for Shropshire. Again, I am always happy to have any conversations that are useful.
Andrew Gwynne (Denton and Reddish) (Lab)
I am pleased that the Minister mentioned the opportunity to provide eight additional rebuilds of hospitals, because Stepping Hill Hospital has served the people of Stockport and surrounding areas well since it was built in 1905. However, all hospital buildings reach the end of their useful lives and, with a £40 million maintenance bill, that one certainly has. The council and the foundation trust have submitted ambitious plans to rebuild the hospital on a new site in the town centre, moving it to a more accessible location with state-of-the-art facilities and helping to regenerate the centre of Stockport. This is a win-win, so will the Minister look favourably on these plans?
Mr Clarke
The hon. Gentleman makes a passionate case for Stockport and the health facilities there. Obviously, we will always look at these proposals seriously, as will Departments including the Department of Health and Social Care. Although I cannot comment on this proposal specifically, not having had sight of it in detail, I am always happy to have conversations with him.
John Lamont (Berwickshire, Roxburgh and Selkirk) (Con)
Henry Smith (Crawley) (Con)
Christian Wakeford (Bury South) (Con)
The Exchequer Secretary to the Treasury (Helen Whately)
Levelling up is this Government’s defining mission; it is a golden thread running through this Budget and spending review. We are creating the right conditions for businesses to grow and giving people the right skills to succeed. We believe that the place where someone grows up should never limit their prospects.
John Lamont
This Government are rightly committed to levelling up all parts of the United Kingdom, including Scotland. Improving transport links by extending the Borders railway in my constituency from Tweedbank to Hawick, Newcastleton and on to Carlisle would be a very good way of improving the economic opportunities for people living in those communities. Will the Minister confirm that the UK Government support the extension of the Borders railway as part of the levelling-up agenda?
Helen Whately
I commend my hon. Friend for his forthright campaign for the extension of the Borders railway. I reassure him that the Department for Transport and Transport Scotland are discussing the options to extend the railway, and, as I think he knows, the £350 million Borderlands inclusive growth deal includes up to £5 million to assess feasibility.
Henry Smith
My constituency contains Gatwick airport and, by many measures, has been one of the most negatively affected by the covid-19 pandemic. Will my hon. Friend say how levelling up will support my constituents to recover from the pandemic?
Helen Whately
I know my hon. Friend’s Crawley constituency well and I recognise the importance of aviation to livelihoods there. I am sure that he will welcome the extension of the airport and ground operations support scheme that the Chancellor announced to help airports such as Gatwick to recover from covid. We have also provided £180 million in covid loan schemes to support businesses in Crawley and, as he knows, Crawley has already received £21 million through the towns fund.
Christian Wakeford
First, may I put on record my thanks to the Chancellor for announcing that Radcliffe will receive £20 million from the levelling-up fund to regenerate the town centre, with new leisure facilities and a space for adult learning and new business? Following that extra funding and the previously announced new high school for Radcliffe, does the Minister agree that the Government are committed to creating new opportunities for young people so that they have the best chance to get on in life and fulfil their potential?
Helen Whately
I congratulate my hon. Friend, because his constituency is indeed receiving £20 million from the levelling-up fund to deliver a new civic hub in Radcliffe, which will improve access to adult education while freeing up vital space for a new secondary school. As I am sure he saw in the Budget and spending review last week, we are fully committed to providing people with the skills that they need to succeed in life.
Richard Burgon (Leeds East) (Lab)
My constituency is officially one of the most economically deprived constituencies in the country. If the rhetoric of levelling up is going to be a reality, the bid from Leeds City Council to upgrade and redevelop Fearnville sports centre to turn it into Fearnville wellbeing centre is exactly the kind of bid that should be agreed. Local people were therefore shocked when, the day after the Budget, the leader of Leeds City Council received a letter from the Government turning down the bid. The Chancellor is sitting on the Front Bench; will he step forward now and agree to meet me, the leader of Leeds City Council, James Lewis, and a delegation of local residents with a view to approving the council’s bid for the upgrade of Fearnville sports centre?
Helen Whately
I thank the hon. Member for his question, which gives me the opportunity to remind him that his area is receiving hundreds of millions of pounds of investment in transport infrastructure. We look forward to receiving further bids for future rounds of the levelling-up fund, for instance. We are delighted to invest in constituencies such as his.
Alison McGovern (Wirral South) (Lab)
The Exchequer Secretary says that levelling up is the defining mission of this Government, yet if we look at the spending review priority outcomes and metrics, we can see that across the Department for Business, Energy and Industrial Strategy, the Department for Levelling Up, Housing and Communities and the Treasury, there is just one metric on which to judge the Government:
“Economic performance of all functional economic areas relative to their trend growth rates”.
That is all that they are being measured on, so will she be specific? By how much does she expect to close the economic gap by the end of this Parliament?
Helen Whately
I thank the hon. Member for her interest in our objective to level up across the whole United Kingdom. As she repeated, it is the defining mission of this Government; as she can see, it is the golden thread running through the spending review and the Budget, with steps taken and investment made across Government to support levelling up across all our constituencies.
Dan Jarvis (Barnsley Central) (Lab)
The English metro Mayors submitted levelling-up fund bids—I declare an interest—but only one was successful. The South Yorkshire bid was well crafted and focused on improvements to our bus services that would have supported the levelling up and net zero agendas. Will the bids be looked at again as part of a second round?
Helen Whately
South Yorkshire will receive a share of the £5.7 billion for transport for the region. Overall, as the hon. Member will know and as he will have heard when he attended our debate yesterday afternoon, support for levelling up and investment have been received by constituencies all around the country and represented by hon. Members across the House. There will be further rounds for levelling-up funds to put in for.
Jack Brereton (Stoke-on-Trent South) (Con)
Sir David Evennett (Bexleyheath and Crayford) (Con)
The Chief Secretary to the Treasury (Mr Simon Clarke)
Through our plan for jobs, nearly 95,000 young people so far have started a kickstart job; we have extended that scheme to March 2022. More than 100,000 apprentices, of whom 75% were under 25 years old, have been hired under our new incentive payments. More than 17,000 young people have started a traineeship, and we have provided funding for 24,000 traineeships a year at the spending review.
Jack Brereton
Many of the manufacturers that I have visited recently in my constituency, including Don-Bur and IAE, have told me about the challenges that they face when recruiting for engineering roles. Will my right hon. Friend update the House on the Government’s work to encourage more young people into those highly skilled roles and attract more apprenticeships to Stoke-on-Trent?
Mr Clarke
My hon. Friend is always a fantastic champion for Stoke and the wider community. There are 145 employer-designed apprenticeship standards that relate to engineering and manufacturing roles. At the spending review, we announced that funding for apprenticeships will increase to £2.7 billion by 2024-25. We are also continuing to improve the system for employers. That includes an enhanced recruitment service for small and medium-sized enterprises, supporting the use of flexible training models, and a new return-on-investment tool so that employers can see the benefits that apprentices create in their business.
Sir David Evennett
We all welcome the fact that nearly 100,000 young people across the country have already started a job through the kickstart scheme, including 20,000 in London. Does my right hon. Friend agree that by extending the scheme until March next year, we are giving more young people the opportunity to develop the skills, confidence and experience that they need to get into high-skilled, high-wage and long-term sustainable jobs?
Mr Clarke
My right hon. Friend is absolutely right. Kickstart is providing valuable jobs and work experience to thousands of young people. As of last week, nearly 95,000 young people had started a kickstart job, compared with 56,000 young people at the equivalent point for the last Labour Government’s future jobs fund. That shows that it is a very successful programme. With the current pace of starts, we are confident that earlier this month, 100,000 young people will have started a kickstart job.
Daniel Zeichner (Cambridge) (Lab)
Education is central to highly skilled jobs. This week, a report by the all-party parliamentary university group, which I chair, showed that young people from the most disadvantaged backgrounds most understand the value of a university education. Will the Chief Secretary celebrate the work of universities across the country and perhaps suggest to some of his colleagues that they stop devaluing courses by describing them as of low value?
Mr Clarke
The hon. Gentleman is right to champion the university sector. We in this country are fortunate in having such a fantastic set of universities, and it is important for young people to have the opportunity to enrol on courses that will meaningfully improve their life chances and career prospects. However, it is also important to balance a strong offer for the university sector with an equally strong vocational offer, and we are keen to strike that balance through the new T-levels and our investment in skills—which was a defining theme of this Budget and spending review—so that whatever young people decide to do, they have a strong and credible route to employment and success.
Alan Brown (Kilmarnock and Loudoun) (SNP)
Scotland leads the world in the development of wave and tidal technologies. The expansion of that sector could create fantastic chances for more young people to secure more highly skilled jobs, and could set them up for possible worldwide opportunities. However, if the sector is to expand, it will need a ring-fenced pot of money in the forthcoming contracts for difference auction. It is believed that the Treasury blocked that concept. Will the Chief Secretary meet me to discuss how changes could be made that would allow the sector to bid and be successful in scaling itself up?
Mr Clarke
The hon. Gentleman has referred to the contracts for difference mechanism, which has been hugely successful in helping to drive the improved economics of technologies including offshore wind. I think that we as a country should be very proud of that, especially in the week of COP.
There is no doubt that there are exciting opportunities for young people. I think that the Department with which the hon. Gentleman would do best to engage on that is the Department for Business, Energy and Industrial Strategy, but I am always happy to have any conversations that would be useful in this regard.
Matthew Pennycook (Greenwich and Woolwich) (Lab)
Mohammad Yasin (Bedford) (Lab)
The Financial Secretary to the Treasury (Lucy Frazer)
As 120 world leaders gather in Glasgow today, the hon. Member for Greenwich and Woolwich (Matthew Pennycook) asks a very pertinent question. Our net zero strategy outlines measures to enable us to make the transition to a green and sustainable future. As for fiscal measures, the Budget and spending review commit us to £30 billion of public investment towards net zero.
Matthew Pennycook
There is an obvious and pressing need for all fiscal announcements to be fully aligned with our country’s net zero target. To that end, will the Minister commit herself to at least the publication of the estimated emissions impact of decisions in future Budgets and spending reviews?
Lucy Frazer
The hon. Member will know that in our Budget we set out a number of measures to enable us to make the transition to a net zero world. We have made announcements relating to transport and warmer, greener buildings as well as energy and industry, and of course the Treasury always considers the impact in relation to net zero targets.
Mohammad Yasin
The Chancellor claims to want to tackle climate change and improve air quality through measures including the decarbonising of transport. If he is serious, this week of COP26 presents him with a great opportunity to commit himself to the electrification of the East West Rail line from day one to avoid the need for diesel locomotives and the future costs of retrofitting. Will he make that commitment today?
Lucy Frazer
The hon. Gentleman has raised the important issues of electrification and the importance of making our transport green. As he will have seen, the Budget provided research and development funding to commercialise low and zero emissions technologies. I would be happy to talk to him about the local issue he raised.
Fay Jones (Brecon and Radnorshire) (Con)
I thank the Chancellor and the Treasury team for the significant levelling-up funds awarded to my constituency in the Budget last week. Hydrogen will be key to net zero, and one project that will be able to benefit from that investment is Riversimple, a hydrogen fuel cell car manufacturer in Llandrindod Wells. So that we can reach our net zero targets as early as possible, may I urge the Minister to visit Llandod, meet representatives of Riversimple, learn about what they do, and above all give us the chance to say thank you in person?
Lucy Frazer
I am very pleased that my hon. Friend’s constituency has benefited and is taking part in the progress towards net zero. I should be happy to visit her there.
Abena Oppong-Asare (Erith and Thamesmead) (Lab)
In his Budget statement last week, the Chancellor did not use the word “climate'” once. On the biggest issue of our time, he had nothing to say.
As well as deciding to cut domestic air passenger duty, which will lead to 400,000 more domestic flights a year, the Chancellor failed to invest in public transport. He is subsidising those who can already afford to take domestic flights, while putting up taxes on ordinary people. How on earth does he think that this sends the right message as the COP26 summit begins? Is not the reality that he is flying in completely the wrong direction when it comes to tackling climate change?
Lucy Frazer
I am sure the hon. Lady will have seen the net zero strategy, which was published the week before the Budget. I am sure she will also know about the significant progress that the Chancellor has made on bringing other countries together to increase the international effort on climate finance. Yesterday, we set out our commitment to increase our international climate finance by £1 billion by 2025, on top of the £11 billion that we have already announced. The Chancellor, together with other Finance Ministers, is making sure that we help to reduce to net zero emissions through a number of measures. I am very happy to—
Alison Thewliss (Glasgow Central) (SNP)
COP26 is under way in my constituency, and the Scottish Government have set an ambitious target to reach net zero by 2045. In contrast, the Minister has completely failed to justify the cut to air passenger duty on internal flights while allowing the already eye-watering price of train tickets to rise again at the turn of the year. This is no pro-Union policy, as the Government like to pretend, because 62% of Scots think that cutting APD is entirely the wrong priority. So, in this week of COP, will the Minister do her bit for the planet and scrap this climate-damaging policy once and for all?
Lucy Frazer
I am grateful to have this opportunity to address the issue of air passenger duty. The hon. Member will know that, as well as cutting the duty on domestic flights, we have increased taxation on long-haul flights. She will also know that domestic flights are contributing less than 1% of the UK’s carbon emissions.
Mr Gagan Mohindra (South West Hertfordshire) (Con)
The Chancellor of the Exchequer (Rishi Sunak)
The fiscal rules announced at Budget will ensure that the public finances remain on a sustainable path and support a strong economic recovery. The Government will borrow only to invest in future growth, so that future generations are not unfairly burdened, and I am pleased to say that the Office for Budget Responsibility’s analysis shows that the Government’s fiscal plan is working.
Mr Mohindra
I welcome the new fiscal rules set out by my right hon. Friend in his Budget last week, which will mean that the Government borrow only to invest and that they get the debt falling again by 2024. Does he agree that, unlike the Labour party, which has no plan to deliver responsible public finances, these rules show how it is only the Conservatives who can be trusted to manage our public finances responsibly, avoiding higher interest rates and even higher taxes in the future?
Rishi Sunak
My hon. Friend is absolutely right. The best foundation for our success as a country is a strong economy and responsible public finances. In contrast to the Labour party, which comes out with unfunded, reckless promises that would lead to our debt rising uncontrollably, it is this Government, and only this Government, who can be trusted to manage the nation’s economy responsibly.
Sammy Wilson (East Antrim) (DUP)
Given the commitments that the Prime Minister is making at the climate circus in Glasgow this week, how can the Chancellor possibly say that the public finances will be managed effectively when the huge costs of net zero are not even published by the Treasury, let alone known by the public? We are already seeing taxes increasing to pay for the huge infrastructure changes that reaching net zero is going to entail.
Rishi Sunak
I very much appreciate the right hon. Gentleman’s concern about the cost of transitioning to net zero. The Government are also mindful of those costs, and the net zero strategy, which my right hon. Friend the Chief Secretary to the Treasury mentioned earlier, sets out a comprehensive approach to transitioning, backed up by £30 billion of investment. Indeed, as a result of the spending review and the Budget, the Northern Ireland Executive will receive on average about £1.5 billion a year in Barnett consequentials to help to fund priorities as required.
Laura Farris (Newbury) (Con)
Stephen Crabb (Preseli Pembrokeshire) (Con)
The Economic Secretary to the Treasury (John Glen)
Some 1.6 million people have moved into work having received support from work coaches, and hundreds of thousands of jobseekers have been supported by our other Plan for Jobs programmes, such as kickstart. It is clear that this plan is working; unemployment is now expected to peak at less than half of what was initially predicted.
Laura Farris
Unemployment in West Berkshire has fallen in every month since April, in no small part thanks to the apprenticeship levy and the kickstart scheme. However, among the over-55s who lost their job in the pandemic the picture is more mixed. Can my hon. Friend set out what the next stage of the Plan for Jobs will do to target that group, particularly given their risk of long-term unemployment?
John Glen
Yes, I can. My hon. Friend is right; unemployment is at 3.5% in her constituency, as against the 5% average. On people aged 50 to 64 who unfortunately lose their job and find a return to work less likely, this spending review announced an enhanced 50-plus offer worth more than £20 million to ensure that that cohort of the workforce receive that support to remain in work and benefit from living those fuller working lives. That is in addition to the other interventions across the whole of the working age group.
Stephen Crabb
Right now, in this country, about 1 million children are growing up in long-term workless households. Does my hon. Friend agree that the measures the Chancellor took in the Budget last week to boost the national minimum wage and the work allowance, and to lower the universal credit withdrawal rate when people move into work, mean that we have the best opportunity in more than a generation to really bear down on long-term unemployment and improve the life chances of children growing up in homes where there is no role model of someone going out to work every day?
John Glen
I agree entirely with my right hon. Friend, who has been a champion in this area, throughout his experience in government and in his work now as Chair of the Select Committee on Welsh Affairs. In addition to what he has set out, we responded to the call to raise the national living wage. It may interest him to know that the April 2022 increase will mean that a full-time worker’s annual salary will have increased by more than £5,000 since the national living wage was introduced, when he was in government, in April 2016.
Karin Smyth (Bristol South) (Lab)
I recently visited the newly opened jobcentre in Knowle to support people back to work, and I have previously been chair of the all-party group on apprenticeships. I cannot fathom why the Government are abolishing BTECs, which are a crucial bridge for young people in Bristol South. Has the Treasury done an assessment of abolishing BTECs, and will the Government reconsider?
John Glen
The hon. Lady will know of the Government’s investment in T-levels and the additional investment last week in apprenticeships, as well as a number of other interventions that the Chancellor has worked tirelessly with employers’ organisations and trade unions on to develop the workforce and opportunities over the past 18 months.
David Johnston (Wantage) (Con)
The Financial Secretary to the Treasury (Lucy Frazer)
We are increasing the national living wage to £9.50 an hour from April 2022. We are also cutting the universal credit taper rate from 63p to 55p. Those measures will increase the incomes of millions of people and support the lowest-income households.
David Johnston
I thank my right hon. and learned Friend for that statement. I strongly welcome the increase in the national living wage to £9.50 and the cut to the UC taper rate. Those are strong work incentives, which will help people to keep more of their money. However, given that not everybody will read the Budget, may I ask what her strategy is to make sure that those who can benefit from these changes will know that they have taken place?
Lucy Frazer
I thank my hon. Friend for his support. He will agree that the best way to support people is by supporting them into work and helping them to progress once they are in work. He makes an important point about communications. The Government run an annual public communications campaign to inform workers and employers of the change to the minimum wage rates. Her Majesty’s Revenue and Customs also has a dedicated team who actively provide information to individuals and employers on minimum wages, and the UC changes will also be reflected in the claimants’ statements once they are in effect.
Peter Grant (Glenrothes) (SNP)
All those announcements are, of course, welcome for low-earning households in which somebody has a job, but none of them will deliver a single penny into the pockets of the very lowest-income households in which nobody is able to get a job. They are being hit by a £1,000 a year cut in universal credit. What is there in the Budget that will reinstate that £1,000 cut for the very lowest-income households on these islands?
Lucy Frazer
We want to encourage as many people as possible into jobs. The Chancellor has put forward a plan for jobs, with a number of work programmes to ensure that we get both young people and the over-50s into work. Crucially, through the restart scheme we will get people off universal credit and into jobs. We also recognise that some people cannot work, which is why six weeks ago the Chancellor announced £500 million to help those who need our support, to be distributed through local authorities.
Duncan Baker (North Norfolk) (Con)
The Chancellor of the Exchequer (Rishi Sunak)
Last week’s Budget delivered a stronger economy for the British people, with stronger public finances; support for business; stronger public services; investment in infrastructure, innovation and skills to drive future growth; and a significant tax cut for the lowest-paid, because this will always be a Government who support and reward work.
Duncan Baker
My constituent Peter Phillips fell victim to the loan charge in 2019 and settled before 30 September 2020. HMRC advised him, like many others, that that was the right thing to do. In effect, those who settled before the Morse review did not get the benefit of the changes that were implemented: my constituent paid more than someone who disclosed nothing to HMRC. Does my right hon. Friend think that was in the spirit of the Morse review? Has HMRC got it wrong?
Rishi Sunak
It is obviously difficult for me to comment on the case of a particular individual. The previous Chancellor, my right hon. Friend the Member for Bromsgrove (Sajid Javid), asked Lord Morse to conduct an independent review and the Government accepted and implemented the vast majority of its recommendations. People who settled early had the benefit of certainty from their settlement, but my hon. Friend should write to the Financial Secretary to the Treasury and we will ensure that we look at that case, as he requests.
Rachel Reeves (Leeds West) (Lab)
According to the Office for Budget Responsibility, the Government’s supply chain chaos, woefully inadequate post-Brexit planning and a lack of HGV drivers have contributed to higher inflation. The cost of the weekly shop is already going up and up, as the Chancellor will have heard from shoppers in Bury last week. Does he have any idea of how much the average weekly supermarket shop is expected to increase in the next year for a typical family?
Rishi Sunak
We are cognisant of and aware that there is price inflation; indeed, last week’s Budget addressed that and explained to the British people some of the global factors that are behind the rise in prices and are not unique to this country. As I said then, where this Government can act, we will. Whether it is the interventions for HGV drivers that my hon. Friend the Exchequer Secretary to the Treasury set out, the £0.5 billion household support fund or, indeed, the freezing of fuel duty, this Government are doing what they can to help with the cost of living.
Rachel Reeves
Let me help the Chancellor with the answer to that question. The typical family shop is likely to go up by £180 more next year. It is not just food prices that are rising: gas and electricity bills are already up by £139 and they are only going to go up more. The Chancellor had the opportunity in the Budget to help people with their gas and electricity bills by reducing VAT to 0% through the winter months—something that Labour has called for and that the Prime Minister backed when he was campaigning to leave the European Union. Who should the public blame for VAT on heating bills not being cut: the Prime Minister, for not keeping his word, or the Chancellor, for choosing to cut taxes for bankers instead?
Rishi Sunak
With regard to a VAT cut for fuel, perhaps I should point out to the hon. Lady some of the remarks from independent commentators about what that would do. The Institute for Fiscal Studies said that the benefit would accrue “to higher-income households.” The Resolution Foundation said a VAT cut
“would not be targeted and would be quite expensive”.
Tax Research UK said:
“This cut will not help the poorest much…this plan is a subsidy to the best-off, not the least well off.”
Instead, we have provided £0.5 billion, targeted at those who need our help. The hon. Lady mentioned £108; the household support fund will be able to provide £150 to between 2 million and 3 million of the most vulnerable families in our country. Indeed, the national living wage is going up next year, which will ensure a £1,000 increase for someone who works full time on the national living wage, and because of the cut to the universal credit taper a single mother with two kids who works full time and rents will be £1,200 better off.
Mark Menzies (Fylde) (Con)
Rishi Sunak
First, may I put on record my thanks to my hon. Friend, who raised this issue with me some months ago in the run-up to the spending review? I hope that he and his communities are pleased with the funding that was allocated, thanks to his and other interventions. I am of course prepared to work with him and the Secretary of State for Business, Energy and Industrial Strategy to consider all relevant proposals and assess the right options for the taxpayer in this country.
Kim Johnson (Liverpool, Riverside) (Lab)
Rishi Sunak
We did have a measure in last week’s Budget to support the hospitality sector with its recovery, and that is the £1.7 billion cut to business rates next year. That represents the largest single-year cut to business rates in more than 30 years outside of the coronavirus. It provides a 50% discount to hospitality businesses, which I know are important to our local communities. I am sad that the hon. Member did not raise the not one but two levelling-up fund bids that Liverpool enjoyed last week, which I know will also help to regenerate parts of the city and provide improved transport connections to benefit local businesses.
Robert Largan (High Peak) (Con)
Rishi Sunak
I am happy to provide my hon. Friend with that reassurance and I hope that his council engages constructively with him, as so many others have and have seen the benefits of that in last week’s announcements. We will open round 2 in due course and it will most likely launch no later than the spring. I can tell him also that we have no plans to change the current way that we assess the priority categorisations, so High Peak should remain as it was.
Sam Tarry (Ilford South) (Lab)
Does the Chancellor agree with the Conservative party donor, Mohamed Amersi, who once claimed that the Tories were operating an access capitalism scheme for their major donors, and described corruption as a “heinous crime”, but who was later seen to have been part of a £162 million bribe to the daughter of Islam Karimov, the awful former president of Uzbekistan? If so, can he look at this and bring forward the response to the Pandora papers, particularly the Registration of Overseas Entities Bill?
The Economic Secretary to the Treasury (John Glen)
The Government are committed to making the UK a hostile place for illicit finance and economic crime and ensuring that all donations to political parties comply with the legislation that the Labour party enacted in Government. We have taken tough action through our No Safe Havens strategy to ensure that the correct UK tax is paid. Our landmark 2019 economic crime plan builds on that, and we will continue to work on these matters.
Stephen Metcalfe (South Basildon and East Thurrock) (Con)
Rishi Sunak
I know that my hon. Friend has paid close attention to this issue, which obviously has a particular impact on his constituency. He will know that the current Dartford crossing is one of the most congested pinch points in the entire strategic road network, which is why the Thames crossing development is part of the Department for Transport’s plans. We also recognise that it needs to be brought about in a way that maximises the benefits and mitigates the cost to local communities and businesses. The commitment does include an obligation to create tens of thousands of new jobs. I understand that National Highways has recently launched a consultation, in which I know my hon. Friend and his communities will be engaged.
Richard Thomson (Gordon) (SNP)
In reforming domestic air passenger duty, the Chancellor could have done something really clever; he could have incentivised the use of low-carbon forms of transport domestically, and in areas where those do not exist, mitigated the impact with a best alternative. Instead, he has done something that is making travel relatively more expensive for those low-carbon alternatives. How on earth, in the week of COP26, is this contributing to the Government’s net zero efforts?
Rishi Sunak
As has been pointed out about three times today, alongside the cut in domestic air passenger duty, we introduced a new ultra-long-haul band with a higher rate. The net effect on carbon emissions of those two things is at least a wash, and one independent forecaster said that it would actually reduce carbon emissions. That comes alongside significant investment of £180 million to incentivise sustainable aviation fuel, and billions more for electric transportation for consumers.
Andrew Selous (South West Bedfordshire) (Con)
The Chief Secretary to the Treasury (Mr Simon Clarke)
The Government are focused on delivering more homes where they are most urgently needed, but we need the right infrastructure in place to facilitate this. Many of the Government’s core housing supply programmes, including an additional £1.5 billion announced at the spending review, focus on precisely that point. Recent reforms to the NHS capital regime, some of which have been legislated for through the current Health and Care Bill, will further improve the system, including through better integration between the NHS, local government and care providers.
Chris Elmore (Ogmore) (Lab)
In an earlier answer, the Chancellor confirmed that the levelling-up fund round 2 bids would be some time in the spring. Many Members across the House want to engage in the process, as does Bridgend County Borough Council, which covers the majority of my Ogmore seat. However, it is difficult to plan if the Treasury will not confirm the date of the conclusion of the round 2 bidding process. May I press the Chancellor to tell us more than just spring next year, because spring does tend to be an awfully long time when the Treasury are making decisions?
Rishi Sunak
I am glad that there is widespread support for the levelling-up fund, and we are keen to work with all Members. I say spring because we want to ensure that we quickly learn the lessons from this round and incorporate them into future rounds. However, I assure the hon. Gentleman that our desire is to get on with this, because we want these projects to be delivered so that our communities can start to see the benefits as soon as possible.
Caroline Ansell (Eastbourne) (Con)
The Financial Secretary to the Treasury (Lucy Frazer)
I know that my hon. Friend will have campaigned hard for the funds that have come through. We will continue to support people across the House and in her constituency to level up.
Kerry McCarthy (Bristol East) (Lab)
Rather than talk about competitive bids for funding, could we talk for a moment about mainstream council finances? We know that this Budget will significantly shift the burden to local authorities and require a significant rise in council tax, which people can ill afford. We also know that councils’ finances have not fully recovered and they have not been fully compensated. What is the Chancellor doing to talk to local councils about the pressures that they are facing?
Rishi Sunak
I actually did engage with representatives from local authorities in the run-up to the spending review. Last week’s spending review outlined an additional £1.6 billion a year of cash grant for local authorities, which will ensure that local government core spending power will rise at about 3% a year in real terms over the spending review period; that is historically high. It has been warmly welcomed by local councils up and down the country, and will ensure that council tax increases can be kept at more moderate levels.
Jo Gideon (Stoke-on-Trent Central) (Con)
The Exchequer Secretary to the Treasury (Helen Whately)
I congratulate my hon. Friend and fellow Members representing Stoke-on-Trent on the £56 million their city was awarded in the first round of the levelling-up fund, winning not one but three bids to fund regeneration projects across the city, delivering new homes, community facilities, and office and hospitality space. She makes an important point about funding grassroots community capacity. I assure her that the UK shared prosperity fund, which is worth over £2.6 billion, will allocate funding across the UK. Further details of the fund will be set out later this year.
Dr Rupa Huq (Ealing Central and Acton) (Lab)
The women-run Acton firm Fashionizer, which makes uniforms for hotels, diversified into mask manufacturing during the pandemic. The firm is now getting back on its feet, but the order book is just a third of what it was, so those working there ask the Chancellor if he could please extend the rate relief for the hospitality industry to those who supply hospitality, including food and laundry services, some of them exclusively. They have given me a few of their masks for you, Mr Speaker, for the Chancellor and for anyone who wants one. I think a few of the hon. Members on the back row of the Conservative Benches could do with them.
Rishi Sunak
I commend those at the hon. Lady’s business for what they have done through the pandemic and beyond with the manufacture of masks. We have moved out of crisis phase now, so our interventions to support the economy are broader in scale, but I am confident that the measures we are taking to invest in infrastructure, innovation and skills will lead to economic growth and benefit her businesses, not just the one she mentioned.
Christian Wakeford (Bury South) (Con)
Helen Whately
I sincerely agree with my hon. Friend and thank him for his support. We are overhauling the UK’s outdated alcohol duty rules—the biggest simplification for 140 years—and taking a common-sense approach. Drinks will be taxed in accordance with their strength, encouraging responsible drinking, tackling the problems caused by cheap high-strength drinks, and supporting our pubs and our hospitality sector.
Gavin Newlands (Paisley and Renfrewshire North) (SNP)
The Chancellor promised the aviation sector a bespoke support package before breaking his word. Instead these businesses will have to make use of other support schemes, including time to pay. What does he say to those businesses now hit by tens or hundreds of thousands of pounds in interest charges by HMRC when the sector is quite clearly still very badly affected by the pandemic?
Rishi Sunak
Obviously it would not be right for me to comment on the individual circumstances of any business, but HMRC’s time to pay service has supported tens of thousands of businesses through the crisis with flexible repayment periods. Similarly, the bounce back loan scheme introduced by my hon. Friend the Economic Secretary comes with a pay-as-you-go option to ensure that businesses can settle on a payment plan and stretch out repayment in a way that suits their cash flow.
Mrs Flick Drummond (Meon Valley) (Con)
My pubs and brewers are pleased with the reduction in beer duty, but may we have clarification on keg size, as my small brewers ship their beer in different sizes, including 20-litre pins? May we also have an indication of when the changes to the small brewers relief will be announced, ideally removing the 2,000-hectolitre limit and the cliff-edge at the 5,000-hectolitre limit?
Helen Whately
We are delighted that we are introducing the draft relief to support the on trade for people purchasing drinks in pubs and hospitality venues. We will consult on the details, including keg size. We will also bring forward the technical changes to small brewers relief, which my hon. Friend asks about.
Rachael Maskell (York Central) (Lab/Co-op)
The pretence has to stop. The Budget was climate-illiterate, with just £7.8 billion of new money given to climate and nature mitigation to reach the 2024 target, when £62.9 billion is required. How will the Chancellor close that gap, or is the Prime Minister’s performance at COP26 simply a façade?
Mr Clarke
The hon. Lady is not doing justice to what the Government have committed to. We have the £30 billion net zero strategy just the week before this fiscal event, and clearly we have had a number of announcements during COP already, including today’s on forests. That is clear evidence of how this Government are moving to ensure we double down on our international commitments and show the rest of the world the way to deliver on net zero.
Points of Order
(3 years ago)
Commons ChamberRead Full debate Read Hansard Text Watch Debate
Taiwo Owatemi (Coventry North West) (Lab)
On a point of order, Mr Speaker, 15 days ago, I asked the Home Secretary an important question in oral questions concerning the long-running extradition case of the west midlands three, two of whom are my constituents. I asked her for information about the evidence used to justify their arrests. The Home Secretary claimed she did not hear my question and that she would instead answer separately, but, regrettably, that has not happened. No effort has been made by the Home Secretary to answer my question, and I have not received any correspondence about it. My parliamentary office has now contacted the Home Secretary’s private office on numerous occasions, and we have not received any clear communication or answers in return. I see little point in the Home Secretary coming to this place to answer questions if she does not do just that—answer the questions we ask. With that in mind, is it in order for the Home Secretary to fail to answer a question in the Chamber like that and then fail to provide an answer to me? If it is not in order, what action can I take to get an answer from the Home Secretary? My constituents deserve a response.
Mr Speaker
I am absolutely appalled that we are still not getting the message across. Members of Parliament deserve answers. The Leader of the House and I are absolutely committed to ensuring that Members, rightly and deservedly, get their answers. I am also grateful to the hon. Member for giving me notice of her point of order.
If the Minister gave such an undertaking to respond, that should of course happen promptly without the hon. Member having to keep pressing the Home Office for an answer. I know that those on the Treasury Bench will be listening, and I expect them to pass on this point to the Home Secretary to ensure that an answer is given as early as possible. If necessary, the hon. Member can also consult the Table Office about the avenues that are open to her to pursue. Please keep me informed if that answer is not forthcoming.
I have to say—it needs to be heard loud and clear—that Members of Parliament on both sides rightly deserve answers to questions, especially as they are representing their constituents. We base this House on democracy, and part of that democratic process is that Ministers answer to Members.
Karl MᶜCartney (Lincoln) (Con)
On a point of order, Mr Speaker, I rise to represent the 649 MPs who, as the House was sitting last night, saw a report, perhaps with some consternation, on some notable websites—notably the Guido Fawkes website—that the House of Commons Commission had made changes to our working practices in this place with no reference to us. Rightly, Mr Speaker, you have done some great things over the past 18 months to keep this place going. I could make some points about the content of the announcement last night, and notably about Lord Ridley’s excellent speech in the other place about the usefulness of masks, but I would say that you rightly castigated my right hon. Friend the Chancellor, who is no longer in his place, and some of his colleagues last week. Surely what is sauce for the goose should be sauce for the gander.
Mr Speaker
I am not quite sure about the last bit —who is the goose, who is the gander, and what it was about. I am pleased by how the hon. Member has approached the question. It is a bit better than your email earlier today, Mr McCartney, which was pretty offensive; we ought to think about how we address each other in emails. I certainly respect your views and the views of all Members.
We have to work together. We have come this far because the House pulled together, ensuring that we got through it. We are one of only eight legislatures, I think, across the world that have managed to keep open every day, because we have done the right thing. It is about us doing the right thing. I want to help and support you; I want to help and support all Members.
In fairness, this is about safety. We have had an increase in covid-19 across the House, which has been badly reflected recently in the rising numbers. The UK Health Security Agency has determined that the risk of transmission on the parliamentary estate is now greater. As a consequence, the parliamentary authorities have decided to take further action to ensure that case numbers do not continue to rise. These measures have been communicated to Members and staff and I do not wish to debate them in detail on the Floor of the House. The measures have been introduced with immediate effect and will be reviewed in two weeks.
I will say to Members that if we can get through these two weeks, I believe we will get through to next year, but these two weeks are crucial. Numbers of infections have been rising on both sides of the House and among staff. Unusually, the transmission has been on the estate, and that is why it is a greater worry than before. Please, let us pull together and not try to undermine the officials of the House, who have to do a job—a thankless task. They get the kicks when they should not. Aim them at me; that is quite right. The hon. Member for Lincoln is right to have addressed me with this question.
I will always put the health and safety of the House first, so please help me to keep the House open by trying to get through a very crucial two weeks. After that, we will be in a much safer place, and I think we will be in the right place. I have to say that the measures have not been stringent. They could have been even more stringent and they might have to be, so please let us pull and work together. In the end, I do not want to have another Christmas like the last one, and I want to protect all of us, so work with the staff and try to remember that they have a job to do along with us. The main basis is that I know that we can see it through. I appeal to the Whips of all parties to work together to try to make it safe.
I understand the frustration. From my point of view, there is nothing better than having a full Chamber and seeing the hon. Member for Lincoln back in this House. As much as he gives me grief, I like seeing him on the Benches. I still prefer him in the House than on television—that is even more scary—but seriously, I have to say, let us all work together and pull together.
Mr William Wragg (Hazel Grove) (Con)
Further to that point of order, Mr Speaker. With reference to the announcements, I deprecate the announcement of things outside of this Chamber and have been known to criticise the Government for that, so it would be churlish of me not to be surprised by what appeared in the press last night. You mentioned the UK Health Security Agency’s advice. Are you aware of that agency giving any institution or venue in this country the same advice that it has given us? In terms of the parliamentary authorities quoted in the email sent to Members, may I ask when the Commission met to discuss it? I assume those authorities refer to the Commission, because the agenda and decisions come only from the 18th—
Mr Speaker
Order. I think I can help. As I said earlier, I will not go into further debate. I have the greatest respect, but I am certainly not going to be tested today.
Plastics (Wet Wipes)
Tuesday 2nd November 2021
(3 years ago)
Commons ChamberRead Full debate Plastics (Wet Wipes) Bill 2021-22 View all Plastics (Wet Wipes) Bill 2021-22 Debates Read Hansard Text
A Ten Minute Rule Bill is a First Reading of a Private Members Bill, but with the sponsor permitted to make a ten minute speech outlining the reasons for the proposed legislation.
There is little chance of the Bill proceeding further unless there is unanimous consent for the Bill or the Government elects to support the Bill directly.
For more information see: Ten Minute Bills
This information is provided by Parallel Parliament and does not comprise part of the offical record
Fleur Anderson (Putney) (Lab)
I beg to move,
That leave be given to bring in a Bill to prohibit the manufacture and sale of wet wipes containing plastic; and for connected purposes.
I thank the Bill’s sponsors, many of whom are here today, and the many MPs from all parties who have shown their support for it. I also thank the Marine Conservation Society, the World Wide Fund for Nature, Thames21, the Green Alliance, Water UK and my water company, Thames Water, for their support for the Bill and for the ongoing campaign.
This is a Bill that everyone agrees with, from constituents to conservation organisations, water companies, MPs from all parties and the industry. The UK Cleaning Products Industry Association believes that plastic-free options are the right way for the industry to go. We were promised that by the Government in 2018, when the Department for Environment, Food and Rural Affairs announced that it would target plastic-containing wet wipes in its bid to eliminate all avoidable single-use plastic within 25 years. A DEFRA spokesperson at the time said,
“As part of our 25-year environment plan, we have pledged to eliminate all avoidable plastic waste, and that includes single-use products like wet wipes.”
But where is that ban? I hope that my Bill gives the Department the nudge.
I welcome the Government’s amendment to the Environment Bill to introduce additional charges on single-use plastics, but that just will not wash—pardon the pun. Hygienic wipes are a single-use plastic, but subjecting them to additional charges will only hit the pockets of families, instead of making the profit-making polluters pay. I welcome the Secretary of State’s promise this morning of a consultation on whether to restrict the materials used in wet wipes, but I hope that the consultation does not kick the issue into the long grass. As Her Majesty the Queen said about COP26, we need actions, not words, and this is an example of such action.
To be clear, I am not talking about banning wet wipes; I am talking about banning the use of plastic in wet wipes. I have spoken to so many MPs who have picked up wet wipes from their rivers and coastlines. They have seen the scale of the problem at first hand and want more action. In this week of COP26, we are looking at the big picture of climate change and biodiversity, yet that picture is made up of many individual, bold actions. If our global house is on fire, we will need many buckets of water to put it out, and here is one of them. I will outline the scale of the problem; what the problem is with plastic; whether a ban is possible; and what else needs to be done.
First, on the scale, as a mother of four children, I have used a lot of wet wipes, and I completely understand the pressures that parents are under and how useful wet wipes are. I know that parents also want to do the right thing for the environment. Wet wipes have made life easier for millions of people and families. The market is worth $3.7 billion globally and growing rapidly, especially because of covid. In 2019, an astonishing 11 billion wet wipes were used in the UK—163 for every single person— and that was before the pandemic. We have seen a huge surge in the use of wet wipes and hygiene products since then. Between 2005 and 2020, the great British beach clean has seen an increase in wet wipes found per 100 metre stretch of beach from 1.7 to 18. The scale is increasing enormously.
About 90% of wet wipe products contain some form of plastic, which breaks down into microplastics that never dissolve or biodegrade. When those plastics enter our local marine environment and water systems in such large volumes, the damage is devastating. Globally, 100 million marine animals—from birds to fish, and other marine organisms—die each year from plastic waste alone. They eat the plastic, which sits in their stomach indefinitely, not being digested, and slowly and agonisingly it starves and suffocates them to death as they cannot process food. Plastic wet wipes are designed to absorb toxins, bacteria and chemicals, so they also act as a deadly poison when consumed by unwitting marine wildlife.
It is not just animals but humans who are affected. Globally, the World Wide Fund for Nature believes that a human could ingest about 5 grams of plastic every week—the equivalent of a credit card. Mr Speaker, we might literally be eating a credit card’s worth of plastic every week and wet wipes are a huge cause of that.
That is not all. Wet wipes are behind 93% of blockages in UK sewers and are even changing the shape of our rivers as they pile up on banks and beds. In 2018, Thames21 volunteers retrieved more than 5,000 wet wipes from about 100 metres of the Thames bed during an operation on the river. Every year, water companies spend £100 million dealing with 300,000 sewer blockages. That money is added to consumer bills—our bills; it costs us as well as the environment. The Thames Water area alone—my area—has on average 85,000 blockages a year due to fat and wet wipes congealing. [Interruption.] I am sorry about all these facts, but we need to know them.
Yesterday, I visited Becton sewage treatment works to see the 30 tonnes of unflushable material that it removes every day, most of which is wet wipes. It is not a sight that I will forget in a hurry. I have also been out at low tide on the Thames to see thousands of wet wipes in a wet wipe island washed up on the Thames foreshore. They are found widely on our beaches, too. That is the scale of the problem—it is large. But can wet wipes be banned? Is it feasible? Can they be made without plastic? They can. Many companies produce plastic-free, bio- degradable wet wipes in the UK and I have spoken to several. Many non-plastic alternatives exist, for example bamboo fibre wet wipes and plant-based wet wipes such as cellulose or viscose. There are alternatives.
I give credit to Holland & Barrett and The Body Shop for being the first two retailers to commit to stop selling plastic wet wipes and replace them on their shelves with environmentally friendly alternatives. Sainsburys has now made its own brand of wet wipes plastic free, using material from renewable sources. It is perfectly possible to do and, since more of the production of the plastic-free wet wipes happens here in the UK, it is also a source of UK green jobs.
The next question is whether, if wet wipes are made without plastic, they will still be economical. Will they not pass on a price hike to the consumer? That is not what we want. Yet again, companies such as Pura prove that it can be done, and with a greater scale of production, driven by a ban, even more could be done. A ban would create a boost for innovation in the sector and a level playing field between companies, ensuring that costs are not passed down to the consumer because some companies are still using plastic and others are not.
What else is needed? Far too many people believe it is okay to flush wet wipes. I am here to say that it is not. It is never okay to flush wet wipes. The “fine to flush” standard has helped to move the industry towards more decomposable wet wipes, but the labelling is voluntary, a bit confusing and unclear. I challenge any hon. Member in the House today to go to their supermarket shelves, look at the wet wipes and try to work out from the labelling what is the right thing and what is not, what contains plastic and what does not.
The Government need to apply extended producer responsibility to producers of all other types of single-use wet wipes. The polluter should pay for the damage. We need legislation, because the scale of the problem is so big, so damaging and increasing so fast. Ask any marine conservationist, any water operator, any engineer clearing a fatberg or any volunteer clearing up sludge from our rivers—they will tell us we simply cannot afford to wait for the industry to catch up.
I hope my Bill will lead to action from the Government and that they will come good on that 2018 promise to ban plastic in wet wipes. Otherwise, those promises are just hot air. My Bill sets out the need for a clear plan for reduction on the way to a ban. It will be a win for consumers and for the environment. I urge the Secretary of State to take action that can stop the mass killing of wildlife from microplastics, the destruction of our rivers and the chaos in our sewer system. I urge him to listen to civil society, the water companies, the consumers, our constituents and his own MPs, and to ban plastic in wet wipes once and for all.
Question put and agreed to.
Ordered,
That Fleur Anderson, Philip Dunne, Caroline Lucas, Ms Diane Abbott, Tim Farron, Barry Gardiner, Jim Shannon, Patrick Grady, Helen Hayes, James Gray, Dr Lisa Cameron and Ben Lake present the Bill.
Fleur Anderson accordingly presented the Bill.
Bill read the First time; to be read a Second time on Friday 19 November, and to be printed (Bill 182).
Ways and Means
Budget Resolutions
(3 years ago)
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19:00 - The House divided: - Ayes: 319 / Noes: 230 - Question accordingly agreed to.
19:14 - The House divided: - Ayes: 319 / Noes: 231 - Question accordingly agreed to.
Mr Speaker
I inform the House that I have not selected any amendments to the motion.
The Secretary of State for Education (Nadhim Zahawi)
In 2019, we made a promise. We promised to give the people of this country world-class public services and to strengthen the entire fabric of this country so that everyone benefits. Everyone is entitled to have access to the same opportunities to make the most of their lives, whether they are at school, at work or whatever their personal circumstances. That is what we meant, and what we mean, by levelling up: making this country fairer for all who live in it.
Gareth Thomas (Harrow West) (Lab/Co-op)
On the subject of levelling up, will the Secretary of State tell the House why he thinks it is acceptable for schools to be worse off in real terms now than they were in 2010?
Nadhim Zahawi
Respectfully, it is quite the opposite. I will get to that point later. Schools will be £1,500 better off per pupil than in 2019-20—not even 2010— but we will return to that subject in a moment or two.
I was getting to the point about those who are more vulnerable. For those who are most vulnerable, levelling up means that extra support will always be there for them. The covid virus has put enormous pressure on all our public services, and I know the whole House will want to join me in again thanking our magnificent public heroes—our nurses and doctors, our teachers and nursery workers, our care home staff and our delivery workers—for how they have helped us all to weather the pandemic storm.
The national health service has been the frontline of this pandemic and we must build up its resources after an unprecedented 18 months. We are committing £5.9 billion to tackle the NHS backlog of non-emergency tests and procedures, which will include £2.3 billion for ensuring that there are at least 100 community diagnostic centres where people can get health checks, scans and tests closer to their homes.
Digital technology is transforming every aspect of our lives, so the package includes £2.1 billion over the next three years to support its use in hospitals and other care organisations to improve efficiency, freeing up valuable NHS staff time and ensuring the best care for patients, wherever they are. There will also be £1.5 billion from that package over the next three years for new surgical hubs, increased bed capacity and equipment to help elective services to recover, including surgeries and other medical procedures.
We have promised an overhaul of our adult social care system, improving social care outcomes through an affordable, high-quality and sustainable system. We are therefore allocating £3.6 billion for local government to reform adult social care provision, including capping personal care costs at £86,000.
Emma Hardy (Kingston upon Hull West and Hessle) (Lab)
I thank the Secretary of State for giving way; he is always very generous. I draw his attention to the letter from the East Riding of Yorkshire Council, a Conservative-led authority, to the Secretary of State for Health and Social Care, stating that,
“the council has 302 assessed individuals requiring 4,114 hours of home care per week that we are currently unable to provide.”
The letter was dated in October. It identifies extra money that the Government have given, but says the council still does not have the funding needed to care for the people who need help in the East Riding.
Nadhim Zahawi
I am grateful to the hon. Lady, and I am sure the Secretary of State for Health and Social Care will take a careful look at her letter and respond in good time.
Nevertheless, it is this Government who have grasped the nettle of adult social care and will deliver on capping personal care costs, which can be so debilitating, at £86,000. While £1.7 billion will improve the wider social care system, including the East Riding of Yorkshire, as announced in September, at least £500 million of that will go towards improving qualifications, skills and wellbeing across the social care workforce.
Lloyd Russell-Moyle (Brighton, Kemptown) (Lab/Co-op)
Is it not the case that the additional money for adult social care is on a promise that might come along in a few years’ time, and that most local authorities will not see a penny immediately to tackle the immediate problems that they have in adult social care? That is why I tabled my amendment; it was quite rightly not selected, but it would have brought in £15 billion extra and not harmed anyone earning under £50,000. Why will the Government not just make national insurance a flat rate for everyone?
Nadhim Zahawi
I am grateful for the hon. Member’s question. I think he may have missed, while trying to catch your eye, Mr Speaker, what I just said about the £1.7 billion to improve the wider social care system that was announced in September. The additional £3.6 billion to local government that was announced in the Budget is more money. This is not an arms race on how much we can spend; this Government are interested in delivering outcomes. Covid has, no doubt, added extra challenges to our reforming agenda, but it has not deflected us from delivering our promises; it has made our commitment more focused as we deliver and build back better. For me, that means skills, schools and families.
Barbara Keeley (Worsley and Eccles South) (Lab)
I detect a hint of complacency on funding for social care. The Secretary of State mentioned £500 million to go towards workforce issues. That is nothing; it is a drop in the ocean for the issues with the social care workforce. There are more than 100,000 vacancies in social care and turnover is 30%. The money just will not touch the sides. The reaction to the Budget from the social care sector, which I hope to speak about today, has been one of profound disappointment and disbelief, really, that the Government do not understand what a crisis the sector is in. I really think it is about time for the Secretary of State to change his tone on that.
Nadhim Zahawi
I have to respectfully disagree with the hon. Lady. In my time as vaccines Minister, I saw the social care sector rise to the challenge and deliver. I opened my remarks by reminding the House of that and thanking the workers on the frontline. Of course, money does make a difference, including the £500 million announced to make sure that we retain and inspire the social care workforce.
Marsha De Cordova (Battersea) (Lab)
I thank the Secretary of State for giving way; he is being very generous with his time. He talks about the investment in social care, but does he not agree that there will still be a gaping hole of over £500 million in disabled children’s social care support?
Nadhim Zahawi
I will return to children’s social care later in my speech. Mr Speaker, you will, I hope, recognise that I have given way several times. I would now like to make some headway in my speech and return to my theme, which hon. Members will hear from me and my team and from across Government: skills, schools and families.
World-class public services demand world-class skills, and in this country we are entering a new era—the era of the skills economy. We are investing over £3.8 billion over the course of this Parliament in further education and skills to make sure that people have access to the kind of high-quality training and education that will open the doors to good jobs, which in turn will boost productivity and support levelling up. For too long, employers have complained that young people just do not have the skills that their businesses need, particularly in science, technology, engineering and maths. For too long, students have studied subjects that will not result in a meaningful or satisfying career. That mismatch is not just bad for students; it is bad for business and it is catastrophic for our economy, especially as we try to rebuild after the pandemic.
We need people with the skills for tomorrow’s industries, so we are making the largest investment in skills in a decade, and it is going to deliver the technical education our economy needs. Our skills economy will power innovation and growth, and we will all feel the benefit.
Alex Sobel (Leeds North West) (Lab/Co-op)
Yesterday I was speaking with members of the tech industry, and they were lamenting the fact that there is only one hour a week for computing in secondary schools. Our growth will be in the technological sector. What will the Government do to improve computing education in schools?
Nadhim Zahawi
I am grateful for the hon. Member’s question. I know that he cares passionately about this subject and the overhaul of information and communications technology in the curriculum. I think an £83 million investment in that is a signal to the sector of how important it is to the UK economy. I saw at first hand at Barnsley College how T-levels in technology are delivering for young people. We will invest £2.8 billion of capital funding in skills and further education, including to further expand our new T-levels, which are set to offer a new gold standard in technical education and will be more than a match for A-levels.
Andy Carter (Warrington South) (Con)
I recently visited the university technical college in Warrington, which is a great example of skills-based education, linking with employers such as Sellafield. Does the Secretary of State agree that that is exactly the sort of education we need to see across the UK?
Nadhim Zahawi
My hon. Friend is absolutely right that the UTC and the work it is doing with Sellafield is exactly the sort of high-skilled, high-ambition, career-developing education that we need, giving those young people, when they become young adults, a real outcome. Of course, higher wages and a more successful economy will be by-products of that, but the real outcome is that rounded adult who has a real career path in the economy.
Robert Halfon (Harlow) (Con)
I welcome what my right hon. Friend is saying. Can he confirm that there is a 42% increase in the skills budget in cash terms? Does he not agree that if we spend that money right, we will create, for the first time, a parity of esteem between skills and higher education, and that rather than just “university, university, university”, our mantra should be “skills, skills, skills” and “apprenticeships, apprenticeships, apprenticeships”?
Nadhim Zahawi
There is no greater champion of this agenda than my right hon. Friend, the Chairman of the Select Committee on Education. “Skills, skills, skills” runs through his veins, and I thank him for that point. I absolutely agree with him on the uplift in the investment that we are making.
I would like to take a moment to tell the House all about the visit I made to Barnsley College just a week or so ago. The college was the first in South Yorkshire to roll out T-levels. While I was there, I met several of its students, including one whose name is Greg. Honestly, I have rarely met a more inspiring individual. He told me that with his T-level—I will quote him word for word:
“I’m looking at unis now and thinking, ‘Which one am I picking?’ not ‘Which one of them is picking me?’”
Greg is living proof of the transformative effect our skills programme is having.
The same is true for apprentices. Apprenticeships funding will increase by £170 million to £2.7 billion, alongside other improvements to support more small businesses to hire new apprentices.
Nadhim Zahawi
I want to make sure that others get a chance to participate in the debate, so I will make some headway. I hope that the hon. Lady will forgive me; I beg her indulgence.
These investments are putting employers at the heart of our skills economy so that education and training respond to local business needs. In this way, we will not only build one of the best technical education systems in the world, but drive local prosperity and levelling up.
Of course, we know that skills training is not just for the young. As technologies change and develop and businesses adapt, so people will find that they will need to reskill or retrain throughout their lives. Globalisation and automation are changing the modern workplace. Jobs and industries that are flourishing now might not be in five or 10 years. Our skills economy must be sufficiently agile to flex not just for today but for tomorrow and long into the future.
With our “Skills for Jobs” White Paper, we are committed to boosting the job prospects of adults across the country by making sure that they can get the training they need to adapt to a changing workforce. A total investment of over £550 million will make sure that adults at any age can retrain or upskill, and that is part of our national skills fund commitment. We will be investing more in boot camps, which offer free flexible courses of up to 16 weeks, giving people the opportunity to build up specific skills with a clear route to a job at the end. We are also investing more to help adults in England take advantage of our free courses for jobs offer. There are now more than 400 courses to help more adults gain the skills they need to boost their career prospects. There will be opportunities for adults across the whole of the UK to develop their numeracy skills through the multiply programme the Chancellor announced, funded by another £560 million through the UK shared prosperity fund. That means that wherever people live and whatever stage they are at in life, they will be able to access training and education that gives them the skills employers want and which can lead to good jobs and career progression.
Ben Everitt (Milton Keynes North) (Con)
This is a national effort. A lot of attention has quite rightly been placed on the areas in the north of England that are targets for levelling up, but will my right hon. Friend confirm to the House that levelling up is a national agenda and that there are poorer areas in the south of England and London that will receive priority funding from the Government?
Nadhim Zahawi
Levelling up is at the heart of the Government’s agenda. Levelling up means empowering local leaders and communities to drive real change: boosting living standards, particularly where they are lowest; spreading opportunity and improving public services, particularly where they are weaker; and restoring local pride across the United Kingdom. Every local authority across the UK is eligible for the levelling up fund. In line with the Government’s mission to level up, it is right that we have prioritised areas that have been objectively assessed as most in need of the kind of investment that the levelling-up fund provides. That includes areas in the south of England which are most in need.
Schools are equally important and they have done well in the spending review. One of the biggest challenges we currently face is helping the young people who have suffered so much disruption to our schools during the pandemic. Those young people have been foremost in my mind and are central to the significant investment we announced this week. We know that world-class public services will help to turbocharge our economy. They will give us the skills, knowledge and technical excellence to drive productivity and growth. To deliver them, we have to begin with our schools.
All of us here, without exception, will owe a great debt to a teacher—maybe more than one—who helped us to get to where we are today. Colleagues will be aware that I have more reason to be grateful than most, having arrived here at the age of 11 as an immigrant without a word of English. I will always be grateful to the teachers who helped me on my way, which is why it gives me particular pleasure today, as Education Secretary in Her Majesty’s Government, to say that we are going to increase our spending on our country’s schools. Core funding will rise by £4.7 billion in 2024-25, building on the largest cash boost for a decade provided in the 2019 spending review. That equates to a total cash increase of £1,500 per pupil compared to 2019.
Clive Efford (Eltham) (Lab)
Will the Secretary of State give way?
Nadhim Zahawi
I will make some headway. I have taken many interventions.
Let us not forget that these are not normal times for any of our schools and colleges. The task in front of them, helping every young person to get back to where they need to be, requires all our teaching and education staff to continue to deal with the fallout from the pandemic. To reflect that, we will be allocating nearly £2 billion extra to support young people who are struggling to catch up on missed learning, following the existing investment in tutoring and training for teachers.
Clive Efford
The Institute for Fiscal Studies has described the increase in education funding over the past decade as the worst for 40 years. The Secretary of State says he is increasing funding for schools, but by next April, 12 years on, we are only about to achieve the same level of funding that existed in 2010. That is a damning indictment of the Conservative Government over the past decade. Why have young people in our schools been forced to pay the price of Tory austerity?
Nadhim Zahawi
I am grateful to the hon. Gentleman for that question, but respectfully he is completely wrong. It is not the same level of funding as 2010. Let me try to explain it to him and his constituents. The £1,500 per pupil extra by 2024 is £1,500 more than in 2019-20. That is a significant investment in the future of this great country.
To reflect that, we will allocate—as I was saying on recovery—£2 billion extra to support young people who are struggling to catch up on missed learning, following the existing investment in tutoring and training for great teachers. That is in addition to the 6 million tutoring courses and 500,000 training opportunities we have already made, which takes overall investment specifically dedicated to pupils’ recovery to almost £5 billion. That includes an additional £1 billion of catch-up funding that goes direct to schools so that they can best decide how to support education recovery for those of their pupils who most need it. Teaching unions wanted that additional flexibility—I thank them for that—and I listened to them and made representations to my right hon. Friend the Chief Secretary to the Treasury. As they told me, this funding might pay for specialist small groups, or hiring staff to lead extra-curricular activities outside the school day. In that way, an average secondary school could receive about £70,000 a year in additional cash. That is money that can make a real difference to young lives. Evidence shows that the pandemic has had a significant impact on older pupils who have the least time left in education. We will be investing £800 million in extending the time they spend in colleges.
It is no secret that the most important person in any classroom is the one standing at the front of it, which is why this settlement enables us to raise teachers’ starting salaries to £30,000. We promised that in our manifesto and we are delivering on that promise. That is in addition to a salary boost of up to £3,000 tax free to teach maths, physics, chemistry and computing, which we have already announced, to increase the number of teachers in subjects that are facing the greatest shortfall. It will also build on our groundbreaking teacher recruitment and retention reforms. We want our brightest and best graduates to be queueing up to be teachers. We now have far more compelling reasons for them to do so.
As a former families Minister, I care passionately about giving children a great start in life. That means giving families every support. I have seen for myself on many occasions the incredible effect that our investment can make on helping struggling families. Around 300,000 of our most vulnerable families will be supported with an extra £200 million boost to the Government’s flagship supporting families programme, which supports families through complex issues that could lead to family break- down. That is an approximately 40% real-terms uplift in funding for the programme, taking total planned investment across the next three years to nearly £700 million. As I said, we are being driven by three things: skills, schools and families.
Ben Bradley (Mansfield) (Con)
I welcome my right hon. Friend’s commitment to the supporting families scheme. The certainty around that for the long term will be very beneficial. He will recognise, as a former families Minister, that the big pressure on local government budgets is not social care—I wish I could spend the money, but I cannot employ anybody—but children’s services. The cost is growing exponentially. We need to move to more proactive preventive services, such as supporting families. Will he make a commitment to ensure that the transition in local government to preventive services will continue beyond this Budget? It is very welcome, but it has to be a long-term trend. Will he commit to supporting local government to do that?
Nadhim Zahawi
My hon. Friend is absolutely right and I thank him, not least because of his deep experience in local government. We will continue to engage with the MacAlister review and we will take very seriously the points that my hon. Friend made about the pressures on local government.
As I said, this is about skills, schools and families, which is why we are setting aside £50 million over three years—
Nadhim Zahawi
Let me make some headway, because hon. Members might find this interesting: we are setting aside £50 million over three years for parenting programmes to help parents and carers build positive relationships with their children and around £80 million to create a new network of family hubs—a one-stop shop where families can get help and support services when they need them in 75 local authorities across England. Almost half of local authorities will have a family hub. I will give way to the hon. Member for Denton and Reddish (Andrew Gwynne).
Andrew Gwynne
I am grateful to the Secretary of State. I welcome the Government’s new-found conversion to something that sounds particularly like the Sure Starts that we had in 2010, but I want to ask him about a practical point. The fact is that in large parts of the country—usually where the facilities are needed most— the Sure Start centres are just not there physically in the community, because of the reductions in the revenue support grant to local government. They have been subsumed into schools, removed or sold. Will he prioritise areas such as Tameside so that we can build back this network of family support in our communities? We do not have the Sure Start centres; we need capital funding to bring them back.
Nadhim Zahawi
The hon. Gentleman will know that, as Children and Families Minister, I tried to follow the evidence, and I will do the same as the Secretary of State. I will always be evidence-led. My difficulty with his statement about Sure Starts is that when we look at the evidence, we see that much of the investment went into buildings rather than to the families that we really needed to access those services. The difference here, as I saw through the evidence from family hubs in Harlow and elsewhere, is that with this multi-agency, wraparound approach, we can get to the families that need to access the service. I am glad to hear that he welcomes this announcement, because I know that he will probably be an outlier in his party in wanting to work constructively to get the 75 centres up and running.
We also continue to invest in early education, with around £170 million every year—the sector was slightly confused, but I know that the Children and Families Minister, my hon. Friend the Member for Colchester (Will Quince), set them straight—to increase the hourly rate for free early education entitlements, supporting families with the cost of childcare. As we would expect from a Government who are as committed to levelling up as this one, much of our focus is on those who need additional help, especially the most vulnerable in society.
Nadhim Zahawi
I know that Mr Speaker is looking at his watch, so perhaps the hon. Lady will forgive me if I make some headway and let others into the debate.
Nadhim Zahawi
Indeed, Mr Speaker. We are investing £2.7 billion of capital funding to improve provision for pupils with special educational needs and disabilities.[Official Report, 2 December 2021, Vol. 704, c. 10MC.] That funding represents a significant investment in high needs provision and will help to deliver tens of thousands of new places for some of the most vulnerable children in our country. Over the next three years, we will provide £259 million to expand the number of places available in secure and open residential children’s homes. That will provide high-quality, safe homes for some of our most vulnerable children and young people.
We will also support families through our adoption strategy. That will go a long way to improving the process of matching children who need a home with the adopters who are desperate to provide one for them. That means encouraging all those who can provide a loving home to come forward, not just those from a narrow, rather middle-class demographic. We will, in due course, see more centres of excellence for our regional adoption agencies.
Every child deserves to grow up in a secure and loving home and every single one of us, young and old alike, deserves to live in a community where we feel safe. The whole country has been shocked to the core by the recent violent attacks on people who have been walking home or out enjoying themselves, especially vulnerable young women. This is simply unacceptable. We promised to recruit an extra 20,000 police officers in 2022-23 and we are putting an extra £540 million into recruiting a further 8,000 additional police officers. We are allocating £42 million for new crime and drugs programmes. That will help to fund our Safer Streets programme and will help more people to improve home security, especially in areas that have a high incidence of burglary, car theft and robbery. We have always taken a zero-tolerance approach to crime, and tackling drugs is a priority, especially through our county lines programme. We will set up a national crime and justice lab to analyse crime reduction and prevention data.
Part and parcel of keeping our streets safe is making sure that those who threaten that security are dealt with quickly and efficiently through our criminal justice system. The covid pandemic has had a massive impact on this, so we are making an extra £2.2 billion available to manage the increased number of offenders being brought to justice and to reduce backlogs in criminal courts. There will be an extra 20,000 prison places, which builds on the additional 18,000 prison places that we announced at the last spending review, plus a further 2,000 temporary places. That represents the largest prison-building programme in a generation.
For those people who have been victims of crime, we will increase our support services to over £185 million a year. Security, safety and support are going to underpin our public services, but we must also take a proactive approach to make sure that all our communities are vibrant, resilient places where people can live, learn and work. One of the chief ways to make sure that everyone can get from A to B smoothly and efficiently is through world-class public services, and we will need world-class local transport systems. The investment there makes a huge difference across the board.
I know that you are anxious about the time, Mr Speaker, so I will conclude. This Budget will provide billions of pounds to deliver the public services that the British people deserve. It puts skills, schools and families at the centre of everything we do and it embeds levelling up throughout all our services and our national infrastructure. The Budget is a clear statement of intent: world-class public services backed by £150 billion a year in cash terms.
Kate Green (Stretford and Urmston) (Lab)
It is a great pleasure to follow the Secretary of State in today’s debate. Our public services keep the nation going. In the last 18 months, we have relied on them more than ever: on nurses, doctors, NHS and care staff, who have looked after us in the most difficult conditions; on police and the emergency services; on transport staff; and, of course, on teachers, lecturers, school and college leaders, early years, childcare and education support staff, who have kept children safe and learning. It is because of their dedication and the importance of the services that they provide that we needed a serious plan in this Budget to rebuild the services that the Government have cut to the bone in the last 10 years, and a plan to remake Britain. Instead, we got a high-tax, low-growth Budget that hits working people with a £3,000 hike in their tax bills; a Budget that did nothing to reduce living costs, tackle soaring energy bills or support working families this winter; and a Budget that failed to address the deep-rooted pressures on the public services on which we all rely.
Over the 74 years of its existence, the NHS has been a source of huge pride to this country. However, under the Conservative party, life expectancy among the poorest has fallen and health inequalities have widened, so measures to tackle that state of affairs were very much needed. Instead, we got the Chancellor pretending that a new wing or new unit somehow counts as a new hospital. We got a sticking plaster for social care, with local authorities having to levy their residents to pay for it. Incredibly, after the 18 months we have all been through, the Government failed to prioritise public health, which has suffered a 24% cut in real terms since 2015-16.
Emma Hardy
In the Treasury Committee yesterday, we heard evidence from the Office for Budget Responsibility, which predicts that 95% of councils will raise their precept to the maximum to cover social care—another thing that will have an impact on the cost of living. The letter that I quoted from earlier, which was written to the Secretary of State for Health and Social Care not by me, but by the leader of Conservative-led East Riding of Yorkshire Council, says that adult social care is in crisis.
Kate Green
My hon. Friend is absolutely right. The levy to fund social care is one more tax that will hit hard-pressed families in the spring and will do nothing about the deep-seated need to address the social care crisis and the increasing pressure from an ageing demographic—it will not even touch the sides.
Jacob Young (Redcar) (Con)
Is it not the case that the Labour party still has no plan for social care? When we put forward a plan only a few weeks ago, Labour Members voted against it.
Kate Green
The hon. Member may not remember the Dilnot plan, which had cross-party support until Conservative Members torpedoed it. He may not have read the five principles that Labour has set out to underpin our approach to social care, including preventive investment to keep people at home and living independently for as long as possible, as we all want to. We have a plan that would invest in the workforce. It is not enough just to wish for better social care; the people have to be there to deliver it. That is Labour’s plan, and if the hon. Member would like more details, I am very happy to send them to him.
Despite 1.6 million people waiting for treatment, there was no guarantee in last week’s Budget that mental health will receive its fair share of NHS funding. Health stakeholders were most critical of the lack of a workforce strategy or a multi-year funding settlement to support it. We cannot deliver world-class healthcare if we do not invest in recruitment, retention and staff development. It is no wonder that the NHS is struggling when the number of adult health and care students declined by 15% in the three years before the pandemic.
The pandemic also shone a light on the problems that our schools, colleges and early years providers were already facing. No doubt it exacerbated them, but it did not create them. Last week, the Chancellor set out a £3 billion investment in skills, and the Secretary of State claimed that it was the biggest in a decade—but it comes after a decade of cuts to post-16 provision. The Learning and Work Institute calculates that funding over the spending review period will still amount to only 60% of the 2010 figure.
It is astonishing that at a time when our economy has to adapt to the challenges that the Secretary of State referred to—globalisation, digitisation and climate change in the post-Brexit environment—investment in skills remains so lacking. Four in 10 young people are leaving education without the level of qualification they need, the number of apprenticeships has fallen by more than 40%, and 9 million adults lack basic skills in literacy or numeracy. No wonder the Chancellor can promise only a paltry 1.5% increase in growth in the final three years of the forecast period.
At the same time that it is talking up the importance of vocational education, the Department for Education is scrapping most BTECs—well-recognised and respected qualifications that give opportunities to hundreds of thousands of young people.
Andrew Gwynne
I am grateful to my hon. Friend for raising the importance of BTECs, because for many young people and indeed many adults, BTECs are the route through the education system. As somebody who has a BTEC national certificate in business and finance and a higher national diploma in business and finance, I know that—it was my route through the education system. Let us make sure that we keep it open for future generations, too.
Kate Green
My hon. Friend is absolutely right. Again and again, I have met people who have described their learning journey from BTECs to university and an excellent career. Of course we want T-levels to succeed, but there is no reason to remove other qualifications that provide a different route that is more appropriate for some young people. Under Labour, every young person will receive education that is appropriate to them, whether that is an apprenticeship, technical education or university, and will leave it ready for work and life.
Kate Green
If my hon. Friend will forgive me, I will make some progress.
OECD data show that the UK has some of the world’s highest childcare costs—the cost of nursery provision for a one-year-old increased four times faster than wages between 2008 and 2016—but despite the high costs for parents, many early years providers are struggling to stay afloat. This year alone, nearly 3,000 childcare and early years providers have closed their doors. This Budget could have been an opportunity to put provision on a sustainable footing, reduce costs to parents and invest in quality, making a real difference to millions of families, but the announcements that we got were inadequate.
Don’t get me wrong: any investment in families with young children and in support for new parents is welcome, but the family hubs project is a pale imitation of what the Conservatives inherited in 2010. [Interruption.] “Nonsense,” says the Minister, but let me tell him that when Labour left office, there were 3,500 Sure Start centres delivering support to more than 2.9 million children in every local authority in the country. Since then, 1,000 children’s centres have closed. A moment ago, I think the Secretary of State was promising new family hubs in only half of local authorities. Can he tell me how many family hubs in total will be created as a result of the spending announcements?
By the 2021 summer term, children had missed an average of 115 days of schooling, and on 21 October, just before the half-term break, 248,000 children were still out of school as a result of covid, yet the Government’s response falls well below the scale of ambition needed for children’s educational recovery. The extra £1.8 billion announced by the Chancellor last week brings the Government’s recovery plans up to a total of £5 billion—far short of the £15 billion that their own expert adviser said would be needed to ensure that children make a full recovery from the pandemic.
Labour, by contrast, remains committed to our £15 billion children’s recovery plan. Whereas the Government will provide tutoring to just one in 16 pupils this year, Labour’s plan would resource schools to deliver tutoring to all who need it. We would deliver universal catch-up breakfast clubs and extend the school day for additional activities—I noted that the Secretary of State seemed to be in favour of that at Education questions yesterday, but he got nothing from the Chancellor. We would invest in training world-class teachers and teaching assistants and in supporting the early years sector, schools and colleges with an education recovery premium. We would prioritise young people’s mental health, giving every school access to a professional mental health counsellor.
Andy Carter
I have totted up all Labour’s uncosted spending plans to about £400 billion. From what I can see, Labour is proposing about £5 billion of extra taxes. Can the hon. Lady explain where the extra money will come from? Is it not still the case that Labour is the party that cannot be trusted to run the economy?
Kate Green
I have absolutely no idea where that £400 billion figure comes from. The hon. Member says that it is uncosted, but there is no such uncosted plan; he needs to check his figures. The £15 billion costed plan—a plan advised by the Government’s own expert adviser—will, of course, be covered by the covid funding pot that the Government themselves admit has to be set aside to meet the costs of the pandemic. If the hon. Member cares to examine the tax burden from the Budget, he will see that it is not Labour that is increasing taxes on hard-pressed families. Taxes will hit families by an extra £3,000 as a result of his Chancellor’s Budget.
Yasmin Qureshi
The hon. Member for Warrington South (Andy Carter) talks about financial prudence, but this Government spent £39 billion on the failed Test and Trace. How can Conservative Members talk about financial prudence?
Kate Green
My hon. Friend makes the case.
Labour’s plan would deliver the wellbeing and academic support needed to meet the scale of the challenge and ensure that all children can reach their potential. That is the level of the investment that the Government should have been making in the nation’s children.
When we look at overall school spending, the picture does not get much better. The Chancellor announced a 2% per annum real-terms increase in school budgets over the next three years. I want the Secretary of State to listen to this very carefully, because we are messing around a bit with figures here. That increase will finally return school spending to 2010 levels, in real terms, in 2025. As Paul Johnson, the director of the Institute for Fiscal Studies, has said,
“To have no growth in 15 years in such an important part of public services is unprecedented’’.
This means that 732,000 children in state-funded reception classes in 2010 have seen their whole school careers affected. A whole generation of children has been failed by consecutive Conservative Governments.
The Secretary of State spoke of a cash increase in school spending as a result of the Budget, but schools are facing a host of rising costs to set against that: covid costs, energy bills, and employer national insurance contributions. The ending of the public sector pay freeze is overdue, but it is schools that will have to fund the teacher pay settlement.
The impact of this underfunding is plain to see. Some 200,000 children are growing up in areas with not a single primary school rated good or outstanding. Forty per cent. of young people leave compulsory education without essential qualifications. By the time they finish their GCSEs, pupils from poorer families are 18 months behind their wealthier peers in terms of attainment, and a third of teachers leave our schools within five years of qualifying. Last week’s Budget was an opportunity to fix those deep-rooted problems, but the Chancellor failed to do so.
Youth services help to equip young people with the skills and confidence that they need for life. They provide careers guidance and mental health support, they are one of the most effective ways of tackling the root causes of crime, and they help to build community cohesion. However, although they have already experienced a decade of cuts, last week’s Budget went on to inflict on them the single biggest one-off cut in youth services for a decade, leaving a £470 million hole in the youth budget. The Chancellor’s boasts of investment cannot disguise this crippling cut. Under the last Labour Government, youth services were accessible to people whatever their background; today, they are a patchy postcode lottery.
Kate Green
I am about to finish my speech, so I hope my hon. Friend will forgive me if I do not.
This Budget failed to address the challenges facing our education system—from early years to schools and from skills to higher education, about which the Chancellor said almost nothing last week—just as it failed to address the challenges facing the country. There was no plan to tackle the growing cost-of-living crisis, no plan to remove the enormous tax burden that the Conservatives have placed on working people and businesses, and no plan for growth, which is crucial to boosting our economy. This is not a Budget for the stronger economy of the future about which the Chancellor boasted; it is a Budget that lets down business, lets down our public services, and lets down the British people. They deserve better from this Conservative Government.
Several hon. Members rose—
Mr Deputy Speaker (Mr Nigel Evans)
Order. I am going to try not to impose a time limit, at least at the beginning, but I will give an indicative time limit. If Members speak for about six minutes, including interventions, they will not be going far wrong. As the House knows, that is a luxury by today’s standards.
Johnny Mercer (Plymouth, Moor View) (Con)
I will definitely not take my full allocation, Mr Deputy Speaker. I just want to make a few brief remarks about the Budget. I want to refer to a couple of measures that I think are very positive and pay tribute to some of my Front-Bench colleagues who have worked to bring them about, to mention an issue connected with defence spending that makes me quite uncomfortable, and then, I am afraid, to talk about something a little bit ugly in relation to spending on veterans’ affairs. But let me start with the good stuff.
I warmly welcome what has been done about universal credit. As my right hon. Friend the Chancellor knows, I have campaigned for it for many years. The return of the taper rate to where it should have been when it was designed is perhaps the single biggest factor, over and above the argument about whether people should or should not keep the £20 uplift. The taper rate and the twin-track approach to universal credit have the greatest impact in communities such as mine, with a high take-up of universal credit and other benefits. I am extraordinarily grateful for my right hon. Friend’s work, and for everyone’s work, to make that a reality.
This is a good Budget for Plymouth, in terms of the levelling-up fund. We received £20 million, and we will be dualling the road from The George up to the top of town. I know that it does not mean much to people here, but many of us in Plymouth have sat for what seemed like hours of our lives in that traffic jam. It is very encouraging to see the Government pushing funds downstream towards Plymouth. The living wage is fantastic news for a low-wage economy like ours. People have spoken to me about business rates so many times on the doorstep, and as a result of the Budget, 90% of businesses will see a 50% reduction. When we express our qualms about the Government, it is important to mention what is being done right as well.
I see that the Chief Secretary is in his place. As he knows, I am a huge fan of his, but I am going to give him a slightly hard time over the Ministry of Defence budget. I do not understand why we should talk about global Britain and about record settlements for the MOD, and then reduce its budget in real terms over the current spending period. This is a reduction of 0.4%, which admittedly is not a lot, but the point is the message that it sends to those who are serving and those who want to engage with us in a global Britain to match the threats that we are constantly discussing. I am afraid that the two are not in sync. If we want to be taken seriously, we must get our message right, and it must be done with money.
However, the main issue that I wanted to talk about at a national level—I know it is terribly boring for everyone—is the issue of veterans and spending. The distribution of money for the Office for Veterans’ Affairs was mentioned in the Budget, and I am pleased about that, but the amount is £5 million. There are 2.2 million veterans in the country, and that would buy them each a pint—in Plymouth, where beer is not £6 a pint as it is in London. We need a seismic shift in our attitude to veterans.
While I have been sitting here, I have been looking at some figures. It is difficult to compare apples with apples when it comes to veterans’ affairs, because different countries do this differently, but in America, for example, £270 billion a year is spent on veterans. That includes allowances, payments for injuries and so on, but it is a lot of money. We compare better with countries such as New Zealand, with 31,000 veterans. This time last year, it spent £10 million in its office for veterans’ affairs purely on administration. The closest match, however, is probably Australia, with 325,000 veterans. It spent £11.5 billion in its Department of Veterans’ Affairs last year.
Obviously £5 million is better than not having £5 million, but I would caution against making a song and dance about what we are doing for veterans without taking account of the reality of how they feel in their communities. It is still hard for them to know where to turn for help, and it is hard for them to get on to a care pathway where someone will pull them through and care about their outcomes. Op Courage is fantastic, but far too many people do not know about it, because we have not gone out and sold it.
Australia had a problem with veteran suicides and did not know what to do about it, so it established a royal commission which looked into the facts and produced a report. As a result, it provided A$302 million in additional resources for its Department of Veterans’ Affairs. It provided A$12.1 million to support veterans and their families, and A$55.4 million specifically to tackle the issues raised.
I know that I consistently pursue this theme, but there is no point, at this time of year in particular, in taking nice photographs of us all looking sombre at memorial services and buying poppies. That stuff matters, but it does not matter to a working-class guy or girl on an estate in Plymouth, or Basingstoke or Birmingham, who does not know how to access care—who hears about all the fantastic mental health care that is available but does not know where to turn, does not know the right people and does not know about the charities. There was a seismic moment for the Office for Veterans’ Affairs to pull all this together, but it cannot do that if it is asked to reduce its budget from £5 million to £3 million in the first year.
Carol Monaghan (Glasgow North West) (SNP)
One group of veterans whom we talk about regularly in the House—I raised this subject with the hon. Gentleman when he was the Veterans Minister—are the nuclear test veterans. I have not heard him talk about them, and he did not speak much about them in his former role. Perhaps he would like to say a little about them now.
Johnny Mercer
With respect, I have spoken a lot about nuclear test veterans. I was the only Minister who met their group, and I have spoken about the fight to get some sort of medallic recognition. I reviewed the nuclear—
Johnny Mercer
The hon. Lady can shake her head, but I did actually review the nuclear test programme medical settlement for them, and I improved it.
Nuclear test veterans are a part of this, but no one wants more than me to get away from the narrative that we do not treat veterans particularly well in this country. We are all incredibly proud of them, but this requires action and commitment. The Office for Veterans’ Affairs gave us the opportunity to do that, and I urge the Chief Secretary to the Treasury to do it. I know that he and everyone else on the Front Bench believe in this stuff, but we have to get away from giving money to military charities as though that will make us feel better. We have to develop a professional and profoundly different level of veterans’ care in this country, working with the third sector and others, to make people feel as though things are really changing for veterans in this country. I urge the Chief Secretary to take that forward.
Stephen Flynn (Aberdeen South) (SNP)
Politics is a remarkable thing, is it not? The theme for today is stronger public services. We had the Chancellor speaking for an hour last week and the Secretary of State speaking for what almost felt like an hour today but was in fact just in excess of half an hour, but no recognition whatsoever was given to the fact that when we talk about stronger public services, we need to reflect on what has happened over the past decade. It has been a decade of Tory austerity. As we heard earlier from the shadow Secretary of State, who made a number of excellent points, spending now will be 60% of what it was in real terms in 2010.
We know that life expectancy for the poorest in society has plummeted on the watch of this Government. They have brought the public sector to its knees. They choose to do that and they now have the gall to come to this Chamber and tell the people of Scotland and the UK that it is fine and that they are now putting more money in. Tell that to the people who have suffered so much—[Interruption.] The Chief Secretary to the Treasury shakes his head, but he can live in a parallel universe if he wants to. Alternatively, he could come to my constituency and meet my constituents who have suffered the hands of his Government since 2010. He could meet the disabled people who have been pummelled into the ground by this Conservative party. This Government might claim that they are a different Government, but they are of course the same party, and that collective responsibility belongs with each and every one of them, irrespective of whether we are talking about a stroke of the pen by George Osborne or by the latest Chancellor. They must all take responsibility for the horrific circumstances that they have caused for so many people over the course of the last 10 years.
Austerity did not just impact individuals; it also impacted the economy. We know that growth was not what it could or should have been, and the Institute for Fiscal Studies has been quite clear that by 2026, real wages—obviously accounting for inflation—will be at the same levels as they were in 2008. That is what the “party of the economy” has done over almost 20 years to the wages of working people right across these isles. If we take wages as a barometer for where the economy is at, we can see a shambolic record. But the economy does not stop there; we need to look at other things in the economy.
A word that has been conspicuous by its absence today and throughout our debates on both sides of the Chamber is “Brexit”. I do not think that the Chancellor quite promised us the sunlit uplands that appeared on the side of buses, but if we look at what the Office for Budget Responsibility says about the real world, we see that Brexit will cost the UK economy 4%. That means that our economy will be 4% smaller than it should be, as a result of an act by this Government for which they show no contrition whatsoever.
It does not take long to go out and speak to a business that is having to deal with the real-life consequences of Brexit. These businesses cannot get access to the supplies that they want, they are unable to export their goods in the same way as before, and they clearly cannot get the staff that they need. I could not believe the earlier remark by the hon. Member for Mansfield (Ben Bradley), who is no longer in his place, when, without a hint of irony, he suggested that his council needed not more money but more people. He is of course a member of the party that put up the barrier to those people coming to work in these isles.
It is not just the private sector that is suffering as a result of Brexit; it is the public sector as well. That includes care homes and our NHS. Right across the public sector, we cannot employ the people we need. The Government will talk wildly about the money that they are about to invest in the NHS, and investment in the NHS is undoubtedly a good thing, but every health board in Scotland is saying that they need staff. This will be replicated down south, and in Wales and Northern Ireland. If they do not have access to staff, the Government can throw as much money as they want at this but it will not resolve the problems. All of this is a consequence of the Government’s actions.
Let us look at the situation for those in the public sector more widely. Like everyone else, they are having to deal with the harsh reality of the cost of living crisis. The Chancellor almost brushed over this last week; I could not quite believe it. People right across the UK are having to face up to the fact that inflation will be in excess of 4%. If I recall correctly, the Chancellor said that he was working with the Bank of England to ensure that inflation was kept as low as possible, but it is still going to exceed 4%. The consequences of inflation of nearly 5% will be felt by people in Scotland, Wales, Northern Ireland and England. The price of their food will go up, as will the price of all their goods. The price of their fuel has already gone up, and will continue to do so. Energy bills are going up as well.
On top of that, according to the OBR, the Government are putting up taxes at the highest rate in 30 years. Again, we are meant to be thankful for that. The Government proclaim that it is a good thing that the people who have worked so hard to get us through this pandemic are going to have to face up to having so much less money in their pockets. What are the Government doing about that?
Jesse Norman (Hereford and South Herefordshire) (Con)
The hon. Gentleman is speaking eloquently about taxation. Could he just clarify whether, as a result of the firmly held views of the Scottish National party, the Scottish Government will be reducing taxes in the areas where they have tax control?
Stephen Flynn
I welcome that intervention from the former Minister. I have enjoyed our previous debates on all things financial. Let us reframe that discussion by looking at what we would do slightly differently in the case of spending. As he will be aware, he has been a member of a Government who are pleading that they do not have as much money as they should, at the same time as planning to spend in excess of £200 billion on nuclear weapons. He knows fine well that politics is about choices, and his choices differ drastically from the choices that we would like to make.
That is an important point, because it allows me to come full circle to my final topic, which is the situation in Scotland at this time—[Interruption.] I hear the Chief Secretary to the Treasury saying that the block grant has gone up, but he will be familiar with page 182 of the Red Book, which outlines that Scotland’s budget is to be increased by 2.4%. I am sure he would acknowledge that that is well below the rate of inflation, and well below the spending increases across a whole host of reserved UK Government Departments. I think he should reflect on that before he chunters away from his position over there.
In Scotland, we have again been told we should be grateful about the block grant, despite the 2.4% increase. We are also told that £170 million towards the levelling-up fund is a remarkably good thing, for which we should be really grateful. In my part of Scotland alone, the Scottish Government are putting in place a £500 million just transition fund to ensure that we can make the journey to net zero without leaving communities behind. We asked the Chancellor to match fund it, but despite the fact that the Government have raked in more than £350 billion from our North sea oil and gas sector, they said no and ignored our plea for a mere £500 million. Of course, they did something much more damaging than that: they walked away from carbon capture and storage in the north-east of Scotland. [Interruption.] I hear Members saying, “Shame,” and it is exactly that—shame on the Government. They walked away from that billion-pound investment in the north-east of Scotland in 2015 and they have done the same again now. They have turned their back on the communities I represent and the needs of Scotland. We can do so, so much better, and we will do better when we have that opportunity to take our own future into our own hands. Let me tell Conservative Members that that day is coming faster than they dare think.
Stephen Crabb (Preseli Pembrokeshire) (Con)
It is a pleasure to be called on the final day of the Budget debate. I thought it was a good Budget; not only was it a responsible and appropriate response to the economic challenges created by the pandemic and the lockdowns, but it took major steps forward to tackle some of the longer term, more deep-seated issues that have at times held our economy back in recent years. It was a Budget that is good for the whole of the UK, and especially good for my constituency. I should start my remarks by thanking the Chancellor of the Exchequer and the Chief Secretary to the Treasury, who is in his place, for including the Haverfordwest town centre improvement project in the first round of successful bids to the levelling-up fund. The bid put together by Pembrokeshire County Council, with my support, seeks to use regeneration of Haverfordwest castle and the riverside area as a catalyst to bring new opportunities and activity into the historic heart of the town.
In welcoming that project, I wish to take a moment to say something about the horrific and tragic events that happened in Haverfordwest town centre on Saturday morning, when three paddleboarders lost their lives on the river. I pay tribute to the emergency services and the speed of their response, and I wish to put on record my sympathies for the families of the victims, who are still coming to terms with the enormity of what happened at the weekend.
The project, which has the potential to renew Haverfordwest town centre, is not about nostalgia and looking to recreate a time, long since passed, when the town centre was full of shops and shoppers on a Saturday. The levelling-up fund is not about turning the clock back. We cannot turn the clock back on enormous economic forces shaping our town centres and retail environment. The levelling-up fund is all about intelligent, targeted investment that, together with harnessing local effort and determination, can make a difference in our communities, recovering some of the economic activity and civic pride that we need in all the communities we represent.
Levelling up is a mission written into the DNA of this modern Conservative party, and a continuous thread that we see throughout the Budget. Some of the criticisms of the levelling-up fund that I have read in recent days from Opposition Members have staggered me. The cynicism and churlishness about the fund shown by some demonstrate that they neither understand nor support the vision of creating a fairer economy throughout the whole country; nor do they understand this Government’s scale of ambition in terms of making a success and a reality of levelling up.
Levelling up is also about tackling poverty in this country—it has to be. If we look at the way deprivation and poverty are spread unevenly across this country, we see that levelling up has to mean tackling poverty as well. Our Government rightly emphasise the role of work and employment in tackling poverty, with work as a route out of a poverty, creating sustainable pathways to improving life chances. That approach is absolutely correct, so of course I welcome the enormous steps taken by the Chancellor in this Budget, including increasing the minimum wage, boosting the universal credit work allowance, and significantly cutting the UC withdrawal rate—the money people lose from benefit withdrawals when they move from unemployment into work. Together, those measures really improve the attractiveness of work in our economy; they strengthen the incentives for unemployed people to find work, and for people already in work to increase their hours and improve their earnings.
We have more than 1 million job vacancies in our economy, with employers in every one of our constituencies telling us that they need more staff and asking where they can hire them. With the tight labour market and the improvements to work incentives that the Chancellor has led with in his Budget, we have the best opportunity in more than a generation to really make a difference in tackling long-term unemployment in this country. About 350,000 people are long-term unemployed, and this is a great opportunity to reduce the number of children growing up in long-term workless homes. Almost 1 million children are growing up in a home where nobody goes out to work and brings home a wage. In the current circumstances, we have a great opportunity to make better efforts to reach those who are furthest from the labour market and put them on a pathway to sustainable employment. I am thinking about disabled people, lone parents, and others with caring responsibilities, many of whom want to work and to take on more hours. We have a good opportunity, if we can join up some of the initiatives in government, to really make a difference.
Of course, our Government are rightly emphasising that the days of relying on a continuous stream of migrant labour, particularly for lower skilled positions, are over. I am open-minded about people coming to this country, bringing their talents and work ethic, but given the changes that have happened post Brexit, we are in a new reality where there will be less migrant labour, so we have to find more workers from within our own potential workforce. The imperative is on the Government to make progress in improving the disabled employment rate and helping more lone parents and those with caring responsibilities into work. This is not an option any longer; it is imperative that we do it. The measures taken in the Budget provide important tools to help do it.
I welcome the Government’s recognition of the role of social security in supporting people into work. The last time we debated UC in this Chamber, on 15 September, we were debating the removal of the £20 uplift. I concluded my remarks by saying that we could not leave the issue at that point, and that we would need to come back to it and make further changes, so I am pleased that the Government have done some fresh thinking on UC and made these changes, which are absolutely welcome.
I say gently to my Front-Bench colleagues that a strategy for employment and work is not exactly the same thing as a strategy for tackling poverty. With the shadow of inflation hanging over the economy and many families on low incomes having to bear increasing living costs through this autumn and winter and into next year, we must have an honest discussion about the adequacy of welfare in this country. The £20 uplift brought in at the start of the pandemic was kind of an admission that basic levels of working-age benefits were too low. The measures we have more recently introduced to support families on the lowest incomes, and the moneys to be distributed via local authorities, are also kind of an admission that levels of welfare, particularly for working-age people, are too low. We have to come back and discuss that further, because the changes announced in the Budget do not cover everybody who was on UC. I will finish my remarks there, Mr Deputy Speaker. I am grateful to have been given time in the Chamber to make them.
Peter Dowd (Bootle) (Lab)
Mr Deputy Speaker, in the light of the point of order from a Government Member earlier, which I thought was rather churlish, will you pass on my thanks to the Speaker, your fellow Deputy Speakers, the House of Commons Commission and the House staff for all their help and support, and the safety in which they keep us in the House?
Bootle is one of the most deprived towns in England and has five super-output areas in the lowest 1%, so how can it be right that our levelling-up fund bid has been rejected? In the light of that type of Government approach, it is becoming apparent that the Chancellor’s financial statement was pretty shallow and a sort of economic whistling in the dark. Inflation is on the rise; interest rates are on the rise; taxes are on the rise; the deficit is on the rise; the national debt is on the rise; inequality is on the rise; billionaire incomes are on the rise; profits from dodgy covid deals are on the rise; covid infections are on the rise—the Chancellor is taking the rise.
The Chancellor’s statement came three months after the Prime Minister’s levelling-up speech, in which he committed to working
“double hard to overturn…inequalities”—
inequalities that the Prime Minister and other Tory Governments have exacerbated. I am afraid the Prime Minister working “double hard” does not fill me with much confidence: 100% of nothing multiplied by two is still nothing.
What about the Government’s fiscal rules? They have missed so many targets that they have stopped counting. On 18 October, the Institute for Fiscal Studies said:
“There are currently no active fiscal rules in the UK. The fiscal rules adopted in the 2019 manifesto were abandoned just four months later with the onset of the Covid pandemic.”
The Chancellor did announce some fiscal rules, but they are unlikely to be met, like those of other Tory Chancellors, although hope does spring eternal.
How about the national debt? In May 2010, the Tories inherited a national debt of just over £1 trillion, or 63.2% of GDP; in August 2019, it had gone up by three quarters to £1.7 trillion, or 78.4% of GDP; in February 2021, just pre-covid, it had gone up again to £1.784 trillion, or 81.9% of GDP; and by September 2021, it was at £2.218 trillion, or 95.5% of GDP. So the Tories have added £16,000 for every man, woman and child in this country. That is why—to respond to the question from the hon. Member for Warrington South (Andy Carter)—you cannot trust the Tories with the economy. The party of fiscal rectitude has more than doubled the national debt in just a decade—more wrecked than rectitude.
Jesse Norman
Will the hon. Gentleman remind the House what the national debt as a percentage of GDP was in 1997 and then what it was when the financial crisis—to which Labour had allowed the country to become enormously overexposed through increased debt in the banking sector—had struck? I will tell him: it went from 46% to 84% while Labour was in government.
Peter Dowd
As the phrase goes, I will take no lectures from the right hon. Gentleman, who served on the Treasury Bench while I served on the Opposition Front Bench. He was there when the OBR confirmed that the UK was suffering the slowest recovery of any major advanced economy, with GDP at the end of this year further below 2019 levels. That was on his watch. The Prime Minister and the Chancellor do not have the self-awareness to acknowledge it, saying it is everybody else’s fault, as the right hon. Gentleman just repeated. The blame game starts and there are the usual tactics of diversion.
What is the latest diversion? Well, unlike Nelson, the Prime Minister sees ships everywhere—preferably French ones. “Vive la France!” he whispers under his breath. What about his handling of the pandemic? The time is not right, he says, to hold anyone—that is, him—to account through a public inquiry, as he needs to get on sorting out the pandemic, yet in the middle of that pandemic he initiates a major reorganisation of the NHS, so clinical and support staff, who are under huge stress, are being distracted from the real job at hand. That is the perversity of this Government.
The Prime Minister seems to forget that, in cahoots with the Chancellor, he implemented a massive cut to aid to the poorest nations during a pandemic. So much for global Britain.
How are the Government going to sort out the country’s economic travails? Another slogan will help out: levelling up. I am not sure whether the Prime Minister shared the levelling-up speech with the Chancellor; if he did, the Chancellor obviously did not bother to read it. In fact, I am not even convinced that the Prime Minister bothered to read it before he delivered it. In his levelling-up speech in July this year, the Prime Minister referred to the scale of the task that faced the German nation on reunification. Does he know the scale of the problem in this country? The Germans actually did something about it: they invested over decades. I suggest that the Prime Minister checks out what they did. Rumour has it—it is a rumour—that he is not a details person, but on this occasion he may want to make an exception.
If the Prime Minister is going to mention German reunification, he would be well advised to look at the scale of the intervention that was undertaken. The Centre For Cities analysed what putting the words of his levelling-up speech into action might mean. The analysis was entitled “What can German reunification teach the UK about levelling up?”; the answer, as it happens, is a great deal. The cost of this scale of levelling up would be at least £1.7 trillion today, which is around 75% of a year’s UK GDP. Closing the north-south divide would cost hundreds of billions of pounds over decades, if done properly. The Government have come nowhere near that level of investment or commitment.
England’s biggest cities, including Birmingham, Manchester and Leeds, have the lowest productivity and life expectancy in western Europe—on the Prime Minister and the Chancellor’s watch. In Liverpool, life expectancy is four years below the European average. All major cities outside London are at the bottom of the western European league table for productivity, after 10 years of Tory control. The evidence of social and economic inequity across the country in terms of health, education, region, environment, cities, towns, countryside, age and gender is there for all to see.
What is depressing is the insouciant—there’s the French again—attitude of the Chancellor to it all. The scale of the task that faces the country is in inverse proportion to the Chancellor’s lack of action. In sum, on the bridge, the Prime Minister sees ships everywhere; meanwhile, below decks, the Chancellor is scuttling HMS UK.
Several hon. Members rose—
Mr Deputy Speaker (Mr Nigel Evans)
I remind everybody to keep speeches to round about the six-minute mark; otherwise, I will have to impose a time limit.
Sir Edward Leigh (Gainsborough) (Con)
I hope the House will forgive me if I do not follow the hon. Member for Bootle (Peter Dowd) in being relentlessly partisan. We are dealing with enormously complex issues.
I listened to the Chancellor’s peroration—his hymn of praise to a low-tax, deregulated economy—and it brought a tear to the eye of a weary Thatcherite. But having sat through 50 Budgets, because there are sometimes two a year, and having listened to so many Labour and Conservative Chancellors, I know that, when one reads the small print the next day, one tends to find that the Chancellor has taken by stealth what he has given publicly.
I know that we face one of the greatest challenges in our history, with the pandemic, but the truth is that we are now taxing people higher than at any level since the Attlee Government. As we pursue levelling up, are we going to bring in ration cards on eggs and meat, as the Attlee Government did? I am looking now at the Chief Secretary to the Treasury, who I hope is listening to every word I am saying. We are—to quote the Prime Minister in another context—at “one minute to midnight” in terms of our future as a tax-cutting Government. With mortgages going up, inflation going up, and a £3,000 increase per household to fund £150 billion of spending, soon we will be paying £1 trillion in tax. Who will pay for this? It will be the people who elect us Conservative MPs and middle earners in middle Britain. Even beer will go up. Inflation may be up to 5% next year, putting at risk the forecasts of the Chancellor. We are breaking the triple lock on pensions, which I think is probably necessary, which might result in another £30 billion being taken out of the hands of pensioners over the next two decades.
On inheritance tax, we are freezing the band, so more and more people with modest homes are being brought into inheritance tax. On the health and social care levy, we might be taking up to £85 billion off older people. With the fiscal drag on income tax, we are bringing another million people into the higher tax level—and this is a Conservative Government. This is what the Chief Secretary to the Treasury must do: every time his colleagues beg him for more money for this and more money for that, he has to say no.
We should bear in mind what happened in 1945. The coalition Government during the war were the highest-taxing Government in history and the most regulating Government in history—we regulated people’s private lives more than we have ever done in the past 70 years, including during the pandemic. What was the result? It was a Labour Government. People looked at the coalition Government and they turned to what they thought would be the real McCoy, namely, a Labour Government. So get a grip. I know that we have these challenges. I probably could not do any better, but we have to get a grip now.
Jonathan Edwards (Carmarthen East and Dinefwr) (Ind)
Will the right hon. Gentleman give way?
Sir Edward Leigh
No, because I am only allowed six minutes.
I use the NHS. I do not have private health insurance. I do not use private health. I rely totally on the NHS. Fantastic care has been given to me by nurses and doctors, but it is a bottomless pit. The more we increase funding of the NHS above inflation, the lower the productivity. We saw that in the Labour Government under Blair and Brown and it is happening now. We are even seeing it now with GPs quite disgracefully refusing to see people. So we must grip the NHS. We heard the Education Secretary half an hour ago. His own budget now is being squeezed because of the huge increases in health spending. If we are to match the Chancellor’s wonderful peroration to create a low-tax, deregulated economy, the most important Minister from now on is the procurement Minister—the Minister who has the courage to say no.
I do not wish to sound relentlessly critical. I do not pretend that any of us could do any better, but we have to be honest and true to our Conservative instincts and tell people that they should not always rely on the state. We should help them to get out of the clutches of the state. To tackle health spending and to relieve pressure on the NHS, the Major Government allowed people of pensionable age to claim tax relief on private health insurance. That was fiercely opposed by the Labour Government. Mr Major is hardly a right-wing extremist. He was prepared to do it. He was prepared to take millions out of relying on the NHS by giving tax relief. It was a bold Conservative idea to wean people off the state.
Why are we a property-owning democracy? It is because, for many years, we gave tax relief on people’s mortgages. Families who before could only leave a few sticks of furniture to their children became property owners. As they became property owners, they became Conservatives. That is why these planning reforms are so important. That is why it is important for my children, who are in their 20s and 30s, to be allowed to get on the property ladder. By easing planning controls, we can build more and get people on the property ladder. That is a true Conservative idea. We have to have the courage to propel that view forward, whatever people might argue from a nimby point of view. I am probably as good a nimby as anyone else. We are all nimbys when it comes to our personal lives and people who want to build around us, but we have to build more. We have to help our young people—a strong Conservative idea.
Look at our tax system. We have the longest tax code in the world after India. Look at the poisoned chalice that Gordon Brown left us in the 45% tax increase. We have never had the courage to get rid of that. People are driving themselves up companies and creating wealth, but instead of flattening out taxes, which is what Nigel Lawson did, we have not yet had the courage to get rid of that higher tax burden.
When it comes to levelling up, Gainsborough South West ward is the 27th most deprived ward in the country. I am very proud of the fact that we have achieved some levelling-up funds, but the process was directed not at endless schemes or at consultants, but just at infrastructure —on repairing the historic houses in the marketplace, which is something that we could control.
As I end my speech and obey your summons, Mr Deputy Speaker, to speak for fewer than six minutes, let me say to the Chief Secretary to the Treasury: be bold, be Conservative and get people out of the clutches of the state.
Imran Hussain (Bradford East) (Lab)
In recent weeks, the Chancellor has been promising us a Budget that would look to the future, a Budget that would reshape our economy and a Budget that would level up our left-behind communities. Working people across the country hoped for action that would tackle the growing cost of living that they face each day, but what we got last Wednesday was a Budget without the vision and imagination to tackle the challenges that we face in society. We got a Budget that is stuck in the past, unable to confront the realities of the future, and a Budget that perpetuates an economy that serves the richest, while trampling over the poorest, which proves that, under this Government, levelling up is just a slogan and words, not real action.
Bradford is one of the most deprived areas and it is in the most desperate need of levelling up. All it really got from this Budget was a new sports and enterprise centre on Squire Lane, which is a project that was brought forward, developed and signed off by me years ago when I was deputy leader of the council. It was signed off and brought about to tackle the rampant health inequalities in our city, but it was starved of funds and never built because of a decade of Government austerity.
While this Government today tell us that, in Bradford, they are levelling up and giving us much-needed money for the new sports and enterprise centre, which, of course, is very welcome, the reality remains that, if they had not made the ideological austerity cuts over the last decade that devastated councils such as Bradford, we would have been able to fund this ourselves a decade ago. So I am not going to take Conservative Members telling me that they have done a huge favour on Bradford, levelled up and tackled poverty and the real issues that we face in the district.
In the time that this Government have taken to provide funds for that centre, the inequalities—particularly health inequalities—faced by those in Bradford have only grown. The life expectancy of someone living in Bradford is almost 10 years lower than in other parts of the country. Let us take a moment to look at that. If a person lives in certain parts of the Bradford district, they are likely to live 10 years less than if they lived in a leafy suburb away from Bradford. I ask Conservative Members: what does this Budget do to address health inequalities in Bradford? What does the Budget do to address the fact that up to 40% of children in my constituency will again today be denied a hot meal? What does this Budget do to address the fact that working families in my constituency will continue to use food banks? Those are the questions. It is easy to get caught up in statistics, but the reality remains that this Budget will do nothing to address those real issues in my constituency, which means that we now have to go even further and present new initiatives to tackle the widening inequalities in our society.
Ultimately, this Budget came nowhere close to what people in Bradford need. Throughout the Chancellor’s 100-page Red Book, there was no commitment to reverse the cruel cut to universal credit that will take £1,000 a year out of the pockets of some of the poorest in Bradford. There was no plan to tackle the rapid decline of Bradford’s high street by reforming and replacing an outdated business rates system that penalises small, family-run businesses to satisfy the greed of large multinationals. There was no pledge to deliver Northern Powerhouse Rail, which will run from Manchester to Leeds, through a station in Bradford city centre that would draw investment into our region and act as a firm symbol of levelling up.
Even the end of a public sector pay freeze to tackle the cost of living crisis failed to acknowledge that it was this Government and their decade-long pay restraint that created a cost of living crisis for those working in the public sector in Bradford. Although investment in education and healthcare is welcome, it will fail to make up for a decade of austerity, cuts and underinvestment that has created so much pain and misery for so many across the district.
As is so often the case under this Government, the cost of the Budget’s failures will fall on the shoulders not of the Chancellor or his constituents, but of my constituents in Bradford and other places like my constituency. It is in the pockets of people in Bradford that the cost of living is being felt the most. It is my constituents—on wages lower than the national average and employed on insecure contracts—who will be hit hardest by rising food prices, spiralling energy bills, and soaring rents and mortgages, only to be hit again by tax rises that mean that households will be paying £3,000 more in tax in the next five years than when this Prime Minister took office.
Time does not permit me to go on, and I want to be fair to colleagues. The fact is that the only people levelled up by this Budget are the millionaire bankers sipping champagne on their short-haul flights. The clear conclusion is that, just as we have seen every year under this Tory Government, this is a Budget by the rich for the rich.
Jesse Norman (Hereford and South Herefordshire) (Con)
I very much welcome this Budget and spending review. Were the Chief Secretary to the Treasury, my right hon. Friend the Member for Middlesbrough South and East Cleveland (Mr Clarke), in his seat, I would be able to extend to him my warm congratulations, as I do to his new Treasury colleague, the Exchequer Secretary to the Treasury, my hon. Friend the Member for Faversham and Mid Kent (Helen Whately), on taking their places in such a fine Department and at such a difficult moment. To have delivered a spending review as a new Chief Secretary is a phenomenal achievement. I congratulate him, as I congratulate the Chancellor, on that.
Among the many good measures in the spending review and the Budget, I particularly single out—as many colleagues across the Government Benches have—the rise in the national living wage, the reduction in the universal credit taper rate, and the great emphasis placed on education and skills as the key to levelling up. I remind all colleagues, who will know this—none more so than my right hon. Friend the Member for Harlow (Robert Halfon), the Chair of the Education Committee—that education and skills are at the core of all the regeneration that we have seen over the years, not just in this country, but around the world. Education and skills, even more so than infrastructure, are positively correlated with economic growth and development, so I very much welcome their inclusion.
There is one area where I do have a concern that the Budget and spending review do not go far enough. It may appear to be a parochial constituency interest of mine, but it is actually an issue of national importance: the plans for which we requested support regarding the River Wye. The River Wye is a priceless national asset. Many Members of the House will have visited it in Wales and in Herefordshire, and seen its flow all the way down to the Severn. They will have seen this extraordinary national asset and its impact locally—not just its environmental richness, but the strength that it brings to tourism and economic development, and its central place in the nation’s cultural history.
It is easily forgotten that the idea of the picturesque—indeed, the idea of domestic tourism in this country—comes from visits to the Wye valley taken at the end of the 18th century, most notably by Admiral Nelson. That was what put the idea of tourism and the picturesque on the map, and that is the historic reason why the Wye is so central to the way in which we understand ourselves as regards the natural environment and our countryside.
As the Wye winds its way through Hay to the west of my constituency, through Hereford—which is right at the centre of it, of course, economically and culturally—and down to Ross-on-Wye, this priceless asset is being undermined by dreadful phosphate pollution. We must be perfectly clear that it is being undermined by sewage discharges, which have been discussed in the House, but also by significant levels of embedded phosphate—that is, animal waste on fields that has run off. We do not know the full scale of the issue. The best estimates appear to be that about 65% of the problem is embedded phosphate, 25% is discharge, and there is a further component because of the recent impact of chicken litter.
We need to know the answers to those issues and have a plan that addresses them, and that plan—uniquely, I think, for major rivers in this country—needs to operate across the border, because a large chunk of the River Wye is in Wales. One point that has struck me most clearly when campaigning on this issue over the last year and a half has been in the way in which the agencies —Natural Resources Wales, Natural England and the Environment Agency—have not been adequately talking to each other. We therefore put to the Chief Secretary, and ultimately to the Department for Environment, Food and Rural Affairs and the Department for Levelling Up, Housing and Communities, the idea of a cross-border, cross-agency, single strategy that is focused on a long-term approach to addressing the issue of phosphate pollution in the Wye.
The idea is a priceless opportunity for this country and the Government. At relatively little cost—through a degree of investment in measuring and enforcement; through a degree of constructive thinking about the long-term regulatory environment in which water discharges are to be managed along the Wye valley basin; and, of course, through the recruitment of citizen energies, which are already active and vigorous up and down the Wye—a great opportunity exists to bring these different resources together in a single, co-ordinated plan that is led by the Government, with the support of the Welsh Government, which I am afraid has been conspicuously lacking on the issue so far. That gives us a national opportunity to bring an end to this scourge of pollution and to restore this priceless, gorgeous, wonderful natural asset to its pristine glory.
Marsha De Cordova (Battersea) (Lab)
Last week’s Budget shows just how out of touch this Government are with reality. They are completely out of step with the needs of the British people, our public services and our planet. The decisions made by this Government have let shortages and prices go out of control: gas bills are up, petrol prices are up and food costs are up. There is no doubt that many people across the country will be beginning to feel the pinch. By 2026-27, households will pay £3,000 more tax than when the right hon. Member for Uxbridge and South Ruislip (Boris Johnson) became Prime Minister.
The Chancellor has repeatedly compared his Budget investment to that of the last decade, but no amount of levelling up or building back better can disguise the reality. While 6 million families were hit by the cut to universal credit, including 8,500 families in Battersea, less than a third will benefit from the taper reduction, leaving millions of people, including families with children and disabled people, without support and risking them being pushed further into poverty.
After 11 years of cuts and underinvestment in early years services, and the closure of over 1,000 children’s centres, the announcement of family hubs is a far cry from what is needed and does not match the offer of the Sure Start centres under the last Labour Government. The investment in youth services is a fraction of the cuts of the past decade. According to the National Youth Agency, an estimated £1 billion less is being spent on our youth services. I pay tribute to some of the amazing youth organisations in my constituency, such as Providence House, FAST, Devas Club, Caius House and Carney’s Community, who are doing a formidable thing by providing vital support to our young people in Battersea.
This Budget does nothing to address the £573 million gap in funding for disabled children’s social care services. Why is that? Hidden in the small print of the Budget is the revelation that the health and disability Green Paper will cut £70 million in funding for disability support by 2024-25. The Budget failed to mention the level of capital funding for the disabled facilities grant. Given that this grant plays such a vital role in helping disabled people to adapt their homes to live independently, will the Minister say why that is the case? I can only conclude that, yet again, this Budget is a missed opportunity for disabled people. It failed to address the shortfall in social care funding, to invest in disabled people’s economic opportunities or to ensure that the social security system works as it should—as a safety net for those people who need it. So much for the Government’s so-called vision for transforming the everyday lives of disabled people: I think not.
The Government have dragged their feet in addressing the cladding crisis. The new 4% levy on developers’ profits to help to fund cladding removal will still leave thousands of blameless leaseholders to foot a large majority of the costs. The levy charged on developers making over £25 billion in profit is not a viable solution. We need action, now. We need the Government to get serious about tackling this crisis, now.
Ultimately this Budget failed to invest in tackling the issues that matter: structural inequalities, a supply chain crisis, unsafe homes, in-work poverty, a cost of living crisis and a climate emergency that is inching closer and closer towards the doorstep of each and every one of us—and No. 10 will not be spared. The Chancellor said he wanted to build a new economy coming out of this crisis, but if he was serious about that, we would have a Budget that prioritised people, prioritised our public services, and looked after the planet for generations to come.
Andy Carter (Warrington South) (Con)
I commend the opening comments of my right hon. Friend the Education Secretary, particularly the emphasis he placed on skills and education, because that is our route to levelling up. I also pay tribute to the Chancellor and the entire Treasury team for the work they did to deliver the Budget last Wednesday.
We need to recognise the news that the economy is growing much faster than anybody predicted, and much faster than any other G7 country. Looking back 12 months, everybody in this House had a genuine fear about an unemployment crisis. Certainly the models were predicting a very difficult period. While we should not underestimate the challenges that many families still face, it is absolutely clear that those predictions have not come to pass. Unemployment appears to be peaking at much lower levels, largely owing to the actions taken by this Government and my right hon. Friend the Chancellor. I congratulate him on the work that he did around the furlough scheme to ensure that businesses could support their employees through that incredibly difficult time.
In general, I welcome many of the measures that the Chancellor introduced last week—in particular, the tapering of universal credit. I am also very pleased to see the national living wage being increased to £9.50 an hour, thereby, as he said, putting about £1,000 into the pockets of the lowest paid. It is good news to see the public sector pay freeze being lifted as well.
As a Member of Parliament in the north-east representing the brilliant people of Warrington South, I was very glad to see many of the announcements that will relate to the levelling up agenda in my part of the country. Levelling up is not just about bricks and mortar; it is also about our public services and how they are delivered and setting higher standards for local communities that have been ignored for too long. It is about ensuring that opportunity is spread equally around the UK, giving people the chance to realise their full potential, no matter where they come from, without having to travel to the south-east.
Talking of travel and transportation, improving transport links locally has a massive part to play in levelling up. If people cannot get to a job, it is impossible to tackle the underlying issues around unemployment. I welcome the decision to freeze fuel duty and to invest in public transport. I was struck by a conversation I had with a gentleman called Patrick in Stockton Heath in my constituency. He is a pensioner who had given up using his car and wanted to spend a night out in a village enjoying some craft beers, but because he lives outside the big city, the last bus ran at 7 o’clock in the evening, so having arrived at the pub he could not get home and ended up spending far more on a taxi than he spent drinking that craft beer. Whereas buses run 24/7 in cities around the country such as London, Manchester and Leeds, far too often in towns such as Warrington they switch off and stop running at 7 o’clock in the evening—and it is nigh on impossible to travel outside of Warrington, from Warrington to Altrincham or Warrington to Leigh. So the announcement that Warrington is to get a £20 million all-electric bus fleet, run by Warrington’s Own Buses, is of huge benefit to the town and something I really welcome. On top of that, the Government have funded a new electric bus depot at a cost of £5 million. We will be one of the first areas in the north of England to get a totally electric bus fleet, with 120 new buses being phased in over the coming year, replacing the current diesel fleet. That will benefit the environment and improve public transport options for working people, as well as reducing the cost of running the buses, which means that more can be invested into services across our town.
In terms of skills and education, and delivering public services for the future, I very much welcome the continued focus on investing in training and apprenticeships for young people. There is a need to invest in digital and cyber, in health and social care and in advanced engineering and nuclear technology, which are key for my local economy in Warrington but also across the UK. I am pleased that schools such as the university technical college in Warrington are working closely with employers such as Sellafield, Cavendish Nuclear, BAE, Rolls-Royce and the NHS to ensure that young people’s training is preparing them for the workplace of the future. I am also pleased to see the commitment to a new UK global talent network to work with research institutes and businesses to identify and attract the best global talent in key science and tech sectors that are rapidly growing in my constituency and across the north-west.
We have seen significant additional funding to help our public services in the fight against the pandemic, and the vaccine roll-out has been nothing other than phenomenal, with more money going into our booster jabs programme. Looking forward, we are also making investment in the NHS that provides a cash increase of £33.9 billion for 2023-24 and continues with our programme of hospital rebuilds. Warrington has recently submitted an excellent application for one of the eight additional new hospitals being built, and I look forward to a decision on that project being made in early 2022.
I welcome the decision to support small businesses. The temporary 50% cut in their business rates, up to a maximum of £110,000 a year, will make a difference to local businesses on my high street. In addition, the decision to scrap 2022’s planned annual increase in rates for all firms for the second year in a row is very welcome, but I urge my right hon. Friend the Chancellor to look carefully at a complete revision of the business rates system. We are faced with incredible challenges on the high street, and we need to support SMEs as they help the economy recover. We are delivering on a central mission of levelling up for every single person, no matter their background and no matter their circumstances. It is the right Budget at the right time in our economic cycle, and I congratulate the Chancellor on the work he is doing to take this country forward and on levelling up.
Mr Deputy Speaker (Mr Nigel Evans)
I just remind everyone that if they take part in today’s debate, they will be expected to be here for the wind-ups.
Clive Lewis (Norwich South) (Lab)
One of my favourite quotes of all time is from Henry Kissinger to, I think, the US press corps. He said:
“Does anyone have any questions for my answers?”
That has always tickled me. I looked at the Budget headings, and I wondered, “Do the Government have a Budget debate heading for my speech?” Unfortunately, they do on public services.
Sometimes in a debate, it is important that we try to get to the detail and the truth, if you will, of the matter. In this one, the issue is public services. My first point is one that has been discussed before, and I will discuss it again briefly: this is not a massive investment in our public services, relatively speaking. It does not even catch up with the past decade of austerity, and I will talk about that in a bit more detail. The other thing, though, is that spending is not being funnelled entirely into the public sector. Increasingly, it is being funnelled into the private sector, and from there it is going offshore and elsewhere, and I want to look into that as well, because I am suspicious about this Government’s new-found devotion to investment in public spending. I think there is something behind it that we need to look into.
The overall picture is that this is not a reversal of the deep cuts of the past decade. The Resolution Foundation has said that
“only one-third of the cuts to real day-to-day spending per-capita in unprotected departments since 2009-10 will have been reversed by the middle of the decade.”
Let us take for example the NHS, which this Government have made a great song and dance about. The British Medical Association has said that the previously announced £10 billion is not fully adequate to deal with the still-growing backlog of care. The Health Foundation has said that £17 billion is needed to clear the backlog. What do we get? Ten billion. That is a shortfall of £7 billion. We have the sheer brass neck of the Government telling the people of this country, “Look what we are doing. Look what we are spending”, but in relative spending terms, they are taking away from the public realm. We on the Opposition Benches know that, but I am not sure whether some of the Government Members understand that or believe or know what this Government have actually done.
Let us look at the NHS, because one thing I want to talk about is where the money is going. We know that the Health and Care Bill will increasingly privatise decision making on where NHS resources go. Increasingly, if corporations and big business are deciding where the tens of billions of pounds are going, you can bet your bottom dollar they will be going to the corporations, the private sector and shareholders and not being reinvested in public services. There is an issue here, which is democracy within our public services.
Let us take social care, for example. Some 83% of care home beds are owned by the private sector. If money was being reinvested into care beds and paying staff decent wages, I could understand why that was happening, but it is not. We know what is happening to vast amounts of money, which is going from the public purse into these so-called public services that are being run by vulture capitalism. The money is being sucked out and going to shareholders and offshore. That is where the money is increasingly going, and that is why this Government are so keen to spend billions of pounds handing out money to their friends who then recycle it and invest in the Conservative party. That is what is happening.
Let us look at the energy system, which is critical given what is going on up in Glasgow at the moment. Analysis by Common Wealth on the diversion of wealth from public to private has shown that, in the past five years, just under £10 billion in dividends has been paid to shareholders in the big six. That is six times larger than their tax payments of £1.52 billion. It found that
“the average firm within the Big Six has, over the past ten years, awarded their highest paid director almost fifty times the pay of the average worker in the company, and forty-five times the average income in the past five years.”
No wonder those on the Government Benches are so keen, after 10 years of austerity, to start pumping money to their friends in the big six and beyond.
Let us have a look at the Environment Agency. We know that it has said that there were 400,000 raw sewage discharges into coastal waters and rivers in England last year from private water companies. That is a tidal wave of turds that has splashed across this country on this Government’s watch. Professor David Hall from Greenwich University has said:
“Since privatisation companies have given out almost half as much for shareholders as they spent on upgrading and maintaining water and sewerage systems…£57 billion compared to £132 billion.”
This Government have the brass neck to tell this country that we cannot expect the privatised water companies to invest in a Victorian sewage system because they cannot afford it, but they can afford to give £60 billion of public money to their shareholders. Those on the Government Benches know that. No other country allows private companies to own and run regional water and sanitation systems. That is a fact.
While the Government talk about spending more on public services—we know that relatively speaking they have not, but when they do spend more, increasingly they are not public services as we on the Opposition Benches would recognise them, but public services run by and for private corporations that siphon off vast amounts of public wealth into their own bank accounts and coffers. I will conclude by saying that the answer is quite simple. When we on the Opposition Benches talk about public services, we are talking about universal basic services that are democratically controlled and owned and transparent and accountable to the people of this country who pay for them. That is the difference.
Robert Halfon (Harlow) (Con)
I strongly welcome this Budget. We should acknowledge that over the past 18 months, this country has faced a national emergency comparable only to the outbreak of the second world war. We have already spent £407 billion supporting schools, businesses and industries in my constituency and across the country to tackle the impacts of the covid-19 pandemic, without which we would have had destitution on the streets. I recognise the economic and financial challenges that the Government are facing. We have a national debt of over £2.2 trillion, equivalent to around 100% of our gross domestic product. That is why the Government are doing everything possible to square the circle in terms of spending on public services and dealing with the deficit and debt. It is not an easy task.
My two passions in politics have always been championing education and skills, and cutting the cost of living. I support this Budget because despite the circumstances I have just set out, the Chancellor has tried to address both. This is a true worker’s Budget in many ways, because there is a strong desire across the country to improve the cost of living and for low taxation. I previously supported the temporary £20 uplift to universal credit payments, but I genuinely think that the Chancellor’s decision to decrease the universal credit taper rate and uplift the work allowance is a better solution in the long run, because it gets people out of the poverty trap and incentivises more people into work. That will both boost people’s income and earnings and help reduce unemployment as we move into a high-productivity and skilled economy.
In addition, we have the £500 million invested in families and early years intervention, helping those who are struggling the most. We have the record 6.6% rise in the national living wage, which I campaigned hard for the Cameron Government to introduce, to £9.50. We have the fuel duty freeze—something I have campaigned for, probably to the annoyance of the Treasury—continuing for the twelfth year in a row, saving motorists £15 every time they fill up. That is what makes a difference to those who are just about managing. I hope that the Government will do much more to cut the cost of living. We should cut taxes for lower earners as soon as economic conditions allow and we should look at ways to further reduce energy bills. Cutting the cost of living must be the Government’s central mission.
On education, the Budget’s focus on skills, schools and families, as described by the Secretary of State for Education in his opening remarks, should be welcomed. Education and skills are the most important rung on the ladder of opportunity. They are the golden thread that tie together all our investments and our futures.
The outbreak of coronavirus was nothing short of a national disaster for our children. The four horsemen of the education apocalypse came galloping towards young people to create a widening attainment gap, worsening mental health issues, an ever-increasing number of safeguarding hazards, and a challenge to their skills development and life chances. We should never again fully close the schools in the way that we did.
The Budget showed a real recognition from the Chancellor and the Education Secretary that those challenges can be overcome through family hubs, the catch-up and education recovery funding, and the rocket-boosting of skills. Not much has been said today about the extra £2.6 billion of funding to strengthen the provision for children with special educational needs, but it is important and will be welcomed by parents across the country.
The lifetime skills guarantee announced last year created the blueprint for the skills funding package, which provides an extra £3 billion for T-levels and adult skills, among other things. That is a 42% increase in skills funding in cash terms, which will put vocational and technical education on a par with traditional academic learning and give financial teeth to the skills agenda.
Robert Halfon
I am always honoured to give way to—not to ruin her career—one of my favourite Labour Members.
Emma Hardy
Does the right hon. Gentleman, who I call my friend, agree that although the investment in T-levels is great, a transition pathway is needed if we are going to phase out BTECs and introduce T-levels?
Robert Halfon
I absolutely believe that BTECs should not go until T-levels have fully come on board. As a hard-working former member of the Education Committee, the hon. Lady will be pleased to know that I hope to question the Secretary of State about that subject tomorrow morning when he appears before the Committee.
As I have mentioned, the £2.6 billion of funding for children with special educational needs is extraordinary, but we need the urgent publication of the special educational needs review to move forward at light speed. Although lots has been done to provide the key components of a long-term plan for education, we are not there yet. The cogs have started to turn, but the machine is not yet as well oiled as it might be. We need a long-term plan for education and a secure funding settlement, just as the NHS and the Ministry of Defence have long-term plans and a secure funding settlement and a strategic review respectively.
As Members on both sides of the House know, I have long advocated the extension of the school day. The Education Endowment Foundation says that pupils can make two months’ additional progress per year by extending the school day, or three months for disadvantaged pupils. Some 39% of academies founded pre-2010 have lengthened their school day, as I have seen done successfully by the NET Academies Trust in my constituency. The Department for Education and the Treasury should fund pilot projects, perhaps in some of the most disadvantaged areas of the country, to evaluate what the impact could be alongside the catch-up programme.
To conclude, I heartily welcome the Budget targeted towards skills, schools and families. I have been campaigning for more skills funding for a long time so I welcome what the Chancellor has done. It has been a difficult year and a half for all Members and for the constituencies we serve, but the steps outlined in the Budget will go a long way to support our nation’s recovery as we try to level up and build back better.
Yvonne Fovargue (Makerfield) (Lab)
It has been a good Budget for Beatles’ fans with the Chancellor’s £2 million for preliminary work on the Fab Four attraction on the Liverpool waterfront. But if it is “Here Comes the Sun” or “Good Day Sunshine” for them, it is more like “A Hard Day’s Night” for the millions of ordinary people who have suffered greatly in the pandemic and can gain little comfort from the Budget, because it hit the less well off the hardest.
We are not all in it together. The increased debt burden has disproportionately affected young people, disabled people, black, Asian and minority ethnic people and those who rent. More than 11 million people have built up £25 billion of arrears and debt to pay and 14 million people have suffered an income shock during the pandemic, with almost half turning to crisis borrowing for essential costs.
Those groups will also suffer disproportionately from rising prices, because they spend more of their income on essentials. The rise in wholesale energy prices, when it filters through to bills, will hit them particularly hard. For many this winter, it could come to a choice between putting food on the table or turning the heating on. Many advice agencies forecast that a huge rise in unmanageable debt is just around the corner.
There is some good news. I welcome the £65 million of rent arrears support, which might reduce the immediacy, but much more will be needed to turn the tide on the £360 million backlog of rent arrears built up during the pandemic. I welcome the increase in the national living wage and the improvement to the universal credit taper, but that does not do anything for people in receipt of universal credit who are out of work and looking for a job or for the 1.7 million people unable to work because of disability, health issues or caring responsibilities. About 5.8 million people are on universal credit, at least 2.5 million of whom will not benefit at all from the changes to the taper rate.
Lower income households are still likely to be worse off than they were before the temporary uplift with the increased national insurance contributions looming for many households from next year. A local secondary school head in my constituency told me that last Christmas, they did not give hampers but paid for a weeks’ essential shopping for struggling parents. This year, they are doing the same but are having to budget for double the amount of recipients. Those are parents in many different circumstances—some are working full time, some are sick and some are disabled—but what they have in common is that they are struggling to pay their bills and put food on the table.
Much more needs to be done if our poorest families are not to face a bleak future. We need to revisit social security levels to ensure that the system is truly a safety net. People on universal credit were struggling even with the uplift. We need a major rethink of the basic level of benefits, and we need to ensure that deductions from benefits are affordable and do not undermine claimants’ ability to meet their basic costs.
We need to look at the move towards decarbonisation, which will create additional problems for people in low-income groups, who will struggle to meet the inevitable higher costs without help. Net zero should be seen as an opportunity to help the poorest. As the Resolution Foundation said,
“Reducing the number of families living in fuel poverty should be the lens through which the Government addresses both the immediate gas price crisis, and future plans to decarbonise our homes as part of the UK’s net-zero transition.”
In practice, that means more direct help with energy bills beyond the warm home discount and the cap, including backing a social tariff that is linked to income, so that no one pays more than a percentage of their disposable income on energy.
The pandemic made the lives of the less well off in our country worse. More people are struggling to pay bills and are building up personal debt, none of which is their fault. The Budget was an opportunity to ensure that all people are better able to recover and place their finances on a sustainable footing, and to tackle the poverty premium. It lacks the vision or the policies to deliver that.
Ben Bradley (Mansfield) (Con)
I welcome the opportunity to speak in the debate and endorse everything said by my right hon. Friend the Member for Harlow (Robert Halfon) about schools and education. On those issues, he is always bang-on. Since the Budget, I have had positive conversations in particular on the transition between BTECs and T-levels that I hope will be reflected by the Secretary of State’s comments tomorrow. There are many opportunities there.
I welcome the many positive announcements in the Budget, which has been largely well received by residents. It set a good and clear direction to help take the country forward post covid. In particular, I welcome the business support measures, business rates cuts, changes to alcohol duties, the freeze on fuel duty and other measures that will impact on the cost of living and support businesses to grow and innovate. At some stage, we will have to reform business rates fundamentally. The measures announced in the Budget are positive and will support businesses—high street businesses in particular—but business rates are not fit for purpose. I had positive conversations last week on that with the Financial Secretary to the Treasury, and I understand that a review is to take place. I look forward to seeing that in due course.
I also welcome the personal support for the lowest paid, with a £1,000 pay rise and a tax cut for working people on universal credit. The average wage packet in Mansfield is way below the national average, and thousands of people will benefit from those changes. I am grateful for those announcements.
I welcome the significant capital commitments on transport and infrastructure, although I am slightly concerned that it seems that only areas with combined authorities and devolution deals are eligible to get the best of that support. We have some positive announcements for Nottinghamshire: Mansfield will submit a bid for the next round of the levelling-up fund, as will Nottinghamshire County Council, and we look forward to positive news, hopefully. There was a huge multibillion pound investment in devolved mayoral authorities. However, the east midlands does not have that, so the area that historically has had the lowest level of investment misses out.
Do not get me wrong—I am not moaning. I think that passing powers down to local level and giving capital funds to accountable local leaders is a good thing. If I do have a moan, it is that we do not have one, and we want one in Nottinghamshire. We have a plan for that, and I want the Government to get on and give Nottinghamshire a county deal so that we too can benefit from such support. I remind Ministers of the fantastic levelling-up package that the east midlands offers with our freeport, our development corporation and our huge plans around Toton supported by the integrated rail plan. Altogether, that is more than 100,000 jobs and £5 billion in gross value added. The plan exists and is all on track, and a devolution deal for Nottingham—which, by the way, is a bigger geography than the Tees Valley Combined Authority or the Cambridgeshire and Peterborough Combined Authority—would give us huge economic clout. It is a chance to invest for us, to get on a par with other parts of the country. We want a deal, we have the unanimous support of local leaders who have all made significant resource commitments for that, and we have a plan to deliver better public services. I will keep banging on about it until we get one—I am sure that Ministers will indulge me.
I turn to public services, which are the theme of the debate. There was positive news in the Budget, with £4.8 billion in grant funding to local authorities both very welcome and perhaps more generous than many had expected. That will help us to tackle things such as the cost of the minimum wage rise for care staff, which runs into the millions. I also welcome the commitment to new family hubs and the Start4Life programme that will benefit children and families who really need it.
I said in an intervention that certainty for the supporting families programme and investment in the development of early years staff is fantastic. In particular, early years staff development has been a problem for a long time, so the more we can do to support that sector, the better. We must continue the commitment to proactive and preventive services. In truth, children’s services, not social care, are causing every upper tier council leader in the land the biggest headache on budget setting. There are many challenges in social care, but, if I had loads of money, I could not spend it because I cannot recruit the staff. The challenges there are deep and long term.
Emma Hardy
The problems with recruiting were raised by East Riding of Yorkshire Council, and one reason why it is asking the Government for more money is that it wants to be able to offer higher wages to try to compete with organisations such as Amazon, which attract workers who would previously have worked in care.
Ben Bradley
I thank the hon. Member for that intervention, which pre-empts something I will come to. In effect, I will make the same point later in my speech. The truth is that next year we will underspend on social care, because we cannot recruit the staff to pay them, even if we had the money. In children’s services, demand is growing exponentially. The complexities and costs are becoming increasingly difficult. There are also significant additional needs for school places for children coming from Hong Kong, and significant care issues for asylum-seeking children. The children’s budget of every council in the land is overspent.
I therefore welcome measures focused on early intervention. I would love to talk to Ministers about supporting the transition towards a set of more preventive services. I welcome the announcement in the Budget, but we must continue the trend of having a better attitude to risk management and how we support families in their homes before we get to that acute stage. That change of approach and culture will save money in the end, but it will require more up-front resource.
The Government could support Nottinghamshire and the whole country by letting us pilot new proposals and ideas in the space through a county deal. We have thoughts about how we might like to do that, working with organisations such as the National Youth Agency, the charitable sector and our great Nottinghamshire universities to change the game and learn some lessons. I would welcome conversations with Ministers about that.
On social care, and the point made by the hon. Member for Kingston upon Hull West and Hessle (Emma Hardy), councils need teeth to get the money. More funding is welcome, but at the minute that funding is going to the NHS, whose backlog is in large parts due to the limits of social care. We cannot get people out of hospital and into appropriate homes or care packages, and we cannot offer sufficient preventive interventions. People end up in hospital, which is not the best place for them, because social care does not have the resources to provide emergency support or to fetch Mrs Miggins and put in place a care plan for her; instead, she ends up going off in an ambulance.
The Government could help tackle the NHS backlog by backing social care. As it stands, it appears that we must go with our begging bowl to the integrated care system to ask for funding from the national insurance rise for services such as supporting hospital discharge or response teams that can offer care in the home rather than an emergency response. The funding is aimed at the NHS backlog and, although it needs to fund those social care interventions to be successful, we seem to be at the NHS’s mercy on whether it gives us that funding. I hope that Ministers will tackle that imbalance in the White Paper. It is hugely important to the transition and new approach to social care that we get that right, because the two are not separate services; they interlink closely.
We will meet a cliff edge in a few weeks, when the requirement for care staff to be vaccinated begins. I have raised that issue a few times. In Nottinghamshire alone, 1,000 staff or more could be no longer eligible to work in a sector that already has a 12% vacancy rate. Is it riskier to have an unvaccinated care worker or not to have a care worker? We may face that challenge. I know that there are financial mitigations to try to help, but, as I have said, we cannot recruit. We do not set the wages—largely, services are commissioned from private providers—and people can get £1.50 an hour more at Amazon than working in the care sector. I have said to Ministers before that we need to consider carefully whether it is right in effect to force a lot of people out of a profession that is already struggling with recruitment and with getting the right staff in the right places.
That said, there are many fantastic interventions in the Budget. I touched on many of them. However, those challenges will not go away. I therefore look forward to conversations about them with Ministers across various Departments in due course. There are real positives to take, with the Government continuing to support jobs and individuals. The OBR tells us that the interventions throughout the pandemic made a huge impact on protecting people and keeping them in work over the last 18 months. The plan for jobs has been incredibly successful so far, and I trust that that will continue. I welcome the many measures in the Budget that will impact positively on my constituents and look forward in due course to discussing in more detail with Ministers some of the challenges that I raised.
John McDonnell (Hayes and Harlington) (Lab)
I would like to comment on some of the points made in the debate so far.
We all support levelling up—in fact, it was a Labour party policy announced in 2016—but let us talk about levelling back, because £100 billion of central Government funding has been taken from local government since 2010. With this Budget telling local councils that they can have spending power but not the resources to back it up, we know what will happen. Local councillors of all political hues will be blamed for either the cuts forced on them, or the council tax increases. It is predicted now that council taxes will increase by at least £400 by 2026.
What we need now is what we have been promised for a decade: reform of local government finance that provides an independent, adequate resource for local authorities. That includes the reform of business rates. On capital investment, it is now estimated that it would take £30 billion of investment a year to level up the regions to the investment levels of London and the south-east. In this Budget, there is nowhere near the amount needed to tackle that issue.
I say this to anyone entering government: whatever the quantum, the system of distribution must be seen to be fair. To have a Chancellor stand up and list the towns and areas that will be showered with his or her beneficence is not good enough. What we need is a system that is open, fair and transparent. In the distribution of resources across the UK to Scotland and Wales and so on, there is a Barnett formula. We should introduce a Barnett formula for this that is open and transparent, otherwise, there will be accusations of pork-barrel politics that will stain all our politics, not just this current Government’s.
On pay, let me be clear: for most of my constituents, pay has been frozen for 10 years. The Government are telling people that the freeze is now ended, but not allocating the resources. Do not insult people’s intelligence —they know that is a con. In the Government’s pay remit to Departments, we must make it clear to those Departments that all pay rises must at least match inflation, that there should be an element of catch-up because of the freeze and the pay cuts over the past 10 years, and that those Departments will be given the resources to enable that to happen.
On the minimum wage, can we just stop the Orwellian language? This is not a living wage. That is a con. If we are to have at least some semblance of a living wage, why do we not just allocate its distribution to those who assess the real living wage? We also need a transition to better wage levels in this country. Two thirds of children living in poverty—my hon. Friend the Member for Makerfield (Yvonne Fovargue) spoke about this—are in families where someone is in work. What does that say about wages?
We promised to introduce a £10 an hour minimum wage two years ago. Because that has not happened, people have lost out on £2,500 each. That is a lot of money that could have lifted people out of poverty. I want to see the living wage now at £10 an hour, and I want to see it progress towards £15 an hour by the next general election at least.
On universal credit, let us be clear that the taper, which my hon. Friend spoke about, still means a tax rate of 55p in the pound. That is more than the Prime Minister pays, and 70% do not benefit now from the improvement to the taper. Yes, we need to restore the £20, but why do we not think about what Barbara Castle put forward: ensuring that benefits are linked to earnings so that we all share in the growth of the economy?
We all agree that we are at one minute to midnight on climate change, but in this Budget I was hoping we would see a radical response to that—just the basics. No: I think at the last estimate, the Chancellor was introducing at least £54 billion of tax reliefs. Why do we not at least ensure that none of those tax reliefs go to companies promoting the use of fossil fuel, or that none of those tax reductions are linked to operations that increase emissions? In this instance, of course, I refer to the shocking announcement about the support that domestic flights will now get.
It was mooted at one point that we would see some radical changes in this Budget with regard to pensions tax relief. I hoped, and it is not too late, that when it came to the Finance Bill there would be a link between pension tax reliefs and ensuring that pension funds provide us with their strategies for removing their investments from fossil fuel—over a two-year prospect would be realisable.
Finally, let me say something on taxation. I was hoping we would see something at beyond just words about fair taxation. Fair taxation means not cutting tax on the bankers who caused the crisis of 2008, and it means fairer taxation of wealth—that is capital gains—and of the wealthiest. It is time that the City started pulling its weight. That is why the financial transaction tax, newly designed over the last month by the Robin Hood campaigners, could be a realistic way for the City to make a better contribution to our economy overall. I also expected significantly more in this Budget, after the Pandora papers, about tackling tax avoidance in British overseas territories funnelled through the City of London, along with the money laundering that is taking place on a criminal scale.
The Chancellor said that this was a Budget for an era of optimism. I warn him that it will create crushing disappointment, which will tarnish our whole politics. That crushing disappointment will come out elsewhere—on picket lines and in demonstrations and occupations—as people’s anger is fed by the disillusionment caused by this Budget.
Bim Afolami (Hitchin and Harpenden) (Con)
It is a pleasure to speak in this debate and to commend the Budget to the House. I think it is a good Budget for my constituency—indeed, for all the constituencies of this country. In particular, I know that my pubs, restaurants and retailers will be very happy with the business rates cut, although I echo the remarks on both sides of the House that we need a longer-lasting solution to business rates. I think everybody recognises that they are not an optimal tax and that we can do things a bit better.
In the brief time allotted to me, I want to talk about financial services and about growth more generally. First, on financial services, the right hon. Member for Hayes and Harlington (John McDonnell), for whom I have deep respect, made the point that the City should pull its weight, or something to that effect. I would argue that the financial services sector is pulling its weight. It employs over a million people and generates over 7% of UK economic output and almost 13% of tax revenue. I would argue that that is pulling its weight.
I welcome the Chancellor’s decision to reduce the bank surcharge. It was introduced in the aftermath of the financial crisis, over 10 years ago. The planned increase in corporation tax to 25% would result in this country’s bank taxation becoming completely uncompetitive compared with other leading financial services sectors, and that would have a detrimental effect on those million people the sector employs and that 7% of economic output and almost 13% of tax revenue that it produces. I therefore really support what the Chancellor has done; indeed, I even wish he had gone slightly further. It is also worth making the point that, in his measure on the bank surcharge, the Chancellor increased the annual allowance to £100 million, thereby ensuring that small challenger banks benefit the most.
The Chancellor and the Treasury have also recognised the need for reform in the financial services sector. We have had the Hill review and the Kalifa review; indeed, we have had the wholesale markets review, looking at the whole way in which regulate the financial services sector. I urge the Treasury to continue the dialogue that it has with me, in my role as chair of the all-party parliamentary group on financial markets and services, and with many other Members to ensure not only that we get the best regulatory environment as a result of those reviews, but that we really look ahead at the next five or 10 years and think, “What is the optimal regulation for this critical sector?”
The second thing that I want to say, which is perhaps even more important, is about growth. Without growth in the economy, none of the things that we talk about in this House is possible. The OBR estimates that after we come out of the coronavirus pandemic fully—we hope—our growth rate will settle at about 1.7%. Before the financial crisis, our medium-term growth rate, if we take out the three years of recession from 1980, was about 2.8%. In effect, since the financial crisis, we have lost a significant amount of growth. We are somewhere between 30% and 40% poorer than we otherwise would have been each year. That matters because it means we are not as prosperous as we should be. Not only is increased prosperity important for the livelihoods of every single person in this country, but it helps to pay for the public services that everybody in this House talks about and rightly champions.
The Chancellor has done a remarkable analysis, as have many think-tanks and other outside bodies, of the problems of our economy. We know what they are: low private investment, which is why the Chancellor has brought in measures such as super-deduction; poor skills, which is why in the Budget we increased the skills budget hugely; poor management in both small and medium-sized enterprises and middle management in large companies, which is why the Help to Grow and Help to Grow Digital schemes have been put in place; poor transport systems, which is why we are investing in local regions; and the regional imbalance in our economy, which is the essence of why we are levelling up and why it is such important mission for the Government.
Something is missing, though. It is not just about measures or policies; we need to rediscover the importance of values and purpose in economic policy making. We cannot treat the economy like a machine, where we press a button and something comes out, and pull a lever and something else comes out. The essence of why economies grow is not just what policies come from the Government. The economic historian Deirdre McCloskey, who is a genius, has done a huge amount of work on why the industrial revolution started in this country and why it was so successful. Her analysis, backed up by that of many others, shows that it was about a change in mindset, a change in culture, and a change in the way we viewed economic innovation and dynamism in this country—and we did that here before anyone else.
I argue to those on the Treasury Bench that we need to rediscover that spirit and thinking. We could link it to the green agenda, giving purpose to the many people who want to see what they can do to help. They should not just think, “We need to give to charity here or give money to this or that group.” We do need to do that, which is what the Prime Minister and various other people are doing at COP26, but we should also champion the nobility and virtue of wealth creators, and actively argue that more economic innovation is a social good, because that is what enriches our society. I do not believe that those values are inherent to this country alone, but our growth rate over the last 30 to 40 years has not been as strong as it could be, and it has not been for want of trying by either the Conservatives or Labour in government.
We need to be thinking about those sorts of ideas underpinning all our policies in the Budget. We need to think about how we deal with Government policy as a whole and to say that the primary goal of Government policy is to push forward growth. Let us push for green growth. Let us think about the honours system and champion people who create wealth and sustainability for their local communities. Let us think about the national curriculum and how we talk about creating sustainable and ethical businesses. If we do that not only will people be better off but our society as a whole will be enriched in lots of different ways.
Carol Monaghan (Glasgow North West) (SNP)
I think the right hon. Member for Harlow (Robert Halfon) summed up the issues for many of us. The Budget should be an opportunity to reflect on the cost of living, but when we consider the reality of this Budget for many of our constituents, seeing how young people and low-income families have been hit, we see that it unfortunately misses the target.
Before I come on to my main points, I will talk briefly about the Ministry of Defence budget, which has been hit with a cut to day-to-day spending until 2025, a decrease of 1.4% in average yearly real-terms growth. We know who will bear the brunt of that: personnel. It is their salaries, their pensions and their family support that will be hit hardest. As we approach Remembrance Day, when we commemorate the sacrifice of so many, it is disappointing that the Government are failing to support those who are serving now.
More widely, the Budget is devastating to families up and down the country. It fails to reverse poverty-inducing policies that are pushing people into hardship. Although I welcome the changes to the universal credit taper, they do not go far enough to make up for the cut of over £1,000 to the incomes of universal credit claimants. As has been mentioned, the taper rate reduction will help only those who are in work, not those who cannot work through no fault of their own—because they are carers, because they have disabilities, because they are not able to access the job market.
Although the Chancellor acknowledged in the Budget that every child has the right to succeed, he missed yet another opportunity to address poverty, which remains the single biggest barrier to success in education. Without expanding the eligibility for free school meals, removing the two-child limit on tax credits and improving access to childcare, many children will sadly fail to reach their educational potential.
The Scottish Government, meanwhile, have introduced a number of pioneering measures, such as the Scottish child payment, free childcare for low-income families before and after school, and free breakfast and lunch for all primary school pupil. The difficulty is that the Scottish Government are giving and the UK Government are taking away. At the start of the debate, the Secretary of State for Education mentioned teachers’ wages. It is worth noting that even with the uplift, which will no doubt be welcomed by teachers in England, they will still be £3,000 less well off than their counterparts in Scotland.
I turn to the Government’s statement on research. I am sure that the commitment to increase public research and development spending will be met with some relief from many in the sector, but we have had no clarity on Horizon Europe. We have had nothing on how we will increase the opportunities for our young people to move to or work in Europe, or for European young people to come here. That is what the research and development sector needs most of all: access to talent at all levels, not just those who meet particular arbitrary salary thresholds.
There is no mention of tuition fees in the Budget. In fact, there is only one brief mention of the Augar review and no mention of the report’s recommendation that the
“cap on the fee chargeable to HE students”—
in England—
“should be reduced to £7,500 per year”
by this academic year. The Government seem to have conveniently forgotten about it. They like to remind us about their economic prowess, but what is happening is that massive student loans are putting young people into incredible levels of debt, and the Government are simply shifting their fiscal responsibilities to a Government 30 years down the line, when these young people cannot pay them back. It is simply a fiscal fudge and the burden has been dumped on the next generation.
Finally, as Glasgow hosts COP over the next two weeks, many of us would have hoped to see some strong statements in the Budget about climate change, but the Chancellor has not even paid token consideration to climate or the environment in this Budget. The latest Intergovernmental Panel on Climate Change report provided a stark warning that the climate is changing in an unprecedented and damaging manner. We all know what our responsibilities are, but we are not seeing enough action. When our children and grandchildren ask us, “When COP was held in the UK, in Glasgow, what big steps did you take? How did you make changes that would make a difference to us?” I am afraid that we will look at this Budget and answer, “Not very much.”
Ben Everitt (Milton Keynes North) (Con)
Perhaps you will indulge me, Mr Deputy Speaker, and cast your mind back to the last Budget in March. You may remember that I spoke about the Chancellor walking a tightrope, having to balance providing support to people and businesses with beginning the process of building back better.
The Budget that we are debating today demonstrates just how far we have come since March. It is full of optimism, investment and growth, levelling up every town, region and industry across the United Kingdom. Of course, I cannot talk about it without first mentioning one of the big successes for my constituents in Milton Keynes North: the announcement that Milton Keynes will receive our share of £70 million for a fleet of more than 50 new zero-emission buses as part of the Department for Transport’s ZEBRA—zero-emission bus regional areas—scheme. Having lobbied the Government with my good friend and colleague, my hon. Friend the Member for Milton Keynes South (Iain Stewart), I am delighted that my constituents will not only benefit from improved connectivity, but be part of the Government’s ambitious net zero strategy.
While it is vital that we continue to invest in the physical infrastructure to boost our communities, I firmly believe that when we talk about levelling up, we must start with investment in people and in their future. That is why I am pleased to see a real commitment to improving accessibility and opportunities in skills, with overall skills spending increasing by more than £3.8 billion over this Parliament. From additional hours in the classroom for up to 100,000 T-level students to expanding the lifetime skills guarantee so that more people can access level 3 courses, the investment in skills will boost not only the productivity of our economy, but the wages in people’s pocket, with level 3 qualifications resulting in a 16% boost in average earnings.
Given the Government’s emphasis on skills and education as we build back better, it is a huge disappointment to me that the proposed university in Milton Keynes, MK:U, was not included in last week’s Budget. One of the main values of the Conservative party, and indeed of this Government, is that we want to empower people by giving them the tools and skills they need to succeed, and that is exactly what MK:U would do. With backing from businesses such as Santander and BT and from academia, including the world-renowned Cranfield University, MK:U is a shining example of how we can address the critical shortage of skills and apprenticeships in sectors such as cyber-security and data science and create a high-skills, high-wage economy in Milton Keynes, the south-east and the whole United Kingdom.
If the Government are serious about improving access to technical education, as I believe we are, and if we are to show that we are serious about apprenticeships and investing in digital and science, technology, engineering and maths, I urge my Treasury colleagues to consider again the case for MK:U. I see the Chief Secretary in his place; I believe that the ball is in his court.
Ultimately, this is a Budget with a huge amount that I can get behind and a huge amount for the people of Milton Keynes North. There is an additional £640 million to tackle homelessness and rough sleeping, an increase in the national living wage, £5 billion for Project Gigabit—the list goes on. With that in mind, I thank my right hon. Friend the Chancellor and the whole Treasury team for making the difficult decisions back in March that ultimately put us on the right path and in a position to invest now in growth to keep unemployment down and employment up. However, I say again that if the Chancellor and the Government are truly committed to upskilling our domestic workforce and levelling up in Milton Keynes North, MK:U has to be the next step in our ambitious plan to build back better.
Gareth Thomas (Harrow West) (Lab/Co-op)
It is a pleasure to follow the hon. Member for Milton Keynes North (Ben Everitt), and I wish him well in his campaign for the university in Milton Keynes to be recognised and supported. I hope he will forgive me for picking up only that part of his speech, and focusing on some equally important but none the less parochial examples of my own.
The Grange Farm estate is just half a mile from probably the most famous establishment in my constituency, Harrow School, but the world in which the people on the Grange Farm estate live is very different from the world that the Harrow School students come from. However, I am pleased to say that the estate has secured funding and, through a programme of investment by Harrow Council, is being rebuilt. Members are therefore entitled to wonder why I should raise it in the context of a Budget debate. On the estate at the moment, because it is being rebuilt, a series of vulnerable families are living in the temporary accommodation that is now available there. Many of them have spent all their time in temporary accommodation, moving from one not very suitable house to another even less suitable house. As they face the prospect of being evicted, for understandable reasons—so that the rest of the programme of rebuilding works can be completed—they are wondering, not unreasonably, when, if ever, they will have the chance of a permanent social home.
While there are one or two examples of positive progress in the Budget in terms of funds to tackle homelessness, there is no sense of any recognition in the Treasury of a national need for investment in social housing. I hope that Members with constituencies outside London will forgive me for making the fairly obvious point that London remains the epicentre of the housing crisis. It has the severest homelessness rates in the country: there are more than 165,000 homeless Londoners living in temporary accommodation, representing two thirds of the homelessness in the UK overall, and some 250,000 Londoners are on waiting lists for council housing. Given that, according to an analysis carried out by the Local Government Association, those who are managing to live in social housing face a £2,000 lower housing bill than those who live in the private rented sector, we can understand why there is still so much support for investment in more social housing.
Harrow Council, which I think does a very difficult job as well as it can in managing the housing shortfall, desperately needs still further funds to invest in social housing. I hope that some of those funds will eventually become available, so that those vulnerable families who are facing eviction—many have recently come out of care, some have experienced domestic abuse in the past, and many are single-person households in work who are looking after children but facing the prospect of having to up sticks and move again at a cost to themselves, and who will face the same prospect yet again in three or five years—will finally be given hope by a significant social housing programme.
Apart from a very brief reference in the Secretary of State’s speech, there has been no mention of police funding. While it is good that police officers are being recruited, when the recruitment programme that the Government are funding comes to an end, we will still have fewer officers in the UK than we had in 2010. The number of police community support officers has fallen by about 40%, and those missing officers are not being replaced. What that means in practice for the communities in my constituency is that the local police team that they had become used to at the end of the last Labour Government—a sergeant and, usually, three police constables and four PCSOs for each ward in our borough, a highly visible police presence—has been cut to just one PC and one PCSO, and that is in no small part due to the efforts of the current Mayor of London. We need to see much more investment in the Metropolitan police, notwithstanding the significant need for reform that has again been revealed as a result of the Sarah Everard case and the cases of Bibaa Henry and Nicole Smallman. We are desperate to see a dedicated police team once again in central Harrow, and the British Transport police desperately need more funding, not least in my constituency, to improve safety on the tube network for women and girls. That issue has been raised at a number of meetings with the police locally.
I want to lament the fact that there seems to be nobody in Government who is seriously committed to the co-operative movement. Sadly, no investment in support of more co-op housing was announced in the Budget, and there is no sense of the need to give consumers more power. Many hon. Friends on this side of the House have rightly described the huge windfalls that the shareholders in water and sewerage companies have attracted over the years, and it is surely high time for consumers to be given significant power to decide when a discharge should take place, for example, or whether a chief executive’s pay should rise. That should be the most urgent consideration before a change of ownership takes place, and it would be good to see that happen.
Finally, Ministers have promised many times that there would be new investment in credit unions and a programme of legislative change to help to drive a significant expansion of that sector. There is still no evidence of when that programme of legislative change will happen. If there is anything that the Chief Secretary to the Treasury can do today, it would be lovely to have a date for when that legislative package might come forward.
Dehenna Davison (Bishop Auckland) (Con)
I want to start by paying tribute to my right hon. Friend the Member for Gainsborough (Sir Edward Leigh), who is no longer in his place, for making the strong case for why low-tax conservatism is the right way forward. Everyone on this side of the House can definitely agree with that, but we obviously have to face the reality that we are living in unprecedented times and that covid has had an enormous impact. On those grounds, I think that the Budget that was announced on Wednesday was really fantastic, and I want to go through some of the really positive things that were announced.
The first, which was also raised by my hon. Friend the Member for Plymouth, Moor View (Johnny Mercer), is the universal credit taper. Changing that to the 55% limit that it was originally destined to be is a really positive step forward in terms of not just the buzzwords of making work pay, which we Conservatives always talk about, but what that actually means for the single mum who knows that she can pick up a few more hours at work without losing a high proportion of her benefit. This has real-world implications for people, and it is a really positive step that this Conservative Government are taking.
I also want to focus on criminal justice, which is an area incredibly close to my heart—
Alan Brown (Kilmarnock and Loudoun) (SNP)
Will the hon. Lady give way?
Dehenna Davison
I will not, because I have moved on from that point.
I particularly want to look at what the Conservative Government are doing to tackle the courts backlog. The courts have been really damaged by covid and it is absolutely right that we are putting so much emphasis on this: not just on the courts backlog in and of itself but on extra funding for rehabilitation and for our prison services, as well as for victim support, which again is an area close to my heart.
Another area that is close to my heart, colleagues across the House will not be surprised to hear, is the hospitality sector, which has faced a crippling 18 months so far. It has had unprecedented support from the Government through business grants and the VAT reduction, and one of the things that is going to do wonders for the sector as it bounces back is the further reduction in business rates to be rolled out over the next 12 months. That is a really positive step that I am incredibly pleased to support today.
Something that I know caused vast cheers on Wednesday was the fact that we are finally seeing substantial changes to the alcohol duty system. This is long overdue, not just because it is going to help the brewing sector and the hospitality sector but because it is a form of tax simplification, which is something that I, as a low-tax Conservative, am wholeheartedly for. My inner low- tax Tory let out a massive cheer when I learned that fruit ciders were going to see a reduction in duty as well.
Carol Monaghan
Does the hon. Lady not recognise that fruit ciders have been linked to alcoholism in children, and that it is not necessarily a good thing to cut the tax on them?
Dehenna Davison
I would say that it is a good thing to be cutting tax in general, but that has to be alongside a proper public health strategy to ensure that we are tackling issues associated with alcohol abuse across the board and, in particular, among young people.
My being low tax does not mean that I do not think spending is necessary, because spending in the right areas absolutely is necessary. There are two key things we can focus on. The first is spending on places, by which I mean some of the areas that have been left behind for far too long—for generations. I am thinking of places in Bishop Auckland. One thing I was delighted to see in the Budget on Wednesday was the levelling-up fund, which is going to see three key projects delivered in my area: we will be connecting communities through the Toft Hill bypass; we will be connecting communities through the repairs to the historic Whorlton bridge; and we will have the extra works for Locomotion in Shildon to improve heritage and tourism in my area and create jobs for the future.
My hon. Friend the Member for Milton Keynes North (Ben Everitt) stole a bit of my speech, because he talked about the importance of investment in people and I could not agree with him more on that. For me, that investment takes two forms. The first is investment in good-quality healthcare, and the settlement the NHS is getting thanks to this Budget is astonishing. However, one thing I hope I can work with Treasury and Health Ministers on is finally getting the accident and emergency reinstated at Bishop Auckland Hospital. I have been campaigning on that for two years solid and I have no intention of stopping now. However, the billions of pounds to tackle the backlog in elective surgery is the right step forward, as is the emphasis on early diagnostics through 100 new community diagnostic centres. Those are positive things coming out of this Budget.
Investment in people also means investment in skills, and we are seeing £4.8 billion being invested in them. This is also about policy, and things such as university technical colleges and the move to T-levels. I must say that I agree with the hon. Member for Kingston upon Hull West and Hessle (Emma Hardy) that we need to slightly rethink our policy on BTECs. We need to make sure that our young people have the skills they need, but we also need to make sure that BTECs are phased out in the most proactive and positive way, so that that will not have a negative impact on the education of our young people.
One thing I am passionate about is the lifetime skills guarantee, which is making sure that as our economy changes and we have become more technologically focused, people have the skills they need to get on in any future career, not just the one they are in now. Excuse my enthusiasm, but I used to work in research and development and one thing I am really enthused by is the Government’s focus on that. This is not just about R&D spending, finally introducing the Advanced Research and Invention Agency and R&D tax credits; it is also about the super-deduction scheme. The Government get slagged off all the time for supposedly reducing taxes on business when it is not the right time to do so, but this is incentivising investment in R&D. It is incentivising businesses to improve their productivity, and not just to create good, high-quality, skilled jobs which all our constituents can take up to give them a better life, but to grow our economy. As Conservatives, we know that the best way out of any economic crisis is growth, not spend, spend, spend—it is all about growth. The Chancellor has put a lot of emphasis on our future growth statistics. He also highlighted the fact that he remains a low-tax Tory. I am really trusting in him to stick to his word as we move out of this crisis.
Valerie Vaz (Walsall South) (Lab)
It is a pleasure to follow the hon. Member for Bishop Auckland (Dehenna Davison), but I am sure she will agree that this Budget is a wasted opportunity. It is a missed opportunity because the Chancellor did not focus on an ambitious future for our country and for those on the frontline during the pandemic. This is a conflicted Chancellor, who is giving money to bankers by cutting the surcharge on bank profits from 8% to 3%, but has nothing on tax evasion or avoidance. Welcome relief is being provided for theatres and galleries, and I hope that that means the new art gallery in Walsall will not have to scrounge and scrabble around for money every year. Of course, we also have the 50% business rate discount for businesses in leisure, hospitality—an area the hon. Lady mentioned—and retail, and the benefit change.
However, this is a contradictory Chancellor. He said he wanted to support the imagination and drive of entrepreneurial people, but the 3 million self-employed and small entrepreneurs who did not qualify for covid relief—the excluded—still do not qualify for any other support. He is the Instagram Chancellor—the Insta Chancellor, although none of the money is coming instantly, as he said himself. Everything is going in in 2024-25, before the next election, but we need something now, and I want to focus on three areas: young people, communities and the climate emergency.
First, on education, I am sorry to say that the Government lack ambition for our children. Walsall schools have been suffering: they have been on the frontline for the past two years, making sure that the children of key workers, and other children, are educated. The recovery package for children is so bad that the Government’s own commissioner had to resign. Sir Kevan Collins asked for £15 billion but was allocated £5 billion, spread across 8.2 million children—that is less than £500 per pupil. Members can compare that with the Netherlands, which is spending £2,100 per pupil.
The Chancellor has rejected the idea of extending free school meal provision for three years, thereby affecting the health and wellbeing of millions of children throughout the country. He should have supported parents and teachers by facilitating a nurse or counsellor in every school, to help with children’s mental health. Or he could have funded a tutor or two, targeted at each school, to help teachers and classroom assistants. That would be a catch up, but 60% of schools have not even recovered from using their budgets for covid, and there is nothing for them. Schools in my constituency have had to get food bags ready for their pupils.
What are family hubs when we had Sure Starts? Sure Start Palfrey was rated outstanding by Ofsted twice, yet it is now closed. The National Youth Agency found this year that local authority annual expenditure on youth services has dropped by £l billion. Children in affluent areas of England are twice as likely to have access to youth clubs and other out-of-school activities as children in poorer parts.
The youth service in Walsall had a building on the Narrow Lane site in Pleck, but Walsall Council has now pushed through a Traveller transit site at that location. A better site was identified in the site allocation document. Worse still, in the Black Country plan Walsall has 23 permissions or allocations of land for Gypsy, Roma and Traveller communities, whereas Dudley has only two. Instead of investing in young people, the council has chased them off the site, to waste money right in the heart of the community in Pleck.
What about communities and local economies? Of the towns fund recipients announced in spring this year, 39 out of the 45 were in tier 1 Conservative constituencies. I do not recall the Chancellor namechecking any Opposition constituencies in the Budget speech.
The UK shared prosperity fund does not deliver the £1.5 billion a year until—wait for it—2024-25. Funding for next year is just £400 million, so the Government are failing even to replace the EU funds.
What about our high streets? There has been no support for retail and supermarket workers—those on the frontline who worked during the pandemic to keep the country fed. To ensure that work pays, the minimum wage should have been raised to at least £10 an hour and there should have been an end to insecure contracts. Or perhaps there should be a real living wage that people can live on once the basic living costs are taken off.
If the Chancellor wanted to regenerate our high streets, he could have closed the loophole in respect of online sales taxes to help high street retailers, just as the French are doing to support their bookshops.
What about climate change and the climate emergency? This week, the most dramatic thing is happening in Glasgow—COP26—but there was no mention of it in the Budget. It is not about us; it is about future generations. Even now, the Government are rowing back on their 1.5° commitment. This contradictory Chancellor lowered air passenger duty for short-haul domestic flights, but there was no mention in the Budget of alternatives such as public transport and no mention of High Speed 2 or the integrated rail plan.
Perhaps the conflicted Chancellor should have listened to Insulate Britain instead of the airlines. The Government said there would be extra money for heat pumps for 600,000 homes a year, but no—money has been allocated for just 30,000 a year. That is one in every 250 households.
What about the restoration of solar panel tariffs? The Government stopped the subsidies for new applications in 2019. More than 800,000 households had installed solar panels since 2010, but the Government announced a 65% cut to the tariff.
Sadly, a new food bank has opened in the Saddlers Centre. Families have been hit hard by the covid crisis.
There is not much in the Budget for those who looked after us during the pandemic: the NHS pay rise is a paltry 3%. That is a missed opportunity to say thank you. Unison did a survey and found that 80% of NHS staff were against the 3% rise.
There is nothing allocated in the Budget so that we can learn the lessons of the covid inquiry, and nothing for our young people, our communities or our glorious planet. We have an Instagram Chancellor with no instant plan. I hope he will reconsider and make his plans more ambitious, for the good of our country.
Virginia Crosbie (Ynys Môn) (Con)
Last week’s Budget marked an important step in preparing and supporting the UK in a post-Brexit and post-covid world. The Budget rightly focused on the Government’s commitments to level up communities and to bring economic prosperity to areas that have seen disinvestment and loss of opportunity over recent years—areas such as my own constituency of Ynys Môn.
In terms of its economic productivity, Ynys Môn—the Isle of Anglesey—has one of the lowest gross value added in the UK. In recent years, we have lost major employers such as Wylfa, Anglesey Aluminium, Octel and Rehau. During the pandemic we have seen the fragility of our tourist economy, on which so many local people depend. This has resulted in our young people having to leave the island to find good quality work, leaving behind their families, leaving behind their culture and leaving behind their Welsh language.
Last week, the Chancellor of the Exchequer said:
“There is a reason we talk about the importance of family, community and personal responsibility. We do so not because these are an alternative to the market or the state, but because they are more important than the market or the state.”—[Official Report, 27 October 2021; Vol. 702, c. 286.]
Ynys Môn is all about family and community, which is why we need to level up opportunity and provide permanent, well-paid careers on the island. Only this will drive up our economic productivity, give our young people aspiration and keep them on the island. Only by creating healthy and self-sufficient communities can we ensure that our Welsh language and culture continue to thrive.
Last week, we saw some huge numbers: £2.6 billion to the UK shared prosperity fund; £5 billion to Project Gigabit; and £1.4 billion to the global Britain investment fund. These will unleash private capital, and we on Anglesey look forward to reaping the rewards of this investment.
Ynys Môn is known as energy island, and so we particularly welcomed the announcement of £380 million for the offshore wind sector, £1.7 billion to enable a large-scale nuclear plant, £385 million towards nuclear R&D, and £120 million for a new future nuclear enabling fund. With the National Nuclear Laboratory already based at M-SParc in Gaerwen, and Bechtel, Rolls-Royce and others keen to set up at Wylfa Newydd—whether it is AP1000s and/or small modular reactors—these announcements bring hope to Anglesey. It is hope that we may once again enjoy the economic benefits of hosting nuclear.
We are also keen to see the UK’s first thermal hydraulic test facility established locally. There are currently only two worldwide: one in Italy and one in the US. To have the third thermal hydraulic test facility in the world in north Wales would be absolutely fantastic.
The people of Anglesey are already starting to see the impact of the levelling-up agenda. We have jobs and opportunities appearing as a result of the Government’s investment: more than 200 new jobs at the HMRC Holyhead inland border facility; expansion of the workforce at Orthios Eco-Park supported by Government investment; the Holyhead hydrogen hub, which was earmarked for almost £5 million in the March Budget; and, of course, as chair of the Anglesey freeport bidding consortium, I continue to press for Anglesey to become a freeport with all the advantages that that would bring.
Finally, I thank the Chancellor of the Exchequer, the Chief Secretary to the Treasury and the Secretary of State for Transport for awarding my bidding team up to £50,000 for a feasibility study on the disused Gaerwen to Amlwch line on Anglesey. This money will be match funded by the Welsh Government and allow us to fully investigate viable options and alternative uses so that we can bring this community asset back to life.
Our island used to be known as Mon Mam Cymru—the Mother of Wales. I am proud that this Government are giving Ynys Môn a hand up, not just a hand-out, so that once more Ynys Môn and its people will not only lead but roar on the global stage.
Hywel Williams (Arfon) (PC)
It is a pleasure to follow my constituency neighbour, the hon. Member for Ynys Môn (Virginia Crosbie). Unfortunately, we do not quite see eye to eye on everything, but it was a pleasure to hear her speak.
For Wales there are three particular yawning funding gaps in this Budget. I will only refer to those three, although I could say a great deal more. First, the arrangements for replacing EU structural funds are—to be very kind—a bit unclear. That is a worry for marginalised communities, rural communities, small and medium-sized enterprises, and the third sector. What we do know, however, is that the replacement funds will fall well short of the £375 million that we were receiving every year. In fact, the figure that has been suggested is £120 million, not £375 million. To me, that sounds like not levelling up, but pushing down.
The EU funding has in the past supported skills development, business development, decarbonisation and much else. Skills development, of course, is a particular issue this afternoon. The Education Secretary referred to it, as did many of his colleagues. Those three apparently prime targets for this Government are unfortunately going to be neglected now that the funding will be reduced, not increased. To be clear, Wales won those funds from the EU because of our relative poverty. Our poverty puts us in the same category, unfortunately, as parts of post-1989 eastern Europe. That is where we stand economically. I am afraid that that grinding poverty remains. It has scarcely been relieved, yet this Government are cutting the relief that has been available to us—so much for their golden promises about life after Brexit.
My second point is about HS2. The spending review did not reclassify HS2 as an England-only scheme. Quite apart from the well-made arguments of English MPs against HS2 on environmental and other grounds, I have to point out that HS2 literally comes nowhere near Wales, yet, unlike Scotland and Northern Ireland, we are paying for it. Were we not paying for it and instead getting a Barnett consequential, we would have received about £5 billion, which would have gone some way to redressing the chronic underinvestment in our rail infrastructure.
I have said before in the House that Wales has 11% of the rail network, yet we receive 1% of the investment in that infrastructure—a point that really needs to be addressed. Even if we only received our Barnett consequential of infrastructure investment, it would be 5% rather than 1%. As it is, HS2 is expected to have a negative impact of about £150 million a year on the Welsh economy, even though we are paying for it. This will hit the south and the south-west of Wales particularly hard, while the projected benefits—in particular to the north-east of Wales—compared to the huge spending on HS2 are, to use one of the Prime Minister’s favourite words, piffling.
Let me turn to my third point. Members may have forgotten the legacy of the Welsh coal industry—an industry that powered so much development that benefited others elsewhere and provided some individuals with almost incalculable wealth, which was spent conspicuously on personal follies such as grandiose fantasy castles. Now the coal has long gone, disappearing on railway wagons down to the east or off on ships to all parts of the world. But other legacies remain: the wrecked health, the poverty and, conspicuously, the coal tips.
There are 2,456 coal tips in Wales, which tower over former mining communities. Most are quite stable—at present, at least—but 327 are classified as high risk, and one of those actually slipped earlier this year near Tylorstown, where my own grandfather was a collier in the ’20s. Others may slip, particularly bearing in mind the increased rainfall that is inevitable with climate change. The coal may have gone and the wealth may have gone, but responsibility for the tips is now devolved—we are picking up the mess—and we will try to make them safe. However, the failure to back a long-term solution for Wales’s coal tips could create an additional financial burden on the Welsh Government, and the Welsh budget, of about £60 million per year.
Those three points convince me that the contrast between the Government’s soaring rhetoric about their plans and the reality that we are facing is breathtaking. This is not a Budget that my party can welcome or support.
Bob Seely (Isle of Wight) (Con)
It is a pleasure to follow the hon. Member for Arfon (Hywel Williams). I wish I could say I disagreed with him over HS2, but let us not go there.
I congratulate the Government on their decision to back the Isle of Wight’s levelling-up bid last week and moving it up into tranche 1, accepting my arguments. I am most grateful for that. I want to say, because we are spending an awful lot of money, that it is going to be exceptionally well spent. That £6 million is going to buy quite a few things, but most importantly it will buy the capability to be able to lift 240-tonne ships out of the water at East Cowes. It will be a massive boost for jobs and for Wight shipyards and aluminium boats. With regard to shipbuilding, there is likely to be a significant contract for border patrol vessels, I hope. The Isle of Wight may well be putting in the only UK bid, and it will be a highly competitive one. Those boats have been made in Holland before. It would be nice to see them made in the UK and preferably on the Island, bringing that wealth to the Isle of Wight and also along the south coast.
I congratulate the Government on the universal credit decision. Out of all the excellent things in the Budget—my right hon. Friend the Chief Secretary knows this as well as I do—the best is that we are enabling our constituents to make work worthwhile, getting work into families and giving them prosperity and hope. That may well be the most important thing that has come out of this Budget, and it may be influential for years to come.
I want put on record my thanks to Maggie Oldham at the Isle of Wight NHS Trust, who has taken the trust out of special measures. It is now rated as good. I am also grateful for the recent visit by the Education Ministry’s permanent secretary to Cowes Enterprise College to see an example of best practice in embedding careers into the curriculum. Getting people ready for work is clearly an important part of education.
I am delighted that the Under-Secretary of State for Transport, my hon. Friend the Member for Witney (Robert Courts), is here, because I want to talk briefly about transport, just to have a bit of a moan within a positive framework. He and I have met quite often and talked about the Isle of Wight ferries and Isle of Wight transport. I wrote to him last week. I hope we are going to look at a series of issues, and I want to put them on the public record now.
The ferry services fall down too often. If this was a multi-constituency problem, the situation with Wightlink, Red Funnel and Hovertravel would not be accepted, yet unfortunately in this case it is accepted, for whatever reason. We need to challenge that and do better, because interconnectivity is important, as Ministers know. We need to improve our connectivity between the mainland and the Island.
First, following up on the letter that I wrote, can the Government take the power to oversee ferry timetables in the same way that the Rail Minister does with rail timetables? Secondly, especially because we have a Treasury Minister here, will the Treasury support a national infrastructure bid potentially by a new ferry operator—a free-market alternative—to get a new player into the market, especially if it is a community interest company that will keep a low debt level and a more affordable price structure for Islanders? Thirdly, will the Government look at other measures and potentially take other controls over ferry firms, for instance through looking at their debt level? I do not want to sound like the right hon. Member for Hayes and Harlington (John McDonnell) or the hon. Member for Norwich South (Clive Lewis), but the privatisation of Wightlink did not work, and that company has been loaded up with debt by corporate sharks over the years. That debt gets paid for every time an Islander uses the ferry service, and it is frankly unfair. I also question whether it is right for public services, be they Wightlink or Southern Water, to be owned ultimately by companies based in offshore tax havens. It is not right and it is not good for us that that practice continues.
Fourthly, can we look at extending the EU261/UK261 regulations, which cover air travel, to cover the ferry firms? Fifthly, can we add public service obligations, either supported or unsupported by the taxpayer? Will the Government support the Isle of Wight Council or the Department for Transport taking a share in Wightlink or potentially Red Funnel? Will the Government also look at a cap on costs for those travelling to the mainland for health-related travel? Unlike the Isles of Scilly, we do not have the same beneficial arrangement, and those costs are sometimes higher than they are for other people.
I will leave it there, with one final point—I am looking to the Minister via the Speaker’s Chair. On the fair funding formula, negotiations are ongoing. The Government and the Chancellor accepted for the first time, after my pressing, that the Isle of Wight should be treated as an island and that there are additional costs in providing Government services and doing business caused by separation by sea. Those negotiations are at an advanced stage. I would be grateful, because the Government invested £50,000 to look at this with the Isle of Wight Council, if those negotiations came to a positive resolution. The amounts of money we are talking about are so small when it comes to overall budgets, but would mean a great deal to the Island. That would mean that the Isle of Wight’s additional costs caused by being an island would be recognised by Government for the first time in decades.
Nadia Whittome (Nottingham East) (Lab)
It is a pleasure to follow the hon. Member for Isle of Wight (Bob Seely). I echo his support for comments from those on the Opposition Benches condemning private ownership of our public services.
For my generation, this Budget offers little hope. It fails to address the climate emergency, the effects of which we must endure; it fails to tackle the poverty pay that means wages do not pay the bills; and it fails to get a grip on the housing crisis, consigning people of my generation to live in their childhood bedrooms or fork out half of their income in rent.
We are a generation that has grown up under austerity. Our entire teenage and adult lives have been lived in its shadow. The Chancellor talks about restoring spending, but the cuts continue to bite. In all but a few Departments, increases in his spending review only partially reverse cuts made since 2010. The people of Nottingham now receive more than £100 million less each year to fund local services. Thanks to Government cuts to local authorities, our city’s youth services have been cut by over 90%. When will Nottingham get the money we need to truly level up? Will the Chancellor answer honestly on why his seat, among the most affluent in the country, has been prioritised in the levelling-up fund, while 38% of children in Nottingham East are living in poverty?
The Chancellor may have ended the public sector pay freeze, but there is no certainty that wages will rise above inflation or even with inflation. The tax hikes he is implementing and the price rises he is failing to control mean that families face a cost of living crisis. Public sector workers cannot continue with more years of below-inflation pay increases, which are, in real terms, pay cuts. The Chancellor must guarantee a proper pay rise for those workers and, indeed, for all workers, whether they are care workers, shop workers or cleaners—the people who got us through the pandemic.
Days before COP26, the Budget could have announced an ambitious spending plan for a just transition to a low-carbon economy, creating thousands of jobs in the process. Instead, the Chancellor cut taxes on domestic flights and pledged just £7.5 billion of new money for climate and nature, which leaves a £55.4 billion gap in the investment we need to hit our net zero and nature targets.
Shell and BP paid zero tax on North sea oil in the last three years, and the Government have backed them with tax breaks and subsidies worth billions. Instead of bankrolling polluters, we should invest those billions in a green new deal. The Budget gives banks a £4 billion tax break while hiking taxes for working people to the highest level in 70 years.
The Budget also keeps the universal credit cut. Even with the changes to the taper rate, about 75% of the 4.4 million households on universal credit, including 14,250 in Nottingham East, will still be worse off. After more than a decade of austerity, the Budget fails to restore spending on public services to the level that we need and does not deliver the “new age of optimism” that the Chancellor promised. The glass is not half full. After 10 years of brutal Tory austerity and Government cuts, it is completely empty.
Jacob Young (Redcar) (Con)
It is a pleasure to follow the hon. Member for Nottingham East (Nadia Whittome). It is fitting that she is the youngest female MP and I am the youngest male MP given the steps that we are taking to invest in the future of our young people.
I am pleased to speak in today’s debate as the Chancellor, as well as being a friend, is my constituency neighbour, as is my right hon. Friend the Chief Secretary to the Treasury. The Budget, delivered for the whole country by a northern Chancellor, certainly reflected that. It ensures that the areas that Labour forgot are not just recognised, but central to the Government’s mission for a safer, cleaner and healthier Britain.
The Budget sets us back on track, with new fiscal rules of borrowing only to invest and returning to debt falling by the end of the Parliament. While the Labour party carps about the difficult decisions that the Government have to make, we are getting on with the job. The public are backing us, too: they see the changes that we are trying to make and understand that the road to a high-skill, high-wage economy comes with initial challenges.
We voted for change, both in 2016 when 66% of people in Redcar and Cleveland voted to leave and in 2019 when Redcar elected its first Tory MP, and the Government are getting on and delivering that change. The Budget announced £310 million for transport across the Tees valley, which will mean improvements to Redcar and South Bank stations and the station at British Steel; new active travel with better cycle routes across Teesside so that people can get to work more easily without a car; the new Tees crossing, which will decongest the A19 going north; and support for the roll-out of new hydrogen and electric vehicles.
On top of that, the Chancellor cut domestic air passenger duty, which is a boost for Teesside airport. We are getting a direct train link to London from Middlesbrough next month, and next year, the TransPennine line will be extended from Manchester to Saltburn. By air, road and rail, Teesside is becoming more connected day by day, thanks to our Conservative Government.
Alongside that huge investment in our transport infra- structure, the Government made a specific announcement of a UK and world first. The UK Infrastructure Bank, which the Chancellor announced in March, has made its first investment of £107 million in the new offshore wind quay at South Bank. That will enable us to get on with the job, build out the quay, regenerate the site and create the jobs of the future on the south bank of the Tees. On that site, we will manufacture blades for wind turbines almost as tall as the Eiffel tower and huge turbines that make Big Ben look like Little Ben. They will form part of the largest wind farm in the world at Dogger Bank.
The Budget also contained Teesside freeport’s approval as a tax site and the green light for it to become operational from mid-November. I declare my interest as an unpaid member of the Teesside Freeport board. I am now almost certain that that means we will be the UK’s first post-Brexit freeport. That is a pledge that I made and a challenge that I set myself when I made my maiden speech just along this Bench 18 months ago—delivered for the people of Redcar and Cleveland.
The real icing on the cake was the announcement made by Gezza on Wednesday evening. Of course, I refer not to the right hon. Member for Islington North (Jeremy Corbyn) but to the noble Lord Grimstone, who is working night and day to make Teesside great again. He announced that Sabic is to invest £850 million in its Teesside petrochemicals site, creating and protecting more than 1,000 Teesside jobs and confirming the parable that investment in the north-east from Saudi Arabia is like buses: we wait all day and then two come along at once—apparently that is a football joke.
That investment stands at the heart of our Conservative ideology that it is not the state that delivers the jobs of the future. We deliver strong public services, we level up infrastructure, we drive forward economic growth and we support the innovators, the entrepreneurs and, yes, the lenders to ensure that those who want to build something in Britain can get on and do it. It is not the Government who create jobs; it is businesses. That is why the Chancellor is supporting them and has supported them throughout the pandemic.
Finally, I was so pleased to see the Chancellor’s backing for research and development in the Budget, taking our investment in the technologies and jobs of the future to 1.1% of GDP. However, I want to see that increase going towards the D in R&D. So many brilliant ideas are killed by their inability to be demonstrated. Redcar and Cleveland is home to two world-leading development sites: the Centre for Process Innovation and the Materials Processing institute. They are two fantastic organisations, the latter established days before D-day as Churchill’s Government prepared to have the best steel innovation available to meet the challenges of rebuilding Britain after the war.
In the March 2020 Budget—that seems like a lifetime ago—the Chancellor backed the programme of research and innovation for the UK steel and metals sector. Page 85 of the 2020 Red Book referred to £22 million for the Materials Processing Institute for innovation in decarbonising the steel sector. That funding, alongside support from Innovate UK, has created 25 high-skilled jobs. PRISM will go on to make huge strides in decarbonising our foundation industries. That is what we can achieve when we invest in research and, crucially, in development. We can create the jobs of the future, the technologies that will help us tackle climate change, and level up across the country.
Lloyd Russell-Moyle (Brighton, Kemptown) (Lab/Co-op)
While the Chancellor presented his Budget as the best Budget in 10 years, he seemed to forget what party has been in control of the country for 10 years. The reason why this miserable Budget is the best of all the miserable Budgets of the last 10 years is that a miserable party has governed our country for the last 10 years. It has cut, cut and cut every time.
We have seen £1 billion of cuts in youth services since 2010, when the Liberal Democrats brought the Conservatives into power, and we see further cuts to youth services in this Budget. I know from my work on the all-party parliamentary group on youth affairs that many Conservative Members think youth services should be invested in and that the failure to invest in them, and cuts to them, have caused many social problems in their communities. It is a shame that the hon. Member for Mansfield (Ben Bradley) is not in his place. We have done much work on youth services in his area, where I have seen really good projects. I am sure, though of course he will not say it publicly, he is disappointed that there is a real-terms cut for youth services—and if he is not, he should be looking at the small print, because that is the reality.
Even when there is investment in youth services, it is in buildings. I love a new shiny building; there is nothing better as the local MP than going to cut the ribbon, getting a nice photoshoot for our next political leaflet. However, the reality is that we do not need large numbers of new youth centres. There is a need for some to be refurbished; there is a need for some to be returned from use as government offices, because they ended up being glorified council offices rather than active youth centres. That has happened because we do not have the operating costs for those youth centres up and down the country.
When I speak to housing associations, they say, “Well, if you really need a youth centre, we can probably build that within the framework of the local housing budget we have, but we can’t pay for the day-to-day costs.” Have the Government provided any support for that? No. We see in my constituency, for example, the Conservative-controlled council writing a press release in the middle of the night to say it is going to close the 1,000 square metres main library in Peacehaven and replace it with a 35 square metres facility, because of budget cuts and other changes that the council says are unforeseen.
That is not unique. It is a great shame, of course, that a Conservative-controlled council would do that, and particularly that it would do so without speaking to the local Labour councillors, or to the local town and parish councillors who wrote to them asking for a dialogue on the matter. However, I will ignore the snub from the Conservative county council leadership and the officers there, who have shown complete disregard for Peacehaven time and again. Only last year, in the dead of night, the council filled in the local primary school swimming pool—a pool paid for by the local community. During covid, the council sent in the bulldozers and bulldozed it up, saying that it cost too much to run. We said, “Surely it costs more to bulldoze it over than to keep it and mothball it?” But that is enough about the dangers of the Conservative council in East Sussex abandoning Peacehaven. The reason the council has to do those things, even though they are the wrong choices, is that its funding has been cut to the bone time and again by this Government.
That is why I tabled an amendment today. It was quite rightly not selected, and I did not expect it to be, but I tabled it to say that the upper earnings threshold on national insurance should be abolished. That would mean that everyone who earns over the primary threshold should just pay the same percentage, which to me seems fair. Someone who earns £40,000 should pay the same percentage as people earning £60,000. At the moment, people earning £60,000 can pay 3%, while someone earning below the upper threshold has to pay 13%. That does not seem fair to me. Abolishing that upper threshold would raise between £15 billion and £20 billion. We have to put a range on these things, because of course with tax funnelling and so on, we do not know what we will actually get, but the lowest estimate is £14.5 billion.
The precept, the Government’s measures and the measure I have proposed would cover almost all the costs of adult social care that local authorities up and down this country are having to pay. That would free up our councils to do what they should be doing, which is providing libraries and youth services, and not feeling that they have to provide adult social care. That is a plan for adult social care, not the mysterious plan involving money that might come down the line in a few years that we heard from the Chancellor. That is why I tabled my amendment.
It is also important to realise that in this Budget there are tax giveaways. Who are those tax giveaways to? Not the ordinary person. There is £4 billion in tax cuts for banks in this country—banks that have made record profits in this period. We see no real action on companies such as Southern Water, which keeps pumping pollution, filth and sewage into our seas and rivers. When I met the chief executive officer of Southern Water, he said, “I don’t understand why my staff are getting such a bad time.” I said, “It might be because you’ve just awarded yourself half a million pounds in bonus while also being fined for illegal activity.”
Did this Budget tackle any of that? Did this Budget support money going in to transform our Victorian sewers or measures to repatriate the excessive profits of corporations? No, it did not. It left our seas dirty, our libraries closed and our youth services abandoned. What a shame; what a missed opportunity—but what did we expect from them?
Richard Drax (South Dorset) (Con)
I refer Members to my entry in the Register of Members’ Financial Interests. It is a pleasure to follow the hon. Member for Brighton, Kemptown (Lloyd Russell-Moyle). I do not always agree with him, but it is always a pleasure to listen to him.
While my right hon. Friend the Chief Secretary to the Treasury is in his place, let me say—I have already shouted at him quietly in the corridor—that we in Dorset Council are very disappointed that levelling up does not apply to us. With some of the deepest pockets of deprivation and poverty in my constituency of South Dorset, we put a huge effort into making our application to the Government. I praise all those who took part, including the business community. Regrettably, however, because we went to unitary status, we went from category 1 to category 3, which is blatantly unfair. I appeal to the Government not to forget us in South Dorset. We are getting a little tired of being forgotten.
Moving on to the Budget, I want to talk a little about our Conservative philosophy. We have had a few days to digest the Chancellor’s enthusiastic delivery of the Budget statement last Wednesday. First, let me acknowledge that we are living through unprecedented times; the financial pressures on the Government have been extraordinary, particularly now, post pandemic, when all the chickens are coming home to roost. I applaud the Chancellor’s deft handling through three controversial lockdowns, although I did not agree with them. There is no doubt that the furlough scheme saved countless jobs and is now enabling the economy to bounce back impressively.
There is a lot in the Budget that I welcome and will help my constituents, not least the funding for skills, which I absolutely endorse; the taper relief to universal credit, which will help a lot of my constituents; and of course the help for businesses with business rates, although, as many Members have said, we long for business rates to be reviewed completely.
However, alarm bells are ringing for me as a Conservative. A further £150 billion spending spree caused an intake of breath, I have to say. With the UK’s total debt now over £2 trillion and taxes at their highest for 70 years, I wonder how long it will be before the country’s credit card finally expires. [Interruption.] We hear the customary groan from those on the Opposition Benches. I expect that, because they just spend money like water.
The majority of the Budget was contrary to our philosophy of less state, lower taxes and a free market economy. It was more big state and “the Government know best how to spend individuals’ money”. They do not. Our job is simple: to create an environment where business can thrive, allowing the entrepreneurs and innovators in the UK to do what they do best while attracting the best from around the world to invest here, which, post EU, we are now in a position to do.
To that end, the final few sentences in the Chancellor’s 70-minute Budget speech, which ran counter to the first 67 minutes, gave me hope. We left the EU for many reasons, but one of the most significant was to enable us to govern ourselves and make our own laws. The vision during those torrid pre-Brexit years was of a low-tax, Singapore-style country, producing and innovating our way to a new and prosperous future. I believed in that then, and I believe in it now, but it will not be achieved if we continue to favour big state spending, establishing an irreversible trend that can only continue to rise. Is that something that we Conservatives are prepared to countenance?
What we need, and urgently, is a vision, a narrative, a plan, and the political courage to promote it and see it through. However, that will be unsellable and unworkable unless it is accompanied by radical reform. Take the NHS, for example. Do not get me wrong. I have absolute respect and admiration for the doctors and nurses who work on the frontline and they have done a fantastic job throughout the pandemic. However, one commentator recently noted that the NHS was an organisation with a country attached. It is predicted that day-to-day Government spending on this behemoth could rise to a staggering 44%. This is an altar at which the country simply cannot afford to worship any longer. Does any other country have a system like ours? They do not and I do wonder why.
When moneys are short, why are we not looking at reversing our priorities? When we consider that the private sector accounts for 85% of the workforce, why do we continue to pour good money after bad into the public sector without reform? We need a public sector, of course, and it makes a valuable contribution, but it is paid for by the hard work of taxpayers—those on the Opposition Benches simply do not understand that— who are expected to dig ever deeper into their pockets for inefficiencies in so many areas. And this under a Conservative Government with an 80-seat majority.
Some years ago, we called for a bonfire of the quangos. You may recall those days, Madam Deputy Speaker. Depressingly, I read recently that they have only increased in size and influence—the latter totally unaccountable. All Departments have done is delegate their responsibilities to those who, all too often, are pursuing a very different agenda. Do you wonder that planning, the countryside, environment, energy and health to name but a few are mired in red tape, extra cost and, all too often, controversy? While we throw billions of pounds into, a broken system is too strong, but it needs reform, we cut defence spending, an irresponsible and incomprehensible act. What on earth are we doing? This, after our armed forces so magnificently came to the Government’s rescue and did such a great job during the pandemic. Let us not forget that they were not paid £70, or whatever it is a truck driver will get now. They lived on their salaries—what they get as soldiers—and the Government got a fantastic service on the cheap.
Our first priority is the defence of our island, which we ignore at our peril. The country sits at a crossroads. Double jabbed and better protected against covid, we must never, ever, ever lock the country down again. The consequences financially, physically and emotionally would be catastrophic. We must learn to live with the disease, as we do with any other. So I urge the Government to forget every other plan—plans B, C, D and E—except the most important one, which is a return to normality. Burdened by high tax and threatened with the spectres of inflation and rising interest rates, and a consequent cost-of-living crisis, there can be no other option. We are Conservatives and this worrying lean towards a big state must end, as the Opposition will always outspend us. If we do not get a grip on all this, we will, as Baroness Thatcher once famously said, shortly run out of other people’s money.
