Grand Committee

Tuesday 14th December 2021 Grand Committee

Tuesday 14 December 2021

Arrangement of Business

Tuesday 14th December 2021 Grand Committee

Announcement

15:45

[The Deputy Chairman of Committees (Lord McNicol of West Kilbride) (Lab)]

My Lords, Members are encouraged to leave some distance between each other, which we have done—fantastic—and to wear face coverings when not speaking. If there is a Division in the Chamber, I shall adjourn the Committee for 10 minutes so that we can vote.

Motor Vehicles (Driving Licences) (Amendment) (No. 5) Regulations 2021

Tuesday 14th December 2021 Grand Committee

Considered in Grand Committee

15:45

Moved by

[Baroness Vere of Norbiton]

That the Grand Committee do consider the Motor Vehicles (Driving Licences) (Amendment) (No. 5) Regulations 2021

Relevant document: 23rd Report from the Secondary Legislation Scrutiny Committee (special attention drawn to the instrument).

[The Parliamentary Under-Secretary of State, Department for Transport (Baroness Vere of Norbiton) (Con)]

My Lords, this statutory instrument is the Motor Vehicles (Driving Licences) (Amendment) (No. 5) Regulations 2021. Together with the Motor Vehicles (Driving Licences) (Amendment) (No. 4) Regulations 2021 and the Motor Vehicles (Driving Licences) (Amendment) (No. 3) Regulations 2021, which follows the negative procedure, these SIs are key parts of 32 measures that the Government are taking to address the current shortage of heavy goods vehicle, or HGV, drivers.

It gives me no pleasure to introduce these regulations to the Committee once again. Noble Lords will recall that they were originally laid under a slightly different name, and I shall call the original regulations the “No. 2 regulations”; they were laid on 16 September 2021. They were debated in some detail on 9 November, but they were not approved in both Houses in time to come into force on 15 November 2021, as set out in the SI. Since affirmative statutory instruments cannot be amended once laid in draft, we decided to re-lay substantially the same regulations afresh, which I shall call the “No. 5 regulations”. The No. 5 regulations replicate the No. 2 regulations already debated in your Lordships’ House, save for an updated title and coming into force provision.

I shall provide a bit of a reminder about the context, which has slightly fallen out of the media in recent weeks. The haulage sector has been experiencing an acute shortage of HGV drivers worldwide for some time. It has affected the industry for many years, but it has been further exacerbated by the coronavirus pandemic, which meant that driver testing had to be suspended for much of last year. During this time, the shortage increased further, as new drivers could not join the industry to replace those retiring or leaving. The shortage of HGV drivers affects the supply chains of not only fresh food but fuel, medicines and medical equipment across Great Britain.

I would like to acknowledge the publication of the Secondary Legislation Scrutiny Committee’s 23rd report last Thursday, which drew special attention to these regulations. I thank the committee for its hard work and continued scrutiny of these and other regulations. As the report highlighted, the impact assessments were not available at the time when the instruments were to be scrutinised by your Lordships’ House, and I offer my sincere apologies to noble Lords for this. I hope noble Lords understand that we were, and are, working at pace to deliver government interventions, including regulatory change, which could alleviate the HGV driver shortage problem, but I recognise the committee’s concern that the impact assessment was not able to be provided. I reassure all noble Lords that the Department for Transport takes very seriously its responsibilities with regard to evidence-based policy-making. I am pleased to report that the impact assessment has now been submitted to the Regulatory Policy Committee for its scrutiny.

I turn very briefly to the content of the SI. The overall aim of the No. 5 regulations 2021 is to increase the number of HGV drivers within Great Britain by increasing the number of test slots available to drivers wishing to pass a HGV driver test, while maintaining road safety standards. The regulations will remove the requirement for drivers who hold a category B licence—namely, for driving a car—to take a separate car and trailer—a category B+E—test before they can drive a vehicle combination in that class. Instead, category B+E entitlement will be automatically granted to car drivers and backdated to all valid category B car licences that have been obtained since 1 January 1997. I note that licences obtained before that date already have the entitlement to tow a heavier trailer, and that a licence is needed only for trailers over a specific weight, not for any trailer at all. Removing this test frees up about 2,400 more tests each month that can be allocated to those wishing to take an HGV driving test, which in turn will help ease the driver shortage. We know that these tests are being taken up by would-be HGV drivers.

The public consultation, which ran from 10 August to 7 September, showed support for the change, with 75% of people responding positively to the removal of the trailer test.

Road safety is, of course, of the utmost importance, and I understand why road safety concerns have been raised. Theory and practical training will continue to be recommended to help maintain driver safety on the roads. An accreditation scheme is being developed, with help from the trailer industry and training providers. This accreditation scheme will provide voluntary training opportunities for car drivers wishing to tow a trailer not only of a size that would previously have required a licence but of any size for either recreational or business use. It will also include training on trailer maintenance and other areas not previously specifically covered by the test. Essentially, training will improve.

My officials have met the trailer and towing safety advisory group to develop the outline of the scheme and to consider core modules that would be applicable to all drivers who tow, as well as sector-specific modules. These might cover activities such as safely managing livestock or breakdown recovery towing. We are also already working with trainers and those in the leisure and business sectors to develop the training package and, together with these groups and the police, will identify the additional data needed to monitor towing standards effectively.

The scheme is planned to launch early next year. We will recommend that all drivers wishing to tow a trailer of any size undertake training to safely tow and manage them. We will encourage drivers through our existing campaigns and via our work with a wide range of stakeholders, including leisure and towing groups. We have committed to review the legislation at regular intervals, initially after three years have passed and thereafter at five-year intervals. The impact assessment will be published early in the new year. Our commitment to reviewing the legislation after three years is earlier than the standard five.

As I noted previously, many drivers already have grandfather rights—about 16 million drivers who passed their driving test before 1 January 1997 can already drive a car with a heavier trailer without having to take a separate test. This change affords that same entitlement to drivers who passed their test after 1997. Furthermore, all car licence holders already have the right to tow smaller trailers. We will of course be encouraging all those who are new to towing, of any size of trailer, whether or not they would have previously had to take a test, to take up training.

We should be proud that the UK has some of the safest roads in the world. I reassure noble Lords that our support for the #towsafe4freddie campaign will continue, and we will draw attention to the importance of motorists doing safety checks of their trailer whenever they are towing.

The removal of the separate test for car drivers wishing to tow a trailer or caravan frees up 30,000 vocational test slots annually. This equates to an additional 550 tests per week, or a 37% increase in weekly tests, relative to pre-pandemic levels. This is a significant increase in available capacity. Furthermore, thanks to the great efforts of DVLA staff, the backlog of 55,000 driving licence applications for HGV drivers has been eliminated, and these are now being processed within the normal turnaround times of five working days.

These regulations are just one of the 32 interventions that the Government are putting in place to tackle this issue to help reduce the strain on our national supply chains, which is affecting every aspect of our daily lives. I commend the regulations to the Committee.

