House of Commons

Tuesday 23rd November 2021 Commons Chamber

Tuesday 23 November 2021

The House met at half-past Twelve o’clock

Prayers

Tuesday 23rd November 2021 Commons Chamber

[Mr Speaker in the Chair]

Oral Answers to Questions

Tuesday 23rd November 2021 Commons Chamber

The Secretary of State was asked—

[John Howell (Henley) (Con)]

1. What steps his Department is taking to integrate health and care services.

[The Secretary of State for Health and Social Care (Sajid Javid)]

We are committed to the delivery of world-leading health and social care across the UK. The Health and Care Bill will ensure that every part of England is covered by our integrated care boards and integrated care partnerships. This will remove the silos within the NHS while supporting the NHS, local authorities and the wider system of partners to join up healthcare, social care and public health services to achieve the long-held ambition of more integrated care.

[John Howell]

Will the Secretary of State come with me to visit Townlands Community Hospital in my constituency, where we have built into the process of keeping the hospital going a real potential for the integration of NHS and social care services? It would be very good if I were able to share that with him.

[Sajid Javid]

I would be pleased to visit the hospital with my hon. Friend. I know that the site to which he refers is multi-disciplinary and provides rehabilitation and palliative care together and is doing well at it. I know also that it is an excellent example of good integration at work.

[Mr Speaker]

I call the shadow Minister.

[Justin Madders (Ellesmere Port and Neston) (Lab)]

I apologise for once again returning to the subject of integrated care boards. One important question remains unanswered following yesterday’s debate. If we are to have truly integrated health and social care, all voices need a seat at the table: public health; social care; mental health; the workforce; and, of course, patients and carers. As matters currently stands, there is nothing guaranteeing each of those groups a seat at the table. I am sure that the Secretary of State will agree that none of them should be missed out, so what will he do, for example, if an ICB decides to exclude the patient’s voice?

[Sajid Javid]

That is an important point, which is why the Government have listened to it. The hon. Gentleman will know that a lot of consultation was done before the Bill that he refers to was presented. In terms of voices around the table in the ICB, we have deliberately set up a permissive system that allows those local voices to be catered for, and for local decisions to be made. While there are minimum requirements, there are no maximum requirements.

[Jane Hunt (Loughborough) (Con)]

Humphrey Perkins School in my constituency had carried out all the necessary preparations ahead of its anticipated roll-out of the vaccine prior to the autumn half-term. However, the day before, the school was informed that the roll-out would be postponed until 30 November. Please can my right hon. Friend set out the reasons for this delay, and will he confirm that this date will not be pushed back again, as that could have an impact on transmission between local adults, among which cases have increased recently?

[Mr Speaker]

Unfortunately, that question is not relevant to Question 1. We will come back to it as a substantive question later.

[Jim Shannon (Strangford) (DUP)]

When it comes to the integration of health and care services, it is very important that we have early diagnosis. The covid-19 pandemic has shown that there are some 200,000 potential type 2 and type 1 diabetics. What can be done to address the issue of diabetes, speaking as one who is a diabetic?

[Sajid Javid]

The hon. Gentleman is absolutely right to raise that as one of the unintended impacts of the pandemic. The reassurance that I can offer him is that there is close co-operation across the devolved Administrations when it comes to working on those impacts. NHS England is working with the health service in Northern Ireland to see what more can be done.

[Jacob Young (Redcar) (Con)]

Can the Secretary of State outline the ways in which yesterday’s votes on integrated care systems and the increased social care cap will benefit my constituents in Redcar and Cleveland?

[Sajid Javid]

I am very happy to do so. My hon. Friend will know that the system that we set out back in September for social care will mean that no one loses out. In fact, when it comes to receiving social care in the future, the vast, vast majority of people across the country will be better off, including his constituents.

[Martyn Day (Linlithgow and East Falkirk) (SNP)]

While the Scottish Government are taking action to establish a national care service in Scotland, the UK Government’s plans allocate the bulk of the money raised over the first three years of the national insurance rise to the NHS backlog. Does the Secretary of State agree that A&E functioning is greatly impacted by the lack of beds due to delayed discharges to social care? Will his Department provide urgent funding for the critical support for social care?

[Sajid Javid]

The Government have provided urgent funding, especially because of the impact of the pandemic. We have put more than £34 billion extra into health and social care, with the relevant Barnett consequentials, from which Scotland will of course have benefited. The issue of delayed discharges is an important one to continue working on and addressing, which is exactly why NHS England has a delayed discharge fund of almost £500 million for this winter.

[Philip Davies (Shipley) (Con)]

2. What assessment he has made of the adequacy of the number of locations providing booster doses of the covid-19 vaccination in Shipley constituency.

[The Secretary of State for Health and Social Care (Sajid Javid)]

There are more clinics in England delivering covid-19 vaccines than there were at any point during the covid-19 vaccination programme. A lot of planning has gone into ensuring that sites are distributed according to demand. I can tell my hon. Friend that there are three vaccination sites in Shipley itself—at Lynfield Mount Hospital, Shipley health centre and Windhill Green’s emerald suite—and eight walk-in centres within 10 miles of Shipley. These sites are available to all those who are eligible and need to book.

[Philip Davies]

Lynfield Mount is not in my constituency. Many of my constituents want to have the booster vaccine, but are unable to access it locally and are instead being told to go to Bradford, which many are unable or unwilling to do. If the Government want a bigger take-up of the booster vaccine, may I urge my right hon. Friend to ensure that there are more places available in the Shipley constituency where my constituents can have their booster?

[Sajid Javid]

My hon. Friend, as always, make an important point. I thank his constituents for their excellent response to the national roll-out of the vaccination programme, and for playing their part in that. I have heard what he has said very clearly. We want to make access to vaccination as easy and convenient as possible. I will speak to the NHS to see what more can be done.

[Alex Norris (Nottingham North) (Lab/Co-op)]

The vaccination programme has lost momentum over the summer and autumn. To ensure that everyone who is eligible gets their booster jab by Christmas, we need to be vaccinating half a million people a day, but we are currently not near that figure. We need to reboot the national effort in Shipley and beyond—[Interruption.] Always just for you, Mr Speaker. We need to be mobilising retired medics, and using pop-up clinics and of course our nation’s pharmacies, which are crying out to help. Will the Secretary of State commit to that, and confirm by which day the 500,000 person target will be met?

[Sajid Javid]

I know that the hon. Gentleman sees it as his job always to be negative about the Government, although on the vaccination programme he and his colleagues have so far been very co-operative across the House. We should not talk down our world-successful vaccination programme, because we have delivered more than 15 million booster vaccines across the UK to 26% of the population over the age of 12—the most successful booster vaccination programme in the whole of Europe.

[Paul Blomfield (Sheffield Central) (Lab)]

4. What steps his Department is taking to help ensure that unpaid carers can access support when caring for family members.

[The Minister for Care and Mental Health (Gillian Keegan)]

We recognise that carers perform a difficult role and often find it challenging to access support. The Care Act 2014 secured important rights for carers, including a responsibility for local authorities to assess and support their specific needs where eligible. We will work with unpaid carers and stakeholders to co-develop further detail in a White Paper for reform later this year.

[Paul Blomfield]

The Minister will know that among those unpaid carers are 800,000 young carers, who play an extraordinary role—some from as young as seven or eight years old—in looking after parents with long-term conditions. Too many are unidentified, and as a consequence struggle without the support that they deserve. Does the Minister agree that integrated care boards could require GPs, who are uniquely placed to do this, to identify young carers and signpost them to support services? Will she also work with ministerial colleagues to require schools to create a young carers lead, as with special educational needs co-ordinators, to co-ordinate the identification of and support for young carers?

[Gillian Keegan]

We will certainly be looking at all those points within guidance. Local authorities have a duty to assess the needs of young carers under the Children and Families Act 2014, and that duty has remained in place throughout the pandemic. Authorities must ensure that young carers are identified and referred to appropriate support if needed, and that the young carer is not taking on excessive or inappropriate care and support responsibilities. We have also announced an additional £1 billion of new recovery premium funding, which schools can use to support young carers’ mental health and wellbeing, alongside their academic recovery.

[Caroline Dinenage (Gosport) (Con)]

The carers action plan published in 2018 was a two-year cross-Government attempt to try to change the way we identify and support the millions of unpaid carers across our country. They save our health and care system a fortune, but for their loved ones they are literally the world. What plans are there to publish a progress report and set out the next steps for how the Government intend to keep focused on this really important issue?

[Gillian Keegan]

I pay tribute to my hon. Friend for her work in this role and also to all unpaid carers. There are 5.4 million unpaid carers in England and they do a fantastic job. In the forthcoming Bill that we are co-producing with unpaid carers, we will make sure that we continue to make progress in this area. I look forward to sharing that with her before the end of this year.

[John Mc Nally (Falkirk) (SNP)]

Carers UK recently called for an additional payment across the UK for unpaid carers after its survey found that more than one in five unpaid carers are worried that they may not cope financially over the next 12 months. In Scotland we already have a carer’s allowance supplement, and the Scottish Government will once again make a double payment this December, recognising the impact that the pandemic has had on our carers. Will the Minister now urge her colleagues in the Department for Work and Pensions to make a commitment to match the Scottish Government’s offer?

[Gillian Keegan]

There is a carer’s allowance in the UK as well, but in most cases financial incentives are not the main driver for those providing unpaid care. However, we may see a shift towards less intensive caring activities or a reduction in the hours spent caring as people become more eligible for state support and we push through some of the reforms. Charging reforms bring an end to the unpredictability of care costs for care users and will do the same for those who provide unpaid care for them, allowing them to make informed choices. We need to do more to support them in providing respite and day services.

[Theresa Villiers (Chipping Barnet) (Con)]

What action have the Government taken to support the charities and community groups that provide help to unpaid carers, because many of these charities found it very hard to operate and raise funding during the covid shutdown?

[Gillian Keegan]

My right hon. Friend is absolutely right: charities are also a vital part of the network of support for our unpaid carers, and some of them did have to close during the pandemic, so we have been encouraging them to open up now that we can all open up. Additional financial support was provided for the charitable sector to make sure that it could continue its vital services during the pandemic when fundraising activities were very difficult.

[Liz Kendall (Leicester West) (Lab)]

Many families are pushed to breaking point because they cannot get the help they need to look after the person they love. Will the Minister now confirm that somebody who is trying to hold down a job and care for their elderly mum whose house is worth £100,000 will face a tax rise that will not improve their mum’s care or give them a break from caring, and will not even stop them from having to sell their mum’s home, because under the plans Tory MPs voted through last night, she will never hit the cap on care costs? Will the Minister further confirm that this tax rise on working people will be used to protect 90% of a home worth £1 million? If she disputes these figures, why does she not publish the impact assessment before MPs are asked to vote on the Health and Social Care Bill tonight?

[Gillian Keegan]

From October 2023, the Government will introduce, for the first time in our history, a new £86,000 cap on the amount any adult in England will need to spend on their social care. That will protect them from unpredictable and unlimited costs. But as well as that there is a more—[Interruption.] The hon. Lady may like to listen to the answer. As well as that, there is a more generous—[Interruption.] Please listen. On top of that, a more generous means test for adult social care will come into effect, allowing more people to benefit from the means-tested support. Under the current system, about half of all older adults in care receive some state support. This rises to roughly two thirds under the recently announced charging reforms, which will help many adults, including unpaid carers. Everybody will benefit from this system.

[Laura Farris (Newbury) (Con)]

5. What steps he is taking to reduce waiting lists for (a) children and adolescent mental health services and (b) other mental health services for young people.

[The Minister for Care and Mental Health (Gillian Keegan)]

We are committed to ensuring that children and young people get the mental health support that they need. That is why we are expanding mental health services through the NHS long-term plan so that 345,000 more children and young people a year have access to services by 2023-24. This year the Government and the NHS, under NHS England, have provided an additional £109 million on top of long-term planned funding. This additional funding will allow 22,500 more children and young people to access community health services this year, earlier than planned, and that will accelerate the roll-out of mental health support teams in schools and colleges.

[Laura Farris]

In West Berkshire, a family seeking a child and adolescent mental health services diagnosis of autism spectrum disorder or attention deficit hyperactivity disorder can face a waiting time of up to two years. The Berkshire West clinical commissioning group has recently made £1.6 million available to recruit extra staff, but when I spoke to it, I was struck by the absence of any hard targets to reduce waiting lists and any consequences if it fails to deliver. These waiting times are causing misery to my affected constituents, so can my hon. Friend say what steps can be taken to ensure accountability in the provision of this service, and will she meet me to discuss waiting times in West Berkshire?

[Gillian Keegan]

I share my hon. Friend’s concern that waits for autism assessments and diagnosis are often way too long, and that is why we are investing an additional £13 million of funding this year. That funding will allow local systems to test different diagnostic pathways—including working on a multi-disciplinary basis, which will shorten the diagnosis time—and to find new solutions for addressing long waits. The precise allocation of funding for diagnostic pathways are decisions made at the local level, and those should be compliant with National Institute for Health and Care Excellence guidance. NHS England is working with local systems to evaluate what works well. Since November 2019, we have been reporting on waiting times between referral and first assessment, and that is important, because we use that to drive up local performance. I would be very happy to meet my hon. Friend to discuss this further.

[Dr Rosena Allin-Khan (Tooting) (Lab)]

When the Government talk about waiting times, they refer to how long it takes simply to get an assessment, and not to when treatment may start. Most children face an incredibly long wait after that first step, or even have their referral closed. The real truth is revealed when we look at how long it takes for children to complete treatment. In Yorkshire and the Humber, it took one child more than 13 years to complete treatment for their anxiety. In the north-west, some children took three years to complete treatment for eating disorders. In the midlands, it is not uncommon for treatment completion to take five years. Will the Minister commit, as we have, to the provision of a counsellor in every school, a mental health access hub in every single community and regular mental health assessments for children in all key stages?

[Gillian Keegan]

We know that the prevalence of children and young people with a mental health condition has increased—in some cases, it has increased massively. That is why we remain committed to increasing investment through the long-term plan. Also, we have consulted on the potential to introduce five new waiting times standards, including for children and young people and their families and carers presenting to community-based mental health services. In addition, NHS England and NHS Improvement have announced an additional £40 million to address the impact of covid on children and young people’s mental health, including for eating disorders. Since 2014, extra funding has been going into children and young people’s community eating disorder services every year, but we know that we have more to do. This extra funding will enhance the development of more than 70 new and improved community eating disorder teams, but there is no doubt that there is much to catch up on. We are also introducing services into schools for young people.

[Siobhain McDonagh (Mitcham and Morden) (Lab)]

When the chief inspector of hospitals placed St George’s in Tooting into special measures, he warned that the

“emergency department was not large enough for the number of patients that passed through it and privacy and dignity were compromised.”

Given the report by the British Red Cross in this morning’s edition of The Times highlighting the causal link between A&E attendance and deprivation, does the Minister understand the further huge impact that moving acute services from St Helier to wealthy, healthy Belmont will have on A&E attendances at St George’s?

[The Minister for Health (Edward Argar)]

Forgive me, but I fear the hon. Lady may not have moved her tabled question.

[Siobhain McDonagh]

I was just so keen to ask my question!

[Edward Argar]

I can answer the hon. Lady’s supplementary question, but would it be in order for me to answer her tabled question and then the supplementary?

[Mr Speaker]

Yes.

[Siobhain McDonagh]

6. What recent assessment he has made of the impact of the proposed downgrade of services at St Helier hospital on the delivery of acute services at St George's hospital.

[Edward Argar]

I am grateful to the hon. Lady. To answer the tabled question, no recent assessment has been made of the changes associated with the Epsom and St Helier reconfiguration, including proposed changes to some services outside the new Sutton site. The hon. Lady will know that these proposals have been through consultation, judicial review and the independent reconfiguration panel, which all supported the plans as being in the local population’s interest. The Secretary of State agreed with their advice.

Turning to the hon. Lady’s supplementary question, I am grateful to her and I know how strongly she feels about the issue, but I take her back to the point I have just made, which is that these proposals have all been through extensive consultation and extensive legal process and been looked at by the independent reconfiguration panel. Those processes all concluded that what is proposed is in the best health interest of the population.

[John Spellar (Warley) (Lab)]

7. What assessment he has made of the viability of the community pharmacy sector.

[The Parliamentary Under-Secretary of State for Health and Social Care (Maria Caulfield)]

The community pharmacy contractual framework outlines a transformational programme of work to integrate community pharmacies into the NHS, delivering more clinical services and making them the first port of call for many minor illnesses. The framework commits £2.5 billion annually to the sector to support that ambition.

[John Spellar]

That is a welcome response from the Minister, and shows that she and the Department now seem to recognise our pharmacies for their magnificent efforts during the pandemic, providing frontline primary care and delivering and encouraging vaccination. Will she further recognise their expertise and dedication, and push rapidly forward with integrating pharmacies into the delivery of primary care—thus also, of course, easing pressure on GPs and hospitals?

[Maria Caulfield]

The right hon. Gentleman will find no greater supporters of community pharmacists than this Government. That is why we launched the community pharmacist consultation service, where GPs and NHS 111 can refer patients directly to pharmacy services. We now see pharmacies dealing with minor ailments such as sore throats, coughs and colds, providing the new medicines service and providing public health services such as weight management and stop smoking services. We place on record our thanks to all in community pharmacies.

[Rob Butler (Aylesbury) (Con)]

Community pharmacies in my constituency have played a crucial role during the pandemic, not least in providing vaccines, as at Hughenden Valley. Will my hon. Friend join me in thanking them, as well as the pharmacists working in GP surgeries such as Meadowcroft surgery in Aylesbury, which I visited last week? Their growing role in primary care is an important part of our efforts to improve the health service and ensure that patients get the best possible care.

[Maria Caulfield]

My hon. Friend makes some excellent points, and I put on record again our thanks to community pharmacists and all community pharmacy teams. During the pandemic, more than 1,500 community pharmacy-led covid vaccination sites have been set up, delivering 15 million covid vaccinations so far, and this winter more than 3.8 million flu vaccines have been delivered through community pharmacies, which shows that they are leading the way in primary care.

[Dave Doogan (Angus) (SNP)]

The role of community pharmacies across Angus and Scotland during the pandemic cannot be underestimated. The way they were able to alleviate pressure on clinical services and the wider NHS must be noted. That is why the Scottish Government have introduced their NHS Pharmacy First Scotland service, backed by £7.5 million last year and going up to £10 million. Can the Minister assure me that the lessons we have learned in Scotland are accepted by Whitehall, and would she like to come to see the lessons we have learned in Scotland? I would be happy to accompany her.

[Maria Caulfield]

As I have said, this Government are leading the way in England in the way community pharmacies are transforming services in primary care. That is why we have the new medicines service, where patients with conditions such as asthma and high blood pressure or who are on blood-thinning medication are able to go and see their pharmacist as a first port of call in managing their medication. We will be expanding those services and are in discussion with community pharmacists about how we take that forward.

[Jane Hunt (Loughborough) (Con)]

8. What steps his Department is taking to roll out the covid-19 vaccination to 12 to 15-year-olds.

[The Parliamentary Under-Secretary of State for Health and Social Care (Maggie Throup)]

We have vaccinated more than 1.1 million 12 to 15-year-olds since roll-out began. Vaccine clinics have been held at around 3,500 schools, with 800 more to be visited next week, and there are more than 240 out-of-school vaccine sites in operation. To bolster the roll-out, since 22 October vaccination bookings for any 12 to 15-year-old in England can be made through the national booking service to attend a vaccination site outside school hours. I take this opportunity to thank everybody involved in making this programme so successful.

[Jane Hunt]

Humphrey Perkins School in my constituency had carried out all the necessary preparations ahead of its anticipated roll-out of the vaccine prior to the autumn half-term, but on the day before, it was informed that the roll-out would be postponed until 30 November. Please could my hon. Friend set out the reasons for this delay, and can she confirm that this date will not be pushed back again as this could have an impact on transmission between local adults, among whom cases have increased recently?

[Maggie Throup]

In late September, the Leicestershire Partnership NHS Trust school age immunisation service devised an updated schedule for covid-19 and flu vaccinations comprising the remaining schools to be visited. This was to address some operational challenges, reduce the need to postpone sessions at short notice and offer the best experience to the young people receiving vaccinations. All affected schools were notified as soon as possible. As my hon. Friend said, the service will be attending Humphrey Perkins on 30 November, when eligible students with consent will be offered both the flu and the covid-19 vaccines. West Leicestershire clinical commissioning group has confirmed to me that this date will not be moved.

[Martyn Day (Linlithgow and East Falkirk) (SNP)]

Wales has now joined Scotland in having vaccinated more than half of all 12 to 15-year-olds, Scotland’s figure being 57.7% in comparison with England’s 36.3% of eligible pupils. Given that 10 to 19-year-olds have maintained the highest rate of infections in recent months, what steps are the UK Government going to take to follow Scotland’s lead and improve vaccination further in this age group?

[Maggie Throup]

As I said earlier, we have already vaccinated over 1.1 million 12 to 15-year-olds since the roll-out began, which to me is a huge success. We have opened up the national booking service, and provided more opportunities for youngsters to come forward whether within the school environment or outside the school environment. We always look at every opportunity to ensure complete accessibility for people to get their vaccine.

[Chris Green (Bolton West) (Con)]

9. What steps his Department is taking to increase the number of carers in the adult social care sector.

[Bill Esterson (Sefton Central) (Lab)]

10. What steps he is taking to tackle the high job vacancy rates in social care.

[Helen Hayes (Dulwich and West Norwood) (Lab)]

16. What steps he is taking to tackle the high job vacancy rates in social care.

[Chris Grayling (Epsom and Ewell) (Con)]

20. What steps he is taking to tackle staff shortages in the social care sector.

[The Minister for Care and Mental Health (Gillian Keegan)]

We recognise the considerable challenges the adult social care sector faces in recruiting and retaining staff. We have put in place a range of measures to support local authorities and care providers to address workforce capacity pressures. These include a new £162.5 million workforce recruitment and retention fund, and the latest phase of our national recruitment campaign, launched on 3 November, which highlights adult social care as a rewarding and stimulating place to work.

[Chris Green]

I thank my hon. Friend for her reply. The latest figure I have for the vacancy rate for carers in August was significantly worse than those from before the pandemic, and it is likely to worsen still further due to the requirement for compulsory vaccination. When does my hon. Friend believe the vacancy rate will return to pre-pandemic levels?

[Gillian Keegan]

The first thing to say is that obviously the vaccine saves lives, and it is our responsibility to do everything we can to reduce the risk for vulnerable people. As of 14 November, 92.5% of care home staff have had their second dose. We have put in place measures, as I said earlier, to support workforce capacity, which have only just gone to local authorities. The Department continues to closely monitor workforce capacity, bringing together the available data, including the vacancy rate, with local intelligence. Longer term, we have committed at least £500 million to support and develop the workforce, and that will go some way to addressing the barriers to people taking up work in adult social care, which has been an issue for a number of years.

[Bill Esterson]

There are 105,000 vacancies across all social care workforce grades, but employers are unable to recruit across those grades. The Government have accepted the need to add senior care workers to the shortage occupation list—they did that in April—but the Migration Advisory Committee is not due to report until next April on the need to recruit social care workers. It is no good the Minister saying employers need to pay more money to recruit UK workers, because this Government are the ones underfunding the employers, who cannot then compete with the likes of Amazon. When will the Government admit that they need to add all grades of social care workers to the shortage occupation list if they are to have any hope of addressing this shortfall and providing the care that is needed to address the care crisis?

[Gillian Keegan]

As I mentioned earlier, we have sent out £162.5 million, which has not yet been put into effect. For example, Sefton received £1,032,474. That money has only just gone into the bank account, and has not yet been utilised to retain staff, or to recruit agency or other staff. As the hon. Gentleman says, adult social care providers can recruit key adult social carers from overseas from the shortage occupation list. That provides lower fees and a reduced salary threshold of £20,480 for someone to be eligible for the skilled worker visa.

[Helen Hayes]

The adult social care sector faces the worst staff shortages in living memory. A recent survey by the National Care Forum found that one third of managers of registered care homes are limiting or stopping admissions from hospital, due to staff shortages, with direct consequences for both the NHS and for vulnerable people who cannot access the care they need. The care sector needs action now, not warm words and job adverts. Will the Minister commit to paying a retention bonus to frontline care staff, to help stem the tide of those exiting the care sector this winter? Will she commit to a fully funded, permanent pay increase, to bring the minimum level of pay for care workers up to £10 an hour—the minimum rate at which Amazon is recruiting in many areas where the care shortage is at its most acute?

[Gillian Keegan]

We have committed to bring forth new measures in the White Paper, and to spend at least £500 million on recruiting that workforce. To address the emergency now, as I mentioned, there is £162 million. In addition, we have put around £500 million particularly to address discharge processes, and to ensure a discharge to assess process, which means it can be much quicker. We must ensure that those teams work together to shorten the discharge process. There is no doubt that our NHS and our whole system is under extreme pressure this winter, and we thank it for all the work it is doing.

[Chris Grayling]

There is a particular challenge in a county such as Surrey that has a rapidly ageing demographic, high housing costs, and where the cost of living is high generally. Could I urge the Minister and the Secretary of State to ensure that they consider all possible avenues to assist with what is becoming an acute shortage of key staff? We cannot end up in a position where the elderly do not receive the care they need, and we need maximum flexibility to ensure they get that care.

[Gillian Keegan]

There is no doubt that the sector is facing extreme pressure. It always faces pressure as the demographic need grows by 1% to 2% every year, but we have set out money to help with the short-term impact of that. Surrey will receive £2,704,702, so just over £2.7 million. We recently started the biggest national recruitment campaign we have ever done, Made with Care, to thank our care workers and to show what a fantastic and rewarding career it would be. We will continue to work with local authorities to help as much as we can.

[Tony Lloyd (Rochdale) (Lab)]

In the context of what the Minister has announced about increased money for staff terms and conditions, what does she make of the Alternative Futures Group, which operates in the north-west? It refuses to take up the real living wage, even when councils offer to fund it, and is in a process that is seeing the terms and conditions of its workforce deteriorate? Is there a need to look at that group, and to have a collective agreement for the whole sector?

[Gillian Keegan]

Yes, and I would be grateful if the hon. Gentleman would write with the details. We have a skills shortage in many areas across our economy. Because of the success of the Plan for Jobs, and our bounce back from the pandemic, anybody who does not treat their staff well will find that their skills shortages become very acute indeed.

[Chris Loder (West Dorset) (Con)]

11. What steps he is taking to ensure booster doses of the covid-19 vaccine are available to all eligible people in West Dorset.

[The Parliamentary Under-Secretary of State for Health and Social Care (Maggie Throup)]

We have delivered more than 15.3 million booster doses in the UK, and we know there is a strong demand for boosters in Dorset. The NHS has worked hard to deliver boosters and third doses at all 18 primary care networks in Dorset, providing them across a number of sites. Additional provisions are also in place for those who are housebound, elderly, or in care, to ensure that they get their booster.

[Chris Loder]

I thank my hon. Friend for her answer. Almost a third of constituents in West Dorset are over the age of 65. While I welcome very much the Secretary of State’s announcement this week that he is rolling out the booster to those over the age of 40, I am afraid that, in the county town of Dorchester and the second town of Bridport particularly, it is still very difficult for the elderly to receive their vaccine boosters. Will my hon. Friend help urgently with sorting this issue by arranging walk-in centres so that we might address it rapidly?

[Maggie Throup]

The Department of Health and Social Care and the NHS keep the covid-19 vaccine programme under constant review in order to ensure that there is sufficient capacity across the country. There are more vaccination sites than ever before in England, including hundreds of walk-in centres. A lot of planning goes into ensuring that those sites are distributed to meet the level of demand, and there are measures in place to ensure that boosters are accessible for all in West Dorset, but I will look into this matter further on behalf of my hon. Friend.

[Ben Everitt (Milton Keynes North) (Con)]

12. What assessment he has made of the effectiveness of the roll-out of booster doses of the covid-19 vaccine.

[Dr Ben Spencer (Runnymede and Weybridge) (Con)]

19. What assessment he has made of the effectiveness of the roll-out of booster doses of the covid-19 vaccine.

[The Secretary of State for Health and Social Care (Sajid Javid)]

The UK’s covid-19 vaccination programme has been a recognised success story. It is the largest vaccination programme ever undertaken by the NHS. We are working at speed to get people their covid-19 booster vaccines. Our vaccination programme is making great progress, with over 15.3 million people across the UK already having taken their covid-19 booster or third jab.

[Ben Everitt]

It is great to hear about the uptake of the booster vaccine nationally. I have seen some data to suggest that in Milton Keynes, uptake is slightly below the national average. We have some great advertising campaigns—MKFM, for example, has been really good on this—but what more can we do to encourage people who need to take the booster to protect themselves and protect the NHS over the winter?

[Sajid Javid]

I think my hon. Friend might be wearing a booster badge, because I understand that he has taken his own boost this morning. What more encouragement would the people of Milton Keynes want than their very own Member of Parliament getting boosted? I can tell him that the Bedfordshire, Luton and Milton Keynes clinical commissioning group is in regular dialogue with Healthwatch and the local authority to see what more it can do to encourage local people to take up their booster jabs, and the national “Boost your immunity” campaign is helping to encourage more and more people to come forward, not just for their booster jab but for their vital flu jab.

[Dr Ben Spencer]

I thank my right hon. Friend for his answer and for the speed of the booster roll-out. In fact, it is so speedy that the criteria for getting a booster are changing all the time, and many constituents have contacted me confused about exactly what the criteria are. I have spoken to my CCGs to try to get them to improve the public engagement that they are doing, but will my right hon. Friend lay out what the criteria are for getting a booster at the moment, and what support he is giving to CCGs so that they can get the message out to people and get them into walk-in centres or booking their appointment for a booster?

[Sajid Javid]

My hon. Friend will understand that there is often good reason to change the criteria. They might be changed, for example, on the latest advice from the Joint Committee on Vaccination and Immunisation; the Government must of course consider that advice and take it seriously. As was mentioned earlier, we are extending the booster jab to 40 to 49-year-olds. NHS England has issued guidance to CCGs on the covid-19 vaccination programme, which includes guidance on eligibility for booster vaccines and how to manage those appointments. We encourage everyone to visit the NHS website on gov.uk for the very latest information on the programme.

[Emma Hardy (Kingston upon Hull West and Hessle) (Lab)]

A disabled member of my community needs the booster and is very keen to have it. However, he is housebound and unable to go the 1.2 miles to where the booster is being offered. What can the Secretary of State do to ensure that people who are housebound and unable to leave their homes can get the booster that they desperately need?

[Sajid Javid]

The hon. Lady makes a very important point. Hundreds of thousands of people have received their booster jabs directly from primary care—from their GPs—in most of the type of cases that she describes. If anyone is housebound or, for example, in a care home, they will receive a visit from their GP. That has happened up and down the country. If the hon. Lady is aware of any individual that has not received such contact, I ask her please to contact me, and I will do everything I can to assist.

[Mr Gregory Campbell (East Londonderry) (DUP)]

Take-up of the booster jab in Northern Ireland has been somewhat behind, although it is now beginning to catch up. Does the Secretary of State agree that the roll-out is best done as a voluntary roll-out, so that we can persuade people that it is a good thing, and that it protects both them and their family and friends, to take up the booster jab?

[Sajid Javid]

I very much agree with the hon. Gentleman. The general vaccination programme for covid-19, or any other vaccine for that matter, should be voluntary. It should be a positive decision that people take to protect themselves and those around them. The only exception to that in England, as the hon. Gentleman will know, is those who work with vulnerable people in the NHS or in social care. Otherwise, it absolutely should be a positive decision that people are encouraged to take.

[Gordon Henderson (Sittingbourne and Sheppey) (Con)]

13. What recent steps he has taken to help ensure that everyone in Sittingbourne and Sheppey constituency has access to a GP.

[The Parliamentary Under-Secretary of State for Health and Social Care (Maria Caulfield)]

The Kent and Medway clinical commissioning group has informed us that all practices in the area have open lists and are accepting new patients. It has also informed us that practices in Sittingbourne and Sheppey are being prioritised for support to help them manage the high levels of demand they are currently facing.

[Gordon Henderson]

I think the Minister has been misled by my local CCG. I can tell her that all the GPs in my area are oversubscribed and people are finding it very difficult to get an appointment with their GP, even including a virtual appointment. Indeed, some patients struggle even to speak to a receptionist, because the phones are engaged for hours on end. I understand that the NHS is planning to give GPs an upgrade of their telephone systems, but such upgrades will be of no use whatever unless doctors have the resources needed to recruit and train additional receptionists to answer the phones. What assurances can my hon. Friend give me that GPs will get those resources?

[Maria Caulfield]

We recognise the difficulty that patients have had in particular with telephone access and GPs have fed in that phone lines have been busier than ever. That is why the Secretary of State, through the winter access fund, has addressed the issue in two ways: the availability of the cloud-based telephone system that GPs and primary care networks can be a part of, which will help to build their telephone capacity; and the £250 million winter access fund, which GPs can use to either recruit more telephone receptionists and train up existing telephone receptionists or build up more resources. I am very happy to discuss that further with my hon. Friend.

[Jill Mortimer (Hartlepool) (Con)]

T1. If he will make a statement on his departmental responsibilities.

[The Secretary of State for Health and Social Care (Sajid Javid)]

It is a critical time for our country, and we are taking vital steps across health and care. First, on covid, we have now given over 112 million doses of the vaccine in total across the UK. Yesterday, our booster programme was opened up to all people over the age of 40 and we extended our offer of a second dose to all people aged between 16 and 17.

Secondly, on recovery, we are delivering the biggest catch-up plan in the history of the NHS, including the £5.9 billion capital investment we announced last month. Lastly, on reform, yesterday we announced our intention to put a policy of education and training for the health workforce and digital transformation at the very heart of the NHS, so we can plan more effectively as one for the long term, with clear accountability for delivery.

[Jill Mortimer]

A young constituent of mine, Chris, has had to have part of his skull removed following a stroke. Although he is prone to falling, his brain has been largely unprotected for nearly two years. This is because his surgeon feels that the necessary surgery is primarily cosmetic. Several other of my constituents have been refused surgery on those grounds, despite procedures being available elsewhere. What steps is my right hon. Friend taking to level up such health disparities and make health inequality a thing of the past?

[Sajid Javid]

First, I am sorry to hear about my hon. Friend’s constituent Chris and wish him all the very best. She will know that clinical commissioning groups are responsible for commissioning local healthcare services. If the aim of a cosmetic procedure is health rated, such as the need to repair or reconstruct missing or damaged tissue or skin that might come through illness, birth defect or accident, it will be commissioned and seen to by commissioners. She refers to a particular case. If she would like to provide me with more details, I would be happy to take a look.

[Jonathan Ashworth (Leicester South) (Lab/Co-op)]

At the weekend, the Secretary of State effectively ditched his promise to deliver 6,000 extra GPs. Last week, the Infrastructure and Projects Authority said his promise to deliver 40 new hospitals is “unachievable”. Last night, he whipped a vote that sees poorer pensioners lose their homes to pay for care, while the homes of the richer are protected. Can he tell us which promise is he going to break next?

[Sajid Javid]

I have to say that the right hon. Gentleman is wrong on all three counts. The Government are absolutely committed to hiring more GPs, with over 1,800 full-time equivalent GPs entering primary care in the two years to September 2021. We are seeing success after success in the hospital building programme, with the biggest capital investment programme in hospitals that this country has ever seen. As for our social care programme, this Government are the first in decades to have the guts to deliver, and that is exactly what we are getting on with.

[Jonathan Ashworth]

The Secretary of State’s social care programme is not levelling up when the promise in his manifesto that no one should have to lose their home to pay for care is broken and in tatters after last night.

The Secretary of State’s next promise was to give the NHS “everything” to get through the backlog. With waiting lists growing at pace, ambulances backed up outside hospitals, and cancer operations getting cancelled, what will he do to recruit the staff we need? He is apparently not going to support the cross-party amendment in the name of the former Health Secretary, the right hon. Member for South West Surrey (Jeremy Hunt), tonight, and he failed to win the funding needed for recruitment and training in the Budget, so how will he deliver on his promise to give the NHS “everything” when it does not have the staff to deliver the care to bring waiting lists down?

[Sajid Javid]

Once again, the right hon. Gentleman proves he still does not understand the social care programme that this Government have set out. I think that is deliberate; he chooses not to understand it. For the first time, catastrophic costs are being capped for everyone in the country, regardless of where they live, and the generous means-testing system will ensure that the vast majority of people will benefit and that no one will lose out.

The right hon. Gentleman asks me what I am doing about the workforce. We are making the biggest investment in the workforce that this country has ever seen. Yesterday I announced the merger of Health Education England into the NHS, so that we can have a better joined-up strategy, and we have already set out a 15-year framework to consider the long-term needs of the workforce.

[Robert Largan (High Peak) (Con)]

T2. Hundreds of local people have responded to my High Peak GP surgery survey, and I look forward to presenting Ministers with the results shortly. One of the top concerns is about how we can improve access to primary care. One way would be finally to build a major new health centre for Buxton. The local NHS already owns a suitable town centre location with outline planning permission; all it requires is the capital funding. Derbyshire Community Health Service NHS Trust has submitted a strong bid, which I support, so will the Secretary of State meet me to discuss how we can deliver the proposal and improve healthcare for Buxton and the whole High Peak?

[Sajid Javid]

Yes, I will. I looked at the previous bid and have been trying to understand why it was not taken forward. However, I would like to look carefully at the revised bid. I reassure my hon. Friend that more funding is available for such capital projects, and I would be happy to discuss that with him.

[Andy McDonald (Middlesbrough) (Lab)]

T4. Now that the cap on care costs has unravelled, many of my constituents feel misled and betrayed, especially those with modest capital in the value of their home. How can it be that those with the most will contribute the least and that those with the least will contribute the most? Where is the equity, where is the fairness, and where is the justice in any of that?

[The Minister for Care and Mental Health (Gillian Keegan)]

I thank the hon. Gentleman for his question. We are trying to solve something that has not been solved for decades, and the Labour party does exactly what it always does when it comes to this point: it picks one specific part without looking at the package as a whole and misleads the whole country. I want a better system not only for our grans and grandads, but for our mums and dads and all of us. If this system had been in place for my grandmother when she had dementia before dying in 2018, she would have been a lot better off. While we sit here doing nothing, the reality is that everybody loses—

[Mr Speaker]

Order. Questions and answers are meant to be short and punchy. We cannot get into a full-blown debate.

[David Simmonds (Ruislip, Northwood and Pinner) (Con)]

T5. My constituents benefit from the excellent healthcare provided at Hillingdon Hospital, but it is long overdue a rebuild. Can my right hon. Friend give me an update on when we might expect to see progress on those plans?

[Sajid Javid]

It is a vital project, and the trust project team are working well with NHS England and with my Department. The scheme, as I understand it, remains on track; like my hon. Friend, I look forward to its completion.

[Vicky Foxcroft (Lewisham, Deptford) (Lab)]

T7. New research from the Disabled Children’s Partnership shows that nearly three quarters of disabled children and young people have seen their conditions regress in the pandemic because of a lack of adequate support. Therapies, short breaks and health services have all been massively reduced, and there are huge backlogs. Will the Secretary of State outline how the Government plan to rapidly sort that out?

[Sajid Javid]

I thank the hon. Lady for her very important question. There is nothing more important than our children. Sadly, some of the actions that were taken at the height of the pandemic, for understandable reasons, have had unintended consequences. That is exactly why we are putting in a record amount of funding, with the biggest catch-up programme for elective procedures in the history of the NHS. I know that that will help.

[Philip Dunne (Ludlow) (Con)]

T6. The capital transformation of acute hospitals in Shrewsbury and Telford has been eight years in the making. Will the Secretary of State confirm what is now needed to start delivering the £312 million of capital committed by the Conservative Government to improve Shropshire’s healthcare facilities? Will he also confirm that it does not make sense to head down the rabbit hole of a new hospital and start this whole process all over again?

[The Minister for Health (Edward Argar)]

I am grateful to my right hon. Friend, who has taken a long-term and consistent interest in the matter. The strategic outline case for transforming the Royal Shrewsbury Hospital and Princess Royal Hospital Telford was received at the end of October 2021. It has been reviewed by the NHS and detailed feedback has been given; I look forward to it coming forward to me early next year. We remain committed to delivering the investment and improvement that Shropshire’s hospitals need and that he and his colleagues have helped to secure.

[Sarah Green (Chesham and Amersham) (LD)]

Women across the country have lost jobs and life savings as a result of chronic pain and disability caused by complications after the use of medical mesh. Many, including one of my constituents, have had to pay for corrective surgery overseas. The Government have so far refused to set up agencies to provide financial redress, as was recommended in the Cumberlege report. Will the Secretary of State revisit the Cumberlege report, and in particular the need for financial redress?

[The Parliamentary Under-Secretary of State for Health and Social Care (Maria Caulfield)]

Women who have suffered are being helped and supported through the difficult choices that they are having to make. The Government have set up eight specialist mesh centres across the country to provide them with the specialist treatment that they need. Our priority is patient safety, preventing anything like this from happening again, and supporting women who have been affected. There is no evidence that a redress system would improve patient safety or improve the outcome for those women.

[Andrew Selous (South West Bedfordshire) (Con)]

T8. As ear syringing is no longer being undertaken in local surgeries, and as self-care does not work for many people, will the Government make sure that microsuction is at least available in every primary care network area? Otherwise, we are leaving people to go deaf.

[Maria Caulfield]

Local commissioners are responsible for meeting the health needs of their local population and should continue to ensure appropriate access to ear wax services. However, should a CCG not routinely commission ear wax removal or the suction method that my hon. Friend refers to, a patient can request an individual funding request. I am happy to help my hon. Friend if that is not happening locally.

[Andrew Gwynne (Denton and Reddish) (Lab)]

Cancer targets are not being met. This September had the worst figures on record for both the 31-day and the 62-day targets; the 62-day target has not been met since 2015. Extra funding is welcome, but where is the detailed implementation plan that was promised to follow?

[Maria Caulfield]

I reassure the hon. Gentleman that cancer has remained an absolute priority for the NHS during the pandemic, as it will continue to be. The funding that has been awarded to deal with long-term electives includes funding for cancer referrals. Some amazing work is being done by our cancer alliances, which are looking to deal with the urgent backlog that has developed during the pandemic.

[Mr David Davis (Haltemprice and Howden) (Con)]

T9. In the next week or so, the Secretary of State will receive the Goldacre report on maximising the use of data in the national health service for both research and operational reasons. The Department has failed dramatically, a couple of times in the past decade, to maximise the use of this enormously important resource. Will he undertake to read the report, consider carefully the policies in it with a view to implementing them quickly, and publish it before the end of January?

[Sajid Javid]

My right hon. Friend has raised this issue with me before, but he is right to raise it again, because proper use of data is important to the future of the NHS. He may have noted our announcement yesterday that we are merging NHS Digital and NHSX with NHS England, which will enable us to do a much better job with data. I will of course look carefully at that report, and I should be happy to meet him to discuss it further.

[Rachael Maskell (York Central) (Lab/Co-op)]

Poppy is just eight. She has severe epilepsy, with ever more frequent and enduring episodes. Her specialist consultant has said that surgery is her only hope, but Sheffield and Leeds have refused to assess her for capacity and administration reasons, not clinical reasons. Will the Minister work with me to ensure that Poppy receives the treatment that she needs?

[Sajid Javid]

I am sorry to hear about the hon. Lady’s constituent, and of course a Minister will meet her.

[Sir Robert Neill (Bromley and Chislehurst) (Con)]

T10. I refer to my interest as chair of the all-party parliamentary group on stroke and as the husband of a stroke survivor.Mechanical thrombectomy can be a game-changer for sufferers of strokes, greatly reducing the levels of disability they are left with. NHS England committed itself to a full roll-out of mechanical thrombectomy availability by 2022, but we are lagging seriously behind. Where are the plan and the investment to bring the programme back up to date and on track?

[Maria Caulfield]

I know that my hon. Friend has a personal interest in improving stroke services. I can reassure him that the national stroke service model was published by NHS England and NHS Improvement in May this year, and that as of 1 April there are 20 operational integrated stroke delivery networks, bringing together key stakeholders to improve the diagnosis, treatment and rehabilitation of those who have suffered a stroke.

[Daisy Cooper (St Albans) (LD)]

Ambulance response times are at their highest since records began. A month ago, on 22 October, I tabled a parliamentary question asking the Secretary of State how many ambulance trusts had moved into level 4—the level at which potential failures creep into the service. I am still awaiting an answer. Will the Minister answer that question today, please?

[Edward Argar]

If the hon. Lady supplies the number of the question, I will ensure that it is dealt with today. As for her broader point, yes, ambulance services across the country are under significant pressure this winter, which is one of the reasons why we have already invested an additional £55 million in helping them to cope with that pressure.

[Mr Speaker]

I call the Chairman of the Health and Social Care Committee, Jeremy Hunt.

[Jeremy Hunt (South West Surrey) (Con)]

Thank you, Mr Speaker.

The Secretary of State knows that some in Government are worried about the extra cost of training additional doctors, but does he agree that every additional doctor we train means one fewer locums that the NHS has to hire, which is cheaper for the NHS and better for patients?

[Sajid Javid]

I agree that we want more and more full-time doctors, which will mean that there is less demand for locums and is, of course, very good for the NHS. I also agree that there should be more focus on the workforce, and I hope that my right hon. Friend welcomes the measure that I took yesterday of merging Health Education England with the NHS, so that we can have a much more joined-up workforce plan.

[Debbie Abrahams (Oldham East and Saddleworth) (Lab)]

Andrew Dilnot, whose commission undertook the inquiry into social care nearly 10 years ago, says that the impact of the Government’s social care plans on working-age disabled people will be “catastrophic”. What is the Government’s assessment of the impact?

[Sajid Javid]

The hon. Lady is right to raise the importance of doing everything we can to look after working-age people who need social care. As she will know, the total funding of social care from the state now constitutes most of the funding, and it is right that all needs are met through those funds. As for the new plan, everyone will benefit—no one will lose out from this versus the current system—so the vast majority of people will be better off, including working-age adults.

[Daniel Kawczynski (Shrewsbury and Atcham) (Con)]

The Minister has heard from my right hon. Friend and neighbour the Member for Ludlow (Philip Dunne) how essential it is that the £320 million we have secured for the Future Fit programme be released, so that construction can start. We are beginning to see a definite negative impact on A&E services because of the seven or eight years of delays. Please will the Minister do everything possible to ensure that the money is finally released and construction can start?

[Edward Argar]

I am grateful to my hon. Friend, and likewise to my right hon. Friend the Member for Ludlow (Philip Dunne), who has campaigned vigorously this issue. We now have the outline business case from the trust, and we are reviewing it at pace to ensure that we can deliver the investment in both of Shropshire’s hospitals that they need to continue to serve my hon. Friend’s and colleagues’ constituents.

[Jeff Smith (Manchester, Withington) (Lab)]

My 90-year-old constituent, Jimmy, fell in his garden recently and broke his hip. When his family rang 999, they were told that it would be up to 14 hours before an ambulance could attend. The family got the fire brigade out after two and a half hours to sort him out. When the Government going to get a grip on the crisis in our ambulance services?

[Edward Argar]

The hon. Gentleman might have done this already, but if he wishes to, I would be grateful if he wrote to me about that case, not only to see whether there is anything I can do, but because it is always interesting and useful to hear from individual Members about specific incidents. To his broader point, as I set out to the hon. Member for St Albans (Daisy Cooper), we have invested £55 million this year ahead of the winter to support our ambulance services, but it is entirely true to say that they are under considerable pressure this winter across the country.

Petition

Tuesday 23rd November 2021 Commons Chamber

Mr Steve Baker (Wycombe) (Con)

- - Excerpts

The residents of Pine Trees in High Wycombe bought their homes on the basis that the council would adopt open spaces—indeed, they have supplied evidence that the council’s original intention was that a planning obligation should secure just that—but it has not happened. I am therefore pleased to have received a petition signed by three but accompanying a much longer petition signed by 524 residents.

The petition states:

The petitioners therefore request that the House of Commons urge the Government to legislate to ensure in future if planning is granted on particular conditions, and these are not carried through by a council, then that council is responsible for remediation and to ask the relevant Member to seek to broker a solution.

I will of course seek to broker a solution to this problem.

Following is the full text of the petition:

[The petition of residents of the constituency of Wycombe,

Declares that planning permission for Pine Trees was granted by the local authority (now Buckinghamshire Council) on the condition that the developer, Taylor Wimpey, paid a commuted sum to support the upkeep of the open spaces and play areas known as Bobcat Park, allowing for the local authority to adopt the park; notes that the local authority failed to include any mention of said commuted sum in the Section 106 planning conditions for the development; notes that the developer sold, and continued to sell, homes at Pine Trees on the basis that Bobcat Park would be adopted by the local authority and that residents would not need to pay anything towards upkeep of the park; notes that in connection with a separate planning condition, the developer has paid to the local authority more than £2 million for the creation of a bus link scheme which has since been abandoned, leaving funds available to support adoption of the park; and notes that in the absence of a commuted sum, the local authority has indicated its opposition to adopting the park, leaving the costs of maintenance to be borne by the residents at the development, conflicting directly with what they had been told.

The petitioners therefore request that the House of Commons urge the Government to legislate to ensure in future if planning is granted on particular conditions, and these are not carried through by a council, then that council is responsible for remediation and to ask the relevant Member to seek to broker a solution.

And the petitioners remain, etc.]

[P002698]

Point of Order

Tuesday 23rd November 2021 Commons Chamber

13:35

[Dame Diana Johnson (Kingston upon Hull North) (Lab)]

On a point of order, Mr Speaker. On 18 November, the same day as the statement was made in this House on the integrated rail plan, Transport for the North was written to by the Department for Transport setting out changes in relation to its future operation. In essence, the already limited powers of TfN are to be further reduced and its budget cut again. This comes after TfN’s recommendations on the integrated rail plan were largely rejected, with the scaling back of previously promised investment plans for northern England’s rail network.

As you know, Mr Speaker, rail infrastructure investment is a central part of the levelling-up agenda, which in turn is meant to be a central part the Government’s strategy to increase overall UK economic growth. These changes to TfN represent a significant policy development, with consequences for the levelling-up agenda, and as such they should be discussed in this House. With no Transport questions scheduled until 16 December, Mr Speaker, have you been told whether Ministers intend to make a statement in this House on TfN’s future? If not, could you advise on how we might best summon Ministers to the House to answer questions on this matter?

[Mr Speaker]

First, I am grateful to the right hon. Member for giving me notice of her point of order. The short answer is that I have not had any notice from the Government that they wish to make a statement on the important subject that she has raised. She might wish to speak to the Clerks in the Table Office about other ways to pursue this subject. She has also put her point on the record and those on the Treasury Bench will have heard it; and there are always other ways, such as an urgent question.

Climate Education

1st reading
Tuesday 23rd November 2021 Commons Chamber

Motion for leave to bring in a Bill (Standing Order No. 23)

13:37

[Nadia Whittome (Nottingham East) (Lab)]

I beg to move,

That leave be given to bring in a Bill to require matters relating to climate change and sustainability to be integrated throughout the curriculum in primary and secondary schools and included in vocational training courses; and for connected purposes.

Madam Deputy Speaker, 2050 is the year that the world needs to reach net zero. This will require fundamental changes to every sector of our economy unprecedented in their overall scale. For some, 2050 might feel like it is a long way away. In the next 30 years, Governments will come and go and many Members of this House will retire, but for my generation and for those who are still in school—young people who have their whole future ahead of them—2050 will be the middle of their working lives. A child who started primary school this September will not even be 35. The world and the economy that they inherit will feel very different from those of today.

If our education system is not preparing young people to mitigate and deal with the impacts of climate change, it is failing them. If it is not teaching them the knowledge and skills they need to thrive in a net zero society, it is failing them. If young people are not being taught to understand the impact of human interaction with the natural world and the need to maintain biodiversity and cut our carbon emissions, it is failing them and our planet. This Bill aims to put that right and to prepare young people for the future, and this Bill is what young people are demanding. In 2018, one survey found that 42% of pupils felt that they had learned a little, hardly anything or nothing about the environment at school, and 68% said that they would like to know more.

This Bill exists only because of the hard work of young people. School students from Teach the Future, who have joined us today in the Public Gallery, have spent the past two years campaigning relentlessly to be taught the truth about the climate crisis and to be equipped with the skills to tackle it. Their campaign has put this issue on the agenda; it now falls to us to put it into law.

The Bill comes in the same month that the UK hosted the COP26. If we want to know whether something was a success, we need to start by asking the people who have the most to lose—people such as 15-year-old Safia Hasan, a climate activist from Chad, who said:

“I’m hugely disappointed and hugely let down by COP. Coming from Chad, millions of my people are suffering but nobody is listening to our cries, our tears. It’s our planet, and it’s time to stop messing about with our future.”

Notwithstanding the disappointing outcomes on climate finance, decarbonising of the energy sector and just transition initiatives, however, I welcome the Government announcement at COP26 that they will take action to promote greater teaching of climate change in the curriculum. That is a key first step and a vital recognition of the importance of climate education, but a voluntary scheme such as the one announced can achieve only so much, and unfortunately the fine print of the announcement was such that it amounts to little more than teachers being sent PowerPoint presentations.

While teaching about the climate remains voluntary, many young people will continue to miss out. Teachers must also be supported to deliver climate education, given that 70% of teachers feel that they have not received adequate training to educate young people about climate change. This Climate Education Bill would make climate education mandatory, embedding it across the national curriculum and ensuring that all teachers receive training. It would be intertwined with every subject, a golden thread that runs through a young person’s schooling, just as the climate crisis and our actions to tackle it run through every aspect of our lives.

Whether those young people grow up to be a builder or a banker, a carer or a caterer, the climate crisis will affect everyone. We need to train the next generation of plumbers to install low-carbon heat pumps, and teach the next generation of chefs about sustainable diets and sustainable food production. This Bill would ensure that climate change is given the emphasis in our education system that it deserves.

The climate and ecological crisis impacts everything around us. Pandemics, such as the one that has turned our world upside-down for the past two years, will become more frequent as loss of habitat forces animals to migrate and come into contact with other animals or people. Climate education will help young people to understand the world around them and provide access to nature and opportunities for children to engage with our natural world. Some 57% of child and adolescent psychiatrists in England see patients who are distressed about the climate crisis and the state of the environment. The Bill would provide support for students to deal with eco and climate anxiety, which climate education will also mitigate, as it will empower students to understand what actions they can take to help tackle climate change and the role that they will play in the future.

I hope that the Government will recognise the Bill as a natural continuation of their announcement at COP26. I hope it will encourage them to go further—to legislate to make climate change part of the core content of all subjects, to support teachers to deliver climate education and to decarbonise the education sector much faster. Not only young people but our entire economy stands to benefit. Our green jobs and recovery plans lag far behind those of most G7 countries. The availability of the right skills and a keen interest in sustainability will pave the way to a productive green transformation and decent job creation.

I am delighted and grateful that the Bill includes among its sponsors the Chairs of the Environmental Audit Committee, the Select Committee on Education, and the Business, Energy and Industrial Strategy Committee. I pay particular thanks to the right hon. Member for Ludlow (Philip Dunne) for his continued leadership on skills and training as part of a just transition to a greener economy, as well as for his personal kindness and support for this campaign.

It is important to be honest about the climate and ecological emergency, but it is also important to remember how much we still have to fight for. Every ray of hope and every inch of progress at COP26 was won through relentless pressure from activists and campaigners, especially those on the frontlines of the crisis. Change has always happened this way, and always will. The next generation are calling on us to take these steps, to secure their future. I want us to listen to them and act for them. Some of us may not be around to see the full results of our actions, but our legacy will live on. We must decide: do we want to be remembered for what we did or for what we failed to do? Young people’s futures depend on us. We must not let them down.

Question put and agreed to.

Ordered,

That Nadia Whittome, Philip Dunne, Robert Halfon, Caroline Lucas, Layla Moran, Mhairi Black, Yvette Cooper, Rebecca Long Bailey, Zarah Sultana, Darren Jones, Clive Lewis and Jeremy Corbyn present the Bill.

Nadia Whittome accordingly presented the Bill.

Bill read the First time; to be read a Second time on Friday 28 January 2022, and to be printed (Bill 197).

Health and Care Bill

Report stage
Tuesday 23rd November 2021 Commons Chamber

2nd Allocated Day

Further consideration of Bill, as amended in the Public Bill Committee

[Relevant documents: First Report of the Health and Social Care Committee, The Government’s White Paper proposals for the reform of Health and Social Care, Session 2021-22, HC 20; Fifteenth report of the Joint Committee on Human Rights, Care homes: Visiting restrictions during the covid-19 pandemic, Joint Committee on Human Rights, Session 2019-21, HC 1375 / HL 278; Second Special Report of the Joint Committee on Human Rights, Care homes: Visiting restrictions during the covid-19 pandemic: Government Response to the Committee’s Fifteenth report of session 2019-21, Session 2021-22, HC 553; Letter from the Care Quality Commission regarding the Committee’s report on Care homes: Visiting restrictions during the covid-19 pandemic, dated 18 May 2021; Report of the Joint Committee on the Draft Health Service Safety Investigations Bill, Draft Health Service Safety Investigations Bill: A new capability for investigating patient safety incidents, Session 2017-19, HC 180 / HL 1064, and Government Response, Cm 9737.]

New Clause 36

Offence of virginity testing: England and Wales

“(1) It is an offence under the law of England and Wales for a person to carry out virginity testing.

(2) ‘Virginity testing’ means the examination of female genitalia, with or without consent, for the purpose (or purported purpose) of determining virginity.

(3) An offence is committed under subsection (1) only if the person—

(a) is in England and Wales, or

(b) is outside the United Kingdom, and is a United Kingdom national or habitually resident in England and Wales.

(4) ‘United Kingdom national’ means an individual who is—

(a) a British citizen, a British overseas territories citizen, a British National (Overseas) or a British Overseas citizen,

(b) a person who under the British Nationality Act 1981 is a British subject, or

(c) a British protected person within the meaning of that Act.

(5) In subsection (2), ‘female genitalia’ means a vagina or vulva.”—(Edward Argar.)

This new clause creates an offence under the law of England and Wales of virginity testing.

Brought up, and read the First time.

13:47

[The Minister for Health (Edward Argar)]

I beg to move, That the clause be read a Second time.

[Madam Deputy Speaker (Dame Eleanor Laing)]

With this it will be convenient to discuss the following:

Government new clause 37—Offence of offering to carry out virginity testing: England and Wales.

Government new clause 38—Offence of aiding or abetting etc a person to carry out virginity testing: England and Wales.

Government new clause 39—Virginity testing offences in England and Wales: penalties.

Government new clause 40—Offence of virginity testing: Scotland.

Government new clause 41—Offence of offering to carry out virginity testing: Scotland.

Government new clause 42—Offence of aiding or abetting etc a person to carry out virginity testing: Scotland.

Government new clause 43—Virginity testing offences in Scotland: penalties and supplementary.

Government new clause 44—Offence of virginity testing: Northern Ireland.

Government new clause 45—Offence of offering to carry out virginity testing: Northern Ireland.

Government new clause 46—Offence of aiding or abetting etc a person to carry out virginity testing: Northern Ireland.

Government new clause 47—Virginity testing offences in Northern Ireland: penalties.

Government new clause 48—Virginity testing: consequential amendments.

New clause 1—Licensing of aesthetic non-surgical cosmetic procedures—

“(1) No person may carry on an activity to which this subsection applies—

(a) except under the authority of a licence for the purposes of this section, and

(b) other than in accordance with specified training.

(2) Subsection (1) applies to an activity relating to the provision of aesthetic non-surgical procedures which is specified for the purposes of the subsection by regulations made by the Secretary of State.

(3) A person commits an offence if that person contravenes subsection (1).

(4) The Secretary of State may by regulations make provision about licences and conditions for the purposes of this section.

(5) Before making regulations under this section, the Secretary of State must consult the representatives of any interests concerned which the Secretary of State considers appropriate.

(6) Regulations may, in particular—

(a) require a licensing authority not to grant a licence unless satisfied as to a matter specified in the regulations; and

(b) require a licensing authority to have regard, in deciding whether to grant a licence, to a matter specified in the regulations.”

This new clause gives the Secretary of State the power to introduce a licensing regime for aesthetic non-surgical cosmetic procedures and makes it an offence for someone to practise without a licence. The list of treatments, detailed conditions and training requirements would be set out in regulations after consultation with relevant stakeholders.

New clause 12—Protection of the title of “nurse”—

“(1) A person may not practise or carry on business under any name, style or title containing the word ‘nurse’ unless that person is registered with the Nursing and Midwifery Council and entered in sub part 1 or 2 of the register as a Registered Nurse or in the specialist community public health nursing part of the register.

(2) Subsection (1) does not prevent any use of the designation ‘veterinary nurse’, ‘dental nurse’ (for which see section 36K of the Dentists Act 1984) or ‘nursery nurse’.

(3) A person who contravenes subsection (1) is guilty of an offence and liable on summary conviction to a fine not exceeding level four on the standard scale.”

New clause 21—Prohibition of virginity testing—

“(1) A person is guilty of an offence if they attempt to establish that another person is a virgin by making physical contact with their genitalia.

(2) A person is guilty of an offence if they provide another person with a product intended for the purpose, or purported purpose, of establishing whether another person is a virgin.

(3) A person is guilty of an offence if they aid, abet, counsel or procure a person to establish that another person is a virgin by making physical contact with their genitalia.

(4) No offence is committed by an approved person who performs—

(a) a surgical operation on a person which is necessary for their physical or mental health; or

(b) a surgical operation on a female who is in any stage of labour, or has just given birth, for purposes connected with the labour or birth.

(5) The following are approved persons—

(a) in relation to an operation falling within subsection (4)(a), a registered medical practitioner; and

(b) in relation to an operation falling within subsection (5)(b), a registered medical practitioner, a registered midwife or a person undergoing a course of training with a view to becoming such a practitioner or midwife.

(6) There is also no offence committed by a person who—

(a) performs a surgical operation falling within subsection (4)(a) or (b) outside the United Kingdom; and

(b) in relation to such an operation exercises functions corresponding to those of an approved person.

(7) For the purpose of determining whether an operation is necessary for the mental health of a girl it is immaterial whether she or any other person believes that the operation is required as a matter of custom or ritual.

(8) This section applies to any act done outside the United Kingdom by a United Kingdom national or resident.

(9) A person who is guilty of an offence under this section is liable, on summary conviction, to imprisonment for a term not exceeding 12 months, to a fine, or to both.

(10) The court must refer the case of any person guilty of an offence under this section who is subject to statutory professional regulation for investigation by the relevant regulator.”

New clause 22—Prohibition of hymenoplasty—

2(1) A person is guilty of an offence if they undertake a surgical procedure for the purpose of re-attaching membrane tissue, creating scar tissue or otherwise attempting to re-create the hymen in the vagina of a patient.

(2) A person is guilty of an offence if they advertise the service of hymenoplasty or any service that purports to ‘re-virginise’ or otherwise re-create or re-attach the hymen of a patient by way of surgical procedure.

(3) A person is guilty of an offence if they aid, abet, counsel or procure a person to undertake a surgical procedure for the purpose of re-attaching membrane tissue, creating scar tissue or otherwise attempting to or re-creating the hymen in the vagina of a patient.

(4) This section applies to any act done outside the United Kingdom by a United Kingdom national or resident.

(5) A person who is guilty of an offence under this section is liable, on conviction, to imprisonment for a term not exceeding 5 years.

(6) The court must refer the case of any person guilty of an offence under this section who is subject to statutory professional regulation for investigation by the relevant regulator.”

New clause 28—Secretary of State’s duty to report on long term workforce planning—

“(1) The Secretary of State must prepare and publish a report each year on projected workforce shortages and future staffing requirements for health, public health and social care sectors in the following five, ten and twenty years.

(2) The report must report projections of both headcount and full-time equivalent for the total health, public health and care workforce in England and for each region, covering all regulated professions and including those working for voluntary and private providers of health and social care as well as the NHS.

(3) The projections must be independently verified and based on projected health and care needs of the population for the following 5, 10 and 20 years, consistent with the Office for Budget Responsibility long-term fiscal projections.

(4) All relevant NHS bodies, arm’s-length bodies, expert bodies, trade unions and the Social Partnership forum must be consulted in the preparation of the report.

(5) The assumptions underpinning the projections must be published at the same time as the report and must meet the relevant standards set out in the National Statistics Authority’s Code of Practice for Statistics.

(6) The Secretary of State must update Parliament each year on the Government’s strategy to deliver and fund the long-term workforce projections.”

New clause 29—Duty on the Secretary of State to report on workforce planning and safe staffing—

“(1) At least every five years the Secretary of State must lay before Parliament a health and care workforce strategy for workforce planning and safe staffing supply.

(2) This strategy must include—

(a) actions to ensure the health and care workforce meets the numbers and skill-mix required to meet workforce requirements,

(b) equality impact assessments for planned action for both workforce and population,

(c) application of lessons learnt from formal reviews and commissions concerning safety incidents,

(d) measures to promote retention, recruitment, remuneration and supply of the workforce, and

(e) due regard for and the promotion of workplace health and safety, including provision of safety equipment and clear mechanisms for staff to raise concerns.”

Amendment 10, in clause 34, page 42, line 12, leave out from beginning to the end of line 17 and insert—

“(1) The Secretary of State must, at least once every two years, lay a report before Parliament describing the system in place for assessing and meeting the workforce needs of the health, social care and public health services in England.

(2) This report must include—

(a) an independently verified assessment of health, social care and public health workforce numbers, current at the time of publication, and the projected workforce supply for the following five, ten and 20 years; and

(b) an independently verified assessment of future health, social care and public health workforce numbers based on the projected health and care needs of the population for the following five, ten and 20 years, consistent with the Office for Budget Responsibility long-term fiscal projections.

(3) NHS England and Health Education England must assist in the preparation of a report under this section.

(4) The organisations listed in subsection (3) must consult health and care employers, providers, trade unions, Royal Colleges, universities and any other persons deemed necessary for the preparation of this report, taking full account of workforce intelligence, evidence and plans provided by local organisations and partners of integrated care boards.”

This amendment would require the Government to publish independently verified assessments every two years of current and future workforce numbers required to deliver care to the population in England, based on the economic projections made by the Office for Budget Responsibility, projected demographic changes, the prevalence of different health conditions and the likely impact of technology.

Amendment 40, in clause 108, page 96, line 9, leave out subsection (2) and insert—

“(2) In this Part ‘protected material’ means—

(a) all statements taken from persons by the HSSIB during a safety investigation or in the course of deciding whether an incident is going to be subject to an HSSIB investigation,

(b) records revealing the identity of persons who have given evidence in the context of the safety investigation,

(c) information that has been collected by the HSSIB which is of a particularly sensitive and personal nature, such as (but not limited to) copies taken by the HSSIB of health records, care records, clinical notes, or personnel records,

(d) material subsequently produced during the course of an HSSIB investigation such as (but not limited to) notes, drafts and opinions written by the investigators, or opinions expressed in the analysis of information obtained through the investigation,

(e) drafts of preliminary or final reports or interim reports, and

(f) information that would be subject to legally enforceable commercial privileges.”

This amendment would define more closely the materials covered by the “safe space” protection provided for by the Bill.

Amendment 41, page 96, line 32, leave out

“information, document, equipment or other item held by that individual”

and insert “protected material”.

This amendment is consequential on Amendment 40.

Amendment 43, in clause 109, page 96, line 43, leave out from “Part” to end of line 24 on page 97.

This amendment would remove the ability of the Secretary of State to make regulations authorising disclosure of protected material beyond that provided for in the Bill.

Amendment 74, page 101, line 1, leave out clause 115.

Government amendments 24 and 127.

Amendment 57, page 110, line 11, leave out clause 127.

This amendment seeks to ensure that a profession currently regulated cannot be removed from statutory regulation and that regulatory bodies cannot be abolished.

Government amendments 86 and 87.

Government new schedule 1—Virginity testing: consequential amendments.

Government amendment 88.

Amendment 42, in schedule 14, page 218, line 30, leave out paragraph 6.

This amendment would remove the provision allowing coroners to require the disclosure of protected material.

[Edward Argar]

This broad group of amendments concern improving patient safety and the quality of health and care services, both of which are a priority for this Government. For that reason, this Bill will put the Health Services Safety Investigations Body on a statutory footing. The HSSIB will be one of the first independent healthcare bodies of its kind, leading the way in investigating for the purpose of learning, not blaming. For the HSSIB to be able to perform this “no-blame” role, the integrity of safe space is paramount. I look forward to contributions from right hon. and hon. Members from both sides of the House, recognising the depth of expertise, particularly that residing in the hon. Member for Central Ayrshire (Dr Whitford), on how best to make safe space work. As we discussed extensively in Committee, we recognise that ultimately this comes down to: what is the appropriate balance to be struck? Different views are likely to be aired again today.

Within this group, I will also address amendments brought forward by colleagues, including my right hon. Friend the Member for South West Surrey (Jeremy Hunt), on the health and social care workforce. Ensuring we have the workforce this country needs will, in the short-term, tackle the elective backlog. Crucially, in the long-term, as we build back better, it will help to reduce damaging health inequalities. For those reasons, I will later speak in more detail about this Government’s plans on the workforce, some of which of course are already in motion. I hope I can reassure the House that the provisions already made in this Bill, alongside the Government amendments I am about to discuss, do go sufficiently far to address these important issues.

I will begin by addressing new clauses 36 to 48, new schedule 1 and amendments 86 and 87, which comprise the package of Government amendments to prohibit virginity testing in the UK. I offer my deepest thanks to my hon. Friend the Member for North West Durham (Mr Holden) for his tireless efforts in proposing these amendments originally and in supporting the Government in proposing our variations on them, which we believe achieve the right balance—I will turn to that in a moment—as we bring forward this ban.

I should also put on the record my gratitude to the Opposition Front-Bench team for their constructive engagement on this issue, which does not divide us on party political lines but is about doing the right thing. I am grateful to the shadow Ministers on the Opposition Front Bench: the hon. Members for Ellesmere Port and Neston (Justin Madders) and for Nottingham North (Alex Norris).

In July, the Government promised in our violence against women and girls strategy that virginity testing will not be tolerated in the UK and will be banned at the earliest opportunity, so I am delighted that we are introducing amendments that demonstrate the strength of our commitment to the removal of all forms of abuse against women and girls. Our amendments will create three offences: conducting a virginity test; offering virginity testing; and aiding or abetting another person to conduct a virginity test in the UK or on UK nationals overseas. Each offence will carry a maximum penalty of five years’ imprisonment and/or an unlimited fine. This sentencing reflects the long-term physical and psychological damage that this repressive practice can cause.

The offences begin to tackle the harmful misconceptions that surround a woman’s sexuality. This House’s commitment to legislate is a profoundly important step forward in helping to tackle the damaging myths concerning the so-called purity of women’s sexuality. In response to concerns that, once the offence is banned in the UK, vulnerable women and girls will be taken abroad and subjected to virginity testing there, the offences will carry extraterritorial jurisdiction.

The proposals have been discussed by Health Ministers throughout the UK, including in the devolved Administrations, and I am working with them to ensure that the whole of the UK together tackles this abhorrent practice. I put on record my gratitude to the devolved Administrations for the constructive manner in which they have engaged on the issue. I hope that the House will pass the amendments today and allow us to take another step forward in our shared endeavour and important work on safeguarding and improving the lives of women and girls throughout the United Kingdom.

Let me turn briefly to new clause 21, tabled by my hon. Friend the Member for North West Durham—I thank him again for doing so. I hope that what I have said will reassure him and the rest of the House that the package of Government amendments that I have just discussed go further to protect women and girls from this form of abuse and are the most effective vehicle by which we can achieve what we seek to do. Our package of amendments set out that the conducting, offering or aiding of a virginity test is simply indefensible. The amendments ensure that victims are protected on our shores and abroad and that the sentencing of those convicted reflects the detrimental physical and psychological impacts of the practice. I therefore hope that my hon. Friend will feel able not to press his new clause to a vote and instead to support our amendments. I am incredibly grateful to him—as, I am sure, is the House—for his campaigning vigour on this issue.

My hon. Friend also tabled new clause 22, which seeks to ban the practice of hymenoplasty. The Government remain concerned that hymenoplasty is also driven by a repressive approach to female sexuality and is closely related to virginity testing, which we have made clear today is not an acceptable practice in the United Kingdom or elsewhere. We announced in the violence against women and girls strategy that we would set up an independent expert panel to explore the complex clinical, legal and ethical aspects of the procedure in more detail. The panel, which includes key stakeholders with ethical and clinical expertise, has already met and will shortly make its recommendations to Ministers, before Christmas. It is crucial that, having asked the panel to contribute, we carefully consider its views before we make a firm decision to ban hymenoplasty. However, I assure the House that although we cannot accept the new clause today because we await the recommendations of the review panel, we will of course fully reassess our position as soon as the panel makes its recommendations.

If we are to ensure patient safety and quality of care, it is vital that we have the workforce in place to deliver it. That is a priority for the Government and I reassure the House that we are taking the necessary steps to secure the workforce of the health and social care sector. Members throughout the House would all agree that although investment in technology, in new hospitals and buildings, in therapeutics and in kit are all phenomenally important, the golden thread that makes that investment valuable is the workforce—the people who always go above and beyond, particularly in the past 18 months, to make that equipment more than just a shiny piece of kit but something that actually saves lives. They are absolutely the heart of what we are doing.

[Chris Grayling (Epsom and Ewell) (Con)]

I am particularly concerned about the workforce situation in primary care. In my constituency, the practices are reporting back not only on an acute shortage of locums, but on their ability to recruit new GPs. One reason is that, 10,15, 20 years ago, there was inadequate planning for the future and we did not train enough doctors. That is one reason why I have signed amendment 10 tabled by my right hon. Friend the Member for South West Surrey (Jeremy Hunt). May I urge the Government to go beyond where they have been and to look for any way available to deal with this issue now, and particularly to plan for the future so that this does not happen again?

[Edward Argar]

My right hon. Friend is perspicacious in his prediction of where I was about to go. I was about to turn to amendment 10 tabled by my right hon. Friend the Member for South West Surrey and new clause 28 tabled by the shadow Minister, which go to the heart of what my right hon. Friend is talking about.

I hope the shadow Minister will agree that amendment 10 and new clause 28 are, essentially, broadly unified in their intention and therefore I hope that he will allow me to take them both together. They require the Government to publish independently verified assessments of current and future workforce numbers for the needs of the health, social care and public health services in England.

There has rightly been much discussion on workforce planning for the NHS and adult social care. That reflects the deep debt of gratitude that the country owes the staff and also, as I said, their absolute indispensability in delivering on all our aspirations for healthcare and social care in this country and for our constituents’ care.

As part of our commitment to improving workforce planning, my Department is already doing substantial work to ensure that we recover from the pandemic and support care. We have already committed to publishing, in the coming weeks, a plan for elective recovery and to introducing further reforms to improve recruitment and support for our social care workforce, with further detail set out in an upcoming social care White Paper. We are also developing a comprehensive national plan for supporting and enabling integration between health, social care and other services, which support people’s health and wellbeing.

Let me turn to that framework, to which my right hon. Friend the Member for Epsom and Ewell (Chris Grayling) was alluding, for a longer-term perspective. The Department has already commissioned Health Education England to work with partners to develop a robust, long-term 15-year strategic framework for the health and social care workforce, which, for the first time, will include regulated professionals in adult social care. That work was commissioned in July by my hon. Friend the Member for Faversham and Mid Kent (Helen Whately) when she was in post in the Department. That work will look at the key drivers of workforce demand and supply over the longer term and will set out how they impact on the required shape and numbers of the future workforce to help identify those main strategic choices, and we anticipate publication in spring of next year.

It is vital that the workforce planning is closely integrated to the wider planning across health and social care and, as such, Health Education England, which has established relationships with the health and care system at a local, regional and national level, is best placed to develop such a strategy. Crucially, following the announcement yesterday of HEE merging with NHS England in improvement, we will, for the first time, bring together those responsible for planning services, for delivering services on the ground, and for delivering on the workforce needs of those services so that we can have a more integrated approach to delivering on that framework.

[Richard Fuller (North East Bedfordshire) (Con)]

I am grateful to the Minister for giving way. There is much to commend in the amendment of my right hon. Friend the Member for South West Surrey (Jeremy Hunt) and in what the Minister is saying. One thing that is not obvious in either, though, is the focus on labour costs and productivity. For example, how is technology going to reduce labour costs in the delivery of the same quality or higher quality of service? What is the possibility of creating new care pathways, which require less qualified staff to deliver as good or better service? What is going on in terms of reducing the proportion of non-clinical staff by the adoption of technology and other means in healthcare? Perhaps the Minister could address that. I am sure that my right hon. Friend will be doing so later, too.

[Edward Argar]

My hon. Friend is absolutely right. We see huge opportunities, almost every day, from new technology and new ways of using that technology to deliver more efficient and shorter turnaround times—for tests and diagnostics, for example. He is also right to talk about the need constantly to examine care pathways, and, where opportunities exist, to use highly qualified healthcare professionals but to look carefully at the most appropriate level at which a treatment or test can be carried out; historically, we may have used healthcare professionals for particular tasks for which they were almost over-qualified. It is right that care pathways are informed by clinical and scientific expertise and judgment, but that we continue to review how new technology, new ways of working and new care pathways can improve the productivity of our amazing workforce.

14:00

[Emma Hardy (Kingston upon Hull West and Hessle) (Lab)]

As part of the Minister’s workforce review, will he look at the Carr-Hill formula, which local GPs tell me incentivises GPs to go to areas with longer life expectancy—therefore, wealthier areas—at the expense of areas such as Hull? It feels like the funding mechanism for GPs is not fair.

[Edward Argar]

The Carr-Hill formula has been through many “almost reviews” over the years and has been looked at by different Governments. Various GP practices in my constituency—as I am sure is the case in the hon. Lady’s—understandably raise opinions about how the formula might be improved. The point does not necessarily goes to the entire heart of what we are discussing, but she has managed deftly to make it within scope, in the context of GPs and so forth.

Finally, the report in clause 34 will increase transparency and accountability of the workforce planning process. It is for those reasons that I encourage—perhaps unsuccessfully—my right hon. Friend the Member for South West Surrey and the shadow Minister, the hon. Member for Ellesmere Port and Neston, to consider not pressing their amendments to a Division.

[Rachael Maskell (York Central) (Lab/Co-op)]

Fifteen years is a long time in workforce planning. The make-up of the workforce could change significantly over that time, not least as we are trying to address some real workforce crises now. Will the Minister put in place a road map to fill those vacancies over that time, and interim reports so that we can review progress?

[Edward Argar]

I set out the commissioning of the 15-year framework to look at need. Within that, the House will be regularly updated, as happens now—not least in oral questions, as we saw in the session preceding this debate—with plenty of opportunities for Members to challenge the Government and to see updates. There is also the regular publication of figures and workforce statistics, which will continue. Once we have that 15-year framework back and see what HEE says, we will be able to look at how best that might be interrogated by Members of the House and the wider public. I am hopeful that it will report back in the spring, and I suspect that that may well occasion a debate in this House. If not, I suspect that it may well occasion an urgent question from the hon. Lady or the hon. Member for Ellesmere Port and Neston.

Let me turn to new clause 29, which also addresses the issue of workforce planning. This new clause would place a duty on the Secretary of State to report on workforce planning and safe staffing. I have just elaborated at some length on the substantial work that my Department is doing to improve workforce planning. It remains the responsibility of local clinical and other leaders to ensure safe staffing, supported by guidance and regulated by the Care Quality Commission. The ultimate outcome of good-quality care is influenced by a far greater range of issues than how many of each particular staff group are on any particular shift at any one time, even though that is clearly important, which is why the Government are committed to growing the health workforce. It is also important that local clinical leads can make decisions based on the circumstances in their own particular clinical setting, utilising their expertise and knowledge.

The amendment would also require the report to contain a review of lessons learnt. In the last decade, the Government have introduced significant measures to support the NHS to learn from things that go wrong, reduce patient harm and improve the response to harmed patients, such as: a regulated duty of candour that requires trusts to tell patients if their safety has been compromised and apologise; protections for whistleblowers when they raise safety concerns; the Healthcare Safety Investigation Branch, which we are building on and establishing as a separate statutory body through the Bill; and the first-ever NHS patient safety strategy, with substantial programmes planned and under way to create a safety and learning culture in the NHS.

I hope I have given the House some reassurance that we are doing substantive work to improve safe staffing and workforce planning. Again, I encourage the shadow Minister—perhaps it will be unsuccessful, but it is always worth trying—to consider withdrawing his amendment.

[Dr Andrew Murrison (South West Wiltshire) (Con)]

New clause 29(2)(d) has merits, as I am sure the Minister will accept, in that we need to incentivise people to join health and care, and, crucially, to be retained with the system. Will he give some consideration to this, particularly given that, for example, somebody working in the care system can work for years and years and still be in the same place when it comes to applying for a training place in a profession allied to medicine as somebody who simply has a couple of A-levels? That seems to be wrong. Does he agree that we need to complete the structure so that there is some prospect of progression with health and care and to try to break down the barriers between the two?

[Edward Argar]

As ever, my right hon. Friend—my friend—makes his point well, and, as ever, I will commit to taking it away and reflecting on it very carefully. He is always very considered in the points he makes in this House, so I am happy to look at it.

I turn to Government amendment 127, which I bring forward with support of the Welsh Government. Clause 127 on professional regulation provides additional powers that will widen the scope of section 60 of the Health Act 1999 and enable the Privy Council to make additional changes through secondary legislation. One of the powers within this clause is to enable the regulation of groups of workers concerned with physical and mental health, whether or not they are generally regarded as a profession. This element of the clause falls within the legislative competence of the Senedd. When the section 60 powers are used, they are subject to the existing statutory requirements in schedule 3 of the Health Act 1999— namely, consultation and the affirmative parliamentary procedure. When legislation made using section 60 powers also falls within areas of devolved competence, it will be developed in collaboration with the devolved Administrations. Orders may require the approval of the Scottish Parliament where they concern professions brought into regulation after the Scotland Act 1998, or of the Welsh Assembly where the order concerns social care workers. In Northern Ireland, where the regulation of healthcare professions is a transferred matter, the UK Government will continue to seek the agreement of the Northern Ireland Executive when legislating on matters that effect regulation in its territory.

The amendment introduces a requirement to obtain the consent of Welsh Ministers before an Order in Council can be made under section 60 of the Health Act 1999 when it contains a provision that would be within the legislative competence of the Senedd. It would apply if we were seeking to bring into regulation in Wales a group of workers who are concerned with physical or mental health of individuals but who are not generally regarded as a profession. The UK Government recognise the competence of the Welsh Government regarding this provision and are respecting the relevant devolution settlement in making this amendment. For these reasons, I ask hon. Members to support the amendment.

Finally, I turn to the amendments related to part 4 of the Bill on the health services safety investigations body. These are the most significant set of provisions found within this Bill to enhance patient safety. The establishment of an independent healthcare body focused on learning from mistakes to improve safety and quality is a world first. For the health service safety investigations body to be able to perform this “no-blame” role, the integrity of safe space is paramount. Without it, health and care staff will not have confidence to come forward, and potential learning will be lost. This principle runs throughout the drafting of these clauses. We have made a small number of exceptions in the Bill—for example, to ensure that coroners can continue to perform their vital functions as judicial office holders and effectively as part of the judiciary. We have also provided for a regulation-making power to ensure that safe space can evolve in line with innovation in technology or medical practice. However, nothing in the Bill can or will undermine the imperative that the HSSIB is an independent organisation or the fundamental importance of safe space to the effective working of that organisation.

[Dr Philippa Whitford (Central Ayrshire) (SNP)]

Will the Minister give way?

[Edward Argar]

Yes, of course, although I do so with a degree of trepidation, because the hon. Lady is well versed in these issues.

[Dr Whitford]

The Minister does not need to be anxious, because he has already heard it all in Committee. Does he not recognise that there is nothing in HSSIB that takes away from coroners’ investigations that they carry out at the moment, and that HSSIB should not be seen as replacing that work by another health body? Adding coroners to it has already created a campaign relating to the ombudsman and freedom of information, and there is a real danger that it weakens the safe space.

[Edward Argar]

I am grateful for the manner in which the hon. Lady puts her points. She is right; we have debated this previously. We have been publicly clear that we do not believe that the exemption or exception should be extended to the ombudsman. She is right that there are campaigns saying we should have no exceptions or that we should widen the exceptions. We believe we have struck the right balance with this measure, while respecting the fact that a coroner is a judicial office holder and has a very specific function to perform, as set out in legislation in—this is where my memory may fail me—the Coroners and Justice Act 2009, which recognises their particular and special status. I suspect that she and I may have to agree to disagree on whether the appropriate balance is struck, but that sets out why we have done what we have done.

How best to achieve an effective safe space is complex and the current drafting has been arrived at through years of detailed policy work, including pre-legislative scrutiny before the Health Service Safety Investigations Bill was introduced in the other place in autumn 2019. The issue was also debated at length in Committee, and I look forward to hearing contributions from Members on that, particularly the hon. Member for Central Ayrshire.