Munira Wilson (Twickenham) (LD)
On Wednesday, the Chancellor said in his speech that a good education is the birth right of every child. I wholeheartedly agree, yet his announcements absolutely do not live up to that commitment. The Budget and spending review should have been a children’s Budget, focusing on their recovery from the pandemic, and giving every single child in this country the opportunity to flourish and reach their full potential. Not only is it the right thing to do to provide every child with the best start in life, but children and young people are at the heart of our future economic success.
The additional education catch-up funding announced last week amounted to merely £1 per pupil per school day, whereas the tax cut for bankers in the Budget amounts to some £6 per day. I was, frankly, amazed to hear the hon. Member for Hitchin and Harpenden (Bim Afolami)—he is no longer in his place—make an impassioned case for the bankers’ tax cut and lament the fact that the Chancellor did not go further. That gives us a flavour of the priorities of Government Members. Those are certainly not aligned with the priorities of my constituents in Twickenham—I can tell him that—who want to see more spending on education and on our schools because they are scrimping and saving and struggling to get by.
With close to a billion days of face-to-face schooling lost over the pandemic, the Government’s education recovery tsar set out the need for some £15 billion of investment in education recovery, yet even with last week’s announcement, this Conservative Government’s commitment is only a third of what Sir Kevan Collins recommended. It amounts to only £490 per pupil in England. Compare that with the Netherlands, where they are spending £2,100 per pupil on education recovery, and the US, where they are spending some £1,800 per pupil. Where is the ambition to address the lost learning? Where is the ambition to address the social and developmental impacts of being locked up at home and away from friends for months? Where is the ambition to stem the huge tide of mental health needs and poor wellbeing among children and young people?
The Education Policy Institute estimated that each child could lose up to £46,000 in earnings over their lifetime as a result of the impact of the pandemic. The Institute for Fiscal Studies estimated that the long-term impact to the economy of lost learning could be around £350 billion, yet the Treasury has committed to just £4.9 billion for school catch-up, while giving tens of billions to other sectors of the economy. As the former Children’s Commissioner put it earlier this year, this shows an “institutional bias against children”.
Liberal Democrats are calling for the Government to honour Sir Kevan’s recommendation, giving £10 billion directly to schools for a holistic package of support. But critically, we propose that £5 billion should be put directly into the hands of parents and carers in the form of catch-up vouchers to be spent on tutoring and extracurricular activities, such as sport, art, music or counselling support, depending on what each parent or carer knows and thinks their child needs. Every child would benefit, but the poorest children, those with special educational needs and looked-after children, would get more.
The latest survey from Parentkind, the charity that champions parental involvement in education, shows that one of the top priorities for parents for additional education spending is children’s mental health and wellbeing. I know from talking to headteachers and school governors at schools across my constituency that that is their top priority, too. Child and adolescent mental health services are overwhelmed with children experiencing a mental health crisis, often ending up in A&E and then unsuitable general paediatric wards, or with school staff having to manage conditions that they are simply not trained for.
NHS data confirms that the number of children and young people with a probable mental health condition has jumped from one in nine to one in six between 2017 and 2021. Referrals to mental health services between April and June this year were close to double that in the same period in 2019. Social isolation, uncertainty, grief and trauma have all taken their toll on children’s wellbeing, yet there was nothing announced for children and young people’s mental health in the Budget.
Alongside boosting acute service provision, we need to focus on prevention and good mental health support in schools as well as in the community. All the research shows that it is difficult for children to learn if they are struggling with their mental wellbeing. Ministers need to accelerate the roll-out of mental health support teams in schools. A target of 35% of schools by 2023 is simply not ambitious enough; our children deserve and need better. I suggest that the Government look very seriously at—I have called for this before—the proposals from YoungMinds and other charities on early support hubs: a one-stop shop in the community where children can get all sorts of support for their mental health, help from sexual health services and employment support. This has been proven a success elsewhere in the world.
Children and young people are our future. The former Children’s Commissioner, Anne Longfield, laid down the gauntlet to all politicians. She said that
“these are your children now. You have a chance to put them centre stage. When you do build back better, make sure you do it around them.”
This Budget fails to do so. I and my Liberal Democrat will keep fighting their, and their parents’, corner.
Bill Wiggin (North Herefordshire) (Con)
The subject of the River Wye has already been raised by my right hon. Friend the Member for Hereford and South Herefordshire (Jesse Norman). There is no advantage in my repeating all he said; suffice it to say that there is not a cigarette paper between us in our agreement on that vital subject.
The Budget comes at the tail end of a once-in-a-century pandemic, the sharpest financial hit in more than 300 years. Despite what others may think, our finances were in good shape before the pandemic hit. That allowed us to keep the country running, so we should be grateful to the local authorities and all those who played their part and mended the roof while the sun shone.
Now, as we make our way out of the pandemic, it is encouraging to see signs of our economy recovering at a great pace: record numbers are in work, job vacancies are at a record high and we have the fastest-growing economy in the G7. We should not forget that that is largely thanks to £280 billion-worth of support from the Government, the taxpayer and our Chancellor, keeping businesses afloat and helping families to weather the storm. This Budget means that we can stay in the lead, helping industries such as the hospitality sector and the hop and cider industries in my constituency.
The cider industry in Herefordshire is said to produce most of the cider consumed in the UK. Cider apple growing is worth only about £24 million to farming annually, yet UK cider production comprises 39% of the global market, and the industry pre-pandemic was worth about £3.1 billion to the UK economy. However, it has taken a significant hit during the pandemic.
Cider is now worth £2.1 billion—a decrease of 32.1%. That is why the Chancellor’s announcement about alcohol tax and duty will have a significant impact on producers based in my constituency. The 15 alcohol duty rates will now be reduced to six—a simplification that was a long time coming—and cider duty will see its biggest cut since 1923. Having always been at a 2p disadvantage to beer, cider will now finally be treated as equal.
The alcohol by volume of most ciders is between 4.5% and 7%, which is similar to beer, excluding the low-alcohol versions. Some 47.8% of all households, up from 45.5% last year, now regularly buy cider. I think that that is fantastic. Apparently, the average UK household takes home 33 litres each year—it must be good for them.
Over the past year, cider sales online saw a growth of 81.4%. Cider occasionally wins a share from beer during the summer months, going from 10.5% of market share to 12%. It is easy to see why this should have happened. I welcome the Chancellor's announcement because it will promote job stimulation in the sector. At present, just 11,500 people rely on the cider industry for employment, yet UK cider producers sell to more than 50 countries all over the world. My constituency is home to some of the finest and best-known cider manufacturers not only in the UK, but in the world, and they will truly benefit from the Chancellor’s announcements.
We have a burgeoning craft cider sector as well. Approximately 80% of Britain’s cider makers are small producers; the small producers relief is fantastic news to those entrepreneurial cider makers. It is my hope that the simplification will allow small producers to become more profitable and expand their market share. Currently, hundreds of producers make cider up to the 70-hectolitre limit, but produce no more because they cannot afford the tax burden of going over the threshold: as soon as they produce 7,001 litres, they have to pay the current duty on their entire quantity at the same rate as a multi- national corporation that produces 1 million hectolitres. The new changes are important; I look forward to seeing the detailed plans to support small local producers when they are released.
I also welcome the benefit that this Budget will have for the hop-growing industry. Just over 50 British farmers grow hops in the UK, of which about half are in my constituency. The relationship with the crop goes back centuries: the first reference to hop growing in Herefordshire was made in 1577. Herefordshire is one of only three major hop-growing regions in the UK, alongside Worcester and Kent. Over recent years, there has been an explosive rise of craft brewing that has revolutionised the British beer industry. As a result, demand for local hops has grown, and it is my hope that demand will only increase as we promote brewers and their fare.
As we all know, the hospitality sector took a massive hit during the pandemic. According to figures from the Office for National Statistics, consumer spending on hospitality started to increase in May 2021, but remains at less than 70% of pre-pandemic levels. It is therefore encouraging that 90% of retail, hospitality and leisure businesses will receive at least 50% off their business rates bills in 2022-23. That will be a huge relief for the pubs that struggled so much that they were forced to close their doors.
Post-covid tourism within this country is expected to grow as well. When that is teamed with the biggest cut in beer duty for 50 years, we are looking at boosting British pubs by nearly £100 million a year, which has to be a good thing. Collectively, we expect to reduce the burden of business rates in England by more than £7 billion over the next five years, and the freeze in alcohol duties for the third year in a row will translate to a tax cut worth £500 million every year for families. The duty on draught beer and cider served from containers of over 40 litres will be cut by 5%, which will encourage drinkers to return to pubs after the pain of the pandemic and give the pubs the boost that they need. However, Ministers are due to hold a consultation on the size of kegs eligible for the tax relief. Many of the craft brewers and cider makers that we are trying to boost use 20 or 30-litre kegs. Unless the consultation shows some sort of sympathy towards them, I expect that that will change fairly rapidly.
We must be careful not just to help the big producers, but to do the Conservative thing of encouraging the entrepreneur. However, as Nik Antona, the chairman of CAMRA—the Campaign for Real Ale—rightly said after the announcement, the Chancellor’s budget shows that
“pubs are a force for good in our communities and should be supported to help them survive and compete with the likes of supermarkets.”
I truly believe that the Chancellor agrees with that statement, and I commend him for all he is doing for the sector.
This Budget was never going to be an easy one, and I have my concerns about some aspects of it, such as NHS reform along with value for taxpayers’ money. I would of course have liked to see more taxes reduced, while recognising that the armed forces who have played such a crucial role need to be increased. With such large expenditure announced for our public sector, it is only right that we expect a modicum of reform, and the way in which it spends taxpayers’ money must be scrupulously rigorous. However, we are faced with recovery from an extremely sharp economic decline, not just nationally but internationally.
Crucial aspects of the economy are growing and giving everyone the leg up that they deserve. I look forward to seeing how these changes continue that help for individuals and, especially, businesses in my constituency.
Olivia Blake (Sheffield, Hallam) (Lab)
It is a pleasure to follow the hon. Member for North Herefordshire (Bill Wiggin). I think that must have been a record for the number of times cider has been mentioned in a Budget speech.
In November 2010, I was outside this place in Parliament Square. Alongside tens of thousands of students, I was marching in protest against the coalition Government’s decision to raise the cap on tuition fees to £9,000 a year. Our march on that day was the first of many demonstrations, rallies, and direct actions to protest about first the coalition’s and subsequently the Conservative Government’s austerity agenda. That agenda set fire to our public services, and led to stagnating wages and an explosion of low pay, zero-hours jobs. It is the reason we were so poorly placed to weather the economic storm unleashed by the pandemic, and it is why the UK suffered the deepest recession in Europe.
However, I am also talking about 2010 because I think that the Chancellor and I may share a love of 1980s movies. When the Chancellor spoke about public services in his Budget last week, I felt like Marty McFly in the film “Back to the Future”. On health, the Chancellor told us that
“the health capital budget will be the largest since 2010”.
On housing, he told us that we would see
“the largest cash investment in a decade”.
On education, he told us that he would
“restore per-pupil funding to 2010 levels”. —[Official Report, 27 October 2021; Vol. 702, c. 277-78.]
However, the issue is not only public services but wages too. The Institute for Fiscal Studies tells us that in real terms, wages will continue to stagnate at the same level as they were in 2008. The only difference between now and then is over a decade of Conservative Government and economic vandalism.
This is a “Back to the Future” Budget, but on some things we are not even going back to 2010. Take childcare: the Government have now realised that the first 1,001 days of a child’s life are the most important, but after shutting 1,000 Sure Start centres, they have announced funding for only 75 new family hubs. The same is true for youth services. The Chancellor told us that he would provide £560 million for youth services, but according to the YMCA, since 2010 when we began our protests against the coalition, youth services have been cut by £959 million —nearly £1 billion.
As in 2010, people are marching in the streets, but today it is not Parliament Square; it is Glasgow, and they are marching for action on the climate emergency. Rather than action, this Budget offered them tax breaks on domestic flights and the Government are giving them another coal mine in Cumbria and an oilfield in Shetland and financing gas in Mozambique. They are not building anything back better; in some cases, they are building back far worse. The Chancellor has fired up the DeLorean and taken us back to 2010, when what we need is an economy fit for the future. And no, I am not talking about hoverboards or flying cars.
This was a chance to meet the challenge of the climate emergency with a radical green new deal. It was a chance to offer a real deal on wages, rather than giving with one hand and taking away with the other. And it was a chance to reverse the crisis in our public services, to put more money into our schools and hospitals and to invest in our children. Looking at the Members on the Conservative Benches, I am reminded of the uncomprehending faces of the 1955 audience as they look up at Marty McFly playing Chuck Berry on the guitar. To them I can only quote Marty:
“I guess you guys aren’t ready for that yet. But your kids are gonna love it.”
Chi Onwurah (Newcastle upon Tyne Central) (Lab)
It is a real pleasure to follow my hon. Friend the Member for Sheffield, Hallam (Olivia Blake) and her incisive comments. I grew up in a council house in North Kenton, in Newcastle. I went to excellent local state schools, and the NHS made me well when I was ill and saved my mother’s life when she had cancer. I start with that to acknowledge the personal debt I owe to public services. It is a debt that we surely all feel all the more deeply, given the dedication of public service workers during this pandemic, but apparently the Chancellor does not. Yes, he talked about public services. Indeed, he mentioned them 13 times, but unfortunately this Budget is all talk, smoke and mirrors from a Government with no plan to address the three critical crises we are facing: the cost of living crisis, the climate crisis and the covid crisis. There is so much wrong with this Budget, but in the short time I have today, I will highlight five areas: universal credit, science, transport, local government and protecting our communities.
Last week, the Chancellor tried to present a benefit change as a tax cut, as he was no doubt embarrassed at imposing the highest tax burden in 70 years. But the Resolution Foundation calculates that three quarters of the 4.4 million households on universal credit will be worse off due to the Chancellor’s choices, including taking £20 per week away from each and every one of the 16,000 families on universal credit in Newcastle Central. And that is with real wages having fallen in every region of England by over £23 per week on average since the Tories came to power. That is all we really need to know about this Government: they are making the poorest poorer while cutting taxes on Amazon and champagne. Fortunately, in Newcastle, we have generous Geordies who will support our local food bank, but they should not have to.
We do not generally think of science as a public service, but it is certainly a public good and the foundation of our future economic prosperity and global competitiveness. The Chancellor echoed the Prime Minister’s talk of a science superpower, but he went quickly over the bit where he actually broke the Prime Minister’s commitment to doubling the science spend by 2024-25, delaying it by two years at a cost of £8 billion in private sector investment. In science, as elsewhere, levelling up is nothing but a slogan. The Chancellor’s £1.4 million global Britain investment fund purports to spread economic opportunities across the UK by investing in life sciences, the automotive industry and manufacturing. Those are all sectors the north-east has considerable strengths in and they are critical for addressing climate change. Yet, for example, Government investment in life sciences is just £22 per person in the north, which is two fifths of the £55 per person invested in the south—in the midlands, it is just £16 per person. How will we deliver good, green, sustainable jobs across the north-east, and indeed in all our regions, without investment in science?
The north-east also lost out on transport. I have said many times in this House, and I will say it again, that it costs more to go four measly stops up the West Road in Newcastle than it does to traverse the whole of London on a bus. Lucy Winskell, the chair of the North East local enterprise partnership, was clear that
“government has announced significant transport investment across the rest of the North but not in the North East”.
Communities in Newcastle expect to feel safe and protected—this is the first duty of a Government—yet even when the Government’s promised police officer recruitment is completed we will still have fewer officers than we did in 2010, while police community support officer numbers have fallen by 40%. This Budget did nothing to make our communities safer by tackling the root causes of antisocial behaviour, which mars the life of so many of my constituents. Youth services are still waiting for the £500 million funding they were promised more than two years ago, which is leaving frontline youth services on their knees and young people without vital support and guidance that they need.
However, the Chancellor expects council tax payers in Newcastle to pay more, having cut central Government funding for Newcastle City Council in half. This council tax rise, made in Whitehall, will not begin to make up for the impact of inflation, never mind a decade of austerity and the demands of the social care system. All this comes while across Newcastle children play in litter because the Government will not take plastic pollution seriously or give our council the powers it deserves.
The Tories came into power in 2010 and wrecked our recovery from the financial crisis in the name of austerity. This Budget is an attempt by the Chancellor to position himself for the next Tory leadership election, claiming the credit for repairing the damage of his Tory predecessors while actually entrenching inequality and further neglecting the north. But the north will remember.
Alan Brown (Kilmarnock and Loudoun) (SNP)
As politicians, we should always try to understand the argument from the other side. On that basis, at great risk to myself, I will try to look at the Budget and recent announcements through the prism of a Scottish Tory. That means, first, that I have to ignore the 2014 promises on pensions, when it was said that voting no on the referendum was the best way to protect your pension. It means ignoring those promises and then voting for what is now going to be a £6 billion-a-year clawback from pensioners. As the Red Book shows, £30 billion over the next few years is getting taken from the pockets of our pensioners. It seems the Tories are not content with just ignoring the WASPI—Women Against State Pension Inequality Campaign—women but are determined to make what is already one of the worst pensions in the developed world even worse.
If I am a Scottish Tory, I need to ignore that, and I need to ignore the £20-a-week cut to universal credit, but I will take great delight in demanding to know what the Scottish Government will do with the £41 million household support grant Barnett money that came our way after the universal credit cut. Let us put that money in context: each UC claimant is losing over £1,000 a year. The £41 million that comes back to Scotland, if distributed on a per capita basis, equates to a one-off payment of £85 per claimant. Yet we are supposed to be grateful for a £500 million cut being offset with £41 million.
If I am a Scottish Tory, I need to ignore the fact that as a group the Scottish Tories secured absolutely nothing from the Chancellor in the Budget. Instead of asking hard questions about why the Scottish carbon capture and storage cluster was overlooked again, I have to pretend I am really happy that the Scottish cluster is now a reserve. If ever there were a metaphor for the Union, the fact that Scottish Tories are happy for the Scottish cluster to be classed as a reserve is it. That is our place in the Union as it is.
The Scottish Tories have always been silent on the fact that Scotland has the highest grid charges in Europe. They have been silent about the £350 billion of oil and gas revenues that the broad shoulders of the UK have helped to spend without creating a sovereign wealth fund. They are silent about nothing being added to the Budget that matches the Scottish Government’s £500 million low-carbon just transition fund for the north-east of Scotland.
Because of the higher oil and gas prices, the Treasury is getting an unexpected windfall from the oil and gas revenues accrued. The Red Book confirms that, by the end of this financial year alone, the Treasury will have banked an additional £1.1 billion compared with the forecasts from March this year. Why is that extra money not being reinvested where it was generated? Compared with the March 2021 forecasts, the Chancellor now expects an additional £6 billion of oil and gas revenues over the lifetime of this Parliament. That means that, yet again, oil and gas revenues are paying for the Chancellor’s giveaways elsewhere. The reality is that with the extra oil and gas revenues, the extra petrol duties accruing from forecourts and the extra VAT from our soaring energy bills, the Budget was an opportunity to mitigate the cost-of-living crisis—an opportunity that has been ignored.
On the national insurance tax that has been imposed on us, Scottish Tories say, “Don’t worry—Westminster will give you back some money that you’ve already paid to Westminster.” Why are we supposed to be grateful for that?
Another fact about the energy sector in Scotland is that the Treasury has blocked the concept of ringfencing a pot of money for wave and tidal projects in the forth- coming contracts for difference auction. Such a concept would not even need a fiscal Budget line, and not ring- fencing that money could prevent world-leading technologies from scaling up and expanding all around the world. That is yet another matter on which the Scottish Tories and the Scottish Secretary of State are silent.
Carol Monaghan
I hope my hon. Friend is going to point out—maybe he is not, so I will—that the Scottish Tories support the SNP’s position on free tuition. It will be interesting to see how they vote on the Budget resolutions.
Alan Brown
I have trimmed my speech and have just trimmed that point out a wee bit, so I thank my hon. Friend for getting that on the record.
Let me return to energy. There is nothing in the Budget on pumped storage hydro—on which, again, the Scottish Tories have been silent—but hurray: tomorrow we get the Nuclear Energy (Financing) Bill. No doubt the Scottish Tories will troop through the Lobby to support that.
Let me turn to the levelling-up fund. Yet again, Scotland gets a cut of that, so let us get the Union Jacks out—“Hurray: we get a cut of the levelling-up fund!” The reality is that our cut is, in effect, based on the Barnett formula. When the Chancellor said last week that in the first round of funding Scotland is getting more than its Barnett share, all that means is that there is less money in the ringfenced pot for Scotland going forward, because it is all based on Barnett anyway. But as a Scottish Tory, I do not care, because I revel in the fact that the Scottish Government are being bypassed and there are small projects that we can put a Union Jack on.
As a Scottish Tory, I never acknowledge that the SNP has been in power for only 14 years. The Union has been in existence for more than 300 years, yet somehow every shortfall has happened only in the past 14 years. We must have quite a talent in reverse. The Budget still does not tell us what the shared prosperity fund will look like. It is supposed to replace the vital European funding streams that all the areas that have been overlooked by Westminster relied on to access vital funds for transport and infrastructure—and the Government talk about levelling up. We are currently losing out on funding and we do not know where the future shortfall is coming from, yet the Chancellor uses the phrase “levelling up”.
In conclusion, the Budget does nothing for Scotland. We have already seen, post Brexit, the damage that has been done to the fishing industry and to our farmers, despite the promises. More and more people can see that Westminster cannot be trusted, and it really is time that Scotland took full control of its own decision-making process.
Emma Hardy (Kingston upon Hull West and Hessle) (Lab)
It is a pleasure to follow the hon. Member for Kilmarnock and Loudoun (Alan Brown). I agree with the point that he made about the shared prosperity fund and the need for it to be announced quickly so that we can get the funding that we need in all areas.
I do not want to be too negative, Madam Deputy Speaker, but I was a little disappointed when, in the Treasury Committee, I raised concerns about debt advice directly with the Chancellor and he did not seem to be fully aware of the situation, so I hope that, today, those on the Front Bench will take this point really seriously.
Hull has been named one of the debt capitals of the UK. We have double the average number of people unable to service their debt levels. At the moment, a face-to-face service is provided by the Money and Pensions Service. I am aware that that does not operate directly through the Treasury, but I am also aware that policy decisions relating to debt are informed by the Treasury. What I am asking for is an assurance that that face-to-face advice service remains, because what the service is proposing is to move towards regional call centres where people can access debt advice remotely. I am sure that everybody here, including, hopefully, Conservative Members, will acknowledge that if a person is in a desperate situation—they are saddled with debt, have perhaps not been opening their bills, and are incredibly worried about the situation that they face—the idea that they can go through all the issues on the telephone with someone is simply unrealistic. That is ignoring the fact that some people might have autism or learning disabilities or be in an extremely distressed state. I do hope the Treasury will take that point really seriously and speak to the Money and Pensions Service.
Let me turn now to the Budget. I had six clear asks of the Budget to provide what I believe was needed by the people of Hull West and Hessle. One was on fuel poverty. I support the Labour party’s call for the ending of VAT on domestic fuel as one way to try to alleviate the problems. This really lovely lady told me that she was worried about the issue. She is a pensioner and reliant on her pension. She likes to be warm, as elderly people often do—when people get older they like to keep their homes nice and warm. She is at home all day, so is extremely concerned about the rise in fuel costs, telling me that her bills have gone up by more than 40%. This is an area that needs a lot more Government action, because the problem will not go away; it will continue. I hope the Government will put party politics to one side and review a sensible proposal from the Labour party to look at cutting VAT on domestic fuel.
I raised the issue of adult social care in interventions on the Secretary of State and on my own shadow Front Bencher. I also raised it at the Treasury Committee. The issue has nothing to do with the type of council in control, or the political party that represents it. My constituency is in the East Riding, and it is also in Hull. Hull is urban and a Labour authority. East Riding is rural and a Conservative authority. Both councils have come to me and said that, as the local MP, could I do everything possible to lobby the Government for support for adult social care. In fact, the Conservative-run East Riding of Yorkshire Council has just passed a motion in its council chamber on this matter.
This should not be a political issue. The situation is a crisis. I said in an intervention on the Minister that East Riding council is unable to provide the amount of care hours that constituents need. It has admitted that in a letter and has been quite open and honest with me, saying that it simply cannot provide the service. Its solution is to tell families that they will either have to take care of the person in need themselves or that person will have to go into residential care. That is not a choice that we want people to have to make, so the council has asked me to lobby the Government for increased funding for adult social care, because it says that it is unable to compete with companies such as Amazon, which is offering £11 an hour, because all that it is able to offer is the minimum wage. It told me that it is facing budget pressures of £1.4 million with the national minimum wage increase that the Government have already announced. Of course I support the national minimum wage increase—in fact, I believe that it should be more, as I think all Labour Members do—but we have to acknowledge that the cost has to come from somewhere, and if it is coming from the adult social care budget, it is not going on providing the hours that are needed. The letter has been sent to the Health Secretary. I hope that he reads it, acknowledges it and sends us a reply.
Simon Hoare (North Dorset) (Con)
My own council in Dorset tells a similar story. Does the hon. Lady agree that it would be helpful if when we were talking about adult social care, particularly in the media, we did not just concentrate on those who are older, but remember the complete age range of people who require daily support from our local government? I agree with her entirely that the local government family, which is hardest hit in hard times, really should be the beneficiary of extra cash as the purse strings loosen.
Emma Hardy
I absolutely agree; the hon. Gentleman is completely right. We do often forget all those people with learning difficulties and adults of all ages requiring support. He is correct to draw attention to that point.
The situation really is one of crisis. Yesterday I was talking to the OBR—again, in the Treasury Committee—and it said that it believed that 95% of councils are going to raise their precept to the maximum amount. That is another tax increase that is not being mentioned by the Government and we are not talking about. It is another impact on the cost of living, and councils are having to do that because they simply cannot afford to cover social care as it is.
I want briefly to mention universal credit. Even with the changes to the taper and the other changes that the Government have introduced, a lone parent who is working part-time on the minimum wage still loses £361. All the time throughout this Budget, it seems that people on lower pay are paying more in taxes. That just does not feel right.
I often hear Government Members say, “Well, where would you find the money? What are you going to do with it?” It always comes down to choices; in politics, everything is about choices. We have a certain amount of finance and then we make a choice. My personal priority would be not to give more money to whisky price cuts and tax cuts than I would give to children needing educational catch-up. That is just a principle that I have: children before whisky—call me radical! I would also not spend £5 billion sending a rocket up into space funded by the British Government, when we have lots of children here on earth who might require that money a little bit more. Again, it comes down to choices: rockets and whisky, or kids.
We also need to look more seriously at business rates. Interestingly, Government Members talked about a whole radical change to business rates, which I support. This is a disappointing Budget, filled with many issues that need resolving. I hope that the Government will finally do something about them.
Sam Tarry (Ilford South) (Lab)
As my hon. Friend the Member for Sheffield, Hallam (Olivia Blake) said earlier, we have heard an awful lot about cider today. Given some of the things that I have heard from the Government and from the Chancellor himself, I almost feel that I need to invest in a whole flagon of cider; after some of the things I have heard, it is really going to need that much booze to take the edge off just how bad things are.
This was a Budget for the Government to deliver on their promise to build back better for our country, to lay the foundations for economic growth, and to provide investment and support for businesses, workers and the most vulnerable across our country. It was a Budget that could have transformed our economy in the face of the impending climate crisis. Instead, we heard nothing beyond the rhetoric that could meet the reality that our country and our burning planet faces. Many people in the diaspora communities in my constituency of Ilford South have family who are already facing the impacts of catastrophic and deadly climate change.
Beyond the spin, the painful reality is that real average weekly earnings will not return to pre-financial crisis levels until 2022. Recent analysis by the TUC has revealed that this will result in the worst pay crisis since Napoleonic times, with real pay far from rising and instead falling by 0.1%—years of real incomes barely growing, coupled with the cost of living crisis, high inflation, rising taxes and poor growth that will keep living standards virtually stagnant for another half a decade. The worrying reality is that millions of people will be struggling to makes ends meet.
Meanwhile, the Institute for Fiscal Studies has pointed to Whitehall Departments such as Transport and Justice seeing steep, real-terms cuts relative to 2010. Far from being the much-heralded payday that the Chancellor tried to present this Budget as, in reality it is yet another austerity Budget that will herald the biggest wage squeeze in British economic history, leaving the average worker almost £13,000 a year worse off by the middle of this decade. For those who are already desperate and looking to this Government to use this opportunity to provide urgent help, the Resolution Foundation found that a staggering 75% of almost 4.5 million households claiming universal credit will now be worse off, despite the tweak the Chancellor announced. The Trussell Trust summed it up perfectly when it said that
“there just wasn’t enough for some of those in our society who need it the most”
and food banks will have to “pick up the pieces”—as they are in Ilford South, with another four or five food banks springing up just in the past year.
What shall I tell my constituents in Ilford South who are now faced with such hardship? I certainly will not be reassuring them with news about the Chancellor slashing taxes on sparkling wines and cutting air passenger duty for domestic flights. As my hon. Friend the Member for Leeds West (Rachel Reeves) made clear in this place last week,
“bankers on short-haul flights sipping champagne will be cheering”.—[Official Report, 27 October 2021; Vol. 702, c. 288.]
No one in Ilford South is cheering at this Budget, I can tell you that. It is another example of this multimillionaire, out-of-touch Conservative Cabinet looking after its own, not really doing things that will lift people out of poverty and get them back into work. I contrast that with the situation in my Ilford South constituency, where almost 19,000 families are currently in receipt of universal credit or working tax credits, and more than 11,000 of those have children—53% of all the families with children in my constituency. They now face a total of almost £20 million of cuts. This Budget has done absolutely nothing to address the catastrophic impact that will have on those families, the vast majority of whom will be forced into debt and further below the poverty line.
For those with their own businesses, who are the backbone of our local economy in Ilford South, I will do what I can by launching things like my new MP business awards that will support and highlight those businesses, but the reality is that we needed the Government to step in. By refusing to step up and finally deal with the business rates fiasco, the Government have completely failed them, and many will be forced to close or make redundancies. Is this really what the Government believe will enable our country to build back better and emerge from the pandemic stronger?
This Budget was equally bleak for those in the transport sector. Having already faced a sharp drop in revenue for the best part of two years, and with passenger numbers far off pre-pandemic levels, the transport sector needed a lifesaving shot in the arm to enable it to survive. Instead we Londoners heard not a single word, let alone got a pound sterling for Transport for London, when we know that every pound spent in the capital creates jobs outside it. Capital spending announcements for the transport sector across the piece were at their lowest level for half a century. I fear announcements that I think will come this week confirming the scale of job losses across Network Rail and many parts of our rail sector—good jobs that could be lost but should be there to get people out of their cars and travelling on public transport, so that we can really start to tackle the climate crisis. This is a dire state of affairs in a sector that is crucial for keeping our country moving and enabling us to recover as quickly as possible.
The Chancellor can claim that the Tories are the public service party, but as always the devil is in the detail of his Budget. He and his party have overseen more than a decade of austerity that left us woefully underprepared to tackle the current crisis. The fact that in some areas the Budget has only raised spending back to pre-2010 levels shows how economically illiterate the austerity decade was. With so little support offered by this Government, once again, we are now facing one of the worst winter crises in living memory, alongside a catastrophic climate crisis that is growing worse every day.
Now was the chance to make the kind of real radical change that is so desperately needed—that people are crying out for. There is an alternative—one that puts everyday people and our planet at the heart of our economy. Labour would forge a green industrial revolution and a new deal for workers, and would properly back our public services to give them the support they so desperately need. But we saw none of that; instead we were presented with tax cuts for mega-rich global giants such as Amazon and incentives for gas-guzzling flights. It is a champagne Budget for the rich, devoid of any meaningful support for millions across our country. It is another smoke-and-mirrors trick from the Gordon Gekkos of the green Benches. Our country deserves better and I cannot wait for a Labour Government to deliver it.
Barbara Keeley (Worsley and Eccles South) (Lab)
You would not know from the Budget that our health and care system is in crisis, made worse by the fact that we are still in the middle of a pandemic that claimed 1,097 lives last week. One of the key factors in coping with the crisis caused by the covid pandemic has been the commitment of our health and care staff and the dedication of unpaid carers to support their family members, yet the Budget contained no costings for training and education budgets for the NHS workforce, no extra resources to improve support for unpaid carers, and no extra investment to meet the immediate needs for funding to relieve the crisis in social care.
The response to the Budget from the social care sector has been damning. Care England, which represents care providers, said there
“will be serious and far-reaching consequences”
from the lack of measures in the Budget to support adult social care. The Care and Support Alliance said:
“If the Prime Minister’s ambition to ‘fix social care’ is ever to be realised Rishi Sunak has to play his part by providing enough funding to make it happen. He hasn’t done so and therefore, unfortunately, the future of social care remains as uncertain as ever”.
There are now more than 100,000 care jobs vacant and continuing pressures on care providers, who are struggling to recruit enough staff to keep care facilities open.
The Care Quality Commission recently warned of a “tsunami of unmet need” in social care, which will in turn heap more pressure on the 13 million unpaid carers who give up so much time and energy to care for their family members, with little recognition or support. There is cross-party consensus that we need far more than the funds announced in the Budget to deal with this crisis in social care. The Health and Social Care Committee recently repeated our call for at least £7 billion a year of extra funding for social care to cover demographic changes, to uplift staff pay in line with the national minimum wage and to protect people who face catastrophic social care costs. What the Government have announced is that additional money from the health and care levy will only fund the cap on catastrophic care costs and some of the consequential costs of that, and the cap only starts to apply from October 2023. Although the Chancellor announced £4.8 billion of extra grant funding for local councils over the next three years, that is not ringfenced for social care, leaving councils to decide how to allocate it across all their cash-strapped services.
The Association of Directors of Adult Social Services said the Budget and spending review were “deeply disappointing”. It looked at the £1.6 billion a year extra and said
“it will do little more than meet the costs of the rise in the national living wage for care workers from next April.”
The Local Government Association told the Select Committee recently that the funding gap for adult social care was £6.1 billion and that this underfunding puts the workforce and unpaid family carers under further strain, creating unmet and under-met need.
For years, all we have had are sticking plasters from the Government in response to this ever-worsening crisis in social care, rather than recognition of how serious the underfunding issues are. The Budget missed an opportunity to do something about the crisis. The impact of that failure will be serious and far-reaching in social care. We have just heard my hon. Friend the Member for Kingston upon Hull West and Hessle (Emma Hardy) raising that issue, and there will be more of us standing up here, week in, week out, describing the situation she has described in her local council areas. It will be all of us.
We need immediate investment to ensure that care staff are paid a proper wage that will compete with better rates paid in retail and hospitality. What are we doing when people can be paid more for flipping burgers than for looking after an elderly person, perhaps with dementia? We need investment so that unpaid carers get the breaks and support they need after 18 months that have very much broken them, and we need investment to address that tsunami of unmet need. It is shameful that we have not paid, as other countries have, a bonus for health and care staff. Indeed, the Minister for Care and Mental Health recently said, when asked about vacancy issues, that they can work millions more hours, just as they did during the pandemic.
I have outlined the failure of the Government to put the needed investment into social care, but the final point I want to make is about the failure of the Chancellor to reverse his £1,000 cut to universal credit, which will do so much damage this winter. Three quarters of families on universal credit lose more from the £20 cut than they gain from the Budget changes. The Resolution Foundation points out that the poorest fifth of households will still be an average of £280 a year worse off overall. One constituent told me that they, like many others, had been hopeful that the cut would be reversed in the Budget. They are now fearful that throughout this winter they will have to keep choosing between heating their home and eating. They have lost £80 a month due to the cut, but their energy prices have already risen by £95 a month. It was a callous and cruel cut to make in the middle of a cost of living crisis, and a shameful aspect of the Budget.
Ian Byrne (Liverpool, West Derby) (Lab)
It is a pleasure to follow my hon. Friend the Member for Worsley and Eccles South (Barbara Keeley). Unsurprisingly, I have a slightly less rose-tinted take on last week’s Budget than Conservative Members. I see a Budget constructed by a Government who do not care about the hardships that the 15 million people and rising in poverty face.
This Budget comes from a multimillionaire Chancellor with a personal housing portfolio so large that he could potentially solve the country’s housing crisis. To him, the word “hardship” means not having a pool in his country mansion, something that he took decisive action to fix over the summer. Unfortunately, he failed to take similar decisive action for the nation in the Budget. He did not fix the issues facing millions: insecure work, an insufficient welfare safety net, low pay, a lack of safe and affordable housing and rising utility bills. They are fuelling the huge inequalities that we see in 2021.
Let us look at what the Budget means for my constituents. The average state pension is £8,000 a year, which is the lowest in the industrialised world. With the suspension of the triple lock, it is expected to rise by 3.1% from April 2022—an increase that is wiped out by inflation. The Government have refused to honour the triple lock, and the old adage “Never trust a Tory” will ring true for many pensioners.
A 1.25% increase in national insurance from April will remove between £16.7 billion and £18.2 billion a year from household budgets. The universal credit cut will leave 4.4 million families worse off by £4 billion a year, and there is still no justice for the people receiving legacy benefits who were denied the £20 uplift. The people who can least afford it will bear the brunt of the Budget while the bankers receive £4 billion in tax cuts.
My city of Liverpool continues to suffer from £500 million of cuts since 2010, which the Budget does nothing to address. Tory austerity has caused real misery in my city. A £2 million empty trinket thrown to tee up a hollow PR exercise by the Minister for the Department for Digital, Culture, Media and Sport means nothing to the many in my city who see it for what it is and who remember what the coalition Government started in 2010.
Professor Ian Sinha, a paediatrician from the fantastic Alder Hey Children’s Hospital in my constituency, points out that a train journey of 15 minutes on Merseyrail through our city region represents a 15-year difference in life expectancy. That encapsulates the inequality and its consequences that we saw even more starkly in the teeth of a pandemic. The Budget does nothing to fix them.
There are no long-term funding promises to help to combat those inequalities; indeed, further austerity is being forced through by the Government, with another £33 million of savage cuts mooted in Liverpool. Austerity is a Tory decision and a political choice that keeps people in poverty—and poverty kills. More than ever, post covid, we need the ability to invest in our infrastructure and in our social care, mental health and domestic abuse services to rebuild our communities. To tackle the health and social economic inequalities we face, we need council housing, Sure Start centres, libraries, leisure centres and education facilities fit for the 21st century, not further austerity. We need a real levelling-up, not weasel words.
Why did the Chancellor, in his much-lauded levelling up agenda, not choose a different path? Lord Prem Sikka, my good friend in the other place, has outlined an alternative vision. By taxing capital gains at the same rate as earned income, some £17 billion a year could be raised. By extending the 12% rate of national insurance to incomes above £50,000, £14 billion could be raised. Of course, a wealth tax could also raise up to £304 billion over five years. What a difference a Chancellor who followed that ideology would make to so many lives and to the future generations of our nation.
Last Saturday marked five years of Fans Supporting Foodbanks collecting food outside football stadiums in communities across the UK.
A fan who donates religiously asked me to pass on this message to the Chancellor:
“Seeing as he likes quoting the Beatles, how about this from the great John Lennon? Imagine a country where no child goes hungry. Imagine a country without food banks. Imagine a country with fairness at its heart, not inequality. Imagine a country governed for the many, not the few.”
Mohammad Yasin (Bedford) (Lab)
It is always a pleasure to follow my hon. Friend the Member for Liverpool, West Derby (Ian Byrne). Since the Chancellor delivered his sprightly Budget, promising a real-terms rise in overall spending for “every single Department”, the emerging details have given us no cause for optimism. More money for public investment, for which my Labour colleagues and I have been asking for over a decade, is welcome. However, that every announcement was for the biggest sum in a decade only exposes how the Tories have starved every element of the public sector every year since they came to power.
My constituents have not forgotten the decade of Tory decimation of our public services. Although the Chancellor may finally have come around to Labour’s way of thinking, all his funding announcements have achieved in real terms, whether on education, local government or justice, is to take us back to pre-Tory Government spending levels. Despite his promises, public services will still be underfunded and under pressure. Given the Government’s habit of handing out profitable contracts to the private sector with little, if any, scrutiny or accountability, we cannot assume that any increases will ever reach frontline services.
The pandemic exposed how fragile local government services have become since 2010. From the public’s perspective, every public service is in crisis. Whether someone is trying to get a doctor’s appointment or a hospital appointment, trying to access the courts system, trying to get the police to come out to a burglary or anti-social behaviour in their community, or trying to access social care or council housing, the lack of investment in local government and public services has decimated communities and damaged the social contract between government and citizens. Taxes continue to rise, and people know that they are getting less in return.
The Chancellor promised bold action to address some of the problems caused by his Government, but the £5.4 billion from the health and social care levy will not kick in for three years. The social care crisis needs addressing now. The end of the public sector pay freeze is totally offset by the spectre of rising inflation and the looming cost-of-living crisis, with tax hikes for workers and tax cuts for banks and big business. What the Chancellor gave with one hand, he took away with the other, and the majority of us will take the hit for both.
One of the most astonishing aspects of the Budget was that, just days before the most important climate conference in a generation, the Chancellor failed to mention “climate” or “environment” once. Green transport is key to reaching our net zero targets, and a green rail network must be part of that ambition. The Treasury will continue to plough billions into the UK’s rail network to help train operators to cope with a fall in passenger numbers because of covid-19, but the funding falls way short of what is needed to level up local economies and decarbonise the transport system.
What a wasted opportunity it is that the Chancellor refused to commit to electrifying new rail infrastructure such as East West Rail from day one. Instead of encouraging domestic clean-energy rail use, he cut passenger duty on domestic flights and froze fuel duty. The Budget was a wasted opportunity to build a truly optimistic, sustainable future and meet the future needs of the country.
Yasmin Qureshi (Bolton South East) (Lab)
Last week, the Chancellor came into this Chamber with great optimism, but many of us needed to hear much more than just hot air. Instead, we ended up with a Budget that the shadow Chancellor, my hon. Friend the Member for Leeds West (Rachel Reeves), has described as offering
“no plan to tackle the growing cost of living crisis”,
and doing nothing to remove the enormous tax burden that the Government have put on working people.
More than 13,000 families in my constituency have just been hit by the devastating cut to universal credit, taking £1,000 out of their pockets. While we welcome the fact that the Government have followed Labour’s lead and reduced the taper rate, the Chancellor will know that nearly one quarter of universal credit claimants cannot work because of disability or caring responsibilities. What does he have to say to them as they face an incredibly difficult winter off the back of the biggest ever cut to our social security system?
The Joseph Rowntree Foundation estimated that the changes to the universal credit taper rate would fail to cover the rise in energy costs, national insurance and inflation for many families. Can the Minister tell the House how many children will be pulled into poverty thanks to his Government’s £1,000-a-year cut to universal credit? Even before that cut, one in eight working households lived in poverty in the United Kingdom.
The Resolution Foundation found that taxes on working households would increase by £3,000 or more after this Budget compared with when the Prime Minister first entered office. Yet bankers get tax relief, and the grossly undertaxed Amazon and online retailers escape again. This Government do not care about the growing cost-of-living crisis. The Chancellor gleefully boasts about how his economic policies are working, but I want him to tell that to the families in Bolton who are struggling to make ends meet after the £20 cut to universal credit, or the nurses who will be hit by a pay cut as inflation rises.
The money for local government is meagre compared with the £15 billion of cuts to local authorities since 2010 and the punishing effect that that will continue to have on social care, blocking more NHS beds as care homes close. What about the other, less visible services, such as those covering squalid prisons, delayed courts, excluded children and those children who cannot get to child and adolescent mental health services? Working families needed a plan to boost pay across the whole economy, but instead, after 11 years of this Government, they got a triple whammy of tax hikes, fast-rising energy and food bills, and a universal credit cut that was tweaked, not reversed.
I welcome the fact that the Chancellor has listened to the campaign from me and my university for priority funding to be given to the Bolton College of Medical Sciences partnership bid, which will add a huge amount to our local economy and provide jobs. However, £20 million was only half the bid. We asked for £40 million. I must declare an interest here, since the University of Bolton is in my constituency and this year awarded me an honorary doctorate, but that is not why I am pushing for the money—this is something I have been campaigning on for many years with the university. I remind the Chancellor that the towns fund gives back only a tiny proportion of what this Government have stripped away in cuts to our councils, which has seen spending cuts of £16 million over the past 11 years for Bolton Council alone.
While we sit here in the Chamber, in Glasgow, we are hosting the world at COP26. Yet the Chancellor did not mention climate change once in his speech—neither its impact abroad nor its impact at home. Where is the commitment to funding flood defences? In my constituency yesterday, the Environment Agency issued a flood warning. These communities have suffered year on year and they live in abject fear of flooding.
I have raised this question in the House for a number of years. I brought a petition to the House, I went to the Prime Minister—to 10 Downing Street—with a petition, and I have asked Ministers in the Department for Environment, Food and Rural Affairs to come to see the area in my constituency that gets flooded. To date, no Minister has bothered to attend my constituency to see that, and no money has been given. We are told that some money will be given, but when I last spoke to the Environment Agency locally, it said that there has been no firm commitment. We need £5 million to build flood defences in Bolton, and I ask the Chancellor to consider providing that.
There are many other things that I could say about the Budget, but I will end with a short plea. Many Members will know that for the last nine years I have campaigned for the victims of the hormone pregnancy test Primodos and their families. Their battle has been long, and they are often compared with the forgotten thalidomide victims. Last year, an independent review by Baroness Cumberlege, a former Conservative Minister, found that victims of Primodos, mesh and sodium valproate had all been negligently harmed by their medical treatments. The review recommended that a redress scheme should be set up to compensate the families. To date, the Government have not done that.
The Chancellor has constituents affected by this issue; many years ago, when he was not a Minister, he approached me to register his interest in the all-party parliamentary group on hormone pregnancy tests. The Prime Minister has constituents affected by it, too, as do Mr Speaker and the Leader of the House. Will those Ministers work with the Department of Health and Social Care to set aside funds for a redress scheme?
These people have suffered for decades, through no fault of their own but because of Government negligence and cover-ups—I do not mean this Government; successive Governments have failed to deal with the issue since the ’60s, ’70s and ’80s—and there is now an opportunity. The review was set up by the former Prime Minister, the right hon. Member for Maidenhead (Mrs May). It clearly recommended redress for these families—for all three groups of victims—yet, to date, the Department of Health and Social Care has done nothing and the Treasury has done nothing. I ask the Chancellor to consider this issue. It is time we did the right thing and supported these people.
Alex Sobel (Leeds North West) (Lab/Co-op)
It is a pleasure to follow my hon. Friend the Member for Bolton South East (Yasmin Qureshi).
Let me start by talking about the impact of the Budget on Leeds, and particularly Leeds City Council, which has seen a £328 million real-terms cut in its budget compared with 2010, the last year of the Labour Government. That is £328 million cut from frontline services for the people of our city. I was pleased when the Chancellor announced an increase in local transport funding for Leeds and West Yorkshire, but on closer inspection, it is clear that the money that is promised will do very little to plug the funding black hole created by 11 years of Conservative cuts.
For Leeds, the Chancellor’s statement was marked more by what was not said than by what was. There was no mention of the integrated rail plan for the north, now 10 months overdue, and no mention of the infrastructure needed to connect our towns and cities. Unsurprisingly, my call to electrify the Leeds to Harrogate rail line, which has been announced twice and revoked twice by successive Conservative Governments and which I would describe as a golden opportunity to level up communities up and down the line between Leeds and Harrogate and up to York, to get the city moving and get workers into jobs, was missing yet again.
The claim that there will be a real-terms rise in core spending power is interesting. After a decade of slash-and-burn austerity, Leeds—like many other towns and cities, as we have heard—is in desperate need of funding at least on a par in real terms with what we saw in 2010. However, the Chancellor has been very light on details. There is barely any indication of how much new money councils will receive for services, or how much will be given to cover the deficit caused by a decade of Tory rule.
That is compounded by the fact that councils could not furlough their workers during covid. Those workers worked on the frontline, with no additional funding, because of the cost pressures that councils were under. There are now significant cost pressures on Leeds City Council, and a further loss in frontline workers. Frontline workers who worked to save lives during covid are being repaid by cuts, which means that their jobs will go.
I would also like to comment on the lack of announcements regarding tourism and hospitality. Tourism to the UK is down 97% compared with before the pandemic and is the second-worst-hit sector in terms of unemployment, yet the Chancellor did not mention tourism once in the Budget—not once. Time and again, I have stood in this House and asked the Chancellor why his business rates relief scheme fails to extend to huge parts of our tourism industry. Last Wednesday, I came in hope of hearing something different. My hopes were dashed. The Chancellor has not listened to the industry. Thousands of businesses, and millions of workers whose livelihoods are at stake, were not being supported that day.
I was hopeful that the Chancellor would change the reductive eligibility criteria for business rates support, criteria that deny crucial support to tourism businesses without physical customer premises. I was hopeful that travel agents, coach operators, fairground operators, language schools, tour guides and event organisers—groups that the pandemic and Government restrictions have absolutely devastated—would finally receive some good news. The continuation of the business rates relief scheme, albeit at a reduced rate of 50%, provides a degree of reassurance to some businesses, but the fact is that 600 English language schools, 900 tour operators, 2,125 coach operators, 300 event organisers—I could go on and on—will continue to be denied support. The implosion of international tourism made those businesses vulnerable, far too many to the point of collapse, and the Government failed to provide them with vital support.
It is not just business rates, however. The Chancellor’s Budget failed to make any mention of retaining the current VAT rate for tourism and hospitality businesses in the UK, an ignorant oversight which serves only to compound the struggles that the tourism industry and holidaymakers in the UK are currently enduring. It is also about climate action. Supporting domestic tourism means fewer people flying longer distances. Make no mistake, the cut to air passenger duty on domestic flights is not about supporting British tourism or British tourists. It is not ordinary people who take unnecessary short-haul flights in the UK, but business executives and occasionally the Prime Minister, who, it transpires, is flying back from COP26 in Glasgow to London, rather than taking the train like the rest of us.
The Government claimed to support business, promised to deliver recovery and committed to net zero emissions, but—I apologise for what is now a tired cliché—actions speak louder than words.
Ruth Jones (Newport West) (Lab)
It is a pleasure to follow my hon. Friend the Member for Leeds North West (Alex Sobel). I am grateful for the opportunity to speak briefly in the final day’s debate on the Budget 2021. Sadly, the Budget does little to help the hard-pressed communities in Newport West who are suffering from the worst effects of more than a decade of Tory austerity. This is not a Budget for working people; it is a budget for the banks and the bankers—or, otherwise put, those who fund the Tory party. Thousands of working people in Newport West will be forced to fork out for the national insurance tax hike next year, but the banks, thanks to this Prime Minister and this Chancellor, are getting a £4 billion tax cut.
The people of Newport West, like many across the country, are facing a cost-of-living crisis now, but there was nothing in the Budget to address the crisis. There was nothing to help people with heating their homes, nothing to help people with filling their cars and no help for people with feeding their families. That is why Labour in Government would cut VAT on energy bills for at least six months and that is why we would tackle the cost-of-living crisis from day one.
The spending review makes provision for an extra 8,000 police officers, as part of the overall commitment to hire 20,000 new officers. Yes, that is to be welcomed, but even if the Government meet their target, police officer numbers will still be lower than they were in 2010, as over the last 11 years the Tories have cut police numbers by 21,000. Now, I am not a mathematician, but even I know that that is an overall net loss.
I am not even going to begin to talk about the pay freezes and below-rate-of-inflation pay awards to our hard-working public sector staff. So much for recognising and rewarding our amazing key workers.
It is, frankly, a disgrace that online giants such as Amazon will get a £12 billion tax cut when some of the poorest in our country are forced to pay more. People with the broadest shoulders should be paying their fair share of tax, not the hard-working people who will end up paying an extra £1.7 billion over the next five years under this Tory Government.
Like many local people in Newport West, I am desperately concerned that there was no real attempt to address the impact of the cruel Tory cuts to universal credit, which was the biggest overnight cut to welfare since world war two. Millions of people, including over 9,000 families in Newport West, have had their universal credit cut, which has had a devastating impact on families here and across Wales. We will not let the Tory Ministers forget that. Although I welcome the decision to cut the universal credit taper rate from 63p to 55p, it still means that a single parent claiming universal credit on the minimum wage will lose an estimated £361 next year. That is unacceptable and I say to the people living in Newport West: I will keep fighting to cancel this cut.
There was little in the Budget to help the poorest in the world. There was little action to preserve our planet and protect our environment, and there was nothing to mitigate the worst impact of the failing and unravelling Tory Brexit deal. I am proud that Labour would take a fairer and wiser approach to our public finances, not wasting billions of pounds of taxpayers’ money by handing out dodgy PPE contracts to mates and contacts on WhatsApp. After a decade of faltering growth and broken Tory promises, Labour would get the economy firing on all cylinders and get our country back on track.
Margaret Greenwood (Wirral West) (Lab)
This Budget was a big disappointment for the millions of people who are worried about the cost-of-living crisis. It failed to provide sufficient funding for public services that have been devastated by over a decade of Conservative austerity, and it failed to address the climate emergency.
The Office for Budget Responsibility warned that the cost-of-living crisis could rise at its fastest rate for 30 years, yet the Chancellor failed to raise the minimum wage to at least £10 an hour, which the Labour party committed to do by 2020 back in 2017. He could have kept the £20 uplift to universal credit in place, helping 6 million households across the country, but he chose not to. Instead, he gave a £4 billion tax cut to banks and a £12 billion tax cut to online giants. Numerous charities and civil society organisations, including the Joseph Rowntree Foundation, the Child Poverty Action Group and Action for Children, campaigned for the £20 uplift to remain in place. Labour won two votes in the House earlier this year calling on the Government to cancel the cut. Shamefully, on both occasions, the Government whipped their MPs to abstain.
The Government will point to changes to the work allowances and the taper rate, but the Disability Benefits Consortium pointed out that
“nothing is done at all to help disabled people who are not in work”—
and this is
“particularly concerning, given that employment rates are much lower for disabled people than for the general population, while for many, their disability or health condition mean that paid work is not a realistic prospect.”
Let us not forget, too, that 6 million households have been hit by the Conservatives’ cut to universal credit, but less than a third of that figure—just 1.9 million households—will benefit from the changes to work allowances and the taper rate.
The Government are failing schools, too. The National Education Union has described the additional money for education recovery—just £1.8 billion of new funding —as “completely inadequate”, while the Government’s former education recovery commissioner, Sir Kevan Collins, called it “incredibly disappointing”. He said:
“The short-term saving offered by a limited recovery programme will be dwarfed by the long-term cost of successive cohorts leaving education with lower skills, an effect that will be most apparent in our poorest communities.”
The Chancellor announced that, coupled with spending increases announced in 2019, the extra money for school funding would
“restore per-pupil funding to 2010 levels in real terms”—[Official Report, 27 October 2021; Vol. 702, c. 278.]
However, as the National Association of Head Teachers rightly pointed out, this merely
“represents a failure to invest in children’s futures for over a decade.”
When it comes to local authorities and the provision of essential services, it is a similar story. Conservative austerity has taken its toll on Wirral. Between 2010-11 and 2019-20, it cut central Government funding for Wirral Council by 85%. According to the Local Government Association, the funding for local authorities announced in the Budget will not help councils to meet all the extra cost and demand pressures they face just to provide services at today’s levels. The LGA has also expressed disappointment that there is no additional funding
“to address existing pressures on adult social care services”
and that public health funding has not been increased. The LGA is among those to have pointed out:
“The potential rise in local government core spending power over the next three years will also be dependent on councils increasing council tax by 3% per annum”—
so local people will again feel the effects of central Government cuts, the burden of which the Government are passing on to councils.
The crisis in adult numeracy and literacy skills must be addressed as a matter of urgency. Although the Chancellor partially acknowledged that with the announcement of a new UK-wide numeracy programme to improve basic maths skills, the funding fell well short of what is needed. On its Twitter account, the Treasury posted that it would
“help up to 500,000 adults improve their numeracy”,
which falls far short of meeting the needs of the 17 million adults in the UK who the Government’s own figures suggest have the numeracy level expected of primary school children. And where were the funds to address the adult literacy crisis? The National Literacy Trust estimates that more than 7 million adults—16.4% of the adult population—have very poor literacy skills. Where is the Chancellor’s ambition to help them?
With COP26 under way at a critical moment for our planet, the Chancellor announced, astonishingly, that he would cut taxes on domestic flights—an irresponsible act that particularly insults young people and those who are most affected by climate change around the world. The OBR has estimated that it will result in 410,000 more passenger journeys a year at the very time when our Government should be showing leadership on the international stage. The Chancellor also failed to increase international aid to 0.7% of gross national income, once again letting down the world’s poorest people.
Although there was extra money for the NHS, what the Chancellor failed to mention was that if the Government’s Health and Care Bill becomes law, from next April the structure of the NHS will fundamentally change. Instead of a national health service run as a public service in England, there will be approximately 42 local health and care systems, each based on a business model, with major opportunities for big business to take over the delivery of services instead of the NHS. If that is allowed to happen, we will increasingly see large amounts of public money that should be spent on public care going into the pockets of shareholders, as my hon. Friend the Member for Norwich South (Clive Lewis) expressed so eloquently. We will also see increasing numbers of health service staff no longer able to work for the NHS and thus ineligible for “Agenda for Change” rates of pay.
This Budget fails to give local councils the funding that they need to deliver crucial public services after over a decade of Conservative austerity. It fails to tackle the growing cost-of-living crisis and fails to address the urgency of the climate crisis. The Chancellor talked of
“a new age of optimism”—[Official Report, 27 October 2021; Vol. 702, c. 274.]
It might be, for him, but for far too many, this Budget fails to deliver.
Kate Osborne (Jarrow) (Lab)
It is an honour to follow my hon. Friend the Member for Wirral West (Margaret Greenwood).
This is a Budget that has nothing to do with levelling up or building back better; it is the same old Tory economic policy that will squeeze people on middle incomes while giving a tax cut to the super-rich. How can the Chancellor justify cutting taxes for the super-rich while increasing national insurance contributions? The consequence will be that a person on an average income can expect their real income to fall next year once tax increases and inflation are taken into account. Alongside falling incomes, there will be rising energy prices, rising council tax, the withdrawal of furlough, continued use of the disgraceful practice of fire and rehire, and the axing of the £20 universal credit uplift.
This Budget does nothing to mitigate those issues. It risks leaving the vast majority behind in pay and in the public services that we all rely on. We should have seen reforms in it to create a fairer tax system in which the wealthiest in our society pay a fairer share through a wealth tax that helps to fund public investment to create good green jobs and a net zero economy. Instead, we have seen no action on the climate emergency—in fact, the Chancellor has opted needlessly to cut taxes on domestic flights. In the week of COP26, that is just astounding, as is the Prime Minister’s decision to fly to Glasgow rather than use the rail network.
Although there are some changes in the Chancellor’s Budget—such as the reduction in the universal credit taper and the rise in the minimum wage to £9.50 an hour—that will have some impact on incomes, sadly they will not be enough. The public sector pay freeze should be truly ended with an above-inflation rise and the minimum wage should be lifted to the level of a real living wage that people can survive on.
Despite the claims of levelling up, this Budget offers nothing to get our key public services back to where they were before 2010. The Government have said that spending on schools will return to 2010 per-pupil levels by 2025. That means that there has been no extra investment in our children’s education for 15 years, despite what the Secretary of State for Education said earlier today.
Even the funding planned for the NHS falls well below what has been delivered in the past and what many believe is needed now. Since 2010, the Government have put in less than half of the NHS’s historic spending growth rate of 3.6% per year since its creation. After more than a decade of cuts and the pandemic, our services are under enormous strain, and it is showing. Our public services are crucial to improving people’s everyday lives, and they are key to creating a more equal and just society.
This Budget was a missed opportunity to increase living standards for the many, to improve our public services and to invest in our communities. It does very little for the north-east and for constituencies such as Jarrow, where levelling up is still something of which we have yet to see any evidence.
Rachel Hopkins (Luton South) (Lab)
I refer to my entry in the Register of Members’ Financial Interests.
After a decade of austerity, and in response to rising living costs, inflation and debt, our communities needed targeted economic support to ease the pressure, but that has not been forthcoming. Instead, workers will be asked to bear the burden of paying for the economic crisis through a rise in national insurance from next April, and through local authorities being forced by this Conservative Government to increase council tax to pay for vital local services, including social care.
Paul Johnson of the Institute for Fiscal Studies has said that the outlook for living standards is “actually awful”, with
“High inflation, rising taxes, poor growth keeping living standards virtually stagnant for another half a decade”.
It is a matter of priorities—tax hikes for workers and tax cuts for banks. It is the Conservative party helping its friends in the City, at the expense of our communities and public services. Rising inflation will exacerbate the situation: economists have stated that inflation will average 4% and could go as high as 6%. With that in mind, public sector workers, who deliver important public services and who are taxpayers, urgently need answers on what the spending review’s pay announcement actually means in practice. After 11 years of sustained pay freezes and, in effect, pay cuts in the public sector, the Government could have committed themselves to a real-terms pay increase for public sector workers to address rising inflation and the cost of living. The announcement on public sector pay is a con. By failing to commit themselves to a real-terms increase and asserting that they do not want to “prejudge” independent pay review processes, the Government caused their announcement to lose all legitimacy.
This Government have a track record of completely ignoring pay review body recommendations. Let us look at the prison officers’ situation. Last year’s recommendations from the Prison Service Pay Review Body included a £3,000 pay rise for band 3 officers on the new contracts. The Government rejected the experts’ advice, stating that it was unaffordable. That leads to the other issue: the Government do provide indicative advice on the overall remit of pay review bodies. This is all just smoke and mirrors, as it is not a case of prejudging: nothing is stopping the Government from advising that a real-terms increase for public sector workers is appropriate.
We also need to hear more from the Government on civil service pay. The hundreds of thousands of civil servants do not have a pay review body, and rely on the Treasury to determine a pay rise; but, as we all know, when it comes to a spending review the devil is always in the detail. In this case, the autumn spending review confirms cuts
“of 5% against day-to-day central departmental budgets in 2024-25.”
The Public and Commercial Services Union has expressed concern about the suggestion in the spending review that the Government want to cut
“non-frontline civil service headcount to 2019-20 levels by 2024-25”,
saying that that could mean about 32,000 jobs being cut.
Will the Minister tell us in his closing remarks how many civil service jobs are expected to be cut as Departments are forced to make 5% savings, and whether the cut in running costs and jobs will in part be used to cover any public sector pay increase? Cutting the jobs of the civil servants who work, live and spend in our communities, such as those in Luton South who work for the Department for Work and Pensions, Her Majesty’s Courts and Tribunals Service and Border Force, will hamper any meaningful strategy to improve economic growth and living standards.
The Government need to change their priorities and root the recovery in our communities and workers’ prosperity. Lifting public sector workers’ living standards will have a positive knock-on benefit, contributing to the distribution of growth across all our communities and the country. It is time to change tack, and back our public sector workers to back our economic recovery.
Margaret Ferrier (Rutherglen and Hamilton West) (Ind)
I am pleased to be able to speak to some of the ways in which this Budget will impact on my constituents in Rutherglen and Hamilton West. The Chancellor made some welcome announcements last week, and I would like to acknowledge them. They include the increased funding for Scotland, some aspects of the changes to the universal credit taper rate and raising the national living wage. Unfortunately, though, it is yet again the most vulnerable in society who will be feeling the deepest cuts.
The changes to the universal credit taper rate provide some support for claimants who are working and in a position to increase their working hours, but this does not make up for the removal of the £20 a week uplift, which was a lifeline for millions across the UK. Like many colleagues, I wrote to the Government several times about the uplift, and on Friday I received a response to a letter that I had sent 17 weeks earlier on 8 July, advising me that no impact assessment had been made of what that cut would mean to millions of people. Will the Chancellor instruct his officials to make that assessment now, so that we can see how it tallies up with the taper rate changes?
The change helps only a portion of claimants, so what is being done for those who cannot work, for reasons outwith their control? What about the single parents whose childcare does not stretch far enough for them to increase their hours? What about those on zero-hours contracts whose income is dependent on the whims of their employers, or those whose disabilities prevent them from working, either altogether or more hours? This is just a small sample of the situations that our constituents can find themselves in and that become barriers to work. They are no more immune to the rise in inflation and the cost of living than the rest of us.
Likewise, the rise in the national living wage is welcome, but why is it only for those over the age of 23? How much of that money will really see the inside of people’s pockets? The Chancellor made a clever decision when he announced the health and social care levy in September, negating the need for it to be included in his Budget. That will certainly eat into any gains that the wage increase provides, and in Scotland, while income tax levels are set differently from England’s, for most that will mean an additional percentage point deducted from their income. So when we consider rising inflation, additional taxes and mounting energy costs, for those in my constituency this is not the generous gift that the Chancellor would have us believe. It is less than the bare minimum he could have provided.
Speaking of energy costs, I was disappointed that no relief was offered by the Government as we move into what will undoubtedly be a long and difficult winter. It was anticipated that we would hear that VAT would be reduced on household energy bills—a move that it was in the Government’s gift to provide. Mounting costs, coupled with suppliers going bust, make this an issue that I am contacted about regularly. The VAT charged on household bills is money that goes to the Treasury, not the suppliers. I was unsurprised on Friday to read that Ofgem will be reviewing the current price cap
“to ensure that it appropriately reflects the costs, risks and uncertainties facing suppliers.”
Can we correctly assume that this will see another historic rise in prices? Will the Chancellor commit now to ensuring that any rise does not push people further into poverty?
It is not just households that are facing unaffordable energy costs. Last month, I was contacted by a constituent who owns a much-loved business in the constituency. It is so well-established that next year will mark its centenary, but my constituent is worried that the celebrations will be marred by the greatest financial risk to the company in his lifetime. He is just had to renew his energy contract, which is not capped for businesses, unlike those for households. The contract he has had to sign increases his energy bill by around £30,000 a year—a 500% mark- up—and the out-of-contract costs are even higher. What support is the Chancellor going to provide for small, family-owned businesses like that of my constituent, to ensure that they do not have to close their doors or let staff go just to keep the lights on?
I am grateful to the Chancellor for coming to the House and setting out his Budget. It is not an easy job, and it is one that I am sure most of us do not envy, but for my constituents there are still outstanding questions that desperately need answers, which I hope he will be able to give.
Richard Burgon (Leeds East) (Lab)
It is a pleasure to follow the hon. Member for Rutherglen and Hamilton West (Margaret Ferrier). I want to make special mention of my hon. Friend the Member for Leeds North West (Alex Sobel), who made so many important points about how this Budget affects our city. We have heard so many stories of damage to communities across the country by Tory economic policies. It should not be like that, not in one of the richest countries in the world. Ours is one of the richest countries, but day to day that seems almost like a fantasy to people in my community and across the country, because they do not feel that they share in that wealth.
The aim of this Budget was clear: to make working people pay for a crisis that they did not cause. That was exactly what was done in 10 years of austerity after the banking crisis, and it is exactly what is being done now. The Government have chosen to hit working people with tax hikes and benefit cuts, while slashing taxes on the bankers. Make no mistake: this was a clear and deliberate political choice.
But there is an alternative: the Government could have chosen to impose a wealth tax, raising billions from the super-rich, who have increased their wealth by more than £100 billion during this crisis. Are we to say that it is impossible? [Interruption.] I see the Tories grinning at the prospect of making the richest people in society pay their fair share. Are we saying that that is impossible? [Interruption.] They are grinning, some of the ones who are not wearing masks, as we can see over there. Instead, the Government have chosen to stand side by side with the super-rich, who fund their party—many who lined their own pockets with corrupt covid contracts during this crisis. I want the Chancellor to be clear on something: we are going to build a mass movement for a wealth tax on the super-rich, because it is time that those who have got away with rigging the system for so long actually pay their fair share.
The second point I wish to make is that this Budget was a chance for the Government to put their money where their mouth is and fund a green transition to avoid climate catastrophe, which is the greatest example of free market failure. We needed a green new deal that created millions of decent, unionised, green jobs, transforming the basis of our economy while preparing us for the challenges of the future. Instead, the Government’s pledges fall tens of billions of pounds short of the levels of green investment we need to hit our carbon targets. So many people watching at home were shocked—they thought they had misheard—when in the Budget the Chancellor announced that he was slashing taxes on UK internal flights. People could not believe their ears. The Government are also sanctioning new oil and gas fields. We should be tackling the high-polluting lifestyles of the wealthy, which are fuelling the climate crisis. That is why I have called for a tax hike on the incomes of the richest 1%—those on more than £150,000 per year.
Just as the claims we used to hear of the “northern powerhouse” a decade ago were complete hot air, the Tories now want to fob people off in areas such as mine in east Leeds with bogus claims of “levelling up”. The Tories are not levelling up; they are not even levelling back to where we were before they took their axe to local services—to youth clubs and Sure Start centres. In my city, for example, since 2010 Leeds City Council has had cumulative cuts of more than £2 billion, and the same is happening in communities across the country. Yet now the Chancellor has refused a levelling-up bid to redevelop the Fearnville leisure centre in east Leeds to make it a wellbeing centre fit for the needs of my community. My constituency is one of the most economically deprived in the whole country, so it deserves the Government’s backing for that levelling-up bid, but they refused to back it. Instead of investing in our areas, the Government have chosen to hand out tax cuts to bankers. That is an appalling decision, but I say to the Chancellor that he still has time to change his mind on the levelling up bid for the Fearnville centre in east Leeds.
Lastly, I wish to make the point that the Government are leaving people to sink when faced with a deepening crisis. As we have heard, the Chancellor, ahead of his Budget speech, talked of an “age of optimism”. That just shows how out of touch the Government are. The IFS estimates are that over the next five years household income is expected to barely grow, at just 0.8% per year. That comes after workers have already faced the biggest stagnation of wages since the age of Napoleon. There should have been an emergency plan, to get people through the winter. That means that free school meals should have been extended.
The cut to universal credit, which affects more than 14,000 families in east Leeds, should have been restored. There should have been a windfall tax on fossil fuel companies such as BP, which today announced huge increases in profits, to fund a one-off winter fuel payment to help every household in the country through the winter.
At this Budget, the Tories had a chance to stand with ordinary people who face an unprecedented crisis. They chose to stand aside. The rhetoric of the Conservatives may have changed, but their callous disregard for ordinary people has not changed and remains constant.
Bridget Phillipson (Houghton and Sunderland South) (Lab)
It is a privilege to respond for the Opposition as we conclude our debate on last week’s Budget.
Politics is about priorities, and that has been made crystal clear in not only today’s debate but the Chancellor’s Budget. The economic recovery is far from secure; the cost of living is soaring; supply-chain chaos is putting businesses under strain; and the big challenges that face our country and, indeed, our planet need leadership.
I thank all my right hon. and hon. Friends on the Opposition Benches, who have spoken with such passion on behalf of their communities and their constituents in challenging this inadequate Budget. I thank my hon. Friends the Members for Bootle (Peter Dowd), for Bradford East (Imran Hussain), for Battersea (Marsha De Cordova), for Norwich South (Clive Lewis) and for Makerfield (Yvonne Fovargue). I thank my right hon. Friend the Member for Hayes and Harlington (John McDonnell), my hon. Friend the Member for Harrow West (Gareth Thomas) and my right hon. Friend the Member for Walsall South (Valerie Vaz). I thank my hon. Friends the Members for Brighton, Kemptown (Lloyd Russell-Moyle), for Nottingham East (Nadia Whittome), for Sheffield, Hallam (Olivia Blake), for Newcastle upon Tyne Central (Chi Onwurah), for Kingston upon Hull West and Hessle (Emma Hardy), for Ilford South (Sam Tarry), for Worsley and Eccles South (Barbara Keeley), for Liverpool, West Derby (Ian Byrne), for Bedford (Mohammad Yasin), for Bolton South East (Yasmin Qureshi), for Leeds East (Richard Burgon), for Leeds North West (Alex Sobel), for Newport West (Ruth Jones), for Wirral West (Margaret Greenwood), for Jarrow (Kate Osborne) and for Luton South (Rachel Hopkins). Sadly, it was a little bit quieter on the Government Benches today and they ran out of Members who were willing to defend their out-of-touch, high-tax, low-growth Budget.
Let me start with the verdict of Paul Johnson of the Institute for Fiscal Studies on the outlook for living standards. He said:
“This is actually awful… High inflation, rising taxes, poor growth keeping living standards virtually stagnant for another half a decade”.
As we have come to expect from this Government, Ministers fail to accept any responsibility, working harder on their excuses than on solutions. It now costs £15 more than it did last year to fill an average car with a full tank of petrol; heating bills have already gone up by £140, with more rises to come; and the cost of a typical family food shop is set to increase by more than £180 next year—assuming that people can find everything they want on the shelves. Almost everything is more expensive, yet the Budget has only made matters worse.
The Resolution Foundation has highlighted how, by 2026, taxes will reach an additional £3,000 per household compared with when the Prime Minister took office. The Chancellor could have cut instead VAT on domestic heating bills to zero for the next six months, as we urged. Labour’s retrofitting plan would have helped to bring 19 million homes up to standard, cutting heating bills by an average of £400 a year. These are practical ideas to support pensioners and families through the long winter months ahead.
We all know that Ministers are making the cost-of-living crisis even worse for 6 million people with their cut to universal credit. It is appalling to remove £20 a week from people who already have so little, yet it is also so revealing. We welcome the change to the taper rate, but let us be clear: while the Government give with one hand, they take far more with the other. Six million households were hit by the cut, yet fewer than a third of them will get anything from the change. The Budget does nothing to help millions of hard-pressed families who are working hard on modest incomes and face a cost-of-living crisis this winter, and there is nothing for pensioners who are worried about skyrocketing gas and electricity bills.
The reason why the Conservatives are increasingly a high-tax party is that they have been a low-growth Government, and that will continue. The Budget confirmed anaemic medium-term growth forecasts, with growth falling to an average of 1.5% in the final three years of the forecast. There is no plan for growth—not now, not next year and not for the past 11 years.
The Government have again missed another target on research and development spending, which is central to boosting our economy. As the OBR reported, the measures announced at the Budget make no material difference to the path of business investment. Real wages are on course to be lower in 2026 than they were even before the global financial crisis.
This Budget needed to support British businesses, as they will power our economic recovery, and this Government were elected on a manifesto committed to fundamental reform of business rates. In fact, the last four Tory manifestos have promised action on business rates, and every time they have failed to deliver. The Treasury started the review last summer and it has failed even on its own terms. Businesses were promised real change, not tinkering at the margins. The challenge facing our high streets is real and it will not disappear. In fact, it was the new Chief Secretary to the Treasury who once wrote in 2018 that he was also very frustrated by the then Conservative Chancellor’s failure to abolish business rates. He wrote:
“We need to do better, and this means the Chancellor has to up his game. Too often since his appointment, he has shown a tin ear to the concerns of precisely the sorts of people the Conservative Party ought to be championing.”
He said that the Chancellor had a duty to listen and to act. That is absolutely right. We have a new Chancellor, but the same old problem. Perhaps the right hon. Gentleman should have a word with his boss to try to sort this out. Labour will do what this Chancellor and his predecessors have failed to do: we will replace business rates with a fairer alternative fit for the 21st century, levelling the playing field with the online competitors.
Also buried in the Budget documents is a stealth raid on self-employed people, meaning that they will have to pay an extra £1.7 billion over the next five years. Let us never again hear the Tories claim to be the party of business. When the Prime Minister said, “Eff business,” I thought that it was a quip; now I know that it is Government policy. Today’s Labour party will work with businesses. This Government want to blame them. This Government are falling well short of what is needed to address the key challenges facing the country. The Chancellor spent more of his Budget talking about cider than the climate. As the OBR has revealed, stalling action in this crucial decade could double the overall cost to our economy. The insufficient action from the Government is unfathomable.
Duncan Baker (North Norfolk) (Con)
I have heard some of the contributions from the Opposition this afternoon. I just wonder what planet they are on. We were told that we would have a recession that was deeper than that of the second world war. Instead we have an economy that is rebounding the fastest in the G20. Can the hon. Lady explain how the economy is actually giving us a recovery better than any economist ever predicted?
Bridget Phillipson
Let me say to the hon. Gentleman that sometimes when the Whips come calling and they have a piece of paper that they would like you to read out in the Chamber, just say no. We have had far, far further to climb because of the massive hit to our economy—the worst of any advanced nation. Much of that, sad to say, comes down to the Chancellor’s resistance to adopting the measures that were necessary back last autumn to control the virus.
Labour has set out our climate investment pledge not only to get us on track with our commitment, but to avoid greater costs in the future and to ensure that we can seize opportunities, too. That means developing our domestic hydrogen sector, greening our steel industry, building the cycle lanes and infrastructure, creating new jobs to retrofit homes, ensuring that electric vehicles and their batteries are manufactured here, and that all our families can enjoy the local environment, clean air and open space. We are ambitious for Britain to lead the world with the jobs and technologies of the future, creating prosperity and opportunity in every corner of our country. Under Labour, we will work with business and trade unions to make this a reality.
Jacob Young
Just before the hon. Lady concludes her remarks, I just wanted to give her the opportunity to welcome Sunderland’s levelling-up fund bid, which was granted by this Government.
Bridget Phillipson
Absolutely. I supported the bid, so of course I welcome it; that is hardly a revelation. I will always welcome additional investment coming to my constituency, although I notice that the hon. Member for Sedgefield (Paul Howell) is also in his place, and I am sure that, like me, he was disappointed that our restoring your railway fund bid to look at reopening the Leamside line, which would create benefits for the wider north-east, was sadly knocked back by his Government. I am afraid that it is not entirely good news for Sunderland and the north-east.
Paul Howell (Sedgefield) (Con)
I absolutely agree that we need to take another look at the Leamside line, but I would like to come back on your comments about Labour being interested in business. [Hon. Members: “Not ‘you’.”] My apologies, Madam Deputy Speaker. If Labour Members are so interested in business, why is their attendance at the Business, Energy and Industrial Strategy Committee so woeful?
Bridget Phillipson
My hon. Friend the Member for Bristol North West (Darren Jones), the Labour Chair of the Business Committee, is doing a fantastic job. I see him out there all the time, championing the cause of business and seeking to ensure that we are backing innovative British firms.
Bridget Phillipson
I will happily give way again, but when I do, will the hon. Gentleman tell me whether he will work with me to get the Government to look again at our restoring your railway fund bid? I am sure that he was as disappointed as I was that we were knocked back once again.
Paul Howell
I absolutely will work with the hon. Member. I have already made appointments to talk to Transport Ministers about the matter. My point is that the Chair of the Business Committee is a very regular attender, but he is the only one.
Madam Deputy Speaker (Dame Rosie Winterton)
Order. I am not sure that this discussion is entirely appropriate.
Bridget Phillipson
I will make a little progress, Madam Deputy Speaker. I will happily work with the hon. Gentleman. I know that he tries to work hard for his constituents.
Emma Hardy
While we are on the subject of railways, is my hon. Friend as frustrated as I am that we have yet to see the integrated rail plan and that there have been no announcements regarding Northern Powerhouse Rail? It was not meant to go from Manchester to Leeds; we were originally promised that it would be from Hull all the way over to Liverpool? I hope that she will put as much pressure on the Government as I will to get that delivered.
Bridget Phillipson
Absolutely; 60 times we have had announcements on the plan, but not a single spade in the ground. I will now make a little more progress.
The theme today is public services. I put on record again our immense gratitude to all those who have been keeping our public services going during the most challenging times over the last 18 months. There are really too many public sector workers to mention, but their contribution should be noted. The Government claim that they will give public sector workers belated pay rises, but cannot confirm whether they will be real- terms pay rises. Only under the Tories could a so-called pay rise mean that people are actually less well off.
Working people are being expected to pay so much more, but what for exactly? There are 5.7 million people on waiting lists for operations, GP appointments are harder than ever to come by and there are 100,000 vacancies in our NHS. We see falling apprenticeship starts, supersized classrooms for our children, antisocial behaviour at its highest level for years, rape convictions at record low levels, violent criminals walking free, fewer police officers and less safe communities. However, there was a vanity yacht for the Prime Minister, when he could have tackled antisocial behaviour instead. Tory Ministers have finally discovered, 11 years late, that the early years matter—who knew? But there is no apology from the Chancellor for closing more than 1,000 children’s centres since 2010. What price the unrealised potential and limited life opportunities over that lost decade?
This is a Budget with no plan for the cost-of-living crisis, no plan for fairer taxes and no plan for growth. The clocks went back an hour at the weekend, but in tax terms this Budget wound the clock back all the way to the 1950s, when taxes were last this high. It is the Conservatives’ record of low growth that has driven them to higher taxes, just as their failure to plan ahead has led to higher inflation and higher bills.
Labour would tax fairly, spend wisely and get the economy firing on all cylinders. We would cut VAT on heating bills and help to insulate homes. We would back our world-leading industries, and buy, make and sell more here in Britain. We would scrap business rates and replace them with a much fairer system that is fit for the modern world. We would secure our transition to net zero with well paid, highly skilled jobs in every corner of our country. We would not clobber working people and British businesses while online giants get away without paying their fair share. We need a Budget to ease the urgent pressure on families and businesses—a Budget to seize new opportunities and to unleash our country’s potential. We have a proud history but I believe that our best days are ahead of us. The Chancellor has made the wrong choices throughout this Budget; the Conservatives have made the wrong choices throughout the past decade. Our country deserves better.
The Chief Secretary to the Treasury (Mr Simon Clarke)
It is a privilege to bring the past four days of Budget debate to a close. Over that time we have heard dozens of excellent speeches from across the House. I echo what the shadow Chief Secretary said in thanking all those who contributed. I express my deep gratitude to the civil service and the wider Treasury team, who have devoted long hours to preparing this Budget, working closely over the course of the spending review with all other Government Departments. I am immensely grateful for their hard work.
I also pay tribute to the Chancellor for his third Budget in 19 of the most challenging months in living memory. Winston Churchill once told this House:
“The first Budget of a Chancellor is often well received, but the third Budget is the most critical of all, because it is the heir of previous decisions”.—[Official Report, 22 September 1943; Vol. 392, c. 212.]
Well, this third Budget is a vindication. As Members will recall, over his first two Budgets, the Chancellor developed our plan to protect jobs and livelihoods and to safeguard the economy from coronavirus. In the words of the Office for Budget Responsibility, that plan has proven “remarkably successful”. The OBR’s forecasts show that our economy returned to its pre-pandemic size around the turn of the year, several months earlier than previously expected. Wages are rising, growing in real terms by 3.4% compared with February 2020. More people are in work and literally millions fewer people than anticipated last July are unemployed. Our public finances are under control and debt is under control. To echo the Chancellor: growth up, jobs up, debt down.
Just because disaster has been averted does not mean that we should take that for granted. It is the result of conscious policy decisions that have steered our nation to a safer place. Now is the time to carry this momentum through into building the economy this Government were elected to deliver, with a future of higher wages, higher skills and rising productivity, no longer based on Labour’s and the SNP’s model of low-skilled migrant European labour, but based on training and equipping our own people to succeed; and a future where our businesses flourish and drive growth and that growth is shared more evenly across the United Kingdom. We will have a greener economy. Multiple Opposition speakers, such as the hon. Member for Nottingham East (Nadia Whittome) and the right hon. Member for Walsall South (Valerie Vaz), seemed to forget the £30 billion net zero strategy announced just a fortnight ago. It will be a future where our citizens benefit from world-class public services at every stage of their lives.
Emma Hardy
I am aware that the Minister is very familiar with the area I represent, and indeed the local council, but on the issue of labour shortages I raised in the debate, and have raised in earlier proceedings, we have a shortage of adult social care workers in the East Riding of Yorkshire—a shortage so great that people cannot access all the care that they need. When he talks about labour shortages, is he going to address the shortages we have in that sector?
Mr Clarke
I thank the hon. Lady; hers was one of the more thoughtful speeches in this debate. We have committed £162.5 million as part of our winter plan to help fund the adult social care workforce. That money is exactly designed to make sure that we can attract people into this most pivotal of sectors. That comes on top of the £5.4 billion across the spending review that we have committed, thanks to the new health and social care levy, and the record funding for local government that was announced in the SR. I am always happy to work with her on this, but there is more money for this sector.
Barbara Keeley
Unless there are pay increases for care staff, the small dribbles in amounts of training, and bits of this and bits of that, will not deal with this serious crisis. There are 105,000 vacancies, and people are leaving in droves to go and work in burger bars and other forms of retail.
Mr Clarke
Again, I thank the hon. Lady for raising that point. I do take this point seriously. We have committed in this Budget to the national living wage increase, which is a major increase—6.6%, rising to £9.50 an hour. That money comes as a complement to the extra funding that the Government have committed to help with labour shortages, and I believe it will make a real difference. Obviously we can continue to monitor the situation closely with the sector.
If I may make a little progress, I want to return to the core theme of today’s debate: our public services. As the Chancellor outlined last week, this Budget increases total departmental spending over this Parliament by £150 billion. That is the largest rise this century, with spending growing by 3.8% a year in real terms. We are taking forward plans to deliver more than £600 billion of gross public sector investment over this Parliament, meaning that public sector net investment will be at its highest sustained level as a share of GDP for nearly half a century. This is funding that can and will make real change possible for communities throughout the country.
Last week, my right hon. Friend the Member for Maidenhead (Mrs May) reminded the House when talking about the NHS that increased spending is not enough on its own and that we must strive to deliver value for taxpayers. I could not agree more. The measure of a Government’s compassion is not how much they spend, but the outcomes they deliver. In making these investments, the Government are committed to ensuring that every pound is spent well and makes a difference.
To take healthcare, we are building 40 new hospitals and upgrading 70 more, as well as funding 50,000 nurses and 50 million more primary healthcare appointments. We are working closely with the NHS to roll out a stream of innovative developments that will reduce backlogs, help cut waiting times and transform healthcare for good. Some 100 community diagnostic centres, rightly praised by my hon. Friend the Member for Bishop Auckland (Dehenna Davison), will help people to obtain tests close to home. New surgical hubs will cut waits for elective operations, and we are making a record investment in R&D to support the health technologies of the future.
Margaret Greenwood
I have listened with interest to the Minister’s points about the national health service. If the Health and Care Bill goes through, as the Government intend that it should, instead of having a national health service, we will have 42 independent systems that will all have to meet strict financial limits. The Bill also has provision to make things wide open for the private sector to start delivering care that the NHS currently delivers. What would the Minister say to those NHS workers who may not be able to secure a job in the NHS any longer, because that role has been taken over by a private company, thus losing Agenda for Change pay and terms and conditions?
Mr Clarke
This Government remain fully committed to great care, free at the point of need, which of course is the founding principle of the health service. We remain fully committed to working to ensure that our healthcare system and our social care system are properly funded and staffed for the future. Our commitment to providing world-class public services extends to people of all ages, and that is reflected in our wider work on social care.
We have pledged an extra £4.7 billion by 2024-25 for schools, and I congratulate my right hon. Friend the Secretary of State for Education on securing a good settlement that will include nearly £2 billion of new funding over the spending review period for education recovery. That brings total education recovery spending to almost £5 billion. We are also providing £500 million to support the very youngest and their carers and to invest in family help. Last week, my right hon. Friend the Member for South Northamptonshire (Dame Andrea Leadsom), who has been such a brilliant advocate for this cause, described those measures as fulfilling
“a fantastic pledge for every baby.”—[Official Report, 27 October 2021; Vol. 702, c. 317.]
I could not agree more.
Ben Bradley
I welcome the positive interventions in early years and for young people in the Budget in particular, which are meaningful. If we are going to support that change for the long term, we need to support local authorities to transition to that early intervention approach, as laid out by my right hon. Friend the Member for South Northamptonshire (Dame Andrea Leadsom). I trust that the Minister will confirm the Government’s commitment to doing that.
Mr Clarke
I absolutely will, because there is sometimes said to be ambiguity about levelling up. It is clear to me that it is about life chances through life, from cradle to grave. It is about jobs, prospects, investment in skills and jobs, and all of that comes from the start of life. I know that my hon. Friend will be doing a fantastic job in Nottinghamshire to help to deliver that.
Lloyd Russell-Moyle
So much for intergenerational levelling up—why have the Government cut the youth budget? It is the biggest cut in youth funding in 10 years.
Mr Clarke
The Government stand fully behind our youth budget. From the National Citizen Service to youth hubs, our wider work is clear. We are fully committed to ensuring that young people benefit as part of the Budget and spending review.
Meanwhile, we are spending record sums on improving connectivity and have allocated £5.7 billion to eight city regions to transform their transport systems. There is also the £4.8 billion levelling-up fund. We are taking on the criminals who make too many people’s lives a misery by recruiting 20,000 new police, providing an extra £2.2 billion for the courts, prisons and probation services, and committing £3.8 billion to the largest prison-building programme in a generation.
World-class public services are made possible only by the hard work of the private sector and the genius of the free market—a point made brilliantly by my neighbour, my hon. Friend the Member for Redcar (Jacob Young). That is why we are choosing to ignite even greater public sector success by investing in our economic infrastructure, improving skills and supporting innovation, with commitments to boost R&D funding and access to early stage equity finance.
To make sure that work pays, we are increasing the national living wage, cutting the universal credit taper rate and increasing the universal credit work allowance by £500 a year. That was the subject of a powerful speech by my right hon. Friend the Member for Preseli Pembrokeshire (Stephen Crabb) and likewise by my hon. Friend the Member for Isle of Wight (Bob Seely).
Dehenna Davison
I reiterate my right hon. Friend’s point about research and development, which is important. Does he agree that investing in R&D and introducing tax incentives for it is the right way to get our economy growing in a future-proof way?
Mr Clarke
My hon. Friend is absolutely right. We are investing smart so that we seed the growth of the future. That is what we need to do. Ultimately, it is all about unlocking the dynamism of industry and making sure that we can compete in a way that matches some of the competitor economies that do so much more in that space.
I have outlined some of the bold policy initiatives that the Government are bringing forward, which represent a transformative investment in our economy and the country. There is one final promise that I want to address, which is our pledge to safeguard the nation’s finances. I reassure my right hon. Friend the Member for Gainsborough (Sir Edward Leigh) and my hon. Friend the Member for South Dorset (Richard Drax), who gave robust Thatcherite speeches, that this Chief Secretary will never bequeath his successor a note saying “I’m afraid there is no money.”
Make no mistake, however, that although the economic picture is improving, we are still vulnerable. As the Chancellor said, a 1% increase in inflation and interest rates would increase spending on debt interest by nearly £23 billion. That is over £6 billion more than the total Home Office net budget will be in ’24-’25, so we must continue to build a stronger economy with the headroom to withstand shocks, which will mean making difficult decisions in the national interest.
That is why we have announced a new charter for budget responsibility, with two new fiscal rules that will keep the Government on the path of discipline and responsibility. The whole House will be asked to vote on it, which will give Members the choice between unfunded pledges and fiscal sustainability. It is the easiest thing in the world to say yes to everything, but as everyone on the Government Benches knows, reckless promises are the luxury of the Opposition and tough choices are the responsibility of the Government. Members can rest assured that the Conservatives will always do the right thing to protect our economy and our citizens’ future.
Our record spending on public services, huge investment to fund growth and unrelenting focus on building a stronger economy stand in stark contrast to the Opposition. If there is one idea that the debate has dispelled, it is that there is a credible plan on the Opposition Benches. There were so many negative speeches and unfunded pledges, and so many people, such as the hon. Member for Leeds East (Richard Burgon), who ridiculed an age of optimism. I think, and I know Conservative Members believe, that we should be optimistic about the future. We have come through the shadow of the pandemic as one country, stronger together, and we have come forward with a plan for investment, growth and levelling up. We should be proud of that.
Churchill talked about Budgets having an heir. I believe that this Budget will leave a long-lasting legacy for the UK in the shape of transformed lives, new opportunities and the strong foundations that will transform our country for decades to come. I commend the Budget and spending review to the House.
Question put and agreed to.
Resolved,
That income tax is charged for the tax year 2022-23.
And it is declared that it is expedient in the public interest that this Resolution should have statutory effect under the provisions of the Provisional Collection of Taxes Act 1968.
Madam Deputy Speaker (Dame Rosie Winterton)
I am now required under Standing Order No. 51(3) to put successively, without further debate, the Question on each of the Ways and Means motions numbered 2 to 57 and the money resolution on which the Bill is to be brought in. These motions are set out in a separate paper distributed with today’s Order Paper.
The Deputy Speaker put forthwith the Questions necessary to dispose of the motions made in the name of the Chancellor of the Exchequer (Standing Order No. 51(3)).
2. Income tax (main rates)
Resolved,
That for the tax year 2022-23 the main rates of income tax are as follows—
(a) the basic rate is 20%,
(b) the higher rate is 40%, and
(c) the additional rate is 45%.
And it is declared that it is expedient in the public interest that this Resolution should have statutory effect under the provisions of the Provisional Collection of Taxes Act 1968.
3. Income tax (default and savings rates)
Resolved,
That—
(1) For the tax year 2022-23 the default rates of income tax are as follows—
(a) the default basic rate is 20%,
(b) the default higher rate is 40%, and
(c) the default additional rate is 45%.
(2) For the tax year 2022-23 the savings rates of income tax are as follows—
(a) the savings basic rate is 20%,
(b) the savings higher rate is 40%, and
(c) the savings additional rate is 45%.
And it is declared that it is expedient in the public interest that this Resolution should have statutory effect under the provisions of the Provisional Collection of Taxes Act 1968.
4. Income tax (rates of tax on dividend income)
Resolved,
That—
(1) In section 8 of the Income Tax Act 2007 (which provides, among other things, for the dividend ordinary rate, dividend upper rate and dividend additional rate)—
(a) in subsection (1) (the dividend ordinary rate), for “7.5%” substitute “8.75%”,
(b) in subsection (2) (the dividend upper rate), for “32.5%” substitute “33.75%”, and
(c) in subsection (3) (the dividend additional rate), for “38.1%” substitute “39.35%”.
(2) In section 9(2) of the Income Tax Act 2007 (the dividend trust rate), for “38.1%” substitute “39.35%”.
(3) The amendments made by this Resolution have effect for the tax year 2022-23 and subsequent tax years.
And it is declared that it is expedient in the public interest that this Resolution should have statutory effect under the provisions of the Provisional Collection of Taxes Act 1968.
5. Income tax (starting rate limit for savings)
Resolved,
That—
(1) For the tax year 2022-23 the amount specified in section 12(3) of the Income Tax Act 2007 (the starting rate limit for savings) is “£5,000”.
(2) Accordingly, section 21 of that Act (indexation) does not apply in relation to the starting rate limit for savings for that tax year.
And it is declared that it is expedient in the public interest that this Resolution should have statutory effect under the provisions of the Provisional Collection of Taxes Act 1968.
6. Surcharge on banking companies
Question put,
That (notwithstanding anything to the contrary in the practice of the House relating to the matters that may be included in Finance Bills) provision taking effect in a future year may be made altering the percentage specified in section 269DA(1) of the Corporation Tax Act 2010 and amending Part 7A of that Act so as to alter the amount of the surcharge allowance.
“TABLE | |
|---|---|
1 Cigarettes | An amount equal to the higher of— (a) 16.5% of the retail price plus £262.90 per thousand cigarettes, or (b) £347.86 per thousand cigarettes. |
2 Cigars | £327.92 per kilogram |
3 Hand-rolling tobacco | £302.34 per kilogram |
4 Other smoking tobacco and chewing tobacco | £144.17 per kilogram |
5 Tobacco for heating | £270.22 per kilogram” |
56. Office of Tax Simplification (membership)
Ian Blackford (Ross, Skye and Lochaber) (SNP)
On a point of order, Madam Deputy Speaker. I think we are all aware that a number of Members have not been able to participate in the Divisions tonight because of ill health, some of it covid-related and some of it not. I wanted to raise this issue specifically on behalf of my hon. Friend the Member for East Dunbartonshire (Amy Callaghan). She wanted to be present tonight to register her opposition to the Budget, but as she is recovering from illness, she cannot be here.
During much of the pandemic, the option of proxy voting was open to Members. It is not just Members who have covid and other illnesses who are being disenfranchised; it is also the electors who sent them here. It really is about time that Members who for legitimate, genuine reasons cannot cast their vote, such as my hon. Friend the Member for East Dunbartonshire, were given proper consideration by this House. I wonder what we can do through your offices, Madam Deputy Speaker, to ensure that my hon. Friend’s vote is registered this evening, and that those who have legitimate reasons not to be here can be offered the opportunity of proxy participation.
Madam Deputy Speaker (Dame Rosie Winterton)
I am grateful to the right hon. Gentleman for giving notice of his point of order. May I first say how sorry I am to hear about the illness of the hon. Member for East Dunbartonshire? I know that the whole House will want to join me in sending her our best wishes.
I do of course understand the frustration of any Member who because of illness is unable to be here and to vote, but the right hon. Gentleman will be aware that the rules of the House state that proxy votes are not available in those circumstances. That decision is a matter for the House rather than the Chair. However, the right hon. Gentleman is, I hope, also aware that the Procedure Committee is looking into this issue— indeed, I understand that the hon. Member for East Dunbartonshire gave oral evidence to the Committee yesterday. No doubt the House will read its conclusions with a great deal of interest when they are available, but I have to confirm that the current situation regarding proxy votes is as I have set out.
Karen Bradley (Staffordshire Moorlands) (Con)
Further to that point of order, Madam Deputy Speaker. May I advertise the fact that the Procedure Committee is taking evidence on this matter, that we did take oral evidence from the hon. Member for East Dunbartonshire yesterday, and that we will be keen to hear the views of all right hon. and hon. Members?
Madam Deputy Speaker
I thank the right hon. Lady for confirming the process that is being undertaken. I am sure that many Members will want to contribute to her inquiry.
Business without Debate
Delegated Legislation
Business of the House (3 November)
Madam Deputy Speaker (Dame Rosie Winterton)
With the leave of the House, I will take motions 5 to 11 together.
Ordered,
Backbench Business
That Gareth Bacon be discharged from the Backbench Business Committee and Duncan Baker be added.
European Scrutiny
That Charlotte Nichols be discharged from the European Scrutiny Committee and Dame Margaret Hodge be added.
European Statutory Instruments
That Charlotte Nichols be discharged from the European Statutory Instruments Committee and Dame Margaret Hodge be added.
Health and Social Care
That Dr James Davies be discharged from the Health and Social Care Committee and Lucy Allan be added.
Home Affairs
That Dehenna Davison and Ruth Edwards be discharged from the Home Affairs Committee and James Daly and Gary Sambrook be added.
Justice
That Miss Sarah Dines be discharged from the Justice Committee and Paul Maynard be added.
Women and Equalities
That Nicola Richards be discharged from the Women and Equalities Committee and Jackie Doyle-Price be nominated.—(Bill Wiggin, on behalf of the Committee of Selection.)
Shipbuilding and Ferguson Marine Engineering Ltd Insolvency
(3 years ago)
Commons ChamberRead Full debate Read Hansard Text Watch Debate Read Debate Ministerial Extracts
Kenny MacAskill (East Lothian) (Alba)
This debate goes to the heart of two Scottish institutions. The first is Caledonian MacBrayne—CalMac—which provides lifeline services to the Scottish highlands and islands and whose ships are acquired for it by Caledonian Maritime Assets Ltd, or CMAL; both are Scottish Government agencies. The second is Ferguson Marine Engineering Ltd, which operated the last shipyard on the lower Clyde—a river where ships admired around world were made—but which has been excluded from the most recent CMAL tender to build CalMac ships, and orders are going abroad.
CalMac and Ferguson are part of Scotland’s story, but they are also vital to Scotland’s future. Communities devastated by incessant breakdowns and cancellations need a fast and reliable service to maintain them and allow them to grow. For that, new ships are required. Not only should Ferguson be building them, but yards elsewhere along the length of the Clyde, not just in Port Glasgow but on other sites that can be revitalised. Instead, CalMac is floundering and Ferguson’s future is threatened.
In 2014, Ferguson was saved by the intervention of Jim McColl, and all looked rosy. What has gone wrong? Why have vessels 801 and 802 been so delayed, why have costs overrun so massively, and why has Ferguson Marine Engineering Ltd gone into liquidation? At the core of those questions are procurement and administration, both of which are issues reserved to Westminster. I hope that Ministers will be able to provide answers, if not an inquiry, into a scandal that needs to be resolved.
First, let me rebut suggestions that the yard or the workforce were to blame. History shows what the Clyde can do, and the same skills still remain at Ferguson. Moreover, research by the National Union of Rail, Maritime and Transport Workers has shown that of the eight ships that have broken down recently, only two were built on the Clyde, and they were among the oldest ships, where difficulties could be expected. CMAL recognised the skills there when placing the order for ships 801 and 802. In evidence to the Scottish Parliament’s Rural Economy and Connectivity Committee inquiry, Jim Anderson, the director of vessels, stated:
“The shipyard was already building ships for us. It had a good history of building these type of ships.”
Even more convincing was Commodore Luke van Beek, a Dutch maritime expert appointed by the Scottish Government, who said:
“I was in no doubt it had the management expertise. Having rebuilt the yard, Ferguson Marine had a good shipbuilding system in place.”
For sure, mistakes will have been made and perhaps more could have been done, but it was and remains a skilled workforce and Jim McColl and his company have a global reputation for engineering prowess. His initial intervention was lauded by the Scottish Government. The suggestion that he can succeed around the world but not in Scotland is absurd. Procurement and liquidation lie at the heart of this mess, and responsibility rests with CMAL and the Scottish Government.
Dealing first with procurement, there are two aspects: the contract specification and the requirement for the vessels to be dual fuel—that is, operating on both marine diesel and liquefied natural gas. Dealing first with the contract, it is clear that what was signed off by CMAL was lacking in specification, and that most of the problems arose from that. There was a design and build contract for a ship at an initial price of £97 million, but many critical factors were not clear. That was a recipe for discord and, indeed, disaster. Costs rose as changes kept being made, and just what was to be built was never entirely clear. As Jim McColl said:
“We would normally expect the specification to be more fleshed out.”
He continued:
“Price was based on the specification that were had at the time. As we have said it was not detailed at that time, there were still some open ends that we had to resolve collaboratively with CMAL.”
The second issue was fuelling. Leaving aside why, environmentally, we would even consider LNG, basic engineering concerns remain. It is a relatively new technology, more normally used on larger vessels than on smaller ones, such as ships 801 and 802, where other options such as batteries or hydrogen are preferred. Whatever CMAL or the Scottish Government may suggest, dual-fuel LNG was the diktat of CMAL, not the want of CalMac. As Van Beek said,
“801 and 802 were not the ships that CalMac wanted… When I met the chief executive of CalMac, I was very surprised to discover that it was not and had not been involved, except in having made some observations right at the beginning of the process, when it had said that it did not want LNG ships.
It is also not surprising that CalMac did not want LNG ships, as there is no LNG infrastructure in Scottish ports. I asked CMAL what consideration was given to onshore supply systems, what was in situ at the time of requisition, and what the situation is now for LNG. This is the answer given:
“At the time the only load out facility in the UK was the Isle of Grain. There were 3 projects looking at the bulk storage in Scotland 2 on the East Coast and one on the West Coast—so far none of these have been built out.”
CalMac operates in the Hebrides and on the Clyde, which lie on Scotland’s west coast. The Isle of Bute is in the latter and the Isle of Lewis in the former, but the Isle of Grain is in Kent, on England’s east coast. No wonder CalMac did not want it.
Having messed up the tender, CMAL proceeded to make a bad situation worse. When co-operation between shipbuilder and vessel procurer was needed, CMAL refused to co-operate. That is confirmed by Van Beek, who said that
“CMAL had no interest in compromising”.
Most damningly, he added that
“the people who I met from CMAL were adamant that they did not want to discuss ways to make the situation better.”
FMEL offered mediation, but CMAL refused. This was the modern equivalent of the Titanic racing into the iceberg.
This was known to the Scottish Government, as Van Beek made clear, saying:
“I said exactly the same thing when I briefed Mr Mackay. I said that the relationship between the customer and the client was broken, and that some things that CMAL was doing were very unhelpful.”
The “Mr Mackay” is Derek Mackay, then the Scottish Finance Secretary. Knowing all that, what did the Scottish Government do? Did they remove CMAL? No, they did not; CMAL remains, running the show and tendering for vessels abroad when work is needed on the Clyde. Instead, they forced FMEL into liquidation. As Jim McColl said in evidence:
“The Scottish Government didn’t save the yard from administration, they forced it into administration by repeatedly refusing to instruct CMAL to engage in reasonable requests for mediation, an expert witness process or arbitration.”
Administration was not the recommendation made by their own expert adviser, Commodore Van Beek. He advised arbitration, but instead the Scottish Government chose administration. Why? I am afraid Mr Van Beek cannot help us on that, as he said:
“I have no idea why he chose that route. It was against my advice.”
The “he” is, again, Derek Mackay, who said that the CMAL board would resign on mass if he interfered. Many communities might have said, “Accept their resignations with alacrity.”
By the time we got to the Scottish Parliament inquiry, the Scottish Government line was that “contractor error” was to blame. That was put forward by Paul Wheelhouse, who was then the Islands Minister. Why were neither the First Minister nor the then Finance Secretary called to give evidence? Rather than the senior Ministers directly involved, it was left to a junior Minister with no prior involvement to speak for the Government and to put forward a position that was not the view of the Government’s own expert, who had been supportive of FMEL’s getting the contract and critical of CMAL’s actions and who suggested arbitration, not administration.
More damningly, if the contractors were responsible, why did the First Minister meet Mr McColl privately when the dispute between FMEL and CMAL was raging, outwith the presence and even knowledge of CMAL, and provide significant financial assistance to FMEL? If the contractor was in error, why keep funding it? Moreover, why ignore the advice of their own expert? No wonder the Scottish Parliament concluded that
“there has been a catastrophic failure in the management of the procurement of vessels 801 and 802, leading us to conclude that these processes are no longer fit for purpose”.
Liquidation followed, but the questions about this whole sorry saga only increase.
On 14 August 2019, FMEL went into liquidation. Aware of its financial difficulties, FMEL had already engaged KPMG to act in the administration it saw looming, but the Scottish Government appointed Deloitte, insisting that any administrator appointed had to be acceptable to CMAL. As disclosed to Lord Tyre in a related court case, Deloitte and the Scottish Government had been “contingency planning”, and the former was appointed by the latter despite the Scottish Government being only the second-ranking creditor, yet also the largest debtor.
On 16 August, Deloitte arrived at the yard—the same day the Scottish Government declared publicly that they had nationalised it. Yet administrators are required to consider the position and speak to all creditors before any disposal can take place. None had, but the position was not challenged by Deloitte. It would be some time before the administration was finalised, and the yard was not formally taken over by the Government until 2 December. Instead, having been appointed administrators at the behest of the Scottish Government, Deloitte in turn appointed Macrocom to run the yard. Macrocom is a company wholly owned by Scottish Ministers. Deloitte also refused to pursue any potential claim by FMEL—now in liquidation—against CMAL. That could have been substantial and might also have offered some clarity.
Former senior staff have been moved on, and non-disclosure agreements have been signed. Why? Surely experience was needed at that juncture and information should be publicly available. Questions therefore arise regarding the liquidation and the role of administrators. These actions have been raised with the Institute of Chartered Accountants in England and Wales and questions have been asked as to whether it acted with “objectivity and integrity”. Hopefully, we will be advised on that soon.
As things now stand, the yard is operated by the Scottish Government, but although the salaries of senior management grow exponentially, progress is still slow on ships 801 and 802. At the time of liquidation, work on military vessels had been agreed with Babcock, fishing support vessels were being built, with more to be won, and work was ongoing on the world’s first hydrogen-propulsion system, which had received an international award. Now, though, islands are still bereft of services, communities and businesses are threatened, and the yard is worried about its future as CMAL tenders orders abroad and other orders have been lost.
Neale Hanvey (Kirkcaldy and Cowdenbeath) (Alba)
Does my hon. Friend, as the biographer of the late Jimmy Reid, share my concern that this whole sorry affair, and the Scottish Government’s involvement in it, renders their protestations about Type 26 frigates risible and is deeply damaging to the proud history of shipbuilding on the Clyde?
Kenny MacAskill
I agree with my hon. Friend. The history of Scottish shipbuilding is a fantastic record, but it also has a future. To have a future, it has to be not simply on the upper Clyde but on the lower Clyde, and that takes me to what needs to be done.
There needs to be clarity on CMAL’s actions and the role of Government Ministers responsible. A public inquiry should be held. The Holyrood inquiry suggested an independent external review. That, I believe, is inadequate. This straddles reserved and devolved competencies. Will the Minister consider seeking to establish a joint inquiry with the Scottish Government, as happened, for example, with the Stockline explosion? Moreover, for the communities involved and for Scotland’s industrial future, action is needed. To use football parlance, sack the board and remove the manager. CMAL should be abolished.
CalMac, in consultation with the communities, which must have rights, should be responsible for the selection of ships. The management team that has been put into Ferguson needs to be removed. The replacement of the CalMac fleet, which will involve several vessels a year and over decades to come, should be placed out to tender, but with the stipulation that Ferguson and other sites in Scotland must be used for their construction by whoever wins it.
We need clarity on what went wrong, but fundamentally we need to secure a ferry service for our remote communities and provide a future for our shipyards on the lower Clyde.
The Parliamentary Under-Secretary of State for Scotland (Iain Stewart)
May I begin by congratulating the hon. Member for East Lothian (Kenny MacAskill) on securing this debate? I will turn to the important points and questions that he has raised shortly, although I do have to say at the outset that they are for the Scottish Government, and not for me, to answer.
I first want to put this debate in the context of shipbuilding in Scotland more generally. As a global trading island nation with a proud maritime history, shipbuilding is an important part of our industrial identity. Scotland, like every part of the United Kingdom, offers much to our security, sovereignty and prosperity and plays a critical role in the collective defence of our region and global interests.
My Department has been working closely with the Ministry of Defence to deliver on our ambition to support military shipbuilding in Scotland, and the industry there currently benefits most from MOD expenditure. The Secretary of State for Defence, in his role as ship- building tsar, is acutely aware of the value of shipbuilding in Scotland. He is leading work across Government to deliver on his vision to support industry across the Union, enabling it to become more productive, innovative, and competitive.
UK naval shipbuilding is currently centred around BAE Systems’ Scotstoun and Govan shipyards and Babcock’s Rosyth shipyard, which also have strong naval export markets. These yards are producing the Type 26 and Type 31 frigates—two crucial naval procurements. Three of the Type 26 ships—HMS Glasgow, HMS Cardiff and HMS Belfast—are under construction on the Clyde. Manufacture of these new, highly capable ships is securing about 1,700 skilled shipbuilding jobs in Scotland and some 4,000 jobs throughout the supply chain across Britain until 2035.
On 23 September 2021, the shipbuilding tsar officially cut steel for HMS Venturer, the first of the Royal Navy’s Type 31 frigates, during a ceremony held at Rosyth dockyard. The event marks a significant milestone in the programme for the Royal Navy, defence and shipbuilding in Scotland, with all five vessels to be built by Babcock on the firth of Forth at an average production cost of £250 million per vessel. The Type 31 contract, awarded in November 2019 and to run until 2028, has led to a £71 million infrastructure investment for the dockyard and sustains 130 apprenticeships and 20 graduate positions.
Last month, my noble Friend the Minister of State, Baroness Goldie, had the opportunity to speak with some of Babcock’s current apprentices to hear at first hand how their academic interests in science, technology, engineering and maths have led to a career in defence manufacturing. Since March 2020, Babcock has supported approximately 300 apprentices, mostly from the local area of Dunfermline and West Fife. My right hon. Friend the Secretary of State for Scotland recently visited the Govan shipyard, where he was briefed on the Type 26 programme by Simon Lister, head of BAE’s naval ships business, and had the opportunity to engage with employees and trade union representatives.
Our national shipbuilding strategy refresh will be published later this year. It will set out how the Government intend to set the conditions for success in the UK shipbuilding industry, both domestically and for exports, and how the Government will work with the industry to create lasting transformation. Scottish yards are likely to benefit from the new investment in the Type 32 multi-role ocean surveillance and multi-role support ships, and in Royal Fleet Auxiliary landing ship conversion. The shipbuilding strategy refresh will set out how the Government will provide further support to industry on exports and how we will engage with overseas partners to secure export successes. Indeed, my noble Friend the Lord Offord was in India just the other week, helping to explore the potential for future export orders.
A regular drumbeat of design and manufacturing work in UK yards is needed to maintain the industrial capabilities that are important for UK national security, and to drive efficiencies that will reduce longer-term costs in the shipbuilding portfolio and help to secure further export success. A stable pipeline of orders, as the hon. Gentleman has indicated, is clearly necessary to build and maintain a skilled workforce.
Ronnie Cowan (Inverclyde) (SNP)
It is good to see a debate taking place in this House on a company based in my constituency of Inverclyde. In fact, the three companies —CMAL, Caledonian MacBrayne and Ferguson—are all based in Inverclyde. It would have been nice to have been notified that this debate was going to happen. I would have expected that courtesy to be extended to me by the hon. Member for East Lothian (Kenny MacAskill).
I share the Minister’s optimism for British shipbuilding. Look at what we are building with Ferguson Marine, after all the troubles it has had—yes, it has been a stormy journey, but it will be retooled, and have new shedding and a re-energised workforce, with 40 apprentices working out of there. I could not have said that five, six or seven years ago. My hope for Inverclyde and for Ferguson Marine is a successful and buoyant future.
Iain Stewart
I thank the hon. Gentleman for his intervention, although I am afraid it is not for me to intervene on a family feud, if I can put it that way, with the hon. Member for East Lothian. I am well aware that there are traditional courtesies, which should be maintained.
I am glad to hear that there is optimism in the constituency of the hon. Member for Inverclyde (Ronnie Cowan). I had the pleasure of visiting Greenock—I do believe that I gave him due notice of that—particularly to look at the new ocean liner terminal, which I hope will bring increased tourist footfall to his part of the world.
It is clear that the UK Government recognise and will show our support for the future of shipbuilding in Scotland through all the means that we have available—namely, in the form of military spending and support.
Let me turn to the points raised by the hon. Member for East Lothian. I am well aware of the challenges of providing reliable ferry services, particularly to the rural and island communities in Scotland, but when the UK Government have received various representations on the lack of suitable ferries in Scotland, we have been firmly told by the Scottish Government that this is a process for them and not for us.
Kenny MacAskill
Does the Minister accept that procurement, liquidation and administration are aspects of company law that are reserved to Westminster? On that basis, is he prepared to meet me to discuss the concerns that I and many others—not simply in Inverclyde, but in Scotland—have about the process that has taken place? The responsibility for ordering the services and the payment for the ships might be Scotland’s, but, as I mentioned with regard to the Institute of Chartered Accountants in England and Wales, the law under which procurement and administration is carried out is reserved to Westminster.
Iain Stewart
Indeed, the framing of company law is a reserved matter. I would need to take advice from officials, if the hon. Gentleman will allow me, as to whether a breach of that law was a reserved matter or, as I suspect, more a devolved one.
Douglas Ross (Moray) (Con)
We have been discussing reserved issues and devolved issues tonight. That is something that pupils at Logie Primary School will be looking at this week through UK Parliament Week. Will the Minister congratulate the young people at Logie Primary School, and the staff, on their interest in UK Parliament Week? I will be seeing them on Friday and I am sure one of the questions I might get asked is, “How do you get a mention of Logie Primary School in UK Parliament Week into an Adjournment debate about shipbuilding?”
Iain Stewart
I am happy to say that my hon. Friend has given them a masterclass in how to do that. Referring back to the subject of this debate, I very much hope that among the pupils at Logie Primary School we will see future mariners, shipbuilders, engineers and technicians. I wish them all very well in their future endeavours.
I was surprised to see that the procurement of these new ferries to Islay did not include Ferguson Marine in the tendering process. The delays of the two ships currently under construction may well have played a part in that, but again, it is not for me to comment at this stage. It is very disappointing, given the maritime history on the Clyde in Scotland, and its shipbuilding history more generally, that these ships could not be included and are being lost to overseas orders. But, as I say, these are matters primarily for the Scottish Government to answer, and the hon. Member for East Lothian should pose them to his former colleagues in Holyrood and the Scottish Government. From the UK Government’s perspective, we are investing in the future of Scottish shipbuilding. That demonstrates the strength of our Union, and I hope to see many more ships built on the Clyde.
Question put and agreed to.
Draft Social Security (Scotland) Act 2018 (Disability Assistance for Children and Young People) (Consequential Modifications) (No. 2) Order 2021
(3 years ago)
General CommitteesRead Full debate Read Hansard Text Read Debate Ministerial Extracts
The Chair
Before we begin, may I encourage Members to wear masks when they are speaking? That is in line with current Government guidance and that of the House of Commons Commission. Please give each other and members of staff space when seated and when entering and leaving the room. I remind Members that they are asked by the House to have a Covid lateral- flow test twice a week if coming on to the parliamentary estate. That can be done either at the testing centre in the House or at home. Members should send their speaking notes by email to hansardnotes@parliament.uk, and officials in the Gallery should communicate electronically with Ministers.
The Parliamentary Under-Secretary of State for Work and Pensions (David Rutley)
I beg to move,
That the Committee has considered the draft Social Security (Scotland) Act 2018 (Disability Assistance for Children and Young People) (Consequential Modifications) (No.2) Order 2021.
It is a pleasure to serve with you in the Chair, Mr Dowd.
The draft order we are considering today was laid on 7 September 2021. It is part of the Government’s ongoing commitment to devolution, and I am grateful for the opportunity to debate it.
I will start with some background to the order. It is made under the Scotland Act 1998, which devolved powers to Scotland and legislated for the establishment of a Scottish Parliament. The biggest update to the devolution settlement as far as social security is concerned was the passing of the Scotland Act 2016, which delivered the cross-party Smith commission agreement. As a result of that Act, a wide range of measures and powers, including welfare powers, have now been transferred to the Scottish Government and Scottish Parliament.
The order we are considering is a section 104 order, which allows for legislative amendments that are considered necessary or expedient in consequence of an Act of the Scottish Parliament. It makes technical amendments to United Kingdom reserved legislation and Northern Ireland legislation to facilitate the policy aims of an Act of the Scottish Parliament.
In terms of the purpose and effect of the order before us, it amends specific elements of social security legislation in the United Kingdom as a consequence of the Social Security (Scotland) Act 2018. Through the 2018 Act, the Scottish Government are able to introduce new forms of disability assistance using the social security powers devolved under section 22 of the Scotland Act 2016. The Scottish Government introduced their first form of disability assistance for children and young people on 26 July 2021, the child disability payment. That payment operates in broadly the same way as existing reserved benefits, namely the disability living allowance for children, currently provided by the Department for Work and Pensions.
The UK and Scottish Governments’ intention is to ensure that there is equal treatment for child disability payments with similar reserved benefits. As part of their commitment to that benefit, the Scottish Government will continue to pay the child disability payment for a period of 13 weeks after a claimant has left Scotland, if they have moved to another part to the UK.
The Christmas bonus is a one-off tax-free payment of £10 made annually before Christmas to customers who get certain qualifying benefits in a certain qualifying week. Disability living allowance for children is one such qualifying benefit. The UK Government have agreed that as the child disability payment will operate as broadly equivalent to the disability living allowance, which it replaces, the child disability payment should also act as a qualifying benefit for the Christmas bonus. As such, the child disability payment will need to be listed in the Social Security Contributions and Benefits Act 1992, alongside the DWP’s benefits for the purposes of determining entitlement to the Christmas bonus.
The order also makes amendments in relation to carer’s allowance and carer’s credit. Carer’s allowance has been fully devolved since September 2018. I should be clear that changes to carer’s allowance legislation to take account of the Scottish replacement qualifying benefits in and as regards Scotland need to be made by Scottish Ministers and have been included in the Disability Assistance for Children and Young People (Scotland) Regulations 2021. However, there is a small possibility that once cases are transferred to Scotland—DWP are only dealing with carers in England and Wales—a carer could be living in England and Wales but the person needing that care live over the border in Scotland. The order before us will allow reserved carer’s allowance to be paid for someone caring for a person in receipt of child disability payment in those very rare circumstances.
Class 3 national insurance carer’s credit, which protects individual state pensions, can be awarded on application to people if they are looking after one or more people for at least 20 hours a week and the person being cared for is getting disability living allowance for children. We are also therefore amending UK legislation for England, Wales and Scotland to ensure that child disability payment can be treated as a qualifying benefit for entitlement to carer’s credit. Corresponding provisions for entitlement to carer’s allowance and carer’s credit have also been included for Northern Ireland to ensure that child disability payment is treated as a qualifying benefit during the 13-week run-on period only. Although social security in Northern Ireland is a devolved matter, what has become known as the “parity principle” contained in sections 87 and 88 of the Northern Ireland Act 1998 provides for a single system of social security. Carer’s allowance and carer’s credit are therefore maintained in line with DWP in Great Britain, as part of the ongoing provision for a single social security system.
The order is a sensible and pragmatic step on the part of the UK Government in their commitment to make devolution work. It reflects the continued strong co-operation between Scottish and UK Governments. I therefore commend the order to the Committee.
Ian Murray (Edinburgh South) (Lab)
I lead a merry band this morning; it is all about quality and not quantity on the Opposition Benches. This is the fifth statutory instrument I have considered that has devolved powers to Scotland, and I note that not one Scottish National party Member has turned up. I know that they are in the building because I spoke to some in the Tea Room just a few moments before I arrived here. It is quite disturbing that we are devolving powers and making the system work, particularly with regards to devolved benefits, and SNP Members do not bother to turn up to make their points, or indeed to thank the Minister for introducing the SI.
The Opposition do not oppose the measure and I thank the Minister for his remarks, but I have a number a questions. I understand that he may need to write with all the answers and I am happy to receive a letter. It is good to note what can be achieved when the UK and Scottish Governments work together. It is a clear that this process has evolved from the Smith commission of 2015 and the Scotland Act 2016 and has led to the devolution of many benefits to the Scottish Parliament, including the ones under consideration today.
What is the impact on someone on universal credit who is receiving the child disability payment? The Minister has championed the £10 Christmas “bonus” but I am not sure that it will prove much of a bonus this year to those who are staring down the barrel of a £1,000 cut to their universal credit come April next year. Indeed, according to a recent survey, half of families, particularly low-income ones, were worried about not just paying for Christmas but paying their bills. We have witnessed significant rises in the cost of living and significant energy price increases, so the £10 payment, although welcome, seems small in comparison to the challenge ahead.
What discussions has the Minister had with Scottish Ministers about why it has taken so long for the Scottish Government to implement the powers? Alongside that, how much has it cost the Scottish Government to set up essentially an entirely new DWP system in Scotland, when I understand that the offer to use the UK system was always open to them? That is the arrangement adopted by Her Majesty’s Revenue and Customs as a result of the devolution of income tax, but I understand that the Scottish Government refused to adopt a similar arrangement in this case. Are there any discussions between Scottish and UK DWP Ministers about how to reduce the significant costs of setting up a new system? Why has it taken so long to effect the changes? The benefits will have been devolved for nearly 10 years by the time they get to the desks of the Scottish Parliament.
The Opposition welcome the measure and will not oppose it.
Nigel Mills (Amber Valley) (Con)
I have a quick question for the Minister. He talked about the 13-week run-on when a child moves from Scotland to England. Can he assure the Committee that that period is long enough for whatever UK assessment process would be required for a child in that situation, so that they receive the UK-wide benefit in place of the Scottish one and the family does not experience any interruption in benefit payment? Is 13 weeks long enough, or should that period be longer? Can we rely on the evidence provided in Scotland to speed up the process, or should we allow a family who know they are about to move to apply for the UK-wide benefit in advance so that there is more chance of a seamless continuation of benefits for their child?
David Rutley
I thank the hon. Member for Edinburgh South for his comments, and for turning up. As he said, it is sad that we do not have any SNP Members in attendance. However, I can confirm to the Committee that the UK Government and Scottish Government are working well together, so perhaps no SNP Members are here because they are happy with the way things are progressing. I very much hope so.
The hon. Gentleman asked about the cost of setting up a new social security agency in Scotland. I think that is for the Scottish Government to answer, but I will certainly find a way to give him a more detailed answer myself. He also asked about the time it has taken the Scottish Government to implement the changes. We are working very closely with them, and obviously we want to make sure that the arrangements are right for the claimants. Ultimately, the Scottish Government need to help set the pace and we are working carefully with them on that.
The hon. Gentleman asked about the impact on universal credit, and I can confirm that the child disability payment will be disregarded in the calculation of that credit. It will be paid on top of any universal credit payment. Of course, I am sure he shares my delight and that of my hon. Friends in the Chancellor’s great work to increase the taper rate and increase the work allowance, which will help substantial numbers of low-income working families in the UK. The introduction of the household support fund will also help many others.
My hon. Friend the Member for Amber Valley asked whether the 13-week period will provide enough time to process a new claim for DLA in England and Wales, and I believe that it does. I hope that reassures him.
The order is a sensible and pragmatic step forward on the part of the UK Government in their commitment to make devolution work. On that basis, I commend it to the Committee.
Question put and agreed to.
Judicial Review and Courts Bill (First sitting)
The Committee consisted of the following Members:
Chairs: † Sir Mark Hendrick, Andrew Rosindell
† Barker, Paula (Liverpool, Wavertree) (Lab)
† Cartlidge, James (Parliamentary Under-Secretary of State for Justice)
† Crawley, Angela (Lanark and Hamilton East) (SNP)
† Cunningham, Alex (Stockton North) (Lab)
† Daby, Janet (Lewisham East) (Lab)
† Fletcher, Nick (Don Valley) (Con)
† Hayes, Sir John (South Holland and The Deepings) (Con)
† Higginbotham, Antony (Burnley) (Con)
† Hunt, Tom (Ipswich) (Con)
† Johnson, Dr Caroline (Sleaford and North Hykeham) (Con)
† Longhi, Marco (Dudley North) (Con)
† McLaughlin, Anne (Glasgow North East) (SNP)
† Mann, Scott (Lord Commissioner of Her Majesty's Treasury)
† Marson, Julie (Hertford and Stortford) (Con)
† Moore, Damien (Southport) (Con)
† Slaughter, Andy (Hammersmith) (Lab)
† Twist, Liz (Blaydon) (Lab)
Huw Yardley, Seb Newman, Committee Clerks
† attended the Committee
Witnesses
Sir Stephen Laws KCB, QC, First Parliamentary Counsel 2006 to 2012, Senior Fellow, Policy Exchange 2018 to present
Professor Richard Ekins, Head, Policy Exchange’s Judicial Power Project
Professor Jason Varuhas, Professor of Law, University of Melbourne
Professor David Feldman, Professor of English Law, University of Cambridge
Dr Jonathan Morgan, Reader in English Law, Cambridge University
Public Bill Committee
Tuesday 2 November 2021
(Morning)
[Sir Mark Hendrick in the Chair]
Judicial Review and Courts Bill
The Chair
Before we begin, I have a few preliminary announcements. First, if Members wish to remove their jackets, they should feel free to do so, because this room is quite warm. I encourage Members to wear masks when they are not speaking. This is in line with guidance of the House of Commons Commission. Please also give each other and members of staff space when seated and when entering and leaving the room.
Members should send their speaking notes by email to hansardnotes@parliament.uk. Similarly, officials in the Gallery should communicate electronically with Ministers. Please switch any electronic devices to silent. As many of you will be aware, tea and coffee are not allowed during sittings, but water is provided at most desks.
Today we will consider the programme motion on the amendment paper. We will then consider a motion to enable the reporting of written evidence for publication and a motion to allow us to deliberate in private about our questions before we commence the oral evidence session. In view of the time available, I hope we can take these matters formally.
Ordered,
That—
1. the Committee shall (in addition to its first meeting at 9.25 am on Tuesday 2 November) meet—
(a) at 2.00 pm on Tuesday 2 November;
(b) at 11.30 am and 2.00 pm on Thursday 4 November;
(c) at 9.25 am and 2.00 pm on Tuesday 9 November;
(d) at 9.25 am and 2.00 pm on Tuesday 16 November;
(e) at 11.30 am and 2.00 pm on Thursday 18 November;
(f) at 2.00 pm on Tuesday 23 November;
2. the Committee shall hear oral evidence in accordance with the following Table:
DateTimeWitnessTuesday 2 NovemberUntil no later than 10.25 amSir Stephen Laws, KCB, QC; Professor Jason Varuhas, University of Melbourne; Professor Richard Ekins, University of OxfordTuesday 2 NovemberUntil no later than 11.25 amProfessor David Feldman, University of Cambridge; Dr Jonathan Morgan, University of CambridgeTuesday 2 NovemberUntil no later than 2.45 pmRichard Leiper QC; André Rebello OBE, Senior Coroner for Liverpool and the Wirral and Hon Secretary of the Coroners’ Society of England and WalesTuesday 2 NovemberUntil no later than 3.30 pmPublic Law Project; Law Society; LibertyTuesday 2 NovemberUntil no later than 4.30 pmInquest; Justice; AmnestyTuesday 2 NovemberUntil no later than 5.00 pmDr Joe Tomlinson, University of York; The Law Society of Scotland; Aidan O’Neill QC
Date
Time
Witness
Tuesday 2 November
Until no later than 10.25 am
Sir Stephen Laws, KCB, QC; Professor Jason Varuhas, University of Melbourne; Professor Richard Ekins, University of Oxford
Tuesday 2 November
Until no later than 11.25 am
Professor David Feldman, University of Cambridge; Dr Jonathan Morgan, University of Cambridge
Tuesday 2 November
Until no later than 2.45 pm
Richard Leiper QC; André Rebello OBE, Senior Coroner for Liverpool and the Wirral and Hon Secretary of the Coroners’ Society of England and Wales
Tuesday 2 November
Until no later than 3.30 pm
Public Law Project; Law Society; Liberty
Tuesday 2 November
Until no later than 4.30 pm
Inquest; Justice; Amnesty
Tuesday 2 November
Until no later than 5.00 pm
Dr Joe Tomlinson, University of York; The Law Society of Scotland; Aidan O’Neill QC
3. proceedings on consideration of the Bill in Committee shall be taken in the following order: Clauses 1 to 15; Schedule 1; Clauses 16 and 17; Schedule 2; Clause 18; Schedule 3; Clauses 19 to 29; Schedule 4; Clauses 30 to 32; Schedule 5; Clauses 33 to 48; new Clauses; new Schedules; remaining proceedings on the Bill;
4. the proceedings shall (so far as not previously concluded) be brought to a conclusion at 5.00 pm on Tuesday 23 November.—(James Cartlidge.)
Resolved,
That, subject to the discretion of the Chair, any written evidence received by the Committee shall be reported to the House for publication.—(James Cartlidge.)
The Chair
Copies of written evidence that the Committee receives will be made available in the Committee Room and will be circulated to Members by email.
Resolved,
That, at this and any subsequent meeting at which oral evidence is to be heard, the Committee shall sit in private until the witnesses are admitted.—(James Cartlidge.)
The Committee deliberated in private.
Examination of Witnesses
Sir Stephen Laws, Professor Richard Ekins and Professor Jason Varuhas gave evidence.
The Chair
Before we hear from the witnesses, please may I have any declarations of interest in connection with the Bill?
The Chair
We will now hear from the first panel. We have three witnesses, all are appearing virtually. I thank you all for attending today’s evidence session. We will hear from Sir Stephen Laws QC, senior research fellow at the Policy Exchange and former First Parliamentary Counsel; Professor Jason Varuhas, from the University of Melbourne; and Professor Richard Ekins, from the University of Oxford.
Before calling the first Member to ask a question, I remind all Members that questions should be limited to matters in the scope of the Bill. We must stick to the timings in the programme motion that the Committee has agreed. We have until 10.25 am for this session, which gives us just under an hour. Could the witnesses please introduce themselves?
Sir Stephen Laws: My name is Sir Stephen Laws. I spent my career in the Office of the Parliamentary Counsel, starting in 1976. From 2006 until 2012 I was the First Parliamentary Counsel, head of the office and responsible for the offices of the Government business managers. Since retirement, I have been a senior research fellow at the judicial power project at the Policy Exchange.
Professor Varuhas: Good morning, I am Jason Varuhas. I am a professor of law at the University of Melbourne, where I am also the director for the Centre for Comparative Constitutional Studies in the law school. My interests lie in public law, private law and the law of remedies.
Professor Ekins: I am from the University of Oxford. I have led Policy Exchange’s judicial power project for the last few years and have written a fair bit about cases involving judicial review that warrant criticism or are problematic. I have made submissions, as have my colleagues, to the independent review of administrative law and in response to the Government consultation, and most recently another paper for Policy Exchange outlining possible amendments that might be made to the Bill.
The Chair
Thank you. Could I invite the first question? John?
Sir John Hayes (South Holland and The Deepings) (Con)
Q I am not particularly choosy about who answers this—indeed, you might all want to, but I am thinking particularly of Professor Ekins. The independent review of administrative law drew attention to other areas that the Bill might address—I am thinking of where abstract principles have been used to counter decisions of Parliament. The sovereignty and the will of Parliament are critical, and the abstract principles—I am referring to the Prorogation case, for example—should surely be addressed by the Bill. Linked to that is the Adams case, with which you will be familiar and which you will be familiar and which the Attorney General spoke about in a powerful speech a week or so ago, which challenges the Carltona principle. Is it not important that the Bill reinforces that principle, which would be good news for anybody who has been a Minister, is a Minister or, indeed, is on the Opposition side of the House and hopes to be one?
Professor Ekins: I will go first, since you directed that at me. It is true that the independent review of administrative law noted a worrying trend in relation to cases in which fairly abstract constitutional principles were used to develop the law in surprising ways. It is true that the review held short of recommending legislation in response, but it attended to this as a problem, and I think it is quite rightly within your field of vision as something that should be attended to. The review noted in particular the perfect legitimacy of Parliament legislating in response to particular cases that it thinks break new ground in problematic ways, which might include the Prorogation judgment or Unison, Evans and other cases. That would also include the Adams case, which the review briefly referred to. It is very true that that case made a significant change that is problematic for our law and government. Sir Stephen and I wrote a paper last year for Policy Exchange noting the shortcomings of the judgment—that it really undermines the Carltona doctrine, which is central to the way in which Parliament confers power on Ministers and how civil servants exercise that power. I think it will be a very good contribution to the rule of law to restore and vindicate that principle.
Sir Stephen Laws: If I can come in, I endorse everything that Professor Ekins said. The Adams case is very disturbing and undoes the assumption on which, for almost three quarters of a century, government has carried on. It needs to be urgently reversed.
On the question of parliamentary sovereignty, one of the great defects of the law as currently applied in proceedings for judicial review is that it does not adequately distinguish between the different sorts of decision making to which it is applied. It assumes that the same or very similar principles, processes and remedies are appropriate for a challenge to what you can call casework decisions by public officials in individual cases as should be applied to challenges to legislative decisions.
It seems to me that courts are deciding what the rules should be in future, hypothetical cases, or what the rules should have been in past cases that are not before them. They need to apply very different principles from those that they apply when they have one case before them and the public official has been doing something very similar—[Interruption.]
The Chair
Your sound has gone, Sir Stephen.
Professor Varuhas: May I come in while Sir Stephen fixes his audio?
The Chair
Yes, you can come in while Sir Stephen gets his sound back.
Professor Varuhas: I also agree that there are some concerns that attend the Supreme Court’s increasing attraction to articulating very broad constitutional values and rights. That was something that the independent review of administrative law drew attention to, and particularly the court’s articulation of these norms not revealing any particular principle. The right of access to courts has perhaps unsurprisingly been classed as of fundamental constitutional value, but not the right to life, for example. Moreover, these values have been used at times, it seems, to subvert parliamentary intention in the interpretation of legislation. I think there is a more general need for a reassertion of legislative or parliamentary intention as the touchstone of statutory interpretation, which would help to counter some of these problematic trends.
On the provision for suspended quashing orders in the Bill before the Committee, part of the rationale for suspended relief is that, in cases where controversial constitutional values are invoked or there are controversial interpretations of statute where Parliament’s intention is in question, relief can be suspended as a prompt for Parliament to enter the fray and inject its voice on behalf of the polity into the delineation of constitutional values and norms, and to make clear, where there is any doubt as to its intention, what its intention was in a particular statutory context. The suspended orders in the Bill are in part a response to that jurisprudence, although, as I mentioned, more reforms could of course be introduced to clarify parliamentary intention as the touchstone of statutory interpretation.
The Chair
Sir Stephen, do you want to come back in, because you were cut short by the sound? [Interruption.] We are still having sound issues, so we will try to come back to you later. I do not know whether it is a technical issue at your end or this end. Sorry about that, Sir Stephen. In the meantime, I will take a question from Andy Slaughter.
Andy Slaughter
Q Good morning, gentlemen. I think this is supposed to be a more general session on judicial review, although we also have one eye on what is in the Bill. Lord Faulks, the chair of the independent review, said in this report that,
“overall, the way that judicial review worked was satisfactory”
and that
“any decision to do something about it radically would…be wrong and potentially contrary to the rule of law.”
From some of the answers you have already given, it sounds as though you may not entirely agree with that. Where do you differ from Lord Faulks, if at all? On the contrary view, how do you think judicial review can help to improve decision making by public bodies?
The Chair
Can I ask who that is directed to first, Andy?
The Chair
Who wants to take that question?
Professor Ekins: I will go first, and then my colleagues can take a turn. I am always happiest when agreeing with Lord Faulks, and I am certainly not willing to propose a radical overhaul of judicial review. It is a central institution of our constitution and there would be dangers in trying to put it entirely on a statutory basis—a course of action that has been thought through but that I think would be fraught with difficulty.
The question is whether it has gone too far in some domains and in some directions, and that conclusion is entirely compatible with the idea that you do not want to overhaul it at large and that no radical reform is necessary. A correction could be made in certain cases, where judicial review is extended into the heart of the political constitution, as you saw in the Prorogation case, which I know Lord Faulks was much exercised about and was highly critical of, and in other cases, where the techniques involved—we have talked about some of them already—are difficult to square with parliamentary sovereignty and the primacy of Government decision making in relation to the public interest, and where, rather than a supervisory jurisdiction being in play, one has intrusion into the merits.
One can make some significant corrections on the margins—if you call it the margins—without undermining the central value of judicial review. In relation to its value, Ministers should clearly be subject to the law; they should not exceed the scope of their statutory powers, or go beyond the scope of prerogative powers for that matter. The courts have a vital role to play in vindicating those legal limits and in correcting deficiencies in process, where decision making might have flouted the requirements of natural justice or an extremist has simply made an irrational decision, although one would expect that to be less common. So there is undoubtedly a very valuable role for judicial review to play, but that is consistent with noting—as so some senior and retired judges—that what has gone on in some significant, major, politically salient cases is unjustifiable and warrants a legislative response.
Andy Slaughter
Q Can I follow up on that before the other witnesses come in? Are you saying that, if any amendment is needed, the correct response would be a sort of tit-for-tat response—that is, responding to individual judgments rather than something more systemic? You said that
“the Bill’s measures are a carefully considered, limited response to two important Supreme Court judgments.”
Some of the things that the Lord Chancellor has said in the context of human rights have implied the same thing—that, effectively, there will be a second-guessing or a corrective effect on judgments of the superior courts. Is that how you see this working?
Professor Ekins: In part. With respect, I would not say tit for tat, but judgments that put the law in doubt in significant ways, or break new ground in ways that are constitutionally problematic, deserve a response to correct the law. It is not a response to dress down the judges; it is to restore or make the law to that which Parliament wishes it to be. I think that much good can be done by a systematic response to cases where the law has been changed in difficult ways. That would be the central mode of action.
There is a sense sometimes, though, that one should respond to grounds of action. For example, a legislative response to the Adams case—I have drafted a possible response—would not necessarily, and does not, mention that case by name, but it restates the Carltona principle. It makes it clear that the Carltona principle has a central place in our law and constitution—so, partly just a general change but motivated by cases where this has been put in doubt.
Andy Slaughter
Q I have seen the paper you have written on that. It does appear to imply a sort of ping-pong effect, where you see what the courts do one day and we here do it another day. Obviously, it would be easier if the Government were able to do that by statutory instrument, but it seems like quite a radical departure from the way that we do things normally.
Professor Ekins: With respect, I do not think that it is a radical departure. I think that legislative responses to judgments that put the law in a different place were, maybe not routine, but they are certainly unimpeachable constitutionally. In a sense, this is an opportunity, and it was built to look back across several decades of legal development, or at the least the last decade or two, and make some changes that are worth making in this context. Whether power should be used by statutory instrument, I would be much less comfortable with, in so far as some of the changes we are talking about involve the meaning and application of a judgment.
Andy Slaughter
Q Yes, that is the point. We have all been involved in emergency legislation from time to time. It is relatively rare, and it is something of an occasion, so in that sense it marks things out. The danger would be if that were to become routine and there was effectively an office of Government that is there to be corrective of the courts when Governments get it wrong.
Professor Ekins: I would not ever mention that it needs to be emergency legislation. Sometimes it will have to be, as was the case after the Adams case, where legislation was moved from within a matter of weeks to a number of days, but much more often, we simply need to pay attention and be willing to bring forward legislation in response. Obviously, legislative time is scarce, so that will always be difficult to prioritise, but noting when the law of judicial review has been developed in startling ways that really are not justified in responding is a significant exercise of Parliament’s responsibility.
The Chair
Does any other panel member want to come in to respond to Andy Slaughter’s question? Sir Stephen, have we got you back yet?
Sir Stephen Laws: I think so; I apologise. I think I detected a problem at this end. There are some systematic approaches that need to be adopted. I think it is right that Parliament should retain its ability to react to individual cases, but that is difficult because time is short and, quite often, by the time the courts have set the framework, they have intervened, in a way, in the political argument.
I would like to come back to the point I was trying to make when I was muted. There are distinctions between intervention by judicial review in casework and intervention by judicial review in legislative actions, because the remedies and principles that are applied to legislative actions are themselves legislative. If the courts are deciding judicial review decisions that set the rules for future hypothetical cases, they are usurping the legislative function. The systematic approach needs to distinguish more clearly between judicial review of legislative actions and system management issues, and judicial review of casework.
Professor Varuhas: Obviously, there are many cases in the judicial review casework of the courts that raise no problems whatsoever, but the IRAL report identified some problematic areas where there were patterns where courts were potentially exceeding the institutional and constitutional limits of their role. It was acknowledged in the conclusion to the IRAL report that there were some instances where the Supreme Court had exceeded the supervisory conception of review. It is also important to note that IRAL acknowledged very clearly that it was legitimate for Parliament to legislate in the field of judicial review, including the response to particular judgments. I note that the modern machinery of judicial review was established by legislative instruments and statute, particularly the Senior Courts Act 1981. The entire modern machinery of review is owed to legislation.
A number of problematic areas have already been mentioned by my colleagues. One is that the courts have turned from scrutinising individual decisions to scrutinising and evaluating entire administrative systems and invalidating them, without an acknowledgement that the courts lack expertise and experience in the field of design of large administrative systems.
Another area is in proportionality—where the courts strike a balance between competing considerations. That tends to supplant the role of the statutory decision maker, whose role is to weigh up all those considerations. Then there are the areas we have already mentioned, where the court has taken upon itself to speak for the polity in articulating constitutional values. One would expect that is a role for Parliament first and foremost. Also, there is where the courts have used those values to interpret legislation in the light of the concerns they consider normative appealing, rather than necessarily to give effect to the legislative intention that sits behind legislation.
What the IRAL process showed is that it can be very difficult to legislate as to the substance of judicial review at an abstract level, but what can be done is that responses can be made to particular judgments. There are plenty of examples through history where Parliament has done so. Also, the rules governing the procedure and remedies of review have always been housed in the Senior Courts Act—they are the product of Parliament; Parliament has updated and amended those procedures and remedies over time. This latest batch of reforms, particularly the remedial reforms, can be seen as a further incremental development of the remedial system.
Remedies can be important, because they can provide an outlet for wider concerns, such as the public interest or interest in good administration, and they can provide a way to modulate the boundaries of review, to ensure that it does not stray beyond ordinary practicalities and infringe upon fundamental principles. Again, I think that is entirely legitimate and there are many examples of Parliament legislating as to remedies.
Andy Slaughter
Q You are talking on a fairly high level here—I think Professor Ekins mentioned “heart of the constitution” cases, which are obviously very sexy to talk about—whereas most of the submissions we have had are from non-governmental organisations, environmental groups or people dealing with special educational needs, who are concerned that some of the provisions in the Bill may limit the opportunity because either a suspended or a prospective-only order will mean that, for some reason or other, they are unable to get their case before the court. Are you sympathetic to that at all?
Professor Varuhas: These remedies will not prevent anyone from getting in the court door, because they are remedies, which apply after a finding of unlawfulness has been found by a court. I think these remedies are welcome, because they provide for a greater remedial flexibility for courts—for courts to tailor remedies in their discretion, to the exigencies of the particular facts of the case. It is important to bear in mind that these remedies will be discretionary and the courts will take into account a range of relevant considerations in exercising that discretion. Courts are well versed in exercising remedial discretion—courts can be expected to respond to the justice of the particular case. What the Bill does is to give the courts more options.
The most common consequence of a finding of unlawfulness is that the impugned administrative measure is a nullity, which means it never existed. That will suffice in many cases, but in some cases it will be an overly blunt measure that can have very drastic effects. For example, a large infrastructure project may be started and there might be a slight technical or procedural error at the outset.
If the project proceeds and is then nullified as if it never existed, that will have very negative effects on the people who had contracted with the Government and, by being critically disruptive, on the national economic interest, and could lead to significant economic waste. In that sort of case, a suspended order allowing the Government time to respond to the finding of unlawfulness and make relevant provisions to accommodate that finding, or a prospective order that holds that what has gone before remains good and that the nullification takes effect only prospectively, can play an important role in protecting very important public interests, interests of good administration and the interests of third parties who might interact with Government.
Indeed, if something like a large infrastructure project were invalidated, it could undermine the confidence of market players in contracting or working with Government, because the rug could be pulled out from the project at some later point once a lot of money and time has been sunk into it. I think these are very moderate reforms seeking to give the courts greater remedial flexibility to tailor remedial responses to the particular context of the case, in the light of the range of interests implicated.
Sir Stephen Laws: I am sympathetic to people who have a view about what remedies should be granted to litigants in the case in question, but I am not sympathetic to the idea that judicial review should be an extra step in the political debate about whether a piece of legislation should exist or continue to exist. The Unison case provides a startling example of the sort of absurd consequence that you would get from the nullity remedy.
In that case, the courts overturned fees to be charged to people who wanted to take their employment cases to hearing. The result of nullifying the regulations involved a very large amount of money being paid not to the people who were deterred from bringing their cases to employment tribunals, but either to the people who did bring them and lost, or to employers in those litigations who lost and had to pay the fees of the people who had been successful. That was a ridiculous remedy for a mischief that harmed people other than those who got their money back.
Professor Ekins: I agree with my colleagues that clause 1 increases remedial discretion and focuses it to some extent, although one can argue about how it does that. Much of the response to these two clauses has been overstated.
We have not yet spoken about clause 2 and the limitation of review of the relevant decisions of the upper tribunal. Again, that has been a bit misunderstood or framed and received by some groups as though it were an abolition of judicial review at large in some way, but I think it is a restatement of the law that Parliament tried to create in 2007 in the relevant legislation. The Supreme Court sort of glossed that in 2011, and many senior judges have been unhappy with the way that it was decided then and the way it was worked out subsequently.
In limiting review in the way that clause 2 does—with plenty of safeguards, I should add—one is not barring the door to the courtroom, but bringing an end to an otherwise never-ending series of procedural steps. Looking into it, one can always find a benefit from further procedural steps, but it is a perfectly reasonable and proportionate response to limit judicial review in that context, where the decision maker in question is another court. It is not a Minister detaining someone, or something like that; it is the upper tribunal, and as a court, it warrants an immunity from judicial review in that context. People should be much more relaxed than some have been about those two measures.
Andy Slaughter
Q I have just one more question on clause 2, although not on Cart per se. You will be aware, because it has been quoted quite widely, that the press release that accompanied the introduction of the Bill stated that
“it is expected that the legal text that removes the Cart judgment will serve as a framework that can be replicated in other legislation.”
That appears to signal an intent on the Government’s part to use the ouster more commonly in future. Is that how you read it? Do you think that that is a good or bad way of going about things?
The Chair
Who wants to take that one first?
Professor Ekins: I will, since I was talking about Cart just now.
It is true that they have signalled that. I think that this will be an effective ouster clause because it is a perfectly constitutionally irreproachable response to the Supreme Court’s judgment. It restates Parliament’s intention and is protecting a court’s jurisdiction—not an ordinary court’s, but a specialist court’s, albeit one with pretty wide jurisdiction.
I think that it will work as an ouster clause. I do not think that the courts will view it with disdain or try to undercut it as they have done with some other ouster clauses. To that extent, it will provide a framework, partly because it is limited: it is designed to limit judicial review without ousting it altogether. It is a safeguard in relation to true procedural failure, bad faith and so on, which is fine and proper.
I think that it could be used as a framework for other cases. In the Policy Exchange paper that I published last week, I suggested one such context: the Investigatory Powers Tribunal, another specialist court, which was subject to the protection of an ouster clause enacted in 2000, as David Davis mentioned in his Guardian article last week. That ouster clause was undercut by the Supreme Court in 2019, using some of the problematic techniques that we have talked about—openly departing from legislative intent and distorting the meaning of the statute.
I think that Parliament should enact an ouster clause, modelled on clause 2, that protects the Investigatory Powers Tribunal. There will be pretty sharp limits on how often you want to use the clauses, of course—this one is controversial, and they will all be controversial. Whenever there is a suggestion that there is not a proper context for ouster, the controversy will be higher.
We have talked before about intrusions that judicial review has made on some relationships at the heart of the political constitution. There is a case to be made for ouster, or for limitation of review, in that context. You will be aware of the Dissolution and Calling of Parliament Bill, which is making its way through Parliament now. Clause 3 of that Bill is a partial response to the Prorogation judgment, and quite rightly so; it protects the prerogative of Dissolution, when it is restored, from judicial review. I think that that is justified and that you may have to act similarly in relation to Prorogation law on other aspects of the political constitution.
I would not expect the approach to be widely used, but I think that there are contexts in which it is reasonable and justified.
Sir Stephen Laws: I agree with all of that. As a drafter of legislation, whenever I was asked to draft an ouster clause, as I was from time to time, my response was always: “There’s no hope of it ever succeeding, unless you’re presenting a politically and legally justifiable alternative route for people who would otherwise be going to the court.” That, of course, is what the Cart judgment does, for the reasons that Professor Ekins has given: the upper tribunal is a proper court; the Investigatory Powers Tribunal is a proper remedy; and, in the case of the Prorogation judgment, the remedy is political because that is how the constitution is set up. In relation to the major matters of the relationship between Parliament and Government, it is Parliament that has the remedy, ultimately, in being able to pass a vote of no confidence in the Government and require their resignation or a general election.
Professor Varuhas: On clause 2, the first thing that I would say is that it derives from a clear recommendation from the expert independent review of administrative law and has subsequently been subject to a full Government consultation. Former Law Lords have also come out in support of the policy, including Lord Hope, who is the former Deputy President of the Supreme Court, and Lord Carnwath, who—importantly—was the inaugural Senior President of Tribunals and was subsequently a Law Lord on the Supreme Court. He said that the ouster would restore what was always intended: that the upper tribunal should have equal status with the High Court. That was the intention behind its designation as a superior court of record. As colleagues have stressed, that is a really important point: the upper tribunal has equivalent status to the High Court.
There is a further point to be made, which relates to how many bites of the cherry one person might have. It is worth reminding ourselves what a Cart judicial review is. It will have been a claim in the first-tier tribunal that will have been unsuccessful. The claimant will then seek permission to appeal to the upper tribunal. The first-tier tribunal will decline permission, and then the claimant will appeal to the upper tribunal against the declination of permission to appeal to the upper tribunal. The upper tribunal will have declined permission to appeal. It is not clear, given the upper tribunal’s status as a superior court of record, that one then needs a further bite of the cherry by going to the High Court via judicial review, and potentially all the way up the judicial hierarchy.
Whatever the case is more generally, in this instance the clause is justified, and it is a targeted response to a particular problem. Also it is not a pure ouster, because in clause 2(4) the path remains open for claimants to bring a judicial review in the High Court in serious instances of illegality, such as where the upper tribunal acts in bad faith or in fundamental breach of principles of natural justice. That is an important point to bear in mind: there is still a route to the High Court in cases of serious unlawfulness.
The Chair
A few Members have indicated they wish to ask questions, so I will take them in order.
Tom Hunt (Ipswich) (Con)
Q There has been lots of debate about whether these reforms are necessary or good for parliamentary democracy. It is important to reflect on the fact that of course it was in the Government’s manifesto that they would propose significant reform to the way in which judicial review works. To what extent do the witnesses see the mandate of an election as important to the functioning of our democracy?
The Chair
Who wants to take that one? Is it a googly?
Professor Ekins: I will start. Clearly the mandate on which the Government campaign and secure a majority is significant. It is true that page 48 of the Conservative party manifesto makes a commitment to look again at the constitution and to take measures to ensure that judicial review does not become “politics by another means”—a phrase Lord Sumption used in his Reith lectures and also used by the High Court and the Court of Appeal in judgments in 2019. It is also true that the commitment does not spell out what it will involve, and that is partly what the Committee is considering and the Government have been thinking through—as has the independent review of administrative law.
There should be no constitutional question about the entitlement of Parliament to legislate on judicial review. The Lord Chief Justice of England and Wales, Lord Burnett, has made that crystal clear in various public statements. The question, of course, is the merits of the proposals—the devil may be in the detail. It would be wrong, as we have discussed, to overhaul judicial review. It would be a mistake—not improper, but a mistake—to try to put it on a statutory footing at large, but changes can be made where problems have arisen.
The political salience of judicial review has clearly risen in the last five years—indeed in the last decade or two. If one can identify the problematic trends and respond to them in a targeted and careful way, one would be acting properly and in accordance with the manifesto, even if I would be cautious myself in connecting any particular proposal to the manifesto because it was not quite that specific.
Sir Stephen Laws: I have nothing particular to add to that, as it all seems right. In my submission to the independent review of administrative law I drew attention to what I thought were the beginnings of a breakdown in trust between the political world and the judiciary, and the political salience of the issues around judicial review is evidence of that. Plainly, there can be no question about Parliament’s right to legislate, and the need to do so has been demonstrated.
Professor Varuhas: I would add that the concerns reflected in the manifesto around the judicial review and whether the courts had in certain contexts overreached were vindicated in the IRAL report, which did pinpoint at multiple times areas of concern. This set of reforms, regarding remedies and the Cart ouster, have been through an incredibly thorough process. An expert independent panel was constituted, the Independent Review of Administrative Law, with five distinguished academic lawyers and others drawn from the profession, chaired by Lord Faulks. The reforms in the Bill derive from that panel’s recommendations.
The panel stressed the need for reforms to emphasise remedial flexibility and it recommended the ouster of Cart judicial reviews. Those recommendations were then put out to general consultation—a Government consultation. At each stage there were a lot of consultation responses, so the reforms we see before us are the product of an incredibly thorough, expert-led process. To my mind it is not a surprise that the reforms are well justified in the end.
The Chair
Thank you. Are you happy with that, Tom?
The Chair
Sir John Hayes.
Sir John Hayes
Q I am listening closely to what you have all said. You have described a sort of creeping judicial activism. The case you have made is that the Bill effectively reaffirms the proper role of judicial review against a drift into a whole range of political areas where judicial review is used as a means of perpetuating political debates. I have particular concern with the perpetual use of the idea of rule of law to legitimise that judicial activism. I would be interested in your view on that. A very good example is the Privacy International case, where the extraordinary judgment by Lord Carnwath talked about the essential counterpoints to the power of Parliament to make law. It describes the courts as such. This is an extraordinary and outrageous thing for a judge to say. It is time, to put it bluntly, that we put some of these people back in their box. Is it not?
The Chair
Who wants to take that question? Anybody?
Professor Ekins: I will go first. I have been highly critical of the Privacy International judgment, and I share the view that the majority judgment, or Lord Carnwath’s judgment, with which Lady Hale and Lord Kerr agreed, was outrageous. Those three judges are no longer on the Supreme Court, but that judgment is part of the common law and it does warrant a response. There were many other things going on in May 2019, so maybe it is not a surprise that it did not get much public attention, but that judgment did constitute a very serious attack on some fundamentals of the constitution.
Parliamentary sovereignty was openly questioned and the rule of law was set in apparent tension with parliamentary sovereignty, which is deeply wrong, I think. The rule of law requires respect for the law, which includes parliamentary sovereignty and the stability of statute, and the primacy of legislative intent in interpreting statute is one of the fundamental ways in which the rule of law is secured. It is true that the rule of law is often bandied about as though it warrants adventurous judicial action that cannot be squared with the existing constitutional law or with the terms of statute, because we are going to make it better and we are going to impose further controls on the Government or public bodies.
As Lord Hughes, who was on the Supreme Court at the time, said, that is to confuse the rule of law with the rule of courts. You do not see that just with the Privacy International case, we see it in the Evans case, involving the Freedom of Information Act 2000, where a clear statutory power was undone. Three judges interpreted it so that it does not exist any more, and another two judges, also during the majority, attacked its exercise in a different way. This is a worrying trend, and the independent review noted the Evans case.
If Parliament can notice and respond to those judgments, it will both correct the law that has been undone and make clear that the technique is seen and is not tolerated as legitimate. In cases where judicial review breaks new ground and is being carried out in a way that is inconsistent with statute and long-standing principle and rules—the Prorogation judgment is very large here—the litigation is an extension of political argument and a way of getting the courts to weigh in on your side in a controversy. That is destructive of the courts’ reputation and of the political constitution that should be framing those arguments, and it is not vindicating the rule of law but undoing it and undoing the political foundation for our parliamentary democracy.
Sir Stephen Laws: I would agree with that. It seems to me that the fundamental principle that should be upheld as part of the rule of law is the need for legal certainty and predictability. Judicial law making undermines that because it produces new law that nobody was able to expect, and because of the myth that the common law has always existed, it also creates the further injustice of retrospective effect.
If ordinary citizens cannot predict with certainty before they act what conduct will escape censure, that is a serious injustice. If public officials cannot be sure that what the law allows them to do, adherence to the law for them ceases to be a matter of principled compliance and becomes instead a straightforward commercial exercise in risk management, and that is a very bad thing for the management of public affairs generally.
The Chair
There seems to be consensus on that. I am conscious of time; Jason, would you like to come in on that quickly?
Professor Varuhas: I think the rule of law is an important value, but all too often, it is used to denote what someone thinks is good. It is often invoked without elaboration and as a trump card. The rule of law is an important value, particularly the principle of government and the law, but other values and aspects of the rule of law can be important.
As Sir Stephen alluded to, you can see that with the proposal for prospective orders, for example. You might have a decision-making procedure created by regulation, with many decisions made under that in regard to particular people. If you invalidate that ad initio, the consequence will be that all those decisions in regard to all those individuals would be thrown into doubt. They would have planned their lives on the basis of the decisions that had been rendered in regard to them.
On the one hand, you might say that voiding ad initio and rendering a decision a nullity upholds the rule of law, but it can undermine other aspects of the rule of law, such as certainty, predictability and people’s ability to plan their lives in the light of decisions that have been made in regard to them. The beauty of prospective orders is that they can be calibrated to save those past decisions and provide certainty, finality and confidence in the administration of justice for those individuals, while ensuring that the system complies with legal requirements going forward.
The Chair
I am conscious of time. As I said earlier, we have to move on to the second panel soon, so this will be the final question. I call Dr Caroline Johnson.
Dr Caroline Johnson (Sleaford and North Hykeham) (Con)
Q I have a question about the potential for quashing judgments not to be retrospective. To what extent does the legislation provide protection for the individual and balance that with the potential for political activity? How does it make sure that judges have good guidance on when they should and should not use the measures that will become available to them?
Professor Varuhas: One of the motivations for the provisions is to provide the courts with flexibility to adapt remedies to the particular needs of the given case. That is a response to a series of Supreme Court decisions that have held, contrary to long-standing authority, that a funding of unlawfulness automatically voids administrative measures as if they never existed. That has never been the position, because there has always been remedial discretion to modulate the effects of unlawfulness.
The Bill reasserts that remedial flexibility so that remedies can be tailored to the particular needs of relative interests and values implicated in the facts of the case. In proposed new section 29A(8) of the Senior Courts Act 1981, you have a list of factors that will guide courts in exercising their discretion, and those factors are drawn from the common law, so dovetail with pre-existing doctrine. Importantly, they give litigants and the Government fair warning of the factors that will bear on remedial decisions. Subsection (8) requires that
“the court must have regard to”
those factors, which has the benefit that the court will apply the same framework in every case. That provides consistency of principle and ensures transparency, because the court will have to work through those particular factors to reach a conclusion regarding what type of order ought to be given on the facts of the case.
In my view, one problem with subsection (9) is that it erects a presumption. It is a particularly weak presumption, and therefore one might question what the justification for it is, but more generally I am not necessarily in favour of a presumptive approach one way or the other, because that can undermine the court’s capacity to adapt to the particular facts of the case and respond to the particular factors that arise—the public interest in good administration, the interests of third parties and so on. Necessary flexibility is built into the scheme, but there is also fair warning of the factors that will be taken into account pursuant to subsection (8), which is a particularly important provision in that regard.
The Chair
I am conscious of the time, and I think the Minister will want to ask the final question, so I will take a short response to Dr Johnson’s question from one of you. Then I will move across to the Minister before we close the panel.
Professor Ekins: Briefly, I agree with everything that Jason said. One could add a little more detail perhaps to the factors in subsection (8), tying in with Sir Stephen’s point about the significance of whether something is a legislative act. That seems like something that should be at the forefront of the court’s mind. It is a weak presumption in subsection (9). One could either remove it or tailor it, narrowing it so that the presumption arises only where the decision making in question is legislative in character or on a general policy decision, rather than casework, to use Sir Stephen’s term. At the moment, it is a very broad presumption, and a very weak one, and it might be more useful if it were narrowed and applied in a more focused way.
The Chair
Quickly, Sir Stephen.
Sir Stephen Laws: I am a legislative drafter. I am used to people asking me to guarantee when a discretion is conferred that it will be exercised in the way that they wish. I think I agree with Professor Ekins that more detail would be desirable.
The Chair
Thank you. To ask the final question, I call the Minister.
The Parliamentary Under-Secretary of State for Justice (James Cartlidge)
Q Thank you, Sir Mark; it is a pleasure to serve under your chairmanship. I thank our three very distinguished guests for their excellent contributions and some very interesting points. I will finish with one point on Cart JR. I think Professor Varuhas made the point about the upper tribunal effectively being a superior court. On Second Reading, my hon. Friend the Member for Newbury (Laura Farris), who has acted on Cart JR cases as a barrister, made this point about consistency: in very few other areas of law do we have what we call three bites of the cherry. Very briefly, does it not seem strange that no one arguing to maintain Cart JR seems to be arguing that all the other areas where there are only two bites of the cherry should now have three? Would that not be the logical conclusion of that position?
The Chair
I think we have time for only one response, so who should take it?
James Cartlidge
It probably has to be Professor Varuhas.
Professor Varuhas: I reiterate what I said before in response to your question. The phrase on the number of bites of the cherry comes from a speech given by Lord Carnwath, who raised this point and considered that it was disproportionate that an applicant in this context should have so many bites of the cherry, given that the upper tribunal has the status of the High Court. It is a judicial body, independent of Government, that is staffed by senior members of the judiciary with specialist expertise. Given the credentials of the institution, it seems disproportionate to allow a further three or four bites of the cherry after an application has proceeded through those stages and been found not to have merit. I think the point is well made.
I will abuse my position to add one further point on the remedies provision. Professor Ekins reminded me that I meant to say that one discretionary factor that should be added under subsection (8) is the public interest, which is a curious omission because the public interest can be seriously prejudiced by decisions on remedies in the interests of the economy, national security and so on. That should be factored into the remedies.
Although I went slightly off topic at the end, I certainly agree—
The Chair
Order. I am afraid that brings us to the end of our time. I thank our witnesses on behalf of the Committee for their evidence today.
Examination of Witnesses
Professor David Feldman and Dr Jonathan Morgan gave evidence.
The Chair
Q We now move on to panel 2. We have one witness present, Dr Jonathan Morgan, and a virtual witness, Professor David Feldman.
We will hear oral evidence from Professor David Feldman and Dr Jonathan Morgan, both of the University of Cambridge, for just under an hour. Without any further ado, I ask them to make their introductory addresses.
Professor Feldman: Thank you, Chair. I am David Feldman, the emeritus Rouse Ball professor of English law at the University of Cambridge and emeritus fellow of Downing College, Cambridge.
I have been working in this field for some 40 years, and I take a great interest in what is going on. In relation to the proposed new provisions set out in clauses 1 and 2, I suggest that one should approach them on the basis of the constitutional background and the importance of judicial review and access to courts.
On the constitutional importance of keeping public officials within the limit of the powers set by Parliament, parliamentary sovereignty requires that there should be independent interpreters and adjudicators to keep the people to whom statute delegates power within the limits set by Parliament. That is complicated by the requirement of the rule of law that requires obedience to law by Government and scrutiny by an independent judiciary on the lawfulness of behaviour.
The combination of parliamentary sovereignty and the rule of law, together with article 6 of the European convention on human rights, where applicable, requires access to independent and impartial courts and tribunals and it requires the availability of effective remedies for violations of law, where those are found to have taken place.
The Chair
Professor Feldman, may I interrupt before you go any further? We obviously want to use the majority of our time for questions from Members. Although I am happy for you to give a brief presentation, I want to introduce our other witness so that we can open up for questions. If you could bring your opening remarks to a close, I can get Jonathan Morgan to introduce himself. The floor is still yours, but please be conscious of that.
Professor Feldman: The conclusion is that the provisions in clauses 1 and 2 affect access to courts and the effectiveness of remedies and, therefore, should be examined with very great care to make sure they are justified.
The Chair
Q Thank you. Dr Jonathan Morgan, do you want to say a bit about yourself and your view on the topic? Then we will open up for questions.
Dr Morgan: My name is Jonathan Morgan. I am a reader in English law at the University of Cambridge and a fellow of Corpus Christi College. Like any academic, I would be delighted to address you on the sexy subject of constitutional theory, but having heard what my learned friend has experienced, I will not do that now. I will just say a couple of things about the Bill before us.
It seems to me that clause 1 is highly welcome, but it needs two significant amendments to make it perfect. Clause 2, which is on the Cart review, is compatible with the rule of law, but there are some very real costs to doing this, and Parliament needs to confront them. One of the costs is that the very few people who succeed in Cart reviews will not have that avenue in future. I am happy to substantiate those in questions, but I will not enlarge on that now.
Dr Johnson
Q I have a question for Dr Morgan. I am not a lawyer, so forgive me if this question is insufficiently sophisticated. The Cart review is a judicial review of the upper tribunal in the immigration service. My understanding is that judicial reviews are designed to review the capacity of the Government to make a lawful decision, but we have heard that the upper tribunal is not a Government decision; it is a court decision. Is the Cart judicial review unusual in that respect? Are there other examples, or is it an anomaly that there is a review of a decision by a senior court, rather than a Government decision?
Dr Morgan: I think you have put your finger on it, lawyer or not, because Cart deals with a fairly unusual situation, exactly as you have said. This is to do with the level of appeals within the judiciary. Critics of clause 2, who say that this is doing violence to the rule of law and is setting a bad precedent by immunising the Government from being judicially reviewed, are therefore somewhat missing the point. Clause 2 has its cost, but I do not think it immunises Government decisions from judicial review. It simply says how many reviews or appeals there should be within the judiciary. I was here for the previous panel of witnesses, and in terms of whether you have permission to review within the court system, the number of “bites of the cherry” is a good way to put it.
One overall criticism of the Supreme Court might be that it failed to give proper respect to the tribunal system as a branch of the judiciary. It had a slightly legacy, old-fashioned view of the tribunal system as something that needed to be under the supervision of the High Court, and so on. That is why Lord Carnwath, who, as we have heard, is a former Senior President of Tribunals, has been a critic of the Cart decision. It is important to see clause 2 as to do with arrangements within the judiciary. Yes, there is an ouster clause in clause 2, but it does not immunise administrative or Government decisions. It immunises decisions of what is, in effect, a court by another name—the upper tribunal.
The Chair
Dr Feldman, do you want to come in on that? I noticed that your volume was quite low. If possible, could you raise your voice a little bit?
Professor Feldman: I beg your pardon; I did not hear that.
The Chair
Q Would you like to respond to the question? If you do, could you please raise the volume a little? You were very quiet in your opening remarks.
Professor Feldman: Thank you. The only thing I would add to what Dr Morgan has said is that judicial review is seen as a general safety net. One of its functions is certainly to scrutinise Government decision making and action, but it is there as a backstop to deal with unlawful action by any public body. One starts with the presumption that judicial review is available unless there is some specific reason for excluding it. It is clear that the justification for interfering with access to judicial review may be stronger where a body is a judicial body, and where a litigant has already had the chance to have his or her case heard by an impartial and independent tribunal, rather than simply by an administrative body.
Dr Johnson
Q I have a quick question, and forgive me for not knowing this. The upper tribunal is a superior court of record that, according to my notes, is equivalent to the High Court. Is it normal for High Court decisions to be subject to judicial review?
Professor Feldman: The answer is that the courts held in Cart that being a superior court of record does not immunise a body from being subject to judicial review. For practical purposes, the High Court is immune to judicial review, because it is the High Court that carries out judicial review. It extends, as they used to say, to all inferior courts and tribunals—that is, below the level of the High Court—as well as public officials. It is a matter of basic principle that the upper tribunal was to be subject to this, even if, as Lord Justice Laws said in Cart, the upper tribunal would be seen as the avatar of the High Court.
Dr Morgan: In my view, this is what went wrong in 2007, so apologies to any Members who were in Parliament then. In 2007, Parliament thought that by designating the upper tribunal as a superior court of record, it would immunise it from judicial review. That is what the Government argued in Cart, but they failed to convince the High Court, the Court of Appeal and the Supreme Court.
To ingratiate myself with Members, I will say that the fault was not only that of Parliament but that of the Leggatt report on tribunals, which said that there should not be judicial review of the upper tribunal and that by designating it a superior court of record, Parliament would immunise it from judicial review. I am afraid that Sir Andrew Leggatt turned out to be wrong on that when it got to the courts. It is true that Leggatt had said that there should be an express ouster clause, which Parliament did not put in. If Parliament in 2007 had gone for the belt-and-braces approach and not relied only on the status of the upper tribunal as a superior court of record, Cart would never have happened and we would not be here today discussing it. In a way, this problem has been 20 years in the making.
Dr Johnson
Q Just to be clear, it is the equivalent of the High Court but it is not treated as such.
Dr Morgan: More or less. I think Lord Justice Laws called it the alter ego of the High Court, but that is not quite the same thing.
Andy Slaughter
Q May I clarify whether, at present, a judge can make a quashing order limiting or eliminating its retrospective effects, or suspend the effect of a quashing order? There has been some debate around that, given the proposals in the Bill.
Dr Morgan: I wrote an article about that in 2019 before IRAL was even thought of. It is not like me to be ahead of the trend. In it, I analysed in particular the Supreme Court’s decision in Ahmed and others v. HM Treasury—the freezing orders case. Ahmed causes enough doubt on the question that legislating to put it beyond question is a worthwhile use of Parliament’s time. There are some precedents the other way—in a case called Liberty, the divisional court suspended a declaration—but on quashing orders, the reasoning of the Supreme Court in Ahmed (No. 2) suggests that it is just not possible to suspend a quashing order. In my view, that is unfortunate, because judicial review remedies are in every other respect discretionary, so why not here? In the debate on IRAL in the House of Lords, Lord Hope said that he was dismayed to be in a “minority of one” when he dissented in Ahmed on postponing it. He certainly approves of clause 1. It is at least a doubtful point, and sufficiently doubtful that the legislation is worth it.
Andy Slaughter
Q You are saying there are two separate issues: whether it is a sensible proviso, and whether there is certainty at the moment.
Dr Morgan: Yes. My position is that it is a sensible remedy, and at the moment, it is certainly not clear whether the courts can do it. Clause 1 will, beneficially, clarify that.
Andy Slaughter
But a court might attempt to impose—
Dr Morgan: For a court below the Supreme Court, the obvious precedent that the applicant would cite would be Ahmed, and it would be very hard for a lower court to get round that, I think.
The Chair
Q I see Professor Feldman nodding his head. Do you want to comment on that point?
Professor Feldman: I think that is completely right. There is a big distinction between quashing orders and declarations for this purpose. What Ahmed (No. 2) did was to eliminate the difference—a quashing order quashes, whereas a declaration can only declare that a body has a duty or has breached a duty or has not breached a duty, and that is something that is not limited as to time. I also agree with Dr Morgan as to the effect of Ahmed (No. 2) on lower courts. However, I think there is a big distinction to be drawn between the suspending of a quashing order where, as the Bill says, the retrospective impact remains when the quashing order eventually takes effect, and a prospective-only order, which seems to me to raise significantly more problems of principle and of practice.
Andy Slaughter
Q Clause 1 gives the courts a discretionary power to grant a full remedy to a claimant, but to limit the retrospective effects of the judgment for any other individual who has not issued a claim before the date of judgment. Is that right? If so, are you concerned that it could lead to unjust outcomes for those already impacted by unlawful decisions?
Professor Feldman: One of the difficulties of having a prospective-only remedy is that it is only prospective, and by definition a remedy of this kind would take effect only if the court had already decided that the claimant had been treated unlawfully. To say to a claimant, “This is going to be prospective only” strongly implies it is not going to protect the claimant himself or herself. Some way would have to be found of protecting the claimant, and other people in the position of the claimant, if one did not want to be stuck in the position of saying, “These people were treated unlawfully, but they are not going to have a remedy.”
In clause 1, there is nothing that makes it explicitly clear that a court could say, “I am going to give you a prospective-only remedy, except that it would be retrospective for the purpose of protecting you.” The court might be able to do that, but then you also have the problem of other people in the same position as the claimant—all those people would have been treated unlawfully. It seems strange to me that they should have to suffer unlawfully because the remedy is only prospective.
The language of clause 1, under which proposed new section 29A(4) of the Senior Courts Act 1981 would state,
“if the impugned act is…upheld”
is very odd. Subsection (5) says,
“it is to be treated for all purposes as if its validity and force were, and always had been, unimpaired by the relevant defect.”
That makes it quite difficult to see why one should give a remedy to people who are deemed in that case not to have suffered a legal wrong.
I think it is quite a problem, unless the clause is amended to expressly allow a judge to give a remedy to someone who has obtained a prospective-only order, despite the fact that the law and treatment were to be treated as entirely lawful.
The Chair
Have you finished, Professor Feldman?
Professor Feldman: Yes, thank you.
The Chair
Dr Morgan.
Dr Morgan: I agree with what David Feldman said, but perhaps I could suggest a solution. This is an amendment that should be made to clause 1. Proposed new section 29A(2) to the Senior Courts Act 1981 says that the order
“may be made subject to conditions.”
I think the court should have the power to set as a condition of making a prospective-only order or suspending the order that compensation should be paid to the particular applicant. In my view, that would be a way of squaring the circle of postponing the effect of quashing an entire piece of legislation—saying that is not going to happen today, but is going to happen in six months’ time to give the Government time to prepare.
Of course, that would work great injustice on a successful particular applicant who has paid to take their case to court, has won and then does not get any redress at all. However, if the court were empowered to grant compensation, that could be a way of achieving both those things. I am a public lawyer, but I also teach contract and property law. If you get an injunction in a tort case, the court might suspend the injunction for a period of time and, if it does so, it will give compensation during the period of suspension. It is on that sort of model that I think this could work.
You could argue that while proposed new section 29A(2) says orders
“may be made subject to conditions”,
the explanatory notes say that those could be any conditions the court likes. However, given that the courts cannot award compensation for public law wrongs, it is very doubtful whether that implicitly contains a power to award compensation. I think that proposed new section 29A(2) should be amended to say that orders may be “made subject to conditions including, if the court sees fit, compensation.” That might be a way of reconciling those competing objectives.
Andy Slaughter
Q Do I take that to mean that the way the proposed new section is drafted could dissuade individuals from initiating judicial review proceedings, because they may not obtain a remedy?
Dr Morgan: Yes. That point was made by many Members on Second Reading. It could be a real problem, in particular if it became the norm and the court ordinarily postponed orders. In my view, the court should not ordinarily do that; it should be in exceptional cases only. That takes us on to the presumption in subsection (9) —but perhaps we will come back to that at a separate point. There are two problems with it: first, the presumption; secondly, the absence of a compensation power.
Professor Feldman: May I add two things to what Dr Morgan has said? I agree with what he says in principle.
First, the compensation remedy may not be useful to all claimants. If one is about to be deported as a result of having one’s unlawful decision treated as lawful, for example, compensation is unlikely to be an effective and adequate remedy. There are lots of other types of administrative wrong that lead to people suffering loss or injury that cannot readily be financially compensated.
Secondly, if one is going to compensate, one has to consider all the other people who have been treated unlawfully, who are in a similar position to the claimant, but who are not before the court, so the court cannot order compensation for them. Perhaps one needs to consider whether a court should be empowered to require the provision of a compensation scheme for all those in a similar position to the claimant. That could be a lawful step.
It is also true, as Dr Morgan said, that the administrative law of the English system does not treat financial compensation as a readily available remedy. Therefore, some express permission would have to be made to allow the courts to do it.
Andy Slaughter
Q I do have one other question on ouster but, Dr Morgan, just before we leave clause 1, you mentioned a presumption. Do I take it from what you have said already that you are concerned about that provision in clause 1? Is that because of the way that it is drafted, or because of the inclusion of a presumption per se, in this context?
Dr Morgan: I would take the presumption out altogether. I think what this clause is doing—certainly what it should be doing—is enlarging the power of the courts to tailor relief in a way that they see fit, and removing the obstacle that the Supreme Court laid in their path in Ahmed v. HM Treasury (No. 2). Thus, I just do not see why it is there. The Government say that it is to encourage the courts to use this remedy, but I do not see why we should try and push the courts in a particular direction.
I also think, if subsection (9) is taken out, subsection (8) could be taken out as well. At the moment there is a need to try and direct the court what to take into account; the drafting is already getting very complicated. I think that probably everyone who has written you a paper has suggested more paragraphs that could be put in subsection (8); I think it is going to end up very long indeed. We are talking here about High Court judges; it is very senior judges who will be making these decisions, and in my view, they can simply be trusted to make the appropriate decision based on the facts. That is my first point—I would take it out.
If we are going to keep it in, it is virtually doing nothing at all. I think the courts will be very reluctant to find that there is an adequate redress, because they will say, “The claimant is not going to get anything, so that is not adequate redress.” I think if the court does find that it is satisfied, they will say, “There is a good reason to make the quashing order immediate and retrospective, because that is what we ordinarily do. It is important to do that to keep the Government within the limits of its powers.” I think that subsection (9) is not going to do anything other than generate needless litigation about this; it will become a question that has to be considered in every case, whether it is really relevant to the facts or not. Therefore, I suggest that subsection (9) should go.
Andy Slaughter
Professor Feldman, do you agree with that?
Professor Feldman: I do. Subsections (8) and (9) have twin disadvantages. First, they try to create a presumption that something will happen regularly, when we know that it will not, for the reasons that Dr Morgan has given. Secondly, they are unnecessary because the courts are quite capable of making judgements for themselves. Look at subsection (8)(f):
“any other matter that appears to the court to be relevant.”
This opens up the field very nicely; I do not see anything there that is necessary.
Andy Slaughter
Q Finally, I will ask the same question that I asked the previous panel about ouster, and the Government’s comment in a press release that the
“text that removes the Cart judgment will serve as a framework that can be replicated in other legislation.”
Do you think that is a sensible way to go about legislating?
Professor Feldman: Is that for me?
Andy Slaughter
For either, or both.
Professor Feldman: I will start then, if I may. I think there is a real difficulty about a provision of this kind being used as a template, because there are two questions that arise. First, is this a situation in which it is justifiable to exclude the High Court supervisory jurisdiction? Secondly, have we drafted a provision that will work and have that effect?
In relation to the first, I think it is important to note that parliamentary sovereignty and the rule of law generally require that people should have access to courts to determine the lawfulness of action. There is a functional inconsistency between Parliament’s saying that there are limits to the powers of a body or person and, on the other hand, saying that that person or body can decide for themselves, effectively, what those limits are. That is quite apart from the importance of access to courts for the rule of law.
I approach this by asking whether this sort of exclusion of review is justifiable. On balance, I think it is, for a combination of reasons. First, because it excludes review of judicial bodies, not of administrative or executive agencies. Secondly, because the number of people who will suffer, although we can never be quite sure, looks as if it will be relatively small compared with the number of people who would suffer generally if we cut off all judicial review. Somewhere around 3.4% of these cases end up being successful, the Government estimate, compared with 30% to 50% in most other judicial review situations. Bearing in mind the need to use judicial time as efficiently as possible, it may be that this is not a proportionate use of judicial time, in which case one might say—although I say this with great disquiet—that the ouster is justified.
Does it work? Yes, I think it does, for roughly those reasons. Courts will not kick against it, given that the claimant will have had two bites at the cherry already before a judicial tribunal. Is it a template? I am not sure that it will be either necessary or perhaps effective to use this sort of thing in situations in which someone is getting review of other types of decision by other types of agency in different circumstances. For example, I note that in another Bill before the House, the Dissolution and Calling of Parliament Bill, there is an attempt to exclude judicial review of decisions concerned with Dissolution of Parliament and purported decisions. Clause 3 of that Bill does not go into any such elaborate provision as are provided here. Presumably, the drafter of that considers that it will work, because of the nature of the decision that is being considered.
Dr Morgan: My position—
The Chair
Very quickly, because four more people want to ask questions. We are running on time.
Dr Morgan: Very briefly, I broadly agree. I think this will work for Cart. I think the Government are mistaken to see it as any kind of template, and that they can put exactly the same words into another Bill about some other different matter and that it will work, because it is not only about the words that Parliament uses but the entire context. Sir Stephen Laws, himself a parliamentary draftsman, made just that point—that it is not only the literal meaning of the words but the whole context. That is why it will work in Cart, but it may not work in another statute, even if precisely the same words were used. I would not see it as a template or model.
Sir John Hayes
Q So you are clear that the law needs to be altered, because of what you said about the 2007 circumstance. There is a good argument for greater clarity and certainty around this area of work. Furthermore, there is an argument for going further. For the reason that you just gave, there is an argument for taking a more comprehensive view of how judicial review should be reformed. I am particularly mindful of the points that were made in the earlier evidence session about judicial activism and the challenge that it represents to Lord Bingham’s affirmation. You will remember the Jackson v. Attorney General case about the Crown in Parliament and its supremacy. The need for legislation is clear. The Bill is good in parts but, if anything, the Government need to go further.
Dr Morgan: There was a debate earlier about whether this should be described as tit for tat, which I do not like either, but doing it on a case-by-case basis. If you are not a lawyer and you read through the Cart judgments, you will see that it is all highly technical stuff about the number of appeals you should have within a particular structure. I have never heard anyone suggest that the judges in Cart were guilty of judicial activism. I think it is a relatively technical problem that has created a lot of expense and lots of hopeless judicial reviews, and the Government are taking action to address that.
I will not keep saying “sexier subjects”, but the more egregious examples of muscular judicial review have been mentioned earlier: Privacy International, the Prorogation case, and Evans v. Unison. There is a case for Parliament to reverse them. In my view, it has a constitutional right to do so if it wishes, but they should probably be taken one by one. Maybe we need a different Bill to do that, and the Government can tell us whether that is their intention, but the two clauses here deal with some real problems in a fairly unflashy way. Ouster clauses might be needed if we are to reverse the other cases, but I think that has to be debated separately. It is not really within the scope of the Bill at all.
Sir John Hayes
Q So in that sense, the Bill is welcome. I take your interesting point about compensation and how clause 1 might be amended as a way to deal with some the challenges associated with the Bill, but essentially the Bill is needed and, inasmuch as it aims to do what you describe, is welcome.
On the issue of judicial activism, is this the right Bill to explore that, or are you suggesting, as you implied just a moment ago, that perhaps another piece of legislation will be introduced to deal with that in the light of the Evans case, the Miller case and the other cases that we have seen prevailing over a number of years? There is a challenge for democratic Government that needs to be addressed.
Dr Morgan: In my view, it would be a shame if the valuable things that are in the current Bill were lost because other things were put in that were frankly much more controversial. I am not the manager of parliamentary time; I do not know how easy it is to get another Bill going through. There is always a temptation—the Minister laughs—to tag things on, so maybe this is an opportunity not to be missed. I have read Richard Ekins’s list of desirable amendments, which would keep Parliament going for about five years, and with heated rows, if all those were put in.
Sir John Hayes
I will take that as an invitation to table some desirable amendments and probe the Government on exactly that matter. I am grateful.
The Chair
Professor Feldman, do you want to come in on that?
Professor Feldman: Only to say that I would not want to be thought to agree with the suggestion that there has been a sudden rush of judicial activism. Judicial activism is extremely difficult to define, and people who say there is a lot more judicial activism than there used to be tend to pick on a very small number of fairly high-profile cases over the last few years. It may be that there are more of those than one might have expected in the length of time passing. Having been involved in this subject for over 40 years, as I said before, it seems to me that there has been a process of gradual—it has been gradual—development of principles of administrative law and their application since the 1950s, so we are talking about getting on for 70 years.
Nothing has happened suddenly and things have not all gone in one direction; there has been progress in one direction and then a pushback. I suspect we may be going through a pushback at the moment, within the judiciary itself. Judicial activism is a term that I do not really understand and I would not want it to be the basis of legislation.
Sir John Hayes
Q I simply recommend that you read the Attorney General’s speech on this, delivered in Cambridge about a week ago, which sets out exactly why this matters and defines judicial activism pretty well. I make no more comment, but refer you to that.
Professor Feldman: Thank you. I shall read it with interest.
Janet Daby (Lewisham East) (Lab)
Q Returning to quashing orders, the Bill proposes the introduction of suspended quashing orders. They would allow the courts to give public bodies a certain amount of time to correct an unlawful act, instead of immediately striking it down. Could this have any negative implications for claimants in judicial review proceedings?
Dr Morgan: I think I just want to repeat what I said earlier, which is that it certainly could. To adopt Professor Feldman’s example, if the court suspends the effect of its order in an immigration case, you might have been deported by the time the order comes into force. Certainly it could cause serious problems for applicants in particular cases, but there are countervailing advantages, particularly where we are dealing with the general legislative scheme, which the court would otherwise immediately quash with retrospective effect. That could cause enormous difficulties in a very important area.
The Ahmed case was about quashing these freezing orders, made by requirement of the United Nations Security Council on suspected international terrorists. The court said that the whole legislative scheme had to be immediately quashed, as many Members will remember. It required emergency legislation to deal with it. In cases like that it could be beneficial, but it could cause a problem for a particular applicant. My earlier answer suggested how we might try and address it; Professor Feldman was right to say that damages and compensation are not always the answer, but they might be sometimes.
The Chair
Q Professor Feldman, do you want to comment on that?
Professor Feldman: I will just say that lying behind this there is a difficulty that faces people drafting legislation like this. The onus is to be general and to apply to all kinds of decisions and rules, whereas, in fact, quashing a rule has rather different implications from quashing an individual decision, so the approach to it has to be similarly different.
The Chair
Are you happy with that, Janet?
Marco Longhi (Dudley North) (Con)
Q I am glad you mentioned immigration and asylum a few moments ago, because back in 2004 the Labour Government tried to remove judicial review by using a very broadly worded ouster clause. Does this not suggest that removing Cart JR, with a tightly worded ouster clause, is in fact just a moderate and proportionate step?
Dr Morgan: The context was slightly different. You could say the ouster clause before us in clause 2 is less extreme, because it allows for JR on certain very narrow grounds. That is one reason why the courts would be more likely to accept what is now proposed than the Labour proposals back then. Of course, they were never even enacted, let alone reached the courts, so it will be a nice hypothetical question about whether it would have survived scrutiny or not. All it shows is that this particular question of having a huge volume of challenges, very few of which succeed, is not a new problem. It has been there for at least 20 years. Successive Governments have wrestled with it.
Cart was a very noble attempt to hold a balance, but even some of the judges who decided the case—Lord Brown and Lord Hope—have now accepted that their solution has not worked and perhaps a more drastic solution, as in clause 2, is justified. I think if the judges themselves are accepting that they went too far, that is something Parliament should take careful note of.
Marco Longhi
Thank you. I am glad that you referred to the words “less extreme” in your commentary.
Professor Feldman: I agree with what Dr Morgan said.
James Cartlidge
Q I was very struck by the point from Professor Feldman about resource and proportionality in relation to the Cart judicial reviews. He made the point about the 3.4% success rate being very low compared with estimates of success. I am not sure that that is necessarily definitive. You suggested 50% for what we might call other JRs. The average number of judge days used on these cases is something like 180 days of what is, after all, the High Court judge’s time, so your point on proportionality is important in terms of resource—albeit the legal considerations are very important as well. Currently, we as a Government, who are accountable for resources, are faced with this covid-related backlog, particularly in the Crown court but in other parts of the courts as well. Given the average number of judge days, would you agree that currently the resource issue is even more important to take into account?
Professor Feldman: That is a perfectly fair point. Success rates in judicial review are extremely difficult to assess. There have been some very good studies. The consensus that has emerged seems to be of between 30% and 50% success rates, which takes account not only of the favourable decisions from judges, but also of the favourable, or more or less favourable, out-of-court settlements of the claims, which allow litigants to withdraw their claims before they get to a full hearing. If it is 3.4% or so, that is, I would say, a significant but not huge figure.
The question for Parliament is: what amount of injustice should be contemplated as acceptable in the face of the shortages of judicial time? As the Supreme Court said in Cart, if you overload judges with a certain type of decision, less time is available for them to deal with other types of claims, which might be equally or more deserving. It is a really difficult question, but I think it is a fair one.
Dr Morgan: This is a deeply political question, because what it requires is a trade-off between expense, court time and the rational use of limited court time against the achievement of justice. We must not forget that sometimes Cart reviews do succeed. That means that there is either a point of law of public importance that the High Court has corrected, or that something has gone very seriously wrong with the facts of a particular case. Again, the High Court has given justice to the particular individual. The kind of cases we are talking about involve very vulnerable individuals. It was put rather well by Andy Slaughter on Second Reading:
“Cart reviews are a last-gasp defence for some of the most vulnerable people in the most desperate situations.”—[Official Report, 26 October 2021; Vol. 702, c. 230.]
In order to save money and economise on judicial resources, that is the cost that Parliament faces. In the end, that is why this is probably a question for Parliament, rather than the courts, because Parliament has the public purse, which the courts do not. It is very hard for the courts to make decisions which inevitably influence resource allocation.
That is not a criticism of the Supreme Court and Cart. Lord Dyson in Cart said something very interesting. He suggested that Parliament in 2007 should have addressed this question and failed to do it, and it now fell to the courts to do it instead. That was the suggestion in Cart itself; the courts felt they had been left to deal with some unfinished business in the 2007 Act. Well, the courts gave their answer and, in my view, Parliament is fully entitled to take a different view, but with the costs of it to certain individuals squarely in mind.