[Lord Berkeley (Lab)]

My Lords, I am grateful to the Minister for introducing yet another set of regulations, which we seem to have debated quite frequently over the last few months, as she said. They give me the opportunity to reflect, now that Covid-19 has been with us for the best part of two years, that the delays in DVSA activity seem to have been going on for that length of time. There are still reports of people being very delayed in getting driving licences back, which I know is not the same thing, but I sometimes question whether the DVSA is fit for purpose and whether it perhaps needs a major upgrade of its IT system or something like that so that it works well. I have never had a problem applying online—other people might do—but when I saw recent press reports about some excessive delays of many weeks I began to wonder.

It is still odd that we think that we can get people to pass a test to drive HGVs or other vehicles without reversing when it is such an inherent part of the HGV operation, in particular with semi-trailers. I tried to do it myself under supervision about 10 years ago—not on a highway, I hasten to add—and it was very difficult, probably because I am thick and stupid. You could argue that it does not really matter because most reversing will take place on private property, so if anybody has an accident then the Department for Transport is not affected in any way, but it is quite important that people should be able to reverse. The Minister said that this change would provide 2,400 more tests a month. I do not know how many that is as a proportion of the total number of tests a year, but how much money and time are saved by not reversing? It would be an interesting statistic, which she might or might not have.

There comes a time when you begin to reflect that tests are getting easier and easier. You could argue that you do not need tests at all. How many more people would get killed on the roads if there were no tests? That is a very stupid question and I do not expect a sensible answer from the Minister, but it is questionable how much drivers need to learn and know before they drive these very large 40-tonne trucks around. I worry that being unable to reverse might just make it difficult.

Driving around Cornwall, as I do occasionally, you meet a lot of people in cars who are obviously strangers, especially in the summer. Obviously, one of you has to reverse when you meet them on a narrow road. An enormous proportion of the people you meet who are not local cannot actually reverse their car. There are no trailers attached to them; it is just their car. On many occasions, friends of mine say to the other driver, “Why don’t you get out and I’ll reverse it for you?” It works, but I am not sure it is a way to go forward.

We will see what happens with this, and I trust that there will be no increase in accidents and no problems with it. It also comes with the safety checks that the Minister mentioned. One of the safety checks that clearly does not happen very often, as we debated last night, relates to the height of lorries when they hit bridges. We had a good debate. Sadly, it took place before the noble Baroness, Lady Randerson, my noble friend Lord Faulkner of Worcester and I had a very helpful meeting with Network Rail today. One suggestion came under the category of driving tests, which is why I mention it now. Perhaps the Minister could look into it. When you do a driving test for an HGV there are various modules, some compulsory and some optional. One of the optional modules is on how not to bash your lorry against a bridge. It seems a bit odd that in this country that should be optional. When the next round of regulations comes to us on things like this, I wonder whether the Minister could look at making that bridge-bashing module into an obligation. There are many other solutions, which we can talk about on another occasion, but that one would be quite easy to do.

16:00

Again, it should be coupled with a requirement for the driver to know the height of his or her lorry. Network Rail says that 50% of drivers do not know the height of their lorries, which I find extraordinary, but how do you measure it if you cannot climb up with a tape measure? That would contribute to reducing bridge bashing and then, if you bash a bridge, learning how to reverse out of it if you are able to.

I look forward to hearing what other noble Lords have to say about these regulations. Of course, they have my support.

[Baroness Randerson (LD)]

My Lords, things are in a terrible mess on all fronts, are they not? The Department for Transport is an example of where problems seem to have got a bit out of hand. I thank the Minister for her explanation, but I find it no more satisfactory than the Secondary Legislation Scrutiny Committee did. That committee is not known for its extreme language, but its report is excoriating on these regulations. It refers, in a letter to the Leader of the House, to them being a particularly egregious example of departments failing to provide the required explanatory material in the required timescale. The Government’s defence, which the Minister has set out clearly today, is that this is an emergency measure. But, to be honest, that is surely stretching our credulity.

After years of warnings from the logistics industry, the Government have been panicked into taking steps to deal with the driver shortage. The Minister herself made it clear, on a previous occasion, that the shortage of drivers went back 10 years. She has told us on several occasions, and repeated it today, that the Government have taken 32 separate measures to tackle the problem. She also said recently that most of them were small, incremental steps that added up to an effective package. So if this measure were delayed because the required evidence of the road safety impact is not yet available, it would have only a marginal impact on the Government’s overall response. There is, therefore, no reason to cut corners.

This is, after all, a very indirect measure: it reduces standards and requirements for the drivers of non-HGV vehicles in order to free up spaces for the drivers of HGV vehicles. It was unacceptable, when these regulations originally came to the House, that the road safety impact had been ignored. It is doubly so now that they have had to be returned to us, because the Government have now had time to note the concerns expressed and do the necessary analysis. In previous debates on these regulations I have raised my concerns on safety, but what is more important is that I am reflecting the concerns of experts.

The B+E testing requirements were introduced in 1997, as a result of real safety concerns, on the basis of evidence. I am aware that the Minister is far too young to remember it, but there was a debate on the issue of road safety. Since then, our roads have become much busier; hence accidents will be more, not less, likely. The regime for B+E testing and training is being abandoned, with no meaningful replacement. The plan is to review it within three years, but that is far too long for something that is going ahead with no evidence at this stage. I urge the Minister that, at the very minimum, there should be a review after one year.

In the view of those in the haulage industry, it is simply wrong that someone can tow a trailer or caravan weighing up to 3,500 kilograms with no testing or training—and do so the day after they pass their driving test for a small car or van. Like the noble Lord, Lord Berkeley, I have just come from a meeting with Network Rail about bridge strikes. It is asking for more testing and training, not less; that is what it says its evidence requires.

The Government have abandoned the wealth of evidence, year after year, showing that new and novice drivers are far more likely to have accidents because of their inexperience. The insurance industry knows this, which is why new drivers are charged much higher premiums. The logistics organisations strongly oppose this change and regard it as irresponsible. Unlike the C+E change, it will be virtually impossible to reverse because new licences will be issued with the B+E qualification on them.

As noble Lords can imagine, the All-Party Parliamentary Group on Trailer and Towing Safety shares those concerns. Specifically, its concerns include, first, the lack of an impact assessment on road safety and, secondly, the statistics that it knows of. In the B+E test for car and trailer driving, pass rates suggest that there is consistently a fail rate of 30%, with 8,575 people failing the test in 2019-20. Under the proposed legislation, these drivers would be deemed qualified and able to tow a trailer immediately because they will not need to have taken a test. To the APPG’s mind, these proposals undermine the Government’s previous commitment to trailer safety and the campaign #towsafe4freddie, which it values. It shares the concern of the towing industry that this measure will have an impact on both safety standards and livelihoods because it will mean that a much broader range of people will be qualified for this sort of commercial work, which will undermine the qualifications and skills of those who have been through the test.

Even at this late stage, I urge the Minister to pause and think again. At the very least, I ask her to defer this until the department has done its own impact assessment and then reconsider in the light of that impact assessment. Better still, I urge her to abandon it because, by all logic, this cannot be good for road safety. It is really not worth the risks it creates. This is not about the usual topics of impact assessments. When we have impact assessments, we have fine calculations about how many pounds something will cost small businesses and so on; this impact assessment will be assessed in terms of lives.