Turning to the two minor and technical Government amendments to the health service safety investigations body provisions, amendment 24 is a technical amendment to clarify the definition of “investigation” that applies to part 4 of the Bill. Investigations carried out by HSSIB by agreement under clause 114, which relate to Wales and Northern Ireland, were never intended to be part of the main investigation function of HSSIB and therefore will not be covered by the safe space or other investigatory power provisions provided for in the Bill. The amendment ensures that the drafting of the Bill fully reflects that original policy position. I hope that hon. Members on both sides of the Chamber will be content to pass this technical amendment.

Finally, I turn to Government amendment 88 to schedule 13. Schedule 13 contains a regulation-making power which allows the Treasury to vary the way any relevant tax has effect in relation to associated transfer schemes. Regulations made under this power will be used to ensure that no unintended tax consequences arise. The amendment ensures that value added tax is included in the taxes which the Treasury can, by regulations, vary when considering the transfer schemes in this Bill. Without this amendment, it is possible that complications with VAT bills may arise when transfer schemes are made and transactions take place. It is for those reasons that I ask hon. Members to support this amendment.

I am conscious that other hon. and right hon. Members may wish to speak to their amendments. I look forward to addressing those that I have not directly addressed thus far when I wind up debate on this group of amendments. With that, I conclude.

[Justin Madders (Ellesmere Port and Neston) (Lab)]

I thank the Minister for his introduction. It seems like only yesterday that we were having a similar exchange across the Dispatch Box.

I will begin with our new clauses 28 and 29 and amendment 10. This discussion about workforce could well be the most important of all today. Just this weekend, Chris Hopson from NHS Providers was trying to get the Government to acknowledge the seriousness of the problem when he tweeted:

“93k NHS staff vacancies. £6bn spend on temporary staff to fill gaps. 55% of staff working unpaid extra hours each week. 44% saying they’ve felt ill with work related stress. NHS desperately needs long term workforce planning. Govt must make this happen this week.”

Everything comes back to workforce and the failure to invest in it consistently over a sustained period. Today we have a chance to correct that.

While we favour our new clause 29, it is obvious that amendment 10 has captured the attention of many and may well be put to a vote. In many ways, as the Minister said, it closely mirrors what we have put forward, so I will be making my general points on both the new clauses and the amendment. In supporting amendment 10, I pay tribute to the right hon. Member for South West Surrey (Jeremy Hunt), the Chair of the Health and Social Care Committee. Given his previous role, he is well placed to have an informed view on what needs to be done, and he has done that with this amendment without undue hype or drama. The support he has obtained more widely from stakeholders outside the House is impressive; indeed, the way he has united just about the entire sector shows not only his powers of persuasion, but the importance of the issue. He has come close to uniting the entire sector in the past, but that was usually in opposition to something he was proposing, rather than in support. There may be many other areas where we have disagreed in the past, but that does not diminish our support for his call.

14:15

[Jeremy Hunt (South West Surrey) (Con)]

May I just comment that it feels a lot better this time?

[Justin Madders]

Let us just say that the more I hear of the right hon. Gentleman, the more I like what he has to say—I will leave it there.

We all accept the urgent need to address the workforce crisis, but I cannot find anyone who thinks that what the Government have put forward in clause 34 is the solution.

[Alex Sobel (Leeds North West) (Lab/Co-op)]

A doctor in my constituency, Dr Tom James, told me that he and his colleagues in the hospital were demoralised, exhausted and at the end of their tether, particularly after the covid crisis, in a building that was falling apart around them. He said there was no more goodwill, and the Government needed to grab hold of this crisis and resolve it. Are new clause 29 and amendment 10 not a minimum, rather than a maximum, for what we should be looking to achieve?

[Justin Madders]

New clause 29 and amendment 10 are the starting point, not the whole answer. They are a framework for getting this right in the future and offering the workforce, which, as the Minister said, has given so much in recent times, some hope that there will be better times along the way. I will refer later to the report by the Health and Social Care Committee on workforce burnout, which brought home just how demoralised the workforce have become and why they need to be given some positive news today.

[Rachael Maskell]

Anyone who on Sunday was on the March with Midwives will understand the real crisis now facing that profession—a particularly acute once since it is also about women’s health. Is there not a need to ensure that plans are not just on paper, but expedited, so that we are sure of seeing real delivery of those much-needed staff?

[Justin Madders]

Like just about every profession and sector in the NHS, midwives are under tremendous pressure and are understaffed. We need a clear plan, and a plan that is delivered. Of course, having a plan is not the whole answer, which is why it is important that we hear regular reports back from the Secretary of State on progress. That is why we hope amendment 10 will be supported.

[Emma Hardy]

One reason I want to emphasise the importance of new clause 28 is that we are anticipating a greater demand for mental health services, and therefore a greater demand for mental health professionals working in the NHS. Only by having regular reviews will we be able to anticipate what that demand will be and prepare accordingly.

[Justin Madders]

My hon. Friend is correct; we could not have anticipated what has happened in the past 12 to 18 months, but we can see what it means moving forward. Regular reviews of demand are critical, and we know that training these highly qualified and skilled staff takes time, which is why a longer-term view and approach are required.

[Richard Fuller]

I want to pick up on the increasing demand for mental health services. Does the hon. Gentleman accept that in general, it is utterly impossible to meet the expectation of increasing demand for health services without vast improvements in the efficiency with which people working in the health and care sector deliver that service? Is it not a shortcoming of both the Government and the Opposition that there is not an intense focus on solving that problem of labour cost productivity? Without that, we will not be able to meet current needs and we certainly will not meet future needs.

[Justin Madders]

We are always looking at ways to improve productivity, but we know that on the current figures there are 100,000 staff vacancies in the NHS. No amount of productivity gains will cover for that.

[Munira Wilson (Twickenham) (LD)]

The hon. Member for North East Bedfordshire (Richard Fuller) talks about efficiency, but the figures show that in 2019-20, some £6.2 billion was spent on bank and agency staff. If we are talking about efficiency and using all the extra money the Government are saying they will put in to catch-up, we need to provide value for money for the taxpayer. Therefore, long-term planning to recruit the right skills is critical.

[Justin Madders]

I thank the hon. Member for her intervention. The point about agencies and locum spend is not a new one. It will be interesting to see the figures for the last 12 to 18 months when the Minister has finally ratified them, because I suspect they will be even higher than those we have heard recently.

[Dr Whitford]

Having spent over three decades in the NHS, I know that this is not just about senior staff and what are called frontline staff. It is said, “We’ll protect frontline staff, but we’ll cut administrative staff or backroom staff.” However, if I am not in a clinic with the right results with the right patient at the right time, I am a waste of space. In actual fact, we need to look at the whole team. There is a sweet spot where I am working flat out but I have a team who are helping me. If we cut any of those, then we lose efficiency, and as the hon. Member for Twickenham (Munira Wilson) said, costs are going up, so we are becoming not more productive, but less productive.

[Justin Madders]

I thank the hon. Member for her intervention. Indeed, this actually covers some of the debate we had in Committee. There has been a rhetoric coming out of Government in recent months that managers are somehow a cost burden and that administrative staff do not actually help deliver the services. Of course, as the hon. Member has just pointed out, they are a vital source of support for those on the frontline.

[Dr Murrison]

The hon. Member is being generous in giving way. Would he avoid the temptation to suggest that productivity is in some way simply a demand for hard-pressed people in health and social care to work harder? It is not that at all. It is just doing what they want to do, which is to work smarter and thus get more out of the system, which I think is what the hon. Member for Central Ayrshire (Dr Whitford) has just said.

[Justin Madders]

I accept what the right hon. Member has said. There has been a gap in investment in IT and other things that make people’s jobs easier and more efficient, and that has been a characteristic of NHS spending over the last decade.

With your permission, Madam Deputy Speaker, I will try to make some progress, but it is important, as we have talked about the staff, that we pay tribute to all those who make the NHS what it is today. On Nursing Support Worker Day, I pay tribute to all those who work in wards, clinics and community settings to support our nurses and provide that essential hands-on care to patients.

Our care system does indeed face a crisis—over waiting times, over recovery—but as with all other crises, the root cause is inadequate funding. The most visible and significant symptom is an inadequate workforce, plus the scandal of social care provision. There is no plan at the moment; it is just a plan for a plan. When we talk about a workforce crisis, that cannot be in any way a reflection on the huge value and contribution of the workforce we have now.

There are particular positive aspects to amendment 10 to which I would like to draw attention. Explicit recognition of the need to consult with the workforce through trade unions is very welcome. The planning covers health and social care, which is also absolutely essential. Given the scope of the review, the timescale is about right—every two years is demanding, but not too onerous—but a regular update each year might be preferable. However, the main point, which I have made already, is to compel a regular report and review of demand. The central role is that the Secretary of State has a duty to get planning done, and we hope that will be a crucial lever for the change we need to see.

If the amendment has a weakness, it is probably the one we have touched on already, which is that it does not ensure that the plan is feasible or delivered. A plan that shows the gap is not a plan unless it has a credible funding solution alongside it. Even if that is not explicit in the amendment, we assume that funding would follow any such assessment and plan that is set out. Our suggestion would be that any such financial projections in a plan are subject to the same level of independent expert verification as we see with the Office for Budget Responsibility. Since all the various think-tanks are going to do an assessment anyway, we may as well have a built-in process for verification.

[Rachael Maskell]

Does my hon. Friend agree with me that many of the recruitment challenges often sit in outsourced services in the private sector, and as a result it is really difficult to find the complement of staff required because people want to work in the NHS? That needs to be taken into consideration in any workplace plan.

[Justin Madders]

I thank my hon. Friend for her intervention and I will later talk a little about outsourcing and the role it has to play. We believe that plans should be built from the bottom up, not from the top, and that implies the involvement of ICBs, NHS trusts and foundation trusts. ICBs and their strategic arms, integrated care providers, will not be functional for some time. That is a shame, but it does not mean we should not proceed with the amendment.

The scale of the workforce challenge is well established: high rates of vacancy, inadequate levels of retention, and much more. It goes far deeper than numbers and structures, to issues of workforce terms and conditions, particularly in social care. It must also cover cultural issues, as there is a clear indication that all is not well in the NHS in terms of diversity. There is also whistleblowing, and aspects of how staff are nurtured and supported. At its very best, the NHS is very good, but unfortunately that is not the story across the board. It should be good in every part.

On that theme, let me mention the continuing disgrace in the way that some members of the NHS workforce are treated. I find it unacceptable that cleaners, porters, catering and IT staff are still being outsourced by trusts that are trying to make tax savings or outsource services to the lowest bidder. Perhaps the Minister can look into the current dispute at South Warwickshire in that regard, as we do not think that is a template to follow. Workforce planning is not a problem that can be solved quickly, although increased funding in social care could help that. For the NHS, the long term is indeed a long time—for example, the time needed to develop and train GPs and consultants. More money is not the only answer; technology and reform of the way we work must all be part of the mix. However, the labour-intensive nature of care will not fundamentally change, so we must look at workforce numbers as the priority. It is often said that failing to plan is the same as planning to fail. Some colleagues believe that a failure to plan is exactly that—a route to ending the NHS as we know it by showing that it fails. However, the Bill suggests an acceptance that a plan is needed, and work is under way. Hopefully that work is not being handed out to more consultants, of whom we see enough already.

Labour will support the amendment tabled by the Chair of the Health and Social Care Committee, which we hope will be pushed to a vote. I hope I have not been too effusive in my comments about him—I have a reputation to maintain after all—but I will refer to the excellent report done by his Committee on workforce burnout, which in many ways is the cornerstone of what we are debating. In its conclusion, the Committee said:

“The emergency that workforce burnout has become will not be solved without a total overhaul of the way the NHS does workforce planning. After the pandemic, which revealed so many critical staff shortages, the least we can do for staff is to show there is a long term solution to those shortages, ultimately the biggest driver of burnout. We may not be able to solve the issues around burnout overnight but we can at least give staff confidence that a long term solution is in place.

The way that the NHS does workforce planning is at best opaque and at worst responsible for the unacceptable pressure on the current workforce which existed even before the pandemic.

It is clear that workforce planning has been led by the funding envelope available to health and social care rather than by demand and the capacity required to service that demand. Furthermore, there is no accurate, public projection of what health and social care require in the workforce for the next five to ten years in each specialism. Without that level of detail, the shortages in the health and care workforce will endure, to the detriment of both the service provision and the staff who currently work in the sector. Annual, independent workforce projections would provide the NHS, social care and Government with the clarity required for long-term workforce planning.”

That conclusion shows what we are trying to achieve today. That is the nub of it: if not now, when? When will the Government finally accept the obvious that has been staring them in the face for years?

New clause 29 would require the Secretary of State to lay before Parliament a fully funded health and care workforce strategy to ensure that the numbers, skill and mix of healthcare staff are sufficient for the safe and effective delivery of services. It builds on other amendments, and seeks further assurances by putting patient safety and safe staffing levels at the heart of workforce planning, by setting out how the Government will be required to act to assess and rectify shortages. It seeks to ensure that the workforce will be on a sustainable footing in future. Patient safety should be our primary concern. We have the evidence base: when there are not enough registered nurses, mortality rates change and health outcomes are worse. I accept that the level of detail in the new clause is significant, but we consider that necessary to underscore the importance of setting out how this will be delivered.

14:30

New clause 12, which deals with the use of the title “nurse”, follows one that we tabled in Committee, on which we got sympathy and agreement from the Minister but were told that it was not quite good enough. Nevertheless, we will continue to support new clause 12, for the reasons we have already set out. Even if it does not get approval today, we hope that the Government will look into the issue and involve all those who need to be involved in trying to reach a satisfactory conclusion.

Currently, the title “registered nurse” is protected but “nurse” alone is not, meaning that anyone can legally call themselves a nurse. Under current legislation, someone could operate under the title “nurse” even if they have no nursing qualifications or experience, or indeed if they have previously been struck off. To protect the public, the title “nurse” should be limited to those who are registered with professional regulators, such as registered nurses and dental nurses, as is the case with titles such as “paramedic” and “physiotherapist”, which are limited to those on professional registers. The issue of the title “nurse” not being protected in law has long caused concern in the profession. There have been many examples where the use of the title appears to have been abused, and it is about time we put an end to that.

I turn to the issues covered by Government new clauses 36 to 48, which appear to respond to new clauses 21 and 22. New clause 21, in the name of the hon. Member for North West Durham (Mr Holden), would prohibit virginity testing. This horrendous so-called procedure has absolutely no basis in science; instead, it is based entirely in misogyny. The Royal College of Midwives states:

“We are clear that virginity testing is a violation of women’s and girls’ human rights. In addition to being wholly indefensible and offensive, there is no medical benefit to virginity testing, and it is in any event not possible to conclude through an examination of the hymen whether or not a woman or girl is a virgin (even if such an examination was justifiable),”

which, clearly, it is not. Similarly, the World Health Organisation has said that this is a practice of abuse.

The hon. Member for North West Durham has done a superb job in advocating for the end of this gross practice and, as with the new clause he tabled in Committee, he has assembled a strong cross-party coalition of support for new clause 21. We are therefore pleased to see that Government new clauses 36 to 48 seek to consign this practice to history.

[Mr Richard Holden (North West Durham) (Con)]

I thank the hon. Member for giving way, and I apologise to the Minister for not being here at the very start; I was on a train back from a ministerial visit in my constituency. I would just like to pay tribute to some of the campaigners who are in the Public Gallery at the moment, particularly those from Karma Nirvana, the Iranian and Kurdish Women’s Rights Organisation, the Middle Eastern Women and Society Organisation, and the Royal College of Obstetricians and Gynaecologists. Does the hon. Member agree that it is those campaigners and charities who have worked on this issue for a very long time who have really brought it to the fore—they have just been supported by some Members of this House—and that it is they who deserve the credit?

[Justin Madders]

I thank the hon. Member for his intervention. I think he is being very modest, but he is absolutely right that these things do not happen by accident. It is often the hard work, over many years, of campaigners and campaign groups who being these issues to the fore and do the diligence and the hard work behind the scenes that leads us to the sort of outcome that we will hopefully get today—an end to this abhorrent practice.

On the hon. Member’s other amendment, new clause 22, we also want to see hymenoplasty ended. It has no medical benefit whatsoever. As the Minister said, there is currently an expert panel looking at the issue, and he is waiting on its recommendations. I think the outcome is in little doubt, to be frank. However, I wonder whether the Minister can give us an assurance that, should those recommendations turn out to be as we would expect, he will be able to act on them quickly and get something down in statute as soon as possible so that we do not miss the boat.

Turning to the amendments on the health services safety investigations body, much of the proposed legislation is the same as that proposed in the other place, and there were extensive debates on this matter in Committee. There are, however, issues that remain, which are covered by amendments we will be debating today. I can imagine the other place having quite a lot to say about some of these issues. In general, we support the move to the new body, but over time attention must be applied to some aspects of the way it will function in practice. Our major reservation is, yet again, with the involvement of the Secretary of State. Our amendment 74 would have the effect of leaving out clause 115, which is another clause that gives the Secretary of State extra powers to interfere.

Our general observation would be that there is far too much extra power going to the Secretary of State in the Bill anyway, but we are particularly concerned at the powers set out in clause 115, which give him what we consider to be wholly unnecessary powers to direct. It is pretty much a blank cheque to enable him to step in and interfere any time he likes as long as he considers that there has been a significant failure. Under subsection (2), the Secretary of State can direct the HSSIB in whatever manner he determines, which I would have said is about as far away from independence as we can get—until we get to subsection (4), which means the Secretary of State can also effectively step into the HSSIB’s shoes and undertake the duties himself. I can do no better than refer to the evidence Keith Conradi gave to the Public Bill Committee, when he said:

“Ultimately, we end up making recommendations to the Department of Health and Social Care, and in the future I would like to ensure that we have that complete freedom to be able to make recommendations wherever we think that they most fit.”––[Official Report, Health and Care Public Bill Committee, 7 September 2021; c. 60.]

We also support the amendments put forward by the spokesperson for the Scottish National party, the hon. Member for Central Ayrshire (Dr Whitford), which are important in preserving the principle and status of protected spaces. We feel it is important that they cannot be nibbled away at, as the Bill currently allows.

The purpose of amendment 57, which we also tabled in Committee, is simply to delete clause 127, which deals with the role of the Secretary of State in professional regulation. So far, we have had no convincing explanation of why the Secretary of State needs these powers. If there are no professions that he wishes to remove, we do not need the clause. If there are, he should say so, so we can have a debate now on whether it is appropriate to hand over those powers to him.

Finally, on new clause 1, I pay tribute to the all-party parliamentary group on beauty, aesthetics and wellbeing, whose work in this area has been influential in producing it. Many of the group’s members have put their name to it. As we know, cosmetic treatments can include a wide range of procedures aimed at enhancing or altering appearance. Many of those procedures are becoming increasingly popular and new clause 1 speaks to the well-articulated concern that non-medically and medically trained practitioners are performing treatments without being able to provide evidence of appropriate training, and without required standards of oversight and supervision.

I hope the Members moving new clause 1 will have the opportunity to speak to it, as there are far too many stories of people suffering horrific, life-changing injuries. There would undoubtedly be a saving to the NHS in reduced visits to accident and emergency and GPs to correct mistakes made by poorly trained and unregulated practitioners. We therefore think the new clause has value. Some of the impacts on the NHS from the lack of regulation include outbreaks of infection at a skin piercing premises, resulting in individuals being hospitalised; disfiguration and partial removal of an ear; second and third-degree burns from lasers and sunbeds; allergic reactions due to failures to carry out patch tests or medical assessments, which led to hospitalisation; and blindness in one eye caused by the incorrect administration of dermal filler.

New clause 1 seeks to put the protection of the public at the forefront by giving the Secretary of State power to bring into force a national licensing scheme for cosmetic procedures. Clearly, given that this is a departure from the wild west we face at the moment, we recognise that significant research and engagement with stakeholders will be needed to develop a scheme, as well as the provision of a practical and efficient system for people to become regulators and practitioners. If that does not make it on to the face of the Bill today, we hope this is an issue the Government will return to shortly.

[Jeremy Hunt]

I rise to speak in support of amendment 10 but, before I do, I also want to express strong support for amendments 40 to 43, tabled by the hon. Member for Central Ayrshire (Dr Whitford), which will make a big difference in making the new health services safety investigation body a success. I strongly encourage the Minister to listen to what she says later not just with the deference due to an experienced surgeon, but with the enthusiasm to follow a doctor’s advice, because what she says is extremely important.

I also thank the hon. Member for Ellesmere Port and Neston (Justin Madders) for his generous comments about me. Having sat opposite him at the Dispatch Box on many an occasion, I realise how difficult they must have been for him to say. He must have wrestled with those thoughts for a long time, and I am delighted that he has been able to unburden himself today.

The hon. Gentleman was absolutely right to focus on burnout in the NHS workforce. All of us would agree that NHS and care staff have done a magnificent job looking after us and our families in the pandemic, but right now they are exhausted and daunted. They can see that A&E departments and GP surgeries are seeing record attendances. They can see nearly 6 million on waiting lists, which is more than one in 10 of the population. They also have the vaccine programme and covid patients.

[Jim Shannon (Strangford) (DUP)]

I commend the right hon. Gentleman for amendment 10. With 2,700 vacant nursing posts in Northern Ireland, and 40,000 in the NHS as a whole, will the amendment offer more nursing bursaries, train nurses up to relieve the pressure, and provide a decent working environment?

[Jeremy Hunt]

I believe it will. I am grateful to the hon. Gentleman for raising that issue, because medical training is relevant to the whole United Kingdom, not just one part of it. I hope the amendment will be beneficial to Northern Ireland as well.

If we put ourselves in the shoes of any frontline doctor, nurse or care worker, we would see that they are all completely realistic that this is not a problem that can be solved by next Monday. It takes a long time to train a doctor or nurse. All they have is one simple request: that they can be confident that we are training enough of them for the future, so that even if no immediate solution is in place, there is a long-term solution. That is the purpose of amendment 10. It simply requires the Government to publish every two years independently verified estimates of the number of people we should be training across health and care.

The Government have recognised the pressures on the NHS by giving generous amounts of extra funding. I commend the Government for doing that, but extra money without extra workforce will not solve the problems that we want to solve. At the moment, the NHS just cannot find the staff.

[Munira Wilson]

I congratulate the right hon. Gentleman on amendment 10 and on how he has built such a coalition of support. Many of the challenges facing those with mental health concerns are because, as he says, there simply is not the workforce—it has hardly grown over the past decade. There are over 16,600 full-time equivalent vacancies and a waiting list of 1.5 million. His amendment, which would require a report every two years, is so important for ministerial accountability because the targets in the five year forward view have not been met, so we have no chance with the 15-year projection.

[Jeremy Hunt]

The hon. Lady gives a good example, because mental health is an area that we have all recently come to realise can be immensely beneficial to ourselves, our families and our constituents. However, while there has been explosive growth in demand, we have not had growth in the supply of people able to look after those with mental health issues. We can only do that with the kind of long-term planning that amendment 10 will make possible.

The royal colleges say that, as of today, there are shortages of 500 obstetricians, 1,400 anaesthetists, 1,900 radiologists, 2,00 A&E consultants, 2,000 GPs, 39,000 nurses and thousands of other allied health professionals. That is why this problem has become so acute.

The Minister has engaged thoughtfully with me on the issue on a number of occasions. He and I both know that there is some concern in the Government about the cost of training additional doctors and nurses. I want to take that concern head on. Yes, the amendment would lead to more doctors, nurses and professionals being trained. Yes, that would cost extra money. Yes, it would save the NHS even more money, because every additional doctor we train is an additional locum we do not need to employ. Locums are not only more expensive for the NHS, but less good for patients. Patients prefer to see the same doctor on every visit if they possibly can, which is much harder with a high number of temporary workers.

14:44

[Dr Whitford]

It is not just that patients prefer to see a doctor long term. There are safety issues when locums in acute specialties move from hospital to hospital, particularly if they are dealing with an acute case. They do not know where things are or who to phone; passwords and phone numbers change. There is a real safety issue with having too many locum staff in the very exposed acute services.

[Jeremy Hunt]

I absolutely agree with the hon. Lady, who knows about acute services. I also point to recent evidence from Norway that shows the same for general practice: patients who see the same GP over and over again go to A&E departments less than patients who see different GPs.

[Dr Murrison]

The hon. Member for Central Ayrshire (Dr Whitford) is absolutely right about acute safety; I speak from personal experience. My right hon. Friend is right about general practice, but the issues are different. In general practice, the issue is chronic long-term care: patients need to know that practitioners have a view of their condition that spans a long period—sometimes generations. The issues are very different in acute and primary care, but they come to the same thing.

Does my right hon. Friend agree that part of the problem with the workforce is not recruitment, but retention, particularly the retention of senior doctors in their mid-50s? It pains me to say it in this consensual debate, but the root cause is the GP contract and the consultant contract brought in by the last Labour Government. Those contracts incentivise people—in my demographic, as it happens—to leave, potentially leaving the service short of 10% of their entire career.

[Jeremy Hunt]

My right hon. Friend is right that there are problems with the GP contract. I do not want to get into too many discussions about doctors’ contracts in this very consensual debate, but Conservative Members have to take responsibility for not having remedied the pensions anomaly, which gives people an incentive to retire much earlier than we would want. We have to address that issue.

Lots of people might reasonably ask whether I did enough to address the issues in the nearly six years that I was Health Secretary. The answer is that I set up five new medical schools and increased by 25% the number of doctors, nurses and midwives we train. However, that decision was taken five years ago and it takes seven years to train a doctor, so not a single extra doctor has yet joined the workforce as a result.

That is the nub of the problem: the number of doctors, nurses and other professionals we train depends on the priorities of the current Secretary of State and Chancellor. As a result, we have ended up with a very haphazard system that means that although we spend about the average in western Europe on health, as a proportion of GDP, we have one of the lowest numbers of doctors per head—lower than any European country except Sweden.

[Dr Whitford]

All Governments in the UK are expanding medical school places and trying to train more students, but that has led to a shortage of foundation places. In the first two years after a doctor graduates, they are not allowed to practise outwith a foundation job, and they can never practise if they do not go through a foundation job. In the summer, about 400 young graduates were still struggling to find a place. It took 19 years from my entering medical school to my becoming a consultant surgeon. We need to think not just about medical school, but about the whole pathway.

[Jeremy Hunt]

The hon. Lady is absolutely right. Medical school, the foundation years and, as my right hon. Friend the Member for South West Wiltshire (Dr Murrison) said, the retention of staff—all those things need to be built into long-term planning and baked into the system.

That long-term planning strikes a contrast, if I may say so, with some of the short-termism that we have seen recently. Even in the recent Budget and spending review, the budget for Health Education England, which funds the training of doctors in this country, was not settled. Although I think that the proposed merger with NHS England is probably the right thing to do, I fear it will mean that the budget is not settled for many more months, at precisely the moment when the workforce crisis is the biggest concern for the majority of people in the NHS.

[Greg Clark (Tunbridge Wells) (Con)]

My right hon. Friend is making an excellent speech, and I strongly support his amendment. Will he add to the list of factors that need to be considered in the future the requirement for many research scientists in medical sciences to be trained in medical schools first? If we want to expand and build on the excellence that we have there, it is not just a question of meeting the needs of the NHS workforce; we need to have extra people who can become the brilliant researchers and discoverers of new medicines in the future.

[Jeremy Hunt]

My right hon. Friend speaks about these issues with a great deal of knowledge, given his former ministerial and Select Committee roles, and he is absolutely right. I think that the big lesson from the pandemic, and indeed an issue that emerged in the report that our Committees jointly produced, is the way in which science can add value to clinical practice and clinical practice can add value to science.

[Rachael Maskell]

One of the key workforces is, of course, in public health, where the aim is to shift the balance by increasing prevention so that we do not need all the doctors and nurses and other health professionals further down the road. The health visitor delivery programme led to a heavy stream of new health visitors, but it had other consequences. That is another reason why the right hon. Gentleman’s amendment is so important: we see rapid changes in the workforce which could have other consequences.

[Jeremy Hunt]

I thank the hon. Lady, who before entering this place spent her time campaigning to support NHS and care staff. She speaks with great experience, and I think that the fundamental point she makes is very important. Unless there is long-term strategic planning, when we have a priority such as the one we have at the moment of tackling the backlog, we will often make progress on that priority by sucking in staff from other areas, which then suffer. That is an unintended consequence which happened when I was Health Secretary, and I fear that it will happen again without a long-term strategic framework.

Amendment 10 has wide support. It is supported by 50 NHS organisations, including every royal college and the British Medical Association—an organisation which, to be honest, is not famous for supporting initiatives from me—and by six Select Committee Chairs and all the main political parties in this place. I am sure that the Government will ultimately accept it, because it is the right thing to do, but if they are intending to vote it down today, I would say to them that every month in which we delay putting this structure in place is a month when we are failing to give hope to NHS staff on the front line.

Let me end by quoting the Israeli politician Abba Eban, who said that

“men and nations behave wisely when they have exhausted all other alternatives.”

Let us prove him wrong today by supporting amendment 10.

[Dr Whitford]

I am delighted to follow the Chair of the Health and Social Care Committee, and, in this rather unnerving outbreak of consensus and good humour, to mirror his speech and add my support to his amendment on workforce planning.

It is important to remember that healthcare is not delivered by hospital buildings or fancy machines; it is delivered by people to people, which is why the most important asset in any health service is its workforce. As I pointed out in an earlier exchange with the right hon. Gentleman, we need a long-term view, because it takes a long time to train senor specialists. As I said to him, it took 19 years from my entering medical school to my becoming a consultant breast cancer surgeon. We will struggle to work out what specialties we might need in 20 years’ time, because medicine is evolving, but many aspects and many sectors of staff do not change. If we do not get even those right, we are constantly in a position of drought and thirst, and it is not possible for staff to evolve—to pick up new rules, to use new techniques and to develop new services.

Although this workforce strategy would apply only in England, I would encourage consultation with the Health Secretaries and the workforce bodies in the devolved nations, because junior doctors in particular tend to move around during their training. During the junior doctors’ strike, which the right hon. Member for South West Surrey (Jeremy Hunt) might remember rather painfully, I talked to students on the picket lines whom I had trained. People move around, and it is important that such a strategy does not end up just sucking staff out of the three devolved health services. Also, many aspects of medical training are controlled on a UK basis. Foundation places for new graduates are decided on a UK basis, for example, so it is important to take that wider view.

The workforce shortage is the biggest single challenge facing all four national health services across the UK. It has been exacerbated by the loss of EU staff after Brexit, with an almost 90% drop in EU nurses registering to come and work in the UK. Early retirements are being taken due to the Government’s pension tax changes, which, as has been highlighted, have not been sorted out and are resulting in senior doctors paying to go to work. There is only so long that they will continue to do that. Finally, there is the exhaustion of dealing with a pandemic for the past 18 months. This is why it is really important, when we talk about NHS recovery, to have a greater focus on staff wellbeing and on their recovery. There can be no recovery of the NHS without them. I am really disappointed to see how the clapping of last spring has turned to severe criticism and attacks directly from members of the public, from sectors of the media, and even from some Members in this place and members of the Government.

I shall now speak to my own amendments 40 to 43, which seek to tightly define the materials covered by the safe space protections as part of Health Service Safety Investigations Body investigations. The idea behind HSSIB was to learn from air accident investigations and to provide a confidential and secure safe space in which healthcare staff could be open and candid in discussing any patient safety incidents. I was on the pre-legislative scrutiny Committee, which was chaired by the hon. Member for Harwich and North Essex (Sir Bernard Jenkin), and the recommendations of that cross-party—and indeed cross-House—Committee were very clear: evidence gathered under the safe space protocols should be protected and disclosed to third parties only in the most pressing situations, such as an ongoing risk to patient safety or criminality. Despite that, there are aspects of this Bill that could undermine the principle of the safe space, and that is what I am seeking to amend.

Amendment 40 would define he safe space materials much more tightly, because it seemed as though anything that HSSIB was using would be covered by the safe space protocol and that exemptions would then be made, whereas it makes much more sense to be very clear about the materials that are defined as protected materials. Therefore, all the original clinical information—medical notes, etc—would still be available to all the other bodies to enable them to carry out their investigations as they do now.

Amendment 43 would remove the ability of the Secretary of State to use regulation at a later date to authorise the wider disclosure of protected materials beyond the provision that is finally passed in this Bill. Amendment 42 would remove the provision allowing coroners to require disclosure of protected materials, as this has already led to calls for access by other health bodies and even freedom of information requests, as I highlighted in my earlier intervention. If a coroner uses safe space materials in their report, that report is public. The question is: how are they going to handle that so that the safe space materials are not further disclosed? It is critical to defend this. It is important to stress that HSSIB does not limit anyone else’s access to original materials, but nor should HSSIB be seen as an easy way for other bodies to avoid doing the legwork and carrying out their own investigations.

HSSIB will not apply in Scotland, where the Scottish patient safety programme is focused more on preventing patient safety issues in the first place. My interest is purely personal, as a surgeon. I experienced the impact of the Scottish patient safety programme when it was introduced to operating theatres in 2007. It cut post-operative deaths by 37% within two years. It has subsequently been rolled out to maternity, psychiatry, primary care and all the main sectors. It has not just reduced hospital mortality, but prevented morbidity—such as pressure sores, leg thrombosis or sepsis, which all in their own way cost the NHS a huge fortune.

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I recognise the innovative approach and the potential impact of HSIB, but I fear that if NHS staff do not trust the confidentiality of the supposed safe space, they will not be candid in giving their opinions. Most patient safety incidents are caused either by wider issues such as staffing levels or communications, or by the failure to develop a system that stops an individual error resulting in patient harm. It is relatively rare for the person left holding the baby to be the person entirely to blame. That is the whole argument for shifting from blaming to learning.

Therefore, it is vital to ensure that the staff have that confidence. We will be asking them to talk about their part in an incident—what role did they play in something going wrong—if we are to understand how it could have been prevented. The principal aim is to ensure that shift from blaming to learning, to turn the NHS in England into a learning organisation. The end result of that would be greater patient safety. That is surely what all of us are trying to achieve.

[Laura Trott (Sevenoaks) (Con)]

I will speak mainly to new clause 1, but I cannot start without paying tribute to my hon. Friend the Member for North West Durham (Mr Holden) for his work to ban virginity testing. It is an abhorrent practice and high time it was made illegal.

I speak to new clause 1 in the names of my right hon. Friend the Member for Romsey and Southampton North (Caroline Nokes) and the right hon. Member for North Durham (Mr Jones), among others. The existing situation, absurdly, is that someone may walk into a clinic and easily and legally get a treatment that could blind them, and there is absolutely no regulation whatever. For some time, we have talked about fixing the issue, and my private Member’s Bill—now the Botulinum Toxin and Cosmetic Fillers (Children) Act 2021—which was passed with the support of many Members of the House, has been able to bring some regulation to this space. Under-18s are now able to get only non-cosmetic interventions, and that by legal practitioners alone.

For those over the age of 18, however, there is no protection. Save Face, a campaigning organisation, last year received 2,000 complaints from people. Those are complaints not about the clinics people were in being dirty, but practitioners being uninsured or unable to fix the problems created when patients were given injections or fillers. People had necrotic or rotting tissue, which individuals would have to pay for themselves to get fixed. It is unacceptable that we are in a situation where that can take place with no regulation by Government.

I am afraid that is a pattern over time, across many Governments, of issues that primarily affect women not having the attention that they deserve. I am hopeful that we make some progress today. I pay tribute to my right hon. Friend the Member for Romsey and Southampton North on tabling her amendment.

[Margaret Greenwood (Wirral West) (Lab)]

The Health and Care Bill allows for

“a profession currently regulated to be removed from statutory regulation when the profession no longer requires regulation for the purpose of the protection of the public.”

Labour voted against the relevant clause in Committee, but we were defeated by the Government. I therefore tabled amendment 57, which would remove clause 127 from the Bill and ensure that a profession currently regulated cannot be removed from statutory regulation, and that statutory regulatory bodies cannot be abolished. I am grateful that the amendment received cross-party support.

The removal of a profession from regulation is deeply concerning because, once a profession is deregulated, we can expect the level of expertise in that field to decline over time, and along with that the status and pay of those carrying out those important roles. It also brings with it serious long-term implications for the health and safety of patients. In the White Paper that preceded the Bill, the Government stated:

“This is not about deregulation—we expect the vast majority of professionals such as doctors, nurses, dentists and paramedics will always be subject to statutory regulation. But this recognises that over time and with changing technology the risk profile of a given profession may change and while regulation may be necessary now to protect the public, this may not be the case in the future.”

It is notable that the Government only “expect” that the vast majority of professionals will be subject to statutory regulation, but they give no guarantee. The fact is, if the Bill passes, Ministers will be able change their mind at any point and make changes through secondary legislation.

The Government appear to be arguing that technological advances may change roles to such a degree that the high level of professional expertise that currently serves the NHS will no longer be needed. I will make two points about that. First, if the work of an NHS profession has changed to such a degree that regulation is no longer needed, I would argue that it is a different profession and needs a new job title. Secondly, when deploying new technology, there is always a need for professional staff with a high level of expertise and understanding of not only the functionality of that new technology, but its shortcomings. Technology has the power to improve productivity, but it should not be used as an excuse to deregulate professions.

It is important to consider where the impetus for that proposal may be coming from. The recent lobbying scandal certainly gives us a clue when we consider the number of MPs on the Government Benches with private interests in medical technology—I do not want to elaborate on that today, but to make the point. Certainly, big business is keen on deregulation, because it allows them to pay lower salaries to staff.

During a seminar on wellbeing, development, retention, and delivering the NHS people plan and a workforce fit for the future, a representative of Virgin Care said:

“We should have flexible working for all. We should consider what that means. We should embrace what that means. Both of those things really push what has been quite a traditional work model across the NHS. We need to be more modern. We need to have a think about how we rip up the old rule book. But change in an area that is very risk averse because the nature of the work we do is really tricky, so we need our leaders and our workforce to embrace trying things”.

That was an alarming statement for her to make. I think we would all agree that healthcare professionals’ understanding of risk and the importance of mitigating risk is incredibly important. It is always a matter of concern when business says that it wants to “rip up” the rule book on employment rights and pay.

Yesterday, in the Minister’s summing up, he said that

“the Bill does not privatise the NHS.”—[Official Report, 22 November 2021; Vol. 704, c. 151.]

I have to say, however, that I disagree. ICBs—integrated care boards—will be able to delegate functions, including commissioning functions, down to provider collaboratives, and provider collaboratives can be made up of private companies. I do not understand what it is that the Minister does not understand about that.

Add to that the fact that the abolition of the national tariff will open up the opportunity for big business to undercut the NHS, this is a potent situation indeed, and one that will be exploited by big business if the Bill goes through. The late Kailash Chand, former honorary vice-president of the British Medical Association said:

“The core thrust of the new reforms is to deprofessionalise and down skill the practice of medicine in this country, so as to make staff more interchangeable, easier to fire, and services more biddable, and, above all, cheaper”.

The removal of professions from regulation is a part of that scenario he described.

I turn now to workforce planning. There is a workforce crisis in the NHS. In fact, that is probably an understatement. Earlier this year, I met members of the Royal College of Nursing in the north-west, who told me of the sheer exhaustion that they are experiencing because of staff shortages. I was struck by how, even at this point when they were describing how they are on their knees with exhaustion, their primary concern was patient safety. We owe it to them to address the matter. The British Medical Association highlighted:

“Burnout has led to significant numbers of medical professionals considering leaving the profession or reducing their working commitments”.

According to the latest figures, there are well over 90,000 full-time equivalent vacancies in England’s NHS providers. The best the Government can come up with is in this Bill is to require the Secretary of State to publish a report, at least once every five years, describing the system in place for assessing and meeting the workforce needs of the health service in England. That is woefully inadequate. The Royal College of Physicians says that this duty on the Secretary of State

“falls short of what is needed given the scale of the challenge facing the health and care system”.

The Royal College of Paediatrics and Child Health is among those who have called for this duty to be strengthened in the Bill. I ask the Government to listen to the expertise of those bodies.

The Government’s plans to remove NHS professions from regulations is wholly unacceptable and it is particularly alarming at a time when there are such acute shortages of staff, right across NHS professions. We all value the NHS highly and respect the high level of professionalism in the service. Instead of looking to deregulate professions, the Government should be investing in the training of the next generation of professionals.

[Mr Andrew Mitchell (Sutton Coldfield) (Con)]

I draw the House’s attention to my interests, which are set out in the Register of Members’ Financial Interests, and to the fact that my wife is an NHS GP and has been for the past 30 years.

I rise to support amendment 10, tabled by my right hon. Friend the Member for South West Surrey (Jeremy Hunt), as it seems to be absolutely right. I cannot understand why the Minister, an extremely good Minister, is not obliging the Government to accept it in full. It is clear from what is being said across the House that my right hon. Friend has achieved an unexpected unity. Even brilliant junior hospital doctors who in the past have marched against some of his policies are four-square behind what he is saying today and the work his Committee is carrying out so brilliantly.

I wish to make three points about why the House and indeed the Government would be wise to support my right hon. Friend’s amendment today. The first is that, for reasons he has set out eloquently, as has the hon. Member for Central Ayrshire (Dr Whitford), who speaks on these matters for the Scottish National party, burnout in the NHS is an incredibly serious issue. The need for us to project how many people we are going to need in all the different disciplines in the health service has never been greater, and the workforce requirements have never been more uncertain. As has been so eloquently set out, the cost of that uncertainty is paid in locums, with all the difficulties and downsides that have been mentioned.

I wish to quote a note I have had from Dr Rahul Dubb, the lead doctor in Royal Sutton Coldfield. He successfully led the roll-out of the vaccinations in our town hall and he is extremely experienced. He says, “A greater understanding is needed as to why doctors are leaving the profession. It is clearly multi-factorial across the generations. One of the reasons includes pension rules. These penalise staff wanting to work more hours due to capped taxation rules, deterring senior staff from staying, and may lead to a significant exodus from the profession. In these circumstances, it is essential that far more effort is put into projecting future workforce numbers and how many are required to meet future need.” In my judgment, Dr Rahul Dubb is absolutely right in what he is saying.

The second reason is that the Government should listen carefully to what my right hon. Friend has said. During his time as Health Secretary—no one in the House has been so long at the crease and has as much experience as him—he significantly increased the number of doctors who will be trained. We were particularly pleased in Birmingham to see the additional work that Aston University has been able to do to bring those who might have felt themselves excluded from the medical profession into contention, so that they could go to university and achieve their ambition of qualifying as medics. Having that sort of analysis—the analysis that is behind his amendment—is right in securing value for money. I have been dismayed that when we had the measures to increase national insurance earlier this year—this was greatly to the credit of the Government for grasping a nettle that so many have not grasped before—those on the Treasury Bench were extraordinarily disinterested in checking that value for money for this additional taxpayer spend was achieved. When I suggested that we should account to our constituents through the Treasury, making certain that we understood where this £1.2 billion was going, the answer from those on the Treasury Bench was extremely lacklustre. Ensuring value for money and that we get these judgments right will save money and, for the reasons that have been set out, will make medicine and the treatment of our constituents that much safer. As my right hon. Friend set out, the whole sector is united behind this amendment, and the Government should hear that loud and clear.

15:15

The third and final reason why I have every intention of supporting my right hon. Friend in the Lobby this afternoon, and why I urge my right hon. and hon. Friends to do likewise, is that in this country we have for far too long been pinching doctors from the developing world to make up for the shortfall that he is seeking to address. Long-term planning is vital to stop that. It is grossly irresponsible of this country to pinch doctors from the developing world at any stage, but particularly in the aftermath of a global pandemic, yet that is one of the things we continue to do. It is an abrogation of British international leadership to act in that way. I remind the House that not so long ago more doctors trained in Sierra Leone were practising medicine in Chicago than were practising medicine in Sierra Leone—we cannot ignore that.

For all three of those reasons, I urge the House to support my right hon. Friend and amendment 10 this afternoon.

[Dawn Butler (Brent Central) (Lab)]

I rise to speak in support of new clause 12, which stands in my name and those of many hon. Members across this House, on the protection of the title of “nurse”. The Government’s response to Alison Leary’s petition implies that we are on the same page on the issue of protecting the title. As the Minister said, this is not a party political thing; it is about the safety and protection of patients and the public. I hope that the Government will vote in favour of new clause 12 today, as it is long overdue and brings nurses into line with paramedics and physiotherapists in terms of the protection of titles.

It is shocking that anybody can call themselves a nurse, whether or not they have any qualifications or a first aid certificate—they may have no qualifications at all and they can call themselves a nurse. As we know, when someone calls themselves a nurse, that gives them a certain standing in society and people automatically think they know what they are doing. The nursing profession has some harrowing stories of parents taking advice from somebody who called themselves a nurse but was not one, and the tragic and devastating consequences. It is really important that we have the opportunity to put this right today—in fact it would be dangerous not to do so. Throughout the pandemic, people have been struck off as nurses, yet they are still using the title of “nurse” as they publicly deliver misleading and dangerous information about the pandemic. The public and patients have the right to know that the treatment and advice they receive is from a registered healthcare professional.

Many other countries protect the title of “nurse”. The protection of the title is supported by more than 70 nursing organisations, including the Queen’s Nursing Institute, the Institute of Health Visiting, charities, those representing the public using health and social care, Unison Health, Unite and the Royal College of Nursing and its Professional Nursing Committee.

[Taiwo Owatemi (Coventry North West) (Lab)]

I would like to put on record my support for nurses, particularly on Nursing Support Workers’ Day. Does my hon. Friend agree that the priority that nurses are asking for and that NHS staff are looking for is not restructuring, but investment in resources, a plan to address the staff shortages and retention struggles that the NHS has, and a clear strategy to address the winter waiting times and demands on services such as operations and GP services?

[Dawn Butler]

My hon. Friend makes a valid and valuable point. One way we can show our appreciation for nurses’ work is to protect their title, but we should not do that instead of addressing any of the issues she mentioned, along with ensuring that they receive a pay rise.

I thank the people who have petitioned for the change in my new clause for a number of years, including the former Secretary of State, the right hon. Member for South West Surrey (Jeremy Hunt), who is no longer in his place but supports my new clause; the Labour Front-Bench team; Ann Keen; the chief nursing officer for England, Ruth May; Professor Mark Radford, the chief nurse at Health Education England; the previous chief nursing officer for Northern Ireland, Charlotte McArdle; Andrea Sutcliffe, Matthew McClelland and the Nursing and Midwifery Council; Mr Paul Trevatt; Professor June Girvin; Dr Crystal Oldman; Ms Shamim Donatta Ayiecho; Ms Leanne Patrick; Mr Gerry Bolger; Ms Catherine Eden; and the Florence Nightingale Foundation leadership scholars. The Government know that there is a lot of support for new clause 12 and I hope it passes today.

[Caroline Nokes (Romsey and Southampton North) (Con)]

It is a pleasure to contribute to this debate and specifically to speak to new clause 1, tabled in my name and the names of the right hon. Member for North Durham (Mr Jones) and many other Members throughout the House. First, though, I pay tribute to my right hon. Friend the Member for South West Surrey (Jeremy Hunt) for his incredibly important amendment on the workforce. I also pay tribute to my hon. Friend the Member for North West Durham (Mr Holden) for his crucial new clauses on virginity testing and hymenoplasty. As the Chair of the Women and Equalities Committee, I was pleased to be able to support those amendments and am delighted that the Government have introduced their own new clauses on those issues.

I wish to talk specifically about aesthetic non-surgical cosmetic procedures, which may seem quite trivial in comparison with the important matters I just referred to, but I vividly remember visiting a doctor in my constituency and talking to her about her experience when a patient came to her after she had had far too much lip filler placed into her lips by an unqualified and inexperience practitioner. The poor girl’s lips had, frankly, exploded, leaving her permanently scarred and with the prospect of many years of corrective surgery to try to rebuild her face. That is the stark reality.

The hon. Member for Brent Central (Dawn Butler) spoke about people being able to call themselves nurses when they are not nurses; aesthetic cosmetic practitioners can not only call themselves that but perform all sorts of procedures, some of which we would find it bizarre and disturbing to talk about and, indeed, at some of which we might look with absolute horror when they are reported on the internet and in the pages of national newspapers. I am talking about semi-permanent make-up and permanent tattooing, which can leave people permanently disfigured. The semi-permanent variety can fade to leave people with bizarre blue eyebrows that require many different procedures to be put back to normal. The list is long: we are talking about tattooing, botox and laser treatment—just imagine the damage that high-powered lasers can do to somebody’s skin when in unqualified, untrained hands.

[Dr Whitford]

Along with the damage to patients who trustingly go for such procedures, is it not also about the fact that when they go horrifically wrong, as sometimes they do, it is the NHS that ends up having to pick up the pieces?

[Caroline Nokes]

I thank the hon. Lady for using exactly that term because she is right: it is about the NHS picking up the pieces and spending taxpayers’ money trying to correct something that should not have been done in the first place. If it is to be done to somebody, it should be done only by the qualified, trained and, as my new clause argues, licensed. I call today for some form of licensing or regulation. I absolutely accept that the Minister may view my new clause as deficient and not doing what he would want it to do. I appreciate the fact that he took the time to meet me and other Members last week to discuss the issue, because there are concerns throughout the House.

I pay particular tribute to my hon. Friend the Member for Sevenoaks (Laura Trott), who has done so much work on injectables in respect of under-18s and deserves absolute credit for getting her private Member’s Bill on to the statute book. That is amazing work and I really appreciate the fact that she has done it. Nevertheless, we need to do more and to go further.

I pay tribute to a number of my constituents who, following the work I did last year on the beauty industry, approached me on this issue. In particular, I pay tribute to Dr Chris Rennie of Romsey Medical Aesthetics, and to Dr Mitra Najafi, who has developed an incredible process by which plasma-rich platelets are extracted from a patient’s blood and injected back into them. It is a highly medicalised procedure and her big worry is that if it falls into the hands of somebody who is unregulated and unlicensed, it could be extremely dangerous indeed. Those with medical qualifications absolutely understand how they have to treat blood products; the stark reality is that those without do not.

I pay tribute to aestheticians—I struggle to say that word—such as Naomi O’Hara who came to me, as someone who practises, to call for regulation and licensing.

I pay tribute to a lady who is not my constituent but travelled to Romsey to see me: Tania Gough, who publishes the Image Directory. Her concern was that it is perfectly possible for someone to set themselves up in practice with next to no training whatsoever. She spoke to me of some of the horror stories that she herself had seen and some of the training courses she had gone on that she said were quite simply not worth the money she paid for them or the waste of her time. She said that certificates were issued at the end of such courses that gave the impression that people were qualified and trained when in fact they had had no more than a couple of hours—in one case it was 90 minutes—of training.

I also pay tribute to the Chartered Institute of Environmental Health and the Joint Council for Cosmetic Practitioners; they have been incredibly supportive and helpful in the drafting of new clause 1. The Joint Council for Cosmetic Practitioners says:

“The creation of a national licensing scheme for practitioners of aesthetic non-surgical cosmetic procedures would ensure that all those who practise are competent and safe for members of the public.”

To my mind, that is the abiding word: safe. We want those who receive these sorts of treatments not to be putting themselves in harm’s way.

I look forward to the Minister’s response; I know he is listening on this issue. He can expect me not to push my new clause to a vote, but I very much hope he can show us a constructive way forward that may take us to the regime that we want to see.

[Tonia Antoniazzi (Gower) (Lab)]

I could speak about so many aspects of the Bill—such as the U-turn on the social care cap, the lack of action to include health inequalities, allowing private healthcare providers to access our NHS and, frankly, whether a reorganisation of the NHS at this time of crisis is what we need to support all our healthcare workers—but I am sure that colleagues will more eloquently cover a lot of those points in their contributions. As the chair of the all-party parliamentary group on cancer, I will restrict my comments to the amendment on the NHS workforce tabled by the right hon. Member for South West Surrey (Jeremy Hunt).

Staffing is the biggest challenge facing the NHS. The Prime Minister claims to be building 40 new hospitals; if that ever happens, they will be of no use to anyone if there are not the doctors, nurses, radiotherapists, pharmacists, porters, cleaners and other staff to look after patients. As we have already heard, the NHS had 100,000 vacancies before the pandemic started. That, coupled with the intense strain and burnout that staff have suffered over the past 18 months, is causing a crisis in staffing that needs bold action now.

The Budget was a missed opportunity to invest in the people who make the NHS great, but amendment 10 would go some way to rectifying that. According to research from Macmillan, it is estimated that we need an extra 3,371 cancer nurse specialists by 2030—that is a doubling of the number of cancer nurses in just over eight years if we are to have any chance of providing the care and support that patients deserve. Macmillan has worked out that it would cost £174 million to train and develop specialist cancer nurses to plug the gap. Any increase in funding would be passed on to devolved Governments through Barnett consequentials. In the grand scheme of things, £124 million in England, £31 million in Scotland, £12 million in Wales and £7 million in Northern Ireland is not too much to ask of the Government—it is probably in the region of the amount of money spent on security for the Prime Minister’s trip to Peppa Pig World at the weekend.

15:39

As chair of the all-party group on cancer, I would like to extend my thanks to the other all-party groups and their chairs for their support on this issue. We have been appalled by the stories that we have heard from people living with cancer and going through treatment. Twenty five per cent. of people diagnosed with cancer in the past two years have not had specialist nursing support. Laura from North Yorkshire is living with incurable secondary breast cancer. When she spoke at the Breast Cancer Now event, she said:

“Being told that I had incurable secondary breast cancer felt like going into the abyss. What I need most is emotional and psychological support, yet I still don’t have a specialist nurse. I’ve had to find my own way through the dark days.”

I would like to put on record my heartfelt thanks to the cancer workforce who are doing all they can at this moment. They are crucial to the diagnosis and treatment of cancer. The shortages in the workforce have had a devastating effect on outcomes. People are now being diagnosed through visits to A&E with later stages of cancer, the consequences of which do not bear thinking about. The mental and physical health of the cancer workforce is suffering, too; they are at breaking point.

I have accompanied nurses to Downing Street to deliver a petition calling for the cancer workforce fund. I have spent time with Miriam Dibba Demba, a specialist gynaecology, oncology clinical nurse at St Bartholomew’s Hospital, and Eamon O’Reilly, a Macmillan lead nurse for cancer and chemotherapy at the Chelsea and Westminster Hospital NHS Foundation Trust. That is when we know that something has to change for the future, because the care and support that cancer nurses provide has been a lifeline for so many living with cancer. I urge the Government to put in place the funding to ensure that this essential support can continue.

[Richard Graham (Gloucester) (Con)]

I rise to speak on amendment 10. I want to start by relaying a conversation that I had soon after being elected 11 years ago in Gloucester. I talked to the chief executive of a hospital trust—he has subsequently moved on—and asked him how many nurses a year we needed to replace those who have retired and resigned, and to cope with increasing demand, not just in the hospital trust but including district nurses and nurses to cover the whole panoply of our needs in the county of Gloucestershire. He explained that we needed roughly 400 a year at that time. I asked him how many we were training. He said that the University of the West of England trains around 120 graduates a year from its nursing outlet in Gloucester. How do we meet the gap, I asked, and he said, “Well, we advertise. We try to encourage people from London to look for a change in their lifestyle and we recruit from abroad.” I asked him where that got us to. He said, “Well, it increases the numbers, but it never gets us enough. We struggle with a permanent shortfall of recruitment.”

Over the next few years, I worked on three things. The first was to support the Government push to create nursing associates. The second was to encourage the University of Gloucestershire to become a nursing teaching university and to submit an application to get pilot project status for the nursing associates’ training. Both of those came to pass. They were a credit to the Government, a credit to the university and a credit to the Nursing and Midwifery Council that supported them. None the less, we were, and are, still short; that gap has not been closed.

One other thing that I have done recently is to support the close engagement with the Government of the Philippines, who have kindly allowed us to carry on recruiting nurses from the Philippines to the United Kingdom during the pandemic. I ask everyone here to join me in paying tribute to the roughly 35,000 nurses from the Philippines who have made such a difference to our NHS. All those things have helped, but anyone who has played the role that all of us in this House have over the past two years will know that the people problem is the greatest problem that we have.

I chaired, first every week and now every two or three weeks, a meeting between all the MPs in Gloucestershire, the heads of the NHS trusts, public health and the county council. Time and again, the same issue comes up in a slightly different way: it is about people. Yes, we could build extra wards. Yes, we could convert offices into wards. Yes, we could build bed capacity, but we do not have more people to look after the patients in them. Yes, we have plenty of spaces in care homes, but we need to be able to send people back to their home from hospital, because that is how they recover best, and we do not have enough domiciliary care workers.

We have gone round and round for the past 10 or 11 years on this issue of staff—doctors in primary care surgeries, nurses everywhere and domiciliary care workers. I do not believe that we can resolve this problem until we start planning for the needs in different parts of the country and then working out how we can provide the training, the skills and the recruitment of individuals to make that happen. Of course it will not be perfect. Of course disasters such as the pandemic will make a bad situation much worse. We recognise that, but until we start that process, I do not believe that things will change. For as long as I am MP for Gloucester, I am absolutely certain that I will be having the same conversations about human resources—the people who deliver the care and health that all the people in my constituency and across the county and country need and deserve. It is not the best use of MPs’ time to constantly have to sit down with our health professionals in local NHS trusts to work out how we are going to mind the gap. That whole process has to be started from higher up, in the Department of Health and Social Care.

Today, we have an amendment that has enormous support not just from the Select Committee that my right hon. Friend the Member for South West Surrey (Jeremy Hunt) chairs, but from outside this House from the royal colleges, the NHS trusts and many others beside. I am frustrated that the Government have so far not indicated whether they will accept the amendment. In their hearts, the Minister and his colleagues, all good people trying to do their best, recognise that this problem will have to be tackled. Perhaps part of the solution will be in the White Paper that we are all so eagerly waiting for and that we wish that we had been able to have a few days ago, before the votes last night, on which I supported the Government on the basis of trust. None the less, there comes a time when we have to say and vote for what we believe in. I do believe that we need this change and that the Government can and should do it, and I will vote for it.

[Mr Kevan Jones (North Durham) (Lab)]

I rise to support new clause 1, which stands in the name of the right hon. Member for Romsey and Southampton North (Caroline Nokes), myself and 18 other right hon. and hon. Members from across the House. I first took an interest in this subject through a constituent, Dawn Knight, from Tanfield in my constituency. Dawn raised issues around the cosmetic surgery industry having been a victim of a particular hospital group. She has been a tireless campaigner in ensuring not only that victims get a voice, but that we press for more regulation.

I join others in paying tribute to the all-party group on beauty, aesthetics and wellbeing for its recent report and to my hon. Friends the Members for Swansea East (Carolyn Harris) and for Bradford South (Judith Cummins) for their work on that report, which highlights what my hon. Friend the Member for Ellesmere Port and Neston (Justin Madders) called the “wild west”. That is exactly what it is: it is a wild west without any regulation. It is a multibillion-pound industry, which is not only putting people at risk, but costing the NHS money.

In April 2013, the Health Secretary at the time—Andrew Lansley, now Lord Lansley—commissioned Sir Bruce Keogh to carry out a review of the regulation of cosmetic surgery. The review came out not only when we were having problems in the sector itself, but when interest was heightened around Poly Implant Prothèse breast implants, which people will well remember. When the review concluded, it explicitly advised the Government to increase regulation of the cosmetic surgery industry to prevent unlicensed treatments and increase patient safety. The review stated that a person having a non-surgical procedure

“has no more protection and redress than someone buying a ballpoint pen or a toothbrush”,

and

“dermal fillers are a crisis waiting to happen.”

As the right hon. Member for Romsey and Southampton North said, that crisis has actually happened already.

I have been campaigning on this issue for a number of years, during which time I have gone through a succession of Health Ministers, all of whom have come back with two points. The first is, “We are going to implement the Keogh recommendations”. But because Ministers were too terrified previously to make any health legislation, they were reluctant to bring those recommendations forward in that way.

The only good news in the area has been private Member’s Bill of the hon. Member for Sevenoaks (Laura Trott), the Botulinum Toxin and Cosmetic Fillers (Children) Act 2021. That legislation was tightly focused—as all private Member’s Bill have to be—and banned botox injections for under-18s. I congratulate the hon. Member on that work. However, any other regulations have been left unfinished. I have sheaves of letters from former Health Ministers saying, “The Keogh recommendations will be implemented”, but they have not been to date. If we do not do that in this Bill, when will it be done? I doubt that the Department will come forward with a Bill just to implement those recommendations; that is wishful thinking.

There is clearly no regulatory framework in the UK at present for those performing aesthetic non-surgical cosmetic treatments. The area is completely unregulated and lacks any national standards. There is no consumer protection, education, training or qualifications for those administering such treatments. As my hon. Friend the Member for Brent Central (Dawn Butler) said, some people call themselves nurses with no qualifications whatever. There is a huge discrepancy between the standards and qualifications of the training of these people. The other side of the issue, to which I will turn in a minute, is the regulated system, which, frankly, is failing as well.

The right hon. Member for Romsey and Southampton North raised the issue of training. If hon. Members visit any website tonight, they will see huge adverts saying, “Become a dermal filler specialist: training and qualification online within half an hour”—even less time in some cases. The people offering such services have no qualifications whatever, because the qualifications are not worth the paper that they are written on, but these people start carrying out invasive procedures without anybody stopping them. They can do it in a kitchen, or in any area that has not been clinically cleaned and is not of a standard that we would expect for medical procedures. It is a multimillion-pound racket that includes both the people offering the training and those carrying out procedures. It is an increasing issue, which needs to be addressed.

We also need to address the issue of advertising. As I have said before in the House, the Advertising Standards Authority is frankly a complete waste of time. If hon. Members go on any website tonight, or even open the national newspapers, they will see people advertising these services—potentially dangerous procedures—without any qualifications. We might ask, “Why would people have these procedures?” Well, I suggest that everyone reads the Mental Health Foundation’s 2019 report on body image, which shows the increasing pressure on young people.

The right hon. Member for Romsey and Southampton North is correct that this issue mainly affects young women, but it is increasingly an issue for some young men. The pressure of factors such as advertising and photo enhancements lead people to think that there is the perfect individual, but—apart from you, Mr Deputy Speaker—I am not sure that there is. The foundation’s reports highlights the pressure that is put on young people, but particularly young women. If they look at prices for procedures, they end up going to people who are completely unqualified. It is a scandal that there is no legislation to prevent this.

15:39

The Keogh recommendations were published in 2013, Sir Bruce Keogh called for minimum standards. Well, there are no minimum standards or regulation of what should be going on, and that has to be put right. I agree with the right hon. Member for Romsey and Southampton North that if this new clause is not perfectly crafted—it may well not be—we still need to ensure that there is regulation. I thank the Minister for the meeting we had last week—it took longer to arrange than getting an audience with the Pope, but we finally got it—and for the positive noises he made during the meeting, but I felt that the civil servants were reluctant to have any more regulation. As I said, I can provide the Minister with letters written to me by his predecessors saying that they were recommending the implementation of the Keogh review recommendations; however, we still need to implement them. If the new clause is not acceptable today, we certainly have to ensure that a regulation system comes up during the passage of the Bill.

I want to touch on two other issues. The first is a point raised by the hon. Member for Central Ayrshire (Dr Whitford), about the cost to the NHS. Over the years, I have asked what the cost is to the NHS of putting these procedures right. As the right hon. Member for Romsey and Southampton North said, when things go wrong there is no insurance to cover the individuals and there is no putting things right; that falls to the NHS. I have continually asked whether local NHS trusts keep figures on this, but they do not.

In the cases that Dawn Knight has brought to me—I am sure that it is the same for cases mentioned by the right hon. Member for Romsey and Southampton North—the rectification process involves not only the mental health issues that result from these procedures, but the cost of putting them right, although in some sad cases they cannot be put right. That cost falls on the NHS and the taxpayer. There is no comeback at all on the people who sell the unsafe practices. I therefore tabled an amendment, which was not selected, on collecting data; we need that data.

Finally, I turn to the wider regulation of the sector and the surgical sector. Again, my hon. Friend the Member for Ellesmere Port and Neston said that the sector is a wild west. I always hear from Ministers, “Well, doctors are regulated by the GMC, and you’ve got the Care Quality Commission looking after the private hospitals where these procedures are taking place,” but those bodies are failing. It took my constituent Dawn Knight six years to get a doctor struck off. Self-regulation through the General Medical Council does not work any more. We need to change it if we are to ensure that the patient is not only protected, but can get redress.

The cosmetic surgery industry is a racket. Businesses that are basically marketing companies rather than medical companies can portray themselves as hospital doctors. The doctors are usually brought in—sometimes from abroad, mainly Europe—on a day basis to carry out procedures. In most cases, there is no insurance. The structure behind a lot of the companies is that they tend to have the same directors and go bust very quickly. First call usually goes to the taxman, to whom they owe huge amounts of money, but often they also owe the local authority rates that they have not paid for years. The poor patient has no redress, and those cases come back to the NHS, which picks up the tab for putting them right. My constituent Dawn Knight had surgery on her eyes, and I hate to think what it has cost the NHS to address her ongoing problems.

There are two aims on the non-surgical side, because we have to beef up the regulation as well. I say to the Minister that if we do not get that in this Bill, I am not sure where we are going to get it. If the amendment is not accepted for technical reasons, I and, I am sure, the right hon. Member for Romsey and Southampton North and others, would like to work with him to draft an amendment before the conclusion of the Bill that brings in the regulation that was promised. The evidence is behind it, as is the Keogh review. It will not only give people confidence that procedures have been carried out safely, but drive the cowboys out of the sector, so that they will not be able to practise and harm vulnerable people.

[Paul Bristow (Peterborough) (Con)]

I rise to speak to amendment 10 in the name of my right hon. Friend the Member for South West Surrey (Jeremy Hunt). I refer Members to my entry in the Register of Members’ Financial Interests.

I have spoken in the House before about being involved in health policy for about 20 years. The same thing tends to happen every three or four years: the NHS says it needs more money, it needs more capacity and it needs a plan, and that is what we are doing again in the Bill. When we talk about more capacity, we mean not just more hospitals, more theatres and more diagnostics, but a bigger workforce. Thanks to this Government and the investment that has been made, I do not think anyone with any credibility can now say that the NHS does not have enough money. NHS England’s resource budget will rise to £162.6 billion in 2024-25—a 3.8% average annual real-terms increase. The Government also plan to spend a further £8 billion to tackle the elective backlog. This is the biggest ever catch-up programme in our NHS for elective surgery. Department of Health and Social Care capital spending will rise to £11.2 billion by 2024-25. I repeat: I do not think that anyone can say with any credibility that our NHS is now underfunded. We have the new diagnostic centres. We have the new pathways that should be adopted to increase NHS productivity. A long-term deal with the independent sector can ensure that we have the capacity to power through the elective backlogs—the hip and knee, hernia and cataract procedures that make up the vast majority of cases.

Of course, we need the nurses, the doctors and the consultants—the workforce—to carry out those procedures. This is a historical problem; it did not just happen overnight. All past Governments and, I dare say, past Secretaries of State for Health and Social Care have a degree of responsibility for this. As my right hon. Friend the Member for South West Surrey said, there are an estimated 93,000 vacancies in our NHS—consultants, GPs, nurses and allied health professionals. I was proud to stand on a manifesto at the last election that pledged to increase the number of healthcare workers in our NHS, and I know that considerable progress has been made, but just as the Government are doing with social care by putting in place a plan that focuses, laser-like, on resolving some of the long-term issues we face in that sector, we need the same laser-like focus to deal with some of the challenges with our NHS workforce. Any changes we make to our NHS workforce, or any long-term plans, need to reflect the real needs of our NHS. That is incredibly important. Some sort of duty to report independent figures about how we will make up the workforce is a very sensible measure.

Many years ago, I worked with the British Society of Interventional Radiology. The proposals we made and the work that we called for then were about workforce. Some argued that a lot of people were reaching the end of their professional career and retiring and there was a lack of new people coming through, so ultimately this would have an impact on patient care—on the number of procedures that could be carried out. The same arguments are now being made across a number of disciplines. Since I became an MP, I have met the Royal College of Surgeons and the Royal College of Physicians, and the same arguments are being made there. It is sobering to think about these challenges, and that is why this laser-like focus has to be considered very carefully.

We have talked about overseas recruitment. I heard what my right hon. Friend the Member for Sutton Coldfield (Mr Mitchell), who is no longer in his place, said about that, and he made a very powerful argument. In some ways, we are going to have to use overseas recruitment to plug the gaps in our NHS, but there are other solutions. We have heard hon. Members talk about retention. I was alarmed and shocked by the number of healthcare professionals who—understandably—wish to work part-time because they are parents and they have childcare responsibilities. I understand that, but it is going to leave our NHS with recruitment challenges.

When I speak to clinicians—members of the Royal College of Surgeons and others—they talk to me about the ability to work independently and autonomously. Many clinicians want that ability, but do not feel that they have it. There is also the idea that they want to be part of something bigger than their own small team. It is not that they want to be part of this thing called the NHS and that they are all working towards that goal; it is more that, once we have come through the challenge of the pandemic—once we have got ourselves over that mountain—there is an even bigger mountain ahead of them, which is dealing with the elective backlog, where they feel that things never change. That is what I have been told, and those are very powerful things.

What are the solutions to this problem? Ministers need to think about how we can encourage our consultants, our GPs and our medical professionals to practise at the top of their licence. Speaking to medical professionals, I have been told alarming things. About 40% of a GP’s time is spent on sickness notes or providing medical records to insurance companies and other people. That is admin staff work. As valuable as those admin staff are, that is not what GPs and medical professionals went into their professions, and went to medical school for all that time, to do. It is absolutely right that that burden be lifted from our medical staff and placed elsewhere. Nurse-led prescribing has existed for quite some time, but we have not really had the push and the drive there that we should have. GPs should not be spending their time prescribing very simple things such as the pill. We can certainly be doing a lot better and working a lot more productively, as my hon. Friend the Member for North East Bedfordshire (Richard Fuller) said. This is not about working harder; it is about working smarter.

[Clive Lewis (Norwich South) (Lab)]

Listening to the hon. Member’s speech, I think he is giving the game away in some ways, because what I am hearing, if I understand him correctly, is that he wants to see a core of healthcare provided by the NHS and then the more lucrative parts of the NHS—administration and other parts—siphoned off to the private sector, which is a model we have seen in the US and which this Bill makes so much easier.

[Paul Bristow]

I would ask the hon. Member to listen a bit more carefully, because nowhere have I said admin should be carried out by the private sector. I said that it should not be carried out by medical professionals. They did not go to medical school to work in admin; they went to medical school to treat the sick. That is what we want our medical professionals doing—operating at the very top of their licence.

I also do not want to see situations where untold numbers of consultants are spending just one day a week in the operating theatre. I understand that consultants need the opportunity to train junior colleagues and to continue their own professional development, but they should be operating in our theatres a lot more frequently than that.

[Dr Whitford]

I gently point out that surgeons do not just operate—we run clinics; we run endoscopy lists and colonoscopy lists—so it is not that they are only working one day a week. They investigate the patient before they operate, and that is one of the strengths of the system in the UK in comparison to other countries, where surgeons only operate and someone else has done the diagnostics.

16:00

[Paul Bristow]

I agree with the hon. Lady that surgeons work incredibly hard. What I am talking about is operating at the top of the licence and for our consultants to be able to do the things that we want them to do. She is absolutely right; they are doing vital work in other areas running clinics and so on, but ultimately what we have is an elective challenge, and we need to ensure that we spend as much time addressing that elective challenge.

[Dr Ben Spencer (Runnymede and Weybridge) (Con)]

Does my hon. Friend agree that one of the challenges for primary care is that general practitioners have absorbed a great deal of the role of social advocacy in our society? People are trying to get a face-to-face GP appointment, and it is sometimes being suggested to them that such things as getting a fitness note or a letter to go to a school might be better served by someone else in the wider multi-disciplinary team. People are getting frustrated, because our messaging about how to use the health service and the different range of roles and responsibilities offered is sometimes getting a bit diluted.

[Paul Bristow]

My hon. Friend speaks with much experience and makes a powerful point. I think he would agree that that core admin function is not what he went into medicine to do. He went into medicine to treat patients. I am grateful that the Minister laid out some of the plans that the Government have to deal with this issue. It is right that we should be looking to the long term, and the 15-year framework for future workforce is to be welcomed, but there also needs to be a much more regular reporting mechanism attached to that to ensure that we as Members are informed, but more importantly the NHS is informed, about how that challenge is going. The integration between NHS England and Health Education England—aligning the delivery arm and the workforce capacity arm—is probably also the right thing to do.

I end with this point: the challenges around workforce will be addressed not only by employing and training more NHS staff, although that is crucial—that is why I have some sympathy for amendment 10—but by ensuring that we work more productively by asking clinicians to operate at the top of their licence. It is also about ensuring that the NHS works smarter. We have created organisations such as Getting It Right First Time and NICE and asked them to go away and do the hard work of coming up with the most cost-effective and efficient ways of delivering care. If we ask those organisations to come up with the pathways and the ways of doing these things, surely it is only right that the NHS then adopts them instead of sitting there and saying, “These things will not necessarily work here.” We ask experts to come up with the right way of performing procedures; I suggest we go ahead and adopt them.

[Sarah Olney (Richmond Park) (LD)]

I rise to speak in support of amendment 10, tabled by the right hon. Member for South West Surrey (Jeremy Hunt), the Chair of the Health and Social Care Committee, because the amendment reflects the key issue facing the NHS and all our health and care services at this time: the workforce. Access to healthcare services is the No. 1 issue raised with me by constituents at the moment, and I know that concern is being echoed in other constituencies across the country.

People are experiencing the issue in many different ways. Some are struggling to get a GP appointment. I regularly speak to parents in great distress because of the lack of available help for their children’s mental health needs. The accident and emergency department at Kingston Hospital in my constituency has regularly had to ask patients to consider whether there are more appropriate sources of help for their needs. Patients waiting in the backlog of elective procedures are regularly having appointments rescheduled or cancelled. Ambulances do not always arrive when called.

The impacts are many and various, but when I speak to health service leaders in my local area, the answer is pretty much the same: there is a lack of available staff. Even in cases where lack of funds is not in itself a limiting factor, the lack of people with the relevant skills makes it impossible to fill all the vacancies they are able to pay for.

Many of these problems are covid-related. The current NHS waiting list is estimated to be over 6 million, and it is clear that much of that is because so many elective treatments were delayed during lockdown. Demand for mental health services has accelerated because of the impact of the lockdown, particularly on young people. Covid is still with us, of course, and workforces in every part of the economy are being impacted by the need for individuals to isolate when they have symptoms or test positive. Healthcare staff need to be more vigilant than the rest of us.

Many of these problems are also Brexit related. A lot of young Europeans decided to return to their home countries at the start of lockdown and have not since returned. Brexit has stymied our ability to recruit from the EU, shutting off an extremely important supply for all parts of the labour market, but the effect is being felt most markedly in health and social care, since it is having to manage the extraordinary demand of a global pandemic at the same time.

Many of these problems are also the result of a long-term failure to correctly predict or prepare for workforce demand. One of the huge advantages of a national health service is that it is possible to get clear data from right across the sector and to make appropriate plans and decisions. For some reason, that has not been done, and it is absolutely right that the Government should adopt amendment 10 to start to put that right.

I want to amplify a Backbench Business debate that I was able to bring to this Chamber a few weeks ago, in partnership with the right hon. Member for South Northamptonshire (Dame Andrea Leadsom) and the hon. Member for Newcastle upon Tyne North (Catherine McKinnell). It was on the subject of giving every baby the best start in life, and it was the firm view of all who attended that debate that the health visiting workforce needs to be substantially boosted to enable all new parents to receive a home visit from a trained healthcare professional. During the course of that debate, we heard of the many ways in which a health visiting workforce can support new families and the critical role they play in supporting babies and their families. One estimate is that the cost of poor parental mental health in the first year of life is more than £8 billion. It is clear that the cost of boosting our health visiting workforce would more than pay for itself in a very short time.

I also want to reflect briefly on a conversation I had with a constituent in the street in Richmond town centre on Saturday. Despite having two degrees, she was working in the care sector, and she was talking to me about her terms and conditions of work. She is employed by an agency and is not allowed to engage with any other agency. She is on a zero-hours contract, so she has to sit at home and wait to hear how many hours she might be required to work the following week. For various reasons that suits her, but I feel that it underpins the recruitment crisis we are experiencing in our social care sector, because that is no way to retain skilled and committed staff.

[Mr Kevan Jones]

Does the hon. Lady agree that it is not just about levels of pay and uncertainty for those individuals, but ensuring that we nationally accredit the qualifications of those individuals and address the career paths that do not exist in those sectors at the moment?

[Sarah Olney]

The right hon. Gentleman is absolutely right, and that is the point I want to make: we need to boost the status of our care home staff and improve their terms and conditions. We need to improve their pay. This lady who I spoke to on Saturday was telling me that she gets paid for the hours she spends in people’s homes, but not the time spent travelling in between. It is clear to me that the crisis of staffing we are experiencing in our care sector—I think every one of us as MPs is hearing about it regularly from our constituents, who are at the sharp end of that—is as much about workforce planning and improving terms and conditions. The Government needs to give that the most urgent attention, and amendment 10 would go some way to resolving that, although it will not resolve it entirely.

I know that Ministers will push back against the cost of boosting the workforce in all areas of the NHS, but they must surely realise the cost of failing to do so. The right hon. Member for South West Surrey. along with the hon. Member for Central Ayrshire (Dr Whitford), spoke about the cost of locum resource in the NHS. It is not just about the direct cost of locums or of worsening health outcomes as people wait longer for treatment; it is also about the lost productivity of days off sick, the cost of poor mental health as lives are put on hold and, as has been mentioned many times, the cost of exhausted and demoralised staff who are overwhelmed by the demands on the NHS. We cannot afford to continue to fail to effectively plan our healthcare workforce.

I am also very happy to support the amendments tabled by the hon. Member for North West Durham (Mr Holden) on virginity testing and hymenoplasty. I am delighted that the Government are adopting the provisions on virginity testing. We still have much to do to make this country a safe place for women and girls, but all progress is to be welcomed, and I am very glad that this opportunity to bring to an end the degrading practice of virginity testing has not been lost. I congratulate the hon. Member for North West Durham on all the work he has done and, although they may have left the Chamber, the representatives of the other charities referred to earlier. I hope in due course we will see the provisions for hymenoplasty as well, when the review has concluded.

[Mr Deputy Speaker (Mr Nigel Evans)]

I have three people indicating that they wish to speak. I ask people to make really short contributions, because I want to give the Minister six minutes to wind up and we will then go into the votes at half past.

[Matt Warman (Boston and Skegness) (Con)]

I will be brief, Mr Deputy Speaker. I should declare that I am married to a doctor.

Staff are the No. 1 priority for the health service, and have been historically for this Government, so I will support the Government today, but somewhat through gritted teeth. I implore the Minister to include a few things in his 15-year review. I ask him to engage with the feeling of staff, which we have all heard about: if there are fundamentally not enough staff within the system, it is impossible for them to feel that they can do the job they went into medicine to do as well as they possibly can. I know his plans in this 15-year review will address some of that, but I hope he will also address the fact that there is a huge role to play for technology and for the increasing integration between health and social care. If more patients are stuck in hospitals because they cannot be sent on to the social care system, then we need more doctors to staff those hospitals.

I hope the Minister will consider those multiple facets in the review, and also consider that perhaps more important than anything else is how we retain staff. Even if we are putting more and more people into the beginning of a career pipeline, we will never be able to fill up that pipeline sufficiently if people, whether for pension-related reasons or a whole host of other reasons, are leaving more rapidly than we currently imagine they will in the planning.

That retention aspect has to be a hugely important part of the review. I hope that the possibility of addressing all those multiple factors will be core to what the Minister has been talking about. As others have said, I also hope he will be as transparent as possible within that, and that he or his Department will come to the House to make those plans transparent. Fifteen years is good, and transcends the political horizon that so often derails good intentions for the NHS, but the more transparent we can be, and the more support we can give to recruitment, retention, technology, social care and a host of other issues, the less my teeth will be gritted as I support the Government today.

[Mr Holden]

I shall keep my comments very brief. I apologise to the Minister for not having been here for his speech, because I was with one of his colleagues in my constituency earlier today.

I welcome what the Government are doing today in new clauses 36 to 48. There has been a huge campaign for a long time by people from so many different organisations, particularly Natasha Rattu of Karma Nirvana, Sara Browne and Payzee Mahmood from IKWRO, Halaleh Taheri and Natasha Feroze at the Middle Eastern Women and Society Organisation, Rosie Walworth and Zoe Russell from the Royal College of Obstetricians and Gynaecologists, who have worked closely with me over the past few months, Janet Fyle from the Royal College of Midwives, barristers Dr Charlotte Proudman and Naomi Wiseman and consultant gynaecologist Dr Ashfaq Khan, who did some excellent briefing for us in earlier stages of the process. I also thank Adam Mellows-Facer and Huw Yardley from the Public Bill Office, who did some excellent work with my office manager, Robbie Lammas, who has kept going on this throughout.

I am pleased that the Government are coming forward with the amendments on virginity testing today. I particularly welcome the fact that they are UK-wide and have had support from scores of Members, including the hon. Member for Richmond Park (Sarah Olney), the former Health Secretary, my right hon. Friend the Member for South West Surrey (Jeremy Hunt), and many other hon. Members from across the House who I can see here today.

It is excellent that the Government have listened so much and responded so thoroughly. I would like to hear the Minister talk about new clause 22, which I tabled today, on hymenoplasty. I know we are on Report, but I want his assurance that, if all goes well, we should see those amendments to this Bill in the House of Peers before too long. It is vital that banning hymenoplasty and banning virginity testing go hand in hand.

16:15

[Derek Thomas (St Ives) (Con)]

I rise to speak on amendment 10 on workforce planning, in the name of my right hon. Friend the Member for South West Surrey (Jeremy Hunt). However, surely the Government’s urgent priority is to look at effective ways to attract back into the NHS all those consultants, nurses and social care workers who have left, and to find any way they can to bring back that experience and expertise.

With your permission, Mr Deputy Speaker, I would like to talk about some lived experience. Just last Friday, I came across a lady who had fallen over and clearly injured herself. I phoned 999, knowing full well that I would be entering a system under severe stress and pressure. I confess that, as it happened. I put the phone down, because the priority for me was to ensure that she was safe, warm and comfortable.

The ambulance service called me back and told me it would be a wait of several hours. I knew that that was caused by the pressure on the ambulance service and on A&E and the subsequent pressure on beds, hindering the effective and timely treatment of people who go to hospital. The pressure on admission to A&E also affects surgery. All that pressure goes down to one place in Cornwall, and Cornwall will not be unique: delayed transfers of care.

We have been in this place before: in 2016, a system-wide review of the situation in Cornwall found far too many people who would be better off in the community, being looked after in homes or care homes, but were stuck in hospital. In Cornwall today I understand the figure is more than 100 people in that exact situation. The pressure on the whole system is largely to do with those delayed transfers of care. While much has been said about the workforce planning for the NHS, I will quickly touch on workforce planning for the care workforce.

The emphasis on workforce planning should transform the current state of the care workforce, leading to better support, better training, better pay and better status. I am hopeful that the White Paper will address that, as it is the only way to effectively ease the pressure on acute NHS settings. There is an urgent need to understand and address the pressure on care staff, GP practices and community care across the board.

Maybe I should have said this at the beginning, but I chair the all-party parliamentary group on diabetes. Several years ago, we found that, in the whole of the south-west, training for podiatry was coming to an end because of a lack of funding and the way it was delivered across the region. That had an immediate impact on community care and how people could be cared for and enabled to live with and manage their condition, which ultimately puts more pressure on urgent care.

As we look at workforce planning and how to understand exactly what is needed, I particularly thank the NHS staff who have worked so hard, especially those I met at the beginning of the year, who, as they delivered the vaccine roll-out, told me they were doing it for the national effort. Workforce planning and the commitment to ensuring that we have the workforce where they are needed, with the skills they need, is the best way to reward our NHS workforce.

[Edward Argar]

This is a little more generous than the six minutes I feared I might have to work with, Mr Deputy Speaker.

If I may, I will address each set or theme of amendments in turn. First, I am grateful to my hon. Friend the Member for North West Durham (Mr Holden) for the work he has done. He rightly highlights that in a sense he is but the voice of the campaigners who have worked so hard on this issue over a very long period. I am pleased that today, while it is not his exact amendment, we have been able to work together to table an amendment that I hope will command cross-party support across the House to deliver on what he has campaigned so effectively for.

I have known my hon. Friend a very long time, so I should not have been surprised by the persistence with which he beat a path to my door to seek to secure agreement on exactly this policy issue.

[Mr Holden]

Can I just say that the Minister has been absolutely superb in engaging throughout this process? I would like to thank the shadow team as well, who in Committee and today—and throughout—have shown real conviction towards this end. I thank the Minister and his team and also the shadow team for all they have done.

[Edward Argar]

I am grateful to my hon. Friend, who I think covered both bases there very eloquently. He makes an important point on this issue. The change will make a real difference to people’s lives, so I commend him for his work.