James Cartlidge
Q Thank you very much, that is a fair point. On the matter of resource, it clearly is a political point. It is, after all, the most fundamental role of Parliament historically. You will be aware that we referred to the 2004 Bill—I think it was introduced in 2003—and you have made the point that it is effectively long-running governmental aim, regardless of party to address this. I think I am right that in when the Immigration and Asylum (Treatment of Claimants, etc.) Bill was in Committee, the then Minister, the right hon. Member for Tottenham (Mr Lammy), said that at that time it was something like 3.6%, so it seemed to be viewed then by a Government of a different colour, on the proportionality issue, disproportionate.
I had the great privilege of attending the Lord Chancellor’s swearing in. One of the things he swears is that he will ensure that resources are provided to the judiciary. This is not just about public money per se; it is about time, which is incredibly precious. Arguably, there is a context which goes back some years which seems to recognise on both sides that this is disproportionate in resource terms.
Dr Morgan: I agree. This does not seem to be a partisan point. It is about how best to deploy the resources of the judiciary. I hope the judges have been consulted on this reform, but retired judges who speak on it in the House of Lords seem to be sympathetic to the objectives.
Dr Johnson
Q Dr Morgan, you talked about people in these situations being very vulnerable. Obviously, it is important that we get as many of these decisions correct as possible. Why are the very few appeals that are successful, successful? Are there other ways in which we could reduce the number of people who may have had an erroneous decision? In particular, where there has been a win in the Cart judicial review, is it due to legal technicalities of process and, if so, how much difference would that have had on the actual decision of the upper tribunal if they had followed the process? Would the person have had the same outcome?
Dr Morgan: The answer might be to a slightly different question. I refer the Committee back to some things that were said in Cart itself. Both Baroness Hale and Lord Phillips, two Presidents of the Supreme Court at different times, said the reason why there are so many immigration and asylum challenges is because people are desperate. Lady Hale said:
“There is every incentive to make the road as long as possible, to take every possible point, and make every possible application.”
She went on to say she did not blame people, because people are desperate, and we can hardly blame them for doing this, but she said that that was why there was such a problem. It does create a resource problem for the courts, because in the immigration and asylum system there is bound to be a huge number of applications, even if most of them are doomed to fail. In fact, Lord Phillips seemed to recognise that Cart was sowing the seeds of a great problem. He said:
“The stringency of the criteria that must be demonstrated will not discourage a host of applications in the field”.
He was the judge who came closest to saying we should not have had Cart judicial reviews, as they are now known, at all.
That is one reason why this creates such a problem: people will try every avenue to challenge a decision, even in a fairly hopeless case, for reasons that we can all appreciate. That is why I think an even more stringent approach than Cart is perhaps needed to close down the avenue, if that is what you want to do.
Dr Johnson
Q I guess I was asking about concern about those few people who may have had a change in decision and would argue against that change. I am interested in understanding the reality of those people’s situations. Would the decision of the upper tribunal have been the same had the legal process been followed? Are those decisions based on legal technicality rather than merits of case?
Dr Morgan: The statistics that the Government presented in their response to the consultation used a criterion of success that I think answers your question. A successful Cart judicial review did not just mean that the High Court sent it back to the upper tribunal; you then had to win in the upper tribunal, so you actually had a good case on the facts. The Government came up with a figure of 3.5% success in that sense, so I do not think that they could be written off as legal technicality cases, although some people do successfully get a Cart JR and then fail when it goes back to a substantive hearing, and it could fairly be said that some of those are legal technicalities.
Members in the Second Reading debate referred to various case studies of actual live cases where something had clearly gone badly wrong and it was only a Cart JR that rescued it. I cannot remember whether it was 50 cases per annum or 50 cases in total—it is not a huge number—but in each case, it really matters to someone’s life.
The Chair
Are there any final questions? We are running short of time, but I will take one more if anybody wants to come in.
There are no further questions from Members, so I thank both witnesses for coming in to give evidence in person. It has been very useful indeed.
Ordered, That further consideration be now adjourned. —(Scott Mann.)
Adjourned till this day at Two o’clock.
Nationality and Borders Bill (Thirteenth sitting)
(3 years ago)
Public Bill CommitteesRead Full debate Read Hansard Text Read Debate Ministerial Extracts
The Committee consisted of the following Members:
Chairs: † Sir Roger Gale, Siobhain McDonagh
† Anderson, Stuart (Wolverhampton South West) (Con)
† Baker, Duncan (North Norfolk) (Con)
† Blomfield, Paul (Sheffield Central) (Lab)
† Charalambous, Bambos (Enfield, Southgate) (Lab)
† Coyle, Neil (Bermondsey and Old Southwark) (Lab)
† Goodwill, Mr Robert (Scarborough and Whitby) (Con)
† Gullis, Jonathan (Stoke-on-Trent North) (Con)
† Holmes, Paul (Eastleigh) (Con)
† Howell, Paul (Sedgefield) (Con)
† Lynch, Holly (Halifax) (Lab)
† McLaughlin, Anne (Glasgow North East) (SNP)
† McDonald, Stuart C. (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)
† Owatemi, Taiwo (Coventry North West) (Lab)
Pursglove, Tom (Parliamentary Under-Secretary of State for the Home Department)
† Richards, Nicola (West Bromwich East) (Con)
† Whittaker, Craig (Lord Commissioner of Her Majesty’s Treasury)
† Wood, Mike (Dudley South) (Con)
Rob Page, Sarah Thatcher, Committee Clerks
† attended the Committee
Public Bill Committee
Tuesday 2 November 2021
(Morning)
[Sir Roger Gale in the Chair]
Nationality and Borders Bill
Clause 48
Identification of potential victims of slavery or human trafficking
The Chair
Good morning, ladies and gentlemen. Electronic devices switched off, please, and masks on, if possible, as a courtesy to colleagues. No food and drink in the room, and all that sort of stuff. You will have noticed that there is a change of Minister this morning. [Hon. Members: “Hear, hear!”] Welcome, Mr Whittaker. We crack on.
Holly Lynch (Halifax) (Lab)
I beg to move amendment 185, in clause 48, page 43, line 3, leave out from “determination” to end of subsection (4) and insert
“determinations mentioned in paragraphs (c) and (d) are to be reviewed by the Multi-Agency Assurance Panels, who will have the power to overturn the determinations made by the competent authority.”
This amendment seeks to introduce Multi-Agency Assurance Panels at the reasonable grounds stage and will enable them to overturn decisions made by a competent authority.
It is a pleasure to serve under your chairmanship once again, Sir Roger. I both congratulate and commiserate with my neighbour, the hon. Member for Calder Valley, on his rapid promotion this morning to take forward an incredibly important piece of legislation. I wish him all the very best with the rest of the week.
Amendment 185 seeks to build upon the Modern Slavery Act 2015 and introduce multi-agency assurance panels at the reasonable grounds stage, as well as enabling them to overturn decisions made by a competent authority. That would ensure that multi-agency scrutiny is applied at the first stage, offering an important safeguard. Multi-agency assurance panels were part of a range of reforms to the national referral mechanism that were announced in 2017, following the NRM review commissioned by the Home Secretary in 2014. A recent review provided key recommendations, such as establishing new multidisciplinary panels headed by an independent chair, with a view to replacing the decision-making roles of UK Visas and Immigration and the UK Human Trafficking Centre with a single competent authority.
At present, there is multi-agency scrutiny only of negative conclusive grounds decisions, which, even then, is limited, with panels having the power only to ask the single competent authority to review a decision, as opposed to overturning it. A recent review of the national referral mechanism multi-agency assurance panels conducted by the Anti-Trafficking Monitoring Group found that
“at present, MAAPs do not adequately assure NRM decision-making”,
the reasons for which include that there is
“no multi-agency involvement in the reasonable grounds stage of the NRM, undermining confidence that there are any checks on bad decision-making at this first stage”.
The report also pointed to
“MAAPs lack of decision-making powers”
and times at which
“the evidence reaching the panels is minimal and of poor quality”.
The amendment applies those recommendations and highlights that, as the reasonable grounds stage is effectively the gateway to all anti-trafficking support, an extra level of safeguarding should be available to ensure good decision making. Both the amendments tabled to clause 48 are necessary to ensure that we are not turning our back on victims and restricting opportunities for individuals to refer into the NRM and receive the support they need. The measures have been widely endorsed across the sector and seek to introduce examples of best practice. I therefore strongly hope that the Minister will join us in endorsing these changes.
The Lord Commissioner of Her Majesty’s Treasury (Craig Whittaker)
It is a pleasure to serve under you, Sir Roger, but not particularly in this role. However, as always, it is a pleasure to be sitting on a Committee that you are chairing.
I thank the hon. Member for Halifax for her valuable contribution on this point. Decision making is of course central to our ability to support possible and confirmed victims of modern slavery. That is why, throughout the Bill, as she will know, we have discussed ways for that to be done as quickly and fairly as possible. It is in that vein that we have sought to clarify the reasonable grounds and conclusive grounds thresholds in primary legislation, to support that effective decision making. It is also why we are committed to reviewing the guidance that under- pins the reasonable grounds test to ensure that it best supports that.
Central to that work is the premise that the reasonable grounds decision should be made quickly. Currently, where possible, that is within five working days of referral to the national referral mechanism. That timeline enables us to quickly identify possible victims and ensure that they receive the appropriate support that they need. All decision makers receive robust training to support that process, and any negative reasonable grounds decisions will be reviewed by a second caseworker or a manager/technical specialist to ensure that all decisions taken are in line with the policy. An individual, or someone acting on their behalf, may also request reconsideration of a negative reasonable grounds decision by the competent authority where there are specific concerns that a decision made is not in line with the policy, or if additional evidence becomes available that would be material to the outcome of a case.
At the conclusive grounds stage, we already have a process whereby negative decisions are considered by those multi-agency assurance panels. That process is set out in the modern slavery statutory guidance for England and Wales, under section 49 of the Modern Slavery Act 2015, and non-statutory guidance for Scotland and Northern Ireland. We believe that that is the right place for the process, enabling us to adapt it in future to changing needs. To put in place the duty for multi-agency assurance panels to review all reasonable and conclusive grounds decisions would cut across that approach. It is not appropriate for that to be set out in primary legislation, as amendment 185 seeks to do, as that would remove the ability to change such a process to appropriate bodies and needs in the future.
Moreover, the amendment would add a new power whereby multi-agency assurance panels can overturn competent authority decisions, rather than the current approach of asking the competent authority to review a decision in specific circumstances. It is right that only designated competent authorities have a decision-making role. The current approach supports a culture of continuous improvement.
As I have set out, we do not believe that primary legislation is needed here. The current multi-agency assurance panels have been subject to an evaluation, and we will consider the conclusions and lessons learned in due course. If in the future we wished to consider multi-agency assurance panels at the reasonable grounds stage, or to change their remit, it would follow that that, too, would be a question for guidance.
Although I presume not intentionally, the amendment would also remove the provision that clarifies that the conclusive grounds threshold test is based on whether, on the balance of probabilities, an individual is a victim of modern slavery. That is the current test that is applied, in line with our obligations under the Council of Europe convention on action against trafficking in human beings.
Mr Robert Goodwill (Scarborough and Whitby) (Con)
Does the Minister agree that decision making in such circumstances is made very difficult by the fact that many people who are victims of modern slavery will not declare that because it is part of the deal with the people traffickers, and many people who claim to be victims of modern slavery are not victims but are using it as a way of getting their asylum claim accepted?
Craig Whittaker
I thank my right hon. Friend for his intervention. He is right that one of the key points in the process is that decision makers have the ability and the training to know what they are looking for to identify whether people are victims of modern slavery.
Neil Coyle (Bermondsey and Old Southwark) (Lab)
I recognise that the hon. Gentleman is stepping in as Minister, but he just said that the right hon. Member for Scarborough and Whitby was right in his assertion that many of those who claim to be asylum seekers are not. Could he remind us of the Home Office statistics on that issue?
Craig Whittaker
I thank the hon. Member for that question. Unfortunately, I do not have those statistics for him, but I will ensure that he gets them by the end of today. I will ask officials to bring forward those numbers.
It is essential that the provision that clarifies that the conclusive grounds threshold test is based on whether, on the balance of probabilities, an individual is a victim of modern slavery remains in the Bill to provide legislative clarity to that threshold. For the reasons that I have outlined, I respectfully ask the hon. Member for Halifax to withdraw the amendment.
Holly Lynch
I have heard some of the Minister’s attempts at reassurance. I have real concerns about some of the changes to the reasonable grounds decision. We heard in earlier discussions on the Bill about the introduction of trafficking information notices, which I am concerned will affect the need to take the reasonable grounds decision quickly. The amendment could have been a step towards improved confidence in, and scrutiny of, those early decisions, so I continue to implore the Government to consider introducing those panels in the guidance. It may not need to be in primary legislation, but I hope that the Minister has heard the case for that approach. On that basis, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)
I beg to move amendment 176, in clause 48, page 43, line 17, leave out subsection (7).
Under this amendment and the corresponding amendment to clause 57, the Secretary of State would no longer be able to change the definition of slavery and human trafficking by regulations. Instead, any changes to the definition of slavery would require primary legislation.
The Chair
With this it will be convenient to discuss amendment 177, in clause 57, page 51, leave out lines 42 and 43.
Under this amendment and the corresponding amendment to clause 48, the Secretary of State would no longer be able to change the definition of slavery and human trafficking by regulations. Instead, any changes to the definition of slavery would require primary legislation.
Stuart C. McDonald
It is a pleasure to serve under your chairmanship again, Sir Roger. Last week, I was speculating about how long the Immigration Minister might be in post, but I was still shocked. Seriously, we all pass on our best wishes to him for a speedy recovery. I congratulate the Lord Commissioner of Her Majesty’s Treasury, the hon. Member for Calder Valley, on his temporary promotion.
On the whole, we have stayed out of debates on the clause, despite having lots of sympathy for what the shadow Minister, the hon. Member for Halifax, has been saying. The clause largely applies only to England and Wales—distinct legislation is in place in Scotland and Northern Ireland. However, one part of the clause amends the “Interpretation” section of the 2015 Act and that does extend to Scotland and Northern Ireland. With the amendment, we are just posing some questions for the Minister. I appreciate that it is not easy for him to answer in these circumstances, so anything in writing afterwards would be more than acceptable.
Under the 2015 Act “victim of slavery” and “victim of human trafficking” are defined as applying to people who are victims of those respective crimes in the first couple of sections of that part of the legislation. That seemed a logical, straightforward and consistent way of doing things—define the criminal offences and then set out support regimes for victims of those offences. I have heard no complaint that that definition causes problems, but clauses 48 and 57 of the Bill—to which my amendments relate—will use a different definition of modern slavery.
The new definitions do not totally supplant the existing definitions of victims of modern slavery or trafficking in the 2015 Act, but they add a new and potentially different definition for the purposes of identification and support of the victims. The question therefore arises as to why we should have one definition of a victim for some purposes, but another for the purposes of identifying those to be supported? If there is to be a different definition, why is it not on the face of the Bill? Why is it, somewhat bizarrely, left to the Secretary of State to define in regulations what must be two of the most fundamental concepts for the purposes of this part of the Bill?
We do not know how the Secretary of State will use the powers, so that is another question for the Minister: what is the intention? It could be that she wants to be generous and to adopt a wider definition for the purposes of identifying and supporting victims and survivors. In line with other provisions of the Bill, however, it could be that she wants to be more restrictive and to confine the category of people who can get support to a much narrower group. If Parliament really wants to be back in control, it should not be allowing the Government to pass legislation such as this. I simply ask the Minister for an explanation as to why it has been done in this way.
Craig Whittaker
I thank the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East for his questions. Basically, he asked whether we are amending the definition of modern slavery, and the straightforward answer is no.
To underpin the measures in the Bill, we are creating a power to make regulations to define the meaning of “victim” in accordance with our ECAT obligations. The definition of a victim of slavery or trafficking for the purposes of the Bill will be set out in regulations made under the affirmative procedure.
The hon. Gentleman also asked why we are raising thresholds as such. As I said before, the proposed measure in this Bill will amend the wording of the reasonable grounds threshold in the Modern Slavery Act so that it mirrors some of our ECAT obligations. Alongside this, we are reviewing the reasonable grounds test and the corresponding guidance for decision makers to ensure they are best able to identify genuine victims and reduce the potential for non-genuine victims to misuse the system.
Stuart C. McDonald
I thank the Minister for his answer. I have made the point I need to make, which is that it is not appropriate to leave it to regulations to define these two fundamental concepts. I am sure this is something that will be pursued in the House of Lords. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Question proposed, That the clause stand part of the Bill.
Clause 48 ordered to stand part of the Bill.
Clause 49
Identified potential victims of slavery or human trafficking: recovery period
Holly Lynch
I beg to move amendment 1, in clause 49, page 43, line 33, leave out “30” and insert “45”.
This amendment would increase the recovery period for victims of slavery or human trafficking from a minimum of 30 days to a minimum of 45 days.
This amendment would ensure that victims of modern slavery continue to receive a recovery period of at least 45 days, bringing this provision in line with current statutory guidance. We strongly welcome the inclusion in domestic law of a recovery period with support for victims, and we support this decision. However, the reduction of the minimum recovery period during which victims in England and Wales receive support from the current 45 days to 30 days is a worry.
The Independent Anti-Slavery Commissioner said in her written correspondence with the Home Secretary that the average length of time it takes for a conclusive grounds decision to be made in 2020 was 465 days. It is therefore difficult to understand why the Government are seeking to reduce the timescale from a target they are already significantly failing to meet. Their focus should be on increasing the efficiency of decision making, rather than reducing the already short recovery time to which victims are entitled.
In its written evidence to the Committee, Hope for Justice highlights that the explanatory report on the European convention on action against trafficking in human beings clearly states that the purpose of the recovery and reflection period is to allow victims to recover and escape the influence of traffickers. A reduction of this period therefore represents a step backwards in our ability to offer effective protection to victims of trafficking.
The assistance and support that should be provided during this recovery period is essential and wide-ranging, and it may include mental health support and counselling, legal advice, secure housing and access to social services. It also allows the police time to gather evidence during their investigation and to establish a working relationship with victims, strengthening their ability to secure a prosecution. It is estimated that there are between 6,000 and 8,000 modern slavery offenders in the UK, yet there were only 91 prosecutions and 13 convictions in England and Wales last year for specific modern slavery offences as a principal offence, and only 267 prosecutions for all related crimes.
Both sides of the Committee can agree on our desire to see more perpetrators of human trafficking and slavery brought to justice. This clause is a disappointing backward step away from the appropriate period necessary to break the bonds of slavery and to allow victims to establish a relationship with the relevant agencies in order to support their recovery and secure a prosecution.
Justice and Care has highlighted that many victims already decline to enter the national referral mechanism. As we have heard, Care UK says that 2,178 adults referred by first responders declined entry into the NRM last year. We have discussed the barriers that some might experience, including not recognising that they are, in fact, a victim, but it can also be because it is not immediately obvious what support the NRM provides for victims. This reduction in the recovery period certainly is not going to help.
I anticipate that the hon. Member for Calder Valley is about to tell me that under the Council of Europe convention on action against trafficking in human beings, the current threshold is set at 30 days. However, the minimum of 45 days in the UK, which was established in 2009, was a clear distinction that we could be proud of, and it is unclear why the Government are seeking such a change. Victims in Northern Ireland and Scotland are entitled to longer periods of support—the recovery period in Scotland is actually 90 days. I ask the Minister to outline how the change will have a positive impact for victims in any way. Amendment 1 would ensure that victims are protected and that we do not undermine the progress that has been made so far by reducing the recovery period further.
I will speak to clause 49 more broadly. I draw the Minister’s attention to subsection (2), which states:
“A conclusive grounds decision may not be made in relation to the identified potential victim before the end of the period of 30 days beginning with the day on which the positive reasonable grounds decision was made.”
I welcome the sentiment, but I wonder whether he could address the concerns raised by Dame Sara Thornton, the Independent Anti-Slavery Commissioner, that there are pilot schemes under way to test approaches to devolving national referral mechanism decisions for children to local safeguarding partners. As part of the pilots, conclusive grounds decisions are being taken at the same time as reasonable grounds decisions, where the evidence is strong enough to do so. I hope that the Minister will join me in welcoming that approach, and although I am worried about the clause’s intended consequences, I also hope that he will recognise that this could be an unintended negative consequence, which we can hopefully all agree would be wholly regrettable. The clause is relatively simple and we do not support it standing part of the Bill.
The Chair
In the light of the hon. Lady’s comments, we will also consider clause 49 stand part.
Stuart C. McDonald
I will be brief, because I fully endorse what the shadow Minister has said. I absolutely welcome the fact that the measure will be in statute, but I share her concern and astonishment that the Government have decided, for no apparent reason, to reduce the prescribed recovery period to 30 days. Yes, that is consistent with the trafficking convention, but equally so is 45 days. There is nothing in the convention to say that it cannot be done and, for all the reasons she outlined, that was a welcome additional safeguard in the UK’s approach.
What is the Home Office driving at here? What signal does it send by making this change? As the shadow Minister pointed out, it is completely artificial, given where we are with average decision times. In one sense, this is just about sending signals. What a signal it sends—that we want to reduce the support given to folk who are suspected of being victims and survivors of trafficking. I support the amendment and endorse everything that the shadow Minister said.
Craig Whittaker
I thank both hon. Members for their contributions. Let me see if I can answer some of their questions. Basically, there is no need to amend clause 49 to provide a 45-day recovery period as that is already provided for in guidance. The guidance is the statutory guidance under section 49 of the Modern Slavery Act 2015, where victims will still receive a 45-day recovery period unless disqualifications apply.
The hon. Member for Halifax is right when she quotes our obligations under the Council of Europe convention on action against trafficking in human beings, which require us to provide a 30-day recovery period or, as the legislation states, until
“the conclusive grounds decision is made.”
In 2020, the average time for conclusive grounds decisions was actually 339 days. That long period stems from pressures on the system, which we are working to reduce through our transformation project, to ensure that victims get certainty much more quickly. This period is notably much longer than the 45 days that the hon. Member is proposing.
With regard to how that impacts on devolved pilots, as set out in the new plan for immigration, the Government are also piloting new ways of identifying child victims of modern slavery that will enable decisions to be taken within existing safeguarding structures by local authorities, the police and health workers. This approach will enable decisions about whether a child is a victim of modern slavery to be made by those involved in their care and ensure that decisions made are closely aligned with the provision of local needs-based support and any law enforcement response. The Government will continue to monitor the consequences of this measure and whether it will reduce further flexibility around decision making.
On that basis, I ask the hon. Lady to withdraw the amendment and to support the clause as drafted.
Holly Lynch
I thank the Minister for his response. We have seen this approach at previous stages of the Bill. The Minister cites the realities of processing times, but the fact that it is 45 days in the statutory guidance shows why the Bill is an absolute nonsense and does not make the first bit of sense. We should ignore it and trust the guidance. There is a commitment to driving down the processing times anyway. I hope that the Minister can therefore see why the amendment was tabled. On that basis, I will press the amendment to a vote.
Question put, That the amendment be made.
Question put, That the clause stand part of the Bill.
Clause 49 ordered to stand part of the Bill.
Clause 50
No entitlement to additional recovery period etc
Holly Lynch
I beg to move amendment 180, in clause 50, page 44, line 4, at end insert—
“(aa) the person was aged 18 or over at the time of the circumstances which gave rise to the first RG decision;”.
This amendment seeks to preclude those exploited as children from being denied additional recovery periods if they are re-trafficked.
The Chair
In line with what appears to be custom and practice, with this it will be convenient to consider clause stand part.
Holly Lynch
Clause 50, as drafted, should not stand part of the Bill. The amendment would ensure that those exploited as children will not be denied additional recovery periods if they are re-trafficked or if additional periods of trafficking are disclosed. Children, in particular, who make up 47% of those referred to the national referral mechanism, are at serious risk of being trafficked and going missing from care. In 2017, one in four identified trafficked children were reported as going missing. The number of children referred to the NRM is also rising, with last year seeing an almost 10% increase compared with the previous year. The average number of missing incidents for each trafficked child has also increased, from 2.4 to 7.4 between 2014-15 and 2017-18. Therefore, amendment 180 is even more vital, considering the worrying trends we are seeing.
Every Child Protected Against Trafficking UK has warned that clause 50
“may severely impact child trafficking survivors”
who are at high risk of going missing and being re-trafficked, particularly when
“they transition to adulthood and require access to support and protection through the NRM.”
To make that point, I want to share a real-world case study provided by ECPAT UK that demonstrates why our amendment is necessary.
Huang was referred to the local authority children's services at age 17, following a police operation in a nail bar. He was also referred as a potential victim of trafficking into the NRM and received a positive reasonable grounds decision. He was accommodated by the local authority. He told his support worker that he had been scared because his family back home were receiving threats to pay back his debt. Shortly after, he went missing. He was found by the police just after his 18th birthday and went on to develop trust with his lawyer, where he disclosed for the first time a significant period of exploitation in Vietnam, across Europe and in the UK, prior to being found in the nail bar. He remains in fear, and while the dangers facing his family back home persist, sadly, there is still a high likelihood that he will go missing again.
Without amendment 180, Huang may be unable to be referred to the NRM again, given the new disclosure of previously unknown periods of exploitation. As he is now 18, he would not be looked after by children’s services. Clause 50, as it stands, will place him at great risk of subsequent re-trafficking in the absence of access to safe accommodation and support through the NRM during his reflection and recovery period.
The increase in the number of British children in the NRM in relation to child criminal exploitation gives us further cause for concern. I recently met officers from the Metropolitan Police Service who are leading the response on trafficking, slavery and exploitation. They told me that it is becoming standard practice that when a child or young person is sent on their first county lines journey, their exploiter will arrange for them to be robbed of the drugs they have been instructed to sell. When they then have to come back and explain what has happened, they are immediately told they have to work off the value of the drugs. That traps them in debt bondage, even though the real criminal will have recovered the drugs, having arranged what can sometimes be a particularly violent mugging in the first place, so in reality there is no debt.
It would not be unusual for children in such vulnerable and exploited positions to be identified by the authorities but then go missing from the NRM because of the risks that persist. They must be treated as a safeguarding concern and not by way of immigration compliance, not least because so many of those children are British nationals. So I ask the Minister again: why are children subject to clause 50, given their particular vulnerabilities? Amendment 180 seeks to right that wrong. I am sure all colleagues will agree that a child rights-centred approach, which ensures children’s safety and their protection, must be a priority. I therefore hope the Minister will reflect on the points we have made and accept Amendment 180.
More broadly, clause 50 has the potential to exclude trafficked children and adults from being identified following re-trafficking, thereby leaving them unable to access the support they should be entitled to. I worry that with this clause the Government are suggesting that making repeat claims of having been trafficked undermines someone’s credibility. However, we also know that traffickers are increasingly coaching those they are exploiting on what to say should they be identified by authorities. An expectation is placed on the victim that they will return to their exploiters due to their perceived debt bondage, in order to avoid consequences for them or often their families.
Re-trafficking has increasingly become a part of a trafficker’s operating model, so why are we not responding to that? The changes negatively affect the victim and not the perpetrator of such crimes. It also appears to contradict the identified need for individual assessment and support, as required under ECAT. The Government have described the clause as necessary
“to prevent the recovery period being misused by those wishing to extend their stay in the UK and to remove unnecessary support and barriers to removal where these are not needed”.
Will the Minister present the evidence to support that claim? That explanation fails, not least, to recognise that the most common nationality of all referrals to the NRM for victims of modern slavery in 2020 was that of UK nationals, primarily referred for criminal exploitation. We know that children make up the lion’s share of those referrals. Does that not make the Government stop and think about what is in the clause?
There is a fear that the NRM is being misused by those wishing to extend their stay in the UK. Without amendment 180, the clause means that we are sending children, both migrant and British, back into the arms of their exploiters. We plead with the Minister to think again about the clause. We cannot see it stand part of the Bill.
Stuart C. McDonald
I support the amendment and join the calls for the clause not to stand part of the Bill. I very much echo the comments of the shadow Minister. Like her, and as on previous occasions, I find myself not at all clear why the clause is necessary, and what problem it is driving at. Again, I find myself asking for evidence. I have not seen or heard about an issue with abusive additional trafficking claims sparking extra NRM recovery periods. I recognise that that could absolutely happen in theory, but we need much more by way of evidence before we enact such a clause.
Even though someone might be describing earlier events of trafficking, disclosure of that additional information and trafficking or slavery histories could have all sorts of significant implications for that survivor. It could, for example, mean a break from a controlling partner. It could give rise to other dangers for them or to new trauma. Furthermore, as the Independent Anti-Slavery Commissioner has noted, survivors can feel more able to disclose their trafficking experiences relating to one particular form of exploitation than another, so forced labour can sometimes be disclosed earlier than sexual exploitation, due to feelings of shame or mistrust.
The fact that if the competent authority considers it appropriate in the circumstances of a particular case another recovery period can be granted is better than nothing, and it is good that that provision is in the clause, but that protection needs to be considerably strengthened to ensure that those who need it will have it. As matters stand, we have no idea how that analysis is going to be undertaken. What if the disclosure of this new information leads to new dangers or new trauma? Surely we would all agree that that should require a new decision and a new recovery period, but there is nothing in the Bill to say that that would definitely happen.
Perhaps the clause should be reversed—the Home Office might want to consider turning the presumption around, so that we assume instead that a new recovery period would be needed unless we are satisfied with a very restricted route for a very restricted range of reasons, and the reasonable grounds decision should not occur. The Home Office needs to explain its thinking here.
Finally, on the issue of trafficking, the Independent Anti-Slavery Commissioner and the Rights Lab at the University of Nottingham are conducting research on that subject at this very moment in time. I urge the Home Office to wait to see the evidence, rather than jumping in with two feet.
Craig Whittaker
I would first like to clarify that the clause does not prevent individuals who have been re-trafficked from receiving a further recovery period. Rather, the clause introduces a presumption against multiple recovery periods where an individual has already benefitted from a recovery period and the further reported exploitation happened prior to the previous referral into the national referral mechanism and period of support. This is not a blanket disqualification from multiple recovery periods; it is focused on removing the presumption for multiple recovery periods where the period of exploitation happened before the original recovery period was provided.
The clause will provide further recovery periods where required—for example, where an individual has a second referral for an incident that happened before the first incident for which they were referred and have already received a recovery period. It may not be appropriate or necessary to provide the further recovery period. A discretionary element is included, underpinned by guidance, so that cases are considered on an individual basis.
Stuart C. McDonald
I put to the hon. Gentleman the suggestion I made towards the end of my contribution: that he reverses the situation so that the presumption is that somebody does need an additional recovery period unless there are specific circumstances that mean it is not appropriate. Is that something he could pass on to his ministerial colleague, for when he takes the Bill forward?
Craig Whittaker
As I have said, there is already a provision for the decision makers to amend the care and support package needed on a case-by-case basis. That is the case for recovery periods as well. On the matter of children, I recognise the complexity of children’s vulnerabilities, as well as those of other modern slavey victims. As a result, this clause has scope to consider an individual’s circumstances, even where the new referral for exploitation occurred prior to the previous recovery period. That is why, under this clause, individuals will be considered for more than one recovery period on a case-by-case basis, taking into account their specific needs and vulnerability. Safeguarding and ensuring the welfare of children will, of course, be taken into account as part of any decision to withhold a recovery period.
Further details of how to apply this discretionary element will be outlined in guidance for decision makers. This will ensure that victims of modern slavery who genuinely need multiple periods of protection and support actually receive it. It would not be appropriate to have a blanket approach to children, but our proposed approach ensures that their vulnerabilities are considered. I hope that, in the light of that explanation, the hon. Member for Halifax will be content to withdraw her amendment.
Holly Lynch
I thank the Minister for that contribution. I have been consistently concerned by the lack of provision for children and young people within the clauses before us. With that in mind, I will not be withdrawing amendment 180.
Question put, That the amendment be made.
Question put, That the clause stand part of the Bill.
Clause 50 ordered to stand part of the Bill.
Clause 51
Identified potential victims etc: disqualification from protection
Holly Lynch
I beg to move amendment 164, in clause 51, page 44, line 31, at end insert—
“was aged 18 or over at the time of the circumstances which gave rise to the positive reasonable grounds decision and—”
This amendment would exclude children from the disqualification from protection measures outlined in clause 51.
The Chair
I will take the stand part debate with this, and would like to explain why. Where there are relatively short clauses with only one amendment to them, experience tells me that it is sometimes better to take the stand part debate with the amendment, because discussions that might be out of order in debate on the amendment can be in order if clause stand part is taken with the amendment. In other words, it allows for a greater freedom of discussion.
Holly Lynch
Thank you for that advice, Sir Roger.
Like a number of our other amendments, amendment 164 seeks to ensure that no child victim of trafficking or modern slavery is denied protection. Clause 51 introduces the following reasons why someone would be disqualified from protection: they are a threat to public order, or they have claimed to be a victim of modern slavery in bad faith. The Independent Anti-Slavery Commissioner, Dame Sara Thornton, says in her letter to the Home Secretary on the Bill:
“I have grave concerns about this clause because it casts a wide net, with the potential to prevent a considerable number of potential victims of modern slavery from being able to access the recovery and reflection period granted through the NRM. Without such support prosecution witnesses will be unable to provide witness evidence and this will severely limit our ability to convict perpetrators and dismantle organised crime groups.”
She says these changes will make it harder to convict perpetrators and go after organised crime groups. I doubt any of us came into politics to pass laws that work to the advantage of criminals, so why is the clause included in the Bill?
The Children’s Society has emphasised concerns regarding the impact on children who are victims of child criminal exploitation. In 2020, of the 47% of referrals to the NRM that were for children, 51% were for criminal exploitation. According to the National Crime Agency, referrals to the NRM for British children have grown due to an increase in child criminal exploitation, particularly by groups using the county lines model. The average custodial sentence length given to children has increased by more than seven months over the last 10 years, from 11.3 to 18.6 months in 2020.
A case study supplied by the Children’s Society following a serious case review by Waltham Forest Safeguarding Children Board is one of the most depressing of the many case studies we have been sent during our preparations for this Committee. Child C was a vulnerable child who lived in Nottingham. He was regularly excluded from school and was eventually home-schooled. His family noted that he regularly ran away from home. In January 2018, his mother said he was threatened by an older youth, who said that Child C had money for them. The incident was reported to Nottinghamshire police, but the police have no record of it. Also in January, Child C was arrested by police in possession of an air gun, a knife and cannabis. He later informed the youth offending team that an older boy had given him these. The youth offending team worked with Child C on a programme designed to highlight the dangers of carrying weapons. The incident was reported to the multi-agency safeguarding hub, but no further action was taken because of the youth offending team’s involvement.
Child C moved to Waltham Forest in April 2018. In October 2018, he was arrested in Bournemouth in what is known as a cuckoo flat—a person’s home that criminals take over and use to facilitate exploitation. There was significant evidence of drug use and sales in the flat. Child C was found to be in personal possession of 39 wraps of crack cocaine, and was arrested for possession of class A with intent to supply. That was a pivotal moment in providing support to the child. For the first time, the authorities in Waltham Forest had been presented with completely unequivocal evidence that Child C was being criminally exploited. From that point, he had multi-agency involvement and a further conviction for carrying an offensive weapon. The case study ends with Child C being murdered in January 2019.
That is the operating model for county lines gangs. We know that criminally exploited children are driving up referrals to the NRM, meaning that children will be coerced into committing crimes as part of their exploitation. That is explicit in section 45 of the Modern Slavery Act 2015. It is unclear what, if any, assessment the Government have made of how children will be affected by changes in clause 51 and the risk to them of remaining in exploitative situations. Disqualifying child victims from protection is incompatible with the duties on local authorities and other public bodies under section 11 of the Children Act 2004 to safeguard and promote the welfare of children. I urge the Minister to adopt amendment 164 and stand with child victims of modern slavery; it will allow him to go after the criminal gangs who will welcome this clause.
Clause 51 is incompatible with the duties on local authorities and the Home Office to safeguard and promote the welfare of children. It fails to take into account that children are at greater risk of exploitation owing to their developing capacity and, under the UN convention on the rights of the child, should never be denied protection. The fact that the Government have decided to ignore those fundamental principles to protect the most vulnerable children is simply shocking. The Government’s equality impact assessment promises to mitigate the adverse impact on vulnerable people but fails to identify any exemptions or specialist support for children in part 4 of the Bill.
Other shocking findings include the more than twelvefold increase in the number of children waiting longer than a year for an initial decision; the number has gone from 563 children in 2010 to 6,887 in 2020. Additionally, more than 250 people have been waiting for five years or more for an initial decision on their case, of whom 55 are children. We believe that clause 51 is incompatible with the protections in section 45 of the Modern Slavery Act. The exclusion of victims of all nationalities and ages with convictions for offences listed in schedule 4 of the 2015 Act is too broad, considering that exclusion from support is different from protection from criminal convictions under section 45, for which the list in schedule 4 was created.
Subsection (3) of clause 51 stipulates that an individual is considered a threat to public order if
“the person has been convicted of any other offence listed in Schedule 4 to the Modern Slavery Act 2015”
or a corresponding offence under the law of any other country. That incorporates criminality not just committed in the UK but potentially older and minor offences committed in the person’s country of origin. As the Human Trafficking Foundation has highlighted, many victims from eastern Europe are targeted precisely because they have had minor convictions; prison leavers are sought out precisely for that reason.
Operation Fort, which involved dismantling the UK’s biggest modern slavery network, demonstrated that traffickers
“targeted the most desperate from their homeland, including the homeless, ex-prisoners and alcoholics. ”
The Independent Anti-Slavery Commissioner has explained that she has “grave concerns” about clause 51 because it
“casts a wide net, with the potential to prevent a considerable number of potential victims of modern slavery from being able to access the recovery and reflection period granted through the NRM. Without such support prosecution witnesses will be unable to provide witness evidence and this will severely limit our ability to convict perpetrators and dismantle organised groups.”
She also includes a second case study—Operation Elibera:
“In 2018 a Romanian trafficker was convicted of offences under the Modern Slavery Act 2015, having trafficked at least 15 people from Romania and forcing them to work in the construction industry without pay whilst being threatened with violence. He received a seven year sentence, and was also given a Slavery and Trafficking Prevention Order. Each victim received compensation of approximately £1,000. Of the 15 potential victims identified, two provided statements to support the police investigation. One of those witnesses, whose evidence was significant in securing the conviction, had three previous convictions in Romania all of which attracted sentences in excess of 12 months.”
Dame Sarah goes on to say:
“We know that traffickers already have a modus operandi of recruiting individuals with offending history, including those who have recently left prison, who are less likely to engage with authorities and seek support. Should this cohort be prevented from accessing support through the NRM, they are likely to be increasingly targeted by traffickers.”
The Government repeatedly talk about breaking the business model of people smugglers, but the clause will undermine our ability to do just that. For example, Hope for Justice says that 29% of individuals in its current case load have committed offences that would meet the criteria for exemption under public order grounds. There are many other examples that demonstrate that; the most recent is the judgment of VCL and AN in February this year, in which the European Court of Human Rights found that the United Kingdom had violated articles of the European convention on human rights. That case involved two victims, both Vietnamese minors, who were found by police working in a cannabis farm. On the advice of their legal representatives, they pleaded guilty and were charged with drug-related offences, despite having been trafficked to the UK as children. That case shows that identification is key to protecting victims from exploitation, particularly children who have diminished capacity and are therefore at greater risk.
Of course we agree that the public should be protected from serious criminals who pose a threat to our society, but there is simply no data to support the Government’s claims in relation to clause 51. Research undertaken by the National Crime Agency suggests that, as we have discussed, there are between 6,000 and 8,000 modern slavery offenders in the UK. However, in the England and Wales last year, there were only 91 prosecutions and 13 convictions where modern slavery offences were the principal offence.
The clause will drive more people underground and make it significantly harder for the police and the authorities to investigate the perpetrators of human trafficking. It also sends a clear message to those perpetrators that they are free to exploit someone with a criminal record, knowing that they will be exempt from protection. We agree with the Independent Anti-Slavery Commissioner that securing prosecutions against those who commit those heinous crimes will become harder if the clause stands part, which we do not believe it should.
Stuart C. McDonald
I rise to support the amendment and to make the case for the removal of the clause. The amendment is absolutely right, and excluding any survivors, especially children, from the scope of the clause will alleviate its worst impacts. The whole clause is bad.
Unlike with previous measures, it is absolutely apparent what the Government are driving at this time, but there is already a perfectly good procedure for dealing with this issue. Guidance implementing the European convention on action against trafficking says that where there is an improper claim of victim status, or there are public order grounds for doing so, the state can make a negative conclusive grounds decision and decide not to observe the reflection and recovery period. That remedy is available right now. How many times has that remedy been used in the United Kingdom? I hope the Minister can answer that, now or later.
The Home Office wants to go much further and help itself to a different remedy. Despite Home Office claims, nothing in the convention justifies simply failing altogether to make a conclusive grounds decision. On the contrary, article 10 of the convention requires states to identify victims, and that position is recognised in the Home Office’s guidance. That is why the Independent Anti-Slavery Commissioner has expressed, as we have heard, serious concern about the compatibility of the clause with ECAT—they just are not compatible. The measures will not only breach international obligations, but they will be counterproductive in the fight against trafficking and slavery.
We have already heard one or two of the case studies provided by the commissioner. I will add one more, from the Anti Trafficking and Labour Exploitation Unit. It relates to the case of Z, who was trafficked to the UK after being used for prostitution in Europe for a number of years. Her child had been removed from her by the traffickers. She managed to escape from the traffickers in the UK, and used a false document that she grabbed during her escape, as she wanted to go back to Europe to find her child. She was arrested and prosecuted for a document offence and given a sentence of more than 12 months after being advised to plead guilty. Trafficking was never explored as part of the criminal process. Later, Z was referred to the NRM and claimed asylum. The Home Office agreed that she was a victim of trafficking, and she was then given leave to remain on that basis. It also agreed not to pursue deportation because of her trafficked status.
After Z was referred to the NRM, a decision still had to be made about whether she was a victim of trafficking. The Home Office ultimately decided to grant her leave to remain and halt deportation, having been required to make that decision. Had the clause been in force, Z would never have been identified as a victim of trafficking; she would have been deported. That would have been absolutely dreadful for Z, who would have lost out on support and help that she clearly needs for her recovery, but it is also dreadful for many others, because it will clearly make it infinitely more difficult to track down Z’s traffickers. They will not be apprehended, and other people will fall victim to the very same crime, as is shown by the other case studies provided by the Anti Trafficking and Labour Exploitation Unit, and by the commissioner in her letter to the Home Secretary.
In short, people who need support will be denied it, and the perpetrators of the crimes against them will not be caught and punished. As we have heard, the clause will simply encourage traffickers to target those who have criminal convictions and who are sentenced to more than two at once, and even compel them into criminal activity precisely so that the exclusions will apply to them if the trafficker threatens to disclose their crimes. We have heard from the commissioner that that is already the traffickers’ modus operandi—excuse me; my Latin is terrible. The reason is that traffickers know that the absence of support and removal from the country will make it easier for the trafficker and their colleagues to avoid justice. The clause is, in essence, a gift for people traffickers, and it totally undermines the work of the Modern Slavery Act 2015.
I will briefly mention some other problems. The commissioner has rightly expressed concern about the huge breadth of offences that would be caught by the provision, particularly as it includes sentences imposed outside the UK that might not reflect sentencing guidelines in the UK; that could mean that minor offences are brought within scope. Will the Minister confirm that trafficking victims who enter the UK in breach of clause 37 of the Bill would end up in prison, possibly for even three or four years, and would therefore be excluded from support? A huge proportion of survivors will be left with the threat of exclusion from support hanging over them, putting them in even more vulnerable position.
Why is the expression “bad faith” used in the clause, rather than the convention’s wording or the wording of the guidance that the Home Office has put in place, which relate to “improper purpose”? The use of a different form of words needs to be explained. Why is it that in some cases, suspicion of certain offences, rather than an actual conviction, is enough for exclusion? The key point is that if we do not identify victims, neither do we identify traffickers. In breach of the convention, the clause expressly provides for that, so it should be amended.
Craig Whittaker
Let me see whether I can answer some of those questions. The hon. Member for Halifax asked whether the clause is incompatible with the statutory safeguarding responsibilities. The answer to that question is no, it is not incompatible at all with the statutory safeguarding responsibilities. Section 45 of the Modern Slavery Act 2015 is a criminal offence, but clause 51 of the Bill is a very separate system. Section 45 is separate from the public order disqualification. A section 45 defence is not applicable to the serious crimes set out in schedule 4 of the Bill. The Government will of course continue to work with local authorities to safeguard children and take their particular vulnerabilities into account on a case-by-case basis.
I will just highlight one or two points that piggyback on the back of what the Government are doing in this field. The hon. Member for Halifax mentioned county lines, and we have invested in specialist support for the under-25s and their families who are affected by county lines exploitation in London, the west midlands and Merseyside. We also fund a missing persons safe call service—a national, confidential helpline for young people, families and carers who are concerned about county lines exploitation—and the Home Office is funding the Children’s Society’s prevention programme, which works to tackle and prevent child criminal exploitation, child sexual abuse and exploitation, and modern-day slavery and human trafficking on a regional and national basis. There is also a public awareness campaign that started in September, which is called Look Closer. What I would say to the hon. Member for Halifax is that the public order grounds for disqualification are set out in ECAT, in which it is envisaged that the recovery and reflection periods will be withheld—
Stuart C. McDonald
That wording is absolutely right. It is possible for the recovery period to be withheld, but the convention absolutely does not allow for a decision to be made on public order grounds. It is absolutely contrary to article 10 of the convention. Does the Minister have anything that can help him with that point?
Craig Whittaker
As I have already explained, such decisions will be made on a case-by-case basis. Regardless of whether they are children or vulnerable people, it is important that all aspects of the individual’s case are taken into account, such as whether they have been exploited and to what extent.
Stuart C. McDonald
I do not want to make life difficult for the Minister, because I know he is in a very difficult situation, but the point is that it will not happen on a case-by-case basis, because decisions will not be made at all. As a result of the clause, people will just be excluded altogether from having a decision made about them. The point is that there is no case-by-case basis. It is an absolute blanket, and huge swathes of people will just not have a decision made about them, with no assessment made of whether they might be a victim of trafficking.
Craig Whittaker
I thank the hon. Member for his further intervention. I will take some advice on the technicalities in what he says, but that is not my understanding of what the clause says. I have already said that the decision to withhold recovery periods on public order grounds will be made on a case-by-case basis. That will balance the need to safeguard exploited individuals against public protection concerns and allow the Secretary of State to withhold the protections of the national referral mechanism, where the particular circumstances of an individual mean it is appropriate to do so.
Neil Coyle
In light of the fact that the Minister is asking for the amendment to be withdrawn and given his understanding that decisions will be made on a case-by-case basis, can the Minister tell us if the guidance that goes with the legislation will set out the exemptions and the process by which cases will be decided on an individual basis, and if there will not be the blanket exemption that is the Opposition’s understanding?
Craig Whittaker
Of course we will fully assess the issues in policy guidance. The hon. Member is exactly right that it will be set out in policy guidance, to ensure that due account is taken of the circumstances, so that any permitted actions, including prosecutions, are proportionate and in the public interest. It is right that the Bill seeks to target ruthless criminal gangs who put lives at risk by smuggling people across the channel.
The changes are not intended to deter people from seeking help from the authorities when they are being exploited and abused. However, it is right that we should be able to withhold protections from serious criminals and people who pose a national security threat to the United Kingdom. Indeed, ECAT envisages that the recovery period should be withheld in such cases, and it does not specify an age limit either, in answer to the question asked by the hon. Member for Halifax. It is important that the UK maintains this scope, as set out in ECAT. I hope in light of this explanation, hon. Members will be content to withdraw the amendment.
Holly Lynch
I am grateful to the Minister for his response. As we have heard from the interventions made by hon. Members, the case studies before us mean that we have grave concerns about clause 51. The assurances that the Minister has sought to make do not overcome some of the barriers that clause 51 will put in place.
I look forward to hearing more detail about the Children’s Society projects that the Government are funding and the Look Closer campaign, which I very much welcome, but, as things currently stand, this is much more of a blanket exemption than the Minister has tried to suggest. The very broad public order definitions in the Bill go beyond the intention that he has tried to explain, so once again I am concerned that children will be particularly vulnerable to the negative impacts of clause 51 if unamended, so I am minded to press amendment 164 to a division.
Question put, That the amendment be made.
Question put, That the clause stand part of the Bill.
Clause 51 ordered to stand part of the Bill.
Clause 52
Identified potential victims in England and Wales: assistance and support
Holly Lynch
I beg to move amendment 4, in clause 52, page 46, line 9, after “50A” insert—
“Meaning of assistance and support
‘(1) For the purposes of guidance issued under section 49(1)(b) and regulations made under section 50, “assistance and support” includes but is not limited to the provision of—
(a) appropriate and safe accommodation;
(b) material assistance, including financial assistance;
(c) medical advice and treatment (including psychological assessment and treatment);
(d) counselling;
(e) a support worker;
(f) appropriate information on any matter of relevance or potential relevance to the particular circumstances of the person;
(g) translation and interpretation services;
(h) assistance in obtaining specialist legal advice or representation (including with regard to access to compensation);
(i) assistance with repatriation, including a full risk assessment.
(2) Assistance and support provided to a person under this section—
(a) must not be conditional on the person’s acting as a witness in any criminal proceedings;
(b) may be provided only with the consent of that person;
(c) must be provided in a manner which takes due account of the needs of that person as regards safety and protection from harm;
(d) must be provided to meet the needs of that person having particular regard to any special needs or vulnerabilities of that person caused by gender, pregnancy, physical or mental illness, disability or being the victim of violence or abuse;
(e) must be provided in accordance with an assistance and support plan which specifies that person’s needs for support and how those needs will be met for the full duration of the period to which that person is entitled to support under this Act.
(3) Nothing in this section affects the entitlement of any person to assistance and support under any other statutory provision.
50B”
This amendment would define the types of assistance and support that must be provided to a victim of modern slavery in England and Wales in line with Article 12 of the European Convention on Actions Against Trafficking in Human Beings; and conditions associated with its provision.
The Chair
With this, it will be convenient to discuss the following: Amendment 2, in clause 52, page 46, line 16, leave out from “receiving” to the end of line 19 and insert
“in their physical, psychological and social recovery or to prevent their re-trafficking.”
This amendment would define the objective of assistance and support in line with Article 12 of the European Convention Against Human Trafficking 2005.
Amendment 3, in clause 52, page 46, line 16, at end insert—
‘(6A) When a person who is receiving assistance and support under this section receives a positive conclusive grounds decision, the Secretary of State must secure assistance and support for at least 12 months beginning on the day the recovery period ends.”
This amendment would give modern slavery victims in England and Wales with a positive conclusive grounds decision the right to receive support and assistance for at least 12 months.
Clause stand part.
Holly Lynch
The amendments seek to incorporate our international legal obligations under ECAT within the provisions of support available to victims during the recovery period, as well as extending statutory support for those who have received a positive conclusive grounds decision.
Having already discussed the changes to the recovery period in our discussion of clause 50, I will not repeat myself, but it is important to consider these amendments alongside the provisions in clause 50. We share the concerns of Christian Action, Research, and Education, or CARE, which has worked with us on amendment 4, that clauses 52 and 53 have the potential, if they remain unamended, to
“make matters worse for victims”.
Amendment 2 would update the definition of the reasons for providing a recovery period as solely to harm
“arising from the conduct which resulted in the positive reasonable grounds decision in question,”
and replace it with the requirement to assist a person
“in their physical, psychological and social recovery or to prevent their retrafficking.”
Therefore, amendment 2 would put into the Bill the wording of article 13 of ECAT, which provides support
“necessary to assist victims in their physical, psychological and social recovery”.
The British Red Cross has highlighted that
“making support dependent on specific ‘harm’ caused by the ‘conduct’ that led someone to be identified as a victim, fails to recognise the reality of human trafficking”.
The Home Office’s own research from 2017 says that
“unlike most crimes, which are time-limited single events, modern slavery is a hidden crime of indeterminate duration”—
in that it involves multiple locations and individuals. Therefore, amendment 2 better reflects the Home Office’s own assessment of the nature of human trafficking.
Amendment 4 seeks to set out the types of assistance and support that must be provided to a victim of modern slavery. Colleagues will be aware that presently neither the Modern Slavery Act 2015 nor the Bill includes such a provision, and therefore amendment 4 would fill a significant void in the legislation. The types of assistance and support include a range of provisions, such as safe accommodation, medical advice, a support worker, access to translation services, counselling, and assistance in obtaining legal advice or representation.
Amendment 4 is a practical and reasonable measure, and one that we hope will provide a sense of certainty and security to support survivors as they move towards recovery and towards justice, as confidence in the process grows, which will foster trust between agencies and victims, and enable more perpetrators to be brought before the courts. The types of assistance defined are basic provisions that victims should be entitled to if they are to rebuild their lives.
Building upon this idea of defining assistance, amendment 3 would offer long-term support to survivors with a positive conclusive grounds decision, stipulating that the Secretary of State must also secure assistance for at least 12 months, beginning on the day that the recovery period ends.
Given that there is no mention of statutory support after a conclusive grounds decision, amendment 3 seeks to correct another considerable omission from the Bill. In 2020, the Centre for Social Justice said:
“Long-term support is a further significant gap in the support system. In recent years a number of reports have concluded that the lack of long-term support puts victims of modern slavery at risk of homelessness, destitution and even re-trafficking after they exit the NRM support provision. It also has a significant negative impact on their engagement with the criminal justice system”.
This approach has broad support, as these amendments would build upon the recommendations made by the Work and Pensions Committee in 2017, which stated that
“There is very little structured support for confirmed victims once they have been given a ‘Conclusive Grounds’ decision...We recommend that all victims of modern slavery be given a personal plan which details their road to recovery, and acts as a passport to support, for at least the 12 month period of discretionary leave.”
Similar measures were also incorporated in the Modern Slavery (Victim Support) Bill introduced by Lord McColl of Dulwich, which awaits its Second Reading in the House of Lords. That Bill was greatly welcomed across the human trafficking sector and by all parties.
To summarise the case for amendments 2, 4 and 3, they are vital in expanding support for victims, and can boast wide support. I very much hope that the Minister will reflect on their merits.
On clause 52 more broadly, we welcome the fact that support for victims in England and Wales is being placed on a statutory basis during the recovery period, but this change is undermined by the limitations on support, and the decision to reduce the minimum recovery period from 45 to 30 days under earlier clauses. The clause introduces provisions for assistance and support only
“if the Secretary of State considers that it is necessary”
for recovery, mental health and wellbeing purposes, and crucially only if the recovery is from harm caused directly by the trafficking.
In the explanatory notes, the Government state that the intention behind the clause is to implement the UK’s ECAT obligations under article 13 to provide a recovery period to potential victims of modern slavery, but that is not really what has been included in the Bill. The explanatory report on ECAT says that articles 12 and 13 are
“an important guarantee for victims and serve…a number of purposes.”
This wording emphasises the “guarantee” of support, and its serving different purposes. By contrast, the clause narrows the scope of the recovery support received solely to support needed as a result of harm
“arising from the conduct which resulted in the positive reasonable grounds decision in question.”
The Anti Trafficking and Labour Exploitation Unit claims that as a result, the clause will
“create a huge evidential burden on survivors, in demonstrating that their recovery needs are linked to their experiences of having been trafficked”.
It adds that the clause will also
“necessitate an increase in the number of medico-legal reports that the Competent Authority will be required to consider.”
To summarise, the clause has the potential to further disqualify victims from support entirely. It has nothing at all to offer a person who had physical and mental needs before being trafficked—needs that may have been a factor in them having been targeted by criminal gangs. It risks trapping victims in an endless cycle of exploitation, which will undermine our ability to identify victims and prosecute the perpetrators of these crimes. For these reasons, the clause should not stand part of the Bill in its current form.
Craig Whittaker
I thank the hon. Lady for raising important issues around the support and assistance offered to victims of modern slavery and trafficking. Support for potential victims is a fundamental pillar of our approach to assisting those impacted by this horrendous crime and reducing the risk of their being re-trafficked. We are agreed on the importance of placing the entitlement to support in legislation, which is what the clause will do. Our intention in our drafting was to provide victims with certainty about the circumstances in which support is provided through the NRM; we know that is imperative in aiding their recovery. To this end, we have sought to put in clause 52 that support will be provided where
“it is necessary for the purpose of assisting the person receiving it in their recovery from any harm to their physical and mental health and their social well-being arising from the conduct which resulted in the positive reasonable grounds decision in question.”
Amendment 2 would restrict this support to where it was needed for a victim’s
“physical, psychological and social recovery or to prevent their re-trafficking.”
This provides less clarity on what these terms mean for victims and decision makers, reducing the clause’s effectiveness in supporting victims. Our approach is not to do as amendment 4 suggests and go into detail in the clause on the types of support provided, but to instead do that in guidance. The reason is twofold: it provides us with the flexibility to tailor support to victims, and to ensure that we are able to amend the guidance and support as our understanding of victims’ needs changes.
After entering the NRM, potential victims are entitled to access a wide range of specialist support services to help them rebuild their lives. This includes safe house accommodation, financial support, and a social worker to assist with access to services including, but not limited to, health care, legal advice and translation services. Following a positive conclusive grounds decision, confirmed victims’ ongoing recovery needs are assessed, and a clear plan is tailored to their specific recovery needs to help them transition out of support and back into a community, where this is possible. Confirmed victims’ recovery needs are assessed to ensure that the overall support package provided through the modern slavery victim care contract is specific to the individual. This needs-based approach ensures that the Government provide targeted and personalised support to victims to help them recover and rebuild their lives.
As I have outlined, the details of the types of assistance and support that can be provided already exist in the modern slavery statutory guidance under section 49 of the Modern Slavery Act 2015. Bringing this detail into primary legislation, as amendment 4 seeks, is not appropriate and would create a fixed, blanket approach to support, making it harder to adjust our approach in the future and tailor to victims’ individual needs as our understanding of trauma develops. Amendment would also necessitate that assistance and support may be provided only with the consent of that person. As children are not necessarily able to offer their consent in an informed way, the amendment may—unintentionally, I am sure—exclude children from the provision.
Finally, amendment 3 seeks to stipulate the minimum length of time support is provided after a positive conclusive grounds decision. In contrast, our approach is to provide tailored support to victims following a recovery needs assessment through a tailored transition plan. The plan can be put in place for up to six months at a time, with no overall limit. This will enable us to deliver the most appropriate and effective needs-based support to victims.
Neil Coyle
The Minister said earlier that the tailored plan would support someone until they move back into the community. Can he confirm that that support will be provided whatever setting the person is living in, not only to those who happen to be in a detention centre or accommodation centre, for example?
Craig Whittaker
I think I have made it quite clear that the amendment would restrict the ability to assess on an individual, case-by-case basis, as the clause intends. I also went on to say that the time period for that is up to six months but is not limited. I hope that answers the hon. Gentleman’s question. Amendment 3 would go against that approach and would not increase benefits to victims. For the reasons I have outlined, I respectfully invite the hon. Member for Halifax to withdraw the amendment.
Holly Lynch
I am grateful to the Minister, once again, for his response. He paints a picture of the NRM that I do not think would be recognised by those working with it on the frontline. We heard testimony from those within the NRM that it was not clear that they were even in it, because it was not clear what provisions or support they were receiving. I wish it was the case that the description and the offer of support that he outlines were there in reality.
The Minister says the discretion within the Bill is necessary in order to facilitate going further and doing more, but we know that discretion is also used to offer less than we think is appropriate for victims who require that support. We will continue to argue and make the case for amendments 2, 3 and 4, but in the interests of time, we will simply vote against clause 52 in its entirety. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Question put, That the clause stand part of the Bill.
Clause 52 ordered to stand part of the Bill.
The Chair
For future reference, I understand that abstentions are supposed to be recorded by saying, “No vote”, although I am happy to be corrected. I am not always right.
Clause 53
Leave to remain for victims of slavery or human trafficking
Holly Lynch
I beg to move amendment 7, in clause 53, page 47, line 12, after “Kingdom” insert
“for a minimum 12 months”.
This amendment would give modern slavery victims in England and Wales with a positive conclusive grounds decision leave to remain for a minimum of 12 months.
The Chair
With this it will be convenient to discuss the following:
Amendment 5, in clause 53, page 47, line 14, leave out from “recovery” to the end of line 16 and insert “personal situation,”.
This amendment would define the criteria of providing leave to remain in line with Article 14 of the European Convention Against Human Trafficking 2005.
Amendment 189, in clause 53, page 47, line 21, at end insert—
“(2A) If the person is aged 17 or younger at the point of referral into the National Referral Mechanism, the Secretary of State must give the person leave to remain in the United Kingdom if that is in the person’s best interests.
(2B) In determining the length of leave to remain to grant to a person under subsection (2A), the Secretary of State must consider the person’s best interests and give due consideration to—
(a) the person’s wishes and feelings;
(b) the person’s need for support and care; and
(c) the person’s need for stability and a sustainable arrangement.”
This amendment seeks to incorporate the entitlement to immigration leave for child victims (as per Article 14(2) of ECAT) into primary legislation.
Amendment 6, in clause 53, page 47, line 22, leave out subsections (3) and (4).
This amendment would remove the criteria of not granting leave to remain if assistance could be provided in another country or compensation sought in another country.
Holly Lynch
Amendments 7, 5 and 6 concern the provisions to provide leave to remain for survivors of trafficking. Similar to our amendments to clause 52, amendment 5 seeks to bring the provisions in line with article 14 of ECAT by changing the criterion for providing leave to remain from “recovery” to “personal situation”. The reference to “personal situation” recognises that leave is necessary for a range of reasons. The explanatory report to ECAT states:
“The personal situation requirement takes in a range of situations, depending on whether it is the victim’s safety, state of health, family situation or some other factor which has to be taken into account.”
Amendment 6 would remove the criterion for not granting leave to remain if assistance could be provided in another country or compensation sought in another country. It is not clear why the Government introduced that criterion, and I would be grateful if the Minister could outline in his response how he could possibly envisage that working in practice.
Amendment 7 provides a clear minimum timeframe for granting leave to remain, thereby creating more certainty for victims. Under the Home Office’s current guidance on assessing discretionary leave for survivors of modern slavery, leave to remain is granted for a mixture of different time periods—sometimes as little as six months. Those timeframes are short, and the inconsistency can set back recovery.
In 2017, the UK Government issued figures on grants of leave to confirmed modern slavery victims. Some 21% of confirmed victims who were neither UK nor EU nationals were granted asylum in 2015. A group of more than 13 frontline charities that are expert practitioners in providing support to victims of slavery highlighted the problem, stating that:
“The support currently provided to survivors of human trafficking and modern slavery is not meeting recovery needs. Government funded support ends abruptly and too early and there is little information or data as to what happens to survivors in the longer term. The current situation leaves survivors with little realistic opportunity to rebuild their lives, with some ending up destitute, vulnerable to further harm or even being re-exploited.”
The Government may argue that they are already providing support for confirmed victims in England and Wales through the recovery needs assessment. However, under the RNA, victims are not guaranteed long-term support. Victims will receive a minimum of 45 days of move-on support, with the RNA determining how much—if any—extra support is required under the modern slavery victim care contract; that extra support will be for a maximum of six months at time, and may be only a few days or weeks.
Furthermore, Labour believes that victims’ needs are not fully addressed in the RNA. In the 2020 annual report on modern slavery, the support recommended by victim support workers was agreed to in full by the Home Office in only 53% of cases, which raises questions as to whether the process genuinely responds to victims’ needs or is, instead, focused on moving victims out of the service. In summary, amendments 7, 5 and 6 are necessary to address the fundamental challenge facing victims and provide them with far greater certainty.
Amendment 189 is necessary because all child victims must be granted immigration leave in line with their best interests as standard, as stated in international law and UK guidance. The amendment seeks to incorporate the entitlement to immigration leave for child victims as per article 14 of ECAT into primary legislation. It will specify that if the person is aged 17 or younger at the point of referral into the national referral mechanism, the Secretary of State must give the person leave to remain in the United Kingdom if that is in the person’s best interests, giving due consideration to a victim’s need for support and care and a sustainable arrangement.
The Independent Anti-Slavery Commissioner has echoed concerns on the lack of clarity around what the clause would mean in practice for children, with this having been acknowledged in the Government’s response to the new plan for immigration consultation. Dame Sara Thornton states
“it is disappointing that this detail was not included as part of the Bill”,
and we share that frustration. There is no consistent public data available on the outcomes for potential child victims of trafficking, but evidence shows that our current policies are not being implemented adequately.
Every Child Protected Against Trafficking requested data through the Freedom of Information Act on the immigration outcomes for those exploited as children, the response to which showed alarming results in the data. It found that only about 5% of child-related considerations resulted in a positive decision for discretionary leave. The data indicates that discretionary leave is not being granted to children as victims of trafficking, and that in the small number of cases where it is, the average length of grant is short, suggesting that decisions are not being taken with their best interests as a primary consideration, providing minimal stability.
How many child victims of trafficking were subsequently granted indefinite leave to remain under the policy is unknown but, based on those figures, we can estimate that they are few. That is despite the explicit current policy that states the need to consider the length of leave, including a grant of indefinite leave to remain in line with the child’s best interests. That requirement is set out to fulfil the Secretary of State’s statutory obligation under section 55 of the Borders, Citizenship and Immigration Act 2009 to safeguard and promote the wellbeing of children. All child victims of trafficking must be granted immigration leave in line with their best interests as only standard, as stated in international law and UK guidance.
Stuart C. McDonald
I want to say a few words in support of the amendments, which have the SNP’s full support. Currently, while someone might be in limbo for a long time, they are more secure the day after their referral into the NRM than they are the day after they receive a positive conclusive grounds decision, and that is not right. If they have been accepted as a survivor of trafficking, it makes them less secure. We should move towards a period of automatic leave to remain. The provision of leave is often an absolute prerequisite for meaningful recovery. With some security of status, the ability to seek employment or education and participate in the community builds confidence and stability, and the amendments broaden the number who will achieve that stability.
We also absolutely agree that there are problems regarding consistency between article 14 of the trafficking convention and current Home Office guidance. That is what amendment 5 would fix, so we support it. The convention speaks of allowing leave where necessary, given a survivor’s personal situation, and the explanatory report to the convention refers to issues around safety, their state of health, and the family situation or similar. The Home Office guidance calls for a much broader, individualised human rights and children’s safeguarding legislation-based approach, which seeks to protect and assist a victim and safeguard their human rights. Decision makers are to assess whether a grant of leave is necessary to meet the UK’s objectives under the trafficking convention and to provide protection and assistance to that victim owing to their personal situation. The current guidance is therefore closer to the convention than what is in this Bill.
The clause considerably reduces the scope of article 14 and the idea of a personal situation by adopting wording from the totally different article 12 and not offering any justification for that. The purpose and aim of leave to remain is recovery first in the host state if a survivor seeks that before any further upheaval is forced on them. That helps a survivor, and it helps us with law enforcement. It is also the only realistic way that they will be able to seek redress through compensation from those who exploited them. Pursuing such compensation from abroad just does not happen in practice.
Putting emphasis on the possibility that protection might be offered in the survivor’s home state, as the clause does, risks undermining a proper analysis of the personal circumstances as a whole and risks putting survivors back to square one and at risk of re-trafficking. Crucially, watering down the current position will mean fewer survivors remaining here or being in the best position to work with law enforcement authorities to bring the perpetrators of these awful crimes to justice. Again, that is dreadful news for survivors, but dreadful news for all of us as the perpetrators will escape punishment and other people will become the next victims. We support these amendments and call on the Government to explain why they do not just adopt the wording of article 14 of the European convention.
Craig Whittaker
The Bill is groundbreaking in its provision of a specific grant of temporary leave to remain for confirmed victims of modern slavery by putting it in primary legislation. Clause 53 sets out the circumstances in which a confirmed victim may qualify for a grant of temporary modern slavery-specific leave. I think we all agree that this is a crucial provision that enhances the rights of the victims. Our approach is to set out the circumstances in which this new form of leave to remain will be provided, giving victims and decision makers clarity as to entitlements, in line with our international obligations.
In contrast to amendment 7, the clause does not seek to specify the length of the leave conferred on an individual, as that will be determined through an assessment of the specific circumstances of the individual. This approach is designed to provide flexibility based on an individual victim’s needs. To specify the length of time up front is not required in legislation, as that can be better—
Neil Coyle
The Minister is right: a huge number of organisations welcome the specific leave to remain on these grounds. Perhaps he could tell us the average length of time that it takes to prosecute gangs on these specific circumstances and whether it is the Government’s intention to protect anyone who has been trafficked for the entire period of the case in order to prevent them from being intimidated if they are outside the UK and in their country of origin, for want of a better term.
Craig Whittaker
The hon. Gentleman will know from his own experience that that is done through the criminal justice system in this country. If any victim or any person needs to be taken into any form of witness protection, that will be done via the courts. You may want to come back in.
Neil Coyle
But I am asking very specifically about the circumstances in clause 53(2)(c), where the Government are offering leave to remain on these specific grounds. Is it the Government’s intention that that leave to remain is extended for the period of any case involving the individual who is believed to have been trafficked?
Craig Whittaker
As I have said, each individual case will be considered on an individual, case-by-case basis. That is why the measure is written the way it is—so that decision makers can make individual decisions, based on individuals’ needs and support.
The Chair
Order. I have been trying not to interrupt the Minister, but “you” is me.
Neil Coyle
Let us try it the other way round. Can the Minister confirm that it is not the Government’s intention to end leave to remain during criminal proceedings if that could mean that someone is forced to leave the UK and could be at risk of intimidation in another country?
Craig Whittaker
As I clearly stated in my previous answer, each individual case will be treated on the merits of that case, so it will be the decision makers’ decision as to what action, care or support will be needed for the individual.
Let me go back to what I was saying about amendment 7. To specify the length of time up front is not required in legislation, as that can be better met through provision in guidance and flexibility for the decision makers to determine it.
With regard to amendment 5, I think we agree that the primary aim here is to provide clarity to victims on the circumstances in which they are eligible for a grant of temporary leave to remain. To support clarity of decision making, we have sought to define the circumstances in which victims are eligible for a grant of modern slavery-specific leave. By contrast, amendment 5 would reduce clarity by providing that leave should be granted where necessary to assist the individual in their “personal situation”, without actually defining the term “personal situation”. This is why we have chosen to define what we mean by “personal situation” in this clause, for domestic purposes, and have set out that temporary leave to remain will be provided where it is necessary to assist an individual
“in their recovery from any harm arising from the relevant exploitation to their physical and mental health and their social well-being”.
Stuart C. McDonald
But the point is that “personal situation” is the wording in the convention and it is also the wording in the Home Office’s own guidance, and I do not understand it to have created problems for the Home Office up to this point. The problem is that this Bill is narrowing the scope of the circumstances that will be taken into account when considering this.
Craig Whittaker
The clause defines what personal circumstances mean. Amendment 5 does not do that and, in doing so, reduces clarity for victims. That is completely against the aim of the clause, which is to give clarity to victims.
Neil Coyle
Could the Minister provide some statistics to help us—I do not expect him to have this to hand, but perhaps he can respond in writing—on the average length of these cases, the number of people granted leave to remain who were believed to be victims of traffickers and the average length of the leave to remain they granted? Those would be useful statistics for the Committee and for the House ahead of Report.
Craig Whittaker
I have resisted saying these words, but I will make sure that we write to the Committee with those statistics if they are available.
The link to exploitation is an important one, and it is based on our Council of Europe convention on action against trafficking in human beings obligations to assist victims in their recovery. Given that the aim is to provide a clear framework to deliver certainty for victims and decision makers, I do not think that amendment 5 would enhance that at all. Turning to amendment 189, I recognise the importance, again, of bringing clarity to victims about the circumstances in which they are entitled to temporary leave to remain. That is exactly what clause 53 will do. I understand the particular vulnerabilities of children, and I can reassure the Committee that these are built into our consideration of how the clause will be applied.
Clause 53, in contrast to amendment 189, seeks to clarify our interpretation of our international obligations and it brings clarity for victims and decision makers, too. It purposefully does not use terms such as
“the person’s wishes and feelings”,
which are unclear and would not enable consistent decision making.
We are also clear that all these considerations must be based on an assessment of need stemming from the individual’s personal exploitation. Amendment 189 seeks to remove that link to exploitation, moving us away from the core tenets of our needs-based approach. It would not support victims in better understanding their rights; nor indeed would it help decision makers have clarity on the circumstances in which a grant of leave is necessary.
I want to be clear that clause 53 applies equally to adult and child confirmed victims of modern slavery. Crucially, through this clause, we have already placed our international legal obligations to providing leave for children in legislation—which I think we all agree is a milestone in itself.
I want to reassure the Committee that decision makers are fully trained in making all leave to remain decisions, including considering all information to assess the best interests of the child and to account for the needs to safeguard and promote the welfare of all children. All decision makers will receive training and up-to-date guidance on the policy outlined in clause 53.
For the reasons I have outlined, such changes do not add clarity and, in our view, are not required. I hope the hon. Member for Halifax will not press her amendments.
Holly Lynch
I thank the Minister, once again, for his contribution. In the interests of time, I will seek to move amendment 189 formally as, once again, I am not satisfied that the appropriate provisions for children have been recognised. I will gently make the point that statutory guidance has been referred to so often as the place where we would look for further detail on how the Bill would actually affect people’s lives that it would have been diligent to produce the statutory guidance at the same time as the Bill. That would have given Members the ability to really scrutinise it in full.
With that in mind, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Amendment proposed: 189, in clause 53, page 47, line 21, at end insert—
“(2A) If the person is aged 17 or younger at the point of referral into the National Referral Mechanism, the Secretary of State must give the person leave to remain in the United Kingdom if that is in the person’s best interests.
(2B) In determining the length of leave to remain to grant to a person under subsection (2A), the Secretary of State must consider the person’s best interests and give due consideration to—
(a) the person’s wishes and feelings;
(b) the person’s need for support and care; and
(c) the person’s need for stability and a sustainable arrangement.”
This amendment seeks to incorporate the entitlement to immigration leave for child victims (as per Article 14(2) of ECAT) into primary legislation.—(Holly Lynch.)
Question put, That the amendment be made.
Craig Whittaker
I beg to move amendment 72, in clause 53, page 48, line 10, leave out “reasonable” and insert “conclusive”.
This amendment corrects a drafting error.
The Chair
With this it will be convenient to consider clause stand part.
Craig Whittaker
The Government have tabled a minor amendment to subsection (9) of the clause to reflect that a grant of leave comes after the positive conclusive grounds decision rather than the reasonable grounds decision. Subsection (9) has therefore been amended to provide that the relevant exploitation for the purpose of granting leave under subsection (2) of the clause means the conduct resulting in the positive conclusive grounds decision rather than the positive reasonable grounds decision. This corrects a minor drafting error.
I will briefly speak on clause 53. It reflects our commitment to supporting victims of modern slavery by setting out in legislation, for the first time, the circumstances in which a confirmed victim may qualify for a grant of temporary modern slavery-specific leave. The aim of the clause is to provide clarity to decision makers as to the circumstances in which confirmed victims qualify for temporary leave to remain. It is a Government priority to increase prosecutions of perpetrators of modern slavery. As such, the legislation makes it clear that where a public authority such as the police is pursuing an investigation or criminal proceedings, confirmed victims who are co-operating with this activity and need to remain in the UK in order to do so will be granted temporary leave to remain, to support that crucial endeavour. The clause will ensure that victims and public authorities have surety about victims’ ability to engage with prosecutions against those who wish to do harm.
Holly Lynch
I have heard the Minister’s opening remarks on clause 53 stand part. Only 11% of confirmed victims with a positive conclusive grounds decision between 1 January 2016 and 31 March 2020 received discretionary leave. I therefore ask the Minister to make it clear how an individual’s need for leave will be judged under the criteria in the Bill, and to provide us with clear evidence on how he believes that clause 53 is in keeping with the ECAT obligations.
As colleagues are aware, just weeks ago the High Court delivered a significant judgment that foreign national victims of human trafficking should be granted leave to remain, which really requires starting from scratch on these clauses. The ruling came following the case of a 33-year-old Vietnamese national who was coerced into sex work in Vietnam back in 2016, before being trafficked to the UK in the back of a lorry. From November 2016 to 2018 she suffered further exploitation, being forced to work in brothels and cannabis farms. In April 2018, she was identified as a victim of human trafficking. However, as is the case with many victims, she was charged with conspiring to produce cannabis, and was sentenced to 28 months imprisonment. In May 2019, a trafficking assessment was sought once again by her lawyers, to which the Home Office responded that it had no record of her case; she was later placed in immigration detention. It was not until her legal representatives made a further referral that she was finally recognised as a victim. In his judgment, Mr Justice Linden said,
“The effect of the refusal to grant the claimant modern slavery leave is that she is subject to the so-called hostile environment underpinned by the Immigration Act 2014.”
Sadly, cases such as these are representative of many of the systemic issues that currently exist that leave victims in limbo and vulnerable to further exploitation. I ask the Minister, have the Government considered a different course of action in light of that ruling, and might clauses 52 and 53 be revised at a later stage?
Another area of concern is subsection (3) of the clause, that states that there is no obligation to provide leave to remain on the grounds of a victim’s need for support in their recovery if the victim could receive support in their own country, or a third country, although there is no requirement for there to be evidence that the victim will receive that support—I very much hope there is good news in the note being passed along the Front Bench to the Minister. Therefore, the clause risks imposing a blanket rule for inadmissibility. I ask the Minister to set out how the UK will know what support can be provided in another country and how the impact on the victim of going to potentially a third country could possibly be assessed.
We have already discussed at length the importance of adopting a trauma-led approach, and the same must be applied here. It must be recognised that victims will very rarely be able to work with law enforcement agencies, even those that will be investigating their cases, if they have the fear of removal hanging over them. The Government acknowledged that in their new plan for immigration, which states that certainty over their immigration status is for many victims a
“crucial enabler to their recovery and assisting the police in prosecuting their exploiters”.
I ask the Minster, where is certainty provided in the clause?
As mentioned in my previous remarks, this is an area where there is considerable cross-party support. I am sure the Minister will be aware of concerns raised by the right hon. Member for Chingford and Woodford Green (Sir Iain Duncan Smith), who has stated:
“The ability of a victim to remain in the UK is unchanged by the Bill, and one would therefore expect that the proportion of confirmed victims in receipt of leave to remain would remain low…this Bill would perpetuate rather than address the current arrangements in which the vast majority of confirmed victims are denied leave to remain in the UK to help their recovery.”—[Official Report, 19 July 2021; Vol. 699, c. 746.]
I do hope the Minister reflects carefully on these remarks and applies the same enthusiasm that his colleague the Under-Secretary of State for the Home Department, the hon. Member for Corby, expressed last week in working with the sector to simply start again in light of the High Court judgment made since the Bill was first published.
Clause 53, as it stands, shows that the Government are only cherry-picking at parts of ECAT to satisfy their agenda, rather than adopting article 14 in its entirety. On that basis we cannot support the clause.
Craig Whittaker
Let me see whether I can answer some of those questions. The hon. Member for Halifax asked how the clause is compatible with ECAT, and where is the certainty. This measure will clarify in primary legislation the obligations set out in article 14 of the European convention on human rights, and clarify the policy that is currently set out in guidance. This confirms that victims of all ages, including children, who do not have immigration status will automatically be considered for temporary leave. A grant of temporary leave to remain for victims of modern slavery does not prohibit them from being granted another, more advantageous, form of leave, should they qualify for it. It continues to be the core principle of the approach to modern slavery—
Holly Lynch
The Minister refers to a piecemeal approach to extending leave—and extending leave—and extending leave. That is preventing victims from moving on with their recovery, from trusting the agencies and from establishing relationships that will lead to the prosecutions that we all hope for. Since he says that further extensions are likely, could we not reflect on more significant periods of leave being given in a single grant?
Craig Whittaker
I am a little surprised that the hon. Lady says “piecemeal approach”. I thought I was very clear throughout the process that it is a highly trained decision maker that will be looking at each individual on a case-by-case basis. They will have the ability to look at the individual person’s needs and extend. That approach is at the opposite end of the spectrum to the “piecemeal approach” mentioned by the hon. Lady.
Neil Coyle
I think the Minister is suggesting that there would be variation in the lengths of leave provided. Can he set out that it is the Government’s expectation that there would not be a minimum, bog standard six months that everyone is given, and that there will be quite considerable variation in the periods provided?
Craig Whittaker
I thank the hon. Gentleman for that intervention asking for clarity. He is absolutely right; decisions will be made on the basis of individual needs. I can understand where the word “piecemeal” comes from, but the reality is that if an individual’s mental and physical health and wellbeing support needs mean that those periods need to be extended, the individual highly trained decision maker will have the ability to extend the period.
Neil Coyle
The Minister is again saying extend, rather than grant for the necessary period. Coming back to the criminal prosecution case, it is very unlikely that the case will be heard within six months. It will not even get to court within six months, let alone be heard. Is it the Government’s expectation that someone will be protected with a period of leave that covers a court case? Will the individual decision maker have access to the average statistics on the time it takes to hear a case of this nature?
Craig Whittaker
I do not think that the decision maker will need the statistics on the average timescale for a decision. What they will need to make a decision is the individual person’s history and needs, which is what they will use throughout the process. If they need six months, they will get six months. If they need longer than that—whether for a court case or other circumstances —that is intended to be allowed for the individual.
There was one more question on how we assess the victim’s needs to be met in another country. The policy will make it clear for the first time in legislation that confirmed victims with recovery needs stemming from their exploitation will be entitled to a grant of leave where it is necessary to assist them in their recovery. Decision makers will assess, in line with guidance and available country information, whether the support and assistance required by the victim to aid their recovery is readily available in their country of return. This will be carried out on a case-by-case basis, in line with individual assessments for each victim.
Amendment 72 agreed to.
Question put, That the clause, as amended, stand part of the Bill.
Clause 53, as amended, ordered to stand part of the Bill.
The Chair
The Opposition have indicated that when we return this afternoon they wish to make brief remarks on clause 54 and 55 taken together and then discuss clause 56 separately. We will then take clause 57 without debate. I hope that is clear.
The Chair adjourned the Committee without Question put (Standing Order No.88).
Adjourned till this day at Two o’clock.
Nationality and Borders Bill (Fourteenth sitting)
(3 years ago)
Public Bill CommitteesRead Full debate Read Hansard Text Read Debate Ministerial Extracts
The Committee consisted of the following Members:
Chairs: Sir Roger Gale, † Siobhain McDonagh
† Anderson, Stuart (Wolverhampton South West) (Con)
† Baker, Duncan (North Norfolk) (Con)
† Blomfield, Paul (Sheffield Central) (Lab)
† Charalambous, Bambos (Enfield, Southgate) (Lab)
† Coyle, Neil (Bermondsey and Old Southwark) (Lab)
† Goodwill, Mr Robert (Scarborough and Whitby) (Con)
† Gullis, Jonathan (Stoke-on-Trent North) (Con)
† Holmes, Paul (Eastleigh) (Con)
† Howell, Paul (Sedgefield) (Con)
† Lynch, Holly (Halifax) (Lab)
† McLaughlin, Anne (Glasgow North East) (SNP)
† McDonald, Stuart C. (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)
† Owatemi, Taiwo (Coventry North West) (Lab)
Pursglove, Tom (Parliamentary Under-Secretary of State for the Home Department)
† Richards, Nicola (West Bromwich East) (Con)
† Whittaker, Craig (Lord Commissioner of Her Majesty’s Treasury)
† Wood, Mike (Dudley South) (Con)
Rob Page, Sarah Thatcher, Committee Clerks
† attended the Committee
Public Bill Committee
Tuesday 2 November 2021
(Afternoon)
[Siobhain McDonagh in the Chair]
Nationality and Borders Bill
The Chair
I highlight an announcement, given the decision about events in Parliament today. Members are strongly encouraged to wear masks when they are not speaking, in line with current Government guidance and that of the House of Commons Commission. Please also give each other and members of staff space when seated and when entering and leaving the room.
Clause 54
Civil legal aid under section 9 of LASPO: add-on services in relation to the national referral mechanism
Question proposed, That the clause stand part of the Bill.
The Chair
With this it will be convenient to consider clause 55 stand part, as announced by Sir Roger at the end of the morning sitting.
The Lord Commissioner of Her Majesty’s Treasury (Craig Whittaker)
Identifying and supporting victims at an early stage is a key part of the Bill, and the new one-stop process. To underpin that process, clause 54 provides for legally aided advice on the national referral mechanism to be provided to individuals who are already receiving legally aided advice on an immigration or asylum matter. The additional advice will be free to the individual.
The provision of legally aided advice under the clause will help the individual’s lawyer to provide holistic advice on the individual’s situation as a whole, looking at the range of protection-related issues, including modern slavery. Advice under the clause will additionally help to identify and support potential victims of modern slavery at an earlier stage. Potential victims of modern slavery will be able to understand what the NRM does and able to make an informed decision as to whether to enter it and obtain the assistance and support provided under it.
The Government are firm in our commitment to identifying and supporting all victims of modern slavery. The clause seeks to ensure that individuals are provided with advice on the NRM at the same time as they are receiving advice on an asylum and immigration matter, which will enable more victims of modern slavery to be referred, identified and supported.
Holly Lynch (Halifax) (Lab)
It is a pleasure to see you in the Chair, Ms McDonagh. Clause 54 amends the Legal Aid, Sentencing and Punishment of Offenders Act 2012 to enable advice on referral into the NRM to be provided as add-on advice where individuals are in receipt of civil legal services for certain immigration and asylum matters. Although I and many other colleagues welcome the fact that the Government have recognised the importance of legal aid as part of the process, we argue that legislating for it only as an add-on misses the opportunity to extend access to all those who would benefit from it—I include the Home Office as one of the main beneficiaries of people having access to proper advocacy and advice from an early stage.
In England and Wales, 63% of the population do not have access to an immigration and asylum legal aid provider, due simply to a lack of provision—what is known as a legal desert. Where there are providers, many are operating beyond capacity. Sadly, it is therefore commonplace for support workers to be unable to find lawyers for clients who are victims of trafficking.
It is not reasonable to expect vulnerable victims to be able to navigate the system without legal representation. It is vital that this is provided at the earliest stage possible. As the Public Law Project and JUSTICE have pointed out:
“The provision of legal aid to individuals who seek redress is not simply a matter of compassion, but a key component in ensuring the constitutional right of access to justice, itself inherent in the rule of law and an essential precondition of a fair and democratic society. Failure to provide it can amount to a breach of fundamental rights under the common law and/or the European Convention on Human Rights.”
We believe victims deserve better than what is set out before us in the Bill. The Anti Trafficking and Labour Exploitation Unit has highlighted how the single competent authority is currently sending out template witness statements as a guide for how they should be prepared. They warn of the legal implications of the document even in the absence of a lawyer. That is unacceptable. I am sure the Minister agrees that it would make for an improved system with more integrity and fewer errors—the very sort of system he proposes—if a broader approach to legal aid was adopted.
It is also fair to argue that access to legal aid remains somewhat of a postcode lottery, with many outside London and the south-east experiencing difficulties in accessing legal assistance. I take this opportunity to highlight the great work of the Anti Trafficking and Labour Exploitation Unit in attempting to widen access, having developed an online referral system for support workers to simplify the process for sourcing legal aid representation. However, it should not fall to organisations such as ATLEU to plug the gaps in the system. We wish to see improved access through this clause.
Similarly, the Government state in the explanatory notes to the Bill that clause 55 is designed to provide an add-on to legal aid on referral to the NRM if the victim has been granted exceptional case funding and is being advised in relation to the claim that their removal from or requirement to leave the UK would breach the Human Rights Act 1998. That means that clause 55 does not provide a route to pre-NRM advice for those who are not already in receipt of legal aid via the scope of another matter, and therefore does not provide free legal aid pre-NRM for all trafficking cases.
In scrutinising these measures, we have worked closely with the Immigration Law Practitioners Association, which I thank for having been so generous with its expertise, as I know it is for MPs right across the House, and for providing real-life examples that demonstrate the scale of the issue. It said:
“We assisted the pro bono department of a non-legal aid law firm when they helped a potential survivor apply for exceptional case funding—ECF—in August 2020. The funding was requested in order to provide advice on an NRM referral and associated immigration advice. This application was refused. A request to review the decision was refused. A decision on a second review is pending a final decision from the Legal Aid Agency. One ground of refusal at first review stage was that no decision had yet been made to remove the individual as they had not come forward to the authorities, and if a decision to deport or remove a client from the United Kingdom is made, an application for ECF could be made at that stage. The application remains undecided 13 months after the original submission.”
The system is a mess, Minister. It is the Opposition’s view that free legal aid and advice for potential victims of slavery and trafficking in the UK pre-NRM should not be limited to cases with existing immigration and asylum aspects. Only then will the Government’s offer of legal advice on referral to the NRM work in practice. In summary, the proposals contained within clauses 54 and 55 do not fully address the existing shortcomings in the system—another missed opportunity.
Question put and agreed to.
Clause 54 accordingly ordered to stand part of the Bill.
Clause 55 ordered to stand part of the Bill.
Clause 56
Disapplication of retained EU law deriving from Trafficking Directive
Question proposed, That the clause stand part of the Bill.
Craig Whittaker
The trafficking directive—the directive on preventing and combating trafficking in human beings and protecting its victims—was adopted by the UK on 5 April 2011. The Council of Europe convention on action against trafficking in human beings—ECAT—is the principal international measure designed to combat human trafficking. The trafficking directive is intended, in part, to give effect to ECAT. ECAT’s objective is to prevent and combat trafficking by imposing obligations on member states to investigate and prosecute trafficking as a serious organised crime and a gross violation of fundamental rights.
Following the end of the transition period on 1 January 2021, the UK is no longer bound by EU law, but ECAT remains unaffected. Therefore this Government intend, by means of clause 56, to disapply the trafficking directive in so far as it is incompatible with any provisions in the Bill. That will bring legislative certainty to the Bill and how its clauses will apply. It will also provide further clarity to victims about their rights and entitlements.
The Government maintain their commitment to identify and support victims of modern slavery and human trafficking, as part of the world-leading NRM. The Modern Slavery Act 2015 and ECAT, which sets out our international obligations to victims, remain unaffected, as do the UK’s obligations under article 4 of the European convention on human rights.
I commend the clause to the Committee.
Holly Lynch
I thank the Minister for his opening remarks on clause 56. The explanatory notes on the clause state that, as the Minister has just outlined,
“the Trafficking Directive should be disapplied in so far as it is incompatible with any provisions in this Bill.”
There are some substantial and quite technical inconsistencies here that need to be worked through, and to do so we have had to enlist legal expertise from the Anti Trafficking and Labour Exploitation Unit and others, so I thank them all for their service.
The trafficking directive is part of a suite of measures designed to combat the crime of trafficking. The EU has introduced several legislative measures to strengthen the protection of victims of human trafficking, including the 2011 EU directives on preventing and combating trafficking in human beings, and protecting victims of trafficking.
I turn first to the heading of clause 56—“Disapplication of retained EU law deriving from Trafficking Directive”. Subsection (1) refers to
“Section 4 of the European Union (Withdrawal) Act 2018”,
which saved the trafficking directive in domestic law, so that it continued to have effect on or after the UK left the EU at the end of December 2020. However, it has the opposite effect, by stipulating that any
“rights, powers, liabilities, obligations, restrictions, remedies and procedures derived from the Trafficking Directive”
that were saved cease to apply,
“so far as their continued existence would otherwise be incompatible with provision made by or under this Act.”
Therefore, our primary concern about clause 56 is that the power to disapply the rights derived from the trafficking directive will cease the rights and remedies available to victims generally as a matter of domestic or EU law that continues in force in the UK.
The world’s largest group of modern slavery researchers, Rights Lab, has argued:
“After eight years of the government’s general position being that the rights under the Trafficking Directive were already in domestic law, the choice to legislate now in the Nationality and Borders Bill—to reduce and restrict rights and entitlements through Part 4 of the Bill—and the presence of the express power to disapply them in the event of an incompatibility with the Bill in Clause 56 is concerning. The government should instead ensure that rights under the Trafficking Directive continue to apply in UK law, by incorporating it, and further, it should incorporate ECAT in domestic law and end the fragmented approach to victim identification, protection, and support.”
The clause will also threaten the Government’s ability to combat the perpetrators of human trafficking, as it will further undermine the response to criminal justice and the rights of victims of trafficking as victims of crime in the victims of crime directive and relevant codes of practice. Additional concerns have been voiced in relation to the rights under the NRM of victim identification and support and non-penalisation. For example, article 8 of the directive provides for the non-prosecution or non-allocation of penalties to victims, and requires the UK to ensure that competent national authorities are entitled not to prosecute or impose penalties on victims of trafficking in human beings for their involvement in criminal activities that they have been compelled to commit as a direct consequence of being subject to any of the acts referred to in article 2.
Therefore, that directive is clearly threatened by clause 56 and other provisions of part 1 of the Bill, including clause 51, which I appreciate is precisely why this Government want to disapply it. However, I am afraid that that is just the wrong judgment call.
In conclusion, the clause is incompatible—
Craig Whittaker
I am not sure whether the hon. Member is aware that the transition period for this measure finished in January, so in effect it has already been disapplied.
Holly Lynch
I thank the Minister for his intervention. We are into the thick of the legal technicalities. These points are from some of the leading legal experts on the subject. They are not entirely satisfied that clause 56 is compatible, and that we are not missing some of the protections that have been hard fought for, with good reason.
In conclusion, the clause is incompatible with the UK’s legal international obligations and will have far-reaching consequences. For that reason, it should not stand part of the Bill.
Question put, That the clause stand part of the Bill.
Clause 56 ordered to stand part of the Bill.
Clause 57 ordered to stand part of the Bill.
Clause 58
Age assessments
Paul Blomfield (Sheffield Central) (Lab)
I beg to move amendment 150, in clause 58, page 52, line 19, at end insert—
“(3A) Before making regulations under this section, the Secretary of State must consult the ethical committees of the relevant medical, dental and scientific professional bodies and publish a report on the consultation.”
This amendment would require the Secretary of State to consult with ethical committees of medical, dental and scientific professions before making regulations in their area, and publish a report on the consultation.
The Chair
With this it will be convenient to consider the following:
Clause stand part.
Government amendment 168.
Government new clause 29—Interpretation of Part etc.
Government new clause 30—Persons subject to immigration control: referral or assessment by local authority etc.
Government new clause 31—Persons subject to immigration control: assessment for immigration purposes.
Government new clause 32—Use of scientific methods in age assessments.
Government new clause 33—Regulations about age assessments.
Government new clause 34—Appeals relating to age assessments.
Government new clause 35—Appeals relating to age assessments: supplementary.
Government new clause 36—New information following age assessment or appeal.
Government new clause 37—Legal aid for appeals.
Paul Blomfield
I understand that the Government seek to delete clause 58 and replace it with new clauses 29 to 37, which provide more detail. However, the detail does not offer any reassurance; quite the contrary.
Mr Robert Goodwill (Scarborough and Whitby) (Con)
Does the hon. Gentleman accept that new clause 32 makes amendment 150 superfluous, as it talks about the scientific input into age determination?
Paul Blomfield
I thank the right hon. Gentleman for his intervention, but he is completely wrong and I will explain why shortly.
In existing clause 58 and the new Government clauses, the Government want to introduce new regulations and a standard of proof for age assessments, to compel local authorities to assess age, to allow the use of “scientific methods” to assess age, despite widespread concerns from professional bodies about the validity or accuracy of any such methods, and to penalise children for not consenting to these potentially harmful interventions.
Children who come to the UK on their own, from countries such as Afghanistan, Sudan and Eritrea, face a unique problem when asked to prove their date of birth. The registration of births and the importance placed on chronological age differs across the world, and many are genuinely unable to show official identity documents, such as passports or birth certificates, because they have never had them in the first place, they have had them taken away from them, they have lost them in the chaos of fleeing, or sometimes they have had to destroy them en route.
Disputes over age can also arise from a lack of understanding of the way in which dates are calculated in other countries and cultures, and associated confusion over what is being said by a child about his or her age. So, one might reasonably ask, why are the Government making so much of this issue?
Mr Goodwill
Does the hon. Gentleman not agree that there are incentives for adults to pass themselves off as children? If the age assessment is done incorrectly, the result could be adults being placed in schools or local authority care, putting children at risk.
The Chair
I call Robert Goodwill—sorry, I meant Paul Blomfield.
Paul Blomfield
He can have another go if he wants.
I hear what the right hon. Member for Scarborough and Whitby is saying. I remember watching a BBC programme recently—I think it was on the BBC—on the Kindertransport. The same debate was had about Jewish refugees fleeing Nazi Germany after Kristallnacht. Some were slightly older than the age restriction of the time. I do not know whether the right hon. Gentleman thinks that this legislation would have been appropriate at that time. We could have turned them around and sent them back to the Nazis.
Paragraph 24 of the explanatory notes states:
“Since 2015, the UK has received, on average, more than 3,000 unaccompanied asylum-seeking children per year. Where age was disputed and resolved from 2016-2020, 54% were found to be adults”.
Clearly, 54% is a big number, but the data in the notes is more than a little selective.
According to Home Office statistics, for the most recent normal year unaffected by the pandemic, which was 2019, there were 4,005 unaccompanied children applications. Of those, 748 had their age disputed and 304 were found to be adults. That is just over 7% of child applicants. The problem is that that is in no way as prolific as purported by the explanatory notes. The actual number is likely to be lower, because the Home Office stats do not include decisions later overturned following advocacy or reviews by judges.
Again, the Government have a problem finding evidence to justify a proposal in the Bill. This is clearly not the first time this has happened. I see that the Home Secretary got herself into trouble with the Lords Justice and Home Affairs Committee today by being unable to come up with the facts to justify one of her wilder allegations about those crossing the channel. Nevertheless, the Government are ploughing ahead with their plans to use scientific methods to assess age.
I now turn specifically to new clause 32, which does not offer any of the clarity that the right hon. Member for Scarborough and Whitby suggested. Proposed new subsection (2) mentions the
“types of scientific method that may be specified”,
and that the two specified might be included. However, proposed new subsection (9) goes out of its way to state:
“This section does not prevent the use of a scientific method that is not a specified scientific method for the purposes of an age assessment under”
the previous proposed new section,
“if the decision-maker considers it appropriate to do so”.
New clause 32 is therefore saying: “Any scientific method that we can come up with at any time in the future will be legitimate.”
Mr Goodwill
I understand the point that the hon. Gentleman is trying to make, but I am worried that he is saying, “Well, we’ll give a lot of people the benefit of the doubt”, which could result in large numbers of adults being placed in settings that are appropriate for children. Surely he is aware that since the 2003 case, age assessments have been Merton compliant. Any actions that the Government take to follow through on the Bill becoming law will obviously be tested in the courts in the same way as the early years situation.
Paul Blomfield
I refer the right hon. Gentleman to what my amendment 150 proposes. All it asks is that the Government should be required to take into account relevant scientific and medical evidence, consulting reports of the ethical committees of the appropriate medical and dental professions, on the Government’s planned use of scientific methods for assessing age.
What do the experts think? The British Dental Association called dental X-rays for age assessments “inaccurate and unethical”, which is a theme that relates to the rest of the Bill—it will not do what it says it will do. The Government apparently told some journalists that they do not plan to use dental X-rays anyway, but the Bill leaves that option open, so forgive us if we do not take casual briefings to journalists on the side as a way to determine the Government’s future conduct on this issue.
The Government are apparently planning to use wrist X-rays, which the British Medical Association tells us it has “serious concerns” about because
“they would involve direct harms without any medical benefit to the individual”,
as radiation exposure over a lifetime should be kept as minimal as possible. The BDA agrees:
“The process of radiography is a medical procedure that should be carried out only for medical purposes, and where the patient stands to benefit. Exposing children to radiation when there is no medical benefit is simply wrong.”
The BMA also warns that
“the evidence supporting the accuracy of the process is extremely weak”.
We are back to the same old theme: there is no real evidence to support what the Government are doing. The BMA goes on to say that the process is particularly weak where,
“as in the case of most asylum seekers, there is a shortage of appropriate age and cultural comparators.”
Yet again, Ministers are introducing ineffective proposals without any evidence, making those seeking asylum—in this case, children—part of the narrative of “Let’s assume bad faith, and let’s assume that everybody is trying to play the system.” It will not work, but it is designed to grab headlines and to make it seem as though the Government are talking tough, rather than dealing with the genuine issues on which we agree, such as stopping those who are forced out of desperation to make journeys across the channel. I urge the Minister to accept our amendment or, better still, to just withdraw the clause.
The Chair
The Public Gallery is becoming a little crowded. I encourage everyone sitting there to spread out as much as possible, to ensure social distancing.
Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)
I would like to speak to clause stand part, and I support everything that the hon. Member for Sheffield Central has already said. We all recognise how important it is to get age assessments right, while acknowledging that it will always be an imperfect process. As he said, what precisely is the nature and scale of the problem that the Government are driving at here? Of course, it is important to ensure as far as possible that adults are not placed in child settings, but the overall tenor of the evidence that we have received is that placing children in adult settings is an even greater risk. If a young adult is placed in a setting designed for older children, there will at least be child-specific safeguarding and other age-appropriate support. If a child is wrongly placed in adult reception and immigration processes, there are no such protections, and such a decision can have profound impacts on and consequences for a child.
First and foremost, we should continue to think about age assessments as a function of the child protection and safeguarding system, not of the immigration system. The responsibility should remain with social workers, whose expertise and experience make them by far the best people to undertake such assessments where support is required. We should preserve the current position, which does not place an evidential burden on a child or young adult but leaves the decision makers to weigh up all the evidence to a reasonable degree of likelihood. The Home Office has quite simply offered no sound reasons for undermining that arrangement and for imposing a higher standard of proof.
New clause 29 and other new clauses almost certainly mean that age assessments will be routine. The Secretary of State is basically helping herself to powers to demand tests whenever she wishes, even where social workers think they are entirely inappropriate. The idea of a national age assessment board could be helpful. As we have seen from both oral and written evidence to the Committee, sharing resources and best practice could bring benefits, but what is proposed by the Government in the new clauses goes way beyond that. We need to know who is going to be on the board, how it will work and how its independence will be secured, particularly given the vast, wide-ranging regulation-making powers that the Secretary of State is helping herself to. The role of any such board should be to support local authorities, not to supplant and overrule them. Unfortunately, the Government’s provisions go far too far, and they need their wings well and truly clipped if we are to support them.
New clause 29 seems incredibly lazily drafted in how it refers to relevant children’s legislation. In Wales, Scotland and Northern Ireland we have to work out whether a piece of statute corresponds to part III, IV or V of the Children Act 1989. It is pretty sloppy drafting. It also serves notice that this is a devolved area. Important questions for the Minister are: what consultation has there been with devolved Governments, and is a legislative consent motion to be sought on these issues?
There has to be recognition that, for many reasons, the process of age assessment can be, and will remain, a very difficult task. We know that children develop into adults at different speeds. The experience of an asylum-seeking child can affect their appearance and demeanour. As the hon. Member for Sheffield Central eloquently put it, the demeanour of a young person who has travelled across continents and survived in some incredibly difficult circumstances may no longer be that of a child, despite them being a child. Completely different physical and nutritional regimes in the country of origin will also cause differences. That is why raising the standard of proof is not appropriate.
These difficulties are not going to be overcome by the use of so-called scientific methods of assessment—methods which are absolutely no more scientific than assessment by expert social workers. Indeed, many would suggest that these methods are a lot less helpful. Much evidence has been submitted to the Committee about the lack of effect of these new methods and their unethical nature, as the hon. Member for Sheffield Central referred to. The British Dental Association is clear that dental tests cannot produce accurate assessments and that taking radiographs is inappropriate where there are no health benefits for the individual undergoing the test. The BDA has submitted detailed evidence on that.
Mr Goodwill
I have just had a look at the NHS website and it says that having an X-ray is equivalent to one or two days of background radiation. If someone takes a short-haul flight, the amount of radiation they are likely to be exposed to is probably more than an X-ray, particularly if it is on a limb and not on the main body.
Stuart C. McDonald
I do not have access to that webpage, but the right hon. Gentleman has access to the extensive evidence submitted to the Committee by the BDA. It is a two-sided issue. First, it is not appropriate to subject people to radiation, and in this case there is no informed consent. The evidence is clear. The Royal College of Paediatrics and Child Health is clear that an assessment can be no more accurate than two years either side. The British Society for Paediatric Endocrinology and Diabetes is clear that we cannot assess a child’s age just physically or by analysing bones.
In short, if a decision maker says that somebody is 18 years old, the person is just as likely to be 16 or 20. These new clauses leave the Secretary of State with powers that are far too broad. She should at least be required to have consent and approval from professional bodies, whether medical, dental or scientific. The insistence that so-called scientific methods can be used anyway if the decision maker considers it appropriate—as enabled by new clause 32(9)—totally undermines the other safeguards. It must be removed.
Mr Goodwill
The hon. Member is very generous in giving way. Is he saying, in effect, that in every case we should take the person’s word for how old they are and treat them as children, even if there is scientific evidence that they may be many years older than 18?
Stuart C. McDonald
No, I am not saying that. What I am advocating is the position at present—that the decision maker looks at all the evidence that is available in the round. If somebody is 50, I cannot imagine them needing an invasive scientific procedure to establish that they are over 18. I am not by any stretch of the imagination saying that we just take somebody’s word for it. I am advocating for the status quo. By all means the Government can introduce some sort of advisory board, but that should not supplant and take over the functions of local authorities—but that, unfortunately, is how I see these new clauses working.
The new clauses suggest that there will be implications for a person’s credibility if they choose not to undergo the medical procedures. I object, as a point of principle, to Parliament telling decision makers what to think about someone’s credibility when it is those decision makers—not us—who know the circumstances of the decision that they have to make. It is particularly objectionable given that professional medical bodies thoroughly object to these so-called scientific procedures. Despite the fact that professional bodies have said that these tests are inappropriate, the Government are telling decision makers that, if a young person says, “Well, the medical professionals say this is inappropriate, so I won’t undergo this,” they must find that young person lacking in credibility.
I repeat the point I made in relation to earlier clauses about the impugning of the credibility of those making statements on someone’s behalf. It is especially bizarre that a medical report by a multi-disciplinary panel of experts could have its credibility maligned simple because a child or young adult refuses to undergo one of these so-called scientific methods of testing introduced through regulations by the Secretary of State. Not only is it bizarre; it also undermines the fundamental idea that people should be able to give free consent to medical procedures and examinations, and not be pressured into them. Similarly, it undermines the principle that such a procedure should happen only if it delivers a scientific benefit for that person.
What consultation has there been? We have not been able properly to scrutinise or ask questions of relevant witnesses in relation to these specific provisions. Is consent to be sought from devolved Governments on the basis that large tracts of these new clauses relate to how local authorities should exercise functions related to devolved legislation? In the absence of assurances on any of those fronts—the evidence of problems, proper consultation and devolved consent—the case for change is absolutely not made. On the contrary, there are all sorts of dangers in these clauses that could have serious consequences for children.
Anne McLaughlin (Glasgow North East) (SNP)
I will be brief, as I have just a couple of questions. Ethics aside, as is the want of this Government—if that is not the case, why are they running away from the amendment tabled by the hon. Member for Sheffield Central?—I want to look at the issue of estimating the maturity of a child’s skeletal system by comparing images with databases of children of the same age and gender. Do children in Ethiopia develop at a comparable rate to children in the UK, because I understand that that is who they are going to be compared to? Do children in Eritrea and Sudan develop at the same rate? The British Medical Association seems pretty certain that they do not. If that is the case, how long will it take to build databases of comparable images for each country or region, and has that work started?
Bambos Charalambous (Enfield, Southgate) (Lab)
The Government have tabled new clauses 29 to 37 to replace clause 58, which was a placeholder clause on age assessments. Colleagues have already made the point about lack of scrutiny. Having received these new clauses so late in the day, we have not had a chance to see proper evidence, because we were not aware of what has been said. Clearly, as part of its role a Committee must have time to scrutinise. I am sure we will do the best we can with the time we have been given, but it really is not best form to have so many Government new clauses so late in the day on such an important issue.
We are concerned that the age assessments referred to in new clauses 29 to 37 risk violating children’s rights. I thank the Refugee and Migrant Children’s Consortium, a coalition of over 60 organisations, for its excellent briefing on these new clauses and for sharing its concerns about their inclusion in the Bill. If implemented, the new regulations and measures on age assessments will significantly increase the risk that children in the system will be treated as adults and criminalised. Before we discuss specific measures, it is worth noting that age assessments are not straightforward, nor are they an exact science. The measures in this Bill fail to recognise that it is impossible to determine age precisely, especially when there is an absence of documentation, which is often the case. By introducing a higher standard of proof in age assessments, more children in the system will be wrongly treated as adults, with devastating consequences.
For unaccompanied children in the asylum system, age is fundamental to receiving the support and protection they need. In the UK, age determines how or whether someone is supported by children’s services and has access to education; whether they are provided with asylum support by the Home Office and dispersed to a different part of the UK; and whether they are accommodated or detained with adults. It is imperative that we get age assessment right, and we all agree that there are clear safeguarding issues when people claiming to be children are later found to be adults, but it is also true that the effects of children being wrongly treated as adults are significant. I therefore urge colleagues to consider those safeguarding risks in relation to new clauses 29 to 37.
New clause 29 defines various terms, including “age-disputed person”, which governs the persons to whom the provision on age assessments will apply. As it stands, new clause 29 will mean that age assessment is required whenever there is insufficient evidence to be sure of age. Of course, as we know, this is true in many if not all cases. In practice, this clause therefore puts the burden of proof on a child to prove that they are under 18.
This is problematic for a couple of reasons. Children who come to the UK on their own from countries such as Afghanistan face challenges when asked to prove their date of birth. First, the registration of births and the importance placed on chronological age differs across the world. Secondly, and perhaps more significantly, there is often a lack of documentation. For example, many children who come to the UK have never had official identity documents in the first place, or have had documents taken from them or destroyed during their journey to the UK.
It is worth sharing an example, and I thank the Refugee and Migrant Children’s Consortium for bringing it to the Committee’s attention, as it highlights both the challenges in determining age accurately and the impact of wrong decisions. This case refers to a young person named K, who arrived in the UK from Iran and was held in a police station. He was 16 years old when he left Iran, and he told the staff at the police station his date of birth. They explained that, based on the date of birth, he was now 17.
K was then questioned by someone—he believes they were from social services—who did not believe he was 17, as they believed he looked older. Before entering the UK, K had been living in the jungle in Calais, and had not properly washed for a long time and had grown a beard. K was pressured into accepting he was 18 years old, and the Home Office recorded his age as 18. This meant he was not referred to a local authority for a full age assessment and was dispersed into adult asylum support accommodation in a hotel. He was the only child in the hotel and was left very scared. He reported that adults in the accommodation were taking drugs and he could not eat during his time there.
K managed to get in contact with the British Red Cross, and a safeguarding referral was made to the relevant local authority. The local authority promptly arranged to visit the young person, and two social workers agreed that it was highly likely that K was the age he was claiming to be. K was immediately moved and provided with full support under section 20 of the Children Act 1989. The local authority completed a full needs assessment and quickly took action to refer him to a GP, dentist, optician and immigration solicitor, and supported him to enrol in college. He had been suffering from asthma, and had not received any medical support since he arrived in the UK.
K’s case highlights what can happen when a young person is wrongly considered an adult in the asylum system, and the effects are stark. They lose access to the support and protection they need. That is why we must be incredibly careful to develop appropriate and fair age assessments, and also ensure that they are a function of the child protection and safeguarding system more widely.
In relation to K’s case, I have mentioned the fact that children are in hotels, and there is a real question about what safeguarding goes on in hotels. I know the Minister is deputising today, but could he look into that for me and to write back to me, or ask officials to do so at some stage, about what safeguarding for children does go on in hotels?
In new clause 30, the Home Office will be given the power to make regulations on how to assess age and introduce a standard of proof on the balance of probabilities for age assessments. The current standard when age is disputed in the context of an asylum appeal, developed through years of case law, is that of a reasonable degree of likelihood. Given the complicated nature of assessing age, introducing such a high standard of proof would significantly increase the risk of children being wrongly treated as adults. Indeed, new clause 30 undermines current statutory guidance from the Department for Education, which makes it clear that age assessments
“should not be a routine part of a local authority’s assessment of unaccompanied or trafficked children”.
The Government’s proposals will give the Home Office powers to compel local authorities to assess the age of a child, as they must provide the Home Office with evidence for why they believe that the child is the age they claim to be. That will put pressure on local authorities, which have already expressed frustration over having to conduct age assessments when Home Office caseworkers challenge their view that they see no reason to doubt a young person’s age. Introducing those changes in new clause 30 will likely undermine the specialist knowledge and experience of those who work in the asylum system, while putting increased pressure from the Home Office on the already stretched resources of local authorities.
New clauses 30 and 31 outline the powers and procedures of the national age assessment board. There are concerns from the sector, in particular the British Association of Social Workers, about the lack of a multi-agency, holistic approach. Indeed, the NAAB as introduced by the Bill will have significant powers, with minimal accountability or transparency. In practice, it will be able to override professional judgment developed over years of experience, including a local authority age assessment, as the NAAB will be able to carry out an assessment if required to by the Secretary of State or a designated person on their behalf.
It is appropriate that age assessments draw on, and consult, a wide range of practitioners in health, care, education and the community, especially as we turn to new clause 32, which controversially provides for the use of scientific methods for age assessment. It includes methods such as examining or measuring parts of a person’s body by using imaging technology and analysis of saliva, cell or other samples from a person’s body. It is a deeply worrying provision. I note that the new clause is not exhaustive. Could the Minister provide more details on age assessments under it?
It is worth re-emphasising, as many organisations in the sector have, such as the United Nations High Commissioner for Refugees, that medical age assessment methods are highly contested and subject to a high margin of error. The evidential value of scientific age assessment methods is uncertain. Scientific methods, for example, remain contested by UK courts and by medical professionals and associations. The evidence supporting the accuracy of the processes is extremely weak, particularly where, as in the case of most asylum seekers, there is a shortage of appropriate age and cultural comparisons. Indeed, the Royal College of Paediatrics and Child Health has stated that the use of radiological assessment is extremely imprecise and can give only an estimate of within two years in either direction.
While potentially being inaccurate, scientific methods such as those listed in the Government’s proposals are also harmful to the individuals who are assessed. It is telling, and very concerning, that the British Dental Association notes at the very end of its written evidence that
“dentists could find themselves performing an act that is not just inappropriate and unethical, but even constitutes criminal battery.”
The British Medical Association, too, has serious ethical concerns about the proposed use of imaging technology. The use of radiation for that purpose is harmful for the individual, without any medical benefit. Invasive procedures will likely be traumatic for the individual, and will almost certainly adversely affect vulnerable children and young people, causing anxiety, confusion and frustration. That will actively harm the most vulnerable of asylum seekers and potentially retraumatise them. For those reasons, the Home Office ruled out using dental X-rays, as the BDA found that they would be “inaccurate, inappropriate and unethical” if implemented in asylum cases.
Furthermore, the fine print of new clause 32 includes subsection (9), which appears to create another category of potential scientific methods that can be used—methods that have not been specified in regulations and have not been approved by relevant professional bodies. The subsection states:
“This section does not prevent the use of a scientific method that is not a specified scientific method for the purposes of an age assessment…if the decision-maker considers it appropriate to do so and, where necessary, the appropriate consent is given.”
That has potentially very worrying implications, and the Government should clarify why the subsection has been included and whether the methods, which are not specified in regulations, include those that the Government were advised against when seeking scientific advice. It is critical that any method used to make age assessments has a strong scientific and evidentiary base.
Another worrying aspect of the new clause is around consent and damage to credibility. Subsection (7) states that decision makers must take it
“as damaging the age disputed person’s credibility”
if they do not consent to the use of the specified scientific method. A child could object to the use of an invasive method that is not a specified scientific method, which is deeply troubling. That is also included in new clause 33, which allows the Secretary of State to make regulations about age assessments, including damage to a person’s credibility, due to lack of co-operation. Refusing to be subjected to an invasive measure, including those that the BMA says are potentially harmful to individuals, should not have a bearing on a person’s credibility.
As referred to throughout Bill Committee proceedings, people who come to the UK have often endured significant challenges in their journeys, including trauma and physical, mental and sexual abuse. Further subjecting these vulnerable people, such as unaccompanied people and young people, to invasive measures is deeply concerning, especially when the outcomes will remain inaccurate. By legislating to ensure that decision makers take it as damaging a person’s credibility if they refuse to consent to these methods, the Government will penalise children for not consenting to potentially harmful “scientific methods”. In practice, this measure will force children and young people to undergo assessments that may be harmful to them.
The Government’s proposals fail to take into consideration issues of consent and the competency of children in decision making. For example, children affected by trauma may have had their capacity to make decisions undermined. More widely, it is crucial that we do not view the use of scientific methods as a silver bullet for age assessments, especially given the widespread concern about their accuracy and the harm they will potentially inflict on vulnerable children and young people.
New clauses 34 to 37 provide additional measures around the right of appeal, situations when new information comes to light after an age assessment or appeal, and access to legal aid. We of course welcome measures to provide access to justice provisions. In the interests of time, I will focus on the more controversial aspects of the Government’s new clauses on age assessments. I think we all agree that wrongly treating a young asylum seeker as an adult puts an already vulnerable person at immense risk, effectively depriving them of all the support, supervision, awareness and monitoring that ought to be provided. The Government’s proposals on age assessments are therefore concerning as they will increase the number of children and young people who enter the adult asylum system in incredibly vulnerable circumstances, with fewer rights and entitlements than they deserve.
The Government’s new clauses appear to suggest that there is a simple process to determine age accurately. This is worrying. We must avoid viewing age assessments in asylum cases in this way. We need to get age assessments right. That will involve taking a broader approach than the Government have laid out in new clauses 29 to 37. The new clauses on age assessments risk vulnerable children and young people being denied rights they deserve, protection they need and support we must offer. We oppose the measures set out in the new clauses, and we oppose clause 58 standing part of the Bill.
Jonathan Gullis (Stoke-on-Trent North) (Con)
It will probably not shock Committee members that I support what the Government are doing on age assessments. Ultimately, it is about ensuring that we protect our young people in our United Kingdom. When people say that they are children and will be in a classroom surrounded by people of a similar age, we need to make sure that they are indeed children.
As a former teacher, I understand the importance of this. As a former head of year who had responsibility for safeguarding, covering welfare, attendance and the behaviour of young people, it makes no sense to me why anyone would oppose a measure to make sure that people who claim to be young people are indeed young people. An individual who has nothing to hide should have nothing to fear in this regard. It is absolutely essential that age assessments take place to make sure that people claiming to be of school age are indeed of that ilk, because ultimately other young people could be put in a very vulnerable situation.
Stuart C. McDonald
We want age assessments to be as accurate as they can be at the moment, not just through the work of social work groups but with input from outside. Does the hon. Gentleman have any concerns about the impact on children who end up being wrongly placed in adult facilities?
Jonathan Gullis
Of course—absolutely. Young people should not be placed in a situation like that, for safety reasons. As a former teacher, I would not want a 14 or 15-year-old to be somewhere they felt unsafe. The problem is that we have a broken asylum system that needs fixing. Age assessments can be avoided if people do not try to enter the country illegally, but come by safe and legal routes, where we can have documentation.
There are other ways to prove someone’s identity, age and application, as we have done in Afghanistan and Syria, which will ultimately be a much better system than having illegal economic migrants crossing the English channel from Calais and entering this country illegally. They are putting a huge strain on the public services of our country and on the people of Stoke-on-Trent North, Kidsgrove and Talke, whose area is the fifth largest contributor to the asylum dispersal scheme.
Age assessment is absolutely essential. It is another way of reminding people that if they make an illegal entry into this country they will face a number of procedures to verify the credibility of their asylum claim, their identity and their age, in order to ensure we protect our country’s young and vulnerable people. It is the right and proper thing to, and I fully applaud the Minister on pushing this essential clause.
Craig Whittaker
Let me start with amendment 150. I would say to the hon. Member for Sheffield Central that his amendment applies to all aspects of age assessments, not only the use of scientific measures. As such, it is extremely broad, although I do not know if that remains his intention.
The Home Office takes its statutory duties towards the welfare of children very seriously. The current age assessment system is desperately in need of reform. We have heard many reports from local authorities about the prevalence of adults posing as children and claiming services designed for children, including accommodation, education and social care. This poses significant risks to the welfare of genuine children in our care system and undermines the integrity of the immigration system. Equally, we need to safeguard vulnerable children from being placed in adult services, although I am not sure I agree with the hon. Member for Sheffield Central when he said that this is headline grabbing.
We must do everything in our power—whatever that is—to safeguard children, including vulnerable and unaccompanied asylum-seeking children.
Holly Lynch
The Government were less enthusiastic about protecting children under part 4 of the Bill.
Craig Whittaker
I do not think that deserves a response because I do not believe any Member of the House, wherever he or she sits, would advocate that we leave children vulnerable in the system.
One measure we look to pursue is the use of scientific methods, as has been said. Assessing someone’s age is an incredibly difficult task. It is only right that in this complex and sensitive area we seek to improve and expand the evidence base on which decisions can be made. We are aware there are ethical concerns around the use of certain scientific methods for age assessment, which is why new clause 32 includes a number of changes to the Bill to ensure proper safeguards are in place for those who are asked to undergo a scientific age assessment.
First, the Secretary of State may only specify a scientific method of age assessment in regulations once she has sought scientific advice and determined that the method in question is appropriate for assessing a person’s age. I expect that scientific advice to also cover related ethical considerations. Secondly, a scientific method of age assessment will not be performed unless the appropriate consent is given by or on behalf of the individual on whom the method is to be performed. We will be as transparent as possible about the nature and consequences of the specified method where consent is required once an appropriate method has been identified. Thirdly, where a person has reasonable grounds for refusing to undergo a scientific age assessment, they will not be required to undertake one. That decision will not then count against them.
Existing regulatory frameworks already govern the safe and ethical application of various technologies and they could be employed to assess age. The use of ionising radiation, for instance, is highly regulated by the Justification of Practices Involving Ionising Radiation Regulations 2004, which require a demonstration that the individual or societal benefits of their use outweigh any health detriments. I can assure hon. Members that the Government will comply with all relevant regulatory frameworks in relation to the scientific methods chosen.
An important point to reflect on is that the use of scientific methods for age assessment is not new. They are already widely in use in most countries throughout Europe, including Denmark, Norway and Sweden. The UK, therefore, should draw on the latest technological advances to improve the process for determining age, as that is a positive step towards ensuring that we are doing all that we can to safeguard those vulnerable children.
Reflecting on the safeguards in the Bill and the pre-existing processes to ensure safe and ethical applications for the various technologies—before I finish, I will give way.
Stuart C. McDonald
The Minister is outlining what he sees as safeguards. I am unconvinced. New clause 32(9) seems to say that nothing prevents the use of a scientific method, even if it is not specified in regulations and so on, if the decision maker considers it appropriate and, where necessary, consent is given. Given that there are implications if consent is not provided, that surely rides roughshod over all the other protections that the Minister just outlined.
Craig Whittaker
I will come on to that when I discuss further measures in new clause 32, but our opinion is that the amendment is not necessary and I ask the hon. Member for Sheffield Central to withdraw it. On the new clauses, clause 58 is one of the six clauses drafted as placeholder clauses of introduction, as indicated in the explanatory notes and memorandum for the Delegated Powers and Regulatory Reform Committee. It was drafted as such in the interests of transparency to make clear our intention to bring forward substantive provision on age assessment. New clauses 29 and 35 are intended to replace clause 58 entirely.
Before I touch on the other clauses, regarding new clause 32, we have already said that determining a young person’s age is an inherently difficult task. One of the questions posed earlier was how we do that as a comparator between other young people growing up in less well-developed countries. Under current arrangements where an individual’s age is disputed, local authorities must already undertake an age assessment. That typically involves two appropriately qualified social workers undertaking a series of interviews with the young person and taking into account any other information that is relevant to their age. However, even where those assessments are conducted thoroughly and reach reasoned conclusions, they are fraught with difficulty, as one would imagine. Such assessments can have a wide margin of error. We are aware of cases where a Merton-compliant age assessment, as they are called, has been conducted on the same individual by different social workers and has come to very different conclusions about the person’s age. Given that context, the use of scientific age assessments represents an additional and important source of evidence to help decision makers in a difficult task, allowing them to better come to accurate judgments. At the end of the day, that is our aim.
Various scientific methods of age assessment are already in use across most European countries, and have been for several years. In Finland and Norway, which I mentioned earlier, radiographs are taken to examine development of the teeth and the fusion of bones in the wrist. Two certified experts perform the age assessment and must jointly agree on the person’s age. In France, X-rays are taken to examine the fusion of the collarbone, alongside dental and wrist X-rays. In Greece, dental X-rays are used alongside social worker assessments.
Anne McLaughlin
What are the experts comparing with? My question is, will they be comparing the bone density or whatever with that of children of the same age in the UK, knowing that the development of children from other parts of the world is very different, or will they have a database of comparable images of the skeletal system—whichever part they are using—from each of the other countries? Is that something that is happening at the moment, or will they just be compared with UK-based children?
Craig Whittaker
I suspect that the answer to the hon. Lady’s question is that how that is assessed will be down to the individual scientific advice given on the individual case at the time. I cannot see a like-for-like comparator for a child from Ethiopia or Sudan, which was mentioned earlier, being a child in this country. That is why the scientific evidence is a much more accurate way of assessing. It can be a great tool in the arsenal of assessing a child when compared with our existing system, which is the Merton assessment by two individual social workers. Given the challenges of assessing an individual’s age, we see no good reason why such technologies should not also be used. In all good faith, this is one of several tools in the arsenal. To further enhance my answer to the question asked by the hon. Lady, the precise scientific method of assessment will be specified in regulation, following scientific advice.
We are also making it clear within new clause 32 that a decision maker will be able to draw a negative credibility inference if an individual refuses to undergo a scientific age assessment without reasonable grounds. The introduction of any scientific method would be entirely undermined if someone who was asked to undergo such an assessment could simply refuse to co-operate. By legislating to develop our own scientific age assessment capability, we hope to emulate best practice across Europe and to ensure that unaccompanied asylum-seeking children are provided with the care they are entitled to in a safe environment.
Let me turn to the rest of the amendments in the group before I answer some of the questions. Amendment 168 is consequential on new clauses 32 and 33. It provides that the regulation-making powers in the clauses are commenced automatically two months after Royal Assent.
The purpose of new clause 29 is to define an “age-disputed person” and to set the parameters to whom the age-assessment clauses apply. It clarifies the meaning of a number of terms, including “age-disputed person”, “immigration functions”, “immigration officer” and the respective definitions of “local authority” in England, Wales, Scotland and Northern Ireland. The clause also defines the meaning of “relevant children’s legislation” across the four nations of the United Kingdom.
New clause 30 relates to the establishment of a decision-making function in the Home Office, referred to as the national age assessment board, or the NAAB, as I think the hon. Member for Enfield, Southgate referred to it. The NAAB will have responsibility for conducting age assessments of age-disputed persons on referral from the local authority or another public authority specified in regulation. Where an age-disputed person is referred to the NAAB by a local authority, the NAAB assessment will be binding on both the Home Office, in relation to immigration functions, and the local authority when determining access to children’s services. Alongside new clause 30, new clause 31 relates to the establishment of the NAAB. While most NAAB age assessments will be conducted on referral from a local authority, the new clause stipulates that the NAAB may, in certain situations, conduct age assessments on age-disputed persons for the sole purpose of deciding whether or how the Secretary of State should exercise any immigration functions.
Stuart C. McDonald
Will the Minister say a little bit more about the NAAB? Who will be appointed to it, how will it generally undertake assessments and how will its independence from the Home Office be ensured?
Craig Whittaker
I assure the hon. Gentleman that I will answer him before I finish answering the other questions, if indeed I can find the answer in my book.
I have covered new clause 32 quite extensively. New clause 33 provides the Secretary of State with the power to make regulations about the way in which age assessments are to be conducted under the provisions in new clauses 30 and 31. It will provide the Secretary of State with the power to provide more clarity on what a comprehensive age assessment should entail, including, where appropriate, existing elements of age assessment case law. It will be mandatory for local authorities and the Secretary of State to follow these requirements when conducting age assessments. New clause 34 provides for a right of appeal to the first-tier tribunal for an age-disputed person who has been subject to age assessment. In considering an appeal, the tribunal will be able to consider any evidence it deems relevant. It will determine the age of the age-disputed individual and assign them a date of birth.
New clause 35 provides clarity in a number of areas related to the appeal of an age assessment decision. First, a person who brings such an appeal must do so while they are here in the United Kingdom. If they leave the United Kingdom before the appeal is finally determined, the appeal is discontinued. Secondly, the clause provides for the appellant to apply to the tribunal for an order. Pending the outcome of the appeal, the local authority must exercise its function under children’s legislation as if the person is the age they claim to be. Where an age assessment has been made and the individual has not brought an appeal, or has concluded the appeal process, new clause 36 provides a mechanism for them to make further representations to a decision maker where they have new evidence to submit in support of their claimed age. That covers all the specific parts of the new clauses.
The hon. Member for Enfield, Southgate asked me about hotel accommodation. In cases involving a child, local authorities obviously will have obligations to look after them. For adults, hotels are not detention centres, and adults are not held their against their will. There is a duty of care on the local authority when someone is placed there; it is required to give wraparound care for that individual, particularly for children. I cannot really see children being placed there by themselves, but I understand what the hon. Gentleman is saying about where there is an issue around age. Somebody could slip through the net, but the local authority would be required to give wraparound care.
The hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East asked about the devolved Administrations. As part of the consultation earlier this year, we engaged with the devolved Administrations and have had conversations about some of the detail of the new clauses, and we intend to continue to do so in the coming weeks. I hope that helps to answer his question.
The hon. Member for Glasgow North East mentioned the skeletal development of people from different ethnic backgrounds. We are conscious that ethnic and environmental factors may have an impact on physical characteristics that may be analysed as part of a scientific age assessment. We will endeavour to ensure that the scientific method used will consider the characteristics of people of different ethnicities and the environmental factors within a person’s country of origin.
Paul Blomfield
The Minister may be about to pre-empt me, but I do not think he has answered the questions raised by the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East in relation to the national age assessment board, so will he at least undertake to write to us on that issue?
Craig Whittaker
No, I have not finished yet. I am not quite ready to sit down, but I will answer that question. Basically, the board will predominantly consist of qualified social workers who, through being dedicated to the task of conducting age assessments and through training and the sharing of expertise, will achieve a more consistent and accurate approach to the task of age assessment. As Members have probably seen, such professionals are referred to as a “designated person” in the new clauses, and the board will have responsibility for conducting age assessments on age-disputed persons on referral from the local authority, as I said. Local authorities will retain the ability to conduct age assessments if they prefer to do so. If they believe that a person is actually the age they claim to be, they must inform the Home Office accordingly.
The hon. Member for Sheffield Central asked whether binding local authorities’ hands is just a power grab from central Government. The answer to that question is no. If local authorities wish to carry out their own assessments, they will be able to do so—without question, that will be the case. On that basis, I commend the new clauses to the Committee.
Paul Blomfield
I have listened carefully to the Minister’s observations. To be fair, he made a good fist of defending the indefensible, but he failed to answer the concerns expressed by me and the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East in relation to the way that subsection (9) of new clause 32 drives a coach and horses through all the reassurances that we have been given. His criticism of the amendment as being a bit broad and involving quite a lot of work fails to acknowledge how narrow it is. It would simply require the Secretary of State to take advice before making regulations, and I therefore wish to press the amendment to a vote.
Question put, That the amendment be made.
Question proposed, That the clause stand part of the Bill.
Question put and negatived.
Clause 58 disagreed to.
Clause 59
Processing of visa applications from nationals of certain countries
Paul Blomfield
I beg to move amendment 151, in clause 59, page 52, line 33, at end insert—
“(3A) The Secretary of State must publish impact assessments on the effect of the provisions in this section on—
(a) nationals from countries falling within subsection (3), and
(b) the United Kingdom’s economy and trade.”
This amendment would require the Secretary of State to publish impact assessments with regard to the effect this clause might have on both nationals from countries in subsection (3) and the UK economy and trade.
The Chair
With this it will be convenient to discuss the following:
Clause stand part.
Government amendment 80.
Government new clause 9—Removals from the UK: visa penalties for uncooperative countries.
Government new clause 10—Visa penalties: review and revocation.
Paul Blomfield
The amendment would require the Home Secretary to publish impact assessments on the effect of clause 59 both on nationals from the countries in subsection (3) and on the UK’s economy and trade.
The Government plan to replace clause 59 with Government new clauses 9 and 10. This is a slightly more developed version of the proposal to punish the nationals of countries if the Government consider their Governments to have been unco-operative on returns. The explanatory notes for clause 59 do not explain its purpose—because it was a placeholder clause, there was no detail—so I assume it is to act as an incentive for countries to co-operate with returns, but I hope that the Minister will seek to provide some evidence of that.
The explanatory notes do state that
“a very small number of countries do not cooperate”
with returns, suggesting that penalties would apply only to a limited number of states. However, a report in The Daily Telegraph on 15 October—presumably briefed by the Government, which is the way we seem to get information these days—said that
“Pakistan, Iran, Iraq, Sudan, Eritrea and Philippines”
are countries understood not to co-operate with returns. We know that the majority of those on that list have conditions that mean returns are unlikely anyway, as there are strong asylum cases from them, so we know that the deterrents will not work. So, I would like to press the Minister a little bit more on what the Government expect to achieve with these revisions.
Mr Goodwill
Surely what the hon. Gentleman says defies logic. If we are going to give visas to nationals of a particular country and we know there is a risk they may overstay, surely we can be more generous and more engaged with that country if we know that those overstayers can be removed. In the case of visas, we will have biometric data, so that there is no doubt about a person’s identity.
Paul Blomfield
I hear what the right hon. Member is saying, but the scope of this provision seems to go much wider than that. It seeks to introduce punitive measures, including on visa charges and so on, for individuals who may be applying, and I will develop that point. It is nothing to do with overstaying. This is about countries that are unco-operative on returns in other contexts.
I want to press the Minister on what the Government expect to achieve by this. For example, it is not in our interests to sanction doctors, nurses or engineers who have been recruited to the UK from one country with longer visa processing times or higher charges, and that would be deeply damaging for our diaspora communities. Again, it feels as if we have proposals picked from headlines, which are not in the country’s interests.
Mr Goodwill
It might help some of these countries if we did not plunder their health professionals, who have trained at the expense of that country, and actually trained our own instead.
Paul Blomfield
I am interested in that observation, and I hope the right hon. Gentleman will lead the charge to persuade the Government to allocate far more resources for the training of health professionals and to tackle the crisis they have created within our health service over the past 11 years.
Amendment 151 will try to ensure that the Government are clear-eyed about the impact of their policy and the trade-offs they are prepared to make, as well as the impact on UK public services, communities and businesses. The amendment would allow the public to examine that trade-off, too. It would ensure that the Government track the impact of their policy, and are transparent with business and trade over the impact any visa penalties might have, either through reduced travel or through deteriorating relationships with those countries.
The Government talk a lot about global Britain, but through our examination of the Bill we have seen many threats to that and a lot of ways in which they plan on sowing discord with other nations around the world, damaging our reputation in the international community. I know that the Minister will not vote for clause 59 stand part, but I would welcome his thoughts on the wider impact of the replacement clauses, along the lines of my amendment. I would appreciate it if he could tell us whether any such impact assessments are being considered.
I have an important point to make about new clauses 9 and 10, to which I hope the Minister can respond. There is significant concern that these clauses will prevent people from joining refugees in the UK through the family reunion route. Let us consider the countries cited in The Daily Telegraph again: Pakistan, Iran, Iraq, Sudan, Eritrea and the Philippines. Since the start of 2019, 8,480 people from Iran, Iraq, Sudan and Eritrea have been granted refugee family reunion visas to join loved ones in the UK. That equates to just over half—53%—of all family visas granted over that period. Some 3,584 of those visas were for children and 5,771 for women or girls. The new clause, as drafted, would potentially apply to visas for refugees coming to the UK under one of the Home Office’s resettlement schemes, including the relocation scheme for Afghan nationals who have previously worked with the UK Government or applicants from Hong Kong for British national overseas visas.
So, if the Government are determined to proceed with these new clauses, at the very least new clause 9 needs to be amended to include an exemption for refugee family reunion and other protection routes. I should be grateful if the Minister would indicate whether the Government are willing to do that.
Anne McLaughlin
We support amendment 151 for the self-explanatory reason that we need to know the impact of these actions. We are not saying that visa penalties should never be imposed in any circumstances, but we share many of the concerns voiced by the hon. Member for Sheffield Central and I will focus on a couple of them.
The Government say this clause will incentivise other countries to co-operate with the UK Government to remove those who have no right to be in the country, but they have presented no evidence that this will be the case. Saying it is one thing, but if they are so confident of it they should do some work and, as the hon. Member for Sheffield Central asks in his amendment, publish a report examining the impact on our relations with other countries.
The Joint Council for the Welfare of Immigrants says that this clause will affect, among others, workers, including key workers. Have not the Brexit restrictions on key workers coming into the country taught us anything? There are also tourists and their massive contribution to our economies; performers; students—who pay thousands of pounds to study at our universities, many of which would struggle to survive without them—and academics, among others, including the family members of British citizens. Again, we are punishing the wrong people.
Specifically, I want to express the concerns of Elizabeth Ruddick of the UNHCR about the impact on family reunion. The UNHCR’s concern is that although the clause gives the Home Secretary flexibility on the type of penalties to impose, nothing explicitly prevents the imposition of penalties on applications for refugee family reunion. Elizabeth Ruddick says that delaying refugee family reunion on that basis is likely to violate their human rights, particularly under article 8 of the ECHR. Will the Minister do that thing that his colleague has done a lot in Committee, which is to reassure us that that will not happen? For the record, I am not reassured, but reassurances have been offered throughout the Committee and it would be good to hear his thoughts at least.
Will the Minister consider a scenario that could arise from the clause and reassure me about it? I might be taking this too far, but let us take the case of two asylum seekers who arrive irregularly by boat. Perhaps the Home Secretary is feeling generous and decides that, rather than offshoring them or jailing them—both options that the Bill allows to be considered—she will simply return them to their countries of origin, from which they fled. Country No. 1 has not signed an agreement and does not agree to take the person back, perhaps because—I will be generous—its Government recognise that they cannot protect that person, for whatever reason.
Country No. 2, however, is Afghanistan. We have talked a lot about Afghanistan in considering the Bill, and we are not currently returning people to Afghanistan, but that will not always be the case, so bear with me. The second asylum seeker is to be returned to Afghanistan and the Taliban men in charge are ready to welcome refugees back with open arms, primarily because they have been hunting them down anyway. For obvious reasons, Afghanistan complies, signs the agreement and accepts its citizens back. Does that mean that country No. 1 could have restrictions placed on its students, key workers and tourists who wish to visit the UK, while by comparison the Taliban could have free rein? I am not asking whether that is likely to happen; I am just asking whether the clause means that it could happen.
We welcome the reviews included under new clause 10, but they are not sufficient, and the powers under new clause 9 are too wide. Again, they give far too much power to the Secretary of State. It seems that nothing is off limits. The new clause encompasses three themes recurring in the Bill: first, too much power to the Secretary of State; secondly, not enough regard to international relations; and thirdly, closing down one of the few safe and legal routes, unless the Minister can reassure me that refugee family reunion is not affected by the provision—I hope he can.
Craig Whittaker
Starting with amendment 151, I reassure the hon. Member for Sheffield Central that the penalties are there to encourage countries to co-operate. There is international precedent for countries to have the power to impose penalties on countries that do not co-operate on the matter of returns.
Both the United States and the EU have similar powers to those we are seeking. Recently, the Council of the EU decided to suspend temporarily the application of certain provisions in the visa code to nationals of The Gambia, owing to the country’s lack of co-operation on readmission of third-country nationals illegally staying in the EU. The new powers in the Bill will bring the UK into line with our international partners and ensure that we are no longer lagging behind other countries.
I assure hon. Members that, given talk of penalties and exemption, family reunion will be an exemption to the penalties, as discussed.
Turning to amendment 151, I can assure the hon. Member for Sheffield Central that the power to impose visa penalties will be exercised only after consideration of the potential economic impact on the UK, and with full agreement across Government. Contrary to the hon. Member’s assertion that there is another Government leak, there is no current list: this will be done on a case-by-case basis, based on the impact across areas such as the economy, but also taking each Department into account. I also draw the hon. Member’s attention to new clauses 9 and 10, which—as we have already touched on—set out those visa provisions in more detail. I feel that this is a fairly straightforward part of the Bill, with no need for the hon. Member’s amendment.
Turning to new clauses 9 and 10 and Government amendment 80, a key function of the Home Office is the removal of individuals who have no legal right to be here, either by deportation or administrative removal, usually to the country of which they are nationals. We expect our international partners to work with us, as they expect us to work with them, to remove such individuals, as the UK does where our own nationals in other countries should not be in those countries. This is a critical component of a functioning migration relationship, and the vast majority of countries co-operate with us in this area. However, a small number do not.
As has been said, new clause 9 is designed to give the Government the power to impose visa penalties. Countries should no longer expect to benefit from a normal UK visa service if they are unwilling to co-operate with us on the matter of returning nationals. We will be able to slow down or suspend visa services for that country, and require applicants to pay a surcharge of £190 when they apply for a UK visa. Specifically, new clause 9 sets out when a country may be specified as unco-operative and the factors that will be taken into account when imposing visa penalties. Additionally, the new clause provides detail on the types of penalties that may be applied. It is a critical step in taking back control of our borders.
Briefly turning to new clause 10, visa penalties are intended to be a matter of last resort, and must not be in place longer than necessary. The new clause requires the Secretary of State to review the application of visa penalties every two months and revoke those penalties if the relevant country is no longer unco-operative. This provision is a safeguard to ensure that any visa penalties applied do not remain in place by default. Government amendment 80 is consequential on new clauses 9 and 10, providing that they will come into force two months after the Bill receives Royal Assent.
I commend new clauses 9 and 10 and Government amendment 80 to the Committee, and by your leave, Ms McDonagh, I request that the hon. Member for Sheffield Central withdraw his amendments.
Paul Blomfield
I was reassured by the commitments on family reunion, and I look forward to the Government’s bringing forward an amendment on that topic, perhaps in the House of Lords. I have taken the Minister’s other comments on board, so I will not press this amendment to a vote at this stage. I beg to ask leave to withdraw the amendment.
Question proposed, That the clause stand part of the Bill.
Question put and negatived.
Clause 59 accordingly disagreed to.
Clause 60 disagreed to.
Clause 61
Special Immigration Appeals Commission
Question proposed, That the clause stand part of the Bill.
The Chair
With this it will be convenient to consider Government new clause 11—Special Immigration Appeals Commission.
Craig Whittaker
Clause 61 is one of six clauses drafted as placeholder clauses, as we have said. New clause 11 is intended to replace clause 61. The new clause makes changes to the Special Immigration Appeals Commission Act 1997 that are required to safeguard sensitive material. Current legislation allows for any immigration appeals and those judicial review challenges against exclusion, deportation or naturalisation and citizenship decisions to be certified so that they are heard by the Special Immigration Appeals Commission if certain criteria are met. Where a case is heard by the Special Immigration Appeals Commission, sensitive information can be relied upon to defend the decision which, if publicly disclosed, would be damaging to the public interest.
Not all immigration decisions can currently be certified, however. For example, a person refused entry clearance as an investor, or who is seeking to work or study in the UK, cannot have their judicial review challenge to that refusal decision certified for SIAC. In contrast, a person appealing a decision to refuse them asylum could have the appeal against the refusal of their claim certified. The effect of not being able to certify a decision is that where there is a judicial review challenge to that decision a range of sensitive information that might otherwise be used to defend that challenge cannot always be disclosed. That has the potential to be damaging to national security.
The new clause will extend the power to certify immigration decisions to cover those cases that carry no right of appeal and where a JR challenging the decision cannot currently be certified. That will ensure that the JR can be heard before the Special Immigration Appeals Commission. The test for certifying immigration decisions is not being changed by the new clause. It will still require the Secretary of State to certify that the decision being taken relies partly or wholly on information that, in her opinion, should not be made public in the interests of national security, in the interests of the relationship between the UK and another country, or otherwise in the public interest.
Bambos Charalambous
New clause 11, which replaces clause 61, significantly expands the jurisdiction of the Special Immigration Appeals Commission. On the face of it, this is a highly draconian measure that has been introduced at a very late stage in the Bill’s passage through Parliament, limiting the scrutiny. The new clause will enable SIAC to consider applications and set aside immigration decisions where the Secretary of State certifies that information on which her decision is partly or wholly based should not be made public on national security grounds, in the interest of the relationship between the UK and another country or otherwise in the public interest.
That means that information relating to the decision will not only not be made public; it will also not be provided to the person to whom the decision applies. If we unpick that, the cases to which the new clause applies include a decision of the Secretary of State concerning an entitlement to enter, reside in or remain in the UK, or a person’s removal from the UK. We are therefore talking about not only immigration decisions but nationality decisions. The extended powers in the new clause affect not just foreign nationals but British citizens, and do not concern merely migrants but residents. It is a huge expansion of power, and when combined with broad interpretations of the public interest, as mentioned, the power will put British citizens and others with the right to remain at risk of being excluded from the UK. They will also be left with no information regarding why that decision has been made, because the Government believe that it is in the public interest to withhold it from them.
The new clause is not limited to cases where a person’s entitlement to enter or stay in the UK is said to be in the interest of national security; it applies also to cases where the denial is authorised by information that the Secretary of State says is in the public interest—information that is kept from the person affected. How are any of those people, including the British citizens, able to defend themselves against expulsion, or even exile, in such circumstances? The power given to the Secretary of State is enormous, and in practice the measures will curb justice by allowing the Secretary of State to process appeals by SIAC, instead of normal processes, denying people their rights to a full case.
The sector has long expressed concerns about the powers and procedures of SIAC, but the Government are seeking to extend the powers even further. It follows that the wider escalation of the Home Office power in the Bill, which will have a devastating consequence for vulnerable people, will also provide the lead for others to promote and encourage similar draconian measures in their immigration and asylum systems. We are opposed to new clause 11, because it will significantly expand the powers of SIAC and put British citizens—and other people who have or seek an entitlement to enter, reside or remain in the UK—at risk of being excluded from the UK or of being treated as having no right to be here.
Craig Whittaker
Let me address a couple of points. Basically, the hon. Gentleman is asking whether SIAC involves a further erosion of civil liberties. The direct answer to that is no—if anything, it is quite the opposite. New clause 11 allows the specialist court the ability to consider all evidence relied on to ensure that cases may be both brought and properly defended. In addition, the special advocate system, the disclosure procedure used in such hearings and other safeguards are designed to provide individuals with substantial measures of procedural justice in their difficult circumstances when, in the public interest, material cannot be disclosed to them directly.
Question put and negatived.
Clause 61 accordingly disagreed to.
Clause 62
Tribunal charging power in respect of wasted resources
Question proposed, That the clause stand part of the Bill.
Bambos Charalambous
I will also speak to clause 63, because the two clauses seem to be interconnected.
We think that these provisions are unnecessary and should be removed from the Bill. The Government’s proposals in both clauses are unnecessary. The Bill requires the tribunal procedure committee to give the tribunal the power to fine individuals exercising a right of audience or a right to conduct litigation, or an employee of such a person, for
“improper, unreasonable or negligent behaviour”.
This broad formulation could have a chilling effect on the willingness of solicitors to take on difficult cases, for fear of risking personal financial liability. That may also extend to Home Office presenting officers who would similarly be liable under the measure.
The immigration tribunals already have all the case management, costs and referral powers that they need to control their own procedure. Giving new powers to immigration tribunals without establishing a basis in evidence for them is not warranted. The clauses will therefore make it harder for lawyers acting for people with immigration cases to do their job in immigration tribunal hearings.
Immigration law practitioners fulfil a key role in enabling access to the courts and therefore access to justice, so that a person who is the subject of an immigration decision may make their case properly and seek vindication. Lawyers, both solicitors and barristers, play an important role in facilitating the smooth functioning of the asylum process, helping their clients to navigate the system and providing an additional layer of filtering against meritless cases.
All lawyers have a responsibility to uphold the rule of law and are strictly regulated by several bodies to ensure that they act to the highest professional standard. As a former lawyer myself, I am aware of the rigorous regulatory regime of the Solicitors Regulation Authority, which includes duties to the court and duties of integrity. Solicitors also act in the best interests of their client, and that is vital in ensuring effective access to justice. Those who provide services to people seeking asylum in England and Wales are also likely to be doing so on a legal aid basis, for which the Legal Aid Agency provides a further means of scrutiny and oversight.
In acting for people subject to immigration control, among other things, immigration lawyers work with clients who may lack funds and legal aid entitlements; whose documents may be incomplete, missing or badly translated; and whose statements as to their past experiences may be hard to secure, on account of the ill treatment they have suffered in their country of origin.
In addition, much is at stake in immigration proceedings. A person subject to immigration control who loses their case may be subject to expulsion from the UK and face a risk of harm in their country of origin. They may be separated from their family, or may lose the life they have built up in the UK over many years, leaving their lawyer in the position of making difficult but arguable points on their behalf. The proposals in clauses 62 and 63 of the Bill will only make that task harder.
Labour shares the concerns of the Immigration Law Practitioners’ Association and the Law Society that immigration lawyers are being needlessly targeted by the new costs orders and charge orders, which are not necessary and do not apply in other areas of law. Immigration tribunal judges already have all they need by way of case management powers, costs powers and referral powers. Making the task of immigration lawyers harder prejudices access to justice, and has not been shown to be necessary by the evidence.
Craig Whittaker
Does the hon. Gentleman not agree that costs orders will only be made where representatives have been badly behaved and unreasonable without justification? In those circumstances, it is right that a representative should be required to pay wasted costs.
Bambos Charalambous
I will come on to that topic, but those powers already exist, and I do not think that further regulation of this type—forcing the tribunals committee to supply this information—is the correct way of going about this.
Neil Coyle (Bermondsey and Old Southwark) (Lab)
We have just heard about the new special court, the new special tribunal and the new special advocate. We have new processes, new bureaucracy and new costs. Does my hon. Friend agree that this clause represents the veneer of the Home Office’s pretence to actually give a damn about value for money any more?
Bambos Charalambous
My hon. Friend makes an excellent point. Throughout this Bill, some crumbs of legal aid have been provided in different circumstances, yet the Bill makes it difficult for lawyers to assist those people for whom legal aid is provided, and now they seem to be penalised for not being able to put forward the best case they can.
It is a well-established fact that access to justice includes equal protection under the law. Solicitors are fundamentally obliged to act in their clients’ best interests, which may involve adjourning a case due to a change in circumstances that they are not at liberty to disclose. That principle admits of no distinction between British nationals and foreign nationals, and those who are subject to UK law are entitled to its protection. In the context of UK immigration tribunal hearings, through which people subject to immigration control—non-citizens who cannot exercise democratic rights to shape the legislation to which they are subject—seek to vindicate their position against the state, that principle ought to warn against bearing down on them and their lawyers through an extra costs order and charging order regime that is inapplicable to British nationals in the wider courts and tribunals system.
Immigration tribunals already have the powers that they need to regulate their own procedures—as I have mentioned, they have case management powers, a costs jurisdiction and referral powers. Taking each in turn, they have extensive case management powers, as set out in rules 4 to 6 of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014. Those tribunals already have a costs jurisdiction that enables them to make wasted costs orders against lawyers through the Tribunals, Courts and Enforcement Act 2007:
“(4) In any proceedings mentioned in subsection (1), the relevant Tribunal may—
(a) disallow, or
(b) (as the case may be) order the legal or other representative concerned to meet,
the whole of any wasted costs or such part of them as may be determined”.
Wasted costs are defined as
“any costs incurred by a party—
(a) as a result of any improper, unreasonable or negligent act or omission on the part of any legal or other representative or any employee of such a representative, or
(b) which, in the light of any such act or omission occurring after they were incurred, the relevant Tribunal considers it is unreasonable to expect that party to pay.”
That costs jurisdiction is given further effect by the rules of procedure set out in rule 9 of the 2014 rules. An order for wasted costs may be made
“where a person has acted unreasonably in bringing, defending or conducting proceedings. The Tribunal may make an order under this rule on an application or on its own initiative.”
In practice, tribunals have the power to regulate their own procedure to avoid its abuse. In the context of applications for judicial review in the High Court, it is recognised that the Court may refer a lawyer to their professional regulatory body, such as the Solicitors Regulation Authority, where their conduct warrants it, thus potentially leading to disciplinary proceedings. A legal representative may be asked to show why the conduct should not be considered for referral to the relevant body, or why they should not be admonished. An immigration tribunal might consider making such a referral in appropriate cases. Alternatively, it may decide that the conduct might not be so serious after all and restrain itself.
In clause 62, the Government seek to give immigration tribunals additional new powers, so that they may charge a participant an amount of money if it is considered that the participant
“has acted improperly, unreasonably or negligently, and
(b) as a result, the Tribunal’s resources have been wasted”.
The fine would be a separate matter from the costs incurred by a party, and it would be payable by the other party. The charge would be paid to the tribunal. In this context, participants who may be ordered to pay a charge in respect of immigration tribunal proceedings include
“(a) any person exercising a right of audience or right to conduct the proceedings on behalf of a party to proceedings,
(b) any employee of such a person, or
(c) where the Secretary of State is a party to proceedings and has not instructed a person mentioned in paragraph (a) to act on their behalf in the proceedings, the Secretary of State.
(4) A person may be found to have acted improperly, unreasonably or negligently…by reason of having failed to act in a particular way.”
However, we are not told what that “particular way” is.
Clause 62 provides that rules may be made and may include the “scales of amounts” to be charged, and it is wrong that no framework has been provided for the scales of amounts to be charged. As a rationale for this innovation, it is said that:
“High levels of poor practice around compliance with tribunal directions, which disrupts or prevents the proper preparation of an appeal, can lead to cases being adjourned at a late stage.”
No actual evidence is adduced to support that proposition or to demonstrate that existing case management powers, wasted costs powers and powers of referral are inadequate to deal with such matters.
Clause 62 seeks to amend the cost provisions in the 2007 Act in order to put greater emphasis on making an order on grounds of unreasonable behaviour. A tribunal may make an order in respect of costs in any proceedings if it considers that a party, or its legal or other representative, has acted unreasonably in bringing, defending or conducting the proceedings. This is a power to make a costs order against a party and/or their lawyer. Unlike in considering wasted costs, the behaviour identified is solely that which is unreasonable, not behaviour that is improper or negligent. In carving out unreasonable behaviour in this way, there is a risk that the high threshold that applies in the wasted costs jurisdiction is lowered, and that such orders are made where the ordinary difficulties of running an immigration case have impeded its progress. It is unclear why additional regulatory measures are thought to be needed, indicating that the proposal is unnecessary. The tribunal procedure rules already have provisions for wasted costs, and tribunals have the power to refer cases of improper behaviour to the regulator.
Clause 63 provides that:
“Tribunal Procedure Rules must prescribe conduct that, in the absence of evidence to the contrary, is to be treated as—
(a) improper, unreasonable or negligent for the purposes of”
a charge in respect of wasted resources. Where the prescribed conduct occurs, the person in question will be treated as having acted improperly, unreasonably or negligently unless they can show evidence to the contrary, so there is a rebuttal presumption in relation to this. Here too there is a risk that conduct that does not meet the test for being unreasonable allows a wasted costs order to sneak back in. It is also not clear how wasted resources will be defined or quantified, which may lead to satellite litigation challenging the fine itself or the amount imposed, further increasing the burdens on a system already under immense pressure. The rules make provisions to the effect that if the tribunal is satisfied that the conduct has taken place, it must consider whether to impose a charge or make a costs order, though it is not compelled to do so.
According to the Home Office, in immigration tribunals,
“A range of conduct on the part of legal and other representatives…in the way proceedings are conducted or pursued”
is
“disrupting or preventing the proper preparation and progress of an appeal”,
but once again, no evidence is adduced to support that proposition, or to demonstrate that existing case management powers, wasted costs powers, and the power to refer are inadequate to deal with such matters.
Introducing further overlapping and potentially duplicative regulatory requirements may have the perverse impact of undermining the effectiveness of all relevant regimes, and increase complexity and bureaucracy. If solicitors are held personally liable for costs that arise for reasons outside their control, it could risk driving a wedge between them and their clients by creating a conflict of interest. The immigration tribunals already have all the case management cost and referral powers that they need to control their procedures. Adding new powers for immigration tribunals without establishing a basis for them in evidence is not necessary and is counterproductive. For the reasons I have outlined, we oppose clauses 62 and 63.
The Chair
This debate will now include consideration of clause 63.
Stuart C. McDonald
I echo what the shadow Minister said. This is all really political theatre—a move to get immigration lawyers. As a former immigration lawyer, I cannot let these clauses pass without comment. In my experience, immigration lawyers are a group of people who do an invaluable job, and not one that there is a queue of folk desperate to do. It is a difficult job. Most clients have no resources; legal aid budgets are far from easy; many clients can be communicated with only through interpreters, who are often hard to find; and these lawyers are dealing with facts, circumstances, documents and other evidence from jurisdictions thousands of miles away. The pressures can be enormous. These lawyers are acutely aware that in some cases, if they get things wrong, the client’s life, liberty or human rights are at serious risk.
This group have been egregiously maligned by the Home Secretary and the Home Office. Here, they are singled out again. It is wrong, reckless and counter- productive. It is wrong because, not for the first time, we are being asked to make law on the basis of anecdote, rather than detailed evidence. As has been said, the immigration tribunals have all the powers that they need in their case management, cost and referral powers. They do not need these new, distinct and very controversial powers. Given the difficult job that we recognise these lawyers do, and the significant pressures that they face, the very last thing we should do is create a threat of their having to pay money for taking on a case. As the shadow Minister said, the measures create the risk of a conflict of interest, because solicitors could find that doing the right thing for their client, or following their client’s instructions, puts them at risk of having to pay a financial penalty.
The measures are also wrong because immigration lawyers have been singled out. I would have thought alarm bells would be ringing in the Home Office at the idea of putting in place a procedure that will apply only to lawyers operating on behalf of non-nationals. I suspect this would see the Home Office in court again. I could go along to the immigration tribunal and do something that I might do without facing consequences in the social security tribunal, employment tribunal, tax tribunal or any other tribunal; but I would find that in the immigration tribunal, there were special provisions in place for me to pay some sort of financial penalty. That seems odd.
Speaking of the tax tribunal, the provisions are essentially a tax. We do not know how much the tax will be, because we are not given any indication at all of the nature of the penalties involved, but it is a tax, because it is not compensation to the other party for wasted costs—we already have provision for that. The money goes straight to the Exchequer. On the other side of the coin, if the Government representative is guilty of this misconduct, the Government pay themselves. They hand over money to the Exchequer. There is not equality of arms, by any stretch of the imagination.
As the shadow Minister said, the measure is also counterproductive, because when the conduct described in the new procedure rules occurs, we will end up with endless hearings, and solicitors will be repeatedly made to come to hearings, just to explain why the situation happened. That is a waste of time, and in absolutely nobody’s interests. I have no idea what the Home Office is playing at here, other than performing political theatre and again having a go at immigration lawyers. If hon. Members want an example of vexatious, unreasonable conduct, they should read these two clauses, because that is exactly what they are.
Craig Whittaker
I have already spoken on clause 62; let me comment on clause 63. I apologise, Ms McDonagh, but I did not realise we were taking them together.
Representatives and relevant participants in the legal process on both sides have a role in ensuring that appeals run smoothly so that justice can be served. However, there has been clear judicial concern about the behaviours of some legal representatives in immigration and asylum cases, and we are seeking to strengthen the tribunal’s ability to tackle such conduct. As has been mentioned, judges can already issue a wasted costs order when a legal representative acts in a negligent, improper or unreasonable way that causes legal costs to be wasted. The tribunal can also award costs if a party to the appeal has acted unreasonably in bringing, defending or conducting proceedings, which is called an unreasonable costs order.
Costs orders are rarely made and are generally considered only at the request of the other party. To encourage more use of those existing powers, clause 63 provides a duty on the tribunal procedure committee to introduce tribunal procedure rules in the immigration and asylum chamber, which will lead judges to more regularly consider making a wasted costs order or an unreasonable costs order, or the new tribunal costs order introduced by clause 62. That will ensure that circumstances and behaviours that have warranted the making of costs orders previously will more often give rise to judicial attention. Existing case law identifies the types of circumstances and behaviours that have led to costs orders being made or considered, and the principles applied by the courts. Those have included showing a complete disregard for procedural rules, for example through abusing court processes in relation to evidence or the timing of applications.
Question put, That the clause stand part of the Bill
Clause 62 ordered to stand part of the Bill.
Clause 63
Tribunal procedure rules to be made in respect of costs orders etc.
Question put, That the clause stand part of the Bill.
Clause 63 ordered to stand part of the Bill.
Clause 64
Good Faith Requirement
Question proposed, That the clause stand part of the Bill.
The Chair
With this it will be convenient to discuss Government amendment 81.
Craig Whittaker
Thorough consideration has been given to the impact of clause 64 and what it adds to existing requirements under immigration rules and wider provisions. We have also taken into account the views of stakeholders. After further reflection, we have decided to remove the clause from the Bill in its entirety. As a stand- alone provision, that will not impact on the wider measures in the Bill. Consequently, clause 64 requires an amendment to remove reference to it, which is the purpose of Government amendment 81.
The Chair
I understand that the Government plan to vote against the clause.
Question put and negatived.
Clause 64 accordingly disagreed to.
Clause 65
Pre-consolidation amendments of immigration legislation
Question proposed, That the clause stand part of the Bill.
Bambos Charalambous
This might seem innocuous but my concern is that it may be a power grab by the Secretary of State because the clause contains some quite strong measures on what the Secretary of State can do in relation to other parts of legislation. Can the Minister reassure me that my fears are not borne out by the consolidation measures in clause 65?
Craig Whittaker
I can assure the hon. Gentleman that clause 65 was taken from the “Windrush Lessons Learned Review”, which is why it is in the Bill.
Stuart C. McDonald
What is taken from that review is perhaps the need for consolidation of immigration legislation, nationality legislation and so on, which I would absolutely support. The challenge with the clause as drafted is that it proposes pretty huge and wide-ranging powers. The Secretary of State can amend pretty much any old Act of Parliament if, in her opinion, it facilitates what is otherwise desirable in connection with the consolidation. It could rewrite citizenship laws, for example, or the entire immigration system. There is a check on it in the sense that the regulations will not come into force until a consolidation Act is passed. There is a broader question about how often Governments tend to help themselves to massive Henry VIII powers when they rewrite all sorts of stuff. I have made that point a million times and nobody listens, so I will leave it at that.
Question put and agreed to.
Clause 65 accordingly ordered to stand part of the Bill.
Clauses 66 to 68 ordered to stand part of the Bill.
Clause 69
Extent
Amendment made: 120, in clause 69, page 58, line 28, at end insert—
‘(4) A power under any provision listed in subsection (5) may be exercised so as to extend, with or without modifications, to any of the Channel Islands or the Isle of Man any amendment made by any of the following provisions to legislation to which the power relates—
(a) section 37 (illegal entry and similar offences), insofar as it relates to the insertion of subsection (C1A) into section 24 of the Immigration Act 1971;
(b) section(Electronic travel authorisations)(electronic travel authorisations);
(c) section(Liability of carriers)(liability of carriers).
(5) Those provisions are—
(a) section 36 of the Immigration Act 1971;
(b) section 170(7) of the Immigration and Asylum Act 1999;
(c) section 163(4) of the Nationality, Immigration and Asylum Act 2002.”—(Craig Whittaker.)
This amendment amends clause 69 (extent) to provide that the amendments made by the provisions listed in new subsection (4) may be extended to the Channel Islands and the Isle of Man under the Order in Council provisions listed in new subsection (5).
Stuart C. McDonald
I beg to move amendment 186, in clause 69, page 58, line 28, at end insert—
‘(4) Part 4 (modern slavery) only extends to Scotland to the extent that a motion has been approved by the Scottish Parliament, bringing it into force in Scotland.
(5) Part 4 (modern slavery) only extends to Northern Ireland to the extent that a motion has been approved by the Northern Ireland Assembly, bringing it into force in Northern Ireland.”
Under this amendment, Part 4 of the Bill would not enter into force in Scotland or Northern Ireland until the relevant devolved legislatures had given their consent.
I am sorry to have to take the Committee back to part 4 and modern slavery and trafficking. The amendment relates to a similar issue that I raised in connection with age assessments, because I tend to believe that certain provisions in part 4 encroach on devolved competences in relation to Scotland and Northern Ireland. Given the way that the part 4 is drafted, the Government have recognised that modern slavery and trafficking is a matter that is devolved to both those jurisdictions. That is why certain clauses do not impact on them. However, in this amendment, we are suggesting simply that the Government should go further. For example, in my view, the recovery period is clearly within the competency of the Scottish Government and I think, also, the Northern Ireland Assembly. However, clause 49 interferes with the start and end points of that period. Clauses 46 and 47 trample all over the idea that identification of victims of slavery and trafficking are devolved matters. So too does clause 51. For those reasons, I am prompting the Minister on what engagement there has been and is ongoing and whether a legislative consent motion should be requested from the Scottish Parliament and the Northern Ireland Assembly before the Bill is passed.
Craig Whittaker
I can assure the hon. Gentleman that we have been engaging with the devolved Administrations, including at ministerial level, over the course of the Bill. I want to reiterate our commitment to continuing to work with the devolved Administrations as we look to operationalise the measures to ensure the policies work for the whole of the UK. Contrary to the spirit of working together across the UK, amendment 186 could lead to the scenario where decisions in reserved areas would operate differently across the UK, thereby reducing the clarity the Bill seeks to provide for victims and decision makers. In line with the devolved memorandum of understanding, the UK Government will continue to engage with the devolved Administrations both at ministerial and official level to ensure that we have time to fully understand any implications and adhere to our priority to safeguard victims. I urge the hon. Member to withdraw his amendment.
On clause 69, I begin by setting out the devolution position. Almost all of the Bill is about nationality, immigration and asylum, which are reserved matters to the UK Parliament. Almost all of the Bill, therefore, extends UK wide.
Neil Coyle
The Minister says “almost all” the provisions. Can he outline which are not?
Craig Whittaker
It is very kind of the hon. Gentleman to interject before I had finished my sentence. Some provisions will apply only to England and Wales. Those provisions are about matters that are devolved in Scotland and Northern Ireland, but are reserved to the UK Parliament in England and Wales. They are civil legal aid, support for victims of modern slavery offences and the early release scheme.
Turning to the extent outside the UK, part 1— nationality provisions—will also extend to the Crown dependencies of Jersey, Guernsey and the Isle of Man, and also the British overseas territories. That follows discussions between the UK Government, the devolved Administrations, the Crown dependencies and the British overseas territories. I want to clarify that we intend to table a further amendment to add a permissive extent clause on Report. That will enable the Crown dependencies to adopt other parts of the Bill that are relevant to them.
Stuart C. McDonald
I am grateful to the Minister for his response and for his assurances that engagement has been taking place and is ongoing. I accept that the amendment is not practicable, because it impinges on reserved matters. The other side of the coin is also true and this was about provoking a discussion about which parts of the Bill the Home Office has identified as relating to devolved matters. The Minister has listed some, which is helpful, but I do not think he has completely listed all that would apply and should be described as devolved. For example, age assessments quite clearly relate in some circumstances to devolved functions regarding children. More relevant to this amendment debate is modern slavery, as I said—for example, the length of the recovery and reflection period and various other matters in relation to identification of victims are, absolutely and definitely, devolved. That is why we have separate modern slavery and trafficking legislation in Northern Ireland and Scotland.
I have done what I needed to do, which is to suggest that the Home Office has a look at whether a legislative consent memorandum is required, but I will leave it there. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 69, as amended, ordered to stand part of the Bill.
Clause 70
Commencement
Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)
I beg to move amendment 107, in clause 70, page 58, line 30, leave out “and (4)” and insert “to (5)”.
This amendment is consequential on Amendment 109.
The Chair
With this it will be convenient to discuss the following:
Amendment 108, in clause 70, page 58, line 42, leave out paragraphs (d) and (e).
This amendment is consequential on an Amendment 109.
Amendment 109, in clause 70, page 59, line 9, at end insert—
“(5) Sections 27 to 35 may not be commenced before—
(a) the Secretary of State has consulted with such parties as the Secretary of State considers appropriate on—
(i) the compatibility of each section with the Refugee Convention; and
(ii) the domestic and international implications of the UK adopting each section;
(b) the Secretary of State has laid before Parliament a report on the outcome of that consultation stating which parties were consulted, and stating in respect of each section—
(i) the views of the parties consulted on its compatibility and implications;
(ii) the differences between the interpretation of the Convention provided by the section and any interpretations provided by the higher courts before the passing of this Act;
(iii) the reasons why the Secretary of State concludes that the section should be commenced; and
(c) both Houses of Parliament have considered that report and approved the commencement of each of the sections that is to be commenced.
(6) For the purposes of subsection (5)—
“interpretation provided by the higher courts” means an interpretation provided by any judgement of the High Court or Court of Appeal in England and Wales, of the Court of Session in Scotland, of the High Court or Court of Appeal in Northern Ireland or of the United Kingdom Supreme Court that has not been superseded.”
This amendment would require the Secretary of State to hold consultations on the compatibility of Clauses 27 to 35 with the Refugee Convention, and to report to Parliament on such consultations, before the relevant Clauses enter into force.
Stuart C. McDonald
God loves a tryer, and I do try. The amendments are another attempt to encourage the Government to set out their legal thinking on the compatibility of the clauses cited in amendment 109 with the refugee convention. How do the Government think that the provisions in clauses 27 to 35 can be consistent with the refugee convention?
There is significant concern among some Members from all parties on this issue. So far, we have been told repeatedly by a Minister that the Government are committed to living up to their international obligations, and we have had a lot of assertions that the Bill is consistent with those obligations. However, as I have said, I am not aware of any lawyer with expertise in the area who supports that conclusion.
On the contrary, we have a detailed published opinion from Matrix Chambers that the Bill is absolutely not compliant with the refugee convention. Alongside that, organisations such as the Immigration Law Practitioners Association and various others have come to the same conclusion. Crucially, the ultimate authority on the convention, the UNHCR, published detailed reasoning for its view that certain clauses do not comply with the convention.
In the circumstances, I might be asking a little too much to expect a detailed legal treatise from the Minister today. However, he must at least accept that this state of affairs is not good enough. On the one side, we have extensive published arguments that the Bill breaches the refugee convention and, on the other side, we just have assurances that everything is in accordance with our international obligations. If MPs are to make a properly informed judgment on this on Report and Third Reading, it is incumbent on the Government to provide their legal arguments in more detail.
Craig Whittaker
We have listened carefully to the arguments in favour of amendments 107 to 109, which I will speak to collectively. I thank hon. Members for moving and tabling them, and I agree that it is important that the United Kingdom continues to meet its obligations under the refugee convention and other international conventions and treaties.
I am taking amendments 107 to 109 together because they all seek to achieve the same goal. We do not support them. They seek to delay the commencement of clauses 27 to 35 until their compatibility with the refugee convention has been consulted on and reported to Parliament. As the Committee knows, the UK has a proud history of providing protection to those who need it, in accordance with our international obligations under the convention. I assure hon. Members that every clause in the Bill, including clauses 27 to 35, adheres to our obligations under the refugee convention.
There is no uniform international interpretation of many of the key concepts in the refugee convention. That is an inevitable result of the very nature of international conventions. They are designed to be applied to a range of systems and scenarios across the globe, and to achieve consensus between many signatory states. Each signatory therefore needs to interpret the convention based on a range of sources and information to determine its meaning in good faith. That is not a black-and-white exercise, but one that the Government considered carefully before bringing the Bill to the House and one that we have now entrusted to Parliament in its consideration and considerable scrutiny of the Bill.
The legislative process, in which we are all so engaged today, is in itself a transparent and fully consultative process, as demonstrated by the several reports that the Committee has received on the compatibility of several clauses of the Bill with the refugee convention and other international obligations—including from the United Nations High Commissioner for Refugees.
Clauses 27 to 35 are drafted to create clarity on what the key concepts of the refugee convention mean, driving improved consistency among Home Office decision makers and the courts, with the ultimate aim of making accurate, well-reasoned decisions quicker. That can only be beneficial for all who are involved with asylum seekers.
In the light of the points that I have made, I hope that hon. Members will agree not to press these amendments going forward.
Stuart C. McDonald
I have not succeeded in what I wanted to do, which was to move beyond assertion that there is compliance with the refugee convention and to hear a little more about why the Government think that that is the case. I accept the point that different countries have slightly different interpretations of certain provisions; that is legitimate. But there are clear arguments that what the Government are doing in relation to the evidential threshold, their definition of “particular social group” and, in particular, their total rewriting of article 31 on immunity from penalties is inexcusable and way beyond any margin of appreciation that Governments enjoy. I tried. I failed. I will accept that. In the meantime, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Craig Whittaker
I beg to move amendment 76, in clause 70, page 58, line 34, after “Part” insert “and the following provisions”.
This amendment is consequential on Amendment 77.
The Chair
With this it will be convenient to discuss the following:
Government amendments 77, 123, 191, 78 and 167.
Clause stand part.
Craig Whittaker
Amendments 76 to 78, which relate to clause 57—interpretation of part 4—will ensure that the regulation-making power in this clause will come into effect at Royal Assent to the Bill rather than two months after Royal Assent. This is to ensure that the regulations that will define “victim of slavery” and “victim of trafficking” have time to progress through Parliament and themselves come into force by the time the remaining clauses relating to modern slavery commence. As currently drafted, clauses 16, 17 and 23 come into force two months after Royal Assent. Amendment 123 ensures that these clauses, which relate to priority removal notices, come into force by commencement regulations aligning with other provisions relating to priority removal notices. This is to ensure that all provisions relating to priority removal notices can commence simultaneously.
Amendment 191 removes the commencement provision regarding clause 42, as the clause is intended to be replaced entirely by new clause 20. Amendment 167 removes the commencement provisions regarding marker clauses 58 to 61—about age assessments, processing of visa applications from nationals of certain countries, electronic travel authorisations and the Special Immigration Appeals Commission—as these clauses have been removed and replaced by substantive clauses.
Clause 70 sets out the commencement of the clauses in the Bill. As currently drafted, the majority of the provisions in the Bill will be brought into force by regulations on a day appointed by the Secretary of State, with the exception of those in part 6, which commence on Royal Assent, as is usual, and those that come into force two months after Royal Assent.
Amendment 76 agreed to.
Amendment made: 77, in clause 70, page 58, line 34, at end insert—
“(a) section 57 (interpretation of Part 4), for the purposes of making regulations under that section;” —(Craig Whittaker.)
This amendment brings the power to make regulations defining “victim of slavery” and “victim of human trafficking” into force on the day on which the Act receives Royal Assent.
Craig Whittaker
I beg to move Government amendment 121, in clause 70, page 58, line 34, at end insert—
“(b) section (Notice of decision to deprive a person of citizenship)(1) and (5) to (7) (effect of failure to give notice of pre-commencement decision to deprive a person of citizenship);”
This amendment brings subsections (1) and (5) to (7) of NC19 (concerning the effect of a failure to give notice of a pre-commencement decision to deprive a person of citizenship) into force on the day on which the Bill receives Royal Assent.
The Chair
With this it will be convenient to discuss the following:
Government amendment 122.
Government new clause 19—Notice of decision to deprive a person of citizenship—
Craig Whittaker
New clause 19 allows the Secretary of State to amend section 40 of the British Nationality Act 1981 to permit that in certain limited circumstances a notice of deprivation does not have to be given to the person concerned, either where there is no way of communicating with them or where to make contact would disclose sensitive intelligence sources. To deprive someone of British citizenship is very serious and is rightly reserved for those whose conduct involves very high harm or who obtained their citizenship by fraudulent means. However, it cannot be right that the proper functioning of the immigration and nationality system grinds to a halt because an individual has removed themselves from contact with the Home Office, there is otherwise no other method of communication, or because our knowledge of a person’s whereabouts comes from sensitive intelligence sources which we do not wish to disclose.
New clause 19 is therefore necessary to avoid the situation where we could never deprive a person of British citizenship just because it is not practicable, or not possible, to communicate with them. Preserving the ability to make decisions in this way is vital to preserve the integrity of the UK immigration system and protect the security of the UK from those who would wish to do us harm. However, we do not wish to deny a person their statutory right of appeal where we have made a decision to deprive, so the amendment also preserves that right. In cases where we have already made a decision to deprive but for one reason or another have not notified the person, the clause also ensures that such decisions, as well as the subsequent deprivation order, are still lawful.
It is important that deprivation orders made before this Bill comes into force remain valid, otherwise individuals who the Home Secretary has already decided should be deprived of their British citizenship because it is conducive to the public good would have their citizenship effectively reinstated and could therefore freely travel in and out of the UK. This could have detrimental consequences for national security. We need amendment 121 so that the relevant provisions of the new clause are enacted at the earliest opportunity.
Stuart C. McDonald
I will not say too much, because I need to give new clause 19 further consideration and to speak with stakeholders about it. Circumstances in which service is difficult because a person is out of contact happen pretty regularly in legal disputes that go through the courts. Rather than just shortcutting by having no procedure at all, what happens is that an alternative method is proposed, such as displaying a notice in newspapers. That was back in the old days; I assume that things have moved online since the dim and distant past when I was a practising solicitor. I wonder if there is a better way that does not result in someone being deprived of citizenship—which, as the Minister said, is a very serious matter—without any procedure having been followed at all.
It is controversial to retrospectively decide that decisions to deprive people of nationality are fine, even though they may not have complied with the laws that were in force at that time. Although provisions of this sort are necessary, I still have concerns that the circumstances in which no service would be required are drawn too broadly and that there may be other ways of doing this that do not undermine the clauses, without depriving people of having notice altogether. I leave it at that just now.
Amendment 121 agreed to.
Amendments made: 122, in clause 70, page 58, line 36, at end insert—
“(za) section (Notice of decision to deprive a person of citizenship)(2) to (4) (modifications of duty to give notice of decision to deprive a person of citizenship);”.
This amendment brings subsections (2) to (4) of NC19 (modifying the duty to give notice of a decision to deprive a person of citizenship) into force two months after the Bill receives Royal Assent.
Amendment 123, in clause 70, page 58, line 37, leave out paragraph (a).
This amendment will secure that clauses 16, 17 and 23 of the Bill (evidence in asylum or human rights claims) will be brought into force by regulations rather than coming into force automatically two months after Royal Assent to the Bill.
Amendment 124, in clause 70, page 59, line 2, at end insert—
“(fa) section (Working in United Kingdom waters: arrival and entry), for the purposes of making regulations;”.
This amendment brings NC20 into force, for the purposes of making regulations (under the new section 11B for the Immigration Act 1971), two months after Royal Assent to the Bill. The rest of the clause will be brought into force by regulations.
Amendment 191, in clause 70, page 59, line 4, leave out paragraph (h).
This amendment is consequential on the amendment removing clause 42 from the Bill.
Amendment 78, in clause 70, page 59, line 5, leave out paragraph (i).—(Craig Whittaker.)
This amendment is consequential on Amendment 77.
Craig Whittaker
I beg to move amendment 79, in clause 70, page 59, line 6, at end insert—
“(ia) section (Counter-terrorism questioning of detained entrants away from place of arrival) (counter-terrorism questioning of detained entrants away from place of arrival);”.
This amendment provides for NC12 to come into force two months after Royal Assent to the Bill.
The Chair
With this it will be convenient to discuss Government new clause 12.
Craig Whittaker
Under schedule 7 to the Terrorism Act 2000, counter-terrorism police have the power to stop, question and if necessary, detain and search individuals travelling through UK port and border areas for the purposes of determining whether a person is or has been involved in terrorism. Currently, officers may exercise schedule 7 powers only when an individual is located within a port or border area and their presence in such an area is as a result of them entering or leaving the UK.
The rise in numbers of those attempting to cross the channel illegally, particularly via small boats, means it is impractical to keep large numbers of people, some of whom are minors or in need of medical assistance, at a port or piece of coastline without adequate facilities. Transporting these individuals to locations once they have been detained or arrested under the immigration Acts often means that examining them under schedule 7 is not possible as they are no longer within a port.
New clause 12 seeks to extend the scope of schedule 7 so that individuals who are in detention under immigration provisions are eligible for examination at the location they are taken to following their initial apprehension under immigration powers. Individuals at these locations will be eligible for examination, provided the officer believes they arrived by sea, were apprehended under the immigration Acts within 24 hours of their arrival and it has been no more than five days since they were apprehended. The full suite of powers and safeguards under schedule 7 will apply, including access to legal advice for those detained over an hour. In line with amendment 79, the new clause will come into force two months after the Bill receives Royal Assent.
The new clause will add a further layer to protect our national security by ensuring those who arrive in the UK illegally by sea can be examined for the purpose of determining their involvement in terrorist activity under the same power as if they had passed through conventional border controls.
Amendment 79 agreed to.
Amendments made: 167, in clause 70, page 59, line 7, leave out paragraph (j)
This amendment is consequential on the amendments removing Clauses 58 to 61 of the Bill.
Amendment 168, in clause 70, page 59, line 7, at end insert—
“(ja) section (Interpretation of Part etc) (1) to (4) (interpretation of Part 3A);
(jb) section (Use of scientific methods in age assessments)(1) to (3) and (8) (regulations about use of scientific methods in age assessments);
(jc) section (Regulations about age assessments) (regulations about age assessments);”
This amendment means that amendment NC33 (regulations about age assessments), and the regulation-making power in amendment NC32, will be commenced automatically, two months after Royal Assent, as will the clause that defines certain terms used in the regulation-making power.
Amendment 80, in clause 70, page 59, line 7, at end insert—
“(ja) sections (Removals from the UK: visa penalties for uncooperative countries) and (Visa penalties: review and revocation) (visa penalties);”
This amendment provides for NC9 and NC10 to come into force two months after Royal Assent to the Bill.
Amendment 81, in clause 70, page 59, line 8, leave out paragraph (k) .—(Craig Whittaker.)
This amendment is consequential on Amendment 75.
Stuart C. McDonald
I beg to move amendment 179, in clause 70, page 59, line 9, at end insert—
‘(5) Sections [Time limit on immigration detention], [Initial detention: criteria and duration] and [Bail hearings] come into force six months after the day on which this Act is passed.“
This amendment would bring NC38, NC39 and NC40 into force six months after the day on which the Bill is passed.
The Chair
With this it will be convenient to discuss the following:
New clause 38—Time limit on immigration detention—
“(1) This section applies to any person (“P”) who is liable to detention under a relevant detention power.
(2) P may not be detained under a relevant detention power for a period of more than 28 days from the relevant time.
(3) If P remains detained under a relevant detention power at the expiry of the period of 28 days then—
(a) P shall be released forthwith; and
(b) P may not be detained under a relevant detention power thereafter, unless the Secretary of State or an immigration officer, as the case may be, is satisfied that there has been a material change of circumstances since P’s release and that the criteria in section [Initial detention: criteria and duration](1) are met.
(4) In this section, “relevant detention power” means a power to detain under—
(a) paragraph 16(2) of Schedule 2 to the Immigration Act 1971 (detention of persons liable to examination or removal);
(b) paragraph 2(1), (2) or (3) of Schedule 3 to that Act (detention pending deportation);
(c) section 62 of the Nationality, Immigration and Asylum Act 2002 (detention of persons liable to examination or removal); or
(d) section 36(1) of the UK Borders Act 2007 (detention pending deportation).
(5) In this section, “relevant time” means the time at which P is first detained under a relevant detention power.
(6) This section does not apply to a person in respect of whom the Secretary of State has certified that the decision to detain is or was taken in the interests of national security.”
This new clause would prevent people who are liable to detention under a relevant power from being detained for longer than 28 days.
New clause 39—Initial detention: criteria and duration—
“(1) A person (“P”) to whom section [Time limit on immigration detention] applies may not be detained under a relevant detention power other than for the purposes of examination, unless the Secretary of State or an immigration officer, as the case may be, is satisfied that—
(a) P can be shortly removed from the United Kingdom;
(b) detention is strictly necessary to effect P’s deportation or removal from the United Kingdom; and
(c) the detention of P is in all the circumstances proportionate.
(2) P may not be detained under a relevant detention power for a period of more than 96 hours from the relevant time, unless—
(a) P has been refused bail at an initial bail hearing in accordance with subsection (5)(b) of section [Bail hearings]; or
(b) the Secretary of State has arranged a reference to the Tribunal for consideration of whether to grant immigration bail to P in accordance with subsection (2)(c) of section [Bail hearings] and that hearing has not yet taken place.
(3) Nothing in subsections (1) or (2) authorises the Secretary of State to detain P under a relevant detention power if such detention would, apart from this section, be unlawful.
(4) In this section, “Tribunal” means the First-Tier Tribunal.
(5) In this section, “relevant detention power” and “relevant time” have the meanings given in section [Time limit on immigration detention].”
This new clause sets out the circumstances in which a person to whom NC38 applies may be held in initial detention, and the maximum duration of such detention.
New clause 40—Bail hearings—
“(1) This section applies to any person (“P”) to whom section [Time limit on immigration detention] applies and who is detained under a relevant detention power.
(2) Before the expiry of a period of 96 hours from the relevant time, the Secretary of State must—
(a) release P;
(b) grant immigration bail to P under paragraph 1 of Schedule 10 to the Immigration Act 2016; or
(c) arrange a reference to the Tribunal for consideration of whether to grant immigration bail to P.
(3) Subject to subsection (4), when the Secretary of State arranges a reference to the Tribunal under subsection (2)(c), the Tribunal must hold an oral hearing (“an initial bail hearing”) which must commence within 24 hours of the time at which the reference is made.
(4) If the period of 24 hours in subsection (3) ends on a Saturday, Sunday or Bank holiday, the Tribunal must hold an initial bail hearing on the next working day.
(5) At the initial bail hearing, the Tribunal must—
(a) grant immigration bail to P under paragraph 1 of Schedule 10 to the Immigration Act 2016; or
(b) refuse to grant immigration bail to P.
(6) Subject to subsection (7), the Tribunal must grant immigration bail to P at a bail hearing unless it is satisfied that the Secretary of State has established that the criteria in subsection 1 of section [Initial detention: criteria and duration] are met and that, in addition—
(a) directions have been given for P’s removal from the United Kingdom and such removal is to take place within 14 days;
(b) a travel document is available for the purposes of P’s removal or deportation; and
(c) there are no outstanding legal barriers to removal.
(7) Subsection (6) does not apply if the Tribunal is satisfied that the Secretary of State has established that the criteria in subsection 1 of section [Initial detention: criteria and duration] above are met and that there are very exceptional circumstances which justify maintaining detention.
(8) In subsection (6), “a bail hearing” includes—
(a) an initial bail hearing under subsection (2); and
(b) the hearing of an application for immigration bail under paragraph 1(3) of Schedule 10 of the Immigration Act 2016.
(9) In this section, “Tribunal” means the First-Tier Tribunal.
(10) The Secretary of State shall provide to P or to P’s legal representative, not more than 24 hours after the relevant time, copies of all documents in the Secretary of State’s possession which are relevant to the decision to detain.
(11) At the initial bail hearing, the Tribunal shall not consider any documents relied upon by the Secretary of State which were not provided to P or to P’s legal representative in accordance with subsection (10), unless—
(a) P consents to the documents being considered; or
(b) in the opinion of the Tribunal there is a good reason why the documents were not provided to P or to P’s legal representative in accordance with subsection (10).
(12) The Immigration Act 2016 is amended as follows—
(a) After paragraph 12(4) of schedule 10 insert—
“(4A) Sub-paragraph (2) above does not apply if the refusal of bail by the First tier Tribunal took place at an initial bail hearing within the meaning of section [Bail hearings] of the Sovereign Borders Act 2021.”.”
In respect of people to whom NC38 applies, this new clause would require the Secretary of State to either release them, grant immigration bail or arrange a reference to the Tribunal within 96 hours.
Stuart C. McDonald
This group of amendments and new clauses is not new. It was proposed in similar words in the most recent immigration Bill by, I think, the right hon. Member for Haltemprice and Howden (Mr Davis), but I may be wrong. No Bill passes through this Parliament on immigration and nationality law that does not include amendments and debate about immigration detention. Perhaps, after the last couple of years, Members are more than ever acutely aware that the deprivation of people’s freedoms is keenly felt and should not occur without evidence as to its necessity.
We are talking here about the deprivation of liberty not because people have committed a crime but, essentially, for the convenience of the Home Office. The new clauses contain measures to end what is indefinite detention in the UK, whatever the Home Office says to the contrary, and to implement a workable system that ensures detention is used only as a last resort to effect lawful removals from the UK. That is what the situation should be. The existing power to detain without prior judicial authority would be retained but there would be important safeguards: a 28-day time limit, judicial oversight by way of bail hearings after 96 hours with clear criteria for continued detention and re-detention only when there is a material change in status or circumstances.
Immigration detention has declined over the last several years, which is very welcome. Nevertheless, there is no release date for immigration detainees, which is incredibly severe, particularly in terms of mental ill health. Although numbers have been falling, the length of time that people are detained has not fallen. The fact of falling numbers does not reduce the need for a time limit. We are talking about several thousand individuals leaving detention every year who have been detained for longer than 28 days and hundreds who have been detained for more than six months. In a minority of cases, detention lasts for years rather than months.
Why 28 days? It is not a number that has been pulled from thin air. It is already in Home Office guidance, which requires caseworkers to consider whether removal is imminent and goes on to define imminence in the following terms:
“Removal could be said to be imminent where a travel document exists, removal directions are set there are no outstanding legal barriers and removal is likely to take place in the next four weeks.”
This is a recommendation that has been made by many organisations with expertise in the area, including the Joint Committee on Human Rights, the Home Affairs Committee, the Bar Council and the all-party parliamentary groups on refugees and on migration.
Paul Blomfield
As vice-chair of the inquiry to which the hon. Gentleman referred, may I ask whether he will add the House of Commons to the list of those bodies that have endorsed this? When our recommendation was considered on a votable motion in a Backbench Business debate, it was approved by the House.
Stuart C. McDonald
I am grateful to the hon. Gentleman and the other hon. Members involved for their work on that report, which was incredibly thorough. We then had a Backbench Business debate and the Government did not oppose it, because there was clearly a majority in the House of Commons at that time for such a time limit.
Finally, I want to say why 28 days should be the limit. There is a body of evidence that the effect of indefinite detention on mental health in general is very negative, but that after a month the deterioration is particularly significant. We recognise that there will be a minority of cases where people will try to play the system and use the time limit to frustrate lawful removal, but the amendment allows for re-detention if there is a material change in status or circumstances. Other sanctions are also open to the Government in such circumstances.
If none of that appeals to the Government, I will briefly mention the argument that consistently over half those detained are then released into the community, so it is a completely inefficient system that costs an absolute fortune. There are alternatives that are not only better for the individuals concerned, but easier on the taxpayer. I hope the Government will give serious thought to the amendments. The issue has been championed by Members of all parties for a considerable period. It is now time to see a step change in the Government’s approach to the use of immigration detention.
Craig Whittaker
I want to be clear from the outset that this Government’s position is that a time limit on detention simply will not work and will not be effective in ensuring that those with no right to be here in the UK leave.