We have a fundamental change creeping in, with inadequate evidence, under the guise of urgency. It is not really an urgent measure, because it will be permanent. We need legislation based on evidence. We have had enough of policy-making on the hoof; we need evidence-based policy-making. I urge the Government to give themselves a chance to get that evidence, to reconsider the matter, and to bring this back only if they genuinely feel that this will be safe.

[Lord Rosser (Lab)]

I feel that our discussion on this order today is largely academic, since the Government have already implemented it in reality. Clearly, the words and good work of the Secondary Legislation Scrutiny Committee—which I will quote from since I think it deserves to go on the record in Hansard—count for nothing, even though, on behalf of the Government, the Minister thanked the committee for what it had done. The Government have not taken any notice of what the committee said, so that is a funny sort of thanks.

These regulations make amendments to the requirement to undergo a practical car-plus-trailer driving test, which I think is known as category B+E. The amendments will make such a test optional only, and the entitlement to tow a trailer will be given to anybody passing, or who has passed, a car driving test from the coming into force of these regulations. On that score, perhaps the Minister could confirm the figure referred to by the noble Baroness, Lady Randerson, that the nearly one-third of drivers who failed the B+E test will now be able to be on our roads towing a heavy trailer. Could the Minister, on behalf of the Government, just confirm that that is what this means? Of course, the regulations go further than that, because they increase dramatically the number of people who can tow a trailer without a test, since anybody who has passed a car driving test can tow such a trailer. Could the Minister confirm that that is the situation?

Rather surprisingly, the Explanatory Memorandum states:

“There may be a negative impact on road safety of these measures”.


I would be grateful if the Minister, on behalf of the Government, could refer to the evidence on allowing people who have failed the test to tow a trailer to now do so and allowing anyone who has passed the car driving test to tow a trailer. What is the evidence that leads the Government in the Explanatory Memorandum to say that

“There may be a negative impact on road safety”?


If there is no impact, why have we been carrying out this test for a number of years? I would like an answer to that question.

16:15

Of course, the Government will have reviewed the necessity for that test, because the Government told us in 2010 that they were going to have a “bonfire of red tape”—that is, they would be going through all regulations to see if they were still necessary. So they must have looked at these regulations that provide for this test and decided that it should not be part of the bonfire—presumably because they thought that it was necessary for safety reasons. Can the Minister confirm that the requirement for this test was looked at as part of this well-trumpeted bonfire of regulations, but that it was decided we could not make a bonfire of this regulation, presumably because the Government thought it was necessary for safety reasons? Yet now they appear to be removing that and there is to be no requirement at all.

The decision is based not on safety considerations but purely on wanting to increase the number of people available to get people through the test to become heavy goods vehicle drivers, in view of the long-standing shortage of such drivers, which has now been exacerbated by Covid and Brexit—though the Explanatory Memorandum does not tell you that. This shortage has been known about for years. Actually, the Explanatory Memorandum admits as much, referring to a “worldwide shortage”—that includes this country—“for some time”. The reality is that, even though this sector is vital to our economy and way of life and even though the Government have known for a decade or more that there has been a shortage of drivers, they have not made sure that we sorted it out so that we did not end up with the kind of situation we have today, where we have to make regulations in a panic that, frankly, compromise safety because we need to release as many people as we can to carry out tests to enable more people to drive a heavy goods vehicle.

I said earlier that I wanted to refer to the words of the Secondary Legislation Scrutiny Committee, the report of which deserves at least some notice. It says:

“While we appreciate the objective is to free up capacity at test centres to enable more HGV drivers to obtain their licences, our 15th Report”—

this is the 23rd—

“raised safety concerns about the possibility of towing accidents increasing and suggested that, if the data is unclear, the position should be reviewed earlier than the three years set out in the Regulations.”

That seems eminently sensible. It continues:

“The House has followed up these issues in debate and in questions, but the re-laid version of the EM is silent about these concerns. We wrote to the Minister about this omission. The Minister’s response neither reduced our concerns about these safety issues nor offered any reassurance that the Department understands the critical importance of evidence-based policy and the respect that should be accorded to Parliament and its scrutiny processes.”

The committee continued:

“These Regulations have been scheduled for debate in Grand Committee next Tuesday, 14 December”,

which is where we are now. It goes on:

“We are publishing this Report in advance so that it is available to those participating in the debate. However, as this Report makes plain, we are deeply dissatisfied with the Department for Transport about its approach to these Regulations and, for this reason we have invited the Minister to give evidence to explain the policy choices she has made.”

I assume that is still to come—it sounds like it will be quite a happy little meeting.

There are also other aspects of the report. The committee makes a very interesting comment in paragraph 9:

“In response to an oral question in the House on 1 December, the Government announced that: ‘All car drivers wishing to tow a trailer for leisure or business will be encouraged to undertake a voluntary accreditation scheme, which is being developed with the help of the trailer industry and training providers.’”

In fairness, that is something the Minister has already said. It goes on:

“‘The scheme is planned to be launched early next year and will focus on a core model for all drivers, with sector-specific modules for different towing activities.’ This suggests that the Department recognises that there are safety issues that need to be taken into account.”

If the Government did not think there were any safety issues to take into account, why would they be encouraging people to undertake a voluntary accreditation scheme in respect of a test they have decided was no longer necessary? It does not add up; it does not seem particularly logical. The committee is quite right to point out that it suggests that the department recognises that there are safety issues to be taken into account.

As the committee says, none of this is addressed in the Explanatory Memorandum accompanying these regulations, which blandly says:

“any increase in … accidents will need to be monitored”.

I know what the word “monitored” means, but does it mean that the department will count them up and then not do anything? Could we have an explanation of whether it literally means that it will monitor any increase in accidents, or does it mean that it is going to do anything about it? Does it mean that it will wait three years before it does anything about it? That is when the next review is apparently going to take place. As I think the noble Baroness, Lady Randerson, was more or less suggesting, if we are going to see an increase in accidents, some action needs to be taken pretty fast and not be left for that period of time.

I am sorry to quote so much, but this is a very damning report—the noble Baroness, Lady Randerson, was quite right in what she said. On the subject of urgency, which is the whole basis of the Government’s argument for behaving as they are and completely ignoring the views of the Secondary Legislation Scrutiny Committee—indeed, the regulations have been laid under emergency provisions—it says:

“The Department’s rationale for pressing ahead with these Regulations in the absence of the appropriate information to support and explain the policy, is, it says, on grounds of urgency. We find this unconvincing because the Minister’s correspondence indicates that the policy has already been implemented administratively”.

It goes on to say:

“In a letter dated 18 October, the Minister said: ‘Stopping Category B+E testing as a temporary measure has already increased the number of HGV tests available by around 550 per week.’”

I think that is also referred to—if I have understood the wording correctly—in paragraph 12.3 of the Explanatory Memorandum, where it says:

“There is expected to be a significant impact on the public sector”—

and I am not sure why it picks out the public sector, but perhaps the Minister could explain what the significant impact is meant to be that applies only to that sector. It goes on to say that

“DVSA has already taken operational measures to restrict the delivery of the B+E driving test by up to 66% so the marginal improvements in testing capacity will be lower than this.”