New clause 1 was tabled by my right hon. Friend the Member for Romsey and Southampton North (Caroline Nokes) and would give the Secretary of State the power to introduce a licensing regime for aesthetic non-surgical cosmetic procedures, making it an offence for someone to practise without a licence. I thank her for bringing this to the House today. In that context, I also pay tribute to the right hon. Member for North Durham (Mr Jones); my hon. Friend the Member for Thurrock (Jackie Doyle-Price), who has taken a very close interest in the issue; and of course my hon. Friend the Member for Sevenoaks (Laura Trott) not only for taking a close interest in the issue, but for her success, with her private Member’s Bill, in moving the dial further forward on the issue more broadly.

As I said in Committee, I entirely understand the intention behind the amendment and that a strong case has been made for further regulation in this area. I and the Department are keen to work with stakeholders, including Members of this House on both sides, to see whether we can take this forward in the most appropriate way and clarify the scope of any further regulation. We are happy—we had a very positive meeting, which was alluded to—and I hope that we will be able to continue to explore the issue with hon. and right hon. Members.

In this context, I also commend the all-party parliamentary group on beauty, aesthetics and wellbeing for its important work. Its inquiry highlights the huge range of non-surgical cosmetic procedures available, which vary in their level of complexity and invasiveness. We are carefully considering the findings of that report, including, in that context, its recommendation for a licensing system. We look forward to reporting our conclusions from that work early in 2022. I look forward to working with my right hon. Friend the Member for Romsey and Southampton North and others on that.

Amendment 57 was tabled by the hon. Member for Wirral West (Margaret Greenwood). I can entirely understand where she is coming from—that the professions protected in law must be the right ones, with the right regulatory oversight, recognising that regulation is there for safety. We believe there is no immediate case to change the professions that are regulated, but we will consider whether any new groups of workers should be brought into statutory regulation, and the power to remove professions from regulations would only be used where regulation is no longer required for the protection of the public. For these reasons, we think the approach we are adopting is the right one, but I always reflect on what she says. Even when I do not entirely agree with all of it, I always reflect carefully because she has taken a long-standing interest in these issues.

The hon. Member for Brent Central (Dawn Butler) raised the issue of the title of “nurse” and protection for it. The title “registered nurse” is protected in law. Currently —she is right—the title “nurse” is not protected, given that it is used across multiple professions, including dental nurses, school nurses, veterinary nurses and similar. As has been pointed out by the interim chief nursing officer for Scotland, any change would need careful consideration of the impact on other groups currently using the title “nurse” outside healthcare settings.

I can see the benefit in providing reassurance and clarity for both patients and professionals. I would also note that the protection of a title is only one part of the regulatory system and the complexities associated with that. I understand where the hon. Member is coming from with her new clause 12. What I would say is that any subsequent change could form part of the legislative reform programme for the Nursing and Midwifery Council, which will be taken forward by secondary legislation made under section 60 of the Health Act 1999. But we do not feel we are able to accept her new clause, as drafted at the moment, because we do not feel that it addresses those fundamental challenges.

[Dawn Butler]

rose—

[Edward Argar]

If the hon. Member is going to be brief, I will of course give way to her.

[Dawn Butler]

I was going to quickly say that the Government’s response to Alison Leary’s very good petition says that the Government understand it. We could pass the new clause today and then the Minister could amend it in Committee.

[Edward Argar]

I am grateful to the hon. Lady, but we have had the Committee. We are now at the stage where we have been through this, and I therefore do not think it would be appropriate to pass an amendment that we thought was flawed in its drafting. I can understand the intent behind it, and I have said that I will continue to reflect on that, but we do not feel we can support the amendment as drafted.

On amendment 10 and new clause 28, hon. and right hon. Members who have spoken to those amendments from both sides of the House have raised something that I think is of huge importance to all Members of this House. As I said in my opening remarks, we all recognise that technology, kit and buildings are all wonderful if we invest in them, but they are nothing without the people—the professionals—who know how to care, are able to care and are able to use that kit to provide the best possible outcomes for our constituents. The workforce are in a sense the beating heart of our NHS, and it is important that I again recognise and join the Opposition in paying tribute to the work undertaken by the workforce.

I appreciate entirely the strongly held, sincerely held and, as ever with my right hon. Friend the Member for South West Surrey (Jeremy Hunt), well-informed views that he brings to this debate, based on his extensive experience. I would extend that to the shadow Minister, the hon. Member for Ellesmere Port and Neston (Justin Madders), in a spirit of bipartisan cordiality. I hope I have been able to help to reassure colleagues just how seriously we take this issues. Hon. and right hon. Members have been right to raise the issue. We reflect very carefully on it. We have already, as I have said, not only set out plans for elective recovery and further reforms to improve recruitment and support for our workforce, but announced yesterday the merger of Health Education England with NHS England, which we believe is an important next step in making sure that workforce needs can be considered in the round. The other key element is, as I say, the development, commissioned in July, of a robust, long-term—15-year—strategic framework for the health and social care workforce.

We are in no way complacent or resting on our laurels in the case of the workforce. Despite the significant progress we have made in recruiting more nurses and more doctors, there is clearly a lot more to do. We recognise that, and I believe it was a point well made by my hon. Friend the Member for Boston and Skegness (Matt Warman). He declared his interest. I do not know whether I need to, but his wife is a friend of mine; I should probably declare that too. He made some important points, a key point being that this is not just about projections for recruitment. It is absolutely right that we are focused, as we are, on the retention of our existing highly trained, highly skilled and highly experienced workforce. We look at what measures we can continue to take to address those challenges.

There is the need to recognise that that workforce—the workforce who are delivering on elective recovery and who are delivering on tackling those waiting lists—are the same people who have been working flat out throughout this pandemic, and emotionally and physically need the space and time to be able to recover. We recognise that and take it extremely seriously. I think it was my hon. Friend the Member for Peterborough (Paul Bristow)—he has jumped around the Chamber slightly in taking his seat—who made the point about reporting and monitoring mechanisms to know how the framework is working and that we are doing the right thing. While we are not, I have to say, fully convinced by the case made by my right hon. Friend the Member for South West Surrey, I take the point made by my hon. Friend the Member for Peterborough about that. I will continue to reflect very carefully on that, on what my right hon. Friend has tabled and on the points he made in debate and in his many meetings with me and other ministerial colleagues.

In the minute or so I have left, I want to briefly touch on the HSSIB amendments, which I know are important, particularly to the hon. Member for Central Ayrshire (Dr Whitford), but I think she reflects broader opinion in this House. As discussed in Committee, the definition given in clause 108(2) is intentionally broad. HSSIB will be carrying out a range of investigations, and we believe it would be impossible to prospectively identify the material that will be gathered and should therefore be protected by safe space. Similarly, while I take the point she makes about senior coroners and coroners’ involvement, we believe that we have struck the right balance in not extending the safe space exemptions more widely, but recognising the unique status that those judicial office holders have.

I hope I have been able to cover the main themes of the amendments tabled in this group. I hope I have been able to reassure hon. and right hon. Members on both sides of this House, particularly in respect of the workforce, just how seriously Her Majesty’s Government take that issue, and the points genuinely and sincerely made by Members on both sides of the House in that context.

Question put and agreed to.

New clause 36 accordingly read a Second time, and added to the Bill.

New Clause 37

Offence of offering to carry out virginity testing: England and Wales

‘(1) It is an offence under the law of England and Wales—

(a) for a person in England and Wales to offer to carry out virginity testing in the United Kingdom or virginity testing that has a sufficient jurisdictional connection, or

(b) for a person anywhere to offer to carry out virginity testing if the person is a United Kingdom national or habitually resident in England and Wales.

(2) Virginity testing has a sufficient jurisdictional connection for the purposes of subsection (1)(a) if it is carried out in relation to a person who is—

(a) a United Kingdom national, or

(b) habitually resident in the United Kingdom.

(3) In this section—

“United Kingdom national” has the meaning given by section (Offence of virginity testing: England and Wales)(4);

“virginity testing” has the meaning given by section (Offence of virginity testing: England and Wales)(2).’ —(Edward Argar.)

This new clause creates an offence under the law of England and Wales of offering to carry out virginity testing.

Brought up, read the First and Second time, and added to the Bill.

New Clause 38

Offence of aiding or abetting etc a person to carry out virginity testing: England and Wales

‘(1) It is an offence under the law of England and Wales for a person who is in England and Wales, or for a person who is outside England and Wales but who is a United Kingdom national or habitually resident in England and Wales, to aid, abet, counsel or procure the carrying out of virginity testing that has a sufficient jurisdictional connection.

(2) Virginity testing has a sufficient jurisdictional connection for the purposes of subsection (1) if it is carried out in relation to a person who is—

(a) in the United Kingdom,

(b) a United Kingdom national, or

(c) habitually resident in the United Kingdom.

(3) This section does not affect the application to an offence under section (Offence of virginity testing: England and Wales) of any rule of law relating to aiding, abetting, counselling or procuring.

(4) In this section—

“United Kingdom national” has the meaning given by section (Offence of virginity testing: England and Wales)(4);

“virginity testing” has the meaning given by section (Offence of virginity testing: England and Wales)(2).’. —(Edward Argar.)

This new clause creates an offence of aiding etc a person to carry out virginity testing in circumstances where the carrying out of that testing might not itself be an offence (depending on the location or status of the person carrying out the testing)

Brought up, read the First and Second time, and added to the Bill.

New Clause 39

Virginity testing offences in England and Wales: penalties

‘(1) A person who commits an offence under section (Offence of virginity testing: England and Wales), (Offence of offering to carry out virginity testing: England and Wales) or (Offence of aiding or abetting etc a person to carry out virginity testing: England and Wales), is liable—In subsection (1)(a) “the maximum summary term for either-way offences” means—

(a) on summary conviction, to imprisonment for a term not exceeding the maximum summary term for either-way offences or a fine (or both);

(b) on conviction on indictment, to imprisonment for a term not exceeding 5 years or a fine (or both).

(c) in relation to an offence committed before the time when paragraph 24(2) of Schedule 22 to the Sentencing Act 2020 comes into force, 6 months;

(d) in relation to an offence committed after that time, 12 months.’ —(Edward Argar.)

This new clause sets out the penalties for the new offences under the law of England and Wales relating to virginity testing.

Brought up, read the First and Second time, and added to the Bill.

New Clause 40

Offence of virginity testing: Scotland

‘(1) It is an offence under the law of Scotland for a person to carry out virginity testing.

(2) “Virginity testing” means the examination of female genitalia, with or without consent, for the purpose (or purported purpose) of determining virginity.

(3) An offence is committed under subsection (1) only if the person—

(a) is in Scotland, or

(b) is outside the United Kingdom, and is a United Kingdom national or habitually resident in Scotland.

(4) “United Kingdom national” means an individual who is—

(a) a British citizen, a British overseas territories citizen, a British National (Overseas) or a British Overseas citizen,

(b) a person who under the British Nationality Act 1981 is a British subject, or

(c) a British protected person within the meaning of that Act.

(5) In subsection (2), “female genitalia” means a vagina or vulva.’

This new clause creates an offence under the law of Scotland of virginity testing.—(Edward Argar.)

Brought up, read the First and Second time, and added to the Bill.

New Clause 41

Offence of offering to carry out virginity testing: Scotland

‘(1) It is an offence under the law of Scotland—

(a) for a person in Scotland to offer to carry out virginity testing in the United Kingdom or virginity testing that has a sufficient jurisdictional connection, or

(b) for a person anywhere to offer to carry out virginity testing if the person is a United Kingdom national or habitually resident in Scotland.

(2) Virginity testing has a sufficient jurisdictional connection for the purposes of subsection (1)(a) if it is carried out in relation to a person who is—

(a) a United Kingdom national, or

(b) habitually resident in the United Kingdom.

(3) In this section—

“United Kingdom national” has the meaning given by section (Offence of virginity testing: Scotland)(4);

“virginity testing” has the meaning given by section (Offence of virginity testing: Scotland)(2).’ —(Edward Argar.)

This new clause creates an offence under the law of Scotland of offering to carry out virginity testing.

Brought up, read the First and Second time, and added to the Bill.

New Clause 42

Offence of aiding or abetting etc a person to carry out virginity testing: Scotland

‘(1) It is an offence under the law of Scotland for a person who is in Scotland, or for a person who is outside Scotland but who is a United Kingdom national or habitually resident in Scotland, to aid, abet, counsel, procure or incite the carrying out of virginity testing that has a sufficient jurisdictional connection.

(2) Virginity testing has a sufficient jurisdictional connection for the purposes of subsection (1) if it is carried out in relation to a person who is—

(a) in the United Kingdom,

(b) a United Kingdom national, or

(c) habitually resident in the United Kingdom.

(3) This section does not affect the application to an offence under section (Offence of virginity testing: Scotland) of any rule of law relating to aiding, abetting, counselling, procuring or inciting.

(4) In this section—

“United Kingdom national” has the meaning given by section (Offence of virginity testing: Scotland)(4);

“virginity testing” has the meaning given by section (Offence of virginity testing: Scotland)(2).’ —(Edward Argar.)

This new clause creates an offence of aiding etc a person to carry out virginity testing in circumstances where the carrying out of that testing might not itself be an offence (depending on the location or status of the person carrying out the testing).

Brought up, read the First and Second time, and added to the Bill.

New Clause 43

Virginity testing offences in Scotland: penalties and supplementary

‘(1) A person who commits an offence under section (Offence of virginity testing: Scotland), (Offence of offering to carry out virginity testing: Scotland) or (Offence of aiding or abetting etc a person to carry out virginity testing: Scotland), is liable—

(a) on summary conviction, to imprisonment for a term not exceeding 12 months or a fine not exceeding the statutory maximum (or both);

(b) on conviction on indictment, to imprisonment for a term not exceeding 5 years or a fine (or both).

(2) Where a person outside Scotland commits an offence under section (Offence of virginity testing: Scotland), (Offence of offering to carry out virginity testing: Scotland) or (Offence of aiding or abetting etc a person to carry out virginity testing: Scotland) the person may be prosecuted, tried and punished for the offence—

(a) in a sheriff court district in which the person is apprehended or in custody, or

(b) in a sheriff court district determined by the Lord Advocate,

as if the offence had been committed in that district.

Where subsection (2) applies, the offence is, for all purposes incidental to or consequential on the trial and punishment, deemed to have been committed in that district.

(3) In this section “sheriff court district” is to be construed in accordance with section 307(1) of the Criminal Procedure (Scotland) Act 1995 (interpretation).’—(Edward Argar.)

This new clause sets out the penalties for the new offences under the law of Scotland relating to virginity testing.

Brought up, read the First and Second time, and added to the Bill.

New Clause 44

Offence of virginity testing: Northern Ireland

‘(1) It is an offence under the law of Northern Ireland for a person to carry out virginity testing.

(2) “Virginity testing” means the examination of female genitalia, with or without consent, for the purpose (or purported purpose) of determining virginity.

(3) An offence is committed under subsection (1) only if the person—

(a) is in Northern Ireland, or

(b) is outside the United Kingdom, and is a United Kingdom national or habitually resident in Northern Ireland.

(4) “United Kingdom national” means an individual who is—

(a) a British citizen, a British overseas territories citizen, a British National (Overseas) or a British Overseas citizen,

(b) a person who under the British Nationality Act 1981 is a British subject, or

(c) a British protected person within the meaning of that Act.

(5) In subsection (2), “female genitalia” means a vagina or vulva.’ —(Edward Argar.)

This new clause creates an offence under the law of Northern Ireland of virginity testing.

Brought up, read the First and Second time, and added to the Bill.

New Clause 45

Offence of offering to carry out virginity testing: Northern Ireland

‘(1) It is an offence under the law of Northern Ireland—

(a) for a person in Northern Ireland to offer to carry out virginity testing in the United Kingdom or virginity testing that has a sufficient jurisdictional connection, or

(b) for a person anywhere to offer to carry out virginity testing if the person is a United Kingdom national or habitually resident in Northern Ireland.

(2) Virginity testing has a sufficient jurisdictional connection for the purposes of subsection (1)(a) if it is carried out in relation to a person who is—

(a) a United Kingdom national, or

(b) habitually resident in the United Kingdom.

(3) In this section—

“United Kingdom national” has the meaning given by section (Offence of virginity testing: Northern Ireland)(4);

“virginity testing” has the meaning given by section (Offence of virginity testing: Northern Ireland)(2).’ —(Edward Argar.)

This new clause creates an offence under the law of Northern Ireland of offering to carry out virginity testing.

Brought up, read the First and Second time, and added to the Bill.

New Clause 46

Offence of aiding or abetting etc a person to carry out virginity testing: Northern Ireland

‘(1) It is an offence under the law of Northern Ireland for a person who is in Northern Ireland, or for a person who is outside Northern Ireland but who is a United Kingdom national or habitually resident in Northern Ireland, to aid, abet, counsel or procure the carrying out of virginity testing that has a sufficient jurisdictional connection.

(2) Virginity testing has a sufficient jurisdictional connection for the purposes of subsection (1) if it is carried out in relation to a person who is—

(a) in the United Kingdom,

(b) a United Kingdom national, or

(c) habitually resident in the United Kingdom.

(3) This section does not affect the application to an offence under section (Offence of virginity testing: Northern Ireland) of any rule of law relating to aiding, abetting, counselling or procuring.

(4) In this section—

“United Kingdom national” has the meaning given by section (Offence of virginity testing: Northern Ireland)(4);

“virginity testing” has the meaning given by section (Offence of virginity testing: Northern Ireland)(2).’ —(Edward Argar.)

This new clause creates an offence of aiding etc a person to carry out virginity testing in circumstances where the carrying out of that testing might not itself be an offence (depending on the location or status of the person carrying out the testing).

Brought up, read the First and Second time, and added to the Bill.

New Clause 47

Virginity testing offences in Northern Ireland: penalties

‘A person who commits an offence under section (Offence of virginity testing: Northern Ireland), (Offence of offering to carry out virginity testing: Northern Ireland) or (Offence of aiding or abetting etc a person to carry out virginity testing: Northern Ireland) is liable—

(a) on summary conviction, to imprisonment for a term not exceeding 6 months or a fine not exceeding the statutory maximum (or both);

(b) on conviction on indictment, to imprisonment for a term not exceeding 5 years or a fine (or both).” —(Edward Argar.)

This new clause sets out the penalties for the new offences under the law of Northern Ireland relating to virginity testing.

Brought up, read the First and Second time, and added to the Bill.

New Clause 48

Virginity testing: consequential amendments

‘Schedule (Virginity testing: consequential amendments) contains consequential amendments.’—(Edward Argar.)

This new clause introduces a Schedule of consequential amendments relating to the new virginity testing offences.

Brought up, read the First and Second time, and added to the Bill.

16:30

Proceedings interrupted (Programme Order, 22 November).

The Deputy Speaker put forthwith the Questions necessary for the disposal of the business to be concluded at that time (Standing Order No. 83E).

New Clause 12

Protection of the title of “nurse”

‘(1) A person may not practise or carry on business under any name, style or title containing the word “nurse” unless that person is registered with the Nursing and Midwifery Council and entered in sub part 1 or 2 of the register as a Registered Nurse or in the specialist community public health nursing part of the register.

(2) Subsection (1) does not prevent any use of the designation “veterinary nurse”, “dental nurse” (for which see section 36K of the Dentists Act 1984) or “nursery nurse”.

(3) A person who contravenes subsection (1) is guilty of an offence and liable on summary conviction to a fine not exceeding level four on the standard scale.’—(Edward Argar.)

Brought up, and read the First time.

Question put, That the clause be read a Second time.

16:31

Division 118

Ayes: 240

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Labour: 179
Scottish National Party: 38
Liberal Democrat: 9
Democratic Unionist Party: 5
Independent: 3
Social Democratic & Labour Party: 2
Plaid Cymru: 2
Alliance: 1
Conservative: 1
Green Party: 1
Alba Party: 1

Noes: 304

---

Conservative: 302
Independent: 1

Clause 34

Report on assessing and meeting workforce needs

Amendment proposed: 10, page 42, line 12, leave out from beginning to the end of line 17 and insert—

“(1) The Secretary of State must, at least once every two years, lay a report before Parliament describing the system in place for assessing and meeting the workforce needs of the health, social care and public health services in England.

(2) This report must include—

(a) an independently verified assessment of health, social care and public health workforce numbers, current at the time of publication, and the projected workforce supply for the following five, ten and 20 years; and

(b) an independently verified assessment of future health, social care and public health workforce numbers based on the projected health and care needs of the population for the following five, ten and 20 years, consistent with the Office for Budget Responsibility long-term fiscal projections.

(3) NHS England and Health Education England must assist in the preparation of a report under this section.

(4) The organisations listed in subsection (3) must consult health and care employers, providers, trade unions, Royal Colleges, universities and any other persons deemed necessary for the preparation of this report, taking full account of workforce intelligence, evidence and plans provided by local organisations and partners of integrated care boards.”—(Jeremy Hunt.)

This amendment would require the Government to publish independently verified assessments every two years of current and future workforce numbers required to deliver care to the population in England, based on the economic projections made by the Office for Budget Responsibility, projected demographic changes, the prevalence of different health conditions and the likely impact of technology.

Question put, That the amendment be made.

16:46

Division 119

Ayes: 219

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Labour: 174
Conservative: 18
Liberal Democrat: 9
Democratic Unionist Party: 5
Independent: 4
Social Democratic & Labour Party: 2
Plaid Cymru: 2
Alliance: 1
Green Party: 1

Noes: 280

---

Conservative: 276

Clause 121

Interpretation of Part 4

Amendment proposed: 24, page 103, line 16, leave out “sections 112 and 113” and insert

“the case of an investigation mentioned in section 112(1)(b), 113 or 114”.

This amendment clarifies that the provisions of Part 4 of the Bill about investigations apply only to investigations carried out by the HSSIB in exercising its main investigation function (and not, for example, investigations carried out to assist NHS bodies or investigations carried out under an agreement with another person relating to Wales or Northern Ireland).

Clause 127

Regulation of health care and associated professions

Amendment proposed: 127, page 110, line 42, at end insert—

“(2A) In section 62 (regulations and orders), after subsection (10) insert—

‘(10A) If any provision made by an Order in Council by virtue of section 60(2ZZA) would, if it were included in an Act of Senedd Cymru, be within the legislative competence of the Senedd and is not merely incidental to, or consequential on, provision that (if so included) would be outside that competence, no recommendation is to be made to Her Majesty to make the Order unless the Welsh Ministers have consented to that provision.’”

This amendment requires the consent of the Welsh Ministers to an Order in Council made under section 60(2ZZA) that is within the legislative competence of Senedd Cymru.

Clause 137

Extent

Amendments proposed: 86, page 117, line 34, after “(2)” insert “(2A), (2B)”.—(Edward Argar.)

This amendment paves the way for the changes made by Amendment 87.

Amendment 87, page 117, line 41, at end insert—

“(2A) Sections (Offence of virginity testing: Scotland), (Offence of offering to carry out virginity testing: Scotland), (Offence of aiding or abetting etc a person to carry out virginity testing: Scotland) and (Virginity testing offences in Scotland: penalties) extend to Scotland only.

(2B) Sections (Offence of virginity testing: Northern Ireland), (Offence of offering to carry out virginity testing: Northern Ireland), (Offence of aiding or abetting etc a person to carry out virginity testing: Northern Ireland) and (Virginity testing offences in Northern Ireland: penalties) extend to Northern Ireland only.”

This amendment ensures that the new clauses relating to virginity testing in Scotland and Northern Ireland form part of the law of those jurisdictions and only those jurisdictions.

Question put (single Question on amendments moved by a Minister of the Crown), That amendments 24, 127, 86 and 87 be made.—(Edward Argar.)

Question agreed to.

Amendments 24, 127, 86 and 87 accordingly agreed to.

New Schedule 1

Virginity testing: consequential amendments

‘Police and Criminal Evidence Act 1984

1 In section 65A of the Police and Criminal Evidence Act 1984 (qualifying offences for the purposes of Part 5 of that Act), in subsection (2), after paragraph (t) insert—

“(u) an offence under section (Offence of virginity testing: England and Wales), (Offence of offering to carry out virginity testing: England and Wales) or (Offence of aiding or abetting etc a person to carry out virginity testing: England and Wales) of the Health and Care Act 2021 (offences relating to virginity testing).”

Police and Criminal Evidence (Northern Ireland) Order 1989

2 In Article 53A of the Police and Criminal Evidence (Northern Ireland) Order 1989 (S.I. 1989/1341 (N.I. 12)) (qualifying offences for the purposes of Part 6 of that Order), in paragraph (2)—

(a) the second sub-paragraph (t) (inserted by the Space Industry Act 2018) becomes sub-paragraph (u);

(b) after that sub-paragraph insert—

“(v) an offence under section (Offence of virginity testing: Northern Ireland), (Offence of offering to carry out virginity testing: Northern Ireland) or (Offence of aiding or abetting etc a person to carry out virginity testing: Northern Ireland) of the Health and Care Act 2021 (offences relating to virginity testing).”

Criminal Justice and Public Order Act 1994

3 (1) Schedule 7A to the Criminal Justice and Public Order Act 1994 (offences for which cross-border powers of arrest available) is amended as follows.

(2) After paragraph 25 insert—

“25A An offence under any of the following sections of the Health and Care Act 2021—

(a) section (Offence of virginity testing: England and Wales) (virginity testing);

(b) section (Offence of offering to carry out virginity testing: England and Wales) (offering to carry out virginity testing);

(c) section (Offence of aiding or abetting etc a person to carry out virginity testing: England and Wales) (aiding or abetting etc a person to carry out virginity testing).”

(3) After paragraph 43 insert—

“43A An offence under any of the following sections of the Health and Care Act 2021—

(a) section (Offence of virginity testing: Scotland) (virginity testing);

(b) section (Offence of offering to carry out virginity testing: Scotland) (offering to carry out virginity testing);

(c) section (Offence of aiding or abetting etc a person to carry out virginity testing: Scotland) (aiding or abetting etc a person to carry out virginity testing).”

(4) After paragraph 67 insert—

“68 An offence under any of the following sections of the Health and Care Act 2021—

(a) section (Offence of virginity testing: Northern Ireland) (virginity testing);

(b) section (Offence of offering to carry out virginity testing: Northern Ireland) (offering to carry out virginity testing);

(c) section (Offence of aiding or abetting etc a person to carry out virginity testing: Northern Ireland) (aiding or abetting etc a person to carry out virginity testing).”

Crime and Disorder Act 1998

4 In section 51C of the Crime and Disorder Act 1998 (notices in certain cases involving children), in subsection (3)—

(a) after paragraph (da) insert—

“(db) under section (Offence of virginity testing: England and Wales), (Offence of offering to carry out virginity testing: England and Wales) or (Offence of aiding or abetting etc a person to carry out virginity testing: England and Wales) of the Health and Care Act 2021 (virginity testing etc);”;

(b) for “paragraph (a), (b), (c), (d) or (da)” substitute “any of paragraphs (a) to (db)”.

Modern Slavery Act 2015

5 In Schedule 4 to the Modern Slavery Act 2015 (offences to which defence in section 45 does not apply), after paragraph 36A insert—

“Health and Care Act 2021

36B An offence under any of the following provisions of the Health and Care Act 2021—

(a) section (Offence of virginity testing: England and Wales) (virginity testing);

(b) section (Offence of offering to carry out virginity testing: England and Wales) (offering to carry out virginity testing);

(c) section (Offence of aiding or abetting etc a person to carry out virginity testing: England and Wales) (aiding or abetting etc a person to carry out virginity testing).”’—(Edward Argar.)

This new Schedule contains consequential amendments relating to NC36 to NC48 creating offences relating to virginity testing.

Brought up, and added to the Bill.

Schedule 13

The Health Services Safety Investigation Body

Amendment made: 88, page 217, line 20, at end insert “value added tax,”.—(Edward Argar.)

This amendment enables regulations under paragraph 23 of Schedule 13 to vary the way VAT would have effect in relation to transfer schemes under paragraph 22 of Schedule 13.

[Mr Deputy Speaker (Mr Nigel Evans)]

We are now coming on to the next group of amendments. As hon. Members can see, we have only an hour left, so can I plead to everyone who is participating, including the Front Benchers: short contributions, please, so we can get as many people in as we possibly can?

New Clause 62

Pharmaceutical services: remuneration in respect of vaccines etc

“(1) In section 164 of the National Health Service Act 2006 (remuneration for persons providing pharmaceutical services)—

(a) in subsection (8A) for ‘special medicinal products’ substitute ‘any of the following—

(a) drugs or medicines used for vaccinating or immunising people against disease,

(b) anything used in connection with the supply or administration of drugs or medicines within paragraph (a),

(c) drugs or medicines, not within paragraph (a), that are used for preventing or treating a disease that, at the time the regulations are made, the Secretary of State considers to be a pandemic disease or at risk of becoming a pandemic disease,

(d) anything used in connection with the supply or administration of drugs or medicines within paragraph (c), or

(e) a product which is a special medicinal product for the purposes of regulation 167 of the Human Medicines Regulations 2012 (S.I. 2012/1916).’;

(b) in subsection (8D)—

(i) for ‘special medicinal products are’ substitute ‘anything within subsection (8A)(a) to (e) is’;

(ii) in paragraph (b), for ‘special medicinal products’ substitute ‘that thing,’;

(c) subsection (8E), omit the definition of ‘special medicinal product’;

(d) after subsection (8E) insert—

‘(8F) Where regulations include provision made in reliance on subsection (8A)(c) or (d) and the Secretary of State considers that the disease to which it relates is no longer a pandemic disease or at risk of becoming a pandemic disease, the Secretary of State must revoke that provision within such period as the Secretary of State considers reasonable (taking into account, in particular, the need for any transitional arrangements).’

(2) In section 88 of the National Health Service (Wales) Act 2006 (remuneration for persons providing pharmaceutical services)—

(a) in subsection (8A) for ‘special medicinal products’ substitute ‘any of the following—

(a) drugs or medicines used for vaccinating or immunising people against disease,

(b) anything used in connection with the supply or administration of drugs or medicines within paragraph (a),

(c) drugs or medicines, not within paragraph (a), that are used for preventing or treating a disease that, at the time the regulations are made, the Welsh Ministers consider to be a pandemic disease or at risk of becoming a pandemic disease,

(d) anything used in connection with the supply or administration of drugs or medicines within paragraph (c), or

(e) a product which is a special medicinal product for the purposes of regulation 167 of the Human Medicines Regulations 2012 (S.I. 2012/1916).’;

(b) in subsection (8D)—

(i) for ‘special medicinal products are’ substitute ‘anything within subsection (8A)(a) to (e) is’;

(ii) in paragraph (b), for ‘special medicinal products’ substitute ‘that thing,’;

(c) in subsection (8E), omit the definition of ‘special medicinal product’;

(d) after subsection (8E) insert—

‘(8F) Where regulations include provision made in reliance on subsection (8A)(c) or (d) and the Welsh Ministers consider that the disease to which it relates is no longer a pandemic disease or at risk of becoming a pandemic disease, the Welsh Ministers must revoke that provision within such period as the Welsh Ministers consider reasonable (taking into account, in particular, the need for any transitional arrangements).’”—(Edward Argar.)

This amendment replicates the amendments currently made by clause 76 and makes corresponding provision for Wales. As a consequence clause 76 is left out by Amendment 115.

Brought up, and read the First time.

[Edward Argar]

I beg to move, That the clause be read a Second time.

[Mr Speaker]

With this it will be convenient to discuss the following:

New clause 13—National self-care strategy—

“(1) The Secretary of State must prepare a National Self-Care Strategy to fully integrate self-care for minor ailments into the wider health system.

(2) The National Self-Care Strategy must have regard to the need to—

(a) address inequalities in health literacy;

(b) enhance the understanding of primary and secondary age children on how to self-care;

(c) introduce self-care modules in healthcare professionals’ training curricula and continuing professional development;

(d) make best use of, and expand, the Community Pharmacist Consultation Service;

(e) improve access to effective self-care treatments;

(f) enable community pharmacists to refer people directly to other healthcare professionals;

(g) ensure better support for primary care networks to deliver self-care;

(h) evaluate the use of technologies that have been developed during the COVID-19 pandemic to promote greater self-care; and

(i) accelerate efforts to enable community pharmacists to populate medical records.”

This new clause would ensure that the Secretary of State for Health and Social Care publishes a national self-care strategy to integrate self-care for minor ailments into the health system.

New clause 18—Secretary of State’s duty to report on access to NHS dentistry—

“(1) The Secretary of State must publish an annual report setting out levels of access to NHS dentistry across England and average waiting times for primary care dental treatment in each region, and describing the action being taken to improve them.

(2) NHS England and Health Education England must assist in the preparation of a report under this section, if requested to do so by the Secretary of State.”

This new clause would require the Secretary of State to report annually on the levels of access to NHS dentistry in England, setting out average waiting times for primary care dental treatment in each region, and describing action being taken to improve them as necessary.

New clause 19—Inclusion in the NHS mandate of cancer outcome targets—

“(1) Section 13A of the National Health Service Act 2006 (Mandate) is amended in accordance with subsection (2).

(2) After subsection (2), insert the following new subsection—

‘(2A) The objectives that the Secretary of State considers NHS England should seek to achieve which are specified in subsection (2)(a) must include objectives for cancer treatment defined by outcomes for patients with cancer, and those objectives are to be treated by NHS England as having priority over any other objectives relating to cancer treatment.’”

This new clause would require the Secretary of State to set objectives for the NHS on cancer treatment which are defined by outcomes (such as one-year or five-year survival rates), and would give those objectives priority over any other objectives relating to cancer treatment (such as waiting times).

New clause 20—Annual parity of esteem report: spending on mental health and mental illness—

“Within six weeks of the end of each financial year, the Secretary of State must lay before each House of Parliament a report on the ways in which the allotment made to NHS England for that financial year contributed to the promotion in England of a comprehensive health service designed to secure improvement—

(a) in the mental health of the people of England, and

(b) in the prevention, diagnosis and treatment of mental illness.”

This new clause would require the Secretary of State for Health and Social Care to make an annual statement on how the funding received by mental health services that year from the overall annual allotment has contributed to the improvement of mental health and the prevention, diagnosis and treatment of mental illness.

New clause 23—NHS Good Governance Commission—

“(1) Regulations shall provide for the establishment of an NHS Good Governance Commission as a Special Health Authority.

(2) The Commission shall have responsibility for ensuring that anyone appointed to, or elected into, a non-executive role on an NHS Body—

(a) is a fit and proper person for that role; and

(b) has been appointed or elected by a process that the Commission considers appropriate.”

This new clause returns to the position prior to 2012 and ensures independent oversight of important NHS appointments.

New clause 24—Appropriate consent to transplantation activities when travelling abroad—

“The Human Tissue Act 2004 is amended as follows—

‘(1) Section 32 (Prohibition of commercial dealings in human material for transplantation) is amended as follows.

(2) In subsection (1), after paragraph (e) insert—

“(f) travels outside the United Kingdom—

(i) to a country with a system of deemed consent for the donation of controlled material which does not meet the criteria in subsection (1A) and receives any controlled material, for the purpose of transplantation, and

(ii) to a country with a system of explicit consent for the donation of controlled material and receives any controlled material for the purpose of transplantation where the material was obtained without—

(A) the free, informed and specific consent of a living donor, or

(B) the free, informed and specific consent of the donor’s next of kin, where the donor is unable to provide consent; and

(g) receives any controlled material for the purpose of transplantation for which, in exchange for the removal of controlled material—

(i) the living donor, or a third party, receives a financial gain or comparable advantage, or

(ii) from a deceased donor, a third party receives financial gain or comparable advantage.

(1A) The Secretary of State must publish an annual assessment of countries with a system of deemed consent for donation of controlled material determining whether each of those countries—

(a) provides a formal, publicly funded scheme for opting out of deemed consent for donation of controlled material, and

(b) provides an effective programme of public education to its population on the deemed consent system and the opt-out scheme which delivers a high level of public understanding of both.

(1B) For the purposes of paragraphs (f) and (g) in subsection (1), it is immaterial whether the offence of dealing in controlled material for transplantation is caused by an act or an omission.

(1C) For the purposes of paragraph (g) in subsection (1), it is immaterial whether the acts or omissions which form part of the offence take place in the United Kingdom or elsewhere.

(1D) In paragraph (g) in subsection (1), the expression “financial gain or comparable advantage” does not include compensation for loss of earnings and any other justifiable expenses caused by the removal or by the related medical examinations, or compensation in case of damage which is not inherent to the removal of controlled material.

(1E) Subsection (1F) applies if—

(a) no act which forms part of an offence under subsection (1) takes place in the United Kingdom, but

(b) the person committing the offence has a close connection with the United Kingdom.

(1F) For the purposes of subsection (1e)(b), a person has a close connection with the United Kingdom if, and only if, the person was one of the following at the time the acts or omissions concerned were done or made—

(a) a British citizen,

(b) a British overseas territories citizen,

(c) a British National (Overseas),

(d) a British Overseas citizen,

(e) a person who under the British Nationality Act 1981 was a British subject,

(f) a British protected person within the meaning of that Act,

(g) an individual ordinarily resident in the United Kingdom,

(h) a body incorporated under the law of any part of the United Kingdom,

(i) a Scottish partnership.

(1G) In such a case, proceedings for the offence may be taken in any criminal court in England and Wales or Northern Ireland.”

(3) In subsection (3), after “subsection (1)” insert “(a) to (e)”.

(6) In subsection (4), after “subsection (1)” insert “(a) to (e)”.

(7) After subsection (4) insert—

“(4A) A person guilty of an offence under subsection (1)(f) or (1)(g) shall be liable—

(a) on summary conviction—

(i) to imprisonment for a term not exceeding 12 months,

(ii) to a fine not exceeding the statutory maximum, or

(iii) to both;

(b) on conviction on indictment—

(i) to imprisonment for a term not exceeding 9 years,

(ii) to a fine, or

(iii) to both.”

(6) Section 34 (Information about transplant operations) is amended as follows.

(12) After subsection (2) insert—

“(2A) Regulations under subsection (1) must require specified persons to—

(a) keep patient identifiable records for all instances of UK citizens who have received transplant procedures performed outside the United Kingdom; and

(b) report instances of transplant procedures performed on UK citizens outside the United Kingdom to NHS Blood and Transplant.

(2B) Regulations under subsection (1) must require NHS Blood and Transplant to produce an annual report on instances of UK citizens receiving transplant procedures outside the United Kingdom.”’”

New clause 25—Regulation of the public display of imported cadavers—

“(1) The Human Tissue Act 2004 is amended as follows.

(2) In subsections (5)(a), (6)(a) and (6)(b) of section 1 (authorisation of activities for scheduled purposes) after ‘imported’ insert ‘other than for the purpose of public display’.”

New clause 26—Report on claims for reimbursement of the immigration health surcharge—

“The Secretary of State must publish and lay a Report before Parliament giving the numbers of completed claims that have been made under the immigration health surcharge reimbursement scheme within 6 weeks of the commencement of this Act.”

This new clause requires the Secretary of State to report the number of completed claims under the Immigration Health Surcharge for NHS and care workers from overseas.

New clause 27—Secretary of State’s duty to report on waiting times for treatment—

“The Secretary of State must prepare and publish a report annually on waiting times for treatment in England, disparities in waiting times for treatment in England and the steps being taken to ensure that patients can access services within maximum waiting times in accordance with their rights in the NHS Constitution.”

New clause 30—Problem drug use as a health issue—

“(1) The UK Government will adopt a cross-government approach to drugs policy which treats problem drug use as primarily a health issue (‘the health issue principle’).

(2) In accordance with the health issue principle, the Prime Minister must, as soon as reasonably practicable—

(a) make the Secretary of State for Health and Social Care responsible for leading drugs policy in England,

(b) lay before Parliament a report on the steps that will be taken to transfer responsibilities to the Department for Health and Social Care from other departments, and

(c) undertake a review of devolution and drugs policy in light of that transfer and in accordance with subsection (3).

(3) The review of devolution and drugs policy must consider—

(a) steps to transfer responsibility for drugs policy to the devolved administrations in a manner consistent with the health issue principle and the transfers of responsibilities in England in subsection (2), and

(b) the consistency of the devolution settlement, including the specific reservation of the misuse of drugs under paragraph B1 of Part II of Schedule 5 of the Scotland Act 1998, paragraph 54 of Schedule 7A of the Government of Wales Act 2006 and paragraph 9f of Schedule 3 of the Northern Ireland Act 1998 with the health principle and any associated recommendations for change.

(4) In undertaking that review, the Prime Minister must consult—

(a) the Scottish Ministers,

(b) the Welsh Ministers, and

(c) the Department of Health in Northern Ireland.

(5) A report on the findings of the review must be laid before Parliament within six months of the passing of this Act.”

This new clause would require the UK Government to approach problem drug use primarily as a health issue and, in so doing, to make the Secretary of State for Health and Social Care the lead minister for drugs policy in England. The Prime Minister would also be required to undertake a review of the devolution of responsibility over drugs policy in the new context of recognising problem drug use primarily as a health issue.

New clause 31—Reduction in upper gestation limit for abortion to 22 weeks’ gestation—

“(1) The Infant Life (Preservation) Act 1929 is amended as follows.

In section 1(2) for ‘twenty-eight’ substitute ‘twenty-two’.

(2) The Abortion Act 1967 is amended as follows.

In section 1(1)(a) for ‘twenty-fourth’ substitute ‘twenty-second’.”

This new clause would reduce the upper gestational limit for abortion in most cases to 22 weeks’ gestation.

New clause 32—Resolution of differences over the care of children with life-limiting illnesses—

“(1) This section applies where there is a difference of opinion between a parent of a child with a life-limiting illness and a doctor responsible for the child’s treatment about—

(a) the nature (or extent) of specialist palliative care that should be made available for the child, or

(b) the extent to which palliative care provided to the child should be accompanied by one or more disease-modifying treatments.

(2) Where the authorities responsible for a health service hospital become aware of the difference of opinion they must take all reasonable steps—

(a) to ensure that the views of the parent, and of anyone else concerned with the welfare of the child, are listened to and taken into account;

(b) to make available to the parent any medical data relating to the child which is reasonably required as evidence in support of the parent’s proposals for the child’s treatment (including obtaining an additional medical opinion);

(c) to refer the difference of opinion to any appropriate clinical ethics committee (whether or not within the hospital) or to any other appropriate source for advice.

(3) Where the responsible authorities consider that the difference of opinion is unlikely to be resolved informally, they must take all reasonable steps to provide for a mediation process, between the parent or parents and the doctor or doctors, which is acceptable to both parties.

(4) In the application of subsections (2) and (3) the hospital authorities—

(a) must involve the child’s specialist palliative care team so far as possible; and

(b) may refuse to make medical data available if the High Court grants an application to that effect on the grounds that disclosure might put the child’s safety at risk in special circumstances.

(5) Where the difference of opinion between the parent and the doctor arises in proceedings before a court—

(a) the child’s parents are entitled to legal aid, within the meaning of section 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Lord Chancellor’s functions) in respect of the proceedings; and the Lord Chancellor must make any necessary regulations under that Act to give effect to this paragraph; and

(b) the court may not make any order that would prevent or obstruct the parent from pursuing proposals for obtaining disease-modifying treatment for the child (whether in the UK or elsewhere) unless the court is satisfied that the proposals—

(i) involve a medical institution that is not generally regarded within the medical community as a responsible and reliable institution, or

(ii) pose a disproportionate risk to the child of significant harm.

(6) Nothing in subsection (4) requires, or may be relied upon so as to require, the provision of any specific treatment by a doctor or institution; in particular, nothing in subsection (4)—

(a) requires the provision of resources for any particular course of treatment; or

(b) requires a doctor to provide treatment that the doctor considers likely to be futile or harmful, or otherwise not in the best interests of the child.

(7) Subsection (4)(a) does not prevent the court from making an order as to costs, or any other order, at any point in the proceedings.

(8) In this section—

‘child’ means an individual under the age of 18;

‘health service hospital’ has the meaning given by section 275 of the National Health Service Act 2006 (interpretation);

‘parent’ means a person with parental responsibility for a child within the meaning of the Children Act 1989; and

‘person concerned with the welfare of the child’ means a parent, grandparent, sibling or half-sibling.

(9) Nothing in this section affects the law about the appropriate clinical practice to be followed as to—

(a) having regard to the child’s own views, where they can be expressed; and

(b) having regard to the views of anyone interested in the welfare of the child, whether or not a person concerned within the welfare of the child within the meaning of this section.”

This new clause has a single purpose, which is to make provision about the resolution of differences of opinion between a child’s parents and the doctors responsible for the child’s treatment.

New clause 34—Visits to care homes—

“(1) Regulation 9 of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 is amended as follows.

(2) After Regulation 9, paragraph (3), sub-paragraph (i), insert—

‘(j) facilitating face to face contact between the service user and persons significant to the service user so as to meet the service user’s needs and preferences, having particular regard to their emotional and psychological needs;

(k) where the registered person determines following an individualised risk assessment that unrestricted face to face contact between significant persons and the service user is not possible, facilitating face to face contact with the significant person or persons whom the registered person reasonably believes best meets the needs and preferences of the service user;

(l) where the registered person determines following an individualised risk assessment that no face to face contact between any significant persons and the service user is possible, facilitating contact with significant persons in such other ways as best meets the needs and preferences of the service user and is in accordance with the individualised risk assessment.’

(3) After Regulation 9, paragraph (6), insert—

‘(7) In this regulation

“face to face contact” means contact without fixed physical barriers between the service user and the significant person, but includes contact where the service user and/or relevant person or persons are wearing appropriate personal protective equipment if such is required to prevent or control the spread of infections, including those that are health care associated;

“an individualised risk assessment” means a risk assessment which considers—

(a) the risks to the health and well-being of the service user both of having and not having face to face to contact with either two or more significant persons (for purposes of paragraph 3, sub-paragraph (k)) or one relevant person (for purposes of paragraph 3, sub-paragraph (I));

(b) the risks to the health and well-being of other service users arising from the registered person facilitating face to face contact between the service user and a person or persons significant to that service user; and

(c) the risks to the health and well-being of the service user (and to other service users) of alternative options for contact to minimise the risks identified in (a) and (b).

“significant person” means any person falling within section 4(7) sub-paragraphs (a) to (d) of the 2005 Act (whether or not the service user lacks capacity for purposes of the 2005 Act to decide whether or not to have face to face contact with them) and “person significant to the service user” is to be read accordingly.’”

This new clause would give effect to the recommendation of the Joint Committee on Human Rights to require individualised risk assessments for care home residents, and to ensure procedures are in place for such assessments to be queried where adequate efforts have not been made to enable safe visits to care homes.

New clause 35—Visits to patients in hospital—

“(1) The Secretary of State must by regulations make provision to ensure that arrangements are made to allow visitors to patients staying in hospital.

(2) The regulations must ensure that any such arrangements observe the following principles—

(a) Safety – The approach to visiting must balance the health and safety needs of patients, staff, and visitors, and ensure risks are mitigated.

(b) Emotional well-being – Allowing visitors is intended to support the emotional well-being of patients by reducing any potential negative impacts related to social isolation.

(c) Equitable access – All patients must be given equitable access to receive visitors, consistent with their preferences and within reasonable restrictions that safeguard patients.

(d) Flexibility – The physical/infrastructure characteristics of the hospital, its staffing availability, the risks arising from any outbreak of disease in the hospital and the availability of personal protective equipment are all variables to take into account when setting hospital-specific policies.

(e) Equality – Patients have the right to choose their visitors.”

This new clause would require the Secretary of State to make regulations providing for rights to visit patients in hospital.

New clause 50—Amendment of the law relating to abortion—

“(1) The Offences Against the Person Act 1861 is amended as follows.

(2) In section 58 (administering drugs or using instruments to procure abortion)—

(a) omit the words from the beginning to ‘intent, and’;

(b) at the end insert ‘; but this section does not apply to a woman in relation to the procurement of her own miscarriage.’

(3) In section 59 (procuring drugs, etc. to cause abortion), at the end insert ‘; but this section does not apply to a woman in relation to the rocurement of her own miscarriage.’”

This new clause would have the effect that a woman could not be held criminally liable under the Offences against the Person Act 1861 in relation to procuring, or attempting to procure, her own abortion.

New clause 51—Termination of pregnancy on the grounds of the sex of the foetus—

“Nothing in section 1 of the Abortion Act 1967 is to be interpreted as allowing a pregnancy to be terminated on the grounds of the sex of the foetus.”

This new clause would clarify that abortion on the grounds of the sex of the foetus is illegal.

New clause 52—Introduction of upper gestational limit on abortion on the grounds of disability—

“(1) The Abortion Act 1967 is amended as follows.

(2) In section 1 (Medical termination of pregnancy) at the beginning of sub-paragraph (d) to paragraph (1), insert—

‘that the pregnancy has not exceeded the gestational limit identified in sub-paragraph (a) and’”.

This new clause would introduce an upper gestational limit on abortion on the grounds of disability equal to the upper gestational limit on most other abortions

New clause 53—Review of effect on migrants of charges for NHS treatment—

“(1) Within six months of the passage of this Act, the Secretary of State must conduct a review of the effect on migrants of charges for NHS treatment, and lay a report of that review before Parliament.

(2) Before completing the review, the Secretary of State must consult representatives of groups subject to such charges.”

New clause 54—Equality impact analyses of provisions of this Act—

“(1) The Secretary of State must review the equality impact of the provisions of this Act in accordance with this section and lay a report of that review before the House of Commons within six months of the passage of this Act.

(2) A review under this section must consider the impact of those provisions on—

(a) households at different levels of income,

(b) people with protected characteristics (within the meaning of the Equality Act 2010),

(c) the Government’s compliance with the public sector equality duty under section 149 of the Equality Act 2010, and

(d) equality in different parts of the United Kingdom and different regions of England.

(3) A review under this section must include a separate analysis of each section of the Act, and must also consider the cumulative impact of the Act as a whole.”

New clause 56—Abolition of prescription charges—

“(1) Charges may not be made for NHS prescriptions.

(2) Within six weeks of the passage of this Act, the Secretary of State must exercise the relevant powers under the National Health Service Act 2006 to give effect to subsection (1).

(3) Subsection (1) does not apply to any charges which may be made before the action necessary to give effect to that subsection has been taken under subsection (2).”

New clause 60—Duty to consider residents of other parts of UK—

“For section 13O of the National Health Service Act 2006 substitute—

‘130 Duty to consider residents of other parts of UK

(1) In making a decision about the exercise of its functions, NHS England must have regard to any likely impact of the decision on—

(a) the provision of health services to people who reside in Wales, Scotland or Northern Ireland, or

(b) services provided in England for the purposes of—

(i) the health service in Wales,

(ii) the system of health care mentioned in section 2(1)(a) of the Health and Social Care (Reform) Act (Northern Ireland) 2009 (c. 1 (N.I.)), or

(iii) the health service established under section 1 of the National Health Service (Scotland) Act 1978.

(2) The Secretary of State must publish guidance for NHS England on the discharge of the duty under subsection (1).

(3) NHS England must have regard to guidance published under subsection (2).’”

This new clause places a duty on NHS England to consider the likely impact of their decisions on the residents of Wales, Scotland and Northern Ireland, and to consider the impact of services provided in England on patient care in Wales, Scotland and Northern Ireland.

New clause 61—Interoperability of data and collection of comparable healthcare statistics across the UK—

“(1) The Health and Social Care Act 2012 is amended as follows.

(2) In section 250 (Powers to publish information standards)—

(a) in subsection (3), at the beginning, insert ‘Subject to subsection (3A)’;

(b) after subsection (3), insert the following subsection—

‘(3A) The Secretary of State may also exercise the power under subsection (1) so as to specify binding data interoperability requirements which apply across the whole of the United Kingdom, and an information standard prepared and published by virtue of this subsection may apply to any public body which exercises functions in connection with the provision of health services anywhere in the United Kingdom.’

(c) after subsection (6E) (inserted by section 79 of this Act), insert the following subsection—

‘(6F) The Secretary of State must report to Parliament each year on progress on the implementation of an information standard prepared in accordance with subsection (3A).’

(3) In section 254 (Powers to direct Information Centre to establish information systems), after subsection (2), insert—

‘(2A) The Secretary of State must give a direction under subsection (1) directing the Information Centre to collect and publish information about healthcare performance and outcomes in all parts of the United Kingdom in a way which enables comparison between different parts of the United Kingdom.

(2B) Scottish Ministers, Welsh Ministers and Northern Ireland Ministers must arrange for the information relating to the health services for which they have responsibility described in the direction made under subsection (2A) to be made available to the Information Centre in accordance with the direction.’”

This new clause would enable the Secretary of State to specify binding data interoperability standards across the UK, require the collection and publication of comparable information about healthcare performance and outcomes across the UK, and require Ministers in the devolved institutions to provide information on a comparable basis.

New clause 63—NHS duty to carers—

“NHS bodies must identify unpaid carers who come into contact with NHS services and ensure that their health and wellbeing is taken into account when decisions are made concerning the health and care of the person or people for whom they care.”

New clause 64—Review of public health and health inequalities effects—

“(1) The Secretary of State for Health and Social Care must review the public health and health inequalities effects of the provisions of this Act and lay a report of that review before the House of Commons within six months of the passing of this Act.

(2) A review under this section must consider—

(a) the effects of the provisions of this Act on socioeconomic inequalities and on population groups with protected characteristics as defined by the 2010 Equality Act,

(b) the effects of the provisions of this Act on life expectancy and healthy life expectancy in the UK,

(c) the effects of the provisions of this Act on the levels of relative and absolute poverty in the UK, and

(d) the effects of the provisions of this Act on health inequalities.”

Amendment 89, in clause 4, page 2, line 40, after first “the” insert “physical and mental”.

This amendment requires NHS England to prioritise both the physical and mental health and well-being of the people of England and to work towards the prevention, diagnosis or treatment of both physical and mental illness, replicating the parity of esteem duty introduced in the Health and Social Care Act 2012.

Amendment 67, page 3, line 7, at end insert—

“(d) health inequalities.”

This amendment would modify the triple aim to explicitly require NHS England to take account of health inequalities when making decisions.

Amendment 90, page 3, line 10, after “of” insert “physical and mental”.

This amendment requires NHS England to prioritise both the physical and mental health and well-being of the people of England and to work towards the prevention, diagnosis or treatment of both physical and mental illness, replicating the parity of esteem duty introduced in the Health and Social Care Act 2012.

Amendment 44, in clause 6, page 3, line 40, leave out “person” and insert “relevant public body”.

Amendment 45, page 4, line 1, leave out “person” and insert “public body”.

Amendment 46, page 4, line 4, after “employees”, insert

“, within their terms and conditions of employment,”.

Government amendments 83 and 84.

Amendment 70, page 48, line 34, leave out clause 39.

Amendment 93, in clause 44, page 49, line 31, after first “the” insert “physical and mental”.

This amendment will require NHS Trusts to prioritise both the physical and mental health and well-being of the people of England and to work towards the prevention, diagnosis or treatment of both physical and mental illness, replicating the parity of esteem duty introduced in the Health and Social Care Act 2012.

Amendment 94, page 49, line 36, after first “of” insert “physical and mental”.

This amendment will require NHS Trusts to prioritise both the physical and mental health and well-being of the people of England and to work towards the prevention, diagnosis or treatment of both physical and mental illness, replicating the parity of esteem duty introduced in the Health and Social Care Act 2012.

Amendment 71, page 49, line 39, at end insert—

“(d) health inequalities.”

This amendment would modify the triple aim to explicitly require NHS trusts to take account of health inequalities when making decisions.

Amendment 95, in clause 58, page 55, line 23, after first “the” insert “physical and mental”.

This amendment will require NHS foundation trusts to prioritise both the physical and mental health and well-being of the people of England and to work towards the prevention, diagnosis or treatment of both physical and mental illness, replicating the parity of esteem duty introduced in the Health and Social Care Act 2012.

Amendment 96, page 55, line 28, after first “of” insert “physical and mental”.

This amendment will require NHS foundation trusts to prioritise both the physical and mental health and well-being of the people of England and to work towards the prevention, diagnosis or treatment of both physical and mental illness, replicating the parity of esteem duty introduced in the Health and Social Care Act 2012.

Amendment 97, in clause 66, page 61, line 26, after first “the” insert “physical and mental”.

This amendment will require decisions on licensing of health care to prioritise both the physical and mental health and well-being of the people of England and to work towards the prevention, diagnosis or treatment of both physical and mental illness, replicating the parity of esteem duty introduced in the Health and Social Care Act 2012.

Amendment 98, page 61, line 32, after first “of” insert “physical and mental”.

This amendment will require decisions on licensing of health care to prioritise both the physical and mental health and well-being of the people of England and to work towards the prevention, diagnosis or treatment of both physical and mental illness, replicating the parity of esteem duty introduced in the Health and Social Care Act 2012.

Government amendment 115.

Amendment 60, page 71, line 6, leave out clause 80.

This amendment is to ensure that social care assessments take place prior to discharge from hospital.

Amendment 73, in clause 80, page 71, line 9, at end insert—

“(2A) A social care needs assessment must be carried out by the relevant local authority before a patient is discharged from hospital or within 2 weeks of the date of discharge.

(2B) Each integrated care board must agree with all relevant local authorities the process to apply for social care needs assessment in hospital or after discharge, including reporting on any failures to complete required assessments within the required time and any remedies or penalties that would apply in such cases.

(2C) Each integrated care board must ensure that—

(a) arrangements made for the discharge of any patient without a relevant social care assessment are made with due regard to the care needs and welfare of the patient, and

(b) the additional costs borne by a local authority in caring for a patient whilst carrying out social care needs assessments after a patient has been discharged are met in full.

(2D) The Secretary of State must publish an annual report on the effectiveness of assessment of social care needs after hospital discharge, including a figure of how many patients are readmitted within 28 days.”

Government amendments 116 to 121.

Government amendment 85.

Government amendments 122 to 126.

Government amendment 128.

Amendment 82, in clause 135, page 117, line 14, at end insert—

“(2A) Regulations may only be made under this Act with the consent of the—

(a) Scottish Ministers insofar as they make provision for any matter which falls within the legislative competence of the Scottish Parliament,

(b) Welsh Ministers insofar as they make provision for any matter which falls within the legislative competence of Senedd Cymru, and

(c) Northern Ireland Ministers insofar as they make provision for any matter which falls within the legislative competence of the Northern Ireland Assembly.”

This amendment would require the Secretary of State for Health and Social Care to obtain the consent of the relevant devolved government before powers to make regulations under the Act in an area falling within the legislative competence of a devolved institution, are exercised.

Government amendments 129 to 133.

Amendment 103, in schedule 6, page 186, line 4, at end insert—

“‘relevant Health Overview & Scrutiny Committee’ means any Health Overview and Scrutiny Committee in an area to which the proposal for a reconfiguration of NHS services relates.”.

Amendment 104, in schedule 6, page 186, line 31, at end insert—

“(c) must consult relevant Health Overview & Scrutiny Committees.”

Amendment 105, in schedule 6, page 186, line 43, at end insert—

“(aa) have regard to, and publish, the clinical advice of the Integrated Care Board’s Medical Director in relation to any decision under sub-paragraph (2)(a),

(b) publish a statement demonstrating that any decision made under sub-paragraph (2)(a) is in the public interest, and”.

Amendment 54, in schedule 10, page 204, line 7, after “(1),” insert

“not undermine an NHS provider’s ability to provide a service whilst maintaining the pay rates in Agenda for Change, pensions and the other terms and conditions of all eligible NHS staff and”.

This amendment aims to ensure that the pay rates of Agenda for Change, pensions, and other terms and conditions of all eligible NHS staff are not undermined as a result of the adoption of the NHS payment scheme.

Amendment 55, in schedule 10, page 204, line 39, after “following” insert

“on the likely impact of the proposed scheme”.

This amendment requires NHS England to consult stakeholders on the likely impact of the NHS payment scheme.

Amendment 56, in schedule 10, page 204, line 41, at end insert—

“(ba) all relevant trade unions and other organisations representing staff who work in the health and care sectors;”.

This amendment aims to ensure that all relevant trade unions and other organisations representing staff who work in the health and care sectors are consulted by NHS England on the likely impact of the proposed NHS Payment Scheme.

17:00

[Edward Argar]

Being conscious of the time, I will endeavour to be brief and try to scoop up in my winding-up speech any particular concerns expressed during the debate.

While this Bill is predominantly about the health service in England, and the majority of measures are England-only, a small number of provisions in the Bill will deliver benefits to residents in all four nations of the United Kingdom. The Government have worked with the devolved Administrations to improve services and outcomes for people across the country, and we have now agreed a package of amendments to some provisions in the Bill to address concerns raised by the DAs. Following that constructive engagement, we are pleased that DA Ministers supported our approach. On 15 November, the Northern Ireland Assembly voted to grant legislative consent motions for the provisions on reciprocal healthcare, medicine information systems and professional regulations.

This group of amendments contains the amendments negotiated with the DAs, and I extend my thanks not only to the DA Ministers and officials, but to the territorial Secretaries of State and offices of this United Kingdom in London for their work. There remain a small number of areas in which final agreement is needed, and one area where work is still ongoing. The group also contains technical Government amendments to ensure that no unintended tax consequences arise as a result of the powers in this Bill.

I will speak briefly to new clause 62 and amendments 115 and 129 and then I will pause to allow hon. Members on both sides to make their contributions and seek to address their points subsequently.

New clause 62 replicates the amendments currently made by clause 76 for England and makes corresponding provision for Wales and, as a consequence, clause 76 is removed by amendment 115, so that the changes made by it, together with the corresponding changes for Wales, can be set out in one place.

The new clause amends both the National Health Service Act 2006 and the National Health Service (Wales) Act 2006, enabling regulations to be made in respect of both England and Wales, allowing for further exemptions from the obligation to reimburse pharmacies under the standard NHS arrangements when centrally stocked products have been supplied free of charge to community pharmacies without the need to reimburse them. That will allow the respective Ministers to create limited additional exemptions to those that can already be created by the existing regulation-making powers introduced in 2017 for unlicensed medicines—more commonly known as “specials”. The additional exemptions are restricted to vaccinations and immunisations, medicinal products used for the prevention or treatment of disease in a pandemic, and associated products, such as diluents and syringes.

There are various reasons why we may seek to centrally procure vaccines or products used to treat a pandemic. When supplying products directly to pharmacies free of charge, we do not want to reimburse pharmacies as well as purchasing the stock itself. Currently, the Government would pay twice as the legislative framework makes provision for the reimbursement price paid to pharmacies to be set at zero only for specials and not for other products.

I am conscious that a considerable number of Members will want to speak either on the devolution aspect of this legislation, which was debated extensively in Committee and to which I will respond in my winding-up speech if I have time. I am also conscious that other right hon. and hon. Members have amendments to which they wish to speak at some length—well, hopefully not at some length, but clearly—to put their points across on important issues, because this group of amendments covers a wide variety of matters. With your permission, Mr Deputy Speaker, I will pause now to allow maximum time for Back Benchers and others to speak and then try to pick up any points in my winding-up speech.

[Several hon. Members rose—]

[Mr Deputy Speaker (Mr Nigel Evans)]

Fantastic. I am grateful to the Minister for his brevity; he can see how many people are trying to catch my eye.

[Justin Madders]

Thank you, Madam Deputy Speaker—[Interruption.] It has been a long day, Mr Deputy Speaker, but we will get there.

I will speak to the amendments tabled in my name and those of my right hon. and hon. Friends. As the Minister said, this group of amendments covers a large range of important areas, so I will be brief.

New clause 27 flags up the issues around waiting times. Passing any amendment requiring a report is, of course, not a total solution, but it might be a source of focus. As Labour has said many times since 2010, winter pressures, waiting times and the flight into private healthcare to get earlier treatment have exacerbated the issues.

[Mr Tanmanjeet Singh Dhesi (Slough) (Lab)]

Many of my constituents find it increasingly difficult to book an appointment with an NHS GP or dentist, forcing them either to go private or to suffer without treatment. Does the shadow Minister agree that, after a decade of failure and misguided policies, the Government must take urgent remedial action? However, the term “waiting time”, to which he has just referred, is not mentioned once in the Bill.

[Justin Madders]

My hon. Friend is right that one of the criticisms we have levelled against the Bill is that it does not address the issues and challenges facing the NHS. I will take no further interventions, because I am conscious that many Members have contributions to make.

I will move swiftly on to our two amendments dealing with inequality and to new clause 64 in the name of my hon. Friend the Member for Oldham East and Saddleworth (Debbie Abrahams). To show that this is an NHS and social care Bill, not just an NHS Bill, local authorities need to be more involved and more emphasis must be placed on wellbeing and better outcomes. We support the NHS triple aim—improving health, quality of care and cost control are, of course, important functions. Nevertheless, we live in a country where significant inequalities remain, and narrowing those gaps should be a national priority.

Research from the IPPR last month highlighted the 10-year gap in life expectancy between a person living in the poorest community and a person in the best off. That gap doubles when we talk about healthy life expectancy. Tackling that disparity must be a priority in the Bill. The Secretary of State for Health and Social Care said in his first speech that said he wanted to tackle the “disease of disparity”, so why is that missing?

Turning to clause 39—one of my favourites—why it remains in the Bill is a mystery given that the previous Secretary of State, the right hon. Member for West Suffolk (Matt Hancock), who requested these powers, is no longer in the role. Perhaps he will give us his insight into that later on. It is the absolute antithesis of the Lansley view that politicians should be distanced from NHS operational issues and makes a mockery of the overall thrust of this Bill, which is about encouraging local decision making. It is no exaggeration to say that, taken literally, clause 39 and its accompanying schedule 6 require the Secretary of State to be told if there are, or even if there might be, proposals to vary service—even moving a clinic from one location to another nearby.

As has been pointed out by wise heads, the power is not one that many Secretaries of State should want to get involved in. A Secretary of State who used it could be accused of favouring certain areas or decisions for political purposes. The well-articulated fear is that it will be used to block necessary but unpopular changes and that expediency will rule. Such decisions should be left to the clinicians or maybe the health economists but not politicians. Labour opposes this new power and would gently say to the Minister, “Be careful what you wish for.”

Finally, the issues around discharge to assess are complex. As we worked our way through in Committee, we heard evidence from many stakeholders, and it is fair to say that views on the matter were polarised. We are led to believe, and have some confirmation, that this development is working well for some acute settings, helping ease the perennial and disruptive issues around delayed transfers of care, but in other places we hear voices calling for much greater caution and for tougher safeguards or even, as amendment 60 requests, to stop it altogether. While we have sympathy with amendment 60, it would only pose more problems for the NHS if it was passed, so we have opted in our amendment 73 just to tighten up on safeguards.

Of course the real solutions are far more complex and would require higher investment both in the NHS and in social care. It should be mandatory that all aspects of ongoing care have been properly discussed and agreed with the patient and carers prior to discharge. An assessment should include carers with special attention if a child carer is involved, and there is a concern that unpaid carers will not be identified and consulted at the point of discharge.

The system for step-down care outside acute hospitals must be adequate, and there must be sufficient high-quality and funded places in care settings of all kinds. We are literally a whole generation away from having that kind of system, even if the funding started to become available today. On a related point, new clause 63 from the hon. Member for St Albans (Daisy Cooper) also deserves support.

I will leave my comments there, as I know many hon. Members want to speak.

[Mrs Theresa May (Maidenhead) (Con)]

I rise to speak in support of amendments 93 to 98, whose purpose is very simple.

The Health and Social Care Act 2012 established parity of esteem between physical and mental health in their treatment in the national health service. The Bill is silent on the issue. I know that Ministers have given assurances, in a variety of ways, that it is not the Government’s intention to move away from that parity of esteem, but if that is the case, the answer is simple: accept the amendments. The Government do not even have to write them; they have been written for them. There would then be absolutely no doubt about the continued commitment to ensuring parity of esteem between physical and mental health.

Mental health was clearly in the long-term plan for the national health service that I was pleased to see introduced. It was there because of the need to accept, as Members across the House do, that for too long mental health has not been given the attention that it deserves. People who were suffering with mental health problems were not getting the services that they need.

It will take time to ensure that we can provide for all, but sadly the issue has been exacerbated by the pandemic. In March 2021, there were 26% more referrals for mental health services than in March 2019, before the pandemic. The Centre for Mental Health reckons that 10 million additional people will need mental health care as a result of the pandemic. I am particularly concerned about the impact on young people; I am sure that Members across the House are seeing young people in their constituencies whose mental health may have been suffering anyway, but has suffered even more as a result of the pandemic.

More people now require mental health services. The Government talk a lot about dealing with the backlog that is a result of the pandemic, but it is only ever spoken about with reference to surgery or operations. The great danger is that in their focus on dealing with that backlog, which we all accept is necessary, the Government will push the issue of mental health services to one side.

The amendments stand in the name of my hon. Friend the Member for Broxbourne (Sir Charles Walker), in my name and in the names of Members across the House—there is cross-party concern. I say to the Minister once again: it is very simple. If the Government wish to maintain parity of esteem between physical and mental health and ensure that people with mental health problems are given the services and care that they need, they must put uncertainty to one side, accept the amendments and make it clear that physical and mental health will be treated with parity of esteem in our national health service.

[Dr Whitford]

I rise to speak to my amendment 82, which is on legislative consent if the Bill is used in the devolved aspects of healthcare in future. The bulk of healthcare—certainly its delivery through the Scottish NHS—is devolved. Having been on the Bill Committee, I was surprised that in the original version of the Bill there was not one mention in that context of the word “consultation”, let alone the word “consent”.

I do welcome amendments 118 and 121. I recognise that the Minister is trying to work constructively with the devolved Governments, but health is devolved. I am sorry, but after the United Kingdom Internal Market Act 2020, because of how the funds to replace EU funding post Brexit are being used to cut the devolved Governments out of decision making, there is a real fear among the public in Scotland that their health services could be changed in future. I ask anyone who supports devolution in principle to support amendment 82.

[Matt Hancock (West Suffolk) (Con)]

I rise to support new clauses 60 and 61, which relate, like the amendments that the hon. Member for Central Ayrshire (Dr Whitford) spoke about, to the UK-wide application of the Bill.

Health is rightly devolved, and as Secretary of State I worked very closely with Ministers in the three devolved nations, but there are nevertheless areas in which it is vital that the NHS, as a British institution, supports all our constituents right across this United Kingdom. Two areas in particular are critical and, in my view, need legislative attention.

The first area is the interoperability of data. As well as being vital for stronger research, it is necessary not least so that if you travelled to Caerphilly or Glasgow and were ill, Mr Deputy Speaker, the NHS could access your medical records to know how best to treat you. We can see right now, in the application of the NHS app for international travel, what happens without the data interoperability that new clause 61 would require.

[Geraint Davies (Swansea West) (Lab/Co-op)]

Is the right hon. Gentleman aware that there is concern in Wales, where we are protecting the private personal data of people receiving medicine and healthcare, that in England there will now be a gateway for the private sector to take people’s data and use it for its own reasons? That is one reason that we would not want to give the English our data.

17:09

[Matt Hancock]

On the contrary: data protection laws are UK-wide, so it is appropriate that this should be done UK-wide.

The second area is services. For instance, if a new treatment is available to Scottish patients in Edinburgh, which has one of the finest hospitals in the country, and if on rare occasions it is available to a Welsh person in Wales with a rare disease, should that person not be able to benefit from it? Likewise, if a treatment is available in one of the great London teaching hospitals and somebody from Stirling needs it, should they not be able to get it? At the moment, access to such specialist services is available on an ad hoc basis, but it is not broadly available. That is what new clause 60 seeks to address.

[Dr Whitford]

I simply point out that it is available; it is just that funding has to follow from the domestic health board to pay for it. I have sent patients to Leeds for MRI-guided biopsy, and patients used to come to Glasgow to have eye melanoma removed without losing their eye. That already exists.

[Matt Hancock]

It happens on an ad hoc basis, but it is not a right. The NHS is a great British institution, and access should apply right across the board.

Finally, in my last few seconds, may I simply say how strongly I agree with my right hon. Friend the Member for Maidenhead (Mrs May) about amendments 93 to 98?

[Barbara Keeley (Worsley and Eccles South) (Lab)]

I rise to speak to amendment 73, which would introduce safeguards around the discharge-to-assess process.

The discharge-to-assess process may have been a necessary element of the NHS’s pandemic response, but it contains gaps in safeguarding that leave unpaid carers vulnerable to financial impact and risks to their health. Many unpaid carers have to begin caring overnight, when their relative or friend, who may be quite unwell, is discharged from hospital without a plan for their care at home. Without a carer’s assessment to check whether a person has the capability or capacity to take on such a commitment, weeks can pass before any plan is made, leaving carers and the people they care for struggling in a desperate situation.

The Government’s own impact assessment on discharge to assess states baldly:

“There is an expectation that unpaid carers might need to allocate more time to care for patients who are discharged from hospital earlier. For some, this could require a reduction in workhours and associated financial costs.”

Organisations that support unpaid carers are outraged by that statement. The Government’s expectation that carers can just drop everything to take on a new caring burden is insulting, particularly given the extra caring burden that 3 million people have already taken on during the pandemic.

I recently queried that point with the Secretary of State at the Health and Social Care Committee. In response, the he wrote to the Committee to say that the Government do

“not expect unpaid carers to need to give up work or reduce their working hours to look after friends or family while their long-term health and care needs assessments are completed”.

When the impact assessment says one thing and the Secretary of State, after being questioned about it, says another, I have to question the understanding in the Department and among Ministers of the discharge-to-assess policy and its impact on the 13 million carers in the country.

[Daisy Cooper (St Albans) (LD)]

Does the hon. Member agree that it would be helpful if the NHS had a duty, as I have attempted to capture in new clause 63, to identify carers, so that their health and wellbeing is taken into account when decisions are made about the people for whom they care? Does she agree that it would be helpful if the Minister responded to new clause 63 in winding up?

[Barbara Keeley]

I do indeed. The hon. Member may not know that, a few years ago, I introduced a Bill to try to persuade the Government to accept that the NHS should have a duty to identify carers. I have tried to introduce it on two more occasions since then, and I will send her a copy. I hope that the Minister will respond to what she has said.

Carers UK has reported high levels of fatigue and stress among unpaid carers, three quarters of whom feel exhausted and worn out because of' caring responsibilities during the pandemic. It would constitute a poor recognition of the sacrifice and dedication of those carers if discharge to assess was left without adequate safeguarding measures for them. Although discharge guidance already states that unpaid carers must be involved in discharge planning decisions when a patient has new or additional care needs, more than one in four are not consulted prior to discharge, and 60% say that at the point of discharge they received insufficient support to protect the health and wellbeing of the patient, or their own health.

Amendment 73 would protect carers from being left waiting an indefinite amount of time for care plans it would ensure that integrated care boards held responsibility for monitoring and reporting on any failures. I support its inclusion in the Bill, and, like the hon. Member for St Albans (Daisy Cooper), I hope that the Minister will respond to these points when he sums up the debate.

[Mr John Baron (Basildon and Billericay) (Con)]

Thank you for calling me, Mr Deputy Speaker, and I thank Mr Speaker for selecting my new clause 19. I also thank all those who have kindly supported it.

It remains an inconvenient truth that although our cancer survival rates are improving, we continue to lag behind international comparators. The primary reason for this is that the NHS does not diagnose cancers early enough. New clause 19 seeks to put that right by placing improved outcomes—that is, survival rates—at the heart of the NHS.

[Jeremy Corbyn (Islington North) (Ind)]

I strongly support the new clause. Does the hon. Gentleman also recognise that there can be delays in obtaining GP appointments in the first place, and someone who feels that they may be suffering from some form of cancer often loses several days—if not, on some sad occasions, weeks— before they get into the NHS system for treatment?

[Mr Baron]

I tend to agree, and that is in part what the new clause is intended to address.

I chaired the all-party parliamentary group on cancer for nine years. We were painfully aware that the Government had once estimated that if the country matched the best survival rates in Europe, 10,000 lives a year would be saved. In 2013, the OECD confirmed that that our survival rates ranked near the bottom when compared to those of other major economies. As we have improved our rates, so have other countries, and we are not closing the gap. A more fundamental change is required.

Back in 2009, when I first became its chairman, the APPG conducted a major inquiry which showed that the main reason our survival rates lagged behind others was not that the NHS was any worse than other healthcare systems at treating cancer once it was detected, but that it was not as good at catching cancers in the crucial early stages. In other words, late diagnosis lay behind our comparatively poor survival rates. The APPG had some success in getting the one-year survival rates—rates of survival one year after diagnosis—into the NHS DNA.

A key advantage of focusing on this kind of “outcome measure” is that it gives healthcare professionals much greater freedom and flexibility to design their own solutions, which could include running wider screening programmes and better awareness campaigns, and establishing greater diagnostic capabilities at primary care. A further advantage of focusing on outcome measures is that it will better align NHS priorities with patient needs. Survival rates are what really matter to patients. However, clinical commissioning groups are too often focused on “process targets”—the 62-day wait for treatment being an example—because they are often linked to funding. The one-year survival rate measure was not.

Research produced by the House of Commons Library found that nine such process targets were applicable to cancer alone, such as the 62-day wait. Process targets have a role to play in improving the NHS, but all too often they are a blunt tool offering information without context, and they can be exclusive, especially when funding flows are attached. Also, I consider it unacceptable that, in the case of certain cancers at least, patients should have to wait for 62 days—two months, in effect—for treatment. That is simply not right. Furthermore, process targets can easily become a political football between the two Front Benches, and only short-term points are scored. All sides are guilty of this, but it rarely helps patients.

In addition, process targets are not the best way of helping those with rarer cancers, with often fall between the cracks because data on those cancer types have not been routinely collected. That is a real problem. If we want to drive up survival rates, we cannot exclude rarer cancers, if only because they account for more than half all cancer cases.

Given the advantages of outcome measures such as one-year survival rates, I have tabled my simple amendment, new clause 19. Its aim is to ensure that NHS England puts outcome measures above process targets.

[Dr Whitford]

Will the hon. Gentleman give way?

[Mr Baron]

I will not. I do apologise, but time is short.

New clause has been endorsed by the founding chief executive of Cancer Research UK, Professor Sir Alex Markham, who has commented that

“comparable health services abroad continue to outperform the NHS in terms of cancer survival. They all remain focused on cancer outcomes and the UK would be foolish not to do likewise.”

The new clause has also been endorsed by others, including the Teenage Cancer Trust. I assure those who are concerned that it will not detract from process targets; quite the opposite because, by implication, improved outcomes can only be facilitated by improved processes and inputs.

I urge the Minister to adopt the new clause. He will then have more time to assess its impact, and perhaps, following consultation, suggest amendments—if necessary —in the other place. I am confident that sufficient cross-party support could be achieved if acceptable nuances were required. If that is not possible, I intend to press the new clause to a vote, but I sincerely hope that I—we—can work with the Government and other parties to drive up survival rates in the NHS across the United Kingdom.

[Mr Deputy Speaker (Mr Nigel Evans)]

I must ask for brief contributions from now on. I call Margaret Greenwood.

[Margaret Greenwood]

Thank you, Mr Deputy Speaker.

The proposed NHS payment scheme in the Bill will, in effect, give private healthcare companies the opportunity to undercut NHS providers, and I believe we will then see healthcare that should be provided by the NHS increasingly being delivered by the private sector, with money going into the pockets of shareholders rather than being spent on patient care. If that happens, NHS staff may well find themselves forced out of jobs that currently provide Agenda for Change rates of pay, NHS pensions and other terms and conditions, and find that only private sector jobs with potentially lesser pay and conditions are available for them to apply for if they wish to continue working in the health service.

My amendments 54, 55 and 56, which are supported by the Royal College of Nursing, are intended to ensure that the pay rates of Agenda for Change, pensions, and other terms and conditions of all eligible NHS staff are not undermined as a result of the adoption of the NHS payment scheme, and that all relevant trade unions and other organisations representing staff who work in the health and care sectors are consulted by NHS England on the likely impact of the proposed scheme.

On hospital discharge, I have tabled amendment 60, which would remove clause 80 from the Bill. The hospital discharge proposals pose risks to patients and staff. In its written evidence given to the Bill Committee, the RCS said:

“In the context of current high vacancy rates across district and community nursing, and poor understanding of workforce shortages across the health service, public health and social care, along with chronic underfunding due to failure of the current service payment model to recognise community nursing, this legislation should not seek to demand a service delivery approach which transfers such disproportionate risk to nursing staff and patients.”

As of May this year, 4 million patients had been discharged since 2020 under discharge to assess and the temporary measures of the Coronavirus Act 2020. I asked the Government how many of those patients had been readmitted within 30 days but they told me that they did not hold the data. In effect, they did not know; they do not have that information. Back in June of this year, the Government told me that the national health service had commissioned an independent evaluation of the implementation of hospital discharge policy, and that the evaluation was under way. It was due to report in autumn 2021—that is, now. Yet the NHS told me last week that the report containing the evaluation had not yet been finalised. It is therefore a matter of extreme concern that the Government are pushing ahead with a policy that is risky to both patients and staff without properly understanding its clinical outcomes, and that they know they are doing so. I ask the Minister to withdraw clause 80 from the Bill.

17:30

[Fiona Bruce (Congleton) (Con)]

I would like to speak to new clause 31 in my name, which would reduce the upper gestational limit for abortion in most cases to 22 weeks gestation. This time limit amendment would replace the current 24-week time limit for abortions on the ground where there is a greater risk of injury to the physical or mental health of a pregnant woman or any of her children of proceeding with the pregnancy, under section 1(1)(a) of the Abortion Act 1967. The current 24-week limit law is based on an outdated understanding of the viability of premature babies, and it needs to be updated.

[Sir Edward Leigh (Gainsborough) (Con)]

Is it not absurd that in one ward of a hospital doctors can be fighting to save the life of a 22-week gestation baby while arguably, under the law, a 24-week baby can be aborted? That is ridiculous, and whatever anyone’s views on abortion, this is now the time to review this law, which is based on outdated technology and medical practices.

[Fiona Bruce]

My right hon. Friend makes exactly the right point.

Our law needs to be updated. The current 24-week limit was set over 30 years ago, in 1990. That legislation removed the previous time limit of 28 weeks. In 1990, 24 weeks was considered the point of viability outside the womb, but the scientific advances in those 31 years have been enormous. The latest guidance from the British Association of Perinatal Medicine establishes 22 weeks gestation to be the point of viability and enables doctors to intervene to save premature babies from 22 weeks. A study from a neonatal intensive care unit in London found that survival rates for babies born at 22 and 23 weeks gestation went from zero in the period from 1981 to 1985 to 19% in the period from 1986 to 1990, and then up to 54% in the years from 1996 to 2000. We would no doubt find that the figures had increased substantially since then, were those figures available. Just in the past few weeks, we have seen the incredible story from the American state of Alabama of the birth of a baby boy at just 21 weeks old. Weighing just 14.8 ounces, Curtis Means needs oxygen support and a feeding tube, but he is in good health. New clause 31 is a probing amendment, so I will not be pressing it to a vote on this occasion. However, I would welcome the Minister’s views and I look forward to a greater debate on this issue.

I also want to take a few moments to give my support to new clause 51, in the name of the hon. Member for Upper Bann (Carla Lockhart), which would clarify that abortion on the ground of the sex of the foetus is illegal. This relates to the truly awful exploitative practice whereby women can be pressurised into abortions based on the sex of their unborn child. I also support new clause 52, also in the name of the hon. Member for Upper Bann, which seeks to bring parity to the law in equalising time limits on abortions that take place on the ground of disability, so that they would be equal to the limits on most other abortions. The current law permits abortions up to birth if the baby is deemed likely to be born seriously handicapped. This is interpreted to include entirely non-fatal disabilities such as Down’s syndrome and easily surgically rectifiable conditions such as cleft palate and club foot. One of my sons was born with club foot, and I know how rectifiable it is. The law is plainly inconsistent with the disability discrimination legislation that applies after birth, and it sends a dreadful message to people who are living and thriving with disabilities about how little their lives are valued under abortion law. Again, I look forward to hearing the Minister’s views.

[Madam Deputy Speaker (Dame Rosie Winterton)]

In order to try to get as many people in as possible, I am going to put on a three-minute time limit.

[Ms Marie Rimmer (St Helens South and Whiston) (Lab)]

Forced organ harvesting in China is one of the worst crimes against humanity of the 21st century. That is why I wish to speak to new clauses 24 and 25 in my name. It is a crime that no British citizens should be taking part in, and a crime that humanity has a duty to stop. New clause 24 aims to put a dent in the forced organ harvesting trade. It would prohibit UK citizens from receiving a transplant abroad without the clear consent of the donor. The forced organ trade is a big money business. The organs of a young healthy adult are worth in the region of half to three quarters of a million US dollars. That is money that people would, and do, kill for.

China started with political prisoners, with the religious Falun Gong group being the main source. Now it has moved on to Uyghur Muslims, some Christians and other minority groups. Evidence was heard at the China and Uyghur tribunals that mass DNA testing is taking place in the internment camps in Xinjiang, enough to compile a Uyghur organ database and bank ready for withdrawals on demand. The world might believe that China had an ethnical organ donation system based on the World Health Organisation’s assessment, yet that assessment from the WHO is based on a country’s self-assessment—in this case by the Chinese Communist party. It is a barbaric practice, and every democracy in the world should be looking at what it can do to stop it.