Paul Blomfield
One of the issues highlighted by the report referred to by the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East, which had genuine cross-party engagement, was that the UK is an outlier in having no limits on detention. Every other country in Europe has a limit. Why does the Minister think it will not work here?
Craig Whittaker
Our immigration system must encourage compliance with immigration rules and protect the public. Those who have no right to be in the UK should leave voluntarily, but where the opportunities to do so are not taken, we have to operate a system to enable us to enforce removal and deport foreign national offenders who would otherwise remain in the UK.
I also want to be clear that we do not and cannot detain people indefinitely. It is not lawfully possible to do so.
Stuart C. McDonald
The Home Office repeatedly asserts that it is not indefinite detention, but can the Minister tell me what is the definite time limit on a person’s detention?
Craig Whittaker
I think what the hon. Member has asked me to do is put a time limit on this, and I have already said clearly that just does not work. We have a duty to those in the immigration system, but we have a duty to protect the public too. The introduction of a 28-day detention time limit would severely limit our ability to remove those who refuse to leave voluntarily, and would encourage and reward abuse, to answer the question raised by the hon. Member for Sheffield Central, in some cases from individuals who present a genuine threat to the public, which is not the effect I consider the hon. Members intend with new clause 38.
Anne McLaughlin
Does the Minister not think that if someone represents a threat to the public, they would be in jail? If they are not in jail, there is no evidence that they represent a threat to the public.
Craig Whittaker
The hon. Lady is absolutely right, but we are talking about those who are a threat to the public. We have to have a duty of care. In fact, the first role of the Government is to protect their own citizens.
New clause 38 would allow those who wish to frustrate the removal process to run down the clock, in answer to the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East, until the time limit is reached and release is guaranteed. It would encourage late and opportunistic claims to be made simply to push them over the 28-day limit.
New clauses 38 to 40 are at total odds with the main objectives of the Bill, which will streamline the asylum process, ensuring that outstanding claims and appeals are dealt with much more effectively, with access to legal advice, while enabling us to remove more easily those with no lawful right to remain in the UK. In summary, it is the firm view of this Government that the introduction of a time limit would significantly impair the UK’s ability to proportionately and efficiently remove individuals who have no right to be here and who, in some cases, represent a significant danger to the public. I therefore respectfully ask the hon. Member to withdraw the amendment.
Stuart C. McDonald
I do not know where to start with that response, although it is very similar to those we have had in previous debates. The bogey card is always that foreign national offenders are a serious risk, yet the Government have the power to deport folk straight from prison. That is the power they should use in those situations.
What we are talking about, very often, is people who have committed no crime, or represent absolutely no risk to the public. They are detained for extraordinary periods of time, and face extraordinary hardship. Anyone reading the report by Stephen Shaw, commissioned by the former Home Secretary and former Prime Minister, the right hon. Member for Maidenhead (Mrs May), will see what it does to people. There is also the APPG report, which has already been referred to.
The idea that these amendments somehow undermine the Government’s ability to enforce immigration rules is completely at odds with the evidence from around Europe. Other countries have at least as much success—and often far greater success—in enforcing immigration rules and getting people to leave the country if they have no leave, without having to resort to endless and routine immigration detention. For all those reasons, I very much regret what we have heard from the Minister. However, I will not put the amendment to a vote today; we shall keep that for another time. I therefore beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 70, as amended, ordered to stand part of the Bill.
Clause 71 ordered to stand part of the Bill.
Ordered, That further consideration be now adjourned. —(Paul Holmes.)
Adjourned till Thursday 4 November at half-past Eleven o’clock.
Written evidence reported to the House
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Judicial Review and Courts Bill (Second sitting)
Tuesday 2nd November 2021
(3 years ago)
Public Bill CommitteesRead Full debate Judicial Review and Courts Act 2022 View all Judicial Review and Courts Act 2022 Debates Read Hansard Text Amendment Paper: Public Bill Committee Amendments as at 2 November 2021 - (2 Nov 2021)
The Chair
Q
Richard Leiper: My name is Richard Leiper QC. I am a specialist in employment law and related civil matters. I am also chair of the advisory council of the litigant in person support strategy. In that capacity, I was part of a shadow online rules committee that was chaired by Mr Justice Langstaff.
André Rebello: I am André Rebello. I am the senior coroner in Liverpool and the Wirral and the honorary secretary of the Coroners’ Society of England and Wales, the judicial association for coroners. I have been a coroner for over 28 years, and I welcome, with some caveats, all the provisions relating to coroners in the Bill.
Andy Slaughter (Hammersmith) (Lab)
Q
André Rebello: A coroner’s jurisdiction is inquisitorial. It is an inquiry; it is not litigation. In the vast majority of inquests in which the state is represented—apart from some very high-profile inquests—those representing the state are actually representing, in effect, a body corporate, to provide a voice to an organisation. They often facilitate the proceedings, assist the court and, more often than not, assist bereaved families to understand the issues before the court.
Andy Slaughter
Q
André Rebello: As you will recall from the Justice Committee hearings with the chief coroner, the deputy chief coroner and myself, more than 95% of inquests are heard by coroners sitting alone. The coroner has an enabling role, and it is the coroner who carries out an inquiry. Only the coroner can call evidence, and you will also recall that the coroner’s court is the only court where no one actually brings a case to prove. We are led by the evidence, and the coroner’s role is to level the playing field.
Andy Slaughter
Q
André Rebello: Where there is representation, you should recall that from section 41, where the properly interested persons are identified, they have rights with regard to disclosure of advance information, but thereafter their duty is to assist the court in finding the true facts as to who the deceased was, when and where they died, and by what means and in what circumstances they came by death in certain cases. That is all done without determining criminal liability by a named person or any question of civil liability. This is an inquest, not litigation.
Andy Slaughter
Q
André Rebello: Lots of things caught my eye, however, I am a judge and not the Executive. It must be for the Executive to make policy. However, I will reiterate the issue of the national shortage of pathologists desperately needs addressing. The fees have not been increased for over 20 years and that is something which must affect the number of pathologists available to facilitate coronial investigation.
Andy Slaughter
Q
André Rebello: I have seen the Government’s response to that. However, being at the coalface and knowing the lack of pathologists across the country, something needs to be done.
The Chair
Richard, do you wish to respond to this question?
Richard Leiper: No thank you.
Antony Higginbotham (Burnley) (Con)
Q
Richard Leiper: One of the things that people need to appreciate about the conception here is how broadly it could be applied. It is intended or, at least, it empowers there to be rules which cross employment tribunals, first-tier tribunals, all civil proceedings and all family proceedings, and it would need to be dealt with on a very narrow incremental basis.
I see two particular issues. First, there is not an existing infrastructure for an online process. Essentially, this rule committee would be laying rules which could be seen to tread on the toes of the existing rule committees for civil procedure, for family law, for employment tribunals and it would set down rules which somehow put in place the process which, for example, would tread on the toes of an employment tribunal—so, how a claim was initiated.
The online rule committee would be setting a rule which provided a wholly new way of a process being initiated. That would need the buy-in and support of the tribunal process, because there is not, as yet, the underlying infrastructure. That is in contrast, for example, to the civil procedure rule committee, where the entire infrastructure of the civil court process is there, and the judges know where they fit in and what they are supposed to be doing. Here, this has judges being told that there is a new process which has an online procedure, and they will not have a clue how that is supposed to operate.
If you start broadening it, it becomes cross-jurisdictional. For example, someone who wants to bring a claim against their employer that involves a breach of contract claim and an unfair dismissal claim, but one of which would normally go to a civil court and one to an employment tribunal. How can that be pulled together? Who would be the judge that dealt with it, and how would the procedure move forward? These are enormously difficult questions, which brings me to a second point.
The current composition of the committee is a total of 6 people. That is in contrast to the civil procedure rule committee, which has 18 members. The family procedure rule committee has 18 members. To me, given the potential breadth of the rule that could be set by this committee, having one senior judge, a couple of other judges, one practitioner, one layperson and one computer person is simply not enough. That is partly because the scope for the procedures would be trespassing on areas which it is likely that no member of the committee would have any knowledge of.
For example, I have no knowledge at all about family court proceedings—how they begin, how they proceed, or what the interests of the various parties would be. Yet, if there is just one practitioner, who could be a barrister, a solicitor or a legal executive—each of whom have different perspectives on how the system operates, how it impacts on clients, other parties and so forth—there will not be the wealth of knowledge, even with consultation with people who do know, to enable effective online rules. The composition of the committee is my single greatest concern.
Antony Higginbotham
Q
Richard Leiper: I could not agree with that more. I think it is exactly the right concept to have. It will help litigants. There is provision so that those who do not have the means of doing things online would have the alternative of doing so through more traditional mechanisms, but I completely agree with the process because it should simplify the system to enable people to access justice more freely.
I could not agree more with the underlying concept. It is more a matter of ensuring that the infrastructure is in place to carry that through, so that it can become effective. That has two parts. First, it means having a properly composed committee with the expertise that can be brought to it and, secondly, having the infrastructure behind it so that it is not just a rule committee setting what needs to happen on high, but it gets the buy-in of everyone who will implement it and of how it will operate.
Alex Cunningham (Stockton North) (Lab)
Q
Richard Leiper: I am not one for large committees, which can be counterproductive, but we are talking about an enormous amount of work that will need to be undertaken across a wide range of practice areas. I suggest that the composition was akin to that of the civil procedure rule committee and of family law, so having more judges and more practitioners. The committee has only one person who can bring the knowledge of the lay-advice sector, whereas I think both the civil procedure rule committee and the family procedure rule committee each have two lay members. It needs a wider composition akin to those of the existing rule committees—which seem to operate perfectly successfully—where people are able to bring together the knowledge and direction of what they want to achieve through the online rule committee, but also bring particular practice or individual knowledge to the development of those rules.
Alex Cunningham
Q
Richard Leiper: I guess that the biggest risk is of technological failure of some kind, because this is wholly dependent on having the underlying technology operating successfully. If there is a failure, then it could lead to disaster. It is about ensuring that there is the funding and knowledge behind it to be able to support a process that would need to be implemented in a small area at first—I would think—ensuring that it was successful, and then gradually broadening it so that one could have confidence in its effectiveness. It is about having the comfort that there is going to be the technological and financial support behind it to ensure that it works.
Alex Cunningham
Q
Richard Leiper: I suppose there are two answers to that. One is yes. The other, which is my personal view, is that it seems to reflect the processes that are already in place into the existing procedure rule committee. This appears to have been the accepted approach since about 2005, and it seems to be replicating that. It does seem to give a substantial power to the Lord Chancellor in this regard, which I personally find surprising. However, it seems to be the way that things have operated for some time.
Dr Caroline Johnson (Sleaford and North Hykeham) (Con)
Q
André Rebello: Perhaps I misspoke. When a coroner sits alone, the coroner still hears evidence, and witnesses still come to court. It is just that there is no representation for any of the interested persons; the coroner hears evidence and makes finding and determinations. There is a real issue, though, with remote hearings in that, although many people have found advantages with them, the coronavirus easements did not apply to coroners’ courts. Coroners’ courts have only been able to work through remote hearings by using rule 17 to receive video evidence.
The provisions in this Bill are to bring coroners’ courts in line with other courts. However, there is a real issue in regard to the Equality Act 2010; not everyone can participate in the rule of law and in open justice through remote hearings. Any judge presiding has to be very careful to make sure that everyone can participate. I suspect there are more disadvantages in remote hearings than in having everyone in court, where you can fully appreciate how people are following the proceedings. In the 95% of cases where there is no representation, the coroner still hears evidence. It is not as if the coroner is just reading statements; evidence is still heard.
Dr Johnson
Q
André Rebello: With regard to remote hearings or with regard to—
Dr Johnson
Q
André Rebello: No. Basically, with remote hearings, there are all kinds of AV infrastructure challenges with regard to recording what has been said, and people with hearing difficulties being able to follow Zoom or Microsoft Teams. Technically it is quite difficult. It is also difficult for a coroner to evaluate evidence, because they do not have the people in front of them to judge.
Further, there is a danger with remote hearings that we will lose courts. If people can have all hearings remotely, there is a danger that we may not have a court infrastructure in future, for when justice needs to be seen to be done. The correct procedure in my view is that most things should be dealt with in court, and remote hearings should be used where necessary, but that should not become the norm.
Dr Johnson
Q
André Rebello: Under the Coroners and Justice Act 2009, the coroner can receive evidence by video, under rule 17 of the inquest rules. I have certainly received evidence from Australia and, I think, South Africa, with doctor witnesses who had moved overseas and then given evidence. I see no reason why coroners should not receive evidence from overseas. However, if people can attend, it is important, because it is a lot easier to give an explanation about the means someone comes by the cause of death, if everyone is in the courtroom, and everyone can follow the proceedings.
If Parliament brings in remote hearings for coroners and brings them in line with the Courts and Tribunals Service courts, the Chief Coroner will have to issue some very firm guidance on how and when it is used, because I do not believe it should become the norm.
Angela Crawley (Lanark and Hamilton East) (SNP)
Q
André Rebello: Absolutely; if someone needs to attend court and they cannot attend other than remotely, that is fine. At the moment, the legislation relating to coroners allows witness evidence to be given remotely only under rule 17 of the coroner’s inquest rules. The easements that would be provided by the Judicial Review and Courts Bill would enable coroners’ courts to be far more flexible, with people appearing remotely, and also broadcasting. At the moment, under section 41 of the Criminal Justice Act 1925, it is unlawful for a coroner’s court—or any court—to broadcast. The purpose of remote hearings is for participation.
Marco Longhi (Dudley North) (Con)
Q
André Rebello: I have no problem with that proposal, that being another tool in the bag, as and where it is necessary, that is needed. My own preference is to go into court and record the hearing that I would have had, so that people can apply for a copy of what has been received and they can actually hear what has occurred. Certainly, it takes a lot longer to write down a considered decision than to go into court, go through the evidence orally and speak to it. Something that could take me five to 10 minutes in court, could take me an hour and a half to write down the issues, the law being applied, the rulings, the findings, determinations and conclusion, and then all the reasons which you would need for a considered judgment. That would be far, far more time consuming and may well take up far more coroners’ time. I appreciate not all coroners have access to courts all the time, and they cannot just go into court, so this is a very useful proposal, which I am sure will be used as and when needed.
Tom Hunt (Ipswich) (Con)
Q
André Rebello: Absolutely. We should bear in mind that coroners are judges like any other judge, and every judge is an independent judicial office holder. No other judge, other than a properly constituted appellate court, can tell another judge how to decide something or do something. However, it is important to have guidance to ensure consistency not only between coroners, but internally for each coroner. What you have to bear in mind is that every coroner determines the facts of the case on the very facts that are before the coroner. No two cases are actually the same. If the Chief Coroner is minded to issue guidance, that can only help to make these things work.
When you look at the provisions, the ability to merge coroner areas is something that has been long needed, because at the moment you can only merge unitary authorities, not parts of those authorities and that has delayed the coroner reform project. It is sensible that the disapplication of reportable deaths under covid continues because we are not out of the pandemic. On remote hearings, we should be brought in line with the Courts and Tribunals Service, with some guidance to ensure consistency, so that that facility is used where necessary, but not overused, because the rule of law and open justice is very important and people should be able to attend to see justice being done.
As we have just discussed, written inquests, without going into court, will have their need when coroners are struggling to get a court. The ability to discontinue cases when we have not ordered a post-mortem is long over needed. Occasionally, we will have a GP abroad who knows the cause of death and there is no one else qualified to give a cause of death. The only way the coroner could open up the facility to discontinue that case would be to order an unnecessary post-mortem. The proposal will enable coroners to open an investigation and when the GP returns, to discontinue and have the death registered.
That does raise another issue that the Bill does not cover, and I am sure that Members will be aware that the sunset clause in the Coronavirus Act 2020 expires in March next year. The law used to be that a doctor had to treat a patient in his or her last illness and, relying on regulation 41 of the births and deaths regulations, had to have seen the patient within 14 days of death, or seen the body after death. The Coronavirus Act gave an easement, enabling 28 days to be used, whereby any doctor had seen the patient and any other doctor could see the body after the death. It looks as if that part of the Coronavirus Act will expire before Parliament has a chance to bring into force the medical examiner and death registration provisions. There will be a big lacuna in the work coroners are carrying out. If doctors are not seeing patients face to face and cannot issue death certificates, far more cases will be unnecessarily reported to the coroner. If there is any way to continue that coronavirus easement on death certification, it would be greatly appreciated, particularly by the bereaved.
Janet Daby (Lewisham East) (Lab)
Q
“Online pleas compromise open justice principles by removing the opportunity for the plea hearing to be witnessed/observed.”
It sounds like you may agree, Mr Rebello. To what extent do you think online pleas are compatible with the principles of open justice?
André Rebello: I am not sure that is a matter for a coroner, because I deal with inquisitorial proceedings in which there are no pleas.
Richard Leiper: This might relate to the Crown court part of the Bill, which I do not think either of us deals with. Online pleas would be an aspect of the criminal process.
The Chair
Three questioners wish to be called a second time. I will call them in the order in which they indicated.
Alex Cunningham
Q
Richard Leiper: I should not. I sit as a recorder in the Crown court, but I would not hold myself up as having the necessary expertise.
Alex Cunningham
Q
Richard Leiper: Again, that is an issue for the Crown court section of your discussion, rather than the civil side of things.
Dr Johnson
Q
André Rebello: Actually, there are many. With the easements in the Coronavirus Act, we are just about keeping our heads above water in the coroner service. Under the Coronavirus Act, any doctor could have treated the patient—it does not have to be the doctor who certifies the death, provided that the other doctor sees the body after death—and we have been able to get medical examiners and other doctors to issue death certificates. These are all deaths from natural causes, which should not ordinarily be reported to the coroner. Hopefully, the statutory medical examiner service will alleviate quite a lot of the deaths that come the coroner’s way, which cause a lot of concern for bereaved families. Unfortunately, a lot of deaths are reported to the coroner unnecessarily. At the moment—gosh—probably 20% or 30% of deaths being reported now do not need to be reported. Doctors could issue, but for whatever reason, the deaths are being reported—I suspect that doctors are busy trying to get back to normal and see patients.
I have concerns about the coronavirus easements lapsing before we bring in the new death certification and medical examiner provisions. I raise this on the record to flag that I can see a storm brewing in, probably, April of next year.
Andy Slaughter
Mr Leiper, am I okay to ask you about employment tribunals?
Richard Leiper: You can.
Andy Slaughter
Q
Richard Leiper: I do not see any particular issues with them, but they do seem primarily administrative in that they are reflecting changes. There are issues about the composition of the tribunal, which I suspect some people may have concerns about. There has been quite a substantial shift in tribunals being presided over by a judge alone rather than being supported by members, for example, but in my experience, that has not been unsuccessful. The provisions seek to further that, as I understand them.
Andy Slaughter
Q
Richard Leiper: Yes. On where it fits, I do not know why, historically, it has not fallen within the Ministry of Justice; it has always been slightly out on a limb in that it has not.
Andy Slaughter
Q
Richard Leiper: As I understand it, they are desperately trying to recruit more judges, which is an underlying problem. Another problem that I do not think the Bill would address is the financial support and infrastructure for employment tribunals. Individual employment tribunal centres are essentially fractured in the IT that they have, as I understand it, and that has caused significant problems, particularly at the beginning of the pandemic, when remote hearings were almost impossible because the tribunal just lacked the software and infrastructure to be able to do them. There has been a chronic underfunding of the tribunals system for a very long time, and if the backlog is going to be dealt with, the system desperately needs that support.
Andy Slaughter
Q
Richard Leiper: Yes—well, not problems, but it has meant that more people have been able to bring their claims. I do not see that as a problem, but it has created more cases that need to be dealt with, yes.
The Chair
I thank both our witnesses for being present today and giving evidence, which I am sure the Committee has found very useful indeed. We will now move on to the next panel of witnesses.
Examination of Witnesses
Sara Lomri, Ellie Cumbo and Louise Whitfield gave evidence.
The Chair
We are now going to hear evidence from Sara Lomri, deputy legal director at the Public Law Project; from Ellie Cumbo, who is head of public law at the Law Society; and from Louise Whitfield, who is head of casework at Liberty. We have until 3.30 pm for this panel, and we will try to make sure that the questions are fairly sharp. If the answers can be equally sharp, we will get more questions in and I am sure it will be much more fruitful. I can see two of the three witnesses on screen, and the third witness is present in person. First of all, can each of you briefly introduce yourself, and then we will open it up to questions?
Sara Lomri: Hello, I am Sara Lomri. I am the deputy legal director at the Public Law Project.
Ellie Cumbo: Good afternoon, my name is Ellie Cumbo, and I am the Law Society’s head of public law.
Louise Whitfield: I am head of legal casework at Liberty. I will be talking on behalf of Liberty, but I have been a judicial review specialist for 20 years, so I may refer to my experience in practice previously.
Andy Slaughter
Q
Sara Lomri: I am happy to go first, and thanks for the question. Ultimately, the short answer is no, they are not justified. IRAL, which you were talking about this morning—Lord Faulks’s review—asked for lots of evidence. They were asked to review administrative law in a really short timeframe, and they were not able to go into the kind of level of research detail that we would have liked them to, but they nevertheless did a valiant job. They gathered evidence from right across the public law world. Although some of their recommendations are slightly mirrored in the Bill, the Bill in fact goes so much further, and we really cannot see the evidence base for the proposals put forward in the Bill. The Government say that the proposals will, for example, give judges more flexibility, save time and money and promote the rule of law. We think exactly the opposite. I am happy to go into that in more detail now, or to let my colleagues answer and come back in.
Andy Slaughter
Q
Sara Lomri: Absolutely not; in fact, quite the contrary. We think that clause 1 will draw judges further into potentially political ground where they will be asked to look at the impact of implementation of the order, and they may be drawn into further satellite litigation around what order is available.
I think it is fair to say, and I do not think this came out in any of the evidence given this morning, that JR is a remedy of last resort. As a solicitor, I represent individuals who bring judicial review. The cases are about hospitals and care homes closing, policies discriminating against service personnel and disabled children being denied proper care. It absolutely is a last resort. It is really hard to access legal aid for judicial review, which is heavily restricted.
It is a very low-volume jurisdiction. Around 4,000 applications are issued a year and, of those that get permission, only a third or so proceed to trial: that is fewer than 1,000 cases a year. Of course, a few of those cases will feel very political to the Government, but that really is the absolute minority of judicial review cases—which, in any event, is a low-volume jurisdiction. I will leave that point there.
Ellie Cumbo: It is not for the Law Society to speculate on the motives—we are interested in the effect. I want to draw particular attention to the proposal to create prospective-only quashing orders, which appears in clause 1. It is important to understand that that is a drastic new suggestion that did not arise in the report by the independent review of administrative law. Its effect would be to remove a remedy from a person who successfully challenges a decision and proves that it is unlawful. Is it not the most basic requirement of a justice system that, if someone brings and wins a case, they are entitled to an effective remedy? The proposal really is very difficult to justify, and is a radical departure from the expectations that I suggest all of us—including all of your constituents—have of an effective justice system.
The point that we are most concerned about, which also appears in clause 1, relates to the statutory presumption. It is less drastic, in the sense that presumptions do, of course, exist in the law. However, it is difficult to understand the justification for creating a new set of remedies and then creating a presumption that those are the default remedies, in the absence—because there can be none—of any evidence as to their effect as a remedy. We are concerned that there is simply no justification for the Government’s own rationale for those particular provisions in clause 1.
Louise Whitfield: I would like to add that I think there is no justification, because there is no evidence the proposals will improve public-body decision making. One of the main benefits of judicial review is that it holds public bodies accountable—not just central Government, but all sorts of public bodies that make decisions affecting people’s day-to-day lives. If it improves public body decision making, we would expect to see reforms that were going to help that.
In actual fact, Liberty thinks that the reforms will hinder the ability of public bodies to make good decisions because they will be tempted to gamble more. The proposals create a risk of incentivising the public bodies because they will not have to put right the wrongs that are found by the court. It will buy them a couple of years while the case is fought out, and they will know that there is a good chance of getting a prospective-only remedy or some suspended quashing order, even if it is found that the policy or decision was unlawful. That is the other piece of the jigsaw: it lacks any justification for saying that the proposals will improve the quality of public body decision making.
Andy Slaughter
Q
Sara Lomri: That is right. We say that the best evidence puts it at around 5.7%. We are particularly concerned that, in response to IRAL, the Government agreed that there should be judicial supervision of the decisions of the upper tribunal, particularly in relation to refusals of permission to appeal, citing the significant cost as a reason to abolish Cart JRs.
In actual fact, the total cost save is around £364,000 to £400,000 a year. The data relied on by IRAL was incorrect—it has agreed that it was incorrect—and, in fact, it looks more like 5.7% to 6% of Cart JRs are successful. In fact, there is not a significant cost. It is £364,000 per year which, given the constitutional principle at stake, is not a significant cost.
Andy Slaughter
Q
Ellie Cumbo: I would just say again this is a really drastic suggestion. Remember, it is for Parliament, not Government, to decide when to oust the jurisdiction of the courts and remember that the effect of it is to prevent a remedy when a decision has been found to be unlawful. The importance of that should not be underestimated. Parliament is supreme and has that right, but it must be considered on a case-by-case basis, as long as the circumstances are appropriate. We would welcome an indication from Government as to when they would consider it appropriate to ask Parliament to pass future ouster clauses.
Sara Lomri: I would tie it back to an article by David Davis on 25 October, in which he talks about the Government’s plans to restrict the use of judicial review in this Bill as an obvious attempt to avoid accountability. He refers to previous attempts by previous Governments, so obviously it is not just this Government, but David Cameron’s Government and before that Tony Blair’s Government attempting the same thing in a different guise. PLP would say that consideration of ouster clauses is constitutionally really problematic. We understand that it comes up from time to time, but it is not in this Government’s best interest to do that. It will really impact the way in which decisions by this Government and future Governments can be held to account.
Louise Whitfield: I echo those points. Liberty’s concern is that this is the death of judicial review by a thousand cuts. It would chip away at the fundamental right of citizens to challenge Government and other public-body decision making. If we start down the road of ouster clauses, the question is when will it stop and what else will be subject to ouster clauses until we are left with virtually no judicial review at all?
Andy Slaughter
Q
Ellie Cumbo: I am happy to say on behalf of the Law Society that we support the creation of suspended quashing orders. That enhances remedial flexibility and how can that be anything but a good thing? As I have already indicated, our concern is with the presumption that those then become the default remedy, when they do not already exist and there is no evidence base as to the extent to which they are an effective remedy.
Andy Slaughter
Q
Sara Lomri: PLP would add that the judges already have those powers. There are cases where suspended orders have been made, but the judges have used them very sparingly. I heard earlier today your witnesses talking about increasing discretion and flexibility for judges. Absolutely, clause 1 does not do that. As the Lord Chancellor said in The Daily Telegraph on 17 October, it is about trying to mandate judges and that is really problematic for the reasons that we have already set out.
Andy Slaughter
Q
Sara Lomri: We think that they are dealt with by the judiciary itself. It does have that power, and it is not needed in the Bill.
Louise Whitfield: Liberty’s position is the same: the judiciary has the power. We do not see that there is a difficulty in legislating to clarify that it does have the power, but it is the presumption that becomes problematic.
One of the points that is missing from this debate and discussion is that this will actually add a very considerable layer of further complexity and cost and take up more court time, in a way that will make judicial review less accessible and less clear. There are already hearings just about remedies. If you add on top of that a whole layer of arguments about six different factors as to whether you should get an immediate quashing order or a suspended quashing order, I think, based on my experience, you are going to have a lot of very lengthy legal submissions in writing and further hearings; you will have to list the hearing before the same judges who heard the original trial. It is going to increase costs, and it is going to make the litigation more risky for claimants. It is going to be off-putting because of the difficulty in advising people about their chances of getting the order to which we say that they should be entitled if it has been held that something is unlawful.
Sir John Hayes (South Holland and The Deepings) (Con)
Q
“an increased appetite for political litigation, and, more worryingly, an appetite for putting judges in an invidious position, by asking them to decide essentially political matters on applications for judicial review.”
That also reflects the view of Lord Sumption who, the witnesses will be aware, has commented:
“Allowing judges to circumvent parliamentary legislation, or review the merits of policy decisions for which Ministers are answerable to Parliament … confers vast discretionary powers on a body of people who are not constitutionally accountable for what they do.”
He added that
“if we keep asking judges to answer inherently political questions, we are ignoring the single most important decision maker in our system: the British people.”
There is clearly a problem. We have heard that from other witnesses this morning. The problem needs to be solved. I have some sympathy with the view that the Bill does not go far enough and that we could do more. However, the idea that we should do nothing seems to me to ignore the facts.
Ellie Cumbo: If I may say so, I have not heard facts. I have heard assertion; I have heard the opinions of two people, neither of whom have been recent practitioners. On behalf of the Law Society, I do not think that we would agree that we have seen evidence that there has been an increased politicisation of the courts. In any case, it is not up to the judges to decide what cases come before them. This question is largely about the remedies available in judicial review; that is what the Bill seeks to focus on. Our view is that judicial discretion is what enables a proportionate remedy that correctly responds to the facts of the individual case to be made.
Sir John Hayes
Q
Ellie Cumbo: Certainly, but, as I say, I have seen no evidence to suggest that that is what is happening.
Sir John Hayes
I will give you some evidence in a second, but others may want to comment first.
Ellie Cumbo: I was actually going to make a slightly different point that actually enhances the ability of the Bill to protect judges from any assertion that they are in fact dabbling in matters of policy, which is that the provision we were just talking about earlier—to create suspended quashing orders—is not entirely clear on the face of the Bill. What it actually says it may do is allow for conditionality in suspended quashing orders: in other words, you would introduce a quashing order that would take effect only in the event that certain conditions laid down by the courts are or are not met. That is, arguably, inviting judges to pass a view on what an acceptable policy solution in those circumstances would be. We would welcome some clarification on that point of the Bill in order to ensure that it is very clear that judges are not being invited to pass policy.
Sir John Hayes
Q
To give an example, I understand that a character called Jolyon Maugham—I am inclined to say, wearing my inverted snobbery on my sleeve, that there were not many Jolyons on the council estate that I grew up in—is going to take to judicial review the appointment of the new chair of the Charity Commission, at least according to reports. That is despite the fact that in parliamentary answers it has been made clear that that appointment has been an open and fair competition in line with the Cabinet Office’s governance code on public appointments, as regulated by the Commissioner for Public Appointments. Even where the process has been entirely fair and reasonable, the judicial review is being used as a way of asserting—one might go as far as to say campaigning—for political ends.
Ellie Cumbo: I do not want to continue to speak if my colleagues would like to join in. I will just say that I am not familiar with the merits of that case and cannot comment on it. I would return to the point that the Bill is primarily looking at the remedies that should be available in the event that a decision in that case was found to be unlawful. Our view, as stated already, is that remedies should be effective whatever the impugned decision is.
The Chair
Sara or Louise, do you want to join in?
Sara Lomri: Yes, I would love to. The assertion around the increased number of political cases and litigation remains just that; Lord Faulks and the IRAL looked at this and there was no such finding. At PLP, we advocate for and promote evidence-based approaches to policy. We know that there are around 4,000 applications for judicial review every year and around 1,000 get to trial. We know that in the majority of cases defendants win, not claimants.
In terms of the cases that you, Mr Hayes, and the Attorney General are talking about, there are probably a handful over a couple of years. It is understandable why those cases may take up a lot of oxygen, and of course we cannot talk for Jolyon Maugham and what that case is about.
I am a solicitor and I represent individual, marginalised, disadvantaged people who have no option but to use judicial review to hold the state to account. By passing this Bill you are going to make it harder for those people: the vast majority of users of judicial review on a day to day basis. You are going to make it hugely more difficult for them to get access to justice.
The Chair
Louise, do you want to add anything?
Louise Whitfield: I have nothing to add to what my colleagues have already said.
Angela Crawley
Q
Sara Lomri: I do not have the stats in front of me to compare the number of JRs in the immigration jurisdiction and at the upper tribunal as opposed to the High Court, but I can quickly try and find those.
The judicial reviews that we are involved with are around how decisions of the state impact poor and marginalised individuals. There are issues around welfare benefits, special educational needs, discrimination against all kinds of individuals, and particularly disability discrimination and difficulties around getting access to public services. That is the mainstay of our work. I am not sure that anybody who uses the immigration justice system feels that they are getting any kind of special treatment.
We say that Cart JR—if that is what was behind the question—remains a really important procedural safeguard for the most vulnerable, marginalised and disadvantaged individuals, to make sure that unlawful and erroneous decisions do not go unchecked.
Angela Crawley
Q
Sara Lomri: I would just say yes, I absolutely agree with that.
Louise Whitfield: I have not practised immigration law either—like Sara, I cannot comment on the figures—but a lot of the judicial reviews that I have been involved in over the last 20 to 25 years have been the kind of low-level day-to-day decisions that affect people. A lot of the debate has focused on the high-profile cases.
People hear about judicial reviews that go to trial over completely random issues, such as where Richard III should be buried and that kind of thing. In actual fact, judicial review is really important, if not essential, for day-to-day stuff such as whether you are entitled to a blue badge and whether rail replacement buses should be wheelchair accessible, and for loads of issues such as whether you should be supported to live independently in your home when you are old and disabled and struggling on your own, or whether you should have access to particular drugs or healthcare.
The reason why those cases do not get much publicity, but are really important, is that they settle pre-issue. They settle pre-issue because we have the opportunity, within an effective pre-action protocol, to say to a public body, “We think this decision is wrong; please put it right.”
If you go down the road of these reforms and make remedies harder to get, and there is more opportunity for public bodies to put off the day of giving in—or to know that even if what they have done is found to be unlawful, they will not have to address the wrongs that people have suffered previously—that will just make it harder for individuals to use judicial review effectively. That can only be a bad thing.
Ellie Cumbo: I understood the question to be about Cart and this idea that immigration cases are privileged—I think that is what you said. It is important, in the interests of strict accuracy, to say that Cart judicial reviews are available outside of immigration. Mr Cart himself was challenging a decision of the child support and social security tribunal. He was seeking to vary his child support. While I am on this, it is also worth saying that he ultimately lost; he was unsuccessful in securing a judicial review of his own. He merely won the principle that judicial review should be available in certain circumstances.
Tom Hunt
Q
Sara Lomri: In relation to Cart JRs, we are talking about a constitutional principle. Public Law Project and others are saying that that price tag of £350,000 to £400,000 is worth it and a good use of resources.
When we talk about Cart JRs, we talk about the case of G, who had been seriously mistreated in Nigeria and trafficked to the UK. The Government agreed at the first-tier tribunal that she was a victim of trafficking, but the tribunal came to a bunch of erroneous decisions, including that the evidence that supported her being a victim of trafficking was not substantiated, and came to the wrong decision. She brought a Cart JR, which was successful. As a result, she and her child were not returned to Nigeria, where they invariably would have been killed. That is the price tag.
We say that that is such an important procedural constitutional principle that the tribunal’s decisions should be reviewed from time to time by the High Court—by a judge who is more senior, has more time to consider the evidence, and who is sometimes better placed to make those decisions. Yes, we think that is an efficient, much better use of scarce resources.
Tom Hunt
Q
Sara Lomri: It is the same amount that DCMS spent on its art collection in 2019-20. When we are talking about constitutional principles, I do not think we can say that is too much money.
Tom Hunt
Thank you.
Ellie Cumbo: Could I come in briefly on that point? We entirely agree that judicial resource is precious. As one of your earlier witnesses said, more of it would make an enormous difference to the issues we are dealing with, such as the backlog in courts at the moment. However, there are other interests that it must be balanced against, including that once again, in these cases, we would be talking about an unlawful decision by the upper tribunal. I think it is a reasonable expectation that unlawful decisions should be able to be challenged.
I would make a second point about resource. If we take the Public Law Project’s figure of around 5.7%—so around the 6%—that is not incomparable to the number of rape reports that lead to a conviction: nobody would argue that that is a waste of resource.
Andy Slaughter
Q
Sara Lomri: Just in response to Tom Hunt’s point, originally, yes, IRAL made a claim that Cart cases had a very low success rate. In order to answer that question, we have to get into the weeds of how cases are brought and how they are reported. IRAL said that there were 12 cases that had been successful, which points to a success rate of 0.22%.
In fact, there is significant difficulty because Cart cases are not reported. Also, because of the way they are brought—through a different stream, and they do not go to hearing—it is hard to get to the data. Through the work that we did with practitioners and people we know who have been involved in Cart JRs, we came up with a figure of more like 5.7%.
The Government’s revised figure—following our successful challenge to that, which went via the Office for National Statistics, and they agreed with us—is something in the range of 3%. Other researchers have had a look at it, and they have said between 5% and 10%. Our own data indicates 5.7%, which is why we give that figure—and we think it is hugely more reliable than the Government’s 3%.
The Chair
I am conscious of the time, and we have three more questions to come. Paula Barker.
Paula Barker (Liverpool, Wavertree) (Lab)
Q
Sara Lomri: Ellie, I am not trying to drop you in it, but could you answer that first? I feel like you have more to say about online than we have.
Ellie Cumbo: The Law Society would probably not get into the detail of deciding which cases it would be appropriate for. What we do have is quite a comprehensive set of views on the types of proceedings in which online proceedings are appropriate—rather than the types of cases, if you see what I mean. It is going to depend not just on what the case involves, but on the nature of the parties. If it is helpful, I would be very happy to provide that to you after today. I am probably not in a position to itemise it right now.
The only thing I would say that I think would serve as a general Law Society position on this part of the Bill is that we have a particular concern about unrepresented litigants or, in criminal proceedings, defendants taking part in online proceedings. There is a real danger of the formality not being clear to them in the absence of expert advice, and these can be life-changing decisions, so we would have real concerns about the fact that, as drafted, the Bill does not seem to make any distinction between represented and unrepresented parties.
Paula Barker
Q
Louise Whitfield: No. Liberty is not doing any work on part 2 of the Bill, so I will leave it to colleagues to answer this.
Paula Barker
Q
Sara Lomri: Public Law Project, like others, remain very concerned about digital exclusion and the blurring between digital assistance and independent legal advice, which we say remains extremely important. Further than that, I know that you will hear from other witnesses later on, including Justice, and we would support what they say on online courts. Later on today, you also have Dr Joe Tomlinson, our ex-research director, who will also be able to flag some headlines in terms of PLP’s response to the online issue.
Paula Barker
Q
Sara Lomri: In terms of the headline answer to that question, we would say preserving and promoting legal aid, and ensuring that independent legal advice remains a viable option for those using online justice systems.
Paula Barker
Q
Sara Lomri: I am sorry, but I am not able to answer that question.
The Chair
I think the Minister wants to come in briefly now. I will then move to Liz Twist, and then to Caroline.
The Parliamentary Under-Secretary of State for Justice (James Cartlidge)
Q
James Cartlidge
I said the Public Law Project.
Sara Lomri: We do not accept that it is about bites of the cherry. It is about fair systems. For example, in the case of G, the Government accepted that she was a victim of trafficking and the first-tier tribunal came to an erroneous decision. The High Court then corrected that erroneous decision. If the Cart JR had not been available to G, a victim of trafficking from Nigeria who was on the verge of being returned with her child back to her traffickers, that erroneous, unlawful decision would have held. It is not about bites of the cherry; it is about correcting unlawful decisions, and erroneous errors of law.
James Cartlidge
Q
Sara Lomri: Why it does not summarise it very well is because it is trying to paint a picture of our client group, who are the most marginalised and disadvantaged people in society, as having some kind of privilege that most people do not have. This is just not the case. This is about correcting unlawful decisions; most people do not have to go through this. Most people—thankfully, because we live in a good and democratic society—do not have to hold Governments to account,. However, when they do, we hope that those systems are fair and work properly.
Liz Twist (Blaydon) (Lab)
Q
Ellie Cumbo: We do have a concern about that provision, in clause 42, I believe. We believe that the abolition of local justice areas obviously risks forcing parties to a case to travel much greater distances, at great cost to themselves and to the courts in the event of delays and cases having to be taken off as a result. There is also a point of principle around justice being seen to be done at that local level where it feels like it relates to the community from which all parties are drawn. What we would ask is for a consultation with local stakeholders before those provisions go ahead.
Liz Twist
Q
Ellie Cumbo: I do not think we have considered that question in detail. Possibly the Magistrates Association would be best placed to comment, and we would usually defer to them. If you would like us to provide an answer at a later date, I am very happy to do that.
Dr Johnson
Q
Sara Lomri: Absolutely. When I was talking about—
Dr Johnson
The legislation that I am talking about would not actually affect whether or not a child with special educational needs, or a disabled person, was able to bring a judicial review of the Government’s decisions on their behalf. It does not really apply to this Bill—or have I misunderstood?
Sara Lomri: I think you have. I was painting a picture of the kinds of clients that I represent when using judicial review. Clause 1—
Dr Johnson
But does it affect the abolition of the Cart reviews?
Sara Lomri: Clause 1 is about the presumption of prospective-only orders, which absolutely would impact on that client group.
The Chair
Order. I am afraid that we have come to the end of the time allotted for this panel. I thank the three witnesses for their evidence.
Examination of Witnesses
Louise Finer, Stephanie Needleman and Steve Valdez-Symonds gave evidence.
The Chair
Welcome to the new witnesses. It is good to see all three of you physically present. We will have none of the technical difficulties that we had earlier, although it is important that people attend, whether virtually or in person. Could you please introduce yourselves before we begin the questions?
Steve Valdez-Symonds: My name is Steve Valdez-Symonds, I am the refugee and migrant rights programme director at Amnesty International UK. For the purposes of these proceedings, it is probably relevant that I have experience of practice in the immigration field, including many years of representation before the immigration tribunals of various iterations, and training and supporting practitioners in understanding the law and procedures, and many years’ experience of parliamentary advocacy, including representing those practitioners in that.
Stephanie Needleman: I am Stephanie Needleman, I am the acting legal director at Justice. Justice is an all-party law reform and human rights organisation that works to strengthen the justice system in the UK. Our vision is for fair, accessible and efficient legal processes that protect individuals’ rights and uphold the rule of law.
Louise Finer: My name is Louise Finer, I am head of policy at Inquest.
The Chair
Your sound is very low indeed. Could you move a bit closer to the microphone?
Louise Finer: I was trying to socially distance, but it is more important that you can hear me. We are an organisation that supports families through the inquest system. I bring that experience to this Committee.
Alex Cunningham
Q
Stephanie Needleman: There are two provisions in the Bill that we are concerned about in terms of safeguards. There is the new allocation procedure for online pleas, for adults in clause 6 and for children in clause 8. While the Government have said that this will be accessible only through the common platform, which as I understand can currently only be used by legal professionals, there is nothing in the Bill that would guarantee that a defendant would only be able to enter an indicator plea or trial venue with access to legal advice. We would like to see something in the Bill that guarantees that.
We oppose the use of the procedure by children. We do not think that even with a safeguard of access to legal advice that it is an appropriate procedure for use by children. The criminal justice system considers children to be inherently vulnerable, and there is a whole process in place in the youth criminal justice system that recognises their rights and works to guarantee them, and this system would allow that whole system to be bypassed.
Alex Cunningham
Q
“has attained the age of 16”
rather than the usual age of 18? Could that be covered?
Stephanie Needleman: Clause 4 is not something that we have looked at in particular detail. As I understand it, the automatic online conviction process in the Bill is only available to 18-year-olds. The single justice procedure that it builds on is also only available to 18-year-olds, and the section 12 procedure in clause 4 is available to 16-year-olds, and that does appear to be an inconsistency that is unjustifiable.
Alex Cunningham
Q
Stephanie Needleman: The same concerns as we have with using the new online allocation procedure for children. There is a whole system set up to protect vulnerable children within the criminal justice system, and those safeguards are being bypassed.
Alex Cunningham
Q
Stephanie Needleman: That is not a clause we have looked at in particular detail, unfortunately.
Alex Cunningham
Q
Stephanie Needleman: Yes, we are very concerned about the disproportionate impact of the AOCSSP—a catchy acronym. That builds on the single justice procedure, and there are clear issues with that that have not been addressed by the Government. There has been some research by Appeal, which shows that the vast majority of those being prosecuted under the single justice procedure are women for non-payment of television licences.
We are concerned about the impact on ethnic minorities. Racial disparities permeate the criminal justice system, and we are concerned that a disproportionate number of ethnic minority individuals will also be unduly criminalised through the automatic online conviction process, as well as those with mental health conditions or neurodivergent conditions who may have particular difficulties understanding the process or the implications of going through the process, pleading guilty and receiving a conviction.
As it stands, there is nothing within the process that would screen for any vulnerabilities, and there has also been no assessment by the Government, as far as we can see, of the equalities impact of the Bill. Back in 2017, these measures were originally floated in the Prisons and Courts Bill, and there was an equalities statement which recognised the potential adverse impact on people with protected characteristics. There has not been an update to that equalities statement as far as I have seen. As it stands and given the issues with the single justice procedure that it builds on, we think that the procedure should not be in the Bill. However, it definitely should not proceed without a review of the current evidence available in terms of what impacts it might have on those groups with protected characteristics and vulnerabilities.
Alex Cunningham
Q
Stephanie Needleman: Absolutely. That is also a concern of ours in terms of people understanding what the process involves and, importantly, what the outcome of that process is going to be. Obviously, with the automatic online conviction, that outcome is a criminal conviction. We are worried that the process encourages people to go through it and plead guilty without properly understanding what impacts that can have later in life. I know it is currently only for summary and non-imprisonable offences, but those can still have serious implications—a criminal record, increased insurance costs, loss of employment and educational opportunities. This is not just for trivial offences that will not have an impact on people’s lives. Similarly, with the online plea, understanding the implications of where a case is heard—and the seriousness of going to the Crown Court and having the greater sentencing powers available there—is incredibly important. There should be provisions built in to ensure that defendants understand those. Having legal representation in the context of the allocation procedure goes some way to dealing with that.
Alex Cunningham
You have anticipated the rest of my questions. I do not know if either of your colleagues wish to comment. No.
Sir John Hayes
Q
“challenges to legislation on the grounds of discrimination are becoming increasingly common in the UK, usually brought by campaigning organisations which lobbied unsuccessfully against the measure when it was being considered in Parliament, and then act as solicitors for persons affected by the legislation, or otherwise support legal challenges brought in their names, as a means of continuing their campaign.”
They are assisted in that, are they not, by the principle of proportionality, which confers on courts a broad discretionary power that risks undue interference of the courts in the sphere of political choices. That is very bad, is it not, both for a democratic society and for the role and reputation of courts, because the separation of powers—well, I do not need to lecture witnesses on the separation of powers. They know what it means. We have a problem that needs to be solved by legislative means. The Bill is a welcome start in that respect, is it not?
Sir John Hayes
I am happy for any or all to take it.
Steve Valdez-Symonds: I am happy to respond to that on behalf of Amnesty. With respect, I think that is to misunderstand the role of the courts. The courts manage—indeed, you make a reference to the Supreme Court giving clear direction about its view to all the other courts below it as to how to manage the matters that are brought before it, including matters that raise the issue of proportionality. Proportionality, where it applies, is a question of law on which courts need to rule. That is why we have a judicial system, not for Parliament to try to predetermine how courts should exercise that role and perform their judicial function, in ensuring that administrative bodies act proportionately, according to the law and according to its interpretation as clearly set down now by the Supreme Court.
Sir John Hayes
Q
Steve Valdez-Symonds: The Supreme Court.
Sir John Hayes
I was reading out a court judgment, so there are a number of distinguished judges who share the view I articulated, as you know, that proportionality has become a problem and the Supreme Court has interfered in matters of high politics. That is the argument that has been made by the Attorney General, Lord Sumption and others. That is not my view; it is the view of those who want to see the courts doing what they traditionally did. It is a long-established and time-honoured principle that courts do not become involved in matters of high politics and the argument I am making—or reflecting—is that that is now a problem. We saw it in the Miller case and there is no guarantee that the Supreme Court would not act as it did in the Miller case again. We need to do more to clarify and make certain the respective roles of those who are chosen by the people and who are accountable to them, and those who are not.
Steve Valdez-Symonds: If I may, I will make two responses to that. First, with respect, you started reading from the Supreme Court’s judgment on the question that you were concerned about, I understood from you, in support of what the Supreme Court had ruled and the direction it has given therefore to all the courts below it as to how judicial proceedings on the matter in question should be performed in future. It seems to me that the matter is addressed by the Supreme Court in black and white in front of you.
As for the wider question, the issue is clear that the Government set out—commissioned—a review of judicial review. It had eminent evidence from many public bodies, including many Government Departments, about whether there were concerns. Its overriding finding on judicial review generally was that there was no problem. Again, for reasons that have also been given earlier, I do not see that there is any need for this interference, frankly, with the way in which courts perform their constitutional function.
Sir John Hayes
Q
A good argument for a process of judicial review is that the grounds on which it is exercised have altered. As you know, the Attorney General has made clear her concerns about this, as have a number of senior lawyers, former Supreme Court judges and others. The argument I am making is by no means an unusual or untested one. You will have heard it many times before. I am simply saying are not the Government right at least to address those concerns?
Steve Valdez-Symonds: With respect, all I can do is refer to the previous answers and say that I think the Government are not right. Of course, there were many voices, including judicial voices, that have considered that the situation is satisfactory as it is, including the review that the Government commissioned.
Sir John Hayes
Q
Steve Valdez-Symonds: I do not accept what you have articulated, but you started by reading from a very recent Supreme Court judgment, which I understood you to agree with. I do not really see what you see as the problem. The Supreme Court has ruled on the matter. It is the highest authority for all the courts that will have to deal with the matter in the future and there is no ruling.
Sir John Hayes
Q
Steve Valdez-Symonds: But it did not in the very matter that you have just read from in its very recent judgment.
Sir John Hayes
Q
Steve Valdez-Symonds: I do not accept that.
Sir John Hayes
Q
Steve Valdez-Symonds: I do not think I can add any more. I am sure the Government’s review spent considerable time with considerable amounts of evidence—more time than this Committee will have to consider these things, unfortunately—came to a clear conclusion that there was no need essentially to revise the way in which judicial review works. It was working perfectly well—we agree with that.
The Chair
Sir John, my interpretation of what you are saying is that you want to widen the scope of the Bill. The scope of the Bill is already set, so with the indulgence of the Committee, I move to the next questioner, Andy Slaughter.
Andy Slaughter
Q
Louise Finer: Thank you for the question. On clauses 37 and 38, we feel that, although they might be appropriate in some circumstances, they introduce some very real risks into the coroner service. Reflecting on the recent report by the Select Committee on Justice, and the extent to which it identified the continuing problem of inconsistencies and, essentially, a postcode lottery, depending on the coroner who hears the case, we are really concerned that there need to be some strong safeguards on clauses 37 and 38, to ensure that, in the kinds of cases that Inquest supports, day in day out, no new risks are introduced through the Bill.
What concerns us about these two clauses is very significant decisions being taken that could lead to the proper interrogation of evidence being curtailed at an early stage, when families would often not have legal representation to be able to argue the case to continue an inquest, or for an inquest to be heard. The kinds of cases that we have seen, were these clauses to be in place, include some where initially evidence suggested a death by natural cause, but where, as the inquest progresses, further evidence comes to light that suggests that the situation was anything but.
To refer briefly to one case, Laura Booth died in hospital after a routine eye procedure. She became unwell and developed malnutrition, due to inadequate management of her needs. In that case, the coroner was not initially going to hold an inquest, because it was considered a natural-cause death, but the family pushed for an inquest. The inquest reached such critical findings that it would have been quite shocking for that not to have occurred, had the inquest been discontinued. It was found that her death was contributed to by neglect, and that there had been a gross failure of care. We are suggesting that safeguards need to be built in, to ensure that cases such as that, which really need to be heard, in the context of a coronial system, where there is already a significant amount of discretion, should not be discontinued, and are in fact heard as appropriate.
On clause 39, on remote hearings and juries, we are really worried and broadly agree with the evidence of André Rebello. His conclusions were quite damning, to be frank, of the risks of remote hearings. Again, there may be some circumstances in which a remote hearing is appropriate. We see them as potentially very advantageous for pre-inquest hearings. A remote process can be very efficient. We do know some families who are happy to go ahead with a remote hearing but, of the families we support, that is a very small minority. Overwhelmingly, the families we have supported recently have very negative views and impressions of remote hearings.
We take issue with the Government’s justification for that aspect of the Bill, which we think is weak and unevidenced. It claims that remote attendance will reduce distress. We are not sure what evidential basis there is for making that claim. It certainly does not match up with our experience of the many families we are supporting at the moment. Although there may be some benefits to opening up the ability to join remotely, we do not see those as being introduced as an add-on and an advantage, but more as a taking away.
The argument about bringing coroners’ courts into line with other courts in terms of remote attendance glosses over the fact that the inquest process is quite a different process from that in other courts. We think there needs to be much more exploration, consultation and development and evidence to justify the proposal.
An inquest process can be a very traumatising experience for a family already traumatised. Imagine yourself having to sit through the inquest process and hear evidence about how a member of your family died. They may have been a long way from you in a prison or in a secure setting when they died. You may have no knowledge of how they died. The inquest process may be your first opportunity to find that out. Imagine doing that in your front room, without the support services that you would have in person at a hearing. We think that there are very, very real risks that families could be retraumatised and put through more distress rather than, as the Government claim, their distress being reduced.
We are concerned about remote juries. We have had recent experience of juries sitting in adjacent rooms to the coroner, and the coroner is then unable to see the jury as they would were they in the same room. We have seen some very concerning things, including jury members falling asleep, eating packets of crisps and so on and so forth. All such things would be much harder to safeguard against the more remote the setting. We think the Government need to provide more evidence to support their claims about remote hearings, to evidence much more clearly how they would work in the context of the inquest and how they would ensure that families were not put through more distress or their ability to participate effectively undermined.
Andy Slaughter
Q
Louise Finer: Our view is that this Bill presents a crucial opportunity to address the inequality of arms that is at the heart of the inquest process. There have been many calls from authoritative reviews and inquiries to address this and it is a disappointment to us that there is nothing in the Bill to address that inequality of arms. The Justice Committee report—so recent—was absolutely clear on this point. It makes no sense that on the one hand Members are concluding that and on the other a Bill is introduced that does nothing to address that. There are many other issues in the Justice Committee report that remain unaddressed in the Bill.
The inequality of arms is acute. One example came last week in the Westminster Hall debate on the Justice Committee report. Tim Loughton MP referred to the Shoreham air disaster. He said that he supported the case for public funding for inquests because of his experience of the Shoreham inquest. Very early on it was unclear whether the families would get funding for legal representation, but it was immediately clear that all of the 18 public bodies represented at the inquest would have automatic access to funding to represent themselves. Yet there was a big question mark over whether the families of the victims would receive funding for inquests. We acknowledge that the Government are bringing forward some measures to address the means test for exceptional case funding, and we welcome those, but we do not think that they go far enough. We very much hope that the Bill will seize the opportunity to do something about that.
Andy Slaughter
Q
Louise Finer: I will be as brief as I can. There are many issues in the Justice Committee report and many recommendations for an appeals process, a coroner service inspectorate, and a national coroner service, which would help to eliminate the inconsistency in the system. We support all those recommendations and would welcome any of them being incorporated in the Bill. Most importantly, the Justice Committee called for families to be put at the heart of the inquest process. What we are concerned about is that clauses in the Bill could actually go the opposite way. Instead of putting families at the heart, it could make it even harder for families to participate effectively.
Andy Slaughter
Chair, I was going to ask about judicial review, but I understand I will have time at the end.
The Chair
If we have time at the end. We have got three more questions that one or more of the panel may wish to answer. I call Tom Hunt.
Tom Hunt
Q
Steve Valdez-Symonds: I do not regret the use of the word. I was drawing attention to the fact that there was considerable interference in the functioning of a judicial function in the tribunal system and the way in which the Government were legislating not just in this Bill—this is an important factor, which is not before this Committee—but in the Nationality and Borders Bill at the same time. If it is passed in its current form, it will impose direction on judicial figures in the tribunal system as to how they may perform their judicial function, and how they must or must not weigh and assess evidence and appellants in front of them, pre-empting what will be in front of them by statute.
It is a grave concern that at the same time as withdrawing in this Bill the oversight of our constitutional courts to ensure that the tribunal system works properly according to law, the Government are seeking to legislate to incapacitate those tribunal systems to manage independently and fully their own judicial functions. That is the effect of provisions in the Nationality and Borders Bill. You can look at them in clauses 16, 20 and 23. Provisions like that, although not going anywhere near as far—dating back to 2004, the time of the ouster that this Committee has discussed that was put forward by the Labour Government—have caused much confusion already.
The Chair
Steve, I really should have pushed Tom on this because it falls outside the scope of the Bill.
The Chair
I think the witness tried to justify it in an explanation relating to a different piece of legislation.
The Chair
Sorry, Steve, you were answering.
Steve Valdez-Symonds: The point I have made is that you cannot properly look at these two Bills in isolation, because clause 2 of this Bill affects whether there is any constitutional court scrutiny of whether the tribunal system performs the functions that Parliament has set it up to perform. At the same time, you have legislation to impede that tribunal’s functions about whether it can perform those duties. You have legislation from the very Department whose decisions it will be responsible for regulating—the Home Office. I think it perfectly appropriate to raise the concern that if that sort of interference were going on in the courts of other countries, we would, as I said, describe it as tyranny. [Interruption.]
The Chair
Sorry; we are not taking questions unless they have been indicated. Tom has indicated that he has finished his questions. I call Paula Barker.
Paula Barker
Q
Paula Barker
Thank you, Chair. Ms Needleman, what are your views on the powers provided to the Lord Chancellor by the OPR provisions, and do you believe that they cause a democratic deficit?
Stephanie Needleman: The provisions relating to the online procedure rules give significant power to the Lord Chancellor. The Government have themselves recognised that the broad powers provided to the Lord Chancellor could have a significant impact on access to justice and that some of those powers should therefore be subject to a requirement to obtain the concurrence of the Lord Chief Justice. However, there is a slight lacuna in the Bill, in that two powers are not subject to the same concurrence requirement.
Those are the power to require the online procedure rule committee to make rules, and a broad Henry VIII power to make consequential amendments, the latter power being subject only to a consultation requirement and the former to no requirements at all. That undermines the point of having a concurrence requirement in the first place. As Lord Judge pointed out on Report of the Courts and Tribunals (Online Procedure) Bill—the previous iteration of these rules—taken together, those powers overrule the very rules that the Government themselves made subject to the concurrence requirement because of the wide-ranging impact the provisions can have on access to justice.
Liz Twist
Q
Stephanie Needleman: Absolutely. As I said before, we do not think this procedure, as it stands, should be introduced at all, because of the lack of evidence and the concerns around protections in relation to the identification of vulnerabilities and inequalities. However, if it is introduced, we at Justice are calling for it to be restricted to non-recordable offences only.
Currently, the Bill would allow the procedure to be used for a range of offences that would cause people to have a criminal record. That could impact parents when it comes to failing to provide for the safety of children at entertainments, for example, or it could impact pub-goers and pub owners in relation to the offences of being drunk in a public place or selling alcohol to a person who is drunk. If the procedure is to be introduced, we would call for it to be for non-recordable offences only, because the implications of being convicted of those are smaller.
The Chair
Andy, we have a bit of time left. Would you like to come back to your earlier point?
Andy Slaughter
Q
Stephanie Needleman: I will take clause 1. Justice supports the introduction of suspended-only quashing orders. We think that, after Ahmed, the law could do with clarification, and that putting statutory suspended quashing orders on a statutory footing makes sense. We envisage that the orders would be used in exceptional circumstances such as those that existed in Ahmed, where there had to be retrospective legislation to deal with the issues it caused.
Crucially, suspended-only quashing orders come into effect and have retrospective effect, even if it is slightly delayed. However, prospective-only quashing orders do not have retrospective effect, and we oppose those measures. You have heard a lot of arguments about why they undermine the rule of law; in particular, they do not afford a remedy to the individual claimant in front of the court, and more generally to other people in the same situation as claimants. For example, if someone paid tax under a regulation that was later found to be unlawful, they would not be able to reclaim the excess tax they had paid, because the Bill as currently drafted requires the regulation to be treated as lawful up until the point of that judgment. In relation to benefits, if ineligibility criteria were later found to be unlawful, under the Bill people would not be able to reclaim benefits that they would have been entitled to, because the unlawful ineligibility requirements would be deemed to have been lawful at the time they claimed their benefits.
We are particularly concerned about the presumption. We have heard from various people in Government that the provisions increase judicial flexibility, but the fact that there is a presumption is entirely opposed to the idea of increasing judicial discretion and flexibility. The presumption constrains judicial flexibility and remedial discretion by requiring the prospective-only quashing order to be used in certain circumstances. We are concerned that the prospective-only quashing order will have a chilling effect on judicial review. Even if a prospective-only quashing order would not in any one case be given, the fact that the presumption for it exists in the first place creates a chilling effect, as it is an additional factor for a claimant in deciding whether to bring a judicial review in the first place. It may also make it harder to obtain legal aid, because the merits criteria require there to be sufficient benefit to the litigant if successful. Those are our main concerns about clause 2. I will let Steve talk about clause 2.
The Chair
The Minister has indicated that he would like to ask a quick question. Steve, could you answer quickly so I can try to squeeze him in?
Steve Valdez-Symonds: I will do my best, and I will be led by you. I will say nothing about clause 1; we agree with the concerns raised. I ask the Committee to think back to the evidence of Professor Feldman. He is someone who supports clause 2, but he does so having expressed great disquiet about it in principle, and we agree with that. The principle of the matter is that statutory bodies, including statutory tribunals, which have limits on their powers set by Parliament, are required to be ordinarily subject to review by our constitutional courts to ensure that their powers are exercised properly and within the powers that are set, rather than, as he put it, being permitted to determine for themselves where the limits of their powers are. That is what clause 2 is removing.
There is nothing exceptional about Cart judicial review for immigration matters or the other tribunal matters that it relates to, except for the fact that it is a highly restrictive form of judicial review because of the particular practice direction by which the High Court has operated ever since the Supreme Court decisions in Cart and Eba, which curtail both the process, to make sure that it is less truncated, and the much higher test that has to be passed for the judicial review to succeed.
Professor Feldman then goes on to reach conclusions for suggesting why he none the less, despite his great disquiet, thinks it is appropriate to interfere in this way. There are several reasons why I think he is wrong about that, and why I think he misunderstands some of the things that have happened—including since Cart and Eba, and including those that are happening by legislation now—which more closely curtail the prospect of justice in this tribunal system. Perhaps in view of the direction from the Chair, I will write to the Committee immediately afterwards and spell out what those things are, so that the evidence is in front of you.
The Chair
I am afraid that brings us to the end of the time allotted for the Committee to ask questions of this panel. I thank the panel for making the time and effort to appear before us physically, which was much appreciated. Apologies to the Minister on the final question.
Examination of Witnesses
Dr Joe Tomlinson, Aidan O’Neill QC and Michael Clancy OBE gave evidence.
The Chair
We have a fully virtual panel of three members this time. May I ask each panel member, starting with Dr Joe Tomlinson, followed by Aidan O’Neill and Michael P Clancy, to introduce themselves?
Dr Tomlinson: Thank you. I am Joe Tomlinson, senior lecturer in public law at the University of York. I study all aspects of the public law system, and I have a particular interest in judicial review. Of particular interest to discussions today, I suspect, is that I have a particular interest in empirical studies of judicial review and immigration judicial review.
Aidan O'Neill: I am Aidan O’Neill. I am a QC at the Scottish Bar and also the English Bar. I suppose that I practise primarily in the fields of public law and constitutional law. I have been involved in a number of recent cases that involved constitutional issues, among them Miller (No. 1) and the Cherry-Miller case, which referred to the prorogation of Parliament, and the Wightman case about article 50 and whether it could be unilaterally revoked. My area of practice is within judicial review on both sides of the border.
Michael Clancy: Good afternoon, Chair and Committee members. I am Michael Clancy. I am the director of law reform at the Law Society of Scotland. I have a particular interest in constitutional law and some aspects of immigration law, and I am delighted to be here and to answer, or attempt to answer, your questions.
The Chair
Thanks very much for attending today’s meeting. I will start with Dr Caroline Johnson.
Dr Johnson
Q
Dr Tomlinson: I do not have the exact full set of statistics to hand, but I would happily supply those to the Committee. The general picture of judicial review is that ordinary judicial review, by which I mean non-immigration cases, is around a few thousand cases issued every year. Numbers have been declining in recent years. On the immigration side, for a good period of time—a couple of decades—there have been more immigration judicial review cases. They are obviously mostly heard in the upper tribunal now. The numbers fluctuate for a variety of complicated reasons, but my understanding is that they have been coming down in recent years. Cart is a small subset of judicial reviews. I can provide the full statistics to the Committee, but that is the overall picture.
Dr Johnson
Q
Dr Tomlinson: If you do not mind, I would like to comment on the figure, which is an important starting point. The original figure provided by the independent review of administrative law was 0.22%, which is an incredibly low success rate, but that figure was arrived at through the IRAL’s expert panel simply looking at published judgments. The Cart procedure is such that it is very unlikely to produce public judgments, so the panel looked only at a very narrow sample of the overall case load. The 0.22% figure is basically flawed. It is not correct, and the Ministry of Justice has since accepted that and provided a new figure of 3.4%, as I understand it. In various ways, I think that is also a deflated figure. Importantly, success is measured in the narrowest way possible. With a wider definition of success, you can get to a higher success figure.
It is difficult to say with any precision what the figure is, but I can say it is certainly not 0.22%. It is 3.4% with a very narrow definition of success, and it is higher than that if you have a different definition of success. The best figure, although it is not a precise figure, is that about one in 20 cases are successful. Of course, one in 20 is a relatively high success rate. You are challenging judicial decisions, so you would hopefully expect them to be of better quality, and so on. In my view, the success rate is not as low as the initial figure that was put out suggests.
Dr Johnson
Q
Dr Tomlinson: Again, I am not trying to dodge the question. It is very difficult to define in a precise way what success in a judicial review looks like. To take one example, most strong cases settle relatively early in the procedure. Settlement is a really important part of the judicial review system, but the way they show up in the statistics is that they look like withdrawn cases. The various statistics that we have vary, but I think we can accurately say that the Cart success figures are lower than the average judicial review success figures. By how much would be very difficult to say precisely, but one in 20 is still a reasonable success rate.
Dr Johnson
Q
Dr Tomlinson: I think the figure that Professor Feldman is relying on in making that claim is the success rate after a hearing. As I have just explained, many judicial reviews—the majority of them—do not reach a full hearing. When you get to that point, the success and failure rate is roughly 50:50. It obviously goes up and down in various directions ever year, but it is roughly 50:50. Overall, the success rate is potentially a bit lower, depending on how you define success. Again, I would say that potentially the best explanation for why success rates are lower in Cart judicial reviews is that you are talking about judicial decisions, rather than administrative decisions, being challenged by judicial review, so you can potentially expect a better quality of decision that is likely to withstand judicial review a little more robustly.
Dr Johnson
Q
Dr Tomlinson: Would you remind repeating that point? My connection dipped for a moment.
Dr Johnson
Q
The Chair
Sorry, there were two questions there. Before the witness had the chance to answer the one about the percentage of cases, you came up with another one. Were you clear on the first question, Joe?
Dr Tomlinson: I think so, yes. The headline point is that the statistics we have on judicial review—as a wider point, what the Government collect on judicial review could be much better—only give you a limited insight on success rates overall at different stages.
On the second question, if I have understood correctly, yes, obviously, Cart judicial reviews are of a slightly different nature, in that they challenge decisions of the tribunal. However, there are good reasons potentially, still, to provide judicial review of those decisions. Ultimately, what is at the base of those cases are the rights of individuals. While I can see there is a distinction to be drawn there, which was extensively dealt with in the initial Cart decision by the Supreme Court, the distinction in some ways is immaterial to the rights of the people who bring these cases.
Dr Johnson
Q
Aidan O'Neill: The first issue, of course, if one takes the 5% figure by way of success—I agree with Joe Tomlinson that it is a high figure—is that one always goes back to the idea: is it better to let one innocent person be convicted of a matter or to let nine guilty go free? In a situation where you have one in 20 Cart or Eba judicial reviews being successful after a hearing, that shows that there has been an error in law in relation to the specific individual case, which has potentially incredibly serious consequences when one is dealing with asylum and immigration cases. In principle, I do not think it is a question of playing with numbers and saying, “Well, only 5% are successful, so it does not matter—we can get rid of the whole position in terms of allowing errors of law to be identified and reviewed at second instance and by way of judicial reviews in other cases.”
I also agree with what Joe Tomlinson has said, which is that in the Cart and Eba situation, one is dealing with the fact that judges, both at first instance and in the upper tribunal, have looked at the matter and therefore are legally trained already, but they are not infallible. That is the whole point about judicial review; matters are not infallible. One would hope that there would therefore be a much lower percentage of areas in which they have been shown to err in law than is the case for simple administrative bodies, which are not necessarily particularly legally qualified and are certainly not judicial bodies.
I would be wary of the attempt to compare matters that are not alike by saying that there is a 50% success rate on non-immigration judicial reviews. I must say I would be very surprised at the basis of that statistic, but if it is the case, then—[Inaudible.] The point is that you are stopping those 5% of cases ever being rectified, and that is not a situation that I think Parliament should properly be allowing.
The Chair
Last point, Caroline, because there are other questions. Actually, Michael just wants to come in on your previous question, before you make your final point.
Michael Clancy: I agree with what Aidan O’Neill has said. Of course, in Scotland it is a different question in some respects, because as far as I recollect from the IRAL report, there were no statistics about the situation of judicial review in Scotland. The scale of things like that in Scotland is quite different, and one might expect only 100 judicial reviews to get to the Court of Session in any one year. The proportionality arguments about the use of judicial time and the expense are of a different order and would need to be separately vouched, I would say, before the same kind of decision taken in relation to Cart would be taken in relation to Eba-type cases.
Let us remind ourselves exactly why we have judicial review, which perhaps creates a tension between what one might describe as ministerial legality or quango legality judicial reviews and other types. Lady Hale said in Cart that
“the scope of judicial review is an artefact of the common law whose object is to maintain the rule of law—that is to ensure that, within the bounds of practical possibility, decisions are taken in accordance with the law, and in particular the law which Parliament has enacted, and not otherwise.”
I think that that grounds us on the basis for having a law of judicial review, and it is something that we should not depart from without very serious consideration indeed.
The Chair
Unless you have a really pressing question, Caroline, I would like to move on to the next speaker, because you have taken quite a bit of time.
Dr Johnson
Q
The Chair
Who wants to take that?
Aidan O'Neill: I do not understand the question. How does the judiciary make sure that—
Dr Johnson
Some people say that 0.2% of the judgments are incorrect, and some people say 5%.
Aidan O'Neill: Nobody is saying 0.2% reputably. I do not think one can take that on board. The IRAL report even accepts that its figure was wrong, so do not even start on that. You start with the claims made subsequently when this Bill was introduced, which were that the figure was at least 3%. That massive change was made in response to work done by academics such as Joe Tomlinson. Let us not start from 0.2%; let us use the better evidence we have heard so far, which is at least, or around, 5%. Ask me the question on that basis.
Janet Daby
Q
“Online pleas compromise open justice principles by removing the opportunity for the plea hearing to be witnessed/observed.”
What is your view on that?
Michael Clancy: I am not entirely sure that I can comment competently on what is happening in the jurisdiction of England and Wales. It is certainly the case that there have been trials in Scotland of not only online pleas, but online trials with juries distanced from the courtroom. I do not know whether Aidan O’Neill would have more practical experience. The situations in the two jurisdictions are quite different, and my latest information is that we have almost reached pre-covid levels of conduct of trials in Scotland, which may have an element of online activity.
Of course, there are distance issues with some courts in Scotland. I remember one solicitor describing the fact that being able to conduct trials or provide pleas to court from Inverness in three courts in rural areas over the online system was actually quite a boon. I do not know whether that goes so far as to answer your question, but it is an observation that I can make from the Scottish jurisdiction.
Janet Daby
Would anybody else like to respond?
Aidan O’Neill: Echoing what Michael Clancy has said, I would just say that, at least anecdotally in terms of the situation in Scotland, full criminal trials, rather than simply online pleas, seem to have been working quite well. In fact, in terms of satisfaction levels, jurors seem to quite like the idea of turning up at a cinema, rather than at a court, and being more comfortably seated and better looked after while still being able to see and, apparently, participate in the criminal trial that is taking place elsewhere.
That is not answering the detail of your question, which I think was more directed towards the idea of things going online meaning less public participation. I would have thought that that was really a matter depending on the software or program used to allow for greater observation by the public online. On some levels, it is easier for the public to participate when cases and trials are online, precisely because they do not have to go all the way into court—the physical location—to watch it. I am unsure whether that addresses what it was you were asking.
Janet Daby
Would you like to respond, Dr Tomlinson?
Dr Tomlinson: I have spent quite a lot of time looking at the online proceedings question in England and Wales, and there are lots of interconnecting challenges around the move to online hearings. I have not spent much time looking at the criminal context, but rather at the use of online proceedings in tribunals. The challenge there with open justice is that online proceedings can potentially enhance open justice in various ways, but also diminish it. There is a real need for clarification of strategy in terms of key things like open justice, but also other areas, such as digital exclusion, in the reforms that we are seeing.
Angela Crawley
Q
Michael Clancy: We do take the view that the provisions of clause 2 engage legislative consent, otherwise known as the Sewel convention, which would require the consent of the Scottish Parliament. The reason for that is a piece of law that is a bit complicated and a bit tricky. Nevertheless, you began by identifying that judicial review of administrative action is part of the definition of Scottish private law, which is contained, as you say, in section 126(4) of the Scotland Act 1998. That is a significant element in terms of recognising that it is a devolved matter exclusively; it is not split between the reserved areas of law and the devolved ones.
I freely recognise that the Government have taken steps in terms of new clause 11A(5) of the Tribunals, Courts and Enforcement Act 2007, which states:
“Subsections (2) and (3) do not apply so far as provision giving the First-tier Tribunal jurisdiction to make the first-instance decision could…be made by…an Act of the Scottish Parliament, or…an Act of the Northern Ireland Assembly passed without the consent of the Secretary of State.”
However, while the Scottish Parliament does not have the power to modify the law relating to reserved matters, paragraph 2 of schedule 4 to the Scotland Act makes provision that applies only to the rules of judicial review insofar as
“the rule in question is special to a reserved matter”.
Special to a reserved matter would of course be a rule that would relate to something like an immigration tribunal, employment tribunal or employment appeal tribunal. Those are the kind of tribunals that one would think about.
In the 2010 Supreme Court case of Martin v. Most, there was a decision that a general rule that applies to both a reserved and devolved matter is not special to a reserved matter. Therefore, our conclusion is that if we follow the rule in Martin v. Most we get to the position where the decision in Eba—in fact, all judicial review matters under Scots private law—engage the Sewel convention and would therefore require the consent of the Scottish Parliament to be complied with, because of course it is declared in section 28 of the Scotland Act that
“the Parliament of the United Kingdom will not normally legislate with regard to devolved matters without the consent of the Scottish Parliament.”
Of course, section 28 provides that the UK Parliament can always legislate for Scotland. That is not in dispute. It is whether the Sewel convention is engaged. I hope that that answers your question.
Angela Crawley
It did, thank you very much.
Aidan O'Neill: Can I just add to that very briefly?
The Chair
Very quickly, as we are running short of time and we have a number of questions to come.
Aidan O'Neill: Absolutely. I think the Sewel convention is engaged because, apart from anything else, the reform proposed in the Bill would also require an amendment of section 27B(3) of the Court of Session Act 1988, because that embodies the Cart/Eba test, and that is a statute falling within devolved competence. At the moment, I do not see that the Bill attempts to amend that Act, and I think it needs to do so if it is to apply properly in Scotland. That makes it plain that it is a Sewel convention issue.
Sir John Hayes
Q
“Ultimately, law cannot guarantee individual liberties or good governance unless it is supported by a culture of responsible politics”.
He went on to say:
“The risk of too much intervention by the law in politics is that it can undermine the culture on which law itself depends for its effectiveness in relation to other matters…Responsible politics requires incentives to listen to other points of view and to conduct civilised debate to convince others. None of that is necessary if the authority of the law can be enlisted to force the views of one side on the other.”
Inasmuch as this Bill goes some way to redress the balance between that authority and the democratic will of Parliament, is it a helpful and useful step? In what ways might it go further in redressing that imbalance?
Aidan O'Neill: I am happy to speak briefly on that. There is not an imbalance. We are all subject to the rule of law—Parliament as much as the Executive and the courts—and it does involve a mutuality of respect. There is absolutely no doubt about that, but the Parliament has to respect the basic fundamental rights and the procedures by which those have been maintained over centuries in this country without a revolution. It is all a matter of that maintenance of a mutuality of respect, and I have seen absolutely no evidence to suggest in any way that there has been any breach by the courts of those basic fundamental principles in which all three organs of government—courts, Parliament and the legislatures generally, and the Executives of the Union—seek to respect the rule of law and fundamental rights, and the procedures that allow those to be vindicated.
Sir John Hayes
Q
Aidan O'Neill: I am not sure whether it is the general view. I am certainly speaking from my own experience, having been involved in a number of cases of some import over the past 30 years of my practice. But I am also echoing the views set out in the formal response to the IRAL consultation by the Faculty of Advocates, which generally said that one thing that one ought to avoid in any discussions of the constitution is the notion of absolutism and of the zero-sum game—that if courts say something, that means that somehow the rest of us are—[Inaudible.]
We all benefit from the dialogue that goes on and the maintenance of a balance of powers. Frankly, I would not accept any suggestion that the courts have in any sense in recent years or earlier overstepped the boundaries of their stating what the law is, and the obligations that fall upon all of us to respect it, whichever position we are in. “Be ye never so high, the law is above you”, and that applies of course to lawyers and the courts as well, but it does involve this mutuality of respect, so I am sorry, I am afraid that when one looks at the evidence, there is absolutely no basis for declaring that the courts in recent years or earlier are overstepping any mark.
Andy Slaughter
Q
Secondly, we have heard—particularly this afternoon—about the effect on individual litigants, and that some of the provisions may be a discouragement, whether in mounting a case in the first place or in obtaining a remedy. What is your view on that?
Dr Tomlinson: I have concerns about both provisions. I will summarise my view in headline form.
In relation to clause 1, I would first like to clarify that I do not think it reflects what IRAL proposed; it goes further that what IRAL proposed. The risk with the changes to remedies is that they will leave some individuals without a remedy in their particular case—for instance, where a remedy is prospective only. There will also be a potential chilling effect on claimants. Why would you bring a case if there were a chance that your remedy is not going to apply to you? Why would you take the various risks involved? It is okay, in an academic sense, to separate out the issues of remedies and say, “They come at the end of the case,” but the practical reality is that claimants consider what will potentially come out of a case at the end, so remedies are relevant to that initial analysis on whether to bring a case in the first place.
Clause 1 also potentially puts judges in a position of having more power, in terms of remedies, than they have currently. Given the points that have been made today and in discussion with this panel, I am not quite sure that the way that will operate in practice is what is intended. I think clause 1 will leave some significant uncertainty that might also generate further litigation.
I have already spoken about clause 2, but very briefly, there are two really important points. One is the point of principle: does Parliament want to enact an ouster clause and is that a thing that Parliament should be doing? The second key point is the use of judicial resources: is Cart judicial review a proportionate use of judicial resources? The really basic calculation, to my mind, is that you have a roughly one-in-20 success rate. The cost of those cases is around £364,000 a year according to the MOJ’s figures—not a great deal of money. As I said earlier, the success rate is potentially higher than that.
The financial figures produced by the Ministry of Justice are, I think, a little bit too high in various respects—they include, for instance, the cost of cases won by claimants. Overall, I think there is a question there: is that cost worth it, given the kinds of errors that this Cart system protects against? There can be reasonable disagreements about that. My view would be that the cost of the jurisdiction is worth it because of the errors that it protects against—you have heard case studies of the impacts of those errors today. Those are my concerns in relation to clauses 1 and 2.
The Chair
Michael, do you want to come in? I know you tried to get on the previous question—I do apologise. If you can, please keep it very short. We only have seven or eight minutes left, and two Government Members want to come in.
Michael Clancy: Thank you, Chair. On clause 1, we were delighted that the Government decided to adopt a remedy that was in section 102 of the Scotland Act, allowing for the suspension of an order to give the parties time to fix the problem.
On clause 2, I made reference to the case of CM (Petitioner) in my written evidence to the Committee. It comes to the conclusion that the first tier, upper tier and the Lord Ordinary in the Court of Session may have misunderstood the claimant’s evidence in CM, and that a remedy for that is an extraordinarily well-placed provision for access to justice.
Turning to the last question prior to this one, I align myself with much of what Aidan O’Neill said. His quotation of Lord Denning—that no matter how mighty you are, the law is above you—is very apposite. I am not a politician and I am not going to get involved in a political debate, but it may be the case that the transformation of our legal system from one of a distribution of powers between Parliament, the judiciary and the executive into one where there is much more separation has given voice to some of the concerns. However, we are still in the early days of having that more strict separation of powers, and at some point in the future, when there is a change of Government, I think views might be quite different.
The Chair
Marco Longhi, followed by the Minister. You have five minutes, so a very quick question from yourself, Marco.
Marco Longhi
Q
The Chair
Just one of the panellists. Who wants to take it? They do not look willing. Are you directing it at anybody in particular?
Marco Longhi
Dr Tomlinson.
Dr Tomlinson: I would point out that Cart judicial reviews are not just immigration cases. While the caseload is made up mostly of immigration matters, they are not necessarily all immigration cases. My view would be that there are lots of different appeal routes and mechanisms across the justice system and in different areas of the justice system. As I said earlier, there can be reason for disagreement about that, but in my view the Supreme Court in Cart got the question right, and I think its reasoning was correct that the procedure that is potentially open to review in a Cart judicial review is one where there needed to be a limited—I stress limited because the Supreme Court made it limited—scope for review, and that has proven to be a relatively successful and cheap way of picking up important errors that affect people’s lives.
James Cartlidge
Q
The Chair
You have a minute and a half to answer.
Aidan O'Neill: My experience—paradoxically much to my surprise—has been remarkably positive: that remote courts have worked. In the area that I am primarily involved in, which is public law but also employment cases involving witnesses and the like, there has been greater efficiency, so long as there is the proper ability for people to watch as part of access to justice. From a user perspective and from my experience, there are certainly positive benefits to it, but as Joe Tomlinson said, one must be aware of the potential negativity involved in terms of digital access and the like. However, open justice is an absolutely central point, and now that we have courts that are available online, just as the Supreme Court has been, I see that as a positive development.
The Chair
Thank you very much; that is spot on. I thank the witnesses for attending today’s meeting. We have greatly appreciated your contributions and I thank you on behalf of the Committee as a whole.
Ordered, That further consideration be now adjourned.—(Scott Mann.)
Subsidy Control Bill (Fifth sitting)
(3 years ago)
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The Committee divided: - Ayes: 7 / Noes: 9 - Question accordingly negatived.
The Chair
We now continue the line-by-line consideration of the Bill. The selection list for today’s sitting is available in the room. It shows how the amendments have been grouped together for debate. Amendments grouped together are generally on the same or a similar issue.
Clause 32
Subsidy database
Seema Malhotra (Feltham and Heston) (Lab/Co-op)
I beg to move amendment 34 in clause 32, page 17, line 10, at end insert—
“(c) the subsidy database is subject to routine audit to verify the accuracy and completeness of entries.”
This amendment requires the Secretary of State to ensure that the database is subject to routine audit.
The Chair
With this it will be convenient to take amendment 39 in clause 33, page 17, line 27, at end insert—
“(3A) A public authority must ensure that all entries made under this section are accurate and complete”.
This amendment would require public authorities to ensure that all entries on the subsidy database are accurate and complete.
Seema Malhotra
It is a pleasure to serve under your chairship, Mr Sharma, and to debate amendments 34 and 39.
The clause provides that the
“the Secretary of State must make arrangements for the provision of a database of subsidies and subsidy schemes for the purposes”
of transparency as required by the trade and co-operation agreement—the TCA. The database must be accessible to the public free of charge, and public authorities who are obliged to upload details of subsidies or schemes should be enabled to do so. The Secretary of State may direct the Competition and Markets Authority to take on responsibilities for maintaining the database in the future.
Clause 32 mandates the Secretary of State to arrange for the database to be set up, and we support the creation of the database. We recognise that it is vital for there to be transparency over subsidies in the new regime. However, we are again concerned that key details are missing from the Bill. In order for it to function effectively, the legislation should require public authorities to make sure that their entries on to the database are accurate and complete. This is particularly important given that interested parties will use information on the database to assess whether subsidies meet the subsidy control principles and, if not, whether they should be challenged before the Competition Appeal Tribunal. Surprisingly, the Bill does not contain any obligations on local authorities or public authorities to make accurate and complete declarations. I hope the Minister will agree that that is a gap in the legislation and is one that we need to see addressed.
To resolve the problem, Labour has proposed amendment 39, which would establish an explicit duty on public authorities to ensure that their entries on the database are accurate and complete. That is the least we should expect, but I am afraid that the evidence suggests that not all entries entered even over the past 11 months have been accurate or complete. In many cases, they have not been either.
Secondly, the Bill does not place the database under any order or control mechanism. Whose responsibility is it to verify that the information on the database is accurate and complete? Again, given that the information entered on the database is crucial for effective transparency of the regime, does the Minister not agree that this is a significant gap? If the database does not have any regular audit function and if inaccurate or incomplete information entered on to it is not checked, this poor information may lead to misguided legal challenges or, indeed, to harmful subsidies failing to be addressed. The other consequence is that it reduces overall confidence in the database and the information in it. Over time, that would undermine the regime.
In the evidence given on Tuesday 26 October, Alexander Rose of DWF said that since 11 pm on 31 December 2020 only 501 subsidies had been entered on the database. He highlighted that
“of those 501, some 257 are recorded as having a zero or nil value. —[Official Report, Subsidy Control Bill Public Bill Committee, 26 October 2021; c. 52, Q73.]
He gave some frankly shocking examples of schemes that had not been accurately reported. He also questioned the database’s completeness and said that there was no way that only 501 subsidies had been awarded since the entries began.
The Minister may also remember the example of the Tees Valley Capital Grant Scheme. It was listed as having been posted on the website on 1 April 2020, but the website did not even exist on 1 April 2020. Given how vital subsidy entries will be to ensuring that subsidies meet the principles, it is clear that such complacency cannot be allowed to govern the new database under this regime. We need to get it right from the start. Expectations therefore need to be clear and they need to be defined in law. Let us remind ourselves that this is public money. Faith in the system requires good-quality information that is accurately reported, and we need to ensure that there will be a value for money check on the subsidies being proposed.
As the current database is clearly not working for those purposes, it is vital to address that point. Part of this may be about the design of the website for data entry itself, but the expectations of Parliament need to be clear on public authorities. It should be understood that there will then be real consequences if the database contains inaccurate information. We cannot control that if it is deliberate, but we need to put the safeguards in place so that the subsidies are used as intended.
Amendment 34 would ensure that the database was subject to routine auditing. We are open to discussions with the Government and stakeholders on which body is best placed to conduct such an audit. However, we believe that ultimately the responsibility lies with the Secretary of State to ensure that the database contains accurate information and is fit for purpose. I hope that the Government recognise the importance of both amendments in ensuring that the new regime is effective and transparent.
Kirsty Blackman (Aberdeen North) (SNP)
It is nice to be here again, Mr Sharma. Thank you for chairing the Committee.
This is an important part of the Bill. It is vital that the database is as full as possible and that people can find the information that they need. The points that were made in the evidence sessions about searching through the database were also incredibly important. There need to be search terms that people can use so that they can look through the database to find the information that they need. The regime will work only if people can find subsidies that are relevant. Improvements to the search function need to be among the other improvements.
I got the Library to put together some figures. As of 26 October, there were 501 subsidies on the database, but 245 of them—nearly half—did not have an amount specified. I know that this is a precursor system and it is not yet fit, but that shows how important it is that we have a framework and the details in place so that public authorities know what information they need to provide and that anyone wanting to challenge the information is able to find that information on the site. So 245 entries did not specify an amount, but about £1.6 billion is currently registered on the database. In addition, 138 entries did not specify where they are from—whether that is England, Scotland, Wales or Northern Ireland—but given the way challenges are likely to work, and given principle F in schedule 1 about competition within the United Kingdom, it is incredibly important that the entries make it clear where they are from and where the subsidy has been given. The principles include a requirement that a subsidy does not affect competition between the regions. It is therefore important that that is one of the criteria that the Secretary of State specifies.
The links on the database are an absolute nightmare. If we go to any of the subsidies, it says, “Click here for more information”. Some of the links take us just to gov.uk, but other links take us to a local authority landing page. That is not right. It does not give us the details of the scheme. It would be more helpful if people were required to upload the details on to the website for the database rather than having the freedom to upload the details on to their own website. They could put them on their website and then take them down the next day. Even if there were a checking process when the information first went up, they could immediately remove it. Having the backroom systems in place so that there is enough space and server capacity on the website to store all the information would be incredibly helpful and probably provide better transparency.
I just want to pull out a couple of further things from the statistics that the Library provided. Of the subsidies recorded on the database that specify the region they are from, 30% are from England. I refuse to believe that only 30% of the subsidies that have been given in the UK since the system was started were in England. Some 21% were from Scotland, and I also refuse to believe that 21% of the subsidies that were given in the UK were given in Scotland. That just cannot be possible.
I completely agree with the amendments that have been proposed. I am not looking to argue with the Minister about the requirements set out and the strength of the database; I am just looking to ensure that the guidance that authorities have to abide by is very strong. I would rather there be too much information on the website than not enough to enable people to mount their challenges. We will come to this later, but there will be very little time for people to make a challenge. They should therefore not have to spend quite a while rummaging around trying to find the details that would enable them to make an informed challenge. I would be keen to hear the Minister make it clear that he intends a significant amount of information that is as accessible as possible to be on the website. People should be able to search the website and, if possible, a system should be in place to ensure that authorities that do not upload full information face a slap on the wrist. They should face some sort of sanction or negative consequence for failing to do their duty.
The Parliamentary Under-Secretary of State for Business, Energy and Industrial Strategy (Paul Scully)
It is a pleasure to serve under your chairmanship, Mr Sharma.
Clause 32 sets out the obligation for the Secretary of State to provide a database for subsidies and subsidy schemes, so that public authorities can adhere to the transparency requirements set out in the Bill, including those in clause 33. We have discussed the operational subsidy database. That was put in place to ensure the UK would be able to meet its international subsidy reporting obligations from 1 January 2021. It will continue to be adapted over the coming months to ensure it is fit for purpose for the future subsidy control regime.
The Government are committed to digital best practice in the monitoring and development of this database and all the databases that we oversee. The database uses the service standard specified by the Government Digital Service. The contract we have with our supplier is flexible—both to implement this Bill and to ensure that we can make improvements as we monitor and evaluate how it is being used.
Seema Malhotra
Will the Minister clarify his comments on digital standards? There are two key issues here. One is the content and the functional design of the database. The other is the technical design and the ease of use of its search facilities and so on. Will he comment on the quality of what can be searched for and on the duty to include accurate information on the database? Will he say a little more about how he sees them being delivered?
Paul Scully
: I will try in my remarks to develop some of the issues with public authorities and their statutory duties.
We have made minor improvements since the database came online in March and we will make changes in the coming months. We will reflect on what has been said in the Committee and throughout the Bill’s passage and by stakeholders and public authorities.
Amendment 39, tabled by the hon. Member for Feltham and Heston, and amendment 34, tabled by the hon. Member for Aberdeen North, focus on ensuring the accuracy of the information that is available on the database.
Amendment 39 would require public authorities to ensure that their database entries are accurate and complete. Amendment 34 would create a new obligation on the Secretary of State to subject the database to routine audit to ensure that entries on the database were accurate and complete. Although I agree wholeheartedly that it is important that the information on the database is correct and complete, the amendments are unnecessary for several reasons.
First, the obligations on public authorities set out in clause 33 are clear. If an authority uploaded data that was inaccurate or incomplete, its statutory obligations simply would not have been discharged properly. Amendment 39 is therefore superfluous.
The incentives faced by public authorities also mean that there is no need for amendment 34. If the public authority does not properly fulfil its obligation to upload the required information, the clock for the end of the limitation period does not start, so the subsidy or scheme could be challenged indefinitely. This gives public authorities an in-built incentive to ensure that the information that they upload is timely, complete and accurate.
Kirsty Blackman
Who decides whether the information is complete and that the clock has started, or does that happen only in the event of a challenge? How does somebody who is challenging know that, even though they are outside a month, it does not matter because the clock has not started?
Paul Scully
Effectively, it is for the challenge. It is a loose framework. It is not like the state aid regime, where permission has to be sought and waited for before going ahead with a subsidy. It looks back at the subsidies and schemes that have been made. I shall return to the database and the issues raised about its integrity and accuracy, which I hope will illustrate some of the points.
Seema Malhotra
The Minister has stated, in effect, that public authorities that do not protect information might not be in line with their statutory responsibilities. I am not clear where, in the Bill as drafted, there is a requirement on public authorities to ensure that all entries that they place on the database are accurate and complete. It is fine to say that a public authority must ensure that an entry that it makes must be maintained on the subsidy database for six years, beginning on the date the entry is made, but where is the requirement for the information to be accurate and complete?
Paul Scully
It is as with every statutory duty placed on a public authority. The Bill contains a statutory obligation on public authorities to upload subsidies on the transparency database—in most cases, within six months. With any breach of statutory duty—whether it is on the face of the Bill or otherwise—a public authority can be challenged in judicial review in the courts. That is why I say that the amendment is superfluous: the net effect is exactly the same.
Members referred to the Teesside scheme. The reason the database was not live on 1 April 2020 was that that was the date when the scheme was set up rather than when the subsidy was paid. Subsidies that are not part of the scheme are dealt with differently.
Seema Malhotra
I am finding the logic of what the Minister is proposing quite difficult to follow. With the requirement for completeness and accuracy, we could prevent a lot of wasted time and money, possibly on the part of public authorities or enterprises that may consider a challenge on the basis that information was incomplete, where a public authority may decide not to put information on the database completely. It is important, given the functions in the Bill and the powers to be exercised, that we have as accurate and complete information as possible. There is no point in saying that judicial review or a pre-action protocol may be used later to correct information that was not provided earlier. That strikes me as building huge inefficiency into a system that could be more efficient and more accurate and could better achieve the Government’s intended outcomes. The Minister has not answered where the duty is on a public authority to ensure that its entries are accurate and complete. It is not here in writing.
I want to clarify a point that the Minister made about the Tees Valley Capital Grant Scheme. The scheme might have started on a particular date, but if the date listed on the database is eight months prior to the database existing, that is not accurate. It can be listed, but it should also be possible to say when a scheme might have started. There are different parts to the information, so ensuring its accuracy is important. Other parts of the Bill hinge on the date when something is listed, so that cannot be inaccurate—it would have a knock-on effect on the actions that can be taken and the powers that people have.
Paul Scully
The scheme that we are referring to was created under the state aid rules—under an entirely different regime when we were still a member of the framework. It is additional information rather than subsidy control—specifically, UK subsidy control. Payments are still being awarded, despite the fact that it was an EU state aid scheme in the first place.
On the public authority duty, we are looking at similar aims. I used the word “superfluous” because public authorities clearly have a statutory duty and a requirement to carry out statutory duties. If we put something on the face of the Bill, the net result will be the same. How do you challenge someone who does not want to adhere to their statutory duties? You judicially review them.
That is why the Bill does not provide for any sanction for the failure to upload a subsidy. There is a strong incentive to do so, because the sooner the subsidy scheme or stand-alone subsidy is uploaded, the sooner the limitation period for digital review under the cap will expire. The Bill sets out the statutory obligation on public authorities to upload subsidies on to the transparency database, in most cases within six months.
Any breach of a public authority’s statutory duty can be challenged by judicial review, which is why the amendments are, although worthy in their aims, superfluous to the requirements of the Bill. I therefore ask that amendment 34 be withdrawn.
Seema Malhotra
I have listened to the Minister. Our difficulty is that the amendments seem to be fundamental to the integrity of the whole regime.
The Minister alluded to obligations on local authorities. I cannot see any in writing. I shall not press amendment 39, as I would like further to explore whether there are, by proxy, obligations on which we can look to draw. If not, I would like to bring this back at a later stage.
The requirement for a routine audit to verify the accuracy and completeness—a duty of the Secretary of State under clause 32—is fundamental. That gap is not filled elsewhere and we should like to press the issue today.
Question put, That the amendment be made:
Paul Scully
The clause requires the provision of the subsidy database to ensure that the subsidy control regime is transparent and facilitates compliance with our international commitments. It must be available to the public free of charge. Public authorities will be able to upload certain subsidies to the database to meet their obligations under clause 33. The Secretary of State is clearly responsible for providing the subsidy database, and if appropriate the Secretary of State may direct the Competition and Markets Authority to carry out this function on his or her behalf.
I should clarify that the five-year reporting cycle that we discussed earlier was chosen to correspond roughly with a standard parliamentary term and, for consistency, with the monitoring reports of other bodies, such as the Office for the Internal Market. There might be circumstances when reporting within a shorter time period is desirable, such as in the early stages of the new regime, enabling the Secretary of State to assess how well it is bedding in.
The database is a key part of the new subsidy control regime, enabling the public and interested parties to see which subsidies have been awarded and to whom.
Seema Malhotra
I thank the Minister for his remarks. I have made a number of comments on clause 32. He will appreciate why we feel that there are areas to address, but fundamentally we think that the clause is important.
The principle of the database being accessible to the public free of charge is important, but I reiterate the points made by the hon. Member for Aberdeen North about searchability. Useability is an additional consideration alongside accessibility, and it should be referred to in further regulations or guidance.
I understand that when the Secretary of State directs the CMA to perform duties on his or her behalf, the powers go to the CMA as a whole. It might be assumed, however, that the subsidy advice unit in the CMA will take on those duties, so will the Minister clarify whether he expects that to be done by the unit or another team in the CMA?
Paul Scully
I thank the hon. Lady. We agree on useability. We will look at making the changes to the database, not least because of the Committee’s reflections and those in further parliamentary stages, but also because of the real-time conversations with people using the database—not only people putting data on, but people wanting to read it.
The subsidy advice unit in the CMA will be responsible for the use of the database and delegation. Expertise may be brought in, but it will be for the subsidy advice unit to work on the database on behalf of the Secretary of State.
Question put and agreed to.
Clause 32 accordingly ordered to stand part of the Bill.
Clause 33
Duty to include information in the subsidy database
Seema Malhotra
I beg to move amendment 35, page 17, line 18, leave out subsection (2).
This amendment requires all subsidies to be entered onto the subsidy database.
The Chair
With this it will be convenient to discuss the following:
Amendment 32, page 17, line 21, leave out “£500,000” and insert “£100,000”.
This amendment reduces the threshold for subsidies granted under subsidy schemes to be registered in the database.
Amendment 33, page 19, line 17, after “requirements” insert “with the exception of duties under section 33,”.
This amendment requires that Minimum financial assistance under £315,000 is subject to the subsidy database requirements in clause 33, despite being exempt from the other control requirements in Part 2.
Seema Malhotra
The clause details the specific obligations of a public authority in uploading subsidies and subsidy schemes on to the subsidy database, as it stands in the Bill. It is right that a public authority must ensure that an entry is made in respect of any subsidy scheme unless any agreed relevant exemption applies. The clause also states that a subsidy or scheme must be uploaded within six months of the confirmation of the decision to grant or make a subsidy or scheme, except for tax measures which must be uploaded within one year. Subsection (2) exempts a subsidy from the requirement to be uploaded when the individual award is less than £500,000.
As I said on Second Reading, Labour welcomes the subsidy regime, which will enable subsidies to be granted more speedily while requiring stronger checks to be in place. The Bill presents us with an opportunity to create a more responsive subsidy regime but, as we move away from the EU system of pre-notification, it is vital to ensure that the new regime, which grants subsidies first and then allows them to be challenged after, has appropriate mechanisms for oversight and transparency.
Clause 33, which outlines the obligations that public authorities have in respect of the subsidy database, demonstrates how the Bill seems to fail to provide the checks that we need for subsidies under the new regime. As the Bill stands, subsidies made under a scheme that are worth less than £500,000 do not have to be entered on to the database. I would like to understand the Minister’s justification for that and how the figure of £500,000 was decided on. Amendment 35 would leave out subsection (2) so that there is a requirement to be transparent.
The provision in the Bill is staggering. The sum of £500,000 is significant and could be given multiple times under a scheme without that being transparent. How are we then able to challenge what is being done and, as an interested party, make the possible case against? Does the Minister not agree with Professor Rickard, who said in our evidence sitting last week:
“Through transparency, we can get better compliance and better value for money”?––[Official Report, Subsidy Control Public Bill Committee, 26 October 2021; c. 23, Q25.]
I am sure the Minister will agree that we always want to see value for money and that we can help to ensure that the subsidies that are being granted meet the goals that we are setting out to achieve.
I am sure the Minister will also agree that subsidies worth £500,000 or less can have a significant effect on the market. They can distort competition. As such, public authorities should be obliged to enter them on to the database to ensure that their aims and the subsidies can be fairly scrutinised. That is why Labour is proposing amendment 35, which would stipulate that all subsidies should be entered on to the database. We have not suggested setting a minimum threshold for publication; there are proposals on that from the hon. Member for Aberdeen North.
In the system of appeal rather than pre-notification, comprehensive transparency is vital. With the right system, entering subsidies on to the database need not be cumbersome or complicated for public authorities. It can be a straightforward task that is well worth completing for the transparency it provides in the context of every subsidy. We can search the database for the amounts that we might want to scrutinise, but every subsidy should be on the database. That is our starting point.
Amendment 35 would mandate that subsidies given under a scheme are individually also quoted under the scheme’s entry. There will be an amount associated with that subsidy under the scheme; there is no reason why that amount should not be able to be entered and should not be required to be entered.
The amendment would ensure full transparency of all subsidies under the regime and that interested parties had the relevant information needed to scrutinise any subsidy, whether given alone or under a scheme.
Kirsty Blackman
I will speak to not only amendment 35, but amendments 32 and 33. I want to address the logic behind the amendments. It is impossible to overstate the importance of the transparency database. It is the key place—the only place—where organisations and local authorities will be able to find information about the subsidies being granted. I imagine that a lot of organisations will be poring over the information on a fairly regular basis to work out whether the subsidies made meet the principles put forward by the Government. It is absolutely, desperately important that we get this right, and I am keen for us to do that from the beginning as far as possible, rather than having to make changes to the legislation afterwards.
I am concerned by what the Minister said earlier about the timing of pre-action information requests; it feels to me that organisations will just make those requests all over the place, no matter when the subsidy was actually registered. If there is no requirement to have full information on the subsidy database and there is no sanction for public authorities that do not do that, people may as well try their hand with the pre-action information request. This encourages the action process to happen, rather than providing people with the information in the first place so that they know that they do not need to make the request.
The logic behind amendment 32 is that subsidy schemes should be easier to implement than subsidies. It should be easier for public authorities to give them out: presumably, the schemes will have been agreed. They will be set up in a certain way, so the process of giving awards under them should be easier—that is literally the point of having subsidy schemes.
I turn to the logic of changing the figure from £500,000 to £100,000 and keeping a floor. If something under £100,000 has been approved as part of a scheme, it is probably going to be not that bad—it will probably be fine. But £500,000 is far too high, which is why we suggest £100,000. As was said in the evidence sessions, the figures are arbitrary—the figures are always arbitrary no matter which one is chosen. However, that was the logic behind having a differential system in place between subsidy schemes and subsidies on the subsidy database.
I like Labour’s amendment 35 and get where they are coming from, but I am more comfortable than them with the more streamlined process of the subsidy scheme.
I move on to our amendment 33, on minimal financial assistance. It would actually amend a future clause—clause 36 —but it makes sense to debate it at this point, as it is specifically on the amount that needs to be provided on the database. My suggestion is that all subsidies not made under a scheme should be part of the database. I am not suggesting that they should have to meet the other minimal financial assistance requirements, but I am suggesting that—this was pretty clear from our evidence sessions on Tuesday—all the subsidies not made under schemes should be registered on that database. They would not necessarily have to jump through the other hoops, but all the public authorities that we are dealing with will have done a huge amount of due diligence before giving a subsidy of any sort. They will have the information and it would not cost them much in the way of time to ensure that it is uploaded. That would increase drastically the amount of transparency and our oversight. As drafted, we will not know whether the system is working, because we will not have access to transparency data on any subsidies under £315,000 or any made in a scheme under £500,000. That is not good enough.
A new system is being set up and the Government have been clear that it is a free-market and permissive system, but neither I nor anyone else will know whether it works if we are not able to see the data and whether public authorities are making far fewer—or far more—subsidies than expected under the scheme. We will be unable to assess the adequacy of the system unless the Minister is willing to make changes to the thresholds for schemes and for general subsidies. Once again, I am not suggesting that we put other duties in place for minimal financial assistance or a requirement that other hoops have to be jumped through; I am suggesting that details are uploaded to the database so that we may scrutinise the data.
Paul Scully
There has been a great deal of interest in the thresholds at which the transparency obligations apply, so I will explain some of the detail and logic of those thresholds. Transparency is an important part of the subsidy control regime and key to the enforcement provisions.
As we have heard, interested parties must be able to see subsidies in order to determine whether they may be affected and whether they wish to challenge the subsidy award or subsidy scheme. Any challenge will be made in the Competition Appeal Tribunal through that judicial review. The database is a vital tool in that. To serve its purpose, the aim of the database should always be to enable interested parties to see the subsidies that they may wish to challenge. It is not designed to be a general database of public authority spending; other tools are already available elsewhere for greater financial transparency in that regard and are not limited to subsidies. The transparency requirements in the Bill have therefore been designed to focus solely on those subsidies and schemes that can be challenged on subsidy control grounds.
The Bill provides for various reasons why a subsidy or scheme cannot be challenged on subsidy control grounds, such as a subsidy award given under a published scheme not being able to be judicially reviewed in the CAT on subsidy control grounds. That is because the scheme itself is assessed against the subsidy control principles and is challengeable, rather than the award under the scheme. Another example is minimal financial assistance subsidies, which are considered too small to cause undue distortions. They therefore do not have to adhere to the subsidy control principles and other requirements. Those subsidies do not need to be on the subsidy control database.
The transparency of subsidy awards has costs as well as benefits. Providing the data would create an administrative burden for public authorities, including small local authorities, in addition to the imposed costs for those using the database if excessive, irrelevant or potentially poor-quality data is provided that interested parties have to sift through. Another thing about the impact on public authorities is the cumulative impact. We find that transparency requirements in general tend to fall on a small number of people in local authorities and other public bodies. That is why there is a relatively high bar or threshold—because of that cumulative burden on a few people in local authorities.
Stephen Kinnock (Aberavon) (Lab)
Does the Minister not agree that, with public trust in politics and Government at an all-time low, the more transparency that we can have in the system, the better it will be to build trust in the new subsidy control regime? Does he not recognise the serious risk of cronyism and that sunlight is the best disinfectant? Therefore, let us have the maximum transparency, and let us drop this clause from the Bill, as requested by my hon. Friend the Member for Feltham and Heston in her amendment.
Paul Scully
I do believe in transparency, that sunlight is the best disinfectant, and in the importance of this database being as accessible as possible. As I will come on to say, the starting point of many of the thresholds and the amounts that we have been adhering to for many years lie in EU state aid rules. They also reflect the consultation responses that we have received from all parties, which I will come back to. We need to ensure that the benefits of any approach to our database and transparency outweigh the costs, and I believe that the Bill strikes the right balance.
Seema Malhotra
Could the Minister define what he means by the costs of information on the database? Surely, if all the information is available to a public authority that has gone through the process of making a decision about an award, uploading entries and so on should not be an onerous process. What does he see as the cost?
Paul Scully
As I say, it is the cumulative costs that, in many ways, were the starting point. As a matter of principle, we should not seek to add duplicative red tape for public authorities—particularly local authorities and other small authorities—without good cause. I will expand on that as I continue.
Seema Malhotra
Perhaps this is an opportunity for the Minister to design a database and an extremely straightforward way of entering information. It does not seem to me that this should be onerous at all. Of course we agree that we should not add red tape, but in the interests of the integrity of the system, of public money and of preventing cronyism and people getting around controls, surely this ought to be part of a public authority’s obligation to the public. Perhaps the Minister could come back on those specific points.
Paul Scully
First, on cronyism, the starting point for the thresholds—as I will come to in a minute—were based on EU state aid, which we have had for the best part of 40 years.
Seema Malhotra
I am sorry to make this point again to the Minister: the EU state aid regime was based on information being available to the public. The whole system was different. There was pre-notification, so by the time a subsidy was awarded, a transparent process had taken place. The proposed regime will not do that. The shift in the system means that safeguards are needed for public money and so that any future scandal does not cause a crisis in the regime. Does not the Minister realise that shifting the regime to a different position from that in the EU will have consequences?
Paul Scully
First, moving the subsidy control scheme from pre-notification and pre-approval will mean that the subsidies can actually get to those businesses and interests at the right time, rather than when it is too late or when they would have less of an effect. The hon. Member for Aberdeen North mentioned the pre-action information requests and transparency requirements. We have based this on the consultation responses from people who will be at the cutting edge of the system, and it is also in line with other international examples. We have looked at other examples around the world, which is why I probed our witnesses on what happens in other parts of the world. We have been looking at that with this scheme.
This system, as drafted in the Bill, does strike the right balance in ensuring that people can drill down into this scheme. On the pre-action information request process, if the database is not keeping up with the ever-changing world of subsidies, businesses, environmental impact and other areas relating to subsidies, there are safeguards to ensure that it is as transparent as possible.
Let me briefly deal with some of the thresholds and give a little more information. Public authorities must upload information about all stand-alone subsidies that exceed the minimal financial assistance threshold of £315,000 cumulated over three years, unless they are subject to a specific exemption. They must also upload information about all subsidy schemes.
The Bill provides for transparency of large awards given under schemes—those over £500,000. That was worked out roughly, allowing for currency differences, according to the EU amounts. Although these large awards cannot themselves be challenged in the CAT using the subsidy control requirements, they do provide important information about how the scheme is being used by the public authority, and their size means that the benefits outweigh the costs.
Seema Malhotra
Will the Minister clarify the maximum number of subsidies of, say, £450,000 that may be given under a subsidy scheme? How would anyone know about them?
Paul Scully
I shall come back to that, if I may. Let me deal first with consultation.
The Government’s proposed approach to transparency was set out in the consultation on subsidy control, including the proposal to exempt minimal financial assistance and subsidies given under schemes of less than £500,000. We asked whether respondents agreed with the proposed rules on transparency, and 81% agreed. We also asked specifically whether respondents agreed that minimal financial assistance subsidies should be exempt from transparency requirements, and 65% agreed that they should be exempt. Respondents pointed to the administrative burden as a reason for not lowering the thresholds. It is clear, therefore, that the approach taken in the Bill reflects the views of those who responded to the consultation.
There is no theoretical limit to the number of subsidies of any value that may be given under the specific scheme. None the less, it will be the scheme itself that will have to be applied under the principles of the subsidy control framework.
Amendment 32 would require all subsidy awards, given under published schemes, of £100,000 or more to be uploaded to the database, lowering the threshold from £500,000. Amendment 35 would remove this threshold altogether so that a subsidy of £1 given under a scheme would need to be uploaded on to the database.
The database will already include information about the scheme under which these subsidies are given. This information will be sufficient for others to understand whether their interests will be affected by any subsidy given under that scheme and whether they should seek to challenge the scheme itself. As such, and as I have said, the Bill does not provide for the possibility to challenge subsidies given under schemes.
Further, the Bill provides for an exemption from the transparency requirements for small subsidies given as minimal financial assistance, which is found in clause 36. Amendment 33 would remove this exemption. It would require information about all subsidies of any size to be uploaded to the database, except for those given under a scheme or subject to another exemption.
I believe that the costs entailed in all three amendments clearly outweigh the benefits.
Kirsty Blackman
Does the Minister feel that his rejection of amendment 33 renders the cumulative provisions of clause 36 unworkable? How will anyone know that somebody has received cumulative subsidies if there is no requirement for those subsidies to be registered anywhere? What is the point of those provisions if we are not going to be able to police them?
Paul Scully
The challenge will be to the scheme itself, not to the subsidies within it.
Kirsty Blackman
I was talking specifically about minimal financial assistance and the cumulative impact. An organisation cannot have more than £315,000 over a three-year period before it has to be registered, but if there is no requirement to register the 20 subsidies received —or 200,000—how is anyone ever going to know?
Paul Scully
A public authority awarding something that it believes will be a subsidy below that will have to publish a letter demonstrating that it is adhering to minimal financial assistance. That is therefore for businesses or the recipients of the subsidy to double-check. Although it is the public authorities that will be awarding the subsidies and they will be analysed by people checking the database, if I ran a business that was reliant on a subsidy, I would, to be frank, make sure of it. I would not want to leave it to the awarding authority to do all the paperwork. I would want to make sure that my business interests were looked after. So there is that risk of task duplication.
Kirsty Blackman
One more point: the duty is on the public authority to ensure that it is complying with the regime. It is the public authority’s duty to do that. The Minister made it clear earlier that the public authority has a statutory duty. However, the public authority is then having to rely on that organisation telling them that it has had a subsidy. The public authority will know that that will push the organisation over the £315,000, that it will not be eligible for minimal financial assistance and that it will have to be registered on the scheme. A duty has been placed on the public authority for something over which it has no control and because the Government refuse to put that on the subsidy database it will not be able to find out whether the law is being broken.
Paul Scully
All I will say is that if the public authority is issuing something that it believes to be a subsidy, albeit under MFA, it will publish a letter to explain to the recipient why that MFA exemption appears.
Kirsty Blackman
Who is going to get the letter? Just the business? Where does it say in the Bill that the public authority has to publish a letter when providing a subsidy? Let us say Aberdeen City Council gives a subsidy to somebody and Aberdeenshire Council gives a subsidy to that same business. How are they going to know that the other authority has done it when the only paper trail is a letter that Aberdeen City Council has given to the business?
Paul Scully
It is not published as such, but is sent to the recipient. That is in clause 37. I hope hon. Members agree that we have taken a proportionate, sensible and balanced approach here, first, to make sure that we can exempt small subsidies from the requirement to apply the principles of subsidy control, and secondly, to enable public authorities to assess the subsidy schemes against their principles, rather than duplicating the analysis for every individual subsidy awarded within those schemes. Publishing additional information about small subsidies would have limited value for those concerned about potentially distortive subsidies and would detract from the core purpose of the database. The requirements would lead to additional red tape for public authorities, well beyond the requirements they had to fulfil under the EU state aid regime. In a great many cases, the information would simply duplicate what those authorities already publish in appropriate formats elsewhere.
I do not doubt that, overall, both local and national Government need to make databases interoperable so they can talk to each other, data can be scraped from them and they can be read more easily alongside each other. However, I do not believe that that is for the Bill to address. The exemption from minimal financial assistance subsidies and the £500,000 threshold for subsidies given under schemes finds the right balance between the administrative burden of uploading subsidies and the transparency that the regime needs.
Seema Malhotra
I thank the Minister for his comments, but I must say that I do not feel that they have so far moved us forward in tackling the very serious issues that the debate has started to uncover. I also want to refer to his consultation as an illustration of how complex this is and how it requires further considered discussion, also in the light of the risks of things going wrong. A system works well when we plan for things to go wrong. When we do that, things will largely go better, because we have managed the risks and taken them seriously. As an example, page 45 of the consultation states:
“The consultation also asked for views on whether there should be a minimum threshold of £50,000 below which no subsidies have to be reported. 14% of respondents answered this question. Of those that responded, 64% agreed there should be a minimum threshold of £50,000.”
It goes on with differing views across differing areas. That comes back not just to how the regime will be used by those who use it in good faith but to where things can go wrong. We must ensure that there are measures, boundaries and transparency in place to prevent things going wrong and to protect the public purse. Value for money surely must be a consideration—more than it seems to be for the Government from the comments that we have heard so far. This requires a much more considered debate. We need to consider some of the evidence and the risks again.
Robin Millar (Aberconwy) (Con)
I think that it is important that we pay attention to those matters, so I am grateful for the discussion, which I am following with interest. However, I have some familiarity with grant schemes in local authorities. One of the first questions that we, as a subsidy-awarding body, were asked was, “Has anybody else given you money?” It seems sensible for any subsidy-awarding body to ask a potential recipient of a subsidy whether they have applied for or received a subsidy elsewhere. If they fail to declare it, that is a case of fraud.
Seema Malhotra
I thank the hon. Gentleman for his comment. If he thinks that there should be such a requirement or that that should be in the guidance, perhaps he might raise it with his own Front Bench. It is important to have some of those checks in place. However, where fraud might be taking place, or there is an impact of—perhaps genuine—cumulative subsidies, whose responsibility is it? If an enterprise has been in receipt of multiple subsidies and does not declare them, where are they declared? If feedback to the local authority or the public authority is incomplete, how do we find out, unless subsidies are on the database and it is then much easier to search and identify them?
There is a lot more to be taken away from this discussion in terms of inefficiency and higher risk of fraud—or, if not fraud, perhaps some forms of maladministration or error. A transparent and full database would reduce the risk of many of those issues arising, and would then reduce the cost of seeking pre-action information or judicial review. Why must we clog up our tribunals with matters that could have been avoided had we had better control systems in the first place? A transparent and full database would ensure the value for money not just of the subsidy but of what the system demands and who pays for checks and balances later in the process.
The complexity of some of those issues requires us to think them through in more detail. I will not be pushing amendment 35 today, but we certainly plan to return to it in later stages of the Bill.
Kirsty Blackman
On a point of order, Mr Sharma, if I wanted to push amendment 33 to a Division, would it happen now or during the debate on clause 36?
Kirsty Blackman
I would like not to move amendment 32 and to push amendment 33 to a Division.
The Chair
Ms Malhotra, would you like to withdraw amendment 35 or to press it to a Division?
Seema Malhotra
I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Kirsty Blackman
I beg to move amendment 26, in clause 33, page 17, line 24, leave out “one year” and insert “three months”.
This amendment would reduce the length of time public authorities have to enter a subsidy in the database from one year to three months, with respect only to tax measure subsidies.
The Chair
With this it will be convenient to discuss the following:
Amendment 37, in clause 33, page 17, line 24, leave out from “measure,” to “or” in line 25 and insert
“as soon as practicable, or within one month, beginning with the date of the tax declaration, whichever is sooner”.
This amendment would require the public authority to make an entry into the subsidy database in respect of a subsidy or scheme given in the form of a tax measure as soon as practicable and at the latest within one month.
Amendment 18, in clause 33, page 17, line 26, leave out “six months” and insert “one month”.
This amendment would reduce the length of time public authorities have to enter a subsidy in the database from six months to one month.
Amendment 38, in clause 33, page 17, line 26, leave out from “form,” to “scheme.” and insert
“as soon as practicable, or within one month, whichever is sooner.”
This amendment would require the public authority to make an entry into the subsidy database in respect of a subsidy or scheme in any other form as soon as practicable and at the latest within one month.
Amendment 27, in clause 33, page 17, line 27, at end insert—
“(3A) Before this section comes into force, the Secretary of State must make regulations defining the term “tax declaration” in subsection (3)(b).”
This amendment requires that Government to define the term “tax declaration” before this section comes into force.
Kirsty Blackman
This is one of the most important parts of the Bill that the Government have got wrong, and I am massively concerned. A number of witnesses raised concerns about the length of time. Some of those time lengths might have come from the trade and co-operation agreement, but my understanding is that those are minimum thresholds. It is entirely proper for us to put in stricter thresholds, should we desire to do so. It is important that those times be changed, for the sake of transparency and to protect organisations that might be harmed by subsidies being given to somebody else.
Amendment 26 would
“leave out ‘one year’ and insert ‘three months’”.
That is specifically about tax measures. The logic behind having a three-month period, rather than the one-month period I have suggested for normal measures, is that tax measures may be more complex, and it may take authorities longer to make that registration on the database. That should give them enough slack to be able to put that information on the database.
My big concern about tax subsidies is followed up in amendment 27 on the meaning of “tax declaration”. That meaning is not clear to me and, when I asked a tax professional, they did not know what “tax declaration” means in this case. It is important that the Government make clear what that means because, if “tax declaration” is the tax return, that return is made after the financial year in which that happens. It could possibly take up to two years for a requirement for that to be registered on the database. By that time, a competing organisation might have gone under. It was made clear to us in the evidence sessions that six months was a fairly long time; nearly two years is a very long time. It is completely unacceptable for the Government to choose to do that.
If the Minister says that “tax declaration” means the tax return, that would be helpful in making clear the meaning of “tax declaration”. My understanding, from the evidence given by Daniel Greenberg, is that that would be enough for everybody to understand the implementation of the legislation. The length of time is a massive concern for me. That is why I am proposing on tax measures that the length of time be changed from one year to three months, which is reasonable.
Where measures do not relate to tax, I am proposing that six months be changed to one month. That is again to protect businesses where the subsidy has distorted competition to the extent that they are in serious difficulties. I understand what the Minister said about time being paused if a subsidy has not been uploaded properly on the database, or if a pre-action request is made, but my concern is that people will make pre-action requests left, right and centre, no matter the date put in. It is also far too long a period of time.
The public authority that is granting money to an organisation has to go through a number of hoops in order to do so. It is completely reasonable to ask it to upload that as close to that point in time as possible, rather than let it potter about for six months, because it is already doing lots of paperwork. It is already jumping through hoops in relation to that subsidy, so it makes sense for us to reduce the time. It builds much more protection into the system, which is important. Surely that is the point of having a system. If we did not have international agreements and did not have to have any system in place, it would be different, but we do have to have a system. Therefore, the system that we have should make sense and should work.
I will just speak briefly about the Opposition amendments that have been put forward. They are along a similar line and try to do very similar things. Should the Opposition decide to push the amendments to a vote, I would be quite happy to back them, because it is really important to get this right.
Seema Malhotra
It is a pleasure to speak to our amendments 37 and 38, and to the other amendments in this group. I thank the hon. Member for Aberdeen North for the persuasive arguments that she has outlined. She has mentioned that our amendments are on similar lines. Ours perhaps go slightly further, and I will lay out our arguments as to why we have tabled the amendments in this way.
Amendments 37 and 38 would change the period that public authorities have to enter their subsidies on the database to one month, including for subsidies given in the form of a tax measure. Schedule 1 highlights the intention for subsidies to be proportionate, fair and targeted. However, the extensive time period described in clause 33 allows public authorities to have six months to publish on the database, or one year if the subsidy is given in the form of a tax measure. That is notwithstanding the important comment made by the hon. Member for Aberdeen North, which I think also came up in some of the evidence sessions, about what is intended by “tax declaration” within the context of the Bill and what time could elapse between the equivalent of the subsidy being made and that being public. An understanding of that would be very helpful for the purposes of scrutinising that aspect of the Bill and whether there needs to be a change.
Having one year to enter tax measures into the database means that subsidies that do not meet the regulations can still be granted and be spent over that significant amount of time. As subsidy details are not entered into the database, interested parties do not have the necessary information to scrutinise or challenge the subsidies. That means there could be a six-month period in which a highly damaging subsidy can be granted without any challenge. Does the Minister recognise the damage that extensive publication periods could have on the fairness and transparency of the regime, and the extra cost to the public purse of ceasing to recoup some of the subsidies that may be subject to a successful challenge but may already be spent by then? What are the Government’s reasons for making the publication period so long? In last Tuesday’s evidence session, Jonathan Branton, partner at DWF Group, said:
“I have yet to hear a really persuasive case for why you need that long to publish the fact that you have made a award. Why do you need six months to get yourself together to publish that something has been done?”––[Official Report, Subsidy Public Bill Committee, 26 October 2021; c. 58, Q79.]
That was a powerful point. Can the Minister enlighten us? We in Parliament have a responsibility to the public to try to ensure value for money and transparency in public expenditure. That question is at the heart of how we ensure that the proposed regime commands the confidence, credibility and trust of all four nations of the UK and our constituents.
Paul Scully
Let me start by explaining the intention behind the process of uploading the subsidies to the database. As with other aspects of the transparency requirement, we have sought to balance the objectives of minimising unnecessary bureaucratic requirements on public authorities while ensuring transparency for those interested in subsidy awards, and most importantly for those that may be subject to challenge under the Bill’s provisions. As such, we have set the deadline for uploading subsidies on to the database at six months—the deadline for most subsidies—which is the time limit that existed under the EU’s state aid system.
Special provision is made for tax subsidies, as calculating their exact value is more complex and cannot be done until tax declarations have been received and finalised. I will come back to the time limit and the definition of tax declarations.
We expect public authorities to upload subsidies promptly because they have a strong incentive to do so. Generally, the date of uploading a subsidy on the database will determine the end of the limitation period to challenge it. The sooner a subsidy is uploaded to the database, the sooner the clock for the limitation period will start running, and therefore the sooner the public authority will gain certainty that the subsidy will not be subject to a challenge. Public authorities will therefore seek to upload subsidies as soon as possible.
Amendments 18 and 38 would shorten the upload deadline for subsidy awards and subsidy schemes not given in the form of tax measures. Amendment 18 would shorten the deadline to one month and amendment 38 would oblige public authorities to upload the subsidy award or scheme as soon as possible, and within one month at the latest.
As I said, we expect public authorities to upload as soon as the relevant data are available, and to use the whole period of six months only if there is good reason. An upload deadline as short as one month would likely result in more public authorities needing to amend their entries at a later date. Although they can do so as a permitted notification within the meaning of clause 81, that creates an unnecessary administrative burden for those authorities. It also means that the information on the database is more likely to contain minor inaccuracies.
I am sure that hon. Members will agree, as their earlier amendments suggested, that accuracy is really important, so a longer deadline for uploading is not only justified but sensible. I again emphasise that the approach taken in the Bill reflects the views of those who responded to the public consultation on the approach to subsidy control earlier in the year. The consultation set out the details of the proposed approach that we are now discussing, including the six-month deadline for uploading general subsidies. Of those who responded to the question, 74% agreed with the Government’s proposed approach.
Amendments 26 and 37 seek to shorten the deadline for uploading subsidies in tax measures on to the database. Subsidies in the form of tax measures can be an effective tool for achieving policy objectives, but they are generally a more complex way of giving subsidies. They are more likely to have performance-related conditions, which means that it can take longer to determine the exact amount of the subsidy. Of course, a public authority will have an estimated value for the subsidy when it is granted for the purpose of assessing compliance with the principles, as well as for costing the measure for the purpose of managing public money. However, a final amount may not be known until the tax declaration has been completed. Even once that declaration has been submitted, further discussion between the beneficiaries of the subsidy and the public authority might be necessary, to confirm that the calculations in the tax declaration are correct.
Kirsty Blackman
Points were made earlier on the specific length of time. Why is the final amount required to be on there at the beginning, because they could presumably just put in how much they expect it to be? That would be much better for those organisations that may be looking to challenge it.
Paul Scully
They will clearly have that estimated calculation, but the database will function most effectively if the public authority uploads a subsidy when it can be confident of its accurate value. That will enable an interested party to determine whether to challenge the subsidy through a judicial review. It is important that public authorities are not then coming back and correcting those figures. It is a balance between ensuring that we get the entries in a timely fashion and in an accurate fashion. That is admittedly a difficult balance to strike, but the majority of people in the consultation agreed with our approach, which is set similarly to the EU state aid scheme.
The result of what we have set out is that a public authority will require sufficient time between the date of the tax declaration and the obligation to upload that subsidy to the database. We have determined that 12 months from the date of the tax declaration is sufficient time for public authorities and beneficiaries to calculate the exact subsidy amount. Amendment 26 would reduce that period from 12 months to just three months, and amendment 37 would reduce it to one month. That would mean a significant reduction in the time available for a public authority to make those final calculations and upload the subsidy.
As with non-tax subsidies, an upload deadline of one or three months will increase the likelihood of error. Again, I am sure that is something we want to avoid. We expect public authorities to upload subsidies in the form of tax measures as soon as they can and, as I mentioned, they will have a strong incentive to do so. That is why 12 months is an appropriate deadline to reduce the risk of inaccurate information being uploaded. Shortening the deadline would not improve subsidy transparency in our view, nor help interested persons who may wish to challenge a subsidy in the form of a tax measure.
Kirsty Blackman
If I had an enterprise that was being harmed by either a tax subsidy or any other kind of subsidy, I would rather know that the subsidy had been given and not know the exact amount than have no information at all until my business had gone under.
Paul Scully
I come back to our earlier discussions about the onus that is put on public authorities, and the impact that it will have on them, not only to put the amount on the various databases but possibly to go back and correct them. I appreciate that it is a difficult balance to strike, but none the less the balance is based on the EU state aid rules. It has gone through the public consultation and the majority agreed with it.
Amendment 27 would add a requirement to define a tax declaration in regulations before the subsidy control regime came into force. I can reassure hon. Members that, in the vast majority of cases, I would expect that the relevant tax declaration would indeed be a tax return. There are other examples: duty and certain other types of taxation treatment. That is why it is called a tax declaration rather than a tax return. But most of the time it would indeed be a tax return. The precise details would vary, depending on the specific tax and the mechanics of the measure in question.
As I have said, the Government will provide thorough guidance—I come back to the guidance that we have spoken about on a number of occasions—to ensure that public authorities are aware of their subsidy control obligations, including how to report subsidies in the form of tax measures. If it would be helpful to public authorities, subsidy beneficiaries and interested parties, that guidance will provide further explanation as to what should be considered a tax declaration. As that does not affect the substance of the law, I do not think it would be appropriate for secondary legislation. I therefore request that hon. Members withdraw or not press these amendments.
Seema Malhotra
I thank the Minister for his comments. There has been quite an important discussion and debate today. I want to highlight why this matter is complex and why more is needed on it. The Government quote from their consultation response, but on the specific point about the public authorities consultation question—should it be within six months?—I think it was actually quite a loaded question: “Do you agree that the obligation should be to upload information within six months of the commitment to award a subsidy?” That is hard to disagree with, even if people think that it should be one month or less. As with many of the questions, we had 15% of respondents answering this, and a majority did agree with the proposal. I do not think people would necessarily disagree with it. But even those who then did think a bit further and disagreed commented that six months was too generous and could be shorter, and apparently suggested a range of alternatives.
What is important is to get this right. The Minister made a couple of points in relation to where there may be some information that is not fully available—I do not know what specifically that would be—that would result in edits to correct some information, which could be after a month or two. I would like the Committee to have an opportunity to reflect on that and perhaps to talk to local government and other public authorities about what difficulties they might perceive if the period was to be greater than one month, or whether they did think that one month could be workable in the context of an easy-to-enter database. I think that, rather than pushing this matter to a vote today, we should see some further work done on these issues, in order to have confidence about the deadline, and come back to this on Report, with some of that information and further research being clear.
Kirsty Blackman
I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Seema Malhotra
I beg to move amendment 36, in clause 33, page 18, line 7, leave out “negative” and insert “affirmative”.
This amendment makes the regulations set out in Clause 33(8) subject to the affirmative procedure.
This amendment would ensure that any future changes made to the minimum threshold for publication were decided through the affirmative rather than the negative procedure. We have said throughout the passage of the Bill that too many aspects of it are set to be decided at a later date by the Secretary of State. Decisions that could and will have a significant impact on the new subsidy regime, such as those that would change authorities’ database obligations, should be afforded appropriate parliamentary scrutiny. The decision to change the minimum threshold for publication on the database is one example that would alter the transparency and clarity of the new regime. It is not right for it to be nodded through Parliament or go under the radar. It should be given parliamentary scrutiny and the vote that it demands.
Kirsty Blackman
I have a wee comment to make on this. The Government increasing the minimum threshold required on the subsidy database is a very contentious issue that we have discussed at length, including with witnesses. A significant number of respondents to the consultation answered on the basis of the numbers put before them. It is important enough that lots of people responded to the consultation. It is important enough that we have had a length of time debating the numbers. The negative procedure does not make sense, given the Bill’s possible impact. Unless the Bill is amended, the Government could, at a stroke, change the threshold to £2 million under the negative procedure. In terms of transparency, accountability and ensuring that this makes sense and works for everybody, it would be sensible for the amendment to be accepted.
Paul Scully
Clause 33 sets out that the Secretary of State may change the threshold above which subsidies given under schemes are required to be uploaded to the transparency database. Amendment 36 seeks to change the procedure for these regulations from negative to affirmative.
The regulations can be used to change the thresholds for all subsidies given under schemes, or for those matching a specific description, such as those given to a specific sector. The regulations cannot be used to make changes beyond this—for example, to change the requirement to upload all subsidy schemes to the database—and nor do they change the substantive subsidy control requirements, which are assessed at scheme level, rather than for each individual subsidy given under a scheme. As such, these regulations should be considered technical.
The Bill proposes the right parliamentary procedure for different types of secondary legislation. For example, the powers to amend the exemption thresholds in clause 42(1) are subject to the affirmative procedure because they affect the substantive subsidy control requirements rather than simply the threshold for uploading information to the database.
Kirsty Blackman
Does the Minister agree that if the Government were to change the threshold from £500,000 to £20 million, that would require some scrutiny?
Paul Scully
As I have set out, the figure of £500,000 strikes the right balance between transparency and minimising undue and unnecessary administrative requirements. We currently have no intention of changing the overall threshold. The Secretary of State has power to change the threshold if necessary—for example, because of changing market conditions or international obligations.
Seema Malhotra
I appreciate that the Minister has stated the Government’s position on the £500,000 threshold but he has not made the case for it, neither on the operation of the regime nor on value for money or transparency. The hon. Member for Aberdeen North powerfully made the point that the Government have the power to change the £500,000 threshold under the negative procedure. Has the Minister held discussions—with the Secretary of State or others in government—about whether there should be a maximum that the Secretary of State may propose? The consequence is much less transparency over greater amounts of public funds. That surely cannot be the right direction of travel for any Government, and certainly not for a scheme that we want to stand the test of time and enjoy the confidence of the public.
Paul Scully
In this instance, we are looking at adjusting the thresholds for specific sectors, such as agriculture, that are characterised by smaller businesses where a relatively small subsidy can have a distortive effect. It might be more appropriate to have a specific threshold in the future, but the focus in the transparency measures in this Bill is on enabling interested parties to see the subsidies that they may wish to challenge. We are not setting out to provide a general database of public authority spending, but the schemes are transparent because the details of a scheme itself must be uploaded on to the database. That is where the challenges may come. Transparency is set within this framework and that is why it is appropriate to use the negative procedure. I ask the hon. Lady to withdraw the amendment.
Seema Malhotra
I thank the Minister for his comments. In the light of the complexity of many of the issues that we have debated, I will not push the amendment to a vote. However, the issue must be looked at in the round to ensure that clause 33 is as robust as it can be and will stand the test of time. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Question proposed, That the clause stand part of the Bill.
Paul Scully
The clause sets out the duty on public authorities to upload certain information on to the database about their subsidies and subsidy schemes. It provides public authorities with clear rules on whether a subsidy award should be uploaded to the database or not. It sets out the three rules for public authorities granting stand-alone subsidies and subsidy schemes.
Seema Malhotra
This is an important clause, but it requires significant improvement. We will not vote against clause stand part, but I hope that the Minister will engage positively on the issues. This is not a party political matter. It is genuinely in people’s interests to have a robust regime, and we have outlined the cornerstones of that.
Question put and agreed to.
Clause 33 accordingly ordered to stand part of the Bill.
Clause 34
Information to be included in the subsidy database
Seema Malhotra
I beg to move amendment 40, in clause 34, page 18, line 9, remove “may” and insert “must”.
This amendment makes the regulations listed in subsection (2) mandatory for entries on the subsidy database.
The Chair
With this it will be convenient to take amendment 19 in clause 34, page 18, line 12, leave out “may, in particular,” and insert “must”.
This amendment seeks to ensure the Secretary of State will include all these measures in the regulations.
Amendment 41, in clause 34, page 18, line 12, leave out from “The” to “particular,” and insert
“Regulations made under subsection (1) must”.
This amendment makes it a requirement for subsidies entered into the database to include the information set out in paragraphs (a) to (i) of subsection (2).
Amendment 20, in clause 34, page 18, line 27, at end insert—
“(j) any other matter which the Secretary of State deems necessary”.
This amendment is linked to amendment 19.
Amendment 21, in clause 34, page 18, line 27, at end insert—
“(j) the purpose of the subsidy”.
This amendment would allow the Secretary of State to include a requirement in regulations that a public authority’s entry in the database details the purpose of the subsidy.
Amendment 43, in clause 34, page 18, line 27, at end insert—
“(j) the date the subsidy or scheme was entered onto the database.”
This amendment requires the date on which the subsidy or scheme was entered onto the database, to be included in entries on the database.
Amendment 42, in clause 34, page 18, line 34, at end insert—
“(3A) The Secretary of State may by regulations make provision about further information that must be included in a public authority’s entry in the subsidy database in relation to a subsidy or subsidy scheme.”
This amendment allows the Secretary of State to make regulations setting out further information required to be published on the subsidy database.
Amendment 44, in clause 34, page 18, line 34, at end insert—
“(d) the date the public authority confirms the decision to give each subsidy under the scheme;
(e) the duration of each subsidy under the scheme;
(f) any time limits or other conditions attached to the use of each subsidy under the scheme;
(g) the amount of each subsidy or the amount budgeted for each subsidy under the scheme;
(h) the date each subsidy under the scheme was published.”
This amendment requires that the information required to be entered into the subsidy database for subsidy schemes includes much of the same information required for subsidies.
Seema Malhotra
It is a pleasure to move our amendments to clause 34, which is about the information to be included on the subsidy database. The clause outlines that the Secretary of State can make regulations about what public authorities must include in their entries on the database and it lists certain regulations that the Secretary of State may make provision for. As well as ensuring that subsidies are published on the database and with accurate information, it is important that public authorities are obliged to include all the necessary information in their entries. It is therefore strange that the Bill does not contain minimum requirements that must be included in the subsidy entries. An explanation of why that is the case would be welcome from the Minister, particularly following Jonathan Branton’s assertion that,
“a national transparency register has been established, but when you look at that register and at the relevant rules around it, you do not see that it is functioning well.”––[Official Report, Subsidy Control Public Bill Committee, 26 October 2021; c. 51, Q72.]
The Government must surely recognise that the information included on the database will be crucial for the effectiveness of the regime, and that there should be a common standard—one that is an obligation—for public authorities to enter that information, rather than yet again leaving it to the Secretary of State, a very busy person, to decide later what should be included in subsidy entries. The Bill should mandate those requirements now. I am sure the Secretary of State would appreciate the Minister making changes in Committee that could make his life, or her life in future, easier. That is in the public interest.
The requirements should also be put to the whole House rather than nodded through Parliament through a process with less scrutiny. They should be included more firmly in the primary legislation to allow public authorities and interested parties a strong, clear message from Parliament about what information as a minimum should be prepared and uploaded on the database. That is why we propose amendments 40 and 41 to make the regulations listed in subsection (2) mandatory, rather than obligations that the Secretary of State may or may not include in future regulations. It is also why, if they decide to put it to a vote, we will support amendment 19 tabled by the hon. Members for Aberdeen North and for Aberdeen South, which achieve similar outcomes. The amendments would ensure that entries onto the database include the information necessary for transparency and for interested parties to make informed decisions about whether subsidies obey the control principles. As Jonathan Branton summarised:
“If you cannot see what is going on, you do not know what to challenge, or even if to challenge.”––[Official Report, Subsidy Control Public Bill Committee, 26 October 2021; c. 51, Q72.]
Amendment 43 would include the date that the subsidy or scheme was entered on to the database as part of the mandatory information that public authorities must include. Given that the legislation states that interested parties have just one month from the date of publication on the database to challenge subsidies, it seems odd that the information required by the amendment is not already included in the Bill. It is a critical piece of information. As Alexander Rose stated,
“the key piece of information on that website”—
—the database—
“is the date the entry is made, and the reason that is so important is that the challenger has as little as a month to challenge once that information is placed on the website.”—[Official Report, Subsidy Control Public Bill Committee, 26 October 2021; c. 52, Q73.]
Will the Minister explain why the Government do not think the database needs explicitly to include and mandate publication dates, even though the dates are so crucial to the challenge process?
I hope the Committee can see how necessary amendment 43 is, as it includes the publication date on the database. Without it, I fail to see how the interested parties will be able to exercise their power in the ways intended in the Bill to bring challenges within the timeframe to damaging subsidies or those they consider of concern.
Amendment 44, on similar lines, sets out mandatory requirements that public authorities need to meet when entering information. We recognise that subsidy schemes will provide public authorities with a surer framework under which to grant subsidies. However, that does not mean that subsidies granted under them should escape scrutiny and transparency. The amendment seeks to ensure that the date each subsidy under a scheme is granted is published on the database, as well as the duration of each subsidy under a scheme, any time limits as might relate to the conditions and each subsidy’s amount. I cannot see any reason in the public interest that that should not be so.
The amendment would ensure that not only the schemes, but each individual subsidy under them, was subject to appropriate transparency. It would enable the Secretary of State, the CMA and interested parties to check that subsidies given under the schemes, as well as the schemes themselves, are consistent with the principles laid out in schedules 1 and 2. To quote Jonathan Branton:
“It is really difficult to argue against transparency and say, ‘Why wouldn’t you have transparency about the dispensation of public money in this way?’”––[Official Report, Subsidy Control Public Bill Committee, 26 October 2021; c. 55, Q76.]
Finally, to change the substance of the Bill, Labour also proposes amendment 42, which would allow the Secretary of State still to make the regulations on the content of the database. I hope that the Government can therefore see that the amendments, taken together, do not seek to make the provisions stated in subsection (2) static and would rather ensure that the database is necessarily informative, to ensure that the regime can run effectively and that subsidies can obey the control principles.
Ordered, That the debate be now adjourned.—(Michael Tomlinson.)
Health and Care Bill (Twenty Second sitting)
Tuesday 2nd November 2021
(3 years ago)
Public Bill CommitteesRead Full debate Health and Care Act 2022 View all Health and Care Act 2022 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 2 November 2021 - (2 Nov 2021)
The Committee divided: - Ayes: 5 / Noes: 9 - Question accordingly negatived.
The Chair
As Members have possibly worked out, I am a last-minute stand-in for Peter Bone, which has always been my ambition in life. [Laughter.] Seriously, Peter has been caught up in some kind of road traffic incident. I think he is fine; he has just been delayed, so that is the reason for the delay in proceedings.
I remind Members of all the usual things: please switch electronic devices to silent, and remember that no food or drinks are permitted. I encourage Members to wear masks, as per the House of Commons Commission rules, and to give their notes to Hansard or to send them to hansardnotes@parliament.uk.
New Clause 58
Duty on NHS England to promote evidence-based public health programmes
“(1) NHS England must promote to integrated care boards the value of evidence-based public health programmes.
(2) NHS England must publish a report each year on the state of evidence-based public health programmes within England and their impact.”—(Alex Norris.)
Brought up, and read the First time.
Alex Norris (Nottingham North) (Lab/Co-op)
I beg to move, That the clause be read a Second time.
I have heard about the fastest gun in the west; I think you might be the fastest-moving Chair in the west midlands, Mr McCabe. Turning to the substance of the new clause, covid-19 has shown the value of public health programmes in building this country’s resilience and improving public health outcomes, yet there is no duty in the Bill on NHS England to promote such public health programmes to integrated care boards or to evaluate their impact. New clause 58 seeks to change that.
During proceedings over the past couple of months, I have highlighted on multiple occasions the damage caused by the short-sighted health cuts we have seen over the previous 11 years, so colleagues will be relieved to hear that I am not going to repeat those points. However, we should be looking to do better now and to use this Bill as a watershed moment. As the Association of Directors of Public Health noted when the White Paper was published, there is a limited focus in the Bill on the health inequalities that have been exposed and exacerbated by covid-19 and, again, this new clause seeks to improve that situation. With the changes to Public Health England and the announcement of the new Office for Health Improvement and Disparities, it is vital that the Government make a belated recommitment to public health and prevention.
There are a number of ways in which that commitment could be manifested. Public health programmes are particularly crucial to the prevention agenda, and it is right that NHS England promotes the value of those programmes, looks at them, assesses them and reports on their impact. To draw on one example that is linked to an item we will be discussing later—dental services—community dental services and oral health public health programmes have shown that significant savings and significant improvements in individuals’ lives can be generated through effective, evidence-based public health programmes. Social enterprises such as those can bring a number of additional benefits. They exist not to make a profit but to deliver on a social mission and to reinvest any surplus in improving local services.
That is what the public health grant traditionally funded. When I first had responsibility for the public health grant in 2014, 85% of that money went into commissioned services. That funding will have been diluted by the cuts in recent years, but largely that money went to community-based, not-for-profit, evidence-based schemes. Public health programmes really improved our communities, but we have lost them, and that is a sadness. We need to recommit to them and have a real focus on getting integrated care systems to commit to them, demonstrating what works in one part of the country and promoting it across the rest of the country. That is what this new clause seeks to achieve.
The Minister for Health (Edward Argar)
Mr McCabe, it is a particular pleasure to see you in the Chair this morning, allowing us to get going.
I very much welcome the opportunity to debate and put on record again the Government’s commitment to improving and protecting the public’s health and to supporting evidence-based interventions. Like the shadow Minister, the hon. Member for Nottingham North, I can think of no better example than the remarkable speed of this country’s roll-out of covid vaccinations and the response to the pandemic, saving lives and supporting our economic recovery. That, of course, is testament to the hard work and dedication of our NHS and public health professionals in rising to the greatest infectious disease challenge of modern times.
Our commitment to evidence-based public health is also writ large in many of the Bill’s provisions, our wider programme of public health reform and the proposals set out in the Government’s recently published plan for health and care, “Build Back Better”. We made it clear in that document that although the Government’s immediate priorities for the NHS must be dealing with covid and recovering from the elective backlog, the long-term priority is to shift the NHS towards prevention. Prevention must be a central principle in delivering a sustainable NHS and levelling up. That means fixing the underlying causes of ill health, which is at the heart of the mission of the new Office for Health Improvement and Disparities and the new UK Health Security Agency.
As new clause 58 hints at, a focus on prevention, coupled with a strategic approach to population health more generally, will also be at the heart of integrated care systems. The new triple aim will bind NHS bodies to consider wider effects on health and wellbeing, alongside a duty to reduce inequalities in access and outcomes. Integrated care boards will be required to seek advice from persons with a broad range of professional expertise on public health and prevention, complementing the role, already set out in regulations, of local government and directors of public health to provide advice. Moreover, each integrated care partnership’s strategy will be clearly rooted in, and draw extensively on, local place-based joint strategic needs assessments so that real needs and priorities can be addressed at local level. The ICB’s plans must have regard to that strategy.
I entirely concur with the shadow Minister that evidence-based public health practice is always desirable, and a learning culture essential, but the Government do not see the need for a specific legal duty on NHS England to promote that to ICBs—as envisaged by the new clause—although it undoubtedly will have a role in exhorting and supporting them to their best efforts. The Office for Health Improvement and Disparities and the UK Health Security Agency will also have an important role in this regard, and the National Institute for Health and Care Excellence will continue to issue evidence-based guidance on public health topics referred to it.
There is already a broad obligation on NHS England and NHS Improvement to promote continuous improvement in the quality of services provided across the NHS and, in doing so, to have regard to evidence-based public health quality standards. That includes having regard to quality standards prepared by NICE.
It follows from the rejection of the first limb of the new clause that the Government cannot support the second. However, as set out in “Build Back Better” the Government will bring forward separately from the Bill a new requirement for NHS England
“to introduce a yearly prevention spend, outcome and trajectory reporting criteria, including an assessment of the 10-year spend and outcome trajectories…of the major preventable diseases such as diabetes.”
It may not, but I hope that that goes some way towards meeting the intent behind the shadow Minister’s new clause.
There is a somewhat different matter where public health programmes are commissioned directly by the NHS itself, in exercise of the Secretary of State’s public health functions. That is the case with, for example, national screening or immunisation programmes. These programmes are currently commissioned by NHS England but are rooted in expert advice from the UK National Screening Committee and the Joint Committee on Vaccinations and Immunisations respectively. NHS England is already prepared to report to the Secretary of State on its performance against these functions.
Were any of these functions to be delegated to ICBs to deliver in future, we would expect NHS England to clearly convey the requisite standards and performance expectations for those evidence-based programmes, and overall information about performance and effectiveness will be provided to the public.
In summary, there is a good deal of unity of aim and objective, but I fear there is a difference as regards methods. On that basis, I encourage the shadow Minister not to press the new clause to a Division.
Alex Norris
I share with the Minister the desire for a shift to prevention. My anxiety, from the Government action we have seen over the last decade, is that that is a rhetorical shift rather than a substantial shift in policy, and definitely not a substantial shift in resourcing. Nevertheless, the Minister’s answer on the documentation that NHS England will be asked to publish is a suitable substitute for a provision being on the face of the Bill. On that basis, I beg to ask leave to withdraw the clause.
Clause, by leave, withdrawn.
New Clause 63
Young carers’ needs assessments following hospitalisation
“In the Children Act 1989, after section 17ZC, insert—
‘17ZCA Young carers’ needs assessments following hospitalisation
(1) An NHS trust or NHS foundation trust must ascertain during hospitalisation whether a patient when discharged will be cared for primarily by a young carer.
(2) Where an NHS trust or NHS foundation trust ascertains that a patient when discharged will be cared for primarily by a young carer then the NHS trust or NHS foundation trust must give the local authority where the patient lives notice that a young carer will require a needs assessment.
(3) The local authority receiving notice under subsection (2) must carry out a needs assessment, and in doing so must—
(a) ascertain whether it is appropriate for the young carer to provide care, and
(b) identify what support or services need to be in place for safe discharge of the patient.
(4) The needs assessment required by subsection (3) must be conducted before the patient is discharged.’”—(Karin Smyth.)
This new clause would ensure that the needs of young carers are assessed before a patient who they care for can be discharged.
Brought up, and read the First time.
Karin Smyth (Bristol South) (Lab)
I beg to move, That the clause be read a Second time.
It is a pleasure to see you in the Chair, Mr McCabe. I will not delay the Committee too long on this new clause, but it is an important one to consider. We had a good discussion last week on the needs of carers, although I am not sure we resolved it satisfactorily. Carers do a huge amount of work on behalf of their families. As my hon. Friend the Member for City of Durham so eloquently said, they want to do that work, but many of them essentially keep our services going. Without them, the demands on our services would be so much greater.
[Mr Peter Bone in the Chair]
All of us who have met or who know young carers recognise the particular stresses and strains on them from caring for their relatives. They do astonishing work. Again, as my hon. Friend said, many feel that they are doing it because these are their loved ones; they do not feel like they are carers in many cases, but they are. Often people then do not come forward, if they are not known to the authorities, to make that clear. That is often because of fear of what that might mean for the family set-up they find themselves in.
The new clause draws attention to the needs of young carers, particularly following hospitalisation. It would require trusts and local authorities to be cognisant of who is caring for a person when they are discharged, particularly where young carers are involved. When the issue was first drawn to my attention—particularly the need to highlight the different needs of young carers—I must confess that I thought that these things were routine in good care settings. Obviously, the situation into which someone is being discharged should be fully known and recognised, and their needs met. We had a good discussion about that and we know that that does not happen, but the pressure on young carers is particularly acute. As part of that discussion last week, I almost intervened on the Minister to ask that when we are considering carers more generally, we highlight young carers separately. A hospital needs to know and understand that the person going back home will be in the charge of a young carer, and the local authority needs to make sure that a needs assessment is conducted.
The new clause suggests that should happen before the patient is discharged. Clearly, the Bill is instigating a new process, which will look at post-discharge. We had a good debate about that. As my hon. Friend the Member for Nottingham North said from the Front Bench, doing that assessment differently may be better in the long run—we do not know. In particular, when it comes to young carers taking up that role, it is even more acute that it is recognised in the new arrangements.
I will not move the new clause to a vote, but I would like the Minister to be cognisant of young carers and assure us that these needs will be highlighted to hospital trusts and local authorities in the discharge planning process.
Justin Madders (Ellesmere Port and Neston) (Lab)
It is a pleasure to see you in the Chair, Mr Bone. I thank my hon. Friend the Member for Bristol South for introducing the new clause. She set it out very well and she is right to highlight the interplay with the section 78 provisions in the Bill, because there is a risk of some jarring if we do not get this right.
As we know, the 2011 census reported that there are almost 166,000 young carers between the ages of five and 17 in England. However, research carried out by the University of Nottingham and the BBC in 2018 suggested the figure could be much higher, with around 800,000 children providing care. It is estimated that nearly 260,000 of those carers are providing high levels of care, so there is certainly an issue out there.
As we know, being a young carer has a significant impact on children and young people. Caring for other family members inevitably affects school attendance and exam results, with many young carers paying a heavy price for their dedication to their families. It often limits their ability to take up their full academic options. On average, young carers achieve a grade lower than their peers in their GCSEs and are less likely to go to university. Every single classroom in the UK is likely to have at least one young carer.
As my hon. Friend said, the new clause would ensure that arrangements for discharging patients without a care needs assessment do not unduly impact on young carers. Their needs must still be identified when an adult is discharged from hospital. But the new clause goes further than that: it applies to all discharges, so there must always be a check to see if a young carer is involved. One might think that a check ought to done anyway, but evidence shows that it is patchy at best. Before covid, hospitals were struggling with the many issues we have discussed in relation to staffing. It is not always easy for people to do everything they would want to do before discharge. The new clause would put into law what is already being done in the best-practice examples.
There is already, in theory, a general right to an assessment under the Children and Families Act 2014 and the Care Act 2014. The Children and Families Act states that all young carers under the age of 18 have a right to a needs assessment as a responsibility of the local authority, which
“must take reasonable steps to identify… young carers within their area who have needs for support.”
However, Barnardo’s 2017 report “Still Hidden, Still Ignored” identified that young carers were “slipping through the net.” The report led to many recommendations, including Barnardo’s calling for hospital staff to actively ask questions to identify young carers at the point of discharge. Hospital staff are in a key position to ask questions to ensure young people do not slip through the net, and it is clear that more needs to be done in this area. The new clause offers one way of reducing the possibility that young carers slip through the net.
As my hon. Friend said, young people are often reluctant to identify as young carers. They do not want to get their parents into trouble sometimes, and it can be a difficult conversation. The new duty would take a lot of that pressure away because the responsibility would sit with the hospital professionals to ask the patients on discharge. That would stop the young person feeling responsible for involving official services in family life. Of course, we want local authorities to be able to identify these people to ensure the right support is in place.
Edward Argar
It is a pleasure to see you in the Chair this morning, Mr Bone. The new clause would introduce a requirement for an NHS body to notify the relevant local authority once it had identified that a young carer had primary responsibility for caring for a patient on discharge. The local authority would be required to carry out a young carer’s needs assessment before discharge to establish the appropriateness of the young carer providing care and what support should be in place to enable safe discharge.
I entirely understand the sentiment and intention behind the new clause, which the shadow Minister and the hon. Member for Bristol South set out very clearly. We have touched on the importance of this issue in previous debates about carers. Young carers often do not even realise that they are carers. They undertake their caring responsibilities, go to school, come back again and undertake caring responsibilities again. They are arguably some of those most in need of support and identification. These young people are essentially having caring responsibilities for a loved one, family member or friend thrust on to their shoulders at a very early age. However, I am not convinced that the cause is best advanced by the new clause and I will try to explain why. In her response, the hon. Member for Bristol South may agree or say she is unconvinced by my explanation, as is her right.
Existing legislation already requires local authorities to carry out an assessment of need for all young carers on request or on the appearance of need. That assessment must consider whether it is appropriate or excessive for the young carer to provide care for the person in question, in the light of the young carer’s needs, wishes and circumstances. Regulations already provide a detailed framework, including the matters to be considered in such assessments and the skills of the person undertaking it.
As members of the Committee will be aware, the discharge clause in the Bill, which we debated some days ago, revokes the existing requirements for hospitals to issue assessment and discharge notices as part of the discharge process for adults, because they contribute to lengthy discharge delays. The current requirements trigger local authority duties to assess the person’s long-term social care needs, prior to the person’s discharge. We know delayed discharges have a negative impact on patient outcomes.
My concern about the wording of the new clause is that making young carers’ assessments a requirement of discharge would risk reimposing further significant delays, at a time when supporting the safe hospital flow of patients has never been more important. I am also unclear how such an assessment system would be enforced.
Current discharge guidance clearly sets out that, as part of discharge planning, consideration must be given to any young people in the household who have caring responsibilities or may have some on discharge. Guidance states that they may be entitled to a young carer’s needs assessment or to benefit from a referral to a young carers service.
We will work with the Department for Education to ensure that protections for young carers are reflected in new statutory discharge guidance, accepting the sentiment behind the new clause. That will include setting out as part of the discharge planning process how young carers should have a needs assessment arranged, where appropriate, before a patient for whom they provide care is discharged. That is the more appropriate way to capture or operationalise, for want of a better way to put it, the sentiment behind the hon. Lady’s new clause. It is up to her whether she feels that that is sufficient, but I have set out our response to the new clause she proposes.
Karin Smyth
The Minister will not be surprised to hear that I do not think that is sufficient. I will not press the matter to a vote, but, as my hon. Friend the Member for Ellesmere Port and Neston said, when it comes to things being on request it is problematic, and that is the crux of the matter, as in the guidance that the Minister read out. I understand the need for hospitals to not have lengthy discharges—and it is not good for the patient—but sorting out the hospital’s problem on the backs of young people and carers is not a good message that we want to send from here.
I appreciate that the Minister in his final comments said that this would be very much part of the thinking about discharges, but we should also remember that these young people have really had the most shocking experiences in the last two years with covid, and are already—again, as my hon. Friend said—falling massively behind. Added to the destruction from covid, many young carers live in some of the most disadvantaged families, really keeping those families together, so they are further left behind.
On the Minister’s exhortations to the service and local government, it would be helpful to further underline the strength of those, and I am sure that most of the Committee feel that. Young carers have had probably the worst of times during covid and for them now to have to shoulder more responsibility because of the discharge problem and the need to get people out quickly would further exacerbate the situation. They need more help, not less, and I hope that that will be communicated back to the service. I beg to ask leave to withdraw the clause.
Clause, by leave, withdrawn.
New Clause 65
Review of the surgical consultant appointment process
“The Secretary of State must review the National Health Service (Appointment of Consultants) Regulations 1996 and its most recent guidance and, within six months of the passage of this Act, publish a report on the surgical consultant appointment process.”—(Justin Madders.)
This new clause requires a review of the legislation which governs the NHS surgical consultant appointment process.
Brought up, and read the First time.
The Chair
With this it will be convenient to discuss new clause 70—Appointment of surgical consultants—
“(1) The National Health Service (Appointment of Consultants) Regulations 1996 (S.I. 1996/701) are amended in accordance with subsection (2).
(2) In paragraph (1) of regulation 2, in the entry for ‘relevant college’, in sub-paragraph (d), for ‘and its associated Faculty of Dental Surgery’, substitute ‘, the Royal College of Surgeons of Edinburgh, the Royal College of Physicians and Surgeons of Glasgow and each of their associated Dental Faculties’.”
This new clause would add the Royal College of Surgeons of Edinburgh, the Royal College of Physicians and Surgeons of Glasgow and each of their associated dental faculties to the colleges who may be involved in the appointment of NHS consultants.
Justin Madders
The proposed new clause was inspired by the Royal College of Surgeons of Edinburgh, who made representations about what we think is a lacuna in the current regulations that needs filling. According to the National Health Service (Appointment of Consultants) Regulations 1996 and subsequent guidance issued by the Department in 2005, only the Royal College of Surgeons of England is permitted to review surgical consultant job descriptions and send a Royal College representative to the advisory appointment committee. Although the process applies only to non-foundation trusts, the 2005 guidance encourages foundation trusts to follow that process as it provides a structured, quality approach to consultant appointments. Given that the 2005 guidance remains the most up-to-date advice available to trusts, the Academy of Medical Royal Colleges continues to recommend that foundation trusts follow the process.
The net effect of the regulations and guidance has been to formally exclude the Royal College of Surgeons of Edinburgh from the entire surgical consultant appointment process. Given its size and the distribution of its fellowship throughout England, it is keen to help trusts, whether they are foundation trusts or otherwise, in their ability to appoint and retain senior surgical professionals. I understand the Royal College of Surgeons of Edinburgh has raised this anomaly with the Department on a number of occasions—I can see the Minister nodding—and it has been told that any changes to the regulations or the guidance would require legislative approval, so the opportunity has been taken today to slip the new clause in to try to resolve that.
As we know, we have record waiting lists of some 5.7 million—probably rising. It is clearly an important priority for everyone that the backlog is tackled, and the new clause would go some way to ensuring that the NHS is a resilient and sustainable surgical body to be able to meet the challenge. We see it as a tidying-up exercise that is long overdue.
New clause 70, tabled by the Scottish National party spokesperson, the hon. Member for Central Ayrshire, goes a little further than new clause 65 in terms of the requirements put on the Department. I hope the Minister understands the sentiment behind our tabling the new clause. This long-standing issue needs legislative remedy, and I hope that this is the opportunity to put it right.
Dr Philippa Whitford (Central Ayrshire) (SNP)
I rise to speak to new clause 70 and in support of new clause 65. I agree with the shadow Minister that these are very much technical new clauses to correct an anomaly. There are three royal colleges of surgeons in the UK: the Royal College of Surgeons of England, the Royal College of Surgeons of Edinburgh and the Royal College of Physicians and Surgeons of Glasgow. Consultant surgeons may be appointed from among the fellows of any of the three colleges. The exams they sit and the qualifications they carry are considered absolutely equal.
The challenge when recruiting a new consultant, as the shadow Minister highlighted, is that the appointment panel, which must review the job description and take part in the interview, is limited purely to those who have graduated with their fellowship from the English college. The appointment panels have a mix of representatives from local organisations, specialty bodies, if it is a specialty surgical appointment, and the royal colleges, so while fellows of all the royal colleges may be involved in appointments to English trusts as specialty representatives—such as breast cancer, which was my specialty—some are excluded from being college representatives. It is often really challenging to bring these panels and committees together.
The aim of the new clause is simply to widen the pool of assessors available to trusts in England and, indeed, as the shadow Minister highlighted, to foundation trusts. It is simply an anomaly that two of the colleges in the UK are not included. The new clause aims to correct that and to make the appointment of new consultants easier for trusts and foundation trusts in England. I hope that the Minister will accept both the spirit and the detail of new clause 70.
Edward Argar
I am grateful to hon. Members for bringing this issue before the Committee: I think we have all received correspondence on it from the various royal colleges. New clause 65 would amend the Bill so as to require that a review is undertaken of the National Health Service (Appointment of Consultants) Regulations 1996 and its most recent guidance. It is important that the regulations governing consultants and the accompanying guidance ensure that prospective consultants are highly capable and safe to practise while not hindering effective recruitment.
The current regulations govern the appointment of all consultants to NHS trusts and special health authorities. Reviewing the regulations only in relation to surgeons would risk diminishing consistency in the regulations. We believe the current regulations ensure consistent standards across all specialties. Those regulations are kept under review, and we therefore do not believe that this new clause would improve what already exists under the current policy. Similarly, responsibility for reporting on recruitment practices relating to a specific specialty would fall to the royal colleges rather than the Department. Should the royal colleges recognise an issue with recruitment and appointment to a particular specialty, the Department would expect the relevant royal college to report on that, which we would always consider in detail.
New clause 70, tabled by the hon. Member for Central Ayrshire, would amend the National Health Service (Appointment of Consultants) Regulations 1996 to confer authority on the Royal College of Surgeons of Edinburgh, the Royal College of Physicians and Surgeons of Glasgow and each of their associated dental faculties to sit on the panel concerned with the appointment of consultants in England. I sympathise with that. The Government agree that including those colleges would potentially be significantly advantageous. However, the challenge is that the National Health Service Act 2006 stipulates that consultation with affected parties must be undertaken before any changes to these regulations can be made. As such, our concern is timing: it would go against normal practice and not necessarily be appropriate to make such a change without consulting the relevant parties.
Dr Whitford
I have no objection to the need to consult. The Royal College of Physicians and Surgeons of Glasgow would indeed like section 2(1) of the regulations changed so that its members could be involved in the appointment of consultant physicians. I was unable to consult with the Royal College of Physicians of Edinburgh in time to allow the new clause to include that. I totally recognise that there is a role for consultation in order to get the change to those regulations right. However, surely with such legislation going through, this is the opportunity to agree to correct this anomaly, and therefore make appointments of new consultants in English trusts simpler.
Edward Argar
I think that is where the hon. Lady and I slightly diverge; we do believe that it is right that we follow the normal process of consultation before bringing any changes forward. I hope, in my final paragraphs, I can give her a little reassurance in respect to her intent. I hope that I can reassure her that, although the Royal College of Surgeons of Edinburgh and the Royal College of Physicians and Surgeons of Glasgow are not formally named in the regulations as relevant colleges in relation to the appointment process, the regulations do not prevent trusts from seeking alternative members to contribute to the process. That does provide discretion to involve these colleges where appropriate.
My further reassurance, which I hope will go some way towards satisfying the hon. Lady, is that the letters and requests came in relatively late in the Committee’s proceedings: I will undertake to review that request with my officials. I will look at whether what we have already got is sufficient, or whether there is merit there that does not require that consultation and those changes—
Edward Argar
I have one sentence to go, so the hon. Lady gets in just in time.
Dr Whitford
A trust could include other members of the panel, but they could not be recognised as the Royal College representative. That is often one of the challenging roles, because the panel cannot go ahead if it does not have a Royal College representative.
Edward Argar
I hope I can reassure the hon. Lady that in respect of the specific request that the two Royal Colleges have made, I will take that away, look at it and consider whether it works now, or whether there is something we can do. That will be either in this legislation, or following consultation, via another mechanism to address the underlying issue that they have drawn to our attention.
Justin Madders
Thank you, Mr Bone, but I am sure you would not want me to attempt any medical procedures.
I have heard what the Minister has said; clearly it is still under active consideration by the Department. As we know, there will be many more legislative opportunities in the coming months and years—I hope we will get an opportunity to crack this. I beg to ask leave to withdraw the clause.
Dr Whitford
I accept the Minister’s reassurance that they will finally look at correcting this anomaly; I hope that he will take that forward. It is something that we will be looking for. I beg to ask leave to withdraw the clause.
Clause, by leave, withdrawn.
New Clause 66
Support provided by the NHS to populations at risk of malnutrition
“(1) Each integrated care board must—
(a) assess, or make arrangements for the assessment of, the need for support for patients and/or populations at risk of malnutrition, including social and clinical/disease related malnutrition, using their services;
(b) prepare and publish a strategy for the provision of such support in its area;
(c) monitor and evaluate the effectiveness of the strategy; and
(d) designate a malnutrition lead.
(2) An integrated care board that publishes a strategy under this section must, in carrying out its functions, give effect to the strategy.
(3) Before publishing a strategy under this section, an integrated care board must consult—
(a) any local authority for an area within the relevant Integrated care board’s area; and
(b) such other persons as the relevant local authority considers appropriate.
(4) For the purposes of subsection (3), ‘local authority’ means—
(a) a county council or district council in England; or
(b) a London borough council.
(5) An integrated care board that publishes a strategy under this section—
(a) must keep the strategy under review;
(b) may alter or replace the strategy; and
(c) must publish any altered or replacement strategy.
(6) The Secretary of State may by regulations make provision about the preparation and publication of strategies under this section.
(7) The power to make regulations under subsection (6) may, in particular, be exercised to make provision about—
(a) the procedure to be followed by an integrated care board in preparing a strategy;
(b) matters to which an integrated care board must have regard in preparing a strategy;
(c) how an integrated care board must publish a strategy;
(d) the date by which an integrated care board must first publish a strategy; and
(e) the frequency with which an integrated care board must review its strategy or any effect of the strategy on the provision of other provision in its area.
(8) Before making regulations under this section, the Secretary of State must consult—
(a) all integrated care boards; and
(b) such other persons as the Secretary of State considers appropriate.” —(Alex Norris.)
This new clause would require integrated care boards to publish a strategy for the provision of support for patients and/or populations at particular risk of malnutrition using their services, and designate a malnutrition lead.
Brought up, and read the First time.
Alex Norris
I beg to move, That the clause be read a Second time.
This new clause would put responsibility on integrated care boards to take the lead on tackling malnutrition in their community. We spoke about malnutrition in the context of hospital food standards, and we were not able to move the Minister to extend those hospital food standards to other care settings. I thought that was a shame, and I hope the Government will continue to look at the issue. I want to broaden the conversation on malnutrition to try, via another way, to improve the standing of our communities.
Malnutrition is a serious condition that occurs when a person does not get the energy or vitamins that their body requires to function properly. It affects at least 3 million people every year, and it costs the health and social care system £23.5 billion each year. The condition is particularly common amongst certain groups. Those groups are: older people; hospital patients; people in mental health units and care homes; people living in sheltered housing; and those living with chronic diseases, such as cancer. Malnutrition can seriously threaten patients’ health. Hospitalised malnourished patients are three times more at risk of infection than the well-nourished, while hospital patients at high risk of malnutrition are 12 times more likely to die early than those at no risk. It is a very significant issue. Unfortunately, the figures are not moving in the right direction. The number of adults being admitted to hospital with malnutrition has more than doubled in the last decade—that is the bill for austerity. The evidence is clear that malnutrition impacts a wide range of people in different health settings; again, those are hospitals, mental health units, care homes and sheltered housing. It has a knock-on effect on other conditions.
Earlier this year, the media reported the death of a young disabled woman after a routine operation. Her death was partially caused by malnutrition, and the coroner said there had been a gross failure of care in managing her nutrition. A July 2021 report on malnutrition called it a widespread yet historically overlooked and undertreated issue in the NHS and social care, and attributed that to two factors that block progress—a lack of understanding, and a lack of systematic leadership. The new clause seeks to address that at a local level, which is why we think it is a good one.
The tragic case that I have mentioned shows how important it is to have a clear strategy to tackle malnutrition, to have designated leads and to have targets and co-ordinated policy. The Government say that integrated care boards are about ensuring proper integration between health staff and community services, and this is a really good example of a way in which that could be done. I am keen to hear the Minister’s assessment of the new clause, which should be included in the Bill. We have a significant issue that we are not addressing and that is getting worse, so what are we going to do differently?
Edward Argar
We recognise and know that malnutrition can be a significant problem that can be both a cause and a consequence of ill health. We remain committed to improving the NHS and public health systems, which is helping to improve health and secure early diagnosis of major diseases, tackling some of the root causes of malnutrition. That is backed by the development of the outcomes frameworks covering public health, the NHS and social care, and the development of specific disease outcome strategies.
Individuals, carers and professionals all have a role to play in tackling malnutrition, and there are tools and guidance in place through a range of organisations to help health and social care professionals identify and treat the problem of malnutrition, and to access appropriate training. I note that e-learning modules are currently in place through the Royal College of General Practitioners and the managing adult malnutrition in the community pathway, which was set up by a multidisciplinary group and is widely endorsed by professional bodies aimed at healthcare professionals.
I hope I speak for the whole Committee when I say that we all agree that the NHS can play a vital role in protecting vulnerable people. As part of that, it should have strategies and processes in place for supporting patients and vulnerable people in the community who are at risk of malnutrition. I hope I can reassure the Committee that placing in the Bill a formal duty on ICBs to develop a separate strategy is not strictly necessary, as there is a range of ongoing activity across health and care.
As we have previously discussed, there are already significant existing duties, and duties proposed in the Bill, to prepare plans, including joint local health and wellbeing strategies made at a local authority level by health and wellbeing boards, the integrated care strategy that is to be developed by the integrated care partnership, and the forward plan that is to be developed by the integrated care board. All those plans should be informed by local joint strategic needs assessments, or JSNAs. All the strategies can, where appropriate, consider malnutrition and populations at risk of malnutrition. We have previously debated the range of guidance available to inform thinking on both JSNAs and strategic plans, and we will of course work with NHS England to consider whether it is necessary to include specific references to malnutrition in the guidance.
Should the Bill pass into statute, we expect clinical commissioning groups and ICBs to consider the needs of patients and vulnerable people in their communities, including people who may be at risk of malnutrition. That includes working across health and social care partners to undertake needs assessments on malnutrition, and developing and implementing a work plan to maintain high standards of nutrition through integrated pathways of care. NHSEI’s enhanced health in care homes implementation framework sets out best practice guidance for primary care networks and others in relation to hydration and nutritional support for care home residents. The framework supports the implementation of minimum standards in relation to enhanced health in care homes in the Network Contract Directed Enhanced Service for 2020-21.
The malnutrition task force has also published a series of guides offering expert advice on the prevention of and early intervention in malnutrition in later life, which will support health and care bodies. Alongside that, we have published an independent review of hospital food, which made recommendations for addressing malnutrition in hospitals, and a review of what works in supporting older people in the community to maintain a healthy diet. This “what works” review included a range of examples of good practice at local authority level that others can learn from, and we have provided in the Bill for powers to impose requirements on hospital food standards.
We are helping to raise awareness of malnutrition among individuals and carers through the nhs.uk website, and through the NICE quality standard on malnutrition, which gives a clear and authoritative statement of a quality service. There are ongoing inspection requirements, including for unannounced inspections of health and care settings by the Care Quality Commission, which will continue to ensure expected standards are met.
The new clause would place a requirement on ICBs to have a malnutrition lead. The Bill intentionally allows for flexibility in the make-up of ICBs above the minimum membership requirements that we have previously debated in Committee. They could, if they wished, include condition-specific officers, but we do not want to bind their hands by specifying that they must. That once again returns to the permissive versus prescriptive thread that has run through many of our debates.
However, I do see a huge opportunity for ICPs to consider how best to improve services for people at risk of malnutrition through better partnership and joint working and planning of services, given the complementary services that the NHS and local authorities offer in this context. The new Office for Health Improvement and Disparities is committed to improving the diet of the population and supporting people to maintain a healthy weight.
I hope I have given the Committee some reassurance that we are taking this issue extremely seriously and are committed to enabling the NHS and the wider health and care system to effectively tackle malnutrition.
Alex Norris
I was a little surprised to hear the Minister defend the status quo. The state of play in this country is not good enough and is getting worse, so I dare say that more of the same will beget more of the same. The Minister said that the new clause was not necessary because of the range of ongoing activity, but I reiterate that what is happening is not sufficient and is not addressing this really important issue.
The two areas for development that were offered were local prioritisation through integrated care strategies and the Office for Health Improvement and Disparities. They are obviously relatively new actors in this space, so it is probably right that we give them time to see whether, as the Minister says, they will prioritise this, choose to make it a top-rated issue and do something about it. I am very sceptical of that, and I suspect that we will be back at this sooner rather than later. However, in the meantime, I beg to ask leave to withdraw the clause.
Clause, by leave, withdrawn.
New Clause 67
Review of the capacity of the dental laboratory sector
“The Secretary of State must within six months of the passage of this Act publish a report assessing the capacity of the dental laboratory sector in the UK to meet the needs of patients.”—(Alex Norris.)
This new clause would require the Secretary of State to review the capacity of the UK’s dental laboratory sector.
Brought up, and read the First time.
The Chair
With this it will be convenient to discuss new clause 68—Access to NHS dentistry—
“The Secretary of State must within one year of the passage of this Act publish a statement setting out what measures the Government is taking to ensure universal access to NHS dentistry.”
This new clause would require the Secretary of State to publish a statement of what measures it is taking to ensure universal access to NHS dentistry.
Alex Norris
The two new clauses refer to two linked but distinct sectors of the heath service—dental laboratories and dentistry. In each case, we are seeking for the Secretary of State to publish a report about the health of these important sectors.
On new clause 67, the dental laboratory industry manufactures dental appliances to assist in the provision of oral care, such as crowns, bridges and dentures. The British dental laboratory industry plays an important part in the wider oral health landscape, and it is vital for patients, dentists and other registered dental care professionals. This is an unheralded industry, but it touches all our constituencies, and enables our constituents to live without pain. It also provides skilled work in an economy that has too little of it. It is based in communities all over the country, not concentrated in big cities or in London and the south-east. In many ways, it is a towns industry in a country that desperately needs more towns industries.
However, the industry is struggling. It was struggling prior to the pandemic, but it has particularly struggled during it. In the early stages and indeed even today, dentists have rightly—we supported this—been paid full contract for reduced output to reflect the challenging circumstances in which they are operating, but there has never been an obligation to pay this forward to their suppliers. Whereas we might normally expect dental labs to account for 6% to 7% of a dentist’s outgoing, as output has fallen so has that outgoing, so the sector has suffered, but dental labs have needed to stay open to meet need, so they have not been able to completely avail themselves of support.
The messaging around dentistry at a local and national level has also had knock-on impacts for dental laboratories trying to make insurance claims for business disruption, because there has been a misunderstanding, shall we say, about whether they are operating, and how they are operating or not operating.
Justin Madders
As my fellow shadow Minister quite rightly points out, this is a huge issue for most constituency MPs. I am not surprised to hear what he said about this being the No.1 complaint to Healthwatch, because behind GP access, dental access is now a huge issue. Before the pandemic, dental services in the Cheshire area were contracted to attend to 55% of the local population’s dental health needs. Clearly, that is insufficient, but the challenges of the pandemic have only made matters worse. I encourage my hon. Friend to continue to raise this very important issue.
Alex Norris
I am grateful for that intervention. It is sobering to hear that 55% was what we started with; we know that it will be less than that now. That rather picks away at the idea of a universal healthcare service.
To finish where I was going with my previous point, if I am wrong about where recovery funding for the NHS is going, and there is to be investment in dentistry, I hope that the Minister will correct me. I would be delighted if that was the case, because the BDA is warning—again, this is something that we will have picked up on in our constituencies—that morale among NHS dentists is at an all-time low. Almost 1,000 dentists in England have stopped providing NHS services in the last financial year. There was the failed contract—I know there is enthusiasm for contract reform in the Department and we will support the Department on that, but we are running out of time to have anything ready for April. In fact, we are probably already too late in that regard. The shambles of the negotiations before Christmas last year that led to the breakdown and the imposition of targets really whittled away at good will and caused a lot of upset.
Almost half of NHS dentists are saying that, unless things change, they intend to hand back their contracts or reduce their NHS commitment. This exodus of dentists from the NHS will have a disastrous and lasting impact on our ability to access NHS dentistry. If 55% is the summit of our ambition, goodness me, where will we go from there? The British Dental Association talks about the last-chance saloon; it is not hyperbole to say that we will not have NHS dentistry in the medium term if we do not have a course change.
More and more people are being pushed into the private sector. That creates market forces that mean that it is almost a self-fulfilling prophecy that dentists—both new ones entering the profession and those who have come to the end of their tether with their NHS contract—go into the private sector. We are seeing significant growth in that space as people living in pain seek drastic action. We will see more pushed on to dental insurance if people do not want to be worried about their finances. That is what privatisation looks like. We will not have NHS dentistry in the medium term unless we do something about this issue—that is the wrong way forward.
New clause 68 makes a very modest ask; it asks the Secretary of State to do what any Secretary of State should want to do: commit to universal access to NHS dentistry and say how it will practically be achieved. At the moment, we have a yawning gap. In that lack of leadership, we will see the drip, drip, drip of the loss of NHS dentistry, until we no longer have it.
Dr Whitford
I rise to support new clause 68, which is linked to new clause 67. We are aware of the impact of the pandemic, particularly on dentistry. Using a drill on someone’s teeth generates aerosols in their mouth, and that would vastly increase the risk of spreading covid to the dental staff, or to any patient who entered the space soon afterwards. Despite that impact, there has not been significant funding from the UK Government for the dental industry in England to fund the establishment of ventilation and air purification systems. The Scottish Government have committed £5 million specifically for this. As the hon. Member for Nottingham North highlighted, the pandemic impact comes on top of an underlying issue, the core of which is the 2006 dental contract in England and Wales, which breaks provision down into units of dental activity. It does not reward preventive dentistry. It does not reward any practice for taking on someone who already has dental issues, because it will not be properly funded for that.
Out of that comes the failure to focus on child dental health and making sure that this generation of young children grow up with good dental health. Scotland set up Childsmile in 2007, and Wales set up Designed to Smile in 2011. There is plenty of data from both of these programmes to show that providing free dental treatment to children—along with supported tooth brushing at school, fluoride coating and so on—can decrease caries found in children in primary school and at the beginning of secondary school.
Poor dental health has a big impact on general health and self-confidence, yet we hear repeated reports of families and children struggling to access an NHS practice. In the last five years, NHS practice numbers in England have dropped by over 1,250. BDA surveys suggest that almost half of remaining NHS practices are planning to reduce their NHS commitment over the next 12 to 24 months. There was a promise that the contract would be changed by next April, and 100 practices have been trialling a new method of contract. According to the BDA, it has been warned of a return to using units of dental activity from next April. This would be an enormous missed opportunity to improve NHS dental access for everyone, and particularly to take the further step of ensuring that every child in England does not just have access to a dental practice, but is involved, as they grow up, in a programme promoting good dental health.
Edward Argar
As ever, I am grateful to hon. Members for highlighting issues relating to new clauses 67 and 68 for debate.
I reassure the Committee that the Government continually assess the capacity of the dental laboratory sector in the UK. It is an important issue, as was highlighted by the shadow Minister, and one we already take seriously. However, it is not necessary to include a specific report requirement, especially as that could focus activity away from addressing the recovery of activity in the sector.
As colleagues will know, and as the hon. Member for Nottingham North set out clearly, dentistry has been significantly impacted throughout the pandemic due to the specific risks associated with aerosol-generating procedures, as the hon. Member for Central Ayrshire set out. The steps we have had to take during the pandemic to ensure the safety of dental patients and staff has led to a reduction in the number of NHS patients who can be seen, although activity continues to grow quarter on quarter. This reduction in NHS dental activity, including for band 3 treatments such as crowns, bridges and dentures, has had a knock-on effect on the laboratory sector. The Government recognise this, and we are already taking steps to secure the capacity of the sector.
First, throughout the pandemic, dental laboratories, where eligible, have been able to access a range of financial support that Her Majesty’s Treasury has made available to private-sector businesses and individuals affected financially by covid-19. Dental laboratories that satisfied the eligibility criteria were able to access financial support through the coronavirus business interruption loan scheme and bounce back loans. In addition, up to September 2021, technicians and lab workers had been able to access the coronavirus job retention scheme, known colloquially as the furlough scheme. The recovery loan scheme, now open until 30 June 2022, supports access to finance for UK businesses as they recover from the pandemic.
During the pandemic, we carefully considered the impact on the sector, including on dental laboratories and their important role, partly through work led by the chief dental officer. We continue to work closely with all relevant parts of the sector. I am happy to confirm that officials from the Department, together with the chief dental officer and others, will be happy to again meet representatives from the dental laboratory sector to better understand their concerns on capacity, what they are seeing in terms of the recovery of their business and trade, and what further action may be needed as we work to recover from the pandemic and safely increase levels of dental activity, for patients, the profession and the industry surrounding it.
Secondly, we are committed to building and maintaining a robust dental workforce and appreciate the important role played by laboratory technicians as part of that. In September, Health Education England released their “Advancing Dental Care” review, which provides recommendations on the reform of education and training for dental care professionals, including dental technicians.
Although this is not directly in my portfolio of responsibilities, I have asked officials to work closely with HEE on the recommendations and actions of this report, including, where it falls into my area of work more broadly, how apprenticeship places for clinical dental technicians are developed, based on an assessment of the role they could play in the delivery of NHS care. The Government are therefore already taking action to help secure the capacity of the dental laboratory sector and ensure it continues to meet the needs of patients in this country.
I turn to new clause 68. It would require the Secretary of State to publish a statement on measures taken to ensure universal access to NHS dentistry. In addition to the actions I have highlighted, I assure the Committee that this Government are taking action to ensure access to NHS dentistry and, again, I do not consider it necessary to include a requirement to make a statement on this issue on the face of the Bill.
Edward Argar
I will give way to the hon. Lady—not least so that I can have a glass of water.
Dr Whitford
That is not the least of my reasons for intervening. Rather than just stating that the Government are taking action, does the Minister plan to explain what action they will be taking?
Edward Argar
I am very touched by her medical concern for my welfare.
In light of the reduction in activity within dentistry due to the pandemic, dental practices have been asked to deliver as much care as possible, with their first priorities being urgent care, care for vulnerable groups and for children, and then delayed planned care. I put on the record my gratitude to the profession for its hard work and efforts during this time, and I am pleased to note that the levels of urgent care being delivered have now returned to pre-pandemic levels, because of the over 700 urgent care centres established in practices to improve access for people during the pandemic. Throughout the pandemic, we have worked closely with NHS England and NHS Improvement to consider the level of NHS dentistry that can be delivered safely. Activity thresholds for full renumeration are based on data showing what is achievable while maintaining compliance with infection prevention and control measures.
The pandemic has reinforced the fact that transformation in NHS dentistry is essential. As has been alluded to, NHSEI is leading ongoing work on reforming the current dental system, working with a wide range of stakeholders and system partners. We acknowledge that, even before the pandemic and the imposition of limitations that it necessitated, access to NHS dentistry was sometimes a challenge in some areas and for some people. Putting that right will require action to both reform contractual arrangements and ensure that there are trained and qualified dental teams providing NHS services throughout the country.
Since the announcement in March that NHSEI is leading on the next stage of dental system reform, it has continued to work closely with system partners and stakeholders, including the British Dental Association in particular. The NHSEI dental system reform will deliver against a number of fundamental aims, including delivering improved health outcomes, an increased focus on preventive dental work, affordability for patients, and recognising that changes need to be supported by the profession. Making the NHS dental contract more attractive to the profession is a key part of helping with vital recruitment and retention. I know that will be particularly welcome to hon. Members from rural and coastal areas, as it has been highlighted that there is a particular challenge in some of those communities.
A key objective of this work is to improve patient access to NHS care, with a specific focus on addressing inequalities. We will set out our proposals in that area next year, in addition to the provisions in this Bill that will allow the Secretary of State to expand water fluoridation schemes. In addition, Health Education England’s “Advancing Dental Care” programme will, over the next four years, deliver its blueprint for change to reform education and training, develop skills, enable modernised flexible working, and widen access and participation among the workforce.
Together, we believe these measures will address the key challenges that impede the delivery of NHS dentistry, and improve patient access to NHS care. The Government will carry on with this essential work, and will continue co-operating with HEE and external stakeholders on this important issue. For that reason, I ask—possibly in vain—that the hon. Member for Nottingham North considers withdrawing the new clause.
Alex Norris
I am grateful to colleagues for their contributions. I am particularly glad that the hon. Member for Central Ayrshire brought up units of dental activity, which are a Treasury way of understanding activity, not a public health way of understanding oral health. Although they are effective for setting balanced budgets on an annual basis, they are really bad for saving money—in fact, they have cost money. There is broad consensus that UDAs are long out of date, and that after 15 years, it is time to move away from them.
Dealing with new clause 68 first, I was glad to hear the Minister at least suggest that this is an active process, because it was the first sign I have seen that the move away was not just a conceptual one. On that basis, I will not press the new clause to a Division, because we will not prejudge that process. However, I gently say that we really need to get on with this, because lots of dentists are waiting on the outcome of that process before making their judgment as to whether or not NHS dentistry is in their future. I was also glad to hear the Minister acknowledge that the system was not good enough before the pandemic. In response, I would say that removing a third of the real-terms funding was perhaps a significant reason why it was not very good anymore, and in future the answer may lie in tackling that point.
Turning to new clause 67, I was of course glad to hear the Minister say that this issue is being taken seriously. However, I was not clear on what “taken seriously” means beyond the existing support there is for businesses generally, not least because dentists have operated in this half space of still being open but not having the fullest demand on their order books, which has often meant that they have fallen between stools. However, I think the offer of that meeting is better than the new clause and, on that basis, I will pursue the route of that kind offer. I beg to ask leave to withdraw the clause.
Clause, by leave, withdrawn.
New Clause 69
National lead for policy related to allergies
“Within 6 months of the passage of this Act the Secretary of State must direct NHS England to designate a national lead for policy related to allergies.”—(Alex Norris.)
This new clause brings in a requirement for the Secretary of State to ensure the appointment of a NHS England allergy lead.
Brought up, and read the First time.
Alex Norris
I beg to move, That the clause be read a Second time.
New clause 69 is very important indeed. It requires the Secretary of State to direct NHS England to appoint a tsar to lead on policy related to allergies.
In 2016, 15-year-old Natasha Ednan-Laperouse tragically lost her life after suffering an allergic reaction to a Pret A Manger baguette. Since then, her parents have campaigned tirelessly to ensure that her death was not in vain and to stop other parents and loved ones having to suffer as they are suffering. They set up the Natasha Allergy Research Foundation and their campaigning has already successfully led to Natasha’s law, which was implemented just last month and requires food retailers to display full ingredient and allergen labelling on foods made on premises and prepacked for direct sale. That is a tremendous achievement, and it will make a significant difference to lots of people. I have met the Ednan-Laperouse family, with their MP, my hon. Friend the Member for Hammersmith (Andy Slaughter); they are inspiring people and tremendous campaigners. The new clause is very much in the spirit of their latest campaign—I certainly would not bet against them.
The World Health Organisation has described allergic disease as a “modern epidemic”, while Allergy UK estimates that up to 21 million people in the UK are affected by allergies. Allergic disorders can have a detrimental impact on patients’ quality of life, as they not only have the obvious health effects, but can mean that social interactions that others take for granted—such as eating out, or even going to work—are a major health risk. Allergies can be complex: patients can suffer from several disorders at the same time, each triggered by different allergies.
In the 20 years to 2012, hospital admissions for anaphylaxis rose by 615%. Despite that, allergies are not particularly high up the political agenda for conversation and there is a perception of poor management across the NHS due to a lack of training and expertise. At the root of that is the fact that we have a very small number of consultants in adult or paediatric allergy and the fact that GPs receive basically no training in allergy.
Following the inquest into the death of Shanté Turay-Thomas—another tragic teenage death—the coroner highlighted the lack of a national allergy lead in her prevention of future death report, which was sent to the Department of Health and Social Care. I think today is a chance to make good on that, and I would be very interested to hear what the Minister has to say on those suggestions. Natasha’s foundation, with the support of Shanté’s mother, subsequently made the call for an allergy tsar.
Two weeks ago, the all-party parliamentary group on allergy, in conjunction with the National Allergy Strategy Group, launched its report, “Meeting the challenges of the National Allergy Crisis”. The report
“calls for an influential lead for allergy to be appointed who can implement a new national strategy to help the millions of people”
suffering. There is a real coming together across our communities of people in this space calling for this measure, and this the moment to do it.
Otherwise, as I have suggested, NHS allergy services will continue to get little attention, little prominence and little investment. Care is patchy and we know that people deserve much better support. An allergy tsar would act as a public champion for those with allergies, helping to deliver a national plan to join up GP and hospital services so that patients have a consistent and coherent NHS care pathway, and helping to promote the training of more specialist allergy doctors, consultants and GPs. It would make a difference to millions of people. I hope that the Minister will look upon the new clause favourably and give the answer that millions of people are waiting for.