In light of the fact that the Secondary Legislation Scrutiny Committee has been told by the Minister that the department has already implemented the terms of the regulation, it says:

“The House may wish to ask the Minister to explain what further gains will be made if this instrument were to be brought into effect immediately rather than delaying it until the appropriate supporting material is available.”

I ask the Minister to explain, on behalf of the Government, what further gains will be made if the instrument is brought into effect immediately, rather than delaying it, as the noble Baroness, Lady Randerson, said, in the light of the Government’s statement that they have already brought the thing into operation.

I shall read one final paragraph from the report. The committee took the trouble to produce it, so at least this Committee should show that it has some regard for the committee’s work and what it has to say. It says:

“We have drawn attention to a number of concerns about these Regulations, and members of the House have followed up these concerns, along with concerns of their own, in debate and in oral questions. Shockingly, the re-laid version of the EM makes no mention of them but simply repeats the EM laid alongside the No. 2 Regulations. We wrote to the Minister about this matter. The Minister’s response neither reduced our concerns about these safety issues nor offered any reassurance that the Department understands the critical importance of evidence-based policy and the respect that should be accorded to Parliament and its scrutiny processes.”

I rather share the Secondary Legislation Scrutiny Committee’s view that the House and our committee—it is our committee; it does an invaluable job of work on our behalf in drawing to our attention the contents of secondary legislation—are frankly being snubbed by the Department for Transport. To put it mildly, that is a retrograde step, and I hope this will be the last occasion that the Department for Transport does so.

We will not oppose this measure—although noble Lords might think, after what I said, “Why on earth not?”—because we recognise that there is a need to get more HGV drivers, but this is a long-standing shortage and there was no need to deal with it in this panicked way. The Government have said that they had 32 measures to address the problem of the shortage, so why is it that the other 31 apparently could not prevent the Government ending up in a situation where they have to produce this one regulation in such a hurry that it potentially compromises safety? There is no information from the Government on what the impact of removing the need for this particular test is likely to be, nor of allowing thousands of people who failed the test to put a trailer on the road and anybody who has passed the car driving test to do likewise.

[Baroness Vere of Norbiton (Con)]

My Lords, I agree with the noble Lord, Lord Rosser: I sincerely hope that this is the last occasion that the SLSC has to write such a report and refer to me in that fashion. It does not make me particularly happy and, coming on the heels of another issue that we have had regarding our SI programme, I reassure all noble Lords that I will meet with the appropriate officials very early next year and we will sort it out. It is not acceptable, and I do not wish for my department to be seen in such terms by your Lordships’ House and its committees. It is not what I want to happen, and I will do everything I can to make sure it does not happen in future.

I thank all noble Lords for their further consideration of these draft regulations. I will focus on the areas on which I have additional information that I have not raised previously with noble Lords or with the SLSC, but, again, I will write to give a full account of the Government’s position to make sure we cover all the issues raised.

The first point is the need for speed and the urgency with which these regulations are being put in place, which was noted by noble Lords and the SLSC. Obviously, had the first debate gone as we had planned, they would already be in place. The noble Lord, Lord Rosser, mentioned that the first consideration is the need to quickly free up test slots to get new HGV drivers qualified and on the road. Noble Lords have debated many times the length of the shortage, that it was a long time coming, and that it has got acute during the pandemic. I knew that there was a shortage prior to the pandemic, as people used to come and tell me, but there was no impact, or it could not be felt, because the industry was able to deal with it and the supply chain could cope. The pandemic has meant that the lack of resilience of the supply chain has been exposed. That is why we need to act urgently now. I could not have brought this to your Lordships two years ago and said that it was urgent because it absolutely would not have been, but it is now.

It is the case that we release a significant number of tests. We know that they are being taken up and that people are applying to be HGV drivers. They are entering the industry, which is exactly what we need to see. We removed the tests back in September. We basically said that they would not go ahead. That has obviously helped. It is worth noting that we will at some stage lose the extra testing capacity provided by the MoD. That obviously cannot go on for ever. Therefore, putting this in place is obviously very helpful.

16:30

The title of the SI refers to licensing, not testing, because the testing is just the ticket to get your licence. The second consideration was, “Why do we have to put this in place, given that we have cancelled all these tests? Why not just leave it, throw it away, put it in the bin and never do it?” I have a lot of people out there who want to drive a caravan. At the moment, they cannot take a test to do so, and the number of people wanting to drive a caravan is increasing: the longer these regulations are delayed, the longer the wait. That is why we must continue down this path, although we have already cancelled the tests: because those people now need the legal right to be able to tow a heavier trailer or caravan. It is about licensing, not about testing. Any delay has a real-world impact on people who want to drive that combination of vehicles.

I turn to concerns about road safety. I have been the Road Safety Minister for more than two years now, and I am incredibly proud of the work we do. Most of the data we have available to use is collated by the police. Often, it will be on the basis of an assessment done at a collision site, where contributory factors are set out in incident reports, but that is done without the benefit of hindsight and on the basis of the evidence available to the police officer at the time and what he or she thinks may have happened. It is not perfect, but the STATS19 data is the best we have and we are constantly looking to improve it. However, it can never be perfect, because some of what we collect is subjective—the contributory factor, decided by the police, is subjective. That in and of itself is not a showstopper. If a dataset is sufficiently large, of course you can ascertain trends, and that is what we do. We have all our various interventions for more vulnerable types of users or at particular road locations. Great things can come out of the data. However, when it comes to collisions involving larger trailers—just recall that this is about only larger trailers; it is not about people who tow smaller trailers, as anyone can and has always been able to do, probably for forever—the dataset is very small. It is statistically challenging to reach conclusions based on a very small dataset, particularly over a short period.

Of course, it is a good thing that the dataset is quite small, because the proportion of incidents that involve a car or van towing a trailer was about 0.45% of the total back in 2019. In those incidents, there were reports of eight fatalities, 87 serious injuries and 379 slight injuries. Every death on our roads is a tragedy and every serious injury is deeply unwelcome, but those numbers are small, so they create a challenge for evidence-based policy-making. But that does not mean that we do not do our utmost to continue to have evidence-based policy-making.

Furthermore, there are other challenges in collecting and analysing the data that I have just relayed to noble Lords. Those figures include incidents involving larger trailers and smaller trailers. The police officer did not know when they turned up whether this trailer needed a licence or that one did not, and the person in the car may not have been able to help with that matter. We do not know whether there is a separation between those people who needed a licence, depending on when they acquired their licence—pre-1997 or not. We cannot be certain that the towing of a trailer was a factor in the incident at all or whether it was purely coincidental. Sometimes, it might be recorded as a contributory factor, but those contributory factors may often be about roadworthiness and short-term maintenance issues, which, again, have nothing to do with testing. That is more about understanding how to maintain your trailer.