I am grateful to Members from every party across this House for supporting my new clause. It will not stop the trade, but it will show that we in Britain are doing our part and helping to influence other countries to do the same. I thank my hon. Friend the Member for Nottingham North (Alex Norris) for raising these new clauses in Committee. The Minister sympathised, but expressed certain concerns. He was worried that countries could have a deemed consent system in which everyone was automatically a donor. Deemed consent is acceptable only if people can opt out. Under a new provision, the Secretary of State will assess the deemed consent of each country. The Minister was also concerned that the recipient of an organ could face criminal consequences. It is the duty of a Government to ensure that people are aware of what is a crime, and supporting or funding a crime against humanity must be illegal.

New clause 25 would make imported cadavers require the same consent as bodies sourced from within the UK. The Minister claimed that a revised code of practice covered this, but a code of practice is not law. Surely the sanctity and dignity of the human body demand the power of legislation. I call on the House and this Government to step up and do their part to stop this crime against humanity.

[Robin Millar (Aberconwy) (Con)]

I rise to speak to new clauses 60 and 61 in my name. Simply, they would put patients first. I am thankful to my right hon. Friend the Member for West Suffolk (Matt Hancock) for his comments on new clause 60, but as I do not seek to press it to a Division, I will mention no more of it now.

On new clause 61, let me simply say this: good data is needed for good services. Good data allows professionals and planners to assign resources and guide interventions where they are needed most. Good data allows patients to make informed decisions about where to be treated, or where to live. Good data allows politicians to be held to account when services fail. Therefore, new clause 61, at its simplest, is about collecting and comparing data. It would standardise the publication of a set of UK-wide NHS data and ensure the interoperability of that data.

In Wales, unfortunately, Welsh reporting standards mean that waiting list statistics are not available for most procedures. Before the pandemic, it took a journalistic investigation in north Wales to highlight that patients were waiting for more than two years for hip operations. Constituents now report that they are being told that they face a two-year wait just for a first out-patient clinical appointment. That is distressing and disappointing, and it is simply because data is not available.

We must ask the question, if for want of a nail, the shoe was lost, what are we losing for the want of good data? If the Government are to bring digital transformation into the heart of the NHS, the Minister must know that that heart can only be animated when good data courses through its veins.

In the months I have worked with colleagues on new clause 61, we have heard overwhelming support from patients—they agree. Healthcare professionals, IT experts and administrators have told us that they agree. In fact, I do not believe that the clause would divide the House, in compassion or common sense. I accept, however, that there is a challenge in delivering it and I know that the Government are exploring ways to address that.

I note the Minister’s comments at the start of the debate about close working with the devolved Administrations, and I welcome that.

[Jonathan Edwards (Carmarthen East and Dinefwr) (Ind)]

I do not question that the hon. Gentleman’s new clause is well intentioned. Does he believe that the standardisation would happen in conjunction with the four Governments working together or, in his view, would the process be driven solely from Westminster?

[Robin Millar]

I thank the hon. Gentleman for his question, which is a good and relevant one, and it speaks directly to the heart of what the Minister said in his opening comments. There is good collaboration and an emerging consensus on this, so I am optimistic that that will be the case. In fact, my concluding remark is to say that I will not press new clause 61 to a Division, but I will listen carefully to the Minister’s response.

[Emma Hardy]

I will be brief, speaking to new clause 32 in my name. It is an amendment based on the proposed Charlie’s law. I thank my dear friend and colleague, my hon. Friend the Member for Enfield, Southgate (Bambos Charalambous), who has been working on the issue with the Charlie Gard Foundation and the tireless campaigning of Charlie’s parents.

I will be as brief as I can be. In short, my new clause seeks to do five things: first, to require the Secretary of State to put in place measures to improve early access to mediation services in hospitals where conflict is in prospect; secondly, to provide for access to appropriate clinical ethics committees, so that both doctors and parents are supported in making difficult decisions by impartial ethical experts; thirdly, to provide the means necessary to obtain second medical opinions swiftly and to ensure that, when requested, parents receive access to their child’s full medical data, so that the second opinions are fully informed; fourthly, to provide access to legal aid to ensure that families are not forced to employ costly legal representation or to rely on outside interest groups to fund representation in court; and, finally, to create a new legal test of whether an alternative credible medical treatment would cause a child a disproportionate risk or significant harm in deciding whether a parent is able to seek that treatment for their child.

In essence, the provisions set out in the new clause would mitigate conflicts at the earliest stage, ensure that the voices and opinions of parents are listened to, save hundreds and thousands of pounds for parents, doctors and the NHS in protracted legal battles, and ensure that a critically ill child is given the best care and support available at a crucial time in that child’s life. No parent wants to spend time in court or in battle against the NHS when their child is critically ill. There must be a better way to resolve conflict. I hope that the Minister looks seriously at my new clause 32 and at ways to incorporate it into future legislation.

[Mrs Maria Miller (Basingstoke) (Con)]

I speak to new clause 50, tabled in my name and that of the right hon. Member for Kingston upon Hull North (Dame Diana Johnson).

We badly need a wake-up call, because at the moment we are allowing the criminal law as currently drafted to drive a fundamental wedge between Northern Ireland and Great Britain, treating women in Northern Ireland in a completely different way from women in England and Wales when it comes to abortion. Two years ago, the Government changed the law governing abortion in Northern Ireland after a vote in this place, removing criminal sanctions on abortions in Northern Ireland, while leaving women in England and indeed Wales facing the possibility of the harshest criminal sanctions for abortion in the world, under laws passed more than 50 years before any women was even able to vote for the people representing them in this place.

New clause 50 would change that. It would decriminalise abortion and ensure that women in England and Wales are treated in the same way as women in Northern Ireland when it comes to abortion. Our values and our rights are what unite our four nations. To treat women differently in those nations weakens those ties. That needs to be rectified. The new clause does just that, and it would change nothing about abortion services, access to abortion or the time limits on abortion.

The women most likely to be affected and governed by the criminal law are some of the most vulnerable in our society: victims of domestic abuse, of honour-based violence and of rape, and those who are too poor or marginalised to travel to a clinic to seek help. If a desperate woman attempts to end her pregnancy, do we really want her to not seek medical help for fear of arrest and prosecution? New clause 50 simply removes women from being subject to the criminal law for seeking an abortion, and it is fully supported by the medical experts, the Royal College of Obstetricians and Gynaecologists and the Royal College of General Practitioners.

17:45

I would like the Government to set out, perhaps when the Minister responds to the debate, what plans they have going forward. I hope that the new clause passes today, and I will be pressing it to a vote. It is no longer sufficient to say that changes such as this can come from the Back Benches—that got us where we are today, dividing our country. The Secretary of State for Health and Social Care has the responsibility for abortion policy in this country and he needs to act so that every women in this United Kingdom has the same rights when it comes to abortion, and the same protections too.

[Peter Dowd (Bootle) (Lab)]

Yesterday, regrettably, the Minister did not respond to my exhortations on self-care in his summing up, although to be fair it did not take Sherlock Holmes to work out that he had his mind occupied with more contentious issues. New clause 13 gives him the opportunity to formalise the role of self-care by introducing a national self-care strategy that is more than just a footnote or passing reference in the NHS plan. The new clause would ensure that the Secretary of State for Health and Social Care publishes a national care strategy, to integrate self-care for minor ailments into the national health system. Surveys by the Proprietary Association of Great Britain have shown that people have been more amenable to seeking health advice that is outwith the GP practice, the walk-in centre or accident and emergency. Why not build upon that behavioural change? As shown during the pandemic, self-care is a crucial element of our healthcare system and it reduces the strain on GPs and A&E, so that those with more serious conditions can be treated with greater efficiency.

As the NHS seeks to recover from the most recent waves of the pandemic, there will be a unique opportunity to integrate self-care behaviours into the NHS and people’s lives. So by developing and implementing a national care strategy, the Government can ensure that a vision for self-care is realised whereby individuals understand and are willing to practise self-care, knowing how to take care of themselves and where to go when they are feeling unwell. The system will also be supportive of self-care, with pharmacy being much more embedded into the primary care pathway. What is there not to like in this new clause?

Finally, may I mention new clause 18, on the Secretary of State’s duty to report on access to NHS dentistry and to which I am a signatory. Dentistry is a vital component in people’s health. It is not just about teeth; it is about overall health. It can be the first port of call for many people whose symptoms may appear to be related to their teeth but may in fact be symptomatic of another disease, such as oral cancer. So let us make sure that dentistry gets the recognition it deserve—

[Duncan Baker (North Norfolk) (Con)]

Will the hon. Gentleman give way?

[Peter Dowd]

I am afraid that I do not have time. Let the Secretary of State report on access to NHS dentistry and give it a seat at the table on integrated care boards and partnerships, along with other health professionals. In conclusion, these proposals are about a comprehensive national care strategy that will help both patients and the NHS, and giving dentistry the attention that it deserves. Those are the areas we need to focus our attention on. They need a bit of tender loving care.

[David Simmonds (Ruislip, Northwood and Pinner) (Con)]

I will be exceptionally brief, Madam Deputy Speaker. I wish to speak on amendments 103 to 105. It seems clear to me that when a House has made a decision to impose statutory obligations on local authorities and other local bodies, we need to ensure that they are effectively consulted, in order to bring their expertise and local insight to bear in improving the quality of services that are offered to our patients. I hope that Ministers will be taking that on board in their response tonight.

[Carla Lockhart (Upper Bann) (DUP)]

I wish to speak to new clauses 51 and 52, both of which stand in my name. New clause 51 relates to the practice of abortion based on sex selection, and it seeks to clarify that abortion on the grounds of the sex of the foetus alone is illegal. Hon. Members from across the House would doubtless agree that aborting a baby on the basis of their sex is immoral, yet the status of this in law remains unclear.

Unfortunately, there is growing evidence that this horrible practice is taking place in Great Britain today. A 2018 BBC investigation found that non-invasive prenatal tests were being used on a widespread basis to determine babies’ sex early in pregnancy. We know that women are being coerced into having abortions based on sex selection. This was confirmed by a 2015 report from the Department of Health that detailed the awful testimonies of women who had been forced into a sex-selective abortion. The problem has been made much worse by the use of abortions pills to be taken at home. Abusive partners who do not want a particular sex of child—usually a girl—can more easily force their partner into having an abortion via telemedicine. The new clause seeks clarification that this practice is illegal, so provides an opportunity for the Government to do more to help women who are pressured into having an abortion on the basis of sex.

I wish briefly to touch on new clause 52—also tabled in my name—which would introduce an upper gestational limit on abortion on the grounds of disability that is equal to the upper limit on most other abortions. It would correct the current deeply discriminatory situation that permits abortion up to birth if

“there is a substantial risk that if the child were born it would suffer from such physical or mental abnormalities as to be seriously handicapped.”

That has been interpreted as permitting abortions up to birth following the diagnosis of either a cleft lip, a cleft palate or a club foot. This is inconsistent with disability discrimination legislation, because it allows for abortion on the grounds of disability more widely than most abortions are allowed.

[Jim Shannon]

Does my hon. Friend share my concerns that a large number of people throughout the whole United Kingdom object to this? We have had hundreds and hundreds of emails from my constituents about this issue. I commend my hon. Friend and the hon. Member for Congleton (Fiona Bruce) and totally oppose new clause 50—

[Madam Deputy Speaker (Dame Rosie Winterton)]

Order. That intervention is quite long enough.

[Carla Lockhart]

I will not push either of my new clauses to a vote. However, legal clarification on sex-selective abortion is urgently needed for the sake of women and the missing girls who are the victims of this abhorrent practice.

I commend the hon. Member for Congleton (Fiona Bruce). As evidence changes, so should the law, and 22 weeks’ gestation is the point of foetal viability. At heart, this is a debate about human rights, and the most basic human right is the right to life.

[Sir Mike Penning (Hemel Hempstead) (Con)]

I support new clause 19, which I signed, and will wait to see what the Minister says about it.

I want to take issue with the shadow Minister, the hon. Member for Ellesmere Port and Neston (Justin Madders), who turned around and said to Ministers, “Be careful what you wish for.” Our constituents send us here to represent how their taxation is spent in the NHS. When trusts are refusing to build new hospitals in our constituencies when they have the money to do so, and they want to refurbish hospitals and ignore public opinion and their local MPs, that is where the system goes wrong. I am not saying we should go all the way back to the old system, but there should be accountability in trusts when they do not do what our constituents would expect from them. My constituents would expect me to stand up and say this, because we want a new hospital on a greenfield site to look after the people of west Hertfordshire and our trust is refusing. If the shadow Minister ever becomes a Minister, I hope he has those powers.

[Edward Argar]

This group of amendments has clearly been popular and it is a shame that more right hon. and hon. Members did not get to speak. My remarks will be relatively brief.

On the contributions by my hon. Friend the Member for Congleton (Fiona Bruce), my right hon. Friends the Members for Gainsborough (Sir Edward Leigh) and for Basingstoke (Mrs Miller) and the hon. Member for Upper Bann (Carla Lockhart), those are deeply emotive and important issues. I entirely respect the strength and sincerity of genuinely held feelings on both sides of the debate. It is important that such matters are aired in the House, but they quite rightly remain a matter of conscience for individual Members, so I shall say no more than that it is important that everyone recognises the genuine views on both sides of the debate.

I am grateful to my hon. Friend the Member for Basildon and Billericay (Mr Baron) for tabling his new clause 19 and am happy to say that the Government are content to accept it. I know that my hon. Friend’s first concern is the quality of cancer services in this country and the welfare of the patients that they serve. I am pleased that he is keen for us, in accepting the new clause, to explore ahead of the Lords stages of the Bill whether it may give rise to any unintended consequences, with a view to supporting any changes that might need to be made. I look forward to working with him on that in the coming weeks before the Lords stages.

[Mr Baron]

I thank the Minister and the Government for listening and for accepting the new clause in its entirety. It is a progressive step. I and the whole group behind the new clause look forward to working with him. If nuanced changes were required, then, by all means, we would consider them.

[Edward Argar]

I am grateful to my hon. Friend for his intervention.

Let me turn briefly to amendments 93 to 98 in the names of my hon. Friend the Member for Broxbourne (Sir Charles Walker) and my right hon. Friend the Member for Maidenhead (Mrs May). I can reassure all right hon. and hon. Members that the Government remain committed to supporting everyone’s mental health and wellbeing. I pay tribute to my right hon. Friend for the work that she did in advancing this agenda when she was Prime Minister.

Secondly, let me clarify that the current references in the Bill to illness and health cover mental and physical health and, therefore, the view taken was that it was not necessary to make that explicit.

[Dr Dan Poulter (Central Suffolk and North Ipswich) (Con)]

Will the Minister give way?

[Edward Argar]

I fear that I do not have time to cover the other amendments in the four minutes that I have left.

Although I appreciate that my right hon. Friend the Member for Maidenhead and my hon. Friend the Member for Broxbourne will continue to press this matter, may I offer them a meeting with me and the Mental Health Minister to discuss further what they are proposing in advance of the Lords stages? I cannot make any promises or say anything beyond that, but I will meet them to further discuss the sentiments that sit behind their amendments.

Let me turn to my hon. Friend the Member for Aberconwy (Robin Millar), who made his points powerfully and eloquently, as he always does. As a Government of the whole United Kingdom, we have a duty of care to all citizens in the UK, which is why I welcome the clauses already in this legislation that will bring benefit to residents across the UK.

[Bob Seely (Isle of Wight) (Con)]

Will the Minister take my intervention?

[Edward Argar]

If my hon. Friend can do it in 10 seconds.

[Bob Seely]

Please, Minister, do not forget the unavoidably small hospitals, of which there are 12 in isolated communities.

[Edward Argar]

My hon. Friend has made his point. He has made it to me before. I will not forget either him or unavoidably small hospitals, particularly in the Isle of Wight.

On the point made by my hon. Friend the Member for Aberconwy, we do recognise the importance of making sure that health and care data can be shared safely and effectively across the UK to support individual care and improve outcomes for people across the UK.

[Peter Aldous (Waveney) (Con)]

Will my hon. Friend give way?

[Edward Argar]

I am afraid that I cannot give way, because I literally have two minutes. Forgive me, but if my hon. Friend catches me afterwards, I will happily speak to him.

We are already committed to working with officials across the devolved Administrations, noting the devolved nature of health and care policy, but my hon. Friend the Member for Aberconwy is right and makes a very powerful case for data interoperability and clear data standards. I am happy to speak with him further on this issue if he feels that that would be helpful.

I ask the hon. Member for Bootle (Peter Dowd) to forgive me for yesterday. I heard what he said about self-care and I will continue to look carefully at that. I did not ignore him.

I fear that, in the time that we have, there is little more that I can say.

[Peter Aldous]

Will my hon. Friend give way on that point?

[Edward Argar]

Okay, my hon. Friend has 10 seconds.

[Peter Aldous]

The No. 1 issue in my inbox is access to NHS dentistry. New clause 18 provides a framework for addressing that. May I urge the Minister and the Government to consider accepting it?

[Edward Argar]

While we cannot accept that new clause as drafted today, I or the Minister for Dentistry will meet my hon. Friend, if that is helpful, to discuss in more detail the concerns sitting behind his intervention.

Question put and agreed to.

New clause 62 accordingly read a Second time, and added to the Bill.

17:58

Proceedings interrupted (Programme Order, 22 November).

The Deputy Speaker put forthwith the Questions necessary for the disposal of the business to be concluded at that time (Standing Order No. 83E).

New Clause 19

Inclusion in the NHS mandate of cancer outcome targets

“(1) Section 13A of the National Health Service Act 2006 (Mandate) is amended in accordance with subsection (2).

(2) After subsection (2), insert the following new subsection—

‘(2A) The objectives that the Secretary of State considers NHS England should seek to achieve which are specified in subsection (2)(a) must include objectives for cancer treatment defined by outcomes for patients with cancer, and those objectives are to be treated by NHS England as having priority over any other objectives relating to cancer treatment.’” —(Mr Baron.)

This new clause would require the Secretary of State to set objectives for the NHS on cancer treatment which are defined by outcomes (such as one-year or five-year survival rates), and would give those objectives priority over any other objectives relating to cancer treatment (such as waiting times).

Brought up, and added to the Bill.

Clause 33

Transfer schemes under section 32: taxation

Amendment made: 83, page 42, line 4, after “capital gains tax,” insert “value added tax,”.—(Edward Argar.)

This amendment enables regulations under clause 33(1) to vary the way VAT would have effect in relation to transfer schemes under clause 32.

Clause 37

Power of direction: investigation functions

Amendment made: 84, page 46, line 30, at end insert “value added tax,”.—(Edward Argar.)

This amendment enables regulations under new section 7E(1) of the National Health Service Act 2006 to vary the way VAT would have effect in relation to transfer schemes under new section 7D of the National Health Service Act 2006.

Clause 39

Reconfiguration of services: intervention powers

Amendment proposed: 70, page 48, line 34, leave out clause 39.—(Justin Madders.)

Question put, That the amendment be made.

18:00

Division 120

Ayes: 191

---

Labour: 177
Liberal Democrat: 9
Independent: 2
Social Democratic & Labour Party: 1
Alliance: 1
Green Party: 1

Noes: 307

---

Conservative: 300
Democratic Unionist Party: 4
Independent: 1

Clause 76

Pharmaceutical services: remuneration in respect of vaccines etc

Amendment made: 115, page 67, line 1, leave out clause 76.—(Edward Argar.)

This amendment leaves out clause 76 so that the amendments made by it, together with corresponding amendments for Wales, can be set out in one place (see NC62).

Clause 87

Medicine information systems

Amendments made: 116, page 80, line 9, leave out from beginning to end of line 11 and insert—

“(a) the safety of human medicines, including the safety of clinical decisions relating to human medicines;

(b) the quality and efficacy of human medicines.”

This amendment narrows the purposes for which medicine information systems regulations can be made, so that they can make provision for purposes relating to clinical decisions only where there is a connection with the safety of such decisions.

Amendment 117, page 81, line 23, at end insert “, and

(b) in the case of a power exercisable in relation to Wales or Scotland, require the Secretary of State—

(i) where a proposed direction relates to Wales, to consult the Welsh Ministers before giving it, and

(ii) where a proposed direction relates to Scotland, to consult the Scottish Ministers before giving it.”

This amendment requires the Secretary of State to consult the Welsh Ministers or the Scottish Ministers where medicine information systems directions are relevant to Wales or Scotland.

Amendment 118, page 81, line 23, at end insert—

“(7A) Where regulations under subsection (1) include provision by virtue of subsection (4)(a) which requires, or enables the Information Centre to require, the provision of individual health information held for the purposes of the health service established under section 1 of the National Health Service (Scotland) Act 1978, the regulations must provide for the information to be collected by the Scottish Ministers, or a person designated by them, on behalf of the Information Centre, subject to specified exceptions.

(7B) Regulations by virtue of subsection (7A) may confer powers or duties (including discretions) on the Scottish Ministers, a designated person or the Information Centre.

(7C) Where regulations under subsection (1) include provision by virtue of subsection (4)(a) which requires, or enables the Information Centre to require, the provision of individual health information held for the purposes of the health service in Wales, the regulations must provide for the information to be collected by the Welsh Ministers, or a person designated by them, on behalf of the Information Centre, subject to specified exceptions.

(7D) Regulations by virtue of subsection (7C) may confer powers or duties (including discretions) on the Welsh Ministers, a designated person or the Information Centre.”

This amendment requires medicine information systems regulations to make provision for individual health information from Scotland and Wales to be collected by devolved authorities on behalf of the Information Centre, subject to exceptions in the regulations.

Amendment 119, page 81, line 33, at end insert—

“‘health service’, in relation to Wales, has the meaning given by section 206(1) of the National Health Service (Wales) Act 2006;”.

This amendment defines “health service” for the purposes of the reference to the health service in Wales in Amendment 118.

Amendment 120, page 81, line 35, at end insert—

“‘individual health information’ means information (however recorded) which relates to—

(a) the physical or mental health or condition of an individual,

(b) the diagnosis of an individual’s condition, or

(c) an individual’s care or treatment,

or is (to any extent) derived directly or indirectly from information relating to any of those matters;”.

This amendment defines “individual health information” for the purposes of Amendment 118.

Amendment 121, page 82, line 31, after “(consultation)” insert—

“(a) after subsection (1) insert—

‘(1A) In relation to proposed regulations under section 7A(1), the Secretary of State must—

(a) where the regulations relate to Wales, specifically consult the Welsh Ministers, and

(b) where the regulations relate to Scotland, specifically consult the Scottish Ministers.’;”.—(Edward Argar.)

This amendment requires the Secretary of State to consult the Welsh Ministers or the Scottish Ministers where medicine information systems regulations are relevant to Wales or Scotland.

Clause 93

Transfer schemes: taxation

Amendment made: 85, page 87, line 45, after “capital gains tax,” insert “value added tax,”.—(Edward Argar.)

This amendment enables regulations under clause 93(1) to vary the way VAT would have effect in relation to transfer schemes under clause 92.

Clause 122

International healthcare arrangements

Amendments made: 122, page 104, line 25, leave out “public authority” and insert

“relevant public authority or a Scottish or Welsh health board”.

This amendment paves the way for the changes made by Amendment 124.

Amendment 123, page 104, line 26, leave out “public authority” and insert

“relevant public authority or a Scottish or Welsh health board”.

This amendment paves the way for the changes made by Amendment 124.

Amendment 124, page 104, line 30, leave out subsection (7) and insert—

“(7) In this section “relevant public authority” means a person who exercises functions of a public nature other than—

(a) the Scottish Ministers,

(b) a Scottish public authority with mixed functions or no reserved functions (within the meaning of the Scotland Act 1998),

(c) the Welsh Ministers,

(d) a devolved Welsh authority as defined by section 157A of the Government of Wales Act 2006,

(e) a Northern Ireland department, or

(f) any other person whose functions—

(i) are exercisable only or mainly in or as regards Northern Ireland, and

(ii) relate only or mainly to transferred matters within the meaning of the Northern Ireland Act 1998.

(8) In this section—

‘Scottish health board’ means a Health Board established under section 2(1)(a) of the National Health Service (Scotland) Act 1978;

‘Welsh health board’ means a Local Health Board established under section 11 of the National Health Service (Wales) Act 2006.”

The effect of this amendment, together with Amendments 122 and 123, is to prevent the regulations about healthcare agreements from conferring functions etc on devolved public authorities apart from those specified in new subsection (8).

Amendment 125, page 104, line 32, at end insert—

“2A Healthcare agreements and payments: powers of devolved authorities

(1) A devolved authority may by regulations make provision for the purpose of giving effect to a healthcare agreement (including provision about payments).

(2) No provision may be made by a devolved authority under subsection (1) unless the provision is within the devolved competence of that devolved authority (and any applicable consent requirement under section 2B has been complied with).

(3) In this section “devolved authority” means the Scottish Ministers, the Welsh Ministers or a Northern Ireland department.

(4) For the purposes of this section—

(a) provision is within the devolved competence of the Scottish Ministers if it would be within the legislative competence of the Scottish Parliament if it were contained in an Act of that Parliament;

(b) provision is within the devolved competence of the Welsh Ministers if it would be within the legislative competence of Senedd Cymru if it were contained in an Act of Senedd Cymru (including any provision that could only be made with the consent of a Minister of the Crown);

(c) provision is within the devolved competence of a Northern Ireland department if it would be within the legislative competence of the Northern Ireland Assembly if it were contained in an Act of that Assembly.

(5) Regulations under this section may include provision about administrative arrangements (including provision about evidential requirements).

(6) Regulations under this section may—

(a) confer functions on a public authority (including discretions);

(b) provide for the delegation of functions to a public authority.

(7) A devolved authority may give directions to a person about the exercise of any functions exercisable by the person under regulations made by that devolved authority by virtue of subsection (6) (and may vary or revoke any such directions).

(8) In this section “public authority” means a person who exercises functions of a public nature.

2B Regulations under section 2A: consent requirements

(1) The consent of a Minister of the Crown is required before any provision is made by the Welsh Ministers in regulations under section 2A(1) so far as that provision, if contained in an Act of Senedd Cymru, would require the consent of a Minister of the Crown.

(2) The consent of the Secretary of State is required before any provision is made by a Northern Ireland department in regulations under section 2A(1) so far as that provision, if contained in an Act of the Northern Ireland Assembly, would require the consent of the Secretary of State.”

This amendment confers power on the devolved authorities to make regulations, within devolved competence, for the purpose of giving effect to international healthcare agreements. This power is concurrent with the power already conferred on the Secretary of State by clause 120.

Amendment 126, page 104, line 39, at end insert—

“(5A) In section 7 (regulations and directions)—

(a) in subsection (1), after ‘A power’ insert ‘of the Secretary of State or Welsh Ministers’;

(b) after subsection (1) insert—

‘(1A) A power of a Northern Ireland department to make regulations under section 2A is exercisable by statutory rule for the purposes of the Statutory Rules (Northern Ireland) Order 1979 (S.I. 1979/1573 (N.I. 12)).’;

(c) in subsection (5), for ‘this Act’ substitute ‘section 2’;

(d) after subsection (5) insert—

‘(5A) Regulations made by the Scottish Ministers under section 2A are subject to the negative procedure (see Part 2 of the Interpretation and Legislative Reform (Scotland) Act 2010 (asp 10)).

(5B) Regulations made by a Northern Ireland department under section 2A are subject to negative resolution within the meaning given by section 41(6) of the Interpretation Act (Northern Ireland) 1954.

(5C) A statutory instrument which contains regulations made by the Welsh Ministers under section 2A is subject to annulment in pursuance of a resolution of Senedd Cymru.’”—(Edward Argar.)

This amendment provides for regulations made by a devolved authority under new section 2A (inserted by Amendment 125) to be subject to the negative resolution procedure in the relevant devolved legislature.

Clause 128

Medical examiners

Amendment made: 128, page 111, line 25, leave out from beginning to the end of line 33 on page 112 and insert—

“(1) After section 18 of the Coroners and Justice Act 2009 insert—

‘18A Medical examiners: England

(1) An English NHS body may appoint persons as medical examiners to discharge in England the functions conferred on medical examiners by or under this Chapter.

(2) The Secretary of State must take such steps as the Secretary of State considers appropriate for the purpose of ensuring—

(a) that enough medical examiners are appointed under subsection (1) to enable those functions to be discharged in England,

(b) that the funds and other resources that are made available to such medical examiners are enough to enable those functions to be discharged in England, and

(c) that the performance of such medical examiners is monitored by reference to any standards or levels of performance that they are expected to attain.

(3) For the purposes of discharging the duty in subsection (2), the Secretary of State may give a direction to an English NHS body—

(a) requiring the body to appoint or arrange for the appointment of one or more medical examiners,

(b) about the funds or other resources to be made available to a medical examiner employed by an English NHS body,

(c) about the steps to be taken by the body to monitor the performance of such a medical examiner, or

(d) about the steps to be taken by the body to monitor the performance of functions by an English NHS body in relation to such a medical examiner.

(4) In this section “English NHS body” means—

(a) NHS England,

(b) an integrated care board established under section 14Z25 of the National Health Service Act 2006,

(c) a National Health Service trust established under section 25 of that Act,

(d) a Special Health Authority established under section 28 of that Act, or

(e) an NHS foundation trust within the meaning of section 30 of that Act.

18B Medical examiners: Wales

(1) A Welsh NHS body may appoint persons as medical examiners to discharge in Wales the functions conferred on medical examiners by or under this Chapter.

(2) The Welsh Ministers must take such steps as the Welsh Ministers consider appropriate for the purpose of ensuring—

(a) that enough medical examiners are appointed under subsection (1) to enable those functions to be discharged in Wales,

(b) that the funds and other resources that are made available to such medical examiners are enough to enable those functions to be discharged in Wales, and

(c) that the performance of such medical examiners is monitored by reference to any standards or levels of performance that they are expected to attain.

(3) In this section “Welsh NHS body” means—

(a) a Local Health Board,

(b) a National Health Service trust established under section 18 of the National Health Service (Wales) Act 2006, or

(c) a Special Health Authority established under section 22 of that Act.’

(2) In section 19 of that Act (medical examiners)—

(a) in the heading, after “examiners” insert “: supplementary”;

(b) omit subsections (1) and (2);

(c) in subsection (5)—

(i) after “Nothing in” insert “section 18A or 18B or”;

(ii) for “a local authority or a Local Health Board” substitute “an English NHS body (as defined by section 18A) or a Welsh NHS body (as defined by section 18B)”.

(3) In section 20 of that Act (medical certificate of cause of death), in subsection (5), for “a local authority or Local Health Board” substitute “an English NHS body (as defined by section 18A) or a Welsh NHS body (as defined by section 18B)”.

(4) In section 48 of that Act (interpretation: general), in subsection (1), in the definition of “medical examiner”, for “section 19” substitute “section 18A or 18B”.

(5) In section 41 of the Births and Deaths Registration Act 1953 (interpretation), in subsection (1), in the definition of “medical examiner”, for “means a person appointed under section 19” substitute “has the meaning given by section 48(1)”.”—(Edward Argar.)

This amendment replaces the duty on Local Health Boards in Wales to appoint medical examiners with a power for a “Welsh NHS body” (as defined) to do so. The changes that the amendment makes in relation to England replicate the effect of clause 128 but involve some restructuring.

Clause 135

Regulations

Amendment proposed: 82, page 117, line 14, at end insert—

“(2A) Regulations may only be made under this Act with the consent of the—

(a) Scottish Ministers insofar as they make provision for any matter which falls within the legislative competence of the Scottish Parliament,

(b) Welsh Ministers insofar as they make provision for any matter which falls within the legislative competence of Senedd Cymru, and

(c) Northern Ireland Ministers insofar as they make provision for any matter which falls within the legislative competence of the Northern Ireland Assembly.”—(Dr Philippa Whitford.)

This amendment would require the Secretary of State for Health and Social Care to obtain the consent of the relevant devolved government before powers to make regulations under the Act in an area falling within the legislative competence of a devolved institution, are exercised.

Question put, That the amendment be made.

18:16

Division 121

Ayes: 239

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Labour: 182
Scottish National Party: 39
Liberal Democrat: 9
Independent: 4
Plaid Cymru: 2
Social Democratic & Labour Party: 1
Alliance: 1
Green Party: 1
Alba Party: 1

Noes: 311

---

Conservative: 304
Democratic Unionist Party: 4
Independent: 1

Clause 138

Commencement

Amendments made: 129, page 118, line 4, at end insert—

“(1A) Section (Pharmaceutical services: remuneration in respect of vaccines etc)(2) comes into force on such day as the Welsh Ministers may by regulations appoint.”

This amendment gives the Welsh Ministers a regulation-making power to bring into force subsection (2) of NC62.

Amendment 130, page 118, line 7, after “(1)” insert “, (1A)”.

This is consequential on Amendment 129.

Amendment 131, page 118, line 9, after “appointed” insert

“under subsection (1A) or (3)”.

This is consequential on Amendment 129.

Amendment 132, page 118, line 11, at end insert—

“(5A) The Welsh Ministers may by regulations make transitional or saving provision in connection with the coming into force of section (Pharmaceutical services: remuneration in respect of vaccines etc)(2).”

This amendment confers power on the Welsh Minsters to make transitional provision in connection with a provision that they have power to bring into force.

Amendment 133, page 118, line 12, after “(5)” insert “or (5A)”.—(Edward Argar.)

This is consequential on Amendment 132.

Third Reading

18:29

[The Secretary of State for Health and Social Care (Sajid Javid)]

I beg to move, That the Bill be now read the Third time.

For years, colleagues in health and social care have worked hard and as one to deliver for the benefit of their patients, but their ambition has not always been matched by the structures they have had to work with. This Bill provides the framework in legislation to help them to achieve just that.

We are not only recovering from the pandemic but learning from it, and the principles that underpin the Bill—embedding integration, cutting bureaucracy, boosting accountability—have never been more important. I am hugely encouraged by the support that the Bill has received from so many quarters, from the NHS Confederation to the King’s Fund, the Health Committee and even those on the Opposition Front Bench.

[Margaret Greenwood]

rose—

[Sajid Javid]

Talking of the Opposition, I give way to the hon. Lady.

[Margaret Greenwood]

Will the Secretary of State comment on the discharge-to-assess proposals? I am concerned, because his Department told me that a report about how the process goes was meant to be published in autumn. His Department told me back in May that 4 million people have been discharged under discharge to assess—that is, having their care needs assessed after they have left hospital rather than before—but the same Department did not know what the clinical outcomes were and it did not know how many people had been readmitted to hospital within 30 days. I would have thought that it was essential that MPs were provided with that information and with a full outline of the clinical outcomes of that policy. Will he comment on that and tell us what he can do about it, so that we really understand what is happening?

[Sajid Javid]

I listened carefully to the hon. Lady and I will look into the specifics of what she said, but it is clear—I hope she agrees—that if people are clinically ready to be discharged, it is better that they are discharged rather than staying in hospital a moment longer.

I take this opportunity to thank everyone who has helped us to shape this important legislation, including hon. Members across the House and colleagues in Wales, Scotland and Northern Ireland, whose engagement will help us ensure that the Bill delivers for the four nations of the United Kingdom. I also thank members of the Public Bill Committee for their constructive scrutiny. The Bill is a lot better for it.

Let me draw the House’s attention to some of the changes that we have considered since Second Reading.

[Jim Shannon]

The Secretary of State referred to how the Bill delivers for the four regions of the United Kingdom. I just put it on the record that 60% of people in Northern Ireland are opposed to abortion on demand, so when it comes to representing the views of those in Northern Ireland—elected representatives and the local people—I am afraid that Westminster and the House do not relate to the people of Northern Ireland on abortion.

[Sajid Javid]

I heard what the hon. Gentleman said. He will know that there are strong feelings on the issue of abortion across the House, on all sides of that issue. If legislation does ever come to the House, it is important that it is always a matter of conscience, and that is how MPs are expected to receive such legislation.

[John Redwood (Wokingham) (Con)]

Will the Secretary of State confirm that, when carrying through this rather extensive national health service reorganisation, value for money and keeping the costs of reorganisation down will be at the forefront of his mind?

[Sajid Javid]

Yes, absolutely, I can confirm that. My right hon. Friend is absolutely right to stress the importance of that. The NHS will be spending the best part of £150 billion a year, and it is vital that the best value is achieved with every penny that is spent.

[Sir Charles Walker (Broxbourne) (Con)]

May I thank my right hon. Friend and his ministerial team for taking into account my concerns about parity of esteem between mental health and physical health? Although I was unsuccessful in amending the Bill at this stage, I thank him for being willing to look at that, or to have colleagues look at it in the other place. I really do appreciate that level of engagement.

[Sajid Javid]

I am happy to give my hon. Friend the commitment that we will look at that. I think everyone in the House agrees that the principle is vital, and I am sure it is supported across the House.

Let me briefly highlight the changes that we have made. First, we have heard the desire of the House to rate and strengthen the safety and performance of the integrated care systems. Working with members of the Health Committee, we have introduced an amendment that gives the Care Quality Commission a role in reviewing ICSs.

Secondly, we have heard concerns about the independence of integrated care boards. While it has never been our intention that anyone with significant involvement or interests in private healthcare should be on an ICB, following a productive meeting with the hon. Members for Nottingham North (Alex Norris) and for Ellesmere Port and Neston (Justin Madders) we tabled an amendment that ensures we write that principle into the constitution of ICBs.

Thirdly, we heard concerns from hon. Members about the potential impact of our proposed restrictions on advertising less healthy food and drink. We must, of course, do that in a pragmatic way, so we have introduced amendments to ensure we do not unintentionally impact UK businesses when they advertise to overseas audiences. Further, we will consult with stakeholders on any further changes to the nutrient profiling model.

Fourthly, and very importantly, the Bill now reflects our commitment to end the crisis in social care and the lottery of how we all pay for it. It is not right and not fair that the heaviest burdens often fall on those who are least able to bear it, so we are introducing a cap on the costs of care so that no one will have to pay more than £86,000 over their lifetime. That cap that will be there for everyone, regardless of any conditions they have, how old they are, how much they earn, or where they live. We will introduce a far more generous testing system, so that everyone will be better off under the new system.

We move a Health and Care Bill that is stronger than before, with those three underpinning principles reinforced: embedding integration, cutting bureaucracy and boosting accountability. On integration, it is not about simply telling the NHS, local authorities and others to work together; it is about helping them to do it by doing things like merging NHS England and NHS Improvement into a single statutory body and establishing integrated care boards to deliver as one.

[Dr Poulter]

I declare an interest as a practising NHS doctor. On integration, my slight disappointment with the Bill is that while it pulls people together in joined-up commissioning boards, there is no commitment to put the money into the same place. If we want to drive joined-up commissioning, we need to put the money into the same place. Will the Secretary of State consider that and how true integration can be achieved as the Bill goes to the House of Lords?

[Sajid Javid]

My hon. Friend makes a very important point and he speaks with deep experience. What I can tell him is that we will shortly be publishing an integration White Paper, which, given what he has just said, I am sure he will welcome.

[Dr Murrison]

I declare an interest similar to that of my hon. Friend the Member for Central Suffolk and North Ipswich (Dr Poulter). Does the Secretary of State agree that there is an opportunity with integrated care boards and panels to ensure the end of the awful spectacle of people at end of life and frail elderly people coming towards the end of their days being expected to live out those days in an acute hospital ward, when they should be looked after in more homely settings in the community? That has gone on for too long and consecutive pieces of legislation have failed to address it. We have an opportunity here, probably with the help of the other place, to sculpt the measure we are considering today to ensure that stops. It must stop now, so that our frail elderly can have a future that does not involve an end as grisly and as sad as so many are forced to endure.

[Sajid Javid]

I absolutely agree with my right hon. Friend, who also speaks with deep experience. I very much agree with what he has just shared with the House.

On bureaucracy, we are removing the rules and regulations that make sensible decision making harder. On accountability, our healthcare must be accountable to democratically elected Members of this House. We spend well over £140 billion pounds of taxpayers’ money on our healthcare system, so it is right that there is more accountability to this place.

In closing, the unprecedented challenges of the pandemic have only deepened our affection for everyone working in health and care. They have been the very best of us. It is on us in this place, and on everyone who can make a difference, to give them the best possible foundation to work together to meet the challenges of the future. The Bill does that and a lot, lot more.

[Several hon. Members rose—]

[Madam Deputy Speaker (Dame Rosie Winterton)]

Order. Before I call the shadow Secretary of State, I should say that I will probably introduce a three-minute time limit after the shadow Secretary of State and that I am unlikely to call anybody who intervened on the Secretary of State during his opening speech.

18:39

[Jonathan Ashworth (Leicester South) (Lab/Co-op)]

I start by thanking all those who served on the Bill team and the Clerks, the Library and all the staff of the House who supported them. I also thank the hon. Member for Wellingborough (Mr Bone), my hon. Friends the Members for Sunderland Central (Julie Elliott) and for Birmingham, Selly Oak (Steve McCabe) and the hon. Member for South East Cornwall (Mrs Murray) who chaired the Committee deftly. I put on the record Labour’s thanks to the Minister for Health, the hon. Member for Charnwood (Edward Argar)—my constituency neighbour in Leicestershire—who both in Committee and over the past two days in the House has been courteous and patient in responding to the various amendments and in how he conducted himself across the Dispatch Box. We are grateful for that.

Equally, I thank my hon. Friends the Members for Nottingham North (Alex Norris) and for Ellesmere Port and Neston (Justin Madders) for working so hard on this Bill and making the case for our amendments. My hon. Friend the Member for Ellesmere Port and Neston had his birthday yesterday—there is no greater place to celebrate one’s birthday than at the Dispatch Box—and I am told that he may well be putting in an appearance at the Strangers’ Bar after tonight’s vote. I am sure that hon. Members from both sides of the House may want to join him in his celebrations.

Of course, Labour welcomed parts of this Bill. It did indeed scrape some of the worst remaining vestiges of the Lansley reorganisation off the boots of the NHS. The compulsory competitive tendering of contracts, which we warned against nearly 10 years ago, are finally put in the dustbin. Of course, it was this Secretary of State, as an enthusiastic and loyal Back Bencher, who spoke in those debates supporting that reorganisation, but we welcome the ending of section 75.

We also welcome some of the provisions around public health, particularly those on childhood obesity and advertising, but we wish the Bill had gone further on smoking cessation and alcohol. Madam Deputy Speaker, I know it is not the convention to praise Members on Third Reading as one does on Second Reading, but I praise the hon. Member for Bury South (Christian Wakeford)—the constituency in which I grew up and went to school—who spoke with great eloquence, emotion and very personally about the impact of alcohol addiction on his family. It has also had an impact on my own family, as some hon. Members know. Although the Secretary of State did not accept either the hon. Gentleman’s amendments or ours, perhaps he will be prepared to meet us on a cross-party basis to discuss how we can take that agenda forward.

In saying all that, however, we are not minded to support the Bill in the Lobby tonight. We remain unconvinced by the arguments put forward by the Minister for Health in the past 48 hours. We still believe that this is the wrong Bill at the wrong time. As the right hon. Member for Wokingham (John Redwood) said in his intervention on the Secretary of State, this is an extensive reorganisation of the national health service at a time when we are still in a pandemic and when NHS staff are exhausted and facing burnout. We should be prioritising the monumental waiting lists, the huge referrals for mental health treatment, the crisis in A&E, and the huge pressures on ambulance services and general practice. This Bill is not only a distraction, but it contains provisions that Labour thinks are deeply damaging.

Yesterday, the House focused on the care cap amendment. It represents a change to existing policy and differs from the position outlined in the “Build Back Better” document, under which the House was asked to endorse a national insurance rise. The change means that those with wealthier estates and more expensive houses will see a greater proportion of their assets protected. Somebody with a £1 million house will have 90% of that asset protected, but somebody with an £80,000 house in Barrow, Mansfield or Hartlepool will lose nearly everything. That cannot be fair.

The Secretary of State, who was working the phones yesterday, may have won the battle, but I dare say that there are further skirmishes ahead. I suspect that Members in the other place—certainly those on the Labour Benches —will return to the matter, and I hope that they send the Bill back to us so that we can look at it again.

There are other provisions in the Bill with which we are uncomfortable. We are not convinced about the prohibitions on the private sector’s role in sitting on integrated care boards; we do not think that the Government’s amendment is strong enough. We will return to that point at a future opportunity.

Although the Bill gets rid of the Lansley competitive tendering requirements, it still allows the Secretary of State to hand contracts out to the private sector without proper scrutiny. We have seen a £10 billion contract going to the private sector to use 8,000 beds. That money would have been better spent on elective treatment in the national health service.

In conclusion, the Opposition cannot support the Bill, so we will divide the House tonight. On the care issue, I know that the Secretary of State thinks that he got his policy through the House yesterday and that it is all over, but I am afraid that it most certainly is not.

18:44

[Matt Hancock]

I welcome the passage of the Bill and congratulate all those who have been involved in bringing it to this place and getting it to Third Reading: the Secretary of State; the Minister, who has worked on it for an awfully long time; and the official Bill team, who were the best team I ever worked with in government. I am not saying that just because they are sitting in the Box.

The Bill gives the NHS what it needs. Critically, it learns the lessons of the pandemic and embeds them in legislation by removing bureaucracy and silos. I can see that the Secretary of State is already acting on that to merge parts of the NHS so that they can work better together.

I want to make a specific point in response to a comment from the shadow Minister, the hon. Member for Ellesmere Port and Neston (Justin Madders), about accountability. Although the Bill rightly devolves decision making and discretion more locally to the new integrated care boards and panels, it also gives Ministers the right to make sure that the NHS is accountable to them; it removes the so-called independence. That is right, and it is surprising not to see Labour Members supporting it, because it was in the Labour party’s manifesto as well as the Conservative party’s.

When £150 billion of taxpayers’ money is at stake, imposing apparent independence is not just impractical, but wrong. The NHS should be accountable to Ministers so that they can be accountable to the House, which is accountable to taxpayers through the ballot box. That is right constitutionally, morally and practically, which is why it was in both major parties’ manifestos. It is how the NHS operates anyway in practice, but the Bill will remove some of the unnecessary friction in the senior relationships that resulted from the attempt at independence.

Of course clinical voices should always be listened to, but as we saw during the pandemic, we can listen to clinical voices and then make a decision that is held to account on a democratic basis. The Bill will therefore strengthen not just the running of the NHS, but how we constitutionally govern the huge amount of taxpayers’ money that is spent on it. For that reason alone, it is worth supporting the Bill.

18:48

[Peter Aldous]

I am grateful to you for giving me time to speak, Madam Deputy Speaker. I would have liked to speak on new clause 18 on Report, but that was not possible.

Access to NHS dentistry is a problem that has been brewing for a long time and has been exacerbated by covid. There are now parts of the country, particularly in rural and coastal areas, that have dental deserts. It is invariably children from poorer backgrounds and vulnerable adults who suffer the most. The crisis is acute in Suffolk and Norfolk, but is not confined to East Anglia. Sir Robert Francis, who chairs Healthwatch England, commented:

“Every part of the country is facing a dental care crisis, with NHS dentistry at risk of vanishing into the void.”

There are five issues that need to be tackled to address the problem. The Bill can provide the framework to ensure that that happens without delay or prevarication. First, funding must be increased. Secondly, it is vital for the new NHS dental contract, which has been being developed for more than a decade, to be rolled out next April. There are rumours that it will be kicked into the long grass, and I should be grateful for confirmation that that will not happen. Thirdly, we need to step up the recruitment and retention of dental professionals. Fourthly, it is important to highlight the role that water fluoridation can play in improving the oral health of future generations, and in that context clauses 132 and 133 are to be welcomed. Finally, there is a need for greater accountability, and for dentistry to have a voice on integrated care boards and partnerships.

People are currently pulling out their own teeth, while children are having whole-mouth replacements and early signs of cancer are going undetected. We need to act now to put in place an NHS dentistry system that is fit for the 21st century, instead of reversing into the 19th. My hon. Friend the Minister has advised that the Government will not accept new clause 18, and I should therefore be grateful if, without delay, my right hon. Friend the Secretary of State could ensure that his Department comes up with a clear plan for addressing a crisis that is affecting people throughout the country.

18:51

[Bob Seely]

Let me start by thanking my hon. Friend the Member for Waveney (Peter Aldous) for that superb speech. We have a huge problem with NHS dentistry on the Isle of Wight, and also with independent pharmacies. I have written to the Health Minister about that several times, and there is an ongoing conversation, for which I thank him very much.

In the short time that I have, I want to speak about fairness and equality. The Secretary of State spoke eloquently—as he always does—about equality between the four nations. I want to see equality between isolated and non-isolated communities as well, specifically in relation to unavoidably small hospitals. There are about a dozen in England and Wales, and for obvious reasons they tend to be in isolated areas. The most isolated of those hospitals is St Mary’s on the Isle of Wight, which has a 100% isolation factor because it is separated from everywhere else by sea. Such areas tend to have populations of less than 200,000.

Unavoidably small hospitals find it difficult to achieve the economies, and the economies of scale, that are possible elsewhere in the NHS, because they do not receive tariff payments. They have to provide baseline services at a certain cost, but they do it for many fewer people. It is therefore likely that fewer people will use the services of that particular surgeon or those particular nurses, and as a result they are under permanent pressure. On the Island, our additional costs are estimated, at 2019 prices, to be some £12 million a year. That covers acute services, ambulances—including helicopters, for us—and travel to other destinations, which may involve ferries.

The NHS long-term plan—pre covid, back in January 2019, almost a lifetime ago—set out a 10-year strategy, stating that it would develop a standard model for delivery for smaller hospitals. May I ask the Secretary of State and the Health Minister what has happened to that plan and to the community services formula, which we hoped would support unavoidably small hospitals?

I am, however, delighted that, thanks to the excellent work of Maggie Oldham, the superb chief executive of the Isle of Wight NHS Trust, St Mary’s Hospital has been taken out of special measures and is now good. I would welcome either of the Ministers if they came to see us on the Island, not only to congratulate Maggie but to understand the pressure that one of the 12 unavoidably small hospitals in the United Kingdom is under, so that they can work with me to provide a better funding model for it and the other 11.

18:54

[Jim Shannon]

It is a pleasure to be able to make some comments on Third Reading. The Secretary of State and the Minister will know my position on these matters. I should like to commend the hon. Member for Congleton (Fiona Bruce) and my hon. Friend the Member for Upper Bann (Carla Lockhart) for their dedication to these issues. Their passion in this House is matched by many in my constituency who, despite the fact that their view is constantly disregarded, still urge me in their hundreds—I received hundreds of emails yesterday and hundreds today—to do what I can to speak for life. That is what I do here today. I care about the life of the woman and I care about the life of the unborn child. I am starting from the position that both lives matter, and it is one on which I stand firm.

In this House, there is a large number of MPs who are opposed to abortion on demand and who have an opinion on that. They include those who represent Northern Ireland and other parts of the UK in this House. I want to reiterate my position on the last vote that took place in Northern Ireland. An opinion poll found that 60% of constituents were opposed to abortion on demand. I am sure that I am far from being alone in recognising the double standards that our medical guidelines currently endorse, fighting for a life at 22 weeks in one case and ending it at 22 weeks in another case.

There are those who advocate that choice comes above viability, but that view is not replicated even by the many who support abortion in principle. It is a pity that clause 31 and clauses 51 and 52 were not brought to the House today. We expressed our concern some time ago that this House making the decision for Northern Ireland over and above the views of its elected representatives, its constituents and a majority of people across Northern Ireland would have an impact on the abortion rules in this House. We would have had an example of that today if new clause 50 had been approved, which it was not. It would have removed vital safeguards for women and girls seeking abortions up to 28 weeks of pregnancy, such as the requirement for two doctors, or even any medical professional, to be involved. The law change that was agreed in this House for Northern Ireland could have the shocking impact of placing at risk women and girls in abusive situations. It could legalise abortions that women and girls would carry out on themselves up to 28 weeks of pregnancy, for any reason.

[Mrs Miller]

Will the hon. Gentleman give way?

[Jim Shannon]

I have almost finished my speech.

The Health and Care Bill is an opportunity to improve health and wellbeing, and it should not be usurped to remove essential safeguards such as contact with a medical professional, counselling and referral to appropriate care pathways. This House must be mindful, whatever decisions it takes here, that those decisions will have an impact on Northern Ireland. We in Northern Ireland are very concerned, and there is great disappointment at where we are.

Question put, That the Bill be now read the Third time.

18:57

Division 122

Ayes: 294

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Conservative: 290
Independent: 1

Noes: 244

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Labour: 178
Scottish National Party: 41
Liberal Democrat: 9
Independent: 4
Democratic Unionist Party: 4
Conservative: 3
Plaid Cymru: 2
Social Democratic & Labour Party: 1
Alliance: 1
Green Party: 1
Alba Party: 1

Bill accordingly read the Third time and passed.

Business without Debate

Tuesday 23rd November 2021 Commons Chamber

Delegated Legislation

[Madam Deputy Speaker (Dame Rosie Winterton)]

With the leave of the House, we shall take motions 3, 4 and 5 together.

Motion made, and Question put forthwith (Standing Order No. 118(6)),

Food

That the draft Eggs (England) Regulations 2021, which were laid before this House on 19 October, be approved.

Financial Services

That the Money Laundering and Terrorist Financing (Amendment) (No. 3) (High-Risk Countries) Regulations 2021 (SI, 2021, No. 1218), dated 1 November, a copy of which was laid before this House on 1 November, be approved.

Local Government

That the draft Local Audit (Appointing Person) (Amendment) Regulations 2021, which were laid before this House on 21 October, be approved.—(Andrea Jenkyns.)

Question agreed to.

Pine Trees Development

Tuesday 23rd November 2021 Commons Chamber

19:10

[Mr Steve Baker (Wycombe) (Con)]

The residents of Pine Trees in High Wycombe bought their homes on the basis that the council would adopt open spaces—indeed, they have supplied evidence that the council’s original intention was that a planning obligation should secure just that—but it has not happened. I am therefore pleased to have received a petition signed by three but accompanying a much longer petition signed by 524 residents.

The petition states:

The petitioners therefore request that the House of Commons urge the Government to legislate to ensure in future if planning is granted on particular conditions, and these are not carried through by a council, then that council is responsible for remediation and to ask the relevant Member to seek to broker a solution.

I will of course seek to broker a solution to this problem.

Following is the full text of the petition:

[The petition of residents of the constituency of Wycombe,

Declares that planning permission for Pine Trees was granted by the local authority (now Buckinghamshire Council) on the condition that the developer, Taylor Wimpey, paid a commuted sum to support the upkeep of the open spaces and play areas known as Bobcat Park, allowing for the local authority to adopt the park; notes that the local authority failed to include any mention of said commuted sum in the Section 106 planning conditions for the development; notes that the developer sold, and continued to sell, homes at Pine Trees on the basis that Bobcat Park would be adopted by the local authority and that residents would not need to pay anything towards upkeep of the park; notes that in connection with a separate planning condition, the developer has paid to the local authority more than £2 million for the creation of a bus link scheme which has since been abandoned, leaving funds available to support adoption of the park; and notes that in the absence of a commuted sum, the local authority has indicated its opposition to adopting the park, leaving the costs of maintenance to be borne by the residents at the development, conflicting directly with what they had been told.

The petitioners therefore request that the House of Commons urge the Government to legislate to ensure in future if planning is granted on particular conditions, and these are not carried through by a council, then that council is responsible for remediation and to ask the relevant Member to seek to broker a solution.

And the petitioners remain, etc.]

[P002698]

Ickford: Flood Risk

Tuesday 23rd November 2021 Commons Chamber

Motion made, and Question proposed, That this House do now adjourn.—(Andrea Jenkyns.)

19:11

[Greg Smith (Buckingham) (Con)]

I wish to make the case for a complete and total overhaul of the way in which flood risk is assessed and taken seriously in the planning process, using the circumstances of the village of Ickford in my constituency as a case study to highlight the horrendous deficiencies in the system as it stands.

I need not remind the House that the devastating effects of flooding can be seen year on year. The Environment Agency’s October 2021 report projects that double the number of properties in England will be on floodplains by 2065. New build housing increases the risk, further exacerbating the issue. Four million people and £200 billion-worth of assets are at risk of flooding from rivers or the sea. The effect of flooding, not only economically but traumatically, on individuals, families and businesses is both terrible and long-lasting. Flooding goes right to the heart of our communities. It is a risk that must be taken seriously and that I know the Government want to take it seriously.

Acting ahead of a flood event is the most effective way to reduce the risk of flood-water damage. Typical improvements include low-cost resilience measures such as upgrades to plaster and flooring, self-closing air bricks, the sealing of brickwork and the installation of flood doors—all proven to reduce damage from flooding. Fundamentally, though, we must ask ourselves how on earth new build homes are granted planning permission in areas where literally everyone—other than, it seems the authorities—sees that it is obvious they will flood or exacerbate the risk of flooding to existing homes and businesses.

We need—in fact, communities across my constituency demand—much greater consideration of flood risk in the planning process. That is principally what I am arguing for: amendments to planning laws that will force the system properly to undertake flood risks, and changes that mean decisions on development are taken as locally as possible and that make flood risk a central principle in any new planning legislation.

We need to ensure that developers and the construction industry do not add to the problem and that local authorities do not see building on flood-prone areas as an easy way to meet housing quotas. This need was made urgently apparent to me as a result of events in the village of Ickford in my constituency.

In August 2020, a development of 66 properties in the village of Ickford, now being built out by Deanfield Homes, but started by CALA Homes, was given permission by the planning inspector. It was an absolutely ridiculous decision given that part of the rationale was a totally bogus and irrational claim that flooding would not be an issue. Residents of Ickford were told that flooding would be a once-in-100-year occurrence, which was an offensive claim given the number of times that the village has flooded in the past 18 months alone. Indeed, when I visited the site in January this year, half the site was substantially under water. I am not talking about a couple of small puddles or a patch of lakeing, but widespread, deep flooding.

More than 80 residents of this beautiful small Buckinghamshire village objected to the development, and their main objections were all consistent. Their primary complaint was flood risk. As I have said, the village already floods frequently during periods of heavy rain due to surface water run-off, and the development site is higher than most of the village. Much of the lower areas are in the flood plain of the River Thame. Even now, quite amazingly, Deanfield Homes, the developer, has not accepted the indisputable proof that the development site floods. Or has it? For when I was standing in the flooded waters of Ickford, I was not the only one seeking a solution. Of course, my solution was simple—do not build on this field, but the developer seemingly had different ideas. “If you build it, they will come” has suspiciously become, “If you raise it up, they will still sell.” A field of dreams is becoming a field of nightmares for the villagers.

Indeed it is beyond parody that, while continuing the public “It’ll be fine” narrative on flooding, the developer is in fact now building those homes 1.1 metres higher than planning permission was previously given for, and we can all guess why. Residents have told me—and I have witnessed it—that lorries full of aggregate and hardcore are being delivered throughout the day, mounting curbs and putting children on their way to school in danger. Building that site so much higher means that Ickford has a new development on an island, which makes the threat of flooding to the rest of the village, especially properties on Worminghall Road and Golders Close, extremely high.

The developer’s new sparkly CGI graphics boards on the entrance to the development even show the rear gardens with huge grass slopes, which means that all surface water will now flow directly towards the existing housing. It is not even trying to hide it. I have suggested to the developer that if it is so confident that flooding will not be a problem, it should build a tanked brick wall around the development, but so far there has been no response and no agreement to my request for a meeting.

What the developer has done is to alleviate the situation for itself but compound it for the rest of the village. This is equally all part of the blatant disregard it has for the village that it is devastating. The impact on biodiversity, for example, has been equally staggering. Residents have shared with me images of trees being cut down and hedges removed despite being protected, and the developer is not willing to hear their concerns.

Compounding the issues, the village also has an inadequate sewerage system. During periods of heavy rain, the Thames Water network simply cannot cope due to surface water ingress, so raw sewage bubbles up into the roads. I have been pushing Thames Water for a solution. To be fair, it agrees that something needs to be done, but no works have yet taken place. I am sorry to say that the chief objections about flooding and sewage were laid aside as part of the planning process.

I have been told by residents who attended that the inspector’s hearing was conducted in such a way that the inspector failed almost completely to control the hectoring by the developer. At the outset, residents were allowed only to make brief speeches in support of their objections, and were shouted down. The residents who attended left the hearing in a state of shock at such an undemocratic process, and went home utterly disheartened. The inspector did visit the village on the last day of the hearing and talked to a few residents, but from his report it is clear that he paid scant regard to their concerns, although he did pay lip service to them.

Surely when any planning application comes forward we must put local people at the heart of flood risk assessment. Those who live and work in an area know exactly what happens in heavy rainfall or even light rainfall—not some bureaucrat perusing Google Maps.

Sadly, the inspector’s report, which was published in August, granted permission for the development. Residents who had opposed the development launched a campaign to protect the village; they called it the Ickford Residents Group. The group sought legal advice, but learned that because their main objections had been set aside, they could not challenge the inspector’s decision with any hope of success. Since that time, the group has been proved right, beyond any shadow of a doubt; all its objections were valid. Thames Water has accepted that its advice at the time was wrong and is carrying out reviews, but despite constant pressure from myself and residents, we have seen no action. The group has also campaigned to obtain reforms to the processes so that other localities may not suffer as Ickford’s residents have done.

On behalf of Ickford residents—and indeed all communities threatened by flooding and rogue developers —I am today calling for the way in which flood risk is assessed as part of the planning process to be seriously beefed up. My view is simple: we cannot keep building homes in areas liable to flooding. It will just keep making matters worse. Change is needed, and needed urgently.

First, the Government should, as part of its review of planning policy, establish to what extent flood risk is increased by the lack of scrutiny given to the cumulative impacts of smaller and permitted developments. A stronger and direct presumption against developments in floodplains is also needed. This requires changes to the national planning policy framework to close loopholes that allow developments in flood risk areas.

Consideration must also be given to future insurance costs in planning and development decisions. Mortgage lenders in the UK generally require mortgage holders to purchase buildings insurance that includes cover for flooding. Therefore, if new homes do not provide an appropriate standard of genuine and real flood mitigation, the ability to get insurance cover, and for people to become homeowners, will be diminished.

New standards could be set through building regulations that build on the industry code of practice for property flood resilience. Other measures, such as flood performance certificates, should also be considered to incentivise responsible development planning and property flood resilience measures. I fear that additional spending on flood risk management will equally be required, and flood resilience measures need to be incentivised.

The village of Ickford illustrates the incredible inequality that is created when developers with very deep pockets come up against councils and local residents. Unless proposed reforms can overcome this undemocratic situation, the unfairness will continue unabated. The setting aside of Ickford’s residents’ chief concerns was due to an almost complete lack of local knowledge, or testing of that knowledge, by the authorities involved. We simply must make improvements.

As I said earlier, every single one of the concerns residents set out has proved to be real. Ickford was devastated by floods last winter and part of the land that developers are building on was flooded. The claim of a once-in-100-years occurrence almost became once a week in reality. We simply have to look at this again. We have to learn the lessons of what we have seen in the village of Ickford, understand the threat that the existing home owners and existing properties in that village now face from this new development, and ensure that it can never happen to any other village—or town, city or hamlet—in our country ever again.

19:25

[The Minister for Housing (Christopher Pincher)]

I congratulate my hon. Friend the Member for Buckingham (Greg Smith) on securing this Adjournment debate on a very important topic to all residents of Buckinghamshire but particularly to his constituents. He is a doughty and industrious campaigner on behalf of the people of Buckingham, and tonight, the people of Ickford. I congratulate him on his speech.

I am sure that my hon. Friend will appreciate that because I have a quasi-judicial role as planning Minister, it would not be appropriate for me to discuss in any detail individual planning applications or individual local plans. However, I am concerned to hear from him that the developer in question has not engaged sufficiently with the local community, or with him. I encourage that developer—indeed, all developers—to make sure that they do engage effectively and properly with elected representatives, as well as the communities concerned.

The Government recognise that flooding presents a risk to people and to their homes, villages, towns and cities, as my hon. Friend says. The devastating effects of flooding can be seen every year and the Government take it very seriously. The national planning policy framework is very clear that flood risk assessments are needed for all areas where development is proposed that are at risk of flooding from all sources, both now and in the future. Appropriate design and risk considerations that include allowance for climate change need to be included in any flood risk assessment. Allowances that consider future impacts of climate change on flood risk incorporate a precautionary risk-based approach for more vulnerable areas. This means that increased levels of resilience are—indeed, must be—factored in.

The national planning policy framework sets out a clear, overarching policy on flood risk. It states that inappropriate development in areas at risk of flooding, whether an existing or a potential risk, should be avoided, and alternative locations at lower flood risk should be identified where possible; this is known as the sequential test. Where development is necessary and there are no suitable sites available in areas at less risk of flooding, the proposed development should be made safe without increasing flood risk elsewhere; this is called the exception test. Where these strict tests are not met, new development should not be allowed.

Three national flood zones are identified by the Environment Agency’s flood map for planning. I encourage my hon. Friend to raise his concerns about this matter with the Environment Agency, and specifically about its flood map. Flood zone 3, which is commonly referred to as high risk, is split by a local council into two separate zones, 3a and 3b, where 3b is classified as functional floodplain and has the highest likelihood of flooding. Large parts of many major towns and cities comprise land classified as flood zone 3. Sub-category 3a covers land having a one in 100 or greater annual probability of river flooding, or land having a one in 200 or greater annual probability of sea flooding—possibly not something that my hon. Friend’s constituents in Buckingham are at particular risk of, but I understand his broader concerns.

I must stress that building on land assessed as high risk is not the same as building on functional floodplain. Even then, building in flood zone 3 is not common, as less than 0.2% of land use in flood zone 3 is residential. Flood zone 2 is classed as a medium possibility of flooding, and flood zone 1 is classed as a low probability of flooding and covers land having a less than one in 1,000 annual probability of flooding from rivers or the sea. Areas at the lowest risk of flooding can still experience localised flooding—for example, following a very heavy downpour. That is why we have prioritised the use of sustainable drainage systems for all developments in areas at risk of flooding. The framework is also clear that sustainable drainage should be incorporated in all major developments—commonly schemes of 10 or more homes—unless there is clear evidence that it would be inappropriate.

The framework is also clear that a site-specific flood risk assessment should accompany all proposals in flood zone 1—the lowest risk—that involve sites of 1 hectare or more, land which has been identified by the Environment Agency as having critical drainage problems, land identified in a strategic flood risk assessment as being at increased flood risk in future, or land that may be subject to other sources of flooding, where its development would introduce a more vulnerable use.

Lead local flood authorities must be consulted on surface water drainage considerations in applications for all major new developments. Their comments and advice should inform the local council’s decisions on planning applications and ensure those applications are in line with the NPPF on flood risk. That ensures that local councils have access to appropriate expert advice on the sustainable management of drainage and localised sources of flooding.

For any major developments within flood zones 2 and 3 where the EA raises objections on flood risk grounds, the local council is required to consult the Secretary of State if it is minded to grant planning permission against the agency’s objections. This provides the Secretary of State with an opportunity to call in the decision.

My hon. Friend asked what we have done and called for a major overhaul of the system. I can tell him that we updated the NPPF in July this year to ensure that planning policies support climate change mitigation and adaptation, and that includes tackling flood risk. As part of the update, the framework was amended to require that all sources of flood risk are considered—including includes areas at risk of surface water flooding due to drainage problems—and that future flood risks are taken into account to ensure that any new development is safe for its lifetime, without increasing the risk of flooding elsewhere. The framework is clear that areas at little to no risk of flooding from any source should always be developed in preference to areas at a higher risk of flooding, as I have said.

The framework must be taken into account in the preparation of local plans, and it is a material consideration in planning decisions. My hon. Friend will know that as part of our wider planning reform considerations, we want to put local plan making at the heart of development and ensure that we engage more local people and stakeholders. I assure him that we will be looking at that and the issues he raised as we advance those proposals.

I should also tell my hon. Friend that, as can be seen from the recent update to the NPPF, the Government are not standing still on the issue of flood risk. Last year we published a policy statement setting out the Government’s long-term ambition to create a nation more resilient to future flood and coastal erosion risk. The policy statement outlines five ambitious policies and more than 40 supporting actions, which will accelerate progress to better prepare and better protect our country against flooding and coastal erosion in the face of more frequent extreme weather as a result of climate change. We want to ensure that we are better protected, to reduce the likelihood of flooding and to increase resilience.

This year the Government also published their review of policy development in areas at flood risk, examining key elements of planning policy relating to flood risk and development. It concluded that the Government have robust measures in place to protect people and property from flooding, which all local planning authorities are expected to follow. The review outlines the findings and sets out the actions the Government will take and have already taken, which includes further clarifications of policy.

Mindful of what my hon. Friend has already said, as part of our wider ambitions for an improved planning system we intend to review the NPPF to ensure that it contributes as fully as possible to climate change mitigation and adaptation. I will take careful note of his suggestions in that regard. We are also in the process of reviewing the planning practice guidance section on flood risk to provide further clarification.

We are also investing to improve our country’s resilience to existing flood risk. This year we have made a record investments in flood and coastal defences, doubling the size of the flood and coastal defence programme in England to £5.2 billion, providing around 2,000 new defence systems to better protect a further 336,000 properties. The aim is to reduce national flood risk by up to 11%, helping to avoid £32 billion of wider economic damage and benefiting every region of the country, including his own.

Furthermore, the Government have committed to undertake a review of the case for implementing schedule 3 to the Flood and Water Management Act 2010 concerning sustainable drainage systems. The review will look at the benefits and effects of implementation, as well as alternative methods for ensuring that sustainable drainage systems are incorporated in future developments. It will engage a range of stakeholders, and I encourage my hon. Friend and his friends to be some of them. As well as providing for statutory build standards for sustainable drainage systems on new developments, the schedule would make the right to connect surface water to foul water conditional on local planning approval of the developer’s proposed drainage system. The review commenced in October this year and we expect to publish the outcome in August next year.

I again congratulate my hon. Friend on his persistence in pursuing this very important matter on behalf of his constituents. I hope it is clear to him that the Government take the issue of flooding very seriously and expect it to be an important consideration in the planning system. We also take his views and his concerns very seriously too.

The NPPF is clear that inappropriate development in areas at risk of flooding should be avoided. Where development is necessary, as I say, it should be made safe and resilient, without increasing flood risk elsewhere. National planning policy applies to all sources of flood risk, including surface water, overwhelmed sewers and drainage systems, as well as future risk. We are committed to reducing the risk that flooding poses to our communities. We acknowledge that climate change will increase the risk of flooding, and that is why we have strong protections in place, including the £5.2 billion of investment that I referred to, and we will work hard on our further reforms to ensure that we further protect our communities against flood risk.

I congratulate my hon. Friend on his work on behalf of his constituents in Ickford and elsewhere. I trust that the developer to whom he referred is listening and will engage with him and the communities that are affected at the earliest opportunity. I congratulate him on his debate, and I look forward to working with him in future to ensure that flood risk in all of our communities is effectively mitigated.

Question put and agreed to.

19:39

House adjourned.

Ministerial Correction

Tuesday 23rd November 2021 Ministerial Corrections

Tuesday 23 November 2021

Transport

Tuesday 23rd November 2021 Ministerial Corrections

Integrated Rail Plan: North and Midlands

The following is an extract from the statement on 18 November 2021 by the Secretary of State for Transport on Integrated Rail Plan: North and Midlands:

[Grant Shapps]

On the environmental advantages, it will interest the House to know that HS2 is being built in as an environmentally friendly a way as possible. Section 2B west is intended to be a net positive carbon contribution, not just in its running but in its entire life cycle, which will be very important.

[Official Report, 18 November 2021, Vol. 703, c. 742.]

Letter of correction from the Secretary of State for Transport, the right hon. Member for Welwyn Hatfield (Grant Shapps):

Errors have been identified in the response I gave to my hon. Friend the Member for Harrogate and Knaresborough (Andrew Jones).

The correct response should have been:

[Grant Shapps]

On the environmental advantages, it will interest the House to know that HS2 is being built in as an environmentally friendly a way as possible. Section 2B west is intended to be a net gain for biodiversity, which will be very important.

Judicial Review and Courts Bill (Eleventh sitting)

Tuesday 23rd November 2021 Public Bill Committees

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

Public Bill Committee

Tuesday 23 November 2021

[Andrew Rosindell in the Chair]

Judicial Review and Courts Bill

Clause 47

Commencement and transitional provision

The Chair

We resume with clause 47 and amendment 30. I would like to be able to call Anne McLaughlin, but she is not here.

The Parliamentary Under-Secretary of State for Justice (James Cartlidge)

- - Excerpts

On a point of order, Mr Rosindell. On behalf of all colleagues, may I say how grateful we are that you allowed us to attend the funeral this morning, instead of sitting in Committee? I thought it was a profoundly moving occasion, and your words were very moving in particular. It showed Parliament at its best.

I just said to the Doorkeepers that I thought the moment when they walked behind the coffin was one of the most moving I have seen as an MP. I thought it appropriate to put on record my thanks for the adjournment this morning, and that we all dearly miss our great friend. It was a very fitting and beautiful service.

The Chair

I thank the Minister for his comments on a very sad day for us all.

Sir John Hayes (South Holland and The Deepings) (Con)

- - Excerpts

Further to that point of order, Mr Rosindell. I do not want to prolong our proceedings unduly, but I think it is important to amplify the Minister’s remarks. Without wishing to embarrass you, you were a very close friend of Sir David. We were all his friends, but you were particularly close to him. We are grateful for your being here this afternoon, and I think we would all agree that it was a fitting final farewell to a much-valued parliamentarian, a dear friend and, most importantly, a husband and father.

Marco Longhi (Dudley North) (Con)

- - Excerpts

Further to that point of order, Mr Rosindell. I echo the previous comments. As a member of the new intake, I had the good fortune of having an office on the same floor as Sir David Amess in 1 Parliament Street. As the lift doors open, his office door is immediately in front. It has been a terrible sadness, as you can well imagine, every time I have seen that door with a candle lit in front of it in recent days and weeks.

As a colleague and a fellow Catholic, I felt today’s mass and funeral celebrations were a very fitting goodbye to someone I did not really get to know that well but someone who, as an elder statesman who had been round the block a few times, if I can put it that way, made me feel very welcome. He made a point of coming to say, “Hello. Who are you? Where are you from?” in his indescribable, unique way.

Tom Hunt (Ipswich) (Con)

- - Excerpts

Further to that point of order, Mr Rosindell. Extending on that theme, I was also very honoured to be at Westminster Cathedral this morning. I know how close you were to the late Sir David, and I am lucky to class you as a close friend of mine.

Sir David was somebody who was very visible in the Chamber. I remember in my first few weeks after being elected that I wanted to figure out how to do the job effectively, and I went around to canvass some names of people I should talk to about how to do the job effectively as a constituency MP. Sir David’s name came up almost as many times, and perhaps more times, than yours, Mr Rosindell. He was incredibly characterful, and I will always remember the summer and Christmas Adjournment debates when he would fire off 30 or 40 points within two or three minutes, when I would have mentioned barely one or two. It is with some sadness, though, that I say that he was somebody whom I always assumed I would meet and get to know very well, but that I was not given that opportunity. Like my hon. Friend the Member for Dudley North, who is a fellow Catholic, I was very moved by the incredibly powerful mass. I was lucky enough to take communion today—I have had my first holy communion and Father Pat has been trying to get me to have a confirmation: he is keeping his eye on me. It was incredibly moving today, and it might have done the job. I think that I will do that.

Andy Slaughter (Hammersmith) (Lab)

- - Excerpts

Further to that point of order, Mr Rosindell. May I associate the Labour party with the remarks of the Minister and Conservative Members about Sir David? I commiserate with the Members of the 2019 intake—because of covid, they probably did not get a chance to know him. But they would have got to know him pretty quickly, with us all being back here. As somebody from a very different political tradition, I worked very closely with him for the last five years through his chairmanship of all-party parliamentary fire safety and rescue group, which was astonishing. We all know that all-party parliamentary groups have a multitude of successes and failures. That was an astonishingly powerful and well-organised body, particularly in the wake of Grenfell. It really was a pleasure not only to know him but to see how effective he was as an operator in Parliament. We will all miss him. I know that you will particularly, Mr Rosindell, as a friend. We will all miss him as a friend, a colleague and a wonderful parliamentarian.

The Chair

Thank you all very much for those words. I hope that we might send a copy of the report of these remarks to Lady Amess and the family, so that they are aware of some of the kind words that have been spoken this afternoon about Sir David, who, as many have commented, was a very dear friend to me and to many in this room. I am only sorry that some were not able to get to know him as well as I knew him, because he was somebody very special—a fantastic Member of Parliament, a fine constituency MP and a very dear friend to so many. I thank you all for your very kind words this afternoon.

Fortunately, Anne McLaughlin is now with us, so we can move to clause 47 and amendment 30.

Anne McLaughlin (Glasgow North East) (SNP)

- - Excerpts

I beg to move amendment 30, in clause 47, page 54, line 34,  at end insert—

“(7) Notwithstanding the provisions above, this Act shall not come into force until the Lord Chancellor has laid before Parliament a written statement confirming that no provision in this Act contravenes Article 6 or Article 13 of the European Convention on Human Rights.

(8) The statement under subsection (7) must be laid before Parliament within three months of this Act being passed.”

This amendment would prevent any Act resulting from this Bill from coming into force until the Lord Chancellor confirms, via a written statement to Parliament, that none of its provisions contravene ECHR Article 6 (right to fair trial) or ECHR Article 13 (right to effective remedy).

I thank everybody on the Committee for their forbearance during the last week, while I was struggling to move, and today, when I underestimated how long a usually seven-minute walk to get here would take me. Thankfully, I have an X-ray on Thursday, and I hope that something will come of that.

May I also associate myself and my hon. Friend the Member for Lanark and Hamilton East with the remarks on Sir David Amess? I did not know him; I knew exactly who he was, though. There was that smile that made him stand out—a really genuine smile that reached his eyes. I always noticed that. I did not know him personally, but listening to people speak about him, including many people in the SNP group, who knew him really well and are really hurting, makes me wish that I had. Maybe that can teach us something in this place: that there are people who we can identify with and befriend who have different views from our own. Thank you for allowing me to say that.

I sure that Conservative Members and Opposition Members will agree with the fundamental principles that we should all be afforded the right to a fair trial and effective remedy. There can be little dispute that those are the cornerstones of a justice system that respects the rule of law and principles of natural justice. Amendment 30 seeks confirmation from the Lord Chancellor that any provision in the Bill will be prevented from coming into force if it contravenes article 6 or article 13 of the European convention on human rights: the right to a fair trial and the right to an effective remedy.

We have already debated how provisions in the Bill, such as the presumption for using prospective-only quashing orders, could risk breaching article 6.1 of the European convention on human rights on the right to a fair trial, which requires an effective judicial remedy. The amendment would ensure the Government had the opportunity to make cast-iron guarantees that that will not happen. That would be expressed via a written statement from the Lord Chancellor, laid before Parliament within three months of the Bill being passed.

The Minister may wish to point out that article 13 does not apply to the Human Rights Act 1998, but it could be applicable in the European Court of Human Rights in Strasbourg and that is why we felt it appropriate to include it in the amendment. Strasbourg does not recognise the practice of failing to give human rights without an effective remedy. Rather than stripping away rights, the Government should consider in any proposed review of the Human Rights Act that the right to effective remedy be added. As the Minister has assured us that the Bill will furnish the courts with a broader set of tools, with no risk of restricting individual claimants’ rights, he will surely consider the amendment a gift from me to him to help clarify his position.

James Cartlidge

- - Excerpts

Thank you for your generosity in allowing us to pay our tribute, Mr Rosindell, following this morning’s very moving mass at Westminster Cathedral.

The amendment would prevent any measure in the Bill from coming into force until the Lord Chancellor has provided a written statement to say that no provision in the subsequent Act contravenes article 6 on the right to a fair hearing and article 13 on the right to effective remedy of the European convention on human rights. I assure hon. Members that none of the measures in the Bill contravenes either article 6 or article 13.

The hon. Member for Glasgow North East mentioned remedies. We have the new remedies relating to quashing orders, which are a key part of how the Bill improves judicial review. In clause 1, there are adequate safeguards to ensure that any individual exercise of the new remedial discretions provides an effective remedy in cases concerning violations of convention rights. That is because the measures do not limit the availability of any existing right for such a breach and their use remains open to the court’s discretion. Presumption in favour of any of the remedial discretions only operates in circumstances where its exercise would

“offer adequate redress in relation to the relevant defect”

and it may be rebutted where there is good reason to do so. Further, the court is required to consider the interests or expectations of persons who would benefit from quashing of the impugned Act, as well as considering other factors.

On clause 2, regarding Cart judicial review, our position is that article 6 does not require a further right of judicial review in relation to decisions concerning permission to appeal from the first-tier tribunal to the upper tribunal and therefore considers that the measure does not interfere with an individual’s right under article 6.

When the Bill was introduced, the Lord Chancellor at the time signed a statement under section 19(1)(a) of the Human Rights Act 1998 to confirm his view that the provisions in the Bill are compatible with the convention rights. When the Bill passes to the other place, a second statement will be made, as required under section 19, taking into account any amendments. Should any Government or non-Government amendments be made that we felt contravened those statements, we would inform Parliament. It would be a breach of the ministerial code to proceed towards Royal Assent without either amending the provisions or informing Parliament of the issue.

In addition, ahead of introducing the Bill, the Government carried out a full ECHR analysis and published a memo for the Joint Committee on Human Rights setting out that analysis on parliament.uk. The previous Lord Chancellor wrote to the Committee’s Chair when the Bill was introduced and we will engage with the Committee fully should it choose to publish a report on the Bill. In summary, the Bill currently does not contravene either article 6 or article 13, and appropriate measures are in place should that no longer be the case at any point during its passage. I therefore urge the hon. Lady to withdraw the amendment.

Anne McLaughlin

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In the light of what the Minister has said about the potential breach of the ministerial code, and knowing how seriously almost everyone takes that, I hope that what he tells me is correct. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Anne McLaughlin

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I beg to move amendment 31, in clause 47, page 54, line 34, at end insert—

“(7) Notwithstanding the provisions above, nothing in this Act relating to Scotland shall come into force without a consenting resolution being passed by the Scottish Parliament.”

This amendment would require the consent of the Scottish Parliament to be given to any provisions in the Bill that relate to Scotland for those provisions to come into force.

As I am sure the Minister is aware, under the Sewel convention the Scottish Parliament should have the final say over any attempt by the UK Parliament to legislate in devolved areas. In recognition of the separate and distinct nature of Scotland’s legal system, article 19 of the Treaty of Union protects the authority and privileges of Scotland’s Court of Session. This is a fundamental part of the UK constitution and this amendment would ensure that the UK Government respect the principles of the Sewel convention and the constitutional arrangements.

Without an amendment specifically guaranteeing the requirement of consent from the Scottish Parliament to any provisions in the Bill that relate to Scotland, we risk interference with Scottish legal processes. The Faculty of Advocates, which was represented at the evidence sessions of this Committee, has said that in Scotland

“judicial review does not suffer from a lack of clarity, and any attempt to codify it is likely to undermine the very flexibility that renders it effective.”

Furthermore, Liberty has also commented on the situation and has said that

“the Act of Union does not serve to enable the UK Government to reshape the jurisdiction of the Court of Session. These are not technical or procedural points. In any event, the administration of the courts and the justice system in Scotland clearly falls within devolved competence.”

I am certain the Minister and Members opposite will be aware that this amendment is not only a reminder that this convention exists, but that it too must be respected in statute.

James Cartlidge

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The amendment would require the consent of the Scottish Parliament to be given to any provisions in the Bill that relate to Scotland. I am emboldened to say that the word “relate” is in bold in my text, as that word is very important. I have a number of constitutional concerns about the amendment.

To reassure the hon. Members for Glasgow North East and for Lanark and Hamilton East, the measures in this Bill relate wholly to reserved matters. Ministers and officials have been engaging with the devolved Administrations over the course of the Bill, and we will continue to do so when the provisions in the Bill come into force.

I believe we are in agreement that chapter 2, “Online procedure,” and chapter 3, “Employment tribunals and the Employment Appeal Tribunal,” of the Bill relate to matters outside the competence of the Scottish Parliament. Yet this amendment would still apply to the clauses in those chapters and require the consent of the Scottish Parliament before they could come into force.

The majority of the criminal procedure measures also relate only to England and Wales, although, as I have previously noted in Committee, we are aware that the Scottish Government’s position may be that the new automatic online procedure, introduced by clause 3, engages the legislative consent process. Furthermore, we believe that this is outside the competence of the Scottish Parliament, which, in the Government’s view, does not engage the legislative consent process.

With regard to removing Cart JR, I should make clear that the unified tribunal system is a reserved matter, where it relates to matters of reserved policy. Our measures on Cart will apply to the whole of the UK, but only in respect to the matters heard in that tribunal system that fall outside the competence of the Scottish Parliament. The provisions relating to remedies apply to England and Wales only.

If it came into force, the amendment would actually lead to decisions in reserved areas operating differently across the UK, thereby reducing the clarity the Bill currently provides. In line with the memorandum of understanding on devolution, we will continue to engage with the devolved Administration at a ministerial and official level to ensure that we have time to fully understand any implications for the Scottish court system.

On that basis, I cannot accept this amendment and I urge the hon. Lady to withdraw it.

Anne McLaughlin

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I am not sure what I am supposed to say, but I do not wish to withdraw the amendment.

Question put, That the amendment be made.

Question negatived.

Question proposed, That the clause stand part of the Bill.

James Cartlidge

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This is one of those long ones, Mr Rosindell. This clause sets out when the measures will come into force. While some measures will come into force two months from when the Act is passed, including the coroner’s provisions and two of the criminal provisions, in clauses 14 and 15 and schedule 1, the remainder of the Bill will come into force by regulation.