Edward Argar
As the shadow Minister set out, the new clause would place a statutory responsibility on the Secretary of State, requiring him or her to direct NHS England to appoint an allergy lead. The shadow Minister rightly highlighted that tragic case that demonstrated to the country the issues and challenges in this space. I entirely sympathise with the intent of the hon. Gentleman, but I hope I can provide him with some reassurance that the amendment is not necessary, because NHSE is already able to appoint an allergy lead, or allergy tsar—call it what you will.
There is no specific national clinical director or specialty adviser for routine allergy services, but I am advised that NHS England and NHS Improvement keep their clinical leadership, including the national clinical director and national specialty adviser roles, under review to ensure alignment with the strategic priorities of the NHS and need. I am sure that NHSE will reflect carefully on the points made by the hon. Gentleman, and I will undertake to acquire a copy of the Hansard to pass on to NHS England and request that it considers the points he made in this context.
I also recognise that, more broadly, it is vital that NHS England and commissioners receive appropriate clinical advice in this area. That is currently provided by the clinical reference group for specialised immunology and allergy services. The CRG covers specialised treatment of certain immunological and allergic conditions. The allergic conditions include severe, complex and/or rare sub-groups. People with allergies continue to be supported through locally commissioned NHS services but, to support patients with more complex conditions, NHSE also directly commissions some specialist services. To support the implementation of coherent care pathways, NICE has also published guidance on a range of allergy conditions, including food allergy in under-19s, anaphylaxis and drug allergy.
We therefore do not believe that the new clause needs to be included in the Bill. Notwithstanding whether the hon. Gentleman decides to press it to a Division, I undertake to ensure that his comments and the case he makes for the role are passed on directly to NHS England. NHSE already has the power, should it wish to exercise it, to put such a person in post.
Alex Norris
I am grateful for that offer. I hope that when NHS England has a chance to consider what has been discussed in Committee, that will generate an offer to meet campaigners to understand what they are after and, we hope, to move positively on it. Beyond that, I am afraid that the Minister’s answer was too much in defence of a status quo that does not work for too many people for me to accept it. In the spirit of elevating the matter up the political agenda and creating that blinking light on someone’s dashboard to generate action, I will press the new clause to a vote.
Question put, That the clause be read a Second time.
The Chair
The final question that I must put is that I report the Bill, as amended, to the House.
Edward Argar
On a point of order, Mr Bone. Craving your indulgence, may I take this opportunity as we complete the lengthy passage of this legislation through Committee to put on the record our gratitude to the Clerks of the Committee, to the Hansard team and to the Doorkeepers? I also thank you and your fellow Chairs, and colleagues on the Committee. It would be remiss of me not to put on the record my gratitude for the amazing work done by my officials in the Department in preparing the Bill and in helping us to be ready to take it through the detailed scrutiny that has rightly happened in Committee. Thank you, Mr Bone.
Justin Madders
Further to that point of order, Mr Bone. I echo the Minister’s thanks, not only to you and the other Chairs, Mrs Murray, Mr McCabe and Ms Elliott, but to the Clerks, who have been described to us as very patient and helpful—great qualities in such a long Bill Committee—and to the other parliamentary staff, the Doorkeepers and the Hansard Reporters. As the Minister said of his officials, we too have a great team—though probably a smaller one—of researchers who have been fantastic in giving us the information that we need to make the arguments. I also thank the Whips—it would be remiss of me not to—without whom none of this runs as smoothly as it does. On that note, I thank the Committee for its indulgence.
Question put and agreed to.
Bill, as amended, accordingly to be reported.
Subsidy Control Bill (Sixth sitting)
(3 years ago)
Public Bill CommitteesRead Full debate Read Hansard Text Read Debate Ministerial Extracts
The Committee divided: - Ayes: 5 / Noes: 9 - Question accordingly negatived.
The Committee divided: - Ayes: 5 / Noes: 9 - Question accordingly negatived.
The Committee divided: - Ayes: 5 / Noes: 9 - Question accordingly negatived.
The Committee divided: - Ayes: 2 / Noes: 9 - Question accordingly negatived.
The Committee divided: - Ayes: 9 / Noes: 5 - Question accordingly agreed to.
The Committee divided: - Ayes: 9 / Noes: 5 - Question accordingly agreed to.
The Committee divided: - Ayes: 6 / Noes: 9 - Question accordingly negatived.
The Committee divided: - Ayes: 5 / Noes: 9 - Question accordingly negatived.
The Committee divided: - Ayes: 9 / Noes: 4 - Question accordingly agreed to.
The Chair
Before we restart proceedings, I remind Members about the updated guidance on face coverings and the increased risk in Committee. I encourage you to observe social distancing and to wear a mask when you are not speaking.
Clause 34
Information to be included in the subsidy database
Amendment proposed (this day): 40, in clause 34, page 18, line 9, remove “may” and insert “must”.—(Seema Malhotra.)
This amendment makes the regulations listed in subsection (2) mandatory for entries on the subsidy database.
Question again proposed, That the amendment be made.
The Chair
I remind the Committee that with this we are discussing the following:
Amendment 19, in clause 34, page 18, line 12, leave out “may, in particular,” and insert “must”.
This amendment seeks to ensure the Secretary of State will include all these measures in the regulations.
Amendment 41, in clause 34, page 18, line 12, leave out from “The” to “particular,” and insert “Regulations made under subsection (1) must”.
This amendment makes it a requirement for subsidies entered into the database to include the information set out in paragraphs (a) to (i) of subsection (2).
Amendment 20, in clause 34, page 18, line 27, at end insert—
“(j) any other matter which the Secretary of State deems necessary”.
This amendment is linked to amendment 19.
Amendment 21, in clause 34, page 18, line 27, at end insert—
“(j) the purpose of the subsidy”.
This amendment would allow the Secretary of State to include a requirement in regulations that a public authority’s entry in the database details the purpose of the subsidy.
Amendment 43, in clause 34, page 18, line 27, at end insert—
“(j) the date the subsidy or scheme was entered onto the database.”
This amendment requires the date on which the subsidy or scheme was entered onto the database, to be included in entries on the database.
Amendment 42, in clause 34, page 18, line 34, at end insert—
“(3A) The Secretary of State may by regulations make provision about further information that must be included in a public authority’s entry in the subsidy database in relation to a subsidy or subsidy scheme.”
This amendment allows the Secretary of State to make regulations setting out further information required to be published on the subsidy database.
Amendment 44, in clause 34, page 18, line 34, at end insert—
“(d) the date the public authority confirms the decision to give each subsidy under the scheme;
(e) the duration of each subsidy under the scheme;
(f) any time limits or other conditions attached to the use of each subsidy under the scheme;
(g) the amount of each subsidy or the amount budgeted for each subsidy under the scheme;
(h) the date each subsidy under the scheme was published.”
This amendment requires that the information required to be entered into the subsidy database for subsidy schemes includes much of the same information required for subsidies.
Kirsty Blackman
Thank you for chairing the Committee, Ms Nokes. I came back thinking that I had notes, but I have just written two sentences on a bit of paper. Hopefully I will not ramble too much. I want to speak to amendment 19 and amendment 20, which is linked to amendment 19, and amendment 21. I think that is all, but I will speak to other amendments as we come to them.
The logic behind amendment 19 is, unsurprisingly, to try to give us a bit more certainty about what the Secretary of State will require to be included in the subsidy database. It changes “may, in particular” to “must” in subsection (2), to give us certainty that those things will definitely be included. That strengthens the clause and makes it clearer. Amendments 20 and 21 allow the Secretary of State to include anything else that they think is necessary, because if “may” is strengthened to “must”, we need to allow the Secretary of State to have a bit more flexibility to include anything else not listed.
Amendment 21 is about the purpose of the subsidy. We are concerned, having looked at the entry requirements for local authorities—sorry, I mean public authorities; I spent far too many years as a local authority councillor. This amendment has been included because I am not convinced that paragraph (b) on the policy objective of the subsidy scheme adequately covers what we would like to have in that database. People who put things in the subsidy control database need to say why they are giving the subsidy to the organisation. That is important not just for setting the policy objective, particularly in subsidy schemes, but for knowing the point of that individual subsidy—why it is given to that organisation. It will be very helpful if the Minister outlines whether he thinks additional things may be added to this list by the Secretary of State. I hope he can be clear with the Committee that this is not necessarily a prescriptive list and the Secretary of State may include other things in it. I am assuming that is why the language was chosen at the beginning of subsection (2), but if the Minister could state that, it would be helpful for us to understand.
We have discussed at some length the importance of the subsidy control database, and the fact that it is the only way enterprises or public authorities will be able to find out about subsidies that have been made that may distort competition. I agree with the shadow Minister, the hon. Member for Feltham and Heston, that it is very important that we get this right, and that we have as much information as possible, so that people can make pre-action requests and challenge a subsidy.
The subsidy control database is not a tick-box exercise, and I hope that subsidy control is not a tick-box exercise; subsidy control is necessary, and not just so that we can meet our international obligations. Presumably, the Government think that it is a good thing. It is good that we have regulations around subsidies; that is very important. If subsidy control is not to be a tick-box exercise enabling us to meet our obligations, and if we are not saying, “We’re just going to do the bare minimum,” it is key that the Government give some thought to the amendments tabled by Labour and the SNP, and consider whether it is important to strengthen the data on the subsidy control database, as well as the ability to search it and timelines, which we have talked about.
Amendment 21 would require the purpose of the subsidy to be put on the database. That is missing from the list in clause 34. It would be useful for organisations and public authorities to have information on why the subsidy was given. If the Minister believes that
“the policy objective of the subsidy or scheme”
adequately covers the purpose of the subsidy, it would be helpful if he could state that, and say that the Government will request authorities to include the purpose of the subsidy. That would give us comfort about the information that will be on the subsidy control website.
The Parliamentary Under-Secretary of State for Business, Energy and Industrial Strategy (Paul Scully)
It is, as ever, a pleasure to serve under your chairmanship, Ms Nokes. I thank hon. Members for their interest in clause 34 and the amendments to it. As we have heard, the clause concerns the technicalities of how we will require public authorities to upload details of subsidies to the database, and allows the Secretary of State to make regulations setting up the information requirements of the database. The regulations will be technical in nature, and Parliament will have the opportunity to review them through the negative procedure.
We have thought really carefully about this, and I would like briefly to take the Committee through our rationale for taking the power. The definitions, rules and processes at the core of the proposed new regime are set out in the Bill. Further technical detail and specificity will be needed on the exact transparency requirements. Our new regime needs to be responsive to market and technological changes and to reflect future trade deals and international obligations. It is also important that it can respond to unforeseen events and developments. We need to be able to act quickly, when necessary, to events such as financial crises, covid-19, and changes in world markets and the global capacity for the production of particular materials.
The list of information that must be uploaded on the database relates to the technical, administrative reporting requirements placed on public authorities, rather than the substantive subsidy control requirements that determine which subsidies are given. For these reasons—the need to change at pace, and the fact that these are simply reporting requirements, not rules about when subsidies can be given—we have provided for the Secretary of State to have the power to make these requirements by regulation, rather than putting them in the Bill.
We share the desire to be as transparent as possible. This is a crucial part of the regime, not a tick-box exercise; I assure the hon. Member for Aberdeen North that we take it very seriously. In order to give Parliament further information about what kind of information may be provided, subsections (2) and (3) provide illustrative lists.
Amendments 19, 20, 41 and 42 concern similar matters, so I will address them together. As I have said, the Government’s intention in providing the list of requirements in subsections (2) and (3) is to illustrate the kind of information requirements that may be included in the regulations. Those regulations are not yet prepared. More work is required to gather evidence and scope out the most appropriate way of setting out the database upload requirements in legislation. These requirements need to be clear and operationally viable, and must ensure appropriate transparency and value for those interested in subsidy award data.
Our intention is to make the regulations as straightforward and concise as possible and to avoid duplication. The amendments would mean that the Secretary of State must include in the regulations all the fields listed in clause 34(2).
Amendment 41 also covers the list in subsection (3)—the lists would no longer be illustrative but would be a minimum that could be added to. The regulations would be required to include information that, on the basis of the information gathered before drafting the regulations, might be surplus to requirements. We want to ensure that the exhaustive work is done beforehand, because we have tried to avoid creating additional, unnecessary reporting requirements for public authorities in the UK’s new subsidy control regime while still being as transparent as possible. Before setting out the requirements, the Government will carry out full analysis to ensure that data fields are useful and appropriate.
Kirsty Blackman
Can the Minister give me some comfort that public authorities updating the database and those searching the database will be involved in the consultation, and that the majority of the decisions taken by the Government are likely to be led by consultation responses, rather than if the consultation comes back and states, “We absolutely want paragraph (f); that absolutely has to be there” the Government would be unlikely to decide not to have paragraph (f)?
Paul Scully
We will engage with all those bodies—with the public authorities that will have to do the reporting; with the recipients of subsidies; and with people interested in subsidy data and transparency. We have already started that engagement, and it will continue because it is important that the database is as useful as possible and is balanced by a proportionate approach so that we do not duplicate effort. None the less, these will all be taken into account as we gather the evidence.
The data required for the database needs to be available to public authorities without creating large administrative burdens, either on those authorities or on subsidy recipients. It needs to be data that is relevant to all subsidies and schemes, or to be clear in which circumstances it is required, and where it is not. It needs to be presented so that those viewing it can easily access the data available and seek out the information they need.
In addition to getting this right for commencement of the new regime, it is important to remember, as I mentioned earlier, that the requirements may need to change over time. For these reasons, I believe it is right that the lists in subsections (2) and (3) remain illustrative—that is to say, the regulations should not be required to include all types of information listed. The ability to tailor the regulations in future is essential for ensuring that the database does what it needs to do and can allow for different requirements for different types of subsidy.
Amendments 21, 43 and 44 seek to add further categories of information to the illustrative lists. As I have already set out, these lists should be considered illustrative of the technical requirements that the Government expect to bring forward in secondary legislation. As such, any additions are unnecessary.
The illustrative list provided clearly demonstrates that the regulations are intended to cover the information for interested parties to understand the key facts about a subsidy or subsidy scheme, and whether it is likely to harm their interests.
Amendment 40, which stands in the name of the hon. Member for Feltham and Heston, would make it compulsory for the Secretary of State to make regulations under this power. I assure members of the Committee that the Government intend to bring forward these regulations before the commencement of the subsidy control regime. However, I do not believe it is appropriate to consider these regulations essential to the operation of the new subsidy control regime as set out in the Bill, because the regulations are essentially technical.
Kirsty Blackman
The Minister says that the Government intend to bring forward the regulations before the subsidy regime starts. Can he give us an assurance that it will be not a few days before but long enough for public authorities to understand their obligations and include the correct data?
Paul Scully
I can reassure the hon. Lady on two things. First, we want to ensure that we develop this with public authorities—that we engage with them so that they are part of the process. They will be reporting, so we want them to understand what they have to do.
Secondly, as I said in answer to the hon. Lady during a previous sitting, we want to do this in good time and ensure that public authorities, beneficiaries and everyone involved have time to digest it. That is very much the aim ahead of commencement.
The regulations are essentially technical in character and do not fundamentally change the substantive subsidy control requirements. The current practice clearly demonstrates that there is no need to have such specific requirements in force for the database to be operational as it is already up and running, although we can and will improve it.
I therefore request that the amendment be withdrawn.
Seema Malhotra (Feltham and Heston) (Lab/Co-op)
I thank the Minister for his remarks and the hon. Member for Aberdeen North for speaking to her amendments. I remain concerned that the provision is not nearly robust enough and I was not fully reassured by the Minister’s comments. I take on board some of his remarks. Further work and research may be needed to check that the list is complete or whether more information may be needed on the database. However, I did not understand some parts of the Minister’s response. Which bit of subsection (2)(a) to (i) would he not want included in any subsidy entry? Why are they in the Bill to start with? They all seem eminently sensible.
I would like to push two of our amendments to a vote. The first is amendment 40, which would make it mandatory for the Secretary of State to make the provisions by regulation. It would be made mandatory for information to be entered, and that is done by the amendment changing the word “may” to “must” in subsection (1). Although I will not press the other amendments, I would like to push amendment 43 to a vote. For the reasons I outlined, it is fundamental that the date on which the subsidy or scheme was entered on to the database be included in the entries. So much can be hooked on to that date and if it is not, scrutiny becomes much more fragile, as is the ability of interested parties to bring forward cases with clarity. Those are fundamental points if information is to be debated robustly. The system cannot be at all robust if those important elements are missing.
Question put, That the amendment be made.
Kirsty Blackman
I beg to move amendment 22, in clause 34, page 18, line 35, leave out subsection (4) and insert—
“(4) Regulations to be made under this section for the first time are subject to the affirmative procedure. (5) Any subsequent regulations made under this section are subject to the negative procedure.”
This amendment would have the regulations be considered under the affirmative procedure, in the first instance, and the negative procedure for any future tweaks.
I like to think I am not an unreasonable person. We have debated at some length what needs to be on the subsidy control database, and it was also discussed during our evidence sessions. It is fundamental to the operation of the scheme that the subsidy control database is fit for purpose and that the information that is available on it is agreed in consultation with the public authorities and the enterprises that it will affect. That relates both to what goes on to the database and to the ability to challenge anything that is happening.
When the regulations are first made, there is likely to be some disagreement. We have had plenty of disagreement already about whether a provision should say “may” or “must” and members of the Committee have brought up good points that Ministers may not have heard before. The Minister’s characterisation of some of the consultation responses has been slightly challenged by the shadow Minister on the ground that some of those responses were not as clear as the Minister suggested. For that reason, when we consider for the first time the information to be included on the subsidy control database, it is important that we do so by the affirmative procedure. Any subsequent changes can be done by the negative procedure.
As the Minister has said, this is a framework Bill, but we have not seen this part of the framework. If the scheme is to work, we need to see what it will involve. The Minister said that this section was specifically about what was included on the database and not about the regulation of subsidy because there are rules on whether or not they are awarded. He is right about that, but we will not be able to understand whether subsidies are being given unless they are on the database. We simply will not know whether they exist. The only burden on public authorities is to provide a letter to the business; it does not involve any level of check or anything that enables us to scrutinise what has happened. The affirmative procedure, in the first instance, would be the best way forward, with the negative procedure for future iterations—tweaks to ensure it is operating correctly.
Paul Scully
Amendment 22 concerns the procedure by which the Secretary of State can make regulations to set out the information that public authorities must upload to the transparency database.
As we have discussed in the context of other amendments, these regulations are highly technical. They do not change the substantive subsidy control requirements or the basis on which subsidies can be given. They are also not necessary for the database to function—as demonstrated by the fact that it is already operational.
The negative procedure is most appropriate for a technical issue such as this. As I mentioned this morning, the Bill proposes the right parliamentary procedure for different types of secondary legislation. I mentioned the powers to amend the exemption thresholds in clause 42(1) being subject to the affirmative procedure because they affect the substantive subsidy control requirements rather than the thresholds or entries on the database that we are discussing.
The regulations will be drafted and published in good time to ensure that public authorities understand what the regulations will require of them. I therefore request that the amendment be withdrawn.
Kirsty Blackman
I thank the Minister for his statement. It will be interesting to see whether the regulations come forward in the negative or the affirmative.
I do not intend to press the amendment to a vote. I say simply that, although the website is operational, it is not very functional. The Minister has admitted that it has shortcomings, a number of which would have been sorted if the intention of the regulations had been made clearer in the Bill or if they would be discussed under the affirmative procedure.
I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Question proposed, That the clause stand part of the Bill.
Paul Scully
The clause gives the Secretary of State the power to make regulations that stipulate what information must be provided by a public authority with respect to a subsidy scheme or subsidy award when it is recorded on the subsidy database.
The regulations will be subject to the negative procedure.
Kirsty Blackman
Subsection 2(g) of the clause mentions
“the amount of the subsidy or scheme or the amount budgeted for the subsidy or scheme.”
That directly contradicts what the Minister said in relation to tax measures. He said that tax measures could not be put on to the database in advance of knowing exactly how much the tax measures would be. I suggested that it would be possible to include the budgeted amount on the website. The Minister said that would not be possible—it would be important to have the final amount. This specifically states that in regulations the Government might ask for the budgeted amount—particularly for tax measures, where there is such a long time before a public authority has to upload the information, during which a business might, because of the distortive effects of the subsidy, be in serious financial difficulties and go under. It is bizarre that the argument that the Minister made is directly contradicted by subsection 2(g). It would be helpful to know why the provision is in the Bill if the Government would not even consider using it—which is what he suggested earlier.
Seema Malhotra
I am grateful for the opportunity to say a few words in this stand part debate.
We have discussed extensively the considerable concerns about the framing of clause 34. We will not vote against clause stand part, and there is no mechanism for us to abstain. I will make one final comment, on the content of subsection (3). It is extremely important that there is a thorough set of requests from public authorities to make sure that the criteria being used for the calculation of the subsidy are explicit, for all the reasons of transparency that we have talked about. We need to see that embedded through the Bill. To be fit for purpose, there are a number of areas where we believe that needs to be strengthened. We intend to come back to these issues at future stages of the Bill.
Paul Scully
To answer the question from the hon. Member for Feltham and Heston, the criteria used to determine how the figures are arrived at are part of the purpose of the subsidy, which is why that information is in the Bill, but guidance will also be provided, as will regulations on gross cash equivalents.
On the point made by the hon. Member for Aberdeen North, that, effectively, is why this is an illustrative list. Budgeted amounts can vary significantly from the final subsidy, so it might not be appropriate for them to be used in all cases, including for tax. None the less, we want to work out these issues on an evidence-led basis, having engaged with the public authorities to see how the database will work in practice. It is important we work with the public authorities to come up with the guidance and final regulations in plenty of time before commencement.
Kirsty Blackman
It would be very helpful if when the consultation is carried out the Government were to ask enterprises whether they would prefer to see the data earlier, or the final figure. I think the Government have got it wrong on this one.
Paul Scully
As I said, we will engage with enterprises and public authorities, as well as academic and legal experts, to make sure we get the balance right. We think we have a balanced and proportionate response, but that will be developed in plenty of time before commencement.
Question put and agreed to.
Clause 34 accordingly ordered to stand part of the Bill.
Clause 35
Introductory
Question proposed, That the clause stand part of the Bill.
Paul Scully
The Bill sets out a robust but flexible framework for the awarding of subsidies. As part of the regime provides the necessary flexibility for public authorities, certain types of subsidies are exempt from the framework entirely, or from different elements of it, depending on the nature and context of different subsidy decisions. For example, except for the continued application of clauses 16 and 17 in respect of goods, there is no need to apply the subsidy control requirements to lower value subsidies that have minimal distortive impacts, including those given to services of public economic interest.
Although the framework should be flexible enough to allow public authorities to provide the necessary support in emergencies, in other areas, such as monetary policy subsidies, it is entirely inappropriate for them to be within scope of the subsidy control regime. For monetary policy, it is crucial that the subsidy control framework does not undermine the Bank of England’s independence or hinder its role in the macroeconomic framework. Part 3 sets out a number of other exceptions, such as on subsidy schemes established before the regime will be enforced, where there is a need to give certain subsidies or make a subsidy scheme to maintain financial stability, and subsidies given for large cross-border co-operation projects.
Seema Malhotra
The clause explains this part of the Bill, which sets out where certain subsidies and schemes are to be exempt from the requirements of the regime. We do not have any specific issues with the clause, and are happy to support that it stand part of the Bill.
Question put and agreed to.
Clause 35 accordingly ordered to stand part of the Bill.
Clause 36
Minimal financial assistance
Amendment proposed: 33, in clause 36, page 19, line 17, after “requirements” insert
“with the exception of duties under section 33,”.—(Kirsty Blackman.)
This amendment requires that Minimum financial assistance under £315,000 is subject to the subsidy database requirements in clause 33, despite being exempt from the other control requirements in Part 2.
Question put, That the amendment be made.
Paul Scully
The exemption allows public authorities to award low-value subsidies of up to £315,000 over three years with maximum flexibility and minimal administrative burden. Subsidies given through the minimal financial assistance exemption are very unlikely to have any appreciable distortive impact on international trade and investment, or UK competition and investment, so it is appropriate to exempt them from the substantive requirements of the regime, subject to the value threshold set out in the clause and the relevant procedural requirements set out in clause 37.
Kirsty Blackman
I continue to believe that subsection (2) of the clause is meaningless and unpoliceable because of the way that the subsidy control database is being put together. I would very much like it if the Minister would, either now or at some future point, in writing preferably, let us know how the Government intend to ensure that public authorities are able to find out whether an organisation has had a subsidy before, what its value was, and whether the subsidy that it will potentially award to that organisation will push it over the £315,000 limit.
There is no point in the clause if there is no way in which it can work because of the Government’s decisions on how the database is run. I am very pleased that a public authority will have to write a letter to an organisation to say, “We’re giving you a subsidy under the minimal financial assistance scheme,” but that does not go far enough. It may be helpful if it had to write a letter to all granting authorities, because then they would all be aware of the subsidy that had been given, and they could take decisions. This is an unfair and not sensible burden to put on granting authorities, because there is no way that they can ensure that they are abiding by the law, or get the transparency data to prove that they have done so.
Seema Malhotra
We will not support clause stand part. My contribution will build on the arguments made by the hon. Member for Aberdeen North. We debated amendment 33, which I think went part way to covering some of our concerns, but our concerns are broader, in questioning the exemptions from some of the control requirements.
The clause outlines subsidies that are exempt from the subsidy control principles, stating that the principles do not apply to subsidies worth less than £315,000 to one enterprise over three years. We believe that subsidy control principles exist for a reason; we are having these debates and setting up this regime for a reason. Subsidies should help to pursue a specific policy objective. They should be proportionate. They should encourage certain behaviours. They should not fund unnecessary costs. They should not be distortive or cause overwhelmingly negative effects. They should not affect competition and investment within the UK. Those principles should stand regardless of the size of the subsidy.
A subsidy being smaller does not mean that it cannot be disproportionate or bring about negative effects. All subsidies have the power potentially to harm the economy. They should be transparent and subject to scrutiny and the potential for challenge, and therefore all should be required to be in line with the subsidy control principles. I have not heard anything from the Minister, although he may yet persuade me otherwise, about why the clause is needed and why the Bill cannot require all subsidies to be transparent and in line with the subsidy control principles—it is the Subsidy Control Bill.
Paul Scully
Clause 37, as we will discuss in a second, states that the public authority has to confirm with the enterprise that the subsidy is still below the threshold. That is the right balance for a proper process to confirm that the threshold is respected without applying disproportionate burdens of oversight for small subsidies that are unlikely to be distortive in any way. Although the regime is light touch, it still imposes some obligations, and it is not proportionate to impose them on very small subsidies that are unlikely to have an impact on trade and competition. For that reason, we feel that the balance is right between the transparency required to make sure that the subsidies are made and reported, and that we can understand the effect and distortion they may have, and the administrative burden that will be put on public authorities and those smaller businesses.
Kirsty Blackman
I appreciate the case that the shadow Minister made. I am not entirely convinced at this point; I need to think about it a bit more. I will therefore abstain if clause stand part is pushed to a vote, but I reserve the right to change my mind on Report.
Paul Scully
Clause 36 establishes the minimum financial assistance—or MFA—exemption and the value threshold for awarding subsidies under the exemption. That exemption allows subsidies to be given without having to comply with the subsidy control requirements, and clause 37 sets out the procedural requirements to use that exemption.
Before awarding an MFA subsidy, a public authority has to provide the intended beneficiary with an MFA notification. That must set out that the subsidy is proposed to be awarded as MFA, the value of the prospective subsidy and it must request confirmation that the enterprise will not exceed the MFA threshold. The public authority can only award the subsidy when it has received this confirmation. When awarding an MFA subsidy, the public authority must give the intended beneficiary an MFA confirmation, which is a written statement confirming that the subsidy has been awarded through the MFA exemption, the gross value amount of the subsidy and the date on which the subsidy was awarded. The beneficiary must keep a record of this information for three years, beginning on the date on which the subsidy was awarded.
Stephen Kinnock (Aberavon) (Lab)
Clause 37 refers to the enterprise needing to keep a written record. How will the public authority know that the enterprise is keeping that written record?
Paul Scully
That would be for challenge, should the overall subsidy be challenged in a court through judicial review. The public authority should exercise its statutory obligations.
Stephen Kinnock
Just to clarify, we are taking it from the enterprise based on trust?
Paul Scully
It works both ways. If I were an enterprise receiving a subsidy, such as minimum financial assistance, I would want to make sure that I was doing my own due diligence, and public authorities do. Any businessman would know that there are legal implications and legal requirements of running a business. It should be the case that it works both ways.
There are interlocking elements within the framework that ensure that both public authorities and enterprises are doing their own due diligence. The procedural requirements will make sure that enterprises receive subsidies only through the MFA exemption when they are genuinely entitled to do so, while still minimising the administrative burden associated with awarding a subsidy. I commend the clause to the Committee.
Kirsty Blackman
I have a few questions about the clause. It would be helpful if the Minister could lay out what he expects the timeline to be for these requirements. The minimal financial assistance notification has to be given in advance of the subsidy being awarded. It is an intention letter that says the body intends to give the subsidy. Presumably that has to happen at any point in advance of the actual cash changing hands or the tax measure taking place.
My second question is about the minimal financial assistance confirmation, which is the written statement confirming that the subsidy has been given, the date it has been given and the gross value of the assistance. The Minister made clear earlier in the debate that it could be up to a year, or even longer, before an enterprise actually knows what the gross value of that assistance is if it is a tax measure. Are the bodies expected to give the confirmation as soon as they give the subsidy, or are they expected to give the confirmation as soon as they know the exact amount, particularly for tax measures? The provision does not seem to add up with the details we were given on the subsidy control database.
The other questions I have are about what “written” means. If a public authority emails these details to an organisation, does that count as written? Clause 37 says that
“the enterprise must keep a written record”.
Does it have to keep these details on a piece of paper in a filing cabinet, or can it be kept in an electronic form? What if the enterprise does not have much in the way of offices? What if it operates largely online? We have seen many enterprises move towards online working. Is an electronic version acceptable? Would the enterprise be fulfilling its duties by keeping an electronic record, or do we need that bit of paper, hanging about somewhere in someone’s house or office or wherever?
If the Minister cannot give exact answers to my specific questions, it would be handy if he could supply the answers at a later date—
Kirsty Blackman
In writing would be absolutely fine—if that is by email, I am happy to receive it electronically. It would be helpful if the Minister could write to us to confirm what “written” means. For people to be able to meet their obligations, he will probably have to make some sort of statement about what the Government intend, either today or at a later stage.
Seema Malhotra
It is a pleasure to speak to clause stand part. The Minister could have saved himself a whole debate had he supported our arguments on clause 36, because this clause sets out the procedural requirements attached to subsidies given under the clause 36 exemption.
The clause outlines how public authorities must provide the intended recipient with a notification, stating that they cannot award a subsidy until they have received confirmation from the intended recipient in a number of areas, including that the relevant threshold will not be breached. There are a whole set of debates to be had about what is considered a subsidy and what is not—we have had that on other aspects of the Bill—and about the lack of full clarity on the interface with the freeports policy or on taxation and subsidies. Clear guidance will be needed for interpretation by the enterprise of what it needs to consider when answering the question under subsection (2)(c). I hope that the Minister will set out in his remarks how he intends that to happen, to give surety to the enterprise and to the public authority.
As I said, Labour does not support clause 36. In my view, we have not heard a convincing case for such exemptions, which seem to be beyond what is needed. Our starting principle must be and must remain transparency. Confidence in this regime is all about transparency, to ensure that there is no cronyism or potential fraud. Once we have set up an agile, simple and robust system, which it is surely not beyond our wit to do, it should be straightforward to provide that information.
The Minister said earlier that the MFA notification would not need to be published. Will he clarify whether that is still the intention if an MFA notification goes to an enterprise? Local authorities and public authorities can simply publish on their websites, for example, when they have given some form of notification. That is a common thing to do, and publishing on a website what has been given to an enterprise does not in my view involve any issue of commercial confidentiality or of not being in the public interest; it would simply be transparent.
If we do not win the argument about changing the detail of the regime, there might be a middle way: at least the notifications ought to be published. Will the Minister tell us whether that has been given consideration and, if so, what the conclusion was and why? If it has not been given consideration, perhaps he will take it away and we can look at it as part of ongoing discussions with local authorities and other public authorities on other areas in the Bill, particularly clauses 32, 33 and 34.
Given that clause 36 remains part of the Bill, however, we recognise that the regulations listed under clause 37 will be necessary to bring some procedure to minimal financial assistance. We will therefore not vote against clause stand part.
Paul Scully
I will cover some of the questions that have been asked. It is fine for written records to be electronic, and we expect to provide guidance on that. Those letters should be sent as soon as possible, based on the value calculation at that point. Small subsidies will be far less complex than some sort of mega tax break or anything like that, which will have a far more uncertain value. As we were discussing this morning, the subsidy will typically crystalise at the time of the tax declaration, because that will be when the value is better known, but essentially it is for public authorities to let people know as soon as possible. I will write to the hon. Member for Aberdeen North to expand on the tax situation and the tax breaks, using electronic means if she is amenable to that, rather than non-verbal communication such as interpretive dance or anything else we talked about earlier. I will get an email to her to clarify the situation.
The hon. Member for Feltham and Heston talked about having a robust situation. The reason why having the ability to grant these smaller exemptions is really key became apparent during the covid pandemic. Although there was a scheme, there were still exemptions that we had to work on really quickly, and I had so many businesses from the hospitality and retail sectors coming to me because they were incredibly hard pressed. We were having to delay what seemed like some of the easiest awards that the Government could make throughout the pandemic because of the bureaucracy of the state aid framework that we had at the time. This is why we are trying to get that proportionate approach, balanced between having something that is agile—that can work with whatever circumstances we face and minimise administrative burdens—and having a robust and appropriate situation that people can look at and address through review by the Competition Appeal Tribunal, should they so wish.
Turning to the issue of publication, if local authorities want to publish these letters, that is up to them. What we are saying is that they should be sending them to the enterprises—the recipients and the beneficiaries—in the first place.
Seema Malhotra
The question I was asking was whether consideration had been given to whether public authorities should publish those letters. Some may and some may not, but there is not necessarily a downside to publishing letters that are already being sent. Has active consideration been given to that question? Has advice been received? Has any consultation been done, and what was the outcome of it, or is this an area that has not yet been considered?
Paul Scully
It is something that we will continue engaging with local authorities and public authorities on. For local authorities, there are already other spending databases, so subsidies over £500 will already appear on those databases. Again, we will work through that kind of engagement as we come on to the guidance.
Kirsty Blackman
The Minister said that the letters are allowed to be sent by electronic means. Can I clarify that the written records kept by enterprises are also allowed to be electronic?
Paul Scully
I believe that is the legal definition of what “written” means and therefore how those records are kept, but if it is not, I will clarify that later.
Question put and agreed to.
Clause 37 accordingly ordered to stand part of the Bill.
Clause 38
Services of public economic interest assistance
Question proposed, That the clause stand part of the Bill.
Paul Scully
The clause establishes an exemption from the subsidy control requirements for subsidies of up to £750,000 awarded for the delivery of services of public economic interest, and this type of subsidy is called SPEI assistance. This exemption operates in a similar way to the exemption for low-value subsidies—minimal financial assistance—in the previous clauses. Services of public economic interest are public services that it is important to deliver but that would not be delivered by enterprises at the necessary level without subsidy. They include, for example, certain rural transport services.
The SPEI assistance exemption operates in a similar way to the MFA exemption, but has a higher value threshold of £725,000 within the current and previous two financial years. That is because of the importance of delivering this category of services, and the fact that SPEI subsidies in general are less likely to be distortive because they are given for services that are not supplied in an appropriate way by the market, or in some cases not supplied at all. Therefore it is appropriate to exempt them from the subsidy control requirements. If it is desired to grant a subsidy above that limit, the general procedure for the award of SPEI subsidies set out in clause 29 must be followed, and such a grant is also subject to a separate transparency threshold set out in clause 41. To ensure that the SPEI assistance threshold is correctly applied, all SPEI assistance subsidies are subject to rules that allow the cumulative total for each enterprise to be calculated.
Clause 42 defines “minimal or SPEI financial assistance”, which effectively encompasses all the different low-value exemptions through which an enterprise could receive support. For example, on MFA, set out under clause 36, aid given under the EU state aid de minimis regulations before the end of the implementation period, and exempt low-value subsidies given in the interim regime under the terms of the trade and co-operation agreement, should all be taken into account. That stops enterprises being able to receive many subsidies that are considered low value in isolation, but cumulatively could create distortions if their combined value exceeds the threshold. I commend the clause to the Committee.
Seema Malhotra
I thank the Minister for his opening remarks. Subsidies given through the exemption do not have to apply the subsidy control requirements if the amount of assistance received by the beneficiaries totals less than £725,000 over a three-year financial period. Clause 38 sets out that services of public economic interest are exempt from the subsidy control principles. We recognise the force of some of the arguments made by the Minister, that these are generally in relation to services that are not being provided by the market, and that the SPEI assistance is different from other subsidies. There are some areas that we would like to explore further, but overall we are not arguing against this today and therefore we will support the clause.
Paul Scully
I said at the beginning that it was £750,000, but I meant £725,000 throughout.
The Chair
Thank you for that clarification.
Question put and agreed to.
Clause 38 accordingly ordered to stand part of the Bill.
Clause 39
Section 38: procedural requirements
Question proposed, That the clause stand part of the Bill.
Paul Scully
The previous clause establishes the SPEI assistance exemption and the value threshold for awarding subsidies under the exemption. This clause sets out the procedural requirement to use that exemption.
Seema Malhotra
I thank the Minister for his opening remarks. He has outlined that clause 39 establishes some of the procedural requirements to be attached to SPEIs. We think, for reasons outlined in previous debates, that these requirements will be important and add necessary procedures to the granting of assistance to SPEIs. However, I think the question whether there is to be publication of notifications is a matter that the Minister might take away and consider in relation to the similar debate that we had on clause 37. I will be grateful for that and will perhaps come back to this issue during the Bill’s future stages, after we have time to further consider it.
Paul Scully
Duly noted.
Question put and agreed to.
Clause 39 accordingly ordered to stand part of the Bill.
Clause 40
Mergers and acquisitions
Question proposed, That the clause stand part of the Bill.
Paul Scully
The clause sets out how a subsidy given through the minimal financial assistance and service of public economic interest exemptions is to be treated following a merger or acquisition. It is important for the purposes of compliance with the relevant financial thresholds. These provisions provide clarity and ensure that exemptions cannot be exploited by enterprises restructuring themselves in such a way as to receive more exempt subsidies.
Bill Esterson (Sefton Central) (Lab)
It is a pleasure to see you back in the Chair this afternoon, Ms Nokes. We have no objections to the clause.
Question put and agreed to.
Clause 40 accordingly ordered to stand part of the Bill.
Clause 41
Subsidy database: exemption for SPEI assistance
Question proposed, That the clause stand part of the Bill.
Paul Scully
Services of public economic interest are vital services that without Government subsidy would not be supplied in the appropriate way by the market, or in some cases would not be supplied at all. It is important that public authorities can support the delivery of vital public services using those subsidies. The clause exempts certain services of public economic interest subsidies from the transparency requirement in clause 33 to upload the subsidy on to the database. There are two categories of exemption.
First, clause 41(1)(a) provides that a subsidy for a service of public economic interest of less than £14.5 million is exempt from the obligation to upload. Secondly, even where the subsidy for a service of public economic interest is £14.5 million or more, it is exempted from transparency obligations if it has been given for certain activities listed in the clause, including hospital care, social housing or airports with fewer than 200,000 passengers annually. Subsection (2) details that, when calculating the value of the subsidy, the gross cash amount should be used, or, if the subsidy is not provided in cash, the gross cash equivalent.
Bill Esterson
We do not believe that the clause should stand part. That is consistent with our approach to the problems with the lack of content on the database and the lack of transparency. The clause outlines that subsidies of less than £14.5 million given to SPEIs are exempt from having to be published on the database. As my hon. Friend the Member for Feltham and Heston laid out in her comments on clause 38, we understand that the subsidies to services of public economic interest should not have to obey the subsidy control requirements, but we cannot see why they should not be published on the database. I also do not think I heard the Minister explain why the £725,000 threshold applies in clause 38. Perhaps he could answer that in his response.
The bigger question on the clause is why the Government have chosen to exclude payments to services of public economic interest from the database at all. The Minister talked about transparency. Why is there no transparency for these payments? The Government’s recent track record is—as the Public Accounts Committee put it—one of enormous sums of money being given with no apparent return in the case of Test and Trace, and hundreds and millions of pounds-worth of contracts going to people with connections to Government Ministers or other connections to Government. In the case of Andrew Mills, who was an adviser to the Board of Trade, a company that he set up last year assisted in the awarding of a £252 million contract to Ayanda Capital, but a significant proportion of the personal protective equipment that it supplied turned out to be unusable. That was very wasteful and inefficient, but the process was very lucrative for individuals with such connections.
That is why transparency is so important. Recent history has given the country the impression that the Government are reluctant to engage in proper transparency. That is not a place in which anybody on this Committee should want to be. It feels at times that the Government fail to grasp that subsidises are financed by public money and that they should therefore be subject to appropriate transparency and scrutiny. We have discussed that a number of times. Subsidies to SPEI enterprises are no exception. Although they may go towards enterprises that differ from other subsidy recipients, they are still financed by public funds and should therefore still be subject to transparency, and the public should still be able to access information about them. These are much larger sums of money.
If that does not happen, subsidies given to SPEIs risk being abused and given to inappropriate recipients—including, as we have seen over the past year and a half, those with connections to the Conservative party. During last week’s evidence session, Professor Rickard told us:
“Through transparency, we can get better compliance and better value for money”.––[Official Report, Subsidy Control Public Bill Committee, 26 October 2021; c. 21, Q24.]
Does the Minister disagree with that analysis? Can he tell us what drawbacks he sees to subjecting subsidies given to SPEI enterprises to more transparency?
We agree with Professor Rickard that better transparency reduces corruption, reduces cronyism and leads to better value for money. The clause unnecessarily reduces the transparency for subsidies that could amount to tens of millions of pounds—perhaps more in some cases. As such, the clause should not stand part of the Bill and we will vote against it.
Paul Scully
For the sake of completeness, and with your indulgence, Ms Nokes, I go back to the question about why the threshold in clause 38 is set at £725,000. As part of the consultation response, the Government set out that we would convert the special drawing rights sums in the trade and co-operation agreement to a fixed value in pounds. Setting that exemption threshold at a fixed sterling amount is simpler than having a moving SDR threshold affected by currency fluctuations, and so it was fixed to give certainty for public authorities and recipients.
We have discussed that subsidies granted for public services are unlikely to be unduly distorted. The very reason they are needed is that other providers are unable or unwilling to provide a necessary service—for example, ferry links between Scottish islands, and bus services in rural areas—at a reasonable cost. The lower risk of distortion justifies a higher transparency threshold, which has been set at £14.5 million. SPEI subsidies for less than that amount are unlikely to be distorted.
We are striking a balance between minimising administrative burdens and requiring an appropriate level of transparency. Such services were also exempt from transparency rules under the EU state aid system. We are seeking to minimise administrative burdens where possible, and it would not be appropriate to impose new, unnecessary transparency requirements. Does that mean that they are not transparent? No, it does not. They must be awarded in a transparent manner, as clause 29 stipulates, which means that the subsidy is given through
“a written contract or other legally enforceable arrangement”.
Public authorities would normally publish those contracts, and it is good practice to do so. Indeed, the examples that the hon. Gentleman gave earlier about accusations of and concerns about the perception of cronyism were available because the spending decisions had been made public at a point in time. Spending decisions by councils, including Labour ones, up and down the country, above £500, are available on spreadsheets, which people can go to and drill down.
Bill Esterson
I beg to move amendment 45, in clause 42, page 23, line 43, at end insert—
“(1A) Before making regulations under subsection (1), the Secretary of State must seek the consent of the Scottish Ministers, the Welsh Ministers and the Department for the Economy in Northern Ireland.
(1B) If consent to the making of the regulations under subsection 11(A) is not given by any of those authorities listed in subsection (1A) within the period of one month beginning with the day on which it is sought from that authority, the Secretary of State may make the regulations without that consent.
(1C) If regulations are made in reliance on subsection 1(6B5), the Secretary of State must make a statement to the House of Commons explaining why the Secretary of State decided to make the regulations without the consent of the authority or authorities concerned.”
This amendment would require the Secretary of State to seek the consent of the Devolved Administrations before making regulations under this section. Where such consent is not given within one month beginning on the day in which it is sought, the Secretary of State may make the regulations without that consent, but must publish a statement explaining their decision.
So much confusion today, in so many ways, in dealing with the Bill and in some of what is going on in the Bill, Ms Nokes, but there we are. It is all set to make the afternoon go by in a more entertaining fashion.
As with many aspects of the Bill, the clause fails to take into consideration the important role that the devolved Administrations have in state aid governance. The ability to impose regulations unilaterally by secondary legislation, without seeking the consent of the devolved Administrations, is inconsistent with the approach that Labour has sought to instil in Committee—to consider the devolved Administrations as public authorities equal in responsibility for state aid to the responsibilities of the Secretary of State.
Devolved Administrations are on balance more likely to understand what subsidies will be most beneficial for their respective nations than the Secretary of State. That includes such matters as setting the value thresholds for the minimal financial assistance and services of public economic interest assistance exemptions, as well as the transparency exemption for SPEI assistance. Last week, Daniel Greenberg told us in evidence that
‘throughout the Bill, you see “Secretary of State, Secretary of State, Secretary of State”—all powers of HMG—and you think, “Hold on, the devolved institutions are also public authorities. They appear in the list of public authorities in clause 6, so why is it that they do not also share Secretary of State powers?”’––[Official Report, Subsidy Control Public Bill Committee, 26 October 2021; c. 61, Q80.]
We of course understand the role of the Westminster Government in the creation and operation of the UK subsidy regime, but preventing the devolved Administrations from creating streamlined schemes undermines their important role in our democratic infrastructure, as well as their responsibilities for their respective nations. We therefore seek to amend clause 42 to allow Welsh Ministers, Scottish Ministers and the Northern Ireland Department to require the Secretary of State to seek the consent of the devolved Administrations before making regulations under the clause. Where such consent is not given within one month, beginning on the day on which it is sought, the Secretary of State may make the regulations without it but must publish a statement explaining the decision. We believe that the amendment would help to increase the effectiveness of subsidies across the UK and respects the role of the devolved Administrations.
Paul Scully
The Government welcome the ongoing interest that the devolved Administrations have in the Bill, and that the Opposition have in this area. We understand how important it is to set the right thresholds for minimal financial assistance and services of public economic interest assistance, and to set the right reporting threshold for SPEI subsidies. Setting the appropriate thresholds for those categories of subsidy is key to balancing the administrative burden on public authorities, ensuring that proportionate levels of transparency are met and that we remain in line with our international obligations.
The hon. Member for Sefton Central will be aware that in the Government’s response to the consultation on subsidy control we committed to considering whether the threshold at which agricultural subsidies should be classed as minimal financial assistance should be different from that for other subsidies. That decision will be taken after further consideration, before the Bill comes into force. It is right that the regulations under the clause are scrutinised. The Bill provides for that by requiring that they will be subject to the affirmative procedure and will be debated and approved by both Houses in draft before they can be made. The UK Parliament is the right place to scrutinise any regulations made under the clause.
To reassure Members present, I reiterate that we have had numerous discussions with Ministers and officials in the Scottish Government, the Welsh Senedd and the Northern Ireland Executive while drafting the Bill, and since its introduction. We are committed to engaging regularly with the devolved Administrations, taking account of their views, as the Bill progresses through Parliament and in the run-up to its implementation. That includes engagement on the thresholds for those categories of subsidy, both in the round and on a sector-specific basis, so I ask that the hon. Member withdraw the amendment.
Bill Esterson
I have to pick the Minister up on this: he thanks Members for our ongoing interest in the Committee’s deliberations, and the devolved Administrations for their interest. Come on. We are supposed to have a four-nation system. I think it is a bit more than just showing ongoing interest. Perhaps he can tell us the result of the discussions and the consultation feedback on the clause. What was the devolved Administrations’ response? Did they say that they were happy with the clause, or did they want to be in a position to give their consent before the implementation of its provisions? Certainly from what I have seen, they would want the ability to give consent, notwithstanding the importance of the UK-wide system that is in place and the Westminster Government’s role. I would be interested in his response.
Paul Scully
I think we have established that subsidy control is a reserved matter. It will be subject to debate, but none the less it is a reserved matter, and it is therefore right that subsidy control policy is made and voted for here in Parliament, which is why I talked about the scrutiny. Parliament is the place to do this. We have engaged on a number of occasions on various aspects of the Bill—34 times at official level and 10 at ministerial level. On top of that, in response to the consultation the different devolved Administrations came up with different views on a number of issues. There was no one consistent view in a number of areas. There are provisions in the Bill that engage the legislative consent motion process, and we hope that the devolved Administrations will not only agree that the Bill is important, but give it their legislative consent.
Stephen Kinnock
The Minister keeps saying that the UK Parliament is the right place to deal with this, and we actually agree—that is the sentiment behind the amendment. All the amendment asks is that the UK Government adopt a collaborative approach by checking with the other public authorities, but, if the UK Government feel that they should proceed as originally intended, they should go ahead with it within one month. We are not divided on the question of whether the UK Parliament is the right place to do this. What we are saying is that a collaborative approach would deliver better results for everybody. The Minister should not use the argument that the UK Parliament is the best place to do this, because we actually agree with that.
Paul Scully
The devolved Administrations remain one of the key areas—perhaps the key area—where the subsidies will be given. We are not substantively changing the spending powers of the devolved Administrations, or indeed of any public authority.
Kirsty Blackman
The Minister specifically mentioned agricultural subsidies. Agriculture is devolved to the Scottish Parliament—it is a Scottish parliamentary competency—but he is suggesting that if Westminster intervenes in a devolved competency it is okay for it to not even run it by the Scottish Parliament in any formal way.
Paul Scully
We have not committed to changing the agricultural threshold. We intend to analyse carefully the full implications of lowering the threshold before making any final decision. Why would we want to do that? Because it may be desirable to effectively manage UK competition and investment as a whole. However, this was one area in which our analysis showed that there was no one single response to the consultation. I come back to the point that we will continue to engage closely with the devolved Administrations, as with all public authorities.
Kirsty Blackman
I disagree with the comments of the hon. Member for Aberavon. Clearly, I think that Scotland should be able to make its own decisions and have its own regime. In fact, I think it should be part of the EU and under the state aid regime, which has worked particularly well in an awful lot of areas.
I do not think that the amendment goes far enough. I am happy to support it if it is pushed to a vote, but I would have gone further in making sure that the Scottish Government, Scottish Ministers, the Welsh Senedd and Northern Irish Departments had even more of a say than that proposed by the amendment. If the amendment is pushed to a vote, I will support it on the basis of it being the minimum that I would expect, but I would prefer it to be even stronger.
The Chair
Perhaps we could have some clarity as to whether the amendment is to be withdrawn or pushed to a vote.
Bill Esterson
My hon. Friend the Member for Aberavon and the hon. Member for Aberdeen North have made some powerful points about why it is so important to get this right. I did not get a satisfactory answer from the Minister. He mentioned engagement having taken place 34 times, but he could not tell me what was said about the point addressed by the amendment, and neither did he answer the points made by Daniel Greenberg last week about why the devolved institutions do not share the Secretary of State’s powers.
As my hon. Friend the Member for Aberavon has quite rightly said, we are not saying anything different about the role of the UK Government in setting up the subsidy regime. What we are saying is that it would make perfect sense to include and engage properly with the devolved Administrations, not least because they have a much better idea of how to apply subsidies in their areas. We even recognise that there will be times when that would not be possible, which is why we suggest that after a month it would fall to the Secretary of State to make a statement as to why consent had not been sought.
We have done our best to give the Government a way to meet the consultation results and show that they really are serious about a four-nation approach to the new regime. It is a shame that the Minister has not taken that on board, and we will push our amendment to a vote.
Question put, That the amendment be made.
Paul Scully
Clause 42 allows the Government to make certain amendments to the total value thresholds for the exemptions in chapter 2 of part 3, which have been set at the conversion rate between special drawing rights, International Monetary Fund reserved currency, and the pound. The UK-EU trade and co-operation agreement, the TCA, sets the threshold for minimal financial assistance, SPEI assistance, SPEI transparency exemptions and the total value thresholds of SPEI. That means that if the exchange rate changes significantly, the Government may need to amend the thresholds of the Bill to remain compliant with the TCA.
In addition, the EU and the UK may agree to change the special drawing rights amounts set out in the TCA, so the Government must retain the ability to amend the exemption total value thresholds. The Government must have the ability to lower the total value thresholds in response to any new international agreements. Clause 42 also provides a power to specify a lower threshold for minimal SPEI assistance and SPEI transparency exemptions for categories of subsidies. Essentially, these international obligations are why the previous debate is superfluous. Ultimately, the UK Parliament is the right place to discuss changes to thresholds to make sure that we continue to meet our international obligations. I commend the clause to the Committee.
Question put and agreed to.
Clause 42 accordingly ordered to stand part of the Bill.
Clause 43
Natural disasters and other exceptional circumstances
Bill Esterson
I beg to move amendment 46, in clause 43, page 25, line 16, at end insert—
“(3A) The Scottish Ministers, the Welsh Ministers, and a Northern Ireland department may request the Secretary of State to declare a natural disaster or another exceptional circumstance in Scotland, Wales, and Northern Ireland.
(3B) If the Secretary of State refuses a request made under section (3A), he must make a statement in the House of Commons outlining the reasons for his refusal.”
This amendment allows the devolved administrations to ask the Secretary of State to declare a natural disaster or exceptional circumstances, so that the exemptions listed in Clause 43(1) applying to Scotland, Wales, and Northern Ireland may apply. If the Secretary of State refuses a request for exemption, this amendment requires him to make a statement to the House of Commons.
Amendment 46 allows the devolved Administrations to ask the Secretary of State to declare a natural disaster or exceptional circumstances so that exemptions listed in clause 43(1) applying to Scotland, Wales and Northern Ireland may apply. If the Secretary of State refuses a request for exemption, the amendment requires them to make a statement to the House of Commons. To reiterate the point I made in the last debate, we are determined to ensure that the role for the devolved Administrations in the administration of their own nations is respected and considered. Of course, we agree that the subsidy regime sits with the Westminster Government, because it is a UK-wide system, but on matters as important as states of natural disaster, devolved Administrations should always be consulted.
Members will appreciate that natural disasters are not political by nature. A natural disaster does not discriminate who it targets and where it affects. By that logic, devolved Administrations, which are just as likely as anywhere else to experience natural disaster, should be granted powers to request that the Secretary of State declares a natural disaster or exceptional circumstance so that the exemptions listed in clause 43(1) may apply. We believe the amendment would respect the role of devolved Administrations in managing their response to disasters effectively, while still ensuring the Secretary of State has the final say.
Kirsty Blackman
The very nature of natural disasters is that they do not occur across the entirety of the UK in one go. Let us hope a natural disaster does not occur across the whole of the UK in one go! Generally, they are regionally specific; they will happen in a relatively confined geographical area. Whether it be flooding, an earthquake or something of that sort, not everywhere will be affected. Therefore, thinking about how this provision could apply, it makes a huge amount of sense for there to be an actual mechanism through which the devolved Administrations can request for the Secretary of State to declare a natural disaster. I would hope that the Secretary of State would be doing so anyway, and would recognise that a disaster in Wales—
Andrew Bowie (West Aberdeenshire and Kincardine) (Con)
Surely that is exactly the point. If a natural disaster has occurred, it is almost certain that the Secretary of State would declare a natural disaster. There is nothing that I can see preventing any devolved Administration within the United Kingdom from requesting that the Secretary of State does that in law anyway. I do not think this amendment is required at all.
Kirsty Blackman
The hon. Gentleman said that it is almost certain—probable, at least—that the Secretary of State would do so, but it is not certain. The amendment allows an actual mechanism for the devolved Administrations to make that request. It also makes it clear that if the Secretary of State refuses a request of this nature, they have to explain why. That is very important for transparency. This transparency issue is also important—
Robin Millar (Aberconwy) (Con)
What would the logic would be if the situation were reversed, so that the UK Government wished to declare a natural emergency, but the devolved Administration did not? Has the hon. Member given that any thought?
Kirsty Blackman
That is nothing to do with the subject of this amendment, which is specifically about the devolved Administrations being able to ask. If the Secretary of State wishes to declare a natural disaster, and Wales, Northern Ireland or Scotland does not want them to declare it, there is no mechanism for that—we do not have the powers to do that.
On the issue that was raised by the hon. Member for West Aberdeenshire and Kincardine, it is important that the devolved Administrations have this mechanism because, as has been stated earlier, trust is at an all-time low. We have been very clear that some of the relationships between the devolved Administrations and the UK Government are not in a particularly good place right now. Building this provision in means that there is an additional safeguard in place, so that those places that know their areas best and know the effect on those areas better than Westminster does, because they are closer, are able to make that request.
Paul Scully
Natural disasters such as floods, fires and other exceptional circumstances can arise that require subsidies to be given at pace, to compensate for the damages caused. The clause allows the Secretary of State to publish a notice to declare that exemptions from the subsidy control requirements apply in respect of a natural disaster or other exceptional occurrence. That will allow public authorities to give subsidies that compensate for the damage in a timely manner.
The hon. Member for Aberdeen North is right that not all such emergencies would apply across the whole of the United Kingdom. In many cases, the natural disaster in question would be localised to a specific place or region. Although it is the responsibility of the Secretary of State to declare that the exemption applies, subsidies using the exemption may be given by different public authorities, such as UK Government Departments, local authorities, agencies and, of course, the devolved Administrations. Public authorities are empowered to design subsidies in the most appropriate way to address the damage caused for their specific local needs. The Secretary of State does not need to approve the subsidies given under the exemption, once the natural disaster or other exceptional occurrence has been declared. The existing processes in the Bill already ensure that this type of subsidy can be given across the UK, by the devolved Administrations or other devolved authorities.
If a natural disaster or other exceptional circumstance occurred within the area of any of the devolved Administrations, it would of course be open to that Administration to request that the Secretary of State trigger the exemption, if the Secretary of State has not already done so. If the conditions for the exemption were fulfilled, the Secretary of State could then seek to publish a notice as soon as possible.
The clause is limited to very narrow circumstances to avoid creating an over-broad exemption to the domestic subsidy control regime that could damage UK competition and investment, and our ability to fulfil our international obligations. It is therefore appropriate that the Secretary of State has sole responsibility for determining when the criteria for triggering the exemption have been met. The Secretary of State must publish and lay in Parliament a notice to trigger the use of the exemption. That will ensure that the Secretary of State exercises the power in a transparent and accountable way. I request that the hon. Member for Sefton Central withdraws the amendment.
Bill Esterson
I should point out that the amendment does not seek to give the devolved Administrations the power to declare a state of emergency, which I think was implicit in the Minister’s remarks. They would ask the Secretary of State to use his or her power to do so, not have the power themselves. The hon. Member for Aberdeen North made the point about transparency well. I am satisfied that the point has been made satisfactorily and that the Minister has taken it on board, and I therefore beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Question proposed, That the clause stand part of the Bill.
Paul Scully
Clause 43 enables public authorities to award subsidies to compensate for the damage caused by a specified natural disaster or other exceptional occurrence without having to apply the majority of the subsidy control requirements. The subsidies awarded under the clause would be exempt from the principles, prohibitions and requirements, but the transparency requirements would still apply. Before the exemption can be used, the Secretary of State must publish a notice declaring that a natural disaster or other exceptional occurrence has happened and that this exemption applies, and that notice must be laid in Parliament.
Kirsty Blackman
It would be useful to know where the notice is likely to be published. Will the Minister commit to considering whether the notice could be on the subsidy control database in some way? Perhaps on the database people could see a wee link that says, “This is where natural disasters have been declared”—hopefully it will not happen very often. If would be helpful if people could see all that information.
Paul Scully
Clearly, the notice has to be laid in Parliament, and I hope that I explained in my letter to the hon. Member exactly what that means. Clearly, we will also publish that on the gov.uk website and in other areas. I have forgotten the second part of her question.
Kirsty Blackman
It was about whether that information would be on the subsidy control database website.
Paul Scully
Well, transparency is not within the exemption. It is very much about whether a public authority is allowed to give the subsidy in the first place, but the transparency rules still apply.
Question put and agreed to.
Clause 43 accordingly ordered to stand part of the Bill.
Clause 44
National or global economic emergencies
Question proposed, That the clause stand part of the Bill.
Paul Scully
Clause 44 enables public authorities to award subsidies to remedy a national or global economic emergency without having to apply the subsidy control prohibitions and other restrictions, like the subsidies that were necessary to respond to the 2007 financial crisis. As we saw during that crisis, the support required to respond to such an economic emergency needs to be given quickly and effectively, so the clause provides for such support to be given where the Secretary of State considers it appropriate. Before the exemption can be used, the Secretary of State must again publish a notice declaring that an economic emergency has occurred and that the exemption applies, and that notice must be laid in Parliament.
Question put and agreed to.
Clause 44 accordingly ordered to stand part of the Bill.
Clause 45
National security
Question proposed, That the clause stand part of the Bill.
Paul Scully
Clause 45 exempts subsidies given for the purpose of safeguarding national security from the subsidy control requirements, in order to protect the UK’s valid security interests. That is in line with the approach of the national security exemptions in other UK legislation, such as the Freedom of Information Act 2000 and the Data Protection Act 2018.
Kirsty Blackman
It would be useful to know how widely national security is defined. Are we talking about subsidies specifically relating to, for example, new military equipment, or to much more tangential things, such as for an organisation that provides server capacity for one of the security services? How tangential can something be in order to be covered by the clause? If the Minister cannot answer, I would be grateful for an answer at some point, in writing or through the method of interpretive dance, if that is what he prefers, because it would be helpful for us to understand this. This is a brief clause, but I am concerned that that definition could be drawn too widely. I just do not know because I do not have enough information.
Bill Esterson
The clause makes it clear that subsidies given to safeguard national security are not subject to the subsidy control regime. This is an important principle that must be interpreted without prejudice in the light of our international commitments; I am sure the Minister agrees with that. We are pleased to see it in the Bill.
Paul Scully
In answer to the hon. Member for Aberdeen North, national security is a term with a long history in domestic legislation. It covers no more than is required to safeguard the UK’s genuine national security interest in a way that is fully compliant with the UK’s wider international obligations, including trade and co-operation agreements. It is customary in international agreements, such as our free trade agreements, that we reserve the right to protect valid security interests. That is the beginning and end of the clause.
Question put and agreed to.
Clause 45 accordingly ordered to stand part of the Bill.
Clause 46
Bank of England monetary policy
Question proposed, That the clause stand part of the Bill.
Paul Scully
Clause 46 sets out that activities conducted by or on behalf of the Bank of England in pursuit of monetary policy are not subject to the subsidy control regime. Measures implemented by central banks in pursuit of monetary policy have always been considered to be outside the scope of EU state aid rules. The joint declaration of the European Union and the United Kingdom on monetary policies and subsidy control confirmed our mutual understanding that activities conducted by a central bank in pursuit of monetary policies are outside the scope of subsidy control requirements in the TCA. It is important that that position is put beyond doubt and into UK law.
Question put and agreed to.
Clause 46 accordingly ordered to stand part of the Bill.
Clause 47
Financial stability
Question proposed, That the clause stand part of the Bill.
Paul Scully
Clause 47 provides Her Majesty’s Treasury with the power to give financial stability directions that set aside one or more of the subsidy control requirements for specified subsidies or subsidy schemes. This will enable the Treasury and the Bank of England to undertake financial stability interventions at sufficient pace and with the necessary legal certainty to ensure the integrity and stability of the financial system and to protect investors, depositors and policy holders.
Question put and agreed to.
Clause 47 accordingly ordered to stand part of the Bill.
Clause 48
Legacy and withdrawal agreement subsidies
Paul Scully
I beg to move amendment 1, in clause 48, page 26, line 42, at end insert—
“(1A) In subsection (1), the reference to the subsidy control requirements, so far as it relates to subsection (1)(a), does not include the requirements as to transparency in Chapter 3 of Part 2, except in relation to—
(a) subsidies given that are subject to the provisions of Part IV or Annex 2 of the Agreement on Agriculture;
(b) subsidies given in relation to trade in fish and fish products;
(c) subsidies given in relation to the audiovisual sector.”
This amendment provides that the transparency requirements in Chapter 3 of Part 2 apply to subsidies under legacy schemes, subject to exemptions relating to agriculture, fish and the audiovisual sector.
Paul Scully
Amendment 1 clarifies that the transparency requirements in chapter 3 of part 2 of the Bill will apply to subsidy awards that are given after the Bill comes into force, but that are provided under legacy schemes. The transparency requirements for this class of subsidy are consistent with those for other in-scheme subsidy awards—that is, there is an obligation on public authorities to upload the details of awards given under published schemes that are of more than £500,000 in value.
The amendment provides legal certainty around the transparency obligations on public authorities, which are set out in the guidance on the UK’s international subsidy control commitments. It will impose no transparency requirements on subsidies given under legacy schemes to those sectors that are excluded from the relevant chapter of the trade and co-operation agreement. Those fall under three categories: agricultural subsidies in the scope of the World Trade Organisation agreement on agriculture, subsidies in relation to the trade of fish and fish products, and subsidies to the audio-visual sector.
Amendment 2 sets out a full definition for the agreement on agriculture, which is referred to in amendment 1. That ensures a clear exemption for subsidies subject to the relevant provision in the agreement on agriculture, which is consistent with the UK’s obligations under the trade and co-operation agreement.
Amendment 1 agreed to.
Bill Esterson
I beg to move amendment 47, in clause 48, page 27, line 6, at end insert—
“(2A) On the date on which the Act is passed, the Secretary of State must make a statement to the House of Commons regarding the applicability of Article 10 of the Northern Ireland Protocol to subsidies given and schemes made by public authorities in each part of the United Kingdom.”
This amendment would require the Secretary of State to make a statement to the House of Commons regarding the applicability of Article 10 of the NI Protocol on the date on which the Act is passed.
The amendment would require the Secretary of State to make a statement to the House of Commons on the applicability of article 10 of the Northern Ireland protocol on the date on which the Act is passed. Clause 48 provides that the requirements of the subsidy control regime do not apply to subsidy schemes that are subject to the Northern Ireland protocol. The Minister will suggest, I imagine, that this gives comfort to public authorities and avoids the double jeopardy of both regimes applying to a subsidy scheme—I take that from what he and the Secretary of State said on Second Reading.
If the Minister were to say that, he would be assuming that there is clarity on which subsidies and schemes are subject to the protocol. On this vital question that public authorities will need to interpret, there is no agreement between the UK Government and the European Commission. There is significant uncertainty about the extent of the reach back—that is, where EU state aid rules will continue to apply across the UK. Where a subsidy is applied in Wales, Scotland or England has consequences in Northern Ireland. George Peretz told us in last Tuesday’s evidence session,
“if I am advising a client such as a local authority or a subsidy recipient, my immediate problem is that I have to look at two sets of guidance—one issued by the European Commission and one by the Department for Business, Energy and Industrial Strategy—that in some important respects tell me very different things.”—[Official Report, Subsidy Control Public Bill Committee, 26 October 2021; c. 46, Q64.]
His final assessment was:
“It is all a bit of a mess.”––[Official Report, Subsidy Control Public Bill Committee, 26 October 2021; c. 48, Q67.]
We should all note that the European Union published proposals to address problems with the Northern Ireland protocol a fortnight ago. That is a step in the right direction, although the proposals it put forward do not address the state aid subsidy issue. In contrast, on Second Reading on 22 September, the Secretary of State suggested
“we have proposed the change to the Northern Ireland protocol to bring all subsidies within scope of the domestic regime.”—[Official Report, 22 September 2021; Vol. 701, c. 338.]
Here we are six weeks later, and we are no clearer about the status of the negotiations with the EU. I hope the Minister will set my mind at ease and tell us what the UK proposals are to solve the problem that George Peretz set out so well in evidence last week.
Let us remind ourselves: the Government negotiated the Northern Ireland protocol and signed it, so they now have a duty to make the protocol work, just as they have a duty to make Brexit work. It is no good threatening to rip up an agreement that the Prime Minister himself signed just two years ago, and certainly not without something to put in its place. Perhaps the Minister can confirm when he last discussed these issues with his European counterparts, and the timeline on which he expects there to be clarity on article 10 of the protocol and its impact on the Bill.
The purpose of the amendment is to require the Secretary of State to provide a statement on
“the applicability of Article 10 of the Northern Ireland Protocol to subsidies given and schemes made by public authorities in each part of the United Kingdom.”
Public authorities and recipients need and deserve certainty on this issue.
Kirsty Blackman
The hon. Member for Sefton Central used the quote I was going to use from the Secretary of State, who was really pretty clear that the new subsidy control regime that we are discussing is the one that will apply across the United Kingdom. That was the point the Secretary of State was making—that this is the only subsidy control regime that will apply across the United Kingdom. That seems pretty factually incorrect, not least for Northern Ireland but, as the Opposition Front Bench spokesperson pointed out, for other parts of the UK where that trade will end up going to the EU.
The very least the Government could do is to ensure that a formal statement is made, because if we are relying on what Government Ministers have said in the course of either debates in the House or statements, we do not know the answer. We have been told a number of different conflicting things. I get that this is a movable feast and that there is no final decision on exactly how it will work. That is why the amendment is so reasonable. It specifically says that the applicability statement will need to be made on
“the date on which the Act is passed”.
Presumably, by the date on which the Act is passed we will have some idea of which regimes will apply in Northern Ireland. We have spoken very little about Northern Ireland specifically during the course of this Committee but, when the Minister talks about giving certainty to enterprises and public authorities, it seems to me that Northern Ireland is in a unique position where there is no certainty at all. People literally do not know which regime will apply.
It is all well and good to say, “We will consult with people and ensure that they see the guidelines in advance of having to put them in the subsidy control database,” but the fundamental issue of which regime they are complying with has not yet been answered in a way that would stand up to any kind of scrutiny. The amendment is completely reasonable and, if the Minister does not want to accept it, he should be clear with us and with the organisations concerned, particularly in Northern Ireland, about how he and the Secretary of State will explain to them which regime they will be operating under.
Paul Scully
As we have heard, amendment 47 to clause 48 would require the Secretary of State to
“make a statement to the House of Commons regarding the applicability of Article 10 of the Northern Ireland Protocol to subsidies given and schemes made by public authorities in each part of the United Kingdom”,
on
“the date on which the Act is passed.”
Clause 48 excludes subsidies in the scope of article 10 of the Northern Ireland protocol from the domestic subsidy control regime, which, as the hon. Member for Sefton Central says, is to avoid double regulation of subsidies. Subsidies that are subject to the protocol and comply with the EU state aid laws will be exempt from the requirements of the new domestic regime.
I should remind hon. Members that the Secretary of State is already required, as a statutory duty, to publish guidance on the practical application of article 10 of the Northern Ireland protocol under section 48 of the United Kingdom Internal Market Act 2020. BEIS published that guidance on 31 December 2020. That is intended to help public authorities reach a view on whether article 10 applies to subsidies granted in Northern Ireland and the rest of the UK, to which they must have regard.
The guidance is based on the EU Commission’s unilateral declaration of 18 December 2020, which made it clear that article 10 would apply in Great Britain if there was a genuine and direct link back to a company in Northern Ireland. That is most likely the case of a subsidised company in Great Britain with a subsidiary in Northern Ireland. The Command Paper on the Northern Ireland protocol published on 21 July 2021 set out the Government’s position that comprehensive and robust commitments are in place on subsidy control in the trade and co-operation agreement, and that those are being further strengthened through the UK’s Subsidy Control Bill, making the existing provisions in article 10 redundant in their current form.
Stephen Kinnock
Will the Minister confirm that this legislation cannot be passed by this House until there is clarity on article 10 of the Northern Ireland protocol? There seems to be a big gap in understanding on the definition of an at-risk good. Any company headquartered in Great Britain, when deciding whether it might be at risk as regards a good going into the European Union, will be unclear on that point. Until the EU and the UK Government have come to that clarity, this legislation is unworkable.
Paul Scully
I disagree. This framework, which is a bare-bones framework, as I have said, has to work with whatever is in the Northern Ireland protocol, whatever is negotiated. That is why, for the reasons I have said, I talked about the reach-back provisions, which are never perfect. We know that the Northern Ireland protocol is not perfect, but it is a negotiated view. That is why, in those intensive discussions, we are looking at delivering significant changes and trying to improve an imperfect situation.
Kirsty Blackman
If an enterprise in Northern Ireland is given a subsidy, and that enterprise has competition in or trades with both Scotland and Ireland, which regime does it need to comply with if it gets that subsidy? Does it need to comply with the state aid or subsidy control regime, or both?
Paul Scully
It would first depend on what it trades in, and then on what its service is, because those are dealt with in different ways. It would then depend on the framework of the company and what structure it has in GB and Northern Ireland, because it must have genuine reach-back to Northern Ireland to be able to apply to that.
Kirsty Blackman
I appreciate the Minister being so indulgent in giving way. Are there any circumstances in which an organisation—an enterprise that is given a subsidy or a public authority giving out a subsidy—will have to comply with both the subsidy control and state aid regimes?
Paul Scully
The regime has been specifically worked through so that there is no double jeopardy, as the hon. Member for Sefton Central described at the beginning. They have to deal with one or the other. Clearly, as I said, the one they would deal with depends on the framework of the company, the ownership of the company, and whether it deals in electricity or services, because different rules clearly apply. None the less, as the negotiated provision is constituted, they would only have to apply to apply to one or the other. If it is state aid, they do not then need to worry about domestic subsidy control, and vice versa. The Command Paper clearly stated that we believe that we can bring it under domestic subsidy control, although that is not being negotiated yet, so that is clearly not the situation at this moment in time.
Stephen Kinnock
I am grateful for the Minister’s indulgence. On a point of clarity, clause 48(2) states:
“The subsidy control requirements do not apply to…a subsidy given, or a subsidy scheme made, in accordance with Article 10 of the Northern Ireland Protocol”.
My interpretation of that is that the only show in town is article 10 of the Northern Ireland protocol—that that trumps the subsidy control regime. Is that not the case? I thought he said in his introductory remarks that the default position in all this is the state aid regime under the Northern Ireland protocol.
Paul Scully
As I say, if something comes within state aid, whether it is goods or logistics, it may be the case, but neither one nor the other trumps it. There is no double regulation. Either it comes under state aid or it comes under domestic law—[Interruption.] That is what is there within the protocol, and there are certain things that just do not appear under the protocol.
Clearly, we will continue to keep the House informed of progress made relating to the Northern Ireland protocol. I do not want to go down the rabbit hole of coming out with individual examples that may then be redundant as the talks continue at pace. We want to make sure we continue to keep the House informed and, as such, I consider that section 48 of the United Kingdom Internal Market Act 2020 already makes provision for a statement of the application of article 10 of the Northern Ireland protocol by way of statutory guidance—[Interruption.] The Government have already given the guidance and I do not see any need to place an additional requirement on the Secretary of State to make a statement to the House of Commons regarding the applicability of article 10 of the Northern Ireland protocol. I request the hon. Gentleman withdraws the amendment.
The Chair
Before I call the shadow Minister, I remind hon. Members that your phones should be on silent, please.
Bill Esterson
I think the pings you just heard were all the different legal opinions on the application of the subsidy control regime on EU state aid, Ms Nokes. The Minister found a number of different ways of phrasing the same problem: it all depends, it is one or the other, or he cannot give individual examples. I am afraid that is what it all boils down to.
Bill Esterson
My hon. Friend the Member for Aberavon uses the word shambles. It is hard to disagree given the Minister’s answer. Until that is addressed, it undermines the operation of the regime, which risks legal challenge.
On the point about individual examples, businesses face the potential of legal challenge if they do not get this right. They are not going to know which regime. We were starting to get an answer there, in that if the subsidy is under the terms of the Northern Ireland protocol, it is state aid. However, even there the Minister could not be entirely clear. It goes back to my initial question: what proposals are the Government putting forward to address this? What is in the Secretary of State’s words on Second Reading, where he was extremely confident that the matter would be addressed, as the hon. Member for Aberdeen North and I both said in our opening remarks? What do the Government think is going to work? What is it from their discussions with their EU counterparts that suggests a way forward? We still have not had that from the Minister and that underlines exactly why the amendment is so important in giving the Government until the day on which the Bill passes into law to address exactly how the operation will apply.
To go back to the words of George Peretz, there are two sets of guidance and two sets of legal opinion. He, as a lawyer, could advise on the same situation, with the awarding body on the one hand and the business on the other, on which regime might apply. Until that is addressed, we have a real problem with the legislation and the existence of the two different subsidy regimes will cause a real problem for the effective use of subsidies to support businesses in the regions and nations of our country.
Bill Esterson
I will press the amendment to a Division.
Question put, That the amendment be made.
Paul Scully
The clause provides an exemption from the subsidy control requirement for legacy subsidies and subsidy schemes—those granted or established in accordance with the subsidy control rules enforced before the Bill comes into force—and for subsidies and subsidy schemes given in accordance with the EU withdrawal agreement. That objective is to prevent double regulation. Public authorities awarding subsidies under such legacy schemes will have to comply only with the terms and conditions of the legacy scheme, as well as with the relevant guidance on their transparency obligations.
Bill Esterson
We have heard spectacularly from the Minister the failure of the Government to explain how the regime will operate or to come forward with answers to questions asked during the debate on our amendments. There is little to add to what has been said already.
Stephen Kinnock
Briefly, for the record, I am deeply uncomfortable with this part of the legislation. It leaves businesses across the length and breadth of the country in a total state of confusion about which parts of the provisions apply to them and which are under article 10 of the Northern Ireland protocol. I genuinely think it would be a dereliction of duty by the Committee to allow the clause as drafted to stand part of the Bill. Whether we press it to a vote does not matter—we lose the votes all anyway—but I want to put it on the record that that would be a dereliction of duty.
Bill Esterson
I reassure my hon. Friend that we will indeed be pressing clause stand part to a vote. He is right: businesses need certainty. We are coming out of a once-in-100-year global pandemic, and they need all the support that they can get. This regime should give that support, but it cannot do so if there is that massive uncertainty at the heart of it, whether this regime or a different one should apply. The Government have not addressed that and they need to get on and address it—
The Chair
Order. If Members wish to intervene on the shadow Minister, they may do so, but we will not have chuntering.
Bill Esterson
We gave the Government every opportunity with our amendment, but they chose to vote it down. They have left us with what my hon. Friend the Member for Aberavon called a dereliction of duty, which is a good way of putting it. The clause does not do justice to businesses, awarding bodies, communities or our constituents. Those are good reasons why we should vote it down.
Kirsty Blackman
I have not had a chance to think about exactly how not having the clause as part of the Bill would affect the Bill as a whole. I share the concerns, that there are major issues with the clause, but at this point I will abstain on any vote.
Bill Esterson
I understand the hon. Lady’s concerns, but there is such a big problem with what is set out, it is right for us to register our objection by voting against the clause.
Paul Scully
All I can say is that we were asked to go through a whole load of examples, which would not be helpful in giving that certainty. What will be helpful is the negotiations that are continuing at the moment. As it happens, the subsidy control framework before us works within either system: the one that we wish to negotiate, the result that we wish to have, or the situation we have at the moment. Subsidies that fall within the scope of the Northern Ireland protocol of the withdrawal agreement and which affect Northern Ireland-EU trade, such as on goods and wholesale electricity markets, will need to comply with EU state aid rules, including on services, otherwise they come under the domestic subsidy control regime. That is about as clear as we can be, but negotiations are happening at the moment.
Bill Esterson
The Minister had the opportunity to accept our amendment, which would have addressed the concern that he has just set out about needing negotiations, because it would have given him time for them. It is regrettable that he did not accept our amendment, but he is now in the position of having to come forward with the answers, and as the responsible Minister, it is up to him to do so.
Question put, That the clause, as amended, stand part of the Bill.
Paul Scully
Clause 49 sets out that the subsidy control requirements do not apply where a subsidy is permissible by virtue of article 413 of the trade and co-operation agreement. That article provides for exceptions for certain obligations in the TCA. The clause ensures that where one of those tax exceptions allows a subsidy to be given, the subsidy control requirements in the Bill do not apply.
Question put and agreed to.
Clause 49 accordingly ordered to stand part of the Bill.
Clause 50
Large cross-border or international cooperation products
Question proposed, That the clause stand part of the Bill.
Paul Scully
This clause sets specific provisions for large cross-border projects and projects of international co-operation. If a public authority is satisfied that a project that it plans to subsidise qualifies as a large cross-border project or a project of international co-operation, there is no legal requirement to assess the subsidy or subsidy scheme against the subsidy control principles.
Question put and agreed to.
Clause 50 accordingly ordered to stand part of the Bill.
Clause 51
Nuclear energy
Question proposed, That the clause stand part of the Bill.
Paul Scully
This clause establishes that subsidies and subsidy schemes for nuclear projects are not required to be assessed against the additional principles for energy and environmental subsidies that are set out in schedule 2.
Bill Esterson
I am interested in the answer to that question as well, given that in the last 11 years of Conservative Government we have not seen the investment in new nuclear that was needed to meet our climate obligations.
Bill Esterson
Indeed. The role of China in our nuclear industry is a point well made by my hon. Friend. I hope that we will see significant investment in new nuclear as a result of the regulations, if that is what the Government intend. Perhaps the Minister will give an indication of their intentions, because without investment, we will not hit our obligations. Nuclear is, of course, a longer-term project because it takes so long to get going. I remind Members that we have significant targets to hit by 2030, and unless we are talking about small modular reactors, nuclear reaches beyond that timeframe. Can the Minister enlighten us on any plans?
Paul Scully
Subsidies or subsidy schemes for nuclear energy will be required to assess against the main subsidy control principles in schedule 1. Removing the clause would require those projects to be assessed against the additional energy and environmental subsidy control principles. The clause is in line with our various international obligations under the trade and co-operation agreement with the European Union.
I do not want to start speculating on what will happen with future nuclear investment, but we have legislation coming forward tomorrow.
Question put and agreed to.
Clause 51 accordingly ordered to stand part of the Bill.
Ordered, That further consideration be now adjourned—(Michael Tomlinson.)
Nationality and Borders Bill (Thirteenth sitting)
Tuesday 2nd November 2021
(3 years ago)
Public Bill CommitteesRead Full debate Nationality and Borders Act 2022 View all Nationality and Borders Act 2022 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 2 November 2021 - (2 Nov 2021)
The Committee divided: - Ayes: 8 / Noes: 6 - Question accordingly agreed to.
The Committee divided: - Ayes: 7 / Noes: 9 - Question accordingly negatived.
The Committee divided: - Ayes: 9 / Noes: 7 - Question accordingly agreed to.
The Committee divided: - Ayes: 7 / Noes: 9 - Question accordingly negatived.
The Committee divided: - Ayes: 9 / Noes: 7 - Question accordingly agreed to.
The Committee divided: - Ayes: 7 / Noes: 9 - Question accordingly negatived.
The Committee divided: - Ayes: 9 / Noes: 7 - Question accordingly agreed to.
The Committee divided: - Ayes: 9 / Noes: 5 - Question accordingly agreed to.
The Committee divided: - Ayes: 7 / Noes: 9 - Question accordingly negatived.
The Committee divided: - Ayes: 9 / Noes: 7 - Question accordingly agreed to.
The Chair
Good morning, ladies and gentlemen. Electronic devices switched off, please, and masks on, if possible, as a courtesy to colleagues. No food and drink in the room, and all that sort of stuff. You will have noticed that there is a change of Minister this morning. [Hon. Members: “Hear, hear!”] Welcome, Mr Whittaker. We crack on.
Holly Lynch (Halifax) (Lab)
I beg to move amendment 185, in clause 48, page 43, line 3, leave out from “determination” to end of subsection (4) and insert
“determinations mentioned in paragraphs (c) and (d) are to be reviewed by the Multi-Agency Assurance Panels, who will have the power to overturn the determinations made by the competent authority.”
This amendment seeks to introduce Multi-Agency Assurance Panels at the reasonable grounds stage and will enable them to overturn decisions made by a competent authority.
It is a pleasure to serve under your chairmanship once again, Sir Roger. I both congratulate and commiserate with my neighbour, the hon. Member for Calder Valley, on his rapid promotion this morning to take forward an incredibly important piece of legislation. I wish him all the very best with the rest of the week.
Amendment 185 seeks to build upon the Modern Slavery Act 2015 and introduce multi-agency assurance panels at the reasonable grounds stage, as well as enabling them to overturn decisions made by a competent authority. That would ensure that multi-agency scrutiny is applied at the first stage, offering an important safeguard. Multi-agency assurance panels were part of a range of reforms to the national referral mechanism that were announced in 2017, following the NRM review commissioned by the Home Secretary in 2014. A recent review provided key recommendations, such as establishing new multidisciplinary panels headed by an independent chair, with a view to replacing the decision-making roles of UK Visas and Immigration and the UK Human Trafficking Centre with a single competent authority.
At present, there is multi-agency scrutiny only of negative conclusive grounds decisions, which, even then, is limited, with panels having the power only to ask the single competent authority to review a decision, as opposed to overturning it. A recent review of the national referral mechanism multi-agency assurance panels conducted by the Anti-Trafficking Monitoring Group found that
“at present, MAAPs do not adequately assure NRM decision-making”,
the reasons for which include that there is
“no multi-agency involvement in the reasonable grounds stage of the NRM, undermining confidence that there are any checks on bad decision-making at this first stage”.
The report also pointed to
“MAAPs lack of decision-making powers”
and times at which
“the evidence reaching the panels is minimal and of poor quality”.
The amendment applies those recommendations and highlights that, as the reasonable grounds stage is effectively the gateway to all anti-trafficking support, an extra level of safeguarding should be available to ensure good decision making. Both the amendments tabled to clause 48 are necessary to ensure that we are not turning our back on victims and restricting opportunities for individuals to refer into the NRM and receive the support they need. The measures have been widely endorsed across the sector and seek to introduce examples of best practice. I therefore strongly hope that the Minister will join us in endorsing these changes.
The Lord Commissioner of Her Majesty’s Treasury (Craig Whittaker)
It is a pleasure to serve under you, Sir Roger, but not particularly in this role. However, as always, it is a pleasure to be sitting on a Committee that you are chairing.
I thank the hon. Member for Halifax for her valuable contribution on this point. Decision making is of course central to our ability to support possible and confirmed victims of modern slavery. That is why, throughout the Bill, as she will know, we have discussed ways for that to be done as quickly and fairly as possible. It is in that vein that we have sought to clarify the reasonable grounds and conclusive grounds thresholds in primary legislation, to support that effective decision making. It is also why we are committed to reviewing the guidance that under- pins the reasonable grounds test to ensure that it best supports that.
Central to that work is the premise that the reasonable grounds decision should be made quickly. Currently, where possible, that is within five working days of referral to the national referral mechanism. That timeline enables us to quickly identify possible victims and ensure that they receive the appropriate support that they need. All decision makers receive robust training to support that process, and any negative reasonable grounds decisions will be reviewed by a second caseworker or a manager/technical specialist to ensure that all decisions taken are in line with the policy. An individual, or someone acting on their behalf, may also request reconsideration of a negative reasonable grounds decision by the competent authority where there are specific concerns that a decision made is not in line with the policy, or if additional evidence becomes available that would be material to the outcome of a case.
At the conclusive grounds stage, we already have a process whereby negative decisions are considered by those multi-agency assurance panels. That process is set out in the modern slavery statutory guidance for England and Wales, under section 49 of the Modern Slavery Act 2015, and non-statutory guidance for Scotland and Northern Ireland. We believe that that is the right place for the process, enabling us to adapt it in future to changing needs. To put in place the duty for multi-agency assurance panels to review all reasonable and conclusive grounds decisions would cut across that approach. It is not appropriate for that to be set out in primary legislation, as amendment 185 seeks to do, as that would remove the ability to change such a process to appropriate bodies and needs in the future.
Moreover, the amendment would add a new power whereby multi-agency assurance panels can overturn competent authority decisions, rather than the current approach of asking the competent authority to review a decision in specific circumstances. It is right that only designated competent authorities have a decision-making role. The current approach supports a culture of continuous improvement.
As I have set out, we do not believe that primary legislation is needed here. The current multi-agency assurance panels have been subject to an evaluation, and we will consider the conclusions and lessons learned in due course. If in the future we wished to consider multi-agency assurance panels at the reasonable grounds stage, or to change their remit, it would follow that that, too, would be a question for guidance.
Although I presume not intentionally, the amendment would also remove the provision that clarifies that the conclusive grounds threshold test is based on whether, on the balance of probabilities, an individual is a victim of modern slavery. That is the current test that is applied, in line with our obligations under the Council of Europe convention on action against trafficking in human beings.
Mr Robert Goodwill (Scarborough and Whitby) (Con)
Does the Minister agree that decision making in such circumstances is made very difficult by the fact that many people who are victims of modern slavery will not declare that because it is part of the deal with the people traffickers, and many people who claim to be victims of modern slavery are not victims but are using it as a way of getting their asylum claim accepted?
Craig Whittaker
I thank my right hon. Friend for his intervention. He is right that one of the key points in the process is that decision makers have the ability and the training to know what they are looking for to identify whether people are victims of modern slavery.
Neil Coyle (Bermondsey and Old Southwark) (Lab)
I recognise that the hon. Gentleman is stepping in as Minister, but he just said that the right hon. Member for Scarborough and Whitby was right in his assertion that many of those who claim to be asylum seekers are not. Could he remind us of the Home Office statistics on that issue?
Craig Whittaker
I thank the hon. Member for that question. Unfortunately, I do not have those statistics for him, but I will ensure that he gets them by the end of today. I will ask officials to bring forward those numbers.
It is essential that the provision that clarifies that the conclusive grounds threshold test is based on whether, on the balance of probabilities, an individual is a victim of modern slavery remains in the Bill to provide legislative clarity to that threshold. For the reasons that I have outlined, I respectfully ask the hon. Member for Halifax to withdraw the amendment.
Holly Lynch
I have heard some of the Minister’s attempts at reassurance. I have real concerns about some of the changes to the reasonable grounds decision. We heard in earlier discussions on the Bill about the introduction of trafficking information notices, which I am concerned will affect the need to take the reasonable grounds decision quickly. The amendment could have been a step towards improved confidence in, and scrutiny of, those early decisions, so I continue to implore the Government to consider introducing those panels in the guidance. It may not need to be in primary legislation, but I hope that the Minister has heard the case for that approach. On that basis, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)
I beg to move amendment 176, in clause 48, page 43, line 17, leave out subsection (7).
Under this amendment and the corresponding amendment to clause 57, the Secretary of State would no longer be able to change the definition of slavery and human trafficking by regulations. Instead, any changes to the definition of slavery would require primary legislation.
The Chair
With this it will be convenient to discuss amendment 177, in clause 57, page 51, leave out lines 42 and 43.
Under this amendment and the corresponding amendment to clause 48, the Secretary of State would no longer be able to change the definition of slavery and human trafficking by regulations. Instead, any changes to the definition of slavery would require primary legislation.
Stuart C. McDonald
It is a pleasure to serve under your chairmanship again, Sir Roger. Last week, I was speculating about how long the Immigration Minister might be in post, but I was still shocked. Seriously, we all pass on our best wishes to him for a speedy recovery. I congratulate the Lord Commissioner of Her Majesty’s Treasury, the hon. Member for Calder Valley, on his temporary promotion.
On the whole, we have stayed out of debates on the clause, despite having lots of sympathy for what the shadow Minister, the hon. Member for Halifax, has been saying. The clause largely applies only to England and Wales—distinct legislation is in place in Scotland and Northern Ireland. However, one part of the clause amends the “Interpretation” section of the 2015 Act and that does extend to Scotland and Northern Ireland. With the amendment, we are just posing some questions for the Minister. I appreciate that it is not easy for him to answer in these circumstances, so anything in writing afterwards would be more than acceptable.
Under the 2015 Act “victim of slavery” and “victim of human trafficking” are defined as applying to people who are victims of those respective crimes in the first couple of sections of that part of the legislation. That seemed a logical, straightforward and consistent way of doing things—define the criminal offences and then set out support regimes for victims of those offences. I have heard no complaint that that definition causes problems, but clauses 48 and 57 of the Bill—to which my amendments relate—will use a different definition of modern slavery.
The new definitions do not totally supplant the existing definitions of victims of modern slavery or trafficking in the 2015 Act, but they add a new and potentially different definition for the purposes of identification and support of the victims. The question therefore arises as to why we should have one definition of a victim for some purposes, but another for the purposes of identifying those to be supported? If there is to be a different definition, why is it not on the face of the Bill? Why is it, somewhat bizarrely, left to the Secretary of State to define in regulations what must be two of the most fundamental concepts for the purposes of this part of the Bill?
We do not know how the Secretary of State will use the powers, so that is another question for the Minister: what is the intention? It could be that she wants to be generous and to adopt a wider definition for the purposes of identifying and supporting victims and survivors. In line with other provisions of the Bill, however, it could be that she wants to be more restrictive and to confine the category of people who can get support to a much narrower group. If Parliament really wants to be back in control, it should not be allowing the Government to pass legislation such as this. I simply ask the Minister for an explanation as to why it has been done in this way.
Craig Whittaker
I thank the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East for his questions. Basically, he asked whether we are amending the definition of modern slavery, and the straightforward answer is no.
To underpin the measures in the Bill, we are creating a power to make regulations to define the meaning of “victim” in accordance with our ECAT obligations. The definition of a victim of slavery or trafficking for the purposes of the Bill will be set out in regulations made under the affirmative procedure.
The hon. Gentleman also asked why we are raising thresholds as such. As I said before, the proposed measure in this Bill will amend the wording of the reasonable grounds threshold in the Modern Slavery Act so that it mirrors some of our ECAT obligations. Alongside this, we are reviewing the reasonable grounds test and the corresponding guidance for decision makers to ensure they are best able to identify genuine victims and reduce the potential for non-genuine victims to misuse the system.
Stuart C. McDonald
I thank the Minister for his answer. I have made the point I need to make, which is that it is not appropriate to leave it to regulations to define these two fundamental concepts. I am sure this is something that will be pursued in the House of Lords. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Question proposed, That the clause stand part of the Bill.
Holly Lynch
I beg to move amendment 1, in clause 49, page 43, line 33, leave out “30” and insert “45”.
This amendment would increase the recovery period for victims of slavery or human trafficking from a minimum of 30 days to a minimum of 45 days.
This amendment would ensure that victims of modern slavery continue to receive a recovery period of at least 45 days, bringing this provision in line with current statutory guidance. We strongly welcome the inclusion in domestic law of a recovery period with support for victims, and we support this decision. However, the reduction of the minimum recovery period during which victims in England and Wales receive support from the current 45 days to 30 days is a worry.
The Independent Anti-Slavery Commissioner said in her written correspondence with the Home Secretary that the average length of time it takes for a conclusive grounds decision to be made in 2020 was 465 days. It is therefore difficult to understand why the Government are seeking to reduce the timescale from a target they are already significantly failing to meet. Their focus should be on increasing the efficiency of decision making, rather than reducing the already short recovery time to which victims are entitled.
In its written evidence to the Committee, Hope for Justice highlights that the explanatory report on the European convention on action against trafficking in human beings clearly states that the purpose of the recovery and reflection period is to allow victims to recover and escape the influence of traffickers. A reduction of this period therefore represents a step backwards in our ability to offer effective protection to victims of trafficking.
The assistance and support that should be provided during this recovery period is essential and wide-ranging, and it may include mental health support and counselling, legal advice, secure housing and access to social services. It also allows the police time to gather evidence during their investigation and to establish a working relationship with victims, strengthening their ability to secure a prosecution. It is estimated that there are between 6,000 and 8,000 modern slavery offenders in the UK, yet there were only 91 prosecutions and 13 convictions in England and Wales last year for specific modern slavery offences as a principal offence, and only 267 prosecutions for all related crimes.
Both sides of the Committee can agree on our desire to see more perpetrators of human trafficking and slavery brought to justice. This clause is a disappointing backward step away from the appropriate period necessary to break the bonds of slavery and to allow victims to establish a relationship with the relevant agencies in order to support their recovery and secure a prosecution.
Justice and Care has highlighted that many victims already decline to enter the national referral mechanism. As we have heard, Care UK says that 2,178 adults referred by first responders declined entry into the NRM last year. We have discussed the barriers that some might experience, including not recognising that they are, in fact, a victim, but it can also be because it is not immediately obvious what support the NRM provides for victims. This reduction in the recovery period certainly is not going to help.
I anticipate that the hon. Member for Calder Valley is about to tell me that under the Council of Europe convention on action against trafficking in human beings, the current threshold is set at 30 days. However, the minimum of 45 days in the UK, which was established in 2009, was a clear distinction that we could be proud of, and it is unclear why the Government are seeking such a change. Victims in Northern Ireland and Scotland are entitled to longer periods of support—the recovery period in Scotland is actually 90 days. I ask the Minister to outline how the change will have a positive impact for victims in any way. Amendment 1 would ensure that victims are protected and that we do not undermine the progress that has been made so far by reducing the recovery period further.
I will speak to clause 49 more broadly. I draw the Minister’s attention to subsection (2), which states:
“A conclusive grounds decision may not be made in relation to the identified potential victim before the end of the period of 30 days beginning with the day on which the positive reasonable grounds decision was made.”
I welcome the sentiment, but I wonder whether he could address the concerns raised by Dame Sara Thornton, the Independent Anti-Slavery Commissioner, that there are pilot schemes under way to test approaches to devolving national referral mechanism decisions for children to local safeguarding partners. As part of the pilots, conclusive grounds decisions are being taken at the same time as reasonable grounds decisions, where the evidence is strong enough to do so. I hope that the Minister will join me in welcoming that approach, and although I am worried about the clause’s intended consequences, I also hope that he will recognise that this could be an unintended negative consequence, which we can hopefully all agree would be wholly regrettable. The clause is relatively simple and we do not support it standing part of the Bill.
The Chair
In the light of the hon. Lady’s comments, we will also consider clause 49 stand part.
Stuart C. McDonald
I will be brief, because I fully endorse what the shadow Minister has said. I absolutely welcome the fact that the measure will be in statute, but I share her concern and astonishment that the Government have decided, for no apparent reason, to reduce the prescribed recovery period to 30 days. Yes, that is consistent with the trafficking convention, but equally so is 45 days. There is nothing in the convention to say that it cannot be done and, for all the reasons she outlined, that was a welcome additional safeguard in the UK’s approach.
What is the Home Office driving at here? What signal does it send by making this change? As the shadow Minister pointed out, it is completely artificial, given where we are with average decision times. In one sense, this is just about sending signals. What a signal it sends—that we want to reduce the support given to folk who are suspected of being victims and survivors of trafficking. I support the amendment and endorse everything that the shadow Minister said.
Craig Whittaker
I thank both hon. Members for their contributions. Let me see if I can answer some of their questions. Basically, there is no need to amend clause 49 to provide a 45-day recovery period as that is already provided for in guidance. The guidance is the statutory guidance under section 49 of the Modern Slavery Act 2015, where victims will still receive a 45-day recovery period unless disqualifications apply.
The hon. Member for Halifax is right when she quotes our obligations under the Council of Europe convention on action against trafficking in human beings, which require us to provide a 30-day recovery period or, as the legislation states, until
“the conclusive grounds decision is made.”
In 2020, the average time for conclusive grounds decisions was actually 339 days. That long period stems from pressures on the system, which we are working to reduce through our transformation project, to ensure that victims get certainty much more quickly. This period is notably much longer than the 45 days that the hon. Member is proposing.
With regard to how that impacts on devolved pilots, as set out in the new plan for immigration, the Government are also piloting new ways of identifying child victims of modern slavery that will enable decisions to be taken within existing safeguarding structures by local authorities, the police and health workers. This approach will enable decisions about whether a child is a victim of modern slavery to be made by those involved in their care and ensure that decisions made are closely aligned with the provision of local needs-based support and any law enforcement response. The Government will continue to monitor the consequences of this measure and whether it will reduce further flexibility around decision making.
On that basis, I ask the hon. Lady to withdraw the amendment and to support the clause as drafted.
Holly Lynch
I thank the Minister for his response. We have seen this approach at previous stages of the Bill. The Minister cites the realities of processing times, but the fact that it is 45 days in the statutory guidance shows why the Bill is an absolute nonsense and does not make the first bit of sense. We should ignore it and trust the guidance. There is a commitment to driving down the processing times anyway. I hope that the Minister can therefore see why the amendment was tabled. On that basis, I will press the amendment to a vote.
Question put, That the amendment be made.
Holly Lynch
I beg to move amendment 180, in clause 50, page 44, line 4, at end insert—
“(aa) the person was aged 18 or over at the time of the circumstances which gave rise to the first RG decision;”.
This amendment seeks to preclude those exploited as children from being denied additional recovery periods if they are re-trafficked.
The Chair
In line with what appears to be custom and practice, with this it will be convenient to consider clause stand part.
Holly Lynch
Clause 50, as drafted, should not stand part of the Bill. The amendment would ensure that those exploited as children will not be denied additional recovery periods if they are re-trafficked or if additional periods of trafficking are disclosed. Children, in particular, who make up 47% of those referred to the national referral mechanism, are at serious risk of being trafficked and going missing from care. In 2017, one in four identified trafficked children were reported as going missing. The number of children referred to the NRM is also rising, with last year seeing an almost 10% increase compared with the previous year. The average number of missing incidents for each trafficked child has also increased, from 2.4 to 7.4 between 2014-15 and 2017-18. Therefore, amendment 180 is even more vital, considering the worrying trends we are seeing.
Every Child Protected Against Trafficking UK has warned that clause 50
“may severely impact child trafficking survivors”
who are at high risk of going missing and being re-trafficked, particularly when
“they transition to adulthood and require access to support and protection through the NRM.”
To make that point, I want to share a real-world case study provided by ECPAT UK that demonstrates why our amendment is necessary.
Huang was referred to the local authority children's services at age 17, following a police operation in a nail bar. He was also referred as a potential victim of trafficking into the NRM and received a positive reasonable grounds decision. He was accommodated by the local authority. He told his support worker that he had been scared because his family back home were receiving threats to pay back his debt. Shortly after, he went missing. He was found by the police just after his 18th birthday and went on to develop trust with his lawyer, where he disclosed for the first time a significant period of exploitation in Vietnam, across Europe and in the UK, prior to being found in the nail bar. He remains in fear, and while the dangers facing his family back home persist, sadly, there is still a high likelihood that he will go missing again.
Without amendment 180, Huang may be unable to be referred to the NRM again, given the new disclosure of previously unknown periods of exploitation. As he is now 18, he would not be looked after by children’s services. Clause 50, as it stands, will place him at great risk of subsequent re-trafficking in the absence of access to safe accommodation and support through the NRM during his reflection and recovery period.
The increase in the number of British children in the NRM in relation to child criminal exploitation gives us further cause for concern. I recently met officers from the Metropolitan Police Service who are leading the response on trafficking, slavery and exploitation. They told me that it is becoming standard practice that when a child or young person is sent on their first county lines journey, their exploiter will arrange for them to be robbed of the drugs they have been instructed to sell. When they then have to come back and explain what has happened, they are immediately told they have to work off the value of the drugs. That traps them in debt bondage, even though the real criminal will have recovered the drugs, having arranged what can sometimes be a particularly violent mugging in the first place, so in reality there is no debt.
It would not be unusual for children in such vulnerable and exploited positions to be identified by the authorities but then go missing from the NRM because of the risks that persist. They must be treated as a safeguarding concern and not by way of immigration compliance, not least because so many of those children are British nationals. So I ask the Minister again: why are children subject to clause 50, given their particular vulnerabilities? Amendment 180 seeks to right that wrong. I am sure all colleagues will agree that a child rights-centred approach, which ensures children’s safety and their protection, must be a priority. I therefore hope the Minister will reflect on the points we have made and accept Amendment 180.
More broadly, clause 50 has the potential to exclude trafficked children and adults from being identified following re-trafficking, thereby leaving them unable to access the support they should be entitled to. I worry that with this clause the Government are suggesting that making repeat claims of having been trafficked undermines someone’s credibility. However, we also know that traffickers are increasingly coaching those they are exploiting on what to say should they be identified by authorities. An expectation is placed on the victim that they will return to their exploiters due to their perceived debt bondage, in order to avoid consequences for them or often their families.
Re-trafficking has increasingly become a part of a trafficker’s operating model, so why are we not responding to that? The changes negatively affect the victim and not the perpetrator of such crimes. It also appears to contradict the identified need for individual assessment and support, as required under ECAT. The Government have described the clause as necessary
“to prevent the recovery period being misused by those wishing to extend their stay in the UK and to remove unnecessary support and barriers to removal where these are not needed”.
Will the Minister present the evidence to support that claim? That explanation fails, not least, to recognise that the most common nationality of all referrals to the NRM for victims of modern slavery in 2020 was that of UK nationals, primarily referred for criminal exploitation. We know that children make up the lion’s share of those referrals. Does that not make the Government stop and think about what is in the clause?
There is a fear that the NRM is being misused by those wishing to extend their stay in the UK. Without amendment 180, the clause means that we are sending children, both migrant and British, back into the arms of their exploiters. We plead with the Minister to think again about the clause. We cannot see it stand part of the Bill.
Stuart C. McDonald
I support the amendment and join the calls for the clause not to stand part of the Bill. I very much echo the comments of the shadow Minister. Like her, and as on previous occasions, I find myself not at all clear why the clause is necessary, and what problem it is driving at. Again, I find myself asking for evidence. I have not seen or heard about an issue with abusive additional trafficking claims sparking extra NRM recovery periods. I recognise that that could absolutely happen in theory, but we need much more by way of evidence before we enact such a clause.
Even though someone might be describing earlier events of trafficking, disclosure of that additional information and trafficking or slavery histories could have all sorts of significant implications for that survivor. It could, for example, mean a break from a controlling partner. It could give rise to other dangers for them or to new trauma. Furthermore, as the Independent Anti-Slavery Commissioner has noted, survivors can feel more able to disclose their trafficking experiences relating to one particular form of exploitation than another, so forced labour can sometimes be disclosed earlier than sexual exploitation, due to feelings of shame or mistrust.
The fact that if the competent authority considers it appropriate in the circumstances of a particular case another recovery period can be granted is better than nothing, and it is good that that provision is in the clause, but that protection needs to be considerably strengthened to ensure that those who need it will have it. As matters stand, we have no idea how that analysis is going to be undertaken. What if the disclosure of this new information leads to new dangers or new trauma? Surely we would all agree that that should require a new decision and a new recovery period, but there is nothing in the Bill to say that that would definitely happen.
Perhaps the clause should be reversed—the Home Office might want to consider turning the presumption around, so that we assume instead that a new recovery period would be needed unless we are satisfied with a very restricted route for a very restricted range of reasons, and the reasonable grounds decision should not occur. The Home Office needs to explain its thinking here.
Finally, on the issue of trafficking, the Independent Anti-Slavery Commissioner and the Rights Lab at the University of Nottingham are conducting research on that subject at this very moment in time. I urge the Home Office to wait to see the evidence, rather than jumping in with two feet.
Craig Whittaker
I would first like to clarify that the clause does not prevent individuals who have been re-trafficked from receiving a further recovery period. Rather, the clause introduces a presumption against multiple recovery periods where an individual has already benefitted from a recovery period and the further reported exploitation happened prior to the previous referral into the national referral mechanism and period of support. This is not a blanket disqualification from multiple recovery periods; it is focused on removing the presumption for multiple recovery periods where the period of exploitation happened before the original recovery period was provided.
The clause will provide further recovery periods where required—for example, where an individual has a second referral for an incident that happened before the first incident for which they were referred and have already received a recovery period. It may not be appropriate or necessary to provide the further recovery period. A discretionary element is included, underpinned by guidance, so that cases are considered on an individual basis.
Stuart C. McDonald
I put to the hon. Gentleman the suggestion I made towards the end of my contribution: that he reverses the situation so that the presumption is that somebody does need an additional recovery period unless there are specific circumstances that mean it is not appropriate. Is that something he could pass on to his ministerial colleague, for when he takes the Bill forward?
Craig Whittaker
As I have said, there is already a provision for the decision makers to amend the care and support package needed on a case-by-case basis. That is the case for recovery periods as well. On the matter of children, I recognise the complexity of children’s vulnerabilities, as well as those of other modern slavey victims. As a result, this clause has scope to consider an individual’s circumstances, even where the new referral for exploitation occurred prior to the previous recovery period. That is why, under this clause, individuals will be considered for more than one recovery period on a case-by-case basis, taking into account their specific needs and vulnerability. Safeguarding and ensuring the welfare of children will, of course, be taken into account as part of any decision to withhold a recovery period.
Further details of how to apply this discretionary element will be outlined in guidance for decision makers. This will ensure that victims of modern slavery who genuinely need multiple periods of protection and support actually receive it. It would not be appropriate to have a blanket approach to children, but our proposed approach ensures that their vulnerabilities are considered. I hope that, in the light of that explanation, the hon. Member for Halifax will be content to withdraw her amendment.
Holly Lynch
I thank the Minister for that contribution. I have been consistently concerned by the lack of provision for children and young people within the clauses before us. With that in mind, I will not be withdrawing amendment 180.
Question put, That the amendment be made.
Holly Lynch
I beg to move amendment 164, in clause 51, page 44, line 31, at end insert—
“was aged 18 or over at the time of the circumstances which gave rise to the positive reasonable grounds decision and—”
This amendment would exclude children from the disqualification from protection measures outlined in clause 51.
The Chair
I will take the stand part debate with this, and would like to explain why. Where there are relatively short clauses with only one amendment to them, experience tells me that it is sometimes better to take the stand part debate with the amendment, because discussions that might be out of order in debate on the amendment can be in order if clause stand part is taken with the amendment. In other words, it allows for a greater freedom of discussion.
Holly Lynch
Thank you for that advice, Sir Roger.
Like a number of our other amendments, amendment 164 seeks to ensure that no child victim of trafficking or modern slavery is denied protection. Clause 51 introduces the following reasons why someone would be disqualified from protection: they are a threat to public order, or they have claimed to be a victim of modern slavery in bad faith. The Independent Anti-Slavery Commissioner, Dame Sara Thornton, says in her letter to the Home Secretary on the Bill:
“I have grave concerns about this clause because it casts a wide net, with the potential to prevent a considerable number of potential victims of modern slavery from being able to access the recovery and reflection period granted through the NRM. Without such support prosecution witnesses will be unable to provide witness evidence and this will severely limit our ability to convict perpetrators and dismantle organised crime groups.”
She says these changes will make it harder to convict perpetrators and go after organised crime groups. I doubt any of us came into politics to pass laws that work to the advantage of criminals, so why is the clause included in the Bill?
The Children’s Society has emphasised concerns regarding the impact on children who are victims of child criminal exploitation. In 2020, of the 47% of referrals to the NRM that were for children, 51% were for criminal exploitation. According to the National Crime Agency, referrals to the NRM for British children have grown due to an increase in child criminal exploitation, particularly by groups using the county lines model. The average custodial sentence length given to children has increased by more than seven months over the last 10 years, from 11.3 to 18.6 months in 2020.
A case study supplied by the Children’s Society following a serious case review by Waltham Forest Safeguarding Children Board is one of the most depressing of the many case studies we have been sent during our preparations for this Committee. Child C was a vulnerable child who lived in Nottingham. He was regularly excluded from school and was eventually home-schooled. His family noted that he regularly ran away from home. In January 2018, his mother said he was threatened by an older youth, who said that Child C had money for them. The incident was reported to Nottinghamshire police, but the police have no record of it. Also in January, Child C was arrested by police in possession of an air gun, a knife and cannabis. He later informed the youth offending team that an older boy had given him these. The youth offending team worked with Child C on a programme designed to highlight the dangers of carrying weapons. The incident was reported to the multi-agency safeguarding hub, but no further action was taken because of the youth offending team’s involvement.
Child C moved to Waltham Forest in April 2018. In October 2018, he was arrested in Bournemouth in what is known as a cuckoo flat—a person’s home that criminals take over and use to facilitate exploitation. There was significant evidence of drug use and sales in the flat. Child C was found to be in personal possession of 39 wraps of crack cocaine, and was arrested for possession of class A with intent to supply. That was a pivotal moment in providing support to the child. For the first time, the authorities in Waltham Forest had been presented with completely unequivocal evidence that Child C was being criminally exploited. From that point, he had multi-agency involvement and a further conviction for carrying an offensive weapon. The case study ends with Child C being murdered in January 2019.
That is the operating model for county lines gangs. We know that criminally exploited children are driving up referrals to the NRM, meaning that children will be coerced into committing crimes as part of their exploitation. That is explicit in section 45 of the Modern Slavery Act 2015. It is unclear what, if any, assessment the Government have made of how children will be affected by changes in clause 51 and the risk to them of remaining in exploitative situations. Disqualifying child victims from protection is incompatible with the duties on local authorities and other public bodies under section 11 of the Children Act 2004 to safeguard and promote the welfare of children. I urge the Minister to adopt amendment 164 and stand with child victims of modern slavery; it will allow him to go after the criminal gangs who will welcome this clause.
Clause 51 is incompatible with the duties on local authorities and the Home Office to safeguard and promote the welfare of children. It fails to take into account that children are at greater risk of exploitation owing to their developing capacity and, under the UN convention on the rights of the child, should never be denied protection. The fact that the Government have decided to ignore those fundamental principles to protect the most vulnerable children is simply shocking. The Government’s equality impact assessment promises to mitigate the adverse impact on vulnerable people but fails to identify any exemptions or specialist support for children in part 4 of the Bill.
Stuart C. McDonald
I rise to support the amendment and to make the case for the removal of the clause. The amendment is absolutely right, and excluding any survivors, especially children, from the scope of the clause will alleviate its worst impacts. The whole clause is bad.
Unlike with previous measures, it is absolutely apparent what the Government are driving at this time, but there is already a perfectly good procedure for dealing with this issue. Guidance implementing the European convention on action against trafficking says that where there is an improper claim of victim status, or there are public order grounds for doing so, the state can make a negative conclusive grounds decision and decide not to observe the reflection and recovery period. That remedy is available right now. How many times has that remedy been used in the United Kingdom? I hope the Minister can answer that, now or later.
The Home Office wants to go much further and help itself to a different remedy. Despite Home Office claims, nothing in the convention justifies simply failing altogether to make a conclusive grounds decision. On the contrary, article 10 of the convention requires states to identify victims, and that position is recognised in the Home Office’s guidance. That is why the Independent Anti-Slavery Commissioner has expressed, as we have heard, serious concern about the compatibility of the clause with ECAT—they just are not compatible. The measures will not only breach international obligations, but they will be counterproductive in the fight against trafficking and slavery.
We have already heard one or two of the case studies provided by the commissioner. I will add one more, from the Anti Trafficking and Labour Exploitation Unit. It relates to the case of Z, who was trafficked to the UK after being used for prostitution in Europe for a number of years. Her child had been removed from her by the traffickers. She managed to escape from the traffickers in the UK, and used a false document that she grabbed during her escape, as she wanted to go back to Europe to find her child. She was arrested and prosecuted for a document offence and given a sentence of more than 12 months after being advised to plead guilty. Trafficking was never explored as part of the criminal process. Later, Z was referred to the NRM and claimed asylum. The Home Office agreed that she was a victim of trafficking, and she was then given leave to remain on that basis. It also agreed not to pursue deportation because of her trafficked status.
After Z was referred to the NRM, a decision still had to be made about whether she was a victim of trafficking. The Home Office ultimately decided to grant her leave to remain and halt deportation, having been required to make that decision. Had the clause been in force, Z would never have been identified as a victim of trafficking; she would have been deported. That would have been absolutely dreadful for Z, who would have lost out on support and help that she clearly needs for her recovery, but it is also dreadful for many others, because it will clearly make it infinitely more difficult to track down Z’s traffickers. They will not be apprehended, and other people will fall victim to the very same crime, as is shown by the other case studies provided by the Anti Trafficking and Labour Exploitation Unit, and by the commissioner in her letter to the Home Secretary.
In short, people who need support will be denied it, and the perpetrators of the crimes against them will not be caught and punished. As we have heard, the clause will simply encourage traffickers to target those who have criminal convictions and who are sentenced to more than two at once, and even compel them into criminal activity precisely so that the exclusions will apply to them if the trafficker threatens to disclose their crimes. We have heard from the commissioner that that is already the traffickers’ modus operandi—excuse me; my Latin is terrible. The reason is that traffickers know that the absence of support and removal from the country will make it easier for the trafficker and their colleagues to avoid justice. The clause is, in essence, a gift for people traffickers, and it totally undermines the work of the Modern Slavery Act 2015.
I will briefly mention some other problems. The commissioner has rightly expressed concern about the huge breadth of offences that would be caught by the provision, particularly as it includes sentences imposed outside the UK that might not reflect sentencing guidelines in the UK; that could mean that minor offences are brought within scope. Will the Minister confirm that trafficking victims who enter the UK in breach of clause 37 of the Bill would end up in prison, possibly for even three or four years, and would therefore be excluded from support? A huge proportion of survivors will be left with the threat of exclusion from support hanging over them, putting them in even more vulnerable position.
Why is the expression “bad faith” used in the clause, rather than the convention’s wording or the wording of the guidance that the Home Office has put in place, which relate to “improper purpose”? The use of a different form of words needs to be explained. Why is it that in some cases, suspicion of certain offences, rather than an actual conviction, is enough for exclusion? The key point is that if we do not identify victims, neither do we identify traffickers. In breach of the convention, the clause expressly provides for that, so it should be amended.
Craig Whittaker
Let me see whether I can answer some of those questions. The hon. Member for Halifax asked whether the clause is incompatible with the statutory safeguarding responsibilities. The answer to that question is no, it is not incompatible at all with the statutory safeguarding responsibilities. Section 45 of the Modern Slavery Act 2015 is a criminal defence, but clause 51 of the Bill is a very separate system. Section 45 is separate from the public order disqualification. A section 45 defence is not applicable to the serious crimes set out in schedule 4 of the Bill. The Government will of course continue to work with local authorities to safeguard children and take their particular vulnerabilities into account on a case-by-case basis.
I will just highlight one or two points that piggyback on the back of what the Government are doing in this field. The hon. Member for Halifax mentioned county lines, and we have invested in specialist support for the under-25s and their families who are affected by county lines exploitation in London, the west midlands and Merseyside. We also fund a missing persons safe call service—a national, confidential helpline for young people, families and carers who are concerned about county lines exploitation—and the Home Office is funding the Children’s Society’s prevention programme, which works to tackle and prevent child criminal exploitation, child sexual abuse and exploitation, and modern-day slavery and human trafficking on a regional and national basis. There is also a public awareness campaign that started in September, which is called Look Closer. What I would say to the hon. Member for Halifax is that the public order grounds for disqualification are set out in ECAT, in which it is envisaged that the recovery and reflection periods will be withheld—
Stuart C. McDonald
That wording is absolutely right. It is possible for the recovery period to be withheld, but the convention absolutely does not allow for a decision to be made on public order grounds. It is absolutely contrary to article 10 of the convention. Does the Minister have anything that can help him with that point?
Craig Whittaker
As I have already explained, such decisions will be made on a case-by-case basis. Regardless of whether they are children or vulnerable people, it is important that all aspects of the individual’s case are taken into account, such as whether they have been exploited and to what extent.
Stuart C. McDonald
I do not want to make life difficult for the Minister, because I know he is in a very difficult situation, but the point is that it will not happen on a case-by-case basis, because decisions will not be made at all. As a result of the clause, people will just be excluded altogether from having a decision made about them. The point is that there is no case-by-case basis. It is an absolute blanket, and huge swathes of people will just not have a decision made about them, with no assessment made of whether they might be a victim of trafficking.
Craig Whittaker
I thank the hon. Member for his further intervention. I will take some advice on the technicalities in what he says, but that is not my understanding of what the clause says. I have already said that the decision to withhold recovery periods on public order grounds will be made on a case-by-case basis. That will balance the need to safeguard exploited individuals against public protection concerns and allow the Secretary of State to withhold the protections of the national referral mechanism, where the particular circumstances of an individual mean it is appropriate to do so.
Neil Coyle
In light of the fact that the Minister is asking for the amendment to be withdrawn and given his understanding that decisions will be made on a case-by-case basis, can the Minister tell us if the guidance that goes with the legislation will set out the exemptions and the process by which cases will be decided on an individual basis, and if there will not be the blanket exemption that is the Opposition’s understanding?
Craig Whittaker
Of course we will fully assess the issues in policy guidance. The hon. Member is exactly right that it will be set out in policy guidance, to ensure that due account is taken of the circumstances, so that any permitted actions, including prosecutions, are proportionate and in the public interest. It is right that the Bill seeks to target ruthless criminal gangs who put lives at risk by smuggling people across the channel.
The changes are not intended to deter people from seeking help from the authorities when they are being exploited and abused. However, it is right that we should be able to withhold protections from serious criminals and people who pose a national security threat to the United Kingdom. Indeed, ECAT envisages that the recovery period should be withheld in such cases, and it does not specify an age limit either, in answer to the question asked by the hon. Member for Halifax. It is important that the UK maintains this scope, as set out in ECAT. I hope in light of this explanation, hon. Members will be content to withdraw the amendment.
Holly Lynch
I am grateful to the Minister for his response. As we have heard from the interventions made by hon. Members, the case studies before us mean that we have grave concerns about clause 51. The assurances that the Minister has sought to make do not overcome some of the barriers that clause 51 will put in place.
I look forward to hearing more detail about the Children’s Society projects that the Government are funding and the Look Closer campaign, which I very much welcome, but, as things currently stand, this is much more of a blanket exemption than the Minister has tried to suggest. The very broad public order definitions in the Bill go beyond the intention that he has tried to explain, so once again I am concerned that children will be particularly vulnerable to the negative impacts of clause 51 if unamended, so I am minded to press amendment 164 to a division.
Question put, That the amendment be made.
Holly Lynch
I beg to move amendment 4, in clause 52, page 46, line 9, after “50A” insert—
“Meaning of assistance and support
‘(1) For the purposes of guidance issued under section 49(1)(b) and regulations made under section 50, “assistance and support” includes but is not limited to the provision of—
(a) appropriate and safe accommodation;
(b) material assistance, including financial assistance;
(c) medical advice and treatment (including psychological assessment and treatment);
(d) counselling;
(e) a support worker;
(f) appropriate information on any matter of relevance or potential relevance to the particular circumstances of the person;
(g) translation and interpretation services;
(h) assistance in obtaining specialist legal advice or representation (including with regard to access to compensation);
(i) assistance with repatriation, including a full risk assessment.
(2) Assistance and support provided to a person under this section—
(a) must not be conditional on the person’s acting as a witness in any criminal proceedings;
(b) may be provided only with the consent of that person;
(c) must be provided in a manner which takes due account of the needs of that person as regards safety and protection from harm;
(d) must be provided to meet the needs of that person having particular regard to any special needs or vulnerabilities of that person caused by gender, pregnancy, physical or mental illness, disability or being the victim of violence or abuse;
(e) must be provided in accordance with an assistance and support plan which specifies that person’s needs for support and how those needs will be met for the full duration of the period to which that person is entitled to support under this Act.
(3) Nothing in this section affects the entitlement of any person to assistance and support under any other statutory provision.
50B”
This amendment would define the types of assistance and support that must be provided to a victim of modern slavery in England and Wales in line with Article 12 of the European Convention on Actions Against Trafficking in Human Beings; and conditions associated with its provision.
The Chair
With this, it will be convenient to discuss the following: Amendment 2, in clause 52, page 46, line 16, leave out from “receiving” to the end of line 19 and insert
“in their physical, psychological and social recovery or to prevent their re-trafficking.”
This amendment would define the objective of assistance and support in line with Article 12 of the European Convention Against Human Trafficking 2005.
Amendment 3, in clause 52, page 46, line 16, at end insert—
‘(6A) When a person who is receiving assistance and support under this section receives a positive conclusive grounds decision, the Secretary of State must secure assistance and support for at least 12 months beginning on the day the recovery period ends.”
This amendment would give modern slavery victims in England and Wales with a positive conclusive grounds decision the right to receive support and assistance for at least 12 months.
Clause stand part.
Holly Lynch
The amendments seek to incorporate our international legal obligations under ECAT within the provisions of support available to victims during the recovery period, as well as extending statutory support for those who have received a positive conclusive grounds decision.
Having already discussed the changes to the recovery period in our discussion of clause 50, I will not repeat myself, but it is important to consider these amendments alongside the provisions in clause 50. We share the concerns of Christian Action, Research, and Education, or CARE, which has worked with us on amendment 4, that clauses 52 and 53 have the potential, if they remain unamended, to
“make matters worse for victims”.
Amendment 2 would update the definition of the reasons for providing a recovery period as solely to harm
“arising from the conduct which resulted in the positive reasonable grounds decision in question,”
and replace it with the requirement to assist a person
“in their physical, psychological and social recovery or to prevent their retrafficking.”
Therefore, amendment 2 would put into the Bill the wording of article 13 of ECAT, which provides support
“necessary to assist victims in their physical, psychological and social recovery”.
The British Red Cross has highlighted that
“making support dependent on specific ‘harm’ caused by the ‘conduct’ that led someone to be identified as a victim, fails to recognise the reality of human trafficking”.
The Home Office’s own research from 2017 says that
“unlike most crimes, which are time-limited single events, modern slavery is a hidden crime of indeterminate duration”—
in that it involves multiple locations and individuals. Therefore, amendment 2 better reflects the Home Office’s own assessment of the nature of human trafficking.
Amendment 4 seeks to set out the types of assistance and support that must be provided to a victim of modern slavery. Colleagues will be aware that presently neither the Modern Slavery Act 2015 nor the Bill includes such a provision, and therefore amendment 4 would fill a significant void in the legislation. The types of assistance and support include a range of provisions, such as safe accommodation, medical advice, a support worker, access to translation services, counselling, and assistance in obtaining legal advice or representation.
Amendment 4 is a practical and reasonable measure, and one that we hope will provide a sense of certainty and security to support survivors as they move towards recovery and towards justice, as confidence in the process grows, which will foster trust between agencies and victims, and enable more perpetrators to be brought before the courts. The types of assistance defined are basic provisions that victims should be entitled to if they are to rebuild their lives.
Building upon this idea of defining assistance, amendment 3 would offer long-term support to survivors with a positive conclusive grounds decision, stipulating that the Secretary of State must also secure assistance for at least 12 months, beginning on the day that the recovery period ends.
Given that there is no mention of statutory support after a conclusive grounds decision, amendment 3 seeks to correct another considerable omission from the Bill. In 2020, the Centre for Social Justice said:
“Long-term support is a further significant gap in the support system. In recent years a number of reports have concluded that the lack of long-term support puts victims of modern slavery at risk of homelessness, destitution and even re-trafficking after they exit the NRM support provision. It also has a significant negative impact on their engagement with the criminal justice system”.
This approach has broad support, as these amendments would build upon the recommendations made by the Work and Pensions Committee in 2017, which stated that
“There is very little structured support for confirmed victims once they have been given a ‘Conclusive Grounds’ decision...We recommend that all victims of modern slavery be given a personal plan which details their road to recovery, and acts as a passport to support, for at least the 12 month period of discretionary leave.”
Similar measures were also incorporated in the Modern Slavery (Victim Support) Bill introduced by Lord McColl of Dulwich, which awaits its Second Reading in the House of Lords. That Bill was greatly welcomed across the human trafficking sector and by all parties.
To summarise the case for amendments 2, 4 and 3, they are vital in expanding support for victims, and can boast wide support. I very much hope that the Minister will reflect on their merits.
On clause 52 more broadly, we welcome the fact that support for victims in England and Wales is being placed on a statutory basis during the recovery period, but this change is undermined by the limitations on support, and the decision to reduce the minimum recovery period from 45 to 30 days under earlier clauses. The clause introduces provisions for assistance and support only
“if the Secretary of State considers that it is necessary”
for recovery, mental health and wellbeing purposes, and crucially only if the recovery is from harm caused directly by the trafficking.
In the explanatory notes, the Government state that the intention behind the clause is to implement the UK’s ECAT obligations under article 13 to provide a recovery period to potential victims of modern slavery, but that is not really what has been included in the Bill. The explanatory report on ECAT says that articles 12 and 13 are
“an important guarantee for victims and serve…a number of purposes.”
This wording emphasises the “guarantee” of support, and its serving different purposes. By contrast, the clause narrows the scope of the recovery support received solely to support needed as a result of harm
“arising from the conduct which resulted in the positive reasonable grounds decision in question.”
The Anti Trafficking and Labour Exploitation Unit claims that as a result, the clause will
“create a huge evidential burden on survivors, in demonstrating that their recovery needs are linked to their experiences of having been trafficked”.
It adds that the clause will also
“necessitate an increase in the number of medico-legal reports that the Competent Authority will be required to consider.”
To summarise, the clause has the potential to further disqualify victims from support entirely. It has nothing at all to offer a person who had physical and mental needs before being trafficked—needs that may have been a factor in them having been targeted by criminal gangs. It risks trapping victims in an endless cycle of exploitation, which will undermine our ability to identify victims and prosecute the perpetrators of these crimes. For these reasons, the clause should not stand part of the Bill in its current form.
Craig Whittaker
I thank the hon. Lady for raising important issues around the support and assistance offered to victims of modern slavery and trafficking. Support for potential victims is a fundamental pillar of our approach to assisting those impacted by this horrendous crime and reducing the risk of their being re-trafficked. We are agreed on the importance of placing the entitlement to support in legislation, which is what the clause will do. Our intention in our drafting was to provide victims with certainty about the circumstances in which support is provided through the NRM; we know that is imperative in aiding their recovery. To this end, we have sought to put in clause 52 that support will be provided where
“it is necessary for the purpose of assisting the person receiving it in their recovery from any harm to their physical and mental health and their social well-being arising from the conduct which resulted in the positive reasonable grounds decision in question.”
Amendment 2 would restrict this support to where it was needed for a victim’s
“physical, psychological and social recovery or to prevent their re-trafficking.”
This provides less clarity on what these terms mean for victims and decision makers, reducing the clause’s effectiveness in supporting victims. Our approach is not to do as amendment 4 suggests and go into detail in the clause on the types of support provided, but to instead do that in guidance. The reason is twofold: it provides us with the flexibility to tailor support to victims, and to ensure that we are able to amend the guidance and support as our understanding of victims’ needs changes.
After entering the NRM, potential victims are entitled to access a wide range of specialist support services to help them rebuild their lives. This includes safe house accommodation, financial support, and a social worker to assist with access to services including, but not limited to, health care, legal advice and translation services. Following a positive conclusive grounds decision, confirmed victims’ ongoing recovery needs are assessed, and a clear plan is tailored to their specific recovery needs to help them transition out of support and back into a community, where this is possible. Confirmed victims’ recovery needs are assessed to ensure that the overall support package provided through the modern slavery victim care contract is specific to the individual. This needs-based approach ensures that the Government provide targeted and personalised support to victims to help them recover and rebuild their lives.
Neil Coyle
The Minister said earlier that the tailored plan would support someone until they move back into the community. Can he confirm that that support will be provided whatever setting the person is living in, not only to those who happen to be in a detention centre or accommodation centre, for example?
Craig Whittaker
I think I have made it quite clear that the amendment would restrict the ability to assess on an individual, case-by-case basis, as the clause intends. I also went on to say that the time period for that is up to six months but is not limited. I hope that answers the hon. Gentleman’s question. Amendment 3 would go against that approach and would not increase benefits to victims. For the reasons I have outlined, I respectfully invite the hon. Member for Halifax to withdraw the amendment.
Holly Lynch
I am grateful to the Minister, once again, for his response. He paints a picture of the NRM that I do not think would be recognised by those working with it on the frontline. We heard testimony from those within the NRM that it was not clear that they were even in it, because it was not clear what provisions or support they were receiving. I wish it was the case that the description and the offer of support that he outlines were there in reality.
The Minister says the discretion within the Bill is necessary in order to facilitate going further and doing more, but we know that discretion is also used to offer less than we think is appropriate for victims who require that support. We will continue to argue and make the case for amendments 2, 3 and 4, but in the interests of time, we will simply vote against clause 52 in its entirety. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Question put, That the clause stand part of the Bill.
The Chair
For future reference, I understand that abstentions are supposed to be recorded by saying, “No vote”, although I am happy to be corrected. I am not always right.
Clause 53
Leave to remain for victims of slavery or human trafficking
Holly Lynch
I beg to move amendment 7, in clause 53, page 47, line 12, after “Kingdom” insert
“for a minimum 12 months”.
This amendment would give modern slavery victims in England and Wales with a positive conclusive grounds decision leave to remain for a minimum of 12 months.
The Chair
With this it will be convenient to discuss the following:
Amendment 5, in clause 53, page 47, line 14, leave out from “recovery” to the end of line 16 and insert “personal situation,”.
This amendment would define the criteria of providing leave to remain in line with Article 14 of the European Convention Against Human Trafficking 2005.
Amendment 189, in clause 53, page 47, line 21, at end insert—
“(2A) If the person is aged 17 or younger at the point of referral into the National Referral Mechanism, the Secretary of State must give the person leave to remain in the United Kingdom if that is in the person’s best interests.
(2B) In determining the length of leave to remain to grant to a person under subsection (2A), the Secretary of State must consider the person’s best interests and give due consideration to—
(a) the person’s wishes and feelings;
(b) the person’s need for support and care; and
(c) the person’s need for stability and a sustainable arrangement.”
This amendment seeks to incorporate the entitlement to immigration leave for child victims (as per Article 14(2) of ECAT) into primary legislation.
Amendment 6, in clause 53, page 47, line 22, leave out subsections (3) and (4).
This amendment would remove the criteria of not granting leave to remain if assistance could be provided in another country or compensation sought in another country.
Holly Lynch
Amendments 7, 5 and 6 concern the provisions to provide leave to remain for survivors of trafficking. Similar to our amendments to clause 52, amendment 5 seeks to bring the provisions in line with article 14 of ECAT by changing the criterion for providing leave to remain from “recovery” to “personal situation”. The reference to “personal situation” recognises that leave is necessary for a range of reasons. The explanatory report to ECAT states:
“The personal situation requirement takes in a range of situations, depending on whether it is the victim’s safety, state of health, family situation or some other factor which has to be taken into account.”
Amendment 6 would remove the criterion for not granting leave to remain if assistance could be provided in another country or compensation sought in another country. It is not clear why the Government introduced that criterion, and I would be grateful if the Minister could outline in his response how he could possibly envisage that working in practice.
Amendment 7 provides a clear minimum timeframe for granting leave to remain, thereby creating more certainty for victims. Under the Home Office’s current guidance on assessing discretionary leave for survivors of modern slavery, leave to remain is granted for a mixture of different time periods—sometimes as little as six months. Those timeframes are short, and the inconsistency can set back recovery.
In 2017, the UK Government issued figures on grants of leave to confirmed modern slavery victims. Some 21% of confirmed victims who were neither UK nor EU nationals were granted asylum in 2015. A group of more than 13 frontline charities that are expert practitioners in providing support to victims of slavery highlighted the problem, stating that:
“The support currently provided to survivors of human trafficking and modern slavery is not meeting recovery needs. Government funded support ends abruptly and too early and there is little information or data as to what happens to survivors in the longer term. The current situation leaves survivors with little realistic opportunity to rebuild their lives, with some ending up destitute, vulnerable to further harm or even being re-exploited.”
The Government may argue that they are already providing support for confirmed victims in England and Wales through the recovery needs assessment. However, under the RNA, victims are not guaranteed long-term support. Victims will receive a minimum of 45 days of move-on support, with the RNA determining how much—if any—extra support is required under the modern slavery victim care contract; that extra support will be for a maximum of six months at time, and may be only a few days or weeks.
Furthermore, Labour believes that victims’ needs are not fully addressed in the RNA. In the 2020 annual report on modern slavery, the support recommended by victim support workers was agreed to in full by the Home Office in only 53% of cases, which raises questions as to whether the process genuinely responds to victims’ needs or is, instead, focused on moving victims out of the service. In summary, amendments 7, 5 and 6 are necessary to address the fundamental challenge facing victims and provide them with far greater certainty.
Amendment 189 is necessary because all child victims must be granted immigration leave in line with their best interests as standard, as stated in international law and UK guidance. The amendment seeks to incorporate the entitlement to immigration leave for child victims as per article 14 of ECAT into primary legislation. It will specify that if the person is aged 17 or younger at the point of referral into the national referral mechanism, the Secretary of State must give the person leave to remain in the United Kingdom if that is in the person’s best interests, giving due consideration to a victim’s need for support and care and a sustainable arrangement.
The Independent Anti-Slavery Commissioner has echoed concerns on the lack of clarity around what the clause would mean in practice for children, with this having been acknowledged in the Government’s response to the new plan for immigration consultation. Dame Sara Thornton states
“it is disappointing that this detail was not included as part of the Bill”,
and we share that frustration. There is no consistent public data available on the outcomes for potential child victims of trafficking, but evidence shows that our current policies are not being implemented adequately.
Every Child Protected Against Trafficking requested data through the Freedom of Information Act on the immigration outcomes for those exploited as children, the response to which showed alarming results in the data. It found that only about 5% of child-related considerations resulted in a positive decision for discretionary leave. The data indicates that discretionary leave is not being granted to children as victims of trafficking, and that in the small number of cases where it is, the average length of grant is short, suggesting that decisions are not being taken with their best interests as a primary consideration, providing minimal stability.
How many child victims of trafficking were subsequently granted indefinite leave to remain under the policy is unknown but, based on those figures, we can estimate that they are few. That is despite the explicit current policy that states the need to consider the length of leave, including a grant of indefinite leave to remain in line with the child’s best interests. That requirement is set out to fulfil the Secretary of State’s statutory obligation under section 55 of the Borders, Citizenship and Immigration Act 2009 to safeguard and promote the wellbeing of children. All child victims of trafficking must be granted immigration leave in line with their best interests as only standard, as stated in international law and UK guidance.
Stuart C. McDonald
I want to say a few words in support of the amendments, which have the SNP’s full support. Currently, while someone might be in limbo for a long time, they are more secure the day after their referral into the NRM than they are the day after they receive a positive conclusive grounds decision, and that is not right. If they have been accepted as a survivor of trafficking, it makes them less secure. We should move towards a period of automatic leave to remain. The provision of leave is often an absolute prerequisite for meaningful recovery. With some security of status, the ability to seek employment or education and participate in the community builds confidence and stability, and the amendments broaden the number who will achieve that stability.
We also absolutely agree that there are problems regarding consistency between article 14 of the trafficking convention and current Home Office guidance. That is what amendment 5 would fix, so we support it. The convention speaks of allowing leave where necessary, given a survivor’s personal situation, and the explanatory report to the convention refers to issues around safety, their state of health, and the family situation or similar. The Home Office guidance calls for a much broader, individualised human rights and children’s safeguarding legislation-based approach, which seeks to protect and assist a victim and safeguard their human rights. Decision makers are to assess whether a grant of leave is necessary to meet the UK’s objectives under the trafficking convention and to provide protection and assistance to that victim owing to their personal situation. The current guidance is therefore closer to the convention than what is in this Bill.
The clause considerably reduces the scope of article 14 and the idea of a personal situation by adopting wording from the totally different article 12 and not offering any justification for that. The purpose and aim of leave to remain is recovery first in the host state if a survivor seeks that before any further upheaval is forced on them. That helps a survivor, and it helps us with law enforcement. It is also the only realistic way that they will be able to seek redress through compensation from those who exploited them. Pursuing such compensation from abroad just does not happen in practice.
Putting emphasis on the possibility that protection might be offered in the survivor’s home state, as the clause does, risks undermining a proper analysis of the personal circumstances as a whole and risks putting survivors back to square one and at risk of re-trafficking. Crucially, watering down the current position will mean fewer survivors remaining here or being in the best position to work with law enforcement authorities to bring the perpetrators of these awful crimes to justice. Again, that is dreadful news for survivors, but dreadful news for all of us as the perpetrators will escape punishment and other people will become the next victims. We support these amendments and call on the Government to explain why they do not just adopt the wording of article 14 of the European convention.
Craig Whittaker
The Bill is groundbreaking in its provision of a specific grant of temporary leave to remain for confirmed victims of modern slavery by putting it in primary legislation. Clause 53 sets out the circumstances in which a confirmed victim may qualify for a grant of temporary modern slavery-specific leave. I think we all agree that this is a crucial provision that enhances the rights of the victims. Our approach is to set out the circumstances in which this new form of leave to remain will be provided, giving victims and decision makers clarity as to entitlements, in line with our international obligations.
In contrast to amendment 7, the clause does not seek to specify the length of the leave conferred on an individual, as that will be determined through an assessment of the specific circumstances of the individual. This approach is designed to provide flexibility based on an individual victim’s needs. To specify the length of time up front is not required in legislation, as that can be better—
Neil Coyle
The Minister is right: a huge number of organisations welcome the specific leave to remain on these grounds. Perhaps he could tell us the average length of time that it takes to prosecute gangs on these specific circumstances and whether it is the Government’s intention to protect anyone who has been trafficked for the entire period of the case in order to prevent them from being intimidated if they are outside the UK and in their country of origin, for want of a better term.
Craig Whittaker
The hon. Gentleman will know from his own experience that that is done through the criminal justice system in this country. If any victim or any person needs to be taken into any form of witness protection, that will be done via the courts. You may want to come back in.
Neil Coyle
But I am asking very specifically about the circumstances in clause 53(2)(c), where the Government are offering leave to remain on these specific grounds. Is it the Government’s intention that that leave to remain is extended for the period of any case involving the individual who is believed to have been trafficked?
Craig Whittaker
As I have said, each individual case will be considered on an individual, case-by-case basis. That is why the measure is written the way it is—so that decision makers can make individual decisions, based on individuals’ needs and support.
Neil Coyle
Let us try it the other way round. Can the Minister confirm that it is not the Government’s intention to end leave to remain during criminal proceedings if that could mean that someone is forced to leave the UK and could be at risk of intimidation in another country?
Craig Whittaker
As I clearly stated in my previous answer, each individual case will be treated on the merits of that case, so it will be the decision makers’ decision as to what action, care or support will be needed for the individual.
Let me go back to what I was saying about amendment 7. To specify the length of time up front is not required in legislation, as that can be better met through provision in guidance and flexibility for the decision makers to determine it.
With regard to amendment 5, I think we agree that the primary aim here is to provide clarity to victims on the circumstances in which they are eligible for a grant of temporary leave to remain. To support clarity of decision making, we have sought to define the circumstances in which victims are eligible for a grant of modern slavery-specific leave. By contrast, amendment 5 would reduce clarity by providing that leave should be granted where necessary to assist the individual in their “personal situation”, without actually defining the term “personal situation”. This is why we have chosen to define what we mean by “personal situation” in this clause, for domestic purposes, and have set out that temporary leave to remain will be provided where it is necessary to assist an individual
“in their recovery from any harm arising from the relevant exploitation to their physical and mental health and their social well-being”.
Stuart C. McDonald
But the point is that “personal situation” is the wording in the convention and it is also the wording in the Home Office’s own guidance, and I do not understand it to have created problems for the Home Office up to this point. The problem is that this Bill is narrowing the scope of the circumstances that will be taken into account when considering this.
Craig Whittaker
The clause defines what personal circumstances mean. Amendment 5 does not do that and, in doing so, reduces clarity for victims. That is completely against the aim of the clause, which is to give clarity to victims.
Neil Coyle
Could the Minister provide some statistics to help us—I do not expect him to have this to hand, but perhaps he can respond in writing—on the average length of these cases, the number of people granted leave to remain who were believed to be victims of traffickers and the average length of the leave to remain they granted? Those would be useful statistics for the Committee and for the House ahead of Report.
Craig Whittaker
I have resisted saying these words, but I will make sure that we write to the Committee with those statistics if they are available.
The link to exploitation is an important one, and it is based on our Council of Europe convention on action against trafficking in human beings obligations to assist victims in their recovery. Given that the aim is to provide a clear framework to deliver certainty for victims and decision makers, I do not think that amendment 5 would enhance that at all. Turning to amendment 189, I recognise the importance, again, of bringing clarity to victims about the circumstances in which they are entitled to temporary leave to remain. That is exactly what clause 53 will do. I understand the particular vulnerabilities of children, and I can reassure the Committee that these are built into our consideration of how the clause will be applied.
Clause 53, in contrast to amendment 189, seeks to clarify our interpretation of our international obligations and it brings clarity for victims and decision makers, too. It purposefully does not use terms such as
“the person’s wishes and feelings”,
which are unclear and would not enable consistent decision making.
We are also clear that all these considerations must be based on an assessment of need stemming from the individual’s personal exploitation. Amendment 189 seeks to remove that link to exploitation, moving us away from the core tenets of our needs-based approach. It would not support victims in better understanding their rights; nor indeed would it help decision makers have clarity on the circumstances in which a grant of leave is necessary.
I want to be clear that clause 53 applies equally to adult and child confirmed victims of modern slavery. Crucially, through this clause, we have already placed our international legal obligations to providing leave for children in legislation—which I think we all agree is a milestone in itself.
I want to reassure the Committee that decision makers are fully trained in making all leave to remain decisions, including considering all information to assess the best interests of the child and to account for the needs to safeguard and promote the welfare of all children. All decision makers will receive training and up-to-date guidance on the policy outlined in clause 53.
For the reasons I have outlined, such changes do not add clarity and, in our view, are not required. I hope the hon. Member for Halifax will not press her amendments.
Holly Lynch
I thank the Minister, once again, for his contribution. In the interests of time, I will seek to move amendment 189 formally as, once again, I am not satisfied that the appropriate provisions for children have been recognised. I will gently make the point that statutory guidance has been referred to so often as the place where we would look for further detail on how the Bill would actually affect people’s lives that it would have been diligent to produce the statutory guidance at the same time as the Bill. That would have given Members the ability to really scrutinise it in full.
With that in mind, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Amendment proposed: 189, in clause 53, page 47, line 21, at end insert—
“(2A) If the person is aged 17 or younger at the point of referral into the National Referral Mechanism, the Secretary of State must give the person leave to remain in the United Kingdom if that is in the person’s best interests.
(2B) In determining the length of leave to remain to grant to a person under subsection (2A), the Secretary of State must consider the person’s best interests and give due consideration to—
(a) the person’s wishes and feelings;
(b) the person’s need for support and care; and
(c) the person’s need for stability and a sustainable arrangement.”
This amendment seeks to incorporate the entitlement to immigration leave for child victims (as per Article 14(2) of ECAT) into primary legislation.—(Holly Lynch.)
Question put, That the amendment be made.
Craig Whittaker
I beg to move amendment 72, in clause 53, page 48, line 10, leave out “reasonable” and insert “conclusive”.
This amendment corrects a drafting error.
Craig Whittaker
The Government have tabled a minor amendment to subsection (9) of the clause to reflect that a grant of leave comes after the positive conclusive grounds decision rather than the reasonable grounds decision. Subsection (9) has therefore been amended to provide that the relevant exploitation for the purpose of granting leave under subsection (2) of the clause means the conduct resulting in the positive conclusive grounds decision rather than the positive reasonable grounds decision. This corrects a minor drafting error.
I will briefly speak on clause 53. It reflects our commitment to supporting victims of modern slavery by setting out in legislation, for the first time, the circumstances in which a confirmed victim may qualify for a grant of temporary modern slavery-specific leave. The aim of the clause is to provide clarity to decision makers as to the circumstances in which confirmed victims qualify for temporary leave to remain. It is a Government priority to increase prosecutions of perpetrators of modern slavery. As such, the legislation makes it clear that where a public authority such as the police is pursuing an investigation or criminal proceedings, confirmed victims who are co-operating with this activity and need to remain in the UK in order to do so will be granted temporary leave to remain, to support that crucial endeavour. The clause will ensure that victims and public authorities have surety about victims’ ability to engage with prosecutions against those who wish to do harm.
Holly Lynch
I have heard the Minister’s opening remarks on clause 53 stand part. Only 11% of confirmed victims with a positive conclusive grounds decision between 1 January 2016 and 31 March 2020 received discretionary leave. I therefore ask the Minister to make it clear how an individual’s need for leave will be judged under the criteria in the Bill, and to provide us with clear evidence on how he believes that clause 53 is in keeping with the ECAT obligations.
As colleagues are aware, just weeks ago the High Court delivered a significant judgment that foreign national victims of human trafficking should be granted leave to remain, which really requires starting from scratch on these clauses. The ruling came following the case of a 33-year-old Vietnamese national who was coerced into sex work in Vietnam back in 2016, before being trafficked to the UK in the back of a lorry. From November 2016 to 2018 she suffered further exploitation, being forced to work in brothels and cannabis farms. In April 2018, she was identified as a victim of human trafficking. However, as is the case with many victims, she was charged with conspiring to produce cannabis, and was sentenced to 28 months imprisonment. In May 2019, a trafficking assessment was sought once again by her lawyers, to which the Home Office responded that it had no record of her case; she was later placed in immigration detention. It was not until her legal representatives made a further referral that she was finally recognised as a victim. In his judgment, Mr Justice Linden said,
“The effect of the refusal to grant the claimant modern slavery leave is that she is subject to the so-called hostile environment underpinned by the Immigration Act 2014.”
Craig Whittaker
Let me see whether I can answer some of those questions. The hon. Member for Halifax asked how the clause is compatible with ECAT, and where is the certainty. This measure will clarify in primary legislation the obligations set out in article 14 of the European convention on human rights, and clarify the policy that is currently set out in guidance. This confirms that victims of all ages, including children, who do not have immigration status will automatically be considered for temporary leave. A grant of temporary leave to remain for victims of modern slavery does not prohibit them from being granted another, more advantageous, form of leave, should they qualify for it. It continues to be the core principle of the approach to modern slavery—
Holly Lynch
The Minister refers to a piecemeal approach to extending leave—and extending leave—and extending leave. That is preventing victims from moving on with their recovery, from trusting the agencies and from establishing relationships that will lead to the prosecutions that we all hope for. Since he says that further extensions are likely, could we not reflect on more significant periods of leave being given in a single grant?
Craig Whittaker
I am a little surprised that the hon. Lady says “piecemeal approach”. I thought I was very clear throughout the process that it is a highly trained decision maker that will be looking at each individual on a case-by-case basis. They will have the ability to look at the individual person’s needs and extend. That approach is at the opposite end of the spectrum to the “piecemeal approach” mentioned by the hon. Lady.
Neil Coyle
I think the Minister is suggesting that there would be variation in the lengths of leave provided. Can he set out that it is the Government’s expectation that there would not be a minimum, bog standard six months that everyone is given, and that there will be quite considerable variation in the periods provided?
Craig Whittaker
I thank the hon. Gentleman for that intervention asking for clarity. He is absolutely right; decisions will be made on the basis of individual needs. I can understand where the word “piecemeal” comes from, but the reality is that if an individual’s mental and physical health and wellbeing support needs mean that those periods need to be extended, the individual highly trained decision maker will have the ability to extend the period.
Neil Coyle
The Minister is again saying extend, rather than grant for the necessary period. Coming back to the criminal prosecution case, it is very unlikely that the case will be heard within six months. It will not even get to court within six months, let alone be heard. Is it the Government’s expectation that someone will be protected with a period of leave that covers a court case? Will the individual decision maker have access to the average statistics on the time it takes to hear a case of this nature?
Craig Whittaker
I do not think that the decision maker will need the statistics on the average timescale for a decision. What they will need to make a decision is the individual person’s history and needs, which is what they will use throughout the process. If they need six months, they will get six months. If they need longer than that—whether for a court case or other circumstances —that is intended to be allowed for the individual.
There was one more question on how we assess the victim’s needs to be met in another country. The policy will make it clear for the first time in legislation that confirmed victims with recovery needs stemming from their exploitation will be entitled to a grant of leave where it is necessary to assist them in their recovery. Decision makers will assess, in line with guidance and available country information, whether the support and assistance required by the victim to aid their recovery is readily available in their country of return. This will be carried out on a case-by-case basis, in line with individual assessments for each victim.
Amendment 72 agreed to.
Question put, That the clause, as amended, stand part of the Bill.
The Chair
The Opposition have indicated that when we return this afternoon they wish to make brief remarks on clause 54 and 55 taken together and then discuss clause 56 separately. We will then take clause 57 without debate. I hope that is clear.
Nationality and Borders Bill (Fourteenth sitting)
Tuesday 2nd November 2021
(3 years ago)
Public Bill CommitteesRead Full debate Nationality and Borders Act 2022 View all Nationality and Borders Act 2022 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 2 November 2021 - (2 Nov 2021)
The Committee divided: - Ayes: 8 / Noes: 6 - Question accordingly agreed to.
The Committee divided: - Ayes: 6 / Noes: 9 - Question accordingly negatived.
The Committee divided: - Ayes: 9 / Noes: 7 - Question accordingly agreed to.
The Committee divided: - Ayes: 9 / Noes: 7 - Question accordingly agreed to.
The Chair
I highlight an announcement, given the decision about events in Parliament today. Members are strongly encouraged to wear masks when they are not speaking, in line with current Government guidance and that of the House of Commons Commission. Please also give each other and members of staff space when seated and when entering and leaving the room.
Clause 54
Civil legal aid under section 9 of LASPO: add-on services in relation to the national referral mechanism
Question proposed, That the clause stand part of the Bill.
The Chair
With this it will be convenient to consider clause 55 stand part, as announced by Sir Roger at the end of the morning sitting.
The Lord Commissioner of Her Majesty’s Treasury (Craig Whittaker)
Identifying and supporting victims at an early stage is a key part of the Bill, and the new one-stop process. To underpin that process, clause 54 provides for legally aided advice on the national referral mechanism to be provided to individuals who are already receiving legally aided advice on an immigration or asylum matter. The additional advice will be free to the individual.
The provision of legally aided advice under the clause will help the individual’s lawyer to provide holistic advice on the individual’s situation as a whole, looking at the range of protection-related issues, including modern slavery. Advice under the clause will additionally help to identify and support potential victims of modern slavery at an earlier stage. Potential victims of modern slavery will be able to understand what the NRM does and able to make an informed decision as to whether to enter it and obtain the assistance and support provided under it.
The Government are firm in our commitment to identifying and supporting all victims of modern slavery. The clause seeks to ensure that individuals are provided with advice on the NRM at the same time as they are receiving advice on an asylum and immigration matter, which will enable more victims of modern slavery to be referred, identified and supported.
Holly Lynch (Halifax) (Lab)
It is a pleasure to see you in the Chair, Ms McDonagh. Clause 54 amends the Legal Aid, Sentencing and Punishment of Offenders Act 2012 to enable advice on referral into the NRM to be provided as add-on advice where individuals are in receipt of civil legal services for certain immigration and asylum matters. Although I and many other colleagues welcome the fact that the Government have recognised the importance of legal aid as part of the process, we argue that legislating for it only as an add-on misses the opportunity to extend access to all those who would benefit from it—I include the Home Office as one of the main beneficiaries of people having access to proper advocacy and advice from an early stage.
In England and Wales, 63% of the population do not have access to an immigration and asylum legal aid provider, due simply to a lack of provision—what is known as a legal desert. Where there are providers, many are operating beyond capacity. Sadly, it is therefore commonplace for support workers to be unable to find lawyers for clients who are victims of trafficking.
It is not reasonable to expect vulnerable victims to be able to navigate the system without legal representation. It is vital that this is provided at the earliest stage possible. As the Public Law Project and JUSTICE have pointed out:
“The provision of legal aid to individuals who seek redress is not simply a matter of compassion, but a key component in ensuring the constitutional right of access to justice, itself inherent in the rule of law and an essential precondition of a fair and democratic society. Failure to provide it can amount to a breach of fundamental rights under the common law and/or the European Convention on Human Rights.”
We believe victims deserve better than what is set out before us in the Bill. The Anti Trafficking and Labour Exploitation Unit has highlighted how the single competent authority is currently sending out template witness statements as a guide for how they should be prepared. They warn of the legal implications of the document even in the absence of a lawyer. That is unacceptable. I am sure the Minister agrees that it would make for an improved system with more integrity and fewer errors—the very sort of system he proposes—if a broader approach to legal aid was adopted.
It is also fair to argue that access to legal aid remains somewhat of a postcode lottery, with many outside London and the south-east experiencing difficulties in accessing legal assistance. I take this opportunity to highlight the great work of the Anti Trafficking and Labour Exploitation Unit in attempting to widen access, having developed an online referral system for support workers to simplify the process for sourcing legal aid representation. However, it should not fall to organisations such as ATLEU to plug the gaps in the system. We wish to see improved access through this clause.
Similarly, the Government state in the explanatory notes to the Bill that clause 55 is designed to provide an add-on to legal aid on referral to the NRM if the victim has been granted exceptional case funding and is being advised in relation to the claim that their removal from or requirement to leave the UK would breach the Human Rights Act 1998. That means that clause 55 does not provide a route to pre-NRM advice for those who are not already in receipt of legal aid via the scope of another matter, and therefore does not provide free legal aid pre-NRM for all trafficking cases.
In scrutinising these measures, we have worked closely with the Immigration Law Practitioners Association, which I thank for having been so generous with its expertise, as I know it is for MPs right across the House, and for providing real-life examples that demonstrate the scale of the issue. It said:
“We assisted the pro bono department of a non-legal aid law firm when they helped a potential survivor apply for exceptional case funding—ECF—in August 2020. The funding was requested in order to provide advice on an NRM referral and associated immigration advice. This application was refused. A request to review the decision was refused. A decision on a second review is pending a final decision from the Legal Aid Agency. One ground of refusal at first review stage was that no decision had yet been made to remove the individual as they had not come forward to the authorities, and if a decision to deport or remove a client from the United Kingdom is made, an application for ECF could be made at that stage. The application remains undecided 13 months after the original submission.”
The system is a mess, Minister. It is the Opposition’s view that free legal aid and advice for potential victims of slavery and trafficking in the UK pre-NRM should not be limited to cases with existing immigration and asylum aspects. Only then will the Government’s offer of legal advice on referral to the NRM work in practice. In summary, the proposals contained within clauses 54 and 55 do not fully address the existing shortcomings in the system—another missed opportunity.
Question put and agreed to.
Clause 54 accordingly ordered to stand part of the Bill.
Clause 55 ordered to stand part of the Bill.
Clause 56
Disapplication of retained EU law deriving from Trafficking Directive
Question proposed, That the clause stand part of the Bill.
Craig Whittaker
The trafficking directive—the directive on preventing and combating trafficking in human beings and protecting its victims—was adopted by the UK on 5 April 2011. The Council of Europe convention on action against trafficking in human beings—ECAT—is the principal international measure designed to combat human trafficking. The trafficking directive is intended, in part, to give effect to ECAT. ECAT’s objective is to prevent and combat trafficking by imposing obligations on member states to investigate and prosecute trafficking as a serious organised crime and a gross violation of fundamental rights.
Following the end of the transition period on 1 January 2021, the UK is no longer bound by EU law, but ECAT remains unaffected. Therefore this Government intend, by means of clause 56, to disapply the trafficking directive in so far as it is incompatible with any provisions in the Bill. That will bring legislative certainty to the Bill and how its clauses will apply. It will also provide further clarity to victims about their rights and entitlements.
The Government maintain their commitment to identify and support victims of modern slavery and human trafficking, as part of the world-leading NRM. The Modern Slavery Act 2015 and ECAT, which sets out our international obligations to victims, remain unaffected, as do the UK’s obligations under article 4 of the European convention on human rights.
I commend the clause to the Committee.
Holly Lynch
I thank the Minister for his opening remarks on clause 56. The explanatory notes on the clause state that, as the Minister has just outlined,
“the Trafficking Directive should be disapplied in so far as it is incompatible with any provisions in this Bill.”
There are some substantial and quite technical inconsistencies here that need to be worked through, and to do so we have had to enlist legal expertise from the Anti Trafficking and Labour Exploitation Unit and others, so I thank them all for their service.
The trafficking directive is part of a suite of measures designed to combat the crime of trafficking. The EU has introduced several legislative measures to strengthen the protection of victims of human trafficking, including the 2011 EU directives on preventing and combating trafficking in human beings, and protecting victims of trafficking.
I turn first to the heading of clause 56—“Disapplication of retained EU law deriving from Trafficking Directive”. Subsection (1) refers to
“Section 4 of the European Union (Withdrawal) Act 2018”,
which saved the trafficking directive in domestic law, so that it continued to have effect on or after the UK left the EU at the end of December 2020. However, it has the opposite effect, by stipulating that any
“rights, powers, liabilities, obligations, restrictions, remedies and procedures derived from the Trafficking Directive”
that were saved cease to apply,
“so far as their continued existence would otherwise be incompatible with provision made by or under this Act.”
Therefore, our primary concern about clause 56 is that the power to disapply the rights derived from the trafficking directive will cease the rights and remedies available to victims generally as a matter of domestic or EU law that continues in force in the UK.
The world’s largest group of modern slavery researchers, Rights Lab, has argued:
“After eight years of the government’s general position being that the rights under the Trafficking Directive were already in domestic law, the choice to legislate now in the Nationality and Borders Bill—to reduce and restrict rights and entitlements through Part 4 of the Bill—and the presence of the express power to disapply them in the event of an incompatibility with the Bill in Clause 56 is concerning. The government should instead ensure that rights under the Trafficking Directive continue to apply in UK law, by incorporating it, and further, it should incorporate ECAT in domestic law and end the fragmented approach to victim identification, protection, and support.”
The clause will also threaten the Government’s ability to combat the perpetrators of human trafficking, as it will further undermine the response to criminal justice and the rights of victims of trafficking as victims of crime in the victims of crime directive and relevant codes of practice. Additional concerns have been voiced in relation to the rights under the NRM of victim identification and support and non-penalisation. For example, article 8 of the directive provides for the non-prosecution or non-allocation of penalties to victims, and requires the UK to ensure that competent national authorities are entitled not to prosecute or impose penalties on victims of trafficking in human beings for their involvement in criminal activities that they have been compelled to commit as a direct consequence of being subject to any of the acts referred to in article 2.
Therefore, that directive is clearly threatened by clause 56 and other provisions of part 1 of the Bill, including clause 51, which I appreciate is precisely why this Government want to disapply it. However, I am afraid that that is just the wrong judgment call.
In conclusion, the clause is incompatible—
Craig Whittaker
I am not sure whether the hon. Member is aware that the transition period for this measure finished in January, so in effect it has already been disapplied.
Holly Lynch
I thank the Minister for his intervention. We are into the thick of the legal technicalities. These points are from some of the leading legal experts on the subject. They are not entirely satisfied that clause 56 is compatible, and that we are not missing some of the protections that have been hard fought for, with good reason.
In conclusion, the clause is incompatible with the UK’s legal international obligations and will have far-reaching consequences. For that reason, it should not stand part of the Bill.
Paul Blomfield (Sheffield Central) (Lab)
I beg to move amendment 150, in clause 58, page 52, line 19, at end insert—
“(3A) Before making regulations under this section, the Secretary of State must consult the ethical committees of the relevant medical, dental and scientific professional bodies and publish a report on the consultation.”
This amendment would require the Secretary of State to consult with ethical committees of medical, dental and scientific professions before making regulations in their area, and publish a report on the consultation.
The Chair
With this it will be convenient to consider the following:
Clause stand part.
Government amendment 168.
Government new clause 29—Interpretation of Part etc.
Government new clause 30—Persons subject to immigration control: referral or assessment by local authority etc.
Government new clause 31—Persons subject to immigration control: assessment for immigration purposes.
Government new clause 32—Use of scientific methods in age assessments.
Government new clause 33—Regulations about age assessments.
Government new clause 34—Appeals relating to age assessments.
Government new clause 35—Appeals relating to age assessments: supplementary.
Government new clause 36—New information following age assessment or appeal.
Government new clause 37—Legal aid for appeals.
Paul Blomfield
I understand that the Government seek to delete clause 58 and replace it with new clauses 29 to 37, which provide more detail. However, the detail does not offer any reassurance; quite the contrary.
Mr Robert Goodwill (Scarborough and Whitby) (Con)
Does the hon. Gentleman accept that new clause 32 makes amendment 150 superfluous, as it talks about the scientific input into age determination?
Paul Blomfield
I thank the right hon. Gentleman for his intervention, but he is completely wrong and I will explain why shortly.
In existing clause 58 and the new Government clauses, the Government want to introduce new regulations and a standard of proof for age assessments, to compel local authorities to assess age, to allow the use of “scientific methods” to assess age, despite widespread concerns from professional bodies about the validity or accuracy of any such methods, and to penalise children for not consenting to these potentially harmful interventions.
Children who come to the UK on their own, from countries such as Afghanistan, Sudan and Eritrea, face a unique problem when asked to prove their date of birth. The registration of births and the importance placed on chronological age differs across the world, and many are genuinely unable to show official identity documents, such as passports or birth certificates, because they have never had them in the first place, they have had them taken away from them, they have lost them in the chaos of fleeing, or sometimes they have had to destroy them en route.
Disputes over age can also arise from a lack of understanding of the way in which dates are calculated in other countries and cultures, and associated confusion over what is being said by a child about his or her age. So, one might reasonably ask, why are the Government making so much of this issue?
Mr Goodwill
Does the hon. Gentleman not agree that there are incentives for adults to pass themselves off as children? If the age assessment is done incorrectly, the result could be adults being placed in schools or local authority care, putting children at risk.
Paul Blomfield
He can have another go if he wants.
I hear what the right hon. Member for Scarborough and Whitby is saying. I remember watching a BBC programme recently—I think it was on the BBC—on the Kindertransport. The same debate was had about Jewish refugees fleeing Nazi Germany after Kristallnacht. Some were slightly older than the age restriction of the time. I do not know whether the right hon. Gentleman thinks that this legislation would have been appropriate at that time. We could have turned them around and sent them back to the Nazis.
Paragraph 24 of the explanatory notes states:
“Since 2015, the UK has received, on average, more than 3,000 unaccompanied asylum-seeking children per year. Where age was disputed and resolved from 2016-2020, 54% were found to be adults”.
Clearly, 54% is a big number, but the data in the notes is more than a little selective.
According to Home Office statistics, for the most recent normal year unaffected by the pandemic, which was 2019, there were 4,005 unaccompanied children applications. Of those, 748 had their age disputed and 304 were found to be adults. That is just over 7% of child applicants. The problem is that that is in no way as prolific as purported by the explanatory notes. The actual number is likely to be lower, because the Home Office stats do not include decisions later overturned following advocacy or reviews by judges.
Again, the Government have a problem finding evidence to justify a proposal in the Bill. This is clearly not the first time this has happened. I see that the Home Secretary got herself into trouble with the Lords Justice and Home Affairs Committee today by being unable to come up with the facts to justify one of her wilder allegations about those crossing the channel. Nevertheless, the Government are ploughing ahead with their plans to use scientific methods to assess age.
I now turn specifically to new clause 32, which does not offer any of the clarity that the right hon. Member for Scarborough and Whitby suggested. Proposed new subsection (2) mentions the
“types of scientific method that may be specified”,
and that the two specified might be included. However, proposed new subsection (9) goes out of its way to state:
“This section does not prevent the use of a scientific method that is not a specified scientific method for the purposes of an age assessment under”
the previous proposed new section,
“if the decision-maker considers it appropriate to do so”.
New clause 32 is therefore saying: “Any scientific method that we can come up with at any time in the future will be legitimate.”
Mr Goodwill
I understand the point that the hon. Gentleman is trying to make, but I am worried that he is saying, “Well, we’ll give a lot of people the benefit of the doubt”, which could result in large numbers of adults being placed in settings that are appropriate for children. Surely he is aware that since the 2003 case, age assessments have been Merton compliant. Any actions that the Government take to follow through on the Bill becoming law will obviously be tested in the courts in the same way as the early years situation.
Paul Blomfield
I refer the right hon. Gentleman to what my amendment 150 proposes. All it asks is that the Government should be required to take into account relevant scientific and medical evidence, consulting reports of the ethical committees of the appropriate medical and dental professions, on the Government’s planned use of scientific methods for assessing age.
What do the experts think? The British Dental Association called dental X-rays for age assessments “inaccurate and unethical”, which is a theme that relates to the rest of the Bill—it will not do what it says it will do. The Government apparently told some journalists that they do not plan to use dental X-rays anyway, but the Bill leaves that option open, so forgive us if we do not take casual briefings to journalists on the side as a way to determine the Government’s future conduct on this issue.
The Government are apparently planning to use wrist X-rays, which the British Medical Association tells us it has “serious concerns” about because
“they would involve direct harms without any medical benefit to the individual”,
as radiation exposure over a lifetime should be kept as minimal as possible. The BDA agrees:
“The process of radiography is a medical procedure that should be carried out only for medical purposes, and where the patient stands to benefit. Exposing children to radiation when there is no medical benefit is simply wrong.”
The BMA also warns that
“the evidence supporting the accuracy of the process is extremely weak”.
We are back to the same old theme: there is no real evidence to support what the Government are doing. The BMA goes on to say that the process is particularly weak where,
“as in the case of most asylum seekers, there is a shortage of appropriate age and cultural comparators.”
Yet again, Ministers are introducing ineffective proposals without any evidence, making those seeking asylum—in this case, children—part of the narrative of “Let’s assume bad faith, and let’s assume that everybody is trying to play the system.” It will not work, but it is designed to grab headlines and to make it seem as though the Government are talking tough, rather than dealing with the genuine issues on which we agree, such as stopping those who are forced out of desperation to make journeys across the channel. I urge the Minister to accept our amendment or, better still, to just withdraw the clause.
The Chair
The Public Gallery is becoming a little crowded. I encourage everyone sitting there to spread out as much as possible, to ensure social distancing.
Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)
I would like to speak to clause stand part, and I support everything that the hon. Member for Sheffield Central has already said. We all recognise how important it is to get age assessments right, while acknowledging that it will always be an imperfect process. As he said, what precisely is the nature and scale of the problem that the Government are driving at here? Of course, it is important to ensure as far as possible that adults are not placed in child settings, but the overall tenor of the evidence that we have received is that placing children in adult settings is an even greater risk. If a young adult is placed in a setting designed for older children, there will at least be child-specific safeguarding and other age-appropriate support. If a child is wrongly placed in adult reception and immigration processes, there are no such protections, and such a decision can have profound impacts on and consequences for a child.
First and foremost, we should continue to think about age assessments as a function of the child protection and safeguarding system, not of the immigration system. The responsibility should remain with social workers, whose expertise and experience make them by far the best people to undertake such assessments where support is required. We should preserve the current position, which does not place an evidential burden on a child or young adult but leaves the decision makers to weigh up all the evidence to a reasonable degree of likelihood. The Home Office has quite simply offered no sound reasons for undermining that arrangement and for imposing a higher standard of proof.
Mr Goodwill
I have just had a look at the NHS website and it says that having an X-ray is equivalent to one or two days of background radiation. If someone takes a short-haul flight, the amount of radiation they are likely to be exposed to is probably more than an X-ray, particularly if it is on a limb and not on the main body.
Stuart C. McDonald
I do not have access to that webpage, but the right hon. Gentleman has access to the extensive evidence submitted to the Committee by the BDA. It is a two-sided issue. First, it is not appropriate to subject people to radiation, and in this case there is no informed consent. The evidence is clear. The Royal College of Paediatrics and Child Health is clear that an assessment can be no more accurate than two years either side. The British Society for Paediatric Endocrinology and Diabetes is clear that we cannot assess a child’s age just physically or by analysing bones.
In short, if a decision maker says that somebody is 18 years old, the person is just as likely to be 16 or 20. These new clauses leave the Secretary of State with powers that are far too broad. She should at least be required to have consent and approval from professional bodies, whether medical, dental or scientific. The insistence that so-called scientific methods can be used anyway if the decision maker considers it appropriate—as enabled by new clause 32(9)—totally undermines the other safeguards. It must be removed.
Mr Goodwill
The hon. Member is very generous in giving way. Is he saying, in effect, that in every case we should take the person’s word for how old they are and treat them as children, even if there is scientific evidence that they may be many years older than 18?
Stuart C. McDonald
No, I am not saying that. What I am advocating is the position at present—that the decision maker looks at all the evidence that is available in the round. If somebody is 50, I cannot imagine them needing an invasive scientific procedure to establish that they are over 18. I am not by any stretch of the imagination saying that we just take somebody’s word for it. I am advocating for the status quo. By all means the Government can introduce some sort of advisory board, but that should not supplant and take over the functions of local authorities—but that, unfortunately, is how I see these new clauses working.
The new clauses suggest that there will be implications for a person’s credibility if they choose not to undergo the medical procedures. I object, as a point of principle, to Parliament telling decision makers what to think about someone’s credibility when it is those decision makers—not us—who know the circumstances of the decision that they have to make. It is particularly objectionable given that professional medical bodies thoroughly object to these so-called scientific procedures. Despite the fact that professional bodies have said that these tests are inappropriate, the Government are telling decision makers that, if a young person says, “Well, the medical professionals say this is inappropriate, so I won’t undergo this,” they must find that young person lacking in credibility.
I repeat the point I made in relation to earlier clauses about the impugning of the credibility of those making statements on someone’s behalf. It is especially bizarre that a medical report by a multi-disciplinary panel of experts could have its credibility maligned simple because a child or young adult refuses to undergo one of these so-called scientific methods of testing introduced through regulations by the Secretary of State. Not only is it bizarre; it also undermines the fundamental idea that people should be able to give free consent to medical procedures and examinations, and not be pressured into them. Similarly, it undermines the principle that such a procedure should happen only if it delivers a scientific benefit for that person.
What consultation has there been? We have not been able properly to scrutinise or ask questions of relevant witnesses in relation to these specific provisions. Is consent to be sought from devolved Governments on the basis that large tracts of these new clauses relate to how local authorities should exercise functions related to devolved legislation? In the absence of assurances on any of those fronts—the evidence of problems, proper consultation and devolved consent—the case for change is absolutely not made. On the contrary, there are all sorts of dangers in these clauses that could have serious consequences for children.
Anne McLaughlin (Glasgow North East) (SNP)
I will be brief, as I have just a couple of questions. Ethics aside, as is the want of this Government—if that is not the case, why are they running away from the amendment tabled by the hon. Member for Sheffield Central?—I want to look at the issue of estimating the maturity of a child’s skeletal system by comparing images with databases of children of the same age and gender. Do children in Ethiopia develop at a comparable rate to children in the UK, because I understand that that is who they are going to be compared to? Do children in Eritrea and Sudan develop at the same rate? The British Medical Association seems pretty certain that they do not. If that is the case, how long will it take to build databases of comparable images for each country or region, and has that work started?
Bambos Charalambous (Enfield, Southgate) (Lab)
The Government have tabled new clauses 29 to 37 to replace clause 58, which was a placeholder clause on age assessments. Colleagues have already made the point about lack of scrutiny. Having received these new clauses so late in the day, we have not had a chance to see proper evidence, because we were not aware of what has been said. Clearly, as part of its role a Committee must have time to scrutinise. I am sure we will do the best we can with the time we have been given, but it really is not best form to have so many Government new clauses so late in the day on such an important issue.
We are concerned that the age assessments referred to in new clauses 29 to 37 risk violating children’s rights. I thank the Refugee and Migrant Children’s Consortium, a coalition of over 60 organisations, for its excellent briefing on these new clauses and for sharing its concerns about their inclusion in the Bill. If implemented, the new regulations and measures on age assessments will significantly increase the risk that children in the system will be treated as adults and criminalised. Before we discuss specific measures, it is worth noting that age assessments are not straightforward, nor are they an exact science. The measures in this Bill fail to recognise that it is impossible to determine age precisely, especially when there is an absence of documentation, which is often the case. By introducing a higher standard of proof in age assessments, more children in the system will be wrongly treated as adults, with devastating consequences.
For unaccompanied children in the asylum system, age is fundamental to receiving the support and protection they need. In the UK, age determines how or whether someone is supported by children’s services and has access to education; whether they are provided with asylum support by the Home Office and dispersed to a different part of the UK; and whether they are accommodated or detained with adults. It is imperative that we get age assessment right, and we all agree that there are clear safeguarding issues when people claiming to be children are later found to be adults, but it is also true that the effects of children being wrongly treated as adults are significant. I therefore urge colleagues to consider those safeguarding risks in relation to new clauses 29 to 37.
New clause 29 defines various terms, including “age-disputed person”, which governs the persons to whom the provision on age assessments will apply. As it stands, new clause 29 will mean that age assessment is required whenever there is insufficient evidence to be sure of age. Of course, as we know, this is true in many if not all cases. In practice, this clause therefore puts the burden of proof on a child to prove that they are under 18.
This is problematic for a couple of reasons. Children who come to the UK on their own from countries such as Afghanistan face challenges when asked to prove their date of birth. First, the registration of births and the importance placed on chronological age differs across the world. Secondly, and perhaps more significantly, there is often a lack of documentation. For example, many children who come to the UK have never had official identity documents in the first place, or have had documents taken from them or destroyed during their journey to the UK.
It is worth sharing an example, and I thank the Refugee and Migrant Children’s Consortium for bringing it to the Committee’s attention, as it highlights both the challenges in determining age accurately and the impact of wrong decisions. This case refers to a young person named K, who arrived in the UK from Iran and was held in a police station. He was 16 years old when he left Iran, and he told the staff at the police station his date of birth. They explained that, based on the date of birth, he was now 17.
K was then questioned by someone—he believes they were from social services—who did not believe he was 17, as they believed he looked older. Before entering the UK, K had been living in the jungle in Calais, and had not properly washed for a long time and had grown a beard. K was pressured into accepting he was 18 years old, and the Home Office recorded his age as 18. This meant he was not referred to a local authority for a full age assessment and was dispersed into adult asylum support accommodation in a hotel. He was the only child in the hotel and was left very scared. He reported that adults in the accommodation were taking drugs and he could not eat during his time there.
K managed to get in contact with the British Red Cross, and a safeguarding referral was made to the relevant local authority. The local authority promptly arranged to visit the young person, and two social workers agreed that it was highly likely that K was the age he was claiming to be. K was immediately moved and provided with full support under section 20 of the Children Act 1989. The local authority completed a full needs assessment and quickly took action to refer him to a GP, dentist, optician and immigration solicitor, and supported him to enrol in college. He had been suffering from asthma, and had not received any medical support since he arrived in the UK.
K’s case highlights what can happen when a young person is wrongly considered an adult in the asylum system, and the effects are stark. They lose access to the support and protection they need. That is why we must be incredibly careful to develop appropriate and fair age assessments, and also ensure that they are a function of the child protection and safeguarding system more widely.
In relation to K’s case, I have mentioned the fact that children are in hotels, and there is a real question about what safeguarding goes on in hotels. I know the Minister is deputising today, but could he look into that for me and to write back to me, or ask officials to do so at some stage, about what safeguarding for children does go on in hotels?
In new clause 30, the Home Office will be given the power to make regulations on how to assess age and introduce a standard of proof on the balance of probabilities for age assessments. The current standard when age is disputed in the context of an asylum appeal, developed through years of case law, is that of a reasonable degree of likelihood. Given the complicated nature of assessing age, introducing such a high standard of proof would significantly increase the risk of children being wrongly treated as adults. Indeed, new clause 30 undermines current statutory guidance from the Department for Education, which makes it clear that age assessments
“should not be a routine part of a local authority’s assessment of unaccompanied or trafficked children”.
Jonathan Gullis (Stoke-on-Trent North) (Con)
It will probably not shock Committee members that I support what the Government are doing on age assessments. Ultimately, it is about ensuring that we protect our young people in our United Kingdom. When people say that they are children and will be in a classroom surrounded by people of a similar age, we need to make sure that they are indeed children.
As a former teacher, I understand the importance of this. As a former head of year who had responsibility for safeguarding, covering welfare, attendance and the behaviour of young people, it makes no sense to me why anyone would oppose a measure to make sure that people who claim to be young people are indeed young people. An individual who has nothing to hide should have nothing to fear in this regard. It is absolutely essential that age assessments take place to make sure that people claiming to be of school age are indeed of that ilk, because ultimately other young people could be put in a very vulnerable situation.
Stuart C. McDonald
We want age assessments to be as accurate as they can be at the moment, not just through the work of social work groups but with input from outside. Does the hon. Gentleman have any concerns about the impact on children who end up being wrongly placed in adult facilities?
Jonathan Gullis
Of course—absolutely. Young people should not be placed in a situation like that, for safety reasons. As a former teacher, I would not want a 14 or 15-year-old to be somewhere they felt unsafe. The problem is that we have a broken asylum system that needs fixing. Age assessments can be avoided if people do not try to enter the country illegally, but come by safe and legal routes, where we can have documentation.
There are other ways to prove someone’s identity, age and application, as we have done in Afghanistan and Syria, which will ultimately be a much better system than having illegal economic migrants crossing the English channel from Calais and entering this country illegally. They are putting a huge strain on the public services of our country and on the people of Stoke-on-Trent North, Kidsgrove and Talke, whose area is the fifth largest contributor to the asylum dispersal scheme.
Age assessment is absolutely essential. It is another way of reminding people that if they make an illegal entry into this country they will face a number of procedures to verify the credibility of their asylum claim, their identity and their age, in order to ensure we protect our country’s young and vulnerable people. It is the right and proper thing to, and I fully applaud the Minister on pushing this essential clause.
Craig Whittaker
Let me start with amendment 150. I would say to the hon. Member for Sheffield Central that his amendment applies to all aspects of age assessments, not only the use of scientific measures. As such, it is extremely broad, although I do not know if that remains his intention.
The Home Office takes its statutory duties towards the welfare of children very seriously. The current age assessment system is desperately in need of reform. We have heard many reports from local authorities about the prevalence of adults posing as children and claiming services designed for children, including accommodation, education and social care. This poses significant risks to the welfare of genuine children in our care system and undermines the integrity of the immigration system. Equally, we need to safeguard vulnerable children from being placed in adult services, although I am not sure I agree with the hon. Member for Sheffield Central when he said that this is headline grabbing.
We must do everything in our power—whatever that is—to safeguard children, including vulnerable and unaccompanied asylum-seeking children.
Holly Lynch
The Government were less enthusiastic about protecting children under part 4 of the Bill.
Craig Whittaker
I do not think that deserves a response because I do not believe any Member of the House, wherever he or she sits, would advocate that we leave children vulnerable in the system.
One measure we look to pursue is the use of scientific methods, as has been said. Assessing someone’s age is an incredibly difficult task. It is only right that in this complex and sensitive area we seek to improve and expand the evidence base on which decisions can be made. We are aware there are ethical concerns around the use of certain scientific methods for age assessment, which is why new clause 32 includes a number of changes to the Bill to ensure proper safeguards are in place for those who are asked to undergo a scientific age assessment.
First, the Secretary of State may only specify a scientific method of age assessment in regulations once she has sought scientific advice and determined that the method in question is appropriate for assessing a person’s age. I expect that scientific advice to also cover related ethical considerations. Secondly, a scientific method of age assessment will not be performed unless the appropriate consent is given by or on behalf of the individual on whom the method is to be performed. We will be as transparent as possible about the nature and consequences of the specified method where consent is required once an appropriate method has been identified. Thirdly, where a person has reasonable grounds for refusing to undergo a scientific age assessment, they will not be required to undertake one. That decision will not then count against them.
Stuart C. McDonald
The Minister is outlining what he sees as safeguards. I am unconvinced. New clause 32(9) seems to say that nothing prevents the use of a scientific method, even if it is not specified in regulations and so on, if the decision maker considers it appropriate and, where necessary, consent is given. Given that there are implications if consent is not provided, that surely rides roughshod over all the other protections that the Minister just outlined.
Craig Whittaker
I will come on to that when I discuss further measures in new clause 32, but our opinion is that the amendment is not necessary and I ask the hon. Member for Sheffield Central to withdraw it. On the new clauses, clause 58 is one of the six clauses drafted as placeholder clauses of introduction, as indicated in the explanatory notes and memorandum for the Delegated Powers and Regulatory Reform Committee. It was drafted as such in the interests of transparency to make clear our intention to bring forward substantive provision on age assessment. New clauses 29 to 37 are intended to replace clause 58 entirely.
Before I touch on the other clauses, regarding new clause 32, we have already said that determining a young person’s age is an inherently difficult task. One of the questions posed earlier was how we do that as a comparator between other young people growing up in less well-developed countries. Under current arrangements where an individual’s age is disputed, local authorities must already undertake an age assessment. That typically involves two appropriately qualified social workers undertaking a series of interviews with the young person and taking into account any other information that is relevant to their age. However, even where those assessments are conducted thoroughly and reach reasoned conclusions, they are fraught with difficulty, as one would imagine. Such assessments can have a wide margin of error. We are aware of cases where a Merton-compliant age assessment, as they are called, has been conducted on the same individual by different social workers and has come to very different conclusions about the person’s age. Given that context, the use of scientific age assessments represents an additional and important source of evidence to help decision makers in a difficult task, allowing them to better come to accurate judgments. At the end of the day, that is our aim.
Various scientific methods of age assessment are already in use across most European countries, and have been for several years. In Finland and Norway, which I mentioned earlier, radiographs are taken to examine development of the teeth and the fusion of bones in the wrist. Two certified experts perform the age assessment and must jointly agree on the person’s age. In France, X-rays are taken to examine the fusion of the collarbone, alongside dental and wrist X-rays. In Greece, dental X-rays are used alongside social worker assessments.
Anne McLaughlin
What are the experts comparing with? My question is, will they be comparing the bone density or whatever with that of children of the same age in the UK, knowing that the development of children from other parts of the world is very different, or will they have a database of comparable images of the skeletal system—whichever part they are using—from each of the other countries? Is that something that is happening at the moment, or will they just be compared with UK-based children?
Craig Whittaker
I suspect that the answer to the hon. Lady’s question is that how that is assessed will be down to the individual scientific advice given on the individual case at the time. I cannot see a like-for-like comparator for a child from Ethiopia or Sudan, which was mentioned earlier, being a child in this country. That is why the scientific evidence is a much more accurate way of assessing. It can be a great tool in the arsenal of assessing a child when compared with our existing system, which is the Merton assessment by two individual social workers. Given the challenges of assessing an individual’s age, we see no good reason why such technologies should not also be used. In all good faith, this is one of several tools in the arsenal. To further enhance my answer to the question asked by the hon. Lady, the precise scientific method of assessment will be specified in regulation, following scientific advice.
We are also making it clear within new clause 32 that a decision maker will be able to draw a negative credibility inference if an individual refuses to undergo a scientific age assessment without reasonable grounds. The introduction of any scientific method would be entirely undermined if someone who was asked to undergo such an assessment could simply refuse to co-operate. By legislating to develop our own scientific age assessment capability, we hope to emulate best practice across Europe and to ensure that unaccompanied asylum-seeking children are provided with the care they are entitled to in a safe environment.
Let me turn to the rest of the amendments in the group before I answer some of the questions. Amendment 168 is consequential on new clauses 32 and 33. It provides that the regulation-making powers in the clauses are commenced automatically two months after Royal Assent.
The purpose of new clause 29 is to define an “age-disputed person” and to set the parameters to whom the age-assessment clauses apply. It clarifies the meaning of a number of terms, including “age-disputed person”, “immigration functions”, “immigration officer” and the respective definitions of “local authority” in England, Wales, Scotland and Northern Ireland. The clause also defines the meaning of “relevant children’s legislation” across the four nations of the United Kingdom.
New clause 30 relates to the establishment of a decision-making function in the Home Office, referred to as the national age assessment board, or the NAAB, as I think the hon. Member for Enfield, Southgate referred to it. The NAAB will have responsibility for conducting age assessments of age-disputed persons on referral from the local authority or another public authority specified in regulation. Where an age-disputed person is referred to the NAAB by a local authority, the NAAB assessment will be binding on both the Home Office, in relation to immigration functions, and the local authority when determining access to children’s services. Alongside new clause 30, new clause 31 relates to the establishment of the NAAB. While most NAAB age assessments will be conducted on referral from a local authority, the new clause stipulates that the NAAB may, in certain situations, conduct age assessments on age-disputed persons for the sole purpose of deciding whether or how the Secretary of State should exercise any immigration functions.
Stuart C. McDonald
Will the Minister say a little bit more about the NAAB? Who will be appointed to it, how will it generally undertake assessments and how will its independence from the Home Office be ensured?
Craig Whittaker
I assure the hon. Gentleman that I will answer him before I finish answering the other questions, if indeed I can find the answer in my book.
I have covered new clause 32 quite extensively. New clause 33 provides the Secretary of State with the power to make regulations about the way in which age assessments are to be conducted under the provisions in new clauses 30 and 31. It will provide the Secretary of State with the power to provide more clarity on what a comprehensive age assessment should entail, including, where appropriate, existing elements of age assessment case law. It will be mandatory for local authorities and the Secretary of State to follow these requirements when conducting age assessments. New clause 34 provides for a right of appeal to the first-tier tribunal for an age-disputed person who has been subject to age assessment. In considering an appeal, the tribunal will be able to consider any evidence it deems relevant. It will determine the age of the age-disputed individual and assign them a date of birth.
New clause 35 provides clarity in a number of areas related to the appeal of an age assessment decision. First, a person who brings such an appeal must do so while they are here in the United Kingdom. If they leave the United Kingdom before the appeal is finally determined, the appeal is discontinued. Secondly, the clause provides for the appellant to apply to the tribunal for an order. Pending the outcome of the appeal, the local authority must exercise its function under children’s legislation as if the person is the age they claim to be. Where an age assessment has been made and the individual has not brought an appeal, or has concluded the appeal process, new clause 36 provides a mechanism for them to make further representations to a decision maker where they have new evidence to submit in support of their claimed age. That covers all the specific parts of the new clauses.
The hon. Member for Enfield, Southgate asked me about hotel accommodation. In cases involving a child, local authorities obviously will have obligations to look after them. For adults, hotels are not detention centres, and adults are not held their against their will. There is a duty of care on the local authority when someone is placed there; it is required to give wraparound care for that individual, particularly for children. I cannot really see children being placed there by themselves, but I understand what the hon. Gentleman is saying about where there is an issue around age. Somebody could slip through the net, but the local authority would be required to give wraparound care.
Paul Blomfield
The Minister may be about to pre-empt me, but I do not think he has answered the questions raised by the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East in relation to the national age assessment board, so will he at least undertake to write to us on that issue?
Craig Whittaker
No, I have not finished yet. I am not quite ready to sit down, but I will answer that question. Basically, the board will predominantly consist of qualified social workers who, through being dedicated to the task of conducting age assessments and through training and the sharing of expertise, will achieve a more consistent and accurate approach to the task of age assessment. As Members have probably seen, such professionals are referred to as a “designated person” in the new clauses, and the board will have responsibility for conducting age assessments on age-disputed persons on referral from the local authority, as I said. Local authorities will retain the ability to conduct age assessments if they prefer to do so. If they believe that a person is actually the age they claim to be, they must inform the Home Office accordingly.
The hon. Member for Sheffield Central asked whether binding local authorities’ hands is just a power grab from central Government. The answer to that question is no. If local authorities wish to carry out their own assessments, they will be able to do so—without question, that will be the case. On that basis, I commend the new clauses to the Committee.
Paul Blomfield
I have listened carefully to the Minister’s observations. To be fair, he made a good fist of defending the indefensible, but he failed to answer the concerns expressed by me and the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East in relation to the way that subsection (9) of new clause 32 drives a coach and horses through all the reassurances that we have been given. His criticism of the amendment as being a bit broad and involving quite a lot of work fails to acknowledge how narrow it is. It would simply require the Secretary of State to take advice before making regulations, and I therefore wish to press the amendment to a vote.
Question put, That the amendment be made.