This is why we can identify trends if we have sufficient data over a longer period. We know that, in general, vehicles towing any types of trailers—again, large or smaller ones—have become safer, as have vehicles more generally. We sometimes struggle, necessarily so, to disaggregate the data as to why that would be the case, as lots of things have changed since 1997. There have been significant changes to the safety of vehicles, to the theory test and to road design—I could go on. There will also continue to be improvements in road safety in the future. It is therefore not possible to pinpoint the impact of a test that was introduced in 1997 down to a tiny degree, because so many other things are included in the data, which, thankfully, is going in the right direction.

This is our challenge, so what data do we have? We have STATS19 data collected by the police, then shared annually with the DfT. What do we need and over what period, and when would any changes, be they positive or negative, become visible and statistically significant? The SLSC and other noble Lords have asked about the three-year review period. The availability and analysis of data is one reason why we feel that three years is appropriate. We get the data from the police once a year and it has to be analysed. Also, on what we have to do now, the role of any Minister is to do evidence-based policy-making. I think all noble Lords who have been Ministers will know that sometimes, unfortunately, the evidence does not give you exactly the right answer. If it did, being a Minister would be easy—and trust me, it really is not.

In this case, it is interesting to hear the way in which the noble Lord, Lord Rosser, refers to road safety. Sometimes he states that he believes there may be a potential road safety issue; at other times, he uses the phrase “and, frankly, compromise road safety”. On what evidence and basis? Because we are having this debate on whether there is an impact on road safety, there is uncertainty. So what do you do if there is uncertainty when you are trying to make policy on the basis of evidence? You have first to improve your data.

We are committed to looking at how we can improve the data—not only, funnily enough, to see the impact of the test’s removal on vehicles driving with larger trailers, but to see the intervention of the accreditation scheme on those towing smaller trailers. There could be a significant impact on people who never even thought about having any training. They did not need a test, so why should they bother? We know that there have been some very unfortunate and high-profile cases of trailers that were below the level that this test would have applied to anyway. We have to look at the data; I absolutely commit to establishing what we can do to improve it and providing the right sort of basis to fully understand the impact.

The other thing that one can do in evidence-based policy-making, if there is no certainty—I accept that in this case there is none, and think I see that on both sides of this debate—is to ensure that mitigations are in place. That is why I have already outlined the accreditation scheme, which we will announce more progress on next year. We will also take a number of other measures that will have a positive impact on road safety in relation to all trailers, not just the heavier ones. The current theory test already includes questions on towing skills; we can add more questions to that. We will also work with the driving instructor profession to ensure that learner drivers are prepared for and understand the rationale behind the questions in the theory test, and what considerations need to be had when thinking about driving a car with a trailer.

Another issue that we in the DfT are, dare I say it, quite good at—even if we have had a bit of a bashing today—is communication with drivers. Our THINK! campaign is very well respected. We will therefore be able to reach out not only through our own channels but by using our close relationships with our stakeholders to ensure that people who want to drive a trailer fully understand what they need to do.

There are a couple of other points that I will briefly mention, although I will write. There are 32 measures. Some are short-term interventions. Some are medium and long-term interventions. Some are small. Some are absolutely massive. One thing alone will not solve the problem and removing one thing will reduce it by a certain amount. We have to understand that those interventions cover a large range of different things.

The noble Baroness, Lady Randerson, mentioned new and novice drivers. They can already tow a smaller trailer, of course, so we would expect them to do the training. However, we also know that new and novice drivers are less likely to drive a heavier trailer because they probably do not caravan as much as older people.

The noble Lord, Lord Rosser, mentioned that a third of drivers fail the test. However, some people take the test multiple times, so the number of people failing will be significantly less than a third. I accept that those people would then have the right to be on the road, but I also accept that they may not necessarily get into an incident given that the number of incidents is quite small. Hopefully, they will take up the training. Therefore, on balance—everything in road safety is on balance—we believe that it is right to continue with these regulations. I commit to doing all the things I have mentioned today over the next period of time to improve the data and make sure that our mitigations are as strong as possible.

The noble Lord, Lord Berkeley, made some excellent points. I would love to spend another 10 minutes going through them but I think that I probably should not. I will therefore write a letter to him about bridge-bashing, the DVLA and all sorts of other things.

[Baroness Randerson (LD)]

I thank the Minister for her detailed response but there are huge inconsistencies in it. I draw to her attention the fact that the Government appear to have a limited approach to relevant data. She talks about the difficulties in obtaining data, but we have firm data on both the number of people who fail this test every year and the number of new drivers who have accidents in the first year or two of their driving careers. There are other approaches that the Government could have taken, such as doing away with the test and saying that you must have two years’ driving experience before you can tow a trailer as large as this. Did the Government consider other approaches? They seem to have gone for the extreme, riskiest option rather than looking at other things, such as increasing the capacity of driving test centres.

[Baroness Vere of Norbiton (Con)]

This Government are increasing the capacity of driving test centres; it is one of the 32 interventions that we have already outlined. We could have put in a two-year requirement but that would not have achieved what we wanted because there is no reason why you would deny somebody who is a perfectly good driver, even though they have just passed their driving test, the chance to do the training and tow a heavy trailer. I am not sure that there would have been a good rationale for denying somebody that right when, quite frankly, old people like me can already drive a heavy trailer—and I have never been anywhere near any training. There are already inconsistencies in the system, so these regulations create a simple system that everybody can understand, with mitigations in place to ensure that it is as safe as possible.

Motion agreed.

Civil Jurisdiction and Judgments (2005 Hague Convention and 2007 Hague Convention) (Amendment) Regulations 2022

Tuesday 14th December 2021 Grand Committee

Considered in Grand Committee

16:45

Moved by

[Lord Stewart of Dirleton]

That the Grand Committee do consider the Civil Jurisdiction and Judgments (2005 Hague Convention and 2007 Hague Convention) (Amendment) Regulations 2022.

[The Advocate-General for Scotland (Lord Stewart of Dirleton) (Con)]

My Lords, I begin by saying how much of an honour it is to serve under the chairmanship of the noble Lord, Lord McNicol. This is my maiden outing in this Room; it is a melancholy reflection, given that I took up office more than a year ago, but here I am in the Moses Room for the first time.

[The Deputy Chairman of Committees (Lord McNicol of West Kilbride) (Lab)]

You are welcome.

[Lord Stewart of Dirleton (Con)]

I am obliged. This draft instrument is made under the Private International Law (Implementation of Agreements) Act 2020, which I will refer to as the PIL Act. The Act currently gives force of law to these conventions and ensures that they are read together with any reservations and declarations made at the time of approval. It also sets out, in new schedules to the Civil Jurisdiction and Judgments Act 1982, the text of the conventions. To ensure that the information is complete and readily accessible, this instrument will insert the text of the reservations and declarations alongside the convention texts in new schedules to the 1982 Act.

This draft instrument is technical in nature and does not alter the UK’s status as a party to either the 2005 Hague Convention on Choice of Court Agreements or the 2007 Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance. It also brings into domestic legislation the texts of the UK’s reservations and declarations to those conventions. The UK has participated in the 2005 and 2007 Hague conventions since 2015 and 2014 respectively. Previously, we were bound by the conventions by virtue of our membership of the European Union—a status that continued to apply throughout the transition period in accordance with the withdrawal agreement. In September 2020, the United Kingdom took the necessary steps to join the two conventions as an independent party, as part of preparation for leaving the EU. This included depositing the necessary instruments of accession and ratification.