Question put and agreed to.

Clause 47 accordingly ordered to stand part of the Bill.

Clause 48

Short title

Question proposed, That the clause stand part of the Bill.

James Cartlidge

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I just need to check I have enough water for this one. The clause is the short title of the Bill.

Question put and agreed to.

Clause 48 accordingly ordered to stand part of the Bill.

The Chair

We now come to new clauses. I understand that the Opposition do not intend to press new clauses 1 and 2, which have already been debated, to a Division, so we will begin with new clause 3.

New Clause 3

Exclusion of review of the Investigatory Powers Tribunal

(1) Section 67 of the Regulation of Investigatory Powers Act 2000 is amended as follows.

(2) Leave out subsection (8) and insert—

“(8) Subject to section 67A and subsections (9) and (10), determinations, awards, orders and other decisions of the Tribunal (including decisions as to whether the Tribunal has jurisdiction and purported determinations, awards, orders and other decisions) shall be final and shall not be subject to appeal or be liable to be questioned in any court.

(9) In particular—

(a) the Tribunal is not to be regarded as having exceeded its powers by reason of any error of fact or law made in reaching any decision; and

(b) the supervisory jurisdiction of the courts does not extend to, and no application or petition for judicial review may be made or brought in relation to, any decision of the Tribunal.

(10) Subsections (8) and (9) do not apply so far as the decision involves or gives rise to any question as to whether the Tribunal—

(a) has a valid case before it;

(b) is or was properly constituted for the purpose of dealing with the case; and

(c) is acting or has acted in bad faith, with actual bias or corruption or in some other way that constitutes a fundamental procedural defect.

(11) No error of fact or law made by the Tribunal in reaching any decision is to be construed as relevant to the question.”

(3) The amendment made by subsection (2) applies to determinations, awards, orders and other decisions of the Tribunal (including purported determinations, awards, orders and other decisions) made before the day on which this section comes into force.”—(Sir John Hayes.)

Brought up, and read the First time.

Sir John Hayes

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I beg to move that the clause be read a Second time.

The new clause addresses the issue of the courts’ role in curtailing the use of the Regulation of Investigatory Powers Act 2000 and more especially circumventing the role of the Investigatory Powers Tribunal. It would restore Parliament’s choice in enacting section 67 of the Act so that the decisions of the Investigatory Powers Tribunal would not be subject to judicial review.

As Security Minister at the Home Office, I addressed these matters in an important piece of legislation that established the principle of a double lock in respect of the warranting of powers in the case of both suspected terrorists and serious and organised criminals. That is to say that tech companies are obliged to maintain a record of electronic communications that can be interrogated on application to the Home Secretary for a warrant. I introduced the double lock, so that as well as satisfying the Home Secretary of the validity of the case made by the police or the security services, a warrant must also pass the same test when put before a member of the Investigatory Powers Tribunal or a judge. That was a safeguard to ensure that those powers are used only when necessary and proportionate. It is that test of necessity and proportionality that lies at the heart of the exercise of powers in respect of security and related matters.

The problem—it is a challenge that we have considered on previous occasions in the scrutiny of the Bill: indeed, it has punctuated our consideration—is that the courts have taken it upon themselves to become involved in matters that should be the exclusive preserve of this House. It is very important to see the Bill in that context. The supremacy of Parliament is fundamental to protecting the interests of the people, and Parliament’s particular role in our constitutional settlement is not a matter—as was suggested by one of those who gave evidence to us—of mutuality.

Anybody who understands constitutional theory and practice will know of the work of Dicey. It is clear that parliamentary sovereignty, as Dicey argued, confers on Parliament a dominant characteristic. Parliament consists of Her Majesty the Queen, the House of Lords and the House of Commons acting together, and therefore:

“The principle of Parliamentary sovereignty means neither more nor less than this”.

In Dicey’s words, Parliament has

“the right to make or unmake any law whatever; and, further, that no person or body is recognised by the law of England as having the right to override or set aside the legislation of Parliament.”

Those are the words of A. V. Dicey in affirming the principle of sovereignty. He goes on to say that parliamentary sovereignty must be thus described:

“Any Act of Parliament, or any part of an Act of Parliament, which makes a new law, or repeals or modifies existing law, will be obeyed by the courts…Some apparent exceptions to this rule no doubt suggest themselves. But these apparent exceptions, as where, for example, the Judges of the High Court of Justice make rules of court repealing Parliamentary enactments, are resolvable into cases in which Parliament either directly or indirectly sanctions subordinate legislation.”

Legally, sovereign power is assuredly maintained by Parliament. It is quite wrong for the courts to be used as a way to perpetuate debate. We heard that from the Minister in particular respect of the way that judicial review has metamorphosised over time to perpetuate debate in particular cases that have been settled previously. The Minister described it as having several bites of the cherry. That is not the role of judicial process, and the Bill goes a considerable way to addressing that, but it does not go far enough.

The purpose of the new clause is to probe and press the Minister—I will not put it more strongly than that—to go further in affirming the sovereign role of Parliament described by A. V. Dicey. The power of Parliament has been drawn into question, particularly in respect of the Investigatory Powers Tribunal, as I said. The Supreme Court, in a perverse judgment, effectively set aside Parliament’s lawmaking choice in May 2019 in the landmark judgment of Privacy International v. Investigatory Powers Tribunal. Hon. Members will remember that the case was raised in the first oral evidence session by Professor Ekins, and addressed by him in his paper for Policy Exchange. I once again thank Policy Exchange for publishing that paper, which has added to our understanding of and insight into these matters.

In essence, the new clause, tabled in my name and that of my hon. Friend the Member for Ipswich, and supported by other Committee members—I say that with some timidity and hesitation, because I cannot presuppose that support until I have persuaded them by the power of my oratory; none the less, I am confident that it has some sympathy of other Committee members—is an opportunity for the Government to do what the Attorney General recommended and advertised in her recent speech in Cambridge, in which she identified the problem I describe of the courts taking a more incursive role into the business of high politics than is their proper place to do. The new clause, in respect of the Regulation of Investigatory Powers Act 2000, attempts to do just that.

The new clause would reverse the Supreme Court’s judgment and reinstate the law that Parliament clearly made. Before the Privacy International case, the courts had taken section 67 of the 2000 Act to be a clear, unambiguous ouster clause that excludes the jurisdiction of the courts in relation to the Investigatory Powers Tribunal. For 19 years, there has been no possibility of judicial review. In recent court judgments, including others such as the Adams case and the Miller case, we have seen the creeping role of the courts into those areas, with judicial review being used as the mechanism to allow that mission creep. It is important that the Government recognise that—from what the Minister has said, I think they do—and take effective action to address it.

I suppose what I am saying is that the Bill could have been a bigger piece of legislation. As you will know from your long experience in the House, Mr Rosindell, new clauses are sometimes a way of encouraging the Government during the further consideration of the Bill to listen to the arguments that have been made during scrutiny and to allow it to do more than was originally intended. The alternative would be to bring in another Bill, but it is always difficult to secure time in the legislative programme. The likelihood of another Bill in the same subject area is small, so this may be our chance. It is a rare and special chance for the Minister to become something of a star, if I might put it that way, in the battle to affirm the constitutional place and historic role of Parliament in relation to the courts.

The then Lord Chancellor, my right hon. and learned Friend the Member for South Swindon (Robert Buckland), made a powerful critique of the Privacy International judgment and of the 2015 Evans judgment, which concerned the disclosure of the Prince of Wales’s letters, which was a similar case of the courts taking unusual—I would say exceptional—power with an undesirable outcome. In the Evans case, a Supreme Court majority effectively overturned part of the Freedom of Information Act 2000.

The constitutional problems with the Supreme Court’s reasoning in that case are set out in a previous Policy Exchange paper written by Professor Ekins and Professor Forsyth of the University of Cambridge. Their argument was strongly endorsed by Lord Hoffmann and Lord Brown, two of the country’s most senior judges, and by Lord Faulkes, who chaired the independent review of administrative law last year.

Speaking about that case, the then Lord Chancellor said:

“when enacting the provisions at issue in Privacy International and Evans Parliament did not believe that it was infringing the rule of law (and indeed the judges in the minority in both cases agreed). It was also perfectly clear, as the minority recognised, what Parliament actually intended. Provided Parliament’s assessment was not wholly unreasonable, it does not appear to me to be right to frustrate that intention”.

That is a powerful critique. Even if Parliament had been wrong to enact section 67(8) of the Regulation of Investigatory Powers Act 2000, it was a decision for Parliament to make.

A fundamental issue is at stake here. We are answerable to the people and our legitimacy is derived from the people. Although it is important that an independent judiciary plays its part in our constitutional settlement, it is not a matter of reciprocity or mutuality; it is not about alternative sources of power. This place is the source of legitimate democratic power because we, as I say, draw that authority from the people. We speak for the people and are answerable to the people. That is the point. It is not right for that mission creep to allow others to exercise power, who are not directly accountable in the way that I have described.

The new clause focuses on the important Privacy International case, but it also speaks to those other wider and deeper matters. By accepting the new clause, as I am confident the Minister will with good grace and alacrity when he rises to speak, the Government will be doing a great service not only in their own interests, because the new clause is entirely in keeping with the essence of the legislation’s intention, but in recognising that the Bill provides a special, unusual, perhaps even a unique opportunity to right these wrongs.

Without wishing to delay the Committee further, I say to my colleagues on the Conservative Benches and, by the way, to those across the House, that the Bill has been debated in good spirit, and with appropriate care. I paid tribute in an earlier session to the hon. Member for Hammersmith, but I do not want to do so again, else we will start getting the reputation of being too friendly with each other. I do not want to give the impression that I am in the thrall of the hon. Gentleman. The Bill has been debated in the right spirit and in a sensible and positive way. To Opposition Members, I say that it is important for all Members of the House to recognise the authority of this place, as I have described, for that is our mission and purpose. I am disturbed by the increasing judicial activism that has led through series of cases—I could talk about the Miller case, and I referred briefly to the Adams case—which is changing the balance of our constitution from this place to elsewhere.

In summary, I was proud to take security legislation through the House that gave the Security Service and the police the powers that they need to protect us from those who seek to do us harm. We have put into place safeguards and protections in earlier security legislation and in the legislation that I took through myself. We are clear that there have to be those safeguards, and of course it is right that all the agencies on which we confer extensive powers are themselves accountable. But it is not right for the courts to frustrate the will of this House.

To that end, I am pleased and proud to propose the new clause in my name. Of course, needless to say, at this stage I will not say that I am going to push it to a vote; that would be quite wrong, because it would suggest that the Minister could just say anything. I do not want to let the Minister off the hook. He knows that I am a supportive and friendly member of the Committee; but none the less, I am expecting him to at very least say that he is minded to consider these matters, or the full power of the Back-Bench Members of the Committee could be felt and heard, to the distress of my great friend who sits on the Front Bench next to the Minister, namely my hon. Friend the Member for North Cornwall. As I said to him last week, were that to happen, he would have a grey mark against him, next to my black mark.

I say to the Minister, persuade me otherwise, or agree at least to consider the matters addressed by the new clause because it is very much inspired by the message that he has broadcast to the Committee: the Government want to get things right in respect of the power of courts alongside the power of Parliament.

Andy Slaughter

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The right hon. Member for South Holland and The Deepings takes us back into the important constitutional territory with which he started his consideration of the Bill. He also, knowingly or not, revealed something about his taste in curry. For those who are looking slightly amiss about that, I refer to the opening paragraph of the article concerning the Bill that appeared in The Mail on Sunday, which said:

“The Justice Secretary, Dominic Raab, regards himself as a spicy ‘Vindaloo’ politician compared to the bland ‘korma’ represented by his predecessor, Robert Buckland, sources in his new ministry have told the Mail on Sunday.

The bizarre comparison was made in the context of the Judicial Review Bill, inherited by Mr Raab from Mr Buckland, which aims to clip the wings of the Judiciary over the extent to which they can rule on political decisions, such as Boris Johnson’s suspension of Parliament during Brexit negotiations in 2019.”

I will not go on, partly because the article contains some unparliamentary language, and in fairness to the Justice Secretary it ends with the immortal line:

“A source close to Mr Raab denied that he had ever compared himself to a vindaloo curry.”

The right hon. Member for South Holland and The Deepings puts himself more in the vindaloo than the korma camp with his comments, but I note that the new clauses that he has tabled are a subset of those in the Policy Exchange document, to which he referred, by Professor Ekins, who was one of the witnesses who gave evidence to the Committee. That document was a very powerful concoction indeed, because it contained 20 suggested new clauses or amendments, which were whittled down to seven on the amendment paper. After excluding those that were not in scope, we are down to two.

None the less, the import of what the right hon. Gentleman intends is still there, so I will respond to new clause 3 and, in due course, to new clause 5, and say to the Minister that it would be wrong to accept the new clauses, partly because of what they say and partly because of the way they are being introduced at this stage; they should really have come through the usual processes. That is to say nothing about the right of the right hon. Gentleman to table them now to raise the issue. Nevertheless, the provisions are being put to the Committee at a very late stage. The way in which they were tabled leaves no time for substantial parliamentary engagement or the required serious consideration of their merits.

Of course, Parliament is supreme, and there may be a case for looking at the propriety of certain Supreme Court decisions or changing the way that judicial review works, but this is not the proper way to enact measures of such constitutional significance. The bottom line is that if Parliament wishes to modify or overturn legal decisions as significant as those highlighted here, it should do so through a proper and full debate, with a full consultation beforehand, so that it can benefit from a wide range of expert views. Parliamentarians should be empowered to make proper, informed decisions. These rushed provisions undermine the parliamentary process and threaten ill-considered constitutional reforms, with unknown consequences.

Sir John Hayes

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On the timing, the hon. Gentleman makes a fair point. He will know how the House works; he has been in it a long time. Clearly there will be opportunities for further consideration of the matters that I have raised, both on Report and during the Bill’s passage in the other place, so we are at the beginning of a very long journey.

As I said, I have not decided whether to press the new clauses to a vote, but I am putting down a marker. The hon. Gentleman will have seen that happen many times; indeed, he has done the same during scrutiny of the Bill, and I hope that some of his arguments will be heard. On the character of the marker, the new clause respects new clause 2 in terms of exceptional cases where the tribunal has acted in a perverse way, so it allows legal consideration of any exceptional, ambiguous or improper decision by the tribunal.

Andy Slaughter

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I am grateful to the right hon. Gentleman, who made several points there. I am coming on to deal with each of them. I suspect that his new clauses and comments are directed as much—if not more—to his own Front Benchers as to me in putting that marker down, but the Government must have taken some care with the long title of the Bill, which is tightly drawn.

Obviously, I do not question the wisdom of the Clerks, but the two new clauses we are debating this afternoon have squeaked through because the long title clearly identifies what is in clauses 1 and 2. With all respect to the other place, and there are more stages still to go, it is not just the deliberation in both Houses that is important when discussing constitutional matters.

We heard from some, but only some, of the experts in the field. I concede there was a significant consultation process; perhaps the Government did not get the responses they wanted the first time, so they went back and had another go. Nevertheless, they have had at least two bites of the cherry in the consultation.

James Cartlidge

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Ah! That’ll do.

Andy Slaughter

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That is enough, apparently—according to the Minister.

Having gone through that process, the Government decided to push forward with focused reforms to Cart judicial reviews to modify the nature of discretionary remedies only. This new clause, and indeed new clause 5 and the other new clauses that were not selected, would go much further. If these proposals were being taken seriously, they would be headline provisions in the Bill, not underdeveloped addendum clauses introduced without proper consideration and in their current form. It is inappropriate to being these measures into force as proposed.

The new clauses are not supported by, and in some cases go directly against, expert analysis or wider consultation. The measures being taken forward by the Government in this Bill were preceded by extensive consultation and engagement with experts and stakeholders. That includes the work of the independent review of administrative law and contributions from across the sector, including the judiciary.

The same cannot be said of these new clauses. In fact, the majority of experts and the Government themselves rejected some of the very measures they propose. For example, the changes to the disclosure duty in new clause 5 were considered but ultimately rejected by the independent review of administrative law. The Government agreed at the time that the reforms were unnecessary.

The new clauses try to address significant, complex areas of law in an overly simplistic way, and many of the apparent problems these new clauses seek to resolve are more complicated than the proposals seem to believe or understand. The rules on evidence disclosure, for example, have developed so that disclosure is tailored in each case to ensure that justice is done, whereas the new clauses take a blunt hammer to this sophisticated scheme. Unfairness is therefore inevitable.

The solutions are blunt and may lead to unintended consequences. Although several of the new clauses have been found to be out of scope, they amount to an attack on our constitutional balance. The result would be a great reduction in judicial protection, the disempowerment of aggrieved citizens and a Government who are unacceptably insulated from scrutiny.

Dr Caroline Johnson (Sleaford and North Hykeham) (Con)

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The hon. Gentleman is talking about constitutional balance, as did my right hon. Friend the Member for South Holland and The Deepings. The important question is: who is ultimately in charge of making the laws of the country? Parliament has the right, given by the electorate, to decide the law. The principle of the judgment said that should be limited by the judiciary in some cases, which throws up an important constitutional question that we need to look at.

Andy Slaughter

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Absolutely. Parliament is supreme and can will what it likes. That is very clear. Where the balance lies is what is in dispute here. The question is the appropriate role of the judiciary, which is exactly how the doctrine of judicial review has developed.

Dr Johnson

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With respect, that point is not in debate. What Lord Carnwath said is:

“In all cases, regardless of the words used, it should remain ultimately a matter for the court to determine the extent to which such a clause should be upheld, having regard to its purpose and statutory context, and the nature and importance of the legal issue in question; and to determine the level of scrutiny required by the rule of law.”

What I understand is being said—the hon. Gentleman can correct me if I am wrong—is that in some cases the legislature does not have the right to pass particular laws.

Andy Slaughter

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No, and even the vindaloo version—the full Ekins version—does not attack the doctrine of judicial review. It is saying that the courts sometimes resolve matters procedurally and sometimes, in relation to specific judgments, the court has got it wrong and it is Parliament’s job to overrule, which Parliament is entitled to do. At the end of this legislative process, Parliament will have made those decisions. What we are debating now is what is or is not appropriate. Specifically, we are debating two discrete issues. The first is the decision in the Privacy International case against the Investigatory Powers Tribunal and whether an ouster should be imposed, and the second is about rather more widespread issues to do with disclosure and witness evidence. I am perfectly open to arguing those issues, but the point is that we happen to disagree: these measures are wrong, and that is what we are going to debate this afternoon.

Let me talk more specifically about new clause 3. The new clause would effectively overturn the decision in the Privacy International case by excluding judicial review of the Investigatory Powers Tribunal subject to a number of limited exceptions that broadly, although not exactly, mirror those in clause 2. That means that judicial review would be excluded except where the High Court must consider whether the tribunal had a valid case before it; was properly constituted to hear the case; or acted in bad faith, with actual bias, corruption or some other fundamental procedural defect.

As I have said, this would insert a second ouster clause in the Bill and would be a concerning addition to the restriction of Cart judicial reviews. The new clause includes similar exceptions—bad faith, fundamental procedural defect and so forth—to the ouster in Cart, but crucially they are even narrower than those in clause 2, in that the exception of where the court has acted

“in fundamental breach of the principles of natural justice”

has been removed. The more restrictive exception of where the court acts in a way

“that constitutes a fundamental procedural defect”

has been added. The trend suggested is extremely concerning and risks having a serious impact on the ability of individuals to retain redress, not to be subject to unlawful exercise of power, and to hold the Executive to account.

The first thing to note is that there is immediate uncertainty around those exceptions and how they might operate. There is already a problem with the Cart ouster in the main section of the Bill, and I have spoken at length about that in previous sittings. That uncertainty would only be multiplied by this new clause.

Judicial review is an essential constitutional remedy, and attempts to introduce and proliferate ouster clauses, as this new clause seeks to do, risk undermining the UK’s constitutional framework and the protection against abuses of Executive power. Judicial review is generally available only where there is no other recourse to an alternative remedy. The effect of ouster clauses is therefore often to shut down all routes to challenge a decision, even if the decision has been based on a misinterpretation of the law.

Furthermore, judicial review is an integral part of the UK constitution based on parliamentary sovereignty, ensuring that there is a means to address injustices and abuses of power. It exists separately and in addition to the Executive’s political accountability to Parliament. Ouster clauses risk undermining the effectiveness of judicial review as a means of legal scrutiny of the Executive. No matter how unpopular the cause or the claimant, the rule of law still applies and the Executive should not be able to go beyond their legal limits without the potential for accountability in the courts. In fact, it is precisely for such claimants that judicial review is so crucial.

Sir John Hayes

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I rise to sort of correct the hon. Gentleman but not in an antagonistic way. He will understand that this new clause—and, indeed, the Bill—do not supersede section 67A of the Regulation of Investigatory Powers Act 2000, which does indeed say that the tribunal can be challenged on a point of law. Contrary to his argument, there remains in existing legislation an additional safeguard if the tribunal acts in a way that is contrary to proper legal practice, and a point of law is the ground for an appeal.

Andy Slaughter

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I am grateful for that intervention. I will come in a few moments to the powers of the Investigatory Powers Tribunal, so let us see whether that satisfies the right hon. Gentleman.

In relation to the ouster in clause 2, I spoke about judicial review’s role in ensuring good and lawful administration, but as that issue has arisen again I wish to emphasise the point in this new context. Judicial review is an incentive to maintain high standards in public administration by public bodies, because the possibility of judicial review motivates decision makers to ensure that their decisions are lawful. Ouster clauses such as this one remove such motivation and, coupled with the removal of the means through with such decisions could be challenged, risk a decrease in the quality of Executive decision making.

Decisions and guidance from the courts can also help to improve policy development and decision making in Government. Judicial review provides the opportunity to bring to light legitimate concerns about a public body’s processes and decision making, and decision making in Government. Indeed, judicial review provides the opportunity to bring to light legitimate concerns about a public body’s processes and decision making and then also gives guidance on improving the processes in the future and encouraging good governance.

The same applies to the Investigatory Powers Tribunal. The decisions of the Investigatory Powers Tribunal relate to potentially very significant Executive powers in the area of surveillance and privacy rights. In this context especially, the risk of a breach of the fundamental rights of individuals is high. It is therefore crucial that Parliament has sufficient time to carefully consider the consequences of restricting judicial review in this context, and this last-minute amendment does not afford that.

Fundamentally—regardless of what anyone thinks about the merits of the Privacy International case—this is not the way to go about amending it, or even thinking about amending it. Parliamentarians will be asked to vote on what is in effect a very significant legal change, without any real appreciation of the possible effects and consequences and, as above, without the benefit of expert input through consultation and parliamentary examination. A provision such as this should be the headline measure in any Bill; it should be considered and debated seriously and properly; and anyone voting on it should have a full understanding of the issues. It should not be introduced as a last-minute addendum to an otherwise unrelated set of measures concerning judicial review remedies. This new clause as drafted will generate serious uncertainty.

There is also a substantive argument here. In the Privacy International case, the Supreme Court essentially held that it is very difficult for the Government to completely close off judicial review—in this case, concerning decisions of the IPT. The Government should be very careful about reversing that decision: the immediate consequence would be to close off judicial review. If it is thought that the Privacy International decision should be revisited in the future, it should be ensured that parliamentarians are fully aware of any consequences of doing that, and perhaps some middle-ground solution that preserves access to justice could be tried.

The amendment takes a sledgehammer to what should be a carefully crafted and sensitively considered issue. That, in my submission, is not the appropriate way to do good law making.

Tom Hunt

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I will keep my remarks fairly brief; I see myself very much as a secondary signatory to these amendments from my right hon. Friend the Member for South Holland and The Deepings: my much wiser, senior colleague. However, at one point last week I did think that I would be spearheading these particular amendments myself. Fate has meant that I have assumed a less significant role today.

Most of the comments that I would like to make are in relation to new clause 5, so I will hold off from making those comments now. All I will say is this. I take the point that new clause 3 is significant and Parliament needs more time to look at it. That was not the case when the change occurred after the Privacy International case. Actually, something very significant happened there. There was a major change in relation to the powers tribunal, its role and the role of judicial review in reviewing its decisions, and Parliament had no say at all in supervising that or debating it. I would be grateful if the hon. Member for Hammersmith let me know whether he agrees with my view on that. If he is concerned that Parliament might not have more time to debate the significant change suggested now, surely he would consider it inappropriate for Parliament not to have had a role back when the role of judicial review in relation to that tribunal changed so significantly.

I think that there are two debates here. If we are asking our intelligence services to carry out incredibly unique and peculiar work and we have to have a tribunal that is very specialist in reviewing and taking into account work that they do, there is one debate there, but there is a second debate. Even if someone does not agree with that and they think that there should be a right of review, surely it is only right and proper that Parliament should be in a place to debate and decide on that. It should not just happen; the court should not just decide for itself that this is the right thing to do.

As I said, I am keeping my comments brief. I will return on new clause 5, on which I have more points to make.

Anne McLaughlin

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I will be brief. Basically, I agree with the hon. Member for Hammersmith and share the concerns about this being the second ouster clause in the Bill. I feel it is a bit early to use the legal framework to oust Cart already.

I hope the Government will wait for the Bill to be enacted before trying that. I agree that the new clause is not the way to go about amending this. Such a provision should be a headline measure in a Bill; I think the right hon. Member for South Holland and The Deepings—that is a lovely constituency name—said himself that this would ordinarily be in a new Bill. I understand the argument that there is not an awful lot of time for new legislation, but I think this measure needs to be debated seriously and properly. Parliament needs a full understanding of the issues, following a full consultation.

I would argue an awful lot harder and longer than that, first, if I thought the Government were about to support the new clause, and secondly, if I thought anybody would listen. [Interruption.] I do not mean if they would listen to me; I mean if I thought we would ever win a vote in this place. The Government should be very careful in reversing that decision and should think about the consequences of it. I agree with everything that the hon. Member for Hammersmith has said.

Sir John Hayes

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I am grateful to the hon. Lady for being so kind to me and my constituency, and my constituents by extension. It is clear that the Attorney General supports the new clause because she drew particular attention to the character of the Privacy International case in her recent speech on these matters. Inasmuch as she is the most senior Law Officer of the Government, whatever the Minister might say today—I appreciate that he may want to hold fire, to some degree—it is clear that the Attorney General understands and supports my argument.

Anne McLaughlin

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I am not sure whether the right hon. Gentleman’s intervention was aimed at me or the Minister. If he was aiming it at me, all I will say is that it would not be the first, second, third, fourth or fifth way in which I disagreed with the Attorney General in her reckoning. I will sit down and allow others to speak.

James Cartlidge

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This has been a good debate on the new clause, which is interesting in many ways from a constitutional point of view, both theoretically and practically. My hon. Friend the Member for Ipswich does not have a secondary role. I am his constituency neighbour. He has a fantastic role that he is fulfilling as a brilliant constituency MP. It was a great honour to campaign with him in the general election, and I see a return on that investment, as he is a vocal spokesman for people of all political shades in the fine county town of Suffolk.

The hon. Member for Glasgow North East may have, shall we say, come here through the use of a crutch, but she should not downplay the role that her speeches could play. Of course we listen. We listen to all sides. Indeed, I have listened intently to the debate on the new clause. I will say one thing to the hon. Member for Hammersmith: although I completely understand where he was coming from, and his points made political sense, he appeared at one point to suggest that it almost was not necessarily relevant to debate the new clause. The new clause is about judicial review, and we know the first two words of the Bill’s title. In fact, we just agreed to the clause on the short title, which includes the phrase “judicial review”; I think my speech on that was the shortest I have ever made, by the way.

My right hon. Friend the Member for South Holland and The Deepings made some important contributions, which I am grateful for. I hope he received the letter we sent him, which I believe has been circulated to other Committee members, containing the response on the important matter of the most vulnerable children—those in care. I hope that reassures him on the safeguards. Secondly, on the make-up of the coronial stakeholder group in administrative justice, which introduces a broad umbrella because of the nature of the engagement, I hope that the letter has persuaded my right hon. Friend. I am therefore tempted to eke out the general thread of my argument and hope to encourage him that I am someone who is generally able to persuade people of things. The sword of Damocles that he holds over this speech with the threat to vote can be dealt with.

I should pay tribute to my right hon. Friend for his former role as Security Minister, which he referred to. He was involved in important proceedings when our country, as was proudly illustrated this morning, faced great threats, not least terrorist threats. He was also a Transport Minister, and I met him to discuss roads in my constituency. The essence of his argument was that the Bill does not go far enough, so he wants to debate important probing amendments. I will come back to that wider point.

On the specifics, as has been explained, new clause 3 would amend section 67 of the Regulation of Investigatory Powers Act 2000 by replacing the wording in subsection (8) and adding three additional subsections. Subsection (8) was originally drafted as an ouster clause—we have already debated ouster clauses in relation to clause 2— to ensure that certain decisions of the Investigatory Powers Tribunal would not be subject to judicial review by the High Court. A right of appeal on a point of law was later introduced by the Investigatory Powers Act 2016 and is set out in what is now section 67A.

The tribunal was intended to be the highest authority concerning matters such as the conduct of intelligence services. However, a 2019 judgment of the UK Supreme Court rendered the ouster clause of limited effect in what we have all referred to today as the Privacy International case. The Supreme Court found that while subsection (8) was effective at excluding judicial review of IPT decisions on their merits or jurisdictional decisions involving issues of fact, it did not have the effect of wholly ousting the High Court’s supervisory jurisdiction.

The new clause would amend the ouster clause in section 67 by clarifying and adding to the text in that section so as to meet the objection of the Supreme Court in Privacy International. That is an interesting idea, and I am sure my right hon. Friend is aware that the Government’s consultation, published in March, expressed concern around the uncertainty that exists as to whether, or in what circumstances, ouster clauses will be upheld by the courts. We therefore consulted on options to try to add some clarity with a broad framework for the interpretation of ouster clauses, but, having reflected on the many useful responses we received, we concluded that although our intention was to add clarity, the effect may in fact be to muddy the waters yet further.

As an alternative approach, we are pursuing the ouster clause in clause 2, which is designed to overturn Cart, seeks to learn the lessons from unsuccessful ouster clauses of the past, and is drafted in a clear and explicit way. We have been open in saying that if that approach is successful, we may consider whether it can be used as a model for ousters in other areas, where it is appropriate to do so. At least conceptually, I see the link between ousting the High Court from reviewing permission to appeal decisions of the upper tribunal and ousting the High Court from reviewing decisions of the Investigatory Powers Tribunal. They are both essentially concerned with which court ultimately should have the final say on an issue.

Sir John Hayes

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I am going to give the Committee the benefit of my further wisdom in a few moments, but on that particular issue, the point about the Investigatory Powers Tribunal is that it is a specialist court, and the intention of the House in establishing that court—the Minister made reference to the Regulation of Investigatory Powers Act 2000 and the Investigatory Powers Act 2016; the 2016 Act was the one that I took through the House, as he knows—was to indicate that had Parliament decided that the tribunal’s important work, which essentially gives authority as well as supervision to the security services, should not be questioned in an ordinary court. The Supreme Court countered Parliament’s will in that respect. That is why this is so significant. It draws into question whether the Supreme Court might do the same in respect of other primary legislation that has ouster clauses in it, which is why it is important to act now in respect of this Bill.

James Cartlidge

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I pay tribute to my right hon. Friend’s legislative prowess in taking that Bill through the House at the time. It is precisely because of his point that in paragraph 55 of our consultation response document, published in July, the example we give of a case where we may look at using a Cart-like model of ouster clause in future is exactly this one—the Investigatory Powers Tribunal. We have made clear that we are looking at that. The Government are not closed-minded to the possibility of going further on judicial review. In a recent interview with The Sunday Telegraph, the Deputy Prime Minister spoke of the importance of restoring power to Parliament, while recognising the need for reform of judicial review to be an iterative process. I am sure he will have heard today’s debate and the many forceful points made, but the Government will keep an open mind on whether that tribunal might be a candidate for an ouster clause in future.

Our focus in the Bill is to tackle the two particular issues identified by the independent review of administrative law: the efficiency of Cart JRs and the lack of remedial flexibility in judicial review. I know my right hon. Friend the Member for South Holland and The Deepings is sympathetic on this point. There is a good reason for prioritising Cart—we have a judicial backlog, and the resource implication of it is immediate and credible. [Interruption.] My right hon. Friend says from a sedentary position that he understands. It will be important to ensure that before an ouster clause is proposed in any particular context, careful thought is given to what will be achieved by doing so and to considerations germane to that context. One size does not necessarily fit all, but we are open minded.

A key point I wanted to communicate is that my right hon. Friend invited me to become a star. His invitation to stellarhood is one I cannot begin to match, but I will at least attempt to do so by offering him an invitation to attend the Ministry of Justice to discuss with officials present some of these ideas in depth—especially given his expertise from his time as a Minister, talking in that neat language of Ministers and officials who know their Bill—and to talk through some of the technicalities. We do see the merit in what he says; it is more a question of timing.

In summary, my right hon. Friend says we do not go far enough; I would say that we go this far at this time. I hope that reassures my right hon. Friend and other colleagues that this is an issue to which the Government are already alive and to which I am sure future consideration will be given. But for now, for the specific purpose of the Bill, I respectfully request that he withdraw his new clause.

Sir John Hayes

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When I said the Minister could become a star, I should have said a brighter star, because he has already shone in his response, particularly his generous invitation to meet with and discuss these matters with his officials in his Department. I take his point, of course, about the characteristics of the Bill, the need to address Cart in particular, and its relationship to the backlog in the courts. However, the Bill is about principle as well as practice. There is a practical reason for introducing the Bill, but a principle underpins it, which he has articulated a number of times during our deliberations: it is not right that the court system should be gamed to frustrate the will of the House.

My hon. Friend the Member for Ipswich spoke about his constituents wanting to see the will of the House as a manifestation of their will being delivered. The disturbing rise in judicial activism and judge-made law raises fundamental questions of parliamentary sovereignty. Mr Rosindell, whether you are or are not convinced of that I do not know, as you are the impartial Chair in our affairs, but the witnesses who gave evidence to the Committee are certainly convinced. Professor Ekins said that the Privacy International case did constitute a “very serious attack” on some fundamental questions of the constitution. He stated:

“The rule of law requires respect for the law, which includes parliamentary sovereignty and the stability of statute”.

In oral evidence, Sir Stephen Laws said:

“If the courts are deciding judicial review decisions that set the rules for future hypothetical cases, they are usurping the legislative function.”––[Official Report, Judicial Review and Courts Public Bill Committee, 2 November 2021; c. 9-15.]

That is pretty damning criticism of Privacy International and other recent cases.

There is an argument that at that time there was a particular group of Supreme Court judges—I am hesitating so as to choose the right words—who took eccentric decisions, and that things have now returned to normal, but that is not good enough. As the Attorney General said in her recent speech,

“the mould has been broken.”

Precedent was set, and that is the problem with ouster clauses. As the hon. Member for Hammersmith will know, other Acts of Parliament, including the Intelligence Services Act 1994, Security Service Act 1989 and the Police Act 1997, contain ouster clauses that could be challenged on the basis of the Privacy International case.

Tom Hunt

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Does my right hon. Friend agree that the key issue in relation to new clause 3 is the Investigatory Powers Tribunal, the complexity of the things it will deal with, and the complexity of the roles of the organisation and people it is overseeing? That complex debate should be dealt with only by Parliament. We are best placed to have that debate and to come to the right conclusion. Decisions about whether judicial review will apply to that or not should be for this place, not for the judiciary.

Sir John Hayes

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I agree. Indeed, when I proposed the Investigatory Powers Act 2016, to which the hon. Member for Hammersmith referred and which built on the Regulation of Investigatory Powers Act 2000, which Privacy International specifically dealt with, there was a genuine spirit of co-operation across the House. I worked closely with my then shadow, who went on to become Leader of the Opposition. I often say to him these days, “You learned your trade under me.” In fact, I think he said that to me, but we worked closely on those matters and it was detailed scrutiny, as my hon. Friend has just described, that led to that Bill becoming an Act.

Indeed, we undertook extensive pre-legislative scrutiny, and one of the people I appointed to that task is now Attorney General. The scrutiny, under Lord Murphy, looked at the Bill in some detail, as the hon. Member for Hammersmith suggested, and there were long debates in the House and in the other place before it became law. As I emphasised earlier, we were determined that there should be proper safeguards.

The essence of this, Mr Rosindell, is that in these difficult, delicate and challenging matters of security, Parliament has to legislate—I would not say regularly, but as often as necessary—to allow our security services and the forces of law to stay ahead of those who wish to do us harm. The problem is that the capabilities of malevolent elements are dynamic, so the legal powers of those with the mission to keep us safe must match that dynamism. That is always challenging to Parliament, because there is a balance to be struck between the maintenance of law and the protection of liberty. That debate is the context for many of these considerations. It is not the place of the courts of make up the law as they go along, but that is exactly what has occurred.

I referred to the Attorney General earlier. She could not have put that case more plainly in the speech she made a few weeks ago at Cambridge University:

“The Supreme Court’s judgment in the case of Privacy International was also profoundly troubling for a number of reasons. A decision by Parliament to limit the judicial review jurisdiction of the Courts should only be taken after the most serious consideration by the legislature. And there may well be circumstances where Parliament does consider that to be appropriate. In such circumstances, the Court should be very slow to deprive legislation of its proper meaning”.

That is essentially what the Court did in the case of Privacy International. It deprived legislation of its proper meaning. The most generous way to describe it is that the Court interpreted the decision made by Parliament in what I regard as a perverse way, and, in the words of the Attorney General, a “profoundly troubling” way.

The new clause, which the Minister will know is in scope—it is not for me to gauge that; our expert Clerks judged it, so there is no doubt about whether it is appropriate to add it to the Bill—would address that concern about creeping judge-made law in what is, as my hon. Friend the Member for Ipswich said, a very sensitive area. I am grateful to the Minister, who made a generous offer and rightly drew attention to his helpful letter on issues raised by me and other hon. Members in our earlier consideration. I am particularly grateful to him for fully taking into account the case that I made on behalf of disadvantaged court users; his letter is most welcome in that respect. With the offer that he made of further discussion, the open-mindedness that he has shown and his clear understanding of why the new clause was tabled, I will—hesitatingly and to some degree reluctantly—beg to ask leave to withdraw the motion.

Clause, by leave, withdrawn.

New Clause 5

Evidence in judicial review proceedings

“(1) Unless there are compelling reasons to the contrary, no court shall—

(a) permit oral evidence to be elicited in judicial review proceedings; or

(b) order public bodies or any person exercising or entitled to exercise public authority to disclose evidence in anticipation of or in the course of judicial review proceedings,

(2) In relation to any judicial review proceedings, or in anticipation of any judicial review proceedings, in which a public body or a person exercising or entitled to exercise public authority argues, or indicates its intention to argue, that—

(a) the proceedings concern a matter that is non-justiciable, or

(b) that an enactment excludes or limits judicial review,

(3) In subsection (2), “evidential duty” means any principle of law or rule of court touching the identification of relevant facts or reasoning underlying the measure or other matter in respect of which judicial review is sought, or any order of the court to adduce oral or other evidence.

(4) Nothing in subsection (2) or (3) affects an evidential duty that may arise in relation to judicial review proceedings other than in relation to a measure or other matter that is argued to be non-justiciable or to be excluded from judicial review by legislation.”—(Sir John Hayes.)

Brought up, and read the First time.

Sir John Hayes

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I beg to move, That the clause be read a Second time.

This new clause deals with evidence. Again, it has been deemed by the Clerks to be in scope and it would therefore be an appropriate addition to the Bill. It is very much in the spirit of my previous remarks.

It is important to understand that the new clause has two parts. Subsection (1) aims to limit the extent to which judicial review proceedings involve the testing of evidence and a resolution disputing questions of fact. The traditional view is that judicial review proceedings are an inappropriate forum in which to solicit or test evidence because it is a supervisory jurisdiction that should focus on questions of law rather than questions of fact. That was its well-understood basis for a considerable period of time.

As well as the changing character of the courts’ role in relation to the legislature, there has also been a change in the application of judicial review in respect of evidence. The courts ought to be focusing on the legality of decisions taken and whether it stands up to appropriate levels of scrutiny. That is the business of a judicial review. Allowing disclosure and cross-examination could lead to litigation becoming an exercise whereby new material is introduced on a fishing expedition. Rather than testing the proper exercise of powers, as judicial review is supposed to do, it could lead to the whole character of a case being revisited and perhaps the introduction of new evidence that was not pertinent to the original decision or even known to the original decision makers. That is not its role, and the Bill is a perfect opportunity to address that distortion of its original character and purpose.

As the Minister has told us a number of times, the Bill aims to tighten the judicial review process and essentially re-establish its pertinence, salience and purpose. The new clause would do exactly that. The change in practice has arisen partly because of overarching legislation such as the Human Rights Act 1998. There is a case for the wholehearted reform of the Human Rights Act, or its abolition altogether. However, this is not the place to have that debate—although, I understand that the Lord Chancellor has spoken on those matters and is considering addressing them in the House in due course. The point to be made here and now is that the Act has spilled over into judicial review decisions. It is clear that in recent years judicial review using the Act has become an opportunity to have a much wider debate and discussion than this legal mechanism originally intended—the original purpose was to check the correctness of decision making.

Subsection (2) of new clause 5 addresses the problem that arises when judicial proceedings are used to force public bodies to disclose information even in contexts where the public body argues that the law forbids judicial review. If a matter is non-justiciable, or if legislation ousts judicial review, the public body will not be compelled to disclose evidence simply because litigation is threatened or initiated. The clause will require courts to decide whether the matter is justiciable or whether legislation permits judicial review before the public body will have any duty to disclose information relevant to litigation.

New clause 5 would not stop any litigation that should proceed from proceeding. Those are cases in which the matter is justiciable and no ouster clause forbids judicial review. It would require courts to make decisions in the right order, avoiding the risk that was apparent in the Supreme Court’s Prorogation judgment: that the courts are led astray by the evidence before them rather than focusing squarely on the question of law that they should decide. The Miller judgment was exceptional and, in my judgment, perverse. It is fundamental to our constitution that the appointment of Ministers, the Dissolution of Parliament and, by extension, Prorogation are matters for the Executive and not the courts.

One might argue that when the Supreme Court was established—it was a sorry day, Mr Rosindell, but you will not allow me to debate that at great length here, and nor will I—this was almost bound to happen: that the very existence of the Supreme Court would encourage those who sit on it to extend their powers into matters of what the Attorney General called “high politics”. That apart, the Prorogation judgment was a naked example of the courts making a constitutional decision in a way that is appropriate only for this elected House, our Parliament—both because we are answerable to the people and because, as I said earlier, our legitimacy derives from the people. This is about proper process, but it touches on the broader issue of the respective roles of the judiciary, the Executive and the legislature—the separation of powers to which I referred in an earlier sitting.

The Minister will again, I hope, recognise that the new clause is very much in the spirit that he set out when he made it clear that the Government want judicial review to be what it was always intended to be and has been for most of its life, rather than something very different, which is what it has become. With that in mind, I hope that he will give the new clause, which is significant but not in any way out of keeping with the Bill’s intent, a fair wind. Rather than, as last time, offering me a meeting—although I was very grateful for that meeting—I hope that this time he will say that the Government accept it, and will at a later stage introduce a Government amendment.

I do not necessarily expect the Minister to accept the new clause as drafted; he will want his draftsmen to take a close look at it, and often parliamentary draftsmen are able to a better job than I ever could, even with the assistance of my cerebral hon. Friend the Member for Ipswich. The Minister may want to look at the detail of this, but I hope that he will at the very least give it wholehearted consideration, perhaps with a view to the Government coming back with their own thoughts on how we might look at the issue of evidence, and how it is properly used in judicial review.

Andy Slaughter

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I give full credit to the right hon. Gentleman, who has taken the new clause, important and substantial though it is, and turned it almost into a Queen’s Speech. We will have a second judicial review Bill, a repeal of the Human Rights Act 1998, and then a repeal of the Constitutional Reform Act 2005. The Minister will be a very busy man in the new year.

Sir John Hayes

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It is only a matter of time, Andy.

Andy Slaughter

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We will see. Unfashionably, I will confine my comments to new clause 5, which restricts disclosure by public bodies and the use of oral evidence in judicial review proceedings to circumstances where there are “compelling reasons”. In addition, under subsection (2), if a public body argues, or indicates its intention to argue, in relation to or in anticipation of any judicial review proceedings, that the proceedings concern a matter that is non-justiciable or that review is excluded by an enactment, the public body will not be subject to any evidential duty at all until a court regards the matter to be reviewable.

Subsection (1) relates to disclosure orders, which are already limited by the courts. Additional legislative provision is unnecessary and may reduce clarity and cause unnecessary litigation. Oral evidence is rarely used in judicial review proceedings. However, the courts retain a discretion to permit oral evidence where it is considered necessary to do so. Judges use that discretion appropriately and frequently deny requests to adduce oral evidence unless it would, in fact, be necessary for the case at hand. Applications for oral evidence can be made by claimants and defendants in judicial review claims, and there is no indication that the impact on public authorities has been thought through. The system works well, generally respecting the unique nature of judicial review while allowing parties—both claimants and public bodies—to adduce oral evidence in rare cases where it is necessary to do so. There is no indication that there is a problem with the system that the proposals seek to address.

The new clause goes beyond oral evidence and imposes a bar on judges ordering disclosure of evidence. There is no formal disclosure duty on parties in judicial review proceedings, unless the court orders otherwise. Such orders are already rare and there are many examples of courts refusing applications for disclosure on the basis that they are not necessary. Indeed, the court will not countenance fishing expeditions, where an applicant for judicial review may not have a positive case to make against an administrative decision and wishes to obtain disclosure of documents in the hope of finding something to use to fashion a possible challenge. Where the disclosure power is used by courts, however rarely, it is vital: a judge will only ever order disclosure where it is necessary for the fair resolution of the case.

It is unclear what adding a requirement of “compelling reasons” for ordering disclosures of evidence would do to the existing position. The current test, as set out by Lord Bingham in Tweed v. Parades Commission for Northern Ireland, is:

“whether, in the given case, disclosure appears to be necessary in order to resolve the matter fairly and justly.”

On one reading, that would be just an alternative translation of the existing position: a “compelling reason” for adducing oral evidence would be that it is “necessary” to do so. If that is the case, the proposed additional clause is a clear waste of time. However, if it is intended to be a stricter test to raise the threshold for which evidence is admissible, that is problematic in that it would operate to preclude disclosure of evidence required to resolve the case fairly and justly. That would clearly be to the detriment of the parties and the wider public, and therefore should be resisted.

It is also important to note that disclosure of evidence benefits not only the claimant but often the public body, by allowing the defendant public body to show that the decision taken was lawful. Defendant public bodies may also make applications for disclosure and/or oral evidence. Subsection (1) would reduce the ability for claimants to obtain disclosure, which is crucial for claimants to be able to bring a case as well as for defendants to be able to defend it.

Sir John Hayes

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I understand that the hon. Gentleman is setting out what the new clause does, but he will understand that at its heart is the determination that judicial review should look at the specifics of an individual case, rather than a systemic consideration of the whole administrative system. In recent times, because of the courts’ willingness to draw on all kinds of evidence, they have tended to broaden the scope of their work in a systemic fashion. What does he think about that and what should we do about it?

Andy Slaughter

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With respect to the right hon. Gentleman, I do not agree that that is what is happening. Even if he had a point there, I am trying to make the point, by looking at the changes that his new clause would make, that there are already safeguards in the system to prevent that and that the rules are tightly drawn in relation to evidence and disclosure. The courts do have discretion, but they use that appropriately and reservedly.

Any limitation of the disclosure of evidence, as well as oral evidence, beyond the current test risks undermining the effectiveness of judicial review proceedings for all parties. The current form of judicial review, which has limited disclosure requirements on the parties, works only because the parties are subject to duties of candour. In many respects, the disclosure obligations, where parties must submit all relevant evidence and information relating to the case to the court, ensure that the duty of candour is complied with. In the vast majority of cases, both parties comply fully with the duty of candour, but on the rare occasions when they do not, the judge’s disclosure powers can be used to ensure proper compliance.

In cases where the duty of candour would be limited by the proposals in subsection (2), which I will come to, the basis for limited disclosure requirements falls away. The combination of subsections (1) and (2) may mean that a claimant in a case is faced with the inability to obtain any disclosure at any point from a public body.

In effect, weakening those disclosure powers weakens the duty of candour, which is a vital aspect of fairness in judicial review. If public bodies feel that they do not need to comply with the duty, it will severely weaken the position of claimants, contribute to an inequality of arms in judicial review proceedings and risk completely barring, in practice, the ability for the claimant to bring a judicial review. For all sorts of reasons, including funding, the tight restrictions on bringing claims and the difficulties of bringing claims, there are already substantial problems for any claimant in beginning judicial review proceedings.

Subsection (2) would enable a public authority to effectively disapply the evidential duties, including the duty of candour, by indicating its intention to argue that the matter is not justiciable. That would make many cases completely un-triable. As I have said, the current form of judicial review, with limited fact-finding and disclosure requirements, works only because the parties are subject to a duty of candour. The duty requires a “cards on the table” approach and, as has been noted,

“the vast majority of the cards will start in the authority’s hands”.

For claimants to have the ability to get over the starting line and bring judicial review proceedings, the defendant body must be subject to the duty of candour. The duty ensures that all relevant information and material facts are before the court, and that any information or material facts that either support or undermine their case are disclosed.

As the “Administrative Court Judicial Review Guide” recognises, compliance with the duty of candour is “very important”. It helps to resolve matters efficiently and effectively. By requiring both parties to undertake full disclosure of relevant information early on in proceedings, it allows for a proper assessment of the merits of the case. That can help public bodies show claimants early on evidence that the decision was taken lawfully, which can lead to an early settlement, withdrawal of the challenge or at least the narrowing of the issues in dispute. That avoids substantial unnecessary costs and use of court time.

New clause 5 should have no place in the Bill. Subsection (2) would enable public authorities to disapply the duty of candour where they indicate their intention to argue that the matter is not justiciable. When this is combined with increased difficulty with accessing evidence through disclosure orders, set out by subsection (1), claimants will be denied access to evidence required to advance their case, making many cases unworkable. I therefore hope that the Minister will also resist the new clause.

Tom Hunt

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It is a pleasure to grace this Committee again through a contribution, and to support my right hon. Friend the Member for South Holland and The Deepings on new clause 5. It is obviously not related to new clause 3. We did attempt to table other new clauses, but we were unsuccessful because they were deemed to be out of scope, but many of those new clauses were, in fact, not dissimilar to or disconnected from new clauses 3 and 5.

In terms of whether different Lord Chancellors are mild korma or vindaloo, I am usually a korma man, but when it comes to review, I am perhaps more vindaloo, because I think that we do need some significant changes in this area.

I very much welcome the Bill, which, with or without these new clauses, is a significant step in the right direction. I have been pleased to sit through all our sittings in support of the Bill, and I think that the Minister has led proceedings very effectively. It has been quite interesting, because although I do not profess to be a lawyer—I am not a trained lawyer or professional—I am an elected Member of Parliament who cares about my constituents and my constituency, but also about this country and the relationship between the Executive, the legislature and the courts, which is vitally important. I make no apology for commenting on these matters and getting involved, because I think it is very important that elected Members of Parliament do so.

We are very lucky to have our judiciary, and the rule of law in this country is respected all over, but some of these figures can be remarkably prickly—and I have noticed that many seem invariably to have the EU flag on their Twitter profiles. I think there is almost a view that elected Members of Parliament are knuckle-draggers who are not entitled to have a view on a lot of these issues. Well, I disagree. I think that when it comes to matters such as sentencing and the operation of the courts, we as elected Members of Parliament, regardless of our specific views, should absolutely be confident to air them and should not be intellectually intimidated by certain individuals.

I sympathise with the broader view about judges assessing law and procedure, rather than getting sucked into contested facts, and about how evidence sessions can sometimes draw them away from their core function and into dangerous waters. There are many cases. The Adams case is connected to new clause 6 so we will not discuss that, but there is an obvious connection between it, the Miller case and the Privacy International case, which we discussed earlier, and that is the creeping role of the courts beyond their brief and scope, and I think that that has damaging consequences. In the Adams case, in terms of the debate on whether it is enough for a Minister or a Secretary of State to make a decision, I really struggle to agree that it is for judges to decide what is appropriate against established Acts of Parliament. That does not make any sense to me. I think that clarity in this area—and Parliament, through legislation, clarifying the relationship between the Executive, the legislature and the courts—is vitally important.

I go back to this point. I do not see anything that I or my right hon. Friend the Member for South Holland and The Deepings have said as being anti the judiciary or the rule of law. We appreciate that they are vitally important and how skilled and learned those individuals are. But I think we were all quite disturbed by some of the Brexit debates. We had the Miller cases in relation to triggering article 50 and Prorogation, and that Daily Mail front page with members of the Supreme Court under the headline, “Enemies of the People”. I think that many of us were disturbed by that, and that is what we want to avoid going forward. We do not want that to be the case again. The danger is that unless there is great clarity about what is and is not appropriate for the courts to get involved in, that could happen again, and we do not want that. This is not about us pointing at the judiciary and the courts and blaming them for any of this. We need to be conscious that we need a clear framework that gets that balance right.

I will leave my comments there. It has been a great pleasure to be part of this Bill Committee, which is now coming to a close, and to support this Bill and my right hon. Friend the Member for South Holland and The Deepings.

Anne McLaughlin

- - Excerpts

Encouraged by the Minister, I have decided that I will say a few words, even if none of them are original. Most of what I have to say is in agreement with the hon. Member for Hammersmith, but it is good to put the opposition of the SNP on the record.

What would this new clause do? Unless there are compelling reasons to the contrary, this new clause would prohibit the use of oral evidence in judicial review and would also prevent courts from ordering any public body to disclose evidence in anticipation or during the course of judicial review proceedings. As we have heard, oral evidence is already rarely used in judicial review proceedings, but the courts retain a discretion to permit oral evidence where it is considered essential to the case. My understanding is that judges use that discretion appropriately, and frequently deny requests to cite oral evidence unless, as I have said, it is considered essential to the case. I am not aware of any indication that the system has the problem that the proposals seek to address.

I wonder what adding a requirement for compelling reasons would do to the existing position. It could be that that is just an alternative translation of the existing position. One compelling reason for adducing oral evidence would be that it is necessary to do so. If that is the case, the new clause is not needed. If the proposed compelling reasons requirement is seen to raise the threshold for which oral evidence is admissible, I think we should all find that problematic. Judges are already only allowing such evidence when it is considered necessary to do so. The clear result of the proposed change would be that oral evidence that is necessary for the fair resolution of the case would not be admitted. That surely cannot be acceptable to the Minister.

New clause 5 would also bar judges from ordering disclosure of evidence. Again, such disclosure is used only when absolutely essential. Judges order disclosure only when that disclosure is vital to resolve the case fairly. In many respects, the disclosure obligations act as a way of ensuring that the duty of candour is complied with where parties must submit to the court all relevant evidence and information relating to the case. In the vast majority of cases, both parties will comply, but where they do not the judge can ensure compliance by using disclosure powers. Weakening those disclosure powers would, in effect, weaken the duty of candour, which is a vital aspect of fairness in judicial review. If public bodies and Governments believe that they do not need to comply with that duty, the position of claimants would be severely weakened in judicial review proceedings. We should increase access to justice, not make it increasingly pointless.

James Cartlidge

- - Excerpts

It is a pleasure to follow the hon. Lady, who made some perfectly reasonable points. It is disappointing that she did not rise to the bait by entering into the curry-labelling discussion instigated by the hon. Member for Hammersmith. I am not sure that my hon. Friend the Member for Ipswich is a vindaloo—I think he is a phaal. Anyone who googles that will find that it is the hottest curry there is. Maybe my right hon. Friend the Member for South Holland and The Deepings is a phaal as well. It is inevitable, then, that they all think the Bill does not go phaal enough. As a great fan of curry, I generally go for the specials on the à la Cart menu. [Laughter.] That was not a reference to clause 2, by the way.

In new clause 5, my right hon. Friend is probing in his uniquely penetrating way of gaining the Committee’s attention and focusing on some important points. I will try to set out why, although there is merit in what he says, it is not right for this precise moment—perhaps with further work, not least as there may be other potential routes to achieving his end.

The new clause would amend the Bill to include some specific rules relating to disclosure and the duty of candour in judicial review cases. The clause would do three things. First, it would remove the ability of the court to permit oral evidence to be given unless there are compelling reasons to the contrary. Secondly, it would remove the ability of the court to order a public authority to disclose evidence at all, either in anticipation of proceedings or during proceedings, unless there are compelling reasons to the contrary. Thirdly, in cases where a public authority is arguing that the subject matter is non-justiciable altogether or judicial review jurisdiction has been ousted, it would remove any evidential requirement on the public authority until the court has ruled on the subject of justiciability or jurisdiction.

The duty of candour is a common law concept that obliges parties in judicial review proceedings to disclose information relevant to the case. The independent review of administrative law examined that duty when it conducted a call for evidence last year. Legal practitioners and other stakeholders identified issues relating to a lack of clarity surrounding the exact extent and precise nature of the obligations arising from the duty. The independent review concluded that the duty of candour may have previously been interpreted in a way that causes a disproportionate burden on public authorities, and that there would be benefit in clarifying the parameters of the duty. The Government would like to ensure that the duty of candour is not invoked by claimants to rouse political debates or to discover extraneous information that would have otherwise been kept confidential.

I reassure my right hon. Friend and my hon. Friend the Member for Ipswich that this remains very much a live issue for the Government. The difference here, I suspect, is not a question of objective, but of how best to achieve it. The independent review recommended that the issue could be addressed through changes to the Treasury Solicitor’s guidance. Although that is, of course, a matter for the Treasury Solicitor, the advantage to using guidance to address some of the issues that have occurred with the duty of candour in the past is that it can be more flexible and dynamic than legislation.

As I have already indicated, the Government remain open-minded about the possibility of going further on judicial review reform in time. Although my instinct continues to be that any issues with the operation of the duty of candour are better addressed through other means, and not through primary legislation, I will reflect on the arguments that my right hon. Friend has made for a legislative response. We have already discussed the point of the meeting. I am quite clear that that could be wide-ranging and could include this discussion, too. They all fit within the same theme, which he has painted with a broad brush today. I am quite happy to look at it in those terms, but also in more specific terms, particularly with the benefit of officials and so on.

In the light of the complexity of the issues at stake, and the importance of getting the legislation right, I cannot accept my right hon. Friend’s new clause. I hope that, with my reassurance that that the Government will continue to actively consider the matter, he will agree to withdraw it.

Sir John Hayes

- - Excerpts

I am grateful to the Minister for again offering further discussion on these subjects. I am also pleased that he is considering other means to achieve the objectives that I set out. He is right that the independent review addressed these matters and, by the way, did so on the basis that I described: that by taking wide evidence judicial review was rehearsing decisions rather than checking on the exercise of them. Judicial review is about ensuring that, in the exercise of decision making, all has been done properly. It is not about reheating wide-ranging contextual arguments.

The problem with collecting oral evidence in a permissive way is that it is bound to lead to just that. That was identified by Professor Ekins and others, in the evidence that they gave us and beyond. The Minister is right to consider through guidance how that could be altered. Statutory guidance would be a very effective way of doing it, providing that his officials and others are confident that it is sufficient. There is always a balance to be struck between primary legislation and guidance, and we need to be clear that it will be sufficient in this case.

We talked a little about how jurisprudence has moved on, and in particular the Miller case. In the end, the decision of the Supreme Court in that case meant that it, in the words of the Attorney General,

“stepped into matters of high policy in which the UK courts have historically held themselves to have no constitutional role.”

That is a direct quote from the Government’s most senior Law Officer. In the two new clauses, and in those that were not selected because they were deemed not to be in scope, and which I will therefore not discuss, I have tried to make the case that the Bill is very welcome, but it is a korma rather than a vindaloo. It is certainly not a madras. It can be more varied and hotter, to develop the metaphor. I can match the Minister blow for blow in terms of my grasp of Indian cuisine.

James Cartlidge

- - Excerpts

On a point of information, my right hon. Friend must be aware that a madras is technically milder than a vindaloo, but a vindaloo is certainly milder than a phaal.

Sir John Hayes

- - Excerpts

That is true, but I see the Minister as something between the two. He is more of a jalfrezi—spicy, lively and deeply satisfying, in terms of his response to my new clauses at least.

It is worth drawing attention to the remarks of Lord Sumption, who of course commented on exactly these matters in his Reith lecture. Jonathan Sumption is the judge who, perhaps more than any other, set out the proper functions of the courts in relation to Parliament in his Reith lecture, when he said:

“It is the proper function of the courts to stop Government exceeding or abusing their legal powers.”

That is exactly the role of judicial review, by the way. He continued:

“Allowing judges to circumvent parliamentary legislation, or review the merits of policy decisions for which Ministers are answerable to Parliament, raises quite different issues. It confers vast discretionary powers on a body of people who are not constitutionally accountable for what they do. It also undermines the single biggest advantage of the political process, which is to accommodate the divergent interests and opinions of citizens.”

He went on to say in that lecture that it was about developing the right kind of political culture. It is appropriate that the political culture that underpins our deliberations in this place is a means by which views can be mitigated and ameliorated, where necessary, in a way that courts cannot do because of their character and function. I remain of Jonathan Sumption’s view that much needs to be done to put right what the courts have got wrong in recent years, and I stand alongside the Attorney General in her determination to do that.

Although I understand that the Bill is not sufficiently wide-ranging to do all that I want it to do, there is scope for the Government to do more in respect of the new clause and new clause 3. I am grateful that the Minister has implicitly acknowledged that by welcoming further discussion.

On the new clause that stands in my name and that of my hon. Friend the Member for Ipswich—I will just say, as the Minister did, that my hon. Friend is an outstanding Member of Parliament and the people of Ipswich should be proud to have him—I beg to ask leave to withdraw the motion.

Clause, by leave, withdrawn.

New Clause 10

Publicly funded legal representation for bereaved people at inquests

‘(1) Section 10 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 is amended as follows.

(2) In subsection (1), after “(4)” insert “or (7).”

(3) After subsection (6), insert—

“(7) This subsection is satisfied where—

(a) The services consist of advocacy at an inquest where the individual is an Interested Person pursuant to section 47(2)(a), (b), or (m) of the Coroners and Justice Act 2009 because of their relationship to the deceased; and

(b) One or more public authorities are Interested Persons in relation to the inquest pursuant to section 47(2) of the Coroners and Justice Act 2009 or are likely to be designated as such.

(8) For the purposes of this section “public authority” has the meaning given by section 6(3) of the Human Rights Act 1998.”’—(Andy Slaughter.)

This new clause would ensure that bereaved people (such as family members) are entitled to publicly funded legal representation in inquests where public bodies (such as the police or a hospital trust) are legally represented.

Brought up, and read the First time.

Question put, That the clause be read a Second time.

Andy Slaughter

- - Excerpts

On a point of order, Mr Rosindell. Before we conclude our proceedings on the Bill, I wonder whether it might be appropriate to offer my thanks, on behalf of me and my colleagues, to everyone who has contributed to making this, certainly compared with other Bills that I have done in the past, a smooth-running and not unenjoyable process, if I may put it that way. I will not take up a lot of time, but I would particularly like to thank you, Mr Rosindell, and Sir Mark for the efficient and not indulgent, but certainly sympathetic, way in which you have chaired these proceedings. I know that that has been difficult, particularly today, because we had Sir David Amess’s memorial service this morning. We all respect the fact that you and Sir Mark have chaired the Committee with your usual great skill and attentiveness.

I thank the Clerks, who have given us extraordinary assistance on technical matters relating to the Bill, for the way in which they have helped us, and helped me, with my rustiness, to get through the first Bill that I have done in this capacity for a number of years. I also thank everyone else who makes this a smooth-running process. That includes the Doorkeepers, Hansard and everyone else on whom we rely to ensure that these things go as smoothly and efficiently as possible.

May I say thank you to a few other people? I thank the Minister and his colleagues for the way in which they have approached the Bill. There are some fundamental differences between us. We voted against the Bill’s Second Reading and, sadly, we have not managed to carry many votes here to improve the Bill. There are a number of improvements and amendments within the changes to the courts procedure that we would fully support, but there is, at the heart of the Bill, something that we find worrying, which is a further attempt by the Executive to encroach on the discretion of the judiciary, which is one of the great sacred parts of our constitution, so I am glad that at least we have resisted today any further attempts to do that.

Notwithstanding that, this Committee has undertaken a good-natured, but at the same time thorough, investigation of the provisions. I thank all my colleagues for their assistance and prompting—even when I go on for a long time—but I would particularly like to thank my hon. Friend the Member for Stockton North, who, seeing me just beginning my role and being thrown in at the deep end with the Bill, stepped up, notwithstanding having just been a shadow Minister on the Police, Crime, Sentencing and Courts Bill, to carry the burden of dealing with the substantial bulk of the provisions here. Sadly, he is not with us today because he has tested positive for covid. Therefore, I have been told to go off and get a PCR test as well; we probably all have as a consequence of that. I gather that my hon. Friend is tired but otherwise in good spirits. He is an extremely kind and courteous gentleman at all times, and I am sure that we all wish him a speedy recovery.

We have come almost to time on the Bill. We thought that we might go short; we have taken our time, but we have not taken more time. All I will say in conclusion is that there has been a culinary theme to the Bill. We had cherries on the first day, and ended with curries on the last, but I hope that, in looking at the transcripts, those who scrutinise us will not think we have made too much of a meal of it.

James Cartlidge

- - Excerpts

Further to that point of order, Mr Rosindell. May I echo the remarks made by the hon. Member for Hammersmith, particularly in thanking you and Sir Mark for your dual chairmanship, which has operated effectively and efficiently, together with your officials and the Clerks? May I particularly thank the Doorkeepers? As I said earlier—I really meant it—what we saw from them today, walking behind Sir David’s coffin, was incredibly moving.

I thank all members of the Committee, on both sides. No one goes into proceedings expecting that we will all agree on all points, but that does not matter; conduct is different from that. I think we have seen effective debate, proceeding at reasonable speed most of the time, but with that combination of depth and rigour that is important in a Bill Committee. That is the point: we are going through a Bill line by line. I am grateful to SNP and Labour colleagues. I particularly thank those on my side of the Committee. We heard many excellent speeches and contributions, but they also knew when to keep their own counsel, so that we could keep the ship of the Bill sailing in the right direction.

This is an important Bill. The context is difficult. The post-pandemic situation is challenging, with a significant backlog of cases, and we are doing everything we can to deal with that. The Bill contains some significant measures on that front. It also contains the important reform of judicial review—more for another time.

It remains only for me to thank everybody for their participation. I am grateful that we have managed to move to this stage, and that we now move onwards and upwards.

Sir John Hayes

- - Excerpts

Further to that point of order, Mr Rosindell. On behalf of the Back-Bench Members on this side of the Committee—and I hope others too—I thank the Minister and the shadow Minister. I served as a shadow Minister and a Minister for 19 years and I know how hard it is, particularly from the other side of the Committee, to maintain the progress of debate and to retain the calibre and character of scrutiny.

I thank the Minister for the way he has gone about his business, and the shadow team for the way they have gone about theirs. I wish the hon. Member for Stockton North well, as he has now fallen ill. I also thank you, Mr Rosindell, and your fellow Chairman, and all others who have made the Bill proceedings possible.

Anne McLaughlin

- - Excerpts

Further to that point of order, Mr Rosindell. I want to reiterate what everybody else has said and thank everybody involved. I wish the hon. Member for Stockton North well and I hope that he recovers by a week today, St Andrew’s day, because he will be wanting to celebrate.

I thank my hon. Friend the Member for Lanark and Hamilton East—I have finally got the constituency name. That is not as great a constituency name as South Holland and The Deepings, however. I am going to visit, and I will let the right hon. Gentleman know when I do.

This has been a really interesting Bill Committee. I used to resist going on Bill Committees, but I came from the Nationality and Borders Bill Committee straight to this one, and they are the best bit of the job, because they are probably the only time we really get an in-depth understanding of what we are doing. A lot of the time, we have to skim through things because there is so much to consider. I look forward to the next Bill Committee.

I thank the Clerks and everyone involved, including the Doorkeepers. For those who are not speaking and are not involved in the debates, it must be really boring having to sit there and listen to it all. There are no nods of agreement there, but I can pick the answer up telepathically. If I have missed anyone in my thanks, I am sorry—oh, the Chairs. Thank you very much; thank you again for your forbearance, Mr Rosindell, when I was injured. I am still injured, but am recovering.

James Cartlidge

- - Excerpts

Further to that point of order, Mr Rosindell. I did not mention the hon. Member for Stockton North; I hope he recovers. I also wish to thank my officials, who have been excellent—very high quality—for my first Bill Committee. I hope we keep up the good work as we move forward. I am grateful to everyone who has helped us to reach this point.

The Chair

I add my thanks to the Committee for its deliberations over the past few weeks; to my colleague, Sir Mark, for co-chairing the Committee with me; and to Clerks, officials, Doorkeepers and all concerned in ensuring the passage of the Bill through Committee.

Bill, as amended, to be reported.

Committee rose.

Written evidence reported to the House

JRCB16 Professor Jason Varuhas (supplementary)

JRCB17 Northern Ireland Human Rights Commission

Nuclear Energy (Financing) Bill (Fifth sitting)

Committee stage
Tuesday 23rd November 2021 Public Bill Committees

The Committee consisted of the following Members:

Chairs: † Yvonne Fovargue, James Gray

Baker, Duncan (North Norfolk) (Con)

† Blackman, Kirsty (Aberdeen North) (SNP)

† Brown, Alan (Kilmarnock and Loudoun) (SNP)

Browne, Anthony (South Cambridgeshire) (Con)

† Cairns, Alun (Vale of Glamorgan) (Con)

† Crosbie, Virginia (Ynys Môn) (Con)

† Doyle-Price, Jackie (Thurrock) (Con)

† Duffield, Rosie (Canterbury) (Lab)

Fletcher, Mark (Bolsover) (Con)

† Hands, Greg (Minister of State, Department for Business, Energy and Industrial Strategy)

† Jenkinson, Mark (Workington) (Con)

† Owen, Sarah (Luton North) (Lab)

† Pennycook, Matthew (Greenwich and Woolwich) (Lab)

† Wallis, Dr Jamie (Bridgend) (Con)

† Whitehead, Dr Alan (Southampton, Test) (Lab)

Whitley, Mick (Birkenhead) (Lab)

† Whittaker, Craig (Lord Commissioner of Her Majesty's Treasury)

Sarah Ioannou, Rob Page, Committee Clerks

† attended the Committee

Public Bill Committee

Tuesday 23 November 2021

[Yvonne Fovargue in the Chair]

Nuclear Energy (Financing) Bill

14:00

[The Chair]

Before we begin, I have a few preliminary reminders for the Committee. Please switch electronic devices to silent. No food and drink is permitted during sittings of the Committee except for the water that is provided. I encourage Members 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 one another and members of staff space when seated and when entering and leaving the room. Hansard colleagues would be grateful if Members emailed their speaking notes to [e-mail].

May I have declarations of interest first, please?

[Mark Jenkinson (Workington) (Con)]

I draw the Committee’s attention to my entry in the Register of Members’ Financial Interests. It is a matter of public record that I was employed in the nuclear sector prior to my election to this place.

[The Chair]

Thank you.

Clause 15

Regulations about revenue collection contracts

Question proposed, That the clause stand part of the Bill.

[The Minister of State, Department for Business, Energy and Industrial Strategy (Greg Hands)]

Welcome back to the Chair, Ms Fovargue. For the benefit of colleagues, I will speak briefly on the clause, which introduces part 2 of the Bill, and what that is all about. The clause gives a power to the Secretary of State to make regulations about revenue collection contracts, which operate between a revenue collection counterparty and a designated nuclear company, referring back to part 1. Contracts will require the revenue collection counterparty to collect payments from Great Britain electricity suppliers and pass them to the licensee nuclear company so that it can receive its allowed revenue. Subject to consent being given, we expect the Low Carbon Contracts Company to take on the role of the counterparty.

Clauses 16 to 24 set out in further detail what the regulations may cover in relation to the contracts. They could include, for example, the duties of the counterparty, the amounts that electricity suppliers must pay and how the authority will enforce the contract. The legislation will enable payments to flow in the opposite direction if necessary, such as in circumstances where the nuclear company receives more than its allowed revenue. The regulations will ensure that the nuclear company can receive its allowed revenue in a consistent and stable flow. Importantly, the regulations throughout this part are based on existing regulations governing the revenue model under the contracts for difference regime, taking precedent from the Energy Act 2013. Regulations relating to clauses to 16 to 22 and the first regulations made under clauses 23 or 24 will be made using the affirmative procedure. They will therefore be subject to a greater level of scrutiny, as we know, as such statutory instruments must be approved by a resolution of both Houses of Parliament.

[Dr Alan Whitehead (Southampton, Test) (Lab)]

It is a pleasure to serve under your chairmanship, Ms Fovargue. Like the Minister, I would like to spend a moment announcing, as it were, this part of the Bill, which I hope we can get through in an orderly and suitably speedy fashion. It is however important to share an understanding of what we think this part is about. As the Minister said, it concerns the setting-up of revenue collection contracts; the setting-up of a counterparty to hold the revenue collected from suppliers to underpin action by the nuclear company in terms of construction; and, importantly, as he said—he seemed a little concerned when I mentioned this in our previous sitting—revenue collection and distribution during both the construction and production phases of a nuclear project.

My understanding is that during the production phase, the nature of the revenue collection changes. During the construction phase, within the overall allowable costs architecture, the nuclear company is likely to absorb whatever comes its way from the counterparty for the purposes of underpinning the construction costs of the nuclear plant. Obviously, there are debates to be held on that and further regulations to be put in place concerning how the revenue stream for a nuclear company is carried out and the requirements of the construction at various phases.

We have debated to some extent the instance whereby the allowable costs ceiling is breached because of rising costs, particularly during production; whether the regulator would have the opportunity to revisit the allowable costs ceiling; and what effect that would have on the run through the regulated asset base process to customer bills as a result of those recalculations. However, there are issues with what revenue stream goes into the nuclear company, and at what stage during construction, but that is within the overall costs ceiling, or should be, in the first instance.

During the production phase of a nuclear plant, the relationship between collection, distribution and re-disbursement becomes a little more complicated. I would be obliged if the Minister could shed a little light on some of the things that happen during the production process, which are still slightly unclear. That is important because, in the production process, the receipt of funding under the RAB process becomes a comparative issue. The company is making money and producing electricity, and one would expect that, as a result of the RAB model, the money that is being made by the company would sit within the parameters of what has been agreed for the regulated rate of return under the RAB model. If the company is making more money from its production of electricity than is allowed within the overall model’s parameters, that money starts coming back to the counterparty or, at least indirectly, through to customers.

Conversely, if the company is making less money from its production than is allowed within the RAB model for production purposes, money continues to come in under the allowable costs ceiling. The best explanation is given on page 21 of the consultation document on a RAB model for nuclear, which suggests:

“Suppliers could pass the cost of the payment obligation onto their consumers, as they do with other regulated costs and could likewise reimburse their consumers (as happens under a CfD) in periods where suppliers receive payments from the project company (e.g. when the Allowed Revenue is lower than the project company’s revenue from power sales). The design process would need to consider how these charges could be made in more detail, in consultation with suppliers and consumer representatives.”

That is essentially the model during the production phase: it is potentially a two-way process.

That issue reflects, at least to some extent, the amendments that we wish to discuss this afternoon —an understanding of how the money goes into the counterparty, what the counterparty does with the money, what the counterparty does when the money is held, and what the counterparty does if that money may not be needed, or money has been paid back into it by the nuclear company during the production phase. Consideration of how that happens, where that money goes and what sort of requirements one should place on that process are at the heart of some of our amendments.

I thought it important to check whether we have a shared understanding with the Minister of how the process works. Assuming that we do, we can discuss the amendments on the basis of that shared understanding of what this part of the Bill sets out to do. That is essentially a contribution to the clause stand part debate, but I hope that it clarifies how we will proceed with part 2 as a whole, and that it will be helpful to the Committee.

[Alan Brown (Kilmarnock and Loudoun) (SNP)]

It is a pleasure to serve under your chairmanship again, Ms Fovargue. It was interesting that the hon. Member for Southampton, Test spoke about a shared understanding. I wish I had one; I do not think that the Bill is good enough to have any shared understanding of what it is about. Part 1 is clearly all about the definition of designating a nuclear company, and then a blank cheque in terms of defining costs. It seems to me that part 2 is all about how the blank cheque moneys are recouped in revenue collection.

I have one point to put to the Minister. Explanatory note 119 states:

“The terms of a revenue collection contract will be bilaterally negotiated between the Secretary of State and an eligible nuclear company to be designated under Part 1.”

Would he enlighten me on what expertise the Secretary of State has in negotiating a revenue collection contract for a new nuclear power station, how that will be undertaken in a transparent manner, and what options are available for scrutiny of that?

[Greg Hands]

I thank both hon. Gentlemen for their contributions. I will try to be as helpful as I can. Rather than setting any hares running, it is essentially a very similar process to how contracts for difference work under the Energy Act 2013. There is nothing essentially different here, other than the fact that it is about nuclear power generation and has the RAB model. What we are talking about in this part of the Bill is essentially the same process that is being used for contracts for difference under the 2013 Act. I am always slightly reluctant when an Opposition Member asks whether we have a shared understanding. It strikes me as often being slightly dangerous to give a blank cheque on that. My understanding of the process, and I think the Opposition would agree, is that it is essentially the same process that we have been using for contracts for difference through the collection company.

[Dr Whitehead]

I substantially agree that that is essentially how the process works, except that of course with CfDs the customer contribution does not change at all once the CfD has been implemented because there is a constant price. The difference is in the company getting the difference between the reference and the strike price, not what the customer pays for electricity bills or pays into the process itself.

[Greg Hands]

Here there will be a frequent resetting, which is likely to be twice yearly, in terms of the amount of money that has been collected, followed by a reconciliation at the end of the period, but a lot of the detail will be set out in the draft regulations. The hon. Member for Kilmarnock and Loudoun asked what expertise the Secretary of State has to negotiate such a deal. As I said, this has been a tried-and-tested methodology over the past eight years. When we say “the Secretary of State”, we mean that the individual who is the Secretary of State is the decision maker, but acts with the advice of a group of excellent officials at the Department for Business, Energy and Industrial Strategy. That is the normal way in which any reference to a Secretary of State is made in primary legislation. As I say, the legislation is very much based on the Energy Act 2013 and how it looks at the contracts for difference regime.

14:15

[Alan Brown]

The other point that I was making was about transparency. What options are available for the likes of me, an opposition MP, to scrutinise and challenge what is being signed off as a good deal?

[Greg Hands]

The regulations will be subject to the affirmative procedure, which, as the hon. Gentleman knows, will mean a debate in a Committee Room like this, and the potential to take the legislation to the Floor of the House and have a Division of the House of Commons. In that sense, the scrutiny available to Members of Parliament—if that is what he is referring to—is considerable. That is why the regulations will be subject to the affirmative procedure. I think it is reasonable for Parliament to see the regulations when they are made, although we do not envisage that further technical changes to those regulations will be subject to the affirmative procedure. As laid out in later clauses, those changes will be subject to negative procedure. I hope that the Committee will agree to clause stand part.

Question put and agreed to.

Clause 15 accordingly ordered to stand part of the Bill.

Clause 16

Designation of a revenue collection counterparty

Question proposed, That the clause stand part of the Bill.

[Greg Hands]

The power in clause 16 will enable the Secretary of State to designate an eligible and consenting company or public authority to be the revenue collection counterparty for revenue collection contracts. As stated earlier, the Government intend that the Low Carbon Contracts Company should fill that role. The counterparty will be responsible for collecting payments from electricity suppliers and making payments to the relevant licensee nuclear company, as well as collecting any payments from the licensee and making payments back to electricity suppliers.

Unlike contracts for difference, the authority will be solely responsible for determining amounts to be paid to or by the revenue collection counterparty, and would be responsible for communicating that to the counterparty. That responsibility is facilitated by regulations making provision to require information to be shared by the authority, a revenue collection counterparty, and the national system operator under clause 23, on information and advice. The power to designate a counterparty will commence at the point of Royal Assent to support the Government’s aim of bringing at least one large-scale nuclear project to the point of final investment decision within this Parliament.

Question put and agreed to.

Clause 16 accordingly ordered to stand part of the Bill.

Clause 17

Duties of a revenue collection counterparty

[Dr Whitehead]

I beg to move amendment 14, in clause 17, page 14, line 31, leave out “may” and insert “must”.

Although I have set out some of the shared under- standings that I think necessary for the three amendments that we will move this afternoon, this is not one of them. Amendment 14 addresses the text of the Bill, and puts in place small question marks about what that text means for the Secretary of State’s responsibilities, particularly in relation to the duties of a revenue collection counterparty.

At the moment, clause 17(1) states:

“A revenue collection counterparty must act in accordance with…any direction given by the Secretary of State”

and

“any provision included in revenue regulations.”

That theme of “must” continues in subsection (4), which states:

“A revenue counterparty must exercise the functions conferred by or by virtue of this Part so as to ensure that it can meet its liabilities under any revenue collection contract”.

It is an imperative. And subsection (5) states:

“Revenue regulations must include such provision as the Secretary of State considers necessary so as to ensure that a revenue collection counterparty can meet its liabilities under any revenue collection contract to which it is a party.”

Clearly, those “musts” are imperatives for the revenue collection counterparty to undertake. It “must” act in accordance with directions given by the Secretary of State; it “must” ensure that it can meet its liabilities; and it “must” meet its liabilities under any revenue collection contract.

Then we go to subsection (2) and look at the provision for the regulations themselves, which logically should follow on from the imperatives that I have set out, but we see this statement:

“Revenue regulations may make provision”.

The regulations that carry out the imperatives of the other provisions of the clause do not appear to have the same imperative applied to them.

I appreciate that the word “may” in legislation is a perfectly reasonable and acceptable term where something can be done as part of a series of powers that perhaps a Secretary of State has. A Secretary of State may decide to do various things under those powers. Indeed, we get some enlightenment on that in subsection (3), which refers to the

“provision that may be made by virtue of subsection (2)”.

That is a proper use of the word “may”.

However, in this case, what the word “may” appears to suggest is that the regulations that follow from the imperatives do not have to make provision for these particular things; they “may” make provision. There is no direction from the senior Bill to secondary legislation to actually follow the imperatives in the Bill. If the regulations do not happen to make provision, they simply do not, because they “may” make provision; they do not have to do so. That appears to me to be not a very good way of ensuring that the things that should happen under this clause actually do happen.

I know that we are all good Members of the House—I am sure that if legislation suggested that we should do particular things, we would do them—but that is not quite the point. Legislation from this place is supposed to stand the test of time, cope with the vicissitudes of Administrations as they come and go, and ensure that what the legislation intended will actually be done, so either this legislation intends that these regulations do not have to be made or the word “may” is a little less than robust, hence the very modest and small amendment that we have suggested. It would replace the word “may” in subsection (2) with the word “must”, so that there was consistency throughout the clause. It would not be a major change to the Bill, but might strengthen it a little and give a little more certainty about its operation.

[Greg Hands]

As the hon. Gentleman outlined, the amendment addresses what the regulations relating to revenue collection contracts may or must contain. The amendment relates to the duties of the revenue collection counterparty in clause 17. The counterparty will be the body responsible for channelling funds between the designated nuclear company and suppliers. Currently, the Bill gives a discretionary power to make regulations that can ensure that the revenue collection counterparty, first, enters arrangements or offers to contract for the purpose of a revenue collection contract; secondly, must, may or may not do certain actions; and thirdly, undertakes or does not undertake actions specified in the regulations or the direction by the Secretary of State. The legislation further clarifies, for example, that the directions may cover, among other things, the enforcement, variation or exercise of right under a revenue collection contract. Amendment 14, moved by the hon. Member for Southampton, Test, seeks to make it obligatory that the revenue collection contracts will cover these areas whenever they are made. I welcome the hon. Member’s engagement with the detail of the revenue collection regulations, which will play a key role in the functioning of the RAB. However, I do not believe that the approach suggested by the amendment improves our arrangements for the regulations.

First, it is the Government’s intention that the regulation made to establish the RAB revenue stream would likely contain all of the topics set out. Obliging them to be included would be unnecessarily restrictive at a point where we are still developing the structure of the regulations, which will be brought forward by the affirmative procedure in due course. It is therefore important that the power remains discretionary, to allow for sufficient flexibility as we progress the policy. Secondly, the amendment seeks to override the original intention of the clause, which was to provide an indicative, non-exhaustive list of what the regulations may cover. That approach is precedented by the Energy Act 2013, particularly in section 21, as well as in other clauses in this Bill. It is entirely regular to use the word “may” for things that we think will be likely to be included.

Finally, as currently drafted, the amendment appears to be in conflict with subsection (3), because the change from “may” to “must” is not reflected there—subsection (3) builds on the subsection that amendment 15 addresses. That leads to an inconsistency in drafting, where subsection (2) would state that the topics “must” be covered, whereas subsection (3) limits it to “may”. I welcome the hon. Member’s scrutiny of, and engagement with, the detail of the revenue provisions in part 2 of the Bill; I recognise the Opposition’s concerns around ensuring that regulation is sufficiently robust. However, I do not believe that the amendment is the way to achieve that, and I hope that hon. Members will withdraw it.