Paul Blomfield
I beg to move amendment 151, in clause 59, page 52, line 33, at end insert—
“(3A) The Secretary of State must publish impact assessments on the effect of the provisions in this section on—
(a) nationals from countries falling within subsection (3), and
(b) the United Kingdom’s economy and trade.”
This amendment would require the Secretary of State to publish impact assessments with regard to the effect this clause might have on both nationals from countries in subsection (3) and the UK economy and trade.
The Chair
With this it will be convenient to discuss the following:
Clause stand part.
Government amendment 80.
Government new clause 9—Removals from the UK: visa penalties for uncooperative countries.
Government new clause 10—Visa penalties: review and revocation.
Paul Blomfield
The amendment would require the Home Secretary to publish impact assessments on the effect of clause 59 both on nationals from the countries in subsection (3) and on the UK’s economy and trade.
The Government plan to replace clause 59 with Government new clauses 9 and 10. This is a slightly more developed version of the proposal to punish the nationals of countries if the Government consider their Governments to have been unco-operative on returns. The explanatory notes for clause 59 do not explain its purpose—because it was a placeholder clause, there was no detail—so I assume it is to act as an incentive for countries to co-operate with returns, but I hope that the Minister will seek to provide some evidence of that.
The explanatory notes do state that
“a very small number of countries do not cooperate”
with returns, suggesting that penalties would apply only to a limited number of states. However, a report in The Daily Telegraph on 15 October—presumably briefed by the Government, which is the way we seem to get information these days—said that
“Pakistan, Iran, Iraq, Sudan, Eritrea and Philippines”
are countries understood not to co-operate with returns. We know that the majority of those on that list have conditions that mean returns are unlikely anyway, as there are strong asylum cases from them, so we know that the deterrents will not work. So, I would like to press the Minister a little bit more on what the Government expect to achieve with these revisions.
Mr Goodwill
Surely what the hon. Gentleman says defies logic. If we are going to give visas to nationals of a particular country and we know there is a risk they may overstay, surely we can be more generous and more engaged with that country if we know that those overstayers can be removed. In the case of visas, we will have biometric data, so that there is no doubt about a person’s identity.
Paul Blomfield
I hear what the right hon. Member is saying, but the scope of this provision seems to go much wider than that. It seeks to introduce punitive measures, including on visa charges and so on, for individuals who may be applying, and I will develop that point. It is nothing to do with overstaying. This is about countries that are unco-operative on returns in other contexts.
I want to press the Minister on what the Government expect to achieve by this. For example, it is not in our interests to sanction doctors, nurses or engineers who have been recruited to the UK from one country with longer visa processing times or higher charges, and that would be deeply damaging for our diaspora communities. Again, it feels as if we have proposals picked from headlines, which are not in the country’s interests.
Mr Goodwill
It might help some of these countries if we did not plunder their health professionals, who have trained at the expense of that country, and actually trained our own instead.
Paul Blomfield
I am interested in that observation, and I hope the right hon. Gentleman will lead the charge to persuade the Government to allocate far more resources for the training of health professionals and to tackle the crisis they have created within our health service over the past 11 years.
Amendment 151 will try to ensure that the Government are clear-eyed about the impact of their policy and the trade-offs they are prepared to make, as well as the impact on UK public services, communities and businesses. The amendment would allow the public to examine that trade-off, too. It would ensure that the Government track the impact of their policy, and are transparent with business and trade over the impact any visa penalties might have, either through reduced travel or through deteriorating relationships with those countries.
The Government talk a lot about global Britain, but through our examination of the Bill we have seen many threats to that and a lot of ways in which they plan on sowing discord with other nations around the world, damaging our reputation in the international community. I know that the Minister will not vote for clause 59 stand part, but I would welcome his thoughts on the wider impact of the replacement clauses, along the lines of my amendment. I would appreciate it if he could tell us whether any such impact assessments are being considered.
I have an important point to make about new clauses 9 and 10, to which I hope the Minister can respond. There is significant concern that these clauses will prevent people from joining refugees in the UK through the family reunion route. Let us consider the countries cited in The Daily Telegraph again: Pakistan, Iran, Iraq, Sudan, Eritrea and the Philippines. Since the start of 2019, 8,480 people from Iran, Iraq, Sudan and Eritrea have been granted refugee family reunion visas to join loved ones in the UK. That equates to just over half—53%—of all family visas granted over that period. Some 3,584 of those visas were for children and 5,771 for women or girls. The new clause, as drafted, would potentially apply to visas for refugees coming to the UK under one of the Home Office’s resettlement schemes, including the relocation scheme for Afghan nationals who have previously worked with the UK Government or applicants from Hong Kong for British national overseas visas.
So, if the Government are determined to proceed with these new clauses, at the very least new clause 9 needs to be amended to include an exemption for refugee family reunion and other protection routes. I should be grateful if the Minister would indicate whether the Government are willing to do that.
Anne McLaughlin
We support amendment 151 for the self-explanatory reason that we need to know the impact of these actions. We are not saying that visa penalties should never be imposed in any circumstances, but we share many of the concerns voiced by the hon. Member for Sheffield Central and I will focus on a couple of them.
The Government say this clause will incentivise other countries to co-operate with the UK Government to remove those who have no right to be in the country, but they have presented no evidence that this will be the case. Saying it is one thing, but if they are so confident of it they should do some work and, as the hon. Member for Sheffield Central asks in his amendment, publish a report examining the impact on our relations with other countries.
The Joint Council for the Welfare of Immigrants says that this clause will affect, among others, workers, including key workers. Have not the Brexit restrictions on key workers coming into the country taught us anything? There are also tourists and their massive contribution to our economies; performers; students—who pay thousands of pounds to study at our universities, many of which would struggle to survive without them—and academics, among others, including the family members of British citizens. Again, we are punishing the wrong people.
Craig Whittaker
Starting with amendment 151, I reassure the hon. Member for Sheffield Central that the penalties are there to encourage countries to co-operate. There is international precedent for countries to have the power to impose penalties on countries that do not co-operate on the matter of returns.
Both the United States and the EU have similar powers to those we are seeking. Recently, the Council of the EU decided to suspend temporarily the application of certain provisions in the visa code to nationals of The Gambia, owing to the country’s lack of co-operation on readmission of third-country nationals illegally staying in the EU. The new powers in the Bill will bring the UK into line with our international partners and ensure that we are no longer lagging behind other countries.
I assure hon. Members that, given talk of penalties and exemption, family reunion will be an exemption to the penalties, as discussed.
Turning to amendment 151, I can assure the hon. Member for Sheffield Central that the power to impose visa penalties will be exercised only after consideration of the potential economic impact on the UK, and with full agreement across Government. Contrary to the hon. Member’s assertion that there is another Government leak, there is no current list: this will be done on a case-by-case basis, based on the impact across areas such as the economy, but also taking each Department into account. I also draw the hon. Member’s attention to new clauses 9 and 10, which—as we have already touched on—set out those visa provisions in more detail. I feel that this is a fairly straightforward part of the Bill, with no need for the hon. Member’s amendment.
Turning to new clauses 9 and 10 and Government amendment 80, a key function of the Home Office is the removal of individuals who have no legal right to be here, either by deportation or administrative removal, usually to the country of which they are nationals. We expect our international partners to work with us, as they expect us to work with them, to remove such individuals, as the UK does where our own nationals in other countries should not be in those countries. This is a critical component of a functioning migration relationship, and the vast majority of countries co-operate with us in this area. However, a small number do not.
As has been said, new clause 9 is designed to give the Government the power to impose visa penalties. Countries should no longer expect to benefit from a normal UK visa service if they are unwilling to co-operate with us on the matter of returning nationals. We will be able to slow down or suspend visa services for that country, and require applicants to pay a surcharge of £190 when they apply for a UK visa. Specifically, new clause 9 sets out when a country may be specified as unco-operative and the factors that will be taken into account when imposing visa penalties. Additionally, the new clause provides detail on the types of penalties that may be applied. It is a critical step in taking back control of our borders.
Briefly turning to new clause 10, visa penalties are intended to be a matter of last resort, and must not be in place longer than necessary. The new clause requires the Secretary of State to review the application of visa penalties every two months and revoke those penalties if the relevant country is no longer unco-operative. This provision is a safeguard to ensure that any visa penalties applied do not remain in place by default. Government amendment 80 is consequential on new clauses 9 and 10, providing that they will come into force two months after the Bill receives Royal Assent.
I commend new clauses 9 and 10 and Government amendment 80 to the Committee, and by your leave, Ms McDonagh, I request that the hon. Member for Sheffield Central withdraw his amendments.
Paul Blomfield
I was reassured by the commitments on family reunion, and I look forward to the Government’s bringing forward an amendment on that topic, perhaps in the House of Lords. I have taken the Minister’s other comments on board, so I will not press this amendment to a vote at this stage. I beg to ask leave to withdraw the amendment.
Question proposed, That the clause stand part of the Bill.
Question put and negatived.
Clause 59 accordingly disagreed to.
Clause 60 disagreed to.
Clause 61
Special Immigration Appeals Commission
Question proposed, That the clause stand part of the Bill.
The Chair
With this it will be convenient to consider Government new clause 11—Special Immigration Appeals Commission.
Craig Whittaker
Clause 61 is one of six clauses drafted as placeholder clauses, as we have said. New clause 11 is intended to replace clause 61. The new clause makes changes to the Special Immigration Appeals Commission Act 1997 that are required to safeguard sensitive material. Current legislation allows for any immigration appeals and those judicial review challenges against exclusion, deportation or naturalisation and citizenship decisions to be certified so that they are heard by the Special Immigration Appeals Commission if certain criteria are met. Where a case is heard by the Special Immigration Appeals Commission, sensitive information can be relied upon to defend the decision which, if publicly disclosed, would be damaging to the public interest.
Not all immigration decisions can currently be certified, however. For example, a person refused entry clearance as an investor, or who is seeking to work or study in the UK, cannot have their judicial review challenge to that refusal decision certified for SIAC. In contrast, a person appealing a decision to refuse them asylum could have the appeal against the refusal of their claim certified. The effect of not being able to certify a decision is that where there is a judicial review challenge to that decision a range of sensitive information that might otherwise be used to defend that challenge cannot always be disclosed. That has the potential to be damaging to national security.
The new clause will extend the power to certify immigration decisions to cover those cases that carry no right of appeal and where a JR challenging the decision cannot currently be certified. That will ensure that the JR can be heard before the Special Immigration Appeals Commission. The test for certifying immigration decisions is not being changed by the new clause. It will still require the Secretary of State to certify that the decision being taken relies partly or wholly on information that, in her opinion, should not be made public in the interests of national security, in the interests of the relationship between the UK and another country, or otherwise in the public interest.
Bambos Charalambous
New clause 11, which replaces clause 61, significantly expands the jurisdiction of the Special Immigration Appeals Commission. On the face of it, this is a highly draconian measure that has been introduced at a very late stage in the Bill’s passage through Parliament, limiting the scrutiny. The new clause will enable SIAC to consider applications and set aside immigration decisions where the Secretary of State certifies that information on which her decision is partly or wholly based should not be made public on national security grounds, in the interest of the relationship between the UK and another country or otherwise in the public interest.
That means that information relating to the decision will not only not be made public; it will also not be provided to the person to whom the decision applies. If we unpick that, the cases to which the new clause applies include a decision of the Secretary of State concerning an entitlement to enter, reside in or remain in the UK, or a person’s removal from the UK. We are therefore talking about not only immigration decisions but nationality decisions. The extended powers in the new clause affect not just foreign nationals but British citizens, and do not concern merely migrants but residents. It is a huge expansion of power, and when combined with broad interpretations of the public interest, as mentioned, the power will put British citizens and others with the right to remain at risk of being excluded from the UK. They will also be left with no information regarding why that decision has been made, because the Government believe that it is in the public interest to withhold it from them.
The new clause is not limited to cases where a person’s entitlement to enter or stay in the UK is said to be in the interest of national security; it applies also to cases where the denial is authorised by information that the Secretary of State says is in the public interest—information that is kept from the person affected. How are any of those people, including the British citizens, able to defend themselves against expulsion, or even exile, in such circumstances? The power given to the Secretary of State is enormous, and in practice the measures will curb justice by allowing the Secretary of State to process appeals by SIAC, instead of normal processes, denying people their rights to a full case.
Craig Whittaker
Let me address a couple of points. Basically, the hon. Gentleman is asking whether SIAC involves a further erosion of civil liberties. The direct answer to that is no—if anything, it is quite the opposite. New clause 11 allows the specialist court the ability to consider all evidence relied on to ensure that cases may be both brought and properly defended. In addition, the special advocate system, the disclosure procedure used in such hearings and other safeguards are designed to provide individuals with substantial measures of procedural justice in their difficult circumstances when, in the public interest, material cannot be disclosed to them directly.
Question put and negatived.
Clause 61 accordingly disagreed to.
Clause 62
Tribunal charging power in respect of wasted resources
Question proposed, That the clause stand part of the Bill.
Bambos Charalambous
I will also speak to clause 63, because the two clauses seem to be interconnected.
We think that these provisions are unnecessary and should be removed from the Bill. The Government’s proposals in both clauses are unnecessary. The Bill requires the tribunal procedure committee to give the tribunal the power to fine individuals exercising a right of audience or a right to conduct litigation, or an employee of such a person, for
“improper, unreasonable or negligent behaviour”.
This broad formulation could have a chilling effect on the willingness of solicitors to take on difficult cases, for fear of risking personal financial liability. That may also extend to Home Office presenting officers who would similarly be liable under the measure.
The immigration tribunals already have all the case management, costs and referral powers that they need to control their own procedure. Giving new powers to immigration tribunals without establishing a basis in evidence for them is not warranted. The clauses will therefore make it harder for lawyers acting for people with immigration cases to do their job in immigration tribunal hearings.
Immigration law practitioners fulfil a key role in enabling access to the courts and therefore access to justice, so that a person who is the subject of an immigration decision may make their case properly and seek vindication. Lawyers, both solicitors and barristers, play an important role in facilitating the smooth functioning of the asylum process, helping their clients to navigate the system and providing an additional layer of filtering against meritless cases.
All lawyers have a responsibility to uphold the rule of law and are strictly regulated by several bodies to ensure that they act to the highest professional standard. As a former lawyer myself, I am aware of the rigorous regulatory regime of the Solicitors Regulation Authority, which includes duties to the court and duties of integrity. Solicitors also act in the best interests of their client, and that is vital in ensuring effective access to justice. Those who provide services to people seeking asylum in England and Wales are also likely to be doing so on a legal aid basis, for which the Legal Aid Agency provides a further means of scrutiny and oversight.
In acting for people subject to immigration control, among other things, immigration lawyers work with clients who may lack funds and legal aid entitlements; whose documents may be incomplete, missing or badly translated; and whose statements as to their past experiences may be hard to secure, on account of the ill treatment they have suffered in their country of origin.
In addition, much is at stake in immigration proceedings. A person subject to immigration control who loses their case may be subject to expulsion from the UK and face a risk of harm in their country of origin. They may be separated from their family, or may lose the life they have built up in the UK over many years, leaving their lawyer in the position of making difficult but arguable points on their behalf. The proposals in clauses 62 and 63 of the Bill will only make that task harder.
Labour shares the concerns of the Immigration Law Practitioners’ Association and the Law Society that immigration lawyers are being needlessly targeted by the new costs orders and charge orders, which are not necessary and do not apply in other areas of law. Immigration tribunal judges already have all they need by way of case management powers, costs powers and referral powers. Making the task of immigration lawyers harder prejudices access to justice, and has not been shown to be necessary by the evidence.
Craig Whittaker
Does the hon. Gentleman not agree that costs orders will only be made where representatives have been badly behaved and unreasonable without justification? In those circumstances, it is right that a representative should be required to pay wasted costs.
Bambos Charalambous
I will come on to that topic, but those powers already exist, and I do not think that further regulation of this type—forcing the tribunals committee to supply this information—is the correct way of going about this.
Neil Coyle (Bermondsey and Old Southwark) (Lab)
We have just heard about the new special court, the new special tribunal and the new special advocate. We have new processes, new bureaucracy and new costs. Does my hon. Friend agree that this clause represents the veneer of the Home Office’s pretence to actually give a damn about value for money any more?
Bambos Charalambous
My hon. Friend makes an excellent point. Throughout this Bill, some crumbs of legal aid have been provided in different circumstances, yet the Bill makes it difficult for lawyers to assist those people for whom legal aid is provided, and now they seem to be penalised for not being able to put forward the best case they can.
It is a well-established fact that access to justice includes equal protection under the law. Solicitors are fundamentally obliged to act in their clients’ best interests, which may involve adjourning a case due to a change in circumstances that they are not at liberty to disclose. That principle admits of no distinction between British nationals and foreign nationals, and those who are subject to UK law are entitled to its protection. In the context of UK immigration tribunal hearings, through which people subject to immigration control—non-citizens who cannot exercise democratic rights to shape the legislation to which they are subject—seek to vindicate their position against the state, that principle ought to warn against bearing down on them and their lawyers through an extra costs order and charging order regime that is inapplicable to British nationals in the wider courts and tribunals system.
Immigration tribunals already have the powers that they need to regulate their own procedures—as I have mentioned, they have case management powers, a costs jurisdiction and referral powers. Taking each in turn, they have extensive case management powers, as set out in rules 4 to 6 of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014. Those tribunals already have a costs jurisdiction that enables them to make wasted costs orders against lawyers through the Tribunals, Courts and Enforcement Act 2007:
“(4) In any proceedings mentioned in subsection (1), the relevant Tribunal may—
(a) disallow, or
(b) (as the case may be) order the legal or other representative concerned to meet,
the whole of any wasted costs or such part of them as may be determined”.
Wasted costs are defined as
“any costs incurred by a party—
(a) as a result of any improper, unreasonable or negligent act or omission on the part of any legal or other representative or any employee of such a representative, or
(b) which, in the light of any such act or omission occurring after they were incurred, the relevant Tribunal considers it is unreasonable to expect that party to pay.”
That costs jurisdiction is given further effect by the rules of procedure set out in rule 9 of the 2014 rules. An order for wasted costs may be made
“where a person has acted unreasonably in bringing, defending or conducting proceedings. The Tribunal may make an order under this rule on an application or on its own initiative.”
In practice, tribunals have the power to regulate their own procedure to avoid its abuse. In the context of applications for judicial review in the High Court, it is recognised that the Court may refer a lawyer to their professional regulatory body, such as the Solicitors Regulation Authority, where their conduct warrants it, thus potentially leading to disciplinary proceedings. A legal representative may be asked to show why the conduct should not be considered for referral to the relevant body, or why they should not be admonished. An immigration tribunal might consider making such a referral in appropriate cases. Alternatively, it may decide that the conduct might not be so serious after all and restrain itself.
In clause 62, the Government seek to give immigration tribunals additional new powers, so that they may charge a participant an amount of money if it is considered that the participant
“has acted improperly, unreasonably or negligently, and
(b) as a result, the Tribunal’s resources have been wasted”.
The fine would be a separate matter from the costs incurred by a party, and it would be payable by the other party. The charge would be paid to the tribunal. In this context, participants who may be ordered to pay a charge in respect of immigration tribunal proceedings include
“(a) any person exercising a right of audience or right to conduct the proceedings on behalf of a party to proceedings,
(b) any employee of such a person, or
(c) where the Secretary of State is a party to proceedings and has not instructed a person mentioned in paragraph (a) to act on their behalf in the proceedings, the Secretary of State.
(4) A person may be found to have acted improperly, unreasonably or negligently…by reason of having failed to act in a particular way.”
However, we are not told what that “particular way” is.
Clause 62 provides that rules may be made and may include the “scales of amounts” to be charged, and it is wrong that no framework has been provided for the scales of amounts to be charged. As a rationale for this innovation, it is said that:
“High levels of poor practice around compliance with tribunal directions, which disrupts or prevents the proper preparation of an appeal, can lead to cases being adjourned at a late stage.”
No actual evidence is adduced to support that proposition or to demonstrate that existing case management powers, wasted costs powers and powers of referral are inadequate to deal with such matters.
Clause 62 seeks to amend the cost provisions in the 2007 Act in order to put greater emphasis on making an order on grounds of unreasonable behaviour. A tribunal may make an order in respect of costs in any proceedings if it considers that a party, or its legal or other representative, has acted unreasonably in bringing, defending or conducting the proceedings. This is a power to make a costs order against a party and/or their lawyer. Unlike in considering wasted costs, the behaviour identified is solely that which is unreasonable, not behaviour that is improper or negligent. In carving out unreasonable behaviour in this way, there is a risk that the high threshold that applies in the wasted costs jurisdiction is lowered, and that such orders are made where the ordinary difficulties of running an immigration case have impeded its progress. It is unclear why additional regulatory measures are thought to be needed, indicating that the proposal is unnecessary. The tribunal procedure rules already have provisions for wasted costs, and tribunals have the power to refer cases of improper behaviour to the regulator.
Clause 63 provides that:
“Tribunal Procedure Rules must prescribe conduct that, in the absence of evidence to the contrary, is to be treated as—
(a) improper, unreasonable or negligent for the purposes of”
a charge in respect of wasted resources. Where the prescribed conduct occurs, the person in question will be treated as having acted improperly, unreasonably or negligently unless they can show evidence to the contrary, so there is a rebuttal presumption in relation to this. Here too there is a risk that conduct that does not meet the test for being unreasonable allows a wasted costs order to sneak back in. It is also not clear how wasted resources will be defined or quantified, which may lead to satellite litigation challenging the fine itself or the amount imposed, further increasing the burdens on a system already under immense pressure. The rules make provisions to the effect that if the tribunal is satisfied that the conduct has taken place, it must consider whether to impose a charge or make a costs order, though it is not compelled to do so.
According to the Home Office, in immigration tribunals,
“A range of conduct on the part of legal and other representatives…in the way proceedings are conducted or pursued”
is
“disrupting or preventing the proper preparation and progress of an appeal”,
but once again, no evidence is adduced to support that proposition, or to demonstrate that existing case management powers, wasted costs powers, and the power to refer are inadequate to deal with such matters.
Introducing further overlapping and potentially duplicative regulatory requirements may have the perverse impact of undermining the effectiveness of all relevant regimes, and increase complexity and bureaucracy. If solicitors are held personally liable for costs that arise for reasons outside their control, it could risk driving a wedge between them and their clients by creating a conflict of interest. The immigration tribunals already have all the case management cost and referral powers that they need to control their procedures. Adding new powers for immigration tribunals without establishing a basis for them in evidence is not necessary and is counterproductive. For the reasons I have outlined, we oppose clauses 62 and 63.
Stuart C. McDonald
I echo what the shadow Minister said. This is all really political theatre—a move to get immigration lawyers. As a former immigration lawyer, I cannot let these clauses pass without comment. In my experience, immigration lawyers are a group of people who do an invaluable job, and not one that there is a queue of folk desperate to do. It is a difficult job. Most clients have no resources; legal aid budgets are far from easy; many clients can be communicated with only through interpreters, who are often hard to find; and these lawyers are dealing with facts, circumstances, documents and other evidence from jurisdictions thousands of miles away. The pressures can be enormous. These lawyers are acutely aware that in some cases, if they get things wrong, the client’s life, liberty or human rights are at serious risk.
This group have been egregiously maligned by the Home Secretary and the Home Office. Here, they are singled out again. It is wrong, reckless and counter- productive. It is wrong because, not for the first time, we are being asked to make law on the basis of anecdote, rather than detailed evidence. As has been said, the immigration tribunals have all the powers that they need in their case management, cost and referral powers. They do not need these new, distinct and very controversial powers. Given the difficult job that we recognise these lawyers do, and the significant pressures that they face, the very last thing we should do is create a threat of their having to pay money for taking on a case. As the shadow Minister said, the measures create the risk of a conflict of interest, because solicitors could find that doing the right thing for their client, or following their client’s instructions, puts them at risk of having to pay a financial penalty.
The measures are also wrong because immigration lawyers have been singled out. I would have thought alarm bells would be ringing in the Home Office at the idea of putting in place a procedure that will apply only to lawyers operating on behalf of non-nationals. I suspect this would see the Home Office in court again. I could go along to the immigration tribunal and do something that I might do without facing consequences in the social security tribunal, employment tribunal, tax tribunal or any other tribunal; but I would find that in the immigration tribunal, there were special provisions in place for me to pay some sort of financial penalty. That seems odd.
Speaking of the tax tribunal, the provisions are essentially a tax. We do not know how much the tax will be, because we are not given any indication at all of the nature of the penalties involved, but it is a tax, because it is not compensation to the other party for wasted costs—we already have provision for that. The money goes straight to the Exchequer. On the other side of the coin, if the Government representative is guilty of this misconduct, the Government pay themselves. They hand over money to the Exchequer. There is not equality of arms, by any stretch of the imagination.
As the shadow Minister said, the measure is also counterproductive, because when the conduct described in the new procedure rules occurs, we will end up with endless hearings, and solicitors will be repeatedly made to come to hearings, just to explain why the situation happened. That is a waste of time, and in absolutely nobody’s interests. I have no idea what the Home Office is playing at here, other than performing political theatre and again having a go at immigration lawyers. If hon. Members want an example of vexatious, unreasonable conduct, they should read these two clauses, because that is exactly what they are.
Craig Whittaker
I have already spoken on clause 62; let me comment on clause 63. I apologise, Ms McDonagh, but I did not realise we were taking them together.
Representatives and relevant participants in the legal process on both sides have a role in ensuring that appeals run smoothly so that justice can be served. However, there has been clear judicial concern about the behaviours of some legal representatives in immigration and asylum cases, and we are seeking to strengthen the tribunal’s ability to tackle such conduct. As has been mentioned, judges can already issue a wasted costs order when a legal representative acts in a negligent, improper or unreasonable way that causes legal costs to be wasted. The tribunal can also award costs if a party to the appeal has acted unreasonably in bringing, defending or conducting proceedings, which is called an unreasonable costs order.
Costs orders are rarely made and are generally considered only at the request of the other party. To encourage more use of those existing powers, clause 63 provides a duty on the tribunal procedure committee to introduce tribunal procedure rules in the immigration and asylum chamber, which will lead judges to more regularly consider making a wasted costs order or an unreasonable costs order, or the new tribunal costs order introduced by clause 62. That will ensure that circumstances and behaviours that have warranted the making of costs orders previously will more often give rise to judicial attention. Existing case law identifies the types of circumstances and behaviours that have led to costs orders being made or considered, and the principles applied by the courts. Those have included showing a complete disregard for procedural rules, for example through abusing court processes in relation to evidence or the timing of applications.
Question put, That the clause stand part of the Bill
Craig Whittaker
Thorough consideration has been given to the impact of clause 64 and what it adds to existing requirements under immigration rules and wider provisions. We have also taken into account the views of stakeholders. After further reflection, we have decided to remove the clause from the Bill in its entirety. As a stand- alone provision, that will not impact on the wider measures in the Bill. Consequently, clause 64 requires an amendment to remove reference to it, which is the purpose of Government amendment 81.
Bambos Charalambous
Am I right that the Government will vote against the clause?
The Chair
I understand that the Government plan to vote against the clause.
Question put and negatived.
Clause 64 accordingly disagreed to.
Clause 65
Pre-consolidation amendments of immigration legislation
Question proposed, That the clause stand part of the Bill.
Bambos Charalambous
This might seem innocuous but my concern is that it may be a power grab by the Secretary of State because the clause contains some quite strong measures on what the Secretary of State can do in relation to other parts of legislation. Can the Minister reassure me that my fears are not borne out by the consolidation measures in clause 65?
Craig Whittaker
I can assure the hon. Gentleman that clause 65 was taken from the “Windrush Lessons Learned Review”, which is why it is in the Bill.
Stuart C. McDonald
What is taken from that review is perhaps the need for consolidation of immigration legislation, nationality legislation and so on, which I would absolutely support. The challenge with the clause as drafted is that it proposes pretty huge and wide-ranging powers. The Secretary of State can amend pretty much any old Act of Parliament if, in her opinion, it facilitates what is otherwise desirable in connection with the consolidation. It could rewrite citizenship laws, for example, or the entire immigration system. There is a check on it in the sense that the regulations will not come into force until a consolidation Act is passed. There is a broader question about how often Governments tend to help themselves to massive Henry VIII powers when they rewrite all sorts of stuff. I have made that point a million times and nobody listens, so I will leave it at that.
Question put and agreed to.
Clause 65 accordingly ordered to stand part of the Bill.
Clauses 66 to 68 ordered to stand part of the Bill.
Clause 69
Extent
Amendment made: 120, in clause 69, page 58, line 28, at end insert—
‘(4) A power under any provision listed in subsection (5) may be exercised so as to extend, with or without modifications, to any of the Channel Islands or the Isle of Man any amendment made by any of the following provisions to legislation to which the power relates—
(a) section 37 (illegal entry and similar offences), insofar as it relates to the insertion of subsection (C1A) into section 24 of the Immigration Act 1971;
(b) section(Electronic travel authorisations)(electronic travel authorisations);
(c) section(Liability of carriers)(liability of carriers).
(5) Those provisions are—
(a) section 36 of the Immigration Act 1971;
(b) section 170(7) of the Immigration and Asylum Act 1999;
(c) section 163(4) of the Nationality, Immigration and Asylum Act 2002.”—(Craig Whittaker.)
This amendment amends clause 69 (extent) to provide that the amendments made by the provisions listed in new subsection (4) may be extended to the Channel Islands and the Isle of Man under the Order in Council provisions listed in new subsection (5).
Stuart C. McDonald
I beg to move amendment 186, in clause 69, page 58, line 28, at end insert—
‘(4) Part 4 (modern slavery) only extends to Scotland to the extent that a motion has been approved by the Scottish Parliament, bringing it into force in Scotland.
(5) Part 4 (modern slavery) only extends to Northern Ireland to the extent that a motion has been approved by the Northern Ireland Assembly, bringing it into force in Northern Ireland.”
Under this amendment, Part 4 of the Bill would not enter into force in Scotland or Northern Ireland until the relevant devolved legislatures had given their consent.
I am sorry to have to take the Committee back to part 4 and modern slavery and trafficking. The amendment relates to a similar issue that I raised in connection with age assessments, because I tend to believe that certain provisions in part 4 encroach on devolved competences in relation to Scotland and Northern Ireland. Given the way that the part 4 is drafted, the Government have recognised that modern slavery and trafficking is a matter that is devolved to both those jurisdictions. That is why certain clauses do not impact on them. However, in this amendment, we are suggesting simply that the Government should go further. For example, in my view, the recovery period is clearly within the competency of the Scottish Government and I think, also, the Northern Ireland Assembly. However, clause 49 interferes with the start and end points of that period. Clauses 46 and 47 trample all over the idea that identification of victims of slavery and trafficking are devolved matters. So too does clause 51. For those reasons, I am prompting the Minister on what engagement there has been and is ongoing and whether a legislative consent motion should be requested from the Scottish Parliament and the Northern Ireland Assembly before the Bill is passed.
Craig Whittaker
I can assure the hon. Gentleman that we have been engaging with the devolved Administrations, including at ministerial level, over the course of the Bill. I want to reiterate our commitment to continuing to work with the devolved Administrations as we look to operationalise the measures to ensure the policies work for the whole of the UK. Contrary to the spirit of working together across the UK, amendment 186 could lead to the scenario where decisions in reserved areas would operate differently across the UK, thereby reducing the clarity the Bill seeks to provide for victims and decision makers. In line with the devolved memorandum of understanding, the UK Government will continue to engage with the devolved Administrations both at ministerial and official level to ensure that we have time to fully understand any implications and adhere to our priority to safeguard victims. I urge the hon. Member to withdraw his amendment.
On clause 69, I begin by setting out the devolution position. Almost all of the Bill is about nationality, immigration and asylum, which are reserved matters to the UK Parliament. Almost all of the Bill, therefore, extends UK wide.
Neil Coyle
The Minister says “almost all” the provisions. Can he outline which are not?
Craig Whittaker
It is very kind of the hon. Gentleman to interject before I had finished my sentence. Some provisions will apply only to England and Wales. Those provisions are about matters that are devolved in Scotland and Northern Ireland, but are reserved to the UK Parliament in England and Wales. They are civil legal aid, support for victims of modern slavery offences and the early release scheme.
Turning to the extent outside the UK, part 1— nationality provisions—will also extend to the Crown dependencies of Jersey, Guernsey and the Isle of Man, and also the British overseas territories. That follows discussions between the UK Government, the devolved Administrations, the Crown dependencies and the British overseas territories. I want to clarify that we intend to table a further amendment to add a permissive extent clause on Report. That will enable the Crown dependencies to adopt other parts of the Bill that are relevant to them.
Stuart C. McDonald
I am grateful to the Minister for his response and for his assurances that engagement has been taking place and is ongoing. I accept that the amendment is not practicable, because it impinges on reserved matters. The other side of the coin is also true and this was about provoking a discussion about which parts of the Bill the Home Office has identified as relating to devolved matters. The Minister has listed some, which is helpful, but I do not think he has completely listed all that would apply and should be described as devolved. For example, age assessments quite clearly relate in some circumstances to devolved functions regarding children. More relevant to this amendment debate is modern slavery, as I said—for example, the length of the recovery and reflection period and various other matters in relation to identification of victims are, absolutely and definitely, devolved. That is why we have separate modern slavery and trafficking legislation in Northern Ireland and Scotland.
I have done what I needed to do, which is to suggest that the Home Office has a look at whether a legislative consent memorandum is required, but I will leave it there. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 69, as amended, ordered to stand part of the Bill.
Clause 70
Commencement
Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)
I beg to move amendment 107, in clause 70, page 58, line 30, leave out “and (4)” and insert “to (5)”.
This amendment is consequential on Amendment 109.
The Chair
With this it will be convenient to discuss the following:
Amendment 108, in clause 70, page 58, line 42, leave out paragraphs (d) and (e).
This amendment is consequential on an Amendment 109.
Amendment 109, in clause 70, page 59, line 9, at end insert—
“(5) Sections 27 to 35 may not be commenced before—
(a) the Secretary of State has consulted with such parties as the Secretary of State considers appropriate on—
(i) the compatibility of each section with the Refugee Convention; and
(ii) the domestic and international implications of the UK adopting each section;
(b) the Secretary of State has laid before Parliament a report on the outcome of that consultation stating which parties were consulted, and stating in respect of each section—
(i) the views of the parties consulted on its compatibility and implications;
(ii) the differences between the interpretation of the Convention provided by the section and any interpretations provided by the higher courts before the passing of this Act;
(iii) the reasons why the Secretary of State concludes that the section should be commenced; and
(c) both Houses of Parliament have considered that report and approved the commencement of each of the sections that is to be commenced.
(6) For the purposes of subsection (5)—
“interpretation provided by the higher courts” means an interpretation provided by any judgement of the High Court or Court of Appeal in England and Wales, of the Court of Session in Scotland, of the High Court or Court of Appeal in Northern Ireland or of the United Kingdom Supreme Court that has not been superseded.”
This amendment would require the Secretary of State to hold consultations on the compatibility of Clauses 27 to 35 with the Refugee Convention, and to report to Parliament on such consultations, before the relevant Clauses enter into force.
Stuart C. McDonald
God loves a tryer, and I do try. The amendments are another attempt to encourage the Government to set out their legal thinking on the compatibility of the clauses cited in amendment 109 with the refugee convention. How do the Government think that the provisions in clauses 27 to 35 can be consistent with the refugee convention?
There is significant concern among some Members from all parties on this issue. So far, we have been told repeatedly by a Minister that the Government are committed to living up to their international obligations, and we have had a lot of assertions that the Bill is consistent with those obligations. However, as I have said, I am not aware of any lawyer with expertise in the area who supports that conclusion.
On the contrary, we have a detailed published opinion from Matrix Chambers that the Bill is absolutely not compliant with the refugee convention. Alongside that, organisations such as the Immigration Law Practitioners Association and various others have come to the same conclusion. Crucially, the ultimate authority on the convention, the UNHCR, published detailed reasoning for its view that certain clauses do not comply with the convention.
In the circumstances, I might be asking a little too much to expect a detailed legal treatise from the Minister today. However, he must at least accept that this state of affairs is not good enough. On the one side, we have extensive published arguments that the Bill breaches the refugee convention and, on the other side, we just have assurances that everything is in accordance with our international obligations. If MPs are to make a properly informed judgment on this on Report and Third Reading, it is incumbent on the Government to provide their legal arguments in more detail.
Craig Whittaker
We have listened carefully to the arguments in favour of amendments 107 to 109, which I will speak to collectively. I thank hon. Members for moving and tabling them, and I agree that it is important that the United Kingdom continues to meet its obligations under the refugee convention and other international conventions and treaties.
I am taking amendments 107 to 109 together because they all seek to achieve the same goal. We do not support them. They seek to delay the commencement of clauses 27 to 35 until their compatibility with the refugee convention has been consulted on and reported to Parliament. As the Committee knows, the UK has a proud history of providing protection to those who need it, in accordance with our international obligations under the convention. I assure hon. Members that every clause in the Bill, including clauses 27 to 35, adheres to our obligations under the refugee convention.
There is no uniform international interpretation of many of the key concepts in the refugee convention. That is an inevitable result of the very nature of international conventions. They are designed to be applied to a range of systems and scenarios across the globe, and to achieve consensus between many signatory states. Each signatory therefore needs to interpret the convention based on a range of sources and information to determine its meaning in good faith. That is not a black-and-white exercise, but one that the Government considered carefully before bringing the Bill to the House and one that we have now entrusted to Parliament in its consideration and considerable scrutiny of the Bill.
The legislative process, in which we are all so engaged today, is in itself a transparent and fully consultative process, as demonstrated by the several reports that the Committee has received on the compatibility of several clauses of the Bill with the refugee convention and other international obligations—including from the United Nations High Commissioner for Refugees.
Clauses 27 to 35 are drafted to create clarity on what the key concepts of the refugee convention mean, driving improved consistency among Home Office decision makers and the courts, with the ultimate aim of making accurate, well-reasoned decisions quicker. That can only be beneficial for all who are involved with asylum seekers.
In the light of the points that I have made, I hope that hon. Members will agree not to press these amendments going forward.
Stuart C. McDonald
I have not succeeded in what I wanted to do, which was to move beyond assertion that there is compliance with the refugee convention and to hear a little more about why the Government think that that is the case. I accept the point that different countries have slightly different interpretations of certain provisions; that is legitimate. But there are clear arguments that what the Government are doing in relation to the evidential threshold, their definition of “particular social group” and, in particular, their total rewriting of article 31 on immunity from penalties is inexcusable and way beyond any margin of appreciation that Governments enjoy. I tried. I failed. I will accept that. In the meantime, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Craig Whittaker
I beg to move amendment 76, in clause 70, page 58, line 34, after “Part” insert “and the following provisions”.
This amendment is consequential on Amendment 77.
The Chair
With this it will be convenient to discuss the following:
Government amendments 77, 123, 191, 78 and 167.
Clause stand part.
Craig Whittaker
Amendments 76 to 78, which relate to clause 57—interpretation of part 4—will ensure that the regulation-making power in this clause will come into effect at Royal Assent to the Bill rather than two months after Royal Assent. This is to ensure that the regulations that will define “victim of slavery” and “victim of trafficking” have time to progress through Parliament and themselves come into force by the time the remaining clauses relating to modern slavery commence. As currently drafted, clauses 16, 17 and 23 come into force two months after Royal Assent. Amendment 123 ensures that these clauses, which relate to priority removal notices, come into force by commencement regulations aligning with other provisions relating to priority removal notices. This is to ensure that all provisions relating to priority removal notices can commence simultaneously.
Amendment 191 removes the commencement provision regarding clause 42, as the clause is intended to be replaced entirely by new clause 20. Amendment 167 removes the commencement provisions regarding marker clauses 58 to 61—about age assessments, processing of visa applications from nationals of certain countries, electronic travel authorisations and the Special Immigration Appeals Commission—as these clauses have been removed and replaced by substantive clauses.
Clause 70 sets out the commencement of the clauses in the Bill. As currently drafted, the majority of the provisions in the Bill will be brought into force by regulations on a day appointed by the Secretary of State, with the exception of those in part 6, which commence on Royal Assent, as is usual, and those that come into force two months after Royal Assent.
Amendment 76 agreed to.
Amendment made: 77, in clause 70, page 58, line 34, at end insert—
“(a) section 57 (interpretation of Part 4), for the purposes of making regulations under that section;” —(Craig Whittaker.)
This amendment brings the power to make regulations defining “victim of slavery” and “victim of human trafficking” into force on the day on which the Act receives Royal Assent.
Craig Whittaker
I beg to move Government amendment 121, in clause 70, page 58, line 34, at end insert—
“(b) section (Notice of decision to deprive a person of citizenship)(1) and (5) to (7) (effect of failure to give notice of pre-commencement decision to deprive a person of citizenship);”
This amendment brings subsections (1) and (5) to (7) of NC19 (concerning the effect of a failure to give notice of a pre-commencement decision to deprive a person of citizenship) into force on the day on which the Bill receives Royal Assent.
The Chair
With this it will be convenient to discuss the following:
Government amendment 122.
Government new clause 19—Notice of decision to deprive a person of citizenship—
Craig Whittaker
New clause 19 allows the Secretary of State to amend section 40 of the British Nationality Act 1981 to permit that in certain limited circumstances a notice of deprivation does not have to be given to the person concerned, either where there is no way of communicating with them or where to make contact would disclose sensitive intelligence sources. To deprive someone of British citizenship is very serious and is rightly reserved for those whose conduct involves very high harm or who obtained their citizenship by fraudulent means. However, it cannot be right that the proper functioning of the immigration and nationality system grinds to a halt because an individual has removed themselves from contact with the Home Office, there is otherwise no other method of communication, or because our knowledge of a person’s whereabouts comes from sensitive intelligence sources which we do not wish to disclose.
Stuart C. McDonald
I will not say too much, because I need to give new clause 19 further consideration and to speak with stakeholders about it. Circumstances in which service is difficult because a person is out of contact happen pretty regularly in legal disputes that go through the courts. Rather than just shortcutting by having no procedure at all, what happens is that an alternative method is proposed, such as displaying a notice in newspapers. That was back in the old days; I assume that things have moved online since the dim and distant past when I was a practising solicitor. I wonder if there is a better way that does not result in someone being deprived of citizenship—which, as the Minister said, is a very serious matter—without any procedure having been followed at all.
It is controversial to retrospectively decide that decisions to deprive people of nationality are fine, even though they may not have complied with the laws that were in force at that time. Although provisions of this sort are necessary, I still have concerns that the circumstances in which no service would be required are drawn too broadly and that there may be other ways of doing this that do not undermine the clauses, without depriving people of having notice altogether. I leave it at that just now.
Amendment 121 agreed to.
Amendments made: 122, in clause 70, page 58, line 36, at end insert—
“(za) section (Notice of decision to deprive a person of citizenship)(2) to (4) (modifications of duty to give notice of decision to deprive a person of citizenship);”.
This amendment brings subsections (2) to (4) of NC19 (modifying the duty to give notice of a decision to deprive a person of citizenship) into force two months after the Bill receives Royal Assent.
Amendment 123, in clause 70, page 58, line 37, leave out paragraph (a).
This amendment will secure that clauses 16, 17 and 23 of the Bill (evidence in asylum or human rights claims) will be brought into force by regulations rather than coming into force automatically two months after Royal Assent to the Bill.
Amendment 124, in clause 70, page 59, line 2, at end insert—
“(fa) section (Working in United Kingdom waters: arrival and entry), for the purposes of making regulations;”.
This amendment brings NC20 into force, for the purposes of making regulations (under the new section 11B for the Immigration Act 1971), two months after Royal Assent to the Bill. The rest of the clause will be brought into force by regulations.
Amendment 191, in clause 70, page 59, line 4, leave out paragraph (h).
This amendment is consequential on the amendment removing clause 42 from the Bill.
Amendment 78, in clause 70, page 59, line 5, leave out paragraph (i).—(Craig Whittaker.)
This amendment is consequential on Amendment 77.
Craig Whittaker
I beg to move amendment 79, in clause 70, page 59, line 6, at end insert—
“(ia) section (Counter-terrorism questioning of detained entrants away from place of arrival) (counter-terrorism questioning of detained entrants away from place of arrival);”.
This amendment provides for NC12 to come into force two months after Royal Assent to the Bill.
Craig Whittaker
Under schedule 7 to the Terrorism Act 2000, counter-terrorism police have the power to stop, question and if necessary, detain and search individuals travelling through UK port and border areas for the purposes of determining whether a person is or has been involved in terrorism. Currently, officers may exercise schedule 7 powers only when an individual is located within a port or border area and their presence in such an area is as a result of them entering or leaving the UK.
The rise in numbers of those attempting to cross the channel illegally, particularly via small boats, means it is impractical to keep large numbers of people, some of whom are minors or in need of medical assistance, at a port or piece of coastline without adequate facilities. Transporting these individuals to locations once they have been detained or arrested under the immigration Acts often means that examining them under schedule 7 is not possible as they are no longer within a port.
New clause 12 seeks to extend the scope of schedule 7 so that individuals who are in detention under immigration provisions are eligible for examination at the location they are taken to following their initial apprehension under immigration powers. Individuals at these locations will be eligible for examination, provided the officer believes they arrived by sea, were apprehended under the immigration Acts within 24 hours of their arrival and it has been no more than five days since they were apprehended. The full suite of powers and safeguards under schedule 7 will apply, including access to legal advice for those detained over an hour. In line with amendment 79, the new clause will come into force two months after the Bill receives Royal Assent.
The new clause will add a further layer to protect our national security by ensuring those who arrive in the UK illegally by sea can be examined for the purpose of determining their involvement in terrorist activity under the same power as if they had passed through conventional border controls.
Amendment 79 agreed to.
Amendments made: 167, in clause 70, page 59, line 7, leave out paragraph (j)
This amendment is consequential on the amendments removing Clauses 58 to 61 of the Bill.
Amendment 168, in clause 70, page 59, line 7, at end insert—
“(ja) section (Interpretation of Part etc) (1) to (4) (interpretation of Part 3A);
(jb) section (Use of scientific methods in age assessments)(1) to (3) and (8) (regulations about use of scientific methods in age assessments);
(jc) section (Regulations about age assessments) (regulations about age assessments);”
This amendment means that amendment NC33 (regulations about age assessments), and the regulation-making power in amendment NC32, will be commenced automatically, two months after Royal Assent, as will the clause that defines certain terms used in the regulation-making power.
Amendment 80, in clause 70, page 59, line 7, at end insert—
“(ja) sections (Removals from the UK: visa penalties for uncooperative countries) and (Visa penalties: review and revocation) (visa penalties);”
This amendment provides for NC9 and NC10 to come into force two months after Royal Assent to the Bill.
Amendment 81, in clause 70, page 59, line 8, leave out paragraph (k) .—(Craig Whittaker.)
This amendment is consequential on Amendment 75.
Stuart C. McDonald
I beg to move amendment 179, in clause 70, page 59, line 9, at end insert—
‘(5) Sections [Time limit on immigration detention], [Initial detention: criteria and duration] and [Bail hearings] come into force six months after the day on which this Act is passed.“
This amendment would bring NC38, NC39 and NC40 into force six months after the day on which the Bill is passed.
The Chair
With this it will be convenient to discuss the following:
New clause 38—Time limit on immigration detention—
“(1) This section applies to any person (“P”) who is liable to detention under a relevant detention power.
(2) P may not be detained under a relevant detention power for a period of more than 28 days from the relevant time.
(3) If P remains detained under a relevant detention power at the expiry of the period of 28 days then—
(a) P shall be released forthwith; and
(b) P may not be detained under a relevant detention power thereafter, unless the Secretary of State or an immigration officer, as the case may be, is satisfied that there has been a material change of circumstances since P’s release and that the criteria in section [Initial detention: criteria and duration](1) are met.
(4) In this section, “relevant detention power” means a power to detain under—
(a) paragraph 16(2) of Schedule 2 to the Immigration Act 1971 (detention of persons liable to examination or removal);
(b) paragraph 2(1), (2) or (3) of Schedule 3 to that Act (detention pending deportation);
(c) section 62 of the Nationality, Immigration and Asylum Act 2002 (detention of persons liable to examination or removal); or
(d) section 36(1) of the UK Borders Act 2007 (detention pending deportation).
(5) In this section, “relevant time” means the time at which P is first detained under a relevant detention power.
(6) This section does not apply to a person in respect of whom the Secretary of State has certified that the decision to detain is or was taken in the interests of national security.”
This new clause would prevent people who are liable to detention under a relevant power from being detained for longer than 28 days.
New clause 39—Initial detention: criteria and duration—
“(1) A person (“P”) to whom section [Time limit on immigration detention] applies may not be detained under a relevant detention power other than for the purposes of examination, unless the Secretary of State or an immigration officer, as the case may be, is satisfied that—
(a) P can be shortly removed from the United Kingdom;
(b) detention is strictly necessary to effect P’s deportation or removal from the United Kingdom; and
(c) the detention of P is in all the circumstances proportionate.
(2) P may not be detained under a relevant detention power for a period of more than 96 hours from the relevant time, unless—
(a) P has been refused bail at an initial bail hearing in accordance with subsection (5)(b) of section [Bail hearings]; or
(b) the Secretary of State has arranged a reference to the Tribunal for consideration of whether to grant immigration bail to P in accordance with subsection (2)(c) of section [Bail hearings] and that hearing has not yet taken place.
(3) Nothing in subsections (1) or (2) authorises the Secretary of State to detain P under a relevant detention power if such detention would, apart from this section, be unlawful.
(4) In this section, “Tribunal” means the First-Tier Tribunal.
(5) In this section, “relevant detention power” and “relevant time” have the meanings given in section [Time limit on immigration detention].”
This new clause sets out the circumstances in which a person to whom NC38 applies may be held in initial detention, and the maximum duration of such detention.
New clause 40—Bail hearings—
“(1) This section applies to any person (“P”) to whom section [Time limit on immigration detention] applies and who is detained under a relevant detention power.
(2) Before the expiry of a period of 96 hours from the relevant time, the Secretary of State must—
(a) release P;
(b) grant immigration bail to P under paragraph 1 of Schedule 10 to the Immigration Act 2016; or
(c) arrange a reference to the Tribunal for consideration of whether to grant immigration bail to P.
(3) Subject to subsection (4), when the Secretary of State arranges a reference to the Tribunal under subsection (2)(c), the Tribunal must hold an oral hearing (“an initial bail hearing”) which must commence within 24 hours of the time at which the reference is made.
(4) If the period of 24 hours in subsection (3) ends on a Saturday, Sunday or Bank holiday, the Tribunal must hold an initial bail hearing on the next working day.
(5) At the initial bail hearing, the Tribunal must—
(a) grant immigration bail to P under paragraph 1 of Schedule 10 to the Immigration Act 2016; or
(b) refuse to grant immigration bail to P.
(6) Subject to subsection (7), the Tribunal must grant immigration bail to P at a bail hearing unless it is satisfied that the Secretary of State has established that the criteria in subsection 1 of section [Initial detention: criteria and duration] are met and that, in addition—
(a) directions have been given for P’s removal from the United Kingdom and such removal is to take place within 14 days;
(b) a travel document is available for the purposes of P’s removal or deportation; and
(c) there are no outstanding legal barriers to removal.
(7) Subsection (6) does not apply if the Tribunal is satisfied that the Secretary of State has established that the criteria in subsection 1 of section [Initial detention: criteria and duration] above are met and that there are very exceptional circumstances which justify maintaining detention.
(8) In subsection (6), “a bail hearing” includes—
(a) an initial bail hearing under subsection (2); and
(b) the hearing of an application for immigration bail under paragraph 1(3) of Schedule 10 of the Immigration Act 2016.
(9) In this section, “Tribunal” means the First-Tier Tribunal.
(10) The Secretary of State shall provide to P or to P’s legal representative, not more than 24 hours after the relevant time, copies of all documents in the Secretary of State’s possession which are relevant to the decision to detain.
(11) At the initial bail hearing, the Tribunal shall not consider any documents relied upon by the Secretary of State which were not provided to P or to P’s legal representative in accordance with subsection (10), unless—
(a) P consents to the documents being considered; or
(b) in the opinion of the Tribunal there is a good reason why the documents were not provided to P or to P’s legal representative in accordance with subsection (10).
(12) The Immigration Act 2016 is amended as follows—
(a) After paragraph 12(4) of schedule 10 insert—
“(4A) Sub-paragraph (2) above does not apply if the refusal of bail by the First tier Tribunal took place at an initial bail hearing within the meaning of section [Bail hearings] of the Sovereign Borders Act 2021.”.”
In respect of people to whom NC38 applies, this new clause would require the Secretary of State to either release them, grant immigration bail or arrange a reference to the Tribunal within 96 hours.
Stuart C. McDonald
This group of amendments and new clauses is not new. It was proposed in similar words in the most recent immigration Bill by, I think, the right hon. Member for Haltemprice and Howden (Mr Davis), but I may be wrong. No Bill passes through this Parliament on immigration and nationality law that does not include amendments and debate about immigration detention. Perhaps, after the last couple of years, Members are more than ever acutely aware that the deprivation of people’s freedoms is keenly felt and should not occur without evidence as to its necessity.
We are talking here about the deprivation of liberty not because people have committed a crime but, essentially, for the convenience of the Home Office. The new clauses contain measures to end what is indefinite detention in the UK, whatever the Home Office says to the contrary, and to implement a workable system that ensures detention is used only as a last resort to effect lawful removals from the UK. That is what the situation should be. The existing power to detain without prior judicial authority would be retained but there would be important safeguards: a 28-day time limit, judicial oversight by way of bail hearings after 96 hours with clear criteria for continued detention and re-detention only when there is a material change in status or circumstances.
Immigration detention has declined over the last several years, which is very welcome. Nevertheless, there is no release date for immigration detainees, which is incredibly severe, particularly in terms of mental ill health. Although numbers have been falling, the length of time that people are detained has not fallen. The fact of falling numbers does not reduce the need for a time limit. We are talking about several thousand individuals leaving detention every year who have been detained for longer than 28 days and hundreds who have been detained for more than six months. In a minority of cases, detention lasts for years rather than months.
Why 28 days? It is not a number that has been pulled from thin air. It is already in Home Office guidance, which requires caseworkers to consider whether removal is imminent and goes on to define imminence in the following terms:
“Removal could be said to be imminent where a travel document exists, removal directions are set there are no outstanding legal barriers and removal is likely to take place in the next four weeks.”
This is a recommendation that has been made by many organisations with expertise in the area, including the Joint Committee on Human Rights, the Home Affairs Committee, the Bar Council and the all-party parliamentary groups on refugees and on migration.
Paul Blomfield
As vice-chair of the inquiry to which the hon. Gentleman referred, may I ask whether he will add the House of Commons to the list of those bodies that have endorsed this? When our recommendation was considered on a votable motion in a Backbench Business debate, it was approved by the House.
Stuart C. McDonald
I am grateful to the hon. Gentleman and the other hon. Members involved for their work on that report, which was incredibly thorough. We then had a Backbench Business debate and the Government did not oppose it, because there was clearly a majority in the House of Commons at that time for such a time limit.
Finally, I want to say why 28 days should be the limit. There is a body of evidence that the effect of indefinite detention on mental health in general is very negative, but that after a month the deterioration is particularly significant. We recognise that there will be a minority of cases where people will try to play the system and use the time limit to frustrate lawful removal, but the amendment allows for re-detention if there is a material change in status or circumstances. Other sanctions are also open to the Government in such circumstances.
If none of that appeals to the Government, I will briefly mention the argument that consistently over half those detained are then released into the community, so it is a completely inefficient system that costs an absolute fortune. There are alternatives that are not only better for the individuals concerned, but easier on the taxpayer. I hope the Government will give serious thought to the amendments. The issue has been championed by Members of all parties for a considerable period. It is now time to see a step change in the Government’s approach to the use of immigration detention.
Craig Whittaker
I want to be clear from the outset that this Government’s position is that a time limit on detention simply will not work and will not be effective in ensuring that those with no right to be here in the UK leave.
Paul Blomfield
One of the issues highlighted by the report referred to by the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East, which had genuine cross-party engagement, was that the UK is an outlier in having no limits on detention. Every other country in Europe has a limit. Why does the Minister think it will not work here?
Craig Whittaker
Our immigration system must encourage compliance with immigration rules and protect the public. Those who have no right to be in the UK should leave voluntarily, but where the opportunities to do so are not taken, we have to operate a system to enable us to enforce removal and deport foreign national offenders who would otherwise remain in the UK.
I also want to be clear that we do not and cannot detain people indefinitely. It is not lawfully possible to do so.
Stuart C. McDonald
The Home Office repeatedly asserts that it is not indefinite detention, but can the Minister tell me what is the definite time limit on a person’s detention?
Craig Whittaker
I think what the hon. Member has asked me to do is put a time limit on this, and I have already said clearly that just does not work. We have a duty to those in the immigration system, but we have a duty to protect the public too. The introduction of a 28-day detention time limit would severely limit our ability to remove those who refuse to leave voluntarily, and would encourage and reward abuse, to answer the question raised by the hon. Member for Sheffield Central, in some cases from individuals who present a genuine threat to the public, which is not the effect I consider the hon. Members intend with new clause 38.
Anne McLaughlin
Does the Minister not think that if someone represents a threat to the public, they would be in jail? If they are not in jail, there is no evidence that they represent a threat to the public.
Craig Whittaker
The hon. Lady is absolutely right, but we are talking about those who are a threat to the public. We have to have a duty of care. In fact, the first role of the Government is to protect their own citizens.
New clause 38 would allow those who wish to frustrate the removal process to run down the clock, in answer to the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East, until the time limit is reached and release is guaranteed. It would encourage late and opportunistic claims to be made simply to push them over the 28-day limit.
New clauses 38 to 40 are at total odds with the main objectives of the Bill, which will streamline the asylum process, ensuring that outstanding claims and appeals are dealt with much more effectively, with access to legal advice, while enabling us to remove more easily those with no lawful right to remain in the UK. In summary, it is the firm view of this Government that the introduction of a time limit would significantly impair the UK’s ability to proportionately and efficiently remove individuals who have no right to be here and who, in some cases, represent a significant danger to the public. I therefore respectfully ask the hon. Member to withdraw the amendment.
Stuart C. McDonald
I do not know where to start with that response, although it is very similar to those we have had in previous debates. The bogey card is always that foreign national offenders are a serious risk, yet the Government have the power to deport folk straight from prison. That is the power they should use in those situations.
What we are talking about, very often, is people who have committed no crime, or represent absolutely no risk to the public. They are detained for extraordinary periods of time, and face extraordinary hardship. Anyone reading the report by Stephen Shaw, commissioned by the former Home Secretary and former Prime Minister, the right hon. Member for Maidenhead (Mrs May), will see what it does to people. There is also the APPG report, which has already been referred to.
The idea that these amendments somehow undermine the Government’s ability to enforce immigration rules is completely at odds with the evidence from around Europe. Other countries have at least as much success—and often far greater success—in enforcing immigration rules and getting people to leave the country if they have no leave, without having to resort to endless and routine immigration detention. For all those reasons, I very much regret what we have heard from the Minister. However, I will not put the amendment to a vote today; we shall keep that for another time. I therefore beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 70, as amended, ordered to stand part of the Bill.
Clause 71 ordered to stand part of the Bill.
Ordered, That further consideration be now adjourned. —(Paul Holmes.)
Judicial Review and Courts Bill (First sitting)
Tuesday 2nd November 2021
(3 years ago)
Public Bill CommitteesRead Full debate Judicial Review and Courts Act 2022 View all Judicial Review and Courts Act 2022 Debates Read Hansard Text Amendment Paper: Public Bill Committee Amendments as at 2 November 2021 - (2 Nov 2021)
The Chair
Before we begin, I have a few preliminary announcements. First, if Members wish to remove their jackets, they should feel free to do so, because this room is quite warm. I encourage Members to wear masks when they are not speaking. This is in line with guidance of the House of Commons Commission. Please also give each other and members of staff space when seated and when entering and leaving the room. Date Time Witness Tuesday 2 November Until no later than 10.25 am Sir Stephen Laws, KCB, QC; Professor Jason Varuhas, University of Melbourne; Professor Richard Ekins, University of Oxford Tuesday 2 November Until no later than 11.25 am Professor David Feldman, University of Cambridge; Dr Jonathan Morgan, University of Cambridge Tuesday 2 November Until no later than 2.45 pm Richard Leiper QC; André Rebello OBE, Senior Coroner for Liverpool and the Wirral and Hon Secretary of the Coroners’ Society of England and Wales Tuesday 2 November Until no later than 3.30 pm Public Law Project; Law Society; Liberty Tuesday 2 November Until no later than 4.30 pm Inquest; Justice; Amnesty Tuesday 2 November Until no later than 5.00 pm Dr Joe Tomlinson, University of York; The Law Society of Scotland; Aidan O’Neill QC
Members should send their speaking notes by email to hansardnotes@parliament.uk. Similarly, officials in the Gallery should communicate electronically with Ministers. Please switch any electronic devices to silent. As many of you will be aware, tea and coffee are not allowed during sittings, but water is provided at most desks.
Today we will consider the programme motion on the amendment paper. We will then consider a motion to enable the reporting of written evidence for publication and a motion to allow us to deliberate in private about our questions before we commence the oral evidence session. In view of the time available, I hope we can take these matters formally.
Ordered,
That—
1. the Committee shall (in addition to its first meeting at 9.25 am on Tuesday 2 November) meet—
(a) at 2.00 pm on Tuesday 2 November;
(b) at 11.30 am and 2.00 pm on Thursday 4 November;
(c) at 9.25 am and 2.00 pm on Tuesday 9 November;
(d) at 9.25 am and 2.00 pm on Tuesday 16 November;
(e) at 11.30 am and 2.00 pm on Thursday 18 November;
(f) at 2.00 pm on Tuesday 23 November;
2. the Committee shall hear oral evidence in accordance with the following Table:
3. proceedings on consideration of the Bill in Committee shall be taken in the following order: Clauses 1 to 15; Schedule 1; Clauses 16 and 17; Schedule 2; Clause 18; Schedule 3; Clauses 19 to 29; Schedule 4; Clauses 30 to 32; Schedule 5; Clauses 33 to 48; new Clauses; new Schedules; remaining proceedings on the Bill;
4. the proceedings shall (so far as not previously concluded) be brought to a conclusion at 5.00 pm on Tuesday 23 November.—(James Cartlidge.)
Resolved,
That, subject to the discretion of the Chair, any written evidence received by the Committee shall be reported to the House for publication.—(James Cartlidge.)
The Chair
Copies of written evidence that the Committee receives will be made available in the Committee Room and will be circulated to Members by email.
Resolved,
That, at this and any subsequent meeting at which oral evidence is to be heard, the Committee shall sit in private until the witnesses are admitted.—(James Cartlidge.)
The Chair
Before we hear from the witnesses, please may I have any declarations of interest in connection with the Bill?
The Chair
We will now hear from the first panel. We have three witnesses, all are appearing virtually. I thank you all for attending today’s evidence session. We will hear from Sir Stephen Laws QC, senior research fellow at the Policy Exchange and former First Parliamentary Counsel; Professor Jason Varuhas, from the University of Melbourne; and Professor Richard Ekins, from the University of Oxford.
Before calling the first Member to ask a question, I remind all Members that questions should be limited to matters in the scope of the Bill. We must stick to the timings in the programme motion that the Committee has agreed. We have until 10.25 am for this session, which gives us just under an hour. Could the witnesses please introduce themselves?
Sir Stephen Laws: My name is Sir Stephen Laws. I spent my career in the Office of the Parliamentary Counsel, starting in 1976. From 2006 until 2012 I was the First Parliamentary Counsel, head of the office and responsible for the offices of the Government business managers. Since retirement, I have been a senior research fellow at the judicial power project at the Policy Exchange.
Professor Varuhas: Good morning, I am Jason Varuhas. I am a professor of law at the University of Melbourne, where I am also the director for the Centre for Comparative Constitutional Studies in the law school. My interests lie in public law, private law and the law of remedies.
Professor Ekins: I am from the University of Oxford. I have led Policy Exchange’s judicial power project for the last few years and have written a fair bit about cases involving judicial review that warrant criticism or are problematic. I have made submissions, as have my colleagues, to the independent review of administrative law and in response to the Government consultation, and most recently another paper for Policy Exchange outlining possible amendments that might be made to the Bill.
Sir John Hayes (South Holland and The Deepings) (Con)
Q
Professor Ekins: I will go first, since you directed that at me. It is true that the independent review of administrative law noted a worrying trend in relation to cases in which fairly abstract constitutional principles were used to develop the law in surprising ways. It is true that the review held short of recommending legislation in response, but it attended to this as a problem, and I think it is quite rightly within your field of vision as something that should be attended to. The review noted in particular the perfect legitimacy of Parliament legislating in response to particular cases that it thinks break new ground in problematic ways, which might include the Prorogation judgment or Unison, Evans and other cases. That would also include the Adams case, which the review briefly referred to. It is very true that that case made a significant change that is problematic for our law and government. Sir Stephen and I wrote a paper last year for Policy Exchange noting the shortcomings of the judgment—that it really undermines the Carltona doctrine, which is central to the way in which Parliament confers power on Ministers and how civil servants exercise that power. I think it will be a very good contribution to the rule of law to restore and vindicate that principle.
Sir Stephen Laws: If I can come in, I endorse everything that Professor Ekins said. The Adams case is very disturbing and undoes the assumption on which, for almost three quarters of a century, government has carried on. It needs to be urgently reversed.
On the question of parliamentary sovereignty, one of the great defects of the law as currently applied in proceedings for judicial review is that it does not adequately distinguish between the different sorts of decision making to which it is applied. It assumes that the same or very similar principles, processes and remedies are appropriate for a challenge to what you can call casework decisions by public officials in individual cases as should be applied to challenges to legislative decisions.
It seems to me that courts are deciding what the rules should be in future, hypothetical cases, or what the rules should have been in past cases that are not before them. They need to apply very different principles from those that they apply when they have one case before them and the public official has been doing something very similar—[Interruption.]
The Chair
Your sound has gone, Sir Stephen.
Professor Varuhas: May I come in while Sir Stephen fixes his audio?
The Chair
Yes, you can come in while Sir Stephen gets his sound back.
Professor Varuhas: I also agree that there are some concerns that attend the Supreme Court’s increasing attraction to articulating very broad constitutional values and rights. That was something that the independent review of administrative law drew attention to, and particularly the court’s articulation of these norms not revealing any particular principle. The right of access to courts has perhaps unsurprisingly been classed as of fundamental constitutional value, but not the right to life, for example. Moreover, these values have been used at times, it seems, to subvert parliamentary intention in the interpretation of legislation. I think there is a more general need for a reassertion of legislative or parliamentary intention as the touchstone of statutory interpretation, which would help to counter some of these problematic trends.
On the provision for suspended quashing orders in the Bill before the Committee, part of the rationale for suspended relief is that, in cases where controversial constitutional values are invoked or there are controversial interpretations of statute where Parliament’s intention is in question, relief can be suspended as a prompt for Parliament to enter the fray and inject its voice on behalf of the polity into the delineation of constitutional values and norms, and to make clear, where there is any doubt as to its intention, what its intention was in a particular statutory context. The suspended orders in the Bill are in part a response to that jurisprudence, although, as I mentioned, more reforms could of course be introduced to clarify parliamentary intention as the touchstone of statutory interpretation.
The Chair
Sir Stephen, do you want to come back in, because you were cut short by the sound? [Interruption.] We are still having sound issues, so we will try to come back to you later. I do not know whether it is a technical issue at your end or this end. Sorry about that, Sir Stephen. In the meantime, I will take a question from Andy Slaughter.
Andy Slaughter
Q
“overall, the way that judicial review worked was satisfactory”
and that
“any decision to do something about it radically would…be wrong and potentially contrary to the rule of law.”
From some of the answers you have already given, it sounds as though you may not entirely agree with that. Where do you differ from Lord Faulks, if at all? On the contrary view, how do you think judicial review can help to improve decision making by public bodies?
The Chair
Who wants to take that question?
Professor Ekins: I will go first, and then my colleagues can take a turn. I am always happiest when agreeing with Lord Faulks, and I am certainly not willing to propose a radical overhaul of judicial review. It is a central institution of our constitution and there would be dangers in trying to put it entirely on a statutory basis—a course of action that has been thought through but that I think would be fraught with difficulty.
The question is whether it has gone too far in some domains and in some directions, and that conclusion is entirely compatible with the idea that you do not want to overhaul it at large and that no radical reform is necessary. A correction could be made in certain cases, where judicial review is extended into the heart of the political constitution, as you saw in the Prorogation case, which I know Lord Faulks was much exercised about and was highly critical of, and in other cases, where the techniques involved—we have talked about some of them already—are difficult to square with parliamentary sovereignty and the primacy of Government decision making in relation to the public interest, and where, rather than a supervisory jurisdiction being in play, one has intrusion into the merits.
One can make some significant corrections on the margins—if you call it the margins—without undermining the central value of judicial review. In relation to its value, Ministers should clearly be subject to the law; they should not exceed the scope of their statutory powers, or go beyond the scope of prerogative powers for that matter. The courts have a vital role to play in vindicating those legal limits and in correcting deficiencies in process, where decision making might have flouted the requirements of natural justice or in extremis has simply made an irrational decision, although one would expect that to be less common. So there is undoubtedly a very valuable role for judicial review to play, but that is consistent with noting—as do some senior and retired judges—that what has gone on in some significant, major, politically salient cases is unjustifiable and warrants a legislative response.
Andy Slaughter
Q
“the Bill’s measures are a carefully considered, limited response to two important Supreme Court judgments.”
Some of the things that the Lord Chancellor has said in the context of human rights have implied the same thing—that, effectively, there will be a second-guessing or a corrective effect on judgments of the superior courts. Is that how you see this working?
Professor Ekins: In part. With respect, I would not say tit for tat, but judgments that put the law in doubt in significant ways, or break new ground in ways that are constitutionally problematic, deserve a response to correct the law. It is not a response to dress down the judges; it is to restore or make the law to that which Parliament wishes it to be. I think that much good can be done by a systematic response to cases where the law has been changed in difficult ways. That would be the central mode of action.
There is a sense sometimes, though, that one should respond to grounds of action. For example, a legislative response to the Adams case—I have drafted a possible response—would not necessarily, and does not, mention that case by name, but it restates the Carltona principle. It makes it clear that the Carltona principle has a central place in our law and constitution—so, partly just a general change but motivated by cases where this has been put in doubt.
Andy Slaughter
Q
Professor Ekins: With respect, I do not think that it is a radical departure. I think that legislative responses to judgments that put the law in a difficult place were, maybe not routine, but they are certainly unimpeachable constitutionally. In a sense, this is an opportunity, in this Bill, to look back across several decades of legal development, or at the least the last decade or two, and make some changes that are worth making in this context. Whether power should be used by statutory instrument, I would be much less comfortable with, in so far as some of the changes we are talking about involve the meaning and application of a judgment.
Andy Slaughter
Q
Professor Ekins: I would not imagine that it needs to be emergency legislation. Sometimes it will have to be, as was the case after the Ahmed case, where legislation was moved from within a matter of weeks to a number of days, but much more often, we simply need to pay attention and be willing to bring forward legislation in response. Obviously, legislative time is scarce, so that will always be difficult to prioritise, but noting when the law of judicial review has been developed in startling ways that really are not justified in responding is a significant exercise of Parliament’s responsibility.
The Chair
Does any other panel member want to come in to respond to Andy Slaughter’s question? Sir Stephen, have we got you back yet?
Sir Stephen Laws: I think so; I apologise. I think I detected a problem at this end. There are some systematic approaches that need to be adopted. I think it is right that Parliament should retain its ability to react to individual cases, but that is difficult because time is short and, quite often, by the time the courts have set the framework, they have intervened, in a way, in the political argument.
I would like to come back to the point I was trying to make when I was muted. There are distinctions between intervention by judicial review in casework and intervention by judicial review in legislative actions, because the remedies and principles that are applied to legislative actions are themselves legislative. If the courts are deciding judicial review decisions that set the rules for future hypothetical cases, they are usurping the legislative function. The systematic approach needs to distinguish more clearly between judicial review of legislative actions and system management issues, and judicial review of casework.
Professor Varuhas: Obviously, there are many cases in the judicial review casework of the courts that raise no problems whatsoever, but the IRAL report identified some problematic areas where there were patterns where courts were potentially exceeding the institutional and constitutional limits of their role. It was acknowledged in the conclusion to the IRAL report that there were some instances where the Supreme Court had exceeded the supervisory conception of review. It is also important to note that IRAL acknowledged very clearly that it was legitimate for Parliament to legislate in the field of judicial review, including the response to particular judgments. I note that the modern machinery of judicial review was established by legislative instruments and statute, particularly the Senior Courts Act 1981. The entire modern machinery of review is owed to legislation.
A number of problematic areas have already been mentioned by my colleagues. One is that the courts have turned from scrutinising individual decisions to scrutinising and evaluating entire administrative systems and invalidating them, without an acknowledgement that the courts lack expertise and experience in the field of design of large administrative systems.
Another area is in proportionality—where the courts strike a balance between competing considerations. That tends to supplant the role of the statutory decision maker, whose role is to weigh up all those considerations. Then there are the areas we have already mentioned, where the court has taken upon itself to speak for the polity in articulating constitutional values. One would expect that is a role for Parliament first and foremost. Also, there is where the courts have used those values to interpret legislation in the light of the concerns they consider normative appealing, rather than necessarily to give effect to the legislative intention that sits behind legislation.
What the IRAL process showed is that it can be very difficult to legislate as to the substance of judicial review at an abstract level, but what can be done is that responses can be made to particular judgments. There are plenty of examples through history where Parliament has done so. Also, the rules governing the procedure and remedies of review have always been housed in the Senior Courts Act—they are the product of Parliament; Parliament has updated and amended those procedures and remedies over time. This latest batch of reforms, particularly the remedial reforms, can be seen as a further incremental development of the remedial system.
Remedies can be important, because they can provide an outlet for wider concerns, such as the public interest or interest in good administration, and they can provide a way to modulate the boundaries of review, to ensure that it does not stray beyond ordinary practicalities and infringe upon fundamental principles. Again, I think that is entirely legitimate and there are many examples of Parliament legislating as to remedies.
Andy Slaughter
Q
Professor Varuhas: These remedies will not prevent anyone from getting in the court door, because they are remedies, which apply after a finding of unlawfulness has been found by a court. I think these remedies are welcome, because they provide for a greater remedial flexibility for courts—for courts to tailor remedies in their discretion, to the exigencies of the particular facts of the case. It is important to bear in mind that these remedies will be discretionary and the courts will take into account a range of relevant considerations in exercising that discretion. Courts are well versed in exercising remedial discretion—courts can be expected to respond to the justice of the particular case. What the Bill does is to give the courts more options.
The most common consequence of a finding of unlawfulness is that the impugned administrative measure is a nullity, which means it never existed. That will suffice in many cases, but in some cases it will be an overly blunt measure that can have very drastic effects. For example, a large infrastructure project may be started and there might be a slight technical or procedural error at the outset.
If the project proceeds and is then nullified as if it never existed, that will have very negative effects on the people who had contracted with the Government and, by being critically disruptive, on the national economic interest, and could lead to significant economic waste. In that sort of case, a suspended order allowing the Government time to respond to the finding of unlawfulness and make relevant provisions to accommodate that finding, or a prospective order that holds that what has gone before remains good and that the nullification takes effect only prospectively, can play an important role in protecting very important public interests, interests of good administration and the interests of third parties who might interact with Government.
Indeed, if something like a large infrastructure project were invalidated, it could undermine the confidence of market players in contracting or working with Government, because the rug could be pulled out from the project at some later point once a lot of money and time has been sunk into it. I think these are very moderate reforms seeking to give the courts greater remedial flexibility to tailor remedial responses to the particular context of the case, in the light of the range of interests implicated.
Sir Stephen Laws: I am sympathetic to people who have a view about what remedies should be granted to litigants in the case in question, but I am not sympathetic to the idea that judicial review should be an extra step in the political debate about whether a piece of legislation should exist or continue to exist. The Unison case provides a startling example of the sort of absurd consequence that you would get from the nullity remedy.
In that case, the courts overturned fees to be charged to people who wanted to take their employment cases to hearing. The result of nullifying the regulations involved a very large amount of money being paid not to the people who were deterred from bringing their cases to employment tribunals, but either to the people who did bring them and lost, or to employers in those litigations who lost and had to pay the fees of the people who had been successful. That was a ridiculous remedy for a mischief that harmed people other than those who got their money back.
Professor Ekins: I agree with my colleagues that clause 1 increases remedial discretion and focuses it to some extent, although one can argue about how it does that. Much of the response to these two clauses has been overstated.
We have not yet spoken about clause 2 and the limitation of review of the relevant decisions of the upper tribunal. Again, that has been a bit misunderstood or framed and received by some groups as though it were an abolition of judicial review at large in some way, but I think it is a restatement of the law that Parliament tried to create in 2007 in the relevant legislation. The Supreme Court sort of glossed that in 2011, and many senior judges have been unhappy with the way that it was decided then and the way it was worked out subsequently.
In limiting review in the way that clause 2 does—with plenty of safeguards, I should add—one is not barring the door to the courtroom, but bringing an end to an otherwise never-ending series of procedural steps. Looking into it, one can always find a benefit from further procedural steps, but it is a perfectly reasonable and proportionate response to limit judicial review in that context, where the decision maker in question is another court. It is not a Minister detaining someone, or something like that; it is the upper tribunal, and as a court, it warrants an immunity from judicial review in that context. People should be much more relaxed than some have been about those two measures.
Andy Slaughter
Q
“it is expected that the legal text that removes the Cart judgment will serve as a framework that can be replicated in other legislation.”
That appears to signal an intent on the Government’s part to use the ouster more commonly in future. Is that how you read it? Do you think that that is a good or bad way of going about things?
The Chair
Who wants to take that one first?
Professor Ekins: I will, since I was talking about Cart just now.
It is true that they have signalled that. I think that this will be an effective ouster clause because it is a perfectly constitutionally irreproachable response to the Supreme Court’s judgment. It restates Parliament’s intention and is protecting a court’s jurisdiction—not an ordinary court’s, but a specialist court’s, albeit one with pretty wide jurisdiction.
I think that it will work as an ouster clause. I do not think that the courts will view it with disdain or try to undercut it as they have done with some other ouster clauses. To that extent, it will provide a framework, partly because it is limited: it is designed to limit judicial review without ousting it altogether. It is a safeguard in relation to true procedural failure, bad faith and so on, which is fine and proper.
I think that it could be used as a framework for other cases. In the Policy Exchange paper that I published last week, I suggested one such context: the Investigatory Powers Tribunal, another specialist court, which was subject to the protection of an ouster clause enacted in 2000, as David Davis mentioned in his Guardian article last week. That ouster clause was undercut by the Supreme Court in 2019, using some of the problematic techniques that we have talked about—openly departing from legislative intent and distorting the meaning of the statute.
I think that Parliament should enact an ouster clause, modelled on clause 2, that protects the Investigatory Powers Tribunal. There will be pretty sharp limits on how often you want to use the clauses, of course—this one is controversial, and they will all be controversial. Whenever there is a suggestion that there is not a proper context for ouster, the controversy will be higher.
We have talked before about intrusions that judicial review has made on some relationships at the heart of the political constitution. There is a case to be made for ouster, or for limitation of review, in that context. You will be aware of the Dissolution and Calling of Parliament Bill, which is making its way through Parliament now. Clause 3 of that Bill is a partial response to the Prorogation judgment, and quite rightly so; it protects the prerogative of Dissolution, when it is restored, from judicial review. I think that that is justified and that you may have to act similarly in relation to Prorogation law or other aspects of the political constitution.
I would not expect the approach to be widely used, but I think that there are contexts in which it is reasonable and justified.
Sir Stephen Laws: I agree with all of that. As a drafter of legislation, whenever I was asked to draft an ouster clause, as I was from time to time, my response was always: “There’s no hope of it ever succeeding, unless you’re presenting a politically and legally justifiable alternative route for people who would otherwise be going to the court.” That, of course, is what the Cart judgment does, for the reasons that Professor Ekins has given: the upper tribunal is a proper court; the Investigatory Powers Tribunal is a proper remedy; and, in the case of the Prorogation judgment, the remedy is political because that is how the constitution is set up. In relation to the major matters of the relationship between Parliament and Government, it is Parliament that has the remedy, ultimately, in being able to pass a vote of no confidence in the Government and require their resignation or a general election.
Professor Varuhas: On clause 2, the first thing that I would say is that it derives from a clear recommendation from the expert independent review of administrative law and has subsequently been subject to a full Government consultation. Former Law Lords have also come out in support of the policy, including Lord Hope, who is the former Deputy President of the Supreme Court, and Lord Carnwath, who—importantly—was the inaugural Senior President of Tribunals and was subsequently a Law Lord on the Supreme Court. He said that the ouster would restore what was always intended: that the upper tribunal should have equal status with the High Court. That was the intention behind its designation as a superior court of record. As colleagues have stressed, that is a really important point: the upper tribunal has equivalent status to the High Court.
There is a further point to be made, which relates to how many bites of the cherry one person might have. It is worth reminding ourselves what a Cart judicial review is. It will have been a claim in the first-tier tribunal that will have been unsuccessful. The claimant will then seek permission to appeal to the upper tribunal. The first-tier tribunal will decline permission, and then the claimant will appeal to the upper tribunal against the declination of permission to appeal to the upper tribunal. The upper tribunal will have declined permission to appeal. It is not clear, given the upper tribunal’s status as a superior court of record, that one then needs a further bite of the cherry by going to the High Court via judicial review, and potentially all the way up the judicial hierarchy.
Whatever the case is more generally, in this instance the clause is justified, and it is a targeted response to a particular problem. Also it is not a pure ouster, because in clause 2(4) the path remains open for claimants to bring a judicial review in the High Court in serious instances of illegality, such as where the upper tribunal acts in bad faith or in fundamental breach of principles of natural justice. That is an important point to bear in mind: there is still a route to the High Court in cases of serious unlawfulness.
The Chair
A few Members have indicated they wish to ask questions, so I will take them in order.
Tom Hunt (Ipswich) (Con)
Q
The Chair
Who wants to take that one? Is it a googly?
Professor Ekins: I will start. Clearly the mandate on which the Government campaign and secure a majority is significant. It is true that page 48 of the Conservative party manifesto makes a commitment to look again at the constitution and to take measures to ensure that judicial review does not become “politics by another means”—a phrase Lord Sumption used in his Reith lectures and also used by the High Court and the Court of Appeal in judgments in 2019. It is also true that the commitment does not spell out what it will involve, and that is partly what the Committee is considering and the Government have been thinking through—as has the independent review of administrative law.
There should be no constitutional question about the entitlement of Parliament to legislate on judicial review. The Lord Chief Justice of England and Wales, Lord Burnett, has made that crystal clear in various public statements. The question, of course, is the merits of the proposals—the devil may be in the detail. It would be wrong, as we have discussed, to overhaul judicial review. It would be a mistake—not improper, but a mistake—to try to put it on a statutory footing at large, but changes can be made where problems have arisen.
The political salience of judicial review has clearly risen in the last five years—indeed in the last decade or two. If one can identify the problematic trends and respond to them in a targeted and careful way, one would be acting properly and in accordance with the manifesto, even if I would be cautious myself in connecting any particular proposal to the manifesto because it was not quite that specific.
Sir Stephen Laws: I have nothing particular to add to that, as it all seems right. In my submission to the independent review of administrative law I drew attention to what I thought were the beginnings of a breakdown in trust between the political world and the judiciary, and the political salience of the issues around judicial review is evidence of that. Plainly, there can be no question about Parliament’s right to legislate, and the need to do so has been demonstrated.
Professor Varuhas: I would add that the concerns reflected in the manifesto around the judicial review and whether the courts had in certain contexts overreached were vindicated in the IRAL report, which did pinpoint at multiple times areas of concern. This set of reforms, regarding remedies and the Cart ouster, have been through an incredibly thorough process. An expert independent panel was constituted, the Independent Review of Administrative Law, with five distinguished academic lawyers and others drawn from the profession, chaired by Lord Faulks. The reforms in the Bill derive from that panel’s recommendations.
The panel stressed the need for reforms to emphasise remedial flexibility and it recommended the ouster of Cart judicial reviews. Those recommendations were then put out to general consultation—a Government consultation. At each stage there were a lot of consultation responses, so the reforms we see before us are the product of an incredibly thorough, expert-led process. To my mind it is not a surprise that the reforms are well justified in the end.
Sir John Hayes
Q
The Chair
Who wants to take that question? Anybody?
Professor Ekins: I will go first. I have been highly critical of the Privacy International judgment, and I share the view that the majority judgment, or Lord Carnwath’s judgment, with which Lady Hale and Lord Kerr agreed, was outrageous. Those three judges are no longer on the Supreme Court, but that judgment is part of the common law and it does warrant a response. There were many other things going on in May 2019, so maybe it is not a surprise that it did not get much public attention, but that judgment did constitute a very serious attack on some fundamentals of the constitution.
Parliamentary sovereignty was openly questioned and the rule of law was set in apparent tension with parliamentary sovereignty, which is deeply wrong, I think. The rule of law requires respect for the law, which includes parliamentary sovereignty and the stability of statute, and the primacy of legislative intent in interpreting statute is one of the fundamental ways in which the rule of law is secured. It is true that the rule of law is often bandied about as though it warrants adventurous judicial action that cannot be squared with the existing constitutional law or with the terms of statute, because we are going to make it better and we are going to impose further controls on the Government or public bodies.
As Lord Hughes, who was on the Supreme Court at the time, said, that is to confuse the rule of law with the rule of courts. You do not see that just with the Privacy International case, we see it in the Evans case, involving the Freedom of Information Act 2000, where a clear statutory power was undone. Three judges interpreted it so that it does not exist any more, and another two judges, also during the majority, attacked its exercise in a different way. This is a worrying trend, and the independent review noted the Evans case.
If Parliament can notice and respond to those judgments, it will both correct the law that has been undone and make clear that the technique is seen and is not tolerated as legitimate. In cases where judicial review breaks new ground and is being carried out in a way that is inconsistent with statute and long-standing principle and rules—the Prorogation judgment is very large here—the litigation is an extension of political argument and a way of getting the courts to weigh in on your side in a controversy. That is destructive of the courts’ reputation and of the political constitution that should be framing those arguments, and it is not vindicating the rule of law but undoing it and undoing the political foundation for our parliamentary democracy.
Sir Stephen Laws: I would agree with that. It seems to me that the fundamental principle that should be upheld as part of the rule of law is the need for legal certainty and predictability. Judicial law making undermines that because it produces new law that nobody was able to expect, and because of the myth that the common law has always existed, it also creates the further injustice of retrospective effect.
If ordinary citizens cannot predict with certainty before they act what conduct will escape censure, that is a serious injustice. If public officials cannot be sure that what the law allows them to do, adherence to the law for them ceases to be a matter of principled compliance and becomes instead a straightforward commercial exercise in risk management, and that is a very bad thing for the management of public affairs generally.
The Chair
There seems to be consensus on that. I am conscious of time; Jason, would you like to come in on that quickly?
Professor Varuhas: I think the rule of law is an important value, but all too often, it is used to denote what someone thinks is good. It is often invoked without elaboration and as a trump card. The rule of law is an important value, particularly the principle of government and the law, but other values and aspects of the rule of law can be important.
As Sir Stephen alluded to, you can see that with the proposal for prospective orders, for example. You might have a decision-making procedure created by regulation, with many decisions made under that in regard to particular people. If you invalidate that ad initio, the consequence will be that all those decisions in regard to all those individuals would be thrown into doubt. They would have planned their lives on the basis of the decisions that had been rendered in regard to them.
On the one hand, you might say that voiding ad initio and rendering a decision a nullity upholds the rule of law, but it can undermine other aspects of the rule of law, such as certainty, predictability and people’s ability to plan their lives in the light of decisions that have been made in regard to them. The beauty of prospective orders is that they can be calibrated to save those past decisions and provide certainty, finality and confidence in the administration of justice for those individuals, while ensuring that the system complies with legal requirements going forward.
The Chair
I am conscious of time. As I said earlier, we have to move on to the second panel soon, so this will be the final question. I call Dr Caroline Johnson.
Dr Caroline Johnson (Sleaford and North Hykeham) (Con)
Q
Professor Varuhas: One of the motivations for the provisions is to provide the courts with flexibility to adapt remedies to the particular needs of the given case. That is a response to a series of Supreme Court decisions that have held, contrary to long-standing authority, that a funding of unlawfulness automatically voids administrative measures as if they never existed. That has never been the position, because there has always been remedial discretion to modulate the effects of unlawfulness.
The Bill reasserts that remedial flexibility so that remedies can be tailored to the particular needs of relative interests and values implicated in the facts of the case. In proposed new section 29A(8) of the Senior Courts Act 1981, you have a list of factors that will guide courts in exercising their discretion, and those factors are drawn from the common law, so dovetail with pre-existing doctrine. Importantly, they give litigants and the Government fair warning of the factors that will bear on remedial decisions. Subsection (8) requires that
“the court must have regard to”
those factors, which has the benefit that the court will apply the same framework in every case. That provides consistency of principle and ensures transparency, because the court will have to work through those particular factors to reach a conclusion regarding what type of order ought to be given on the facts of the case.
In my view, one problem with subsection (9) is that it erects a presumption. It is a particularly weak presumption, and therefore one might question what the justification for it is, but more generally I am not necessarily in favour of a presumptive approach one way or the other, because that can undermine the court’s capacity to adapt to the particular facts of the case and respond to the particular factors that arise—the public interest in good administration, the interests of third parties and so on. Necessary flexibility is built into the scheme, but there is also fair warning of the factors that will be taken into account pursuant to subsection (8), which is a particularly important provision in that regard.
The Chair
I am conscious of the time, and I think the Minister will want to ask the final question, so I will take a short response to Dr Johnson’s question from one of you. Then I will move across to the Minister before we close the panel.
Professor Ekins: Briefly, I agree with everything that Jason said. One could add a little more detail perhaps to the factors in subsection (8), tying in with Sir Stephen’s point about the significance of whether something is a legislative act. That seems like something that should be at the forefront of the court’s mind. It is a weak presumption in subsection (9). One could either remove it or tailor it, narrowing it so that the presumption arises only where the decision making in question is legislative in character or on a general policy decision, rather than casework, to use Sir Stephen’s term. At the moment, it is a very broad presumption, and a very weak one, and it might be more useful if it were narrowed and applied in a more focused way.
The Chair
Quickly, Sir Stephen.
Sir Stephen Laws: I am a legislative drafter. I am used to people asking me to guarantee when a discretion is conferred that it will be exercised in the way that they wish. I think I agree with Professor Ekins that more detail would be desirable.
The Parliamentary Under-Secretary of State for Justice (James Cartlidge)
Q
James Cartlidge
It probably has to be Professor Varuhas.
Professor Varuhas: I reiterate what I said before in response to your question. The phrase on the number of bites of the cherry comes from a speech given by Lord Carnwath, who raised this point and considered that it was disproportionate that an applicant in this context should have so many bites of the cherry, given that the upper tribunal has the status of the High Court. It is a judicial body, independent of Government, that is staffed by senior members of the judiciary with specialist expertise. Given the credentials of the institution, it seems disproportionate to allow a further three or four bites of the cherry after an application has proceeded through those stages and been found not to have merit. I think the point is well made.
I will abuse my position to add one further point on the remedies provision. Professor Ekins reminded me that I meant to say that one discretionary factor that should be added under subsection (8) is the public interest, which is a curious omission because the public interest can be seriously prejudiced by decisions on remedies in the interests of the economy, national security and so on. That should be factored into the remedies.
Although I went slightly off topic at the end, I certainly agree—
The Chair
Order. I am afraid that brings us to the end of our time. I thank our witnesses on behalf of the Committee for their evidence today.
Examination of Witnesses
Professor David Feldman and Dr Jonathan Morgan gave evidence.
The Chair
Q
We will hear oral evidence from Professor David Feldman and Dr Jonathan Morgan, both of the University of Cambridge, for just under an hour. Without any further ado, I ask them to make their introductory addresses.
Professor Feldman: Thank you, Chair. I am David Feldman, the emeritus Rouse Ball professor of English law at the University of Cambridge and emeritus fellow of Downing College, Cambridge.
I have been working in this field for some 40 years, and I take a great interest in what is going on. In relation to the proposed new provisions set out in clauses 1 and 2, I suggest that one should approach them on the basis of the constitutional background and the importance of judicial review and access to courts.
On the constitutional importance of keeping public officials within the limit of the powers set by Parliament, parliamentary sovereignty requires that there should be independent interpreters and adjudicators to keep the people to whom statute delegates power within the limits set by Parliament. That is complicated by the requirement of the rule of law that requires obedience to law by Government and scrutiny by an independent judiciary on the lawfulness of behaviour.
The combination of parliamentary sovereignty and the rule of law, together with article 6 of the European convention on human rights, where applicable, requires access to independent and impartial courts and tribunals and it requires the availability of effective remedies for violations of law, where those are found to have taken place.
The Chair
Professor Feldman, may I interrupt before you go any further? We obviously want to use the majority of our time for questions from Members. Although I am happy for you to give a brief presentation, I want to introduce our other witness so that we can open up for questions. If you could bring your opening remarks to a close, I can get Jonathan Morgan to introduce himself. The floor is still yours, but please be conscious of that.
Professor Feldman: The conclusion is that the provisions in clauses 1 and 2 affect access to courts and the effectiveness of remedies and, therefore, should be examined with very great care to make sure they are justified.
The Chair
Q
Dr Morgan: My name is Jonathan Morgan. I am a reader in English law at the University of Cambridge and a fellow of Corpus Christi College. Like any academic, I would be delighted to address you on the sexy subject of constitutional theory, but having heard what my learned friend has experienced, I will not do that now. I will just say a couple of things about the Bill before us.
It seems to me that clause 1 is highly welcome, but it needs two significant amendments to make it perfect. Clause 2, which is on the Cart review, is compatible with the rule of law, but there are some very real costs to doing this, and Parliament needs to confront them. One of the costs is that the very few people who succeed in Cart reviews will not have that avenue in future. I am happy to substantiate those in questions, but I will not enlarge on that now.
Dr Johnson
Q
Dr Morgan: I think you have put your finger on it, lawyer or not, because Cart deals with a fairly unusual situation, exactly as you have said. This is to do with the level of appeals within the judiciary. Critics of clause 2, who say that this is doing violence to the rule of law and is setting a bad precedent by immunising the Government from being judicially reviewed, are therefore somewhat missing the point. Clause 2 has its cost, but I do not think it immunises Government decisions from judicial review. It simply says how many reviews or appeals there should be within the judiciary. I was here for the previous panel of witnesses, and in terms of whether you have permission to review within the court system, the number of “bites of the cherry” is a good way to put it.
One overall criticism of the Supreme Court might be that it failed to give proper respect to the tribunal system as a branch of the judiciary. It had a slightly legacy, old-fashioned view of the tribunal system as something that needed to be under the supervision of the High Court, and so on. That is why Lord Carnwath, who, as we have heard, is a former Senior President of Tribunals, has been a critic of the Cart decision. It is important to see clause 2 as to do with arrangements within the judiciary. Yes, there is an ouster clause in clause 2, but it does not immunise administrative or Government decisions. It immunises decisions of what is, in effect, a court by another name—the upper tribunal.
The Chair
Dr Feldman, do you want to come in on that? I noticed that your volume was quite low. If possible, could you raise your voice a little bit?
Professor Feldman: I beg your pardon; I did not hear that.
The Chair
Q
Professor Feldman: Thank you. The only thing I would add to what Dr Morgan has said is that judicial review is seen as a general safety net. One of its functions is certainly to scrutinise Government decision making and action, but it is there as a backstop to deal with unlawful action by any public body. One starts with the presumption that judicial review is available unless there is some specific reason for excluding it. It is clear that the justification for interfering with access to judicial review may be stronger where a body is a judicial body, and where a litigant has already had the chance to have his or her case heard by an impartial and independent tribunal, rather than simply by an administrative body.
Dr Johnson
Q
Professor Feldman: The answer is that the courts held in Cart that being a superior court of record does not immunise a body from being subject to judicial review. For practical purposes, the High Court is immune to judicial review, because it is the High Court that carries out judicial review. It extends, as they used to say, to all inferior courts and tribunals—that is, below the level of the High Court—as well as public officials. It is a matter of basic principle that the upper tribunal was to be subject to this, even if, as Lord Justice Laws said in Cart, the upper tribunal would be seen as the avatar of the High Court.
Dr Morgan: In my view, this is what went wrong in 2007, so apologies to any Members who were in Parliament then. In 2007, Parliament thought that by designating the upper tribunal as a superior court of record, it would immunise it from judicial review. That is what the Government argued in Cart, but they failed to convince the High Court, the Court of Appeal and the Supreme Court.
To ingratiate myself with Members, I will say that the fault was not only that of Parliament but that of the Leggatt report on tribunals, which said that there should not be judicial review of the upper tribunal and that by designating it a superior court of record, Parliament would immunise it from judicial review. I am afraid that Sir Andrew Leggatt turned out to be wrong on that when it got to the courts. It is true that Leggatt had said that there should be an express ouster clause, which Parliament did not put in. If Parliament in 2007 had gone for the belt-and-braces approach and not relied only on the status of the upper tribunal as a superior court of record, Cart would never have happened and we would not be here today discussing it. In a way, this problem has been 20 years in the making.
Dr Johnson
Q
Dr Morgan: More or less. I think Lord Justice Laws called it the alter ego of the High Court, but that is not quite the same thing.
Andy Slaughter
Q
Dr Morgan: I wrote an article about that in 2019 before IRAL was even thought of. It is not like me to be ahead of the trend. In it, I analysed in particular the Supreme Court’s decision in Ahmed and others v. HM Treasury—the freezing orders case. Ahmed causes enough doubt on the question that legislating to put it beyond question is a worthwhile use of Parliament’s time. There are some precedents the other way—in a case called Liberty, the divisional court suspended a declaration—but on quashing orders, the reasoning of the Supreme Court in Ahmed (No. 2) suggests that it is just not possible to suspend a quashing order. In my view, that is unfortunate, because judicial review remedies are in every other respect discretionary, so why not here? In the debate on IRAL in the House of Lords, Lord Hope said that he was dismayed to be in a “minority of one” when he dissented in Ahmed on postponing it. He certainly approves of clause 1. It is at least a doubtful point, and sufficiently doubtful that the legislation is worth it.
Andy Slaughter
Q
Dr Morgan: Yes. My position is that it is a sensible remedy, and at the moment, it is certainly not clear whether the courts can do it. Clause 1 will, beneficially, clarify that.
Andy Slaughter
But a court might attempt to impose—
Dr Morgan: For a court below the Supreme Court, the obvious precedent that the applicant would cite would be Ahmed, and it would be very hard for a lower court to get round that, I think.
The Chair
Q
Professor Feldman: I think that is completely right. There is a big distinction between quashing orders and declarations for this purpose. What Ahmed (No. 2) did was to eliminate the difference—a quashing order quashes, whereas a declaration can only declare that a body has a duty or has breached a duty or has not breached a duty, and that is something that is not limited as to time. I also agree with Dr Morgan as to the effect of Ahmed (No. 2) on lower courts. However, I think there is a big distinction to be drawn between the suspending of a quashing order where, as the Bill says, the retrospective impact remains when the quashing order eventually takes effect, and a prospective-only order, which seems to me to raise significantly more problems of principle and of practice.
Andy Slaughter
Q
Professor Feldman: One of the difficulties of having a prospective-only remedy is that it is only prospective, and by definition a remedy of this kind would take effect only if the court had already decided that the claimant had been treated unlawfully. To say to a claimant, “This is going to be prospective only” strongly implies it is not going to protect the claimant himself or herself. Some way would have to be found of protecting the claimant, and other people in the position of the claimant, if one did not want to be stuck in the position of saying, “These people were treated unlawfully, but they are not going to have a remedy.”
In clause 1, there is nothing that makes it explicitly clear that a court could say, “I am going to give you a prospective-only remedy, except that it would be retrospective for the purpose of protecting you.” The court might be able to do that, but then you also have the problem of other people in the same position as the claimant—all those people would have been treated unlawfully. It seems strange to me that they should have to suffer unlawfully because the remedy is only prospective.
The language of clause 1, under which proposed new section 29A(4) of the Senior Courts Act 1981 would state,
“if the impugned act is…upheld”
is very odd. Subsection (5) says,
“it is to be treated for all purposes as if its validity and force were, and always had been, unimpaired by the relevant defect.”
That makes it quite difficult to see why one should give a remedy to people who are deemed in that case not to have suffered a legal wrong.
I think it is quite a problem, unless the clause is amended to expressly allow a judge to give a remedy to someone who has obtained a prospective-only order, despite the fact that the law and treatment were to be treated as entirely lawful.
The Chair
Dr Morgan.
Dr Morgan: I agree with what David Feldman said, but perhaps I could suggest a solution. This is an amendment that should be made to clause 1. Proposed new section 29A(2) to the Senior Courts Act 1981 says that the order
“may be made subject to conditions.”
I think the court should have the power to set as a condition of making a prospective-only order or suspending the order that compensation should be paid to the particular applicant. In my view, that would be a way of squaring the circle of postponing the effect of quashing an entire piece of legislation—saying that is not going to happen today, but is going to happen in six months’ time to give the Government time to prepare.
Of course, that would work great injustice on a successful particular applicant who has paid to take their case to court, has won and then does not get any redress at all. However, if the court were empowered to grant compensation, that could be a way of achieving both those things. I am a public lawyer, but I also teach contract and property law. If you get an injunction in a tort case, the court might suspend the injunction for a period of time and, if it does so, it will give compensation during the period of suspension. It is on that sort of model that I think this could work.
You could argue that while proposed new section 29A(2) says orders
“may be made subject to conditions”,
the explanatory notes say that those could be any conditions the court likes. However, given that the courts cannot award compensation for public law wrongs, it is very doubtful whether that implicitly contains a power to award compensation. I think that proposed new section 29A(2) should be amended to say that orders may be “made subject to conditions including, if the court sees fit, compensation.” That might be a way of reconciling those competing objectives.
Andy Slaughter
Q
Dr Morgan: Yes. That point was made by many Members on Second Reading. It could be a real problem, in particular if it became the norm and the court ordinarily postponed orders. In my view, the court should not ordinarily do that; it should be in exceptional cases only. That takes us on to the presumption in subsection (9) —but perhaps we will come back to that at a separate point. There are two problems with it: first, the presumption; secondly, the absence of a compensation power.
Professor Feldman: May I add two things to what Dr Morgan has said? I agree with what he says in principle.
First, the compensation remedy may not be useful to all claimants. If one is about to be deported as a result of having one’s unlawful decision treated as lawful, for example, compensation is unlikely to be an effective and adequate remedy. There are lots of other types of administrative wrong that lead to people suffering loss or injury that cannot readily be financially compensated.
Secondly, if one is going to compensate, one has to consider all the other people who have been treated unlawfully, who are in a similar position to the claimant, but who are not before the court, so the court cannot order compensation for them. Perhaps one needs to consider whether a court should be empowered to require the provision of a compensation scheme for all those in a similar position to the claimant. That could be a lawful step.
It is also true, as Dr Morgan said, that the administrative law of the English system does not treat financial compensation as a readily available remedy. Therefore, some express permission would have to be made to allow the courts to do it.
Andy Slaughter
Q
Dr Morgan: I would take the presumption out altogether. I think what this clause is doing—certainly what it should be doing—is enlarging the power of the courts to tailor relief in a way that they see fit, and removing the obstacle that the Supreme Court laid in their path in Ahmed v. HM Treasury (No. 2). Thus, I just do not see why it is there. The Government say that it is to encourage the courts to use this remedy, but I do not see why we should try and push the courts in a particular direction.
I also think, if subsection (9) is taken out, subsection (8) could be taken out as well. At the moment there is a need to try and direct the court what to take into account; the drafting is already getting very complicated. I think that probably everyone who has written you a paper has suggested more paragraphs that could be put in subsection (8); I think it is going to end up very long indeed. We are talking here about High Court judges; it is very senior judges who will be making these decisions, and in my view, they can simply be trusted to make the appropriate decision based on the facts. That is my first point—I would take it out.
If we are going to keep it in, it is virtually doing nothing at all. I think the courts will be very reluctant to find that there is an adequate redress, because they will say, “The claimant is not going to get anything, so that is not adequate redress.” I think if the court does find that it is satisfied, they will say, “There is a good reason to make the quashing order immediate and retrospective, because that is what we ordinarily do. It is important to do that to keep the Government within the limits of its powers.” I think that subsection (9) is not going to do anything other than generate needless litigation about this; it will become a question that has to be considered in every case, whether it is really relevant to the facts or not. Therefore, I suggest that subsection (9) should go.
Andy Slaughter
Professor Feldman, do you agree with that?
Professor Feldman: I do. Subsections (8) and (9) have twin disadvantages. First, they try to create a presumption that something will happen regularly, when we know that it will not, for the reasons that Dr Morgan has given. Secondly, they are unnecessary because the courts are quite capable of making judgements for themselves. Look at subsection (8)(f):
“any other matter that appears to the court to be relevant.”
This opens up the field very nicely; I do not see anything there that is necessary.
Andy Slaughter
Q
“text that removes the Cart judgment will serve as a framework that can be replicated in other legislation.”
Do you think that is a sensible way to go about legislating?
Professor Feldman: Is that for me?
Andy Slaughter
For either, or both.
Professor Feldman: I will start then, if I may. I think there is a real difficulty about a provision of this kind being used as a template, because there are two questions that arise. First, is this a situation in which it is justifiable to exclude the High Court supervisory jurisdiction? Secondly, have we drafted a provision that will work and have that effect?
In relation to the first, I think it is important to note that parliamentary sovereignty and the rule of law generally require that people should have access to courts to determine the lawfulness of action. There is a functional inconsistency between Parliament’s saying that there are limits to the powers of a body or person and, on the other hand, saying that that person or body can decide for themselves, effectively, what those limits are. That is quite apart from the importance of access to courts for the rule of law.
I approach this by asking whether this sort of exclusion of review is justifiable. On balance, I think it is, for a combination of reasons. First, because it excludes review of judicial bodies, not of administrative or executive agencies. Secondly, because the number of people who will suffer, although we can never be quite sure, looks as if it will be relatively small compared with the number of people who would suffer generally if we cut off all judicial review. Somewhere around 3.4% of these cases end up being successful, the Government estimate, compared with 30% to 50% in most other judicial review situations. Bearing in mind the need to use judicial time as efficiently as possible, it may be that this is not a proportionate use of judicial time, in which case one might say—although I say this with great disquiet—that the ouster is justified.
Does it work? Yes, I think it does, for roughly those reasons. Courts will not kick against it, given that the claimant will have had two bites at the cherry already before a judicial tribunal. Is it a template? I am not sure that it will be either necessary or perhaps effective to use this sort of thing in situations in which someone is getting review of other types of decision by other types of agency in different circumstances. For example, I note that in another Bill before the House, the Dissolution and Calling of Parliament Bill, there is an attempt to exclude judicial review of decisions concerned with Dissolution of Parliament and purported decisions. Clause 3 of that Bill does not go into any such elaborate provision as are provided here. Presumably, the drafter of that considers that it will work, because of the nature of the decision that is being considered.
Dr Morgan: My position—
The Chair
Very quickly, because four more people want to ask questions. We are running on time.
Dr Morgan: Very briefly, I broadly agree. I think this will work for Cart. I think the Government are mistaken to see it as any kind of template, and that they can put exactly the same words into another Bill about some other different matter and that it will work, because it is not only about the words that Parliament uses but the entire context. Sir Stephen Laws, himself a parliamentary draftsman, made just that point—that it is not only the literal meaning of the words but the whole context. That is why it will work in Cart, but it may not work in another statute, even if precisely the same words were used. I would not see it as a template or model.
Sir John Hayes
Q
Dr Morgan: There was a debate earlier about whether this should be described as tit for tat, which I do not like either, but doing it on a case-by-case basis. If you are not a lawyer and you read through the Cart judgments, you will see that it is all highly technical stuff about the number of appeals you should have within a particular structure. I have never heard anyone suggest that the judges in Cart were guilty of judicial activism. I think it is a relatively technical problem that has created a lot of expense and lots of hopeless judicial reviews, and the Government are taking action to address that.
I will not keep saying “sexier subjects”, but the more egregious examples of muscular judicial review have been mentioned earlier: Privacy International, the Prorogation case, and Evans v. Unison. There is a case for Parliament to reverse them. In my view, it has a constitutional right to do so if it wishes, but they should probably be taken one by one. Maybe we need a different Bill to do that, and the Government can tell us whether that is their intention, but the two clauses here deal with some real problems in a fairly unflashy way. Ouster clauses might be needed if we are to reverse the other cases, but I think that has to be debated separately. It is not really within the scope of the Bill at all.
Sir John Hayes
Q
On the issue of judicial activism, is this the right Bill to explore that, or are you suggesting, as you implied just a moment ago, that perhaps another piece of legislation will be introduced to deal with that in the light of the Evans case, the Miller case and the other cases that we have seen prevailing over a number of years? There is a challenge for democratic Government that needs to be addressed.
Dr Morgan: In my view, it would be a shame if the valuable things that are in the current Bill were lost because other things were put in that were frankly much more controversial. I am not the manager of parliamentary time; I do not know how easy it is to get another Bill going through. There is always a temptation—the Minister laughs—to tag things on, so maybe this is an opportunity not to be missed. I have read Richard Ekins’s list of desirable amendments, which would keep Parliament going for about five years, and with heated rows, if all those were put in.
Sir John Hayes
I will take that as an invitation to table some desirable amendments and probe the Government on exactly that matter. I am grateful.
The Chair
Professor Feldman, do you want to come in on that?
Professor Feldman: Only to say that I would not want to be thought to agree with the suggestion that there has been a sudden rush of judicial activism. Judicial activism is extremely difficult to define, and people who say there is a lot more judicial activism than there used to be tend to pick on a very small number of fairly high-profile cases over the last few years. It may be that there are more of those than one might have expected in the length of time passing. Having been involved in this subject for over 40 years, as I said before, it seems to me that there has been a process of gradual—it has been gradual—development of principles of administrative law and their application since the 1950s, so we are talking about getting on for 70 years.
Nothing has happened suddenly and things have not all gone in one direction; there has been progress in one direction and then a pushback. I suspect we may be going through a pushback at the moment, within the judiciary itself. Judicial activism is a term that I do not really understand and I would not want it to be the basis of legislation.
Sir John Hayes
Q
Professor Feldman: Thank you. I shall read it with interest.
Janet Daby (Lewisham East) (Lab)
Q
Dr Morgan: I think I just want to repeat what I said earlier, which is that it certainly could. To adopt Professor Feldman’s example, if the court suspends the effect of its order in an immigration case, you might have been deported by the time the order comes into force. Certainly it could cause serious problems for applicants in particular cases, but there are countervailing advantages, particularly where we are dealing with the general legislative scheme, which the court would otherwise immediately quash with retrospective effect. That could cause enormous difficulties in a very important area.
The Ahmed case was about quashing these freezing orders, made by requirement of the United Nations Security Council on suspected international terrorists. The court said that the whole legislative scheme had to be immediately quashed, as many Members will remember. It required emergency legislation to deal with it. In cases like that it could be beneficial, but it could cause a problem for a particular applicant. My earlier answer suggested how we might try and address it; Professor Feldman was right to say that damages and compensation are not always the answer, but they might be sometimes.
The Chair
Q
Professor Feldman: I will just say that lying behind this there is a difficulty that faces people drafting legislation like this. The onus is to be general and to apply to all kinds of decisions and rules, whereas, in fact, quashing a rule has rather different implications from quashing an individual decision, so the approach to it has to be similarly different.
Marco Longhi (Dudley North) (Con)
Q
Dr Morgan: The context was slightly different. You could say the ouster clause before us in clause 2 is less extreme, because it allows for JR on certain very narrow grounds. That is one reason why the courts would be more likely to accept what is now proposed than the Labour proposals back then. Of course, they were never even enacted, let alone reached the courts, so it will be a nice hypothetical question about whether it would have survived scrutiny or not. All it shows is that this particular question of having a huge volume of challenges, very few of which succeed, is not a new problem. It has been there for at least 20 years. Successive Governments have wrestled with it.
Cart was a very noble attempt to hold a balance, but even some of the judges who decided the case—Lord Brown and Lord Hope—have now accepted that their solution has not worked and perhaps a more drastic solution, as in clause 2, is justified. I think if the judges themselves are accepting that they went too far, that is something Parliament should take careful note of.
Marco Longhi
Thank you. I am glad that you referred to the words “less extreme” in your commentary.
Professor Feldman: I agree with what Dr Morgan said.
James Cartlidge
Q
Professor Feldman: That is a perfectly fair point. Success rates in judicial review are extremely difficult to assess. There have been some very good studies. The consensus that has emerged seems to be of between 30% and 50% success rates, which takes account not only of the favourable decisions from judges, but also of the favourable, or more or less favourable, out-of-court settlements of the claims, which allow litigants to withdraw their claims before they get to a full hearing. If it is 3.4% or so, that is, I would say, a significant but not huge figure.
The question for Parliament is: what amount of injustice should be contemplated as acceptable in the face of the shortages of judicial time? As the Supreme Court said in Cart, if you overload judges with a certain type of decision, less time is available for them to deal with other types of claims, which might be equally or more deserving. It is a really difficult question, but I think it is a fair one.
Dr Morgan: This is a deeply political question, because what it requires is a trade-off between expense, court time and the rational use of limited court time against the achievement of justice. We must not forget that sometimes Cart reviews do succeed. That means that there is either a point of law of public importance that the High Court has corrected, or that something has gone very seriously wrong with the facts of a particular case. Again, the High Court has given justice to the particular individual. The kind of cases we are talking about involve very vulnerable individuals. It was put rather well by Andy Slaughter on Second Reading:
“Cart reviews are a last-gasp defence for some of the most vulnerable people in the most desperate situations.”—[Official Report, 26 October 2021; Vol. 702, c. 230.]
In order to save money and economise on judicial resources, that is the cost that Parliament faces. In the end, that is why this is probably a question for Parliament, rather than the courts, because Parliament has the public purse, which the courts do not. It is very hard for the courts to make decisions which inevitably influence resource allocation.
That is not a criticism of the Supreme Court and Cart. Lord Dyson in Cart said something very interesting. He suggested that Parliament in 2007 should have addressed this question and failed to do it, and it now fell to the courts to do it instead. That was the suggestion in Cart itself; the courts felt they had been left to deal with some unfinished business in the 2007 Act. Well, the courts gave their answer and, in my view, Parliament is fully entitled to take a different view, but with the costs of it to certain individuals squarely in mind.
James Cartlidge
Q
I had the great privilege of attending the Lord Chancellor’s swearing in. One of the things he swears is that he will ensure that resources are provided to the judiciary. This is not just about public money per se; it is about time, which is incredibly precious. Arguably, there is a context which goes back some years which seems to recognise on both sides that this is disproportionate in resource terms.
Dr Morgan: I agree. This does not seem to be a partisan point. It is about how best to deploy the resources of the judiciary. I hope the judges have been consulted on this reform, but retired judges who speak on it in the House of Lords seem to be sympathetic to the objectives.
Dr Johnson
Q
Dr Morgan: The answer might be to a slightly different question. I refer the Committee back to some things that were said in Cart itself. Both Baroness Hale and Lord Phillips, two Presidents of the Supreme Court at different times, said the reason why there are so many immigration and asylum challenges is because people are desperate. Lady Hale said:
“There is every incentive to make the road as long as possible, to take every possible point, and make every possible application.”
She went on to say she did not blame people, because people are desperate, and we can hardly blame them for doing this, but she said that that was why there was such a problem. It does create a resource problem for the courts, because in the immigration and asylum system there is bound to be a huge number of applications, even if most of them are doomed to fail. In fact, Lord Phillips seemed to recognise that Cart was sowing the seeds of a great problem. He said:
“The stringency of the criteria that must be demonstrated will not discourage a host of applications in the field”.
He was the judge who came closest to saying we should not have had Cart judicial reviews, as they are now known, at all.
That is one reason why this creates such a problem: people will try every avenue to challenge a decision, even in a fairly hopeless case, for reasons that we can all appreciate. That is why I think an even more stringent approach than Cart is perhaps needed to close down the avenue, if that is what you want to do.
Dr Johnson
Q
Dr Morgan: The statistics that the Government presented in their response to the consultation used a criterion of success that I think answers your question. A successful Cart judicial review did not just mean that the High Court sent it back to the upper tribunal; you then had to win in the upper tribunal, so you actually had a good case on the facts. The Government came up with a figure of 3.5% success in that sense, so I do not think that they could be written off as legal technicality cases, although some people do successfully get a Cart JR and then fail when it goes back to a substantive hearing, and it could fairly be said that some of those are legal technicalities.
Members in the Second Reading debate referred to various case studies of actual live cases where something had clearly gone badly wrong and it was only a Cart JR that rescued it. I cannot remember whether it was 50 cases per annum or 50 cases in total—it is not a huge number—but in each case, it really matters to someone’s life.
The Chair
Are there any final questions? We are running short of time, but I will take one more if anybody wants to come in.
There are no further questions from Members, so I thank both witnesses for coming in to give evidence in person. It has been very useful indeed.
Ordered, That further consideration be now adjourned. —(Scott Mann.)
Westminster Hall
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Kurdish Political Representation and Equality in Turkey
(3 years ago)
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Westminster Hall is an alternative Chamber for MPs to hold debates, named after the adjoining Westminster Hall.
Each debate is chaired by an MP from the Panel of Chairs, rather than the Speaker or Deputy Speaker. A Government Minister will give the final speech, and no votes may be called on the debate topic.
This information is provided by Parallel Parliament and does not comprise part of the offical record
Dame Angela Eagle (in the Chair)
Before we begin, in line with updated guidance issued this morning, I point out that Members are expected to wear face coverings. Current Government guidance is that face coverings should be worn where there is a greater risk of transmission, which is now considered to be the case across the parliamentary estate. Everyone should maintain social distancing as far as possible on the estate, including in Committee proceedings where it is possible to do so without disrupting the conduct of business. The House of Commons Commission has now been advised that the risk of transmission in Committee meetings appears to be greater.
I remind Members that they are asked by the House to have a covid lateral flow test twice a week if coming on to the parliamentary estate. This can be done either at the testing centre in the House or at home. Please also give each other and members of staff space when seated and when entering and leaving the room.
Lloyd Russell-Moyle (Brighton, Kemptown) (Lab/Co-op)
I beg to move,
That this House has considered Kurdish political representation and equality in Turkey.
Thank you, Dame Angela. I thank the Backbench Business Committee for granting this debate, the title of which mirrors exactly that of the report of the all-party parliamentary group for Kurdistan in Turkey and Syria, which I chair. There are a number of members of the APPG here today. I look forward to discussing the report and to receiving some concrete responses from the Minister to the questions that the APPG has provided. I have sent most, if not all, of my questions to the Minister’s team in advance, because I recognise that this is not the Minister’s area. I hope that we will receive some concrete replies to those questions, and that other questions may be responded to through correspondence.
I will start by quickly giving some background about why the APPG settled on this topic, before I move on to the substantive issue. When I was elected in 2017, I was asked to go on a parliamentary mission to north- east Syria to meet our allies, the Kurds, and to see the state that they were building. I was the first British parliamentarian to visit Syria since the start of the civil war in 2011. I went back a year later with the hon. Members for Reigate (Crispin Blunt) and for Gravesham (Adam Holloway) to see the activities there. We found that, out of the ashes of a brutal civil war and then a conflict with ISIS, the Kurdish people and the people of the surrounding areas had built a democratic, feminist, multi-ethnic, secular confederalist society that aspired to educate its people. It was pro-LGBT rights and pro-disabled people’s rights. The Kurds were not only fighting ISIS with guns but fighting the ideology at its very core—standing against ISIS’s ideas.
Is everything perfect in north-east Syria? No. In conflict, people have to do difficult things. We must ally with those who have the best intentions and motives. We have seen in other conflicts that if we fund our enemy’s enemy, just for the sake of it, we sometimes get an even worse outcome. In the Kurds in Syria, we have not just a military ally but an alliance of minds and a modern, democratic, secular idealism.
After my two trips to Syria, we produced reports and had debates in Parliament. However, as hon. Members will know, geopolitics cannot be isolated to one country. The middle east is a tapestry of cultures, languages and identities, but years ago colonial powers divided the region, as they did much of the world, into modern nation states without a proper regard for all the people who lived there. The Kurdish people are one of the largest ethnic groups in the world without a homeland. Geographically, they are split between Iran, Iraq, Syria and Turkey. They have different challenges in each of those countries, and the scale of oppression has varied throughout history. We all know, of course, that Saddam Hussein murdered over 100,000 Kurds in Iraq in the 1990s, one of the darkest chapters of Kurdish history. However, today Kurds in Iraq have a relatively stable, successful regional Government, with autonomy from the Iraqi central Government, although that is not also without its challenges.
What I saw in Syria, however, was that, alongside the existential threat of Assad, Turkey had ended up taking a hostile approach to the Kurds in north-east Syria and at times was even resorting to pushing and helping jihadis along that border. To understand the motivations of Turkey—a supposed ally of ours—and why it was so hostile to a group of people who had helped to bring down ISIS, the APPG decided that it was important to return our focus to Turkey. Following a number of reports by previous Select Committees on Foreign Affairs and a parliamentary delegation observing political trials of Kurds in Turkey four years ago, it was felt that it was time to bring the focus back to the internal politics of Turkey and to see what had happened in the intervening period.
We therefore launched the inquiry almost a year ago, on 9 November 2020, and the terms of reference agreed were to ask the following questions. What are the main obstacles to Kurdish representation in Turkey? What are the relevant gender aspects to the crisis of Kurdish representation? What relationships do the Turkish Government hold with the Kurdish diaspora communities? To what extent can the UK Government influence policy on these issues, and what are the best means of support for consolidating democracy in Turkey, promoting peaceful co-existence and harmony in the region?
Those terms of reference were translated into Turkish and Kurdish, distributed widely in the UK and Turkey, and as chair of the APPG I and a number of others did interviews on Kurdish and Turkish television stations to promote the inquiry. We wrote directly to the ambassador to get his input. Although his response was short, I appreciate that he responded to our request.
As well as a call for written evidence, we held a number of oral sessions, which were roughly themed into the following categories: political representation, civil society, press, gender issues and, finally, the issue of the PKK, the currently banned Kurdistan Workers Party, which is the militant arm of the Kurdish struggle. Those are the themes around which I will structure today’s discussion, and they are also the themes on which our report, which Members will have received electronically, was structured.
The first session focused on elected officials, with MPs sitting in the Turkish Parliament giving evidence to us. One was from the HDP, the People’s Democratic Party, the majority Kurdish and progressive political party, and the other was from the CHP, the Republican People’s Party, the main opposition party in Turkey, but widely regarded as modern Turkey’s founding party.
I would like to read some of the testimony from the HDP witness. Hişyar told us:
“Over the last three weeks, I received four different, what they call, summary of proceedings”—
most of them were unfounded—which
“demanded to lift my parliamentary immunity so that I can be prosecuted. When my parliamentary mandate ends, all of those summaries will turn into court cases and I will be sentenced, or I will have to leave the country.”
There is a great deal of precedent for targeting MPs. In the past six years, the former HDP chairs were arrested for alleged connections to the PKK. Part of the Government’s case was that they had used the words “Kurds” and “Kurdistan” in public speeches in 2012. The other citation in the case was that they had been involved in the creation of the PKK. The PKK was created in 1978, when both the co-chairs were five years old. We can clearly see that this does not seem to stand up to fair and due process.
John Spellar (Warley) (Lab)
I congratulate my hon. Friend on securing this debate and on his work in keeping a light shining on this sometimes forgotten struggle. Is not the important thing here that the HDP and other groups that may just disagree with the current regime are being denied their democratic rights and are being attacked? While we should have no truck with terrorism, should not NATO, and Britain through NATO, put pressure on the regime, as a member of NATO, to hold to democratic values? After all, that is what NATO was founded on.
Lloyd Russell-Moyle
I totally agree. NATO and the Council of Europe, both of which we and Turkey are members of, need to be holding Turkey to greater account. I also totally agree with my right hon. Friend that we should have no truck with terrorism. But an expansive approach including anyone who just shares the ideals of self-determination is not helpful in the fight against terrorism, because it makes a mockery of the whole system. I will come on to that in the final part of my speech.
In December 2020, the European Court of Human Rights ordered the immediate release of the chairs and other Members of Parliament and a suspension of their trials, saying that they was politically motivated. That ruling is now wilfully ignored by Turkey. In addition, the European Parliament passed, by 590 votes to 16, a motion saying that they should be released.
The testimony is supported by the “World Report 2020”, published by Human Rights Watch, which states:
“Cases against HDP politicians provide the starkest evidence that authorities bring criminal prosecution and use detention in bad faith and for political purposes.”
The 2020 Parliamentary Assembly of the Council of Europe resolution dealt with the political crackdown on political opposition, highlighting how immunity for politicians had been stripped away from 2016 onwards.
We have debated this issue previously in this place, and I commend my hon. Friend the Member for Enfield North (Feryal Clark) for securing a previous debate about political representation in Turkey and the fate of some of the HDP politicians. It is clear that this is an organised targeting of opposition MPs just for calling for autonomy or self-determination for majority Kurdish areas. Previously it had been an attack on HDP MPs, but recently and worryingly it has been extended to CHP Members of Parliament. The CHP is no Kurdish-flag-waving party. Many Kurds will say that the CHP is part of a state that helped to lay some of the foundations of difficulties. But many CHP members now choose to speak out on the moral and correct thing, which is the ability of people to partake in democratic life. And the idea of supporting Kurdish autonomy and self-determination seems to be all that is now required to trigger an accusation of terrorism or subversion. That is a dangerous precedent.
We not only heard from MPs in Turkey; we also took evidence from municipal leaders, one of whom was elected a mayor but is now in exile in Greece. The APPG heard that since the last local elections in 2019, 59 of the 65 elected municipal leaders have been replaced by Government-appointed trustees. A human rights report quoted in our report says:
“Regardless of which party or candidate they voted for, the will of…more than 4 million…voters living within the boundaries of 48 municipalities”
has been
“seized through the appointment of trustees.”
Our inquiry also took evidence on the closure of the Democratic Society Congress—the DTK—an organisation bringing together politicians and civil society that advocates not separation but confederalisation in Turkey, and that is its crime. Actions taken have included the arrest of its leaders, as well as the targeting of the Kurdish political youth organisations. One refugee is in my constituency because of the persecution he faced.
On Kurdish political representation, the APPG made nine findings. I will not read them all out, but I will mention a few. We found that trials have been increasingly conducted in closed central courts in Ankara and not the open divisional courts in the home provinces, making a defence harder for a Member of Parliament. The APPG also found that there have been routine cases against 154 MPs—154 MPs have received indictments; this is not just a few people who have done objectionable things —and that the legal proceedings are being used to tackle political disagreements, which in turn disproportionately affects Members of Parliament from Kurdish backgrounds. We also found that the human rights of municipal leaders are violated routinely by detaining them pending trial or sentencing them to prison on trumped-up charges.
Our report was 56 pages in total, with 32 recommendations for the UK Government. We received comments based on the first-hand experience of MPs, mayors, civil society and women’s organisations, and I sent the report to the Minister in July. I received a one-and-a-quarter-page reply, the substantive part of which said:
“We were concerned by recent reports of increased violence in the region and the Minister for the Middle East and North Africa tweeted on 1 September calling for de-escalation.”
Is a tweet really the maximum amount of our diplomatic effort? It would be nice to know more about what the Government have been doing. Over hundreds of hours, we collected work on the report and made concrete recommendations. I would like the Government to give some concrete responses.
Will the Minister and the Government demand the release of the HDP co-leaders, in accordance with the decision by the European Court of Human Rights in December 2020? Will she condemn the closure of the DTK and remind the Turkish Government of their previous commitment to find a peaceful solution to the ongoing conflict? Will the Government push the Turkish Government to accept the revised European charter on the participation of young people in local and regional life, which is a Council of Europe charter for young people, so that it applies to young people in Turkey? Finally, what will the Government do to press the Turkish Government to uphold the rule of law and democratic principles in Turkey?
I now turn to the issue of discrimination through language and culture. Having gone through the first section of my speech, I will now try to rattle through the other sections. The inquiry received evidence from the Education and Science Workers’ Union in Turkey, which had conducted its own report. It stated that 200,000 children in Diyarbakır alone and 6 million children in south-east Turkey were being denied an education entirely or being forced to learn exclusively in Turkish and not their mother language. This is, of course, a denial of human rights, and it also makes it impossible for children to be helped in their studies by their parents or caregivers, which puts them at an immediate disadvantage as they grow up.
The inquiry also received a report from the Kurdish Language and Culture Network, which suggests that there had been enforced and targeted discrimination against the Kurdish community, particularly where they had expressed their culture in language and other traditional practices. We found that in the last five years 57 Kurdish cultural institutions and organisations had been closed down, including theatres, just for staging plays in the Kurdish language.
Will the Government condemn the Turkish Government’s decision to close multiple institutions that uphold Kurdish cultural life? Furthermore, what steps will the Minister take to raise this issue with her Turkish counterparts? Will she discuss the support that the British Council could offer in Kurdish-English work and co-operation?
I turn now to gender-based oppression in Turkey. Historically, Turkey has retained a low representation of women in its Parliament. In 2020 the World Bank calculated that 17% of seats were held by women, which is below the global average of 25%. The HDP operates a co-chair system, whereby a man and a woman co-chair the party and many municipalities. The HDP maintains a quota of 50% female candidates and, I think almost uniquely for any political party in the world, 10% of Members must come from the LGBT+ community. That means that repression of Kurdish and Kurdish-supporting MPs has ended up disproportionately affecting women and LGBT+ people, because they are disproportionately represented—not disproportionately according to the population, but in the Turkish Parliament.
The practice of having co-chairs has even been cited by the Turkish Government as evidence of links to the PKK, which was the first to use the co-chair system. That is further evidence that the expansive practice of just sharing any similar idea or practice with the PKK will mean that an organisation is branded as terrorists. It is clearly ridiculous.
It is not just the HDP that has been targeted in a gendered way. The Free Women’s Congress and 49 other women’s organisations were closed down in the state of emergency that was declared in 2016. As a result of that declaration, the bank accounts of many of these women’s organisations were closed, making it impossible for them to continue to operate.
In the evidence submitted by the TJA—the Free Women’s Movement—the Kurdish women’s organisation, it stated that in 2020, 2,520 women reported to non-governmental organisations cases of physical and gendered violence, 775 women applied for shelter, and 113 women reported cases of sexual assault. In the 18 years that the AKP has been in power, femicide in Turkey overall has increased by 1,400%. That is a shocking amount.
Alex Sobel (Leeds North West) (Lab/Co-op)
I thank my hon. Friend for securing this debate and making an excellent speech. The issues he is raising are really important, and are ones that the Prime Minister has spoken about in a UK context. However, there is no evidence that the Prime Minister, when he met the President of Turkey at the NATO summit or, more recently, the G20—I do not know whether he had a bilateral at this weekend’s G20—discussed any of these issues. The main issues on the agenda seemed to be tourism and vaccines, but nothing about Kurdish rights or the rights of women in Turkey.
Lloyd Russell-Moyle
It is very worrying. During our report, the Turkish Government withdrew from the Istanbul convention—it is slightly ironically named now—which is about the prevention and combating of violence against women and domestic violence. The convention had only come into force in Turkey in 2014, and we are yet to see any strong diplomatic effort from the British Government to really condemn that.
The evidence that the APPG took shows that the situation is becoming dire for women, so may I ask the Minister what support the Government will give to international organisations aiding women in vulnerable situations in Turkey? What steps is she taking to ensure that the UK Government aid is directed to women-led organisations in Turkey, and that that aid reaches majority Kurdish areas? Will her Government call in the strongest terms for Turkey to rejoin the Istanbul convention and fully implement it?
Turning to freedom of the press, the APPG heard from a journalists association, and those who gave evidence said that it becomes harder to work every day with the intimidation that they face. In October 2020, five journalists were arrested for publishing a news article about two tortured civilians from the city of Van. They were flown in a helicopter and then thrown out—one of them to their death, the other very seriously injured. The governor of Van said that the people who threw them out were acting for the PKK. That is disputed, but either way, the reporting of the action should not see a journalist arrested. Some of these journalists have now been released, but still have international travel bans imposed against them, and others remain in jail awaiting trial.
There are attacks not just on individual journalists, but on publications and radio stations in Turkey. The APPG received evidence that “following the state of emergency” 62 newspapers, 24 radio stations, 19 magazines and 29 publishing houses had been shut down. In total, 177 media organisations were shut down, and 2,500 journalists were repressed, restricted or out of a job.
According to Amnesty International, one third of all the world’s jailed journalists are imprisoned in Turkey. That is a disgraceful statistic, so may I ask the Minister: will the Government condemn the measures to restrict freedom of speech implemented in Turkey and remind the Turkish Government that criticism of the Government —criticism of any Government—is a fundamental aspect of the public’s right to participation? What will the Government give to support journalists so that they are able to uphold their freedom of speech?
Finally, I will turn to the PKK, but before I do, please may I ask this? I know that in much of the correspondence Ministers are focused on the PKK element, but the other elements are really important for me and I really want a strong focus on them. That was one of the reasons why I was initially nervous about raising the PKK issue at all. I thought that maybe we should just ignore it. The problem is that, as we heard evidence, it became clearer and clearer that we cannot delink these issues, because of the Turkish Government’s expansive view of what supporting the PKK is. As I have mentioned, journalists, politicians and other civil society actors are routinely accused of terrorism if they support the wider beliefs of the PKK.
Without getting into a debate on the nature of terrorism, it is clear that terrorism that has the aim of national sovereignty is a slightly different beast from terrorism that aims to impose fundamentalist ideology on a reluctant people, but the age-old debate about whether someone is a terrorist or a freedom fighter has been debated over decades in this place. However, there is a set of international definitions of what it means to be a terrorist and the legal consequences of acting in a terrorist manner. Those that do so should be prosecuted and proscribed, but the UK Government already make a distinction for Turkey. They recognise that the YPJ and YPG—the Kurdish units in the Syrian defence forces—are not terrorists but are anti-terrorist in their nature. Although the Government call on them to distance themselves from the PKK, they recognise that, in reality, many of their views, and some of their activities and training, are shared. That has been recognised in the British courts, and the Government have rightly diverged from the Turkish Government, who still regard the YPG and YPJ as terrorist organisations. The Turkish Government are so obsessed with the YPG and YPJ but they have supported jihadis who are often proscribed in the UK.
I have mentioned the Turkish Government’s expansive definition of terrorism: anyone who supports Kurdish political leaders or even just gender equality. It becomes an extremely slippery slope. Therefore, will the Minister make it clear that supporting Kurdish aspirations for some form of autonomy, supporting Kurdish political leaders, or even supporting those who have renounced violence and who call for dialogue should never be a reason for someone to be fearful of an accusation of terrorism? I do not ask the Minister that for an academic purpose; I do it because recent cases in Belgium, and potential cases in other European countries, show that the Turkish Government are increasingly and proactively trying to persuade their so-called NATO allies to prosecute those who support the Kurds. That is producing a chilling effect in Kurdish communities in this country and around Europe. Any listing must be based on evidence of indiscriminate violence, a determination to undermine and destroy democracy, and an intolerance of other people’s views.
The second line of defence in the Belgian court case, where the Supreme Court failed to convict the defendants for running a Kurdish newspaper and radio station, was that they were simply not terrorist acts, and that the listing of the PKK was based on information that had been discredited. I have a list here but will not go through it, because I know my time should have been up already. Here is the list of the pieces of evidence that were given to the European Union in the listing of the PKK. One can go through each one of them and show that they are not acts of the PKK. A number of them have been acts of the Turkish police force or Turkish army, and Turkish courts have prosecuted Turkish authorities for such acts, but they are still listed as PKK acts, even though Turkey and its courts recognise that they are not. There needs to be a review of this situation, as the Turkish courts have shown.
More interestingly, the Belgian court case and the APPG heard from the lead defence lawyer. The court upheld their defence on the first point: that the PKK are a national movement of self-determination in a legal civil war. The treaties on definitions of terrorism that Belgium has signed up to are the same treaties as Britain has signed up to. All bar one explicitly say that if civil war actors are covered by the laws of war, they cannot be regarded as terrorists, and the one that does not mention that is just silent about all definitions. That is of course quite right; it is to stop anyone just labelling their opponents as terrorists when there is a legitimate internal conflict taking place. Under the Geneva and Hague conventions, the laws of war outline the requirements to be classed as an actor. One of the things is a command structure, and another might be an identifiable uniform. Suffice it to say that the Belgian Supreme Court found on all counts that the PKK fulfilled those requirements. Therefore, it could not be classed as a terrorist organisation. In finding that the PKK was involved in a belligerent and internal conflict, the court struck down the terrorist listing.
The same process also happened in the European Court of Justice, where a Europe-wide listing was struck down, and the justices found that the PKK had not met the European or international listing definitions. Although we are not a member of the European Union, the laws of war that interpret treaties are now directly part of our domestic laws and we are signatories to the international treaties that they interpret.
A quirk of terrorism law is that organisations are proscribed at the European and international level annually, so although they have been struck down from previous listings they are currently listed, and the courts are now going through a process of striking down their current listings, adding them again after the case, but of course no new evidence has been provided as to why they should be re-listed. That makes a mockery of the proscribing process, with people being arrested and prosecuted for being part of a proscribed organisation, only to find midway through their trial that the organisation is no longer proscribed.
The British Government need to re-look at the case for the proscription of the PKK and take into account the latest evidence from the Turkish courts and the terrorist acts that were not committed by the PKK but by others. The Belgian and European courts have said that they should be classed as internal belligerents, not terrorists.
A strong fight against terrorism can be achieved only if the listings that the Government maintain are accurate and not liable to change. Will the Minister commit to conduct an immediate review with her Home Office counterparts and report back to this House? To those who say that designating the PKK as a belligerent might give credence to those that target civilians, I say that the crime of targeting civilians in war under the Geneva and Hague conventions is a more serious crime with a higher prosecutable level in international courts and a higher punishment than the crime of terrorism, so de-listing and classing them as belligerents provides less incentive for civilian attacks.
If we are to seek peace in Turkey, we must see how organisations can go from being classed as terrorist to seeking political solutions through political aims. The UK’s role in Colombia, although not perfect, and incomplete, shows how the FARC could be brought into a mainstream political discussion. If we look at our history in Northern Ireland and the African National Congress in South Africa, each is different and unique, but each had a process that has ended politically and not violently, and that is what we all want to see in Turkey.
Finally, what serious discussions have the Government had with Turkey about restarting the peace negotiations? What practical support have the Government given for domestic and international channels for the discussions? What role do the Government see in third pillar negotiations between civil society actors, trade unions and women’s organisations to ensure a peaceful settlement of the conflict? Although the death toll might not be large, the APPG found that political representation was high and increasing. It found that the basic principles of democratic freedom were being undermined, and terrorism laws were being misused to shut democratic spaces rather than keep them open. The APPG and I are sure that Members here today would like to work co-operatively with the Government. I hope that we might be able to get fuller responses to the APPG in time.
Dame Angela Eagle (in the Chair)
I intend to call Front-Bench speakers from 10.28 am, so anyone who wishes to contribute should please bear that in mind.
Kim Johnson (Liverpool, Riverside) (Lab)
It is a pleasure to serve under your chairship, Dame Angela. I thank my hon. Friend the Member for Brighton, Kemptown (Lloyd Russell-Moyle) for securing this important debate, and I welcome the APPG report on Kurdish political representation and democracy in Turkey. I want to start by sending my solidarity to the Kurdish people, who have shown such strength and resilience in their resistance and struggle for liberation, autonomy and democracy.
The recent escalation of human rights abuses and anti-democratic manoeuvring by the Turkish Government against Kurdish communities and elected representatives is highly concerning. Hundreds of Kurdish activists, journalists, MPs and mayors have been arrested by the Turkish Government. Turkey’s increasingly oppressive regime has jailed more journalists than any other country in the world. More than a third of journalists jailed globally are held in Turkey. Arbitrary detentions, torture and abuse against journalists have become an everyday practice in Turkey, and press freedom is virtually non-existent, with media ownership concentrated in the hands of Erdoğan and his supporters. A Media Monitoring report last year showed that one in six journalists in Turkey have an ongoing case against them. Only six of 65 democratically elected HDP mayors remain in office. There have been high-profile arrests, such as that of Leyla Güven, who was sentenced a year ago to 22 years on terror charges, and this summer had her visitation and telephone privileges revoked for singing Kurdish songs in prison.
The fact that Abdullah Öcalan is still imprisoned on Imrali island, without fundamental rights being met, is nothing short of an outrage. The escalation by Erdoğan and the Turkish state, particularly since the attempted coup in 2016, with the arrests of hundreds of activists, journalists, mayors and MPs, is morally contemptible and undermines any attempts to broker a just and sustainable peace process.
Britain has a powerful role in holding Turkey to account on human rights and its violation of international law and the European convention on human rights. We must be bold in our demands to put an end to these injustices, to protect political representation and inalienable human rights and to ensure peace and stability for all communities living in Turkey.
I want to focus in particular on the report’s recommendations to revisit the automatic listing of the PKK as a terrorist organisation, especially considering the outcome of the case in the Belgian Supreme Court, which found that the PKK was a legitimate combatant in a civil war, rather than a terror organisation. That historic ruling must have significant ramifications for our Government’s position. I call on the Government to take up the report’s recommendations to review the listing of the PKK as a terror organisation in the light of that evidence. Britain has a significant amount of power to progress the conditions for a return to peace talks, both as a unilateral actor and through European institutions.
I am proud that the UK Labour movement stands resolutely with the Kurdish people. I welcome the work by the all-party parliamentary group for Kurdistan in Turkey and Syria on the report, which contains a number of important recommendations. I call on the Government to do everything in their power to adopt the recommendations, hold Turkey to account as our ally and take urgent steps to secure progress towards resuming peace talks.
Feryal Clark (Enfield North) (Lab)
I thank my hon. Friend the Member for Brighton, Kemptown (Lloyd Russell-Moyle) for securing this important debate. I will focus my comments on the role of the Turkish Government towards the Kurdish community.
Sadly, the issue of representation and equality for Kurds in Turkey is not new. The systemic abuse of the Kurdish community has continued unchecked for far too long. My parents were forced to flee Turkey in the 1980s, due to the systemic abuse faced by the Kurdish community. When I was growing up it was illegal to learn or speak Kurdish. That was changed in early 2000, as Turkey was going through accession discussions with the European Union, but the Government still use various spurious means to prevent the Kurdish community from being able to speak or learn Kurdish.
It is a shameful mark of the lack of progress that Kurds have continued to feel the need to leave their homes, and that the attitude of President Erdoğan’s regime shows no sign of changing. The discriminatory attitude of the Turkish Government is entrenched by President Erdoğan’s persistent interference in the courts, creating a judicial system that has become institutionally prejudiced against Kurds and other minorities in Turkey.
That executive interference in the judiciary has been reflected in the systemic practice of detaining, prosecuting and convicting on bogus charges individuals that the Erdoğan Government regard as critics or political opponents. Terrorism charges continue to be widely misused to restrict the rights to free expression and association. Defence lawyers in such cases have faced arrest and prosecution on the same charges as their clients. Among those targeted, as has been said, are journalists, Opposition politicians and activists, in particular members of the pro-Kurdish People’s Democratic party, the HDP.
Selahattin Demirtaş, the former co-chair of the HDP, has been held in prison in Turkey since 2016 and the European Court of Human Rights has called for his immediate release, but no action has been taken by the Turkish Government. Further, I remain deeply concerned about the rise in allegations of torture, as well as cruel and inhumane treatment, especially of female detainees in police and military custody and prison over the past four years. Prosecutors do not conduct meaningful investigations into such allegations and there is a pervasive culture of impunity among members of the security forces and the political officials implicated.
Erdoğan’s regime refuses to distinguish between the PKK and the democratically elected HDP, which won 11.7% of the national vote in the 2018 parliamentary elections and 65 local municipalities in the 2019 local elections. Since August 2019 the Interior Ministry has removed 48 elected HDP mayors, on the basis that they face criminal investigation and prosecutions for links to the PKK. Repeating the approach taken in 2016-17, the Government have replaced mayors in the south-east with Ankara-appointed provincial governors and deputy governors as trustees.
In sharp contrast, the HDP’s pluralist and inclusive platform has resulted in its popularity among diverse groups in Turkey. The inclusion of minority groups, including Kurds, as well as Alevis, Armenians, the LGBT community, women’s rights organisations, secularists and other ethnic minorities such as Yazidis and Assyrians, has been key to expanding the HDP’s appeal. The success of the parties pursuing that agenda shows that there is real appetite on the ground in Turkey for a movement away from the regressive attitude pursued by Erdoğan’s regime.
While movement towards those positions by parties such as the HDP is crucial, it is key that, in addition to efforts made from within Turkey, the international community also uses its influence to support people on the ground. I welcome the work of the European Court of Human Rights and the Office of the High Commissioner for Human Rights in recent years to highlight the persistent erosion of Kurdish rights in Turkey, and call on the UK Government, alongside international partners, to continue to put pressure on their Turkish counterparts. I am sure the Minister will set out the UK Government’s fantastic relationship with Turkey and the significant role that Turkey plays within NATO—it has been repeated before.
However, I have asked before and I ask again: as allies, surely we should be calling on Turkey to stop the abuse and persecution of Kurds and Kurdish politicians. If we cannot ask our friends to stop this, how do we deal with the less friendly nations? How much longer will the UK Government stand by and let this disregard for human rights continue? The rights of Kurds and other minorities in Turkey have been at best ignored and at worst abused, for far too long. It is time for change. I urge the Minister to take note of the 32 recommendations set out in the APPG’s report and call on Turkey to stop the persecution of Kurds and come to the table to negotiate for a peaceful solution to the Kurdish question.
Crispin Blunt (Reigate) (Con)
It is a pleasure to serve under your chairmanship, Dame Angela, and to follow the comprehensive introduction to the all-party group’s report from its chair, the hon. Member for Brighton, Kemptown (Lloyd Russell-Moyle), with whom I enjoyed—and “enjoy” is the right word—an interesting visit to north-east Syria, seeing the Kurdish statelet there at the time. It is incredibly instructive to be on the ground and to see the effects of the attempt to put a new philosophy—the Öcalan philosophy—into action in the most difficult and challenging of circumstances.
I do not intend to speak for long, Dame Angela, because it is important to hear from the Minister. If we really wanted to torture the Minister, the rest of us here would give her longer to respond on the exquisite issue of British-Turkish relations and exactly what balances the United Kingdom needs to strike, which are matters of enormous difficulty. She will probably get just her 10 minutes and will not have to twist on the spit of having to represent her colleague, the Under-Secretary of State for Foreign, Commonwealth and Development Affairs, my hon. Friend the Member for Aldridge-Brownhills (Wendy Morton), within whose brief this issue formally sits. I do recognise her difficulties.
We are at the stage of trying to establish the values of global Britain. What does this nation stand for now we have left the European Union? It is a moment to define the values we will stand up for. That is why we ought to carefully review relations with Turkey and examine what message we will send, so we do not get ourselves into a place where we are too contradicted in what we are trying to say and in the differentiation of the messages we are trying to send.
Plainly, the relationship with Turkey is critical and central for the United Kingdom going forward, as we are both major powers on the periphery of Europe. However, we cannot ignore the fact that that nation has locked up more journalists than any other nation, nor its conduct and policy towards the Kurdish minority. That was examined to a degree in the report by the Foreign Affairs Committee when I was Chair, it has been looked at again in the report by the all-party parliamentary group for Kurdistan in Turkey and Syria, and it was the subject of a letter to the Foreign Secretary that I co-wrote with the right hon. Member for Leeds Central (Hilary Benn), which was signed by 64 colleagues. That letter raised our concerns about Turkey’s conduct in respect of human and political rights—an area where I do not believe Turkey to be acting in her own interest.
The Foreign Affairs Committee report that was published in 2017 identified that as a central challenge for the President of Turkey. In what direction was he going to take Turkey? He had an opportunity then, and he has an opportunity now with Abdullah Öcalan as his prisoner, who has ceased to have any aspirations for Kurdish independence. If one looks at the Kurdish minorities in the other main countries where they appear—Syria, Iraq and Iran—it is plain that any aspiration for a greater Kurdistan is, frankly, for the birds at the minute. It is not even an aspiration that is front and centre of most Kurdish discussions. The referendum in Iraq was a total disaster for the Kurds and now seems a profound mistake. Even the Kurdish Syrians we went to see in north-east Syria had to take Syrian protection, in effect, in the face of the threat that came from Turkey in the north.
I look forward to the reply from my right hon. Friend the Minister and to hearing if some of the balances expressed by her predecessors, in answer to such debates, have begun to shift and if we are now beginning to say something more robust about what global Britain stands for, or if we cannot say anything about our relationship with Turkey and the pretty dreadful things going on in regard to the values we ought to share with the Turkish Government, who have plainly gone very badly wrong and are not seeking the opportunity to find a route to peace in the PKK-inspired civil war.
I concur with the points that have been expressed about closely questioning the PKK’s terrorist designation. It is designated a terrorist organisation because Turkey has asked us to do that. Frankly, that is not adequate and needs proper examination, if possible in our courts, to see if they would come to the same conclusion as the courts of Belgium. I look forward to the Minister’s contribution to see if matters are now moving in a more satisfactory direction in respect of the values we seek to stand for.
Alyn Smith (Stirling) (SNP)
It is a great pleasure to follow such a thoughtful contribution from the hon. Member for Reigate (Crispin Blunt), and I associate myself with his questions. I also warmly praise the hon. Member for Brighton, Kemptown (Lloyd Russell-Moyle) for an excellent report and contribution to this debate. I am very pleased to see so much consensus across the Chamber on this really important issue. I give the apologies of my great colleague, my hon. Friend the Member for Glasgow South West (Chris Stephens), who has been detained on other business, but who is also an active member of the all-party parliamentary group on the Kurdistan region in Iraq and is deeply concerned with Kurdish affairs. His colleague, Roza Salih, is a representative of the Kurdish community in Scotland, and has been very active on these issues.
I was struck by the point about global Britain needing to work out what it stands for. I am in the fortunate position that I know very well what the SNP stands for: we are a democratic party; we believe in the rule of law and democracy; we support the right to self-determination; and maybe we are more relaxed about constitutional change than other parties—if we look at the broad sweep of history, constitutional change happens. As long as that constitutional change is done democratically and peacefully, with the full engagement of the communities within those territories, it is not something to be feared. We believe that the people choose their Governments, and that the people should define their states. We also deal with the world as it is. Repression of those demands can only lead to a bad place. This is what we see in the middle east. Everything is an accident of empire: if we look at the lines on the map across the entire middle east, it was somebody’s empire and somebody’s mistake that led to this.
To my mind, the lack of an independent Kurdistan is also an accident of history. The fact that the Kurdish people are spread across Turkey, Syria, Iraq and Iran leads to a very unstable situation. As President Barzani of the Kurdistan Regional Government said when I last met him in Irbil, it is a tough neighbourhood. As outsiders who are friendly to all parties within the region, it is incumbent on us to look at the widest perspective possible and to stick to values rather than interests of the state, which may change over time.
Regarding Turkey in particular, we have to be blunt. Turkey is an important ally, but the actions of the Turkish state vis-à-vis the Kurds fall well below the standards we should expect of a Council of Europe member, a NATO ally and a friend of Scotland and the United Kingdom. A state can be judged by the way that it treats minorities. As I have said, Turkey is an important ally and a member of NATO; it deserves great praise for the safe haven that it has given to millions of refugees from the conflict in Syria and Iraq, with European and UK support. It is an ancient culture and a wonderful place to visit. It is a fantastic place that is presently being governed badly. It is also illegally occupying part of an EU member state in Cyprus. It is increasingly autocratic; it jails journalists. As we have heard, a third of the journalists jailed worldwide are in Turkey. In its treatment of the Kurds, it has embarked on a decades long campaign of oppression.
Closing down democratic dialogue can never work. Closing down democratic dialogue with aspirations of self-determination can only lead to a bad place. In March this year, as we have heard, the Turkish state banned the People’s Democratic party, the HDP. I remember expressing concern in the European Parliament in 2009, when the Democratic Society party—the HDP’s predecessor—was similarly shut down. This is a long-standing campaign from the Turkish state to shut down the legitimate aspirations of the Kurdish people, and to shut down debate. This is a deliberate pattern. The most recent ruling banned 600 HDP party members from participating in politics for five years, and the HDP co-chairs, Selahattin Demirtaş and Figen Yüksekdağ, have been jailed. I was lucky enough to meet Ms Yüksekdağ in Edinburgh a few years ago; the idea that she is involved in terrorism is, flatly, risible. She is a political prisoner.
I am conscious that the Minister is sitting in for other Ministers, and I am also realistic about the leverage that the UK has over the Turkish state—that needs to be said. I feel for the Minister and view her as a colleague in this discussion. However, I do have some questions. I would be grateful for an update on what the UK Government have done to press for the release of political prisoners, like the two HDP co-chairs, but there are plenty of others. On arms export licenses, the UK has sent £212 million-worth of materiel to Turkey. What human rights assessment has been made of those arms exports, and what reassurance can we hear that those arms have not been used in the oppression of the Kurdish people? I am happy to have the answer in writing, if not today.
More widely, and this is an honest offer as much as it is a question, what efforts have been made by the UK Government to promote dialogue between the Kurds and the Turkish state? I would say that Scotland offers a model, in that we have a devolved system of government within these islands. Obviously, Scotland’s history is completely different from that of the Kurds. We were an independent state for far longer than we have been part of Great Britain. We have a different political culture here and in Scotland. However, there is a need for an honest outside broker in this discussion. There is a need for outside scrutiny. This is not just an internal matter for the Turks to rule on for themselves.
If the Minister is looking for resources, we have plenty in Scotland. We have excellent NGOs, like Beyond Borders Scotland, that are well used to facilitating dialogue and have previously been active in Kurdistan. We have a civil society and a political culture that would be ready and quick to help.
Speaking frankly, there is always a degree of hypocrisy in international relations. The question for the UK Government is: are we on the right side of the line? We must be much more vocal about the deficiencies of the Turkish state, the oppression of the Kurdish people and the right of the Kurdish people to more international support than they have had. If the Minister agrees, she will have the total support of the SNP.
Catherine West (Hornsey and Wood Green) (Lab)
I am pleased to speak in this debate under your chairship, Dame Angela. Like everyone else in the Chamber, I look forward to hearing the Minister’s response. I also put on record my thanks for the moving speech from my hon. Friend the Member for Enfield North (Feryal Clark), who is of course the first Turkish woman to be elected to the House of Commons. The fact that she grew up in Turkey as a Kurd adds a special poignancy to today’s discussion.
I also put on record my thanks to my hon. Friend the Member for Brighton, Kemptown (Lloyd Russell-Moyle). The topic of today’s debate is his expertise—his special subject. He is a continuing and passionate campaigner for the Kurdish people. The rights of minority groups across the globe are not debated in this House often enough, but it was due to the diligence of his inquiry and the hard work of all the members of the all-party group that he gave such a detailed speech on the findings of his report. It was excellent.
The debate today could not come at a better time. Only yesterday, I received a copy of a letter sent to the Foreign Secretary by the UK Civil Society Women’s Alliance international working group, which outlines their serious concerns about the ongoing pattern of detention and the unfair trials of activists, particularly those from the Kurdish minority, and includes specific examples of those who have been detained.
We know from the contribution of my hon. Friend the Member for Leeds North West (Alex Sobel) about the 1,400% increase in femicide in Turkey, on which the report of the APPG chaired by my hon. Friend the Member for Brighton, Kemptown commented. That level of abuse against women must be taken seriously. I am very keen to hear the Minister’s thoughts and what action the Government are taking in relation to the Istanbul convention. Dame Angela, you will remember the intense discussions that we had in the House about the convention. In fact, it was the subject of an Opposition day debate. We all came in and made speeches. Every hon. Member was concerned, of course, that our own Government should ratify the Istanbul convention, but crucially it was women from the region we are discussing who raised this very concern. I hope that we will hear some encouraging news on that point from the Minister.
As we have heard from hon. Members across the Chamber today, this is not a new issue. Many right hon. and hon. Members have asked questions in the House about Kurdish people in Turkey, and specifically about the discrimination and repression that they face and have historically faced, not least in the form of military action and the curtailing of their cultural freedoms. The hon. Member for Reigate (Crispin Blunt) talked about a robust definition of global Britain; that must surely include an answer to the question of what our role is. Personally, I found it a little troubling that, following the Brexit vote, the first excursion that the right hon. Member for Maidenhead (Mrs May), the then Prime Minister, made was to Turkey to shake hands with the President and to sell more weapons.
As the SNP spokesperson, the hon. Member for Stirling (Alyn Smith), said, we need assurances that our own manufactured weapons are not being used for internal repression. I know that that is an element of the way that our procedures work, and that my hon. Friend the Member for Brighton, Kemptown has expertise in this area. However, we seek assurances that those weapons are not being used for any violence against Kurdish people in Turkey.
Obviously, the Kurdish communities in Turkey are not a single homogeneous bloc. Some Kurds have even served as senior Government Ministers in the AKP Government. That said, the Kurdish minority as a whole, and particularly those who support the Opposition in Turkey, experience appalling levels of discrimination, which have no place in a democratic society. We have heard of the detention and removal of dozens of Kurdish and Kurdish-supporting regional mayors—48 regional mayors have been arrested—and of the removal of 154 lawmakers in Ankara. Imagine if 154 MPs were locked up here—imagine the outcry! The political voice of pro-Kurdish political parties is being eroded by the current Government and, with it, the democratic wishes of the Kurdish people are being ignored and attacked.
We heard about Mr Demirtaş, and his ongoing imprisonment, from my hon. Friend the Member for Enfield North. What specific representations has the Minister made to President Erdoğan in relation to Mr Demirtaş, and can we expect his release any time soon? What representations have been made about the abuse of courts by the Executive over what should be a legal matter, rather than something where the Executive are overruling the courts?
The greatest example of the ongoing attack against the Kurdish people is the attempt by Turkish authorities to outright ban the HDP itself. The HDP has been a staunch supporter of Kurdish rights since its formation, and garners much of its support from Kurdish areas. In the years since it was founded, the Government have moved to stifle its progress. Since 2016, it has been estimated that more than 10,000 parliamentarians, elected officials and party members have been imprisoned. As we know, the Turkish authorities are attempting to ramp up the pressure and choke off the HDP, through shuttering it and denying representation to the millions who have freely cast their votes for that party. Such a move, against a political party that has been supported by many Kurds, is an affront to democracy.
I heard at first hand from HDP lawmakers earlier this year about their concerns for their position, and for Turkey’s democracy more generally. The attack on Kurdish rights, the rule of law and the fundamental freedoms of democracy is deeply concerning. We heard about the freedom of the press from my hon. Friend the Member for Liverpool, Riverside (Kim Johnson), and in a very good speech from my hon. Friend the Member for Brighton, Kemptown, which went into the detail at length, so I will not repeat that now.
We urgently need the UK Government to take a more active role. We heard from my right hon. Friend the Member for Warley (John Spellar) that, as Turkey is a major NATO ally and a friend of the UK, we cannot and should not sit by and allow this to happen. We should feel able to criticise our friends and allies when they are doing wrong and praise them when they are doing right—for example, on the refugee crisis, in which Turkey is making an enormous contribution, not just in numbers, but in education and health services. That is not lost on those of us who see that good work. However, equally, if we are friends and allies, we must be able to say when we are worried, and the treatment of the Kurdish minority worries us deeply.
In her summing up, I hope that the Minister will outline her response, or the Department’s assessment of the legal case in Belgium, because it would be good to have on the record in Hansard the FCDO’s assessment of the Belgian court finding that the PKK was not a terrorist organisation. My understanding is that the UK’s position is still that elements of the PKK are terrorists, but I would like to know whether officers within the FCDO have looked at the legalities of the Belgian case. The UK signs up to the same treaties as Belgium, and we have the same norms and values, so could she please outline where the Belgians might be taking a different view from any UK legal counsel?
Finally, I will conclude by thanking all Members for being here for today’s debate. Thank you, Dame Angela, for your excellent chairing of the debate, and I very much look forward to hearing from the Minister. Given that there is so much time left in the debate, I hope that she will accept some short interventions.
The Minister for Asia (Amanda Milling)
It is a pleasure to serve under your chairmanship, Dame Angela. I congratulate the hon. Member for Brighton, Kemptown (Lloyd Russell-Moyle) on securing this debate through the Backbench Business Committee, and thank him and other hon. Members for their contributions today.
I know that the Under-Secretary of State for Foreign, Commonwealth and Development Affairs, my hon. Friend the Member for Aldridge-Brownhills (Wendy Morton), would have been delighted to respond today, but she is in Glasgow attending COP26. As such, Members will understand that this is not my brief, although it is my pleasure to respond on her behalf. I will do my best to cover as many of the points raised by the hon. Member for Brighton, Kemptown as possible—I am grateful to have had early sight of some of the questions—as well as other comments made during the course of the debate. I am more than happy to ensure that the Minister responds after today’s debate, and I am sure that we can arrange follow-up conversations.
I am aware of the correspondence between the Minister and the hon. Member for Brighton, Kemptown relating to the APPG report. We are grateful for the work that the APPG has done to create this report. The Government take these matters very seriously, as with all matters relating to democracy, security and human rights, and although the APPG report is wide-reaching, today we are focusing on Turkey.
Crispin Blunt
I wanted to follow up on one question. The final recommendation of the Foreign Affairs Committee in its 2017 report The UK’s Relations with Turkey, paragraph 179, is that:
“We recommend that the FCO designate Turkey as a Human Rights Priority Country in its next Human Rights and Democracy Report.”
Matters have hardly improved over the past four years. What consideration is now being given to so designate Turkey?
Amanda Milling
I am grateful to my hon. Friend for his intervention. I would like to mark and commend his work as Chair of the Foreign Affairs Committee. Everyone thought very highly of him in terms of his chairmanship, and now his ability to pull out a report today. I will talk about our relationship with Turkey and a number of the issues that have been raised, including my hon. Friend’s own contribution and our role as global Britain. As NATO allies and G20 economies, the UK and Turkey continue to work closely together. We have seen Turkey’s participation in the G20 and COP26 over the weekend as testament to this.
Turkey sits on the frontline of some of the most difficult challenges we face, and our shared interests cover security, defence, trade, the covid pandemic and climate change, which is very topical this week. Turkey hosts more refugees than any other country, including around 3.6 million Syrians, at a considerable cost and more than many other countries. We also have a shared interest in pursuing regional stability with Turkey, including in Syria, Iraq, Afghanistan, and the eastern Mediterranean.
It is worth saying at the outset that we should not generalise when we talk about the Kurds, in Turkey or elsewhere. There are 15 million to 18 million Kurds in Turkey alone, who form a diverse section of society with different political affiliations and outlooks. I note the concerns expressed in this debate about political representation in Turkey, specifically the pressure on Turkey’s third largest party, the People’s Democratic Party, or HDP. The party’s supporters tend to be drawn from the Kurdish community.
We note, as does the APPG report, that a number of MPs and officials from the HDP have been arrested for alleged links with the proscribed terrorist organisation the Kurdistan Workers’ Party, the PKK. A number of colleagues mentioned the PKK. We are closely monitoring the progress of the case to close down the HDP for terrorist links, which the Turkish chief public prosecutor is pursuing through the Turkish constitutional court. We also know that the Turkish Government have replaced elected HDP mayors with Government-appointed officials. It is well known that the UK has proscribed the PKK as a terrorist group, as have many of our international partners. We do not share the view of the APPG and some Members today that there are grounds to justify unproscribing the PKK while it continues with terrorist activities. According to the International Crisis Group, the conflict has caused nearly 5,700 deaths since the latest peace process broke down in July 2015. We urge the HDP to distance itself from the PKK and its ongoing terrorist activity.
Lloyd Russell-Moyle
I am keen for the Minister to elaborate here—or in writing, I suspect—what activities she refers to. To some extent, that will also help us to make sure that we negotiate with the PKK to move away from those activities she alleges, and help us to scrutinise them. In the listing in Belgium and in the European Union, almost all the cases that were claimed to be terrorist can be examined and, in fact, they were not the responsibility of the PKK or were the responsibility of other organisations with different proscriptions. That would be really useful for us. Will the Minister do that?
Amanda Milling
I thank the hon. Member for his intervention. We have a clear position on this, but I will ask my hon. Friend the Minister to follow up after today’s debate.
More broadly, an active and engaged opposition, and freedom of expression and assembly, are essential to an effective functioning of any democracy. Respect for local-level democracy helps to strengthen national-level democratic traditions. We encourage Turkey to ensure that all its opposition parties are able to conduct their legitimate political business freely, in accordance with Turkish laws, without intimidation and irrespective of which section of society they are drawn from.
The Turkish constitution provides for all Turks to be treated equally, irrespective of ethnicity, gender and sexual orientation, and for freedom of religion or belief. We encourage Turkey to uphold those principles. We regret Turkey’s withdrawal from the Istanbul convention early this year, but we nevertheless continue to encourage Turkey to do its utmost to protect women and girls from violence through strengthening its legislation in that critical area. Turkey has a rich and diverse history, and we encourage it to protect its religious diversity.
Lloyd Russell-Moyle
The Minister said that she regrets this, but could she at least push a bit further on the Istanbul convention to say that our Government call on Turkey to re-sign it? She did not seem to be able to say those words and I think that is deeply disappointing.
Amanda Milling
As I say, we do regret this, but I will come on to some of the actions that the UK Government are taking on a number of the different issues we have discussed today, if I could possibly continue.
As I said, Turkey has a rich and diverse history, and we encourage it to protect its religious diversity. We support freedom of religion or belief for all minority faith groups in Turkey, including the Alevi community, Jews and Christians. We have urged the Turkish authorities to safeguard their welfare and respect their human rights, in line with provisions in the Turkish constitution to protect the rights of all religious minorities. Our missions in Turkey regularly engage with minority religious groups and discuss their concerns.
On our engagement with Turkey, the UK has concerns about the human rights situation in Turkey, which we regularly raise with Turkish authorities. The former Foreign Secretary, my right hon. Friend the Member for Esher and Walton (Dominic Raab), did so during his tenure, as did the Under-Secretary of State for Foreign, Commonwealth and Development Affairs, my hon. Friend the Member for Aldridge-Brownhills, when she visited Turkey in June and during subsequent conversations with her Turkish counterpart.
We have also registered our concern with the Organisation for Security and Co-operation in Europe and the Council of Europe over the large numbers of HDP members who have been detained. Our embassy in Ankara regularly engages with the HDP and other opposition parties. The HDP raises concerns, including the ongoing and lengthy detention without trial of former HDP co-leader, Mr Demirtaş. We will continue to engage with a wide range of legitimate political groups in Turkey, as hon. Members would expect of Her Majesty’s Government officials overseas. We are concerned by Turkey’s delayed implementation of the European Court of Human Rights judgments on the imprisonment of Mr Demirtaş and Osman Kavala. Turkey is a founding member of the Council of Europe. We expect Turkey, as with all Council members, to adhere to the Court’s judgements, which take precedence over national laws, and to implement its decisions. We say that directly to the Turkish Government, and we participate regularly in Council of Europe discussions on both those cases.
We have also discussed with Turkey the development of its judicial reform proposals and its human rights action plan, launched in March. We welcome these discussions and encourage Turkey to implement those fully. Another issue raised by hon. Members is freedom of expression. We have long encouraged Turkey to work towards full protection of those fundamental rights. We will continue to engage with the Turkish Government on those issues and to urge respect for freedom of media. Several specific questions have been raised by hon. Members, including the SNP and Labour Front Benchers, which I will ask my hon. Friend the Minister to follow up on.
As a friend and ally of Turkey, we will continue to regularly raise human rights concerns and be clear in our expectation that Turkey upholds the important values in Turkish law, which we share. At the same time, it is right that we continue to strengthen our relationship with a vital UK partner.
Lloyd Russell-Moyle
I thank you for chairing the debate, Dame Angela, and I thank my right hon. Friend the Member for Warley (John Spellar), my hon. Friends the Members for Liverpool, Riverside (Kim Johnson), for Enfield North (Feryal Clark), for Leeds North West (Alex Sobel) and for Hornsey and Wood Green (Catherine West), and the hon. Members for Reigate (Crispin Blunt) and for Stirling (Alyn Smith). I forgot to thank in my speech the embassy in Ankara, which has always been supportive; when I have visited the HDP congress, and has always provided the political secretary to visit with me. I have no argument with what the embassy staff are doing on the ground. The issue is the political responses we are giving.
I must say that I am disappointed that we are not able to offer more than concern or regret about Turkey’s withdrawal from the Istanbul convention. The Minister used slightly stronger language, which was slightly more welcome, on the European Court of Human Rights’ judgment than on the Istanbul convention. I do not understand why we are not able to use stronger language on the Istanbul convention. It is worrying; the withdrawal predominantly affects Kurds, but it actually affects all women in Turkey. I just do not understand that.
I am disappointed that we did not get more concrete answers on the co-ordination of British aid and development in Turkey. I opposed the merger of the Foreign Office and the Department for International Development, but surely the rationale behind the merger was that we could use aid in those diplomatic efforts more effectively. We know that women’s organisations are being shut down in Turkey, that Kurdish women’s organisations are often deprived of money and that journalists are being locked up. We should put in aid and support to ensure that those organisations are able to work and are not repressed. It would be good if the Department could talk about how it is co-ordinating that work, because Turkey is a recipient of some aid and co-ordinates with the British Council, which the Minister also did not mention.
I understand that the Minister will get back to me on those points. I look forward to receiving those replies.
Question put and agreed to.
Resolved,
That this House has considered Kurdish political representation and equality in Turkey.
Thames in Oxford: Bathing Water Status
(3 years ago)
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Dame Angela Eagle (in the Chair)
Before we begin, and in line with updated guidance issued this morning, let me point out that hon. Members are expected to wear face coverings in line with current Government guidance, which is that they should be worn where there is a greater risk of transmission of covid. That is now considered to be the case across the parliamentary estate. Everyone should also maintain distancing, as far as possible, on the estate, including in Committee proceedings where possible. We have been advised that the risk of transmission in Committee meetings appears to be greater. I remind Members that they are also asked by the House to have a covid lateral flow test twice a week, if coming on to the parliamentary estate. That can be done either at the testing centre in the House, or at home.
Layla Moran (Oxford West and Abingdon) (LD)
I beg to move,
That this House has considered bathing water status for the river Thames in Oxford.
It is a pleasure to serve under your chairmanship, Dame Angela. Achieving bathing water status for the stretch of the River Thames in Port Meadow is something that I have long campaigned for. The Minister will be aware, I am sure, of the early-day motion that I tabled last year on this very issue. It called on the Government to work with Thames Water to protect the Thames in Oxford, so that the river could remain clean and enable Oxford’s residents to swim safely.
A year on, our application for bathing water status is now in the hands of the Department, but there is of course also a renewed national focus on cleaning up our rivers in the Environment Bill. I will reassure the Minister that that will not be hijacking this debate. Of course, the Environment Bill does return to the House on Monday and it will give us the opportunity to improve water quality in our rivers everywhere—not just in Oxford—by placing a duty on water companies to ensure that untreated sewage is not discharged into our inland waters. The public backlash following the defeat of the Duke of Wellington’s amendment surely made clear how important that issue is to people up and down the country. The Government say that they want to act, and I look forward to seeing any strengthened amendments that might come back next week, but whatever happens, I hope that our application gives the Government an opportunity to demonstrate further their commitment to that cause.
I am also heartened that the water companies themselves recognise that more must be done. The chief executive officer of Thames Water, Sarah Bentley, admitted during her recent appearance before the Environmental Audit Committee that Thames Water’s track record on sewage has been unacceptable. It is worth noting that it already has alerts when it intends to release sewage. She went on to commit that Thames Water would spend £1.2 billion over the next five years on improving the overall network and ensuring that sewage is not released during heavy rain.
Tim Farron (Westmorland and Lonsdale) (LD)
Just last year in the Lake district, United Utilities, the north-west water company, dumped raw sewage for the equivalent of 71 full days into Windermere, England’s largest lake. Does my hon. Friend agree that bathing site status, which I am asking for Windermere and the Rivers Rothay, Brathay and Kent, would be a way of ensuring quick action so that water companies do not carry on doing this outrageous stuff?
Layla Moran
I could not agree more. No doubt many other places in the country would want the same thing.
It is worth noting that our application has the support of Thames Water. In fact, it paid for a staff member to help to put in the application, so it is determined to do something about the issue. However, on the point that my hon. Friend the Member for Westmorland and Lonsdale (Tim Farron) made, we also need an effective Environment Agency, because it is the regulator and it needs the resources and the teeth to hold the water companies to their promises. Therefore, I urge the Minister to assess its ability to do that important work and to ensure that it is well funded to do it. The will is there, and things are moving in the right direction, but we now need as much action from the Government as possible to keep up the momentum and keep water safe.
I am sure that I cannot have been the only one who, during the pandemic, contemplated the natural beauty around me. Indeed, I even bought a wetsuit, hoping that I would get into the river. I did not quite make it, but a lot of people did. In a survey of residents in Oxford, 21% said that this was the first year that they had ever dared to go in the river. They reported that it helped their mental health and wellbeing. There is a truly national movement for wild swimming, and it is wonderful.
Last month, I had the opportunity to meet activists at a bathing site in Wolvercote, just on the edge of Port Meadow. They told me how important it was for them that the designation was made. It would mean that the river that they loved would be subjected to a strict testing regime based on public health requirements. The number of people swimming or picnicking there peaked at an impressive 2,000 a day. It is a very popular spot and there are many like it across the country, as we have already heard. Shockingly, however, there is only one other river in the whole of England that has been granted bathing water status: the River Wharfe in Ilkley, Yorkshire.
Robbie Moore (Keighley) (Con)
The hon. Lady mentioned the River Wharfe in Ilkley, which she rightly says is the first river in the whole of the UK to be awarded bathing water status. I want to congratulate the Government on granting that status on the back of a very successful campaign run by the Ilkley Clean River Group. I wholeheartedly support that, because this is a great mechanism for putting more pressure on our utility companies, such as Yorkshire Water, which is discharging storm overflow sewage into the Wharfe.
Layla Moran
I congratulate the hon. Gentleman’s group on bringing that forward, because we want to double the number of rivers with that status—indeed, to triple or quadruple it in this room alone.
Philip Dunne (Ludlow) (Con)
I congratulate the hon. Lady on securing the debate. On my hon. Friend the Member for Keighley (Robbie Moore)’s point, I am pleased to confirm to the hon. Lady that the River Teme in my constituency has also been put forward by Severn Trent Water to, I hope, become the second river in England to achieve bathing water quality status. It will cost quite a lot of money to do that. The Government have allowed, through Ofwat and the green recovery challenge fund award to Severn Trent Water earlier this year, close to £5 million to be invested in improving the very things the hon. Lady was going on to talk about, and which my hon. Friend raised—that is, the storm overflow discharges upstream of Ludlow, to allow bathing water quality to be improved. I urge the hon. Lady to invite Thames Water to explain to her how many storm overflow assessments have been done on the Thames upstream of Oxford, so that she can get a view on the progress it is making. I understand that over the weekend five discharges were identified from the storm overflows upstream of Oxford. In the last two days, people might have been enjoying swimming but they could not.
Layla Moran
I thank the right hon. Gentleman for his advice and intervention. Here we are: we are five in the room. That compares with France, which has 573 designated swimming areas. Germany has 38 and Italy 73 —we are way behind. We are lagging behind when we should be leading the way. I sense an all-party parliamentary group forming—but anyway, there is certainly a lot of keen interest across the House.
Our application went in on 20 October. In fact, the city council has put in an application for two areas on the Thames at Port Meadow: one at Fiddler’s Island and the other at Wolvercote. Once the status is given, the water company and the councils will have five years to reduce bacteria levels to at least sufficient status in the summer months, otherwise, the area is de-designated. That pressure really matters. It also places a duty on the Environment Agency to keep testing the water regularly and the council to display signage on water quality. It is entirely right to give river users the choice about whether to bathe; currently, they simply do not have the information to decide whether it is safe. Unfortunately, all evidence at the moment suggests it is not.
Research by the Oxford rivers project published in September found that sewage pollution is increasing bacteria levels in popular swimming spots to the point where they are deemed unsafe. The current situation, where the Government allow water companies to release untreated sewage into rivers in exceptional circumstances is untenable and downright dangerous, because it is not exceptional. In Oxfordshire, just up from the areas I am talking about, it happened around 60 times last year. The average is more than once a week. The only thing that is exceptional is how it is allowed to happen at all. Bathing water status would be a small but significant step in holding those water companies better to account.
The most recent assessment nationally from the Environment Agency found that only 14% of rivers in England are in good ecological health and 0% are in good chemical health. According to the two sampling points included in the application to the Department for Environment, Food and Rural Affairs, Port Meadow has poor water quality.
In April, a survey of 1,140 Oxford residents found that 67% had been swimming in the river for years, and 75% of them said they did it weekly in the summer months. It is a self-selecting group, but these residents nevertheless recognised the risks that they are taking, as 57% listed water pollution as their top concern, with river swimming or similar river activities such as kayaking or paddle boarding being something they worry about. It is such a shame that such a joyous activity is tempered by such concerns. When A.A. Milne invented the game Pooh sticks I do not think he thought the name would have applied quite so literally. Our rivers should be places of protected picturesque beauty, not low-cost avenues for getting rid of sewage and, for that matter, biodiversity along with it.
Oxford has a centuries-long history of river swimming and other river activities, so it was ridiculous that, before this campaign—started by a PhD student, Claire Robertson, and volunteers as part of the Oxford rivers project—river users did not even have information about whether the quality of the water would affect their health. The research found that in months with heavier rainfall the bacteria levels were as much as double the recommended threshold. These levels have the potential to make anyone coming into contact with the water very ill indeed. When experts looked at which type of bacteria was causing this illness, they found that it was actually sewage, not agricultural run-off, which is what they had previously been told it was—yuck! Claire and her project have been funded by Thames Water, Thames21 and the Rivers Trust to do this research, and they have done a truly remarkable job.
There is such strength of feeling in Oxford from across the community that the petition for bathing water status has now reached over 5,000 signatures, but many of these residents have written to me separately. Heidi, who is part of a group of West Oxford women and regularly swims in the Thames at Port Meadow, described in her email that
“we’re very concerned about the pollution in the river and especially the release of raw sewage by Thames Water into the river after rain fall. I have signed up to a sewage release alert and I’m very shocked how often I receive emails from them notifying me of a sewage release”.
Max wrote to me and explained,
“over the summer I swam a number of times with my family in the Thames in and around Oxford...My daughter even became sick after a swim and was laid up with stomach cramps for several days”.
Jessica, in her email, told me,
“each swim is tempered with how even better the water quality could be. I’ve seen photos of the river 5 years previously and the bright green of the weeds and clear water look stunning, now it’s a brownish grey”.
Cherry described to me:
“I swim every year from Port Meadow, it is a great pleasure but I am appalled that the water is so unclean. As you know it has been a favourite swimming place for many people. I grew up swimming in the Thames and Cherwell and continue to do so at 79.”
For some, the experience can have much longer effects. Amanda wrote in to me and said:
“I knew immediately I got in that the water was different. It looked green and felt fizzy. I got out straight away but still became ill, requiring antibiotics”.
Unfortunately, these experiences are all too common, and they need to stop.
In conclusion, I simply urge the Government and the Minister to take action and protect our rivers, starting by granting the River Thames in Oxford at Port Meadow bathing water status. The application has the backing of the community, the water company and the councils. We are not asking for any money at this point, but we want the application to be granted so that we can work with all the partners concerned, including the Environment Agency, Thames Water and the Oxford rivers project, and make sure they have the tools they need.
I appreciate that the application is in and it is unlikely we will get an answer today—although if the Minister wants to give us positive news, we would be delighted—but I very much welcome her remarks in her response, and I look forward to a positive outcome as soon as possible for the people of Oxford.
The Parliamentary Under-Secretary of State for Environment, Food and Rural Affairs (Rebecca Pow)
It is a pleasure, as ever, to see you in the Chair, Dame Angela. I thank the hon. Member for Oxford West and Abingdon (Layla Moran) for raising this issue on behalf of her constituents. Of course, it is an issue that many people are talking about. I like the image of her in her wetsuit and I am sorry she did not get to use it. I am a bit of a coward when it comes to the cold. I always wear my wetsuit, even in high summer in Cornwall when I go to the bathing water areas there, which I recommend. It’s great.
The hon. Lady knows—at least, I hope she is getting the message—that the Government have made improving our water quality an absolute priority, and it is a personal priority of mine. I hope colleagues understand that. I worked closely with my right hon. Friend the Member for Ludlow (Philip Dunne) on what was going to be a private Member’s Bill and we rolled it over into the Environment Bill. I have worked with other Members here. My door is always open to talk about these issues, because we want to improve our water quality. I am sure the hon. Lady knows that I have put the water companies on notice. They are under the microscope and things need to improve.
I will touch on the Environment Bill, although the hon. Lady promised that we would not get bogged down in that. She knows that we voted through six pages of measures in the Environment Bill the other day when I was at the Dispatch Box in the main Chamber, and they were all things to improve water quality and to tackle sewage pollution in particular. I made it crystal clear to the water companies that what has been happening is unacceptable.
The Government have also introduced new environment measures that will require water companies to report in as near real time as possible on storm sewage overflows—in fact, within an hour of their being used. That will make a significant difference to how the Environment Agency can then enforce those measures. Those things will be positive. As well as all the other measures introduced in the Bill, the Government announced in the other place the other day that we will further strengthen the Bill with an amendment to ensure that water companies secure a progressive reduction in the adverse effects of the discharges. We have worked very closely with colleagues on that, and we are going in the right direction. All that gold-plates what we have already flagged to the regulator, Ofwat, in the draft policy statement. It has to make it a top priority for water companies to reduce their use of storm sewage overflows, which is the first time a Government have done that. Also, DEFRA has to produce a plan for all that by September 2022. So movement is happening, and it needs to.
The hon. Member for Oxford West and Abingdon talked about water quality in detail, and there are many pressures on our water environment that affect it. It is not just storm sewage overflows. It all relates to our growing population, intensive farming, climate change, chemical use and so forth. We need to collectively address all those things in order to return our water to its near natural state. The Government are determined to do that. I put on the record that £30 billion has already been invested by the water companies since 1990, and they have achieved a significant reduction in phosphates and ammonia, but there is a lot more still to do.
The hon. Lady mentioned enforcement, and I am pleased to say that we have provided additional funding for the EA to increase farm inspections nationwide over the next 18 months. That will include an extra 50 inspectors carrying out more than 1,000 inspections this financial year. They will target areas of particular concern initially—for example, the River Wye, the Solent, the Somerset levels in my constituency, and Lyme bay. We have also committed additional funding for extra catchment-sensitive officers to work on the ground to tackle land use on the agricultural side, which also impacts on our pollution. We have support for farmers to help deliver on that.
The bathing water issue is obviously the crux of the debate. There are more than 400 designated bathing waters in England, mostly around the coast, because we are an island. That is a difference between France and us. They are managed to protect the public’s health. The EA regularly takes samples and tests the bacteria level because the water needs to be clean and safe for swimmers. We recently introduced a new measure for water companies to monitor those sites all year round and give data, which is very useful for swimmers, surfers and others. There has been good progress over the past 30 years, but there is clearly more to be done.
More than £2.5 billion has been invested by English water companies to improve bathing water since privatisation. Figures in those bathing areas are good on the whole: 98.3% of bathing waters in England pass the minimum test and, of those, 70% achieved excellent ratings. That compares with 28% in 1990. I was an environment correspondent in the west region and regularly reported on those sites. I can confirm that things have improved since those days, but there is certainly more to do.
We welcome applications for bathing water designations for both coastal and inland sites. They are used by many people and we believe more people would use them. Coronavirus has demonstrated how valuable they are. When an application is received, it is reviewed against Government criteria, which are on the gov.uk site. If it meets those criteria, a consultation is run, as happened in the Wharfe area, as my hon. Friend the Member for Keighley (Robbie Moore) will know. Following that, a final decision is made about whether the site can be designated. If so, the aim is to designate it the following season.
If a site were to receive the designation of bathing water status, the EA is enabled to spring into action and look at what is needed to improve the water quality to meet the standards set by the regulation. It could add a requirement to the water industry natural environment programme—WINEP as we call it—for funding for the next price review, for example. If necessary, the EA assessment could include discussing options with Ofwat, to explore bringing forward investment. There are measures, as the hon. Member for Oxford West and Abingdon well knows.
As has been mentioned, this year my Department designated the River Wharfe in Ilkley. We are currently considering the application, received just two weeks ago, from Oxford City Council. We received letters of support from the hon. Members for Oxford West and Abingdon and for Oxford East (Anneliese Dodds), as well as from Thames Water, making clear how proactively it wants to support this, which is welcome.
I met the chief executive at my chalk stream restoration strategy launch recently, and she told me how determined the company is to get to grips with the storm sewage overflows. It has made a commitment to get close to real-time notifications on all discharges, and expects to have that up and running by 2022. That will obviously be significant for this application. The point is that water quality will not change overnight; it will not be instant. That is why all the other actions to reduce the overall levels of pollution, taken by farmers, landowners, the industry and other combinations, are so important. Multiple organisations will be involved, as they are in the Ilkley area.
We heard references to some other areas. I am heartened that we are getting those other applications because it means we can genuinely get moving. I thank my hon. Friend the Member for Keighley for the work he is pushing on that. Similarly, I look forward to hearing from my right hon. Friend the Member for Ludlow about the River Teme application and the work that he is doing; he is doing such good work on this issue. I have already met the hon. Member for Westmorland and Lonsdale (Tim Farron) about Windermere.
Local authorities have been able to apply for bathing water status since 2013 and every year my Department writes to them to ask them if they would like to put forward a site. Interestingly, how many such applications do hon. Members think we have had since 2013? Five. Obviously, each application is considered, and of those five applications four have gone forward. So this is a new world of bathing water that we are looking at.
Robbie Moore
Anyone can submit an application, as we saw in Ilkley, where it was not the local authority that submitted the application; it was our hard-working, dedicated campaign group that was at the forefront in submitting that application. I just wanted to reiterate the point that this process is open to everyone to get involved with.
Dame Angela Eagle (in the Chair)
Order. We are talking about bathing water in the Thames at the moment. I have given some leeway, but let us not stray too far.
Rebecca Pow
Thank you very much, Dame Angela, for getting us back on track and enabling us to get back to Oxford. However, my hon. Friend made a very good point and we genuinely understand everybody’s strength of feeling about swimming in their local area.
Tim Farron
I am very much guided by your words, Dame Angela. I was very interested to hear what the Minister said about the number of applications made by local authorities; the hon. Member for Keighley (Robbie Moore) made the point that other people can also make applications. However, is the Minister saying that—whether it is the Thames, Windermere, a river in Kent or any other river or waterway—if local authorities make a request for bathing site status for one of their waterways, that request will be taken seriously and considered?
Rebecca Pow
I had hoped that I had already made that clear. There is a process, which is set out on the gov.uk website. What has to be done and the procedures that have to be gone through are set out very clearly. Then there is a consultation and consideration of the feasibility of an application.
However, I must reiterate that there are other requirements, which the hon. Member for Oxford West and Abingdon mentioned. There is also a particular emphasis on safety; for example, will life-saving equipment be provided? Is there space for all the people who might turn up and will they be provided for, with parking spaces, cafés and toilets? All those things then become part of the whole discussion about whether a site is a suitable area for bathing. As I say, safety—keeping people safe when they are swimming—is obviously a really key issue.
I will wind up there. As a Government, we recognise the real health benefits of healthy waters and the importance of managing them well. Of course, all this links in to everything we are doing this very week at COP26 to have a healthy, sustainable planet on which we can all live and thrive.
Question put and agreed to.
NHS Efficiency
(3 years ago)
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Sir Gary Streeter (in the Chair)
Before we begin, I encourage Members to wear masks when they are not speaking, in line with current Government and House of Commons Commission guidance.
Paul Bristow (Peterborough) (Con)
I beg to move,
That this House has considered NHS efficiency.
It is a pleasure to serve under your chairmanship, Sir Gary. I draw Members’ attention to my entry in the Register of Members’ Financial Interests.
Our NHS is in my DNA. Both of my parents were nurses and worked in the NHS for most of their working lives. It was the NHS that brought my family to Peterborough when I was just five years old, and I have worked in NHS policy for 20 years. My commitment to our NHS and its principles is clear. Few things inspire as much national pride as our national health service, and I want to keep it that way.
The NHS has lost its ranking as the best healthcare system in a study of 11 rich countries by an influential US think tank. Most worryingly of all, it fell to ninth when it came to healthcare outcomes. We must do something about this. We must ensure that the record investment that we are putting into our NHS is spent well. I suggest that that money should come with some very specific key performance indicators that would ensure that it is not wasted.
I feel strongly that the money should be in the gift of Ministers in the Department of Health and Social Care, who are accountable to Parliament, rather than NHS England or NHS Improvement. Like the Department for Levelling Up, Housing and Communities would do with a local authority that does not run a balanced budget or provide statutory services, the Department of Health and Social Care should be able to intervene directly, or at least provide incentives. Recipients would not get their share of the extra cash unless they addressed the challenge of access to care and improved outcomes.
I am keen to help Ministers. I almost feel thwarted, because progress on many of the things that I spoke about at the party conference last month have started to be reflected in Government announcements. That is obviously a good thing, but extra money must come with strengthened incentives to do the right thing and, quite honestly, consequences for not doing the right thing.
The first area in which we need to make progress is local NHS management. Local government has had to make a series of savings in recent years. Armies of local government managers all doing the same jobs in neighbouring local authorities have been an easy target for those defending the interests of taxpayers. However, local authorities have done rather a good job of sharing senior officers. For instance, the chief executive of Peterborough City Council is also the chief executive of Cambridgeshire County Council. As a former Hammersmith and Fulham councillor, I also remember the 2011 tri-borough shared services agreement in west London, between Westminster, Kensington and Chelsea, and Hammersmith and Fulham, which saved over £33 million in just four years. Labour-controlled Hammersmith and Fulham petulantly took their toys home a couple of years later, but the bi-borough arrangement is still saving the taxpayer millions, and this practice is replicated across the country.
That practice is unheard of in our NHS, but why is that? There are no reasons why NHS trusts and new integrated care systems cannot share officers and back-office functions. Let us do away with every NHS trust having its own specific CEO, finance director, human resources director, estates director or diversity director. It is not controversial to ask our NHS to learn from local government. If certain localities cannot make those management savings, are unwilling to share back-office functions, cannot look to make savings, why would we give them the extra cash? I suggest a KPI on a reduction in management costs and back-office costs. I think it would be warmly welcomed by the taxpayer and those in our NHS who know that money is wasted.
Dr Dan Poulter (Central Suffolk and North Ipswich) (Con)
I draw colleagues’ attention to my declaration of interest as a practising NHS doctor. Does my hon. Friend agree that one of the challenges is attracting good expertise, perhaps from the business world, into the NHS and that that sometimes costs money and resources? While he is wishing, correctly, to make savings in back-office costs, we should not be too prescriptive because we need to make sure the best people are coming into the NHS, both from within and without, to deliver the productivity gains he desires.