To be able to make this instrument, the PIL Act requires the Secretary of State to consult with such persons as they think necessary. To meet this requirement, the Ministry of Justice, on behalf of the Secretary of State, consulted key stakeholders in England and Wales, Scotland and Northern Ireland, as well as legal practitioners, academics and judges specialising in private international law, with whom the Ministry of Justice engages regularly. No objections to this instrument were received. In addition, as this instrument will apply to all UK legal jurisdictions, the consent of Scottish Ministers and the department of the Northern Ireland Executive has been obtained.

When rejoining these conventions as an independent party, the declarations and reservations by which the UK had been bound as a member of the European Union were not amended. This instrument will not make any changes to those reservations and declarations. While the existing reservations and declarations have been retained, this will not prevent the United Kingdom from changing them to either or both these conventions in future or withdrawing reservations to the 2007 Hague Convention if at any time it should to Parliament seem appropriate so to do.

Overall, as I have noted, this instrument is technical in its nature and will not alter the application of the conventions, nor their respective declarations and reservations. None the less, it is important to have the text of these declarations and reservations readily available in domestic legislation and alongside the text of the conventions for ease of reference for practitioners. I hope that the Committee will join me in supporting these regulations.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, in his introduction, the Minister said that that was his maiden speech in the Moses Room. I remember having a discussion upstairs about a year ago on some similar legislation, also to do with reciprocal enforcement of maintenance orders—the 2007 Hague Convention, to which I shall refer later in my contribution. As the Minister says, this instrument is technical in nature. We on our side support the Government on it.

The 2005 and 2007 conventions were transferred to domestic law as part of the package of the private international law Act last year; this instrument seems to transfer the definitions within the conventions over to UK law. I open with what may be a simplistic question to the Minister: will the definitions under the 1996 Hague Convention be transferred by secondary legislation in the new year? Is that an additional piece of process that we should expect?

The 2005 Hague Convention on Choice of Court Agreements ensures the effectiveness of exclusive choice of court agreements between parties to international commercial transactions. These clauses are common, particularly in high-value commercial contracts. The UK previously participated in the 2005 convention by virtue of EU membership, as we have heard; the EU ratified the 2005 convention, and it entered into force from 1 October 2015. On 28 September 2020, the UK deposited its instrument of accession to the 2005 convention to ensure that it continues its independent participation in the convention. The Minister set all that out in his introduction to today’s debate.

The 2007 Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance provides for rules for the international recovery of child support and spousal maintenance. Both the 2005 and 2007 conventions ensure legal co-operation across jurisdictions to provide certainty and fairness for those involved in cross-border litigation. The Labour Party supported the transfer to domestic law of both conventions during the PIL Act 2020, as referred to by the Minister.

Finally, I return to my personal issue—I remember that the noble Baroness, Lady Scott, was there last year when I raised it; I see her nodding her head—with my hat on as a family magistrate. One of the most excruciating things that I do in that role is try to enforce the reciprocal enforcement of maintenance orders. The Minister wrote me a letter, which I have in front of me, in which he fairly set out the legal processes whereby reciprocal enforcement should be done. I accept that my assertion—that there are insufficient powers to enforce maintenance orders reciprocally—was wrong.

The point I wanted to make to the noble and learned Lord is that, whether I was right or wrong, it is still an excruciating process. It is very difficult to do. Very often the reciprocal enforcement of maintenance orders fails. I accept the point that he makes in his letter that it is not because of a lack of powers; maybe it is a lack of administrative will. It is absolutely an excruciating process for me as a magistrate and with the administration process around it. The parties we see in court are often in despair about trying to resolve these issues.

Nevertheless, I understand that we are talking on a more general basis today. I welcome the instrument that the noble and learned Lord has put forward. I am also in direct contact with the relevant Minister, the noble Lord, Lord Wolfson, on the family court, so he does not need to introduce me to him. I will fight my own battles on this front.

[Lord Stewart of Dirleton (Con)]

My Lords, I am grateful to the noble Lord for his contribution. I well remember the opening of my account in the Room upstairs. I also remember the noble Lord’s close questioning, informed, as today, by his valuable experience on the Bench of magistrates in the family area of law, if I might put it like that.

The noble Lord posed a question about the 1996 Hague convention. The United Kingdom joined that instrument in its own right rather than through the European Union, so as I understand it no further action on that convention will be necessary.

I note with concern the noble Lord’s observations concerning the excruciating nature of the treatment of these matters in his capacity as a magistrate. I will do what I can, along with my noble friend Lord Wolfson in the Ministry of Justice, in order to assist.

At this stage, I register my appreciation and that of the Government for the assistance we received from stakeholders who engaged in consultation with us in the preparation of these instruments, and for the co-operation of our colleagues in the Scottish Government and the Northern Ireland Executive. With that, I commend the instrument to the Committee.

Motion agreed.

Wine (Amendment) Regulations 2021

Tuesday 14th December 2021 Grand Committee

Considered in Grand Committee

17:00

Moved by

[Lord Benyon]

That the Grand Committee do consider the Wine (Amendment) Regulations 2021.

Relevant document: 23rd Report from the Secondary Legislation Scrutiny Committee

[The Parliamentary Under-Secretary of State, Department for Environment, Food and Rural Affairs (Lord Benyon) (Con)]

My Lords, these regulations will ensure that the UK meets its legal obligation to implement the provisions in Annexe 15 to the TCA concerning the trade in wine. The amendments made by this instrument concern lot marking and transitional marketing arrangements. They will remove the requirement for VI-1 certificates to accompany imports of wine into Great Britain and put in place provisions underpinning the simplified certification arrangements for exports of GB wine to the EU.

Turning first to the measures that concern VI-1 certificates, these regulations will make changes to retained EU Regulation 1308/2013 of the European Parliament and the Council and make consequential changes to retained EU Regulation 2018/273. This will remove the requirement for a wine imported into GB to be accompanied by a VI-1 certificate, or a simplified form of that certificate, where that wine has been produced in line with our regulatory framework for wine.

This change will apply to wine imports from the EU. We are exercising a choice not to introduce unnecessary trade barriers in the form of self-certificates of the type mentioned in Article 3 of Annexe 15 to the TCA. This decision will ensure that wine products originating in the EU will continue to have free and unfettered access to the GB market. This will help to support an industry worth more than £1 billion per annum and maintain the UK as a global hub for the wine trade.

In parallel, we will also remove the VI-1 requirement for imports of wine from all other countries, such as Australia, Chile, New Zealand and the USA. This will be done on the basis that they, too, meet our regulatory requirements. These wines represent about 50% of the wines on our shelves and, due to EU rules, have been subject to a VI-1 certificate to be marketed in Great Britain.

The removal of VI-1 certification represents a positive first step in simplifying our wine regulations to remove aspects of the bureaucratic and discriminatory regime that we inherited from the EU. I offer my thanks to the wine trade and noble Lords for continuing to make such a compelling case for removing VI-1 certificates. The Government have listened and acted to remove this unnecessary piece of red tape that we inherited from the EU.