[Dr Whitehead]

I appreciate that this is a habitual piece of drafting in legislation, found not just in this Bill but in a number of others. One of my hopes with legislation has always been that a group of Members might be courageous enough on one occasion to say, “This is lax writing of legislation and we should not put up with it. We should have what it means included in the Bill.” I appreciate that the lax writing of the legislation may not be lax at all—it may be deliberately giving the Secretary of State a lot more leeway where things are not entirely sorted out. When we look at this clause, we can see that there already is, in subsection (2)(c), substantial leeway for the Secretary of State to take

“further powers to direct a revenue collection counterparty to do, or not to do, things specified in the regulations or the direction.”

That is pretty wide leeway for the Secretary of State to have in the Bill already.

What the “may” does in this subsection is to cast further uncertainty on what sort of things the Secretary of State may do. I am sure that the Secretary of State will actually want, on this occasion, a “must” for what is conferred on the Secretary of State with further powers. That is very helpful to the Secretary of State for precisely the reasons that the Minister outlined a moment ago. The “may” that is in subsection (3) is a different sense of the word “may”. How it would read fully is, “the provision that may well be made by virtue of subsection (2).” It is used in the conditional, whereas the “may” in subsection (2) is a dilution of the imperative. I am sure that the Minister will be pleased to know that that is the case, but I am afraid that it does not accord with what he had to say about the use of “may” and “must” in this provision.

I am not going to press the amendment to a Division, but I think we need to be more careful about how we draft our legislation overall, to make sure that it does what it says on the outside. I am sure this will not be the last opportunity to raise this issue in the Bill. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 17 ordered to stand part of the Bill.

Clause 18

Direction to offer to contract

14:30

Question proposed, That the clause stand part of the Bill.

[Greg Hands]

Clause 18 builds on clause 17. Subsection (1) explicitly gives the Secretary of State the power to direct a revenue collection counterparty to offer to contract with a designated nuclear company on terms specified in the direction. Those terms will be the outcome of negotiations between the Government and the project company. This power is again replicated from the contract for difference, namely section 10 of the Energy Act 2013, but has been adapted to account for the nature of the revenue collection contracts as a bespoke arrangement.

Regulations can set out the circumstances in which a direction to contract can or must be made, as well as the terms that may or must be attached to the direction. If the Secretary of State does not have the ability to specify when a contract should be offered under the legislation, there could be delays in the offering of a contract to a project company. That could damage investor confidence and slow progress on the project at a crucial time.

Question put and agreed to.

Clause 18 accordingly ordered to stand part of the Bill.

Clause 19

Supplier obligation

[Dr Whitehead]

I beg to move amendment 15, in clause 19, page 16, line 11, at end insert—

“(4A) Revenue regulations may make provision to prevent electricity suppliers from recovering the costs of paying a revenue collection counterparty from customers who qualify for the Warm Home Discount Scheme.”

This amendment would mean that electricity bill payers who qualify for the Warm Homes Discount scheme would not be liable for levies on their bills that pay into the RAB revenue collection fund.

Amendment 15 relates to the latter end of clause 19. Hon. Members will see that the clause suggests that revenue regulations may make provision for electricity suppliers to pay a revenue collection counterparty for a number of purposes, including

“to hold sums in reserve; to cover losses in the case of insolvency or default of an electricity supplier.”

According to our shared understanding of how the RAB would work, the regulations would require electricity suppliers to pay into a revenue collection counterparty for those purposes. Thereby, as the RAB consultation makes clear, if that company has been required to pay into the revenue collection counterparty, the company could make restitution for the money it had paid into the revenue collection counterparty by adjusting its bills to reflect that fact.

We are in exactly the same territory as contracts for difference, where there is a levy on customers and the supply company recovers the money that it has paid into the levy fund by passing that levy on to customers in their bills. We have a problem with placing additional levies on already sky-high bills, but that is how this arrangement will work. We question how that process will work. As hon. Members will also know, we currently have within our electricity supply arrangements a warm home discount scheme, which provides for a number of bill payers to get £140 off their bills each year if they qualify. There are some issues about the size of the company relating to that obligation but, in principle, pretty much all customers on a low income or a guaranteed credit element of pension credit will, or should, receive that warm home discount.

The energy company has to supply that discount to its customers. It may socialise the costs through its overall bills as a sort of secondary levy, but it gives a proportion of electricity customers a permanent reduction in their bills due to their particular circumstances, such as—as the discount suggests—particular fuel poverty-type issues in heating their homes and meeting their fuel bills.

The effect of a levy—in this instance, quite a substantial levy—to customers under these circumstances, particularly during the construction phase of a regulated asset base operation, would be to put, say, an extra £10 on the bill of someone who is already receiving a warm home discount, so that their fuel bills go up. A number of people would be placed in fuel poverty as a result of that difference, and therefore, ironically, it is quite possible that more people would be eligible for the warm home discount as a result.

When and if this levy comes on stream, we do not think that the process should include the supply company passing on that increase to those people who are already paying their bills but have a warm home discount. Those companies should not be able to recover the cost of payment into the revenue collection counterparty by passing it to those people receiving warm home discount. This would mean a socialisation of that cost to other bill payers, but the warm home discount would nevertheless remain at the right proportion of the bill, not diminish in value because that person was required to pay that levy to the energy company so that it could recoup its costs related to the revenue collection counterparty.

This is quite a simple amendment to try to return that warm home discount to the position that it would have been in before that levy was introduced. I would suggest that it is in line with what the Government intended for that warm home discount in the first place. Although other customers may pay a little more on their bills, it would maintain the relative billing position for the poorest and most vulnerable customers, including those in receipt of a guaranteed credit element of pension credit, helping those who have considerable difficulties in paying bills and are perhaps in fuel poverty as a result. We would like this power to ensure that energy companies do not incorporate those customers into the arrangements for collection and distribution of money coming into the revenue collection counterparty.

[Alan Brown]

I will just say a couple of things. I was listening to the arguments and if the amendment goes to a vote, I will be happy to support it and do anything I can to try to support the most vulnerable and not create any more fuel poverty. Listening to the arguments, they seem to confirm that the concept as a whole is a costly burden on consumers. As the shadow Minister said, it creates a levy that will put more people into fuel poverty. The levy will not just last for a few years; it starts with a construction period of 10 to 15 years in all likelihood and then a 60-year contract. Rather than tinkering at the edges, protecting some people and pushing other people into fuel poverty, the heart of the matter is that this is a costly white elephant exercise. That said, I would still support the amendment for what it aims to do.

[Greg Hands]

As has been stated, amendment 15 looks to make provision to exclude from the RAB charge those consumers who are eligible for the warm home discount scheme. I understand the good motive and the effect of what the hon. Member for Southampton, Test is proposing. For background, the warm home discount is a Government initiative to take £140 from the energy bills of consumers who receive the guarantee credit element of pension credit, or who are on a low income and receive certain means-tested benefits. We have already proposed increasing the value of the rebate to £150 per annum in any case.

As we have discussed, if a new project is funded through the RAB model, suppliers will be obliged to pay towards it. It is expected that the suppliers will pass these costs on to consumers. While I do not intend to go back over the arguments in favour of the RAB model, we believe the arrangement will facilitate private investment while also reducing the costs of delivering new nuclear projects. I understand the Opposition’s desire to protect consumers on the lowest incomes, which is what the Government are already doing. The Opposition are proposing to increase that element of protection. Of course, these consumers can spend a disproportionate amount of their income on energy costs. As we all know, energy bills are regressive.

However, a large-scale project funded under the scheme will add, at most, a few pounds a year to typical household energy bills during the early stages of construction and less than £1 per month on average during the full construction phase of the project. The Government have taken a number of actions to protect low-income households from energy costs, as laid out in our updated fuel poverty strategy. That includes not only the warm home discount but cold weather payments and the household support fund.

[Alan Brown]

Isn’t the problem with some of the schemes aimed at protecting the most vulnerable that they are paid for by other consumers? By default, the schemes are always creating another cohort to move into fuel poverty, because actual schemes to help people are paid for by other consumers.

[Greg Hands]

The hon. Gentleman makes an interesting point, but I do not think the amendment in any way answers his question. In fact, if I have understood the amendment correctly, it would probably make those who are not on the warm home discount pay even more, so I am afraid he is making a speech against the amendment, however inadvertently.

As set out in the heat and buildings strategy late last month, we will also publish a fairness and affordability call for evidence to set out the options for energy levies and the obligations to help rebalance electricity and gas prices and to support green choices, with a view to taking decisions in 2022. We are looking at the totality of how these schemes work, then looking at the consultation and then taking decisions on the wider nature of these schemes next year. It is right that broader conversations about how to deal fairly with customers’ bills are dealt with as part of this process, rather than by taking a narrower approach for each technology and funding scheme, which the amendment seeks to do.

As we know, the legislation obliges the Secretary of State to have regard to consumer interests and costs when setting up the RAB. As part of that, the Secretary of State will monitor any cumulative impact from multiple RABs being in operation.

14:44

[Matthew Pennycook (Greenwich and Woolwich) (Lab)]

The Minister has just mentioned the obligation on the Secretary of State that is in the Bill. My hon. Friend the Member for Southampton, Test made the point that this levy may be £10 a year on average, or it may be more. Have the Government made any assessment of the number of customers that that increase will potentially tip into a qualifying benefit, therefore making them eligible for the warm home discount? Have they assessed what a nuclear RAB might do to the number of people who are eligible for that discount? The argument we are trying to make is that there is potentially a saving for Government here by socialising the risk among non-warm home discount consumers when it comes to funding these types of projects.

[Greg Hands]

The hon. Gentleman asks a fair question, which I would answer in a couple of ways. First, this issue is best considered in the round as part of the process we have outlined, with the consultation and decisions to be made next year. Secondly, the actual amount would depend very much on the nuclear project in question. What we have shown is that we believe the RAB model will make bills overall less expensive to the consumer by roughly £10 a year for an average dual-fuel bill payer, as the hon. Gentleman has rightly pointed out. However, that amount will ultimately depend on the size and scope of the nuclear plant that is proposed. I think a better way to deal with this issue is to deal with it in the round, in the way the Government are proposing. I stress that the RAB is designed to save consumers money over the life of the plant; that is one of the key reasons why we are proposing it.

I am grateful to the hon. Member for Southampton, Test for tabling this carefully considered amendment and for raising the important issue of energy costs for low-income households. Nevertheless, I hope that I have shown both that the Government are already taking action to help this group and that this clause forms part of a wider conversation about how we transition our energy system away from fossil fuels in a way that is fair and affordable for all. I therefore hope that the hon. Gentleman will withdraw his amendment.

[Dr Whitehead]

I am not sure that the Minister quite gets this. The warm home discount was introduced in 2011 and has been at the level of £140 since then, so the Government suggesting that it should be increased to £150 is not an action of unparalleled generosity: it actually just catches up with inflation over the period that the warm home discount has been in place. That discount has been decreasing in value in real terms over the years, so increasing it is simply a matter of reasonable housekeeping, rather than innate generosity.

[Kirsty Blackman (Aberdeen North) (SNP)]

I thank the hon. Gentleman for giving way; apologies to my hon. Friend the Member for Kilmarnock and Loudoun for getting in first. Does the hon. Gentleman agree that, given the massive increases in energy prices that we have seen—way outstripping inflation—this increase does not touch the sides of what is needed?

[Dr Whitehead]

The hon. Member is absolutely right. I am sure that we could do some back-of-a-fag-packet calculations about what we are going to need from the warm home discount, given the rises that are likely to occur under the fuel price cap in the coming spring and over the next six months, but it will certainly be rather more than £10.

[Alan Brown]

Does the hon. Gentleman agree that another odd aspect of the Minister’s argument is that raising the warm home discount to £150—an extra £10—is really significant and helps people, but an extra £10 on their bill is okay and something we do not need to worry about? The two cannot both be right.

[Dr Whitehead]

The hon. Member makes a very interesting point, which I was rather slower than him to get to. He is quite right: if this is going to be £1 a month during the construction phase, therefore adding only £10 to £12 to the bill per year, it is contradictory to say that one is insignificant while the other is very significant.

There is also the fact that £12 a year, or £10 a year or whatever, will affect different people’s bills in different ways, because the bill for a large family, or someone with a large house, will be higher in total, and the £12 nuclear levy will be a smaller proportion of it than for someone who is eligible for the warm home discount—perhaps a single pensioner living in a small house, with a lower bill but nevertheless without the wherewithal to pay it. That £12 would be a higher imposition on their bill than it would on other people’s bills.

I think we all agree that the warm home discount is an important actor in combating fuel poverty and ensuring that the most vulnerable people in our society as far as energy costs are concerned do not have it even worse than they do at the moment and are given some assistance with their bills. We all ought to be very mindful of that when we put levies on people’s bills. What the Minister says about who we do and do not put into fuel poverty when we change levies on fuel bills is true, but that is an argument for better indexation, not for continuing with the warm home discount in the way that we are.

I am sorry to say that we will have to divide the Committee, because we think that this is an important principle that ought to be upheld. We do not want to the effects of the levies, which of course may be much more than £12, depending on how the allowable costs ceiling goes, to directly affect the warm home discount, which we think is a very important part of the energy landscape and the battle to combat fuel poverty. We would like it to be on the record that we did not simply allow this to be brushed under the carpet, and therefore wish to vote on the amendment.

Question put, That the amendment be made.

Division 3

Ayes: 6

---

Labour: 4
Scottish National Party: 2

Noes: 7

---

Conservative: 7

[Alan Brown]

I beg to move amendment 20, in clause 19, page 16, line 25, at end insert—

“(6B) Prior to making provisions by virtual of subsection (4), the Secretary of State must consider—

(a) the number of customers the supplier has;

(b) the level of bad debt from customers;

(c) the liabilities of the electricity supplier including any renewables obligations due and what levels of collateral will risk the supplier’s operations as a going concern;

(d) the impact on consumer bills of upfront payments to the revenue collection company; and

(e) the value and extent of forward hedging the supplier has in the market.”

This amendment would require the Secretary of State to consider the matters listed before requiring electricity suppliers to provide financial collateral to a revenue collection counterparty.

The other day, the Minister challenged us in the SNP to table amendments, so in that spirit of co-operation—given that I am fundamentally against the Bill but have still tabled amendments to improve it—I look forward to him accepting them.

Clause 19 further confirms the Government’s desperation to provide unlimited guarantees and support mechanisms to get nuclear projects—as we know, that means Sizewell C —off the ground. For me, the clause is further proof of how ill-thought through the Bill is, and how loosely many clauses have been drafted. This clause will be blindly accepted by Government MPs without further thought or debate apart from some challenge from this side of the Committee.

Yesterday, energy supplier Bulb Energy, which has 1.7 million customers, effectively went into administration. Given that 23 energy suppliers have gone bust since August of this year, it beggars belief that the UK Government have introduced clause 19, which may require energy suppliers to pay money up front. Cash flow insolvency is a major issue in the energy supply market at the moment, but the Bill could place further demands on suppliers.

The clause will allow the revenue collection counterparty to set the form and terms of the financial collateral that it demands from electricity suppliers. There is no guidance or controls; there is simply the concept of a nuclear project being so important that revenues must be guaranteed for the nuclear company. Subsection (2) is the start of what I have no doubt will be an accountant’s field day. Subsection (2)(a) is a typical catch-all, as it states that revenue may be collected under

“such…descriptions of its costs as the Secretary of State considers appropriate”.

As an aside, will the Minister tell us whether it is really the Secretary of State who will make those assessments, as the clause states, or will it actually be the regulator?

Subsection (2)(b) and subsection (4) refer to holding sums in reserve and to suppliers providing financial collateral. The kicker with the financial collateral is that subsections (6)(a) and (b) state that the revenue collection counterparty may

“determine the form and terms of any financial collateral”

and may “calculate” the payments that are due. There seems to be no independent scrutiny and no way to challenge those demands. Then, for good measure, subsections (8) and (9) provide for the revenue collection counterparty to make demands on interest, debt collection and further add-ons. That certainly seems very balanced towards the assessments that the revenue collection counterparty makes.

Paragraphs (c) and (d) of subsection (8) mention “references to arbitration” and “appeals”, but what will those processes and procedures look like? Yet again, there is too little detail. Without suitable protections and considerations, the clause and its consequences could damage well-run energy suppliers and those that are struggling to get by, and that is if they get through the ongoing crisis.

Why should energy suppliers pay up front to cover RAB payments? It might suit the Government to have clauses to protect funding for new nuclear, but that could lead to massive cash flow issues for the electricity supply companies that I mentioned earlier. As they would be paying in advance of receiving income from customers, they would need to manage that credit issue by servicing debt costs. Those costs would then be passed on to consumers, further raising the cost of our bills.

I have already stated my opposition to the Bill and to a new nuclear power station, but from my perspective as a consumer, the Government want me to tie into the construction costs payments for 10 to 15 years in a 60-year RAB contract, which will go beyond my lifetime. Then, just to be on the safe side, my electricity company, to which I pay money, will possibly have to provide money up front, which will cost me, as a consumer, more money. That is a ridiculous concept; it just does not make sense.

Although I am against the principle and poor drafting of the Bill, it is important that we debate clause 19, which is why I have tabled the amendment. I hope that paragraph (a) of the amendment is self-explanatory: any collateral or money that is asked for would need to be pro rata based on the energy supplier’s ability to pay, which would be based on its customer base. In paragraph (b), I highlight that bad debt needs to be considered, because some companies have much higher numbers of vulnerable customers, which means that they are likely to carry more bad debt. That dynamic could change further with the collapse of so many energy supply companies.

15:00

Paragraph (c) says that the revenue counterparty needs to look at the other liabilities that companies might be carrying. It is interesting that, when we have been debating the energy retail market and energy supplier crisis, the Secretary of State at the Dispatch Box accepted that companies go bust every year and said that part of that was that suppliers tend to go bust at the time their renewables obligations become due. I thought that that was a very flippant attitude, and that is not right. It also seems bizarre to accept that companies will go bust rather than pay their renewables obligations, when the Bill demands that payments be taken from companies up front to ensure that the RAB payments are secured for the nuclear company.

Paragraph (d) further highlights and forces consideration of the cashflow and credit costs that will be imposed on customers by the demand for any up-front collateral. Finally, paragraph (e) looks at forward hedging. The whole point of hedging forward for, say, a year in advance is to secure energy at a given price so that companies know that they have stability in terms of what they have paid and that they can pass that price certainty on to the customer. If a company is hedging forward and has to use its cashflow and securities to do that, that needs to be taken into account before any other moneys are demanded up front to cover the RAB payments.

I hope that I have again made my concerns about aspects of the Bill clear. There are genuinely unintended consequences that could flow from the operation of clause 19 and demanding collateral up front. As I said in my optimistic opening sentences, I look forward to the Minister accepting the amendment and saying, “Well done and thank you.”

[Dr Whitehead]

I am very sympathetic to the amendment, although I do not think that it will do exactly what the hon. Member for Kilmarnock and Loudoun would like. It would be helpful to have some clarification from the Minister as to exactly how the payments will be organised by the revenue counterparty body.

Although those payments are up front, in that the electricity supply companies would be required to make a payment on behalf of the customer into the counterparty before the power station had been built, that does not mean that the payment would all be up front. It means that the payment would be staggered over a period, which might be the whole of the production period of the nuclear power plant, according to what was required at particular times of the construction, so that the counterparty had sufficient funds to meet those calls from its revenues at any one time, but did not have a large surplus against calls. The counterparty would therefore have to modulate and regulate its calls on the energy supply companies as the process of construction continued.

Presumably, then, a company’s health would not be set against an overall up-front payment in that instance. All companies would be required to pay into that levy arrangement regularly, so there would not be a greater demand on one company than another or a large amount of money demanded in one go. That is my understanding of how the system would work, but I appreciate what the hon. Member for Kilmarnock and Loudoun said about the 23 companies that have gone bust recently. As the energy market stabilises, I think there will not be many companies to take a levy from in the first place. Those companies that are able to pay a levy will by and large be those that were in sufficiently robust health in the first instance to weather the storm of high gas prices and high energy costs—there are a number of other reasons why companies may or may not be reasonably robust but that is a debate for another day.

Overall, I do not think that the amendment does exactly what it is intended to do.

[Alan Brown]

I think I understand the point that the hon. Gentleman is making, but subsection (4) says:

“Revenue regulations may make provision to require electricity suppliers to provide financial collateral to a revenue collection counterparty (whether in cash, securities or any other form).”

I still read that as meaning that cash could be asked for to be paid up front.

[Dr Whitehead]

Indeed, and that is why we need better clarification from the Minister. Is there a distinction between cash up front in general—that is, one pays before getting any result from a nuclear plant that is being built—or cash up front in the sense of taking all the stuff in the agreed revenue allowance? Would that be taken either mostly up front, all in one go, or at level that an energy company would find unaffordable during particular elements of the process? There is still some uncertainty about exactly how that process would work.

I have a lot of sympathy with the argument of the hon. Member for Kilmarnock and Loudon. If the revenue counterparty decided that it was going to take a very large amount of levy early in the process to have lots of money in the bank and to be able to cover any eventualities connected with the construction process, that would be a pretty unreasonable imposition on energy companies, particularly in the present circumstances. However, I think there are least implied elements of regulation in the Bill that would prevent that from easily happening, and I would be interested to hear whether the Minister thinks that is the case. If he does, where in the Bill is that, and which arrangements would be preferrable in terms of the revenue collection counterparty operating on a more equitable basis as the construction period progressed?

[Greg Hands]

I thank the hon. Members for Kilmarnock and Loudoun and for Aberdeen North for tabling their amendment. Of course the Government welcome all Opposition parties tabling amendments; that does not necessarily mean that we will agree with the aforementioned amendments, but it is a useful process to test and probe the Bill, and I think our publics would like to see a process whereby all Opposition parties tabled amendments to test the Government’s proposition. I fully buy into that process, but I do not happen to agree with this amendment.

The amendment addresses how the interests of suppliers and their customers should be considered when making provision in regulations for the supplier to pay the revenue collection counterparty. It would also require the Secretary of State to have regard to the other liabilities of electricity suppliers—the hon. Member for Kilmarnock and Loudoun talked with topicality about that—as well as to the impact that collateral requirements will have on a supplier’s operation. I thank the hon. Gentleman and the hon. Lady for ensuring that the Government consider the impact on suppliers and consumers when establishing the RAB revenue stream.

I reassure Members that the Government intend to act in a way that effectively manages the payment obligations on suppliers and, through them, consumers. We do not believe, however, that the amendment is the best way of ensuring that. First, the provision of collateral by electricity suppliers is a form of security that has been administered very successfully in the contract for difference regime. As I said on clause 15, the regime seeks to replicate that tried-and-tested regime, which has functioned effectively to bring investment into new energy projects for the last eight years.

We have been clear that in designing the RAB revenue stream we are seeking to replicate many of the provisions of contracts for difference to help to provide a familiar and workable framework for suppliers, but it is not just about supporting investment. We will protect suppliers from paying unreasonable amounts of collateral and ensure that overpayment of collateral is returned to suppliers.

[Alan Brown]

What is there in the Bill that protects suppliers from having to pay too much collateral?

[Greg Hands]

The protection in the Bill is through the regulation of the process and the oversight, for example by the authority, in this case Ofgem, which will ensure that any amounts paid to the generation company are reasonable. The hon. Gentleman is right to ask who will set the parameters, the Secretary of State or the regulator. The Secretary of State sets the initial licence conditions; however, it is the authority, in this case Ofgem or its equivalent, that will ensure that any amounts are reasonable and in the interests of existing and future consumers. That is very much in the Bill.

[Kirsty Blackman]

Could the Minister provide more information on that, in the form of a letter perhaps? We have raised concerns on how companies, and therefore consumers, will be protected. I appreciate what he says, but that was not obvious to us, so a response in writing would be hugely helpful.

[Greg Hands]

That is a reasonable request. I am saying that this is a tried-and-tested process that has been there throughout the contract for difference regime. Paying in collateral, and the way that collateral operates, is something that has been around for decades, but if it is helpful I am happy to write to the hon. Lady and copy in members of the Committee to explain in more detail how it works in the CfD regime and the Energy Act 2013. I should also make it clear that the Bill provides a framework for the RAB revenue stream and requires that the detail of suppliers’ payment obligations is set out in the secondary regulations that will need approval from both Houses. Ahead of that, and as required by the Bill, we will publish and consult on the draft regulations. We will include British energy suppliers within the consultation, so they will have the opportunity to feed in any views from an energy supplier perspective.

In the context of protecting our most vulnerable energy consumers, which was the subject of the previous amendment, I refer Members to my comments in that debate setting out the numerous actions that the Government are taking to help low-income households, including the warm home discount, cold weather payments and the household support fund. I hope that I have assured the hon. Member for Kilmarnock and Loudoun that the design of the RAB revenue stream will ensure that the interests of consumers are protected and that mechanisms are in place to protect suppliers from disproportionate requirements that would affect their ability to operate. As such, I believe that the amendment is unnecessary, and I hope that he will withdraw it.

[Alan Brown]

It was no surprise that the Minister did not accept the amendment. It will be no surprise to him that he has not completely satisfied me either with his explanation. We keep hearing the argument that we are trying to replicate the CfD model, which is interesting considering that we are introducing the RAB model. It was said that CfD would not work for nuclear, but now we are trying to replicate certain things. He said that there will be consultation and secondary legislation, but there are no guarantees on what the Government will do or how they will respond to any consultation. Secondary legislation can easily get steamrollered through this place anyway. Given that, I would prefer to press my amendment to a vote.

Question put, That the amendment be made.

Division 4

Ayes: 2

---

Scottish National Party: 2

Noes: 7

---

Conservative: 7

15:16

[Dr Whitehead]

I beg to move amendment 16, in clause 19, page 17, line 2, at end insert—

“(10) Persistent non-payment of sums owed to the counterparty by an electricity supplier may be referred to OFGEM, which may in such circumstances place the electricity supplier’s licence under review.”

This amendment would allow cases of persistent non-payment of sums owed to the counterparty by an electricity supplier to be referred to OFGEM.

The amendment follows on quite well from our previous debate. Although the issue is not entirely certain, the collateral expected to be paid by energy supplier companies would be required in a measured way. The Secretary of State would make sure that the revenue collection counterparty did not try to scoop up huge funds in one go—not that I think that very likely—and would regulate the collateral so that it was more or less allied with the calls on it by the nuclear company at that stage.

If the revenue collection counterparty had a large pot of money sitting in its bank account at any stage, one would expect that money to be redistributed to the supplier companies from which it had been collected, and one would hope that in the end it would be redistributed back to customers. I think that there is still some way to go in deciding how exactly the regulation is to be set up, but I welcome the Minister’s statement that that is roughly how the Government assume the process will be undertaken. That being the case, there is then the question of what happens if supplier companies do not pay what the revenue collection counterparty has required of them, assuming that it is a reasonable payment. That leads on to some existing issues with how levies are collected by counterparties.

There has already been some mention of what happens with Ofgem’s collection of the renewables obligation, and of the collective obligations of energy companies to supply the right amount in buy-outs, renewables obligation payments or whatever. For those who think that the renewables obligation is done and dusted and that it came to an end in 2017, I should mention that it is still alive in a ghostly fashion and is collecting money until 2027, I think, so the obligations continue.

If one were being very unkind, one might say that a barometer of the health of some of the smaller energy companies that have recently been involved in the struggle to stay afloat has often been whether their renewables obligation payments were outstanding at the time of closure, which I think is the end of each October. There were reports from Ofgem, I think in September, that x number of companies had not paid their renewables obligation levies, and that if they did not do so by the closure date, it is conceivable that action would be taken—which could include, in the end, the removal of the company’s licence to operate.

One could say that that is what happened over the recent period, in that companies that knew they were in some difficulty with their renewables obligation payments at the end of October folded pretty soon afterwards because they were not going to pay them. That has had the unfortunate side effect that that non-payment has had to be socialised among other energy companies in order to ensure that the fund is the right amount to meet the renewables obligation certificates going around. Nevertheless, the regime appears to have a sanction relating to an energy company’s licence, so that we can ensure that payments are brought in, or that there is fairly swift closure relating to the outstanding amount, so we at least know roughly where we are regarding the payment pool at a future date.

As the Bill stands, that does not appear to be the procedure that will be adopted regarding levies into the revenue collection counterparty. Indeed, the Bill states that if payment is not received, collection will be a civil matter. In the amendment, we suggest that we adopt a similar procedure to that which is in place with Ofgem concerning non-payment of renewables obligation payments. In the case of persistent non-payment, a sanction should be available regarding the continuation of the company’s licence. The Minister may say that going through the civil courts is just as good. What concerned me about the arrangements in respect of renewables obligations was that some energy companies were borrowing their payments in order to stay in business. That is not what a healthy energy company should do, long term; it will not result in a secure landscape as regards collateral inputs to a counterparty.

A better way of proceeding would be to have in place the sort of regime that we have for the RO. The amendment would allow the Secretary of State to introduce that kind of arrangement, if he thought it a good idea for the stability of collateral payments. It gives him an extra option, and goes beyond the regime set out in the Bill, so that we can ensure that payments are properly levied, paid on time, and not resisted.

[Greg Hands]

As the hon. Gentleman outlined, amendment 16 addresses how the obligations of suppliers under revenue collection contracts should be enforced. Clause 19 deals with suppliers’ obligations in relation to the RAB. It lays out what the revenue collection regulations may provide for. This includes how the obligations placed on suppliers by RAB revenue collection contracts can be enforced by the revenue collection counterparty. The powers in clause 19 are supported by clause 22, entitled “Enforcement”, which states:

“regulations may make provision for”

obligations under revenue collection contracts to be enforced

“by the Authority as if they were relevant requirements…for the purposes of section 25 of the Electricity Act 1989.”

This means that a breach of such a contract can be treated as if it were a breach of a licence condition, and this allows the authority to obtain an order to secure compliance and impose financial penalties.

The amendment would set up a different enforcement route, outside the regulations, by allowing the revenue collection counterparty to refer suppliers who persistently fail to meet their obligations to the authority—that is, to Ofgem. Ofgem could then consider whether to remove a supplier’s licence. Of course, I welcome the Opposition’s focus on ensuring adequate protection from non-compliance. Creating strong enforcement procedures will be vital to give investors confidence that the RAB will function and that the project will receive the funds to which it is entitled. However, the amendment leaves out much of the detail necessary for a clear understanding and the smooth functioning of the enforcement procedure. For example, it does not clarify what should be classed as “Persistent non-payment”, or the process for referral. It also does not make clear what Ofgem would take into account when reviewing a supplier’s licence, or the process for appeal.

The hon. Gentleman feels that a supplier’s failure to make payments to the counterparty should have consequences for their licence, but those concerns are adequately addressed by clause 22, which states that the regulations may make provision to treat non-compliance as if it were a breach of a licence condition, and to allow the imposition of suitable penalties against suppliers through tried-and-tested, long-standing legislation. This will ensure compliance, and will mean that obligations under revenue collection contracts are met.

I welcome the hon. Gentleman’s constructive contributions, his proposing the amendment, and his recognition of the need for strong enforcement provisions, but I hope I have convinced all hon. Members of the appropriateness of the Government’s approach, which already treats non-compliance in the way that is suggested in the amendment, but in a far more watertight way, and that the hon. Gentleman therefore feels able to withdraw his amendment.

[Dr Whitehead]

The Minister talks about taking action in a more watertight way, and suggests that we look at clause 22, which relates to clause 25, which relates to a series of clauses relating to the Electricity Act 1989. It is a sort of Marx brothers’ “A Day at the Races” form guide arrangement, whereby in order to understand a guide, a person needs another one, and so on endlessly—and they end up missing the race.

The Minister will be aware that there are a number of instances in which we are asked to go way back, via regulations, into Acts such as the Utilities Act 2000 and the Electricity Act, and we are reluctant to do that. Indeed, there are a couple of quite incomprehensible repeals at the end of the Bill, to which I might draw the Committee’s attention; one has to go through four or five stages before one can understand what on earth those are about.

In this instance, it is possibly true that we could, by regulation, apply the provisions of section 25 of the Electricity Act 1989 relating to licence modification or removal; but that provision is not in the Bill, but possibly applied by regulation. In the Bill there is one remedy, and one remedy only. The Minister may say, “Trust us; we may produce regulations that have the effect that I have suggested.” However, it probably would have been wiser for some of those things to be in the Bill. Of course, the amendment does not do all those things that the Minister mentioned. I fully accept that it is deficient from that point of view, because it does not mention the four or five other pieces of legislation that have to be taken into account, amended or consequentially changed. It merely allows us to make the point that these things ought to be in the Bill, so it is a probing amendment.

I hope that the Minister will think about whether there are better ways of getting those different forms of regulatory certainty than this extended process of referring to other pieces of legislation, which may become more or less opaque as one reads them. It would be much more straightforward for this provision to be in the Bill and clear for everyone to see. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 19 ordered to stand part of the Bill.

Clause 20

Payments to electricity suppliers

Question proposed, That the clause stand part of the Bill.

[Greg Hands]

Clause 20 seeks to ensure that electricity suppliers can be reimbursed in cases where the counterparty has overcharged suppliers or overpaid a licensee nuclear company. The clause is similar to the approach in section 17 of the Energy Act 2013. It is proposed that suppliers will be charged their share of a RAB payment based on their expected market share. Where their actual market share is less than expected, reconciliation processes will be carried out and the revenue collection counterparty will repay them the difference.

Likewise, when the relevant nuclear licensee company’s forecasted market revenue exceeds its allowed revenue over a given period, the counterparty could be required to repay any overpayments to suppliers. Again, that would replicate the approach used in contracts for difference. Subsections (1) and (2) allow regulations to be made requiring the counterparty to make payments to suppliers in such instances. Regulations made will be subject to the affirmative procedure, given the effect they will have on electricity suppliers and other relevant bodies.

[Dr Whitehead]

I do not oppose the clause, but I want to ask the Minister about what it actually says. At first sight, it appears to say—this was the shared understanding that we established—that there were circumstances where a revenue collection counterparty could pay collateral back to electricity suppliers. We are not clear over how long a period the collateral might be repaid, or at what point it might be considered that there was sufficient additional collateral in the funds of the counterparty to warrant a repayment.

The funds might be held for quite a long time while consideration is given to whether the nuclear company is likely to overperform on its revenue generating activities in the production phase so consistently that the money can be safely restored to the supply company. The counterparty might hold the money over a considerable period, thinking there would be variations or fluctuations in the revenue stream obtained by the nuclear power company, and that the money might therefore need to be called on, if it dipped below the range implied by the overall allowed costs arrangements. There is that question of the likely length of the period over which repayments take place.

However, the second question, which is also quite important, is what would happen to that money once the counterparty had restored it to the electricity supplier. There is nothing in this clause that says anything other than, “That money is restored to the electricity supplier, and the electricity supplier is very pleased about that and puts the money in its bank account.”

However, the electricity supplier has collected that money from the customers—albeit at the direction of the counterparty—in the form of an additional levy placed on their bills. If the electricity supply company is getting that money back again, then as night follows day, the company should give that money back to the customers and not just hold it in its bank account. There is nothing in this clause to ensure that that happens. I would be interested to hear whether the Minister thinks that such a requirement ought to be added to the regulatory procedure that will be undertaken. He may want to go away and think about whether he can at least indicate to the Committee that it will be assumed, and probably will happen, that as long as the surplus funds can be distributed back to suppliers by the counterparty, they should be given back to the customers.

Essentially, we have a couple of questions, but we do not oppose this clause standing part. I am sure that the Minister will be able to reassure us about his intentions with regard to making this clause operate as well as it can.

[Greg Hands]

I will try to deal with the two questions that the hon. Gentleman raised. First, he asked whether the funds can be held for a long time, and about the period over which they can be held. Obviously, the regulations will be laid before Parliament in due course, and will be subject to the affirmative procedure. However, I point him to how the contract for difference regime works under the 2013 Act. My belief is that in this case, the reconciliation takes place after a period of months—that is probably the best way to describe it. It depends on what the hon. Gentleman means by somebody holding on to funds, or indeed having a shortfall of funds, for “quite a long time”, but we always have to strike the balance between what is operationally straightforward and what prevents somebody from holding on to funds, or from having a shortfall of funds over a period of time. However, the workings of the contract for difference regime might give the hon. Gentleman the most likely pointers as to what the regulations may look like; they will obviously be subject to consultation in due course anyway.

The hon. Gentleman also asked what happens to the money, and whether the supplier is obliged to return the money to the customer. He raises a fair point. The difficulty is that there is no obligation on the supplier to take the money for the RAB from the customer in the first place. The assumption is that the supplier will bill the customer for the cost of the RAB, but there is not an obligation to do so, so I am not sure that creating an obligation in this legislation to send back money the other way would be appropriate. Again, I refer the hon. Gentleman to the workings of the contract for difference under the 2013 Act.

[Matthew Pennycook]

That raises an interesting, and quite concerning, point: what in the legislation prevents a supplier from overcharging its customers on the basis that it is levying the RAB? Is there a limit to which a supplier can levy the customer? On the basis of what the right hon. Gentleman has just said, the supplier could overcharge the customer, make the payment owed to the counterparty and find itself with additional funds raised from those customers.

[Greg Hands]

First, the whole process will be regulated by the authority—in this case Ofgem—which would have oversight. Secondly, that would also be a matter for the regulations that are to be published in due course. Thirdly, the frequent reconciliations would obviate risk of that happening in the way the hon. Gentleman describes.

Question put and agreed to.

Clause 20 accordingly ordered to stand part of the Bill.

Clause 21

Application of sums held by a revenue collection counterparty

[Dr Whitehead]

I beg to move amendment 17, in clause 21, page 17, line 34, leave out from ‘are’ to end of line and insert ‘not to be paid into the Consolidated Fund unless there is no other alternative.’

This amendment would require the Government to consider alternatives to the absorption into the consolidated fund of sums held by a revenue collection counterparty on behalf of energy bill payers.

Amendment 17 takes aim at a different part of the undergrowth we are dealing with in the often fairly complex arrangements related to the revenue collection counterparty and all that goes with it. In this instance, we have two subsections in italics because they include a Treasury implication. Clause 21(5) says:

“The provision that may be made by virtue of subsection (4) includes provisions that sums are to be paid, or not to be paid, into the Consolidated Fund.”

In that regard, subsection (4) states:

“Revenue regulations may make provision about the application of sums held by a revenue collection counterparty.”

Effectively, that subsection allows regulations to be made about the sums held by a revenue collection counterparty. We have already discussed how long they may be held for and the circumstances under which they may be paid back—[Interruption.] The Minister and his Whip are discussing when we will finish, I suspect. They must not worry; we will finish on time.

The clause adds a new dimension to the question of where the sums held by the revenue collection counterparty may go and, indeed, suggests where they might go, presumably, after the process outlined by the Minister. At a certain stage, the existence of surplus amounts held by the revenue collection counterparty is established and then there is an issue as to where that money goes. Clause 21(5) says that the money may be paid into the Consolidated Fund, which is the Treasury. It therefore gives rise to the idea that money could have been raised from customers and paid into the revenue collection counterparty by suppliers. Levies are raised on customers and possibly overpaid, as my hon. Friend the Member for Greenwich and Woolwich has just said. The money sits in the account of the revenue collection counterparty for a time and then, when the decision is made about what to do with the money, the Treasury nicks it. That is not right and it is not what should be done. As we have established, if there are surpluses in those funds, they should certainly be returned to the supplier and the supplier should make sure that they are returned to the customer.

As we have said on a number of occasions, the customer is at the heart of the process as they are funding it through their bills. They are not paying free money into the Treasury but paying into the process on a reasonable basis of allowed costs. If those allowed costs prove to be more than is required, the least they should reasonably expect is to get their money back.

There should be no talk of the Consolidated Fund in the Bill; I do not think it is right that it should be in the Bill. We have sought to suggest in the amendment that only if there are no other recourses for the payment of those funds should it even be considered that money go into the Consolidated Fund. I can conceivably imagine circumstances in which nothing else could be done with the money but put it into the Consolidated Fund, but it is a real squeeze for me to think that.

The Secretary of State must be able to think of better purposes for the money than for it to go in that direction. The amendment strengthens the Secretary of State’s ability to do that. I hope that the Secretary of State—the Minister; I am promoting him again—will be happy to accept it as a clear understanding of what we want to do with the money unless absolutely pressed to do otherwise.

15:45

[Matthew Pennycook]

I rise to speak briefly to amendment 17, because it relates to an important matter that builds on our earlier discussions. I listened to the Minister and heard what he said about the revenue collection contracts arrangement seeking to replicate the tried and tested CfD arrangement, as he put it. The thing that makes what we are talking about different is that there has never been a CfD arrangement of the size of the RAB nuclear model. The scale of the capital commitment involved in a nuclear project dwarfs anything that we have seen before. The changes in total nominal amounts that are likely to happen from year to year in the scale of that capital value could mean that we have large fluctuations in the amounts being collected by the counterparty.

The Minister has said that regulations will address that and are forthcoming via the affirmative procedure. He expects that the reconciliation process of attempting to ensure that the revenue stream matches the allowed expenditure will happen twice a year, but there is the possibility that very large sums will sit within the counterparty, even if just for months. The amendment tries to address the possibility of those funds, or a proportion of them, finding their way into the Consolidated Fund.

It surely has to be the case, and I assume that it is the Minister’s intention via regulations, that the reconciliation process should be as frequent as possible so that the revenue stream matches the allowed expenditure at any point in the construction. I foresee circumstances in the production phase, however—perhaps not in the construction phase, because it is unlikely that a future nuclear project will come in under budget given their history—in which a company’s revenue from power sales might exceed the allowed revenue. There is a chance that we could see large mismatches and, therefore, lots of funds being stored up in the counterparty.

The central thrust of what the Opposition are trying to do with the Bill is to protect consumers and ensure that they pay the lowest possible amount to get a project such as the one that we are talking about onstream. It is therefore really important that we ensure that the Treasury cannot in any circumstances, unless it has exhausted all other options, take part of the funds that may sit with the counterparty for relatively brief periods. The Treasury could decide to take sizeable amounts, and it is important that they flow back to suppliers and, ultimately, to customers. That is the thrust of the amendment.

[Greg Hands]

As the hon. Members for Southampton, Test and for Greenwich and Woolwich laid out, amendment 17 addresses the situation in which funds held by the counterparty may be paid into the Consolidated Fund, which of course is the Government’s general bank account at the Bank of England. Currently, the legislation allows the revenue regulations to provide for sums to be paid into the Consolidated Fund. The intention of the amendment is to narrow the scope of that so that the regulations can provide for sums to be paid into the Consolidated Fund only where there is no alternative.

I thank the hon. Members for the amendment, which they explained well. It certainly echoes my sentiment that consumer funds should not generally go into Government accounts. I reassure Members that we envisage the power to have limited but important uses. For example, it could be used to ensure that the counter- party repays a loan given by the Government—by the taxpayer—to respond to an emergency. That is not a hypothetical situation. We saw the importance of it quite recently in the course of covid, when the Government did indeed have to provide a loan to the counterparty for the contract for difference regime: to the Low Carbon Contracts Company.

The taxpayer should be able to be repaid that loan, but the amendment provides that sums cannot be paid into the Consolidated Fund where there is an alternative. I could see a number of people making an argument that different things that could be done with that money would provide alternatives to what is being envisaged: in this case, repaying the taxpayer. If passed, the amendment would unnecessarily narrow the scope of the power in a way that would limit its use. I hope that my explanation has shown Members the importance of the power, which is in my view unlikely to be used. However, I have given a real example from the last couple of years of where exactly such a situation arose.

[Alan Brown]

The Minister has given the example of an emergency loan, but surely the regulation is all about

“apportioning sums…received by a revenue collection counterparty from electricity suppliers under provision made by virtue of section 19”.

Clause 19 is about collecting money from electricity suppliers; ergo, the example of a loan does not equate to what this is about.

[Greg Hands]

I disagree with the hon. Gentleman. My understanding is that the loan would not be repayable if an alternative were there. The ambiguity of an alternative would unnecessarily narrow the scope of the power, though I appreciate where he is coming from.

[Alan Brown]

I ask the Minister to read clause 21(1)(a), which contains the reference I quoted to clause 19, which I do not think covers the emergency loan situation.

[Greg Hands]

We will just have to agree to disagree. I think the amendment unnecessarily narrows the scope of the power in a way that we would not wish to see in terms of protection of the taxpayer. I therefore ask the hon. Member for Southampton, Test to withdraw it.

[Dr Whitehead]

I thought that this was the most reasonable amendment by far that we have tabled. I am sorry that the Minister has responded in the way that he has. He made the point that some money that had come from the taxpayer might be sitting in the funds of the revenue collection counterparty, and should therefore be paid out of it. That would actually be covered by the amendment, which would insert:

“not to be paid into the Consolidated Fund unless there is no other alternative.”

If someone were trying to pay back a loan that they effectively got from the Consolidated Fund in the first place, there is no alternative other than to pay it back to the Consolidated Fund, so the amendment would cover that. We want circumstances in which the Treasury—I am sure that the Minister does not particularly want to be a high-ranking Treasury Minister in the future—

[Greg Hands]

Again!

[Dr Whitehead]

Again—indeed. I think the Minister will know from his previous experience that the Treasury is not above, shall we say, treating all Government money as essentially its own. In circumstances in which the Treasury thinks that it can get hold of certain amounts of money, it may well do so. Obviously, the purpose of Bills is not to be written to keep the Treasury’s hands off money that it really should not have, but it might not be such a bad idea at least to put that in regulation so that it would be fairly hard for that to happen. As the amendment is drafted, however, it is not a prohibition; it just says that there needs to be a pretty good argument—the argument made by the Minister about the loan, for example—for that money to be paid into the Consolidated Fund. That, really, is all the amendment says, and I think that is a wholly better construction than what is in the Bill.

[The Chair]

Dr Whitehead, are you pressing the amendment to a vote?

[Dr Whitehead]

Given the circumstances, I think I will.

Question put, That the amendment be made.

Division 5

Ayes: 6

---

Labour: 4
Scottish National Party: 2

Noes: 7

---

Conservative: 7

Clause 21 ordered to stand part of the Bill.

Clause 22

Enforcement

Question proposed, That the clause stand part of the Bill.

[The Chair]

With this it will be convenient to discuss clauses 23 to 30 stand part.

[Dr Whitehead]

The Labour party accepts that the clauses cover important technical matters relating to how the rest of this part of the Bill holds together, and we therefore have no objection to their being taken together.

Question put and agreed to.

Clause 22 accordingly ordered to stand part of the Bill.

Clauses 23 to 30 ordered to stand part of the Bill.

Ordered, That further consideration be now adjourned. —(Craig Whittaker.)

15:59

Adjourned till Thursday 25 November at half-past Eleven o’clock.

Judicial Review and Courts Bill (Eleventh sitting)

Committee stage
Tuesday 23rd November 2021 Public Bill Committees

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

Public Bill Committee

Tuesday 23 November 2021

[Andrew Rosindell in the Chair]

Judicial Review and Courts Bill

Clause 47

Commencement and transitional provision

14:00

[The Chair]

We resume with clause 47 and amendment 30. I would like to be able to call Anne McLaughlin, but she is not here.

[The Parliamentary Under-Secretary of State for Justice (James Cartlidge)]

On a point of order, Mr Rosindell. On behalf of all colleagues, may I say how grateful we are that you allowed us to attend the funeral this morning, instead of sitting in Committee? I thought it was a profoundly moving occasion, and your words were very moving in particular. It showed Parliament at its best.

I just said to the Doorkeepers that I thought the moment when they walked behind the coffin was one of the most moving I have seen as an MP. I thought it appropriate to put on record my thanks for the adjournment this morning, and that we all dearly miss our great friend. It was a very fitting and beautiful service.

[The Chair]

I thank the Minister for his comments on a very sad day for us all.

[Sir John Hayes (South Holland and The Deepings) (Con)]

Further to that point of order, Mr Rosindell. I do not want to prolong our proceedings unduly, but I think it is important to amplify the Minister’s remarks. Without wishing to embarrass you, you were a very close friend of Sir David. We were all his friends, but you were particularly close to him. We are grateful for your being here this afternoon, and I think we would all agree that it was a fitting final farewell to a much-valued parliamentarian, a dear friend and, most importantly, a husband and father.

[Marco Longhi (Dudley North) (Con)]

Further to that point of order, Mr Rosindell. I echo the previous comments. As a member of the new intake, I had the good fortune of having an office on the same floor as Sir David Amess in 1 Parliament Street. As the lift doors open, his office door is immediately in front. It has been a terrible sadness, as you can well imagine, every time I have seen that door with a candle lit in front of it in recent days and weeks.

As a colleague and a fellow Catholic, I felt today’s mass and funeral celebrations were a very fitting goodbye to someone I did not really get to know that well but someone who, as an elder statesman who had been round the block a few times, if I can put it that way, made me feel very welcome. He made a point of coming to say, “Hello. Who are you? Where are you from?” in his indescribable, unique way.

[Tom Hunt (Ipswich) (Con)]

Further to that point of order, Mr Rosindell. Extending on that theme, I was also very honoured to be at Westminster Cathedral this morning. I know how close you were to the late Sir David, and I am lucky to class you as a close friend of mine.

Sir David was somebody who was very visible in the Chamber. I remember in my first few weeks after being elected that I wanted to figure out how to do the job effectively, and I went around to canvass some names of people I should talk to about how to do the job effectively as a constituency MP. Sir David’s name came up almost as many times, and perhaps more times, than yours, Mr Rosindell. He was incredibly characterful, and I will always remember the summer and Christmas Adjournment debates when he would fire off 30 or 40 points within two or three minutes, when I would have mentioned barely one or two. It is with some sadness, though, that I say that he was somebody whom I always assumed I would meet and get to know very well, but that I was not given that opportunity. Like my hon. Friend the Member for Dudley North, who is a fellow Catholic, I was very moved by the incredibly powerful mass. I was lucky enough to take communion today—I have had my first holy communion and Father Pat has been trying to get me to have a confirmation: he is keeping his eye on me. It was incredibly moving today, and it might have done the job. I think that I will do that.

[Andy Slaughter (Hammersmith) (Lab)]

Further to that point of order, Mr Rosindell. May I associate the Labour party with the remarks of the Minister and Conservative Members about Sir David? I commiserate with the Members of the 2019 intake—because of covid, they probably did not get a chance to know him. But they would have got to know him pretty quickly, with us all being back here. As somebody from a very different political tradition, I worked very closely with him for the last five years through his chairmanship of all-party parliamentary fire safety and rescue group, which was astonishing. We all know that all-party parliamentary groups have a multitude of successes and failures. That was an astonishingly powerful and well-organised body, particularly in the wake of Grenfell. It really was a pleasure not only to know him but to see how effective he was as an operator in Parliament. We will all miss him. I know that you will particularly, Mr Rosindell, as a friend. We will all miss him as a friend, a colleague and a wonderful parliamentarian.

[The Chair]

Thank you all very much for those words. I hope that we might send a copy of the report of these remarks to Lady Amess and the family, so that they are aware of some of the kind words that have been spoken this afternoon about Sir David, who, as many have commented, was a very dear friend to me and to many in this room. I am only sorry that some were not able to get to know him as well as I knew him, because he was somebody very special—a fantastic Member of Parliament, a fine constituency MP and a very dear friend to so many. I thank you all for your very kind words this afternoon.

Fortunately, Anne McLaughlin is now with us, so we can move to clause 47 and amendment 30.

[Anne McLaughlin (Glasgow North East) (SNP)]

I beg to move amendment 30, in clause 47, page 54, line 34,  at end insert—

“(7) Notwithstanding the provisions above, this Act shall not come into force until the Lord Chancellor has laid before Parliament a written statement confirming that no provision in this Act contravenes Article 6 or Article 13 of the European Convention on Human Rights.

(8) The statement under subsection (7) must be laid before Parliament within three months of this Act being passed.”

This amendment would prevent any Act resulting from this Bill from coming into force until the Lord Chancellor confirms, via a written statement to Parliament, that none of its provisions contravene ECHR Article 6 (right to fair trial) or ECHR Article 13 (right to effective remedy).

I thank everybody on the Committee for their forbearance during the last week, while I was struggling to move, and today, when I underestimated how long a usually seven-minute walk to get here would take me. Thankfully, I have an X-ray on Thursday, and I hope that something will come of that.

May I also associate myself and my hon. Friend the Member for Lanark and Hamilton East with the remarks on Sir David Amess? I did not know him; I knew exactly who he was, though. There was that smile that made him stand out—a really genuine smile that reached his eyes. I always noticed that. I did not know him personally, but listening to people speak about him, including many people in the SNP group, who knew him really well and are really hurting, makes me wish that I had. Maybe that can teach us something in this place: that there are people who we can identify with and befriend who have different views from our own. Thank you for allowing me to say that.

I sure that Conservative Members and Opposition Members will agree with the fundamental principles that we should all be afforded the right to a fair trial and effective remedy. There can be little dispute that those are the cornerstones of a justice system that respects the rule of law and principles of natural justice. Amendment 30 seeks confirmation from the Lord Chancellor that any provision in the Bill will be prevented from coming into force if it contravenes article 6 or article 13 of the European convention on human rights: the right to a fair trial and the right to an effective remedy.

We have already debated how provisions in the Bill, such as the presumption for using prospective-only quashing orders, could risk breaching article 6.1 of the European convention on human rights on the right to a fair trial, which requires an effective judicial remedy. The amendment would ensure the Government had the opportunity to make cast-iron guarantees that that will not happen. That would be expressed via a written statement from the Lord Chancellor, laid before Parliament within three months of the Bill being passed.

The Minister may wish to point out that article 13 does not apply to the Human Rights Act 1998, but it could be applicable in the European Court of Human Rights in Strasbourg and that is why we felt it appropriate to include it in the amendment. Strasbourg does not recognise the practice of failing to give human rights without an effective remedy. Rather than stripping away rights, the Government should consider in any proposed review of the Human Rights Act that the right to effective remedy be added. As the Minister has assured us that the Bill will furnish the courts with a broader set of tools, with no risk of restricting individual claimants’ rights, he will surely consider the amendment a gift from me to him to help clarify his position.

[James Cartlidge]

Thank you for your generosity in allowing us to pay our tribute, Mr Rosindell, following this morning’s very moving mass at Westminster Cathedral.

The amendment would prevent any measure in the Bill from coming into force until the Lord Chancellor has provided a written statement to say that no provision in the subsequent Act contravenes article 6 on the right to a fair hearing and article 13 on the right to effective remedy of the European convention on human rights. I assure hon. Members that none of the measures in the Bill contravenes either article 6 or article 13.

The hon. Member for Glasgow North East mentioned remedies. We have the new remedies relating to quashing orders, which are a key part of how the Bill improves judicial review. In clause 1, there are adequate safeguards to ensure that any individual exercise of the new remedial discretions provides an effective remedy in cases concerning violations of convention rights. That is because the measures do not limit the availability of any existing right for such a breach and their use remains open to the court’s discretion. Presumption in favour of any of the remedial discretions only operates in circumstances where its exercise would

“offer adequate redress in relation to the relevant defect”

and it may be rebutted where there is good reason to do so. Further, the court is required to consider the interests or expectations of persons who would benefit from quashing of the impugned Act, as well as considering other factors.

On clause 2, regarding Cart judicial review, our position is that article 6 does not require a further right of judicial review in relation to decisions concerning permission to appeal from the first-tier tribunal to the upper tribunal and therefore considers that the measure does not interfere with an individual’s right under article 6.

When the Bill was introduced, the Lord Chancellor at the time signed a statement under section 19(1)(a) of the Human Rights Act 1998 to confirm his view that the provisions in the Bill are compatible with the convention rights. When the Bill passes to the other place, a second statement will be made, as required under section 19, taking into account any amendments. Should any Government or non-Government amendments be made that we felt contravened those statements, we would inform Parliament. It would be a breach of the ministerial code to proceed towards Royal Assent without either amending the provisions or informing Parliament of the issue.

In addition, ahead of introducing the Bill, the Government carried out a full ECHR analysis and published a memo for the Joint Committee on Human Rights setting out that analysis on parliament.uk. The previous Lord Chancellor wrote to the Committee’s Chair when the Bill was introduced and we will engage with the Committee fully should it choose to publish a report on the Bill. In summary, the Bill currently does not contravene either article 6 or article 13, and appropriate measures are in place should that no longer be the case at any point during its passage. I therefore urge the hon. Lady to withdraw the amendment.

[Anne McLaughlin]

In the light of what the Minister has said about the potential breach of the ministerial code, and knowing how seriously almost everyone takes that, I hope that what he tells me is correct. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

14:14

[Anne McLaughlin]

I beg to move amendment 31, in clause 47, page 54, line 34, at end insert—

“(7) Notwithstanding the provisions above, nothing in this Act relating to Scotland shall come into force without a consenting resolution being passed by the Scottish Parliament.”

This amendment would require the consent of the Scottish Parliament to be given to any provisions in the Bill that relate to Scotland for those provisions to come into force.

As I am sure the Minister is aware, under the Sewel convention the Scottish Parliament should have the final say over any attempt by the UK Parliament to legislate in devolved areas. In recognition of the separate and distinct nature of Scotland’s legal system, article 19 of the Treaty of Union protects the authority and privileges of Scotland’s Court of Session. This is a fundamental part of the UK constitution and this amendment would ensure that the UK Government respect the principles of the Sewel convention and the constitutional arrangements.

Without an amendment specifically guaranteeing the requirement of consent from the Scottish Parliament to any provisions in the Bill that relate to Scotland, we risk interference with Scottish legal processes. The Faculty of Advocates, which was represented at the evidence sessions of this Committee, has said that in Scotland

“judicial review does not suffer from a lack of clarity, and any attempt to codify it is likely to undermine the very flexibility that renders it effective.”

Furthermore, Liberty has also commented on the situation and has said that

“the Act of Union does not serve to enable the UK Government to reshape the jurisdiction of the Court of Session. These are not technical or procedural points. In any event, the administration of the courts and the justice system in Scotland clearly falls within devolved competence.”

I am certain the Minister and Members opposite will be aware that this amendment is not only a reminder that this convention exists, but that it too must be respected in statute.

[James Cartlidge]

The amendment would require the consent of the Scottish Parliament to be given to any provisions in the Bill that relate to Scotland. I am emboldened to say that the word “relate” is in bold in my text, as that word is very important. I have a number of constitutional concerns about the amendment.

To reassure the hon. Members for Glasgow North East and for Lanark and Hamilton East, the measures in this Bill relate wholly to reserved matters. Ministers and officials have been engaging with the devolved Administrations over the course of the Bill, and we will continue to do so when the provisions in the Bill come into force.

I believe we are in agreement that chapter 2, “Online procedure,” and chapter 3, “Employment tribunals and the Employment Appeal Tribunal,” of the Bill relate to matters outside the competence of the Scottish Parliament. Yet this amendment would still apply to the clauses in those chapters and require the consent of the Scottish Parliament before they could come into force.

The majority of the criminal procedure measures also relate only to England and Wales, although, as I have previously noted in Committee, we are aware that the Scottish Government’s position may be that the new automatic online procedure, introduced by clause 3, engages the legislative consent process. Furthermore, we believe that this is outside the competence of the Scottish Parliament, which, in the Government’s view, does not engage the legislative consent process.

With regard to removing Cart JR, I should make clear that the unified tribunal system is a reserved matter, where it relates to matters of reserved policy. Our measures on Cart will apply to the whole of the UK, but only in respect to the matters heard in that tribunal system that fall outside the competence of the Scottish Parliament. The provisions relating to remedies apply to England and Wales only.

If it came into force, the amendment would actually lead to decisions in reserved areas operating differently across the UK, thereby reducing the clarity the Bill currently provides. In line with the memorandum of understanding on devolution, we will continue to engage with the devolved Administration at a ministerial and official level to ensure that we have time to fully understand any implications for the Scottish court system.

On that basis, I cannot accept this amendment and I urge the hon. Lady to withdraw it.

[Anne McLaughlin]

I am not sure what I am supposed to say, but I do not wish to withdraw the amendment.

Question put, That the amendment be made.

Question negatived.

Question proposed, That the clause stand part of the Bill.

[James Cartlidge]

This is one of those long ones, Mr Rosindell. This clause sets out when the measures will come into force. While some measures will come into force two months from when the Act is passed, including the coroner’s provisions and two of the criminal provisions, in clauses 14 and 15 and schedule 1, the remainder of the Bill will come into force by regulation.

Question put and agreed to.

Clause 47 accordingly ordered to stand part of the Bill.

Clause 48

Short title

Question proposed, That the clause stand part of the Bill.

[James Cartlidge]

I just need to check I have enough water for this one. The clause is the short title of the Bill.

Question put and agreed to.

Clause 48 accordingly ordered to stand part of the Bill.

[The Chair]

We now come to new clauses. I understand that the Opposition do not intend to press new clauses 1 and 2, which have already been debated, to a Division, so we will begin with new clause 3.

New Clause 3

Exclusion of review of the Investigatory Powers Tribunal

(1) Section 67 of the Regulation of Investigatory Powers Act 2000 is amended as follows.

(2) Leave out subsection (8) and insert—

“(8) Subject to section 67A and subsections (9) and (10), determinations, awards, orders and other decisions of the Tribunal (including decisions as to whether the Tribunal has jurisdiction and purported determinations, awards, orders and other decisions) shall be final and shall not be subject to appeal or be liable to be questioned in any court.

(9) In particular—

(a) the Tribunal is not to be regarded as having exceeded its powers by reason of any error of fact or law made in reaching any decision; and

(b) the supervisory jurisdiction of the courts does not extend to, and no application or petition for judicial review may be made or brought in relation to, any decision of the Tribunal.

(10) Subsections (8) and (9) do not apply so far as the decision involves or gives rise to any question as to whether the Tribunal—

(a) has a valid case before it;

(b) is or was properly constituted for the purpose of dealing with the case; and

(c) is acting or has acted in bad faith, with actual bias or corruption or in some other way that constitutes a fundamental procedural defect.

(11) No error of fact or law made by the Tribunal in reaching any decision is to be construed as relevant to the question.”

(3) The amendment made by subsection (2) applies to determinations, awards, orders and other decisions of the Tribunal (including purported determinations, awards, orders and other decisions) made before the day on which this section comes into force.”—(Sir John Hayes.)

Brought up, and read the First time.

[Sir John Hayes]

I beg to move that the clause be read a Second time.

The new clause addresses the issue of the courts’ role in curtailing the use of the Regulation of Investigatory Powers Act 2000 and more especially circumventing the role of the Investigatory Powers Tribunal. It would restore Parliament’s choice in enacting section 67 of the Act so that the decisions of the Investigatory Powers Tribunal would not be subject to judicial review.

As Security Minister at the Home Office, I addressed these matters in an important piece of legislation that established the principle of a double lock in respect of the warranting of powers in the case of both suspected terrorists and serious and organised criminals. That is to say that tech companies are obliged to maintain a record of electronic communications that can be interrogated on application to the Home Secretary for a warrant. I introduced the double lock, so that as well as satisfying the Home Secretary of the validity of the case made by the police or the security services, a warrant must also pass the same test when put before a member of the Investigatory Powers Tribunal or a judge. That was a safeguard to ensure that those powers are used only when necessary and proportionate. It is that test of necessity and proportionality that lies at the heart of the exercise of powers in respect of security and related matters.

The problem—it is a challenge that we have considered on previous occasions in the scrutiny of the Bill: indeed, it has punctuated our consideration—is that the courts have taken it upon themselves to become involved in matters that should be the exclusive preserve of this House. It is very important to see the Bill in that context. The supremacy of Parliament is fundamental to protecting the interests of the people, and Parliament’s particular role in our constitutional settlement is not a matter—as was suggested by one of those who gave evidence to us—of mutuality.

Anybody who understands constitutional theory and practice will know of the work of A. V. Dicey. It is clear that parliamentary sovereignty, as Dicey argued, confers on Parliament a dominant characteristic. Parliament consists of Her Majesty the Queen, the House of Lords and the House of Commons acting together, and therefore:

“The principle of Parliamentary sovereignty means neither more nor less than this”.

In Dicey’s words, Parliament has

“the right to make or unmake any law whatever; and, further, that no person or body is recognised by the law of England as having the right to override or set aside the legislation of Parliament.”

Those are the words of A. V. Dicey in affirming the principle of sovereignty. He goes on to say that parliamentary sovereignty must be thus described:

“Any Act of Parliament, or any part of an Act of Parliament, which makes a new law, or repeals or modifies existing law, will be obeyed by the courts…Some apparent exceptions to this rule no doubt suggest themselves. But these apparent exceptions, as where, for example, the Judges of the High Court of Justice make rules of court repealing Parliamentary enactments, are resolvable into cases in which Parliament either directly or indirectly sanctions subordinate legislation.”

Legally, sovereign power is assuredly maintained by Parliament. It is quite wrong for the courts to be used as a way to perpetuate debate. We heard that from the Minister in particular respect of the way that judicial review has metamorphosised over time to perpetuate debate in particular cases that have been settled previously. The Minister described it as having several bites of the cherry. That is not the role of judicial process, and the Bill goes a considerable way to addressing that, but it does not go far enough.

The purpose of the new clause is to probe and press the Minister—I will not put it more strongly than that—to go further in affirming the sovereign role of Parliament described by A. V. Dicey. The power of Parliament has been drawn into question, particularly in respect of the Investigatory Powers Tribunal, as I said. The Supreme Court, in a perverse judgment, effectively set aside Parliament’s lawmaking choice in May 2019 in the landmark judgment of Privacy International v. Investigatory Powers Tribunal. Hon. Members will remember that the case was raised in the first oral evidence session by Professor Ekins, and addressed by him in his paper for Policy Exchange. I once again thank Policy Exchange for publishing that paper, which has added to our understanding of and insight into these matters.

In essence, the new clause, tabled in my name and that of my hon. Friend the Member for Ipswich, and supported by other Committee members—I say that with some timidity and hesitation, because I cannot presuppose that support until I have persuaded them by the power of my oratory; none the less, I am confident that it has some sympathy of other Committee members—is an opportunity for the Government to do what the Attorney General recommended in her recent speech in Cambridge, in which she identified the problem I describe of the courts taking a more incursive role into the business of high politics than is their proper place to do. The new clause, in respect of the Regulation of Investigatory Powers Act 2000, attempts to do just that.

The new clause would reverse the Supreme Court’s judgment and reinstate the law that Parliament clearly made. Before the Privacy International case, the courts had taken section 67 of the 2000 Act to be a clear, unambiguous ouster clause that excludes the jurisdiction of the courts in relation to the Investigatory Powers Tribunal. For 19 years, there has been no possibility of judicial review. In recent court judgments, including others such as the Adams case and the Miller case, we have seen the creeping role of the courts into those areas, with judicial review being used as the mechanism to allow that mission creep. It is important that the Government recognise that—from what the Minister has said, I think they do—and take effective action to address it.

14:30

I suppose what I am saying is that the Bill could have been a bigger piece of legislation. As you will know from your long experience in the House, Mr Rosindell, new clauses are sometimes a way of encouraging the Government during the further consideration of a Bill to listen to the arguments that have been made during scrutiny and to allow it to do more than was originally intended. The alternative would be to bring in another Bill, but it is always difficult to secure time in the legislative programme. The likelihood of another Bill in the same subject area is small, so this may be our chance. It is a rare and special chance for the Minister to become something of a star, if I might put it that way, in the battle to affirm the constitutional place and historic role of Parliament in relation to the courts.

The then Lord Chancellor, my right hon. and learned Friend the Member for South Swindon (Robert Buckland), made a powerful critique of the Privacy International judgment and of the 2015 Evans judgment, which concerned the disclosure of the Prince of Wales’s letters, which was a similar case of the courts taking unusual—I would say exceptional—power with an undesirable outcome. In the Evans case, a Supreme Court majority effectively overturned part of the Freedom of Information Act 2000.

The constitutional problems with the Supreme Court’s reasoning in that case are set out in a previous Policy Exchange paper written by Professor Ekins and Professor Forsyth of the University of Cambridge. Their argument was strongly endorsed by Lord Hoffmann and Lord Brown, two of the country’s most senior judges, and by Lord Faulkes, who chaired the independent review of administrative law last year.

Speaking about that case, the then Lord Chancellor said:

“when enacting the provisions at issue in Privacy International and Evans Parliament did not believe that it was infringing the rule of law (and indeed the judges in the minority in both cases agreed). It was also perfectly clear, as the minority recognised, what Parliament actually intended. Provided Parliament’s assessment was not wholly unreasonable, it does not appear to me to be right to frustrate that intention”.

That is a powerful critique. Even if Parliament had been wrong to enact section 67(8) of the Regulation of Investigatory Powers Act 2000, it was a decision for Parliament to make.

A fundamental issue is at stake here. We are answerable to the people and our legitimacy is derived from the people. Although it is important that an independent judiciary plays its part in our constitutional settlement, it is not a matter of reciprocity or mutuality; it is not about alternative sources of power. This place is the source of legitimate democratic power because we, as I say, draw that authority from the people. We speak for the people and are answerable to the people. That is the point. It is not right for that mission creep to allow others to exercise power, who are not directly accountable in the way that I have described.

The new clause focuses on the important Privacy International case, but it also speaks to those other wider and deeper matters. By accepting the new clause, as I am confident the Minister will with good grace and alacrity when he rises to speak, the Government will be doing a great service not only in their own interests, because the new clause is entirely in keeping with the essence of the legislation’s intention, but in recognising that the Bill provides a special, unusual, perhaps even a unique opportunity to right these wrongs.

Without wishing to delay the Committee further, I say to my colleagues on the Conservative Benches and, by the way, to those across the House, that the Bill has been debated in good spirit, and with appropriate care. I paid tribute in an earlier session to the hon. Member for Hammersmith, but I do not want to do so again, else we will start getting the reputation of being too friendly with each other. I do not want to give the impression that I am in the thrall of the hon. Gentleman. The Bill has been debated in the right spirit and in a sensible and positive way. To Opposition Members, I say that it is important for all Members of the House to recognise the authority of this place, as I have described, for that is our mission and purpose. I am disturbed by the increasing judicial activism that has led through series of cases—I could talk about the Miller case, and I referred briefly to the Adams case—which is changing the balance of our constitution from this place to elsewhere.

In summary, I was proud to take security legislation through the House that gave the Security Service and the police the powers that they need to protect us from those who seek to do us harm. We have put into place safeguards and protections in earlier security legislation and in the legislation that I took through myself. We are clear that there have to be those safeguards, and of course it is right that all the agencies on which we confer extensive powers are themselves accountable. But it is not right for the courts to frustrate the will of this House.

To that end, I am pleased and proud to propose the new clause in my name. Of course, needless to say, at this stage I will not say that I am going to push it to a vote; that would be quite wrong, because it would suggest that the Minister could just say anything. I do not want to let the Minister off the hook. He knows that I am a supportive and friendly member of the Committee; but none the less, I am expecting him to at very least say that he is minded to consider these matters, or the full power of the Back-Bench Members of the Committee could be felt and heard, to the distress of my great friend who sits on the Front Bench next to the Minister, namely my hon. Friend the Member for North Cornwall. As I said to him last week, were that to happen, he would have a grey mark against him, next to my black one.

I say to the Minister, persuade me otherwise, or agree at least to consider the matters addressed by the new clause because it is very much inspired by the message that he has broadcast to the Committee: the Government want to get things right in respect of the power of courts alongside the power of Parliament.

[Andy Slaughter]

The right hon. Member for South Holland and The Deepings takes us back into the important constitutional territory with which he started his consideration of the Bill. He also, knowingly or not, revealed something about his taste in curry. For those who are looking slightly amiss about that, I refer to the opening paragraph of the article concerning the Bill that appeared in The Mail on Sunday, which said:

“The Justice Secretary, Dominic Raab, regards himself as a spicy ‘Vindaloo’ politician compared to the bland ‘korma’ represented by his predecessor, Robert Buckland, sources in his new ministry have told the Mail on Sunday.

The bizarre comparison was made in the context of the Judicial Review Bill, inherited by Mr Raab from Mr Buckland, which aims to clip the wings of the Judiciary over the extent to which they can rule on political decisions, such as Boris Johnson’s suspension of Parliament during Brexit negotiations in 2019.”

I will not go on, partly because the article contains some unparliamentary language, and in fairness to the Justice Secretary it ends with the immortal line:

“A source close to Mr Raab denied that he had ever compared himself to a vindaloo curry.”

The right hon. Member for South Holland and The Deepings puts himself more in the vindaloo than the korma camp with his comments, but I note that the new clauses that he has tabled are a subset of those in the Policy Exchange document, to which he referred, by Professor Ekins, who was one of the witnesses who gave evidence to the Committee. That document was a very powerful concoction indeed, because it contained 20 suggested new clauses or amendments, which were whittled down to seven on the amendment paper. After excluding those that were not in scope, we are down to two.

None the less, the import of what the right hon. Gentleman intends is still there, so I will respond to new clause 3 and, in due course, to new clause 5, and say to the Minister that it would be wrong to accept the new clauses, partly because of what they say and partly because of the way they are being introduced at this stage; they should really have come through the usual processes. That is to say nothing about the right of the right hon. Gentleman to table them now to raise the issue. Nevertheless, the provisions are being put to the Committee at a very late stage. The way in which they were tabled leaves no time for substantial parliamentary engagement or the required serious consideration of their merits.

Of course, Parliament is supreme, and there may be a case for looking at the propriety of certain Supreme Court decisions or changing the way that judicial review works, but this is not the proper way to enact measures of such constitutional significance. The bottom line is that if Parliament wishes to modify or overturn legal decisions as significant as those highlighted here, it should do so through a proper and full debate, with a full consultation beforehand, so that it can benefit from a wide range of expert views. Parliamentarians should be empowered to make proper, informed decisions. These rushed provisions undermine the parliamentary process and threaten ill-considered constitutional reforms, with unknown consequences.

[Sir John Hayes]

On the timing, the hon. Gentleman makes a fair point. He will know how the House works; he has been in it a long time. Clearly there will be opportunities for further consideration of the matters that I have raised, both on Report and during the Bill’s passage in the other place, so we are at the beginning of a very long journey.

As I said, I have not decided whether to press the new clauses to a vote, but I am putting down a marker. The hon. Gentleman will have seen that happen many times; indeed, he has done the same during scrutiny of the Bill, and I hope that some of his arguments will be heard. On the character of the marker, the new clause respects new clause 2 in terms of exceptional cases where the tribunal has acted in a perverse way, so it allows legal consideration of any exceptional, ambiguous or improper decision by the tribunal.

[Andy Slaughter]

I am grateful to the right hon. Gentleman, who made several points there. I am coming on to deal with each of them. I suspect that his new clauses and comments are directed as much—if not more—to his own Front Benchers as to me in putting that marker down, but the Government must have taken some care with the long title of the Bill, which is tightly drawn.

Obviously, I do not question the wisdom of the Clerks, but the two new clauses we are debating this afternoon have squeaked through because the long title clearly identifies what is in clauses 1 and 2. With all respect to the other place, and there are more stages still to go, it is not just the deliberation in both Houses that is important when discussing constitutional matters.

14:45

We heard from some, but only some, of the experts in the field. I concede there was a significant consultation process; perhaps the Government did not get the responses they wanted the first time, so they went back and had another go. Nevertheless, they have had at least two bites of the cherry in the consultation.

[James Cartlidge]

Ah! That’ll do.

[Andy Slaughter]

That is enough, apparently—according to the Minister.

Having gone through that process, the Government decided to push forward with focused reforms to Cart judicial reviews to modify the nature of discretionary remedies only. This new clause, and indeed new clause 5 and the other new clauses that were not selected, would go much further. If these proposals were being taken seriously, they would be headline provisions in the Bill, not underdeveloped addendum clauses introduced without proper consideration and in their current form. It is inappropriate to being these measures into force as proposed.

The new clauses are not supported by, and in some cases go directly against, expert analysis or wider consultation. The measures being taken forward by the Government in this Bill were preceded by extensive consultation and engagement with experts and stakeholders. That includes the work of the independent review of administrative law and contributions from across the sector, including the judiciary.

The same cannot be said of these new clauses. In fact, the majority of experts and the Government themselves rejected some of the very measures they propose. For example, the changes to the disclosure duty in new clause 5 were considered but ultimately rejected by the independent review of administrative law. The Government agreed at the time that the reforms were unnecessary.

The new clauses try to address significant, complex areas of law in an overly simplistic way, and many of the apparent problems these new clauses seek to resolve are more complicated than the proposals seem to believe or understand. The rules on evidence disclosure, for example, have developed so that disclosure is tailored in each case to ensure that justice is done, whereas the new clauses take a blunt hammer to this sophisticated scheme. Unfairness is therefore inevitable.

The solutions are blunt and may lead to unintended consequences. Although several of the new clauses have been found to be out of scope, they amount to an attack on our constitutional balance. The result would be a great reduction in judicial protection, the disempowerment of aggrieved citizens and a Government who are unacceptably insulated from scrutiny.

[Dr Caroline Johnson (Sleaford and North Hykeham) (Con)]

The hon. Gentleman is talking about constitutional balance, as did my right hon. Friend the Member for South Holland and The Deepings. The important question is: who is ultimately in charge of making the laws of the country? Parliament has the right, given by the electorate, to decide the law. The principle of the judgment said that should be limited by the judiciary in some cases, which throws up an important constitutional question that we need to look at.

[Andy Slaughter]

Absolutely. Parliament is supreme and can will what it likes. That is very clear. Where the balance lies is what is in dispute here. The question is the appropriate role of the judiciary, which is exactly how the doctrine of judicial review has developed.

[Dr Johnson]

With respect, that point is not in debate. What Lord Carnwath said is:

“In all cases, regardless of the words used, it should remain ultimately a matter for the court to determine the extent to which such a clause should be upheld, having regard to its purpose and statutory context, and the nature and importance of the legal issue in question; and to determine the level of scrutiny required by the rule of law.”

What I understand is being said—the hon. Gentleman can correct me if I am wrong—is that in some cases the legislature does not have the right to pass particular laws.

[Andy Slaughter]

No, and even the vindaloo version—the full Ekins version—does not attack the doctrine of judicial review. It is saying that the courts sometimes resolve matters procedurally and sometimes, in relation to specific judgments, the court has got it wrong and it is Parliament’s job to overrule, which Parliament is entitled to do. At the end of this legislative process, Parliament will have made those decisions. What we are debating now is what is or is not appropriate. Specifically, we are debating two discrete issues. The first is the decision in the Privacy International case against the Investigatory Powers Tribunal and whether an ouster should be imposed, and the second is about rather more widespread issues to do with disclosure and witness evidence. I am perfectly open to arguing those issues, but the point is that we happen to disagree: these measures are wrong, and that is what we are going to debate this afternoon.

Let me talk more specifically about new clause 3. The new clause would effectively overturn the decision in the Privacy International case by excluding judicial review of the Investigatory Powers Tribunal subject to a number of limited exceptions that broadly, although not exactly, mirror those in clause 2. That means that judicial review would be excluded except where the High Court must consider whether the tribunal had a valid case before it; was properly constituted to hear the case; or acted in bad faith, with actual bias, corruption or some other fundamental procedural defect.

As I have said, this would insert a second ouster clause in the Bill and would be a concerning addition to the restriction of Cart judicial reviews. The new clause includes similar exceptions—bad faith, fundamental procedural defect and so forth—to the ouster in Cart, but crucially they are even narrower than those in clause 2, in that the exception of where the court has acted

“in fundamental breach of the principles of natural justice”

has been removed. The more restrictive exception of where the court acts in a way

“that constitutes a fundamental procedural defect”

has been added. The trend suggested is extremely concerning and risks having a serious impact on the ability of individuals to retain redress, not to be subject to unlawful exercise of power, and to hold the Executive to account.

The first thing to note is that there is immediate uncertainty around those exceptions and how they might operate. There is already a problem with the Cart ouster in the main section of the Bill, and I have spoken at length about that in previous sittings. That uncertainty would only be multiplied by this new clause.

Judicial review is an essential constitutional remedy, and attempts to introduce and proliferate ouster clauses, as this new clause seeks to do, risk undermining the UK’s constitutional framework and the protection against abuses of Executive power. Judicial review is generally available only where there is no other recourse to an alternative remedy. The effect of ouster clauses is therefore often to shut down all routes to challenge a decision, even if the decision has been based on a misinterpretation of the law.

Furthermore, judicial review is an integral part of the UK constitution based on parliamentary sovereignty, ensuring that there is a means to address injustices and abuses of power. It exists separately and in addition to the Executive’s political accountability to Parliament. Ouster clauses risk undermining the effectiveness of judicial review as a means of legal scrutiny of the Executive. No matter how unpopular the cause or the claimant, the rule of law still applies and the Executive should not be able to go beyond their legal limits without the potential for accountability in the courts. In fact, it is precisely for such claimants that judicial review is so crucial.

[Sir John Hayes]

I rise to correct the hon. Gentleman but not in an antagonistic way. He will understand that this new clause—and, indeed, the Bill—do not supersede section 67A of the Regulation of Investigatory Powers Act 2000, which does indeed say that the tribunal can be challenged on a point of law. Contrary to his argument, there remains in existing legislation an additional safeguard if the tribunal acts in a way that is contrary to proper legal practice, and a point of law is the ground for an appeal.

[Andy Slaughter]

I am grateful for that intervention. I will come in a few moments to the powers of the Investigatory Powers Tribunal, so let us see whether that satisfies the right hon. Gentleman.

In relation to the ouster in clause 2, I spoke about judicial review’s role in ensuring good and lawful administration, but as that issue has arisen again I wish to emphasise the point in this new context. Judicial review is an incentive to maintain high standards in public administration by public bodies, because the possibility of judicial review motivates decision makers to ensure that their decisions are lawful. Ouster clauses such as this one remove such motivation and, coupled with the removal of the means through with such decisions could be challenged, risk a decrease in the quality of Executive decision making.

Decisions and guidance from the courts can also help to improve policy development and decision making in Government. Judicial review provides the opportunity to bring to light legitimate concerns about a public body’s processes and decision making, and decision making in Government. Indeed, judicial review provides the opportunity to bring to light legitimate concerns about a public body’s processes and decision making and then also gives guidance on improving the processes in the future and encouraging good governance.

The same applies to the Investigatory Powers Tribunal. The decisions of the Investigatory Powers Tribunal relate to potentially very significant Executive powers in the area of surveillance and privacy rights. In this context especially, the risk of a breach of the fundamental rights of individuals is high. It is therefore crucial that Parliament has sufficient time to carefully consider the consequences of restricting judicial review in this context, and this last-minute amendment does not afford that.

Fundamentally—regardless of what anyone thinks about the merits of the Privacy International case—this is not the way to go about amending it, or even thinking about amending it. Parliamentarians will be asked to vote on what is in effect a very significant legal change, without any real appreciation of the possible effects and consequences and, as above, without the benefit of expert input through consultation and parliamentary examination. A provision such as this should be the headline measure in any Bill; it should be considered and debated seriously and properly; and anyone voting on it should have a full understanding of the issues. It should not be introduced as a last-minute addendum to an otherwise unrelated set of measures concerning judicial review remedies. This new clause as drafted will generate serious uncertainty.

There is also a substantive argument here. In the Privacy International case, the Supreme Court essentially held that it is very difficult for the Government to completely close off judicial review—in this case, concerning decisions of the IPT. The Government should be very careful about reversing that decision: the immediate consequence would be to close off judicial review. If it is thought that the Privacy International decision should be revisited in the future, it should be ensured that parliamentarians are fully aware of any consequences of doing that, and perhaps some middle-ground solution that preserves access to justice could be tried.

The amendment takes a sledgehammer to what should be a carefully crafted and sensitively considered issue. That, in my submission, is not the appropriate way to do good law making.

[Tom Hunt]

I will keep my remarks fairly brief; I see myself very much as a secondary signatory to these amendments from my right hon. Friend the Member for South Holland and The Deepings: my much wiser, senior colleague. However, at one point last week I did think that I would be spearheading these particular amendments myself. Fate has meant that I have assumed a less significant role today.

Most of the comments that I would like to make are in relation to new clause 5, so I will hold off from making those comments now. All I will say is this. I take the point that new clause 3 is significant and Parliament needs more time to look at it. That was not the case when the change occurred after the Privacy International case. Actually, something very significant happened there. There was a major change in relation to the powers tribunal, its role and the role of judicial review in reviewing its decisions, and Parliament had no say at all in supervising that or debating it. I would be grateful if the hon. Member for Hammersmith let me know whether he agrees with my view on that. If he is concerned that Parliament might not have more time to debate the significant change suggested now, surely he would consider it inappropriate for Parliament not to have had a role back when the role of judicial review in relation to that tribunal changed so significantly.

I think that there are two debates here. If we are asking our intelligence services to carry out incredibly unique and peculiar work and we have to have a tribunal that is very specialist in reviewing and taking into account work that they do, there is one debate there, but there is a second debate. Even if someone does not agree with that and they think that there should be a right of review, surely it is only right and proper that Parliament should be in a place to debate and decide on that. It should not just happen; the court should not just decide for itself that this is the right thing to do.