Paul Bristow
That is a characteristically well-made point by my hon. Friend. In the current system, NHS chief executives spend 18 months in one trust, then travel to another, spend 18 months there and then travel to another. That is no time at all to get to grips with the challenges that these organisations face. We absolutely need people from the private sector to come in and do these jobs. If they were doing these jobs on a larger scale, that would be welcome. I am specifically requesting that we look to local government, where people have come in and transformed services. I suggest we do the same in our NHS.
My second point is on innovation and new ways of working. Innovation is the way an organisation develops. It should be a constant process—trying to do things better, improving outcomes for patients and trying to be more productive. Across the NHS there are those that innovate with new technology, those that adopt new pathways and service delivery, and clinicians who want to train and learn new techniques. However, the NHS can be poor at spreading best practice at pace and scale. Like any bureaucracy, it can be slow at looking at new ways of working.
There have been attempts to address this. We spent millions funding organisations such as Getting It Right First Time—GIRFT—under Professor Tim Briggs, which is a national programme designed to improve the treatment and care of patients and collect best practice. We created the National Institute for Health and Care Excellence—NICE—which, when it was created, was considered to be a model for the world to emulate on determining the cost-effectiveness of technologies and drugs. NICE also produces quality standards that set out priority areas for quality improvement in health and social care. After all this work has been done and all this money has been spent, many parts of our NHS just ignore it. They say things such as, “This can’t possibly apply to us,” or, “This is merely guidance, and we don’t need to do this here.”
The use of insulin pumps and implantable cardiac defibrillators or vascular technologies should not depend on where someone lives, but it does. The solution is certainly not to reduce GIRFT’s budget from £22 million to £10.8 million, but that is what has happened. GIRFT should be empowered to develop best practices in primary and community care, and we should look at the GIRFT model of hot emergency and cold elective centres to help us power through the backlog.
What is the solution? How do we make outliers adopt best practice and do the right thing? A KPI, and perhaps even GIRFT or NICE, can help us with technology and pathway adoption, which could transform productivity, powering us through the backlog. Backed up with an incentive such as a generous and workable best practice tariff, a KPI could focus attention. If outliers persist in a practice that has been shown to be outdated and to follow pathways that do not lead to optimum outcomes, why would we give them the extra money?
On capacity, staffing is recognised to be a risk factor in delivery for our NHS. The money is there, but it takes a long time to train a doctor, GP or nurse. That is why every hour of a medical professional’s time is valuable. We have to make sure that they are doing what they are paid for and what they went into medicine to do.
Dr Luke Evans (Bosworth) (Con)
My hon. Friend is making a fantastic speech. Does he agree that every hour of a clinician’s time is valuable? The average clinician loses about 10% of their workload simply chasing up letters, following up blood tests or trying to find scans, which is a complete nonsense in our current system. It could easily be ironed out by joining up simple IT between primary and secondary care. Is that a KPI my hon. Friend could support?
Paul Bristow
My hon. Friend is a champion of efficiency in the NHS and in his profession, and he makes such points regularly in the meetings of the Select Committee on Health and Social Care. Perhaps he has already read my speech, because I think that the winter access fund is an excellent start. It will address what many GPs have rightly complained about for some time, which is the amount of time they spend on fitness notes and chasing appointments, as well as something that I only realised when I met GPs in my constituency. I want to give a quick shout out to the super Dr Neil Modha and his team at the Thistlemoor surgery, who are doing a fantastic job in a very challenging catchment area. What I realised was how much time GPs spend providing medical records to insurance companies and other bodies, which just is not their job.
We need clinicians to practise at the top of their licence. We need GPs seeing ill patients, not prescribing things a nurse could easily do. Nurse-led prescribing has been around for a long time, but it has not been rolled out across as many areas as it should. We need a revolution in physician associate and nurse-led prescribing, which will free up the time for GPs and consultants to do what they need to do.
That same waste of clinician time happens in secondary care. We need surgeons using their skills in the cath lab or the operating theatre. They should not be in theatre only one day a week; they need to be there multiple days a week, every week. I hope surgical hubs and other initiatives will help, but I fear that without a strict KPI on clinician time on highest-skill, highest-value activity—and I am not opposed to backing that up with financial incentives—we will not make the savings in clinicians’ time that we need. Only with such a KPI, together with an effort to demonstrate how valued our clinicians are, will we ensure that their valuable time is not wasted. If an integrated care system or the management structure at an NHS trust cannot or will not do that, we should make it dependent on the extra cash.
Finally, much of this is dependent on greater transparency. I was very pleased to hear the Secretary of State for Health and Social Care say this morning to the Health and Social Care Committee that we are going to be able to see more data relating to the performance of GP practices, but that needs to happen with ICSs as well. In the past, clinical commissioning groups in this country could be guilty of hiding commissioning policies, rationing hip and knee surgeries to those with a body mass index of below 30—or even 25 in a handful of cases—on page 145 of a 278-page document on a website that no one ever reads.
NHS England is just as guilty of doing that with national service specifications and commissioning policies, and politicians have very few means of challenging that as politics has been taken out of the NHS. We need to open up the windows and let the light in. Accountability and transparency have always been the way to improve performance and efficiency, so let us have the Ofsted-style rating for ICSs and other NHS bodies. Let us know who does well and who does not. Together with clear KPIs, transparency and accountability, we can ensure that the record cash injection, which my constituents applauded, is spent well. The NHS is a source of national pride, but its performance post-pandemic can and should improve. I offer Ministers a few ideas—a few acorns—for how we might do that.
Dean Russell (Watford) (Con)
It is a pleasure to speak under your chairmanship, Sir Gary, and an absolute honour to follow the excellent contribution of my hon. Friend the Member for Peterborough (Paul Bristow). I refer to my registered interests and, in particular, I raise the fact that I am the chair of the all-party parliamentary group on digital health, which very much informs some of my points today.
I will be brief, as I am conscious that this is a big debate to have in a small period of time. One of my passions for looking at efficiencies in the NHS comes from my own experience. About 12 years ago, I was asked by the Department of Health to do a strategic review of every NHS website in England and Wales. I will cut to the punchline: there were more than 4,000 live sites. I did the financial calculation and worked out that between £87 million and £121 million a year was being spent on websites, many of which people did not even know existed. That highlighted that one of the challenges for the NHS is that, because of its immense scale, even though people want to do the right thing, duplication inherently causes extra costs on a scale that one cannot really comprehend in a normal business, or even in a global business.
This highlights various points. First, if we want to improve efficiencies, we need to make sure that patient experience and patient care is at its heart. There were 4,000 websites at the time, of which several hundred were about how to stop smoking. It would probably have been more efficient to have one really good stop smoking website, rather than 200 average ones.
Patient experience is not just about the outcome but about how patients find the right information, how they get to the source and how we make sure they are not having to repeat the same thing every time they go for an appointment, which is where technology is so important. We often think of technology in the NHS as big, expensive, lumbering IT systems that are hard to comprehend, but the world has changed. We now have a consumerised approach to healthcare. People have watches that can track their heartbeat. They can go online and book appointments by email. They can use apps to do so much more, even track their covid status.
We need to look to the future, not just on efficiencies for cost savings but on patient experience. Thinking about the sort of experience we want patients to have over the next 10 or 20 years, it has to be seamless and efficient. Seamless in the sense that if a person breaks their arm, they do not have to say that they have broken their arm every time they see a new clinician, go on to a new website or use a new app. Their broken arm might mean they need additional wraparound care or it might affect their ability to work, so what will be the impact on social care? If we start to put patients at the heart of what we do, we can create efficiencies around them, rather than requiring them and the NHS to duplicate their efforts.
There is a great opportunity to look again at patient experience, given the technology that is available not just in the NHS or in social care but generally. We are now used to using social media, apps and phones for so many different things. If we can start to bring that into how we look at the future world of health, we would have a powerful opportunity to say to patients, “What would you like your health system to look like?” Rather than imposing variations of the health system of the past 40 or 50 years, we could ask, “What is it that you, as an individual, would like to see in how we look after you, your children and your parents, not just now but for decades to come?” We could then create an efficient and effective system that has patient outcomes at its heart and that ultimately creates a superior patient experience that helps everyone and, as I always say, is free at the point of use so we can make sure that the NHS continues to live up to its values as it always has.
Let us look to the future and let us see what is available, rather than just relying on what we had in the past.
The Minister for Care and Mental Health (Gillian Keegan)
It is a pleasure to serve under your chairmanship, Sir Gary.
I welcome the idea and the timeliness of this debate. My hon. Friend the Member for Peterborough (Paul Bristow) has raised an important issue, and I know many hon. Members present have great experience of various parts of the NHS, including my hon. Friends the Members for Watford (Dean Russell), for Bosworth (Dr Evans) and for Central Suffolk and North Ipswich (Dr Poulter). I thank them for their contributions to the debate.
We all have a responsibility to taxpayers to make sure that the NHS uses its resources as effectively as possible. To do that, we need to ensure that productivity grows every year, which is why the NHS long-term plan includes financial test 2:
“The NHS will achieve cash-releasing productivity growth of at least 1.1% per year.”
I make it clear that increasing productivity does not mean making staff work harder or making cuts. It means getting the most out of every £1 the NHS spends, and making sure that as much as possible is spent on frontline care. It means doctors and nurses doing the tasks they are trained to do and that nobody else can do. It means buying the right drugs at the right price. It means more patients getting the right treatment in the right place at the right time. That is good for patients, good for clinicians and good for the taxpayer.
Thanks to the hard work and innovative mindset of many NHS staff, the NHS is regularly recognised as one of the world’s most efficient health systems, although I take the point made by my hon. Friend the Member for Watford that there are different ways of measuring efficiency globally. In fact, in the decade before the pandemic, productivity growth in the NHS was faster than in the wider economy, as was independently verified by the Office for National Statistics.
Furthermore, the UK spends only around 2% of healthcare expenditure on administration—we spend a lot on the NHS, but only 2% of it on administration—and managers make up only 2.6% of the NHS workforce of 1.35 million. They might be an easy target for criticism, but good managers are of course essential to making services work, and many of us will have had experience of that throughout our various careers. If there were no managers, clinicians would have to manage their own workforce, logistics, finances and websites, and spend less time with patients. None the less, we want to improve the quality of management further, which is why we have asked General Sir Gordon Messenger to lead a review of leadership in health and social care.
Dr Poulter
I refer to my earlier declaration about my entry in the Register of Members’ Financial Interests, as a practising NHS doctor. On the point that the Minister just made, of course we want to promote clinical leadership in the NHS in senior management positions, because we know that that benefits patients and leads to efficiencies, but we also need to consider the fact that although there are many good NHS managers, a lot of them have never had experience of life outside the NHS. I wonder whether my hon. Friend the Minister could briefly say how we can draw in better business experience and other experience, so that NHS managers have broader experience, and can bring that benefit to the NHS and drive efficiencies.
Gillian Keegan
I have heard exactly the same point being applied to many different industries, even politics—how many people come from business into politics, or go from politics to business? That crossover between the public sector and the private sector, including bringing particular skills and learning from one to the other, is not done nearly enough, which is why I spend a lot of my time trying to get more business people involved in politics. However, I am sure that it is a challenge for people to do that, because I guess that people tend to get stuck in the way that they know and go up the career ladder in the world that they know, so there is too little crossover. I guess that the recruitment companies have something to answer for here. They look for square pegs for square holes—namely, people to do what they have already done, so that there is a natural progression.
Nevertheless, we need to encourage that crossover. If we put out a call to say, “Actually, we really do want businesspeople to join us and help us,” I am sure that many businesspeople would be interested in having a second career in public service, as we ourselves are all doing here in Parliament.
As I was saying, General Sir Gordon Messenger will review leadership; the terms of reference for that review are being developed right now.
There is no doubt that covid has had a severe impact on NHS productivity. Covid significantly increased costs for the NHS, while we also had to stop some regular activity, so productivity was obviously much lower than it would have been otherwise; indeed, many patients did not even wish to attend in-hospital services. Of course, covid made more stringent infection prevention and control measures necessary. Those measures, such has having to put on and take off personal protective equipment, slow staff down and limit the number of patients they can see, and will probably continue to hold down productivity in the immediate future. We know that that has happened, with the existence of green zones and red zones, and other new processes to try and control infection during this period.
We do not yet know what impact covid has had on NHS productivity, but we expect that it will turn out to be large and negative. The ONS estimated that public service productivity as a whole fell by 22.4% between July 2020 and September 2020, compared with the same quarter a year earlier. Even as productivity recovered, it was still 9.8% lower in the first quarter of 2021 compared with Q1 in 2019. Covid has definitely had a massive impact on productivity, and it is reasonable to expect that the impact on NHS productivity will be similar.
At the same time, however, the pandemic has been a spur for innovation. Across the NHS, clinicians said that the pandemic offered an opportunity to cut through bureaucracy and try new ways of working and new ways of partnering with local services. In London, the hospitals worked together and, as my hon. Friend the Member for Peterborough mentioned, their Getting It Right First Time programme will pilot a new approach to high-volume, low-complexity surgery. That is now being rolled out across the NHS. My hon. Friend also mentioned budget numbers, but it is not easy to compare like with like, because that programme has been integrated into the NHS Improvement budget and is now embedded within the plan for elective recovery, so that is where the finances are coming from.
Trusts will be benchmarked against the programme standards for surgical productivity through the model hospital system, and NHS England and NHS Improvement have set up a beneficial changes network to collect evidence of innovation during the pandemic. The network has distilled 3,000 submissions and 700 examples of recognised beneficial changes into 12 high-impact change areas, which will now be rolled out to the NHS. That is something good that has come out of the pandemic through the need to work together to face challenges.
As the NHS begins to recover, increasing productivity is more important than ever. Many patients could not receive the care they needed during the pandemic, and the NHS faces unprecedented waiting lists. We owe an immense debt of gratitude to NHS staff, who have worked so hard to care for patients throughout the pandemic, but the NHS now needs to use the investment that we have provided to deliver more care more effectively and to remove the burden from staff. This year, we are providing £2 billion through the elective recovery fund to increase activity levels, and £700 million through the targeted investment fund to fund improvements in surgical productivity and digital productivity tools. Digital will be a big feature—we have all learned a lot during the pandemic.
We have announced a further £1.5 billion to build surgical hubs across the country in order to develop new models of care and increase productivity, which is being piloted by GIRFT and the London region. Some £2.3 billion has been allocated to transform diagnostics by rolling out at least 100 community diagnostic hubs and investing in digital diagnostics that will deliver 10% higher productivity. Another £2.1 billion has been allocated to digitise frontline services and free staff from admin tasks, so that they can spend more time with patients—something that was mentioned by my hon. Friend the Member for Bosworth.
Our aim is to return productivity to an ambitious trajectory, so that we can deliver on our ambitious plan to build back better and to clear the waiting list, but also to build an NHS that is fit and able to cope with the demands of the future. Of course, we have more work to do on integrating social care and developing best practice so that the systems work well together. It is not over and we have a lot of work to do, but I am sure that with all the measures that we have put in place, my hon. Friend the Member for Peterborough will feel satisfied that the NHS is continuously looking at continuous improvement.
Paul Bristow
I am impressed by the Minister’s response. She talked a lot about how the NHS will improve efficiency and productivity post pandemic. I remind her of the plea that I made at the very end of my speech: the key to this issue is transparency and accountability. If we do not open the windows and let the light in, the Government’s ambitions will not be realised, and money will be wasted through other means. Let us try to create an NHS that is as transparent as possible and accountable to Ministers, then we might be able to see some of the changes that the Minister talked about in her speech.
Question put and agreed to.
COP26 and Air Pollution
(3 years ago)
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Sir Gary Streeter (in the Chair)
Before we begin, I remind Members that they are now expected to wear face coverings. That is in line with current Government guidance and that of the House of Commons Commission. Please also give each other and members of staff space when seated and when leaving and entering the room. It is a great pleasure to call Mr Barry Sheerman to move the motion.
Mr Barry Sheerman (Huddersfield) (Lab/Co-op)
I beg to move,
That this House has considered COP26 and the impact of air pollution on public health and wellbeing.
Sir Gary, it is my pleasure, on this day of all days, to have secured this Westminster Hall debate: a day when the whole world’s attention is focused on COP26 in Glasgow, and there are signs—some mixed, but some good—of what is happening there. There has also been a petition, as you of course know, signed by more than 100,000 people, calling for an introduction of charges on carbon emissions to tackle the climate crisis and air pollution. Forgive me, Sir Gary, but I am currently suffering from a bad cold and a booster jab, so if my voice fails at any time, you will know the cause.
Air pollution kills 64,000 people in the UK every year, yet the Government provide annual fossil fuel subsidies of £10.5 billion, according to the European Commission. To meet UK climate targets, they must end this practice and introduce charges on producers of greenhouse gas emissions. Most Members of the House, and especially the Yorkshire Members, know of the Drax power station, which is currently producing energy from wood pellets, either produced in this country or imported from South America. For that purpose, it received a massive Government subsidy of £900 million last year.
I want to start at the beginning; I have always believed in borrowing from the United States declaration of independence, because I love the language. I used to be the head of a university’s American studies department —indeed, I taught the Deputy Speaker at one stage. I believe that there is an inalienable right for every person on this planet to be born, to live and to breathe fresh air. At the moment, that is not the case. How bad is it? Seven million people die prematurely across the world due to air pollution-related conditions, with 36,000 premature deaths in the UK alone, costing an estimated £12 billion.
Of course, with COP26, there is a risk of a great missed opportunity, as I believe there was last week in the Budget. If I were marking it as a university teacher, I would grudgingly give it a lower second. Why? Because I thought it was very technically competent, but it missed any true originality. That is the mark of a good essay: true originality. Originality is so important to everything that is produced. I could see the technical competence in last week’s Budget, but there was a lack of the imagination needed to say, “This is the time—with COP26 about to start in Glasgow, with all of us conscious that the planet is warming up and with the future of this fragile planet in danger—to tell the British people that we must act.”
In my experience as the longest-serving Member of Parliament on this side of the House—I was elected in 1979—the British public are intelligent and resilient, and have good common sense. We can persuade them that something terrible will happen if we do not act, and that we need extra money and taxation to so do. They are persuadable, as they have been persuadable before. They were persuadable after the ravages of the second world war. They picked themselves up and went through a period of higher taxation in order to get through. The economy grew, and so we grew out of many of our problems.
What was missing in the Budget was a Chancellor who said, “The situation is so precarious that I am introducing a number of taxes that will raise money to give us more practical ways to tackle global warming, here in our communities.” That is what was missing. That is what I want to speak about today.
Too much of the talk at the moment is global. Two or three of us here had the foresight to be the first people to invite young Greta Thunberg to come to the UK and talk to an all-party parliamentary group, and what a pleasure it was to hear her speak. However, many people think, “I cannot be Greta Thunberg; I cannot be an international statesperson; I am not the president of any country. I am just me, in my community.” We are failing to give people the ability to say, “I can help tackle this. I can roll up my sleeves and make a difference in my community,” even though it may not be something that is instantaneously registered on the global index.
Today, I want to talk about clean air, because all of us can do something about it in a practical way, and we can do it now. Let us review how bad things are. I have mentioned the cost in numbers of deaths, and I have mentioned that we need individual campaigns, yet we are still giving subsidies to companies that are polluting the atmosphere. Today, I am going to suggest some quick wins.
I want real engagement across every town and city throughout the country on a journey to sustainability based on the UN sustainable development goals. Colleagues might ask what I am doing about it as a Member of Parliament. Two years ago, we brought a group of business people to Huddersfield who joined with the university and local charities to form the Huddersfield sustainable town initiative.
My constituents really dislike it if I say we are an average British town, so I must say that we are a typical British town, which we are across almost every criterion. We are a microcosm of the United Kingdom: the percentage of people in manufacturing; the percentage of people in services; the level of education; the skills. We are a microcosm. My philosophy, which is shared by the members of the Huddersfield sustainable town initiative, is that if we can change Huddersfield into a sustainable town, there is no reason that every community in our country could not become a sustainable town. Why can we not spread from Huddersfield? We are already working with 37 towns. Why can we not have 500 towns and cities in this country work towards sustainability?
People say, “Why all that nonsense? Just get on with it. Why would you want the United Nations’ sustainable development goals?” Sir Gary, you know of my great interest in road safety. I have campaigned on it for many years: I organised for seatbelt legislation as a young MP, and in my only successful private Member’s Bill, I banned children from being carried without restraint in cars. I am now chair of the Global Network for Road Safety Legislators, a World Health Organisation committee, and because of that, I know that if we take a particular subject—even safety in a community—and put it in the context of the sustainable development goals, we transform the potential of what we are doing. The great thing about those goals is that they are rigorous. I have been involved in environmental campaigns all my life with other colleagues, and those campaigns have done really good work across many areas, but too many of them are discrete initiatives: recycling, reuse, cleaning up rivers and streams, and that sort of thing. If we have the rigour provided by the sustainable development goals, and we start off our whole sustainable development programme by consulting local people with a questionnaire asking which ones they want to prioritise, we take a real step towards engaging the local community. That is what we have done in my own community.
One of the things that we are targeting in Huddersfield is clean air. How do we stop filthy fumes from going into the air, in our case from an ancient energy from waste facility? I am not against energy from waste if it is high quality, but we have an old facility, and it does not create heat that is used to heat homes. That heat is not used in the correct way: much of it goes into the atmosphere, which is very damaging indeed, so we must first make sure that every sustainable town, city and community rigorously meets those sustainable development goals. The goals give communities that rigour: they will say, “We’ve got to this stage—yes!” but to get to the next stage and get the accreditation, they have to go one step further.
We all know that transport is critical to those sustainable development goals. Many believe that transport is responsible for 40% of the emissions we breathe in this country, polluting London and cities across the country with noxious emissions. Some great friends of mine who are Members of Parliament for Lewisham and are active there know as well as I do—because of the work we have done in the all-party parliamentary group on air pollution—about Ella Kissi-Debrah, who passed away. Her mother, Rosamund Kissi-Debrah, who I have met, had the insight and inspiration to get in touch with Sir Stephen Holgate, one of the leading professors and medical experts on clean air and its link to health and wellbeing, who works at the University of Southampton. He gave evidence at the inquest, and he got its verdict changed, because that little girl’s death was related to asthma but it was caused by the filthy pollution that she was breathing in, in a community that is just a stone’s throw from here.
All over London, we have schools; we have children; we have pregnant women; and we have elderly people. I particularly woke up during the first lecture that Sir Stephen gave to our APPG, when he said, “This is not just about NOx: it is the platelets on the NOx that cause the real damage to human health. Those platelets not only poison people and make them very ill indeed, but accelerate the aging process.” At my age, I sat up in my chair immediately thinking, “Yes!” However, that is only a lighter aside. The fact of the matter is that the air we are breathing in this country, in places where we might have thought we were guaranteed clean air, is not clean.
We have brought together a group of people in the Westminster Commission on Road Air Quality to try to do the research properly. We have an air health working party, a working party on air monitoring and a working party on education. Last week we heard from the experts on inside air, who said that where they have done audits inside schools—not just in the playground, not right by the polluting road that passes the primary school but in the classroom—the air is poisonous to breathe. If that is the case, it is time to take action, and take action we must. It also gives the opportunity for everyone to take action at the grassroots and to do it quicker rather than slower.
Yes, we all believe that we should move as fast as possible to electric vehicles, but all the research that I have been immersed in in my role suggests to me that the more we look at what is happening with electric cars, many of us believe that electric will be overtaken by hydrogen power. There is more and more evidence, in fact. Research is interesting because, with heavy goods vehicles carrying big loads, batteries are hard to use. In hilly areas, they do not have the ability to cope. Much of the research has been with HGVs, and the research that I have been privy to shows that already many HGVs are being produced to use hydrogen power. If that is true for big vehicles, it will come to small vehicles soon.
Of course, we must improve the vehicles on the road, but there are quicker things to do, too. We know that there are ways of adulterating—in the best way—the diesel that is put into commercial vehicles with vegetable extracts that make it much less polluting. Indeed, one of the people who has been educating me about that is William Tebbit, son of Norman Tebbit, who many of us remember very fondly. So this is not pie in the sky or wait a long time; this is stuff that we can do now, changing the fuel we are putting in heavy goods vehicles.
Sir Gary Streeter (in the Chair)
Barry, to give others a chance, perhaps you would take just a couple more minutes.
Mr Sheerman
I am just coming to the end.
Another practical issue is, how many people realise that, at the moment, nothing in the MOT test tests how polluting someone’s vehicle is? There is nothing in the test about what comes out of the back end of a car. If the recommendations that have been brought forward could be acted on now, we could transform the quality of the vehicles on our roads. Someone gave me this information recently: if we take out the particulate emissions filter in a vehicle, or it does not work properly, that one vehicle produces the equivalent of a traffic jam between Westminster and Huddersfield. That is frightening, is it not?
We have many practical ways to change the air in our country and move towards a clean air environment. I believe that this is the secret to opening people to getting involved in the environment, to accepting—perhaps—higher taxes in order to stimulate that move, and all round, to moving towards more sustainable and greater health and wellbeing for our country. I recommend this big change in our country; let us do it now.
Sir Gary Streeter (in the Chair)
Colleagues, there are five who wish to speak in this 60-minute debate, with about four minutes each. Wind-up speeches will begin at 5.10 pm.
Mrs Maria Miller (Basingstoke) (Con)
It is a great pleasure to see you in the Chair, Sir Gary. I commend the hon. Member for Huddersfield (Mr Sheerman) for securing this particularly timely debate on air pollution and its effect on public health. It is good to see the Public Health Minister in her place—sorry, it is not the Public Health Minister. She cannot reply because she has a mask on. She will update me on her role later. Swiftly moving on…
There can be little more important than the air that we breathe. We come into this world, we take those first gulps of air, and throughout our lives, it is the fresh air that we breathe that can make the difference between feeling good and not feeling good. We look for fresh air every day of the week. We want to go out into the countryside. The hon. Member for Huddersfield is right that in our country we think it is a fundamental right to be able to breathe clean air. It is important that the Government are already making great progress in sending strong messages to us, as a society and country, that clean air really matters, whether it is the commitment to ending the sale of petrol and diesel cars by 2030, or the package of measures in the recent Environment Bill.
The hon. Member for Huddersfield touched on the cost of pollution to our country—the £20 billion a year it is estimated to cost the UK economy and the many thousands of deaths caused by air pollution. One issue I want to touch on specifically is asthma and chronic respiratory conditions, which are a significant concern in my constituency, as I am sure they are for others. I have two children who have asthma—
Theo Clarke (Stafford) (Con)
I absolutely agree that it is a fundamental right to breathe clean air. Stafford Borough Council has installed the first eco-post in the country to monitor air quality. Does my right hon. Friend agree, following COP26, with the journey to net zero, that it is important to invest in air monitoring in our constituencies?
Mrs Miller
My hon. Friend makes a good point, and she brings me to the importance of practical initiatives that the hon. Member for Huddersfield touched on in his contribution. It is important that the Government are committing money and making laws and that the strategic framework is there, but unless the initiative is taken on the ground by local authorities and others, those good intentions will be for nothing.
I want to touch briefly on three initiatives in my constituency that bring that to life. Hampshire County Council, working with local schools on “My Journey” travel planning, helps children raise the awareness of their parents of the importance of travel planning, so as to reduce the number of cars on the roads. St Mark’s school in Hatch Warren has done a huge amount of work on that.
The “clear the air” Clean Air campaign, run by our local Basingstoke and Deane Borough Council, encourages people to stop idling engines outside schools, train stations or wherever it might be, and promotes awareness of how important that can be in reducing particulate pollution. Breathe Easy, a charity in my constituency that works with the British Lung Foundation, supports people with chronic lung conditions and has an important role to play. Last, but by no means least, is the work done by the county council to ensure that we help reduce road congestion by improving public transport provision.
Those are practical things that I hope the Minister might respond to, and I hope that the Government can support other local authorities, and indeed my local authority in Hampshire, to continue such important initiatives.
Kate Osamor (Edmonton) (Lab/Co-op)
It is a pleasure to serve under your chairmanship, Sir Gary. I thank the hon. Member for Huddersfield (Mr Sheerman) for securing this important debate.
There can be no more important time to be holding this debate. The battle to tackle the scourge of air pollution is inextricably tied up in all the other challenges that make up the climate and ecological crisis that should be front and centre in public discussion over the next couple of weeks. If the Government truly acknowledged the scale of the problem that is faced, particularly in urban areas such as my constituency, they would commit to far more radical action.
I would like to ask the Minister in summing up to consider the following three points. First, introduce legally binding targets for the UK to abide by the World Health Organisation’s stricter clean air standards. The Government have to be as ambitious as possible. Without aiming to reach the gold standard as soon as feasible, they are simply letting the health of the public down.
Secondly, we need serious action to meet those standards, and that will require considerable Government finance. Traffic is the largest source of urban air pollution, and changes in the way we move around, particularly in cities, are vital. However, we cannot allow the cost of that to fall on ordinary people. The purchase of electric cars to replace polluting vehicles should be supported by the Government through grants and interest-free loans, and every citizen should be able to apply for those. It will be essential to continue investing heavily in public transport while keeping prices down, and to support the flourishing of active travel schemes since the covid pandemic, supporting the making of journeys by walking and cycling wherever possible.
Thirdly, the plans for a massive new incinerator in my constituency of Edmonton, which will emit 700,000 tonnes of carbon dioxide a year, are simply outrageous. I refuse to believe that the project would be allowed to go ahead if the incinerator were to be in a leafier, more affluent suburb. I ask the Minister to urgently meet me and campaigners to push for the Government to pause and review the project.
Jane Hunt (Loughborough) (Con)
It is a pleasure to speak before you today, Sir Gary. I congratulate the hon. Member for Huddersfield (Mr Sheerman) on this interesting and informative debate.
Clean air is essential for life, health, our environment and the economy. Air pollution has reduced significantly in the last decade, but there is still more to do. We have a clean air strategy, which details how the UK will go further and faster than the EU in reducing exposure to particulate matter pollution. It sets out a goal to halve the number of people living in locations with concentrations of particulate matter above the WHO guidelines. The Environment Bill will build on that strategy, setting two air quality targets by October 2022, a target to reduce the annual average level of fine particulate matter— or PM2.5—and a further target to improve air quality. This action to improve air quality is backed up by £3.8 billion.
However, the Committee on the Medical Effects of Air Pollutants advises that a focus on long-term average concentrations of PM2.5 is the most appropriate to deliver public health benefits. That brings me to a point that fits in somewhat with what the hon. Member for Edmonton (Kate Osamor) said. I alert Members to the number of incinerators that are currently being planned or in the process of being built. I believe there are 18usb along the M1 in one section alone. One such incinerator is in a leafier constituency than Edmonton —at Shepshed in my Loughborough constituency. It is near to Shepshed town centre, but it is also close to Loughborough University, my biggest employer and home to élite athletes from around the world, who obviously run about and do all sorts of things in the open air. Also 3,000 houses are expected to be built just across the roundabout from the incinerator. When I mention the incinerator with local and national organisations, they often say to me, “Yes, but the M1 creates quite a lot of pollutants already and therefore it is very difficult to monitor and understand the impact of that particular incinerator.” However, as the hon. Member for Huddersfield said, we are bringing in electric and hydrogen vehicles, which I would like to see myself, and we would like to reap the benefits of those vehicles in Loughborough to lessen the impact of PM2.5.
Dr Dan Poulter (Central Suffolk and North Ipswich) (Con)
My hon. Friend is making a very good speech and I congratulate the hon. Member for Huddersfield (Mr Sheerman) on bringing this debate. My hon. Friend makes a good point about incinerators. Would she agree that incinerators have often been built to deal with the undesirability of landfill, but that has created a perverse incentive in the system? If we are going to look at issues such air pollution and clean air, we need to do that in a holistic way with other decarbonisation targets and priorities. That is what has created this problem in her constituency, and in others.
John McDonnell (Hayes and Harlington) (Lab)
At the moment, the Prime Minister is still at COP. There will be a major discussion around air pollution and what can be done globally, but we need to ensure we are acting locally as well, so I want to raise the issue of air pollution in London overall, particularly in relation to Heathrow airport.
In the 1970s, when we agreed to the expansion of Heathrow airport through a fourth terminal, it was about jobs. At that point, we had our first inkling of what air pollution could do to the overall environment, as well as to individual health. Since then, we know so much more, which is why the inspector in the fifth terminal inquiry recommended that there should be no further expansion at Heathrow on environmental grounds. Yet the Government still have the potential for a third runway at Heathrow on their policy cards.
The latest information is that Heathrow and the area around it is the second major hotspot for nitrogen dioxide pollution in London. It breaches the legal limits, and has done for many years. To be frank, the roads around Heathrow are above the legal limits, including for PM2.5 and nitrogen dioxide, and have been for at least the last decade. We now know much more about the impact of that on the health of people in the west London area, with links to respiratory and heart conditions, and, thanks to work in the United States, we know that this is linked to cancer as well. We cannot go to COP and argue with other countries about the need to tackle air pollution while we allow such polluting expansions as the third runway. It is a stark example of the impact on people’s health.
I have raised in this Chamber before the fact that children in my local schools have to hand their puffers into a special box and our teachers in Hillingdon have to be specially trained to deal with respiratory conditions in those children. If we are talking seriously about COP and the impact we are having on our environment, there has to be a time when we draw a line under Heathrow expansion. I believe that this is it.
We have never had a full health impact assessment of the third runway expansion. We have had some health impact analyses, all of which have said that there will be an increase in mortality and morbidity linked to respiratory and other conditions.
Dr Poulter
I agree with much of the sentiment of what the right hon. Gentleman says. He and I may disagree about some of the issues and merits or demerits of the recent Budget, but I am sure we will agree that the cut in air passenger duty for short haul flights was a slight disappointment. Does he agree with me that that is something that the Chancellor might want to reconsider?
John McDonnell
I made that point in the debate on the Budget, and I do not want to be repetitious. The issue for me is that any tax relief or tax reduction that either promotes further emissions or supports those polluting our environment is clearly contrary to Government policy, as far as I can see. On that basis, I hope that, as a result of COP, in the next few weeks or perhaps months the Government will firmly come down as opposed to further Heathrow expansion.
Peter Dowd (Bootle) (Lab)
Thank you, Sir Gary. It is a real pleasure to serve under your chairship.
On COP, air quality and the impact on health and wellbeing, we have to drill down to the specifics. We can talk at a national, international or regional level, but it always comes down, in effect, to what is happening in local communities, with the cumulative effect in them. My local community, like those of my right hon. Friend the Member for Hayes and Harlington (John McDonnell) and other hon. Friends, is no different.
My area has a huge dock in it. The Liverpool docks are based in my constituency, and we have thousands of lorries coming down the road, the A5036, all the time—daily, of a night, at weekends. They are great pollutants, as are local cars and local transport. The council has had five monitoring stations in the area, and a sixth up and running, and since covid those levels have been dramatically down. That should teach us a lesson, which is that we have to get vehicles, whether they be lorries or cars, off the road.
I am really disappointed, notwithstanding COP and notwithstanding covid, that National Highways—it used to be Highways England, which used to be the Highways Agency, and I think it changes its name so we can never keep up with what it is at and hold it to account—persists with this old-fashioned view, which must be 20 years out of date, that if there is a problem with a road, the solution is to build another one. That is exactly what it is proposing in my constituency. It is proposing to build a £250 million road through Rimrose valley. Rimrose Valley Friends has done a great job opposing it, but there will be a £250 million road through the only green part of my constituency. It is possible to walk from one end of the constituency to the other in about 35 or 40 minutes, and the same in the other direction, so it is incredibly tight. Within it there is this lung, Rimrose valley, and what does the Highways Agency or Highways England or whatever it is called nowadays—National Highways—do? It is going to put a road through it, and that is not acceptable.
I ask the Minister to go back and speak to her colleagues and get that process halted—put a stop to it—pending the lessons learned from covid and pending COP. Departments and agencies pushing on with the same old hackneyed solutions will not be a resolution for any of us. The local authority is trying to do what it can, but it can only do so much. We have money for an air quality grant, which is helping us to educate, and we are working collaboratively as much as the local authority can, but it is not much. We need national action, and we need the Department to get a grip of National Highways and to call a halt to this programme. It should discuss it with local people, discuss it with the port and discuss it with all interested parties, and just stop this madness continuing, because it is not acceptable.
I will make a final point, if I may. We have that going on, but we have the docks—a major, massive dock—and they are only going to expand because there will be more containers coming in through the north, as another alternative, because of covid. What I want to do is to work collaboratively with everybody to stop the road being built. Let us rethink the issue. Because we are in a port area, we have scrapyards, but for the third or fourth time in the last few years we have had massive fires that are adding to the problem. It is not just about cars and lorries, but about all the other associated things. Let us get a grip of this, let us do better enforcement and let us stop the cheating on emissions. Let us get to grips with this issue, stop that road going through and work with our communities to sort out the problem.
Sir Gary Streeter (in the Chair)
Thank you, colleagues, for your co-operation. We now come to the Front-Bench speeches.
Dave Doogan (Angus) (SNP)
It is a pleasure to serve under your chairmanship, Sir Gary. I also thank the hon. Member for Huddersfield (Mr Sheerman) for securing the debate.
COP26, of course, is about our climate. Air pollution is a different, although not entirely unconnected, matter. COP is about cleaning up our act, and we certainly need to clean up our act when it comes to air quality. To that point, the hon. Member for Huddersfield mentioned Drax, and I say to the Minister that Drax is anathema to anybody with a passing concern for air quality. It is an almost dystopian process, which scars the landscape of the United States on an industrial scale, poisons the people who live near the mills with particulates in the air to make the pellets, and ships them half way around the world to England to be burnt. It would be bad enough without a Government subsidy, but with one it is absurd. I would like to know if the Minister agrees with that analysis.
Air pollution is known to kill many thousands of people around the world every year, while rendering many others subject to chronic illness as a result of PM10 and increasingly—as our knowledge expands— PM2.5 and NOx. Air pollution has been likened to cancer, asthma, diabetes and dementia. Children subjected to air pollution are much more likely to die in their first two years, or to attend A&E with chest infections.
It is good to hear from Members about what is happening in their localities around these islands. Two studies in Scotland have shown that on days of illegal levels of pollution there are significant increases in hospital admissions with new-onset heart and lung disease and blood clots in the arteries of the legs, when compared with days when the air pollution is within legal limits. It is estimated that air pollution costs the United Kingdom £20 billion per annum in health and social care. We know that those who are already disadvantaged are disproportionately affected. Often living in city centres or beside main roads, they have less access to green spaces that can absorb the noxious pollutants. They are also less able to afford a car, thus suffering the ill-effects without contributing to them—it is a social injustice.
In 2014, Health Protection Scotland estimated that air pollution caused about 1,700 deaths every year in Scotland alone. The number of vehicles on UK roads between 2010 and 2019 increased from 34 million to almost 39 million. On this point, I must make a very important clarification; not all vehicles are made equally. I know from my experience as a local authority councillor that although traffic volumes are relevant in terms of congestion, concentrations of pollutants and airflows through the streetscape and built environment, new vehicles are exponentially cleaner than those produced more than 10 years ago. This is especially true of commercial vehicles such as buses. The Department for Transport should take a very serious look at being able to stop, test and seize vehicles. They can do it for vehicle excise duty, so why can they not do it for vehicles that are clearly belching out poisonous gas beyond the limits set at MOTs?
It is worth noting that outside our major cities, and certainly unlike in London where electric-hybrid buses and vehicles whirr by regularly, many bus services’ profitability is so marginal that old vehicles are kept in service that, in air quality terms, are absolutely filthy and a patent threat to public health. We need to be able to take a whole-system view, so that the failure demand that our NHS has to meet is offset by seizing the opportunity cost of investing in infrastructure and equipment.
To this end, the Scottish Government aim to reduce car use by 20% by 2030, taking it back to levels last seen in the 1990s. Moreover, sustainable public transport is essential for the ambition to reach net zero. That is why the Scottish Government will have phased out the majority of fossil fuel buses by 2023, and will invest £120 million in zero-emission buses. The UK Government could learn a lot from Scotland in our shared pursuits of net zero and viable green recovery plans. For example, the UK Government must stop cutting electric vehicle access schemes, such as England’s electric vehicle grants system. This has been further downgraded from £5,000 in 2011 to £4,500 in 2016; to £3,500 in 2018; to £3,000 in 2020; and now to £2,500 in 2021. This is the worst sort of swimming against the tide. Figures from electric vehicle charging website Zap-Map show that of the 21,000 public charging points in the UK, only 20% are free to use; that is 4,928 points, and 26% of these are in Scotland where around 60% are free to use. Electric vehicle drivers in Scotland benefit from almost 40 public charge points per 100,000, compared to fewer than 30 per 100,000 in England. Promoting and investing in active travel access is essential to drive down car usage. Scotland currently spends over £18 per head of population, compared with just £7 in England––more than 150% higher.
Lord Tebbit was mentioned earlier in the debate. To be very generous to the noble Lord, perhaps even to revise things, he did at one stage advise the nation to get on their bikes. I cannot remember exactly what he meant, but in public health terms he does at least have a contemporary point.
Ruth Jones (Newport West) (Lab)
It is a pleasure to serve under you today, Sir Gary, in what has been a collegiate and consensual debate. While the world’s eyes are rightly looking to Glasgow, I am grateful to my hon. Friend the Member for Huddersfield (Mr Sheerman) for securing this important and timely debate. He has been a Member since 3 May 1979, which translates into 15,524 days, and he still has his finger on the pulse.
The House has heard me say before that air quality is one of the most important policy areas and issues facing all our constituents the nation over. The facts are there for us all to see. They all show just how damaging toxic air is to our communities and its disproportionate impact on the health and wellbeing of our people. Coronavirus has highlighted the inequalities and disproportionately impacted on those living in the areas with the worst air.
Air pollution is bad for everyone––we know that––but for the 12 million people in the UK who live with a lung condition such as asthma or chronic obstructive pulmonary disease, it poses a real and immediate threat to their health. A spike in air pollution can lead to symptoms getting worse, flare-ups and even hospitalisation. We know from the coroner who investigated the death of Ella Kissi-Debrah that it can lead to death, too. There is robust evidence of a clear link between high levels of air pollution and increased numbers of patients with breathing problems presenting at hospitals and GPs’ surgeries.
I was delighted earlier this year to co-host Labour’s clean air summit with the shadow Secretary of State. In the first summit of its kind to be hosted by a major party, we set out our demands for a clean air Act. Labour’s clean air Act, which we will deliver when we form a Government, will establish a legal right to breathe clean air by ensuring the law on air quality is at least as strict as the World Health Organisation guidelines, with tough new duties on Ministers to enforce them and grant new powers to local authorities to take urgent action on air quality. That stands in stark contrast to the Conservative party and would deliver improved air quality across England.
Conservative inaction has allowed catastrophic levels of air pollution to build up across the country, especially in the most deprived areas of our big cities. Indeed, this Government’s refusal to take even the smallest steps to tackle illegal levels of air pollution leaves local government on the frontline in the fight for better air quality.
It is not just me expressing concern at the inaction of this Government: it is felt by Members of the Minister’s party, too. I note the speeches of the hon. Members for Tiverton and Honiton (Neil Parish) and for Bromley and Chislehurst (Sir Robert Neill) and indeed that of the hon. Member for Newcastle-under-Lyme (Aaron Bell) on the Environment Bill just two weeks ago. I just wish that they had resisted the pressure of the Whips and voted for Labour’s amendment to write the WHO guidelines into the Bill.
Last week, I met Rosamund, the mother of Ella Kissi-Debrah, who died in 2013. We spoke about the need for urgent action to clean our air and the fact that COP26 could set an example––a British-made example––to generations to come. In December 2020, the coroner ruled that Ella had died as a direct result of air pollution, as we have heard already today. The coroner said that he believed that air pollution made a material contribution to Ella’s death. Like so many, she was exposed to illegal levels of nitrogen dioxide and particulate matter in excess of WHO guidelines. I would like the Minister to explain why the Government voted against Labour’s attempts to clean our air by writing the guidelines into the Environment Bill.
I pay tribute to the many parents, young people, experts, campaigners and elected representatives here today who are working to clean our air and save our lives. I look forward to working with my hon. Friend the Member for Huddersfield and others to deliver Labour’s clean air Act, and the Minister is of course very welcome to join us, because the future of the planet and the lives of our people depend on it.
Sir Gary Streeter (in the Chair)
I call the Minister, Jo Churchill, to respond. Could she kindly leave one minute for Mr Sheerman to wind up at the end?
The Parliamentary Under-Secretary of State for Environment, Food and Rural Affairs (Jo Churchill)
Indeed I will, Sir Gary, and thank you very much for calling me to speak. It is a pleasure to serve under your chairmanship.
I thank the hon. Member for Huddersfield (Mr Sheerman) for raising this issue; as he said, this debate is timely and the issue is important to each and every one of us. Securing it while world leaders are coming together for the planet in Glasgow shows just what a consummate professional he is, dovetailing the debate such a timely way. I wish him well with his own health.
We are all concerned about the impact of air pollution on public health and we are hosting the COP26 summit at a turning point for both the planet and health. We have been making progress. However, over the course of the UK presidency of COP26, we need to see further progress on commitments to secure global net zero carbon emissions by the mid-century. It will be a challenge; we need to see countries coming forward with ambition. Success at the summit and beyond will rely on all countries rallying behind the common goal of rapidly reducing carbon emissions and protecting the planet. Although COP26 is arguably focusing on greenhouse gases and not air pollutants, we should seize the opportunity to reduce the emissions of other pollutants from the same sources, because, as everybody has said, there is a lot of crossover here.
Air pollution in the UK has reduced significantly over the last decade, but there is definitely more to do. For example, emissions of fine particulate matter, or PM2.5, have fallen by 11% and nitrogen oxide emissions are at their lowest level since records began. None the less, air quality is still the top environmental risk to human health in the UK and there is absolutely no room for complacency.
We heard from many Members about the challenges to health that air pollution brings. There is lots to do and I agree that the use of new technology—whether that is the use of fats in lorries, or hydrogen technology, which the Government have been investing in even in the last week, through the hydrogen transport programme—means that we need to harness the best of British, to ensure we make the right progress.
That is why the UK is continuing to take urgent action to curb the impact of air pollution on citizens and communities through the Environment Bill and the clean air strategy. The action that we set out in the clean air strategy will reduce the cost of air pollution to society by £1.7 billion every year from 2020, rising to £5.3 billion every year from 2030.
My Department cannot achieve the transformation alone; there is no single, one-size-fits-all silver bullet that will solve the problem of air pollution. That is why the clean air strategy outlines a comprehensive programme of action across all parts of Government. We have heard about the health challenges, the transport challenges, challenges about where people live—local authority challenges—and the idling of cars, which local authorities obviously have a power over. Indeed, we have heard about the beneficial work being done in both Basingstoke and Stafford on these issues, to help to empower communities to have better air quality. However, this process is about us all working together, because transformational change can only be achieved through close collaboration with other parts of Government.
Furthermore, there is a vital role for broader leadership from the health and environmental sectors because much of what has been spoken about today also relates to how we recycle, how we use our waste and how we might reuse things. The hon. Member for Edmonton (Kate Osamor) and my hon. Friend the Member for Loughborough (Jane Hunt) both mentioned that point, referring to the use of incinerators; if I have time, I hope to come on to incinerators.
This issue is about the business sector, service providers and local authorities helping to build acceptance for the bolder actions that must be taken to tackle the health impacts of air pollution as a major public health imperative. The hon. Member for Bootle (Peter Dowd) spoke about not having a particular road. However, during the covid crisis we actually had low-traffic neighbourhoods, but we found that traffic diverted to other parts of the town or area. There is not an ideal off-the-peg solution.
We also looked at the fact that, although nitrogen oxide levels diminished, as has been said, the reduction in PM 2.5 particulate matter did not change. It is actually much more complex than it is often presented to be.
The landmark Environment Bill will improve air quality by establishing a duty to set two new legally binding targets to reduce that fine particulate matter. We are developing two targets: a concentration target and a population exposure reduction target. That is what the clear air zones are about. Arguably, Huddersfield does not face the same air quality challenges that we might have in London, Manchester or Bath, or any city that is looking at putting in place a CAZ. That unique dual approach is strongly supported by our expert committees—the air quality expert group and the committee on the medical effects of air pollutants—and it will be an important part of our commitment to drive forward tangible and long-lasting improvements to the air breathe. We will consult on how to bring forward those groundbreaking targets next year.
As part of the information we take from experts, waste incineration companies must comply with strict emission limits under the environmental permitting regulations. They cannot operate without a permit. Emissions from energy from waste are monitored. We consult with Public Health England on every application, and its position on incineration is that a modern, well-run and regulated incinerator is not a significant risk to public health. We have to get rid of the challenge of rubbish.
The Environment Bill will completely revise the local air quality management framework to create a more strategic structure that will enable local authorities to take more effective action. It will also deliver significant improvements to public health by ensuring that local authorities have more effective powers to tackle emissions from domestic burning, which is a key source of harmful fine particulate pollution, as well as the idling that was mentioned.
Jo Churchill
No. I am really sorry, but I have only one minute left. The Bill introduces new powers to compel vehicle manufacturers to recall vehicles and non-road mobile machinery if they are found not to meet the environmental standards that they were approved to meet—I think that answers a question that was raised earlier. It will enable the Government to compel manufacturers to recall vehicles and non-road mobile machinery for failures in their emission control.
New legislation came into force across England earlier this year to reduce PM 2.5 pollution by phasing out the burning of small volumes of wet wood and the sale of all house coal. However, some residents still rely on coal fires, so we have to work our way through those challenges.
The Government allocated £880 million to tackle nitrogen dioxide exceedances under the 2017 air quality plan for nitrogen dioxide. This year, the first clean air zones were introduced in Bath and Birmingham, which deliver targeted action to improve air quality and health and to support economic growth.
We are working hard to provide citizens with the information they need to protect themselves. I also have a Breathe Easy group. Those groups do great work, but we have to make sure that we work with experts so that we can get really timely information to people such as, “If air pollution is low, carry on as usual. If it is high, and you have asthma, avoid vigorous activity”. To do that, we need to do the monitoring that we are now scaling up, so that we have a good alert system to help protect people. That system was revamped in 2019.
There is just about a minute left. There is plenty more that we are doing and that we will carry on doing. We have different biomass anaerobic digestion issues and, as my neighbour and hon. Friend the Member for Central Suffolk and North Ipswich (Dr Poulter) said, we have to make sure that policies do not fall against each other.
In conclusion, taken together, this is a comprehensive package. However, we have to do more by seizing opportunities and addressing risks. We need to take action to tackle climate change and air pollution. We are committed to cleaning up our air and carrying on our work.
Mr Sheerman
It has been a very good debate, as it always is with you in the Chair, Sir Gary. The fact of the matter is that we do not want too little, too late. We want it now. Children are being poisoned; 3 million children in our own country are being poisoned by fumes mainly coming from air pollution from roads. We have some short-term things. Yes, we need international and global leadership at COP26, but we need local empowerment and we need it now.
Written Statements
National Security and Investment Act 2021: Call-in Power
(3 years ago)
Written StatementsRead Full debate Read Hansard Text Read Debate Ministerial Extracts
The Secretary of State for Business, Energy and Industrial Strategy (Kwasi Kwarteng)
The National Security and Investment Act 2021 protects the public from potential risks. It bolsters the UK’s status as an attractive place to invest by providing more efficient clearance processes for relevant acquisitions and more certainty and transparency for investors and businesses. It is a proportionate response to modern developments in international investment.
It will also ensure foreign direct investment projects can continue to boost jobs and stimulate the economy in every corner of the UK, as the vast majority of deals will be able to proceed without delay.
The Act provides for a call-in power which enables the Government to screen qualifying acquisitions for national security risks. In order to use the call-in power, the Secretary of State must—in accordance with section 3 of the Act—lay before Parliament, and publish, a statement on the expected use of the call-in power. This will provide clarity and certainty for businesses and investors on the circumstances in which national security risks are considered more likely to arise from qualifying acquisitions.
The Government consulted on a draft of the statement from 20 July to 30 August, in line with the commitment to consult given during parliamentary passage of the Act. I am grateful for the constructive responses which we received from businesses, investors, law firms and others.
I am today laying the statement before Parliament and publishing it alongside the Government’s response to the consultation. This fulfils the requirements of the Act and enables the call-in power to be used once the Act fully commences on 4 January 2022.
The statement should be read alongside other guidance documents which the Government have published about the NSI system, and further guidance will be published in the coming weeks.
I will place a copy of the Government response to the consultation on the draft statement for the purposes of section 3 in the Libraries of both Houses.
[HCWS368]
Register of Beneficial Owners of Overseas Entities Update
(3 years ago)
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The Parliamentary Under-Secretary of State for Business, Energy and Industrial Strategy (Paul Scully)
My noble Friend the Parliamentary Under- Secretary of State for Business, Energy and Industrial Strategy (Lord Callanan) has today made the following statement:
The Government committed, via section 50 of the Sanctions and Anti-Money Laundering Act 2018, to report to Parliament annually on the progress that has been made towards putting in place a register of beneficial owners of overseas entities owning land in the UK—“the overseas entities register”.
The overseas entities register is one of a number of proposed corporate transparency reforms which together will play an important role in underpinning a strong, transparent and attractive business environment in the UK while reducing the opportunities for bad actors to abuse our systems and controls.
Since last updating Parliament, in July 2020, the Government published their response to their landmark consultation on reforming Companies House. The response, published in September 2020, set out the Government’s proposals to boost Companies House’s potential as an enabler of business transactions and economic growth, while giving it a bigger role in combating economic crime. The far-reaching reforms include verification of the identity of people who manage or control companies, and anyone else submitting filings, utilising the latest technology; greater powers for Companies House to query and challenge the information submitted to it; and the effective protection of personal information provided to Companies House. Three further consultations were published in December 2020, seeking views on the finer details of the reform package.
These reforms amount to the largest change to our system of setting up and operating companies since the companies register was created over 170 years ago.
The UK continues to lead the global fight against illicit finance and this register will strengthen our already impressive controls. The Financial Action Task Force completed a landmark review of the UK’s regime for tackling money laundering in December 2018, concluding that we have some of the strongest controls in the world.
The Government intend to introduce legislation to Parliament as soon as parliamentary time allows.
[HCWS366]
Disclosure of Asset Sale Completion
(3 years ago)
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The Economic Secretary to the Treasury (John Glen)
I can confirm today the completion of the sale of the share capital of Bradford & Bingley (B&B) plc and NRAM Ltd, returning both companies to private ownership.
In February 2021, the Government announced the agreement of a transaction to sell the share capital of B&B and NRAM, and their remaining loan assets, to a consortium of Citibank and Davidson Kempner Capital Management. The sale of the loan assets to Citibank completed in March. Following the receipt of regulatory approvals from the FCA, the sale of the companies to Davidson Kempner completed on 29 October.
Accounting for final adjustments ahead of completion, this transaction generates a total consideration of £5.2 billion for the Exchequer.
The completion of this transaction marks a significant milestone in the Government’s work to divest the institutions and assets brought into public ownership as a result of the 2007-08 financial crisis.
[HCWS367]
Grand Committee
Arrangement of Business
The Deputy Chairman of Committees (Lord Haskel) (Lab)
My Lords, Members are encouraged to leave some distance between themselves and others and to wear a face covering when not speaking. If there is a Division in the Chamber while we are sitting, this Committee will adjourn as soon as the Division bells are rung and resume after 10 minutes.
Armed Forces Bill
Tuesday 2nd November 2021
(3 years ago)
Grand CommitteeRead Full debate Armed Forces Act 2021 View all Armed Forces Act 2021 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 42-II Second marshalled list for Grand Committee - (29 Oct 2021)
Baroness Goldie
Member’s explanatory statement
This amendment would make consequential provision in connection with the new Clause proposed by Baroness Goldie to be inserted after Clause 11.
The Minister of State, Ministry of Defence (Baroness Goldie) (Con)
My Lords, I rise to speak to group 7, which comprises government Amendments 38 to 42, 45 to 47, and 67 and 68, in my name. I will speak also to Amendments 43, 44 and 66, in the names of the noble Lords, Lord Coaker, Lord Robertson of Port Ellen and Lord Thomas of Gresford, and the noble and learned Lord, Lord Thomas of Cwmgiedd.
I thought it would be helpful if I started with something of a scene setter on the report of the review conducted by Sir Richard Henriques. As noble Lords will be aware, on 13 October 2020, the Secretary of State announced the commissioning of a review by Sir Richard Henriques, to build upon, but not reopen, the recommendations of the service justice system review by His Honour Shaun Lyons and Sir Jon Murphy.
The aim was to ensure that, in relation to complex and serious allegations of wrongdoing against UK forces on overseas operations, defence has the most up-to-date and future-proof framework, skills and processes in place, and that improvements can be made where necessary. The review was to be forward looking and, while drawing on insights from the handling of allegations from recent operations, it was not to reconsider past investigative or prosecutorial decisions or to reopen historical cases.
I am pleased to say that Sir Richard submitted his report at the end of July 2021 and, as I had committed to do at Second Reading, we published it on 21 October, with a supporting Written Ministerial Statement, to enable your Lordships to have chance to consider it during the passage of the Armed Forces Bill. It goes without saying that we are very grateful for the comprehensive and considered work that Sir Richard has undertaken, and we particularly welcome his recognition of the need for a separate system of military justice. In summary, the report contains a total of 64 recommendations, approximately a third of which are focused on taking forward the establishment of a Defence Serious Crime Unit—DSCU—originally recommended by Sir Jon Murphy.
There are also a number of operations-related recommendations, including for protocols between the service police, the Service Prosecuting Authority and the Judge Advocate-General for processes relating to the timely and effective investigation of allegations of unlawful killing and ill-treatment by UK forces on overseas operations. There are also recommendations for improving the technical IT systems supporting the military courts, and a number of recommendations relating to summary hearings.
As set out in our ministerial Statement, we have prioritised taking forward the recommendations to establish the Defence Serious Crime Unit, and I am extremely pleased that we were able to take swift action to table the government amendments for the key DSCU recommendations—one, two and seven—because they require primary legislation.
We have also committed to taking forward work over the coming months on four other recommendations, which will: amend standard operating procedures to ensure that service police are informed with minimum delay of reportable offences; establish a serious incident board within the Permanent Joint Headquarters; create or upgrade an operational record-keeping system; and adopt a uniform approach in respect of training of service legal personnel prior to their posting to the Service Prosecuting Authority.
The remaining recommendations, including among other things legal support to personnel, improved technology and IT for the service courts and improvements to the summary hearing process, raise wider implications relating to policy and legal and resourcing issues. These will be considered further by the department over the coming months. Where appropriate and necessary, legislation will be brought forward when parliamentary time allows. I will of course update your Lordships on progress.
Our goal will be to ensure that, in considering and taking forward work on Sir Richard’s recommendations, we continue to maintain operational effectiveness and the swift delivery of fair and efficient justice for victims and offenders.
The amendments in my name contain the necessary changes to primary legislation to give effect to the Government’s plans for a new tri-service serious crime unit, headed by a new provost marshal for serious crime. This is an important set of amendments that demonstrate the Ministry of Defence’s commitment to the highest investigative capabilities for the service justice system. Through this, we are rapidly taking forward the most important set of recommendations from Sir Richard Henriques’s recently published review.
The amendments make the following key changes. The new clause provides that the new provost marshal for serious crime is subject to the same rules about appointment as existing provost marshals. This means appointment by Her Majesty and the requirement that they be an officer in the service police. The new clause also provides that the new provost marshal for serious crime will be responsible for ensuring that investigations of the new tri-service serious crime unit are independent.
The new schedule contains consequential amendments relating to the clause and provides the new provost marshal for serious crime with the same investigative powers as the pre-existing provost marshals for the Royal Navy, Army and Royal Air Force and service police. I should underline that these are not new investigatory powers for the service police. This is about ensuring that the existing service police investigatory powers are available for the new arrangements. We expect there to be a similar consequential exercise for changes needed to secondary legislation.
Sir Richard’s recommendations supported those made by His Honour Judge Shaun Lyons and Sir Jon Murphy regarding the implementation of a Defence Serious Crime Unit. He further recommended: that the Defence Serious Crime Unit be an operational unit; that it should be commanded by a provost marshal for serious crime; and that the provost marshal for serious crime should have a duty of operational independence in investigative matters owed to the Defence Council, on the same terms as that owed by the service provost marshals under Section 115A of the Armed Forces Act 2006.
The Ministry of Defence has been working on the Defence Serious Crime Unit model since the recommendations made by the Lyons and Murphy review. There were non-legislative ways of implementing the recommendations from Lyons and Murphy under consideration. However, the recommendations from Sir Richard require primary legislation, particularly as far as they concern the operational independence of the unit and the new provost marshal.
The Defence Secretary is adamant that we should progress these aspects of Sir Richard’s report with the utmost speed, which is why we are bringing these amendments before your Lordships today. With the support of noble Lords, we will be able to implement these critical recommendations and, in tandem, we will progress the remaining recommendations which focus on the functionality, remit and operational considerations for the unit.
With the establishment of the new provost marshal for serious crime and the tri-service serious crime unit, the MoD will be in a stronger position to respond to serious crime. We will be able to combine resources and specialist skills from across the single services under one unit and will build an independent, more effective and collaborative approach to policing across defence.
This reinforces the decision by the Secretary of State for Defence that the existing principle of jurisdictional concurrency between the service and civilian jurisdictions should be maintained. That of course is a position that Sir Richard Henriques has also supported. The service justice system is capable of dealing with the full range of offences when they occur, in the UK as well as overseas. These changes to service policing will support that capability into the future.
I hope that this explanation assures noble Lords of our commitment to the improvement of policing across the service justice system and our intent to adopt the recommendations provided in the judge-led reviews. I therefore urge your Lordships to support the proposed amendments in my name.
Lord Robertson of Port Ellen (Lab)
Will the noble Baroness give way for a moment? She admits that she is not implementing all the recommendations in the Henriques report in relation to the prosecution and then she said that the Government would consider them with utmost speed. I recognise all these wonderful phrases. Then she said that she would bring forward amendments when parliamentary time allows. That seems to me to kick the matter down the road. Some of his recommendations that are not part of this new clause need to be implemented as early as possible. I am sure the Minister will eventually find that “when parliamentary time allows” normally means in many years’ time.
Baroness Goldie (Con)
I am just checking back to see what I actually read out. I was pointing out that this is roughly broken into three sectors. One is what we are taking forward today with the amendments. The second concerns four other specific recommendations that we are taking forward. Then the remaining recommendations, as I said, raise wider implications for policy, resourcing and legal issues. I said that these will be considered further by the department over the coming months and, where appropriate and necessary, legislation will be brought forward when parliamentary time allows.
That is not kicking the can down the road. That is to simply say to the noble Lord that we recognise that we still have research, inquiry and investigation to do in the department to understand the consequences of these recommendations from Henriques. We want to be clear about that but, equally, we are very positive about Sir Richard Henriques’ report. I said that our goal will always be to ensure that, in considering and taking forward work on his recommendations, we keep an eye on operational effectiveness and the swift delivery of fair and efficient justice for victims and offenders.
I hope that explains to the noble Lord why I cannot really go any further than that today. I certainly dispute his analogy of kicking the can down the road. This is a serious and substantial piece of work. We are prioritising the most important part, which we think will make a big difference to policing within the service justice system, and we are being canny about how we then progress the other bits of the report.
Lord Robertson of Port Ellen (Lab)
May I ask the Minister to be more specific and tell us which of his recommendations in relation to this specific part raise policy implications that will have to be considered over some time?
Baroness Goldie (Con)
The noble Lord will have read the report and he will be in no doubt, I imagine, about both the extent and the complexity of many of the recommendations. I cannot be drawn into commenting on something where we are still doing the exploratory work to understand what the implications of the recommendations are. To reassure the noble Lord, as I said earlier, we are very positive about this report. It is a huge contribution to how we deal with justice and the service justice system. I beseech the noble Lord to exercise a little patience. I know that his natural interest in these matters, and the avenues available to him to pursue that interest, will ensure that I and the department are kept on our toes.
I was about to speak to Amendments 43, 44 and 66. I turn first to Amendment 43. That seeks to change the wording in government Amendment 42 on the duty of investigative independence for the defence serious crime unit. Government Amendment 42 works by updating the existing duty on the service police currently contained in Section 115A of the Armed Forces Act 2006. The government Amendment provides that the provost marshal for serious crime must
“seek to ensure that all investigations carried out by the tri-service serious crime unit are free from improper interference.”
The term “improper interference” is already defined in Section 115A. It includes any attempt by someone not in the service police to direct an investigation. Amendment 43 would amend the duty so that, rather than seek to ensure that investigations are carried out free from improper interference, the duty will be absolute, placing on the provost marshal a need to guarantee—“to ensure”—that the investigations are operationally independent.
Lord Coaker (Lab)
My Lords, first, good afternoon, everyone; it is a great privilege to be here again for the second meeting of the Committee, after what I thought was a really interesting and thoughtful discussion on our first day. As I have said to the Minister in the various meetings I have had with her, we support the establishment of the unit and think it is a good step forward. But we have questions to ask and, as the Minister can see from the amendments that we have tabled, issues that we wish to raise and press the Government on, to ensure that we make this new unit as effective as possible.
I will speak to the government amendments but, first, will say to the Minister that I was struck by one of the comments of the noble and learned Lord, Lord Thomas of Cwmgiedd, in the debate we had the other day on the first group of amendments. He talked about the need for public confidence and trust in any system that we set up. This is really important, and we will come to it when we talk about some of the amendments we have tabled, and some of the probing of the Government that we want to do. In reading around this group of amendments, I was struck by one of the statements made by the court in the judgment of the Mousa case, which was:
“One of the essential functions of independence is to ensure public confidence and, in this context, perception is important.”
I respectfully ask the Committee to bear that in mind as we go through these various amendments.
We strongly welcome the detailed report of Richard Henriques, and the recommendations, and we hope that the Government will implement the recommendations as soon as possible. This goes to the heart of what my noble friend Lord Robertson said. We want to press the Government on what they mean by implementing the recommendations and the timeline for all of that. The report is especially pertinent, and I wonder whether the Minister might like to take the opportunity to say something about the allegations in the Sunday Times about a Kenyan woman being murdered by a British soldier, with no action apparently being taken and evidence suggesting that the case was actively suppressed. I think all of us would hope that the establishment of this unit would prevent that sort of thing occurring in future.
I will speak to these recommendations that the Government have put down. As I said, we welcome the establishment of the serious crime unit. However, as the Minister said, the Government’s framework amendment does not fully implement all the recommendations. Indeed, as I have already pointed out to the Minister, she wrote to us all on 22 October, only just over a week ago, saying that the amendment would implement three of Sir Richard’s recommendations. This is why many of us are wondering what this means.
In her opening, the Minister said that there were three and that four have been added to that but, as we know, Henriques makes more than 20 recommendations relating to the establishment of the serious crime unit. If there are three in the letter and four in this—unless I have misunderstood what the Minister said to us—what has happened to the other 13 that relate specifically to the unit? The Minister will understand the Committee’s desire to know more about what is happening to the rest of these recommendations. There were 64 in total, but 20 relating to the serious crime unit. What has happened to the others? What is the timeline for it? Will the Government implement the other 13—if that is the right number—or are they saying, “We’ll have a look, but we’re not very keen on these”? We need to know from the Government what exactly is happening to those other recommendations. Which are not going to be adopted? Which are the Government thinking about? We need some understanding of the timeline; I think many of us want greater clarity on that. What is happening with respect to that, and when can we expect to know more about the number of recommendations that will be implemented?
There are a number of other things that we need some clarity on. The Minister’s letter said the amendment would ensure that the new provost marshal for serious crime will be under a duty to ensure that investigations by the tri-service serious crime unit are independent. I know the Minister has sought to answer this, but the Government use the words “seek to ensure”. In the court of public opinion, people would say that we should not seek to ensure that all investigations carried out by the tri-service serious crime unit are free from improper interference; it is an expectation that they are independent. Surely we should not merely seek to ensure that.
As I said before, I am not a lawyer but I think most people would say that any independent process should be free from improper interference full stop, yet the Government’s amendment talks about seeking to achieve that. Clearly, that is why a number of us—I am grateful for the support of my noble friend Lord Robertson, the noble and learned Lord, Lord Thomas of Cwmgiedd, and the noble Lord, Lord Thomas of Gresford—have concerns about the use of these terms. I press the Minister on this. If the court of public opinion sees the word “seek”, it will not believe that in all circumstances that means it will be free from improper interference. It is important that the Minister reads into the record exactly what “improper interference” means in this respect. It almost implies that there is such a thing as proper interference.
Our Amendment 44 lists many of the things that the Henriques report says should be part of the tri-service crime unit. Again, to be fair, the Minister has intimated that the Government intend to do some of this, but that is why many of us are asking why we do not put it in the Bill. We all have experience of legislation and know that there is often debate about why something is not in a Bill. Why is it left off? Why is it left to the Government, of any colour, to say, “We will do this later on. We will come back to it. We agree that this is important but we are going to look at how we do it”? We are saying that if it is important, it needs to be put in the Bill.
Lord Thomas of Gresford (LD)
My Lords, we on these Benches are very grateful to Sir Richard Henriques for his report and recommendations. We understand why, in the three months since they were published, they have received only light-touch consideration from the Government. Perhaps I can be forgiven for giving some historical context to the role of the chain of command in courts martial, because it appears in Amendment 43 and in the Bill.
In 1757, Admiral Byng was convicted not of personal cowardice but of failing to do his utmost to engage the enemy in an attack upon French forces besieging the British garrison in Menorca. The truth was that his fleet of ships had been hastily assembled by the Admiralty. They were in poor condition and he had to retire to have them repaired, but he was convicted by court martial under the Articles of War and, despite pleas for clemency, even by the Prime Minister William Pitt himself, George II refused to commute the sentence. Admiral Byng was shot on the quarterdeck of a British ship by a firing squad. Your Lordships will recall that Voltaire, in his book Candide, commented that in Britain, it is good to kill an admiral from time to time to encourage the others—“pour encourager les autres”.
Courts martial were seen then, and for 200 years afterwards, as an instrument of discipline rather than justice. It is undoubtedly the case that men were shot for cowardice in the First World War to encourage their comrades to go over the top. Discipline was seen to be a function of command, and the commander must achieve discipline to secure cohesive action and singleness of purpose.
It was the Labour Government of 1946 who appointed a commission to examine the administration of military justice. It advised the appoint of a civilian judge-marshal but made no change in the way the board and the prosecuting officer were appointed. So it was that in 1996, the structure of courts martial was still within the chain of command. The convening officer, who was the field officer in command of a body of the Regular Forces within which the person to be tried was serving, was the person who decided the charges against the defendant, appointed the board and the prosecuting officer and arranged the trial. He—the convening officer—could dissolve the court martial during the trial, in the interests of the administration of justice, and could comment on its findings publicly, in the interests of discipline. He confirmed the findings and could reject or change the sentence, so the board was still subject to command influence.
A fair and impartial trial is obviously difficult in an atmosphere of command control. All the personnel connected with the trial are dependent, or were at that time, on the commanding officer for assignments, leave and promotion. A member of the board could not deviate too far from his commander’s views of the case if it might affect his career. That is why, following the criticisms made by the European Court of Human Rights in Findlay, we brought about such significant changes in 2006. Justice is now the dominant element and in a volunteer army, this is vital to morale and to the retention of personnel, as Sir Richard Henriques himself comments.
Despite this history, the Government have rejected Sir Richard’s recommendation 14. In paragraph 5.4.1 of his review, he says:
“An investigating body, charged with the responsibility of investigating serious crime allegedly committed by members of the Armed Forces, must be hierarchically, institutionally and practically independent both of the chain of command and of those whom they are under a duty to investigate.”
The wording that he uses—“hierarchically, institutionally and practically”—comes from the judgment in Jordan v United Kingdom, 37 EHRR 2. Explicitly, the European court was following Lord Steyn in 2003 in the Appellate Committee of this House, where he said:
“Public perception of the possibility of unconscious bias is the key.”
That issue of public confidence was raised by the noble and learned Lord, Lord Thomas of Cwmgiedd, at the last hearing of this Committee.
However, instead of following that wording and explicitly breaking away from the chain of command, the Government have put forward the existing wording taken from the 2011 Act, as the noble Baroness, Lady Goldie, pointed out. New Section 2A, proposed by the noble Baroness’s Amendment 42, would impose a duty on the provost marshal to ensure that all investigations are “free from improper interference”. That in no way matches the language of recommendation 14 of Sir Richard Henriques’s report, which makes an explicit break from the chain of command.
In recommending a strategic policing board for civilian governance and oversight of the provost marshal for serious crime, in paragraph 5.6.13 of his report, Sir Richard Henriques looked around the world. He looked to New Zealand, Australia and Canada. He also considered the function of the independent advisory group, which was formed for Operation Northmoor in this country. It appears that he agreed the composition of the strategic policing board with the Chief of Defence Staff and the Chief of Defence People.
Today, the noble Baroness told us that the Government have accepted the strategic policing board’s structure, but it is something to be put into the future. The strategic policing board is the person who stands behind and is the instrument of governance of the proposed provost marshal for serious crime. You cannot have one without the other, so perhaps the noble Baroness will explain how you could appoint a person to a position and give them responsibilities without first having the strategic policing board of civilian governance and oversight that Sir Richard Henriques called for.
Finally, I add my support to Amendment 66 and its requirement for a report to ensure that Sir Richard Henriques’s recommendations are carried out.
Lord Lancaster of Kimbolton (Con)
My Lords, I support this amendment, but I have a number of questions for my noble friend the Minister.
The tri-service serious crime unit is definitely a good idea but, given that the Armed Forces Act brought together the three single-service Acts back in 2006, I have for some time questioned why we do not have a joint service police force, given their relative sizes. The Royal Air Force Police is commanded by a group captain; the Navy, by a commander; and, of course, the Army provost marshal is a one-star brigadier. Who will own this organisation? If it is not going to be linked to one of the other service police forces, how can we ensure that it will not wither on the vine in time? For example, what will happen to the SIB, which has a proud operational record over the past 40 years? What will its role be vis-à-vis this new organisation? Equally, as we create what will be a fourth provost marshal, who will sit on the National Police Chiefs’ Council? Currently, the three single service provost marshals do. Does this mean that now there will be four? How will that look? Will defence be speaking with a single voice?
Lord Thomas of Cwmgiedd (CB)
My Lords, it is a pleasure and privilege to follow the noble Lord, Lord Lancaster. I rise to deal with the key issue of independence. It is, as I said on the previous day in Committee, essential to two things. One is public confidence—one cannot overestimate the importance of that—but it is equally important to the morale and well-being of Her Majesty’s Armed Forces.
I think we have established a very clear structure for the independence of the Director of Service Prosecutions and the three distinguished holders of that office, Bruce Houlder, Andrew Cayley and Jonathan Rees, the current DSP, have ensured that it happens. Now, how do we deal with the independence of the police? It seems to me very important to look at the problems with the independence of an investigation. Many us will have forgotten—or were not alive at the time—when there were serious problems in the civilian police, particularly with watch committees and other mechanisms that were meant to ensure that the police were accountable and independent. It did not work. Various things were tried and eventually we came up with the police and crime commissioners, as Sir Richard notes in his report.
Looking at independence, and having had to fight for the independence of the judiciary from time to time, I can assure noble Lords that what you need is a structure behind you—someone independent to go to on whom you can rely. In the case of the judiciary, one can obviously come to Parliament. That is ultimately what is provided for. That is why, it seems to me, the independent strategic board proposed is absolutely the key part of this. There should be an absolute duty for an independent investigation, which should not be qualified in any way, but you need an institutional structure.
What I wholly fail to understand from the Minister’s observations is why that cannot now be put in place and, in the way that police and crime commissioners have been made part of the statutory mechanism that looks to the police, why we cannot have a statutory mechanism for the Armed Forces. Surely they are entitled to the same sort of protection as ordinary civilians—as us all. I do not understand why we always expect the Armed Forces to have second best. There can be no reason why these issues have not been fully considered and why the Government cannot go forward.
This has been a long-standing problem. One has to go back only to the awful problems of the Iraq and Afghan wars, with the sticking-plaster solutions—if I may be so bold as to describe them as that—of bodies such as IHAT, the Iraq Historic Allegations Team. If you lived through cases on that, you would appreciate the need for a structure and something that we can be proud of to protect independence.
Given the history of the way in which the Armed Forces from time to time behave, if you do not do something now, you will have a problem in the future. I urge the Government to grapple with this now and deal with it by putting in provisions, as Sir Richard recommended. If one reads his report carefully, one sees the importance of the strategic board as the guarantor of independence. As the noble Lord, Lord Lancaster, said, how is independence to be secured without some form of mechanism?
The second area on which I want to comment briefly is witness and victim care. This seems to me an important part of a statutory protection. If there is a witness or victims’ unit, there is someone to go to. Again, why are the Army, the Navy and the Air Force to have second best? Why is there not statutory provision, just as there is in the ordinary criminal justice system? I urge the Minister to look at this again with the objective of protecting the Armed Forces for the future and giving them what the rest of us have.
Lord Robertson of Port Ellen (Lab)
My Lords, it is a great privilege to follow the former Lord Chief Justice of England and Wales in making the valuable and very firm points that he made. The question he asks is far from rhetorical. Why should members of our Armed Forces settle for second best? Why should we expect them to be less entitled to systems of justice that ordinary citizens can access?
I have vivid memories of the overseas operations Bill from this Session of Parliament. That was another Bill that came from the House of Commons, where the debates were dominated by a Minister demanding total obedience to every dot and comma of the Bill on the grounds that if you were against it, you were against the British Army, thereby allowing through provisions that might well have led to British soldiers and other members of Britain’s Armed Forces appearing before the International Criminal Court. Eventually, the Government woke up, but not without huge pressure and a lot of distinguished Members of this House making sure they got a very firm message. I do not want to embarrass the Minister too much, but I know that she played a role in getting common sense seen in that debate.
When we look at legislation being brought forward by the Government, we are wise to be cautious about what the Government say in their own defence. Therefore, when the Minister says that there are elements in the Henriques report which require attention and I ask which of those have policy implications, I would expect the department to be able to tell us. I recognise the phrase “when parliamentary time allows”, because I am sure I used it during my ministerial career. There is usually very little parliamentary time available for primary legislation, which is what would be required to enact the remaining aspects of the Henriques recommendations.
I follow my noble friend Lord Coaker in what he says and his detailed questions. The key question concerns the fact that, while Henriques made a number of recommendations, 13 of them have not appeared in the amendments to the Bill in this Committee. He is right to ask this question, which I repeat: which of these require policy consideration, because that could take a very considerable period to come forward as well?
The stories in the Sunday Times, both last Sunday and the Sunday before, should, frankly, horrify all of us. What is described there is disgraceful, disgusting and completely indefensible. I am not a lawyer or a soldier, but I cannot understand why action is not being taken and investigations into this particular incident are not taking place. We are being told that only if the Kenyan authorities start to make their inquiries will anything happen in this country, when there seems to be clear evidence around, involving British citizens and members of the British Armed Forces involved in this. Why has there not been some investigation? Just as members of the Armed Forces are perfectly entitled to be treated like other citizens in this country, victims also have a right to the kind of justice and investigation that we would expect for anyone else in the country.
We should not allow the Sunday Times to develop this story, week after week, with hugely damaging effects on the reputation of our Armed Forces, the recruitment of people into them and the country as a whole. Although it is not, strictly speaking, the business of this Committee, it is a matter of public concern. It has alerted the public in general to the whole question of service discipline. Therefore, the business of this Committee and Bill, detailed and arcane as it is in some ways, has now become a matter of public attention. It is up to the Government and Ministers in the Ministry of Defence to pay attention to that and resolve it so that they protect the reputation of the country and our distinguished Armed Forces.
Baroness Goldie (Con)
My Lords, I first thank noble Lords for an interesting and stimulating debate, as ever. I shall endeavour to respond to the points raised. I certainly hope that the fate that befell Admiral Byng, so colourfully described by the noble Lord, Lord Thomas of Gresford, does not befall me, or the proceedings would come to a summary conclusion.
I will first address the points raised by the noble Lord, Lord Coaker, who said, quite correctly, that perception is important. I agree with that, but so is legal exactitude, which is, I accept, tedious to some but none the less absolutely vital in the framing of legislation. I will come to that in a little more detail shortly.
I say to the noble Lords, Lord Coaker and Lord Robertson—who, with the best of intentions, I know, raised the appalling situation of the Kenyan lady —that I am constrained. This is a live investigation in Kenya, and it is sub judice. I can say that the Secretary of State has offered our full co-operation, but it is essentially a Kenyan investigation. We are prepared to offer any co-operation that we can when they request it. We have to let the investigatory process continue.
The noble Lord, Lord Coaker, reverted to the point raised by the noble Lord, Lord Robertson, about the remaining Henriques recommendations. I looked at again at what I said and double-checked where we are. I do not want to be discouraging or disappointing, but I can put my hand on my heart and say that approximately 40 of these recommendations require policy and legal analysis. That is factual, and I cannot accelerate that at the moment, but I am happy to give your Lordships an undertaking that I shall certainly monitor and report back on progress. I hope that will reassure your Lordships that this is not some somnolent process that will fall asleep once Committee stage is over. I am very happy to place that on the record and offer to do that.
Lord Lancaster of Kimbolton (Con)
I sense that my noble friend might be coming to the end of her remarks. Perhaps I might take her back to the question of independence and the need for the appointment to come from members of the service police. The answer that she gave to the Committee was, “Well, that’s what the Armed Forces Act says”. My response would be, “Well, so what?” Is it not the purpose of this Bill and this Committee to look again at these issues? I do not want to put my noble friend on the spot, but could we perhaps think again as to whether that is still the best thing to do, given the nature of the role, and whether, as we move forward, because there are other examples in defence where we recruit from civilians because they are best qualified and best placed, the time has come to look again at that requirement?
Baroness Goldie (Con)
I cannot give my noble friend the certainty of the assurance that he seeks, but I indicated that the rank was decided based on the current rank range of the single service provost marshal. We are open to revisiting the rank of provost marshal for serious crime—that is one of the recommendations in Henriques—and we would intend to review the post three years after the unit is operational. That is a sensible review period to allow some time to elapse. We want to ensure that the post remains aligned with the level of responsibility that is implicit in the role and the relevant and recent skills and experience of the postholder, and that it remains open to all three services to compete for. I can say to my noble friend that there is continued thinking on this, but I cannot at this stage provide him with the certainty that he seeks.
I have tried to address the points that have arisen and I hope that I have covered them all. In these circumstances, I ask noble Lords not to press their amendments.
Lord Thomas of Gresford (LD)
Perhaps I might draw to the Minister’s attention her amendment, which states in subsection (3)(b) of the proposed new clause:
“The Provost Marshal for serious crime has a duty, owed to the Defence Council, to seek to ensure that all investigations carried out by the tri-service serious crime unit are free from improper interference.”
Does she not agree that that is miles away from the formulation proposed by Sir Richard Henriques, as stated in Amendment 43, that the duty is to
“ensure all investigations are operationally independent from the military chain of command”?
I have tried to point out that we have got away from the military chain of command in the justice system and that justice comes first, before discipline, in that area—individual justice. Does the Minister not see the difference in the wording, and how much stronger is Sir Richard Henriques’ formulation?
Baroness Goldie (Con)
I say to the noble Lord—and I do not want to reprise everything that I have said—that we recognise the different characteristics within the service justice system that are not necessarily a part of the civilian system. We have to acknowledge that, as I indicated, it is not easy to just place things in silos. If something happens on an overseas operation, the chain of command may have to take action. That is why we talk about “improper interference”. I think that is an important distinction. What we are placing upon the provost marshal and the Defence Serious Crime Unit is the obligation to be independent and to seek to ensure the independence of the investigation.
However, we also have to acknowledge the reality of the environment in which these individuals are operating. That is why the Government have deliberately chosen the phrasing they have. I said earlier that there is nothing innovative about that phrasing; it deploys existing text from previous Acts. But I suggest to the noble and learned Lord that it would be unwise to place on the provost marshal obligations that are beyond the wit of the provost marshal to discharge. Equally, it would be wrong to condemn the chain of command for taking action in the early stages of an incident which the chain of command may have had no alternative but to take to protect personnel, to look after safety, to preserve evidence or whatever. That is why the Government prefer the phrasing they have adopted.
Lord Thomas of Cwmgiedd (CB)
May I ask one question? I asked: why does the Bill contain no institutional provisions to protect the independence? Maybe the Minister needs a little more time to think about this and look at what protection is given in relation to the civilian police. I would be grateful if she could write with an answer about the institutional support that backs up independence.
Baroness Goldie (Con)
I hear the noble and learned Lord. I think there is an acceptance within the service justice system that there is operational independence. I have had that confirmed to me by military police officers, particularly those investigating senior ranks and above their rank. They have not felt inhibited. They have not felt constrained. They have absolutely done the work they have needed to do. But I will reflect on the noble and learned Lord’s remarks and see whether I can offer any comfort.
Lord Coaker (Lab)
I am not going to press my amendments and I say to the Minister that that was a very helpful reply to the noble and learned Lord, Lord Thomas of Cwmgiedd. She will have heard from a noble of Lords in this Committee that there are real concerns about the operational independence of the work of the new serious crime unit, and that really goes to the heart of it. Something in the Bill that deals with that would be of immense reassurance to us all.
I say as well to the Minister that we will have to come back to one or two things on Report, not least the Henriques recommendations that the Government clearly are not going to adopt. I will give one example. It is disappointing to know that the deputy provost marshal is expected to be a military officer. Again, that gives evidence for the view that we have to be really careful in how we ensure that the public have confidence in the mechanism that we are setting up. It is a good thing to do, but we have to ensure that that independence is not only enshrined in legislation but is seen by the public to be real as well.
Baroness Goldie
Member’s explanatory statement
This amendment would make consequential provision in connection with the new Clause proposed by Baroness Goldie to be inserted after Clause 11.
Member’s explanatory statement
This amendment would make consequential provision in connection with the new Clause proposed by Baroness Goldie to be inserted after Clause 11.
“(2) In subsection (1) “relevant body” means a service police force or the tri-service serious crime unit.”Member’s explanatory statement
This amendment would make consequential provision in connection with the new Clause proposed by Baroness Goldie to be inserted after Clause 11.
Baroness Goldie
“Framework for establishment of tri-service serious crime unit
(1) The Armed Forces Act 2006 is amended as follows.(2) In section 365A (Provost Marshals: appointment), in subsection (1), after “force” insert “, or to be Provost Marshal for serious crime,”.(3) In section 115A (Provost Marshal’s duty in relation to independence of investigations)— (a) in subsection (1), for “This section” substitute “Subsection (2)”;(b) after subsection (2) insert—“(2A) The Provost Marshal for serious crime has a duty, owed to the Defence Council, to seek to ensure that all investigations carried out by the tri-service serious crime unit are free from improper interference.”;(c) in subsection (3), at the end insert “or (as the case may be) the unit.”(4) In section 375 (definitions relating to police forces)—(a) in the heading, after “to” insert “the service police and other”;(b) after subsection (1) insert—“(1A) In this Act the “tri-service serious crime unit” means a unit under the direction of the Provost Marshal for serious crime, each member of which is a member of a service police force.”(5) Schedule (Tri-service serious crime unit) makes further provision about the tri-service serious crime unit and the Provost Marshal for serious crime.(6) The Secretary of State may by regulations made by statutory instrument make such provision amending or revoking any provision of subordinate legislation made before the passing of this Act as appears to the Secretary of State to be appropriate in consequence of any provision of this section or Schedule (Tri-service serious crime unit).(7) Regulations under subsection (6) may include transitional provisions or savings.(8) A statutory instrument containing regulations under subsection (6) is subject to annulment in pursuance of a resolution of either House of Parliament.(9) In subsection (6)“subordinate legislation” means—(a) subordinate legislation within the meaning of the Interpretation Act 1978,(b) an instrument made under an Act of the Scottish Parliament, or(c) an instrument made under Northern Ireland legislation.”Member’s explanatory statement
This amendment and the amendment in the name of Baroness Goldie to insert a new Schedule after Schedule 4 would make provision in connection with the establishment of a tri-service serious crime unit and with regard to the functions of the Provost Marshal for serious crime who is to be the head of that unit.
“Tri-service serious crime unit | 60A(7)(a), (b), (c) and (e) | Lieutenant Commander | Entity Data | 61(7)(a) and (c) | 61A(7)(a) and (c) |
Major | Entity Data | 61(7)(a) and (c) | 61A(7)(a) and (c) | ||
Squadron leader | Entity Data | 61(7)(a) and (c) | 61A(7)(a) and (c) | ||
Commander | All | 61(7)(a) and (c) | 61A(7)(a) and (c) | ||
Lieutenant colonel | All | 61(7)(a) and (c) | 61A(7)(a) and (c) | ||
Wing commander | All | 61(7)(a) and (c) | 61A(7)(a) and (c) |
“The Provost Marshal for serious crime. | A person holding the position of deputy Provost Marshal in the tri-service serious crime unit. | A member of the tri-service serious crime unit.” |
Baroness Goldie
Member’s explanatory statement
This amendment would make consequential provision in connection with the new Clause proposed by Baroness Goldie to be inserted after Clause 11.
“(8) In subsection (7) “relevant body” means a service police force or the tri-service serious crime unit.”Member’s explanatory statement
This amendment would make consequential provision in connection with the new Clause proposed by Baroness Goldie to be inserted after Clause 11.
Lord Dannatt
“Mental health support
(1) A Minister of the Crown must make provision for additional mental health support for serving Armed Forces personnel, including but not limited to targeted support for serving Armed Forces personnel who have been affected by the United Kingdom’s withdrawal and Taliban takeover in Afghanistan in 2021.(2) This support should aim to improve mental health treatment provided to Armed Forces personnel through the Defence Medical Services, Department of Community Mental Health, the Veterans Mental Health and Wellbeing Service, and the Veterans and Reserves Mental Health Programme.(3) Progress, monitoring and evaluation of this support must be included in the annual Armed Forces Covenant report.” Member’s explanatory statement
This amendment would provide additional mental health support to serving Armed Forces personnel, including those who have been affected by the UK withdrawal and Taliban takeover in Afghanistan in 2021.
Lord Dannatt (CB)
My Lords, in moving Amendment 48 I will speak also to Amendment 66A, both of which stand in my name and those of other noble and noble and gallant Lords.
I will address Amendment 66A first. Noble Lords will recall that a very similar amendment was tabled and debated during the passage of the recent overseas operations Bill in the previous Session of Parliament. Then and now, the amendment seeks to require the Ministry of Defence to identify a new duty of care to create a new standard for policy, services and training in relation to legal, pastoral and mental health support provided to service personnel, and to include a duty of care update in the Armed Forces covenant annual report.
Noble Lords will recall that our House divided twice on this issue, but the measure was overturned in the other place. In the interests of not losing the whole overseas operations Bill, the amendment was not pressed a final time. In concluding our previous debate on this subject, the Minister stated that perhaps the Armed Forces Bill was
“a more appropriate mechanism for any discussion of the wider duty of care owed to our people.”—[Official Report, 13/4/21; col. 1257.]
It is perhaps therefore no surprise that I am returning to this topic now, although I do not want to take undue time by rehearsing all the arguments made in our previous debate, the majority of which still stand.
That said, I am very aware that the Ministry of Defence has been working hard on duty of care related issues in recent months and I am sure that many serving personnel will already be benefiting from that work. However, the Minister for Defence Personnel and Veterans in the other place, during a debate on the duty of care amendment in the context of the overseas operations Bill, said that he wished to ensure that our care provided was at a gold standard. So I would be very grateful if the noble Baroness the Minister could update your Lordships on progress towards reaching this gold standard.
The initial impetus for Amendment 48 came in the aftermath of Operation Pitting as the final withdrawal from Afghanistan took place—but Op Pitting was only the most recent episode in a long series of operational settings that have put pressure on the mental health of our servicepeople. As with the duty of care issue, I am aware that the Ministry of Defence has been working hard on mental health matters. Nevertheless, I ask whether the Government’s recent mental health MoT announcement will include specialist support for personnel who have been affected by the withdrawal from Afghanistan. Indeed, could the Minister comment on what specialist mental health support has been offered to personnel involved in Operation Pitting?
Among the welcome recent initiatives, in October the Government announced the new annual mental fitness brief for UK Armed Forces. This is to be welcomed. The press release said it would be:
“Available on Defence’s internal learning platform”.
Can the Minister confirm whether face-to-face support will also be offered as part of this?
Very sadly, the tragic end of the mental health spectrum is the death by suicide of both serving and veteran members of the Armed Forces. In October the Armed Forces Minister said that the Office for Veterans’ Affairs had looked at how the frequency of suicide within the veteran community could best be measured and had identified a robust methodology. Can the noble Baroness explain this new methodology today? What frequency rate has been identified?
Furthermore, I was informed by the previous Veterans Minister that a new study was being undertaken to identify the rate of suicides among serving and veteran members of the Armed Forces. Previously, studies have been based on data from the first Gulf War and the Balkans, but the intensity of recent campaigns more than justified a new study. Can the noble Baroness say whether that new study has been completed? If so, what did it reveal? I am not alone in believing that recent operations have led to a tragic upturn in the suicide rate.
While commending the recent improvements in mental health provision, I believe that more can be done. I look forward to hearing the noble Baroness’s response later. I beg to move.
Baroness Brinton (LD) [V]
My Lords, I have added my name to Amendment 48. As we heard from the noble Lord, Lord Dannatt, it aims to improve mental health services and to provide additional support for serving personnel, particularly those affected by the United Kingdom’s withdrawal and the Taliban takeover in Afghanistan this year. I also support the other two amendments in this group, Amendments 60 and 66A.
At Second Reading I highlighted Operation Courage, a partnership between the NHS and Combat Stress and other mental health charities, whether Armed Forces-specific charities or local or specific mental health charities. In principle, Op Courage is a really good example of how mental health services for current serving personnel or veterans should be able to provide a strong, signposted short cut to mental health services when and where they are needed.
Combat Stress reports that during August it saw a doubling of calls to its 24/7 helpline. This was on top of already struggling to afford to offer its specialist treatment to around 1,600 veterans with complex mental health needs annually. It estimates that there are at least double that number out there who Combat Stress cannot afford to support.
As a charity, Combat Stress is currently 75% dependent on voluntary donations and the generosity of the public. I think we all know that donations to charities have significantly reduced during the pandemic. I have no doubt that with extra resources it and the other specialist mental health charities can deliver the services needed, because they understand the specific pressures facing serving personnel and the traumas that too many have to learn to live with, both during and after their terms of service.
Leo Docherty MP wrote to all MPs and Peers on 24 September, setting out the support available for service personnel and veterans, their families and the bereaved, should they need it. It was a helpful and informative letter, but it did not refer to when the further £2.7 million will be made available for Op Courage. Does the Minister have that detail available? Is it for spending in a particular period, or does it extend over more than one financial year?
The letter from Leo Docherty did not mention one welcome intervention in recent years: the training of mental health first-aiders in our Armed Forces. The mental health first-aid charity MHFA England says:
“In 2015/16, 3.2% of UK armed forces personnel were assessed with a mental health disorder—over 6,000 people. Many more go undiagnosed and untreated.”
When I have talked to service personnel who have become mental health first-aiders since their return from deployment in Afghanistan, I have heard of how the training that they received enabled them to recognise the warning signs this summer in those they currently serve with, as well as past comrades. One soldier told me that, in August, the community of personnel was able to come together on social media to support and encourage those reliving tough memories or, worse, flare-ups of PTSD. Because of their mental health first-aid training, they were able to help these colleagues to access phone lines—for example, to Combat Stress and other organisations.
How many Armed Forces mental health first-aiders are now in place? Will the extra funding announced in September include training for more mental health first-aiders in the future? Also, can the Minister explain how Op Smart, which was designed to develop mental resilience across personnel in the Armed Forces, sits with Op Courage? Op Smart is much to be welcomed, and is critical to personnel becoming not just self-aware but aware when colleagues may be facing problems. How is Op Smart, and specifically the mental health first-aider programme, funded? The last part of Amendment 48 talks about collecting data. It would be very beneficial to see data on all these issues, including, as the noble Lord, Lord Dannatt, said, on suicide. Can we find such data now? If not, will it be collected and, as the amendment says, included in the annual covenant report?
I return to the extra £2.7 million of funding. Many current and former service personnel who served in Afghanistan and elsewhere, and are currently reliving their traumas, need to access NHS mental health services, including crisis care, right now. Unsurprisingly, these services are facing extraordinary pressure already. The NHS Providers activity trackers show that, for October 2021, referrals remain 10% higher than pre-pandemic levels, with many people having to wait significantly longer than the 18-week target time for their first contact.
In July, NHS England proposed setting new mental health access service standards, working in conjunction with Mind, the mental health charity, and Rethink Mental Illness. The new urgent care proposals would mean that community mental health crisis teams could reach patients within 24 hours of referral. The other key target for mental health liaison teams linked with A&E departments would also be rolled out across the rest of England. Detail on the actual level of funding to deliver this new target is still awaited. For this Bill, I am particularly interested in how all this will fit in with Op Courage. Perhaps the Minister can help me; if she does not have that information at her fingertips, could she write to me afterwards?
This amendment seeks urgent, extra, specific support for Op Courage—and, I hope, for Op Smart too—to ensure that all those people who are serving, or have served, their country do not fall through the net when they need mental health services.
The Lord Bishop of St Albans
My Lords, I declare my interest as a vice-chair of Peers for Gambling Reform. I rise to speak to Amendment 60 in my name. I tabled it because I am concerned that the Ministry of Defence is not taking gambling-related harm in the military community sufficiently seriously. On two occasions in response to my concerns in this area, the Ministry of Defence has stated that it has seen no evidence, or does not hold information, suggesting that serving personnel are more prone to problem gambling than any other group in society.
At the same time, it was disappointing to hear that evidence from the United States that suggested that serving personnel were more prone to problem gambling did not constitute an evidence base for the UK Armed Forces. This leaves us with a clear impasse, where the Government refuse to accept research from abroad but, at the same time, do not commit to researching whether there is a problem.
Lord Houghton of Richmond (CB)
My Lords, I am very happy to add my support to my noble friend Lord Dannatt’s Amendment 48 regarding mental health support. I came to today’s debate thinking that it struck me as a very modest but effective way of keeping the Ministry of Defence’s feet to the fire on an issue patently requiring action. However, having listened today, I begin to worry that it may not be enough.
I think it is now more generally accepted in society that in human beings mental health is every bit as prevalent as physical health. The fact that mental health can suffer as a result of traumatic experience is also widely accepted. Mental health should nowadays carry no stigma and should be proactively monitored in the same way that physical and dental health are. This is where I improvise and part company with my prepared thoughts, as I reflect on my own experience of the mismatch in the approach to mental as opposed to physical health.
In September 1973, as an 18 year-old, I attended Sandhurst. On day one, I was weighed. Sandhurst had an idea that an officer had to weigh 12 stone 8 pounds. If you weighed more than that, you were put in a queue for extra PT. If you weighed less, you were put in a queue for extra milk.
In virtually every week, if not every day, of my life in the Army in the following 43 years, something to do with my physical health was assessed or tested, with a basic fitness test every other day, a battle fitness test probably once a month, the Army physical training assessment, the Army physical fitness assessment, annual medicals, hearing tests, foot inspections and dental tests. This mismatch between checks on my physical and mental well-being is remarkable. I was never once in 43 years asked by anybody how I felt mentally. I know from my own children that sports physiotherapists are everywhere. People, including my son, think nothing of taking a couple of sessions with a therapist to make them feel a bit better—he knows he will get better, but he just feels a bit down.
If the Minister will forgive me, the appearance of the annual online platform and £2.7 million in funding does not seem a sufficient amount of effort. It smacks of tokenism to meet something that actually needs a cultural shift in the whole approach to mental health from the Armed Forces and the Ministry of Defence. Whatever happens to this amendment, which I fully support, I hope that this sense of a need for a cultural shift is taken back to the ministry and the Armed Forces.
Lord Browne of Ladyton (Lab)
My Lords, it is a privilege to follow the noble and gallant Lord, Lord Houghton. His sharing of his personal experience has honestly been of great benefit to the Committee on this group of amendments, although I am not sure I can match the impact it has probably had on your Lordships’ thinking. I should begin my first contribution to the Committee by offering my apologies for my absence from the first day; family commitments required that I was in Scotland.
The proposals before the Committee in this group have the same objective: they are aimed at safeguarding and improving the mental health and welfare of service personnel. I support Amendments 48 and 66A but have added my name to Amendment 60, and I thank the right reverend Prelate the Bishop of St Albans for tabling it. I agree with the arguments that he put forward and begin my remarks in support of his amendment by referring the Committee to his Oral Question in your Lordships’ House on 13 September, on the prevalence of gambling disorder in the Armed Forces. In my supplementary question then, I drew attention to the Army Headquarters Regional Command IPPD information sheet, Gambling—A Serious Risk to Military Personnel, which he has drawn from today. If the Committee will allow me, I wish to do the same for part of my argument.
In the preamble—this is the Army talking—it is stated that
“service personnel … are potentially more vulnerable and at greater risk to the harm that can result from gambling than the general public”.
As has been pointed out, it goes on to assert specifically that:
“Military veterans are 8 times more likely to become problem gamblers than the general population”.
This is not an historic document. Examination of it reveals in its last footnote a reference to 30 April 2019, which I understand to be its publication date, so it is a relatively modern view of the Army.
The Forces in Mind Trust study on veterans’ health and gambling, published on 23 September 2021, reinforces the Army’s official conclusion that there is that prevalence among veterans. It finds that veterans who responded to its survey were 10 times more likely than non-veteran respondents to experience gambling harm, and that veterans gambling were seven times more likely to be motivated by a need to escape or avoid distress. But this research is much more valuable than that, because it reveals some other very disturbing traits among veterans. Veteran participants were found to be at much greater risk of poor mental health outcomes, including depression, anxiety and post-traumatic stress disorder, and to have an alcohol and/or nicotine dependence. This research found that veterans with problem gambling had higher healthcare and benefit costs, as well as higher levels of debt than non-veterans. It is relevant to the right reverend Prelate’s amendment that the recommendations from the report include routine screening for gambling problems, including when leaving the Armed Forces.
I have to be completely honest about this: on the publication of the report, the researchers emphasised that their research must be considered with some caution, principally because
“The sample was recruited online, and veterans who have gambled may have been more likely to take part”.
I say that, however, with some further qualification because it is exactly the broader discussion about gambling and gambling harm that the Government themselves have been relying on for the oft-made assertion in your Lordships’ House that such harm is present in only a very small number of gamblers. It is all based on research and data gathered in much the same way. However, Professor Simon Dymond, the lead author of the report, said:
“Despite this, the significance of the findings is indisputable. This is the first UK study to explore the impact of gambling on UK ex-Service personnel, and our findings are consistent with the international body of work which finds that veterans are at greater risk of gambling harm.”
From my perspective, in addition to its consistency with the international body of work referred to, this research is fully consistent with the position adopted by the Army itself, which is expressed unqualified in the transition IPPD information sheet. Further, it is significant that the veterans who participated, whether self-selecting or not, were motivated to gamble by the need for an escape from, or avoidance of, distress.
However, this is perhaps the most concerning finding of the research. I quote the executive summary of the study:
“All veterans surveyed experienced some symptoms of depression, anxiety, risky alcohol use, nicotine dependence at higher levels, and increased indications of PTSD and complex PTSD … diagnoses compared to non-veterans.”
Consequently, I repeat what I said on 13 September in my supplementary question. In considering this, the “appropriate questions”, both for the Government and for us, that need to be answered are—
Lord Browne of Ladyton (Lab)
My Lords, I will get back to where I was. The problem is real. On the basis, nature, extent and clear effect it has on military personnel, questions need to be answered. The issue is not whether we have sufficient data, but how we get the data that answers these questions. Why are soldiers more vulnerable to gambling? Why do military veterans have such a heightened prevalence to problem gambling, as opposed to the general population? Much more importantly, what are we—and in particular the MoD—doing to understand what lies behind that prevalence and all the other findings of this research? How can it be tackled before the vulnerability forms?
These are the right questions, and they totally justify a requirement for proper research, such as that laid out in this amendment. I have a great deal of respect for the Minister. If she believes that this is not the right approach, I ask her to tell us what the right approach is to gather the data that will protect these people from the development of those dreadful conditions. If she cannot propose an alternative, I suggest that we would have no difficulty getting the Committee to support the amendment, were it given the opportunity so to do.
Lord Boyce (CB)
My Lords, I will speak to Amendment 66A. I will not cover all the ground covered on the overseas Bill; I merely want to say that I look forward to what the Minister has to say about delivering what she said at the time. Aspects of the welfare of our people should be looked at and some implementation of policy achieved.
Lord Robertson of Port Ellen (Lab)
My Lords, I support Amendment 48 and will follow what the noble Lord, Lord Dannatt, and the noble and gallant Lord, Lord Houghton, said. I will say why the amendment and more care for mental illness are required.
I live in a town in Scotland called Dunblane. In 1996, a gunman used a private armoury to kill schoolchildren and their teacher. At that time I was shadow Secretary of State for Scotland and lived in the town. The Secretary of State for Scotland, Michael Forsyth, was the local Member of Parliament. We came together that day. It was by any standard a traumatic day. We did everything together after that to handle the issues that came up in the media. The following day, the Prime Minister and the leader of the Opposition came to the town.
Within days I was back at work, which you do: it is traumatic, but you get through these things. I thought, “Well, I’m tough enough”—I had been a politician in Scotland for long enough, after all. You think you can take it all. But gradually I came to realise that I was not coping with it at all. I remembered that the Secretary of State for Scotland had offered counselling to those who had been affected. We were also made the same offer as individuals. I went to see the counsellor because I found I could not mention the events of that day without breaking up, and this was not something that was convenient or natural when you were in the bearpit of Scottish politics. I took up the offer and went to the counsellor. I spent a morning with an experienced counsellor and I was fixed. It took only a morning, but that lady was quite remarkable in the way she treated me.
Fast forward two years and I am Secretary of State for Defence. The Omagh bomb exploded in that small town in Northern Ireland. I went across as Defence Secretary with the Chief of the General Staff, Sir Roger Wheeler, and spoke to the troops that day. The troops based there who had helped in the aftermath were pretty hardened infantry soldiers—as tough and as hard as you can get, and they had been in Northern Ireland for some time—but they were deeply affected by what they had seen that day. They could cope with most things, but the sight of a baby torn in pieces was something they were deeply traumatised by.
I told them my story that day to say that they had been injured by what they had seen and that they needed to take the counselling that was going to be on offer. Although they were tough and hard, if they had been told after being shot in the shoulder to put a sticking plaster on it and it would go away, it would not have seemed sufficient even for them, yet they had been injured in another way, and there were ways in which they could be treated. I hope that had an effect that day and persuaded some of them to take that treatment, which they probably felt was not something they would ever really need.
Since then, of course, the traumas of Afghanistan and Iraq have come along and many more of our Armed Forces have been severely affected. Therefore, this amendment, which, as the noble and gallant Lord, Lord Houghton, said, maybe does not go far enough, alerts the Ministry of Defence to the necessity that is there to make sure that more attention is paid to that aspect of medical welfare.
Lord Lancaster of Kimbolton (Con)
My Lords, I do not think anybody can disagree with the intention of these amendments. Indeed, I agree entirely and am pleased to have heard about the progress made by the MoD in recent years when it comes to mental health—and, as the noble and gallant Lord, Lord Houghton, said, the differing approach that we have taken to mental health and physical health over many years. It begs the question as to whether there is anything about physical health in the Bill, if we are potentially about to put something in about mental health.
Viscount Brookeborough (CB)
My Lords, I rise to support Amendment 48 and to make one comment on Amendment 60. Additional mental welfare supervision and psychology work while people are in the Armed Forces is really important. The noble Baroness, Lady Brinton, said words to the effect that 3% of servicepeople are recognised as having a mental illness while serving. We also know that the total is 7%. That is if they have not been on operations, when it is 17%—so there is a gap. We do not manage to close that gap unless we pay much more attention to members of the Armed Forces while they are serving.
The noble and gallant Lord, Lord Houghton, mentioned that he was never asked how he was when he was in the Army. I wonder where this has gone wrong. When I was in the home-based security forces in Northern Ireland, we were visited quite regularly by a medical psychologist in Lisnaskea. That may have come through the Royal Irish and the RUC, which recognised all this a long time before other people. The problem is that I, like the others, rather pooh-poohed it because you are a mean, green, lean fighting machine, and a psychologist walking in and asking, “Are you all right, mate?”, somehow just does not work very well.
Another issue applying to all this is that we generally consider veterans to be older people. To a certain extent, the idea of a veteran is someone on a veterans’ parade on Remembrance Sunday in towns and villages and at home. However, quite clearly there are two age groups of veterans. There are the old and bold, some of whom—and, in our case in Northern Ireland, many of whom—have psychological problems from the many bombings and shootings, but there is also a large number of current-day servicepeople leaving in their 20s and 30s. They leave for a host of reasons, not least because, if they have been on two or three tours of Afghanistan or somewhere else, they rather feel they have done their bit. When these people, as opposed to those who are 40 or 50, become veterans, they are really a different group that it is hard to get in touch and stay in touch with.
The older ones have been serving for a long time. Therefore, they are there for people to man manage and look after. As a platoon officer or a company officer you know everything about your soldiers’ lives, so they are under some form—not psychological—of supervision. They tend to leave as families or to relatives or whatever. However, you have a very large cohort now of those in their 20s and 30s, and when they leave their first thing on getting out of the gates is to think “Yippee, we’re out”.
We talk about increased money going to current serving soldiers. We are a host to a mental welfare service charity at home. One of the major problems is that the MoD—and I can be corrected by the Minister, perhaps—is responsible for serving soldiers. The moment they walk out of that gate, they are no longer in that category. I am talking about a lot of the younger ones. “Yippee, I’m out”—they are gone. They have had a military doctor, a military dentist, a padre and the NAAFI. Their whole life has been provided for them. They go out and bang—they have no doctor; they have nothing. Incidentally, even if they do find their medical records, at no stage does it say when they go to a health centre, “Beware, this is a veteran”.
We have a total lack of joined-up service care. Therefore, anything that can contribute to greater attention being paid to servicepeople while they are in is really important, because when they are out they are so difficult to find—until they go wrong and become homeless or turn to gambling. That turns, of course, to Amendment 60.
I was interested that the Government deny the figures, or at least do not recognise here the figures from the US. I ask the Minister: why? The number of servicepeople who have not been in operations is 7% of mental health cases in this country. What is it in America? What is it in Denmark? What is it in Germany? It is 6% or 7%. The figure for those on operations who have mental welfare problems is 17%. What is it in the other countries? It is the same. What is different with gambling that the Government seem to know about but we do not? I add my support to these amendments, because any increase in this help is very important.
Lord Foster of Bath (LD)
My Lords, I am delighted to follow the noble Viscount and I, too, will want to raise issues in respect of gambling. I begin by saying how much I support the amendments from the noble Lord, Lord Dannatt. In particular, I want to say how grateful I was to have had the opportunity to hear the speeches from the noble and gallant Lord, Lord Houghton, and the noble Lord, Lord Robertson. They both drew our very clear attention with their very personal experiences to the importance of being as concerned about the mental health of our service personnel as we should be about their physical health.
I am delighted to support Amendment 60 and, in so doing, declare my interest as chairman of Peers for Gambling Reform. I suggest to your Lordships that, just as we have become used to dealing with the issues of alcohol and drug addiction, we should now be equally concerned about the addiction that can be caused by gambling.
As we have heard already, much research has been done in many other countries on this issue. Australia, New Zealand, Canada and the United States have all found that military service personnel and military veterans are more likely to gamble than other people and are more likely to become problem gamblers. In some of those countries the research findings have led to action. For example, in 2019 in America moves were taken that are very similar to—and in fact go far further than—what is proposed in Amendment 60 today.
Research in the UK has of course been limited, and Ministers in the MoD have simply not been persuaded that, just because problem gambling exists among personnel and veterans in other countries, that will be the same here. It is almost as if the MoD is turning a blind eye to it. So far, Ministers have also not been interested in finding out whether the situation in other countries might be replicated, or even whether the current rules that they have, which prohibit gambling on MoD properties, are being adhered to.
Over a year ago, the right reverend Prelate made a freedom of information request, asking whether gambling machines were present on just one military base: Catterick. That FoI request was rejected, with the bizarre argument that contacting the base individually would incur disproportionate costs. Could the Minister explain how a single phone call, letter or email would have incurred disproportionate cost? Why, if gambling is not permitted on military bases, does she seem unable to say with confidence that there are no gaming machines on any military base, especially when some military personnel have suggested otherwise?
While the Government appear to want to ignore the possibility that UK military personnel and veterans may be more prone to gambling harm than the rest of the population, as we have already heard, very senior people in the military are alert to the issue. As the right reverend Prelate said, the Army Headquarters Regional Command information sheet on the transition to public life claims that
“service personnel … are potentially more vulnerable and at greater risk to the harm that can result from gambling than the general public.”
More recently, some research in the UK backed up the concerns. The research by the Forces in Mind Trust and Swansea University, which has been mentioned, reports that 43% of veterans have experienced problem gambling in the last year—far more than the general population—and were
“ten times more likely than non-veterans to experience gambling harms and to gamble as a way of coping with distress.”
The Government cannot therefore now continue to claim that we have no evidence. Just over a month ago, following the publication of that research, I wrote to Leo Docherty MP, the Minister for Defence People and Veterans, seeking a meeting to discuss the report. I still await a reply, and I would be grateful if the Minister could give him a nudge and see if we can make that happen.
It appears that, while alert to the potential of military personnel and veterans developing alcohol and drug problems, as I say, the Government do not have similar concerns about gambling problems. That has been mirrored in some of the decisions made. Earlier, my noble friend Lady Brinton rightly gave credit to the Government for introducing Operation Courage and the £2.7 million attached to it. She asked when the money would come forward. But it is worth looking at what it is intended to be spent on: expanding services for military veterans with complex mental health issues, physical trauma and alcohol or substance misuse issues. It does not include funding to help with gambling addiction.
The Minister has said that the Government are now studying the Forces in Mind Trust research—so, if persuaded by it, will she agree to extend the use of funding for Operation Courage to encompass help for military veterans with gambling problems? No doubt she will reply that more research is needed, and I would entirely agree with her on that. Indeed, in a recent debate in your Lordships’ House on Public Health England’s review of gambling research, I said as much. The Minister—the noble Lord, Lord Parkinson of Whitley Bay—responded by saying:
“As the noble Lord, Lord Foster, said, the report identifies gaps in the evidence base. One of the aims of our review”—
that is, the gambling review that his department is undertaking—
is to make sure that we have high-quality evidence to support regulation. We will work with the Department of Health and Social Care and key parties to address the knowledge gaps identified in the evidence review and improve data collection.”—[Official Report, 14/10/21; col. 1973.]
I simply say this: since the Government are belatedly showing interest in the need for improved research into gambling, I hope that the Minister will be prepared to accept this amendment, which would provide an opportunity for more research to be carried out and more data gathered. I hope it will also demonstrate that the Government really are serious.
Lord Browne of Belmont (DUP)
My Lords, I am pleased to support Amendment 60 in the name of the right reverend Prelate the Bishop of St Albans. There is no doubt that problem gambling is a debilitating condition that takes over people’s lives and, in some cases, destroys them. Since the Gambling Act 2005, the opportunities to gamble have increased significantly. As we have heard, the recent report from Swansea University and the Armed Forces veterans’ health and gambling study clearly indicate that, in the United Kingdom, serving personnel and veterans in particular are significantly more likely to struggle with problem gambling than non-veterans.
I was privileged to meet many problem gamblers, some from the Armed Forces, when the GAMSTOP exclusion from online gambling was being debated in your Lordships’ House. One of those gamblers was a retired Army major, Justyn Larcombe, whose case is well documented. He lost more than £750,000 over three years through taking part in online sports books. As a result, he lost his home, his family and his wife. However, I am glad to say that he has now been reunited with his wife and family, and has become actively involved in helping others obtain help for their gambling addiction. Indeed, he was the co-investigator on the United Kingdom Armed Forces Veterans’ Health and Gambling Study 2021 report, which provided a useful survey of gambling, mental health and associated costs among a sample of UK veterans.
The findings of that report back up the fact that members of the Armed Forces are much more likely to develop gambling problems, especially if they have experienced post-traumatic stress. Also, the transition from active military service to civilian life can be extremely challenging, leading, as we have heard, to many veterans engaging in high-risk behaviour, such as alcohol and substance abuse, and having behavioural problems. As I have said, there is growing evidence indicating a specific vulnerability to gambling-related harm.
Veterans’ gambling is more likely to be motivated by a need to escape and avoid distress. Indeed, we should note that the 2021 veterans study found that
“gambling is estimated to cost the UK between £260 million to £1.6 billion in economic, health, social and criminal justice costs”.
As the Forces in Mind Trust states:
“This research found that veterans with problem gambling had higher health care and benefits costs, as well as higher levels of debt than non-veterans.”
I believe that this amendment would lead to the provision of much needed further research—because research is limited at the moment—to assist our understanding of the mechanisms underlying problem gambling among Armed Forces personnel. With increased data, the Government would be in a much better position to formulate and draw up policies to help those in our Armed Forces facing gambling problems. It would also help them to think of policies to reduce the stigma often associated with those in the Armed Forces seeking help for gambling problems. Unfortunately, many personnel fear facing the possible repercussions, such as losing a chance at promotion or, in some cases, being dismissed from the services.
The problem of gambling in the Armed Forces is real and causing real problems for not just the individuals in the Armed Forces but their families. The inclusion of this proposed new clause in the Bill would go a long way to provide for and protect them so that the Government could make well-informed decisions, as I said. Northern Ireland has the highest incidence of problem gambling in the general population. It is four times higher than in any other region in the United Kingdom. I hope that, if these two proposed new clauses are accepted by the Government, they will apply to Northern Ireland.
We must continue to improve service and, where we can support sensible, practical and long-lasting protection for all our military personnel, we should do so. I fully support any legislation that will improve the lives of our very fine personnel.
Baroness Smith of Newnham (LD)
My Lords, I support all the amendments in this group on behalf of the Liberal Democrat Benches. I will particularly speak to Amendments 48 and 66A. As the noble Lord, Lord Dannatt, pointed out in introducing Amendment 66A, it very much builds on those he sought very hard to bring forward on the overseas operations Bill. The suggestion at the time was that perhaps that Bill was not the right place for such an amendment.
The idea of a duty of care seems to be beneficial, and the amendment is laid out in very clear detail. I have a suspicion that the Minister might come back with a whole set of reasons why even this Bill is not the right place, and that the concerns of the noble Lord, Lord Lancaster, about unintended consequences might come with the suggestion that there will be scope for some sort of legal interpretation and that this might create all sorts of problems. However, does the MoD not have a duty of care to service personnel and their families? Should this not be very clearly stated? If the Minister does not accept that Amendment 66A as currently proposed would be a desirable addition to the Bill, could she undertake to think about an alternative amendment that could be brought back on Report?
Amendment 48, relating to service personnel and mental health, is important. As other Peers have pointed out, the contributions from the noble Lord, Lord Robertson of Port Ellen, and the noble and gallant Lord, Lord Houghton of Richmond, are important in bringing personal insights. Often when we talk about legislation relating to the Armed Forces, we are a bit technical. We talk not necessarily about individuals but about generalities. It is clearly important to think about the individual because it is precisely the individual who matters in each of the three amendments in this group.
However, I have some sympathy with the point made by the noble Lord, Lord Lancaster, that Amendment 48 specifically refers to veterans affected by events in Afghanistan. There may be a case for saying that, on the face of a Bill, we should be a little more general rather than being quite so specific. If the Minister’s only objection to Amendment 48 happens to be something along the lines of not being able to talk specifically about people being affected by the withdrawal from Afghanistan, perhaps again she might suggest some alternatives. Very clearly, there are a huge number of serving personnel and veterans who have been affected by the withdrawal from Afghanistan, precisely because they served there on multiple occasions, so this case is very specific.
All these amendments enhance the Bill. I hope the Minister will see her way to accepting parts of at least some of them, even if she cannot accept all of them in full. If she cannot accept them, we will obviously bring some or all of them back on Report.
Lord Coaker (Lab)
My Lords, I support all the amendments in the important group before us. There are clearly many issues around mental health support but I have an optimistic note. We heard contributions from very senior former military officers—not least the noble Lord, Lord Dannatt, who moved the exceedingly important Amendment 48, and the noble and gallant Lord, Lord Houghton, who supported it—and former Secretaries of State for Defence talking about mental health in a way that would not have happened 20 or 25 years ago. That is significant progress and we should all be proud of it.
Perhaps that stigma we all worry about is starting to lift. Is it good enough and are we there yet? No, but my noble friend Lord Robertson spoke movingly about his experiences, shocking as they were. I am certain that those officers who served in Northern Ireland, and elsewhere across the world, could recount their own stories of horror. Others of us could recount horrors that have occurred in our own lives: the right reverend Prelate may have had very distressing things to deal with in talking to people during his ministry. Within the context of the Armed Forces Bill, though, mental health is now something that we can talk about and discuss. That is why this amendment is so important, although maybe there are problems with it; the noble Lord, Lord Lancaster, pointed some out.
We can almost see in the drafting of Amendment 48 the point made by the noble Baroness, Lady Smith, and the noble Lord, Lord Lancaster. Yes, it refers to Afghanistan: proposed new subsection (1) talks about
“targeted support for serving Armed Forces personnel who have been affected by the United Kingdom’s withdrawal”
from Afghanistan, but before that it refers to
“additional mental health support for … Armed Forces personnel, including but not limited to”
that support. The amendment of the noble Lord, Lord Dannatt, includes a recognition that Afghanistan may be on our minds, for obvious reasons, given the bravery of our service men and women there and the horror of what we have just witnessed, et cetera. But I suggest that, in drafting his amendment, he was very aware of the fact that there are people who have served, and are serving, in countless places across the world whose trauma could need additional support.
To be frank, the Minister may have some official statistics on this. I do not know the actual number of those affected, but it would be useful for the Committee to know from the Ministry of Defence its assessment of the level of need, if that is the right way of putting it, with respect to this provision. Perhaps I may tell her one thing that drives me absolutely insane: people know that I try to tell it as it is but, from the Government’s announcements over the last few months, I have no idea exactly what is happening to spending on mental health in terms of additional support for veterans or their families, both serving and in the future. There have been numerous announcements; I hope the Committee will bear with me if I refer to two or three.
At the end of August, the Government announced that Armed Forces veterans would benefit from extra support, including extra mental health services, thanks to a further £2.7 million in funding. Is that additional funding and what is it on top of? It would be helpful to know what the spending on mental health support was last year, is this year and will be next year. Resources are clearly an issue and it would be really good to know what the official level of spending is on mental health support for our serving personnel and veterans. What is it now and what is projected as we go forward?
Baroness Goldie (Con)
My Lords, I think we all found that a fascinating discussion. I will say later in my remarks that I indicated during the passage of the overseas operations Bill that I felt that some of these issues would be worth revisiting in the Armed Forces Bill. I am very grateful to the noble Lord, Lord Dannatt, for raising the issues. I will address the points on which he specifically sought clarification later in my speech, but I pay particular tribute not just to the content of your Lordships’ contributions but to the emotional sentiment and the calibre of that sentiment, as so eloquently expressed by the noble Lord, Lord Robertson.
These important amendments centre on the issue of service personnel and mental health. As I said, I am very grateful to be able to look at these amendments. I accept that the amendments in the name of the noble Lord, Lord Dannatt, are well intended. Amendment 48 is supported by the noble and gallant Lord, Lord Houghton of Richmond, the noble Lord, Lord Coaker, and the noble Baroness, Lady Brinton, while Amendment 66A is supported by the noble and gallant Lords, Lord Stirrup and Lord Boyce, with the noble Lord, Lord Coaker, lending his weight as well.
I also extend my gratitude to the right reverend Prelate the Bishop of St Albans, whose Amendment 60 highlights the potential harmful impact that addictive gambling could have on our service personnel. His amendment is supported by the noble Lords, Lord Browne of Ladyton and Lord Foster of Bath. The right reverend Prelate’s determined pursuit of the potential harm of addictive gambling is acknowledged and admired. I assure him that I have looked at the research he referred to, which I shall refer to when I address his amendment.
Amendment 48 seeks to ensure that the Government make provision for additional mental health support, including for service personnel affected by the United Kingdom’s withdrawal from and the Taliban takeover of Afghanistan in 2021. The noble Lord, Lord Dannatt, asked about Afghanistan and the effect of Operation Pitting on those who participated. I am not dodging the issue, but as yet there is no clear evidence to support what mental health impact the current Afghanistan situation is having. The MoD is prepared with comprehensive services and support for everyone who may have been affected by this situation.
The noble Lord, Lord Dannatt, specifically raised the issue of suicides. The MoD has begun the defence suicide register. It relates to all suicides across defence, including those relating to Afghanistan. It is anticipated that this review or register will be released in spring 2022. I hope that provides the noble Lord with some reassurance that active attention is being directed to this.
It is MoD policy that mental health should be properly recognised and appropriately handled, and that every effort should be made to reduce the associated stigma. The MoD recognises that mental ill-health can be a serious and disabling condition, but one that can be treated through education, training, diagnosis and specialist care. We have a resilient workforce and are focused on the prevent space all the time, not just with current events. I will explain to your Lordships what we do now. I thank the noble Lord, Lord Coaker, who said that, time was, we did not really talk about these issues. I say to him: we want to talk about them now, we can talk about them now, and that is what we should do.
Every year the MoD publishes the United Kingdom Armed Forces Mental Health bulletin, which provides a summary relating to Armed Forces personnel seen in all military healthcare services—primary care and specialist mental health care—for a mental health-related reason. It provides a wider picture of mental health among Armed Forces personnel. The noble Lord, Lord Coaker, justifiably asked about the level of need. That annual bulletin is a useful indicator of level of need.
The noble Lord, Lord Coaker, also asked for an overall figure of resource applied to the mental health support given to service personnel and veterans. I will inquire and see what I can find out. I undertake to write to the noble Lord, and I shall place that letter in the Library.
In June 2021, the annual UK Armed Forces Mental Health bulletin showed that the mental health of UK Armed Forces personnel is
“broadly comparable to that seen in the UK general population”
and that the rate of mental ill-health
“for those needing specialist mental health treatment was lower in the UK armed forces than that seen in the UK general population.”
The noble Lord, Lord Dannatt, referred to the helpful description that I believe my ministerial colleague for defence personnel and veterans used: the “gold standard” of what we try to do. I think we do have a gold standard in relation to the provision of mental health support for our Armed Forces and veterans. I am going to take some time to explain what we do, because it is important that I share with your Lordships as much information as I can. All Armed Forces personnel are supported by dedicated medical services, including mental health support. The MoD works with the single services, Defence Medical Services and other stakeholders to promote mental fitness, prevent ill health and reduce stigma. The noble and gallant Lord, Lord Houghton, and the noble Viscount, Lord Brookeborough, quite rightly raised that important issue.
Each of the single services provides through-career mental resilience and stress management training, including a defence course for senior officers. Armed Forces personnel who experience a traumatic event are supported through the trauma risk management process. The MoD has also produced the HeadFIT website to encourage the good management of mental fitness. An online mental health fundamentals course is available to all Armed Forces personnel and, from 11 October this year, the annual mental fitness brief is mandated activity for all Armed Forces personnel, delivering an understanding of mental health and well-being, stress management, how to transform stress into mental resilience and where personnel can seek appropriate help.
The MoD provides a 24-hour mental health helpline for Armed Forces personnel and their families delivered by Combat Stress. Togetherall allows Armed Forces personnel access to its 24-hour staffed digital forum, and the Samaritans deliver bespoke workplace training and a peer support pocket guide providing guidance on how to talk to and support colleagues struggling to cope with mental ill-health.
One question that arose was: what processes are in place to identify those who are vulnerable and most at risk of developing mental illness? No system can detect every individual at risk of mental illness. Nevertheless—I say this to reassure the noble Lord, Lord Robertson—measures are in place to increase awareness at all levels and to mitigate the development of operational stresses. These include pre and post-deployment briefing and the availability of support, assessment, and, if required, treatment both during and after deployment. This is available to all personnel, whether regular or mobilised reservists.
Going back to the important issue of stigma, what is the MoD trying to do to help address that and people’s reluctance to accept or seek help? Stigma is not, as your Lordships will understand, an issue only for the UK Armed Forces. It accompanies mental health issues among the general population. But, from September this year, all Armed Forces personnel receive a mandatory annual mental health and well-being briefing. It focuses on increasing awareness of mental health and the personal barriers that prevent some personnel seeking support.
We move on to the important issue raised by a number of noble Lords: the transition. What do you do when you propose to go from active service to the status of veteran? What support is given to service leavers with mental health issues to ensure that they do not slip through the gaps in that transition? Where personnel leaving the Armed Forces have an enduring need for mental health care, we work in partnership with the NHS to ensure continuation of care. The MoD’s departments of community mental health are accessible for up to six months after discharge to help veterans during their transition period.
An important question was raised by the noble Viscount, Lord Brookeborough: what are we doing to support the mental health needs of veterans? Wherever they live in the UK, all veterans are able to receive specialist mental health support if they need it. The MoD and the Office for Veterans’ Affairs work in close partnership with a variety of different organisations, including the NHS and the devolved Administrations, who are responsible for health care, including mental health care, for veterans, and service charities.
The through-life mental health support now provided to Armed Forces personnel will also have a positive impact on the veterans of the future. We are ensuring that Armed Forces personnel have the psychological resilience training they need to recognise mental ill-health in themselves and those around them and know how to manage it.
What about the supporting background, which is also critical? The majority of Armed Forces personnel who seek mental health care are actually managed by their GP. However, some with more complex needs will receive treatment from specialist mental health care providers. MoD specialist mental health services are configured to provide community-based mental health care in line with national best practice. This is done through 11 military departments of community mental health across the UK that provide outpatient mental health care. These DCMH teams comprise psychiatrists, mental health nurses, clinical psychologists, senior mental health practitioners and mental health social workers. A wide range of psychiatric and psychological treatments are available, including medication, psychological therapies and environmental adjustment, where appropriate.
For those personnel requiring medical intervention, the Defence Medical Services provide a responsive, flexible, accessible and comprehensive treatment service. Some 10.5% of UK Armed Forces personnel were seen in military healthcare for a mental health-related reason in 2021. This figure includes both personnel seen by their GP and those who required the support of specialist mental health services. We also do more out in the broader community. The Defence Medical Services set up Project Rebalance, a self-referral provision for serving personnel seeking mental health care who are pregnant or are on maternity leave. In February 2021, the Defence Medical Services set up another self-referral provision—Project Direct Support—for DMS personnel seeking mental health care while being engaged in clinical front-line duties during Covid.
Lord Dannatt (CB)
My Lords, first, I thank all noble Lords who have taken part in this debate. We have discussed these matters for one hour and 35 minutes, which is much longer than I anticipated we would, but it is very good that we have had a tremendous number of points exercised. I also congratulate the House staff on grouping these amendments so cleverly. Amendments 48, 60 and 66A have come together in an extremely powerful fashion to underline the concern that many of us have about some of these issues.
I particularly thank the Minister for her most comprehensive answers to all the points made. It is true that part of the thinking behind the amendments we have discussed this afternoon was to invite her to give a comprehensive statement of where the department thinks that it is. I am grateful for her extensive, exhaustive and informative account of the many improvements and changes that the department has been making. I refer back to my opening remarks, when I paid credit to the Ministry of Defence for a number of the changes that have occurred in recent times. We all know that much progress has to be made—much has been made but, in many of these areas, much more has to be made.
In closing, I will make one comment. On two or three occasions, we have looked at data. It has been asserted that the Ministry of Defence does not find any oddity between the service population and the general population. I find that quite difficult to accept. A number of pieces of evidence have been alluded to during the course of this debate indicating that perhaps the Ministry of Defence’s data is not all that it should be, and perhaps there is an element of understanding what you want to understand as opposed to what the reality actually is.
I point particularly to suicide, which I raised and discussed 18 months ago with Johnny Mercer MP, then the Veterans Minister. He assured me that two investigations were going on, comparing the incidence of suicide arising from Iraq and Afghanistan to the historic data of the first Gulf War and the Balkans. I was promised that this information would be available. I am now told that there is another study, which will report in spring 2022. Asking questions is a good thing but we also need some answers because, when we have them, we have a factual base, and we can then start to build some better policy. I make that comment as an aside, and I thank the Minister for her comprehensive updating of your Lordships about where we have got to.
At the present moment, I am content to withdraw Amendment 48 and not to move Amendment 66A. I should like to analyse, as others will, the information that has been given this afternoon and see where we might go in the context of Report.
Lord Tunnicliffe
“Indefinite leave to remain payments by Commonwealth and Gurkha members of armed forces
(1) The Immigration Act 2014 is amended as follows.(2) In section 68(10), after “regulations” insert “must make exceptions in respect of any person with citizenship of a Commonwealth country (other than the United Kingdom) who has served at least four years in the armed forces of the United Kingdom, or in respect of any person who has served at least four years in the Brigade of Gurkhas, such exceptions to include capping the fee for any such person applying for indefinite leave to remain at no more than the actual administrative cost of processing that application, and”.”Member’s explanatory statement
This new Clause will ensure that Commonwealth and Gurkha veterans applying for Indefinite Leave to Remain following four years of service will only pay the unit cost of an application.
Lord Tunnicliffe (Lab)
My Lords, in moving Amendment 49, I will speak to Amendment 63. I thank the noble and gallant Lord, Lord Craig, the noble Lord, Lord Dannatt, and the noble Baroness, Lady Smith of Newnham, for signing these amendments.
It is extremely disappointing that, as currently drafted, the Bill does nothing to address the shameful scandal of visa fees for veterans. As Stephen Morgan said:
“Commonwealth service personnel have contributed an enormous amount to our national defence and we owe them a debt of gratitude. Extortionate visa fees have left non-UK veterans facing financial ruin and feeling abandoned by the country they served with courage and distinction.”
Under current rules, Commonwealth personnel face a fee of £2,389 per person to continue to live in the UK after having served at least four years. It means that someone with a partner and two children could face a bill of £10,000 to stay in Britain. I remember that, at Second Reading, the noble Lord, Lord Bilimoria, called this a “shameful scandal”, while the noble Lord, Lord Dannatt, said that it was a “bizarre situation”.
The Government finally announced a long-awaited public consultation on 26 May on proposals that would waive visa fees for those who had served 12 years or more. However, as the Sun reported:
“Ministry of Defence figures show only 20 of the 200 non-UK personnel who left the Regulars last year would qualify … when the majority serve between four and 11 years … The average length of service for all UK armed forces leavers has been about 10 years since 2015.”
The proposed changes also do not apply to family members of those who have served or those who have been medically discharged, meaning that they will help only a minority of those affected. Amendments 49 and 63 would mean that Commonwealth, Gurkha and Hong Kong Military Service Corps veterans who have served four years would pay just the cost price of £243 for an application for indefinite leave to remain. I know that the Royal British Legion and organisations such as Citizenship 4 Soldiers have long campaigned on this.
The government consultation closed on 7 July. The Minister said at Second Reading that the Government were
“currently analysing the feedback from that consultation and we shall respond in due course.”—[Official Report, 7/9/21; col. 775.]
Is that response ready today? If not, when will it be ready? Can the Minister explain why this Government can justify making Commonwealth and Gurkha veterans, who have served our country with the same courage and distinction, wait two years longer before they are allowed to live in the country they have fought for? This is about not only fairness but our moral obligation to those who have served our country in the Armed Forces. I want to see movement from the Minister on this issue; otherwise, we will certainly return to it on Report. I beg to move.
Lord Craig of Radley (CB)
My Lords, I support Amendments 49 and 63, but I shall speak to Amendment 63 and concentrate on the plight of the few UK Armed Forces veterans of the Hong Kong Military Service Corps. For completeness, I also include veterans of the Royal Navy Hong Kong Squadron. They were all full members of Her Majesty’s Armed Forces throughout their service. They took the same lifetime oath of loyalty as all other British service members, and paid full UK taxes. Officially recognised as veterans by Her Majesty’s Government, they are not being treated fairly and reasonably, as the covenant requires. I have already explained the background to this issue to the Minister and raised it many times in this House, so I will not repeat myself now in this Committee.
The recent swift action by the Government to evacuate and grant right of abode to thousands of Afghanis shows that the Home Office can respond fast. Is there any reason why the Government have prevaricated for the past nine years and refused to come to a decision about granting the request of the Hong Kong veterans for British citizenship and right of abode? These veterans’ covenant rights should apply in Hong Kong as they do anywhere else.
The imposed national security law in Hong Kong has put the “one country, two systems” paradigm in a precarious state. These veterans find themselves living under Beijing rule. They, along with many other Hong Kongers, are worried, but they are small in number and believe their case is now a matter of humanity, not politics. They feel they are being treated as aliens, not veterans of Her Majesty’s Armed Forces.
They, as much as other past members of the Armed Forces, deserve a positive decision, not the endless excuse that their case is being “actively considered”. That euphemism has been the response of Home Office Ministers and a frequently repeated response to approaches from Members of both Houses on behalf of these veterans for the past nine years and more. Over 60 individual applications from this small group of veterans, which I forwarded to the Home Office on their behalf in March 2020, over 18 months ago, have gone unanswered. It all smacks of a Sir Humphrey-style reaction, unworthy of the Home Office, unless it aspires to remain a department unfit for business in this area. It is long past time for this request to be resolved finally and clearly.
Is this not an equally pertinent example, as was the case of Gulf War syndrome, highlighted by the noble and learned Lord, Lord Mackay of Clashfern, in the earlier Committee debate, of the need to include the Secretary of State for Defence in the list of those who must have a duty of care under the covenant? These Hong Kong Armed Forces veterans’ concerns and requests are not ones that could be devolved or passed to a local authority. Including the Secretary of State in this Bill is necessary to fill this gap in the duty of care under the covenant. Will the Government acknowledge that this Hong Kong veterans’ claim is a long-standing and legitimate one that should be honoured by reaching a decision now?
Lord Lancaster of Kimbolton (Con)
My Lords, I wish to contribute on Amendment 49. In doing so, I declare my interest as Colonel Commandant of the Brigade of Gurkhas. I have had a long association with the brigade since, as an 18 year-old troop commander in the Queen’s Gurkha Engineers, I first visited Nepal in 1988. I have served with them ever since, in Bosnia, Kosovo and elsewhere, so I am delighted to now be the Colonel Commandant.
This is an interesting day. Yesterday marked the 207th anniversary of the death of Major-General Rollo Gillespie at the Battle of Kalunga, where a tiny Gurkha or Nepali force of some 600 held off for nearly a month a much better-equipped and larger British Army force. That honourable draw effectively started the relationship between the British Army and Nepal, when the Prime Minister at the time, Bhim Thapa, allowed the East India Company, as it was then, to start recruiting Gurkhas.
Viscount Brookeborough (CB)
My Lords, I rise to ask for some clarification from the Minister. On the first day of Committee I mentioned, perhaps in a slightly inappropriate place, British citizenship for Commonwealth soldiers. One of the tasks of a lord-lieutenant is to be the Queen’s representative at citizenship ceremonies. On one occasion a soldier from the Rifles, who was from the Caribbean, came up. When I asked him what he did, he said very quietly, because we were in Northern Ireland and one is sensitive about that, “I’m in the Army”. I would like clarification on what the noble Lord, Lord Lancaster, has just said. I understood him to say that they could not apply for citizenship while they were serving. In that case, how was this soldier, who was not a Gurkha, able to apply during that time?
Also, previous clauses of this Bill cited “due regard” by the authorities—not the Government but other statutory bodies—in housing, mental welfare and whatever. How is it that we do not appear to have due regard for Commonwealth soldiers, some of whom have done multiple tours in Iraq, Afghanistan and, indeed, Northern Ireland? I understand from earlier comments by the Minister that “due regard” in the whole Bill does not apply to central government, so the Government seem to have sidestepped this, in more ways than one.
We were talking about this a few minutes ago. Where is this moral responsibility of at least “due regard”? What is the process for a serving soldier from a Commonwealth country who is not a British citizen to apply for British citizenship? Do they have to go through the same hoop and process, with significant cost, as somebody who may be a doctor or nurse from the Philippines? These are people from all over the world, including China and Russia—I have carried out this ceremony for citizens of all sorts of countries. I would just like the Minister to explain where we are putting our soldiers. We do not seem to have the moral and caring attitude that, as a country, we should have to those who have served us so well.
Lord Dannatt (CB)
My Lords, I support both these amendments in regard to those affected in Hong Kong, about whom the noble and gallant Lord, Lord Craig of Radley, spoke most eloquently, and Gurkha soldiers who are Nepalese citizens. It is also worth putting in the widest possible context that we have a large component of the British Armed Forces from not only Nepal or Hong Kong, as already mentioned, but other Commonwealth countries. When I had the privilege of being Chief of the General Staff, the make-up of the British Army included people from 41 different nationalities. In fact, I had under my command more Fijian soldiers than Frank Bainimarama, the head of the Fijian Army, had in his own army. This is not a niche problem but a significant issue which we have to address, recognise and deal properly with.
We have to do so now in the context of the withdrawal from Afghanistan. In that melee of people coming back on the various flights during August were many members of the Afghan national army who, one way or another, have found their way back here. As part of Operation Warm Welcome, they will now be given significant residential rights in this country, over and above the foreign and Commonwealth soldiers who have stood shoulder to shoulder with us and fought in many campaigns. This is an anomaly and it is bizarre. We have to resolve it, so I put that issue back on the table. Earlier this afternoon, unintended consequences were mentioned in another context; this is an unintended consequence of a generous gesture to Afghans but, I am afraid, it makes a mockery of our policy with regard to foreign and Commonwealth individuals, including those from Nepal and Hong Kong.
Baroness Smith of Newnham (LD)
My Lords, I support both amendments. I added my name to Amendment 49; it was merely an omission not to have added my name to Amendment 63 since both amendments, as we have heard, are important. At Second Reading, I spoke about the situation with the Gurkhas; my only experience of them is visiting once while on the Armed Forces Parliamentary Scheme, so I have no interest to declare in the way that the noble Lord, Lord Lancaster, has.
However, like other noble Lords, I am deeply aware of the importance of the Gurkhas and the service they give. We need to think what signals we send if we say, “You can work with us; you can put your life on the line and die for us. But if you wish to have indefinite leave to remain, we will charge you huge sums of money, as if you were simply coming as a third-country national with no relationship to our country.” People who have been serving with us, such as the Gurkhas and Commonwealth citizens working within our Armed Forces, should be given the opportunity to have indefinite leave to remain on an at-cost basis, as we ourselves would when we sign up for a passport. We do not get our passports free but we pay the cost.
Earlier on, the Minister suggested that the MoD has certain duties, but this is not currently a duty. The MoD and the Home Office could do something relatively straightforward about this and make a huge difference in the message that we send to service personnel from Commonwealth countries.
Finally, I add a word in support of the comments of the noble and gallant Lord, Lord Craig of Radley, about Hong Kong. This is partly because my noble friend Lord Alton of Liverpool was hoping to speak on this amendment in support of the service personnel from Hong Kong; he sat through the first group and most of our next debate but has had to leave for another meeting. It is very important that we think again about the commitments to Hong Kong. As the noble Lord, Lord Dannatt, said, it is slightly an issue of history and timing that the withdrawal from Afghanistan has happened in the middle of the passage of the Bill, and it sends certain messages. However, that withdrawal and the situation in Hong Kong again mean that we have certain duties. It would behove the MoD and the Home Office to look generously also on service personnel from Hong Kong.
Baroness Goldie (Con)
My Lords, I thank your Lordships for their contributions on an issue that might look fairly contained but is, none the less, important. I will look first at Amendment 49, on fees for indefinite leave to remain, which was moved by the noble Lord, Lord Coaker, and supported by the noble and gallant Lord, Lord Craig of Radley, the noble Lord, Lord Dannatt, and the noble Baroness, Lady Smith of Newnham. I make clear immediately that the Government highly value the service of all members of the Armed Forces, including Commonwealth nationals, and Gurkhas from Nepal, who have a long and distinguished history of service to the UK, both here and overseas.
Your Lordships will be aware that the Home Office, not the MoD, has a specific set of Immigration Rules for Armed Forces personnel and their dependants, the Appendix Armed Forces. Under these rules, non-UK service personnel enlisted in the regular Armed Forces, including Commonwealth citizens, and Gurkhas from Nepal, are granted an exemption from immigration status for the duration of their service to allow them to come and go without restriction. They are therefore free from any requirements to make visa applications or pay any fees while they serve, unlike almost every other category of migrant coming to work in the UK.
Non-UK service personnel who have served at least four years or been medically discharged as a result of their service can choose to settle in the UK after their service and pay the relevant fee. As my noble friend Lord Lancaster indicated, the time before discharge when such settlement applications can be submitted has been extended this year from 10 to 18 weeks. Those applying for themselves do not have to meet an income requirement, be sponsored by an employer or meet any requirements regarding their skills or knowledge of the English language or of life in the UK. That again puts them in a favourable position compared with other migrants wishing to settle here.
The noble Lord, Lord Dannatt, asked specifically about the situation of Afghan interpreters and sought to draw an analogy between them and the group that we are discussing under these amendments. ARAP and the ex-gratia scheme before it were set up in recognition of something very simple: the serious and immediate danger locally engaged staff would face, were they to remain in Afghanistan. The unique and perilous situation that this group of Afghans faced, because of their support for Her Majesty’s Government, required a bespoke solution to meet that immediate and extreme need.
I can tell the noble Viscount, Lord Brookeborough, that specific Immigration Rules are already in place for our non-UK service personnel and veterans, as I have outlined, to ensure that those who choose to can remain in the UK after service. Some choose to take up that offer, while others return to their original nation, but that personal choice is not overshadowed by risk of persecution or even death, such as would be faced by Afghan citizens if they returned to Afghanistan.
Lord Dannatt (CB)
I hope the noble Baroness will forgive me for interrupting. I much appreciate her point, but my point was not in this instance to do with interpreters. I am very grateful for the work of the Ministry of Defence in enabling many of our interpreters to come to this country, and more is still to be done. I was referring to members of the Afghan National Army who have found their way back to this country through the evacuation flights. As soldiers of another nation, they are going to be accorded better rights of residence in this country than foreign and Commonwealth soldiers who have served as members of the British Armed Forces.
Baroness Goldie (Con)
I referred to locally employed citizens in Afghanistan. It may be that some members of the Afghan army felt at risk and that their lives were imperilled, and therefore sought to return to this country. We would bring them under the overall umbrella of help we felt it necessary to provide people who came here because they feared for their lives—and they were people with whom we had a relationship. So I suggest that there is not a complete analogy in the noble Lord’s description.
We recognise that settlement fees place a financial burden on non-UK serving personnel wishing to remain in the UK after their discharge, and the strength of feeling from parliamentarians, service charities and the public about this issue. As has already been indicated, the Ministry of Defence, together with the Home Office, ran a public consultation between 26 May and 7 July 2021 regarding a policy proposal to waive settlement fees for non-UK service personnel. The noble Lord, Lord Tunnicliffe, asked when we will get an outcome from that. I can say to him that 6,398 responses were received. These are having to be sifted through. The results are currently being considered and the Government will publish their response in due course. The Government are aware that there is a certain anticipation in the outside world to know their response.
Lord Tunnicliffe (Lab)
My Lords, the time is late. I think six Peers have spoken on these amendments and they were entirely in favour of them, as far as I can tell. There is a thing called democracy. It does not come in during this Committee but does on Report, and I assure the noble Baroness that we will be back on the subject. I suggest she adjusts her mind not only to consultations and reports but to a dash of pragmatism, which would be best achieved by a major concession from the Government. In the meantime, I beg to withdraw the amendment.
Lord Coaker
“Report on dismissals or discharges from the Armed Forces on grounds relating to sexual orientation or gender identity
(1) The Secretary of State must lay before Parliament a report on the number of people who have been dismissed or discharged from the Armed Forces on the grounds relating to sexual orientation or gender identity.(2) The report under subsection (1) must include cases where—(a) there is formal documentation citing sexual orientation as the reason for their dismissal, or(b) there is evidence of sexual orientation or gender identity being a reason for their dismissal, though another reason is cited in formal documentation.(3) The report under subsection (1) must make recommendations for appropriate compensation to be awarded, including but not limited to—(a) the restoration of ranks,(b) pensions, and(c) other forms of financial compensation. (4) The report must include a review of the cases of those service personnel who as a result of their sexual orientation were convicted of service discipline offences as a consequence of engaging in conduct which, if occurring in the same circumstances today, would not now be an offence and make recommendations on how to address such convictions.(5) The report must include dismissals and discharges back to at least 1955.(6) The first report under subsection (1) must be laid no later than six months after the day on which this Act is passed.(7) The Secretary of State may make further reports under subsection (1) from time to time.”Member’s explanatory statement
This new Clause requires the government to conduct a comprehensive review of the number of people who were dismissed or forced to resign from the Armed Forces due to their sexual orientation and to make recommendations on appropriate forms of compensation.
Lord Coaker (Lab)
My Lords, I beg to move Amendment 50 in my name, which is in this important group of amendments. I thank the noble Lords, Lord Cashman and Lord Lexden, for their amendments in this group. I very much support and appreciate them.
I will try to keep my remarks relatively brief to give other noble Lords time to speak. This is a crucial set of amendments. The Committee will know that homosexuality was banned in the British Armed Forces until January 2000. That is quite astonishing, given that the law was changed in 1967. The ban was lifted by the then Labour Government and I was very pleased. I do not know whether the noble Lord, Lord Robertson, was Secretary of State at that time. If he was not, he would no doubt have been working towards that. The fact that homosexuality was banned in the British Armed Forces until January 2000, some 33 years after the 1967 Act, is shocking.
Lord Robertson of Port Ellen (Lab)
My Lords, I can tell my noble friend that I left the Ministry of Defence in October 1999, so I cannot claim the credit.
Lord Coaker (Lab)
I would say that my noble friend laid the ground for it.
My serious point is that it has left a situation in which thousands upon thousands of ex-service men and women were dishonourably discharged, or quite outrageously forced from the service, simply because of their sexuality. It is simply unbelievable given the standards we have now and simply unacceptable that it happened. The practical impact of that discrimination —loss of pension, loss of livelihood et cetera—let alone the mental health damage and the stigma attached to it, was simply unacceptable and unbelievable. I want to draw attention to that. I would be interested to know from the Minister what the Ministry of Defence’s estimate—the Government’s view—is of the number of people impacted by this. I have seen estimates in the press of up to 20,000 people. I do not know whether that is correct; maybe noble Lords have better information than me, but it will be interesting to know what the actual figure is.
We have heard the Government say that there will be a restoration of medals. That seems good, but its progress has been slow. What will the Government do more of to try to accelerate that progress? There is clearly a need for further compensation, for pensions to be reformed and all those sorts of things. The Minister must now consider the restoration of ranks, pensions and other forms of compensation to honour appropriately those who have served our country with courage and distinction. That is what Amendment 50 seeks to do. Fighting With Pride gave compelling evidence to the Select Committee on the Bill about the damage that the ban on homosexuality has done to LGBT+ veterans. What steps will the Minister take to proactively identify those who were discriminated against? What discussions has she had regarding further forms of compensation for those affected?
I was grateful that the Minister in the other place said so clearly that
“the historical ban on homosexuality in the armed forces was absolutely wrong and there was horrific injustice as a consequence of it.”
I could not have put it better. It is absolutely shameful for our country. How do we go about fixing this injustice? That is what we all want to do. The Minister said that the Government would resist a similar amendment as it would
“complicate our efforts to address at pace this injustice.”
I do not understand what was meant by “complicate”. Surely the amendment would give a clear direction and encourage action. The Minister then said that fixing this injustice
“is at the heart of our veterans’ strategy”.—[Official Report, Commons, 23/6/21; col. 929.]
When will we get to see this strategy and will the idea of compensation be included?
When giving evidence to the Bill’s Select Committee, Craig Jones from Fighting With Pride said:
“When people were found or suspected”,
of homosexuality,
“they were arrested, often late at night, by the Royal Military Police. They were taken away for questioning, and that questioning … went on for days. Many of the people who were questioned had no legal support, or no ‘accused’s friends’, as we sometimes call that in the Armed Forces. They were searched, and the process went on for a very long time. After they had been charged, many were taken to military hospitals for medical inspections, which were a disgraceful breach of trust between members of the Armed Forces and the officers whom they were in the care of.”
I could not agree more with the Bill’s Select Committee’s report, which stated:
“Diversity is a source of strength for the Armed Forces and all should welcome and encourage a more diverse Armed Forces.”
Surely part of that is righting this historic wrong.
I was moved by an article that I hope noble Lords saw in the Mirror a few weeks ago. It outlined some of the case studies of some former veterans, forced to leave the Armed Forces after some years of service. It was heartbreaking and unbelievable. It brings tears to your eyes when you read it. We were all shocked by it, but what we want is speedy action from the Government.
I will mention one positive sign: is it not great that finally in our country, on Remembrance Sunday this year, Fighting With Pride will be able to lay a wreath at the Cenotaph? That is a symbol of the change that we all want and the action that needs to be taken, but it needs to take place sooner rather than later. I press the Minister not only to share our shame and sense of outrage at this injustice but to explain to the Committee what we will do about it to end it more quickly than we seem to be at the moment.
Lord Cashman (Non-Afl)
My Lords, I support Amendment 50, and I will also speak to Amendments 57 and 58. It is a real privilege to follow the noble Lord, Lord Coaker, and his opening statement in support of his amendment to remind us of the harm and damage done to armed service personnel who wanted nothing other than to serve their country. Because of their homosexuality—not necessarily their conduct—they were forced out of the armed services, and they have had to live with the consequences. Some still do, in terms of the employment that they are prevented from getting.
I was not able to be in my place to speak at Second Reading, but I take this opportunity to say that I am particularly grateful for the collaboration that has brought about Clause 18, on
“Posthumous pardons in relation to certain abolished service offences”.
I place on record my gratitude to the noble Baroness, Lady Goldie, her entire Bill team and Professor Paul Johnson. I also wish to record my immense admiration for my noble friend Lord Lexden—my dear friend. I commend his contribution on the Bill, and Clause 18 in particular, at Second Reading. He and I have benefited from the wisdom, fortitude and knowledge of Professor Paul Johnson of the University of York, whose work with officials has produced some extremely fine drafting—he is the expert in this field. Professor Johnson, my noble friend Lord Lexden and I have worked together for five years on the issues of pardons and disregards that are before noble Lords today, and I hope—indeed, I believe—that we are about to see the fruits of our endeavours.
Indeed, when I was preparing these notes, I reflected on the day in 1991, 30 years ago, when I joined Lisa Power, a member of Stonewall, and Robert Ely to give evidence to the Armed Forces Select Committee to call for the ending of the ban on homosexuals serving in the military that the noble Lord, Lord Coaker, referred to. Robert Ely, along with Elaine Chambers, both former armed services personnel, joined others and formed a group called Rank Outsiders to make the case for ending the ban and the harm done by it. Robert and Elaine showed immense courage, and I pay tribute to them and the founders and members of Fighting With Pride. I also thank Stonewall for its tireless campaigning, carried out across the decades, in putting the case for and promoting equality and equal treatment. I am proud to be one of its cofounders.
As I said, I fully support Amendment 50, which deals with the consequences of the injustices. I associate myself with the comments and concerns expressed by the noble Lord, Lord Coaker. As he rightly reminded us, one could be dismissed from the armed services merely because of homosexuality, and there were some appalling cases and investigations that followed.
I now focus on Amendments 57 and 58, tabled in my name and that of my noble friend Lord Lexden, which would insert two new clauses into the Bill. Their purpose is to expand the current disregard and pardon schemes, which provide a means of redress to those previously convicted under now-repealed—I repeat: repealed—offences for engaging in same-sex sexual conduct that today would be entirely lawful.
Current schemes do not encompass the wide number of service discipline offences that were once used to regulate Armed Forces personnel who engaged in consensual same-sex relationships. For example, the Army Act 1955 alone contained at least three separate offences—disgraceful conduct, scandalous conduct of an officer and conduct to prejudice of military discipline—that could be used to regulate the same-sex sexual conduct that would be lawful today. These offences, along with other civil offences, need to be included in the disregard and pardon schemes to provide those so cruelly treated by now-repealed laws with the justice they deserve, as my noble friend Lord Lexden explained at Second Reading. Great injustice would remain if action were not taken in the way that he and I have proposed.
Lord Lexden (Con)
My Lords, the noble Lord, Lord Coaker, set the scene for this short debate so very effectively by explaining the extent of the injustice that occurred in the past and setting out the issues that so badly need to be addressed swiftly in the present. I look forward to my noble friend the Minister’s reply on all the important matters that the noble Lord, Lord Coaker, placed before us.
The amendments in my name and that of my comrade and noble friend Lord Cashman contain provisions that need to become law. I sensed widespread support for that in the reaction to my speech and in comments made to me since Second Reading. The amendments would bring many more gay service personnel who suffered grievously in the past as a result of unjust legislation within the scope of the now well-established pardon and disregard schemes, which my noble friend Lord Cashman and I have been working on for five years, as he mentioned. It is essential that the schemes are widened so that the stain that was so wrongly placed on the reputations of so many brave Armed Forces personnel can be removed.
As my noble friend Lord Cashman explained, the Government have proposed that effect should be given to the provisions in our amendments through the Police, Crime, Sentencing and Courts Bill, rather than this Bill. There can of course be no objection to that. I look to my noble friend the Minister today for a clear assurance that the necessary additions will be made to the other Bill to incorporate the provision of these amendments within it. As long as that happens, it should not be necessary to return to these amendments at a later stage of this Bill. As I said at the outset, action must be taken to ensure that gay service personnel who have suffered injustice obtain the redress that these amendments provide.
Baroness Smith of Newnham (LD)
My Lords, I rise briefly merely to add the support of the Liberal Democrat Benches to the three amendments. I completely understand that, if there are discussions between the Home Office, the MoD and the noble Lords, Lord Lexden and Lord Cashman, about Amendments 57 and 58, I will take that as read and assume that we do not need to discuss them further at this stage. Obviously, we on these Benches support the amendments.
As the noble Lord, Lord Coaker, said in his opening remarks, there is a set of issues that we clearly still need to think and talk about, and injustices that need to be righted. So, while Amendments 57 and 58 may not come back to us, I assume that the amendment from the noble Lord, Lord Coaker, will come back in some form. We will support it.
Baroness Goldie (Con)
My Lords, this may have been a short debate but I do not think that any of us can doubt the passion and commitment that have been evident in the contributing speeches.
I thank the noble Lord, Lord Coaker, for moving Amendment 50 and the noble Lords, Lord Cashman and Lord Lexden, for tabling Amendments 57 and 58. All three amendments have undoubtedly been tabled with deep compassion and humanity, with the intent of righting a past wrong. They are all concerned about the historical effect of the criminalisation of homosexual behaviour in the Armed Forces. As the Minister in the defence department responsible for diversity and inclusion, I feel a personal commitment to deliver improvement; I say that in a manner that I hope reassures noble Lords.
Amendment 50 seeks to place an obligation on the defence department to commission a comprehensive report on the number of service personnel who were dismissed, discharged or charged with disciplinary offences due to their sexual orientation or gender identity, and to make recommendations for compensation and restoration. I am pleased to remind the Committee that the Government accept entirely that the historical policy prohibiting homosexuality in the Armed Forces was absolutely wrong. The noble Lord, Lord Coaker, is right: there is a sense of shame. We recognise this and are looking, where appropriate, to address the historical injustice suffered by members of the LGBT+ community as a consequence.
Our priority is effectively to look at what the Government can do to better understand the impact of pre-2000 practices on LGBT+ veterans and swiftly put in place a series of steps to address past wrongs. We acknowledge that many individuals, including the noble Lord, Lord Coaker, would like to understand how many people were affected by past practices. This is not a straightforward task. I must say, focusing solely on it would detract from our primary goal of righting historical failures, which is what we are engaged in doing and, I hope, what the Bill reflects.
While we agree that identifying how many people were affected has value, this must not overtake our efforts to find further tangible ways to do right by those who were treated unjustly. We therefore resist the amendment because it will constrain the work already under way now. Having said that, the MoD is working at pace to identify the cohort of individuals affected due to this policy. This will not be a quick process; it will take time.
We are also investigating historical records to see whether we can establish members of the Armed Forces who were encouraged to leave the Armed Forces due to their sexual orientation and gender identity. However, this latter cohort, as your Lordships will understand, will be much harder to identify, given that their personal files may not explicitly link their departure to their sexual orientation and gender identity.
In February this year, we announced the restoration of military medals to Armed Forces personnel discharged on the basis of their sexuality. Since February, we have received a number of applications in response to that well-publicised announcement. These are being actively considered.
On the scope of current legal disregards, as the noble Lord, Lord Cashman, indicated, the Home Office and the MoD are working together to consider whether any further services offences can be brought within the scope of the disregards scheme. The current legislation—the Protection of Freedoms Act 2012—is very specific as to the offences that can be considered for a disregard, with the scope being limited to offences that have since been abolished or repealed and that criminalised homosexual activity. I am sure that many of your Lordships will be aware that our decision to address this issue has drawn the support of organisations such as Fighting With Pride and Stonewall, and we continue to engage with these and other stakeholders as we work together to make it clear that the military is a positive place to work for all who choose to serve.
As noble Lords have heard, there is a significant amount of cross-government activity, which includes, but is not limited to, working with the Cabinet Office, the Office for Veterans’ Affairs, the Ministry of Defence and the Home Office. I thank the noble Lord for attending the meetings, which I attended with my colleague and noble friend Lady Williams of Trafford. I hope that the noble Lord, Lord Coaker, is reassured by what I have been able to say today, and will agree to withdraw his amendment.
As we know, Amendments 57 and 58 seek to extend the disregard and pardon schemes to include all service discipline offences, whether repealed or not, for which gay service personnel were convicted or cautioned. They also seek, where applicable, to provide posthumous pardons to deceased service personnel. I am grateful to the noble Lord, Lord Cashman, for indicating that he will not press these amendments. As I just said, on the scope of current legal disregards and pardons, the Home Office and the MoD are working together to consider whether any further services offences can be brought within the scope of these schemes.
There is a significant amount of cross-government activity to resolve the issue of historic hurt. As the noble Lord, Lord Cashman, indicated, we are already in conversation with him—as well as with the Home Office and Professor Paul Johnson of York University—to find the best course of action to implement the necessary legislation to address this issue. It is complex; there are technical complications in understanding which Acts apply and how we must draft remedial provisions. We must be mindful to mitigate the potential risks that a whole-scale adoption of these amendments in both this Bill and the Police, Crime, Sentencing and Courts Bill may cause.
This will not be a straightforward task. We need to continue to develop cross-departmental policy and correctly identify the approach to be taken. We therefore resist the amendment because this Bill is not the most suitable place to make these amendments; rather, the proper legislative vehicle is the Police, Crime, Sentencing and Courts Bill, where the scheme can be properly and effectively extended and managed. I think that the noble Lord, Lord Cashman, will have gathered from the attitude of my noble friend Lady Williams of Trafford that he has a very willing pair of hands prepared to look at all aspects of this.
I remind noble Lords that Clause 18 of this Bill seeks to amend the pardons scheme to ensure that those who served in the Army and the Royal Marines before 1881 and were convicted of now-abolished service offences are posthumously pardoned. I suggest that these actions demonstrate the full commitment made by this Government to rectifying what I earlier called the shameful and wrongful treatment of those who have served. I therefore assure the noble Lord, Lord Cashman, and my noble friend Lord Lexden, that the Government are determined to redress this historic slight—“slight” seems an inadequate word; I think it is an historic injustice—against our brave and loyal servicepersons.
I hope that your Lordships have taken comfort from what I have said today: that far-reaching and consequential work is going on in this area. Naturally, the outcome of this work will never truly replace the hurt suffered by those affected. However, I hope that it will provide a degree of recompense and demonstrate that this House, this Government and this nation stand resolutely and proudly with both former and serving members of the Armed Forces who are drawn from across the LGBT+ community.
For these reasons, I hope that the noble Lord, Lord Coaker, will agree to withdraw his amendment.
Lord Coaker (Lab)
I thank the Minister for her response. Many people hearing it will be reassured not so much by the Government’s intentions and so on, but by what shone through: her honest answer and her clear determination to want to get something done. That is what is actually reassuring. I do not know whether I am supposed to say that as a Labour politician or noble Lord to a Conservative, but on this occasion there is, frankly, nothing that disunites any of us here. The noble Lords, Lord Lexden and Lord Cashman, have campaigned long and hard on these issues for much longer than I have. I hope they will also have been reassured by a government Minister who, instead of hiding behind weaselly words, talked about a sense of shame that our country should have—because it should. That reassurance gives me confidence that she will push this forward.
There are questions to be answered as to how far we will be able to get the Home Office to move, if it is the Home Office that needs to do so, and what legislation will eventually be passed. I do not really care which department is responsible for passing the legislation; what I am concerned about is that the legislation is passed. If it is the Home Office it is the Home Office, and if it is the Ministry of Defence it is the Ministry of Defence. This was a historical injustice. It is almost one of those things where you look back and cannot believe that it actually took place, but we are having to deal with many historical injustices at present. We cannot be judged on those but we can be judged on how we respond.
The only thing I would say to the Minister is that the restoration of the medals has not gone as quickly as it might have done and some of the other things are not going as quickly as they might. I accept there are huge difficulties. People will have been paid to leave the Army and all sorts of excuses will have been made, when the real reason was that they were pushed, bullied and intimidated out simply because of their sexuality. That is unacceptable. I do not know how many people there are; I read the figure of approximately 20,000 in the papers. But if it was 100 or 200—if it was 10,000, 15,000 or whatever—that does not alter the principle that we should be ashamed of what happened, but proud of the fact that we are now going to try and do something about it. I say to the Minister: can we please do it as quickly as possible, and not have this dragging out for years and years? We owe it to those who are still living and to the memory of those who are no longer with us. With that, I beg leave to withdraw the amendment.
House of Lords
Parliamentary Estate: Covid-19
The Lord Speaker (Lord McFall of Alcluith)
My Lords, as set out in my communication to all Members this morning, the UK Health Security Agency has determined that there is now a greater risk of Covid-19 transmission on the Parliamentary Estate. As a consequence, further action is being taken in both Houses to ensure that case numbers do not continue to rise and that we can continue the delivery of core parliamentary business. Members are expected to wear face coverings. Social distancing should be maintained as far as possible, and the number of guests brought into Parliament should be minimised. Finally, all events not related to parliamentary business will be cancelled for this week and next. I thank noble Lords for their understanding.
Public Health Grant to Local Authorities
(3 years ago)
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Lord Scriven
To ask Her Majesty’s Government by what percentage the public health grant to local authorities has (1) increased, or (2) decreased, since 2016.
Lord Scriven (LD)
My Lords, in begging leave to ask the Question standing in my name on the Order Paper, I declare my interest as a vice-president of the Local Government Association.
The Parliamentary Under-Secretary of State, Department of Health and Social Care (Lord Kamall) (Con)
Since 2016, the local authority public health grant has decreased by 2% in cash terms, but we increased the grant in 2020-21, and in 2021-22, and it now stands at over £3.3 billion. We are maintaining the grant in real terms over the next three years to enable local authorities to deliver preventive and front-line health services which will improve the health and well-being of their communities.
Lord Scriven (LD)
My Lords, even with the recent cash increases, the public health grant has been cut in money terms since 2016 by £1 billion, curtailing services such as smoking cessation, healthy families, and sexual health clinics. If the Government really are committed to preventing poor health, why did the Chancellor not restore in the Budget the £1 billion to improve public heath, rather than prioritising giving banks a £4 billion tax break?
Lord Kamall (Con)
The public health grant will be maintained in real terms over the spending review period, and we will confirm local authority allocations in due course, but this is not the only money going to public health. In addition to the grant, the Government are investing £300 million over the SR period to tackle obesity and £500 million over the SR period to improve the “best start in life” offer available to families. The NHS is spending over £1.3 billion on national public health services.
The Lord Bishop of London
My Lords, during my time as the Government’s Chief Nursing Officer for England I witnessed the unique value of public health nurses in the community. The pandemic has further highlighted the importance of such roles and the significance of a whole-system approach. Given this, will Her Majesty’s Government consider increasing funding specifically to build up or rebuild the capacity of public health nurses to tackle localised health inequalities?
Lord Kamall (Con)
The Government have allocated more money for local authorities but we think that it is best left to local authorities to decide how to spend that portion of their grant, for they are closer to the people in the communities that they serve.
Baroness Neville-Rolfe (Con)
Does my noble friend agree that a public health capability in local authorities is very important? I was very impressed by the work the head of the public health office did in my home town of Salisbury during the poisonings of the Skripals. I have heard reports that some of the duties of the office or its funding might be transferred to the NHS, which has enough on its plate. Is there any truth in this report?
Lord Kamall (Con)
It is true that some of the allocation for the National Health Service is being used for public health spending, but we want to make sure that across the health system the NHS not only focuses on prevention and therapeutics but works in partnership with the public health authorities.
Lord Laming (CB)
My Lords, the good news is that in the Budget last week, it was announced that local councils are to receive £1.6 billion in grants for each of the next three years. The bad news is that that does not take them close to what the councils were receiving and spending in 2010. Will the Minister do all that he can to press for adequate funding, especially for the public health services but also to meet today’s needs and not those of a decade ago?
Lord Kamall (Con)
There are many bodies tackling public health and raising awareness of some of the worst health problems we have—not only the Office for Health Improvement and Disparities and public health officials in local authorities but the NHS, which wants to move more towards prevention because in the long term that saves money.
Lord Whitty (Lab)
My Lords, the noble Lords, Lord Laming and Lord Scriven, have pointed out that the loss of £1 billion over the last decade or so from the public health teams’ budgets has impaired their ability to deal with issues, including those related to Covid. Does the Minister recognise that the increase just announced goes nowhere near to closing that gap? Does he also recognise the parallel problem that the limitation on local authorities’ support for care homes is greatly impairing their ability to care for the health of elderly and other disadvantaged people resident in care homes?
Lord Kamall (Con)
As noble Lords will know, the Chancellor has confirmed additional spend for public health, and the public health grant will be maintained in real terms over the spending review period, enabling local authorities to invest in prevention and front-line services such as child health visits. There will also be continued funding of £100 million per year over the period to tackle obesity in adults and children, as well as investment in a new start for life offer for families, with an additional £66 million in 2024-25. We know and recognise the importance of public health. At the same time, the NHS is committed to rebalancing between public health, prevention and therapeutics.
Lord Young of Cookham (Con)
Has my noble friend seen analysis by the University of York showing that expenditure on public health is three to four times more effective in terms of health outcomes than investment in the NHS? Will he take steps to ensure that we now invest in the resilience of the public health network to ensure that we are better placed for any future pandemics?
Lord Kamall (Con)
I thank my noble friend for that very important question. We continually assess our preparedness plans for infectious disease outbreaks and pandemics to ensure that they remain as robust as possible. This assessment includes, as appropriate, incorporating lessons learned from exercises that test the readiness of our plans and from our experience in responding to pandemics, disease outbreaks and other types of incident in the UK. The UK Health Security Agency will be dedicated to ensuring that we are protected from all future threats, including pandemics.
Baroness Merron (Lab)
My Lords, areas of greater deprivation have disproportionately borne the brunt of cuts to the public health grant, despite many people in these areas having poorer health. In Blackpool, ranked as the most deprived upper-tier local authority in England, the per capita cut to the grant has been one of the largest, at £43 per person per year. Can the Minister explain to the House how and why these decisions are made, and will he ensure that fairness in funding is restored for those who need it most?
Lord Kamall (Con)
The noble Baroness raises a very important point about needing to tackle disparities across our nations. The ring-fenced grant that we provide to local authorities to spend on public health services comes with a condition that they consider the need to reduce health inequalities in their areas. Also, the grant’s distribution is heavily weighted towards areas facing the greatest population health challenges. Per capita grant funding for the most deprived decile of local authorities is nearly 2.5 times greater than that for the least deprived. In addition, noble Lords will be aware of the new Office for Health Improvement and Disparities. The pin-light focus of that office is on health disparities and how we tackle them.
Lord Hunt of Kings Heath (Lab)
My Lords, I must say that that is a rather surprising answer. The Minister will know that the Prime Minister has promised to help level up the health expectancy of the poorest areas, but I take the Minister to his answer. The Health Foundation stated in the summer that there is no sign of concerted action to do this and:
“Current plans appear to be partial and fragmented, and many deprived areas where people are likely to have poorest health have not been identified as priorities for investment.”
Will the Minister reconsider his answer to my noble friend?
Lord Kamall (Con)
The noble Lord raises a very important point about how we tackle these disparities. This is one of the reasons. Given that a lot of powers to intervene at local level are in the form of local authority grants and local public health officials, it may well sometimes come across as fragmented. This is why the Office for Health Improvement and Disparities is very important to take an national overview of areas of disparity and target them.
Refugees: Status
(3 years ago)
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Lord Dubs
To ask Her Majesty’s Government what recent discussions they have had with the United Nations High Commissioner for Refugees in relation to the Convention Relating to the Status of Refugees, and in particular regarding the principle that asylum seekers must apply for refugee status in the first safe country they have reached.
The Minister of State, Home Office (Baroness Williams of Trafford) (Con)
My Lords, the Nationality and Borders Bill, which is part of our new plan for immigration, seeks to build a fair but firm asylum and legal migration system. Those in need of protection should claim in the first safe country they reach. That is the fastest route to safety. The plan complies with our international obligations and we continue to engage with our partners, including the UNHCR, with whom we have a positive and constructive relationship, as we take the plan forward.
Lord Dubs (Lab)
Is the Minister not saying, in effect, that the Government know better than the UNHCR, the UNHCR being the guardian of the 1951 convention? By what right and by what argument are the Government saying that the UNHCR is wrong on this?
Baroness Williams of Trafford (Con)
My Lords, the first safe country principle is widely recognised internationally; for example, it is the fundamental feature of the common European asylum system. Without enforcement of this principle, we simply encourage criminal smugglers to continue to exploit very vulnerable migrants.
Lord Lilley (Con)
Does my noble friend agree that it is time to renegotiate the original Geneva convention on refugees, which was passed when there was a finite problem of displaced persons in Europe and was subsequently extended worldwide before anyone realised that cheap mass transport and communications would make mass movement of economic refugees between continents possible? The scale of the mass movement is indicated by the US’s offer of 50,000 visas every year to a handful of countries on a lottery basis. It receives applications from 13% of the population of Albania, 9% of the population of Armenia, 8% of the population of Ghana and 15% of the population of Liberia. It is time to recognise that the scale of this problem exceeds anything the original treaty was designed to deal with.
Baroness Williams of Trafford (Con)
I certainly concur with my noble friend that not only are migration patterns changing because of the nature of access to travel but that the figures all over the world are massively increasing from what they were. Renegotiation of the 1951 convention is a bit above my pay grade, but I certainly say that this country has always tried to give refuge to those most in need. To that end, we have been extremely generous.
Lord Alton of Liverpool (CB)
My Lords, given that geography alone means that the UK will rarely be the first safe country an asylum seeker has reached, could we not at least designate especially vulnerable groups of people, such as Yazidis subject to genocide, or Afghan women judges, 60 of whom have been given temporary refuge in Europe, to have their asylum applications processed at our embassies and, in addition, ensure that Afghans with UK evacuation letters, including five women judges who are now in Greece and have been waiting for weeks, are now transferred to the United Kingdom without any further delays?
Baroness Williams of Trafford (Con)
I will work backwards through that question. The noble Lord mentioned Afghan judges. They are among those who have been granted leave to come to this country The UK Government—the MoD, the Home Office and the Foreign Office—are doing all they can to enable people who need our refuge to come here. The noble Lord also mentioned some very vulnerable groups, including the Yazidis. Of course, our immigration system is based on need. I will certainly take back his point about the embassies. He and I have discussed this in the past.
Baroness Ritchie of Downpatrick (Lab)
My Lords, for the avoidance of doubt, can the Minister indicate when the Government next hope to meet the UNHCR? As my noble friend Lord Dubs has said, it is the guardian of refugees worldwide.
Baroness Williams of Trafford (Con)
I can certainly take back the point the noble Baroness makes. As I said to the noble Lord, Lord Dubs, we meet with the UNHCR on a regular basis. It is a very important body and a well-regarded partner, with which we work closely.
Lord Roberts of Llandudno (LD)
My Lords, may I remind Members here of the arid desert there will be as climate change takes its effect? In the coming years, there will be a massive movement of peoples who will be looking for somewhere to sustain them. What conversations are taking place to try to obtain some agreement on a humane response to this crisis? Which countries are we discussing this with? Which organisations are we talking to? It is high time that we looked to the future to try somehow to alleviate the worst of any crisis.
Baroness Williams of Trafford (Con)
The noble Lord makes a very pertinent point about the effects of migration during the last few years. Different climate events in different countries are accelerating this process and the conflicts to which it might lead. Since 2015, we have resettled more than 25,000 men, women and children who have sought refuge from persecution across the world. Some 36,000 visas have been issued under the refugee family reunion rules. We aim to resettle 5,000 people a year under the Afghan citizens resettlement scheme and a further 5,000 a year under the global resettlement scheme. We have been extremely generous. All of us must play our part.
Lord Rosser (Lab)
My Lords, we support the view of my noble friend Lord Dubs on this issue. However, if it is the Government’s view that asylum seekers must apply for refugee status in the first safe country they reach, is it therefore also their view that asylum seekers reaching—or trying to reach—this country via France, cannot be sent back there without French agreement, if it was not the first safe country they had reached or through which they had travelled?
Baroness Williams of Trafford (Con)
My Lords, we are making the point that France is a safe country.
Baroness Butler-Sloss (CB)
My Lords, what are the Government doing about unaccompanied minors who want to join their families in this country?
Baroness Williams of Trafford (Con)
My Lords, the noble and learned Baroness makes a really important point about unaccompanied minors. I pay tribute to the work of the noble Lord, Lord Dubs, in this area. We will always try to give unaccompanied asylum-seeking children refuge where it is needed. There will always be scope for an exemption from temporary protection status if it could not have been reasonably expected that they would come directly or claim without delay. All UASCs will be exempt from any no recourse to public funds requirement.
Baroness Smith of Newnham (LD)
My Lords, the noble Lord, Lord Lilley, was perhaps at risk of confusing the issue somewhat. He appeared to be talking about economic migration, which is not the same as asylum seeking. Does the Minister agree that the two are different, and does she agree that it is the right thing to do to offer asylum to all those who reach our shores claiming asylum if they have a genuine case?
Baroness Williams of Trafford (Con)
I do not think my noble friend was confused at all. I think he was saying, if I interpret him correctly, that the nature of migration has hugely changed over the last 70 years, and is it time to look again at our obligations under the 1951 refugee convention?
Lord Singh of Wimbledon (CB)
My Lords, the involvement of external powers, whatever their motives, dramatically increases the number of refugees, and this can place an unfair burden on neighbouring safe but poorer countries. Does the Minister agree that external powers involved, directly or through the sale of arms, have a moral obligation to accept refugees that they have helped to create?
Baroness Williams of Trafford (Con)
I think the noble Lord asks a question that probably requires more than the 20 seconds that I have left to answer it. He makes a pertinent point about conflict and the cause of migration and refugee issues. Certainly, some of the countries that he talks about might not be suitable to send refugees to.
The Lord Speaker (Lord McFall of Alcluith)
My Lords, the time allowed for this Question has elapsed.
Non-UK Residents: Property Ownership Register
(3 years ago)
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Baroness Donaghy
To ask Her Majesty’s Government what plans they have to establish a compulsory register of United Kingdom property owned by non-UK residents.
The Parliamentary Under-Secretary of State, Department for Business, Energy and Industrial Strategy (Lord Callanan) (Con)
My Lords, in line with our commitment to make the UK a hostile place for illicit finance, the UK remains committed to establishing a new register of beneficial owners of overseas entities that own or buy property in the UK. The register requires primary legislation and the Government will legislate when parliamentary time allows. Her Majesty’s Land Registry does not hold information on the nationality of individuals as property owners and currently has no plans to introduce this.
Baroness Donaghy (Lab)
I thank the Minister for that Answer. We are talking about £170 billion-worth of property. The Government are supposed to support the idea of legislation to deal with what David Cameron called dirty money, and a Home Office and Treasury report last December raised the government assessment of the money-laundering risk for property ownership from medium to high. The report said:
“Corrupt foreign elites continue to be attracted to the UK property market, especially in London, to disguise their corruption proceeds.”
If the Government support legislation, why do they not get on with it?
Lord Callanan (Con)
We do support legislation, as I have told the noble Baroness before in this House. Finding time to legislate in recent years has been challenging. My department has been working on complementary forms for Companies House such that when we implement ROBO, and we will, it will be more effective because of the broader powers that Companies House will have.
Baroness Blower (Lab)
My Lords, a public register of property ownership was promised by the noble Lord’s party in 2016 and consulted upon in 2017. A Bill was promised in 2018, again in the Queen’s Speech in 2019 and at the G7 in 2021. There is still no Bill. Can the Minister please be a little more specific than “when parliamentary time allows”?
Lord Callanan (Con)
I apologise to the noble Baroness, but I cannot. The Government’s legislative agenda is not fixed yet. There are a number of different measures that different departments want to put forward and there has to be a weeding-out process, as all noble Lords who have been involved in government will know.
Lord Wallace of Saltaire (LD)
My Lords, does the Minister not recognise the total contradiction between a commitment to take back control and reassert UK sovereignty and encouraging foreign investment, but to be owned anonymously by powerful and dubious men from authoritarian countries, in substantial chunks of London and the countryside around it?
Lord Callanan (Con)
I realise the Liberal Democrats are obsessed with the EU, but this has nothing to do with it. The two events are totally separate. We could implement ROBO whether or not we were members of the EU. We are intending to implement the register of beneficial ownership when parliamentary time allows.
Lord Hannan of Kingsclere (Con)
My Lords, the pre-eminence of London rests on having light but effective regulation, a dependable common law system and uncorrupt judges, not on a cult or illicit money. Of course, there are other pressures on the legislative timetable, but will my noble friend the Minister at least undertake to try to find space in this Session as part of the anti-corruption measures to which we are committed internationally?
Lord Callanan (Con)
I totally agree with my noble friend. Just last week in the spending review we committed to new investments of £63 million for Companies House reform and £42 million for tackling money laundering and fraud. This is alongside the economic crime anti-money laundering levy which will provide an additional £100 million funding per year from 2023-24. We are committed to cracking down on money laundering and we will implement this legislation when time allows.
Baroness Blake of Leeds (Lab)
My Lords, the UK published a draft Order in Council under the Sanctions and Anti-Money Laundering Act 2018 that required British Overseas Territories to establish a public register of companies’ beneficial owners by 2021. Can the Minister confirm reports that this will not now be required until 2023? If so, can he explain why it has been postponed?
Lord Callanan (Con)
The UK’s overseas territories and Crown dependencies have all now committed to introduce publicly accessible registers of who ultimately owns companies registered there by 2023, as the noble Baroness has said. They regularly share information with UK law enforcement and tax authorities.
Baroness Barker (LD)
My Lords, the committee looking at the draft Bill recommended that there be improved means for members of the public, journalists and NGOs who have information about beneficial owners who are not properly registered to flag up concerns with the Land Registry and Companies House. What, if any progress, has been made towards that?
Lord Callanan (Con)
When the register is implemented there will be considerable incentives to comply and penalties for not complying. I am sure that Companies House and the Land Registry would be very interested to hear any reports of anybody not abiding by the regulations.
Lord Mann (Non-Afl)
Unless I am mishearing, the Minister and his department are chomping at the bit to bring forward this legislation, so what advice could he give to those of us who would like to help him persuade the Government Whips that this is an important priority?
Lord Callanan (Con)
The noble Lord puts his finger on the button as always. We are very keen to introduce it, and any influence he can bring to bear on the Public Bill Committee, or indeed the Prime Minister, would be greatly appreciated.
Lord Balfe (Con)
My Lords, many hard-working UK voters are fed up with the way in which the property market—particularly in London—is used to apparently hide ill-gotten gains, and with the seeming complicity of the UK Government. Do the Government accept that one way of ending this is to add some weight to getting this legislation into this House as soon as possible?
Lord Callanan (Con)
As my noble friend will know, I agree with him. We want to legislate on this as quickly as possible. The UK is one of the world’s largest and most open economies, and the UK and London are among the world’s most attractive destinations for legitimate businesses and overseas investors. That is a good thing, but it exposes the UK to the risk of money laundering. That is why we are being about tackling illicit financial flows through the Economic Crime Plan and why we will proceed with this legislation.
Lord Rooker (Lab)
Has the Minister heard of Roberto Saviano? He is the Italian expert on the Mafia who has to live constantly under police protection. His professional view is that the UK is the most corrupt country in the world, mainly due to the so-called neutral city enablers servicing rich criminals. The Minister’s answers go some way to explaining why that view prevails.
Lord Callanan (Con)
I am sorry that the noble Lord takes that view. However, we had some interesting revelations in the recent Pandora papers. There is a certain lady who is the wife of one of the ex-leaders of the Labour Party who chose to buy property through a British Virgin Islands registered company—perfectly legally, but she managed to save a substantial amount of tax. So, if I were a Labour Peer, I would be careful where I went with this.
Lord Flight (Con)
I assume that the noble Baroness, Lady Donaghy, is referring to the registration of overseas entities Bill, which establishes a framework for the register of companies to establish a register of overseas entities. All overseas entities that own or wish to acquire property in the UK will be required to have registered before they can register their title or dispose of the property. This places a practical bar against dealing with UK property to any company not having complied with the registration requirements. Existing owners have 18 months in which to register.
Lord Callanan (Con)
My noble friend is correct about our intention for the registration of overseas entities, and an 18-month transitional regime is planned once the register has been implemented. This will give overseas entities time to either dispose of their holdings or identify and register their beneficial owners. The regime will disincentivise anyone seeking to do business with a non-compliant overseas entity.
Lord Sikka (Lab)
My Lords, Companies House does not make any checks on the authenticity of company directors. Does the Minister know how many persons of significant control have used fake names and addresses, and therefore control property in the UK under the same fake identities? If not, why not?
Lord Callanan (Con)
Of course there are always some people who present fake identities, and Companies House will take action where that is identified. We are reforming Companies House, as the noble Lord knows. I mentioned the amount of money that we are putting into that. We want to try to tighten up the regime and make sure that people are registered legitimately. London and the UK are open to doing business and we take pride in being an open and accessible economy, but there is no place for illicit money flows, and we will take action to prevent it.
Alcohol Duties
(3 years ago)
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Lord Brooke of Alverthorpe
To ask Her Majesty’s Government what assessment they have made of the impact that the changes to alcohol duties announced in the Budget statement on 27 October will have on alcohol-related (1) hospital admissions, and (2) deaths.
The Parliamentary Under-Secretary of State, Department of Health and Social Care (Lord Kamall) (Con)
The reform of alcohol duties will simplify duty rules and tax drinks in proportion to their alcohol content. This should create a financial incentive for manufacturers to reformulate their products, therefore giving consumers a greater choice of lower-strength products. This would support individuals to drink within the Chief Medical Officer’s guidelines. The Office for Health Improvement and Disparities plans to make an assessment of the potential impact of these proposals on consumption and associated harms.
Lord Brooke of Alverthorpe (Lab)
My Lords, I regret that the Minister has not actually answered the Question. All the evidence indicates that if the price of alcohol goes up, people drink less and are healthier. If the price of alcohol goes down or the duty goes down, people in fact drink more. More people go into hospital and more people die. Instead of relying on the industry to decide whether manufacturers will reformulate their drinks, as the Minister just indicated, the Government should take a firm lead and put the health of the nation first. They should not be handing out a £3 billion cut in this way. Will the Minister please go back to the Chancellor and tell him that we need a policy that will lead to better health, not worse?
Lord Kamall (Con)
Many public health officials, for many years, have criticised the system of alcohol taxation, particularly the EU’s system of taxation. Now that we have left the EU, we are free to set our own law in this area. Given the criticisms from the World Health Organization and many other think tanks, we can now set taxation based on the volume of alcohol.
Baroness Hayter of Kentish Town (Lab)
My Lords, I welcome that the duty will be related to the strength of alcohol. However, the Budget included a dozen references to wine, just as the Government were boasting that the biggest benefit of the New Zealand trade deal was cheaper New Zealand wine. This duty freeze, as we have heard, will cost £3 billion to the Exchequer over five years—money that could have been used for treatment services and for public health, since we know that deaths and illnesses will go up. It seems to me that the Government have an alcohol problem. They are scared to increase prices for the sake of all our health and are uncaring about the problems that this measure brings in its wake. Can this Health Minister go to his colleagues in the Treasury and try to educate them as to what they should be doing?
Lord Kamall (Con)
The noble Baroness is being a little unfair in her comments. These reforms were based on the advice of many public health officials, including the World Health Organization as well as a number of think tanks, which said that it was about time that we linked taxation to the volume of alcohol in drinks in the hope that we can encourage and incentivise manufacturers to lower alcohol content and to produce more low-alcohol and alcohol-free drinks. I am not sure whether noble Lords would accept such reformulated drinks, but it is important that we push this from a public health perspective.
Baroness Randerson (LD)
My Lords, real-term cuts in the price of alcohol send the wrong message also about drink-driving. We have one of the highest drink-drive limits in the world, set more than 50 years ago and well out of date. Around 2,000 people are killed and seriously injured on the roads every year, and that figure rose by 8% in 2019 alone. The British attitudes survey reveals that 77% of people support lower limits. Do the Government intend to catch up with the rest of the world and adopt this popular policy, saving lives on the road?
Lord Kamall (Con)
Noble Lords will know that alcohol-related deaths are not due purely to sclerosis of the liver and other direct impacts; we also know that alcohol plays a large role in, for example, drownings, 30% of which have some alcohol connection. We know that a number of murders and cases of domestic abuse are also connected to alcohol. The most important thing is to try to incentivise drinkers to drink low-alcohol or no-alcohol products in the hope that we can do that. This is why we have reformed the taxation system in a way that is linked to the volume of alcohol in drinks.
Lord Smith of Hindhead (Con)
My Lords, I refer to my interests as set out in the register. While the duty freeze and 5% cut on duty on draft beer was welcomed by the industry, in reality prices that consumers will experience are likely only to increase due to production and distribution costs. I do not think that measures in the Budget will lead to overconsumption since, in the highly unlikely event of the duty cut being passed on, a person would need to drink 183 pints before they got a free one. Does my noble friend the Minister agree that we should encourage people to go out, have a couple a modest drinks if they want to, support our fantastic hospitality industry and enjoy themselves?
Lord Kamall (Con)
The noble Lord makes an important point in looking at the various factors that have to be balanced up. Clearly, we want to encourage consumers or drinkers to move towards low-alcohol and no-alcohol products, while balancing that against the wider economic climate and the hard two years that the hospitality sector has faced, which is why we announced the freeze to some alcohol duties. On encouraging people to go out and drink alcohol, I am afraid I am the wrong person, because I am teetotal.