This SI will also make changes to retained EU law to ensure that wines produced in GB are subject to the appropriate supervision, inspection and authentication checks necessary to underpin the use of the new simplified certification arrangements for exports of GB wine to the EU. These proposals will also introduce provisions to ensure that the lot code arrangements for wines will continue to operate between GB and the EU. This will implement Article 4(3) of the TCA and will be done by amending the Food (Lot Marking) Regulations 1996. The changes will ensure that a wine bearing a lot code that complies with EU law in a member state can continue to be marketed in Great Britain. Lot codes are an important tool to help to trace wine products that have been prepared or packaged under the same conditions.

Finally, these regulations will implement Article 5 of Annexe 15 to the TCA concerning transitional arrangements for the marketing of wine products. Amendments will be made to the Wine Regulations 2011 and the Food Information Regulations 2014 that will allow for the marketing of wine products that, at the date of entry into force of the TCA—1 May 2021—had been produced, described and labelled in accordance with the rules existing at that time. The provisions allow two years from 1 May 2021 for wine stocks to be run down at the producer and wholesale levels, while stocks at a retail level can continue to be sold until they are exhausted. Transitional labelling arrangements are an important consideration in the wine sector where products can have an extended shelf life and their quality can appreciate over prolonged periods of time.

Overall, this instrument is primarily concerned with introducing the changes necessary to implement Annexe 15 to the TCA. It is important as this helps to underpin our relationship with the EU, which, collectively, is the most important wine-producing and trading region on the planet. However, this instrument also marks an important first step in freeing up our wine trade from unnecessary inherited red tape.

We have a flourishing wine and viticulture sector. Through this instrument, the Government are delivering on the levelling-up agenda by making regulatory changes that support wine importers, bottling plants and exporters across the country. From Accolade Wines in Avonmouth and Kingsland in Manchester to Greencroft in County Durham, we are removing a burdensome technical barrier to trade. Defra will continue to work with the industry and across government to ensure that we have the best possible regulatory regime for wine. I beg to move.

[Baroness Bakewell of Hardington Mandeville (LD)]

My Lords, I thank the Minister for his time and that of his officials in the briefing, as well as for his introduction to this relatively straightforward instrument.

The Explanatory Memorandum gives clear detail. Paragraph 7.3 refers to wine that has been stored and appreciated in value, and is then marketed later when it may not have the requisite information details that we are introducing in this IS; the Minister referred to this. Ensuring that this does not happen is referred to, in the last sentence of paragraph 7.3,

“by amending the Wine Regulations 2011 (S.I. 2011/2936) and the Food Information Regulations 2014 (S.I. 2014/1855).”

The Minister referred to those statutory instruments. However, there is no indication of when this might happen. Can he say whether a date has been given for that action?

Paragraph 7.8 gives details of the trade in wine with Northern Ireland and the effect of the Northern Ireland protocol on the wine industry. It makes the claim that, although the instrument

“will be looked at again once those negotiations have been concluded”,

there will be no

“significant effect on the trade in wine between Great Britain and Northern Ireland.”

Is the Minister sure that there will be no significant effect? The wording of the EM implies that there will be an effect but it will not be significant. I know that this is straining at gnats, but it would be helpful to have clarification.

Consultation with the industry, including the Wine and Spirit Trade Association, WineGB, the Food Standards Agency and Food Standards Scotland, has taken place. Not surprisingly, since the VI-1 wine import certificates are to be abandoned and the process simplified, there was general satisfaction in the process to be instituted and followed. It will reduce costs, which is good for business.

However, I am somewhat concerned that the consequent reduction in the price of wine could lead to harm from increased alcoholism, especially among young people, due to it being cheaper. Although a glass of wine is an enjoyable thing for most adults, the cheaper it is for those on low incomes, the more likely it is to be tempting to consume more than is healthy. Addictions of all type are a strain on the health service, and alcohol addiction can lead to anti-social behaviour and violence. I am not suggesting for one minute that the reduction in the price of wine will lead to wholesale disorder on the streets, but it is a consideration for young people.

The Secondary Legislation Scrutiny Committee has produced information paragraphs on this SI, having consulted Defra. There is a transition period, to which the Minister referred, of two years for producers and wholesalers of wine, and until stocks have been exhausted for retailers. Can the Minister say whether an estimate has been made of how long it might be before stocks of wine imported under the TCA before the lot codes came in might be exhausted? Is it likely to be sooner than two years, or might stocks be left at the end of the two years? If so, what arrangements will be made to ensure that these wines can still be marketed although they will not have the lot codes in place?

Lastly—I am sorry but this is a bee in my bonnet— I note that no impact assessment was produced. It is clear from the EM that there are likely to be impacts; it would have been helpful for these to be gathered together in one place. Apart from these minor comments, I am satisfied with this SI. I can see that it will be very good for business and will improve the movement of wine between GB and the EU, so I support it.

[Baroness Hayman of Ullock (Lab)]

My Lords, I, too, begin by thanking the Minister and his officials for taking the time to meet me and the noble Baroness, Lady Bakewell, to go through these amending regulations in advance. It was very helpful. I also thank him for clearly explaining the purpose of the detailed statutory instrument that we are looking at. As he explained, these regulations will ensure that the United Kingdom meets its legal obligations to implement the provisions in Annexe 15 to the trade and co-operation agreement, which deals with the trade in, and of, wine. Specifically, they will amend rules concerning lot marking and the import and export certification arrangements for wine products, as well as putting in place the transitional marketing arrangements, which are important.

However, I will concentrate on the removal of VI-1 certificates. As we have heard, the instrument proposes changes to ensure that wines from the EU and other third countries imported into GB will not require a certificate and analysis report any more. Defra has said that VI-1 certificates

“serve no purpose to business or the consumer, and simply add unnecessary costs to the trade in wine.”

After considering options for the future of wine certification, the Government announced on 25 July their intention to remove the requirement for VI-1 certificates on all imported wine into Great Britain, as the statutory instrument before us is intended to do. We have heard that this measure is also likely to reduce costs for our wine importers while increasing the global attractiveness and competitiveness of the UK as a hub for the wine trade. We understand that this change has been much welcomed by the wine industry, which estimates that it will save it around £100 million every year, so we also support this statutory instrument and welcome the changes it brings in.

We would also like to acknowledge the work of the Wine and Spirit Trade Association, mentioned by the Minister, in pressing the Government to alter their previous position. Noble Lords may remember that that was initially just to roll over the European Union rules and regulations on wine imports. It is very welcome that the Government have listened to the industry and brought in these changes.

Leaving the EU made a significant difference because the EU’s rationale for bringing in an import document—effectively, a technical barrier to trade—was, in reality, to protect its own wine industry. Whatever our views on our departure from the European Union, for us, as a net importer of wine, it made little sense to maintain the rules designed to disadvantage our imports. While I pay tribute to the UK’s many excellent wine producers, we import more than 99% of the wine that we consume in this country, and around half of those imports are from the EU.