As I said, I am keeping my comments brief. I will return on new clause 5, on which I have more points to make.

15:00

[Anne McLaughlin]

I will be brief. Basically, I agree with the hon. Member for Hammersmith and share the concerns about this being the second ouster clause in the Bill. I feel it is a bit early to use the legal framework to oust Cart already.

I hope the Government will wait for the Bill to be enacted before trying that. I agree that the new clause is not the way to go about amending this. Such a provision should be a headline measure in a Bill; I think the right hon. Member for South Holland and The Deepings—that is a lovely constituency name—said himself that this would ordinarily be in a new Bill. I understand the argument that there is not an awful lot of time for new legislation, but I think this measure needs to be debated seriously and properly. Parliament needs a full understanding of the issues, following a full consultation.

I would argue an awful lot harder and longer than that, first, if I thought the Government were about to support the new clause, and secondly, if I thought anybody would listen. [Interruption.] I do not mean if they would listen to me; I mean if I thought we would ever win a vote in this place. The Government should be very careful in reversing that decision and should think about the consequences of it. I agree with everything that the hon. Member for Hammersmith has said.

[Sir John Hayes]

I am grateful to the hon. Lady for being so kind to me and my constituency, and my constituents by extension. It is clear that the Attorney General supports the new clause because she drew particular attention to the character of the Privacy International case in her recent speech on these matters. Inasmuch as she is the most senior Law Officer of the Government, whatever the Minister might say today—I appreciate that he may want to hold fire, to some degree—it is clear that the Attorney General understands and supports my argument.

[Anne McLaughlin]

I am not sure whether the right hon. Gentleman’s intervention was aimed at me or the Minister. If he was aiming it at me, all I will say is that it would not be the first, second, third, fourth or fifth way in which I disagreed with the Attorney General in her reckoning. I will sit down and allow others to speak.

[James Cartlidge]

This has been a good debate on the new clause, which is interesting in many ways from a constitutional point of view, both theoretically and practically. My hon. Friend the Member for Ipswich does not have a secondary role. I am his constituency neighbour. He has a fantastic role that he is fulfilling as a brilliant constituency MP. It was a great honour to campaign with him in the general election, and I see a return on that investment, as he is a vocal spokesman for people of all political shades in the fine county town of Suffolk.

The hon. Member for Glasgow North East may have, shall we say, come here through the use of a crutch, but she should not downplay the role that her speeches could play. Of course we listen. We listen to all sides. Indeed, I have listened intently to the debate on the new clause. I will say one thing to the hon. Member for Hammersmith: although I completely understand where he was coming from, and his points made political sense, he appeared at one point to suggest that it almost was not necessarily relevant to debate the new clause. The new clause is about judicial review, and we know the first two words of the Bill’s title. In fact, we just agreed to the clause on the short title, which includes the phrase “judicial review”; I think my speech on that was the shortest I have ever made, by the way.

My right hon. Friend the Member for South Holland and The Deepings made some important contributions, which I am grateful for. I hope he received the letter we sent him, which I believe has been circulated to other Committee members, containing the response on the important matter of the most vulnerable children—those in care. I hope that reassures him on the safeguards. Secondly, on the make-up of the coronial stakeholder group in administrative justice, which introduces a broad umbrella because of the nature of the engagement, I hope that the letter has persuaded my right hon. Friend. I am therefore tempted to eke out the general thread of my argument and hope to encourage him that I am someone who is generally able to persuade people of things. The sword of Damocles that he holds over this speech with the threat to vote can be dealt with.

I should pay tribute to my right hon. Friend for his former role as Security Minister, which he referred to. He was involved in important proceedings when our country, as was proudly illustrated this morning, faced great threats, not least terrorist threats. He was also a Transport Minister, and I met him to discuss roads in my constituency. The essence of his argument was that the Bill does not go far enough, so he wants to debate important probing amendments. I will come back to that wider point.

On the specifics, as has been explained, new clause 3 would amend section 67 of the Regulation of Investigatory Powers Act 2000 by replacing the wording in subsection (8) and adding three additional subsections. Subsection (8) was originally drafted as an ouster clause—we have already debated ouster clauses in relation to clause 2— to ensure that certain decisions of the Investigatory Powers Tribunal would not be subject to judicial review by the High Court. A right of appeal on a point of law was later introduced by the Investigatory Powers Act 2016 and is set out in what is now section 67A.

The tribunal was intended to be the highest authority concerning matters such as the conduct of intelligence services. However, a 2019 judgment of the UK Supreme Court rendered the ouster clause of limited effect in what we have all referred to today as the Privacy International case. The Supreme Court found that while subsection (8) was effective at excluding judicial review of IPT decisions on their merits or jurisdictional decisions involving issues of fact, it did not have the effect of wholly ousting the High Court’s supervisory jurisdiction.

The new clause would amend the ouster clause in section 67 by clarifying and adding to the text in that section so as to meet the objection of the Supreme Court in Privacy International. That is an interesting idea, and I am sure my right hon. Friend is aware that the Government’s consultation, published in March, expressed concern around the uncertainty that exists as to whether, or in what circumstances, ouster clauses will be upheld by the courts. We therefore consulted on options to try to add some clarity with a broad framework for the interpretation of ouster clauses, but, having reflected on the many useful responses we received, we concluded that although our intention was to add clarity, the effect may in fact be to muddy the waters yet further.

As an alternative approach, we are pursuing the ouster clause in clause 2, which is designed to overturn Cart, seeks to learn the lessons from unsuccessful ouster clauses of the past, and is drafted in a clear and explicit way. We have been open in saying that if that approach is successful, we may consider whether it can be used as a model for ousters in other areas, where it is appropriate to do so. At least conceptually, I see the link between ousting the High Court from reviewing permission to appeal decisions of the upper tribunal and ousting the High Court from reviewing decisions of the Investigatory Powers Tribunal. They are both essentially concerned with which court ultimately should have the final say on an issue.

[Sir John Hayes]

I am going to give the Committee the benefit of my further wisdom in a few moments, but on that particular issue, the point about the Investigatory Powers Tribunal is that it is a specialist court, and the intention of the House in establishing that court—the Minister made reference to the Regulation of Investigatory Powers Act 2000 and the Investigatory Powers Act 2016; the 2016 Act was the one that I took through the House, as he knows—was to indicate that had Parliament decided that the tribunal’s important work, which essentially gives authority as well as supervision to the security services, should not be questioned in an ordinary court. The Supreme Court countered Parliament’s will in that respect. That is why this is so significant. It draws into question whether the Supreme Court might do the same in respect of other primary legislation that has ouster clauses in it, which is why it is important to act now in this Bill.

[James Cartlidge]

I pay tribute to my right hon. Friend’s legislative prowess in taking that Bill through the House at the time. It is precisely because of his point that in paragraph 55 of our consultation response document, published in July, the example we give of a case where we may look at using a Cart-like model of ouster clause in future is exactly this one—the Investigatory Powers Tribunal. We have made clear that we are looking at that. The Government are not closed-minded to the possibility of going further on judicial review. In a recent interview with The Sunday Telegraph, the Deputy Prime Minister spoke of the importance of restoring power to Parliament, while recognising the need for reform of judicial review to be an iterative process. I am sure he will have heard today’s debate and the many forceful points made, but the Government will keep an open mind on whether that tribunal might be a candidate for an ouster clause in future.

Our focus in the Bill is to tackle the two particular issues identified by the independent review of administrative law: the efficiency of Cart JRs and the lack of remedial flexibility in judicial review. I know my right hon. Friend the Member for South Holland and The Deepings is sympathetic on this point. There is a good reason for prioritising Cart—we have a judicial backlog, and the resource implication of it is immediate and credible. [Interruption.] My right hon. Friend says from a sedentary position that he understands. It will be important to ensure that before an ouster clause is proposed in any particular context, careful thought is given to what will be achieved by doing so and to considerations germane to that context. One size does not necessarily fit all, but we are open minded.

A key point I wanted to communicate is that my right hon. Friend invited me to become a star. His invitation to stellarhood is one I cannot begin to match, but I will at least attempt to do so by offering him an invitation to attend the Ministry of Justice to discuss with officials present some of these ideas in depth—especially given his expertise from his time as a Minister, talking in that neat language of Ministers and officials who know their Bill—and to talk through some of the technicalities. We do see the merit in what he says; it is more a question of timing.

In summary, my right hon. Friend says we do not go far enough; I would say that we go this far at this time. I hope that reassures my right hon. Friend and other colleagues that this is an issue to which the Government are already alive and to which I am sure future consideration will be given. But for now, for the specific purpose of the Bill, I respectfully request that he withdraw his new clause.

[Sir John Hayes]

When I said the Minister could become a star, I should have said a brighter star, because he has already shone in his response, particularly his generous invitation to meet with and discuss these matters with his officials in his Department. I take his point, of course, about the characteristics of the Bill, the need to address Cart in particular, and its relationship to the backlog in the courts. However, the Bill is about principle as well as practice. There is a practical reason for introducing the Bill, but a principle underpins it, which he has articulated a number of times during our deliberations: it is not right that the court system should be gamed to frustrate the will of the House.

My hon. Friend the Member for Don Valley spoke about his constituents wanting to see the will of the House as a manifestation of their will being delivered. The disturbing rise in judicial activism and judge-made law raises fundamental questions of parliamentary sovereignty. Mr Rosindell, whether you are or are not convinced of that I do not know, as you are the impartial Chair in our affairs, but the witnesses who gave evidence to the Committee are certainly convinced. Professor Ekins said that the Privacy International case did constitute a “very serious attack” on some fundamental questions of the constitution. He stated:

“The rule of law requires respect for the law, which includes parliamentary sovereignty and the stability of statute”.

In oral evidence, Sir Stephen Laws said:

“If the courts are deciding judicial review decisions that set the rules for future hypothetical cases, they are usurping the legislative function.”––[Official Report, Judicial Review and Courts Public Bill Committee, 2 November 2021; c. 9-15.]

That is pretty damning criticism of the Privacy International judgment and other recent cases.

15:14

There is an argument that at that time there was a particular group of Supreme Court judges—I am hesitating so as to choose the right words—who took eccentric decisions, and that things have now returned to normal, but that is not good enough. As the Attorney General said in her recent speech,

“the mould has been broken.”

Precedent was set, and that is the problem with ouster clauses. As the hon. Member for Hammersmith will know, other Acts of Parliament, including the Intelligence Services Act 1994, Security Service Act 1989 and the Police Act 1997, contain ouster clauses that could be challenged on the basis of the Privacy International case.

[Tom Hunt]

Does my right hon. Friend agree that the key issue in relation to new clause 3 is the Investigatory Powers Tribunal, the complexity of the things it will deal with, and the complexity of the roles of the organisation and people it is overseeing? That complex debate should be dealt with only by Parliament. We are best placed to have that debate and to come to the right conclusion. Decisions about whether judicial review will apply to that or not should be for this place, not for the judiciary.

[Sir John Hayes]

I agree. Indeed, when I proposed the Investigatory Powers Act 2016, to which the hon. Member for Hammersmith referred and which built on the Regulation of Investigatory Powers Act 2000, which Privacy International specifically dealt with, there was a genuine spirit of co-operation across the House. I worked closely with my then shadow, who went on to become Leader of the Opposition. I often say to him these days, “You learned your trade under me.” In fact, I think he said that to me. In any case, we worked closely on those matters and it was detailed scrutiny, as my hon. Friend has just described, that led to that Bill becoming an Act.

Indeed, we undertook extensive pre-legislative scrutiny, and one of the people I appointed to that task is now Attorney General. The scrutiny, under Lord Murphy, looked at the Bill in some detail, as the hon. Member for Hammersmith suggested, and there were long debates in the House and in the other place before it became law. As I emphasised earlier, we were determined that there should be proper safeguards.

The essence of this, Mr Rosindell, is that in these difficult, delicate and challenging matters of security, Parliament has to legislate—I would not say regularly, but as often as necessary—to allow our security services and the forces of law to stay ahead of those who wish to do us harm. The problem is that the capabilities of malevolent elements are dynamic, so the legal powers of those with the mission to keep us safe must match that dynamism. That is always challenging to Parliament, because there is a balance to be struck between the maintenance of law and the protection of liberty. That debate is the context for many of these considerations. It is not the place of the courts of make up the law as they go along, but that is exactly what has occurred.

I referred to the Attorney General earlier. She could not have put that case more plainly in the speech she made a few weeks ago at Cambridge University:

“The Supreme Court’s judgment in the case of Privacy International was also profoundly troubling for a number of reasons. A decision by Parliament to limit the judicial review jurisdiction of the Courts should only be taken after the most serious consideration by the legislature. And there may well be circumstances where Parliament does consider that to be appropriate. In such circumstances, the Court should be very slow to deprive legislation of its proper meaning”.

That is essentially what the Court did in the case of Privacy International. It deprived legislation of its proper meaning. The most generous way to describe it is that the Court interpreted the decision made by Parliament in what I regard as a perverse way, and, in the words of the Attorney General, a “profoundly troubling” way.

The new clause, which the Minister will know is in scope—it is not for me to gauge that; our expert Clerks judged it, so there is no doubt about whether it is appropriate to add it to the Bill—would address that concern about creeping judge-made law in what is, as my hon. Friend the Member for Ipswich said, a very sensitive area. I am grateful to the Minister, who made a generous offer and rightly drew attention to his helpful letter on issues raised by me and other hon. Members in our earlier consideration. I am particularly grateful to him for fully taking into account the case that I made on behalf of disadvantaged court users; his letter is most welcome in that respect. With the offer that he made of further discussion, the open-mindedness that he has shown and his clear understanding of why the new clause was tabled, I will—hesitatingly and to some degree reluctantly—beg to ask leave to withdraw the motion.

Clause, by leave, withdrawn.

New Clause 5

Evidence in judicial review proceedings

“(1) Unless there are compelling reasons to the contrary, no court shall—

(a) permit oral evidence to be elicited in judicial review proceedings; or

(b) order public bodies or any person exercising or entitled to exercise public authority to disclose evidence in anticipation of or in the course of judicial review proceedings,

(2) In relation to any judicial review proceedings, or in anticipation of any judicial review proceedings, in which a public body or a person exercising or entitled to exercise public authority argues, or indicates its intention to argue, that—

(a) the proceedings concern a matter that is non-justiciable, or

(b) that an enactment excludes or limits judicial review,

(3) In subsection (2), “evidential duty” means any principle of law or rule of court touching the identification of relevant facts or reasoning underlying the measure or other matter in respect of which judicial review is sought, or any order of the court to adduce oral or other evidence.

(4) Nothing in subsection (2) or (3) affects an evidential duty that may arise in relation to judicial review proceedings other than in relation to a measure or other matter that is argued to be non-justiciable or to be excluded from judicial review by legislation.”—(Sir John Hayes.)

Brought up, and read the First time.

[Sir John Hayes]

I beg to move, That the clause be read a Second time.

This new clause deals with evidence. Again, it has been deemed by the Clerks to be in scope and it would therefore be an appropriate addition to the Bill. It is very much in the spirit of my previous remarks.

It is important to understand that the new clause has two parts. Subsection (1) aims to limit the extent to which judicial review proceedings involve the testing of evidence and a resolution disputing questions of fact. The traditional view is that judicial review proceedings are an inappropriate forum in which to solicit or test evidence because it is a supervisory jurisdiction that should focus on questions of law rather than questions of fact. That was its well-understood basis for a considerable period of time.

As well as the changing character of the courts’ role in relation to the legislature, there has also been a change in the application of judicial review in respect of evidence. The courts ought to be focusing on the legality of decisions taken and whether it stands up to appropriate levels of scrutiny. That is the business of a judicial review. Allowing disclosure and cross-examination could lead to litigation becoming an exercise whereby new material is introduced on a fishing expedition. Rather than testing the proper exercise of powers, as judicial review is supposed to do, it could lead to the whole character of a case being revisited and perhaps the introduction of new evidence that was not pertinent to the original decision or even known to the original decision makers. That is not its role, and the Bill is a perfect opportunity to address that distortion of its original character and purpose.

As the Minister has told us a number of times, the Bill aims to tighten the judicial review process and essentially re-establish its pertinence, salience and purpose. The new clause would do exactly that. The change in practice has arisen partly because of overarching legislation such as the Human Rights Act 1998. There is a case for the wholehearted reform of the Human Rights Act, or its abolition altogether. However, this is not the place to have that debate—although, I understand that the Lord Chancellor has spoken on those matters and is considering addressing them in the House in due course. The point to be made here and now is that the Act has spilled over into judicial review decisions. It is clear that in recent years judicial review using the Act has become an opportunity to have a much wider debate and discussion than this legal mechanism originally intended—the original purpose was to check the correctness of decision making.

Subsection (2) of new clause 5 addresses the problem that arises when judicial proceedings are used to force public bodies to disclose information even in contexts where the public body argues that the law forbids judicial review. If a matter is non-justiciable, or if legislation ousts judicial review, the public body will not be compelled to disclose evidence simply because litigation is threatened or initiated. The clause will require courts to decide whether the matter is justiciable or whether legislation permits judicial review before the public body will have any duty to disclose information relevant to litigation.

New clause 5 would not allow any litigation that should not. Those are cases in which the matter is justiciable and no ouster clause forbids judicial review. It would require courts to make decisions in the right order, avoiding the risk that was apparent in the Supreme Court’s Prorogation judgment: that the courts are led astray by the evidence before them rather than focusing squarely on the question of law that they should decide. The Miller judgment was exceptional and, in my judgment, perverse. It is fundamental to our constitution that the appointment of Ministers, the Dissolution of Parliament and, by extension, Prorogation are matters for the Executive and not the courts.

One might argue that when the Supreme Court was established—it was a sorry day, Mr Rosindell, but you will not allow me to debate that at great length here, and nor will I—this was almost bound to happen: that the very existence of the Supreme Court would encourage those who sit on it to extend their powers into matters of what the Attorney General called “high politics”. That apart, the Prorogation judgment was a naked example of the courts making a constitutional decision in a way that is appropriate only for this elected House, our Parliament—both because we are answerable to the people and because, as I said earlier, our legitimacy derives from the people. This is about proper process, but it touches on the broader issue of the respective roles of the judiciary, the Executive and the legislature—the separation of powers to which I referred in an earlier sitting.

The Minister will again, I hope, recognise that the new clause is very much in the spirit that he set out when he made it clear that the Government want judicial review to be what it was always intended to be and has been for most of its life, rather than something very different, which is what it has become. With that in mind, I hope that he will give the new clause, which is significant but not in any way out of keeping with the Bill’s intent, a fair wind. Rather than, as last time, offering me a meeting—although I was very grateful for that meeting—I hope that this time he will say that the Government accept it, and will at a later stage introduce a Government amendment.

15:29

I do not necessarily expect the Minister to accept the new clause as drafted; he will want his draftsmen to take a close look at it, and often parliamentary draftsmen are able to a better job than I ever could, even with the assistance of my cerebral hon. Friend the Member for Ipswich. The Minister may want to look at the detail of this, but I hope that he will at the very least give it wholehearted consideration, perhaps with a view to the Government coming back with their own thoughts on how we might look at the issue of evidence, and how it is properly used in judicial review.

[Andy Slaughter]

I give full credit to the right hon. Gentleman, who has taken the new clause, important and substantial though it is, and turned it almost into a Queen’s Speech. We will have a second judicial review Bill, a repeal of the Human Rights Act 1998, and then a repeal of the Constitutional Reform Act 2005. The Minister will be a very busy man in the new year.

[Sir John Hayes]

It is only a matter of time, Andy.

[Andy Slaughter]

We will see. Unfashionably, I will confine my comments to new clause 5, which restricts disclosure by public bodies and the use of oral evidence in judicial review proceedings to circumstances where there are “compelling reasons”. In addition, under subsection (2), if a public body argues, or indicates its intention to argue, in relation to or in anticipation of any judicial review proceedings, that the proceedings concern a matter that is non-justiciable or that review is excluded by an enactment, the public body will not be subject to any evidential duty at all until a court regards the matter to be reviewable.

Subsection (1) relates to disclosure orders, which are already limited by the courts. Additional legislative provision is unnecessary and may reduce clarity and cause unnecessary litigation. Oral evidence is rarely used in judicial review proceedings. However, the courts retain a discretion to permit oral evidence where it is considered necessary to do so. Judges use that discretion appropriately and frequently deny requests to adduce oral evidence unless it would, in fact, be necessary for the case at hand. Applications for oral evidence can be made by claimants and defendants in judicial review claims, and there is no indication that the impact on public authorities has been thought through. The system works well, generally respecting the unique nature of judicial review while allowing parties—both claimants and public bodies—to adduce oral evidence in rare cases where it is necessary to do so. There is no indication that there is a problem with the system that the proposals seek to address.

The new clause goes beyond oral evidence and imposes a bar on judges ordering disclosure of evidence. There is no formal disclosure duty on parties in judicial review proceedings, unless the court orders otherwise. Such orders are already rare and there are many examples of courts refusing applications for disclosure on the basis that they are not necessary. Indeed, the court will not countenance fishing expeditions, where an applicant for judicial review may not have a positive case to make against an administrative decision and wishes to obtain disclosure of documents in the hope of finding something to use to fashion a possible challenge. Where the disclosure power is used by courts, however rarely, it is vital: a judge will only ever order disclosure where it is necessary for the fair resolution of the case.

It is unclear what adding a requirement of “compelling reasons” for ordering disclosures of evidence would do to the existing position. The current test, as set out by Lord Bingham in Tweed v. Parades Commission for Northern Ireland, is:

“whether, in the given case, disclosure appears to be necessary in order to resolve the matter fairly and justly.”

On one reading, that would be just an alternative translation of the existing position: a “compelling reason” for adducing oral evidence would be that it is “necessary” to do so. If that is the case, the proposed additional clause is a clear waste of time. However, if it is intended to be a stricter test to raise the threshold for which evidence is admissible, that is problematic in that it would operate to preclude disclosure of evidence required to resolve the case fairly and justly. That would clearly be to the detriment of the parties and the wider public, and therefore should be resisted.

It is also important to note that disclosure of evidence benefits not only the claimant but often the public body, by allowing the defendant public body to show that the decision taken was lawful. Defendant public bodies may also make applications for disclosure and/or oral evidence. Subsection (1) would reduce the ability for claimants to obtain disclosure, which is crucial for claimants to be able to bring a case as well as for defendants to be able to defend it.

[Sir John Hayes]

I understand that the hon. Gentleman is setting out what the new clause does, but he will understand that at its heart is the determination that judicial review should look at the specifics of an individual case, rather than a systemic consideration of the whole administrative system. In recent times, because of the courts’ willingness to draw on all kinds of evidence, they have tended to broaden the scope of their work in a systemic fashion. What does he think about that and what should we do about it?

[Andy Slaughter]

With respect to the right hon. Gentleman, I do not agree that that is what is happening. Even if he had a point there, I am trying to make the point, by looking at the changes that his new clause would make, that there are already safeguards in the system to prevent that and that the rules are tightly drawn in relation to evidence and disclosure. The courts do have discretion, but they use that appropriately and reservedly.

Any limitation of the disclosure of evidence, as well as oral evidence, beyond the current test risks undermining the effectiveness of judicial review proceedings for all parties. The current form of judicial review, which has limited disclosure requirements on the parties, works only because the parties are subject to duties of candour. In many respects, the disclosure obligations, where parties must submit all relevant evidence and information relating to the case to the court, ensure that the duty of candour is complied with. In the vast majority of cases, both parties comply fully with the duty of candour, but on the rare occasions when they do not, the judge’s disclosure powers can be used to ensure proper compliance.

In cases where the duty of candour would be limited by the proposals in subsection (2), which I will come to, the basis for limited disclosure requirements falls away. The combination of subsections (1) and (2) may mean that a claimant in a case is faced with the inability to obtain any disclosure at any point from a public body.

In effect, weakening those disclosure powers weakens the duty of candour, which is a vital aspect of fairness in judicial review. If public bodies feel that they do not need to comply with the duty, it will severely weaken the position of claimants, contribute to an inequality of arms in judicial review proceedings and risk completely barring, in practice, the ability for the claimant to bring a judicial review. For all sorts of reasons, including funding, the tight restrictions on bringing claims and the difficulties of bringing claims, there are already substantial problems for any claimant in beginning judicial review proceedings.

Subsection (2) would enable a public authority to effectively disapply the evidential duties, including the duty of candour, by indicating its intention to argue that the matter is not justiciable. That would make many cases completely un-triable. As I have said, the current form of judicial review, with limited fact-finding and disclosure requirements, works only because the parties are subject to a duty of candour. The duty requires a “cards on the table” approach and, as has been noted,

“the vast majority of the cards will start in the authority’s hands”.

For claimants to have the ability to get over the starting line and bring judicial review proceedings, the defendant body must be subject to the duty of candour. The duty ensures that all relevant information and material facts are before the court, and that any information or material facts that either support or undermine their case are disclosed.

As the “Administrative Court Judicial Review Guide” recognises, compliance with the duty of candour is “very important”. It helps to resolve matters efficiently and effectively. By requiring both parties to undertake full disclosure of relevant information early on in proceedings, it allows for a proper assessment of the merits of the case. That can help public bodies show claimants early on evidence that the decision was taken lawfully, which can lead to an early settlement, withdrawal of the challenge or at least the narrowing of the issues in dispute. That avoids substantial unnecessary costs and use of court time.

New clause 5 should have no place in the Bill. Subsection (2) would enable public authorities to disapply the duty of candour where they indicate their intention to argue that the matter is not justiciable. When this is combined with increased difficulty with accessing evidence through disclosure orders, set out by subsection (1), claimants will be denied access to evidence required to advance their case, making many cases unworkable. I therefore hope that the Minister will also resist the new clause.

[Tom Hunt]

It is a pleasure to grace this Committee again through a contribution, and to support my right hon. Friend the Member for South Holland and The Deepings on new clause 5. It is obviously not related to new clause 3. We did attempt to table other new clauses, but we were unsuccessful because they were deemed to be out of scope, but many of those new clauses were, in fact, not dissimilar to or disconnected from new clauses 3 and 5.

In terms of whether different Lord Chancellors are mild korma or vindaloo, I am usually a korma man, but when it comes to review, I am perhaps more vindaloo, because I think that we do need some significant changes in this area.

I very much welcome the Bill, which, with or without these new clauses, is a significant step in the right direction. I have been pleased to sit through all our sittings in support of the Bill, and I think that the Minister has led proceedings very effectively. It has been quite interesting, because although I do not profess to be a lawyer—I am not a trained lawyer or professional—I am an elected Member of Parliament who cares about my constituents and my constituency, but also about this country and the relationship between the Executive, the legislature and the courts, which is vitally important. I make no apology for commenting on these matters and getting involved, because I think it is very important that elected Members of Parliament do so.

We are very lucky to have our judiciary, and the rule of law in this country is respected all over, but some of these figures can be remarkably prickly—and I have noticed that many seem invariably to have the EU flag on their Twitter profiles. I think there is almost a view that elected Members of Parliament are knuckle-draggers who are not entitled to have a view on a lot of these issues. Well, I disagree. I think that when it comes to matters such as sentencing and the operation of the courts, we as elected Members of Parliament, regardless of our specific views, should absolutely be confident to air them and should not be intellectually intimidated by certain individuals.

I sympathise with the broader view about judges assessing law and procedure, rather than getting sucked into contested facts, and about how evidence sessions can sometimes draw them away from their core function and into dangerous waters. There are many cases. The Adams case is connected to new clause 6 so we will not discuss that, but there is an obvious connection between it, the Miller case and the Privacy International case, which we discussed earlier, and that is the creeping role of the courts beyond their brief and scope, and I think that that has damaging consequences. In the Adams case, in terms of the debate on whether it is enough for a Minister or a Secretary of State to make a decision, I really struggle to agree that it is for judges to decide what is appropriate against established Acts of Parliament. That does not make any sense to me. I think that clarity in this area—and Parliament, through legislation, clarifying the relationship between the Executive, the legislature and the courts—is vitally important.

15:45

I go back to this point. I do not see anything that I or my right hon. Friend the Member for South Holland and The Deepings have said as being anti the judiciary or the rule of law. We appreciate that they are vitally important and how skilled and learned those individuals are. But I think we were all quite disturbed by some of the Brexit debates. We had the Miller cases in relation to triggering article 50 and Prorogation, and that Daily Mail front page with members of the Supreme Court under the headline, “Enemies of the People”. I think that many of us were disturbed by that, and that is what we want to avoid going forward. We do not want that to be the case again. The danger is that unless there is great clarity about what is and is not appropriate for the courts to get involved in, that could happen again, and we do not want that. This is not about us pointing at the judiciary and the courts and blaming them for any of this. We need to be conscious that we need a clear framework that gets that balance right.

I will leave my comments there. It has been a great pleasure to be part of this Bill Committee, which is now coming to a close, and to support this Bill and my right hon. Friend the Member for South Holland and The Deepings.

[Anne McLaughlin]

Encouraged by the Minister, I have decided that I will say a few words, even if none of them are original. Most of what I have to say is in agreement with the hon. Member for Hammersmith, but it is good to put the opposition of the SNP on the record.

What would this new clause do? Unless there are compelling reasons to the contrary, this new clause would prohibit the use of oral evidence in judicial review and would also prevent courts from ordering any public body to disclose evidence in anticipation or during the course of judicial review proceedings. As we have heard, oral evidence is already rarely used in judicial review proceedings, but the courts retain a discretion to permit oral evidence where it is considered essential to the case. My understanding is that judges use that discretion appropriately, and frequently deny requests to cite oral evidence unless, as I have said, it is considered essential to the case. I am not aware of any indication that the system has the problem that the proposals seek to address.

I wonder what adding a requirement for compelling reasons would do to the existing position. It could be that that is just an alternative translation of the existing position. One compelling reason for adducing oral evidence would be that it is necessary to do so. If that is the case, the new clause is not needed. If the proposed compelling reasons requirement is seen to raise the threshold for which oral evidence is admissible, I think we should all find that problematic. Judges are already only allowing such evidence when it is considered necessary to do so. The clear result of the proposed change would be that oral evidence that is necessary for the fair resolution of the case would not be admitted. That surely cannot be acceptable to the Minister.

New clause 5 would also bar judges from ordering disclosure of evidence. Again, such disclosure is used only when absolutely essential. Judges order disclosure only when that disclosure is vital to resolve the case fairly. In many respects, the disclosure obligations act as a way of ensuring that the duty of candour is complied with where parties must submit to the court all relevant evidence and information relating to the case. In the vast majority of cases, both parties will comply, but where they do not the judge can ensure compliance by using disclosure powers. Weakening those disclosure powers would, in effect, weaken the duty of candour, which is a vital aspect of fairness in judicial review. If public bodies and Governments believe that they do not need to comply with that duty, the position of claimants would be severely weakened in judicial review proceedings. We should increase access to justice, not make it increasingly pointless.

[James Cartlidge]

It is a pleasure to follow the hon. Lady, who made some perfectly reasonable points. It is disappointing that she did not rise to the bait by entering into the curry-labelling discussion instigated by the hon. Member for Hammersmith. I am not sure that my hon. Friend the Member for Ipswich is a vindaloo—I think he is a phaal. Anyone who googles that will find that it is the hottest curry there is. Maybe my right hon. Friend the Member for South Holland and The Deepings is a phaal as well. It is inevitable, then, that they all think the Bill does not go phaal enough. As a great fan of curry, I generally go for the specials on the à la Cart menu. [Laughter.] That was not a reference to clause 2, by the way.

In new clause 5, my right hon. Friend is probing in his uniquely penetrating way of gaining the Committee’s attention and focusing on some important points. I will try to set out why, although there is merit in what he says, it is not right for this precise moment—perhaps with further work, not least as there may be other potential routes to achieving his end.

The new clause would amend the Bill to include some specific rules relating to disclosure and the duty of candour in judicial review cases. The clause would do three things. First, it would remove the ability of the court to permit oral evidence to be given unless there are compelling reasons to the contrary. Secondly, it would remove the ability of the court to order a public authority to disclose evidence at all, either in anticipation of proceedings or during proceedings, unless there are compelling reasons to the contrary. Thirdly, in cases where a public authority is arguing that the subject matter is non-justiciable altogether or judicial review jurisdiction has been ousted, it would remove any evidential requirement on the public authority until the court has ruled on the subject of justiciability or jurisdiction.

The duty of candour is a common law concept that obliges parties in judicial review proceedings to disclose information relevant to the case. The independent review of administrative law examined that duty when it conducted a call for evidence last year. Legal practitioners and other stakeholders identified issues relating to a lack of clarity surrounding the exact extent and precise nature of the obligations arising from the duty. The independent review concluded that the duty of candour may have previously been interpreted in a way that causes a disproportionate burden on public authorities, and that there would be benefit in clarifying the parameters of the duty. The Government would like to ensure that the duty of candour is not invoked by claimants to rouse political debates or to discover extraneous information that would have otherwise been kept confidential.

I reassure my right hon. Friend and my hon. Friend the Member for Ipswich that this remains very much a live issue for the Government. The difference here, I suspect, is not a question of objective, but of how best to achieve it. The independent review recommended that the issue could be addressed through changes to the Treasury Solicitor’s guidance. Although that is, of course, a matter for the Treasury Solicitor, the advantage to using guidance to address some of the issues that have occurred with the duty of candour in the past is that it can be more flexible and dynamic than legislation.

As I have already indicated, the Government remain open-minded about the possibility of going further on judicial review reform in time. Although my instinct continues to be that any issues with the operation of the duty of candour are better addressed through other means, and not through primary legislation, I will reflect on the arguments that my right hon. Friend has made for a legislative response. We have already discussed the point of the meeting. I am quite clear that that could be wide-ranging and could include this discussion, too. They all fit within the same theme, which he has painted with a broad brush today. I am quite happy to look at it in those terms, but also in more specific terms, particularly with the benefit of officials and so on.

In the light of the complexity of the issues at stake, and the importance of getting the legislation right, I cannot accept my right hon. Friend’s new clause. I hope that, with my reassurance that that the Government will continue to actively consider the matter, he will agree to withdraw it.

[Sir John Hayes]

I am grateful to the Minister for again offering further discussion on these subjects. I am also pleased that he is considering other means to achieve the objectives that I set out. He is right that the independent review addressed these matters and, by the way, did so on the basis that I described: that by taking wide evidence judicial review was rehearsing decisions rather than checking on the exercise of them. Judicial review is about ensuring that, in the exercise of decision making, all has been done properly. It is not about reheating wide-ranging contextual arguments.

The problem with collecting oral evidence in a permissive way is that it is bound to lead to just that. That was identified by Professor Ekins and others, in the evidence that they gave us and beyond. The Minister is right to consider through guidance how that could be altered. Statutory guidance would be a very effective way of doing it, providing that his officials and others are confident that it is sufficient. There is always a balance to be struck between primary legislation and guidance, and we need to be clear that it will be sufficient in this case.

We talked a little about how jurisprudence has moved on, and in particular the Miller case. In the end, the decision of the Supreme Court in that case meant that it, in the words of the Attorney General,

“stepped into matters of high policy in which the UK courts have historically held themselves to have no constitutional role.”

That is a direct quote from the Government’s most senior Law Officer. In the two new clauses, and in those that were not selected because they were deemed not to be in scope, and which I will therefore not discuss, I have tried to make the case that the Bill is very welcome, but it is a korma rather than a vindaloo. It is certainly not a madras. It can be more varied and hotter, to develop the metaphor. I can match the Minister blow for blow in terms of my grasp of Indian cuisine.

[James Cartlidge]

On a point of information, my right hon. Friend must be aware that a madras is technically milder than a vindaloo, but a vindaloo is certainly milder than a phaal.

[Sir John Hayes]

That is true, but I see the Minister as something between the two. He is more of a jalfrezi—spicy, lively and deeply satisfying, in terms of his response to my new clauses at least.

It is worth drawing attention to the remarks of Lord Sumption, who of course commented on exactly these matters in his Reith lecture. Jonathan Sumption is the judge who, perhaps more than any other, has set out the proper functions of the courts in relation to Parliament. In his Reith lecture, he said:

“It is the proper function of the courts to stop Government exceeding or abusing their legal powers.”

That is exactly the role of judicial review, by the way. He continued:

“Allowing judges to circumvent parliamentary legislation, or review the merits of policy decisions for which Ministers are answerable to Parliament, raises quite different issues. It confers vast discretionary powers on a body of people who are not constitutionally accountable for what they do. It also undermines the single biggest advantage of the political process, which is to accommodate the divergent interests and opinions of citizens.”

He went on to say in that lecture that it was about developing the right kind of political culture. It is appropriate that the political culture that underpins our deliberations in this place is a means by which views can be mitigated and ameliorated, where necessary, in a way that courts cannot do because of their character and function. I remain of Jonathan Sumption’s view that much needs to be done to put right what the courts have got wrong in recent years, and I stand alongside the Attorney General in her determination to do that.

16:00

Although I understand that the Bill is not sufficiently wide-ranging to do all that I want it to do, there is scope for the Government to do more in respect of the new clause and new clause 3. I am grateful that the Minister has implicitly acknowledged that by welcoming further discussion.

On the new clause that stands in my name and that of my hon. Friend the Member for Ipswich—I will just say, as the Minister did, that my hon. Friend is an outstanding Member of Parliament and the people of Ipswich should be proud to have him—I beg to ask leave to withdraw the motion.

Clause, by leave, withdrawn.

New Clause 10

Publicly funded legal representation for bereaved people at inquests

‘(1) Section 10 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 is amended as follows.

(2) In subsection (1), after “(4)” insert “or (7).”

(3) After subsection (6), insert—

“(7) This subsection is satisfied where—

(a) The services consist of advocacy at an inquest where the individual is an Interested Person pursuant to section 47(2)(a), (b), or (m) of the Coroners and Justice Act 2009 because of their relationship to the deceased; and

(b) One or more public authorities are Interested Persons in relation to the inquest pursuant to section 47(2) of the Coroners and Justice Act 2009 or are likely to be designated as such.

(8) For the purposes of this section “public authority” has the meaning given by section 6(3) of the Human Rights Act 1998.”’—(Andy Slaughter.)

This new clause would ensure that bereaved people (such as family members) are entitled to publicly funded legal representation in inquests where public bodies (such as the police or a hospital trust) are legally represented.

Brought up, and read the First time.

Question put, That the clause be read a Second time.

Division 19

Ayes: 4

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Labour: 4

Noes: 10

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Conservative: 10

[Andy Slaughter]

On a point of order, Mr Rosindell. Before we conclude our proceedings on the Bill, I wonder whether it might be appropriate to offer my thanks, on behalf of me and my colleagues, to everyone who has contributed to making this, certainly compared with other Bills that I have done in the past, a smooth-running and not unenjoyable process, if I may put it that way. I will not take up a lot of time, but I would particularly like to thank you, Mr Rosindell, and Sir Mark for the efficient and not indulgent, but certainly sympathetic, way in which you have chaired these proceedings. I know that that has been difficult, particularly today, because we had Sir David Amess’s memorial service this morning. We all respect the fact that you and Sir Mark have chaired the Committee with your usual great skill and attentiveness.

I thank the Clerks, who have given us extraordinary assistance on technical matters relating to the Bill, for the way in which they have helped us, and helped me, with my rustiness, to get through the first Bill that I have done in this capacity for a number of years. I also thank everyone else who makes this a smooth-running process. That includes the Doorkeepers, Hansard and everyone else on whom we rely to ensure that these things go as smoothly and efficiently as possible.

May I say thank you to a few other people? I thank the Minister and his colleagues for the way in which they have approached the Bill. There are some fundamental differences between us. We voted against the Bill’s Second Reading and, sadly, we have not managed to carry many votes here to improve the Bill. There are a number of improvements and amendments within the changes to the courts procedure that we would fully support, but there is, at the heart of the Bill, something that we find worrying, which is a further attempt by the Executive to encroach on the discretion of the judiciary, which is one of the great sacred parts of our constitution, so I am glad that at least we have resisted today any further attempts to do that.

Notwithstanding that, this Committee has undertaken a good-natured, but at the same time thorough, investigation of the provisions. I thank all my colleagues for their assistance and prompting—even when I go on for a long time—but I would particularly like to thank my hon. Friend the Member for Stockton North, who, seeing me just beginning my role and being thrown in at the deep end with the Bill, stepped up, notwithstanding having just been a shadow Minister on the Police, Crime, Sentencing and Courts Bill, to carry the burden of dealing with the substantial bulk of the provisions here. Sadly, he is not with us today because he has tested positive for covid. Therefore, I have been told to go off and get a PCR test as well; we probably all have as a consequence of that. I gather that my hon. Friend is tired but otherwise in good spirits. He is an extremely kind and courteous gentleman at all times, and I am sure that we all wish him a speedy recovery.

We have come almost to time on the Bill. We thought that we might go short; we have taken our time, but we have not taken more time. All I will say in conclusion is that there has been a culinary theme to the Bill. We had cherries on the first day, and ended with curries on the last, but I hope that, in looking at the transcripts, those who scrutinise us will not think we have made too much of a meal of it.

[James Cartlidge]

Further to that point of order, Mr Rosindell. May I echo the remarks made by the hon. Member for Hammersmith, particularly in thanking you and Sir Mark for your dual chairmanship, which has operated effectively and efficiently, together with your officials and the Clerks? May I particularly thank the Doorkeepers? As I said earlier—I really meant it—what we saw from them today, walking behind Sir David’s coffin, was incredibly moving.

I thank all members of the Committee, on both sides. No one goes into proceedings expecting that we will all agree on all points, but that does not matter; conduct is different from that. I think we have seen effective debate, proceeding at reasonable speed most of the time, but with that combination of depth and rigour that is important in a Bill Committee. That is the point: we are going through a Bill line by line. I am grateful to SNP and Labour colleagues. I particularly thank those on my side of the Committee. We heard many excellent speeches and contributions, but they also knew when to keep their own counsel, so that we could keep the ship of the Bill sailing in the right direction.

This is an important Bill. The context is difficult. The post-pandemic situation is challenging, with a significant backlog of cases, and we are doing everything we can to deal with that. The Bill contains some significant measures on that front. It also contains the important reform of judicial review—more for another time.

It remains only for me to thank everybody for their participation. I am grateful that we have managed to move to this stage, and that we now move onwards and upwards.

[Sir John Hayes]

Further to that point of order, Mr Rosindell. On behalf of the Back-Bench Members on this side of the Committee—and I hope others too—I thank the Minister and the shadow Minister. I served as a shadow Minister and a Minister for 19 years and I know how hard it is, particularly from the other side of the Committee, to maintain the progress of debate and to retain the calibre and character of scrutiny.

I thank the Minister for the way he has gone about his business, and the shadow team for the way they have gone about theirs. I wish the hon. Member for Stockton North well, as he has now fallen ill. I also thank you, Mr Rosindell, and your fellow Chairman, and all others who have made the Bill proceedings possible.

[Anne McLaughlin]

Further to that point of order, Mr Rosindell. I want to reiterate what everybody else has said and thank everybody involved. I wish the hon. Member for Stockton North well and I hope that he recovers by a week today, St Andrew’s day, because he will be wanting to celebrate.

I thank my hon. Friend the Member for Lanark and Hamilton East—I have finally got the constituency name. That is not as great a constituency name as South Holland and The Deepings, however. I am going to visit, and I will let the right hon. Gentleman know when I do.

This has been a really interesting Bill Committee. I used to resist going on Bill Committees, but I came from the Nationality and Borders Bill Committee straight to this one, and they are the best bit of the job, because they are probably the only time we really get an in-depth understanding of what we are doing. A lot of the time, we have to skim through things because there is so much to consider. I look forward to the next Bill Committee.

I thank the Clerks and everyone involved, including the Doorkeepers. For those who are not speaking and are not involved in the debates, it must be really boring having to sit there and listen to it all. There are no nods of agreement there, but I can pick the answer up telepathically. If I have missed anyone in my thanks, I am sorry—oh, the Chairs. Thank you very much; thank you again for your forbearance, Mr Rosindell, when I was injured. I am still injured, but am recovering.

[James Cartlidge]

Further to that point of order, Mr Rosindell. I did not mention the hon. Member for Stockton North; I hope he recovers. I also wish to thank my officials, who have been excellent—very high quality—for my first Bill Committee. I hope we keep up the good work as we move forward. I am grateful to everyone who has helped us to reach this point.

[The Chair]

I add my thanks to the Committee for its deliberations over the past few weeks; to my colleague, Sir Mark, for co-chairing the Committee with me; and to Clerks, officials, Doorkeepers and all concerned in ensuring the passage of the Bill through Committee.

Bill, as amended, to be reported.

16:13

Committee rose.

Written evidence reported to the House

JRCB16 Professor Jason Varuhas (supplementary)

JRCB17 Northern Ireland Human Rights Commission

Westminster Hall

Tuesday 23rd November 2021 Westminster Hall

Tuesday 23 November 2021

[Mr Laurence Robertson in the Chair]

Black Friday: Financial Products

Tuesday 23rd November 2021 Westminster Hall

14:30

[Mr Laurence Robertson (in the Chair)]

Before we begin, I remind Members that they are expected to wear face coverings when not speaking, in line with current Government guidance and that of the House of Commons Commission. Members are asked by the House to have a covid lateral flow test twice a week if coming on to the parliamentary estate, either at home or at the testing centre in the House. Will Members please also give each other and members of staff sufficient space when seated and when entering and leaving the room? I would also like to remind the Committee that today there was a mass for Sir David Amess, who was a distinguished member of the Panel of Chairs; he is much missed. I call Stella Creasy.

14:31

[Stella Creasy (Walthamstow) (Lab/Co-op)]

I beg to move,

That this House has considered promotion and regulation of financial products on Black Friday.

It is a pleasure to serve under your chairmanship today, Mr Robertson. May I associate myself with your comments? I had the honour and pleasure of taking part in debates chaired by Sir David. He was always a fair and very fun Chair to have around; we shall miss him terribly.

I want to be clear from the start that I do not think that anybody in this room is green—green in the sense of being the Grinch. This is not a debate about whether people should be able to spend money, which is a personal decision. As we come up to Christmas, it is important to recognise that for many families this year will be an extra special one, given what we have been through over the past two years. I recognise that it is very easy, when we talk about consumer credit, to sound like the Grinch, as though we are saying it is all so complicated and difficult and that nobody should spend any money. Let me be clear that it is not my intention to come without good Christmas cheer.

Indeed, I note that many retailers are taking advantage to promote the idea that this is the year that one should really indulge and go all out. Tesco tells us, “Don’t stop me now,” when it comes to shopping. Argos tells us, “Baubles to last year,” and Debenham’s says, “Christmas like never before.” Aldi tells us not to be a Scrooge—at least, I think that is what they are telling us with the Christmas carrot. Sports Direct is more direct than ever, telling consumers to “Go all out!”

My point is more simple. We want families to be able to celebrate with their families and not be worried. One thing we know that causes the most worry to families is money. We are a nation that has not done as well in the G7 as some others, but we are second highest among the G7 countries for household debt. That is one competition we do not want to win as a nation—but we do. We have always been more comfortable with borrowing and credit than other nations.

My point in calling the debate on Black Friday and the run-up to Christmas is to recognise that this is a time when for many families getting into debt seems the right thing to do, because it is about being able to treat loved ones. When we have had so little time with our loved ones and been so apart—I hope we can be together this year—being able to do that feels even more important. As a result, the risks that families face are even higher.

I recognise that the Minister cares passionately about the subject and has done a lot of work on it. My call is about how we will help those families have a good Christmas, so that the new year is not a time of further worry and distress caused by debt. The honest truth is that as much as people talk about the pandemic as a time when some families have paid down debt and saved money, since they have not been able to go on expensive foreign holidays, for many others it has been a time of further financial distress. I used the word “further” critically, because we are a nation that has a problem with household debt, and has had that for some time prior to the pandemic.

Prior to the pandemic, Experian found that 40% of people would not be able to pay their mortgage or rent if it increased by £50 or more a month. Just an extra £50 and they were sunk. A total of 10% of this nation was constantly overdrawn, and that figure has remained pretty stable for many years. As many as 2.8 million people have persistent credit card debt, which means that they are paying more in interest fees and charges than in paying off the debt.

For some people in this nation, saving is a habit, while for others it will always be an ambition. Some 34% of adults have never had any savings or have savings of less than £1,000. There were many people in this country who were struggling financially before the pandemic. What the pandemic has done for that group of people—people for whom a foreign holiday was never a possibility —is throw into sharp relief just how difficult their finances were. Many of those are in precarious jobs, such as in retail or hospitality, and they were hit even harder when the pandemic came.

[Catherine West (Hornsey and Wood Green) (Lab)]

I thank my hon. Friend for giving way. I place on record her excellent background in holding to account Wonga and a number of other loan sharks through other Parliaments, as well as work on other topics she is well known for. This issue is particularly important right now, as we come out of coronavirus. Is my hon. Friend aware that Citizens Advice found that 40% of buy now, pay later customers have been unable to pay for essentials such as food, rent or bills? This is a particularly difficult time as people come back into work, with the insecurity of work underlined in many of our workplaces, and bills—particularly fuel bills—going through the roof.

[Stella Creasy]

My hon. Friend is absolutely right. If both Scrooge and the Grinch are misunderstood, I very much believe that buy now, pay later companies could become the true villains of Christmas rather than them —[Interruption.] It might be tenuous, Minister, but it is a link.

I recognise that during the pandemic, debt has become a lot worse for many people; when I say a lot worse, I mean it is less likely that they will ever be able to get out of it. Many people live with debt, and while sometimes it is a debt they can manage, an awful lot of people are drowning, not waving.

Data from StepChange is clear that as a consequence of the coronavirus lockdown period, 2.8 million people have fallen into arrears: most frequently on utilities, as my hon. Friend the Member for Hornsey and Wood Green (Catherine West) said. That is on fuel and water, on keeping the basics of the house going. Some 820,000 people have fallen into arrears on their council tax—a debt to the public sector—and about 500,000 people have fallen into arrears on their rent. We have seen a massive explosion in the number of people who will never own their own homes and will always be in the rental sector, particularly in areas where the cost of living is particularly high. My constituency has the 10th highest level of child poverty in the country, and that is because of the cost of living and the cost of renting in my local community. We know that those people, who have struggled to stay in our area, were particularly hit by the restrictions on their working practices in lockdown and have now found that they simply cannot afford the roof over their heads.

Little wonder that nearly 4 million of us have borrowed to make ends meet during the lockdown period, with 1.7 million often using a credit card, 1.6 million using an overdraft and nearly 1 million using a high-cost credit product. That borrowing is not, perhaps, the stereotype of borrowing in order to buy goods—going back to my original point about people wanting to treat a family member. Instead, people have borrowed during lockdown to keep things going: to keep food on the table; to keep their car working, so that when they can go to work, they can get to work; and, perhaps, to pay for heating, especially in the cold weather.

It is striking that there has been a 267% increase in the number of consumer county court judgments issued. Those numbers were depressed by the covid forbearance measures. I recognise that schemes such as the furlough scheme and the self-employment income support scheme helped to mitigate the impact of that. My point when talking about consumer debt and consumer credit is that we are coming out of a period when many people were vulnerable anyway because of long-standing household debts, and that those debts have been made a lot worse. Add into the mix the fact that we expect those people to spend money and help to get our economy back on track. It does not take a rocket scientist to recognise that at the heart of that mix is something very potent that could lead to real poverty and destitution for many people.

[Tulip Siddiq (Hampstead and Kilburn) (Lab)]

I congratulate my hon. Friend on all the work that she has done on this issue, as mentioned by my hon. Friend the Member for Hornsey and Wood Green (Catherine West). Let me pick up on the point my hon. Friend the Member for Walthamstow (Stella Creasy) is making very powerfully about people who get into debt and feel pressured into buying things for their family and friends, especially because this is the first time for a while that they can celebrate Christmas properly with family. Recent research by Citizens Advice, which I have seen, found that 39% of people who have opted to buy now, pay later online did so without realising that they were signing up to a high-interest loan. That lack of transparency is very concerning to me. Does she agree that with pressure on our constituents to make purchases online before the products are likely to rise in cost before Christmas, the Government should set out what they will do in the coming days and weeks to make sure that people know exactly what they are signing up for when they take out a buy now, pay later product?

[Stella Creasy]

My hon. Friend makes her point incredibly well and she will not be surprised to learn that, yes, I absolutely agree with her. Indeed, it is striking that just before the pandemic hit we had the first year in this country when more purchases were made online than in bricks-and-mortar shops, and of course during the pandemic people’s switch to shopping online has become even starker. The state of our high streets is a debate for another time, but we have all seen that change and I do not think that it will go backwards. People’s comfort with shopping online had already been set in place before the pandemic hit; now, for most people, that is the first place that they look, rather than the last.

In 2020, 9 million people were forced to increase their borrowing to cope with the pandemic. That is a phenomenal statistic. The press and media have been full of people paying down their debts, and the silent minority of people for whom debt has increased have not been heard. Today’s debate is about that group of people, and what support and advice we are giving them, because, as my hon. Friend the Member for Hampstead and Kilburn (Tulip Siddiq) said, being able to treat our family members, especially when we have been through such tough times, becomes even more important for everyone. That means that we must ensure that everybody can access credit in a fair and affordable way.

My argument with the Minister today—he will know it, because we have been having it for many years—is about what more we can do to ensure that there is a fair and level playing field, that consumers are armed with the best information and that companies cannot exploit the situation in which there are so many people in our communities who are drowning in debt and will never get out of it. They will always live with a level of debt that might be exacerbated so that one single thing can tip them over into a financial crisis, as opposed to just a financial meltdown, which is what they might be in right now without realising it. Indeed, many of us may have had the experience of talking to people in our constituencies who say, “Well, I don’t have any debt”, and then we ask them if they have a credit card and they say, “Yes, of course”, as if a credit card is not debt.

My hon. Friends the Members for Hornsey and Wood Green and for Hampstead and Kilburn are right to prefigure the particular type of debt that I am concerned about. The Minister knows that I am concerned about it and I know that he agrees with me that there is a problem with this type of credit, which needs to be regulated. My point today about the buy now, pay later industry is that there are echoes of previous examples in our communities where new, or relatively new, forms of credit that might have seemed niche when they first came to the UK market explode very quickly, become commonplace among millions of people and, without proper regulation or scrutiny, cause many more people to get into debt as a result. We saw that with the payday lending industry, which exploded in the UK in the early 2010s, and the honest truth is that it took politicians from all sides too long to recognise just how much damage could be done by a high-interest loan.

Those in the buy now, pay later industry will say that they are not a payday loan. Indeed, they are not—they are not capped, for a start, which is one of the things that helps to protect people from getting into debt through a payday loan. Buy now, pay later companies will say that they do not charge interest to consumers, so we should not view them in the same way as payday lenders—that this is apples and oranges. But both types of high-cost credit—they are high-cost credit, because they come with late fees if people do not pay them back on time—share a similar marketing tactic, which is about forming a habit. It is about getting people to see them as the main way to make ends meet; the main way for people to deal with having too much month at the end of their money.

Whereas the payday lender said, “We’ll give you a short-term loan and you’ll pay it back very quickly, and you’ll never notice, and it will just tide you over”, the buy now, pay later companies say, “Spread the cost. It will make it much more manageable, and you will be able to get the things that you need at the time that you want to.” Let me be very clear that for some people, there may well be a perfectly reasonable use of buy now, pay later, in the same way that for some people there is a perfectly reasonable use of a payday loan. The problem is that for many people buy now, pay later is a form of credit that they cannot afford, because they cannot afford the goods in the first place.

Experian data shows us that 30% of people using buy now, pay later say they use it for items that they otherwise could not afford, and in an environment where inflation might top 4%, where wages have struggled to keep up and where we have a cost-of-living crisis, that is pouring fuel on to the fire for many people and the debt problems that they face.

For those who may not be familiar with buy now, pay later, it is a simple premise. The payments are spread over a number of weeks or months with these companies, and there are variations of the same model. What does that mean for a consumer in practice? A £100 pair of trainers will, perhaps, suddenly become £25 at the point of sale, because the £75 will be paid off at later points throughout the year to recoup the cost. Crucially, the consumer is not officially paying the fees, because the retailer pays to use the service, although one innovation we have noticed in the market in the last year alone has been the move to be able to allow the company to have a direct relationship with the consumers. What they call a one-time card can be created and purchased from a website without the retailer ever being involved. That in itself is problematic, because it prompts the question of how they are deciding what someone can afford to pay.

Let us stick with the original business model. How these companies make their money is very simple. When a £100 pair of trainers suddenly looks as if it only costs £25, people think, “Well, I might buy the trousers and jacket to go with it, because I thought I was going to spend £100 today, and I’m only spending £25”. On average, consumers spend 20% to 30% more when they can spread the payments. For the retailers, it is worth paying the fees of these companies, because people will spend more and they will get more purchases from them.

Many retailers are very up front about that. It is a massive part of their forthcoming business strategy, particularly in relation to Black Friday and Christmas, to encourage consumers to use buy now, pay later because they will end up spending more than they would have done if they had used another form of credit. I reiterate: for some people, that may be perfectly reasonable. They are spending future money, but they have that future money, so it is an acceptable way to do it. They can splash out this Christmas knowing that pay packets in January, February and March will cover the cost. However, a large group of people is spending money that they simply do not have and getting into debt. As my hon. Friends the Members for Hornsey and Wood Green and for Hampstead and Kilburn have pointed out, because this is a new form of credit, many people do not realise it is a form of credit and what can happen if they do not pay back. The late fees, the credit checking, the credit reference agencies and the debt collection agencies are all part of the mix and experience of using these companies.

In the pandemic, spending on buy now, pay later has gone up 60% to 70%. For some age groups in this country now, buy now, pay later is used more than credit cards. It is a revolution in how we use credit in this country and it has gone relatively unnoticed, except by those who cannot afford to pay and have ended up with a big hole.

[Catherine West]

My hon. Friend is making an excellent argument. Does she agree that the quality of financial education in the UK is not what it should be? The 60% to 70% increase in debt from these sort of products would primarily affect a younger age group to begin with, because of their propensity to use the internet. Does she agree that much more needs to be done on financial education, hopefully led by the Treasury and spread across the appropriate level of education online?

[Stella Creasy]

My hon. Friend makes an important point about financial education. I am pleased to see it is now part of the curriculum. She is also right that a cohort of people who did not have financial education are absolutely at the forefront of using this form of credit. Half of all online shoppers aged 24 to 35 have used buy now, pay later. What is challenging is how often they are using it.

If people think that this is about a one-off purchase of a pair of shoes, a dress for a special occasion, or Christmas presents, looking at the one in 20 consumers who use it more than once a week should make us worry about what it is about their finances that means they need to spread payments because they cannot afford to make a payment in a week. Some 35% of consumers aged 18 to 35 report using buy now, pay later more than once a week.

Buy now, pay later is a game-changer in how debt is being created, generated, and maintained in our economy, but it is going under the radar. Little wonder that two-thirds of merchants are using this form of credit. It is now in over 20,000 major brands in the UK including Marks & Spencer, Pennies, Halfords, Asos, PrettyLittleThing, and I SAW IT FIRST.

Klarna was valued at £46 billion as a business in the last investment round—I believe that is more than several of our public services—and claims to have 13 million customers in the UK. That is across every single one of our constituencies, but disproportionately in the poorer constituencies where people are struggling, and people are being targeted.

Citizens Advice reports that 41% of buy now, pay later users have struggled to make a repayment, one in 10 have been chased by debt collectors, rising to one in eight for young people and 25% have fallen behind on another household bill in order to pay a buy now, pay later bill. It does not take a rocket scientist to work out that if there are debt collection agencies at the door, a person is probably going to pay them before their council tax, but we know the consequences that can have.

Time and time again, studies show that people do not realise what they are signing up for. Forty per cent. say that they used it without realising; 42% did not realise what they were signing up for; 26% regretted it. One in four people regretted using buy now, pay later because of the problems it created. As a consequence, many are generating late repayment fees.

The Financial Conduct Authority agrees. In January, the Woolard review called for the industry to be regulated as a matter of urgency. That regulation is critical. One of the things that most consumers do not realise is that, unlike any other form of credit, including a payday loan, there is no regulation of the buy now, pay later companies. In layman’s terms, if someone gets into difficulty, they can only appeal to the companies themselves to treat them fairly—and good luck with that. They cannot appeal to the Financial Ombudsman Service as can be done with a payday loan or a credit card.

There are many particular problems that need to be sorted out by regulation. First, there is conflict of interest. Many of these companies will tell you that they do credit checks. After all, they say, they do not want to lend to people who cannot afford to repay them. However, their definition of repayment is open to interpretation, just as it is for payday lenders. One of the things that worries me when I talk to the companies, which I have done substantially, is that they will let someone miss a payment, make a payment, and then continue to lend to them. They will let someone express behaviour showing that they have a problem with debt, and then carry on lending to them. As the companies rely on merchant fees, it is not about the consumer for them. It is all about the retailer, all about what they can get out of the retailer, and the retailer wants that 20% to 30% more in interest.

It is also about overspending. As I have said, there is 40% more spending—of course that means that consumers will spend more than they can afford. However, it also means that they can get multiple buy now, pay later loans, just as we saw with payday lenders—people going from company to company. Many people are not just going to Klarna, but also to Laybuy, Clearpay, and the buy now, pay later schemes that retailers have themselves. It is meaningless to suggest that they are doing soft credit checks, because they would not know who else had lent to an individual. They would not know if that person had £500 worth of debt with Klarna as well as £50 debt with Laybuy to inform whether they should be able to take out another £200 of debt with Clearpay.

Crucially, the fact that they are not required to report means that there is no clear assessment for affordability; they decide what a person can pay, rather than applying consistent affordability criteria. That is a particular concern of mine as we have seen this industry evolve so quickly over the past year, and we have seen banks start to offer buy now, pay later. The very people who manage our money are deciding how much of it we can pay out and how much they can then charge fees on. It could be argued that that is like an overdraft, but at least with an overdraft we know that it is one, and consumers can be aware of that. I would wager that people are much more aware of the risks of an overdraft than they are of buy now, pay later.

Little wonder that there was a call earlier this year for urgent regulation. That is why today I am asking the Minister what he is going to do, because we have not yet had that regulation. It is welcome that the consultation on what that regulation should be has been published, but it was only published this month. We have had eight or nine months now of those companies knowing that regulation is coming, but with no clarity as to what that regulation might be, or, crucially, when it might be enacted. Little wonder that many consumer groups are very worried.

A Which? investigation in October found that of 111 major retailers of fashion, baby and child and homewares, 62 offered at least one buy, now lay later scheme, and the majority did not provide any information about late fees. This afternoon I was looking at various websites to see what information these companies provide about the risks of the debt that people could get into—the sort of information that we would expect as standard from regulated companies. Very few provide that information.

We are still seeing the influx of advertising from these companies—we cannot avoid it—pressing and pushing buy now, pay later. Now it is linked to Black Friday, which is a relatively recent concept in the UK, but we are very keen on it and account for 10% of all global Black Friday searches. We are a nation who want to know whether we are going to get a good deal and when it will happen. It is a toxic mix, and one that we must address urgently.

It is right to consult on what the regulations should be, and I hope the Minister will confirm that it is crucial to regulate these companies as we regulate others. First, it is a form of credit, so why should these firms not have the special affordability rules that we ask of other companies? Secondly, if we start picking off various types of credit and offering them different types of regulation, we will quickly undo the regulation that we have and see a race to the bottom, rather than the standards that we all want for our constituents. He must also recognise that the length of time that it has taken to get to regulation has offered these companies an open goal, and it is one that they have taken through the evolution of offering immediate credit cards themselves direct to consumers to make purchases—Amazon may say that it does not accept Klarna, but people can use the Klarna app to buy from Amazon—and in the types of products that can be bought using buy now, pay later. Betting sites now offer buy now, pay later options. Food sites offer buy now, pay later. Zilch can be used to buy a Domino’s pizza.

Think about that for a moment. Spreading the cost of a pizza over months tells us something about the cost of living crisis and how desperate people must be if they have to spread payments for a pizza. This is not about buying fancy tellies any more; we are back in the territory that we got into with payday lending, where people use this form of credit to make ends meet because they have got too much month at the end of their money.

The Minister will say that a consultation is ongoing, but it closes after Christmas, so it is too late for Christmas this year. In this environment, it would be helpful to hear that he recognises the risk of Christmas. We know that one pound in every four spent last Christmas was on buy now, pay later, and it will be a lot more this year, so the risk of people getting into the difficulties that the CAB and Which? outlined so well is even higher. What will he do to warn people that such credit is unregulated, so they do not have the consumer protection that they might expect from other forms of credit? What is he doing to hold to account those retailers telling us to go out, spend money and treat our dearest and loved ones while creating websites on which it is practically impossible not to get into using buy now, pay later as the default option? What is he doing to ensure that advertising is clear about the risks of the debt that people could get into? When people look at the JD Sports site, which has six different options for buy now, pay later, they need to understand that all those options come with a higher risk than other forms of credit because they are not regulated.

The Minister will say that the Government want to make good legislation, and I agree, but he must take responsibility for the length of time it is taking to regulate these companies, because they have evolved and are exploiting people at the same speed at which the payday lending industry moved to exploit people. The problem with leaving these legal loan sharks to prey on our communities is that we will all pay the cost at a later date. We will all pay the cost when Government is slow and FinTech is quick, yet that is the situation that we are in.

Will the Minister join me in calling on responsible retailers to rejig their websites so that buy now, pay later is not the default option but one that comes with a severe financial health warning? Will he join me in asking major transport agencies not to take these companies’ adverts until their costs are clear and they admit that when they say, “No late repayment fees; no charges,” that will not necessarily be true? Will he set out a clear timetable for when he expects that the regulations will come in and these companies will have to abide by common rules on affordability and credit checking and treat our constituents fairly?

I am really worried about this Christmas and how many people will get into debt trying to do the completely understandable thing of not being the Grinch. However, I am even more worried about the message that we are sending. Just as Wonga came along and then came Klarna, so another FinTech will come in the future. Every single time we pause—every single time we as a nation say, “Well, there might be unintended consequences if we don’t act”—we are offering up our indebted constituents as guinea pigs for these industries, and I know that is not what the Minister wants to do. We have to be as quick as them, if not quicker, in recognising the risk and stamping down on it.

I hope the Minister understands where I am coming from and why I believe it is so important that Parliament sends the message that Black Friday should be a time when we are all very aware of our finances as well as the deals that we are offered. We should be warning everybody about buy now, pay later. I hope the Minister will agree that we have to get much quicker at dealing with these risks, for the benefit of all our constituents.

15:00

[Paul Maynard (Blackpool North and Cleveleys) (Con)]

It is a pleasure to serve under your chairmanship, Mr Robertson. I congratulate the hon. Member for Walthamstow (Stella Creasy) on securing the debate, and I congratulate Pip on taking the sensible decision to fall asleep during his mother’s speech. He had a nice long sleep, as we can all observe, which was perhaps a sensible decision by him. None the less, we heard a powerful contribution from the hon. Lady, most of which I strongly agree with. She clearly set out for us some of the challenges that we now face.

I of course welcome the fact that the Government are looking to regulate the buy now, pay later sector through the Financial Conduct Authority. I am pleased to see so many buy now, pay later companies falling over themselves, begging to be regulated—“Regulate us, please!”—but they might not be quite so happy when we get to see the detail. That will be the test of the buy now, pay later sector: not its good intentions now, but what it makes of the regulations at the end of the process.

I am concerned that the consultation fails to capture the true nature of the consumer detriment, focusing only on the absolute value of the goods but failing to capture how the market is changing with this type of credit. That is strange, given the wider policy environment. It was the Woolard review that first took us down the path of regulating buy now, pay later, but it had much more to say about improving access to lower-cost, short-term credit for the more financially vulnerable. Both issues need addressing in parallel, not separately, and I see no evidence—I might be wrong—that the Government are adequately progressing the wider agenda of the Woolard review on improving access to low-cost, short-term credit.

I know that some people out there believe that the BNPL type of product should be banished out of existence and is a fundamental evil that drives demand for fast fashion. It is a very easy target to strike. However, I represent a relatively deprived part of the country and believe that my constituents should not be denied access to the short-term, low-cost credit that more affluent constituents take for granted. That should not be one more example of the poverty premium that people face in their daily lives. At the moment, the least well-off are disproportionately penalised by the poverty premium, which sees them subjected to higher insurance premiums and offered a much smaller range of affordable credit products, if any at all exist for their particular financial circumstances.

That is my first reservation about the consultation: it views the consumer detriment as relatively small because of the low value of the goods overall. We know that, on average, low-income families have only £95 in savings, so even a single late payment fee can have a devastating impact on a household’s financial circumstances. We need to view these financial transactions in the same way as we see credit cards, loans or mortgages. The last time I had to remortgage, a few years ago, it was a six-hour epic, as every single line of my expenditure was gone through in great detail and I had to justify virtually everything that I spent.

It is the percentage of someone’s disposable income, not the overall amount, that matters when making such decisions, and assessing affordability must be based on maximum transparency between the buy now, pay later provider and the customer, but also between providers. As the hon. Lady said, people cannot rack up multiple debts with Klarna, Laybuy, Clearpay and all the other new companies that are coming on the market. We need to move the focus to the behaviour of the borrower over the lifetime of their financial activities, looking at all their borrowing rather than having just a single test for their credit risk or a single affordability assessment in isolation. It cannot just be a credit check that, if they fail, makes their ability to obtain credit in the future that bit harder, because that is the opposite of putting them on a pathway to more affordable credit. People might be able to afford a loan at a particular point in time but then be hit by a family bereavement that changes their financial situation. Allowing lenders to see a wider picture of spending habits requires much speedier progress on open banking than we have seen so far.

I am also interested in examining the future of the sector. The consultation on regulation cannot just meet the market as we see it at the moment; it must meet the market that we will see in years to come. Consider the issue of rent to own, on which both I and the hon. Member for Walthamstow attended debates well before 2015. That sector went on a long journey, from the relatively innocuous ubiquity of Radio Rentals, which many of our parents used to buy their first TVs back in the late ’70s, to the more problematic practices of BrightHouse and PerfectHome in the 21st century. We know where that journey ended. I still walk past the boarded-up BrightHouse shop on Abingdon Street in the centre of Blackpool, which I named the most dangerous place in Blackpool because it was sucking people in and trapping them in long loans of high-cost credit.

We are already hearing that buy now, pay later is being used not just for pizza but for the weekly food shop. That should really give us pause for thought. Higher-value goods are now being bought through buy now, pay later. It is not just fashion, which we automatically link with Klarna and the advertising that we see. I read in the paper just this week about a new market entrant, humm, from Australia, that specialises in much larger consumer goods—something that makes me go “humm” when I wonder whether that is desirable.

We must also think more about the retailers, as the hon. Member for Walthamstow said. They are as much the beneficiaries of this market as are the buy now, pay later providers themselves. The whole business model works only if it increases sales for the retailers; otherwise, why would they bother paying the buy now, pay later provider a percentage fee? That fee is what justifies this form of market.

If that becomes our default payment mechanism in a cashless society—which I am afraid that, as we debate here, we seem to be sleepwalking into—we may need to look again at how we monitor the internet shopping experience and the customer journey through a website. Will regulations that were framed around the idea of purchasing clothing work for goods that could cost thousands—much larger consumer goods and consumer electronics? Where do the retailers sit in all of this? There is a real commercial dynamic at work here.

I was speaking to ASOS just last night, at a reception in the Churchill Room. They said that they had worked with Alice Tapper of GoFundMe, a noted campaigner whom I am sure the hon. Member for Walthamstow has spoken with at length. She has worked with ASOS to redesign its website to ensure that it is a friction-filled—not frictionless—journey for the consumer, so that there are multiple occasions when consumers are asked to pause and consider what they are about to purchase, and so that buy now, pay later is not the default, pre-ticked option on the checkout form. Those are all very simple measures, but they are not measures that the Treasury can effect. They come under the Advertising Standards Authority and other types of regulation. The consultation on regulation will not solve everything; there are other agencies that have to take other steps.

None the less, there are better solutions out there, and the Government are committed to them—not least no-interest loans. I am at risk of reading out a paragraph from my previous speech, when the Minister was here and I did not get an answer, so let me have another go, if he is listening. I am obsessed with reforming local welfare assistance schemes so that people can access the white goods that they need. The Government have a very good idea: no-interest loans. Providing those should not be rocket science. The original idea came from Australia—the same place from where humm is now arriving on our shores, and where Good Shepherd Australia has been operating micro-finance for many years. Surely, to introduce them here must be cut-and-paste. Indeed, some of their regulations on buy now, pay later are a model of what we are planning to do here. Rather than building a programme from scratch, why not try to move faster by looking at what works in other jurisdictions? This matters, because the cost of replacing white goods is terrible for so many families, who fall into debt as a consequence. We need only listen to the Liverpool-based End Furniture Poverty campaign and look at the pilot schemes that Fair4All Finance is launching to tackle the concept of appliance poverty.

The hon. Member for Walthamstow also mentioned FinTech, perhaps in the sense that it is almost a risk that you never know what it will come up with next. Equally, I think that FinTech is actually part of the potential solution. There are companies out there and emerging—Auden Financial is one that I happen to know quite well—that are looking to use FinTech to provide the low-cost, short-term, ethical credit that I think has to be the end goal. We all talk in this place about FinTech. We all swoon, almost, at the wonderful thought of what a fantastic business it is. I am not sure that we as politicians always understand it terribly well, but we need to keep asking how we can work with that sector so that it does good and not bad.

There will always be disruptors, and I want to disrupt the business of high-cost, short-term credit; that is what I want to disrupt. There is a gap in the market for a new provider to come along and do things differently. No one should be denied the opportunity to own things. Everyone should have the ability to choose how they spend their money and to choose how they access a form of credit that is regarded as affordable to them and does not place them in greater difficulty. At the moment we are not in that position, but there are multiple ideas out there. Restricting access to buy now, pay later, properly regulating it, and treating it like any other form of credit and not least in a way comparable to how we treat consumer detriment from credit cards, has to be one step along the path. There is a much wider agenda that the Treasury needs to embark on to embrace the whole Woolard review, not just one small paragraph.

I commend what the Minister is doing. Like the hon. Member for Walthamstow, I know that he is on the side of the angels. But it is the job of those on the Back Benches to say, “Go further; go faster. Do it yesterday.”

15:12

[Claire Hanna (Belfast South) (SDLP)]

It is a pleasure to serve with you in the Chair, Mr Robertson. I thank the hon. Member for Walthamstow (Stella Creasy) very much for introducing the debate, and I congratulate her on having not only a genuinely good track record of action on consumer protection, but much better behaved infants than I have ever had, which is not to be sniffed at.

I associate myself with many of the remarks and proposals that the hon. Member and others have made, including about understanding that individuals and families are ready for a meaningful Christmas, and acknowledging that many are able to make, and are facilitated in making, difficult choices and balancing things this year and every year. However, we also have to acknowledge that Black Friday and the associated financing is not a generous offer and an attempt by retailers and financiers to make Christmas dreams come true. It is, in many ways, exploitation of those natural human instincts to try to provide for family. Black Friday is no longer just one day in November; it is a month-long—and often longer—bombardment of advertisements, deals and “ways to pay” that go far beyond traditional methods.

Research published today by Which? indicates that some 99% of Black Friday deals that it assessed were in fact available cheaper elsewhere in the calendar year. At the heart of this is driving people to make more purchases. We could spend this debate talking about the negative impacts of Black Friday alone on people, on the planet and on smaller retailers, which perhaps do not have the same marketing infrastructure as larger ones, but probably the most acute impact, as the hon. Member for Walthamstow outlined, is the results and the risks of predatory lending.

Citizens Advice has likened buy now, pay later to quicksand—easy to slip into and very, very difficult to get out of. As I said, at the heart of the concept is encouraging people to spend money that they do not have by putting the hard landing of any purchase on the long finger. The hon. Member for Walthamstow is correct to highlight the habit-forming tactics that mainstream this means of purchase and steepen the slippery slope by which many people slide into debt. She highlights the very interesting statistic that it increases sales by up to 30%. Evidence bears out the concerns that Members have expressed, with 75% of buy now, pay later users being under the age of 36—this tactic is clearly marketed particularly at Gen Z—and four out of 10 of them struggling to repay. That matches what we already know about the financial security of many in that demographic, who are already in or at risk from the gig economy, with its inadequate and unsustainable or unfixed incomes.

The services we are discussing are, in many cases, clearly harmful to the individual consumer, but also to the planet. Members outlined that the vast majority of buy now, pay later purchases relate to clothing, which drives the acutely unsustainable fast fashion market in which literally tonnes of clothing, often produced in dubious labour conditions, quickly ends up in landfill after a tiny number of wears—the product is often designed to be worn a small number of times. There is a wider impact. Fashion website Boohoo offers shoppers five different ways to pay for a £30 dress, which again underlines that this is not about facilitating a special Christmas purchase or a big purchase, such as a TV, that a household needs; this is about driving a pattern of spending that locks people into unsustainable purchasing habits.

As one investor in a buy now, pay later start-up explained:

“It increases the basket size and it also reduces dropped baskets”.

Some of that is marketing; it is what business does. It is the logical extension and development of the economy we have. However, as in many other areas of the market and the economy, we have an obligation to try to protect people from technologies and marketing techniques that are far beyond what any of us are used to.

This is a big and emerging problem and, like a lot that relates to technology and online, the market may be moving faster than regulation can, but it is not an unsolvable problem. The hon. Member for Walthamstow outlined many ways, alongside FCA regulation, to intervene and slow this down, including obligations on retailers to adequately display and explain the background of the products they serve. For example, in Sweden, the home of Klarna, it is already illegal to market buy now, pay later ahead of other types of up-front payment.

It is welcome that the Government acknowledge this issue and that regulation is required. It is important that we have forums such as this one to correct the view that this is not a widespread consumer problem, because it is. We know very well the depth of the debt problem. After all, credit is debt—that is what it is. As others have explained, people will always want to use credit, but in many cases it will be for a long-term purchase that will have benefits in life. In the vast majority of buy now, pay later cases, that does not apply. I support the motion and all efforts to regulate and protect.

[Mr Laurence Robertson (in the Chair)]

We come to the Front-Bench spokespeople. I would like to leave two or three minutes at the end for the mover of the motion to wind up the debate.

15:19

[Patricia Gibson (North Ayrshire and Arran) (SNP)]

I begin by paying tribute to the hon. Member for Walthamstow (Stella Creasy) for bringing the debate and for all her work in this area. As the Christmas shopping season gets fully under way, it is right that we debate debt, how consumers require protection in a fully regulated credit market, and the responsibility of Government to ensure that that is the case. The high cost of some credit options, especially buy now, pay later deals, is already causing untold misery for millions of consumers. So far this year, shoppers have racked up more than £4 billion of outstanding debt, averaging £538 for each user. Research shows that 10% of shoppers plan to use buy now, pay later options this Christmas. I am sure that option can be helpful for some people, to spread the cost of significant purchases, but it can also facilitate the building of unsustainable debt.

In order to protect consumers, the sector needs to be properly regulated. An exemption in the law as its stands means that these payment plans are not treated in the same way as traditional credit agreements, so they are not regulated by the Financial Conduct Authority. Therefore, as the Woolard review found earlier this year, many consumers do not see buy now, pay later options as a form of credit, so they do not consider arrangements as carefully as they might otherwise do. It is worth noting that the sector was comparatively small, but the value of transactions nearly quadrupled between January and December last year, to £2.7 billion. It is easy to understand why the Woolard review concluded that there is an urgent need to regulate all these products.

The Government’s consultation into the regulation of the buy now, pay later market will close in January. It must result in robust regulation of the sector, which must be brought into line with the regulation of other areas of the credit market, with interest at least no higher than that for pay-day loans, credit cards or overdrafts. It should also require credit checks similar to those for other credit products. It is appropriate to think about such things as we approach Black Friday and Cyber Monday, which is the commercial answer online to in-store shopping.

Recent research by the consumer organisation Which? is very worrying. It reveals that a strikingly high number of shoppers feel rushed into making Black Friday purchases. Many live to regret it, using credit or borrowing to make purchases that they could otherwise not afford. That must be seen against the background of the way that Black Friday is marketed, using the threat of regret, with banners such as “Hurry!”, “Don’t miss out!” and “Last chance!” plastered around these so-called deals. Shoppers who buy on credit pay extra for their purchases, regardless of how good the deal might look, once the extra cost of credit is factored in, which can build from month to month.

It is also worth noting that the seductive techniques used to encourage shoppers to splurge on Black Friday belie the fact that Black Friday deals are not always the best of the year. In fact, many products can be found cheaper in the months before and after November. According to Which?, that is all hidden behind the marketing used for Black Friday.

As we approach Christmas and talk about debt, there are some who say—and I have heard them—that people should live within their means. It is easy for those who are relatively well off to lecture those who do not have very much about living within their means. It is completely understandable that people, despite being financially pressured, still want to buy presents for their children at Christmas—of course they do. If they do, the Government have a duty to ensure that all consumers are buying in a fully regulated credit market, with all the protection they need, should they find themselves overwhelmed with debt. The Government have a duty to ensure that all aspects of the credit market are fully regulated and fit for purpose.

I need to say at this juncture that many families are not forced into debt because of Christmas shopping, but because their everyday household budgets are being squeezed more tightly every single day. We must not assume that unsustainable debt is down to non-essential purchases. Many households are falling into debt in order to pay for essentials, such as the gas bill or groceries. That applies not just to those who are unemployed but to that shameful phenomenon: the working poor. Those are people who go out to work every day to provide for their families but simply do not earn enough to make ends meet and pay for essentials, having been met with a cut of more than £1,000 a year in universal credit.

We are sitting on a debt time bomb, and it is not due to profligacy; it is because so many people have suffered an income shock through no fault of their own. Sadly, for those people, the idea of levelling up sounds very hollow as they face the destructive misery of debt, which every day threatens to engulf them. The cost of living is rising, and that is throwing many people into hardship, including many people who were always able to manage in the past. The UK household debt crisis is not going away; it is actually getting worse.

The Government must therefore ensure that the buy now, pay later market, which we have heard so much about today, including the difficulties with it, is subject to the robust regulation that consumers have a right to expect. That process must be expedited so that next year, at the next Black Friday, anyone who turns to any kind of credit can do so with much more protection and confidence than they are currently able to. Some people have estimated that the sector may not be properly regulated until as late as 2023. That prospect is deeply concerning, so I hope that the Minister will today commit to expediting regulation as soon as possible and as a matter of priority, so that we can save yet more people from experiencing the severe misery of debt without the protection that they should be entitled to expect.

15:24

[Mr Pat McFadden (Wolverhampton South East) (Lab)]

It is a pleasure to serve under your chairmanship, Mr Robertson, and I begin by endorsing the remarks you made at the beginning of the debate. I attended the funeral mass this morning for Sir David Amess, and you are absolutely right that he is a colleague who will be greatly missed right across the House.

I thank my hon. Friend the Member for Walthamstow (Stella Creasy) for securing this debate. I also thank our youngest member, who has attended the debate and been as good as gold throughout; we will see how we get on for the next 20 minutes.

My hon. Friend has been a formidable campaigner for consumer rights and against high debt charges, particularly for those on modest incomes. We are focused this afternoon on the buy now, pay later sector, which has grown hugely in recent years. The Government consultation on the issue says that the use of that payment mechanism tripled last year, and that during the pandemic more than one in 10 consumers paid for goods in this way. We have heard other numbers in the debate that suggest that the true figure may be even higher. Whatever the exact figure is, I think we can all agree that the sector is growing fast.

During the pandemic and the lockdowns, we saw an accelerated trend towards online shopping, and indeed online everything else, which helped to spur the growth of buy now, pay later products. As for the overall financial impact of the pandemic, it is really a tale of two Britains. For those in good work, who were still being paid full pay, the impact was often the ability to save more money. Right across the country, and across the rest of the developed world, bank deposits increased markedly for that reason. People were still earning, but much normal spending was curtailed, so they had more money to save.

That is the story of one Britain, but there is another Britain in which earnings were cut as work was lost, and where incomes declined and debt grew. For many people in that group, their costs increased because they were stuck at home with the heating on, their food bills went up because children were off school, and they could not earn what they had earned before. Those were families who had never had much disposable income in the first place, and who were often struggling with and juggling significant amounts of debt. Many of those people fell between different Government help schemes and were left under huge financial pressure. It is really important to understand that while overall savings grew, that was not true for everyone, and for many people debt grew instead.

However buy now, pay later products are marketed, they are another form of consumer debt, pure and simple. The explosive growth in this type of debt in recent years, and the risks identified in the report that Chris Woolard wrote last year, mean that it is right that these products are properly regulated. That is in the interests of consumers, who have a right to know exactly how the products work and what the potential penalties for non-payment will be. Otherwise, regulation will fall behind innovation in the market and become hopelessly out of date.

The business model for buy now, pay later is a merchant fee for each purchase. The growth model is that more goods will be sold because payments can be spread over a period of time. Interest is not normally charged on the staggered payments, but that is not the end of the story, because the companies also raise revenue through late payment fees or penalties when consumers fail to meet payments. For some buy now, pay later providers, those late payment fees and penalties are a significant proportion of their overall revenue. We must remember that, in the end, this is a debt like any other, which attracts penalties if it is not paid in accordance with the agreed timescale.

Chris Woolard’s review concluded that the buy now, pay later market

“poses potential harms to consumers and needs to be brought within regulation to both protect consumers and ensure it is sustainable.”