Baroness Finlay of Llandaff (CB)
My Lords, I declare my interest, having chaired the Commission on Alcohol Harm. Our report published last year cited the data, then 10 years old, which showed that the cost from alcohol to the NHS was £3.5 billion a year, while the Home Office’s own estimates were that the cost to society was £21 billion a year. In the decade since then, the number of alcohol-related hospital admissions has risen by 19%, and there has been a rise, too, in alcohol-related hospital admissions and deaths, which increased by 20% last year alone. Given the rising cost to the NHS, what contingency plans have the Government made should this drop in duty fail to decrease alcohol harms, and what other methods do the Government plan to use to decrease alcohol consumption?
Lord Kamall (Con)
The Office for Health Improvement and Disparities, as well as many other bodies, will continue constantly to review the impact of this change in taxation. In addition, the Government remain committed to supporting those who are most vulnerable and most at risk from alcohol misuse. Alcohol is a cross-cutting issue affecting several government departments. A strong programme of work is under way to address alcohol-related harms and their impact on life chances, including an ambitious programme to establish specialist alcohol care teams in hospitals and support for children of alcohol-dependent parents. There are a number of other alcohol harm reduction strategies that are too numerous to list now, but I am happy to write to the noble Baroness.
Baroness Merron (Lab)
My Lords, alcohol-misuse experts have warned that the Government’s reforms of alcohol taxes are undermined by their failure to address the issue that alcohol from high-strength beverages may remain cheaper, in many cases, because the price per unit of alcohol is lower in many of those high-strength beverages. What plans do the Government have to introduce minimum alcohol pricing? Does the Minister share my concern that the Chancellor, in the Budget, appeared to be investing more in Prosecco than in the public health budgets that we need to see to cover the cost to society of alcohol harm.
Lord Kamall (Con)
The World Health Organization and a number of other organisations have criticised the current system of taxation of alcohol, and urged the Government—and the EU when we were a member of it—to move toward taxation based upon the volume of alcohol. To answer the noble Baroness’s specific question, there are no current plans to implement minimum unit pricing in England, but the Government continue to monitor the impact of minimum unit pricing as evidence emerges from Scotland and Wales. It has been in place in Scotland for more than three years, and the Scottish Parliament will not consider its extension until April 2024. In all my conversations with various public health experts, one of the things that they make quite clear is that this has to be evidence-led, and we want to look at evidence from elsewhere.
Baroness McIntosh of Pickering (Con)
I declare my interest as chairman of the PASS Proof of Age Standards Board. I also chaired the Select Committee on the Licensing Act 2003. Does the Minister agree with the Committee when it said:
“It is in our view unarguable that an increase in the price of alcohol will decrease consumption.”?
Does he further agree that, by increasing the taxation on stronger alcohol as the Budget aims to do, that will have a better chance of reducing alcohol intake and dependency than the minimum unit pricing that we have seen in Scotland?
Lord Kamall (Con)
I thank my noble friend for that very important point. This is why the new system of taxation has been introduced. It will more directly align the volume of alcohol with the taxation on it. That will feed through to higher prices for drinks with higher alcohol content.
Smoking Cessation: Prescription of E-cigarettes
(3 years ago)
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Baroness Thornton (Lab)
My Lords, the MHRA in 2017 said that it was going to ensure that,
“the route to medicinal regulation for e-cigarette products is fit for purpose, so that a range of safe and effective products can potentially be made available for NHS prescription.”
Over four years later, it has now just updated the guidance; there are still no products for prescription. The new guidance only says that the MHRA will support companies to get medicinal licences, and it could take another two years before we see people able to access e-cigarettes for prescription. That seems a very long time indeed. I hope that the DHSC will chase up the MHRA and facilitate this to happen more quickly than it is at the moment.
My second point concerns other tobacco products, including Snus and heat-not-burn tobacco products. Will the Minister confirm, for the avoidance of doubt, that the MHRA’s guidance refers only to e-cigarettes, and the Government are not considering other options involving tobacco products?
The Parliamentary Under-Secretary of State, Department of Health and Social Care (Lord Kamall) (Con)
I thank the noble Baroness for her questions. It is really important that we look at how we can reduce smoking in this country. The point about the e-cigarettes and the MHRA’s wish to licence products is that it wants to move smokers on to a pathway away from smoking cigarettes and on to e-cigarettes since they are seen as a safer option. It does not want to encourage people to smoke e-cigarettes, but to move them off cigarettes and on to e-cigarettes. At the moment, the MHRA does not feel comfortable licencing any of the existing products, and therefore wants to have conversations with manufacturers and others to see if there can be a product produced that it feels comfortable licencing so that it can be available for prescription. Moreover, by having that MHRA stamp of approval, it may well encourage others to buy it over the counter.
Baroness Walmsley (LD)
My Lords, it is three years since the change of rules that allowed medicinal cannabis to be available on NHS prescription, but there have been only three NHS prescriptions in that time. How confident is the Minister that smokers will be able to benefit from regulatory change when children with intractable epilepsy cannot? Do not both of these situations require further training for doctors to ensure their confidence to prescribe?
Lord Kamall (Con)
The hope is that we will be able to move current cigarette smokers to e-cigarettes, but I am afraid that I will have to write to the noble Baroness on her specific question.
Earl Cathcart (Con)
My Lords, I used to smoke over 50 cigarettes a day but, in 2014, I transferred to using e-cigarettes. I have not had a puff of tobacco since, and I find that my health and breathing are so much better now. This is surely a very good thing; it should be encouraged.
Lord Kamall (Con)
I thank my noble friend. He is indeed looking incredibly healthy and is a living advert for the path away from cigarettes to e-cigarettes. Noble Lords across the House are keen for this to happen. The MHRA has advised that it is 18 to 20 months away from approving a medicinal licence for e-cigarettes in the UK. However, I take the points of many noble Lords; I will push the MHRA, and I hope that they will too.
Lord Patel (CB)
My Lords, it is correct that only MHRA-approved e-cigarettes should be available on prescription. The reason for that is that many e-cigarettes currently sold on the market contain dangerous products; there have been reports of deaths occurring due to lung complications. So is it not right that the sale of e-cigarettes not approved by the MHRA should be banned?
Lord Kamall (Con)
E-cigarettes are a pathway out of cigarettes; these e-cigarette products exist now, even before we have one approved via the MHRA. It is important not to ban existing products because we need to make sure that people move along that pathway. The hope is that, once there is an MHRA-licensed product, people will be encouraged to buy it, both on prescription and over the counter.
Lord Hunt of Kings Heath (Lab)
My Lords, the Minister has mentioned the MHRA a considerable number of times, which is a great tribute to the work that it is doing. Can he tell us why it is facing budget cuts at a time when we need our independent regulator in this country to be doing all it can to regulate and encourage new innovative products, including pharmaceutical products, to the market?
Lord Kamall (Con)
As the noble Lord will know, some of the issues are related to leaving the EU, but it is interesting to learn from conversations with the MHRA that it is hugely excited about its ability to be more global in its outlook and to be a centre of expertise that many people across the world will want to learn from. With respect to international engagement, as well as making sure that it updates its guidelines to take account of medical technology there will be ongoing reorganisation and changes, and it hopes to be fit for purpose for many years to come.
Lord Naseby (Con)
My Lords, is the Minister aware that, as I understand it, there is a problem with the MHRA budget? This is important work. Furthermore, is it not a fact that the industry itself is supporting this work?
Lord Kamall (Con)
It is very important that we get the MHRA to approve these e-cigarette products. The MHRA is seen as a jewel, to which many experts from other countries look. One of my roles is international health diplomacy, and many people I talk to from other countries are very impressed with the work of both NICE and the MHRA. We can use that in our international health diplomacy.
Lord Mackenzie of Framwellgate (Non-Afl)
My Lords, does the noble Lord believe that encouraging and giving the green light to e-cigarettes may well send a signal to youngsters who might think it is cool to start inhaling foreign gases into lungs which are not designed for them?
Lord Kamall (Con)
The noble Lord raises a very important concern about e-cigarettes. From conversations I have had with the MHRA and others, I understand that, at the moment, there is no evidence in the UK that young non-smokers are adopting or taking up smoking e-cigarettes. Most users of e-cigarettes use them as a pathway away from cigarettes.
Lord Vaux of Harrowden (CB)
My Lords, to follow up on that point, e-cigarettes are sold using flavours such as dragon berry, bubblegum, gummy bears and unicorn juice, in colourful packaging with cartoon characters—all clearly aimed at children. If we are considering licensing e-cigarettes, could this also be an opportunity to tighten up the packaging and branding rules to ensure that that stops?
Lord Kamall (Con)
There are a number of factors that will be looked at when licensing e-cigarettes, including incentives to customers—flavours, et cetera—to take up these products. I will have a discussion with the MHRA to ask that question in more detail, if the noble Lord would like to write to me.
Lord Rennard (LD)
My Lords, e-cigarettes are undoubtedly part of the way forward to achieving a smoke-free Britain. But why has it taken so long to get to this point and to begin fulfilling what was in the 2017 tobacco control plan and to adopt the recommendations of the 2018 Select Committee, chaired by Sir Norman Lamb, which highlighted the significant benefits of having medicinally licensed e-cigarettes which could be prescribed? How do we know that licensing will now proceed in a timely manner?
Lord Kamall (Con)
The MHRA has been quite clear that it wants to be in a position to license a product as soon as possible—it says 18 to 24 months. Noble Lords may well want to push the MHRA on that, and that is part of your Lordships’ role. But it is important that we make sure that, when we license a product, both consumers and public health experts can have faith in it.
Lord Cormack (Con)
My Lords, I understand from my noble friend Lord Patel that some of the devices and products to which he referred do not bear health warnings on their packaging. Why is that so? Surely that at least should be on all of them.
Lord Kamall (Con)
I thank my noble friend for pointing that out, and I will investigate. Not being a user of e-cigarettes or cigarettes, or of any sort of narcotics or alcohol, I am afraid that I am not really an expert myself. I will look into that and write to my noble friend.
Baroness Finlay of Llandaff (CB)
Can the Minister confirm that the nicotine levels will be looked at, given that the nicotine level in some e-cigarette products is very high and that nicotine is the addictive substance both in cigarettes and in the continued use of e-cigarettes? The commercial incentive for tobacco producers to produce flavoured, palatable and highly addictive products should not be pandered to.
Lord Kamall (Con)
The noble Baroness raises an important point about nicotine itself being a very addictive substance. I am sure that the MHRA will be looking at the guidance, but if the noble Baroness would like to write to me, I can confirm that.
Health Protection (Coronavirus, Restrictions) (Self-Isolation) (England) (Amendment) (No. 3) Regulations 2021
(3 years ago)
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Lord Kamall
That the Regulations laid before the House on 22 September be approved.
Relevant document: 15th Report from the Secondary Legislation Scrutiny Committee. Considered in Grand Committee on 26 October.
Critical Benchmarks (References and Administrators’ Liability) Bill [HL]
Tuesday 2nd November 2021
(3 years ago)
Lords ChamberRead Full debate Critical Benchmarks (References and Administrators’ Liability) Act 2021 View all Critical Benchmarks (References and Administrators’ Liability) Act 2021 Debates Read Hansard Text Read Debate Ministerial Extracts
The Minister of State, Cabinet Office and the Treasury (Lord Agnew of Oulton) (Con)
My Lords, I would like to make a few short remarks. The Bill builds on the Financial Services Act 2021, which gave the FCA powers to oversee the orderly wind-down of a critical benchmark, such as Libor. In particular, it allows the FCA to ensure the continued publication of a benchmark, using a synthetic methodology. The Bill plays a vital role in supporting a smooth and orderly wind-down of the Libor benchmark, by providing legal certainty for contracts that rely on Libor beyond the end of this year, and a narrow immunity for the administrator of Libor, where it is publishing synthetic Libor as required by the FCA.
It has been a privilege to have engaged in these discussions. I thank noble Lords for their rigorous examination of this highly technical Bill, both in formal debate and in the various technical briefing sessions that I have held. I am confident that the Bill has been thoroughly examined by the House. All those involved have brought significant experience and insight to this process.
I am particularly grateful to my noble friends Lady Noakes and Lord Blackwell for raising this important issue during the passage of the Financial Services Act earlier this year. Once again I put on record my thanks for their work on this matter.
In our discussions, we have covered the issue of the FCA’s methodology for the synthetic rate. We have considered the importance of legal certainty, which the Bill delivers, and we have highlighted the work that the FCA is doing on the wider Libor transition. This includes its work to ensure that synthetic methodology is fair and aligned with the global consensus.
We have talked about the work that the FCA has been doing alongside the Bank of England and the industry-led risk-free rate working group. This will support and encourage a voluntary transition away from Libor prior to the end of this year wherever possible—an effort which has been successful in significantly reducing the number of contracts that will need to rely on the synthetic rate both here in the UK and globally. Throughout, your Lordships have had a particular interest in protecting consumers and maintaining the integrity of UK financial markets.
As we have discussed, the UK has one of the most open, innovative and dynamic financial services sectors in the world. As the home of Libor, we have a unique and crucial role to play in minimising global financial stability risks and disruption to financial systems from the wind-down of Libor. The Bill forms part of a significant programme of work by the Government and the regulators to support the global market-led transition away from Libor. It supports the integrity of financial markets and consumer protection. In doing so, it underlines our reputation as a custodian of a global financial centre.
I conclude these brief remarks by thanking the Economic Secretary to the Treasury, his officials, and the clerks in the Public Bill Office, who have worked so diligently to support the passage of this Bill. I also thank FCA officials for the technical briefings that they have provided. I beg to move.
Baroness Noakes (Con)
My Lords, as I was so kindly namechecked by my noble friend, I will just say that I thank the Government very much for responding to the real concerns expressed by the financial services industry in respect of tough legacy Libor contracts. The Bill does not deliver everything that the industry wanted but it delivers a great deal, and I am very grateful to the Government.
Social Security (Up-rating of Benefits) Bill
Tuesday 2nd November 2021
(3 years ago)
Lords ChamberRead Full debate Social Security (Up-rating of Benefits) Act 2021 View all Social Security (Up-rating of Benefits) Act 2021 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 54-R-I(Rev) Revised marshalled list for Report - (1 Nov 2021)
17:30 - Division on Amendment 3 - Ayes: 220 / Noes: 178 - Amendment 3 agreed.
Baroness Altmann
Member’s explanatory statement
This amendment is intended to limit the application of the Bill so that it does not apply to the uprating of the pension credit standard minimum guarantee, thereby ensuring the poorest pensioners are still protected against rising earnings. It is linked with the new Clause in the name of Baroness Altmann.
Baroness Altmann (Con)
My Lords, I rise to speak to Amendments 1 and 7 in my name and those of cross-party Peers—the noble Baronesses, Lady Wheatcroft and Lady Janke, and the noble Lord, Lord Hain—to whom I am extremely grateful for their support, and also to support Amendment 5. I declare my interest as set out in the register, and I am honoured to speak in this debate in your Lordships’ House. This Bill will affect every pensioner in the UK, but in speaking to Amendments 1 and 7, I am focusing on what sometimes seems like an underclass in British society: the poorest pensioners. Amendment 1 seeks to exclude from this Bill the application of its measures to the pension credit minimum income guarantee. This is what the poorest pensioners in our land rely upon. It is a means-tested benefit, and it is not a king’s ransom. We are talking about £177.10 a week.
Pensioner poverty was already rising even before the pandemic. It is a myth that pensioners are all well off. The charity Independent Age, and figures from Age UK, show that pensioner poverty remains a significant social issue, too often skirted over by commentators. Already, more than half of single pensioners, mostly women, live in fuel poverty, while 13% of older households live in extreme fuel poverty. Those numbers will undoubtedly grow if the Bill is passed without amendment, especially as rising energy costs are hitting so many with massive increases in their bills. Official figures show that one-quarter of pensioners were in poverty in 2002, when pension credit was introduced. That proportion fell significantly thereafter, reaching a low of around 13%, but it has been rising in recent years to 16% in 2018 and 18% in 2019, even before the impact of the pandemic and the measures we are debating today.
Pension credit has never been covered by the triple lock. It has always had only earnings uprating in legislation. The Bill removes that as well. Pension credit has helped alleviate pensioner poverty, but the benefits are being unwound. Partly, this is because the take-up of pension credit has been stuck at a very low level. Forty percent of those entitled are generally too proud to claim, and try to make ends meet without having to go through a means-tested claim. But the Bill sweeps away vital earnings protection, replacing it with just a 3.1% figure, which reflects the consumer prices index that was reported for September this year, and which is actually an artificially low figure. The Budget confirmed that inflation is rising, with 4%-plus expected and the Chancellor warning of higher figures. The OBR suggests that inflation is likely to rise to 4.4% and could be significantly higher.
Amendment 1 will exclude the pension credit from the Bill and retain its earnings protection. I am not planning to divide the House on this amendment, but I may return to this issue on Amendment 7 if Amendments 3 and 4 are not accepted. Amendment 7 permits the Government to adjust the measure of earnings used to uprate the pension credit to allow for what I certainly agree, and I think most commentators would as well, are the exceptional factors that distorted the number released for average weekly earnings, which was the traditional figure used of 8.1%.
This measure is the biggest spending reduction or cost saving in the Budget. The Treasury will save £5.4 billion in 2022-23, £5.8 billion the year after, £6.1 billion the year after that, and so on. This is money that is being taken away from pensioners. Too often, Chancellors have eyed state pensions or pensioners as a tempting target to raid when they need to find large sums of money. This is about large numbers of people, but for each person, we are not talking about large sums.
However, this should not be about money. It is about people and the social welfare system. It is about trust in politicians and in our social welfare system as a whole. It is about millions of people who are often out of sight but struggling in 21st century Britain on the lowest state pension in the developed world. The pension credit level, which is lower than the new state pension, has not yet recovered to the level that the basic state pension sat at in 1979, when the earnings link was first removed. That started the whittling away of pensioner incomes and the rise in pensioner poverty.
What does it say about our country if the elderly are used to help fund Budget reductions in alcohol duty and bank taxation? Amendment 1 is about important protections for the poorest pensioners. I will return with more details on a wider level with Amendment 3, which deals with the breaking of a manifesto commitment. I also urge noble Lords to listen to this debate and to think very carefully about what this House is for. The other place dealt with these issues in two and a half hours, with very little debate. It was presented as a fait accompli. In truth, the other place was slightly misled. On 20 September, when this Bill was placed before them, MPs were given this assurance:
“This Bill will ensure that a temporary statistical anomaly in wages does not unfairly track across into pensions, while also preserving the spending power of pensioners and protecting them from increases in the cost of living.”—[Official Report, Commons, 20/9/21; col. 62.]
Perhaps that was almost believable in September, but since then, with the sharp rises in the costs of essentials and the statements in the Budget which confirm that 3.1% CPI is an exceptionally low figure, it is no longer an appropriate basis on which to vote this through.
There is also an argument being used that the Government cannot use the earnings figure of around 8% because it is too high and is distorted by the pandemic. Apparently, there is no robustly agreed methodology to adjust that figure for the pandemic. It strains credulity that, with the legions of statisticians and actuaries at the Government’s disposal, it is not possible to produce a reliable, adjusted figure that accounts for the pandemic. However, if that is indeed the case, the OBR and the ONS helpfully have produced their own statistics which could perhaps be used as the basis of such a re-estimation of average earnings.
Amendment 7 explicitly permits the Government to use an adjusted figure for 2022-23. It is put in place to meet the objections that apparently there was concern that the Government could be legally challenged should they use an adjusted figure. This measure in Amendment 7 would ensure that unless a figure was used that is entirely irrational, such a judicial review is unlikely to proceed.
I hope that we will have a good debate on these measures and can send them back to the other place for reconsideration on the basis of much fuller and more accurate information. I beg to move.
Baroness Sherlock (Lab)
My Lords, I will speak to the other amendment in this group: Amendment 5, in my name and that of the noble Baronesses, Lady Janke, Lady Altmann and Lady Boycott. But first, I want to comment on Amendments 1 and 7 and thank the noble Baroness, Lady Altmann, for her introduction and explanation of them.
Noble Lords will remember that in Committee, the noble Baroness, Lady Altmann, tabled an amendment which simply excluded pension credit entirely from the effects of the Bill. The Minister opposed this on lots of grounds, but probably the main one was that the earnings growth had been distorted as a result of the pandemic, and therefore it would not be an appropriate way to increase pension credit. The noble Baroness has come back with Amendments 1 and 7, which would require the Government to uprate pension credit with reference to earnings but adjusted for the effects of the pandemic.
As the noble Baroness mentioned, I am quite sure the Minister will get up and say that the Government do not believe a figure can be found which will be robust enough to use as a measure of underlying earnings growth. We will come back to the substantial discussion on that point in the third group, but, in short, Labour accepts that there is a distortion in the earnings data, but we think the Government should go back and try harder to find an alternative way to deal with this without ditching the earnings link and the manifesto commitment to the triple lock—and, indeed, losing the trust of the nation while they do so. Our view is that that should be done for the state pension, which we will come back to in the third group.
In the meantime, we need the Government to face into the growing problem of pensioner poverty and to develop a longer-term strategy for tackling it. Amendment 5 would force the Government to start by assessing the impact of the Bill on pensioner poverty within six months of the Bill passing, followed by a Statement to both Houses of Parliament.
We know we have a problem. I will not go over again all the evidence from around the House that we rehearsed in Committee, but let me give a quick summary. Pensioner poverty was doing really well: it fell markedly between 1997, when it was 29% for the UK, and 2010, when 14% of pensioners in Great Britain were living in poverty. That was due primarily to the introduction of pension credit. From 2012, pensioner poverty started to rise again. Last year, 18% of our pensioners were living in poverty—that is more than 2 million pensioners now in poverty, with over a million in severe poverty.
There is a real gender pensions gap. The number of women pensioners living in poverty has increased dramatically at a time when the total number of women pensioners has fallen as a result of the state pension age going up. That is really significant. We also have a particular problem in some regions, especially London, and there is a worry about a growing problem in the north. Older people from black and Asian communities are around twice as likely to be living in poverty as white pensioners.
The context for the Bill is a cost of living crisis, with inflation rising and energy bills skyrocketing. I raised this in Committee, and the Minister responded to my concerns by saying that energy prices were built into CPI. But the prices reference point for uprating is the September CPI rate, and the energy cap was raised on 1 October. It has been raised by £139 for those paying by direct debit and a huge £153 for those on prepayment plans. Yet again, there is huge premium on being poor: the poor pay far more per person for energy than the rich.
Given the worries about pensioner poverty from around the House, and the fact that the state pension is the largest single source of income for most pensioners, it would seem obvious that Ministers should carry out an impact assessment so that they would know what effect suspending the triple lock would have on pensioner poverty. But, astonishingly, there has been no impact assessment for the Bill. When I moved a similar amendment in Committee, the Minister said it was not possible to do what we asked because it would involve modelling. She said:
“Assumptions would need to be made about how each individual pensioner’s income would change in future under each scenario.”—[Official Report, 26/10/21; col. 750.]
I accept that assumptions would have to be made—that is what happens when you model things. Is it really impossible to model the impact of this policy? If so, how does anyone model the impact of any policy on poverty? When I was a spad in the Treasury—which I accept was back when dinosaurs roamed the land—it had a TAXBEN model which it used to assess the impact of any changes in taxes and benefits. Also, in those days, the DWP had some of the best statisticians anywhere in Whitehall. I have no reason to believe that that is not the case now, although I know the department has shrunk. So, I recognise that assumptions would need to be made, but in modelling they just have to be reasonable and stated. I would even be happy with an assessment which ignored behavioural responses, if that would make it easier.
There is a common theme across all the amendments today and there are concerns from all Benches about low pensioner incomes. Our simple amendment reflects that concern. If the Minister is not convinced by all the evidence mentioned here and in Committee, I urge her simply to accept my amendment and do the work to establish the facts. If the Government want to break their manifesto commitment, at least they should be committed to gathering and publishing information about the impact of that decision. I look forward to the Minister’s reply.
Lord Rooker (Lab)
My Lords, I had not intended to speak. I can see why there is a logic against the noble Baroness’s amendment in some ways, although if she puts the amendment to a vote, I will support her. There was a time—I am going back some years now—when the Government were committed to a link. The consequence of that was that I had to put forward a 75p pension increase. I remember saying to Alistair Darling, my boss, “Couldn’t we make a quid? It’ll be a lot easier to explain a quid than 75p.”. He said, “No, no. The formula’s there. The Treasury said this is what we do: we stick to the formula.” So we stuck to the formula. I was always able to defend it in a way because the supplementary pension, although people did not always apply for it, was worth three quid rather than 75p, but we know about the uptake. The Treasury factor in that people do not take up benefits.
However, here it looks as though pensioners are being treated unfairly. I do not think they are because, as I shall say tomorrow in the debate on the Budget, there are so many hidden tax increases, particularly for pensioners with a very small occupational pension who are at the moment outside the tax net but who will be sucked into it because of the freezing of the personal allowance over a five-year period. Substantial numbers will be paying tax without anybody announcing a tax increase, and that is unfair. I hope that some time, when he flies in, the noble Lord, Lord Lawson, will come to support me on the basis that he supported me and Audrey Wise in 1977 to make the system workable.
However, the noble Baroness has a point. I do not intend to speak on the other amendments because there is a point where logic says you cannot take account of the pandemic. I understand the long run. For a couple of years, I did the job that the Minister is doing and I understand that Ministers are presented with a 30-year run of the consequences of any change in the figures. That has got to be the case when you are talking about pensions.
If we had the second or third-best pension in Europe, we would not be having this argument, would we? However we have one of the poorest basic pension rates of any modern economic country, but we are, so called, one of the richest. Sometimes we have to say, “Hang on a minute: let’s take a stand,” and I think today is an opportunity to do that. I know the logic is against this, but when one looks at the figures, it is an opportunity to make a change. The Government could be forced to have a look at some of the long-run consequences of having such poor pensions, where they factor in low uptake of pension credit. One of the documents produced for the Budget on changes in household incomes mentions that they factor in that people will not claim benefits to which they are entitled. That is not very fair. Today is an opportunity for the little people to hit back.
Baroness Wheatcroft (CB)
My Lords, I have put my name to Amendments 1 and 7 in this group, as well as to Amendments 3 and 4 which will be debated later. I am delighted to follow the noble Lord, Lord Rooker. He spoke sanely about what these amendments would do and why they should do it.
The noble Baroness, Lady Altmann, made the case very clearly. There are 2 million pensioners living in poverty and 1 million in extreme poverty. Noble Lords need to know that this Bill would put more people in this position. We should not be passing it unamended.
I find the arguments against our amendments pitifully thin—I am sorry, but I do. I remind the House that, in Committee, the Minister, who wants to do the right thing, said:
“The Government’s triple lock manifesto commitment remains in place”.—[Official Report, 26/10/21; col. 738.]
I know that that is a reference to the fact that we are told that the suspension will be for only one year, but that is not good enough. If you suspend the earnings lock for one year, the cumulative effect goes on, so the commitment is lost.
The commitment was to keep the earnings lock in place because earnings might well be greater than inflation—particularly CPI inflation—and there is no doubt that that will be the case. After all, the Government keep telling us that they want a high-wage economy. But they do not seem to want higher increases for pensioners. We know that, in most cases, these people’s spending is very curtailed. It goes predominantly on fuel and on food. Those are constituents of the CPI, but they are not in the same proportion as they are in pensioners’ spending. Therefore, increases in fuel and food prices hit pensioners harder.
I am still bemused as to how, in Committee, the Minister was able to tell us that,
“we are not currently expecting widespread, significant and sustained increases in consumer food prices in the coming months”.—[Official Report, 26/10/21; col. 740.]
I do not know what she knows, but the supermarkets certainly are. These price rises are already coming through. They are not yet fully reflected in the CPI, but we know that prices in the shops are going up. And the more that wages go up in this new, high-wage economy where we are encouraging drivers of HGVs to demand more money—which the Government say they deserve—the more this will feed through into increased food prices.
We need to make sure that our pensioners can eat. I do not want to be responsible for pensioners going hungry —or even hungrier than they have been in the past—and I do not believe that the Minister does either. It is imperative that we do what should not be beyond the wit of any Government and come up with a number that approximates effectively to where underlying earnings have gone in the last year. I have every confidence that the ONS can do this. Indeed, CPI is not quite as robust as the Minister would have us believe; it is often adjusted after a few months, or even a year, because a lot of numbers have to be adjusted as new information comes through. We could come up with an adjusted earnings figure which would enable the Government to maintain their manifesto commitment, which I am sure it would really like to do. It would enable the rest of us to ensure that pensioners –those on pension credit, as well those on the basic pension—lead a slightly better life. This is all part of the levelling-up agenda.
Baroness Lister of Burtersett (Lab)
My Lords, in speaking briefly in support of Amendment 5, although I also support the other amendments in this group, I will spare noble Lords the full lecture on the use of relative and so-called absolute poverty measures that I gave in Committee. As the Minister completely ignored the point in her response to that group of amendments in Committee, I return to it now. In discussing an assessment of the Bill’s impact on pensioner poverty—which is certainly necessary—we should be clear how we measure poverty.
When mentioning poverty, the Minister constantly uses the so-called “absolute measure”, and no doubt she has been briefed to do so today. I say so-called because it is better described as an anchored measure, anchored to the poverty line in 2010-11 adjusted for inflation, but taking no account of changes in living standards in the intervening period. In doing so, she ignores what has happened using the more commonly used relative measure, which is part of the suite of official measures.
Lord Freud (Con)
I ask your Lordships’ indulgence to make a few observations following events last week, in the context of Amendment 5 on poverty, in the name of the noble Baroness, Lady Sherlock. My noble friend Lady Stroud and I are not pursuing our amendment on universal credit at this time.
I was delighted with the Chancellor's decision to improve work allowances and reduce the universal credit taper to 55%. According to my intelligence, this was very much a last-minute decision. I have always felt that there is a tipping point in terms of encouraging people to work more, and a taper of 55% is much more likely to be near that point than the 65% at which we were forced to start the new welfare system. However, I am much more concerned that the Chancellor did not feel able to improve the standard allowances, which have been eroded by 9% in real terms over the last decade, and which are now too low. There would be no point in an amendment which sought a vote on the standard allowance, since I believe that the Chancellor has done enough to eliminate any risk of rebellion among Conservative Back-Benchers on the issue. I am conscious, also, that Lady Stroud and I have tried the patience of the House by moving an amendment considered inadmissible by the Clerks.
Nevertheless, I sense that a sea change in public attitudes to welfare is now under way. In my account of the traumatic reform of the welfare system Clashing Agendas, I quote Rupert Harrison, the then-Chancellor’s chief of staff, on why the benefit cap was introduced. He told me:
“I know it didn’t make much in the way of savings but when we tested the policy it polled off the charts. We’ve never had such a popular policy.”
That was in 2010. This year, there have been a number of polls showing that most people in the country support extending the universal credit uplift. I do not believe that turn-round in attitudes has been purely because of the perceived meanness of the standard allowance. Universal credit is perceived as a fair and rationale safety net which eliminates the arbitrary nature of the legacy systems.
So, as the Chancellor contemplates the £25 billion of headroom that he is reported to have built into his Budget arithmetic, I urge him to use a small proportion of that figure to alleviate the real hardship being suffered by our very poorest citizens as soon as possible. My three-point recommendation to him is: first, restore the 9% erosion in standard allowances; secondly, tie the standard allowance to average earnings, something that we are debating in the context of pensions right now; and, thirdly, start getting rid of the excrescences such as the two-child policy and the benefit cap.
There is no need for late-night reactive decisions by a UK Chancellor on the shape of our welfare system. One of the clauses that I inserted into the Welfare Reform Act 2012 allows comprehensive trialling by the DWP of all the major elements within universal credit to discover the econometric impact of changes. For instance, the department can discover the exact optimal point of the taper, among many other aspects of the benefit. It may be that the point at which the Treasury makes the most tax and loses the least welfare revenue is a taper of 50%, for example, rather than 55%. The department can test and keep testing as society changes.
I thank my long-time colleague, my noble friend Lady Stroud, for her indefatigable efforts to find a way to help the most vulnerable in our society. Without all her energy and passion, I do not believe we would have achieved the progress that we have.
Baroness Stroud (Con)
My Lords, I shall speak to Amendment 5 in the name of the noble Baroness, Lady Sherlock. I thank and pay tribute to my noble friend Lord Freud, who I believe did a huge service in putting his weight behind the amendments last week.
This amendment speaks to the impact that changes to social security have on those who are in poverty, and it is that poverty impact which I want to focus on here. I want to put on record my thanks to the Minister for all that she did to work with the Chancellor to ensure that as we stand here today the universal credit taper rate is being lowered to 55% and the work allowance increased by £500. Those who are doing everything they can to ensure that they and their families work themselves out of poverty will benefit hugely from this budgetary intervention.
However, it goes without saying that, as my noble friend Lord Freud has just alluded to, there is a group who will not benefit from this change: those on the standard allowance, those who cannot work, those with sicknesses and disabilities. It is to that group that this House must now turn its attention. Testing this House with inadmissible amendments late at night is not the business for today, but we need to keep our focus on this issue.
The challenges that we and many across this House highlighted were the rising costs of inflation and rising fuel bills at the same time as the removal of the £20 uplift. The NICs increase will not impact on that group. A new Social Security (Uprating of Benefits) Bill is coming to the House shortly. It will cover universal credit and focus on the annual uprating of universal credit in line with inflation. We have an opportunity to argue that this should be in line with where inflation will be at the time when it is laid rather than where it was in September, in order to protect these households. There is also a fund of £500 million that has gone to local authorities to cover the colder months of the year. That should be ring-fenced and allocated to those who are on the standard allowance and unable to work or, better still, put through universal credit for that group.
Speaking specifically to the amendment, one of the reasons why the Government are struggling to deliver poverty impact assessments on pensioner poverty or working-age poverty is that they have yet to decide how they are going to define and measure poverty. This matters, and it is one of the key reasons why they have so frequently walked into trouble on issues of poverty. If only the Government realised that poverty measurement can be their friend and guide. It could have guided them through their decision-making during the pandemic and through the challenges of free school meals. I have heard it said that this cannot be done in real time, but with RTI we are so much closer to being able to measure real-time impacts and make informed choices to protect our most vulnerable people.
However, today is a day to say thank you to the Government for their investment in the lives of those who are in work and on low wages, but also to ask them to be watchful for the poverty impacts on those who cannot work—those with disabilities, children and pensioners—and to take action where vulnerability is visible.
Baroness Greengross (CB)
My Lords, I support these amendments as they support the very poorest and most vulnerable people of pension age, who are going to face the same rising costs of living as everyone else. When we come to group 3, I hope to speak in more depth about what I believe should happen with overall pension policy, but for this group, I want to focus on the most vulnerable.
When I headed up Age Concern England, we ran many campaigns calling for an end to pensioner poverty—a problem that sadly still exists today. Part of the problem is the low uptake of pension credit, something that the noble Baroness, Lady Altmann, has worked tirelessly on, building support across the House. These two amendments would ensure that, at a time when we are likely to face rising prices, our most vulnerable pensioners are supported.
Baroness Janke (LD)
My Lords, as many noble Lords have said today, these amendments are about pensioner poverty. I thank the noble Baronesses, Lady Altmann and Lady Sherlock, for tabling them and for presenting so clearly their purpose.
As others have said, we are often told that pensioners are well off and do not need the protection of the triple lock. Certainly, many pensioners with private pensions are well off by previous standards, but because of this we should not forget about the more than 2 million pensioners living in poverty, many of whom are older pensioners with more severe needs and higher heating costs. These people are dependent on the state pension and it is essential that we protect its value if they are not to be put in even more poverty.
I very much welcome what the noble Lord, Lord Freud, and the noble Baroness, Lady Stroud, have said. I thank them for their campaign and courage, and for the ways they have managed to alleviate some of the suffering due to the inadequate safety net that we have heard described. I am sure that we on this side of the House would welcome the reforms that the noble Lord, Lord Freud, talked about, and the focus of the noble Baroness, Lady Stroud, on poverty and in particular those who have not been helped by the Budget. We look forward to working with them on that.
As many other noble Lords have said, inflation is going to be higher than 3%, if we are to believe all the forecasts. We know that pensioners, and older pensioners in particular, spend more time at home and feel the cold more, and that energy bills are a higher share of their household incomes. In the light of the soaring costs of energy alone, there is good reason to believe that the proposed increase here is not only inadequate but a real-terms cut.
I will speak to Amendment 5, on the impact assessment, which is another that I have signed; the noble Baroness, Lady Sherlock, talked about it, as have others. In our late-night debate on Tuesday, we heard about the failure of the Government to really assess the impact of some of their measures and, in particular, about their use of regulations—from the noble Lord, Lord Hodgson, the chair of the Secondary Legislation Scrutiny Committee. We also heard about the lack of scrutiny of fundamental policy changes which seriously affect people’s lives. I very much hope that the Government will take on board the need for these impact assessments and have positive evidence before we inflict swingeing cuts and policies on large numbers of the population who are, in general, the most vulnerable.
To conclude, I will say a few words about women pensioners, referred to in Amendment 5. Many of us are aware of the injustices suffered by women, many of whom have not had the opportunity to amass a private pension because they have been unpaid carers for many years. Many of these women are dependent on the state pension and are among the poorest pensioners. I hope that the Government will take account of this and act on this injustice, by making sure that we have proper impact assessments and that evidence is brought to us when we are making these decisions.
The Parliamentary Under-Secretary of State, Foreign, Commonwealth and Development Office and Department for Work and Pensions (Baroness Stedman-Scott) (Con)
My Lords, I thank the noble Baronesses, Lady Altmann, Lady Janke and Lady Wheatcroft, and the noble Lord, Lord Hain, for their amendments. These amendments aim to ensure that the standard minimum guarantee is uprated by earnings rather than by CPI inflation. In order to address the Government’s concern that this would entail an increase of 8.3%, they would instead require the Secretary of State to review the rate by reference to a rate of earnings growth, adjusted to take account of the distorting impacts of the pandemic.
As I said in Committee, the Government recognise that the standard minimum guarantee in pension credit is the safety net for pensioners on the lowest incomes. I therefore also understand the concern that the incomes of pensioners in this group should continue to be supported. As has been said, the standard minimum guarantee has always been linked to earnings, originally as a non-legislative commitment and, since 2008, by law. However, it is still the Government’s view that there is no alternative earnings measure upon which uprating can be based that is sufficiently robust. If there were, there would be no reason not to apply it to all the earnings-linked pensions and benefits. There is no adjusted measure of earnings growth that has the status of an official statistic. Instead, the ONS has published a range of possible estimates, which it advises should be treated with caution.
The noble Baroness, Lady Altmann, has suggested that the Government could adopt 5% as a reliable measure of earnings growth. This is the increase in average earnings in 2021 compared to 2020, as forecast by the OBR in its economic and fiscal report. There are two issues with this measure. First, the ONS has, to date, published data only up to August 2021, so the 5% is partially based on forecast earnings for the period September to December; and forecast data, as opposed to historical data, is inherently uncertain and liable to change. Secondly, if we were to take this approach, we would also be changing the reference period for the review from May to July, year-on-year, to the calendar year. This would mean that, for next year’s review, if we reverted to using earnings growth for the year to the period May to July 2022, as we would already have accounted for May to December 2021 in the April 2022 uprating, we would be double counting. To avoid this would mean using a calendar-year measure, partially based on a forecast beyond the current review.
However, the measures that the Government took last year, together with those in this Bill, will ensure that the safety net for pensioners on the lowest incomes more than keeps pace with inflation. Over the two years of the pandemic, it will have increased by more than the increase in prices. It was increased by 1.9% in April 2021, when the CPI for the relevant uprating review period was 0.5%, and it will be increased by 3.1% from April 2022, in line with the relevant rate of the CPI this year. We believe that this strikes a fair balance over the two years between the interests of pensioners and those of younger taxpayers.
On the relationship between the full rate of the new state pension and the single rate of the standard minimum guarantee, which the noble Baroness, Lady Drake, raised in Committee, the Government believe it is right that the contributory state pension should deliver a foundation income above the level of the basic means test. This is not only so that future pensioners know that they will see the full benefit from any additional retirement saving but because, unlike pension credit, there is not the problem of take-up, which, despite the efforts of Governments of all persuasions, has persisted over time and is unlikely ever to match that of the state pension.
In Committee, the noble Baroness, Lady Drake, also made the point that, at other times, the Government have applied cash increases to the standard minimum guarantee which exceeded the statutory minimum earnings. This Bill gives the Secretary of State the same flexibility to go beyond the minimum—in this case, CPI. The “overindexation” of the standard minimum guarantee on earlier occasions was done solely to ensure that those on pension credit did not have the triple lock increase on their state pension clawed back in the means test. That is not the position we are in this year. As we have made clear, this Bill is for one tax year only. After that, the standard minimum guarantee in pension credit will continue to increase at least in line with earnings from 2023-24.
Several noble Lords referred to pension credit take-up, I have written on this to outline the action we are taking with partners and stakeholders to address this very important issue. We are particularly concerned to ensure that people are aware of the guarantee credit, which is the safety net in the pension system and our most crucial lever for bearing down on poverty levels among today’s pensioners.
Of course, pension credit is a gateway to other valuable entitlements for pensioners on low incomes, such as discounts on energy bills, cold weather payments and free TV licences for those over 75. We can make much of these advantages by encouraging people to claim what they are entitled to.
On Amendment 5, I thank the noble Baronesses, Lady Sherlock and Lady Janke, for raising these important issues. I share their concerns about pensioner poverty and about older women in poverty. I assure the House that we are committed to ensuring economic security at every stage of people’s lives, including when they reach retirement.
However, I have to inform the noble Baronesses that their amendment, as it stands, is inoperable. As the Bill takes effect only from April 2022, the data required for a review six months after the Bill’s passing will not be available. In the absence of actual data, the only way to provide an assessment would be to forecast and model how many pensioners might have their income lifted above the various low-income levels under an earnings uprating versus an inflation uprating. Assumptions would need to be made about how an individual pensioner’s income would change in the future under each scenario. This would require making assumptions about, for example, how each pensioner might change their behaviour around other sources of income, such as drawdown of income from investments or a change in earnings when faced with different amounts of state pension, which is virtually impossible to do with accuracy. These projected incomes would then need to be compared to projections of the various income thresholds, which are themselves extremely uncertain. Therefore, there is a very high risk that any analysis seeking to forecast the number of pensioners moving above or below these projected poverty thresholds would be misleading due to uncertainty about the economy and pensioners’ behavioural responses to various levels of state pension.
The department collects and publishes a wide range of data on income and poverty, which are released annually in the households below average income report series. Reports with estimates of pensioner poverty covering 2021-22 and 2022-23 will be published in 2023 and 2024 respectively.
I can, however, announce today that we will publish the impact assessment for the Bill. This sets out information such as key characteristics of state pension and pension credit recipients and impact on protected groups. The Government have been convinced by the arguments made by noble Lords that this document should be made available. I congratulate the noble Baronesses and other noble Peers on their successful persistence in raising the issue. We are now in a position to provide the document in a version that incorporates the measures outlined in last week’s Budget. I will write to noble Peers after this debate with a copy of the document, which we will also place in the Libraries of both Houses.
My noble friend Lady Altmann raised the issue of CPI figures. September CPI was 3.1%; the OBR is forecasting CPI to rise and peak at 4.4% in quarter 2 next year. However, from April to August this year, CPI averaged 2.3%, so the September figure of 3.1% is halfway between the forecast peak and what CPI actually was for the first five months of this financial year.
The noble Baroness, Lady Wheatcroft, spoke about food, fuel and housing costs. Although we are expecting inflation to rise—and clearly a substantial part of this rise will be driven by the temporary rises in fuel costs —it is important to note the facts about what has actually happened to inflation over the last 12 months. Average CPI over the last 12 months has been 1.3%, but food prices actually fell by 0.6% and household fuels increased by only 0.1%. The biggest rises were in transport, at 3.9%, and communication, at 2.4%.
The noble Baroness, Lady Lister, challenged why we use absolute poverty measures. This Government prefers to look at absolute poverty over relative poverty, as relative poverty can provide counterintuitive results. Relative poverty is likely to fall during recessions, due to falling median incomes. Under this measure, poverty can decrease even if people are getting poorer. For example, some think tanks have projected that relative poverty will have fallen sharply in 2020-21 during the pandemic. The absolute poverty line is fixed in real terms, so will only ever worsen if people get poorer and only ever improve if people are getting richer.
My noble friends Lord Freud and Lady Stroud talked about the changes to universal credit, which are more than welcome. I thank my noble friends for their interventions on universal credit and I am sure that their points—and others—will have been heard clearly. In view of my remarks today, I ask the noble Baroness to withdraw her amendment.
Baroness Altmann (Con)
My Lords, I thank my noble friend for her response and all noble Lords who have spoken in this important debate. I pay tribute to the noble Baroness, Lady Sherlock, for the way in which she introduced her amendment, and I support Amendment 5 in her name and those of other colleagues.
I would like to put on record that I did not mention any figure in my remarks. That was deliberate: it is not up to me to tell the Government what figure to use to uprate. Is my noble friend saying that the Government are unable to produce an adjusted earnings measure that is rational? A judicial review would have to be based on a figure being irrational. I am sure that my noble friend is deeply uncomfortable about this debate, and I have huge sympathy for her: I know that she cares about the poorest pensioners, as she cares about so many others in our society. But I am really disappointed in the Government’s response and the rationale that they are using.
I will withdraw Amendment 1, but I might return on Amendment 7 in my name. In the meantime, I beg leave to withdraw this amendment and, again, thank my noble friend for her response and all other noble Lords for their supportive remarks.
Lord Davies of Brixton
Member’s explanatory statement
This amendment would remove the provision substituting “prices” for “earnings” and retain the earnings link for the 2022-23 year by stipulating the Government will assume earnings have risen by 8.1% for the purposes of uprating. This reflects the annual increase in the index of average weekly earnings following the practice adopted by the Secretary of State in recent years.
Lord Davies of Brixton (Lab)
My Lords, I should first mention a non-pecuniary interest as an unpaid adviser to the National Pensioners Convention. I do not want to detain the House for too long on this amendment, not because it is not important but because I want it to start a debate rather than reach a firm conclusion.
This Bill is about the increase in state pension benefits next April—more specifically, the increases in the flat-rate basic and new state pensions. But I think such a debate makes sense only in the context of what our long-term objective is for these flat-rate elements of the state system.
The Deputy Speaker (Lord McNicol of West Kilbride) (Lab)
My Lords, if Amendment 2 is agreed to, Amendment 3 will not be called due to pre-emption.
Lord Sikka (Lab)
My Lords, I support my noble friend Lord Davies of Brixton and his detailed remedy for future problems, and the call for an 8.1% increase in the state pension. DWP has not given us the median numbers, but the pre-2016 average or mean state pension is £155.08 while the post-2016 figure is £164. 23. It seems that the older you are, the lower the pension you actually get.
Discrimination against senior citizens is built into the system itself, which is wrong: 8.1% of that tiny amount is very small. A correspondent who contacted me from New Zealand said, “In New Zealand Super, there is a phrase that at 65, you get 65—at 65 you retire and you get 65% of average wage.” That is at least two and a half times more as a fraction of average wage than it is in the UK, where it is impossible for anyone really to live on it.
We have heard from many Members of your Lordships’ House that the state pension is the only or main source of income for many, many people. I do not know whether Ministers speak to ordinary people to hear their experiences of trying to manage poverty. I will read out just one message that I have received from a senior person: “I am struggling to pay my rent, buy food and pay for gas, electricity and water. TV is my only source of company and the government is now taking that away too. I can’t afford to buy a TV licence. It would be better for me to go to prison. At least I will be warm and I will also be fed.”
Earlier, the Minister rattled off a whole range of pension benefits that people can collect. Will she tell the House how a 75 year-old with no TV for company, with one heating bar in a room, with no access to the internet and with her local library shut, gets access to those benefits and asks for help? I should be very grateful if she can describe to the House how that person can make ends meet on this meagre state pension.
We have institutionalised poverty in this country and the voice of the poor is not being heard, so I fully support my noble friend’s call for a pensions commission. However, people cannot wait for that. We need an 8.1% increase now.
Baroness Sherlock (Lab)
My Lords, my apologies: I was too slow to leap up. I thank my noble friend Lord Davies for introducing his Motion and thank all noble Lords who have spoken. As I said in Committee, I think we all share an underlying concern, which is about the living conditions of pensioners—particularly poorer pensioners—in our society. I will not rehearse our debates on pensioner poverty, but I am grateful to my noble friend Lord Davies for opening up the question of a strategic approach to the state pension.
The assumption had been that the state pension, old or new, was the basis, or the foundation, of developing retirement income and that any private provision would be on top. Given that we have rising levels of pensioner poverty now, and looking across the landscape of current saving rates on auto-enrolment, are the Government confident that this strategy is working and that people will have adequate income in retirement on the basis of the figures that she is seeing? I should be interested to hear her response to that.
My noble friend Lord Sikka again mentioned the question of people who are struggling. We are very anxious about the cost of living facing pensioners in the difficult months ahead, which is why I very much hope that the Government are tackling pensioner poverty in the ways that we have discussed.
Taking my noble friend Lord Davies at his word, he did not in fact raise this with the intention of pressing the Government for 8.1% now but to raise the broader questions. I hope the Minister will take him on that basis and give him a response that will help to answer the kind of questions he has raised.
Baroness Altmann (Con)
I apologise for being even slower to rise. I will not detain the House long. I would just like to echo and support the calls for a wider review of state pensioner support. That is long overdue. Perhaps this debate will produce a willingness at the department to look again at all the elements of the way we support pensioners in this country.
Baroness Stedman-Scott (Con)
My Lords, I thank the noble Lord, Lord Davies, for his amendment. I understand his passion for retaining the link between state pension uprating and earnings growth. This passion applies even in the exceptional circumstances generated by the Covid-19 pandemic, when earnings declined by 1% one year then rebounded by 8.3% the next. By contrast, the Government increased the state pension by 2.5% last year and intend to do so by 3.1% this year. This is in view of protecting the value of the state pension despite a decline in earnings last year, protecting its purchasing power next year and having due regard to the current fiscal situation and the effects on younger taxpayers. The Bill, therefore, replaces the link with earnings for one year only with a requirement to increase these rates at least in line with the increase in prices or by 2.5%, whichever is higher.
It has been agreed by many in this House and the other place that 8.3% is an anomalous figure distorted by the slump of wages at the start of the Covid-19 pandemic and by the effects of millions of people moving off furlough back into work. The noble Lord’s suggestion of 8.1% would generate a cost of more than £4.25 billion in the year April 2022-23, relative to increasing the state pension in line with the provisions in the Bill. The Government do not believe it would be fair to younger taxpayers to increase these rates by such a high percentage on top of the 2.5% increase last year, when earnings slumped by 1% and inflation stood at 0.5%. After this year, the legislation will revert to the existing requirement to uprate at least by earnings growth, as per the Government’s triple lock manifesto commitment, and it still remains in place.
The noble Lord, Lord Sikka, raised the issue of how pensioners can access their entitlements. Noble Lords will see with the letter that has gone out today that we are committed to making sure that pensioners can access their full entitlement under pension credit. The difficulty seems to be persuading them to make a claim. We offer various ways of accruing benefits, including by telephone and post. Where necessary, the department can offer home visits. We also work with partners and stakeholders such as Age UK to help people claim, and we will continue to do so. I therefore ask the noble Lord, Lord Davies, to withdraw his amendment.
Lord Davies of Brixton (Lab)
I do not think the Minister really responded to my request to initiate a debate about the structure of pension provision. But I am not going away. I will raise this issue at every opportunity, and I hope that at some stage we will be able to have a productive discussion about what to me is the key issue. The technical details of the uprating basis are important but the structure is crucial. With the leave of the House I will withdraw my amendment, but the issue is not withdrawn.
Baroness Altmann
Member’s explanatory statement
This amendment is intended to maintain the link between pension uprating and earnings but requires the Secretary of State to make adjustments that are considered appropriate for distortions in the traditional ONS Average Weekly Earnings figures, which were caused by the exceptional pandemic effects and Government measures on the labour market.
Baroness Altmann (Con)
My Lords, I rise to move Amendment 3 and give notice that I intend to divide the House on this amendment. I am enormously grateful for the support of colleagues across the House, including the noble Baronesses, Lady Wheatcroft and Lady Janke, and the noble Lord, Lord Hain. I am, of course, grateful to my noble friend and the officials who have engaged with us over the past weeks on this Bill. However, I still believe that these amendments are necessary. Amendment 3 would retain the earnings link uprating for the state pension triple lock rather than removing it as the Bill proposes.
I appeal to noble Lords on these Benches, as well as across the House, to recognise that these amendments are seeking to protect a solemn manifesto commitment made at the 2019 general election. Amendment 3 would preserve the important social security principle and the triple-lock promise of protection for the basic and new state pensions against rises in average earnings. Amendment 4 is consequential on Amendment 3. It was accepted by the Whips yesterday but, if the Minister does not agree, I ask her to confirm that and explain why she might not accept it when she responds. It would permit the Secretary of State to adjust the traditional average weekly earnings statistics produced by the Office for National Statistics, which have been used for uprating in past years, for the effect of the pandemic, which has upwardly biased the figures.
This Bill was perhaps not necessary. In the Social Security Administration Act 1992, which we are being asked to revise through the Bill, Section 150A (8) explicitly allows the earnings statistics to be adjusted. The legislation states that when reviewing how to uprate the state pension each year:
“the Secretary of State shall estimate the general level of earnings in such manner as he thinks fit.”
So this is not a question of having to use the 8.3% earnings statistic.
When Members of the other place voted on this Bill to abandon the manifesto pledge to 12 million citizens, they did so on three bases which I believe are flawed. First, they were led to believe that no alternative was available to using the 8.3% figure but, as I have just demonstrated, the Act would permit that in any case. However, to be helpful, we have laid Amendment 4, which explicitly states that, for the year 2022-23, should the Government believe that the earnings figures are distorted, they may adjust for the effect of the pandemic.
The second basis was that the other place was told that the 3.1% figure would still protect against rises in the cost of living. Indeed, when summing up, the Minister said that the so-called double lock of CPI or 2.5%
“will ensure that pensioners’ spending power is preserved and that they are protected from the higher cost of living”.—[Official Report, Commons, 2/9/21; col. 86.]
This also does not stand up to scrutiny. Since that debate, the inflation outlook has significantly deteriorated, but on further examination it is clear that September’s 3.1% CPI figure was downwardly biased by the effects of the pandemic. For example, there was a sharp fall in hotel and restaurant costs, as well as in household services, which hardly form a major part of most pensioners’ budgets. In his Budget speech, the Chancellor said that inflation in September was 3.1% but is likely to rise further. The OBR said:
“We expect CPI inflation to reach 4.4 per cent next year”
warned that it could peak at close to 5% and added that
“it could hit the highest rate seen in the UK for three decades.”
That is around 7.5%. Last month, gas and electricity bills rose by 12%. Food prices are rising, and the OBR warns of a further rise in the energy price cap next April. Yes, this is for one year only, but what a year to choose to do this, while older people are facing a cost-of-living crisis and the protection that they were relying on is being removed.
The third basis was that not doing this would cost £5 billion per year and that earnings fell last year, but pensioners received a 2.5% rise, so they will have money taken from them next year as some kind of payback. Using an adjusted figure would still save several billion pounds relative to the £5 billion cost. But after seeing alcohol and fuel duty cut in the Budget and the bank surcharge allowance raised, and adding up the amount of Exchequer savings that those measures entail, half the cost of not honouring the triple lock will cover the costs of just those three measures. I appeal to noble Lords across the House: is this really the country that we believe that we should be living in? Is that the priority for public spending?
This is also a perfect example of our role. If we are scrutinising legislation that has come over to our House and which we believe that it is flawed, that it was perhaps passed through on a false premise, or if circumstances require us to send it back for reconsideration, is that not precisely what we should be doing? Twelve million citizens depended on that commitment. We have a chance to ask the other place to reconsider, perhaps in the light of updated information. I hope that noble Lords across the House can support this.
Baroness Lister of Burtersett (Lab)
My Lords, as no one else is getting up, I will. I support Amendments 3 and 4 and congratulate the noble Baroness, Lady Altmann, on her tenacity in pressing this issue.
I have made it clear at each stage of the Bill that, while questioning the rationale for the triple lock, I strongly support the double lock that links pensions to earnings or prices as crucial to maintaining or hopefully even improving pensioners’ living standards. If under the triple lock it is possible to raise pensions by the arbitrary figure of 2.5% in some years, I do not understand why what is proposed in the amendments is deemed to be not sufficiently robust by the Government. I have yet to hear a convincing response to the very strong case made by the noble Baroness, Lady Altmann, nor have I received any letter from the Minister today. I have just checked my phone, and nothing has come through.
If, despite assurances to the contrary, and when an alternative that did not use the 8% figure was clearly available, there was a jettisoning of any earnings link, it is not surprising that this has given rise to fears that the link could be scrapped at some future point, just as it was in 1980. As has already been pointed out, the case for maintaining some form of earnings link, in line with the amendment, is all the stronger given the anticipated increase in inflation. Many people on low incomes—pensioners and others—face a bleak winter, especially if inflation rises as high as 5%, as predicted by the Bank of England’s chief economist recently—and that is before taking account of the differential impact of inflation on those on low incomes, for whom fuel and food represent a disproportionate proportion of their budget, as noted already. They will struggle during the winter months without any additional help with fuel, as called for by National Energy Action, and when they finally get their uprating next April, it will not be enough to compensate. While it is very welcome that the Government have finally agreed to produce an impact assessment of the Bill, it is a shame that we have not got it to inform our debate today.
Echoing what I said in the first group of amendments, I hope that, despite what she said earlier, when responding to these amendments, the Minister will not once again trot out the statistics based on the so-called absolute measure of poverty, when she knows full well that pensioner poverty, on the relative measure, is on the rise over a longish time period. Rather than avoid the issue of pensioner poverty, as it is experienced relative to the rest of society, the Government should be working to prevent a further increase. This amendment provides them with a means of doing so.
Baroness Ritchie of Downpatrick (Lab)
My Lords, I would first like to apologise to your Lordships’ House for being unable to speak on the Bill at Second Reading and in Committee due to direct participation in Select Committee work. I am very pleased to follow my noble friend Lady Lister and to congratulate the noble Baroness, Lady Altmann, on bringing forward these cross-party amendments.
Although we in Northern Ireland make our own social security legislation, in all instances it replicates legislation here because the money comes from here. I look across the Chamber at the noble Lord, Lord Dodds; he and I were former Ministers in the Northern Ireland Executive with responsibility for pensions and all social security matters. We may have had the flexibility to bring in slight amendments, but we had to adhere strictly to the principles and policies because of the issue of parity.
I am pleased to support these amendments because, like my noble friend Lady Lister, I believe that pensioner poverty is deepening. In Northern Ireland, I see it day in, day out; people—particularly pensioners, many of whom have paid in over their lifetime’s work through national insurance contributions and tax—now find themselves reliant on the use of food banks. To say the least, the pandemic has worsened their situation; it has made mental illnesses more acute and people are unwell, and they also have less money for important items such as foodstuffs, which they require to survive.
I support these amendments because they are important for protecting pensioners, including the poorest, in line with an earnings figure that is adjusted for pandemic distortions. Protecting women and those who are the poorest in our society should be a mandatory obligation on all of us. There is a duty of responsibility to reject the proposal to remove the triple lock pension system. I say to the Minister and the Government Front Bench that this decision will impact most on those women who find themselves in the greatest level of poverty, who have already been subject to their entitlement to a pension dropping from the age of 60 to the age of probably 66 or 67, as per the Pensions Act 1995 of this Parliament.
I am therefore very happy to support these important amendments. There is a duty of integrity to protect all parties’ manifesto commitments and to amend the uprating Bill to ensure that all pensioners—people who have provided for all of us—are duly protected in the best financial way.
Baroness Wheatcroft (CB)
My Lords, I put my name to these two amendments for all the reasons that have just been outlined by the noble Baroness, Lady Altmann, and others who have spoken. It seems absolutely the right thing to do, on behalf of 12 million pensioners, to ask the other place to think again, after it spent just two and a half hours considering how to penalise 12 million people in this country.
It is only right that the link to earnings which was part of the manifesto promises should be preserved. In 1979, the Government of Margaret Thatcher abandoned that link. It was restored again in 2011, but the effects live on and, today, pensions are still below their relationship to earnings in 1979. The argument that this is a one-off does not hold water.
I will not repeat the argument that I used in the first group of amendments, save to say that this is not the time when we should make our pensioners poorer; when we can afford, apparently, to make bankers richer, and enable them to drink more champagne as they fly on short-haul flights in the UK, we really need to think again about whether pensioners should be made poorer. Make no mistake about it: the way inflation is headed, pensioners will be poorer.
The Minister talked about the CPI, but she was looking backwards. It is no good telling pensioners what prices have been; when we are talking about the money they will get in the future, the conversation needs to relate to where prices are going. Prices are going up much faster than the rate by which we are talking about raising pensioner income. For those reasons, it is absolutely right that this House should ask the other place to think again.
Baroness Greengross (CB)
My Lords, I support the amendment in the name of the noble Baroness, Lady Altmann. I share with her the many years that we have been working on these issues, and I am anxious that we get the balance right on pension policy.
Amendment 3, which would restore the link between pension uprating and earnings, is essential. This link was removed back in 1980. It resulted in many years of pension rates failing to increase at the same rate as average earnings. At that time, I was at Age Concern England, where we ran campaigns calling for an end to pensioner poverty and for the link with wage movement to be restored. Sadly, when this link was finally restored, in 2011, it was done as part of the triple lock, whereby pensions would increase by average earnings increases, inflation or 2.5%, whichever of the three was the higher. For the last decade, wage movement has been stagnant, and the rate of inflation also quite low. At a time when wages were not increasing, we called on workers to pay for the triple lock, creating, in my view, intergenerational unfairness.
At Second Reading, I spoke about the Intergenerational Fairness Forum report, which made a number of recommendations, including that the triple lock be replaced with a double lock, whereby pensions increase at the rate of average earnings or inflation, whichever is the greater. I refer to my interests as stated in the register, and in particular to my role as president of the Pensions Policy Institute. In 2019, this organisation released a report entitled Generation veXed, which found that people born between 1966 and 1980, who entered the workforce before automatic enrolment and who have worked during a challenging economic climate, have poorer levels of retirement savings when compared with the generation that went before them. This Generation X cohort have been asked to fund the current triple lock, while their ability to save for their own retirement has been, sadly, rather poor.
Retirement policy requires a balance and should not change with each electoral cycle. The situation we find ourselves in today, with the Covid-19 pandemic, is that the Government expect significant wage movement. Of course, this is due not only to the pandemic; it is due also to rising prices caused by Brexit, which will put pressure on employers to increase wages.
Amendment 3 would ensure that the link between pensions and earnings was retained, but it would allow the Secretary of State to make adjustments in situations like the one we face this year. I support the amendment as a sensible solution to the situation we are facing at the present time, but I reiterate my belief that, in future, we should abandon the triple lock and specifically the 2.5% uplift, and instead have a double lock based on earnings and inflation. If in future there is concern that earnings are again not increasing, rather than implement a 2.5% increase for pensions the Government should instead look at their economic and employment policies to ensure that earnings and pensions are both increasing at a decent rate.
Lord Davies of Brixton (Lab)
My Lords, I support the amendments in the name of the noble Baroness, Lady Altmann. As I made clear earlier, I am in favour of a somewhat greater increase, but I am glad to have whatever is available. I want to make two additional points.
First, there is a lack of trust in the Government. The one way in which they could assuage that lack of trust is by accepting the noble Baroness’s amendment. They really need to explain to us what the downside is of accepting the amendment. One can understand that they do not want to do it, but they need to tell us the disadvantages of adopting the approach.
My second point is a sort of response to the noble Baroness, Lady Greengross. Characterising this as between generations is a category mistake. It is between people on low incomes and people on high incomes; it is between people without much money and people with wealth. That is the redistribution required. To characterise it in terms of generations is simply wrong.
Baroness Janke (LD)
My Lords, I again thank the noble Baroness, Lady Altmann, for all her work on this issue and the comprehensive briefing that she produced—it must have taken her a very long time, but it was extremely interesting. The issue of the uplift is cogently challenged by her presentation. I know that support for the triple lock has been from all parties in this House, but we are told that it must be suspended for another year in view of the anomalous rise in average weekly earnings, as presented by the Secretary of State in the other place. As the noble Baroness said, there was little scrutiny there. Not only that, but since the Bill went through the other place, lots of developments have occurred, such as a massive increase in energy prices, pressures on supply chains and inflation predictions, which together seem a strong reason for reconsideration of the decision taken. Having signed the amendment, I too will support it today and hope that it succeeds for that reason.
Baroness Sherlock (Lab)
My Lords, I thank the noble Baroness, Lady Altmann, for explaining her amendments, and all noble Lords who have spoken. I welcome my noble friend Lady Ritchie to the debate and thank her for sharing her perspective on Northern Ireland with us and the position of women. That was very helpful.
We had a good discussion at earlier stages of the Bill about the way the Government have gone about finding an alternative to the triple lock which will deal in some way with the impact of the pandemic on earnings data. As the noble Baroness, Lady Janke, has just indicated, I do not think many of us are very happy with where the Government have landed; I think that is safe to say. I will not rehearse all the arguments from Committee, but I am going to summarise them because noble Lords have made some very important points about poverty. There is an additional dimension to this amendment about the question of principle.
The Government came to power on the back of a manifesto commitment to the triple lock. Labour also supported the triple lock at the last election. Therefore, for all of us, the starting point is that the triple lock should apply. We on these Benches accept that the earnings growth data have been distorted by the effects of the pandemic directly, and the effects of the furlough scheme and changes in hours. But that does not mean the Government should just ditch their manifesto promises.
As my Commons colleague, the shadow Pensions Minister Matt Rodda MP put it at Second Reading:
“At the very least, Ministers should maintain an earnings link, explain their decisions, offer binding commitments to protect the triple lock and protect the incomes of less well-off pensioners.”—[Official Report, Commons, 20/0/21; col 63.]
Well, quite. Both in the Commons and in this House, Labour has made clear its view that the Government should have found a way to deal with this that maintained the earnings link. The importance of the earnings link has been very well explained by the noble Baronesses, Lady Wheatcroft and Lady Greengross, my noble friend Lady Lister, and others.
But how should that be done? In the Commons, Labour suggested using an average rise in earnings over a longer period of time. In this House, I first suggested that to the Minister not in this Bill but in the passage of the Social Security (Up-rating of Benefits) Act 2020. That was the emergency Bill designed to deal with the fact that earnings were negative last year, therefore something had to be done to uprate it. This year in Committee, again I raised the question of why the Government did not smooth the effects over two years, but I got no satisfactory answer and I accept that time has moved on. So where does that leave us?
The Government will say that we cannot pin down precisely the size of the pandemic effect on earnings growth. That is true, but the best we have is the work that the ONS has done. Its modelling stripped out the two main things: the base effects and the compositional effects. If noble Lords will forgive me for “nerding” for a moment, I will explain them.
The base effect is essentially that, a year earlier, people were on furlough and worked fewer hours; when you measure earnings a year later, more of them have gone back to work and are on full hours, so earnings appear to have jumped a lot. That is one effect. The compositional effect is a change in the composition of the workforce—people on lower incomes were more likely to lose their jobs in the pandemic.
The ONS modelled stripping both of those effects out to try to get a figure for real underlying earnings growth across the year to use as a reference point. It came up with a range for that underlying growth. The Government do not like it because they think it is not robust enough to use as a measure for uprating earnings. If they do not like those figures, I suggest that it is up to the Government to go away and find some other way to show that the earnings link is being maintained. Amendment 3 does not specify any figure, and Amendment 4 merely says that the Government should use a figure for earnings chosen
“in the light of reasonable adjustments to take account of the impact of the COVID-19 pandemic based on the Office for National Statistics reported earnings figure.”
In the Commons, my colleague, the shadow Work and Pensions Secretary, Jonny Reynolds, said:
“I do believe there is a need to maintain the value of the state pension and the objectives of the triple lock are ones we should keep to”.—[Official Report, Commons, 20/9/21; col. 84.]
That is the problem with the Government’s approach in a nutshell. Their proposals in the Bill mean stepping away from the fundamental principle that pensions should keep up with earnings. They also breach the manifesto commitment to the triple lock, which, as my noble friend Lord Davies said, is a breach of trust with the electorate—that is the third, coming after the cut in overseas aid and the national insurance rise. There must be a better way than this, and this amendment directs the Government to find it. If they do not like this wording, they can bring back an amendment in lieu.
I realise that the Bill needs to be on the statute book by 26 November, for reasons to do with IT, but that is more than three weeks away. The Government managed to get the whole Bill, in all its stages, through the Commons in a few hours, so I do not believe it is beyond their wit to be able to come up with an alternative and come back to the House in due course.
For us, this is a matter of principle. It is not just about the amounts of money. That is why we are supporting this amendment, specifically on the earnings link for the state pension. The Government should find a way to keep their manifesto promise and maintain the earnings link, and to do so in an appropriate way. I hope the Minister will accept it.
Baroness Stedman-Scott (Con)
My Lords, I thank the noble Baronesses, Lady Altmann, Lady Janke and Lady Wheatcroft, and the noble Lord, Lord Hain, for their amendment. The Government’s reasons for not adopting an altered measure of earnings have not changed. That includes the unacceptable level of risk that would be attached to changing the definition of earnings using the current legislation. I remind your Lordships again that the cost of failing to secure Royal Assent to this Bill by mid-November would be in the range of £4 billion to £5 billion.
I very much understand my noble friend Lady Altmann’s concern about a temporary suspension of the earnings link, for all the reasons she and others have so eloquently outlined. But the fact remains that the figures quoted from the Office for National Statistics have no official status and have been taken from a blog that the ONS published, alongside the usual earnings statistics, first in July this year and then in subsequent months.
The key reason why the Government cannot accept this amendment is that the ONS figures are just not robust enough to form the basis for an uprating decision. This is best demonstrated by two quotes from the ONS:
“The blog explains that there are a number of ways you can try to strip out these base effects, but there is no single method everyone would agree on. We have tried a couple of simple approaches. Neither approach is perfect … Our calculations of an underlying rate are there to help users understand base and compositional effects, but there remains a lot of uncertainty about how best to control for these effects, so they need to be treated with caution.”
Using a range of possible estimates based on a method that cannot be agreed on does not provide a sufficiently robust basis for making critical decisions about billions of pounds-worth of expenditure.
A further point is that the ONS has calculated its range of adjusted underlying earnings growth for a measure of regular pay. The usual measure of earnings used for uprating is total pay, which is regular pay plus bonuses, because this gives a more complete picture of earnings, as bonuses can play an important part in earnings. There are no such problems with CPI inflation, which is a robust national statistic and provides a clear and sound basis for this year’s uprating, with no need for any complex adjustments.
I must remind the House that this Bill is for one year only. From 2023-24, the legislation will revert to the existing requirement to uprate by at least earnings growth, and the Government’s triple lock manifesto commitment remains in place.
Finally, I point out that, if a percentage of 3.1% or more is applied in 2022-23 to the current rate of the basic state pension, this would mean that the full yearly rate will have increased since 2010 by £570 more than if it had been uprated by prices; that is over £2,300 pounds more in cash terms. In addition, people over state pension age are entitled to free winter fuel payments worth £2 billion every year, free eye tests and NHS prescriptions worth around £900 million every year, and free bus passes worth £1 billion every year.
My noble friend Lady Altmann talked about the cost-of-living crisis in relation to energy and inflation. Ofgem’s energy price cap has protected consumers from the recent fluctuations in wholesale gas prices. Millions of low-income households will be supported with the cost of essentials through the £500 million household support fund. This builds on the £140 warm homes discount, which helps 2.2 million low-income households with their energy costs, and the winter fuel payment, which provides £200 toward energy bills for households with a member at or above state pension age and £300 for households with a member at or above 80 years old.
The noble Baroness, Lady Lister, talked about not receiving a letter. I am assured that the letters have gone out. If, by the end of this debate, she still has not received one, I hope she will let me know and I will make sure this is rectified. I say the same to everybody in the House: I am sure that those letters have been sent. In the light of my remarks, I ask the noble Baroness to withdraw her amendment.
Baroness Altmann (Con)
My Lords, I thank my noble friend for her response and all noble Lords who have spoken in this debate. I totally agree with the noble Baroness, Lady Sherlock, that this is a matter of principle. The noble Baroness, Lady Janke, and my noble friend Lady Wheatcroft talked about inflation pressures, which have risen significantly, making 3.1% clearly a real-terms cut in the state pension. The noble Baronesses, Lady Greengross and Lady Lister, talked about the historic precedent of removing the earnings link and the danger of setting that precedent to the rise in pensioner poverty. The noble Lord, Lord Davies, spoke about lack of trust. The noble Baroness, Lady Ritchie, talked about poverty, particularly for older women, and the impact in Northern Ireland.
The response to this is that we would be running an unacceptable level of risk in producing adjusted figures. The Minister is being asked to tell the House that there is no method that everyone could agree on; that no method is perfect, and therefore we will not do anything at all. That is not required for us to send this legislation back or to avert a legal challenge. Indeed, Amendment 4 explicitly tries to deal with that.
The state pension will always be a call on younger taxpayers and, with an aging population, it will always be a tempting target to raid. But the state pension is the basis of the majority of pensioners’ income in retirement, and it is part of the social contract in our welfare state, on which our society is based. It underpins the national insurance system. If we break that contract, even supposedly for just one year, I believe it will be setting a seriously dangerous precedent. Pensioners are not a cash machine for Chancellors to take money from when wanting to fund other projects or tax cuts elsewhere, especially not in the eye of a cost-of-living storm. I apologise to my noble friend, but I do not accept the responses that she has been asked to give us. I therefore want to test the opinion of the House.
The Deputy Speaker (Lord Brougham and Vaux)
Amendment 4 is consequential on Amendment 3.
Amendment 4
Baroness Altmann
Member’s explanatory statement
This amendment is consequential to the amendment at page 1, line 7.
Baroness Sherlock
“(3) Within six months of the passing of this Act, the Secretary of State must publish a review of the impact of this Act on pensioner poverty.(4) The review must examine, but is not limited to, the impact of this Act on women.(5) This review must be laid before both Houses of Parliament, and a Minister of the Crown must arrange to make a statement.”
Baroness Sherlock (Lab)
My Lords, on Amendment 5, I thank the Minister for having listened to our representations on the impact of this Bill and for agreeing to publish an impact assessment. I would have preferred to have had a chance to read it before making a decision. However, given the Minister has moved on this issue, I accept her assurances and will not press my amendment. I should warn her that we shall keep coming back to the matter of pensioner poverty, so I hope that the Government have plans to tackle this in the longer term. For today, I thank her and shall not press my amendment.
Lord Sikka
Lord Sikka (Lab)
My Lords, I first congratulate the noble Baroness, Lady Altmann, on winning her vote, which is a great achievement for so many people out there. I declare my interests in the Members’ register: I am an unpaid adviser to the Tax Justice Network and the people’s panel for the Convention on the Elimination of All Forms of Discrimination against Women.
I thank the noble Baroness, Lady Bennett of Manor Castle, and my noble friend Lord Davies of Brixton for supporting this amendment. I am also grateful for the support of the National Pensioners Convention, Silver Voices, the BackTo60 group and many other civil society organisations, as well as the thousands of pensioners who have written to me to support my amendment.
The amendment in the name of the noble Baroness, Lady Altmann, goes only so far. I am seeking a full 8.1% increase for our retirees, which is consistent with the commitment the Government gave in their election manifesto that
“We will keep the triple lock”.
All we have heard since is why the Government will not keep their pledge. They say things like, “It is temporary” or “We can’t afford it”, but I will debunk all those claims in a moment. Clause 1 is also contrary to the Government’s levelling-up agenda. Rather than levelling up, it impoverishes citizens and condemns millions of current and future retirees to a life of poverty and misery. There is no moral or economic rationale for this; indeed, none has been offered by any Minister so far.
The Government’s own statistics, published on 3 September 2021, say that the average weekly pre-2016 state pension is £169.21 for males, £141.98 for females, and the overall mean is £155.08. The average weekly post-2016 pension is £166.34 for males, £160.11 for females, and the overall average is £164.23. As we can see from these figures, women are especially impoverished by the way that pensions are calculated and paid. They will be hit even harder by the abandonment or, as the Minister might say, the temporary suspension of the triple lock.
The state pension is the main or sole source of income for the majority of retirees. As I have said before—I have not had any volunteers—I doubt that any Minister could actually live on that, even if this pension was to increase by 3.1% next April. Retirees have for far too long been neglected by successive Governments. Governments have taken away the right to a free TV licence for over-75s. They took away the earnings link in the 1980s, and they are taking it away again. Today, the average state pension is around £8,000 a year and only roughly 25% of earnings, and it is the lowest in the industrialised world. The full state pension—which the Minister has referred to a number of times in debates this week and last week—of £9,350 is received by only four out of 10 retirees. Some 2.1 million pensioners receive less than £100 a week, and most of those are women. Many are unable to negotiate the maze of benefits which they may well be entitled to; they are simply not really claimed.
In OECD countries, the state pension is nearly 60% of average earnings. The EU average is close to 63%, as was pointed out last week. There is a long list of countries that take better care of their retirees than the UK, including the Netherlands, Portugal, Italy, Austria, Spain, Denmark, France, Belgium, Finland, the Czech Republic, Sweden, Canada, Germany, the USA, Norway, Switzerland, New Zealand, Australia, Ireland, Chile, Japan, Poland, Mexico, Hungary, South Korea, Luxembourg and Slovakia, to mention just a few. Many of these countries are not even as wealthy as the UK, but their Governments seem to care for their citizens. Why are the Government here so indifferent to the plight of their own citizens?
Low pensions condemn our citizens to a life of misery. Some 1.3 million retirees are affected by malnutrition or undernutrition. Around 25,000 older people die each year due to cold weather, and we will no doubt hear the grim statistics for this year, possibly on 26 November when the next numbers are out. Despite the triple lock, the proportion of elderly people living in severe poverty in the UK is five times what it was in 1986, which is the largest increase among major western countries. Some 2.1 million pensioners live in poverty, and the poverty rate has actually increased since 2012-13.
The Government must keep their election pledge and increase the state pension in line with average earnings of 8.1%. The 3.1% increase is backward looking; it offers an increase only in line with past increases in the consumer prices index, which is lower than the retail prices index. It takes no account of the forecast rate of inflation of 5% and the huge increases in the price of food, energy, rents and other essentials. The rate of inflation for retirees now is probably higher than the average CPI. In many cases, the 3.1% increase will not even enable retirees over 75 to buy the TV licence that the Government have taken away from them.
The Minister has emphasised that the suspension of the triple lock is temporary. However, its effects are permanent; they affect not only the current but the future generation of retirees. Lower pensions now will definitely ensure lower pensions in the future. The Treasury’s Red Book says that by switching to a double lock, the Government will deprive retirees of £5.4 billion of pensions in 2022-23. This rises to £5.78 billion in 2023-24, £6.1 billion in 2024-25, £6.5 billion in 2025-26 and £6.7 billion in 2026-27. That amounts to £30.5 billion removed from pensioners’ pockets over the next five years. I cannot remember any other Government taking that much away from the pockets of our senior citizens. This money would be mostly spent in the local economy, which increases footfall in beleaguered town centres and has a great multiplier effect on the economy. The double lock that the Government are offering delivers huge damage to retirees and local economies. Let us not forget that retirees pay taxes too, whether it is VAT, income tax, duties, council tax or other taxes.
The best legacy for future generations is a decent state pension. Future generations will be even more reliant on the state pension. Due to the Government’s laws, the workers’ share of GDP has shrunk beyond recognition, from 65.1% in 1976 to 49.4% now. It is the biggest decrease in any industrialised country. Yet the Government expect that people will somehow be able to save for a private pension; for many, that simply will not be possible.
Lord Davies of Brixton (Lab)
My Lords, first, I congratulate the noble Baroness, Lady Altmann, on her success in getting her amendment through. I very much hope that the Government will take the opportunity to respond positively with an amendment in lieu. However, I think it is still important to continue the debate on this amendment in the name of my noble friend Lord Sikka—to which I was pleased to add my name—as evidenced by his powerful speech introducing it.
I have already spoken so my position is clear, but I want to make three brief points. First, in all humility as a new Member, I believe that this amendment is this House doing its job. We did not vote against the Bill at Second Reading, which would have killed it. This amendment effectively sends a blank sheet back to the Commons, asking it to think again, as is our constitutional right.
Secondly, the amendment makes the point that the Bill constitutes a clear abrogation of a voluntary election promise. We must keep on repeating the point; time spent doing so is not wasted. This Government have too often broken promises—every opportunity should be taken to remind people of that.
Thirdly, the pensioners who I have worked with for decades do not understand fully the workings of the legislative process. They would find it incomprehensible if I and others did not vote against this legislation when we had the opportunity to do so. When we disagree with what is being done, it is our duty as well as our right to send the Bill back to the Commons saying clearly, “Think again.”
Baroness Blower (Lab)
My Lords, like the noble Baroness, Lady Ritchie, I was unable to join the debate on the Bill at an earlier stage. At this late stage, I will not, of course, be giving anything like a technical speech; I leave that to my noble friends Lord Sikka and Lord Davies. However, I have received a volume of correspondence on this matter. In this brief intervention, I will summarise the arguments in that correspondence.
All of the correspondence provides evidence, albeit anecdotal, that the removal of the triple lock will cause serious and significant financial problems. As my noble friend Lord Sikka has said, even if the triple lock is withheld only for this year, the fact is that it will have an effect in years to come. I made the point as general secretary of the National Union of Teachers that teachers’ pay being held down affects their future incomes. We know that that happens.
I will summarise the arguments, but using my own words. Growing old, many of them said, is hard enough, as we have seen from the impact of Covid-19, without having to find extra money for food and energy bills. Nationwide, millions of current and future pensioners are being condemned to a life of poverty and even, possibly, early death. Of course, these remarks do not apply to those of us above pension age in your Lordships’ House. But, as we all know, we are not typical of the pensioner population, many of whom will suffer in a very serious way if we do not uphold the triple lock; many will be faced with significant hardship. The triple lock was, after all, a guarantee, a promise, a manifesto commitment—and it ill behoves any politician to break manifesto commitments.
Lord Hendy (Lab)
My Lords, it is a pleasure to follow my noble friend Lady Blower. I support all the amendments that have been advanced today because they all have the object of protecting the level of state pensions. I particularly support Amendment 6, moved by my noble friend Lord Sikka.
I apologise that I was out of the country last week and so missed participation in Committee. However, I hope noble Lords will allow me to develop a short point that I made at Second Reading. Because, as a Member of your Lordships’ House, I have endeavoured to restrict my participation to the issues that arise from the rights and interests of workers, I want to emphasise two reasons why the state pension is of such concern to workers. The first is that pensions are the deferred wages that workers effectively earned while they were able to work. Once retired, their capacity to earn from their labour is exhausted and pensions are essentially what sustains them. Low earnings lead to low pensions, and the pay gaps manifested in earnings are duplicated in pensions—the gender pay gap in particular, but also differentials based on ethnic origin and disability.
The impact on pensioners of the failure of pensions to keep up with the costs that they face—as noble Lords and, in particular, noble Baronesses have pointed out—will be profound. Some 25,000 of our elderly already die of the cold each year, 2 million live in poverty and 1.3 million do not get enough to eat. Life expectancy is falling in the areas with the greatest poverty.
That leads to my second point. The second reason why present pensions are also of concern to those who are currently in work is this: my noble friend Lord Sikka reminds us that the Government estimate that, by the removal of the triple lock, they will save £5.4 billion from pensioners in the year 2022-23 and some £30.5 billion over five years. That is money that, were it left in the purses and pockets of pensioners, would be spent on food, clothing, heating, rent and so on. Pensioners’ incomes are spent in their local economies. There they help to sustain the jobs of current workers, particularly in shops and local services. Make no mistake: more high street shops will close and more jobs will be lost from the failure to maintain the triple lock, and it will hit the poorest areas the hardest. The impact may be indirect but the ending of the triple lock will affect current earners as well as current pensioners.
The Minister, who is rightly respected because of her sensitivity to the plight of the less well-off, knows that well. She was kind enough to write to me and other noble Lords after Second Reading explaining her position, but her Government have no answer to the two essential points made in the debates today. The abolition of the triple lock will mean that poor pensioners and the poorest local economies in the country will be made yet poorer. Such outcomes are far from necessary, as my noble friend Lord Sikka has repeatedly demonstrated through the progress of the Bill. I therefore support his amendment and all the others that seek to salvage something from the wreckage.
Baroness Sherlock (Lab)
My Lords, I thank my noble friend Lord Sikka for introducing his amendment, and all noble Lords who have spoken.
As I have said previously, many of us around this House share an underlying concern about the living conditions of pensioners, especially poorer pensioners. We have had lengthy debates about pensioner poverty in Committee and in debating my Amendment 5, so I am not going to revisit the issue at length at this stage of the Bill. However, I am pleased that the Government have agreed to publish information about the impact of the Bill, which I hope will help us to press the case for a fresh assault on the growing problem of pensioner poverty.
I explained in earlier debates our stance on uprating and what we think is the right way forward. We do not believe the Government have presided over earnings growth of 8%, much as they would like us to think they have. We think they should find a way to deal with the earnings data distortion caused by the pandemic and look for a way forward that maintains the earnings links and uprating and fulfils their manifesto commitment to a triple lock. That is the right way forward.
There is an additional issue in how this amendment is framed. The elected House has voted for the Bill and, since it has only two clauses and Clause 2 is simply the commencement, extent and name of the Bill, to delete Clause 1 would effectively completely eviscerate the Bill. I understand how strongly my noble friend feels about this issue; we all feel strongly. The question is not what we want to happen and what we think is the right thing but how this House can best achieve a result for those who most need our help.
So although we cannot support my noble friend’s amendment, that does not in any way mean that I believe the Government have got this right; I really do not think they have. That is why we on these Benches are very happy to throw our weight behind the amendment that is going to go back to the Commons and make them look at this issue again. I urge the Government to find some way in which they can fulfil their manifesto commitment, maintain that earnings link and make sure that people out there get the uprating that they need. I hope the Government can do that.
Baroness Stedman-Scott (Con)
My Lords, this clause requires the Secretary of State to review the rates of the basic state pension, the new state pension up to the full rate, the standard minimum guarantee in pension credit and survivors’ benefits in industrial death benefit by reference to the general level of prices in Great Britain. This is in contrast to, and in place of, the provisions of the Social Security Administration Act 1992, which require a review by reference to the general level of earnings.
Under the clause, if the relevant benefit rates have not kept pace with the increase in prices the Secretary of State is required to increase them at least in line with that increase or at least by 2.5%, whichever is the higher. If there has been no increase in the general level of prices, the increase in the benefit rates must be at least 2.5%. The requirement will apply for one tax year only, after which we will revert to the existing legislation and the link with the general level of earnings will be re-established.
As this is a two-clause Bill, if the noble Lords, Lord Sikka and Lord Davies, and the noble Baroness, Lady Bennett, successfully oppose Clause 1, the Bill will fall. As a result, these pension rates will increase by 8.3%, which is the average weekly earnings index for the year to May-July 2021. That means that, if the Bill does not achieve Royal Assent in good time, there will be an increased cost to the Exchequer of between £4 billion and £5 billion.
The noble Lord, Lord Sikka, raised the issue of the state pension and government content being so low. The Government have a proven track record of helping people to plan for their retirement. We have reformed the state pension system, introducing the new state pension to be simpler, clearer and a sustainable foundation for private saving to address the fact that millions of people were not saving enough for their retirement. Automatic enrolment into a workplace pension was created to help them with their long-term pension savings. Together, the new state pension and automatic enrolment into workplace savings provide a robust system for retirement provision for decades to come. Last month the UK pensions system ranked ninth in a report by Mercer that looked at the systems of 43 countries. It measured adequacy, sustainability and integrity, and the UK Government were grouped with countries such as Sweden, Finland and Germany.
In taking into account the points that I have raised, I ask the noble Lord to withdraw his amendment.
Lord Sikka (Lab)
My Lords, I thank the Minister and all noble Lords who have participated in the debate. I shall pick up some of the points.
Earlier, the Minister referred to how pensioners can get winter fuel payments. Thousands of pensioners are tuned in and watching, and while the Minister has been talking some of them have sent me information to say that the winter fuel payment was last fixed in 2011. If it had increased in line with inflation, it would be around £159. The Government have once again chosen to hurt retirees, because there has been no increase in line with price level changes.
I have also been sent information about the Christmas bonus of £10, which was introduced in 1972. It is still £10. Pensioners would be lucky to get a plate of egg and chips and a cup of tea with that. If the bonus had been kept in line with inflation, it would now be £140—another example of how pensioners have been short-changed.
The Minister said that, from 2023 onwards, we will revert to the triple lock, but no commitment is given that the amount lost will be restored to pensioners. As I said, over the next five years, £30.5 billion will disappear. The Minister has not said that even a penny of that will be restored, so pensioners will remain on low pensions—not only current but future pensioners.
The Minister referred to the extra cost. I have suggested numerous ways by which the extra cost could be met, and they must have been evident to the Chancellor when he gave a £4 billion cut to banks. Obviously, the Government’s priority is the banks, rather than our senior citizens, who are struggling to heat their houses and eat sufficient food. The Minister talks about the new pension arrangements, but the point remains that, if you earn little and put away something, it will still bring you little. The issue of pensioner poverty is not really tackled.
My noble friend Lady Sherlock said that this clause was passed in the Commons, as many clauses are passed in the Commons before Bills arrive in this House. This House’s duty is to scrutinise legislation, give its opinion and urge the Commons and the Government to rethink, as my noble friend Lord Davies of Brixton said.
There is no invisible hand of fate which condemns our retirees to a life of poverty and misery. It is the invisible hand of political institutions that has condemned millions to a life of poverty and early death. This House should not be willing to be a part of that invisible hand, which will bring more misery to not only current but future generations.
I am not convinced by the Minister’s explanation and I should like to test the House’s opinion.
Lord Sikka
“(2) Section 1 of this Act comes into force on such day as the Secretary of State may appoint by regulations.(2A) Regulations under subsection (2) may not be made until the Secretary of State has laid a report before Parliament setting out how the National Insurance Fund would be affected if such regulations—(a) were made, and(b) were not made.(2B) Section 2 of this Act comes into force on the day on which this Act is passed.”
Lord Sikka (Lab)
My Lords, if I may say so, I am a little surprised. I did say “Content” when the question was put on the previous amendment; it may not have been loud enough for some, but the people watching out there will no doubt form their own opinion on why a vote was not allowed.
I turn to my amendment to Clause 2. It requires that suspension of the triple lock not become effective until the Government present a report to Parliament showing its effects on the National Insurance Fund account.
By a happy coincidence, the Minister wrote to me on 25 October in a joint letter, which was also copied to a number of other Members of your Lordships’ House. The background is that, during the Second Reading of the Bill on 13 October 2021, I stated that the most recent audited accounts of the National Insurance Fund, for the year to 31 March 2020, showed a surplus of £37 billion, and said:
“That is more than enough to meet the triple lock obligation of £5 billion.”
Eventually, the Minister replied:
“This is a pretty challenging question, and I do not know. I will go away and find out, write to the noble Lord and place a copy in the Library.”—[Official Report, 13/10/21; cols 1869, 1888.]
The subsequent letter from the Minister seems to deny that there is a surplus of £37 billion, or that, if there is, it is not available to fund the triple lock.
It would be helpful for me to refer to the appropriate parts of the letter, so that I can challenge and debunk the claims being made. First, the Minister said:
“The National Insurance Fund (NIF) part-funds the NHS as well as paying for contributory State Pensions and contribution-based benefits. The NIF operates on a multi-year basis and balances expected contributory pensions and benefits spending with forecast National Insurance income. The NIF is currently forecast to have an annual deficit in 2022/23.”
She continued:
“There is no surplus in the Fund that can simply be drawn upon. The Government Actuary’s Department recommends a surplus is kept in the NIF to cover day to day variations in expenditure. The surplus is lent to the Government while that happens—it cannot simply be spent again. When the fund runs low, the Treasury injects new money into it in order to ensure that the State Pension and other benefits are still paid. When the Fund is in surplus as it currently is, the surplus is invested in order to help pay down the national debt”.
First, let me confirm that I agree with the Minister when she said that:
“The National Insurance Fund (NIF) part-funds the NHS as well as paying for contributory State Pensions and contribution-based benefits.”
That said, the National Insurance Fund has a different accounting basis. Page 14 of the fund’s 2020 accounts states:
“An allocation for the NHS is paid over by HMRC before the contributions are paid into the NIF and therefore the NICs are shown net of the NHS element”.
That does not support what the Minister said. Page 16 of the same accounts tells us:
“The NHS allocation is paid over by HMRC to the NHS before any contributions are paid into the NIF and so the figures shown are net of this NHS allocation. The NHS allocation was £26.5 billion in 2019 to 2020 (£25.4 billion in 2018 to 2019) and forms part of the total NHS funding”.
Lord Davies of Brixton (Lab)
My Lords, perhaps the Minister could clarify what I complained about on Second Reading and in Committee, which is the way this has worked. We have not had a report from the Government Actuary, even though one on the regulations will be required. The Minister has said that there will be an impact assessment. Will it effectively include all the material that would be in the Government Actuary’s report on the regulations?
Baroness Sherlock (Lab)
My Lords, I normally think my job is basically to help the House by offering an idiot’s guide to how things work, but I think it is beyond me this evening. My noble friend has asked so many questions that I want to add only a couple.
First, I want to see whether I can understand what the Minister was saying in her letter on 25 October. I think she was saying that the national insurance scheme is financed on a pay-as-you-go basis, with contribution rates set broadly at a level necessary to meet the likely cost of contributing benefits and pensions in that year, taking into account any other payments and receipts and the need to maintain a working balance, which seems to be targeted at 16.7% of benefit expenditure. That is an oddly precise figure, whose basis completely eluded me, but maybe she can enlighten me.
The Minister’s response said the fund may be in surplus now but it was forecast to be in deficit next year so there would not be a surplus to draw on. I think her case is that the context of surplus is not meaningful, because the fund is designed to wash its face, and therefore, if income is lower or expenditure higher than expected, the Treasury tops it up and reverses those ships back out again. Is my idiot’s guide right—have I understood the Minister’s case? If so, can she answer some questions?
If there is a surplus of £37 billion, why is it so high this year? What is the projected deficit for next year, and why is it projected as that? I think my noble friend addressed my next question on the hypothecation of funds for the NHS. When the Secretary of State makes her statutory decisions on uprating, is any reference made to the state of the National Insurance Fund?
Finally, on a slightly tangential point, anyone who has ever knocked on doors during elections will know that a certain proportion of voters is still convinced that the National Insurance Fund is hypothecated at the level of the individual: “There is a savings account somewhere in the Treasury with my name on it; my national insurance contributions go into that and pay my benefits and pension when I retire.” I think that is one of the reasons why so many people are outraged when they find their state pension age pushed back or, after years of paying contributions, they finally claim benefits and find they are incredibly low—far lower than the tabloid coverage had led them for many years to believe was being offered in largesse to the poor.
In practice it is a pool system, not an individual one, and today’s workers pay for today’s pensions, not their own pension. Given that, does the Minister think there is enough transparency on the way the National Insurance Fund works? People are now paying 20% standard rate tax and 12.5% NI, so most workers are going to be paying 32.5%; and NI kicks in at a lower threshold. Does she think the Government are sufficiently accountable for all that and the way it is spent? I would be interested in her comments.
Baroness Stedman-Scott (Con)
My Lords, out of courtesy to the noble Lord, Lord Sikka, and the noble Baroness, Lady Sherlock, for the points that she has made, and to bring some clarity to the questions raised, I hope that the House will agree that I sent the letter in good faith, and will allow me to take it back to officials with the points that have been raised and come back with, I hope, the re-emphasis that is needed to clarify the position on the fund. However, I am advised that the first point raised by the noble Baroness, Lady Sherlock, in her summing up, is correct.
As the noble Lord, Lord Sikka, will be aware, there is an existing statutory requirement under the Social Security Administration Act 1992 for a GAD report on the likely effect on the national insurance fund of the draft Social Security Benefits Up-rating Order and the draft Social Security (Contributions) (Rates, Limits and Thresholds Amendments and National Insurance Funds Payments) Regulations. There is no equivalent statutory requirement for this Bill, and GAD will conduct its assessment in the round based on the draft uprating order, which will include all benefits paid out of the national insurance fund, not just the ones covered by this Bill.
With respect to an assessment of the impact on the fund if this legislation is not passed, it is important that the working balance of the national insurance fund remains positive, as this ensures that there are always enough funds to pay for these benefits and allows the Government to deal with short-term fluctuations in spending or receipts. If the balance of the fund is expected to fall below one-sixth of forecast annual benefit expenditure, the Government will transfer a Treasury grant, paid from general taxation, into the fund. This ensures that benefits such as the state pension can always be paid as necessary.
I know that several noble Lords have suggested that, when in surplus, the fund can be used to increase expenditure beyond the level originally planned, but I am afraid that that is a misconception. The balance of the national insurance fund is managed as part of the Government’s overall management of public finances and reduces the need for it to borrow from elsewhere. Therefore, any additional spending from the national insurance fund would represent an increase in overall government spending and, without cuts in other areas of spend or additional taxes, an increase in government borrowing.
Not passing this Bill would not only increase state pension payments from the fund this year by an anomalously high figure of 8.3% but have a long-lasting compounded impact for decades to come as the anomalous figure would be baked into the baseline. The Government do not believe that this would be fair to younger taxpayers. Based on these arguments and the commitment that I have given to review the letter and the questions raised today, I ask the noble Lord to withdraw his amendment.
Lord Sikka (Lab)
My Lords, I am very grateful to the Minister for her explanation. I understand and agree that some margin of safety is needed in any account, but this is a £37 billion surplus, out of which only £5 billion is needed to maintain the triple lock—a small proportion. When somebody asserts that accounting numbers are perhaps not serious and I have investigated, I have normally given them the phone number of the Serious Fraud Office and said, “Maybe you’d like the bed-and-breakfast facilities at one of Her Majesty’s establishments”. However, I will not offer that to the Minister, as she has promised to return to the House with an explanation.
We need a fuller investigation and report, bearing in mind the point that my noble friend Lady Sherlock made: why have these surpluses built up? The surpluses have not always been around, but they have built up, and the Treasury’s forecast is for a vast increase for the period in which the Minister’s letter said that we were going to have a deficit. If it was so important, the Chancellor should have said something. It should have been in the Treasury and OBR documents. It is not there. I cannot help feeling that some ex-post rationale is being developed to say that we are not going to maintain the triple lock, and somehow offer an explanation.
However, in view of the Minister’s offer, I beg leave to withdraw my amendment.
Advanced Research and Invention Agency Bill
Tuesday 2nd November 2021
(3 years ago)
Lords ChamberRead Full debate Advanced Research and Invention Agency Act 2022 View all Advanced Research and Invention Agency Act 2022 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Consideration of Bill Amendments as at 7 June 2021 - (7 Jun 2021)
The Parliamentary Under-Secretary of State, Department for Business, Energy and Industrial Strategy (Lord Callanan) (Con)
My Lords, the Advanced Research and Invention Agency Bill creates a new funding agency, ARIA. ARIA will support ambitious programmes of research and innovation, seeking the scientific and technological breakthroughs that transform the lives of people across the UK and around the world. It will further diversify and strengthen our UK funding landscape, which is appropriate at a time when public investment in R&D is increasing to £20 billion in 2024-25 and concerted action is being taken across Government to reinforce the position of the UK as a science superpower.
Our science system already benefits from a variety of funding streams: government spending through UKRI programmes such as the Strategic Priorities Fund, investment from businesses small and large, and charitable sources such as the new Wellcome Leap. That plurality is a strength that we are seeking to build on with ARIA. I therefore emphasise at the start that the motivation for ARIA’s creation is to innovate how research is funded, rather than any specific topics or areas which need investment. It is about enabling a new programme-led approach to public R&D funding, optimised for high-risk research—new for the UK, that is, as we have learned from the tremendous successes of this funding model around the world, mostly from the United States, which many noble Lords will of course be familiar with.
I emphasise the two core features of this approach: first, the expectation that the full benefits will be felt only over the long term, which therefore requires patience; and secondly, that for every programme that produces transformational benefits many will not, which requires a fairly unique attitude towards failure. The research community has been clear, in providing evidence and through engagement, that it wants to see these realities of the research process reflected in the new funding body. I hope that these issues similarly resonate with many noble Lords who are concerned with research and its funding. These features are central to the approach that we are seeking to take with ARIA.
Before expanding further on the role that ARIA will play, I must emphasise the existing excellence of the UK’s R&D system. Although the Government have engaged with and sought to learn from similar agencies in other countries, ARIA must be designed sensitively to the UK’s unique context. That means not copying wholesale from elsewhere, or blindly replicating features that might in some places be successful, without carefully considering the fit with the UK system. It also means remaining conscious of the scale of this new agency. ARIA’s £800 million budget is significantly less than 2% of overall UK R&D spending.
Looking at that total spending, ARIA represents a small addition at the high-risk end of the spectrum and is equipped to take a unique approach to supporting that type of research and development. Viewed through that lens, one important point should be clear: ARIA will complement rather than compete with the system-wide responsibilities of UKRI—the steward of our overall research landscape. Indeed, those responsibilities remaining firmly outside of ARIA’s remit goes hand in hand with the autonomy and freedom that we expect it to have.
ARIA is not an institution for responding to the day-to-day priorities of government, whether specific strategic challenges, or the Government’s desired balance of research, development and commercialisation activities. ARIA’s clear remit will be to pursue programmes of research focused on realising specific objectives that have the potential to produce transformative, long-term benefits. These objectives must be set by programme managers with deep technical expertise and brilliant ideas, who are empowered to pursue those objectives with a variety of tools and a single-minded focus and to fund research and innovation projects through contracting and granting in businesses, universities and elsewhere, drawing those contributors and their outputs together to realise their objectives. They must be free to do so, in the expectation that a small proportion of projects will in time lead to things that are truly extraordinary.
Taking this approach requires trust in the good that comes from investment in this type of R&D—the high-risk, long-term and difficult to measure, which we have clearly and repeatedly heard could be better provided for. But it is not only a matter of trust; the evidence for this R&D investment and its spillover benefits is compelling. Research suggests that while the annual private rate of return from R&D and innovation averages 20% to 30%, the social returns are two to three times higher.
Although ARIA will be specialised and—by taking a new approach—something of an experiment in how we fund UK R&D, it should be one that the whole system learns from. Aspects of ARIA’s unique approach might successfully be applied to other UK R&D funders, and I expect the potential benefits of that to act as an incentive for close integration with the wider research system, which will be so advantageous both for ARIA and other actors.
This Bill—and the creation of ARIA—aligns us with many other countries using the funding model that I have outlined. From the US to Japan and Germany, this programmatic approach to supporting the most ambitious research goals has been deployed, in some cases with extraordinary success, and it is entirely appropriate that at this point we seek to apply it through ARIA to benefit UK science, research and innovation.
I will now move on to the specific provisions of the Bill and set out how the key clauses relate to the ambition and approach that I have just described. I will first address ARIA’s functions, as detailed in Clause 2. ARIA is expected to primarily operate as a funder of others, which is reflected in its functions to
“do, or commission or support others to do”.
It is not restricted to operate at a particular point on the technology readiness level spectrum; indeed, individual programmes may require a mixture of projects that seek to solve fundamental science challenges alongside work to develop and apply existing knowledge in new contexts. This is reflected in Clause 2(1), which places development and exploitation alongside the conducting of scientific research. The range of financial support that ARIA can provide is expressly broad. This equips programme managers to tailor the funding that they provide so that it is appropriate to the specific recipient and project. This is essential in supporting a broad—even unexpected—coalition of researchers and organisations, and ensuring the diverse input that is known to be so beneficial in solving difficult scientific problems. The unexpected collaborations and high degree of interdisciplinary work that we expect this to support is one of the most compelling features of the programme-led ARIA model.
Clause 3 gets to the very heart of ARIA’s approach. Implicit in pursuing high-risk research and ambitious programme goals must be recognition that many projects and programmes will not fulfil their stated aims. The risk of failure is high, and that must be accepted from the outset if ARIA is truly to be equipped to tackle the most difficult challenges, with ground-breaking implications. Clause 3 states that ARIA may give particular weight to those ground-breaking benefits when supporting R&D activities which, almost by definition, carry a high risk of failure.
This is a valuable approach for two reasons: first, because of the transformational benefits of success in this arena—the scale of impact of technologies such as the internet, GPS or mRNA vaccines, all supported by the US DARPA, is difficult to overstate; and secondly, because of the spillover benefits that can accrue even from unsuccessful projects, such as collaborations and approaches that would not otherwise have existed, or progress that later proves vital for fields or problems unrelated to the original programme.
I turn now to the role of the Secretary of State, which is addressed in Clauses 4 and 5 and in Schedule 1. It is also notable by the provisions that the Bill does not contain. I have already spoken about ARIA’s need for autonomy, and on that basis, the role for the Government in its ongoing affairs must be limited. The provisions in Clauses 4 and 5 of the Bill represent a baseline to ensure ARIA’s operation, allowing funding to be provided and issues of national security to be addressed. The public money provided to ARIA requires an appropriate level of oversight and, accordingly, there are provisions to ensure core tenets of good governance in Schedule 1. This includes the Secretary of State’s power to appoint non-executive directors and the reserve power to introduce conflict of interest procedures should it prove necessary in future. However, there is no power for the Secretary of State to require a strategy, no specific power of direction over ARIA’s allocation of expenditure, and the Secretary of State’s information rights are deliberately limited to the exercise of their functions with respect to ARIA.
In these matters we have sought to strike a balance between protecting ARIA’s strategic and operational autonomy, which is essential to its remit, and providing sufficient assurances for the important role with which it is to be entrusted. This difficult-to-strike balance has been a theme of much debate on the Bill so far, and I have no doubt that that will continue to be the case in our House.
Continuing this theme, I will speak briefly on the exemptions the Bill affords ARIA from standard public sector obligations around procurement and freedom of information. There are practical and operational reasons for both. Exempting ARIA from the Public Contracts Regulations’ contracting authority obligations is a result of its fundamentally different way of operating compared to our other core public R&D funders. We expect ARIA not only to give grants but to commission and contract others to carry out research. The exemption ensures that ARIA can procure services, goods and works related to its research goals at speed in a similar way to a private sector organisation. This mirrors the successful approach taken by DARPA, which benefits from other transactions authority, giving it the flexibility to operate outside US government contracting standards.
On FoI, the pertinent question to me is where we want ARIA’s staff to direct their focus. Earlier, I spoke about people with deep technical expertise and brilliant ideas who are empowered to pursue their objectives. I believe that of course that should apply to all ARIA staff and that this ambition is the last thing we should move away from if we want this organisation to succeed. In this unique case, I do not think those people should be employed to administrate FoI requests. This approach should be viewed in the light of ARIA’s other statutory commitments to transparency through its reporting and accounts, subject to scrutiny by the NAO, and with the natural incentives towards openness of having an identity to build and collaborators to attract.
Returning finally to the purpose of the Bill before us, it is right that we recognise the existing excellence of our R&D system and that we add to it only in a considered way. However, I believe we should also allow ourselves to consider the possibilities in doing so and challenge ourselves on whether we could do more, or better, in the ways we support UK science and innovation. The creation of ARIA, through this Bill, is an exciting addition to our research landscape, but it is also a judicious one, rooted in historic successes, drawing on international best practice and responding to the current needs of UK researchers. I beg to move.
Viscount Stansgate (Lab)
My Lords, it is a totally unexpected pleasure to follow the Minister as I am the first in the list. It is a great honour to take part in this debate, the first Second Reading in which I have taken part, when I consider the range of other speakers who we are going to hear from this evening, all of whom are so very distinguished. I am also mindful of the fact that the president of the Parliamentary and Scientific Committee is contributing to the debate. As his vice-president, I cannot remember a time when both officeholders were speaking together.
The relationship between the Government and science is subtle, complex and of critical importance to the future of the country. It goes without saying that we have a tremendous record on science in this country, to which I pay tribute, along with everybody else. Our record on Covid vaccine development and distribution is but the latest example. The UK is world class, but it is a competitive world out there and this Bill matters to our future if we are to be the science superpower we all want us to be.
The problem for successive Governments of all kinds is that they have to try to find a balance between giving researchers the freedom to follow their own instincts and curiosity, while at the same time guiding large sums of public money towards wider societal benefits, such as national prosperity and real improvements in the quality of life for their citizens. This balance is not easy to strike. ARIA represents an attempt to strike a new balance by introducing a new organisation with a relatively small staff and a relatively small amount of money with extreme freedom to decide what to do without the existing constraints that apply elsewhere. There is also a difficult and delicate balance to strike between parliamentary oversight and the intellectual freedom which will be necessary to enable ARIA to generate the creativity required to do things differently.
The Minister made it clear in his opening speech that what is being proposed is something very new because we are dealing with high risk and potentially high reward, as he acknowledged. Therefore, the heart of what the Bill is about is not so much an agency as an idea. We are discussing an experiment never before undertaken in the UK, and we are being invited to approve and establish a new participant in what is called the scientific landscape. If we were having a vote today, I would vote for the Bill because this is broadly a good idea and I support additional funding for science, but it raises lots of questions which is going to make the Committee stage very important, and I will return to that in a bit.
First, I hope the House will allow me a brief moment to consider the wider historical context of the proposals that the Government are inviting us to consider today. More than 100 years ago, I think in 1918, Lord Haldane chaired the committee that led to the establishment of the first research council. The Haldane principle that emerged was, in essence, that research should be decided by researchers and not the Government. This has stood the test of time not least because it is convenient for Ministers. It shields them from bearing the direct responsibility for making individual decisions on individual funding.
ARIA takes this a stage further. It will need to offer real scientific independence at programme level. With regard to peer review, standard processes may not always be appropriate for ARIA, as it aims to empower exceptional scientists to start and stop projects quickly. I do not particularly care for military analogies, but when I think about ARIA it makes me wonder whether in times past Barnes Wallis or Alan Turing might have been funded by ARIA. They were both individually brilliant.
Over the decades the structural organisation of science in government has been through endless changes. For about a quarter of a century science was put in with the Department for Education, to create the DES, and, frankly, that is where science languished. I regard the start of the modem era as being when the noble Lord, Lord Waldegrave, launched Realising our Potential in 1993, rearranged the research councils and set up the Office of Science and Technology. Even the current department, BEIS, has over the past 20 or more years been through many changes in emphasis and names from the DTI to the ungainly DIUS, if anybody remembers that, and there may be more name changes on the way. Then there are things such as the Technology Strategy Board, which became Innovate UK until its absorption into UKRI, and even UKRI itself, which was described at the time as the kind of reform that comes along only once in a generation, was formed only in 2018.
Some argue that there is no point in creating ARIA if it is going to be just another entity in the science landscape doing the same things as UKRI but with less money. There is no guaranteed method, and never has been, of successfully identifying commercially successful projects arising out of science research. Too often in this country, as noble Lords will know very well, we have suffered from what is called “the valley of death”—that is, we are good at discovering new things but bad at developing them and exploiting them for commercial success. However, it is hard to legislate for success.
The agency will not automatically succeed. On the contrary, one of its earliest proponents suggested that if ARIA is not failing then it is failing, which is an interesting point. Last weekend, I went to see the latest James Bond film—I recommend it—and it occurred to me that there is a link between those films and this Bill. If the Minister was promoting ARIA as a movie, I can see it now: “ARIA—Licence to Fail.” Whether it does or not is almost impossible to predict because we do not know when a transformational breakthrough will be made, so consistency of funding over the next 10 years will be crucial.
One thought that comes to mind at the start of the many questions I want to put is about the agency’s proposed name. We know that much of the inspiration for ARIA comes from America. When this idea was first mooted by the Government in March 2020, they called it ARPA. They have now chosen the letter “I” for “invention” rather than “P” for “projects”, and that is an interesting distinction worth exploring. “Invention” conveys more of an individual exercise, whereas “projects” suggests a more collaborative approach with many more people involved, so we may discuss in Committee whether we should reconsider the title.
I am grateful to all those organisations that have been in touch to offer advice on ARIA, and I am sure there will be a lot more as we go through Committee. They include the Royal Society of Biology, the Biochemical Society, the Physiological Society, the Campaign for Science and Engineering, the Royal Society of Chemistry and others.
My own list of questions is not exclusive; I am sure that other noble Lords tonight will have many more. But they include the following: what will the relationship be between ARIA and the existing parts of the research landscape, such as UKRI, in particular? What will it be with the new science and technology council, recently established by the Prime Minister, and the new Office for Science and Technology Strategy? What about its relationship with the Council for Science and Technology, currently co-chaired by the chief scientific adviser and the noble Lord, Lord Browne of Madingley?
Baroness Bloomfield of Hinton Waldrist (Con)
I gently remind the noble Viscount that there is an advisory speaking time limit of seven minutes. If we go on from the first speech, we get rapidly out of control.
Viscount Stansgate (Lab)
It is kind of the noble Baroness to mention it. If I had a pair of scissors, I should have to cut this speech in half, and noble Lords would no doubt be only too grateful. I will do so verbally.
One area where I think we will divide in Committee is that the Government are determined to exempt ARIA from freedom of information. Like other noble Lords, I received a briefing from the Information Commissioner’s Office, which strongly advocates that FoI requests should be allowed. The News Media Association has also taken the trouble to write to us on the same issue. I am sure that is something we will explore.
In drawing my remarks to a close, I will mention the famous questions that DARPA used to identify projects which were worth funding. First, what are you trying to do, and can you explain it in jargon-free language? Secondly, how is it done today, and what are the limits of current practice? Thirdly, what is new in your approach, and why do you think it will be successful? Fourthly, who cares? If you are successful, what difference will it make? Fifthly, what are the risks? Sixthly, how much will it cost? Seventhly, how long will it take?
Finally, the Bill proposes that the Government must wait 10 years before taking any action to close ARIA down, so I look forward to taking part in the Second Reading of the “ARIA (Continuation) (Amendment) (No. 2) Bill 2031”, when we will at least have the experience of 10 years to guide us in our debates.
Lord Clement-Jones (LD)
My Lords, clearly we need to discuss the R&D and innovation context in which ARIA is designed to sit. We now know the spending context; the UK has a long-term target for UK R&D to reach 2.4% of GDP by 2027. But the Chancellor has pushed back the target of £22 billion per annum on R&D, from 2024-25 to 2026-27, which may impact on private investment.
Beyond this, there is no shortage of road maps, reviews and strategies which lay out government policy in this landscape. In 2020, we had the well-intentioned R&D road map. Since then, we have had the UK Innovation Strategy with its “Vision 2035”, the AI strategy, the Life Sciences Vision, the fintech strategic review—all, it seems, informed by the integrated review’s determination that we will have
“secured our status as a Science and Tech Superpower by 2030”—
language repeated recently by the Chancellor. I see now that we are due a review of UKRI, on top of the Nurse review. I am sure that they are meant to give us a warm feeling, but it is very unclear how all the aspirations reflected in these documents fit together, let alone with ARIA—
“a brand in search of a product”,
to quote the Science and Technology Committee.
The noble Lord, Lord Hague, wrote a wise piece in the Times a couple of weeks ago. In concluding, he said:
“But the officials working on so many new strategies should be running down the corridors by now and told to come back only when they have some detailed plans that go far beyond expressing our ambitions.”
The problem is working out how and whether the creation of ARIA is any kind of priority, and practically how it will operate in terms of skills and resources. The key to understanding this seems to be the framework document which will outline the operational relationships for ARIA, but we are told this will not be published until after the Bill is through. That cannot be acceptable.
The budget for ARIA, at £800 million over four years, looks relatively modest when compared with the research councils’ budgets, especially when funding is actually only £500 million up to the end of this spending review period. From what one can see, ARIA will be entirely independent of UKRI, as the Minister stated, including Innovate UK. My concerns are the opposite of those of the Science and Technology Committee regarding ARIA’s potential dislocation from mainstream innovation strategy. Given that, what oversight over ARIA will the Treasury have? What will be the public accountability of ARIA, and how transparent its activities? Will it co-ordinate activities with UKRI at all? Will the National Science and Technology Council have any role in relation to ARIA?
It is surely completely unacceptable, as the ICO has pointed out, that it should be exempt from Freedom of Information Act requirements. As it said:
“Without this, there will be a lack of transparency, accountability, trust and confidence in ARIA.”
After all, the US equivalent of ARIA, DARPA, is covered by the US FOIA. As the ICO also says, the FOIA
“includes safeguards which allow a balance to be struck between the public interest in transparency and the protection of legitimate interests.”
As the Minister described, programme managers, it seems, will be appointed to commission work funded by ARIA. But what is the operating model—along the lines of the Crick or the Turing or that of the EPSRC? How will it commission research and collaborate with universities, the start-up community, catapults or research operations of larger companies? Where does ARIA fit with the levelling up regional aspirations for R&D? What is the likely interaction of ARIA with the UK’s technology clusters and with initiatives for regional and local innovation? Of course, as the Delegated Powers and Regulatory Reform Committee has pointed out, ARIA’s existence could be short-lived—abolished by the Secretary of State’s fiat.
The truth of the matter, however, is that we do already rank highly in the world of early-stage research, and some late-stage, not least in AI. It is in commercialisation —translational research and industrial R&D—where we continue to fall down. As the noble Lord, Lord Willetts, is quoted as saying in a recent excellent HEPI paper “Catching the wave: harnessing regional research and development to level up”:
“We all know the problem – we have great universities and win Nobel Prizes, but we don’t do so well at commercialisation.”
The functions for ARIA listed in the Bill include to
“encourage, facilitate and provide advice”
and to provide grants, loans and investments in companies, so what will be the long-term relationship with Innovate UK? Despite the creation of and support from the British Business Bank, our investment culture is more risk averse than Silicon Valley. Our innovators are having to sell out too early. The DARPA model has a powerful relationship with industry. Is that the intention here?
There are many other things that we could improve in our UK R&D and innovation universe, beyond the creation of ARIA. Our research sponsoring bodies could be less micromanaging. I welcome the Chancellor’s moves to extend R&D tax credits to investment in cloud computing infrastructure and datasets, but our patent box scheme is complex to apply for and not cost effective. There should be more support for catapults, which have crucial roles as technology and innovation centres, as the House of Lords Science and Technology Committee recommended. We could also emulate America’s Seed Fund, the SBIR and STTR programmes. On the regional front, we should be seeking to make universities regional powerhouses, tied in with the economic future of our city regions through university enterprise zones.
But finally, will the Minister give us a hint as to which technologies the Government consider will form the core of ARIA’s programmes? I am very enthusiastic about the future of UK research and development, innovation and their commercial translation in the UK, and want them to thrive for all our benefit. However, I remain to be convinced that ARIA is the answer to many of these questions. It is not enough to say, as the innovation strategy paper does:
“we do not know what ARIA will create. That is the point.”
We need a great deal more assurance about where it fits and whether it will be a useful addition to our R&D and innovation landscape.
Lord Patel (CB)
My Lords, I start on a positive note: I am supportive of the establishment of ARIA. I wish its budget was bigger than it is. ARIA is modelled on the US agency DARPA, which has its focus on research and technology related to the military. DARPA’s success has built confidence among venture capitalists and angel investors, leveraging more funds above its core funding.
The strength of the UK’s research sector is its diversity of funding. Despite the belief of some, research councils in the UK have been very successful at funding discovery science. A good example is the MRC Laboratory of Molecular Biology in Cambridge, which has conducted high-risk, high-reward discovery research from its beginnings. What has been lacking is the freedom that research councils need to explore new ideas and take some risks. The governance structure of government R&D funding, with strong BEIS involvement, ties the research councils, Innovate UK and UKRI in bureaucratic knots, stifling research and innovation.
Having got that off my chest, I think the introduction of a new funding stream presents new opportunities. In being able to support projects that are high risk, it could help broaden and strengthen the UK’s research capabilities, allowing new sectors to emerge. The “I” in ARIA—invention—is good, because it offers an interesting and original creative opportunity. Grants for invention of technologies tend to do very badly in peer review in comparison with grants that aim to discover something. ARIA money explicitly to fund invention of technologies could be very powerful.
I now come to some of my concerns, which I hope the Minister might help allay. The Government have done a good job of framing the structure of ARIA, presented just now by the Minister, taking the best of the learning from DARPA and other US ARP agencies while accepting that some aspects need to be different in the United Kingdom. However, there is a need to better define and articulate the scope and objectives of ARIA, knowing that the agency’s impact will depend on its ability to do things differently. I hope the Minister will comment on this, too.
ARIA will fail if it is not allowed to do things differently. To this end, there is a need for a strong, non-traditional CEO, empowered to shape the operating model of ARIA and given the freedom to do so. Further, the agency’s autonomy and speed to action will require a governance model that protects it from day-to-day politics, encourages and allows it to be driven by greed for learning and progress and not be judged by failure, and ensures an appropriate level of funding over a reasonable length of time. For this and more, the agency needs a strong, respected, politically powerful chair who strongly backs the CEO and is single-minded with an objective of making ARIA a success. ARIA also needs a strong senior political figure who is prepared to bat for it and defend its autonomy and is willing to take the flack when there is bad news. Without this, ARIA will fail. Much of DARPA’s and other ARPAs’ success in the USA is down to the strong backing they get from the Secretaries of State in the relevant government departments. I ask the Minister to comment on the model of governance and on who the senior Minister responsible for ARIA will be. Will it be the Secretary of State for BEIS?
Researchers in the UK are keen to embrace new models of support that allow them to explore high-risk ideas. The opportunity to unlock latent potential in translational research in the UK is enormous. Currently, this is biased towards big industry, while individual scientists are increasingly interested in entrepreneurial models of translation. Such a model could rival US innovation models. To achieve this, more is needed than what is already proposed in the Bill. ARIA grants should waive the 20% cost sharing, which will be a barrier to high-risk research and translation. Can the Minister confirm that it is the intention to do so?
Current requirements for spin-out companies in the UK compared to those in the US are cumbersome, bureaucratic and costly. They stifle innovation and need to change. ARIA should be able to explore funding private and hybrid institutions for research, a highly successful model that DARPA has followed. DARPA’s and other ARPAs’ success in the United States is related also to US Government procurement policies that favour innovations developed by agencies. It is hard to envision ARIA’s success without a comprehensive public procurement strategy alongside. I hope the Minister can comment on that.
I end by wishing that ARIA is a success. If it is, it could be a model for more UK R&D funding.
Lord Bethell (Con)
My Lords, like others in the innovation space, I have come strongly to support ARIA. I know from my experience as an Innovations Minister that UK research bodies—UKRI, NIHR and our research charities—are really productive. We mobilise rigorous, independent teams on research investment decisions; we administer research to a very high standard of accountability and efficiency, and we validate results through rigorous peer review—these are very commendable qualities. That research bureaucracy is why the payback from UK investment is very high.
However, I have had lived experience of big gaps in our national capability. Our research bureaucracy moves at its own pace, to its own beat, and is not always aligned with our national priorities. During the pandemic, I found time and again that the very reasons why we are so successful in peacetime are exactly the reasons why we were not good in an urgent situation. Investment decisions took too long, creating consensus around complex challenges was sometimes impossible, and validation processes were sub-scale, inconclusive and took an inordinate amount of time. That is why I strongly support ARIA. In the heat of battle, too often I was tearing my hair out with the committee-led, network-based, consensus-building, “I’ll get round to it in my spare time”, monthly-meeting approach. What I yearned for was a high-risk approach, which is what ARIA brings to the party.
RECOVERY, the Vaccine Taskforce, the Therapeutics Taskforce and the innovations and partnership team within Test and Trace were all unorthodox arrangements that delivered massive results for the country. That is why I agree with the Minister that there is a clear appetite for high-risk, high-reward research with strategic and cultural autonomy. This will usefully challenge the current orthodoxies, and the experiment will usefully inform reforms in how we do research.
I want to echo one concern raised by other noble Lords, about the strategic direction of ARIA. I am gravely concerned that the emphasis on autonomous objective-setting does not give the impetus and direction necessary for success. My experience is that the most impactful returns come when there is a clear outcome from the very beginning. By way of a metaphor, perhaps I may tell you this: I remember when the Prime Minister made generalised appeals for help during the pandemic. The response was often creative, exuberant and completely unfocused. I remember in one instance the NHSBSA having to stand up nearly 3,000 operators to triage and assess the various offers that had come in. When the final analysis was done, it found that only a handful had any value. But when we published our requirements, we frequently had our needs met within days. This principle applies to even the most brilliant research organisations run by the most brilliant research managers.
I appreciate that we are looking at enabling legislation. I have brought enabling legislation through the House myself, so I understand that many practical arrangements will be solved in secondary legislation, but I want to emphasise two higher-order matters that need to be clearly answered by the Minister at this stage. If they are not, I fear that the process of secondary legislation will be a difficult challenge.
First, I would really like the Minister to give a commitment that ARIA will be orientated around a small number of clear, societal challenges, and play a role in stimulating cross-disciplinary innovation. I would like the Minister to talk a little about where in the Bill that commitment could or should be articulated. If that commitment and orientation can be put into the Bill, what will the framework for agreeing those challenges be? I appreciate that this is not the place to make those decisions today, but the Bill needs clarity now from the Minister on how those decisions will be made, how success will be assessed and how they can be updated as ARIA continues its business.
Secondly, there is a question in my mind about what stage in the innovation cycle ARIA will be targeting. In the 21st century there are very few unclimbed mountains in the world and very few apple-drop moments, when a single inventor has a profound brainwave that transforms thinking. During the pandemic, it was my expectation that this global catastrophe would elicit a number of breakthroughs, particularly in the field of pathology. I spent a huge amount of time with Israelis, Singaporeans and South Africans looking at, for instance, spit tests, breath tests, the MIT cough tests, Covid dogs, a test that involved radar and a test from France involving testing wastewater.
In fact, the two biggest breakthroughs involved high-risk strategies and they were programme-led, but they were iterations of two very long-standing technologies. The first, the lateral flow test, was first used in 1956 and is commonplace for pregnancy, HIV and drug tests. It was incredibly tough to find one that worked to our satisfaction, but when we did, we could send out hundreds of millions to catch asymptomatic illness. The second was the good old PCR test, which benefited from an army of robots automating the process, meaning we could get from a few thousand a day to nearly a million a day. These were unromantic iterations, but they were hard-fought and delivered a huge amount of value.
The same could be said of vaccines. It took the Oxford team just three days to essentially retool a malaria vaccine, though it did take them 300 days to prove efficacy and safety. On therapeutics, dexamethasone was first synthesised in 1957, but, after 10,000 clinical trials, it proved to work around the world.
For that reason, I believe ARIA should be focused not on new scientific discoveries but on transformational applications.
Lord Davies of Brixton (Lab)
My Lords, first, I apologise to the Minister as I was two minutes late coming in, but I had been discussing the triple lock for three hours and I had somewhere to go—I will not go any further than that; I hope that is acceptable. Secondly, it is an honour to take part in this debate with so many distinguished Members.
There is no escape from the fact that we have here an orphan piece of legislation. We have the Minister here as its foster parent, and we must thank him for providing it with as much love and support as he can muster, but the natural parent—the person responsible for the orphan’s conception—is long gone. Perhaps this is why there is a certain lack of focus, as other Members have mentioned.
I will support the Bill at Second Reading, if only because it is a type of natural experiment; a single data point in finding out what is an effective method of funding worthwhile research. Let us see how it works out.
However, it needs to be looked at closely in Committee, as there are obvious shortcomings. Others have mentioned the exclusion from freedom of information. There is no convincing explanation advanced for that, though the “burden” is referred to. But a well-run organisation ought not to find it a burden, particularly as we were promised in the statement of policy intent that the agency
“will be an outward facing body which will proactively provide information about its activities”
—except when people ask.
Concerns were also mentioned by the Delegated Powers and Regulatory Reform Committee of the House. There is the power given to the Government to dissolve an agency that is established by Parliament; the argument is that, if it is established by Parliament, it should be dissolved by Parliament. There are also examples of wide-ranging Henry VIII powers.
The main concern I wish to raise—I have mentioned this before and was grateful to meet the Minister earlier in the week—is the lack of a clear story; a story to tell us, the taxpayers, what the agency is meant to be doing, what it is for and how it will work. The only words in the Bill itself that mark out the agency as doing anything special in the work it undertakes are in Clause 3, “Ambitious research, development and exploitation: tolerance to failure”:
“In exercising any of its functions under this Act, ARIA may give particular weight to the potential for significant benefits to be achieved or facilitated through scientific research, or the development and exploitation of scientific knowledge, that carries a high risk of failure”.
So all we really have is
“the development and exploitation of scientific knowledge, that carries a high risk of failure”.
One good thing, even if it is unfortunate that it needs to be said, is that the term science is defined in Clause 12 as including social sciences. Much of the discussion about the agency has assumed that it would undertake only what is often characterised—mistakenly, in my view—as hard science.
However, what is not defined in the Bill is risk. Risk is, unfortunately, a term that is misunderstood and frequently misused. While I think Clause 3 is right to include risk, the Government need to say more about what it means in this context. What do they mean by risk? There is not much enlightenment in the Explanatory Notes. Clause 2(6) says that the agency “must have regard to” economic growth or benefits, “scientific innovation and invention” and
“improving the quality of life”.
But that goes without saying.
We also have the statement of policy intent document. It is meant to describe the rationale and intended purpose of the agency. But the document is astonishingly vague, full of buzzwords, and depending in practice on decisions that are yet to be taken. Of paramount importance among those decisions is the appointment of both the first chief executive officer and the chair, who are presented as key to the success of the agency, as
“the first CEO will have a significant effect on the technological and strategic capabilities of the UK over the course of generations.”
The appointment of the CEO by the Secretary of State will therefore, in effect, determine the future of the agency. It is not just a matter of staffing or of finding someone with the skills to run an organisation; it is an appointment that will go to the heart of what the agency is supposed to do. We are still waiting, even though we were told last March that the recruitment process would “soon begin”.
Can the Minister tell us where we have got to? Can he also tell us perhaps what questions the Secretary of State is going to ask the candidates in the appointment process? The appointment process is key, and we need to know more about what the Secretary of State will be looking for when they come to make the appointment. It is also the CEO who will appoint the programme managers.
It is worth highlighting the words of the chair of the Commons Science and Technology Committee, the right honourable Greg Clark MP, who has said:
“The Government's financial commitment to supporting such an agency is welcome, but the budget will not be put to good use if ARPA’s purpose remains unfocused. UK ARPA is currently a brand in search of a product. The Government must make up its mind and say what ARPA’s mission is to be”.
It has been renamed ARIA, but we do not have any greater clarity on its purpose. In my dying seconds, I suggest that its purpose be climate change; ask it about climate change.
Lord Lansley (Con)
My Lords, I am grateful to my noble friend for his introduction to the Bill. Like the noble Lord, Lord Davies of Brixton, I had a feeling that we were being handed the Dominic Cummings vanity project. When I listened to my noble friend on the Front Bench, I thought otherwise. It survives beyond him and very much has a life of its own. I look forward to us helping to define that life.
I also look forward to further contributions from the noble Viscount, Lord Stansgate. There was much that I think he was planning to say which I look forward to hearing in Committee.
As my noble friend Lord Bethell said, we need to define the essence of what we are dealing with and what we need to get into focus. We certainly need to inject a greater sense of purpose into the legislation. Its purpose is to be different from the rest of the research landscape. There is much we can do in the legislation to make that a little clearer so that it does not duplicate the work of UKRI. There are great projects which are the subject of challenges and missions by UKRI and the research councils. We do not want to see those duplicated.
What is distinctive about ARIA? First, as the noble Viscount, Lord Stansgate, mentioned, it is letting go of the Haldane principle—it is not that politicians should be determining the objectives of ARIA, but it should not be bound and controlled by a process of peer review and evaluation. These are missions to be pursued. The project teams may well want to do this in ways that would not necessarily engage the support of their peers. This is why it carries a high risk of failure in the minds of others. In the course of our debates, we need to focus on the legislation and the minds of those who come to run ARIA.
We also need to think about what we do well and where the gaps are in our research landscape. The noble Lord, Lord Patel, referred to the Laboratory of Molecular Biology. I declare an interest—I was the MP who represented LMB. It has done a remarkable job and continues to do so. In the area of molecular biology, it has a focus. It did not always necessarily have a specific research objective in mind, but it was clear about its ability to bring together the very best people with the very best ideas to examine the issues. As a consequence, there were some fantastic discoveries —on DNA sequencing, monoclonal antibodies and X-ray crystallography of proteins. It was the recipient of 12 Nobel prizes—more than any other single research institute anywhere in the world.
We must not say that we cannot do this. The question is where and in respect of what should we do it in future? The LMB also gives us a sense of some of the ways in which ARIA could do its job, by bringing together the very best people into project teams and giving them a direct stake in the benefits—including the economic and commercial benefits—derived from their discoveries. The LMB has done this to the point where people have left the laboratory, set up businesses and then come back into LMB in order to undertake further original research with the objective of doing the same thing all over again with some new discovery.
We want to examine and make sure that ARIA as an agency can be an active investor and participant, perhaps even the originating promoter of these enterprises. I believe that this is the Government’s intention. Potentially, the best researchers in the world—in a different area from the LMB, perhaps in artificial intelligence or an information society—would come here to work with ARIA because they knew they would benefit, and we would benefit as a consequence. We really need to focus on this and make sure that this potential lies within ARIA’s remit.
When we come to examine the Bill, we need to look at it very carefully. Clause 3 is distinctive in mentioning what constitutes “particular weight”. What constitutes transformational research, although it is not called that? What do we mean by a high risk of failure? Clearly, we do not mean a 100% risk. I suspect we do not mean 99% either. The noble Lord, Lord Davies of Brixton, had it right. We have to understand the risk-reward relationship. We are looking for projects where, if the chances of failure are relatively high, the rewards for success are transparently potentially even greater. This is why we are prepared to take the risk and to go down this path.
As we think about this, I hope that we do not slavishly copy the DARPA US business model. We should bear in mind the models that have been found to be successful in this country, including LMB. We should look, for example, at where we have deficiencies—such as in engineering and IT, where there are not sufficient opportunities. We should also look at the way in which Germany has used research institutes like LMB more widely in order to give that sense of continuing focus and objectives in a number of different areas of research. I look forward to our debates on the Bill.
Lord Kakkar (CB)
My Lords, I join other noble Lords in thanking the Minister for the thoughtful way in which he introduced this Bill. I declare my own interest as chairman of the Office for Strategic Co-ordination of Health Research.
It is a pleasure to follow my noble friend Lord Patel and the noble Lord, Lord Lansley, with his very insightful observations. I echo my noble friend Lord Patel in strongly welcoming the proposition by Her Majesty’s Government to create this new agency. As we have heard, it represents a substantial opportunity to broaden the different streams of funding available to drive our broad national research and development effort.
Our nation is particularly successful at delivering research and development. There are many fine institutions. We can all draw attention to many discoveries that have had a profound impact during decades of state-directed research funding. Those research interventions have been built over time. They have been based on important principles, such as Haldane, and on the principle that Governments can define national priorities and that research effort can be directed to try to answer those priorities. It is right, therefore, that Her Majesty’s Government should decide to establish a new agency with a different and distinctive purpose.
By definition, research is attended by uncertainty. It is part of the scientific method. This is not so much a criticism as a recognition that many of the agencies and structures that we have developed, such as UKRI, the research councils and Innovate UK, are obliged to conduct their approach to making funds available for research to institutions and entities beyond the public sector in a way that is somewhat bureaucratic. There has not been the tolerance for failure. Indeed, if anything exists in our system, it is a deep dissatisfaction with a failure of research. Where projects have failed or where it has been considered that public funds have been used inappropriately, there has always been substantial criticism.
For ARIA to be different, it needs to be released from some of the bureaucratic constraints that attend other funding agencies, if it is to achieve its principal objective of being able to support proposals for research that will be truly transformational and have potentially the greatest impact. Therefore, some of them will be attended with the greatest risk of failure. I fully accept what the Minister said in his opening comments, that it would be completely wrong to create a new agency that is constrained exactly by the constraints that attend our current funding agencies.
In equal measure, however, in creating such an independent agency, predicated on the basis that failure must be accepted, the real challenge is the potential for risk. There are three important questions which I hope that the Minister will be able to answer, not necessarily in this debate, but while the Bill is in Committee
The first is to provide clarity about the relationship between ARIA and current existing agencies such as UKRI, the research councils and Innovate UK, but also more broadly in our research funding eco-systems—the charities and others which might have an interest in some of the areas of research that ARIA decides to support. I know that in the other place Her Majesty’s Government were unable to accept amendments to the Bill attending the question of a formally defined memorandum to describe these relationships, and that is acceptable. However, there needs to be absolute clarity about how these relationships will be defined, and how in practice ARIA will sit alongside these other agencies and ensure that there is not unnecessary duplication and waste in terms of its use of public funds, as we have heard, in comparison to what other agencies may be doing successfully at the moment.
The second is the question of accountability. Clearly, it is essential for any public body to have a form of accountability. The Minister spoke about this, and, indeed, in the Explanatory Notes, there is clarity about ARIA having to lay its accounts before Parliament and being subject to review by the National Audit Office. Indeed, as I understand it, the Secretary of State will have to answer for ARIA in the other place.
However, I have a concern in this regard, and it is slightly counterintuitive. Although we will all be very enthusiastic about the establishment of an agency that will tolerate failure, how confident can we be that our system will actually tolerate that failure? At some moment in time, will that failure become too much to accept? It might be that, in terms of the scientific approach—the project-led approach by those driving the agenda within ARIA—it was perfectly acceptable to take that approach. However, let us say that the broader political system, the commentators and others, will not accept it. There needs to be some protection for ARIA by way of appropriate accountability so that it can defend itself against the kinds of criticisms and attacks that might happen in the future when failure starts to occur. In that way it will not be undermined, and what is an important contribution to the research-funding landscape will not be inadvertently or too soon undermined and destroyed.
The final point is that we need to be clear about where this fundamental research, invention and discovery go in terms of the next stage. We should not, of course, replicate the model of DARPA in the United States; it has a completely different purpose. The purpose of ARIA, quite rightly, will be much more broadly defined. There needs to be some clarity about how government departments and other agencies might participate in taking advantage of the benefit of the product of ARIA to ensure that there is continued funding and support so that that translation and ultimate application is not lost.
Lord Borwick (Con)
My Lords, I welcome this Bill. I think it is a bold and exciting project. It takes pride in not being able to predict what it is that will come out of it and in truly giving the science a free hand to lead the way. As has been shown by the original ARIA—the American DARPA—really quite incredible technologies and products can be created in this sort of environment, not to mention in a very cost-effective way for the Government. As was evident in the DARPA challenges, much more money was spent by competitors investing in their individual offerings than the prize money offered by the Government to the winners. This saved the Government millions.
I have just a few comments to make. First, although I appreciate the advantages of accounting officers and responsibility being clearly laid down, the truth is that nobody knows what will come in the future. As I said a moment ago, an agency that can try things out to see if they will work is a very positive step for any R&D project. It is perfectly clear to me, however, from looking at the wording of this Bill, that this agency is more than usually dependent on the genius of the chairman and the chief executive. Because they are given such a free hand, they must be aware of their responsibility—as I am sure they will be—to achieve meaningful gains forward in R&D for UK plc.
There is a lot of money at stake in funding this programme. Taxpayers will rightly want bang for their buck, so it must not be allowed for the challenges set by ARIA to stray away from its serious scientific and technological funding roots. I am concerned that the Bill may not have futureproofed this concept securely. I somehow doubt that a chairman and a chief executive who are recruited after a successful career in the Civil Service will have the right abilities to make the most of this opportunity.
Secondly, the non-executives will be more than usually important in this agency and I therefore support what others will say, or have said, about making certain that they declare their conflicts of interests, if any; but whenever I have been a non-executive director of a business, I have learned many things. Will the non-executives be prohibited from co-investing in the bright ideas come across by ARIA? The sorts of people we want to see appointed as non-executives will be those who have successfully judged risks and are at ease with taking them. Many of these may be very wealthy individuals and they may be very much attracted to the opportunity of co-investing. Some funds that face this scenario run blind pools, where the non-executives may invest but not take any decisions to realise their investment or further invest. Others have a limit of up to, say, 15% of the investee company to be owned by the non-executives of the parent organisation.
All this would take careful thought, and I am sure that the Minister will consult with people who have run similar funds to ensure that robust structures on industry standards for this sort of safeguarding are explicitly set out in the framework for the relationship between ARIA and the department. Furthermore, although the Government chief scientist will be one of the non-executive directors—and that is wonderful—we do not yet know who the others will be. Can the Minister tell the House if he has any further information on this? How will the non-executive directors be chosen and screened? That is a point made by the noble Lord, Lord Davies.
Thirdly, Clause 2(4)(b), states that the conditions under which ARIA provides its support may include provisions under which property is to be restored. It is not clear to me as to whether that is real property, intellectual property, or both. Neither does it say what restored means, and to whom it is restored, or whether it is required to be physically restored or some other interpretation is permitted. Perhaps a government amendment to make this clear would be welcomed.
It will be important for ARIA not to duplicate projects that are perfectly well served by other agencies, just because they are fashionable. I can applaud the Earthshot Prize, but the range of subjects it covered should be enough to discourage ARIA from going for environmental matters, however important they are. Similarly, UKRI has great concentrations on various sectors, and I presume that those sectors are best covered as they are at present. This should not really restrict ARIA, because there are so many problems of a long-term nature. I would like to see prizes given out only for only scientific and physical inventions that are made in the UK. ARIA should not be the vehicle for rewarding individuals for thought or teaching, for example, however wonderful. Can the Minister give the House some clarity on this?
Finally, the Minister said that a framework will be provided for the relationship between ARIA and the department. As so often in legislation, the framework can actually be more important than anything else, but we are told that we are going to see it only after we have passed the legislation. Can we see the draft framework before the end of the passage of this Bill?
Overall, I am enthusiastic about this Bill, and look forward to the slight nips and tucks here and there that I believe are necessary to ensure that this agency has the best shot at being an effective catalyst to— hopefully—so many of the future’s brightest innovators and inventions.
Lord Rees of Ludlow (CB)
My Lords, there is surely general agreement of the worthwhileness of ARIA’s goals. What is less clear is whether the small, stand-alone administrative construct conceived in the Bill is optimal, or indeed necessary, for achieving these goals, especially given the multi-layered and complex structure for science governance that already exists.
Not long ago, we had the major reorganisation of science funding that led to UKRI, introducing a layer of administration above the established research councils, such as the MRC. We have also had Innovate UK, and this year two high-level advisory bodies have been set up to oversee all this, adding yet another layer to the hierarchy. Surely we should be cautious about establishing another entity before these changes are bedded in and prove their worth. As the Minister said, 50 times more funds are spent on existing institutions than are envisaged for ARIA. The priority should surely be to ensure the maximum efficiency and minimal bureaucratic problems in these other organisations.
Confidence and high morale drive creativity, innovation and risk-taking. This is true in blue-skies science and equally true in the often greater challenges of the development of new products or businesses. A motive for ARIA is the perception that existing institutions cannot offer this, but the best institutions still do—I am lucky to work in one. But even in these privileged environments, there are dark problems ahead. My younger colleagues seem even more preoccupied with grant cuts, proposal writing, job security and suchlike. Prospects of breakthroughs will plummet if such concerns prey unduly on the minds of even the best young researchers. Worse still, the profession will not then attract the most ambitious talent from the next generation, nor draw in foreign talents. Many of us worry that the UK’s traditional strengths are consequently in jeopardy.
However, these negative perceptions can be reversed. I will mention two specific gripes that can be addressed. The first is that bodies that allocate public funds focus on ever more detailed performance indicators to quantify the output. This has the best of intentions, but its actual consequences are often the reverse: to constrain long-term thinking and prevent even a minority from having the privilege of fully focusing on long-term problems. The second bugbear is the REF, which is not only burdensome for universities but offering perverse incentives to researchers that discourage risk-taking.
The difference in pay-off between the very best research and the merely good is, by any realistic measure, hundreds of per cent. What is crucial in giving taxpayers enhanced value for money is maximising the chance of the big breakthroughs by backing the judgment of those with the best credentials and supporting them appropriately. Research universities do this and should be cherished. They benefit the nation through direct knowledge transfer from their labs to industry and through the quality of the students they feed into all walks of life. Moreover, high-profile academics can seize on a promising idea from anywhere in the world and run with it. Let us not forget that, despite the UK’s strength, at least 90% of the best ideas come from the rest of the world.
Despite these strengths, our universities are not always the most propitious environments for projects that demand intense and sustained effort. Dedicated laboratories such as the LMB are, in some contexts, preferable. Indeed, our national strength in biomedical sciences stems from the existence of laboratories allowing full-time long-term research, which is getting ever harder in today’s universities. Moreover, UK government funding is massively supplemented by the Wellcome Trust, the cancer charities and a strong pharmaceutical industry. To ensure effective exploitation of new discoveries, research institutions must be complemented by organisations, whether in the public or private sector, that can offer adequate manufacturing capability when needed. This fortunate concatenation certainly proved its worth in the recent pandemic. Government and private laboratories are crucial in health, plant science and energy. We may need more of them, and also more innovative ways perhaps of ensuring that IP generated here is optimally exploited.
However, given this complex ecology, do we need an ARIA organisation to achieve ARIA’s aims? This does not seem clear. ARIA’s proponents think that UKRI’s bureaucratic features are chronic—that we must be fatalistic about this and offer a lucky few the chance to bypass it. Indeed, UKRI has a very broad mission and is working hard to reduce bureaucracy, but much of it is imposed by government regulations. Can the Minister tell us why there could not be within UKRI a separate fund for supporting some projects in the ARIA style via a ring-fenced part of its budget that was less constrained by Cabinet Office and Treasury controls, which slow things up and constrain experimentation in funding allocation mechanisms? Could the Industrial Strategy Challenge Fund, a pan-UKRI programme, also achieve some of ARIA’s goals if bureaucratic constraints on it were loosened?
Finally, retaining our scientific standing is crucial. The UK will decline economically unless it can ensure that some of the key creative ideas of the 21st century germinate here and, even more, are exploited here. Unless we get smarter, we will get poorer.
Baroness Neville-Rolfe (Con)
My Lords, it is a great honour to follow the noble Lord, Lord Rees of Ludlow, one of our most distinguished scientists. I agree with him about the modern excess of performance indicators and the valuable contribution the private sector can make. I am very grateful to my noble friend the Minister for his clear exposition of the purpose of the Bill, and I declare my interest as a director of Health Data Research UK—which is largely funded by the Medical Research Council—and of Capita plc.
I am not a scientist. Indeed, perhaps because I went to an all-girls school in less progressive times, I have never had a physics or chemistry lesson in my life. I have, however, always been a huge proponent of scientific innovation and invention and everything that encourages them, from academic excellence to fostering a culture of enterprise. As a former Minister for Intellectual Property, I also regard a sound framework for the protection of IP as a vital necessity.
The context of these proposals is important. I congratulate the Chancellor on an assured Budget performance in very difficult circumstances. There was a cheering ending for those like me—watching from the Gallery—who believe that high taxes hurt the economy, and enterprise and innovation. I would single out his welcome extension of R&D tax credits to cloud computing and data costs, the shift to focusing tax relief on domestic rather than overseas research, and the increase in the UK R&D budget to £22 billion by 2026-27, which is 2.4% of GDP and a cash increase of 50% by the end of the Parliament.
I did, however, find one moment chilling: the growth forecast of 6% in 2022, 2.1% in 2023 and a miserable 1.3% in 2024. This is, of course, not the Chancellor’s fault. It is an OBR forecast, and we need to do all we can to prove it wrong. I want to see growth overshooting substantially. That brings us to innovation and its companion, productivity. We need major change to bring about a new dynamism in our economy so that growth takes off and is sustained. We can build on the success of the Covid vaccine and the legacy of our multiple Nobel Prize winners.
The proposal for ARIA is the most radical I have seen in my time in this House. It sets aside all the most cherished Whitehall controls which envelop all other agencies. It would create a significant, truly blue-sky research base not subject to normal constraints other than, of course, the financial limit. My view—which I think is widely shared if the discussion in another place is to be believed—is that it is both welcome and timely, given the country’s needs.
Given the greater freedom that the new agency will have, the choice of the right people to lead it will be vital, as my noble friend Lord Borwick said. That poses two questions: who will these be, and who will decide on them? I will be interested to hear from the Minister how that vital but difficult task will be managed.
On one illustrative point, we should certainly not specify how the new body should go about its work, as some parliamentarians have already tried to do. That would be absurd. Neither this House nor the other one, nor indeed Her Majesty’s Government, is likely to be the best authority on the development of science over the coming years.
Perhaps not for the first time, I am in a different place from my noble friend Lord Bethell. Societal challenges and fashions move on, as we saw with the pandemic itself. I believe we need independent thinking and that the agency should decide its own programme.
Normally in our debates I press at this point for the provision of a cost-benefit analysis of the proposal. Today I will not do so—I cannot see how such an analysis could be done before the new body is established—but we will need checks and reporting by the agency. I suggest that we need annual reports, while recognising that judgments of success will not be possible for several years and that patience and tolerance of failure are needed, as the Minister has said. However, eventually it will be possible to assess both successes and missteps, and we should not hesitate to do that. As one example, we should have a requirement in the Bill for the agency to make a full assessment of its work ahead of the 10-year dissolution power in Clause 8 so that we can determine objectively whether the experiment should be continued.
In all this, I am influenced by what I have learned of success elsewhere—for example, about the Manhattan Project. I was lucky enough to visit New Mexico before Covid and to learn from its museums, and those who have spent careers in the nuclear industry, of the importance of the people you put in charge of such a project, and of giving them responsibility and space. Those are the two concerns that I have already alluded to. In New Mexico the team was literally hundreds of miles away from any stakeholders.
As some of you will know from my Zoom backdrop, I am an enthusiastic student of the 18th-century Staffordshire potters. Stoke was the Silicon Valley of its day and mushroomed in a way not unlike the pop music business 200 years later. The entrepreneurs pioneered brilliant new chemical techniques and competed in a vibrant and growing consumer market right around the globe. Focus, competition and the stealing of each other’s ideas and master craftsmen were everyday occurrences.
Look at the rise of Japanese, Korean and Taiwanese manufacturing in the 20th century. They copied a lot but that was a skill that drove growth, and there developed in Japan a vital intellectual attitude—“lean thinking”, pioneered by Toyota—which has been an inspiration to successful businesses right round the world. Unfortunately, it has yet to be fully established in the public service or the NHS—but I threaten to digress.
This is a worthwhile initiative. I support the Bill’s Second Reading and look forward to its progress through the House.
Baroness Noakes (Con)
My Lords, it is always a pleasure to follow my noble friend Lady Neville-Rolfe. Like her, I support the Bill. My interest in research and development is not in the science per se but in its link to productivity and growth. I see it as a driver of economic gains and wealth creation and, as my noble friend said, that is important in the context of the economic situation we are facing.
Noble Lords will know that I am not a big-state person. My instincts are to keep government and the public sector well out of the way of the business of wealth creation. However, I back the Bill because I know we cannot rely on private sector enterprise or the research programmes of universities or elsewhere to optimise outcomes for UK plc. Of course there are some fabulous examples of successful research leading to genuinely world-beating and commercially successful products and services, but I do not believe that the UK has maximised the potential in and for our nation. So I am prepared to try another way. We should be thankful that Dominic Cummings was determined to create a UK version of the US ARPA. I know it is not fashionable to say that Dominic Cummings did anything of value but I believe he deserves credit for driving this idea forward.
I see ARIA as a once-in-a-generation opportunity to break out of the old way of doing things. As has been said, this means not only accepting failure but welcoming it. Traditional ways of thinking about how public money should be spent do not accommodate failure, and successful careers in public sector organisations rarely have failure in their foundations. ARIA has to be able to take much bigger risks than any normal public sector body would dare to take.
A crucial part of this is to ensure that the new agency is headed by outstanding people with vision and intellectual boldness. These people do not exist in large numbers. As other noble Lords have referred to, I know that the Government have been pursuing the key appointments of the first chief executive and first chairman, but I understand that the recruitment process for the chairman has been deliberately paused. I hope that my noble friend the Minister, when he winds up, will say something about where the Government have got to with these appointments and the timescale to which they are now working.
The composition of the whole board will also be important if ARIA is to operate outside the risk-averse culture of the public sector. I hope that, when the non-executives are appointed, the Government will focus on genuine diversity rather than ticking Equality Act boxes. Genuine diversity means people with diverse mindsets and thinking patterns, and it means people who reject groupthink. The worst possible thing would be a board that squashed risk-taking and innovation. To that end, I believe that the Government should not appoint any civil servants to the board—with the possible exception of the Chief Scientific Adviser, who is mandated under the Bill. I propose to explore that further in Committee.
Another crucial element is that we should not tie the organisation up in bureaucracy. For that reason, I fully support the exemption from the Freedom of Information Act. If noble Lords wish to pursue this in Committee, as I expect they will, I hope they will remember that Tony Blair, the architect of the freedom of information legislation, said that it was
“utterly undermining of sensible government”.
If it undermines sensible government, what would it do to a groundbreaking organisation such as ARIA? It does not bear thinking about.
I also reject the notion that the Government should be setting an overarching strategy for ARIA. What ARIA focuses on should be the product of the big brains that I hope the Government will be appointing to the organisation. It should not be forced into following the political thinking of the day. The Government have plenty of other opportunities to promote things on their own agenda. We have to set ARIA free in this important respect.
I shall want to explore in Committee whether ARIA should have the power to borrow money. An unconstrained borrowing power, as found in Schedule 1, is dangerous. I support the initial commitment of £800 million because it is limited. We can draw a circle around it and, at some stage—not too early—we can see whether the nation is getting value for money. A power to borrow money could allow it to increase its scale very significantly and, under the well-established doctrine of standing behind, that could leave taxpayers picking up a much bigger bill than £800 million. There is a big difference between placing an £800 million bet, which might produce nothing in return, and underwriting someone’s credit card.
I look forward to the Bill becoming law and to starting a new chapter in the UK’s exploitation of its talent and resources.
Lord Broers (CB)
My Lords, I agree with this proposal. We need an advanced project agency similar to ARPA. However, in setting up this agency, it is important that we understand what makes these agencies successful, and I think we are on the way.
To declare my interests, I worked for IBM in the USA for about 30 years, in its research and development laboratories and as a member of its corporate technical committee and science advisory committee. Additionally, and related to the US agencies, this year I chaired a sub-committee of the Draper prize committee of the US National Academy of Engineering. The Draper prize is the academy’s top prize. It has been awarded to those responsible for ARPANET, GPS and several other outstanding achievements of ARPA and DARPA over the years. The Queen Elizabeth prize for engineering has also been awarded to those responsible for the internet and GPS. I also declare that I drew together and chaired the first committee of judges for that prize.
Therefore, I have spent a lot of time studying how these remarkable accomplishments were realised and the characteristics of those responsible for their successes. As has been extensively discussed over the last year, ARPA and DARPA have contributed significantly to the dominance of the US in many high-technology industries, but of course they have not done these things on their own. They have drawn on industrial companies, other government agencies and universities, weaving together diverse capabilities to provide solutions to perceived needs. They did not invent these solutions, although many inventions emerged in developing them. Their genius was in pulling together the ingredients from the vast worldwide reservoir of science and technology. Their project leaders were noted for their breadth of expertise. They are a select group of highly talented individuals with exceptionally broad knowledge of science and engineering, and of the interfaces between the scientific disciplines—people who, for example, can tell whether a problem encountered in a highly complex computer-controlled system is a software or a hardware problem, or a matter of the science.
These exceptional people are paid a lot of money by UK standards. They are also obsessively focused on attaining the goals of the system that they are building and are not easily tempted to explore the new discoveries that invariably emerge when one builds new equipment. That is the regime of science, where the aim is to explore and extend human understanding. It is not the stuff of a project agency. In the USA, it is handled by the National Science Foundation. I have asked my friends in the US whether it would be a good idea to put their ARPA inside the National Science Foundation. They just laughed. To quote Dr Highnam, the ARPA project manager and office director who spoke to the Commons Select Committee on Science and Technology:
“DARPA is not a blue-sky research place; we do not do that. Even with our fundamental research we know where it will be applied if we can make the science possible, all the way through to the higher technology systems programmes.”
They are not LMBs, which are temples or palaces of scientific genius, not project agencies. ARIA must select leaders who think like project agency managers and have this vast reservoir of knowledge. It is about project management and combining the knowledge and expertise that already exist, more than it is about invention, despite the name that has been given to this agency. I crossed out “inappropriate” but the noble Viscount, Lord Stansgate, sounded as though he would like to put it back in.
Successful high-technology projects need, as far as possible, to be free from time and money constraints. Therefore, the US agencies have been granted a lot of independence and freedom from continuous assessment —something that has rarely, if ever, been granted by the Treasury here. It is reassuring to see that ARIA is to have a minimum life of 10 years. This does not mean that it must be isolated. It will need to have close relations with Innovate UK, drawing from it the raw material of technological advancement and knowledge of where the skills to effectively apply what innovators have already extracted from the science reside. It must also have intimate knowledge of what is happening in industrial R&D laboratories and in universities. It will not be easy to be clear about the interface with Innovate UK, because Innovate UK was itself given many of the aims that have now also been given to ARIA.
The major advantage of forming this new agency is that it will not have to compete directly with the research councils for its funding, nor live within the regulatory structure of UKRI. Fortunately, there have been some very helpful recent changes in the management of Innovate UK, especially the appointment of Indro Mukerjee as its CEO, who understands project management. These changes should enable Innovate UK to play an effective role, working with ARIA, finally to provide competitive technology transfer in the UK.
However, I am still worried that we are at risk and will not learn from the past. After all, if Innovate UK had achieved what it was meant to—to drive technology transfer—we would not need ARIA. I was amazed to read that it was proposed by some that ARIA should be placed within UKRI, ensuring that history would repeat itself and ARIA would also fail by having to compete for funding using metrics designed for science rather than technology transfer. That is not to mention the regulatory structure of UKRI, which, while excellent for pure science, has not been optimum for Innovate UK.
Finally, how will the catapults, which were also meant to solve our technology transfer problem, fit into this confused cluster of councils and agencies? If there was more time—which there clearly is not—I would ask how it all fits with the grand challenges and the industrial strategy, but others have done that.
Lord Patten (Con)
My Lords, the general tone of this debate—one of overall welcome and support for the Bill, in reaction to what my noble friend said in his excellent introduction—was set, if I may say so, by the noble Viscount, Lord Stansgate. I listened most carefully to what he had to say in his entertaining, as well as perceptive, words. I enjoyed it very much, as I enjoyed what his father said a long time back when I was a new Tory MP on the green Benches in the other place, making my maiden speech back in 1979. When I sat down, the then right honourable Tony Benn MP stood up as the next speaker and said all those nice things that you say to a new boy or girl. Very welcome they were, and I thought, “That was very kind”, sat down and thought no more about it until, on the way to the station to go down to the constituency for the weekend, I got a slightly panicky message from my constituency party saying that there was trouble in the party about my maiden speech. I had been a Member of Parliament for only a moment or two and had no idea what I could have said that would have caused any trouble at all until I got off the platform at Oxford station and saw the billboards for the Oxford Times saying, “New Tory Member Makes Maiden Speech Praised by Tony Benn”.
That said, I have four quick points to make. First, I strongly support the Bill, all the more so because it is a manifesto commitment that has been carefully crafted and kept, which does not happen with all government legislation. Long may it become a habit, I say to my noble friend, that we keep our manifesto commitments.
My second remark is that we are setting up for the UK a novel blue-skies body. Everyone else has said this; they are quite right and I will not labour the point. It is right, however, that throughout, our national security, about which we all feel strongly, is protected. Hence the need, contained in the Bill, for ARIA to accept directions from the Secretary of State. I know that my noble friend the Minister said, in his introductory remarks to which I listened carefully and will hold him to, that that is where it would all stop, but the powers must stop sharp there. Ministers must never be allowed to seek to nudge, let alone give direction, to promote other parts of their political agenda. To make up a random example, they must not help the levelling-up agenda by putting something in some part of the country, totally randomly chosen, which might need a leg up.
My general message is “Hands off”, and I look forward to reaffirmation by my noble friend that that will indeed happen. “Hands off” was what got DARPA off to such a cracking start back in 1958. The US is very lucky to have been a leader here, and to have spawned from DARPA a good number of similarly great private sector companies, such as IBM and others.
I have known some of these pretty well, and there has been a bit of copycatting to a very successful degree. Take Boeing, the aerospace company: it has an outfit called Phantom Works, which no one dares, or is allowed, to get near. Or there is Lockheed Martin’s endearingly—indeed trademark—named Skunk Works, which is more difficult to get into than Fort Knox. I must declare my interest as, for some 12 years, I was an adviser and a non-executive director for Lockheed Martin Corporation and my shareholding continues to be declared because it is current in the Register of Members’ Interests. So I know this world a little bit, and I just wish that more UK companies had set up such DARPA-like bodies years ago.
Thirdly, the quality and imagination of the leadership of this new body will be absolutely critical. The noble Lord, Lord Davies of Brixton, was thinking about who might be served up to the Secretary of State and what might be in the Secretary of State’s mind. The noble Lord, Lord Patel, said in his admirable remarks that one of the most important things of all is getting the leadership right. We do not want to have a head hunt as they will be queuing up to earn an honest pound by producing lists of the same old—with respect—FRSs and Nobel Prize winners and the great and the good of the scientific world. We need them to find someone daring, free thinking and original, but of course, responsible, committed and scientifically knowledgeable.
Here I have no interest at all; I have never met, communicated or worked with her, but I think the now—happily—Dame Kate Bingham has just those qualities that some man or woman could well replicate. Some noble Lords will remember her transformation from zero to hero. When she was first given the job by HMG she was excoriated by the worst sort of commentariat and media people, and suddenly, six months later, she was a national hero. So I would like my noble friend the Minister to undertake to pass on my remarks to the Secretary of State in these terms: appoint sensible risk-takers, not referees.
Lastly, I strongly support the determination of the Government to keep the endless FOI regime from getting further and further into it, opening the door of a small, highly staffed and not hugely financially endowed body with the specific mission to risk failure to those tendentious inquiries and time-wasting journalistic fishing expeditions to get a story in which they can say that something has failed. We can all see that coming.
I greatly hope that the Bill is a success and I look forward to it passing. Who is to say, the work of ARIA might even help to solve one of the great mysteries of the day: why the UK continues to have such low levels of productivity.
Lord Ravensdale (CB)
My Lords, I very much welcome the Bill, and it comes at an extraordinary time for scientific progress in the UK and around the world. I first declare my interests as an engineer and project director working for Atkins, and as a director of Peers for the Planet.
As we look to accelerate R&D spend in the UK, it is right that the Government look at the means of delivering that spend, learning from the most successful similar institutions around the world, notably DARPA, from which ARIA takes its inspiration, as many noble Lords have said. ARIA certainly takes one lesson of DARPA to heart: getting bureaucracy out of the way and letting a high-calibre team deliver high-risk, high-reward research. But there are two other lessons of DARPA that are important: first, a clear purpose for the organisation—in DARPA’s case, national security; and, secondly, a client to take on and translate the innovations produced by that organisation—in DARPA’s case, the DoD. This perhaps becomes more important for ARIA. The £800 million is a generous amount of funding, but relatively small in the overall R&D landscape. To maximise the impact of this funding, the Government must carefully consider what the organisation is driving at, as the noble Lords, Lord Patel and Lord Bethell, and others, have said.
The question then becomes: what should the purpose of ARIA be? It should be aligned with the strategic priorities of the nation, and foremost among these are the UK’s net-zero targets and environmental goals, as the noble Lord, Lord Davies, said at the end of his speech. Giving ARIA a sustainable purpose will still allow a flexible approach to research, while at the same time aligning with the innovation strategy, which highlights the need to direct innovation towards
“our top priority societal missions … like the climate and biodiversity crises”.
The recently published UK Net Zero Research and Innovation Framework does not mention ARIA, but stresses the importance of a whole-system approach to address the challenge of net zero. I would be grateful if the Minister would confirm how, without mention of our net-zero or environmental goals, ARIA will align with the Government’s broader objectives of net zero and, in addition, the mission suggested by the new Council for Science and Technology.
I have recently spoken with Professor Richard Jones, who has been involved in much of the thinking on the formation of ARIA, and a number of other academics who agreed with alignments with net zero and environmental goals being a suitable focus for the organisation. This represents an excellent opportunity for the Government to maximise the benefit from the £800 million funding; to demonstrate to international partners post-COP a new model for climate and net-zero R&D; and to develop the new technologies which we will need to help the UK and the rest of the world achieve our targets.
A final point is about how this organisation fits into the levelling-up agenda. The Government must carefully consider the location of the headquarters of ARIA. Another lesson learned from DARPA was that its headquarters location was fortuitously away from some of the main research centres of the United States, thus avoiding inevitable capture of research funding from institutions in a particular area and encouraging take-up of ideas from all parts of the country. I would be grateful if the Minister can add something in his summing up on how the Government intend to select a location for ARIA HQ.
As we all know, DARPA was formed in response to the panic following the launch of Sputnik in 1957. I believe that the response to the climate and nature crises should mirror the response so long ago to a very different threat in rethinking our innovation systems, and I hope that ARIA has a key part to play in that response. I look forward to putting forward amendments in these areas as we move forward to Committee.
Lord Fox (LD)
My Lords, this debate has benefited from all the speakers knowing what they are talking about—I think this is the point at which that ends. It is a difficult debate to seek to summate, but before I try, I shall make a couple of general points. The first is about funding. As my noble friend Lord Clement-Jones said, the Government have pushed their science spending back by two years and down by a couple of billion. That puts us in the position of spending 1.1% of GDP of government money. The Government’s target is 2.4%, so how will the Government raise the rest of that money? It just got harder: analysis by the Campaign for Science and Engineering indicates that, because the Government have pushed that deadline two years further into the future, it will result in a loss of around £11 billion of private R&D funding, so some words on that would be appreciated.
Secondly, the noble Lord, Lord Bethell, spoke about orientating the future ARIA around clear societal challenges, and a number of your Lordships set out lists, not least the previous speaker. I join him in suggesting that this country’s response to the biggest challenge that we face—climate change—is a real rallying point that this agency could pull around.
I shall now move to the specifics of the Bill. The noble Lord, Lord Davies, was a little disparaging about the Minister’s enthusiasm in delivering his speech. I beg to differ. I have sat through many speeches of the noble Lord, Lord Callanan, and I thought this one showed traces of bravura to match the ARIA that he is proposing.
We have heard from almost every speaker that there are many questions about what this agency is for: how decisions will be made, how the organisation will go about delivering funding and how it will do its job, never mind what its job actually is. When the Minister kindly met us, he said that most of these questions would be answered when the CEO and the chair were appointed and the framework agreement was written—but the problem is that all of these appear after the Bill reaches Royal Assent.
This is a crucial point. The framework document is instrumental in how this agency will interact with existing funding organisations. Perhaps it may even set out the risk and reward balance; a number of noble Lords brought up this important point. It should indicate how ARIA operates with the Government and the relationships it will create with its clients. It will be the essential operational blueprint between the Government and the agency but, of course, we will not know all of this. We are not allowed to know all of this. In other words, the Bill is an £800 million blank cheque. We effectively know nothing about it. There are some broad, impressionistic brush strokes but, like many such paintings, those are open to interpretation. One of the reasons we are all able to welcome this agency is because none of us know what it is.
The Government say that ARIA will diversify UK R&D funding streams by having the autonomy to choose and fund high-risk programmes across different research areas—which sounds quite good—and that the creation of ARIA does not impact the UK Research and Innovation’s system-wide responsibilities for R&D. This is the big elephant in the room, because however you look at it, the setting up and positioning of ARIA is an implicit, if not explicit, criticism of UKRI. For example, there have been a number of comments about the level of bureaucracy within UKRI. I would remind your Lordships that UKRI is only three years old and a Conservative Party invention. The research bureaucracy we are talking about is the creation of the Benches opposite. When it was being established, there was a lot of questioning about whether Innovate UK should be incorporated within UKRI; I was one of the people who questioned this. We were assured at the time that UKRI would have no problems funding and managing such diverse streams of research and post-research activity.
So, there are issues, but we need to be careful. The way in which ARIA was invented and set out is, of course, to deliver a different sort of agency, but it was also a deliberate attempt to create an anti-UKRI. It is there to counterpoint the issues that were perceived within UKRI, and in our enthusiasm to embrace the unknown and the new we have to be very careful not to throw out the great things that are being delivered by UK science and by the funding that is going through.
I am very interested by today’s announcement that the Government have decided to have a review of UKRI taken through by BEIS. It would be good if the Minister could tell us a little bit more about the objectives of that review. Those who will carry it out could do no better than to heed the words of the noble Lords, Lord Rees and Lord Broers, who had some very wise things to say.
My noble friend Lord Clement-Jones described the string of publications and activities addressing the whole research, development and technology sector. Like me, he can discern no guiding light, no golden thread and no actual delivery plan in many cases. The day before recess, one more of these documents landed on our metaphorical doormats: the UK Innovation Strategy, which has yet to be discussed in your Lordships’ House. It is a very long and detailed document. While neglecting to include what may be called a solid plan, it is very strong on analysis. Within that analysis is a quite powerful description of the need to move ideas and inventions more effectively up the innovation pipeline and into the market.
This analysis of the real challenge facing the UK, which I assume to be the Government’s settled view, chimes with things we have heard today and for many years about the UK’s shortcomings. That goes something like: “We are good at inventing things but poor at turning those inventions into thriving businesses that deliver future prosperity.” Yet one of the few things we do know about ARIA is that the “I” stands for invention, the very thing that we think is a national strength. Unlike the noble Lord, Lord Patel, who likes the word, a number of other Peers do not—my noble friend Lord Clement-Jones and the noble Lords, Lord Bethell and Lord Broers, are among them. I question whether it points the research organisation in the wrong direction. I know that it was the subject of an unsuccessful amendment in the Commons, and the Minister will shrug and say, “What’s in a name?” He will pledge that the organisation could operate throughout the technology readiness continuum. It could, but will it? If there was a mission statement, a purpose, and goals and measures, to some extent we would have a better idea, but what we actually have is a name that includes the word “invention”.
Along with the name, the budget is the other thing we know, but that is not what it seems either, because £300 million of the promised £800 million falls outside this spending review period and it falls in the next Parliament, over which this Government can claim no dominion. So, in reality, the budget is for a £500 million commitment for three years, yet the Bill emphasises the need for a long-term process and sets the 10-year minimum that we have heard about which the Secretary of State currently can kill using a statutory instrument. As one of your Lordships stated, the DPRRC is uncomfortable with this, and I am sure we shall discuss it in Committee.
Of course, there is more than one way to kill a research organisation. The Secretary of State of the day has the power to starve ARIA of funds. To create a long-term future, it requires multi-Parliament funding, and the best way to create long-term commitment to ARIA is to gain consensus across the political spectrum. If we all bought into this idea, its future would be much more easily assured. The issue around failure, which I think the noble Lord, Lord Kakkar, was wise to suggest, would also be easier to manage if there was a widespread political consensus.
But far from using this process to bring us into a big tent, the Government are erecting a “No entry” sign. Of course, I refer to the exempting of ARIA from the freedom of information obligations. That is wrong. We think that at least £800 million of public funds will be spent, and there needs to be some accountability. As my noble friend pointed out, DARPA submits itself to the US equivalent of FoI and it seems to have nothing to fear. Of course, in this country, the Information Commissioner’s Office is clear in its opposition. If the Minister wanted to engender mistrust and to sow seeds of suspicion about ARIA, I suggest this is one way he could go about doing it.
To enjoy a long-term future, ARIA needs the whole political spectrum to support it, but how can we support something when we do not know what it is and how it is going to do what it does? Why should we support something when the people proposing it seem determined to hide from us what it is actually doing?
This legislation could have been a chance to gain that necessary consensus, a chance for the Government to set out their stall and explain the role of ARIA, but the problem is that the Government do not know what ARIA is for. They have not made up their mind; they are waiting for someone else—the chief executive and the chair—to tell them what it is for. This was a chance to help put some of those pieces together.
I had the same word written down as the noble Viscount, Lord Stansgate: ARIA is an idea—an idea waiting for someone to decide what it is for. All the decisions taken to establish its role will happen after the debate on this Bill is finished. I would describe that as unacceptable; I look forward to Committee.
Baroness Chapman of Darlington (Lab)
My Lords, it is a pleasure to follow the noble Lord, Lord Fox, and encouraging that there is broad support for this initiative, albeit with some concerns raised by noble Lords on all sides of the Chamber.
As the noble Viscount, Lord Stansgate, said, in his informative and well-informed speech, ARIA needs a licence to fail. I need look no further than some relatives of mine to learn the lesson that repeated failure is often a necessary part of the process. I am distantly related to Orville and Wilbur Wright. They would not have succeeded without years of crushing failure. These self-taught engineers took years and countless attempts to get anywhere close to powered flight, but get there they did. At times, they thought it would never happen, and yet here we are, in 2021, discussing whether there is now too much air travel.
The Wright brothers were, of course, American, but the UK is also a nation with a proud scientific tradition. Alexander Fleming, Dorothy Crowfoot Hodgkin, Francis Crick and Tim Berners-Lee are just some of the names we can look to for inspiration. For a nation with such a proud tradition as ours, it has been disappointing that, for the past decade, the Government have neglected investment in education and our future scientists. Also missing has been sufficient long-term, high-ambition research and development, so it could be that this Bill marks a turning point.
These Benches support the creation of the Advanced Research and Invention Agency, and for that reason we do not intend to oppose the Bill. We will, however, seek to amend it because, in its present form, we do not believe that it properly prepares the agency to succeed in the way that we all want it to do. It is disappointing that the Bill does not offer direction, purpose or mission—as we have been calling it today—for the agency, despite the expectation that it would do so. Various schedules and accompanying framework documents have been referred to but have not yet been made available to noble Lords to assist us in our consideration of the Bill. Without any real accountability or defined strategy, there are obvious concerns that ARIA could end up pursuing vanity or pet projects, rather than the public interest.
We want the agency to work for and invest in all regions and nations, to unlock potential across the UK. We view this somewhat differently from the noble Lord, Lord Patten. Science and innovation have enormous capacity to help address regional inequality and bring opportunities to towns and cities across the four nations of the UK. After all, investment in research means investment in jobs. This will happen if ARIA is given a duty to make it happen. We make no apologies for asking the Government to explain how every region benefits from the £800 million spend, because, as things stand, they are leaving too much of this to chance.
On climate, we meet today as COP takes place in Glasgow, as the noble Lord, Lord Ravensdale, said. ARIA presents an opportunity to enable scientists to do more to find solutions to the threat of climate change. The agency must contribute to action on climate and help in the mission to net zero. That is why the Opposition Front Bench in the other place called for the environmental emergency to be the driving mission of ARIA’s first decade. At that stage, the Government did not want to make climate the priority—and did not want to make anything else the priority either. The danger is that, if we do not prioritise, everything becomes important and less is achieved.
Many noble Lords have made the point that letting a thousand flowers bloom is a lovely idea but if we want to make impact we need to make choices. Labour believes that the prioritisation of climate research is essential. We will continue to put this case to the Government, who may be more receptive to the idea, given the benefits of investment in technology they will have seen at COP. Only through well-defined ambitions such as these can the agency fulfil its potential.
On the issue of governance, as we have heard, ARIA has, in principle, cross-party support, but to stand the test of time the agency does not need a clause in a Bill guaranteeing its survival—as it currently has—as my noble friend Lord Davies explained. I refer noble Lords to the Fixed-term Parliaments Act 2011 as evidence of how to get around attempts of predecessor Governments to bind the hands of their successors. As the noble Lord, Lord Patel, said, the key to ARIA’s survival is that it must act, and be seen to act, in a way that is solely for the benefit of scientific discovery—not following the passions of the chief executive, not benefitting the business associates of any of the board, and with a clear idea of what success looks like, especially given that ultimate success may take years to realise.
Helpfully, in July 2020 the NAO published a paper for the Science and Technology Committee designed to assist the Government in establishing what was then known as the Advanced Research Projects Agency. The report looked carefully at how to balance the independence of what is now ARIA with the assurance that is needed for it to be secure politically. Without this assurance, ARIA will always be vulnerable to attack on the basis of value for money, cronyism or whatever else. I invite noble Lords to imagine the pressure upon Ministers to intervene should it emerge that grants had been given to a company in which a board member, say, or a member of their family, has an interest. We must ensure, therefore, that the public have absolute confidence, not that every venture will result in a scientific breakthrough but that decisions are made in the interests of science alone. It is in ARIA’s own interests to get this right.
The NAO report refers to what it calls the six principles of effective oversight of new bodies that it would like to see ARIA adopt. These are: clarity of purpose; clear alignment of objectives between departmental plans and the new body; a balanced approach to financial risk; a proportionate and transparent approach to oversight; streamlined processes that avoid overlap with other bodies, which was a point raised by the noble Lord, Lord Rees; and taking opportunities to provide greater value by involving the body in policy development. So far, the information available from the Government is insufficient to enable us to assess whether ARIA will meet any of these principles; indeed, some of it has made clear that it will not meet some of these principles. For instance, it has to stop large sums of money being spent on operating costs as opposed to research. What is to prevent ARIA spending large sums of money on projects that benefit close friends or associates?
When I raised this concern with the Minister at the meeting he helpfully organised for us last week, I was advised by officials that, in essence, I did not need to worry about these issues, as Schedule 3 to the Bill would answer my concerns. Following the briefing, I read Schedule 3 and, from my reading, it seems that paragraph 11 amends the definition of “contracting authority” in the Public Contracts Regulations 2015 to exclude ARIA. This means that the obligations in these regulations that apply to a “contracting authority” will not apply to ARIA. It will not be subject to FOI, as we have heard, and it will not be subject to public contracts regulations. This is an issue that we need to return to as the Bill proceeds.
What about ethical issues? What about animal experimentation, publication obligations, intellectual property and conflicts of interest? We will be asking the Government to come up with answers to these questions too.
Often, failure is all part of the long process of discovery. As the Wright brothers show us, it is perseverance, not a quick win, that changes the world. Inventors and scientists need to be allowed to fail, but ARIA does not need to fail. We will challenge the Government on the Bill, not because we want it to fail but because we want it to succeed.
The Parliamentary Under-Secretary of State, Department for Business, Energy and Industrial Strategy (Lord Callanan) (Con)
I thank all noble Lords who contributed for their engaging and, I thought, in general, very constructive contributions to the debate today. Many noble Lords made excellent points, and I will attempt to answer as many of their questions as possible.
Today’s debate, on a tripartite basis, demonstrates a shared passion to foster the UK’s world-class research base. Ensuring that the UK is the best place in the world for scientists, researchers and entrepreneurs to live and work is at the heart of the R&D road map. Despite the small criticisms raised by the Opposition Front Bench, there was generally commitment from all three main parties and from the Cross Benches to those objectives. It is central to the Government’s plan to build back better, and an integral commitment which last week’s spending review and Budget showed.
It is thanks to our dynamic research landscape that we have responded so robustly to the Covid pandemic, as my noble friend Lord Bethell so helpfully reminded us. The challenges that we have faced show just how important it is that we always remain on the front foot of research and development. And, as set out in the UK Innovation Strategy this summer, this can only be achieved through a rich and diverse research and innovation ecosystem.
I now turn to the specific points raised by noble Lords in some of their very good speeches. My noble friend Lord Bethell, and the noble Lord, Lord Ravensdale, asked good questions about why the Government will not be setting a research focus for ARIA’s activities. At her appearance during this Bill’s Committee stage in the other place, the chief executive officer of UKRI, Professor Dame Ottoline Leyser, spoke about how
“the priorities that the Government and Ministers set to solve particular challenges for the nation … fall very much within the UKRI remit”.—[Official Report, Commons, Advanced Research and Invention Agency Bill, 14/4/21; col. 8]
The Government’s innovation strategy also set out our commitment to establish a new missions programme to tackle some of the most pressing challenges confronting the UK in the coming years. These will be decided by the National Science and Technology Council, chaired by the Prime Minister, in due course. Through these new mechanisms, this Government are taking a revised, strategic approach to assessing and funding our national scientific priorities. It would clearly be inappropriate to create another new body to do essentially the same thing. To reach new, brilliant people and ideas, we must diversify our ways of funding research, and I welcome the support of my noble friend Lady Neville-Rolfe on this point. Clause 2 sets out how ARIA could achieve this, offering a broad range of support to R&D and—in response to my noble friend Lord Borwick—we do not expect it to offer prizes as understood in a common sense. What “prizes” refers to in this context is better termed as research competition, where multiple teams of scientists attempt to solve essentially the same problem.
The noble Lords, Lord Patel and Lord Davies of Brixton, asked about ARIA’s scope and objective. The noble Lords, Lord Clement-Jones and Lord Ravensdale, also asked about the technologies which ARIA would fund. The Bill sets out ARIA’s functions, and in the policy statement we have also set out its design principles. But to uphold the autonomy which is at the heart of this new agency, only ARIA’s leadership itself can be responsible for specifically setting out its strategy and its funding priorities. It is not a blank cheque, as the noble Lord, Lord Fox, has suggested.
The noble Lord, Lord Rees of Ludlow, in his contribution asked whether what we are trying to achieve through ARIA could be delivered through UKRI. I reassure the noble Lord that, in designing ARIA, we carefully considered all delivery options to optimise its chances of success. The noble Lords, Lord Clement-Jones, Lord Kakkar and Lord Broers, also asked about how we make sure that ARIA will work hand in hand with UKRI and the wider research landscape. Of course, while we are diversifying our system, it will only work if it is cohesive. It is not always necessary to legislate for these sorts of relationships. Communication, openness and trust are things which ARIA’s leaders will need to have not just with UKRI but with other stakeholders across the entire ecosystem. We have been looking for exactly these qualities in our recruitment of ARIA’s CEO. I pay tribute to the creation of UKRI and the bringing together of the research councils and Innovate UK under one umbrella, a point that was noted by the noble Viscount, Lord Stansgate. His was an excellent contribution, and I hope we can look forward to further from him on this subject.
Viscount Stansgate (Lab)
My Lords, I thank the Minister, and would like to invite him and the Government Whips to approach Hansard and ask them to publish in italics the half of my speech which had to be cut.
Lord Callanan (Con)
I am sure it was equally as good as the first half of his speech and that the Whip has taken careful note. It is a principle of our Committees that we try not to have the same speeches we got at Second Reading made again—a point most Members tend to ignore—so the noble Lord is well positioned to make a new contribution in Committee. Most other Members could perhaps take note of the excellent example that he will be setting them.
I also recognise the sentiment of the noble Lord, Lord Rees of Ludlow, that the setting up of UKRI was not that long ago in the grand scheme of things. With an £8 billion budget, UKRI has system-wide responsibilities and with this comes a certain operating model. I refer the noble Lord, Lord Fox, to Professor Leyser’s other comments, where she said at her select committee appearance that UKRI’s responsibility to make the whole system work sometimes makes it harder to do the wild experimental things.
In contrast, as enabled by Clause 3 of the Bill, which has been the focus of a number of contributions from noble Lords, it is ARIA’s mandate to do the experimental things and push the frontiers of science. To achieve this, it must have a streamlined structure and minimal bureaucracy. In response to the noble Lord, Lord Rees, this goes beyond what is possible or desirable under the legislative framework and governance arrangements in place for UKRI as the system’s core funding agency.
In reply to the question put by the noble Lord, Lord Fox, as part of any Parliament it is usual to review our partner organisations to ensure that they are successfully fulfilling objectives on the Government’s behalf. The independent review of UKRI to which the noble Lord referred began yesterday under the leadership of Sir David Grant, and it will be reporting to Ministers in due course.
The noble Lord, Lord Rees, also mentioned a very important point about how ARIA’s success will be measured without constraining creativity. There are is a key point I would like to put to the noble Lord here. One of the key features of the ARIA model is its hands-on approach to project management, with projects constantly being re-evaluated and reassessed. ARIA’s agility means that programmes can not only start quickly, but they can also be halted quickly too. ARIA should not be judged on projects that fail in the short term because that is the nature of high-risk research.
The noble Lord, Lord Kakkar, in one of his typically excellent contributions, asked about how ARIA can truly be risk taking as a government arm’s-length body. We will have both legislative and non-legislative mechanisms to enable ARIA to operate boldly and autonomously. Clause 3 in the Bill equips ARIA to give particular weight to the potential benefits of high-risk research in carrying out its functions—not just what research it funds, but how it funds it. We will also set out in a future framework document and other agreements, a unique and specific set of financial and non-financial arrangements to cut unnecessary bureaucracy and ministerial control from ARIA’s operations. I hope that will also allay the concerns raised by the noble Lords, Lord Patel and Lord Broers, on protecting ARIA from day-to-day political pressure. The independent review of research bureaucracy being led by Professor Adam Tickell will also consider bureaucracy from a system-wide perspective. Interim findings will be produced this autumn, and we are expecting a final report to follow in early 2022.
In terms of governance, the noble Lord, Lord Patel, asked who the senior Minister with responsibility for ARIA will be. As my noble friend Lord Patten helpfully reminded us, as a manifesto commitment ARIA is a priority for the Prime Minister and the Cabinet. The Bill provides a specific role for the Secretary of State and any delegation of ministerial responsibility would be at the Secretary of State’s discretion.
I move on to the decision to exempt ARIA from freedom of information requests, which was raised by a number of noble Lords: the noble Lords, Lord Clement-Jones, Lord Davies of Brixton and Lord Fox, and the noble Viscount, Lord Stansgate. I reassure the House that the decision to omit ARIA from the FoI Act has not been taken lightly. To create the extraordinarily lean operating system that I have spoken about, we have had to consider what the most appropriate mechanisms to assure transparency and accountability are within ARIA. I thank my noble friend Lady Noakes for her support on this. Together, robust arrangements are in place that will provide a clear picture to Parliament and taxpayers about how ARIA’s activities are funded and where it spends its money. So I politely refute the views of the noble Lord, Lord Fox, on this.
First, the Bill requires ARIA to submit an annual report and a statement of accounts, which will be laid before Parliament. Secondly, ARIA will be audited by the National Audit Office and will be the subject of value-for-money assessments. Thirdly, ARIA will interact with Select Committees of this House and the other place in the normal way. Finally, we will draw up a framework document, detailing ARIA’s relationship with BEIS and further reporting requirements, such as details of what is published in the annual report. It is also an important fact that other bodies subject to the FoI Act, such as universities and government departments —including my own, BEIS—will still process requests about their activities with ARIA in the usual way.
The noble Lord, Lord Clement-Jones, made a comparison to the number of FoI requests in DARPA. It is an interesting fact that, when making an FoI request in the US, requesters are required to consider paying applicable fees of up to $25—I think that that is an excellent idea. If requests are expected to exceed this cost, the requester is notified to agree additional payment. While fee waivers or reductions can be granted in certain circumstances, there is not a like-for-like comparison to the FoI process in the UK, where, as I am sure the noble Lord will be aware, we get hundreds of what I call “sweeping requests” from people fishing for information when they are not really sure what they want but think that there might be something there, so they pour in FoI requests. Therefore, it is not right to assume that ARIA will receive a similar amount of FoI requests to DARPA.
The noble Lords, Lord Clement-Jones and Lord Fox, and my noble friend Lord Borwick asked about whether the Government will publish the framework document during the passage of the Bill. I should be clear that the framework document will not set a vision or strategy for ARIA—as I have said, that is for the organisation itself. It is a governance document that will follow the Treasury’s standard template and set out the role of BEIS as ARIA’s sponsoring department, its accountability, decision-making and financial management. Given the nature of its content, the framework document must be agreed with ARIA’s senior leadership, for which we are still recruiting. We are therefore not able to publish a draft framework document at this stage, but I would like to reassure the House that I will do so as soon as I am able to.
I thank the noble Baroness, Lady Chapman, for her general support, from the Opposition’s point of view, for the Bill. She rightly asked about the provisions in the Bill to exempt ARIA from public contract regulations and how we assure the appropriate propriety. We have provided a non-legislative commitment for an independent internal auditor to report on ARIA’s procurement activities, demonstrating transparency and good governance. ARIA’s framework document, which I just referred to, will also set out the expectations for conflict-of-interest procedures, in line with practice across government. I thank my noble friend Lord Borwick for his thoughtful comments on this. However, as a further safeguard, Schedule 1 provides the Secretary of State with the power to set out a procedure in legislation should it be required in the future. We will bring forward draft regulations for this power, for illustrative purposes, as the Bill goes through the House.
The noble Lord, Lord Davies of Brixton, and my noble friends Lady Noakes and Lord Patten asked about how we attract these high-risk ideas and the exceptional people who will pursue them, or, as the noble Viscount, Lord Stansgate, eloquently put it: today’s Alan Turing or Barnes Wallis. The recruitment campaign for the CEO launched on 1 June and will aim to conclude in the coming weeks. We are looking for the ability to provide inspiring leadership to high-performing teams.
In response to my noble friend Lord Borwick, we will soon be launching campaigns for the chairman and other non-executive members through an open and fair ministerial appointments process so that we are able to recruit the right talent to work alongside the CEO as a complementary leadership team. We recognise the need to ensure a competitive salary for this position and are in discussions with the Treasury. I will update the House as appropriate.
I welcome the considered contributions from my noble friend Lord Lansley, the noble Lord, Lord Kakkar, and the noble Viscount, Lord Stansgate, on the Haldane principle and ARIA’s use of peer review. It is right that at its core this is about scientists judging ideas on their merits, and that is at the heart of ARIA’s approach. However, the concept that funding proposals should be assessed by peer review is embedded within the Haldane principle, and I agree that that will not always be appropriate for ARIA, which will have an innovative approach to funding and will seek to empower exceptional scientists to start—and stop—projects quickly.
The noble Lord, Lord Patel, asked about research cost sharing, by which I assume he means with universities. We are considering the appropriate arrangements for funding research projects in universities to ensure both that they are properly costed and that those costs are met to enable transformative scientific research. Details on expectations for ARIA in that regard will be set out at a later date.
My noble friend Lord Borwick queried the definition of “property” in Clause 2. The Bill uses the definition “that which a person owns”. In exercising its functions, ARIA may acquire and own both physical property and intangible property, such as intellectual property. “Restoration” means “to return”, so ARIA can own a piece of research equipment that it can loan out on the condition that it is returned to ARIA within a specific timeframe. I hope this clarifies the issue for my noble friend and that he agrees that an amendment is therefore unnecessary.
Lord Fox (LD)
I do not wish to labour the property point, but if ARIA is not doing research then I do not understand why it would own research equipment. Sorry, I am confused.
Lord Callanan (Con)
It can fund the purchase of a piece of research equipment, which ARIA then owns, and it can loan it out on the condition that it is then returned within a specific timeframe. I am not quite sure why the noble Lord is confused but perhaps we can return to this issue in Committee.
I have tried my best to address most if not all of the points that have been made today. I am sorry to detain the House at such a late hour but I am deeply encouraged by its general support, albeit with some reservations, for the dedicated funding of high-risk research. I look forward to continued engagement with all sides as we progress the Bill through the House. I therefore commend the Bill to the House and beg to move.
Advanced Research and Invention Agency Bill
(3 years ago)
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Lord Callanan
That it be an instruction to the Grand Committee to which the Advanced Research and Invention Agency Bill has been committed that they consider the bill in the following order:
Clause 1, Schedule 1, Clauses 2 to 7, Schedule 2, Clauses 8 and 9, Schedule 3, Clauses 10 to 15, Title.