To their credit, the Government acted fast at first, taking an initial power last March during proceedings on the Financial Services Act 2021. Then, after a long period, Ministers issued the consultation on detailed regulations only last month. That consultation is still open and does not close until January. Why was there a delay of seven months or so between the initial legislation and the publication of the consultation? Why is the tone of that consultation quite unenthusiastic about regulating, seeking to minimise the scope of the regulation? It gives the appearance that the Government have been dragged into this. This is a fast-growing market. New accounts are being opened every day, and there is no reason to delay. This delay will mean that significant time has elapsed between the initial decision and the Government’s approval of the Woolard report and introduction of the regulations.

My hon. Friend the Member for Walthamstow has spoken about the potential for the next few weeks to result in significantly more consumer debt, with both Black Friday and Christmas approaching. I endorse what she said: nobody here wants to dampen anyone’s enthusiasm for a bargain—although I caution people to check whether it really is a bargain—and of course, we want everyone to enjoy the festive season. In my house, it is pretty big business. We have lights on the inside, we have lights on the outside and, whether I like it or not, we have an awful lot of Michael Bublé. But it is no secret that the festive season can be an expensive time for people and that, for some, December spending can result in a January hangover. That makes this debate both timely and important.

Innovations such as buy now, pay later were not envisaged when the Consumer Credit Act 1974 was passed, and that is why this gap must be filled. When it comes to updating the regulation system, the Government need to act and get on with it. What might the new regulations cover? The slightly reluctantly worded consultation gave some clues, but there are obvious areas, and I want to name a few. The first is information to the borrower. Does the borrower understand that this is a debt, and that they may be subject to penalty charges and increased costs if payments are not kept up? As we have heard, that is often not made clear.

What is to stop consumers setting up multiple buy now, pay later products with multiple companies? How will one know about the other? Does the consumer’s bank know about the other products? What if the consumer is already heavily indebted to their bank? That featured in the Woolard review, which implied that about one in 10 buy now, pay later account holders might already be quite significantly indebted to their bank.

What should the rules be on advertising and promotion? As the Minister knows, the weakness of the FCA’s financial promotion rules has already been a factor in the case of London Capital & Finance, which we debated in relation to other legislation recently. How will the regulations ensure that advertisements and promotions convey sufficient information about the nature of the credit agreement being entered into and the risk of incurring debt and penalties? Will consumers be told, for example, that non-payment could result in their debt being transferred to a debt collection agency? That is quite important, and might give people pause for thought when they take out such a product. Also, how do we treat consumers who get into difficulty? Right now, there is a mix of late payment fees and the use of debt collection agencies. Will the regulator codify that properly, given the proportion of revenues that some companies are raising from that activity?

Finally, returning to the timescale, can the Minister ensure that once the consultation closes, there will be no further delays and the FCA will be able to act as soon as possible, whatever the outcomes of that consultation? Given that the Woolard review reported near the beginning of this year, we certainly do not want to roll all the way through next year with no regulation in place. This is a very fast-growing new form of consumer debt. Regulation has not kept up: it must do so, or else it will ossify and become out of date. Time has already been lost this year, and I will close by urging the Minister—I know he wants to help on this issue—to get on with it, so that in relation to these products, consumers have the protection and information that they have a right to expect.

15:36

[The Economic Secretary to the Treasury (John Glen)]

It is a pleasure to serve under your chairmanship, Mr Robertson. I associate myself with the remarks of a number of Members this afternoon concerning the death of Sir David Amess. He was a true blessing to this Parliament and a great character whom we all loved, and he will be sadly missed.

I have listened carefully to the various contributions this afternoon. As ever, this has been a very well-informed debate that I welcome very much. I pay particular tribute, as I have done previously, to the hon. Member for Walthamstow (Stella Creasy) for securing a debate on this important matter. I will be sure to give her some time to have another go at me in the last few minutes of the debate. She set the scene very well, explaining the context that we face in the run-up to Christmas: the inducements to consumption and the apparent savings for consumers; the evolution in new forms of credit; the need for regulation, which I fully accept at the outset; the risks around the use of buy now, pay later becoming habit-forming; the behavioural shifts we are seeing in the market; and the need to really think about the context of borrowers’ behaviour as we bring forward this regulation. As ever, we were treated to some sophisticated analysis of the wider consumer credit challenges, and the issues with making more affordable credit available, from my hon. Friend the Member for Blackpool North and Cleveleys (Paul Maynard). I will address those points later.

It is important that we start this afternoon by understanding the Government’s position: we recognise that there is a potential risk to consumers from unregulated buy now, pay later products. I listened very carefully to the criticisms of the timeline, and over the next few minutes I will address the challenges we have encountered and present some of the solutions that we think may exist. It is extremely helpful for all parties to be represented in this debate; given the level of engagement from players in the market, there is a clear desire to address this significant area of concern in Parliament. There has been a massive explosion in this area, and it is important that we respond appropriately.

It is important to understand the nature of the risks. We should acknowledge that the use of buy now, pay later is growing rapidly: in fact, the number of transactions from the main providers using buy now, pay later more than tripled in 2020. That said, buy now, pay later is still estimated to have amounted to only 2% to 3% of the consumer credit market last year, and a recent study by the consultancy Bain & Company found that about 5% of online transaction volumes involved the use of buy now, pay later. I am very sensitive to the distribution of that additional use and the people who are increasingly reliant on buy now, pay later—that is something we must take account of—but it makes up a smaller proportion of the market than is sometimes believed. In addition, we have not seen substantial evidence of the risks that some have predicted materialising.

I will set the scene of the current state of regulation, because it certainly does not mean that the Government are turning a blind eye. A degree of regulation already provides protections for users of interest-free buy now, pay later products. The Consumer Protection from Unfair Trading Regulations 2008 make it a criminal offence for traders to give consumers misleading information. Firms are required to provide consumers with the information necessary to make informed decisions and not omit or hide material information that the average consumer needs. The FCA and the Competition and Markets Authority are designated enforcement bodies for these regulations. The Consumer Rights Act 2015 requires that the contract terms of buy now, pay later providers must be transparent and not contain unfair terms. When promoting buy now, pay later products, firms must also comply with the rules set out in the UK advertising codes, and offending firms can be referred to trading standards and Ofcom.

Last year, the Advertising Standards Authority published formal guidance about buy now, pay later, setting out its expectations of both providers and retailers when they offer these services. The ASA also banned harmful buy now, pay later adverts, stating that future advertising must not irresponsibly encourage the use of a product, particularly

“by linking it with lifting or boosting mood”.

That is something that the hon. Member for Walthamstow has highlighted and campaigned on. Some buy now, pay later agreements are also already subject to some aspects of the financial promotions regime. The FCA uses its existing powers to protect buy now, pay later users, for example by scrutinising marketing materials of authorised firms and the way these products are promoted. The FCA has wider consumer protection powers that it can apply to unauthorised firms where it sees poor practice.

Effective Government oversight of financial services is not just about imposing rules; it is also about engaging with industry. In the case of the buy now, pay later sector, that is something we have done extensively—as have Members here today. We have seen that reflected in the actions of the largest firms, with many voluntarily introducing credit-worthiness checks and making information more transparent at checkout. However, I fully concede that that is not universal, and not every firm has moved in the right direction.

Looking ahead, the fact that we have seen some progress does not mean that we are complacent. As Members have noted, the Woolard review into the unsecured credit market, which was published in February this year, identified a number of potential risks. They include how buy now, pay later is promoted to consumers and presented as a payment option. Consumers are sometimes left with an absence of information about the product and the features of the credit agreement, and there are no requirements to undertake affordability and credit-worthiness checks. As has been pointed out, that is particularly important when multiple transactions are taken up with different buy now, pay later providers.

Following the publication of the Woolard review the Government announced, with support from the Opposition —I am grateful for their support—our intention to regulate these products. On 21 October, we published a consultation document that sets out the proposed approach to regulation, and that consultation is open until 6 January. Prior to the publication of the consultation, I had a lot of engagement with my officials. One of them is sitting here today, and I have spoken to a number of them this afternoon and numerous times before that. It is through a desire to get this right that we have taken time over it. There is no desire to go slow. I recognise that there is an urgency to this, and we have to move forward as quickly as we can. During the consultation period, the Government are engaging with representatives from consumer groups and industry—indeed, there is a workshop going on this afternoon—to ensure that the final approach to regulation strikes the right balance on consumer protections. Debates such as this help to inform that approach.

We want to expand the evidence base about the risk to consumers, and Members from across the Chamber have made a lot of points about that this afternoon. As I have said, the Government recognise the potential risks, and that has been supported in recent studies by consumer groups, such as Which?, Citizens Advice and others. However, the Government’s view is that as an interest-free product, buy now, pay later is inherently lower risk than products that charge interest. Used properly, it can be a way for consumers to manage their finances, as my hon. Friend the Member for Blackpool North and Cleveleys mentioned, and to spread the cost of purchases—particularly when managing periods of higher household expenditure, such as Christmas, when Michael Bublé CDs are being purchased in the household of the right hon. Member for Wolverhampton South East (Mr McFadden). We should not forget that interest-free buy now, pay later offers, specifically around Black Friday, can allow consumers to take advantage of offers and discounts that they might not otherwise be able to benefit from.

Looking ahead, and in the context of the ongoing consultation, our overall objective is to ensure that buy now, pay later products can continue to be offered in a way that allows consumers to take advantage of the flexibility of the offer, while ensuring that the potential risks are managed. That means designing regulation that is proportionate to the level of risk and takes into account the way that the products are used.

For example, the Government believe that is it reasonable that buy now, pay later products use a bespoke approach to consumer disclosures, as well as to the form that the credit agreement must take. That is reflected in the proposals in the consultation, which I would characterise as not reluctant, but detailed, reflecting the fact that different issues come up with the evolution in the market and in the provision of different services. We cannot apply a single, one-size-fits-all approach. I see that the hon. Member for Walthamstow is adjusting her face mask, so I think she wants to intervene.

[Stella Creasy]

I thank the Minister for letting me intervene. He will understand that I am a little troubled because when the Woolard review said in February that there was an urgent need for regulation, we all agreed that urgency, as well as regulation, was a critical part of that conversation. Does he accept that in the absence of such regulation, one thing that we now need to tell people —it is on his list—is that they cannot go to the Financial Ombudsman Service if they feel they have been mis-sold a product? At the very least, in the intervening time before any regulation comes forward, the Government have a duty to ask retailers and companies to make that clear to people—a buyer beware warning. Does he at least accept that the Government should be doing that this Christmas?

[John Glen]

I fully accept the point that the hon. Lady makes, in that at the moment, those protections do not exist, and that is why we have to regulate appropriately and proportionately.

I want to say a bit more about what I think we should be doing. It is reasonable that buy now, pay later products use a bespoke approach to consumer disclosures, as well as to the form the credit agreement must take, and that is reflected in the consultation proposals. However, we need to think about the way that these products are used in the context of an online journey, the warnings that are inherently there during that journey and the fact that they are frequently used for much smaller sums than the traditional credit agreements for which these rules were originally developed.

When we think about how this facility is used, part of the challenge is the way additional payment smoothing mechanisms can inadvertently be sucked in. I do not want dental payment plans—essentially, for expenditure that is smoothed over 12 months—to incur an obligation to do some form of affordability check. Such issues make this more complex than it may have at first seemed.

I am determined that we get this right, that we recognise the distinct consumer risks that exist and that we bring forward regulation that deals with them. The Government’s view is that buy now, buy later information should not be long and detailed so that it becomes just another long set of terms and conditions, because frankly there is a significant risk that people would just make a cursory observation of such a list and tick the box. Instead, the information should be presented in a form that allows consumers to engage meaningfully, and I hope the hon. Member for Walthamstow would support that.

The Government also consider in the consultation whether the financial promotions regime, which already applies to a broad range of financial products, should be amended to ensure that all buy now, pay later promotions fall into that regime, further strengthening consumer protection. That would mean that all promotions made by merchants, such as a retailer, would have to be approved by an FCA-authorised firm. It is also important that consumers are lent to affordably. That is why the Government anticipate that the proportionate regulation of buy now, pay later would include the application of the FCA’s current rules on credit worthiness.

The Government recognise that these products are lower risk than other interest-bearing agreements and can help consumers to manage their finances. A study by Bain suggests that in 2020 consumers using buy now, pay later instead of credit cards in the UK saved £103 million in interest. I say that not to commend it over credit cards, but to recognise the segmentation of the credit market and the different behaviours and options that exist out there. That is why we believe it is right that regulation is balanced and proportionate, ensuring that customers are given the appropriate protections, without unduly limiting the availability and cost of useful financial products.

As hon. Members have mentioned, there is already precedent for imposing different regulatory requirements on different credit products, depending on the risk they pose. The Government and the FCA have previously implemented bespoke regulation for higher-risk products, such as the price cap rules for payday lenders and rent to own. Obviously, it would be difficult to apply that symmetrically in this context, but I sincerely welcome the hon. Lady’s comments later. Likewise, a more proportionate approach is right for buy now, pay later products, which we assess to be of a lower risk.

As new products enter the market, it is critical that the Government carefully consider not only how credit products are regulated, but where the boundaries of regulation should be. I note the concern that buy now, pay later may increasingly be used as a more mainstream form of credit, as has been mentioned this afternoon, and that even some banks are beginning to offer it.

Many different types of financial arrangement already make use of the same exemption, as I mentioned earlier, which currently allows interest-free buy now, pay later to operate outside consumer credit regulation—and has done so for decades. That includes arrangements used over many years by UK retailers to support the purchase of higher value items such as home furnishings and white goods, but also those arrangements which allow monthly payments for memberships to sports clubs, dental plans, other associations and certain invoicing arrangements.

In regulating buy now, pay later, we need to think carefully about all the arrangements that these changes could affect and avoid bringing activities into regulation which do not present the same risks to consumers. What is in play here is the cumulative application of the buy now, pay later product to a vulnerable group of consumers, and we need to make sure that that is where we focus the outcome. The Government must also ensure that their approach is future proof and cannot be gamed by firms operating on the margins of regulation. That is why we are engaging with consumer groups in detail to ensure that we get this right and capture the emerging products that are beginning to form.

I will give the hon. Lady several minutes to come back, but I want to mention personal debt more broadly, because it is a critical topic that comes into this discussion. I think everyone here has a desire to tackle problem debt and, as this afternoon has shown, we share an understanding of the complexity of the issue.

We need comprehensive solutions, which is why we are maintaining record levels of funding for free debt advice in England. The Money and Pensions Service this year has a budget of £96.4 million. We have launched the breathing space scheme, which gives a 60-day freedom from fees and payment requests. We are also expanding the availability of affordable credit, providing £96 million of dormant assets funding to Fair4All Finance.

My hon. Friend the Member for Blackpool North and Cleveleys talked about the Australian experience and the opportunity to cut and paste no-interest loan schemes. We have moved ahead with that, and I anticipate that it will move more quickly now. However, I want to be absolutely clear that it works in the UK context and can be scaled up quickly. I would rather it was on solid foundations, but I feel his frustration in my heart too.

I will sum up by reiterating that the Government’s view is that interest-free buy now, pay later has a legitimate role to play in the market, but its rapid growth throws up challenges. I think that consumers recognise that; they find it useful and easy to use. However, we are committed to getting regulation right and protecting consumers. The asymmetry of protections mentioned here needs to be addressed, but we want to do that without limiting the availability and cost of genuinely useful financial products.

We understand that there are concerns, which I have heard this afternoon, about the speed of the regulation. I will do this as quickly as I can, with my officials. We will report back to the House as quickly as possible, but I would welcome colleagues’ continued engagement in the weeks ahead. I recognise the risks that exist in the run-up to Christmas, and I acknowledge the legitimate warnings that the hon. Member for Walthamstow has raised.

15:56

[Stella Creasy]

We have had a very important debate today. I pay tribute to my hon. Friends the Members for Hampstead and Kilburn (Tulip Siddiq) and for Hornsey and Wood Green (Catherine West), the hon. Members for Blackpool North and Cleveleys (Paul Maynard) and for Belfast South (Claire Hanna), the SNP spokesperson—the hon. Member for North Ayrshire and Arran (Patricia Gibson)—my right hon. Friend the Member for Wolverhampton South East (Mr McFadden), speaking from my own Front Bench, and the Minister, for their contributions. I also acknowledge the work of my hon. Friend the Member for Makerfield (Yvonne Fovargue), who has been a fantastic champion on debt issues, but sadly could not be with us this afternoon.

I also pay tribute to the work of Alice Tapper from Go Fund Yourself, who has been a fantastic campaigner in raising concerns on this issue, as well as to Damon Gibbons from the Centre for Responsible Credit, Martin Lewis, of course—where would we be without Money Saving Expert?—Citizens Advice, Which?, and Step Change, all of whom have tried to sound the alarm about buy now, pay later, in particular.

Today, I want to give the Minister probably the best Christmas present of all, which is oddly enough not a subscription to Michael Bublé on Spotify, but the opportunity to prove me wrong. I want to be wrong about this industry. I want to see the parallels with the same problems that we had with the payday lending industry and be mistaken about this.

However, my concern is that Government are slow and FinTech is fast. Everything the Minister has said today has raised that concern for me. He recognises, rightly, that we need to regulate this industry, yet our ability to do so is hampered by the “what ifs”, which these companies do not recognise and, indeed, thrive in. They are predatory. They are preying on our constituents and evolving at a rate of knots. I am not surprised that they suddenly say that they are in favour of regulation, in the same way that turkeys would say that Christmas is overrated—if we are looking for our festive analogies.

I urge the Minister not to falter. We must move as quick as we can, if not quicker. I agree very much with the hon. Member for Blackpool North and Cleveleys; the role of Back Benchers is to say “Go faster; do it yesterday”. I also asked the Minister what we would do in the intervening period, because we have predators, such as Klarna, Laybuy or Clearpay in our communities. When Clearpay wrote to me to boast that it had 4,000 customers in my constituency, I felt physically sick, because for how many of those people is this actually a solution, and how many is it drawing into debt?

The Minister says that he recognises that we need to regulate and that the lack of the financial ombudsman is a real challenge for consumers, who genuinely would not know that they are not protected when they use buy now, pay later. The question of affordability is not about the product so much as the person. That is what concerns me when we start talking about different ideas of affordability for different products; it is still the same constituent who will end up in our surgeries, about to lose their home because they cannot pay their rent, not able to feed their kids, worrying about their debts, not able to sleep at night.

Regulation is always complicated, but there is a simple truth at the heart of this: the speed at which this industry will evolve and prey on our constituents is disproportionately linked to the slow pace of change in our financial regulation industry. That was the lesson of Wonga. This Christmas, we must learn the lesson of these companies.

While we wait for that regulation, I again repeat the call to the Minister. Use the Government education channels. Use the publicity channels. Warn people that this is not regulated. At least tell them, “Buyer beware”—that they do not have the same protection that they might with other forms of credit this Christmas—not just to check the details of those Black Friday deals carefully, but to check the kind of credit they are using. It is so easy on websites now to slip into buy now, pay later.

I promise the Minister that, this time next year, if he can prove me wrong, he will have the best Christmas ever, but I fear I may yet again be the Cassandra of the credit industry. That is not a position I want to be in, because all our constituents deserve better: not the Grinch, not the Scrooge, but a 2022 where they can look their family in the eye, knowing how they will pay for the food on their table and the roof above their head. That is what good consumer credit is about.

Motion lapsed (Standing Order No. 10(6)).

Hertfordshire Green Belt: National Planning Policy

Tuesday 23rd November 2021 Westminster Hall

16:01

[Daisy Cooper (St Albans) (LD)]

I beg to move,

That this House has considered Hertfordshire Greenbelt and the National Planning Policy Framework.

It is a pleasure to serve under your chairmanship, Mr Robertson. I especially welcome the opportunity to again bring threats to Hertfordshire’s green belt to the Minister’s attention. The importance of the green belt in my constituency and across Hertfordshire more broadly cannot be overstated. More than half of Hertfordshire is designated as being within the London metropolitan green belt.

Nationally, we have a housing crisis and an ecological crisis. When it comes to planning in the green belt, the answer is sustainable housing that responds to housing need, but that is not what the Government’s planning system delivers. It is developer-led, not community-led, it does not deliver the social homes that we need and it does not protect our green belt. Nationwide, of almost 18,000 homes built on the green belt, barely 10% were affordable. In my constituency, St Albans City and District Council is being asked to build more than 14,600 homes over the next 15 years. It can build 5,000 on brownfield land, so the remaining 9,000 will have to be built on the green belt. The neighbouring authority of Hertsmere wants to build 6,000 homes right on our border, removing the green belt altogether between two villages and creating a new monster-sized settlement, and the Conservative Government still want us to house a strategic rail freight interchange the size of 490 football pitches, which is also likely to attract thousands of lorries. Could this ever be described as sustainable development? No, it could not.

At the heart of the problem is the Government’s national planning policy framework. The Government have a standard methodology that produces top-down housing targets. Ministers have tried to tell me, in response to my many parliamentary questions on this matter, that their standard method for calculating housing does not produce targets per se, but is merely a starting point from which councils can start to work. I would be grateful if the Minister confirmed how many councils have submitted a successful local plan with a housing target that has been revised down from the standard method.

Those at the very top of Government tell us that the green belt will be protected. At the recent Conservative party conference, the Prime Minister himself promised that the homes we need will be built on brownfield sites and “not on green fields”. Indeed, the Under-Secretary of State for Levelling Up, Housing and Communities, the hon. Member for Harborough (Neil O’Brien), told the hon. Member for Watford (Dean Russell), who is present, in his debate last month that the national planning policy framework gives the necessary protections to green belt land when local authorities come to draw up their local plans, but I am afraid that that is simply not the case.

I give the example of Roundhouse Farm, near Colney Heath in my constituency. I understand, given the quasi-judicial role of the Secretary of State, that it is not appropriate for Ministers to comment on appeals under consideration, but this one has been concluded. St Albans District Council and Welwyn Hatfield District Council jointly refused permission for a development of 100 houses at Roundhouse Farm near Colney Heath, which is on the Hertfordshire green belt. Both councils, having regard to the national planning policy framework, considered that it would be damaging to the green belt to allow an inappropriate development such as that to proceed. The Minister’s planning inspector disagreed, and yet another chunk of precious green-belt land was given over to development. The inspector gave more weight to the calculation of housing need under the Government’s standard method than to the protection of the green belt.

In setting out the reasons for overturning the decision, the planning inspector said:

“I am aware of the Written Ministerial Statement of December 2015 which indicates that unmet need is unlikely to clearly outweigh harm to Green Belt and any other harm so as to establish very special circumstances. However”—

this is the critical line—

“I note that this provision has not been incorporated within the Framework which has subsequently been updated and similar guidance within the Planning Practice Guidance has been removed. I can therefore see no reason to give this anything other than little weight as a material consideration.”

That is to say that he gave little weight to the green belt. The inspector’s appeal decision went on to say:

“I afford very substantial weight to the provision of market housing which would make a positive contribution to the supply of market housing in both local authority areas.”

If the Government genuinely believe that there are sufficient protections for the green belt in the national planning policy framework, I would be grateful if the Minister explained to me and my constituents how that decision came to be overturned by the Secretary of State on the recommendation of the planning inspector. I would be grateful to know whether the Minister accepts the planning inspector’s conclusion that the provision to protect the green belt has not been incorporated within the national planning policy framework, and that similar protections within the planning practice guidance have been removed. If the Minister does accept those findings from the planning inspector, I would be grateful to hear whether the Government intend to rectify the situation.

Following the shock decision, I asked the Secretary of State to intervene and urgently issue guidance to the planning inspector on determining appeals. This would mean attaching greater weight to the objective of protecting green belt than to the standard housing need method of calculation. When I asked this question, I got the following reply from the Government:

“The Government is firmly committed to protecting and enhancing Green Belt land for future generations as set out in our manifesto. That is why, for decision-taking, local authorities should regard the construction of buildings in the Green Belt as inappropriate and refuse planning permission, unless there are exceptional circumstances as determined by the local authority.”

However, the two local authorities in this case did precisely that but had their refusal overturned anyway. I would be grateful to understand whether the Minister now accepts that the national planning policy framework is simply not fit for the purpose of protecting our precious green-belt land. It must be updated without further delay, and new guidance should be issued to the planning inspector. I have outlined just one example of local authorities doing everything within their power to protect our natural environment and having their decisions overturned by the same Government who profess to be its protector, but I am sure there are countless others.

Let me turn briefly to the standard method and the green belt weighting. At some stage, every council in Hertfordshire will have to make a judgment call. Either they have to come up with a local plan that meets central targets and they have to wave goodbye to the green belt, or they have to try to call the Government’s bluff, claim exceptional circumstances to protect the green belt, and wait and see what the planning inspector says. However, the problem is that the planning inspector may well take their powers away altogether. Council leaders accept that that would almost certainly leave communities in a weaker position than they are in now, and any canny developer would immediately put in an application for the sites that we most want to protect. The situation is deeply unsatisfactory.

As we have discovered, the Government’s repeated claim that the standard method of calculation does not produce centrally imposed targets just does not stand up to scrutiny. In fact, the planning inspector’s day-to-day interpretation of the national planning policy framework shows that that is exactly how the targets are being treated. I ask the Minister again: will he commit to urgently issue guidance to the planning inspector that has principles for protecting the green belt? Will he ensure that those principles are given more weight when deciding appeals and examining local plans, and that they are given more weight than the arbitrary numbers that are being reached through the standard method of calculation? I ask him to do so urgently, as yet another Hertfordshire district has just put out its draft local plan for consultation.

Hertsmere Borough Council proposes bulldozing over a substantial swathe of the green-belt land that sits between two villages in my constituency. The shocking proposal for Bowmans Cross would see the effective conjoining of London Colney and Colney Heath. The plan would mean that 6,000 houses fall slap bang in the middle of fields and natural habitats that currently surround and separate the two communities. The impact of that monster development would not be felt by the residents in Hertsmere; it would be felt by my constituents in St Albans. None the less, I cannot help but have some sympathy for yet another Conservative-led council that has felt the pressure from its Conservative Government to meet their huge top-down housing targets.

I am more than aware of the critical shortage of housing supply in the country. Liberal Democrats are absolutely committed to providing the truly affordable new homes that are so desperately needed, and in St Albans I am proud that the Liberal Democrat-run district council is driving ahead to build those social homes. However, across Hertfordshire, Liberal Democrat-run and Conservative-run councils alike are all in the same position. Conservative-led Broxbourne has given up 15% of its district’s total green-belt land. That is more green-belt land sacrificed than in any other council in England. Research by the Campaign to Protect Rural England recently found that, in addition to the 17,500 homes that have already been approved or are being built on Hertfordshire’s green belt, more than 50,000 extra have been proposed.

To be clear, I am not asking for the Government to stop building; I am asking for the Government to strike the right balance and create a planning framework that delivers sustainable development. It is in the Government’s gift to do that by updating the national planning policy framework and the guidance as I have described. I hope that the Government will take this up without any further delay.

16:12

[The Minister for Housing (Christopher Pincher)]

It is a great pleasure to serve under your chairmanship, Mr Robertson, I think for the first time. I congratulate the hon. Member for St Albans (Daisy Cooper) on bringing forward this important matter for debate. I am conscious that it is of concern and interest to her, as well as to other Members across Hertfordshire, including my hon. Friend the Member for Watford (Dean Russell) who is an industrious campaigner on behalf of his constituents, as of course is the hon. Lady for hers. They both strongly challenge what I believe can be challenging councils.

It is worth pointing out that the planning system to which the hon. Member for St Albans refers as the Government’s planning system is, in fact, England’s planning system, as it has existed since 1948 under successive Governments. It has grown in complexity and opacity during that period. Successive Governments have tried to make it clearer and more sensible, including the coalition Government of which the hon. Lady’s party was a part with the Conservatives. That Government contributed to the creation of the national planning policy framework some 10 years ago. It is England’s planning system, not the Government’s.

However, the hon. Lady is right to raise the issue of the green belt. Our commitment to the green belt is absolutely steadfast: the Prime Minister made that clear in his Conservative party conference speech last month. It is a manifesto commitment on which the Government were elected, to protect the green belt and associated countryside for future generations. The green belt in our country presently accounts for 12.4% of the land mass. In fact, it is larger now than when records began in 1997, taking into account that national parkland as categorised has been disregarded. In the hon. Lady’s constituency, it is somewhere in excess of 81% of the land mass.

We believe that the green belt is vital for preventing urban sprawl from towns and cities—it helps stop the advance of developments on to precious countryside—and national planning policies deliver strict protections for the green belt along with strong safeguards against development and changes to boundaries. Any proposals to release land from the green belt are subject to consultation with local people followed by a rigorous and independent examination of the revised local plan by a qualified planning inspector. Additionally, if a local authority finds that it cannot avoid releasing land from the green belt, it should offset that loss with environmental and access standards to land remaining in the green belt. As well as protecting the green belt, we must also look to other sites, such as brownfield land, that can be used to deliver new and beautiful homes of all types for people.

The national planning policy framework sets out national planning policy for England. It must be taken into account by local authorities in preparing their development plans. It is also a material consideration in all planning decisions. We believe that the NPPF ensures the protection of green-belt land by defining how most new buildings are inappropriate for the green belt and should be refused planning permission unless there are very special circumstances. Local authorities, through their planning policies and decisions, should show consideration of all relevant policies in the NPPF, including protection of the natural environment, irreplaceable habitats and valued landscapes.

Let me reiterate that green-belt land can change only in exceptional circumstances and that must be done in accordance with the NPPF and the local plan process, in consultation with local people, followed by rigorous examination of the revised plan. That is why the NPPF provides for two tests in safeguarding the green belt. The first prevents local authorities from changing a green-belt boundary unless there are exceptional circumstances and they have shown that they have examined every other option—using brownfield land, optimising the density of development and discussing whether neighbouring authorities can take some of the necessary development. The second test requires that most new buildings in the green belt are inappropriate and should be refused planning permission unless there are very special circumstances, as determined by the local authority.

As we improve the planning system, our existing policy for protecting the green belt will be upheld. Local authorities will be able to protect green-belt land using new digital local plans. I will take away the specific items raised by the hon. Lady and respond to her more fully. I stress that as we approach revisions to our planning framework and to the NPPF, we want to make sure that they work for the green belt as well as for brownfield sites, given the importance of developing those. I will say more about that in a moment.

Let me also point out that the Environment Act 2021, which received Royal Assent earlier this month, brings a mandatory biodiversity net gain requirement as a condition of most new development. That will make it quicker and simpler to assess environmental effects as well as speed up the decision making on and delivery of a development while continuing to protect and enhance the environment.

The hon. Lady mentioned local housing need and recognised the importance of providing housing for the people of our country who want and need it. We have a target of building 300,000 new homes each year by 2025. The Liberal Democrats, I believe, wish to out-do us, and to build 380,000 new homes each year in our country. I welcome their ambition. We want to help people rent or own their own homes. We know that we need to deliver more homes. To get more homes built in the places where people and communities need them, a crucial first step is determining the right number of homes in the right places. That is why, in 2018, we introduced the standard method for assessing local housing need, which makes the process of identifying the number of homes needed in an area as simple, quick and transparent as possible.

As the hon. Member for St Albans rightly says, that formula is a starting point; it is not an end point. It is for local authorities, working with the Planning Inspectorate, to determine the right number of homes based on the constraints or ambitions that they may have. I refer her to a letter that I circulated to Members of Parliament on, I think, 16 December of last year, which made it absolutely clear that local authorities are able to cite, to the Planning Inspectorate, constraints as reasons why the numbers into their plans are different from the local housing need number, which is the default calculation. As I have said, it is for local authorities to demonstrate and determine what the number should be. The constraints are outlined in footnotes 7 and 38, from memory, of the NPPF. In the local housing need calculations, we have also made it clear that none of the authorities outside of the 20 largest metropolitan authorities in England will see any changes to their local housing need numbers.

The challenge for all authorities, however, is to get an up-to-date plan in place. We might say that, in the land of no plan, the local housing need number is king. If there is no set number in an up-to-date local plan, it is quite possible for developers to submit speculative development applications to local authorities. The local authorities may choose to turn them down, but if they have no number in their plan, the local housing need number is the default that the Planning Inspectorate will look at. It is entirely possible that the Planning Inspectorate will overturn refusals sent down by local authorities that do not have up-to-date plans or targets, and will instead look at the local housing need target. It is incumbent on local authorities that wish to protect their communities and avoid speculative development to get up-to-date plans in place.

The hon. Member for St Albans asked me about the number of authorities that have revised their targets. A number have. Stoke, for example, has revised its target up, because it is an ambitious authority. Many others have been able to revise their numbers in other ways. However, having no up-to-date plan at all leaves communities open to speculative development. Of the authorities in our country, 91% have plans made to the 2004 standard. Of the 9% that remain, the hon. Lady’s own local authority is one. St Albans has not had an up-to-date plan since 1994. I would encourage her to encourage her authority to put that plan in place, to protect her community from speculative development.

We believe the green belt is of huge importance to our constituents and to our country. We want to make sure we do more to support it by building on brownfield sites, which we will look to achieve through our planning reforms. We have already made £5 billion, or as near as damn it, available to Homes England to support builders, particularly small and medium-sized enterprises, to develop brownfield-site opportunities. We made £400 million available to mayoral combined authorities last year to identify brownfield sites for regeneration in their geographies. We have only recently announced a further £58 million for 53 local authorities to identify small sites for regeneration that will contribute to their local numbers without the need to impinge on green spaces.

One reason why we have introduced permitted development rights is to encourage the development of unused or underused commercial premises, which can now be demolished more easily and be rebuilt as residential premises. Since 2016 that has seen the construction on brownfield and town-centre sites of some 70,000 additional residences that might not otherwise have been built, to the benefit of local communities, to the benefit of those high streets and to the benefit of the green belt and greener spaces that have not had to have greater strain placed upon them.

I assure the hon. Member for St Albans that we are committed to protecting and enhancing land for future generations and that we are committed to protecting the green belt, as we set out in our manifesto. We will continue to uphold those strong protections, and I look forward to further debates, whether in this Chamber or in the main Chamber, to demonstrate that our policies are biting.

Question put and agreed to.

16:26

Sitting suspended.

Multi-academy Trusts: Ofsted

Tuesday 23rd November 2021 Westminster Hall

16:30

[Jonathan Gullis (Stoke-on-Trent North) (Con)]

I beg to move,

That this House has considered the Ofsted inspection of multi-academy trusts.

There is much excitement, as we are expecting to hear the Division bell. I will speak slowly at the beginning of my speech, and say that it is a pleasure to serve under your chairmanship once again in a Westminster Hall debate, Mr Robertson. I am grateful to the Minister and welcome him to his new role. I spent time with him on the campaign trail, as well as working with him when he was in the Northern Ireland Office. I am delighted to see the new Parliamentary Private Secretary, my hon. Friend the Member for Wantage (David Johnston), with whom I served on the Education Committee for over a year and a half. He brings a lot of experience to the Department of Education. I also welcome the shadow Minister, the hon. Member for Hove (Peter Kyle)—I thoroughly enjoy exchanging a few heckles with him across the Floor of the House, but I also know the passion he has in this area and I am pleased to see him in the Chamber.

[Mr Laurence Robertson (in the Chair)]

Order. The sitting is suspended, as previously advised.

16:31

Sitting suspended for Divisions in the House.

16:56

On resuming—

[Mr Laurence Robertson (in the Chair)]

The debate can now run to 5.56 pm.

[Jonathan Gullis]

Thank you, Mr Robertson, for calling me to speak again, and I thank everyone else in Westminster Hall for coming back swiftly after the Divisions. I will not repeat all the love-ins that I gave before the Divisions; instead, I will go straight on to saying why we are having this very important debate.

When the people of Stoke-on-Trent North, Kidsgrove and Talke lent me their votes in 2019, it was because they wanted change after 70 years of Labour neglect. A Conservative-led council, Conservative MPs and a Conservative Government are finally levelling up our fantastic city and unleashing the boundless opportunity that it has to offer, while Labour Members are still trying to find Stoke-on-Trent on their Ordnance Survey maps.

As a former teacher, I believe that the most important way to continue levelling up our city is to transform education across Stoke-on-Trent North, Kidsgrove and Talke. It is unacceptable that children from Stoke-on-Trent simply cannot access the same standard of education that is on offer elsewhere in the country. Where we are today, in Westminster, there are eight secondary schools rated outstanding, with a further 16 outstanding schools in Camden, Kensington and Chelsea, and Southwood. By contrast, there is only one outstanding secondary school in Stoke-on-Trent, with another outstanding school shared between the neighbouring local authorities of Newcastle-under-Lyme, Staffordshire Moorlands and Stafford.

Such examples show why I firmly believe that if levelling up means anything, it means that each and every child, no matter where they live in our United Kingdom, has the chance to attend the best schools, where they can receive the education they need to attend first-class universities or gain skills via an apprenticeship or vocational training. As a former teacher who taught in academies for eight years, I think that academies are one of the keys to spreading educational opportunity around the country. Multi-academy trusts back great teachers and, most importantly, they enable our children to reach their potential.

As the “Lost Learning” report that I co-authored earlier this year with Onward and the New Schools Network year argued, we should

“much more aggressively use multi-academy trusts as the engine of school improvement, by…holding them to account for their ability to turnaround underperforming schools”.

Since 2010, the Conservative Government have invested in multi-academy trusts, and throughout my teaching career I saw at first hand how that investment acted as a vehicle for school improvement by advancing the education that our children receive.

That has been reflected in the Ofsted rating of schools. Between 2010 and 2020, the proportion of schools that Ofsted rated as good or outstanding rose from 66% to 86%, while 2018 figures showed that at converter academies open for one year, 65% of pupils reached the expected standards in reading, writing and maths—that figure rises to 71% in converter academies open for seven years or more.

Coupled with the drive for academisation, the free school agenda has been at the heart of the Government’s impressive record on education since 2010. At free schools, 10% more disadvantaged pupils achieve a pass between grades 5 and 9 in their English and maths GCSEs than their peers at other types of state school.

I firmly believe that free schools and academies are key to our mission to level up around the country, and therefore it is only right that pupils in Stoke-on-Trent North, Kidsgrove and Talke should benefit from a free school opening up in the community. I look forward to the Minister announcing that wave 15 is finally coming down the track, so that we can bid for a disruptor free school. I have very much enjoyed talking to Star Academies and to Michaela Community School, which has the fantastic Katharine Birbalsingh, to see if she will endeavour to come to Stoke-on-Trent and shake the apple tree.

On top of their role in driving up school standards, multi-academy trusts are vital in turning around failing schools. To take a local example, the inspirational Learning Academies Trust has transformed the fortunes of two schools in Stoke-on-Trent North, Kidsgrove and Talke. Norton-le-Moors Primary Academy became part of the Learning Academies Trust in 2015, following an Ofsted inspection that rated it as inadequate. After the takeover, it received its first good grade from Ofsted in 2017, and in 2019, 13% of pupils, which is higher than the national average, were achieving beyond the expected standards for reading, writing and maths. I will give a big shout-out to Jack, who was a runner-up in my Christmas card competition. It was a pleasure to visit him with Councillor Dave Evans and award him the prize of the card, as well as Port Vale football match tickets—Stoke’s first team, of course, unlike that team further south, Stoke City.

We also have Whitfield Valley Primary Academy in Fegg Hayes, which joined the Inspirational Learning Academies Trust in 2016. It is now not only rated good by Ofsted but has achieved an above-average progress score in maths, as well as above-average scores in reading and writing.

To look at another example, the Shaw Education Trust recently took over Kidsgrove Primary and Secondary Schools, following inadequate Ofsted ratings under the former multi-academy trust, the University of Chester Academies Trust. That shameful trust has been slammed by Ofsted for failing in its school improvement strategies and below-average standards in some of its schools. In May 2018, it received a formal warning from the Education and Skills Funding Agency to get its finances in order, after racking up a £3 million deficit. The trust confirmed that it was considering cutting 24 support staff and 19 teaching roles across its schools.

Since then, thanks to the Shaw Education Trust, Kidsgrove Primary and Secondary have partnered in launching a new digital strategy, allowing pupils to be taught with up-to-date technology. That follows my “Silicon Stoke” agenda, a new prospectus setting out the ambition for a digital transformation of the city of Stoke-on-Trent, enabling it to become a smart city, attracting new national and international businesses, and being at the heart of the UK video games sector.

“Silicon Stoke” ensures that Stoke-on-Trent takes up opportunities through digital connectivity, and the Shaw Education Trust has ensured that our primary and secondary students at Kidsgrove and Talke are kept up to speed with the new digital age through the digital strategy. Since July this year, all classrooms in Kidsgrove Primary, for example, have been equipped with the latest Promethean boards for teacher and pupil use, and since September, there has been a measure for all students across both schools to receive an iPad, to support school and home learning.

[Aaron Bell (Newcastle-under-Lyme) (Con)]

I thank my hon. Friend and neighbour for giving way. I thank him for referencing the Shaw Education Trust, which also has schools in my constituency, such as the Orme Academy. Does he agree that one of the benefits of multi-academy trusts is that they can spread best practice from one area to another, and thus raise standards for everybody across my borough and his city?

[Jonathan Gullis]

I am grateful to my hon. Friend and neighbour, with whom I share Kidsgrove, Talke and Newchapel, since they are within the Newcastle-under-Lyme borough. As we have just heard, the Shaw Education Trust has spread good practice and is sharing expertise, not just across that borough but also within the Stoke-on-Trent City Council area. In fact, the current city director of Stoke-on-Trent City Council, Jon Rouse, was formerly the head of the Shaw Education Trust. I am sure that he is keen to ensure that he declares that he has no interest any more in that trust, having become city director. Ultimately, we could see what he was doing in the Greater Manchester area and how Shaw Education Trust has gone on to do many great things.

My hon. Friend has been a doughty champion for all the schools in his community. Not a day has gone by recently without me seeing a photo of him in a school in his constituency. I know he was recently at Silverdale in the Knutton area, visiting some of the fantastic schools there, alongside local county councillor Derrick Huckfield, who is also doing a fantastic job in that area.

Multi-academy trusts have proven, across Stoke-on-Trent, north Kidsgrove and Talke, that they can level up education by driving up standards and giving our children the education that they deserve. We are committed to driving up school standards across the city. The new education challenge board, approved by the Secretary of State and the Minister for School Standards, is chaired by Sir Mark Grundy, a highly respected educational leader. It will bring together city council leaders, the Department for Education, local academies, Ofsted and the regional schools commissioner. Working collaboratively, the new education challenge board will provide oversight of educational performance across Stoke-on-Trent, helping to turn schools around through first-class teaching and leadership, by drawing on the expertise of the trusts already succeeding within the city.

Unfortunately, not all the trusts are performing in the same way. That matters, because 42% of schools are now academies, and 84% of those academies are part of multi-academy trusts. Since they have control over such a significant number of our schools, families must have confidence in trusts, regardless of where they are in the country. Parents and teachers work incredibly hard to provide children with the best education they can, while listening to various scandals of multi-academy trusts abusing their budgets with excessive spending.

To pick just a few examples, 40 chains have spent more than £1 million on executive expenses, paying thousands for first-class travel. The Aspirations Academy Trust, based near Heathrow airport, has spent nearly £90,000 for its America-based co-founders to fly across the Atlantic; the Paradigm Trust in London has covered the cost of broadband at its boss’s French holiday home; and the Academy Transformation Trust in Sutton Coldfield has even paid to lease a new XJ Premium Luxury V6 Jaguar for a chief executive earning £180,000 a year.

I want to make it clear that I am a huge supporter of academisation, and I believe that we should be going full throttle to turn all schools into academies. Through my experience as a teacher, I have seen at first hand how brilliantly they can turn failing schools around, but we must restore the faith of parents, teachers and, most importantly, the pupils, and we must ensure that trusts are working on behalf of students and not, insultingly, taking advantage of the big budgets to which they have access. It is absolutely right that we move from the local education authority model, but we do not want to create less accountable and transparent LEAs by not having multi-academy trusts properly inspected.

That is the heart of the issue. With no formal procedure in place for inspecting the boards of trustees of multi-academy trusts, how can parents and teachers know that their trusts are performing with the best interests of the school and students at heart? If Ofsted were able to consider the achievement of pupils across schools covered by a multi-academy trust, the success of a multi-academy trust in reversing educational underperformance, and the quality of leadership, financial management and governance of a multi-academy trust, we could ensure that multi-academy trusts played a full role and, crucially, allow those that are doing truly excellent work to be recognised.

[Dr Dan Poulter (Central Suffolk and North Ipswich) (Con)]

I commend my hon. Friend on securing the debate. I wonder whether he will touch briefly on the issue of the regional schools commissioners. As he has rightly outlined, there is concern that multi-academy trusts lack transparency in their governance structures and are difficult to hold to account, but there is also concern about how we as Members of Parliament can access the commissioners, interact with them and help to raise concerns through the system. Will he draw that to the attention of the Minister and give his own thoughts on that particular challenge?

[Jonathan Gullis]

I am very lucky to have had a really healthy working relationship with the west midlands regional schools commissioner, who is a former headteacher at the Mill Hill Primary Academy in Stoke-on-Trent North. However, I have serious concerns, and the purpose and role of regional schools commissioners is an issue that was raised in the Education Committee. When those posts were originally set up, it was absolutely the right thing to do, both to have accountability and so that parents, Members of Parliament and teachers in the schools could raise any concerns. In my opinion, regional schools commissioners should be brokering deals, such as new deals for multi-academy trusts to come into a local area, holding to account boards of trustees that they think are underperforming, and feeding that information back to the Department for Education.

At this moment in time, I do not think that regional schools commissioners are utilised well enough, and there has to be a discussion at some stage about whether they are the right model to bring this change about in the long term, and whether they could be given more powers. Hopefully, we will ensure that regional schools commissioners are not just civil servants, whom I am sure are very noble and worthy people, but that they have spent years in the classroom at all levels of governance and management and can bring their experience with them. That is when a regional schools commissioner can really work. At the moment, they are simply not fit for purpose. I know that the Education Committee raised this issue, and I am sure the Minister will look at it.

We have had a great 10 years of Govian and Gibbian reforms. We will now have the Zahawi-Walker reforms over the next 10 years, and I am sure there will be a White Paper in which we will start to see the next 10 years of mission for education. I hope the role of regional schools commissioner can be explored by the Minister, and I look forward to hearing his thoughts on that. If he cannot tell us today, I am sure he can write to us to let us know how he sees that going forward.

Teachers are accountable for the education they provide to pupils, with Ofsted inspecting schools, including individual academies, and children’s social services. To restore faith between teachers and trusts, multi-academy trusts and their leadership teams must be accountable in the same way as teachers. Ofsted’s chair, Dame Christine Ryan, has agreed with the need to inspect schools’ governing bodies, noting in the Education Committee meeting in September this year:

“I always felt it was absolutely essential to carry out inspection activities on the governing area and its interactions with the schools that it owned.”

Hospital trusts are subject to inspection by the Care Quality Commission, so why can Ofsted not inspect multi-academy trusts in the same way?

We have been moving in the right direction. In 2018, Ofsted trialled inspecting individual academies under the same multi-academy trust before visiting the trust’s head office to evaluate its effectiveness. Although that certainly highlighted the requirement to inspect multi-academy trusts, inspections remain focused on individual schools, meaning that wider issues at the heart of the trusts that run them can go undetected. Inspections that cover only individual schools are the crux of the multi-academy trusts’ accountability problem. Education Committee meetings with Ofsted chief inspector Amanda Spielman in June 2021 were revealing, as she said:

“We still operate what in some respects is historic inspection legislation that constrains us to look at the level of the individual school”.

That clearly limits our ability to hold those responsible to account. The chief inspector noted in November 2020 that

“accountability needs to be able to look at the multiple levels in the system to ask the right questions at the right level”.

To ensure that multi-academy trusts truly use their power for the benefit of our schools, accountability must reflect the top-heavy leadership style of many trusts, and thus hold those responsible to account.

Ultimately, multi-academy trusts can, and do, turn schools around, just as the Inspirational Learning Academies Trust has done across schools in Stoke-on-Trent North, Kidsgrove and Talke. By holding trusts to account through regular inspection—they do not fear being held to account because they are proud of their work—we can ensure that schools, staff and students alike are performing to their full potential. The inspection of multi-academy trusts will allow us to recognise those that perform well, and incentivise the best multi-academy trusts with generous funding to take on struggling schools. By keeping trusts responsible for their performance, we can seek to harness their power, especially in parts of the country where school outcomes are weak. With my personal experience in the teaching profession, I believe that multi-academy trusts are the proven route to ensuring that every child, no matter where they live, can attend a school where they will reach their potential, and open doors to the career routes they wish to pursue.

When I was elected, I promised to level up communities like Stoke-on-Trent North, Kidsgrove and Talke, and providing a quality education for every child is vital to doing this. Multi-academy trusts have had a crucial role in the great improvements in school standards in the last decade; it is our responsibility to identify the best of them and use their power to prove to every child, up and down our United Kingdom, that they are not forgotten and opportunity sits right on their doorstep.

This debate comes off the back of my introduction of a ten-minute rule Bill, for which I was delighted to receive cross-party support from members of the Labour party and from the Liberal Democrats. It shows the strength of feeling on this issue. I was lucky enough to secure the signature of my hon. Friend the Member for Wantage before he was promoted to become Parliamentary Private Secretary at the Department for Education. He knows how great this is, and I am sure that he will use his position within the Department for Education to lobby the Minister. Ultimately, I think this shows the strength of feeling that this is the right way to have fairness, accountability, transparency and to ensure that multi-academy trusts are a positive driver for improving education outcomes across England.

17:12

[Peter Kyle (Hove) (Lab)]

It is a pleasure to serve under your chairmanship for the very first time, Mr Robertson, unlike the hon. Member for Stoke-on-Trent North (Jonathan Gullis), who seems to be a regular in your sessions. I am also very grateful to the hon. Gentleman for securing the debate, and for the persistence with which he is championing this cause. It is extraordinary; he had so much time in which to speak in this debate, and yet he did so at such a ferocious pace. For the benefit of our friends in Hansard, I will speak more slowly so that they can rest their weary quills for the next few minutes.

There are 7,680 schools in this country that are now part of multi-academy trusts. Even if each of those schools had just 500 pupils, that would mean several thousand young people whose futures are in the hands of multi-academy trusts. Regardless of ideology, that should give us pause for thought. Due to the reforms of recent years, multi-academy trusts now have a level of influence over the school system that few could have predicted, even when the first trusts emerged. In fact, most other authorities with responsibilities for young people are subject to extremely stringent inspection regimes—even if they are responsible for far fewer children than many multi-academy trusts. That is why we must do all we can to ensure that, whatever regulatory framework we develop for MATs, it reflects the level of influence that these trusts now exert.

For too long, education policy has been dominated by discussion of school structures. I noticed that in his speech, the hon. Member for Stoke-on-Trent North fell into the same trap, if he does not mind my saying so. As someone who has helped set up two academies, I know their strengths—that they can be a phenomenal tool for delivering improvement—but also their limitations. To suggest that they would have the same impact in every situation stretches the single tool that academisation presents as an opportunity for the education system. Other tools are available to Ministers, principals of schools, school leaders, MATs and local education authorities, and we need to use all the different tools that are at our disposal, not disproportionately favour one for reasons that are simply ideological.

For too long, education policy has been dominated by discussions about school structures—that was, after all, the key plank of the reforms implemented by the Conservative-led coalition after the 2010 general election. Obsessions over school structures have held our schools back, because they have hidden new and emerging challenges in our school system such as the complete failure to root out sexual harassment in our education system. Though it has been found by Ofsted to be routine in all schools, there have been particularly high-profile cases of poor practice in “outstanding” schools that are part of well-established trusts. That is not an argument against trusts or against collaboration, but it is a clear example of how focusing on structures can obscure the real issues that are existing, emerging and developing within our school system. Our focus should not be on radical changes in school structures: it should be on what delivers improvement in the 2020s and beyond, not in a bygone era.

To his credit, I believe that the hon. Member for Stoke-on-Trent North is focusing on this issue with a sincere desire to drive improvement, going forward. The Labour party and I are very grateful for that, which is why we have offered what I hope the hon. Gentleman will perceive as constructive support since he introduced his ten-minute rule Bill and beyond. He has drawn national attention to the proliferation of multi-academy trusts under this Government, and has pushed for a specific loophole around inspections to be closed.

As has been noted, Ofsted has carried out summary inspections on multi-academy trusts since 2019. Recent updates to the guidance on those inspections should help to broaden their remit and increase their volume. However, Ofsted itself has highlighted the need to go further: its chief inspector, Amanda Spielman, has highlighted the “peculiarity” of not inspecting MATs on their governance, efficiency and use of resources. Appearing before the Select Committee on Education, she also referred to a suite of

“historic inspection legislation that constrains us to look at the level of the individual school”.

We in the Labour party completely agree that inspections of multi-academy trusts should take place. We also agree that those inspections should include a proper assessment of leadership, governance and safeguarding arrangements, so we look forward to hearing the Minister’s response today.

As a former chair of governors involved in setting up two turnaround academies, I know how important leadership is to the success of schools. What is more, we never feared being held to account. Inspections are important: in fact, we relished the chance to show what we could do and learn how to perform better. I was there at 7.30 in the morning as chair of governors, alongside the principal, to await the team of inspectors. We welcomed them to our school and we saw their inspection as a tool for improvement, even though we all felt the heat—the anticipation—and did so with great nerves, because we wanted to show off what was great about our school.

When I got the reports in from those inspections, I found them to contain incredibly helpful insights into the performance of schools, which often reinforced the direction of travel within a school and highlighted those things that we did not quite notice. Even on school inspections, classroom visits and walkarounds, it is very hard for people who are not trained educationists to see with their own eyes precisely what is happening in every corner of a school, rather than just going on the data that is presented to them by that school. Inspections are a really important part of improvement, whatever the organisation. So, I have no doubt that genuinely forward-looking MATs will take the same approach to a more rigorous form of inspection for their own organisations than the current regime offers—a form of inspection that champions innovation and gives the insight and analysis of performance to help MATs improve in practice, just as a good inspection should seek to improve individual schools as well.

Adopting a new form of inspection to challenge and support MAT leaders is one thing, but driving up performance and leaders will take far more than a new inspection regime, especially given how badly both they and pupils have been let down during the pandemic. According to research conducted by Teacher Tapp, only 2.5% of school leaders felt supported by the Department for Education throughout the pandemic. Think about that for one second: 97.5% of teachers—over 400,000—trying to respond to a once in a lifetime disruption to education without anyone backing them up. The sense of isolation they felt was profound.

Changes to inspection regimes will go so far, but will not remedy the worst failures of this Conservative Government. What is worse, the Department’s muddled and inconsistent advice was often actively harming our school leaders’ ability to respond. One teacher said of the guidance that she received:

“I physically look at it and I can’t even bring myself to open it right now, because you just get saturated with it”.

Threatened with legal action if they closed—only to be forced to close the very next day—schools and trust leaders have lacked proper leadership throughout the pandemic. They are now lacking properly resourced catch-up support and tough action to clamp down on anti-vaxxers outside school gates.

[Jonathan Gullis]

I want to put it on the record that I completely agree with the hon. Gentleman regarding the disgraceful action of anti-vaxxers standing outside schools filming young people coming in and out of that school, as well as parents. It is absolutely abhorrent and there is absolutely no place for it. This Government have to come down hard on those people.

School, for some of the most vulnerable people in our communities, is the safest place for them. As a former head of year, I used to have a lot of children who hung around after school—despite the fact they told me it was the worst place to be—because it was where they felt safest. The fact that we have these disgusting individuals targeting young people is abhorrent. I am sure that the hon. Gentleman will also call for action. I want to make sure this is on the record for the Minister: we have to go in hard; we have to make our young people and teachers feel safe.

[Peter Kyle]

This is something that I have been deeply concerned about since the start of the autumn term in September. On 19 July in the Chamber, when I raised concerns about the vaccine roll-out among children aged 12-plus and argued that it should be rolled out over the summer months, so as to use the mass vaccination existing infrastructure, so that schools could be protected come autumn and stabilised, but also so that they did not become targets for anti-vax protests, the then Vaccines Minister, the right hon. Member for Stratford-on-Avon (Nadhim Zahawi), told me that children were protected by a “wall of vaccinated adults” and therefore it was not a priority. He was wrong. Now he is Secretary of State for Education and we are picking up the pieces.

The principal of a school told me recently that he feels his job is no longer primarily that of leading an institution for schooling, but of running a logistics centre: twice-weekly testing in school, organising the logistics behind a vaccine roll-out in school, dealing with local outbreaks, and dealing with the need to control the flow of students. He said the first, second, third and often fourth items on the agenda of his daily senior management team meetings were about logistical challenges, not teaching and learning. That is the price of not seeing this coming down the road. It was predicted and predictable and was not dealt with.

The Labour party has tried to be constructive about this. Last month the Leader of the Opposition proposed a solution—to update the legislation around public spaces protection orders. They are unwieldy at the moment and could take several weeks to implement. However we believe that, with a very simple amendment to the Anti-social Behaviour Act 2003, the process could be streamlined so that an order could be brought into force in just one hour, with one phone conference between a school principal, the local authority and the local police force. They could bring into the order the powers to keep anti-vax protesters away from school gates for the duration of the vaccine roll-out programme. We offered that suggestion, but sadly the Government have not responded. The Secretary of State for Education said in response to my oral question just two weeks ago that he was in conversation with the Home Secretary, and that all powers would be implemented. Again, nothing happened. I cannot see that that conversation actually took place in a meaningful way.

However, there is another opportunity, and it is great that I have been given the opportunity to put it on the record. Tomorrow, in the House of Lords, Lord Coaker will table an amendment to the Police, Crime, Sentencing and Courts Bill that would amend the 2003 Act to give schools the powers that I have just described to instigate exclusion zones for anti-vax protesters within one hour, and they could do so pre-emptively; if one school is facing disruptive anti-vax protests in which children are being bullied, harassed and intimidated, in all likelihood the same will emerge down the road when the protest moves to another school, so schools need those powers to prevent that protest from happening. The Government have an opportunity to give them those powers. We would get this through in a heartbeat. The Labour Opposition in the House of Lords stand ready to table that amendment tomorrow.

I will have my say on another issue, because I feel as strongly as the hon. Member for Stoke-on-Trent North, and we have another 25 minutes of debate, so I am sure I can get this on the record before I sum up the debate. In my constituency, anti-vax protesters have gone on to a school bus to tell children that they will become infertile if they take the vaccine. Outside schools in my constituency, there have been so many harassing, bullying and intimidatory protesters that schoolchildren have had to detour out into the busy main road in order to go through the driveway into the school. A child was grabbed by the collar and told that he could endanger the lives of his teachers and his parents.

I bring those experiences and my anger about that kind of behaviour because, let us be clear, these people are not just anti-vax. Six months ago, they were anti-face masks. A year or two ago, they were anti-covid altogether, believing it was all fake news. If they were alive 350 years ago, they would have been calling for Galileo to be burned at the stake for saying the earth revolves around the sun. We went through the scientific revolution, we went through the Enlightenment, in this country so that we could not base policy on superstition. We did so by bringing the best of scientific understanding to the heart of Government. Let us not allow these people to determine how public health unfolds in this country. I thank the hon. Gentleman for that intervention and for giving me the opportunity to put that on the record. I feel very strongly about it.

People leading schools and teaching in classrooms through the pandemic lack resources for catch-up support and tough action to clamp down on anti-vaxxers outside school gates. In contrast to the Government, the Labour party is on the side of pupils, teachers and leaders. Our goal is a well-functioning school system, backed with resources, direction and inspection, that prepares students for the world of work and the world of tomorrow that they will encounter. Under the new leadership of my right hon. and learned Friend the Member for Holborn and St Pancras (Keir Starmer), we have updated our positions on key issues in schools policy to meet the new challenges that schools and trusts face. The Government have not. We innovate; I am afraid that the Government stagnate.

What is the Minister’s assessment of the strength of the current inspection regime for MATs? What plans does he have to expand Ofsted’s inspection powers with regard to MATs, and does he intend to support any greater powers with the required resources? What other steps is he taking to support schools that wish to exit their trust if that is in the best interests of pupils? Will he commit to a new era of strong leadership from the Department for Education? This is a fantastic opportunity, as we hopefully see the finish line of the pandemic in sight, and with a new ministerial team, to commit to new, strong leadership—one that trust leaders, school leaders, teachers and students can at last trust, replacing the years of drift and decline.

As I made clear at the start, ensuring robust standards for all MATs is crucial. It would matter if they educated just one child; it certainly matters when they educate so many thousands. A young child has only one shot at their education; the state must do all it can to make that shot a success.

[Mr Laurence Robertson (in the Chair)]

I would like to leave two or three minutes at the end for the mover of the motion to respond.

17:30

[The Minister for School Standards (Mr Robin Walker)]

It is a great pleasure to serve under your chairmanship, Mr Robertson. It is also a great pleasure to follow the hon. Member for Hove (Peter Kyle); it was great to hear him speak so passionately about the value of school inspection. I know he has had his differences with his party’s Front Bench in the past. Obviously, given the manifesto for school inspection that Labour fought the last election on, that is a pretty major difference. I welcome many of the points he made and, although it is not the subject of the debate, I share the absolute condemnation of bullying and intimidation by anti-vaxxers. It is, of course, totally unacceptable.

I congratulate my hon. Friend the Member for Stoke-on-Trent North (Jonathan Gullis)—also the Member for Kidsgrove and Talke—on securing the debate. I know that its subject reflects his immense commitment and, indeed, successful frontline experience in improving educational outcomes for pupils. As we would expect, he has spoken with great passion and eloquence about the transformative potential of the academy system and the need to harness that so that pupils across the country, and particularly in his Stoke constituency, can benefit.

I am also pleased that, through the Stoke plan, there is a place-based pilot aiming to level up education in the city and identify strategies to build up MAT capacity in the area, and that my colleague, Baroness Barran, and the Secretary of State were recently able to attend the inaugural meeting of the education challenge board in the area. I am glad to hear of the positive developments that my hon. Friend the Member for Stoke-on-Trent North reported at both the Inspiration Trust and the Shaw Education Trust, as well as the support they have given my hon. Friend the Member for Newcastle-under-Lyme (Aaron Bell).

My hon. Friend the Member for Stoke-on-Trent North has rightly emphasised the importance of having the right accountability arrangements in place to support continuous improvement in educational quality and, ultimately, to change the lives of children for the better. I thank him for that. We have also heard a number of valuable contributions from colleagues who are now elsewhere and, indeed, from the Opposition spokesman.

I am also conscious of the contributions of the Education Committee, its role in scrutinising current accountability arrangements and its interest in promoting Ofsted’s inspection role over a number of years through its reports and discussions, which underlies the relevance and importance of today’s debate across the House. I also acknowledge the desire of Her Majesty’s chief inspector and the Ofsted chair to go further.

I absolutely agree that accountability arrangements should develop over time to reflect the delivery of education and the decision making that goes on. It is clear that that delivery is taking place within an evolving landscape in which academies and MATs are playing an increasing role. A little more than a decade ago, there were just 203 academies. I am pleased to report that there are now more than 9,700 open academies, free schools, studio schools and university technical colleges, with around 1,200 academy trusts running more than one academy.

Today, more than 55% of pupils in state-funded education study in academies, but that of course means that almost half do not. The dual system of educational delivery in this country persists. We are on a journey to change that but we have not yet reached our destination: a world-class school-led system in which every school is part of a family of schools in a strong multi-academy trust.

Our commitment to reaching that destination is fuelled by the evidence of the benefits we already see in strong MATs. My hon. Friend the Member for Stoke-on-Trent North has alluded to some of them today: the flexible deployment of teachers and leaders to where they are needed most; the opportunities for teachers to gain experience across school settings; the sharing of resources and mobilisation of the best available evidence of what works; the use of economies of scale to improve outcomes; and great resilience, which has been particularly important during the pandemic. The list goes on. Put simply, a group of schools in a trust, working together with a single aim, can make a profound difference. I agree with my hon. Friend and the hon. Member for Hove that not all trusts are as strong as they could be, which is why accountability is a crucial part of the equation.

Ofsted already plays a role through its routine school inspection programme, which, as Members will know, was paused temporarily in response to the pandemic. The programme not only resumed in September, but has now accelerated so that all schools, including outstanding schools that were previously exempt from routine inspection, will have at least one inspection between last term and summer 2025—a year earlier than previously committed to—to provide swifter assurance for parents and more timely recognition of schools’ work as they strive to support pupils’ recovery.

Ofsted school inspection provides robust assessment of the quality of education and the strength of leadership and management in each and every academy. It is important to recognise that through the lens of the individual school Ofsted gazes at and captures the impact of MATs. After all, when an academy is part of a MAT, the board of trustees is the governance body and the role played by trustees in relation to the school is evaluated by the inspectors as part of their judgment of the effectiveness of leadership and management at the school. In a school with good leadership and management, inspectors will expect trustees and local governing boards to ensure that the school has a clear vision and strategy, manages its resources well and holds leaders to account for the quality of education provided to pupils.

The bottom-up accountability for MATs provided by Ofsted’s school-level inspection is supplemented by a programme of MAT summary evaluations, which provides more of a top-down view and insight into the role and impact of the MAT itself. Those evaluations draw on the inspections of individual academies in a trust, along with direct engagement with trust leaders to review how well a trust is delivering a high quality of education and raising standards for all pupils. To be clear, it is early days for the programme, which began in December 2018 and which builds on the previous batched inspection approach, and it has involved 12 MATs to date. As with routine inspections, the evaluations have rightly been paused in the light of the pandemic, but will now move forward under the recently revised Ofsted arrangements. The Ofsted updates are intended to bring evaluations more in line with Ofsted’s education inspection framework, with its focus on the quality of education and curriculum. The evaluation includes consideration of key information about the MAT and aims to recognise where it is having a positive impact, as well as giving the MAT helpful recommendations on aspects that could be improved.

I want to come back to the MAT summary evaluation programme, but before that I want to provide a wider context to the arrangements for MAT accountability. Academy trusts’ status as companies, charities and public-sector bodies means they are subject to significant scrutiny, beyond the necessarily periodic Ofsted inspections and evaluations. The Department, as regulator, requires a level of transparency from trusts, and its regional schools commissioners and their teams, together with the Education and Skills Funding Agency, provide robust educational financial oversight of all academy trusts. Trusts themselves must publish annual reports and audited accounts. That is in addition to the Department publishing a wide range of information, such as tables setting out measures of educational performance and financial benchmarking data. Both the regional schools commissioners and the ESFA hold trusts to account where schools are underperforming or where there are weaknesses in safeguarding, which we have heard about in today’s debate, governance or financial management. That can include commissioning support or issuing a pre-warning notice, a termination warning notice or a notice to improve, all of which are published if necessary. The funding agreement can be terminated and a new sponsor identified to take on responsibility for the academy.

On managing MAT expansion, we have increased the rigour around how regional schools commissioners decide on which academy trusts can grow, with oversight from the national schools commissioner. Before approving a decision about growth, RSCs will consider evidence about the educational and financial capacity of an academy trust. In doing so, they should consider the circumstances and maturity of the academy trust, reducing the likelihood that trusts grow in an unsustainable way as, I acknowledge, they have been known to in the past. To support that approach, regional schools commissioners regularly engage with trusts to ensure strong processes are in place to maintain and improve educational performance and to inform decisions about the suitability of a trust to support new schools.

I hear the concerns that my hon. Friend the Member for Central Suffolk and North Ipswich (Dr Poulter) raised and my hon. Friend the Member for Stoke-on-Trent North endorsed about the role of regional schools commissioners. Their role has evolved and I suspect that that will continue to happen. There is an increasing focus on financial management, supported by the ESFA. Regional schools commissioners and the ESFA need to work together to test both financial regularity and value for money in all trusts. I am happy to engage further on the issue with hon. Friends.

Financial accountability is founded on a clear framework communicated and regulated by the ESFA through trust funding arrangements and the academy trust handbook. As mentioned earlier, academy trusts must publish annual reports, audited by a registered statutory auditor. As part of their annual reports and accounts, trusts must also publish details of their objectives, achievements and future plans, including what they have done to promote value for money in support of those projects. The oversight arrangements go beyond the requirements for local authority maintained schools and provide the Department as regulator with confidence that the oversight is professional and consistent, as the auditors themselves have to confirm standards set by an independent regulator. It is right that we consider adapting and implementing the current academy transparency measures across the maintained sector to strengthen accountability for maintained schools and ensure we have strong and balanced arrangements across all schools. We are taking action as part of the Department’s 2020 transparency consultation response.

On the issue of financial mismanagement—my hon. Friend the Member for Stoke-on-Trent North has raised cases of that in the past—a number of steps have already been taken to strengthen academies’ financial accountability and transparency. That includes the introduction, in April 2019, of requirements for academies to declare to the ESFA, up front, any related party transactions, and in turn to seek approval for any transaction—or cumulative total of transactions—exceeding £20,000.

To be clear, the vast majority of academy trusts are delivering strong financial management and governance. The latest published data shows that in 2018-19, 99.3% of academy trust accounts received unqualified opinions. However, where there is any risk to public funds, the ESFA will intervene. That can include issuing a notice to improve, seeking to impose sanctions on individuals engaged in misconduct or, where appropriate, in the most serious cases, terminating funding agreements.

With the combination of Ofsted school inspection and Ofsted MAT summary evaluations, together with regulatory oversight through regional schools commissioners and the ESFA and transparency on educational outcomes through MAT performance tables, I hope hon. Members will agree that significant accountability safeguards are already in place for MATs. However, that does not mean that we should stand still. We need to keep arrangements under review and seek to build further assurance, where appropriate, while ensuring a balanced system, particularly when they are compared with local authority-maintained schools. I would like to see Ofsted’s MAT summary evaluation programme expanded in the short term, the MATs visited diversifying, and the model continuing to develop. I know that Her Majesty’s chief inspector is keen for that to happen. We will absolutely keep reviewing actively where and how we might go further.

Beyond that, I come back to my original theme: our plan is to move, over time, away from the current dual system approach to a more unified one in which all schools are in strong MATs. As part of that we will be taking a careful and detailed look at how better to hold MATs to account, including Ofsted’s role in that, to ensure MATs are delivering for children. The schools White Paper, which we expect to publish in early 2022, will articulate a long-term vision of how our education system can deliver on the Government’s priorities of building back better after the pandemic and levelling up across the country.

Whatever the future accountability arrangements are, they will need to be developed on the basis of ensuring proportionality and coherence, as well as transparency; it is in no one’s interest for us to micromanage MATs, to stifle their innovation or stamp over their autonomy. Those are the very things that mean the strongest MATs can make such an impact.

We also need to examine accountability at school and MAT level together, to ensure that arrangements do not overlap, confuse or create unnecessary additional burdens that get in the way. Importantly, we need to keep engaging closely with the sector, with organisations, agencies and individuals with a close interest and expertise—I very much include my hon. Friend the Member for Stoke-on-Trent North in that—to work through the issues and be confident that the system delivers. We need to get the right accountability balance, and we will not make changes until we are sure that we have it.

The hon. Member for Hove challenged me with a number of question, and I appreciate that I have not been able to answer them all directly today. However, I can confirm that this is an area that we will keep under active consideration. As we move forward with our school system reforms, we will need an accountability system that empowers trusts and ensures that they are meeting the needs of our young people, and I expect Ofsted will play an important role in that. I again congratulate my hon. Friend the Member for Stoke-on-Trent North again on bringing forward this important debate.

17:43

[Jonathan Gullis]

I am delighted to hear about the schools White Paper—the Zahawi-Walker legacy document —that will be launched next year. I will absolutely be pushing for my ten-minute rule Bill to play a key part in that. I am obviously happy to always try to be flexible and fair, but I think—we heard it from the hon. Member for Hove (Peter Kyle)—that this is something that brings everyone, across the House, together. We want the very best for our young people and therefore want the very best education to be accessed.

I could not agree more with the hon. Member for Hove; none of the multi-academy trusts I have spoken to fear this idea, because they believe firmly in what they do. I think the overwhelming majority of multi-academy trusts do their best, work hard, spend their money correctly and invest in the schools within their trusts, and I think they have no problem with it. The only ones that will be worried about are those that do not want to face the scrutiny. That gives the DFE the power to get rid of them—disband these ones—and broker new deals with good existing multi-academy trusts to then come in and take over.

I like to be a bit punchy every now and again, and the hon. Member for Hove is fantastic when he gets going about the Government’s record, so I could not help but remind myself of a few facts. At the end of the day, when the Conservative party came to power in 2010, about a year before I entered the teaching profession, the legacy left by the Labour party was that the Confederation of British Industry stated that employers had lost confidence in Britain’s exams, the Wolf Review found some courses

“fail to promote progression into either stable, paid employment or higher level education”,

and some 350,000 young people had been let down by courses that had little or no labour market value. In 2008, the Sutton Trust found that only 40 pupils out of the 80,000 eligible for free school meals went on to Oxbridge, and in May 2010, the Office for Fair Access said that by the mid-2000s the most advantaged 20% were

“seven times more likely than the most disadvantaged 40% to attend the most selective institutions.”

We only have to look at Labour-run Wales where education standards are falling down the league tables. It is an abomination and Mr Drakeford should be ashamed of himself. He should be held to account for his dismal record in failing to deliver for the people of Wales.

[Peter Kyle]

I welcome the hon. Gentleman’s words, and his challenge and scrutiny of Labour’s record. I make the simple point to him that when Labour came to power in 1997, just over 40% of students were getting five GCSEs including maths and English. By the time we finished in power, it was almost 80%. On a range of different measures, outcomes were more than doubled. If he criticises the legacy that Labour left, can he picture what we inherited last time his party left office?

[Mr Laurence Robertson (in the Chair)]

Order. We are actually on a wind-up speech about multi-academy trusts. The hon. Member for Stoke-on-Trent North has 30 seconds to respond to the intervention, but he must then wind up.

[Jonathan Gullis]

Apologies, Mr Robertson. The hon. Gentleman asked me to picture 1997 and put my head back in that time; I was seven years old when Tony Blair came to power, so it is hard for me to fathom and picture that. Obviously, I had to suffer through the Labour doldrums in that education system, but I am grateful that I had a fantastic school and an inspirational teacher there, who was, by the way, a Labour councillor in Tamworth and who is a role model for me.

Finally, on the subject of the “not education union”, Dr Mary Bousted and Kevin Courtney need to resign with immediate effect. They are an abomination to the profession. I will come up to their offices, pack their stuff and send it to their houses. The National Education Union is a disgrace.

Going back to the most important point in the debate, Ofsted want there to be inspections of multi-academy trusts and there is cross-party consensus on that. As we have heard from Members, multi-academy trusts that are really well run are not afraid of this. I hope in the White Paper, the Zahawi-Walker legacy document, we will see some fantastic innovation to turbocharge these schools and multi-academy trusts, and ensure that kids in Stoke-on-Trent North, Kidsgrove and Talke are no longer forgotten and left behind.

Question put and agreed to.

Resolved,

That this House has considered the Ofsted inspection of multi-academy trusts.

17:47

Sitting adjourned.

Written Statements

Tuesday 23rd November 2021 Written Statements

Tuesday 23 November 2021

Public Records: Landing of BA Flight 149 in Kuwait

Tuesday 23rd November 2021 Written Statements

[The Secretary of State for Foreign, Commonwealth and Development Affairs (Elizabeth Truss)]

Today the Foreign, Commonwealth and Development Office (FCDO) will release files covering the events surrounding British Airways flight 149 (BA149) to the National Archives. BA149 landed at Kuwait City on 2 August 1990 as the Iraqi invasion of Kuwait was beginning. The passengers and crew from the flight were subsequently held hostage by Iraq and mistreated. The Foreign and Commonwealth Office (FCO) provided consular and diplomatic support to those involved from the outset, but there have long been questions about how much the Government knew of the situation at the time.

We now know that Iraq was beginning a full invasion of Kuwait on the night of 1 to 2 August. The files being released today describe how things looked to those involved at the time.

On 1 August the British Embassy in Kuwait told the local British Airways office that while flights on 1 August should be safe, subsequent flights were inadvisable. BA149 took off from London at 18:04 GMT on 1 August, almost two hours later than scheduled because of technical problems. Its ultimate destination was Kuala Lumpur with a short stopover in Kuwait. At about 22:15 GMT, during its flight towards Kuwait, the captain spoke to the captain of another flight which had left Kuwait for London that evening. The pilot of that flight reported nothing unusual in Kuwait and no reason for BA149 to depart from its planned route.

The files show that the British ambassador in Kuwait informed the Resident Clerk—the officer on overnight duty to deal with emergencies—at the FCO in London about reports of an Iraqi incursion into Kuwait around 00:00 GMT on 2 August 1990, while the British Airways flight was en route. The information was passed by the Resident Clerk to the Head of the FCO’s Middle East Department and also to No. 10, the Ministry of Defence, the Cabinet Office and the Secret Intelligence Service, but not to British Airways.

BA149 landed at Kuwait City at 01:13 GMT. Around 45 minutes later Kuwait City airport was closed and BA149 was unable to leave. Its passengers and crew were subsequently held hostage by the Iraqis, with the last hostages released in December 1990.

The Government have always condemned the Iraqi invasion of Kuwait, the suffering that followed and the mistreatment of those aboard BA149. The responsibility for these events and the mistreatment of those passengers and crew lies entirely with the Government of Iraq at the time.

The files show that in the call to the Resident Clerk, the British ambassador in Kuwait was unclear whether the Iraqi move across the border was a limited or larger incursion. At that point, the evidence in the files suggests that it was not possible to say with certainty what was happening. Similarly, the Resident Clerk in the FCO would have had no knowledge of the timing of flights into Kuwait. At the time there appeared to have been no formal arrangements by which information about such events could be passed from the FCO to airlines or the Department of Transport. A procedure to deal with situations like this now exists involving Government and the airline industry.

There was also speculation at the time and since that the flight was used to carry members of UK Special Forces. The files are consistent with the then Minister for Europe’s statement in April 2007 that

“the Government at the time did not attempt in any way to exploit the flight by any means whatever.”—[Official Report, 27 April 2007; Vol. 459, c. 1217.]

The call made by Her Majesty’s ambassador to Kuwait has never been publicly disclosed or acknowledged until today. These files show that the existence of the call was not revealed to Parliament and the public. This failure was unacceptable. As the current Secretary of State, I apologise to the House for this, and I express my deepest sympathy to those who were detained and mistreated.

[HCWS410]

NHS Workforce and Technology Centralisation

Tuesday 23rd November 2021 Written Statements

[The Secretary of State for Health and Social Care (Sajid Javid)]

Yesterday we announced to the House of Commons our intention to centralise NHS workforce and technology to prioritise better care for patients. Health Education England (HEE), NHS Digital (NHSD) and NHSX will become part of NHS England and Improvement (NHSE/I), putting workforce and technology at the heart of long-term planning. The plans will aim to see more patients benefit from the best possible care, with the right staff in place to meet patients’ needs.

Subject to parliamentary passage of the requisite powers within the Health and Care Bill, these changes will help ensure that service, workforce and finance planning are integrated in one place at a national and local level. They will simplify the national system for leading the NHS, ensuring a common purpose and strategic direction.

I have accepted the recommendations of Laura Wade-Gery, non-executive director at NHS England and chair of NHSD, including to merge NHSX and NHS Digital into NHSE/I. A copy of the summary report is being placed in the Library of the House. The recommendations build on the huge progress made on digital transformation during the pandemic and will improve co-operation between the key digital bodies of the NHS by bringing them under one roof for the first time.

NHSX has more than fulfilled the mandate it was given when it was set up, putting digital transformation right at the centre of the NHS’s future vision and driving effective delivery of key programmes such as the covid pass. NHS Digital has kept the NHS’s live services going, producing the shielded patients list, and run the technology that supported our vaccine deployment.

I would like to offer reassurance that in this new configuration the responsibilities for digitisation of the social care sector, and for ensuring the very highest standards of information governance and data privacy, will be retained.

Merging HEE with NHSE/I will put long-term planning and strategy for healthcare staff recruitment and retention at the forefront of the national NHS agenda. Combining HEE’s strengths with those of NHSE/I will help ensure that:

service, workforce and finance planning are properly integrated in one place, together with the work of the NHS People Plan, at national and local levels;

the changes to education and training that we need—to enable employers to recruit the health professionals they need to provide the right care to patients in future—are driven further and faster;

the record investment the Government are making in the NHS delivers for both frontline NHS organisations and patients through one national organisation, making it easier to ensure a single national strategy for the service; and

there is a simplified national system for leading the NHS, providing a single line of accountability for the whole of NHS performance.

This reform will build on the progress HEE has made and the vital role it has played during the pandemic, with record numbers of doctors and nurses currently working in the NHS.

I would like to pay tribute to colleagues at HEE, NHS Digital, and NHSX for the progress they have made, which we will continue to drive forward.

[HCWS414]

Derwentside Immigration Removal Centre for Women

Tuesday 23rd November 2021 Written Statements

[The Secretary of State for the Home Department (Priti Patel)]

I am today announcing the opening of Derwentside immigration removal centre for women in County Durham. Detention plays a limited, but crucial role in maintaining effective immigration control and securing our borders. It is right that those with no right to remain in the UK are removed if they do not leave voluntarily.



This new, smaller immigration removal centre will replace Yarl’s Wood as the only dedicated immigration removal centre for women. In order to maintain operational flexibility, we will continue to maintain some limited detention capacity for women at Colnbrook, Dungavel and Yarl’s Wood. These changes will significantly reduce the overall immigration detention capacity for women.



Derwentside will be operated in line with the statutory framework established by the Immigration Act 1971 and the Detention Centre Rules 2001. The centre will provide safe, secure and fit for purpose accommodation for up to 84 women, with a full range of recreational and healthcare facilities tailored to women.



We are committed to ensuring the proper protection and treatment of vulnerable people in detention. Safeguarding and promoting the welfare of women is at the forefront of the new facility, and builds on the learning and experience of Yarl’s Wood. The new contract to operate the centre takes into account Stephen Shaw’s reviews of vulnerability in detention, with increased staffing levels and major improvements in the frequency, diversity and accessibility of educational and recreational activities.

[HCWS411]

Net Zero Estate Playbook

Tuesday 23rd November 2021 Written Statements

[The Paymaster General (Michael Ellis)]

My noble Friend the Minister for Efficiency and Transformation (Lord Agnew Kt) has today made the following written statement:



I am pleased today to formally launch the new Net Zero Estate Playbook.

Decarbonising the public estate will play a pivotal role in our fight against climate change. With more than 300,000 individual properties, at a combined value of £515 billion, the UK public sector manages, by some distance, the largest property portfolio in the country.

Operating at this scale means that every decision we make and every improvement we implement has an impact. We must go beyond decarbonising our own estate, by leading from the front, setting an example, and bringing industry with us.

There is a very clear direction set out for Government property. We are steadily working towards creating a greener public estate. Since 2010, we have reduced carbon emissions by 50%, but there remains much more work to do.

We have made significant progress on encouraging collaboration and co-location between parts of the public sector. We are working to improve maintenance, insulation, and efficiency across the public estate. We are prioritising retrofitting existing buildings where we can, and adopting modern and sustainable methods of construction where we need new buildings.

This Net Zero Estate Playbook is about helping us go further, and faster. It’s a guide, to support every Government organisation. It takes best practice from around the UK, aligning with Government policy and bringing the best advice into one place to inform and improve sustainability strategies and simplify the path to net zero.

It provides, for the first time, a methodical step-by-step guide to help Government property professionals decarbonise their estate. A copy of the Net Zero Estate Playbook has been deposited in the Libraries of both Houses.

[HCWS412]

Driving Licences: Draft Legislation

Tuesday 23rd November 2021 Written Statements

[The Secretary of State for Transport (Grant Shapps)]

A statutory instrument was laid on 16 September 2021 titled the Motor Vehicles (Driving Licences) (Amendment) (No. 2) Regulations 2021 (the “No. 2 regulations”) and was due to come into force on 15 November 2021. The substantive legislative changes proposed in the No. 2 regulations would have removed the need for a person to pass the “B+E” car and trailer test before they could pull a heavy trailer behind their car. This would have meant people with licences awarded after 1997 also no longer needed to pass a separate test to tow a heavy trailer.

This statutory instrument was not approved in time for the No. 2 regulations to come into force on 15 November 2021. Since such affirmative statutory instruments cannot be amended once laid in draft, we have taken action to lay the regulations afresh as the draft Motor Vehicles (Driving Licences) (Amendment) (No. 5) Regulations 2021 (the “No. 5 regulations”).

To make rapid progress on this, we are seeking to make use of the urgency procedure under paragraph 14(6) of schedule 8 to the European Union (Withdrawal) Act 2018. I am of the opinion that, by reason of urgency, the requirements for this affirmative statutory instrument (by virtue of paragraph 13(1) of schedule 8 to the European Union (Withdrawal) Act 2018) to be made after being published in draft for 28 days, together with a scrutiny statement, should not apply.

Forgoing the 28-day publication period will allow earlier laying of the No. 5 regulations than would have otherwise been possible and strengthen the steps we have already taken to increase HGV testing capacity and ease supply chain issues as quickly as possible. Arrangements will be in place to ensure that the changes made by the No. 5 regulations are operationally effective as soon as they come into force.

[HCWS413]