Again, it is good that, following industry engagement, the UK Government initially introduced a much-welcomed grace period for VI-1 forms for all wine imported from EU countries, meaning that the forms have never actually been required for EU wine imported into the UK. That is why we now support the Government’s intention to remove this documentation from 1 January next year.

Having said all that, we have a few questions and concerns that I want to draw to the Minister’s attention. First, there is the impact on Northern Ireland, as raised by the noble Baroness, Lady Bakewell of Hardington Mandeville. As we heard, the SI does not extend to Northern Ireland, given the operation of the Northern Ireland protocol and the ongoing UK-EU negotiations on it. Paragraph 7.8 of the Explanatory Memorandum, which the noble Baroness mentioned, says that relevant provisions will be brought forward

“once those negotiations have been concluded.”

Does this mean that the Government have no intention to trigger Article 16? If that is the case, why have the Government given the impression that they might actually do so?

The Explanatory Memorandum continues:

“In the meantime, we do not anticipate this will have any significant effect”—


as the noble Baroness, Lady Bakewell of Hardington Mandeville, stressed—

“on trade in wine between Great Britain and Northern Ireland.”

To me, this is all a bit unsatisfactory and unlikely. Can the Minister tell us how that conclusion was reached? What discussions took place with the Northern Ireland Executive before that conclusion was reached? What engagement was there with colleagues in the Irish Government in Dublin? As the noble Baroness said when talking about the implications for Northern Ireland, clarification in this area would be extremely helpful.

17:15

I am also aware that the Government held a three-week consultation on the proposals before us. In response to this consultation, a particular concern was raised by the Alcohol Health Alliance UK, or AHA, on the likelihood that removal of import certification would reduce the cost of alcohol. It is worried that this could increase alcohol harm, noting that the price of alcohol is closely linked to harm: the more affordable it is, the more alcohol is consumed, and therefore the more harm is caused, as was also raised by the noble Baroness, Lady Bakewell.

The AHA referenced the UK Health Security Agency evidence review that encourages the reduction of alcohol affordability. The AHA has urged the department to commit to producing an impact assessment on how the removal of the VI-1 certificates will affect alcohol harm and its associated costs. Does the Minister acknowledge those concerns, what discussions has his department had with the AHA to address them and are there any plans to produce the requested impact assessment?

Transitions to trading arrangements have not always been easy following Brexit, and Covid-19 has been hard on many businesses, so I end by saying that it is good that the Government have listened to the concerns of the wine industry in bringing forward this SI, which we strongly support. I also hope that the Minister is looking forward, as am I, to safely enjoying a few glasses of wine at Christmas.

[Lord Benyon (Con)]

I am very grateful to both noble Baronesses for their contributions, questions and broad support for this measure. To take the noble Baroness’s last point first, I wish the same on everyone else over Christmas. I think we all deserve an extra glass of wine—drunk in moderation, no doubt.

The noble Baroness, Lady Bakewell, asked when the provisions will be introduced. It is intended that they will come into force on 1 January 2022, in a few weeks’ time. This will include the provisions to amend the Wine Regulations 2011. Longer term, the Government will consider consolidating and updating the Wine Regulations 2011 as part of our general review of domestic wine policy.

Both noble Baronesses asked about Northern Ireland, and quite rightly so. The statutory instrument does not apply in Northern Ireland, as they correctly pointed out, and will not result in any changes to the certification of GB-produced wine sent to Northern Ireland. Obviously, Northern Ireland will continue to follow the rules for VI-1 certification set out in the protocol. Most movements of GB wine to Northern Ireland have fallen within the scheme for temporary agri-food movements to Northern Ireland, and movements of GB wine to Northern Ireland are very small. They often fall below the 100 litre de minimis requirements for a VI-1 certificate set out in EU law.

The noble Baroness, Lady Hayman, asked about the Northern Ireland protocol. It is an absolute priority for the Government. She will be aware of the negotiations that my noble friend Lord Frost is leading. We very much hope that they will be successful and that the circumstances of the Northern Ireland protocol, which must change, will be understood and accepted on both sides. I cannot give her an up-to-date assessment of those negotiations but it is very much hoped that we can reach agreement without resort to any attempt to trigger Article 16. That would be a failure of negotiation, and we are working hard with our European partners. That is very relevant to this, because it is a massive industry for France, Spain, Germany and Italy, and we want to continue to have it here.

Both noble Baronesses asked about the impact of the measure. They rightly raised concerns about the cost of wine and asked whether that would have an impact on increased usage. Industry estimates that the cost savings due to the removal of VI-1 certificates would amount to around 10p per bottle of wine for an averagely priced bottle of around £6. That would represent a saving of approximately 1.7% of the retail price or 1% for a bottle of £10 wine.

However, this would most likely not trickle down to consumers. I hope it does, but that is a matter for the trade. The Wine and Spirit Trade Association pointed out in discussions today that the marketplace is limited because of the cost of complying with the VI-1 certificates; it costs about £350 every time you go to a laboratory for analysis for the correct certification. The loss of that cost will mean that a wider choice is available to the public, but I hope everyone will agree that it is not a dramatic reduction that is likely to impact on the wrong kind of alcohol use.

The point on the impact assessment was very well made. The primary objective of this instrument is to bring in measures to enable the UK to implement the TCA, which has already been agreed and ratified. The only aspect that goes beyond options set out in the TCA is removing the requirement for wine imports from the rest of the world to produce a VI-1 certificate. We accumulated significant evidence that this decision would be widely welcomed by the wine trade. The need to conduct an impact assessment was deemed unnecessary, and this view was supported by the Department of Health and Social Care.

The noble Baroness, Lady Hayman, made a general point about supporting the wine industry. We are working closely with the industry to promote English and Welsh wine. Defra is working closely with the FCDO to ensure that Great British wines are served at our embassies around the world and doing a lot to promote what was in our lifetimes a nascent and very small industry but is now developing extremely well. We want it to be an option for land managers to look at new vineyards but also a means of helping our exports.

I thank all noble Lords who have contributed to this debate. I will look in Hansard to see whether there are some points I have missed. In the meantime, I remind noble Lords of the positive changes contained in this instrument. The regulatory changes we are introducing enable us to meet our international obligations and implement the 15th annexe of the TCA concerning the trade in wine with the EU.

We have listened to the wine trade and your Lordships and have removed the requirement for VI-1s, not only for our imports from the EU but for those from other excellent wine-producing nations across the world. I hope noble Lords will therefore agree that this instrument is worthy of your Lordships’ support. I beg to move.

Motion agreed.

Consumer Scotland Act 2020 (Consequential Provisions and Modifications) Order 2022

Tuesday 14th December 2021 Grand Committee

Considered in Grand Committee

17:25

Moved by

[Viscount Younger of Leckie]

That the Grand Committee do consider the Consumer Scotland Act 2020 (Consequential Provisions and Modifications) Order 2022.

[Viscount Younger of Leckie (Con)]

My Lords, this draft order was laid before the House on 8 November 2021. I am grateful to have the opportunity today to open the debate on these consequential amendments that support the decision of the Scottish Government to establish Consumer Scotland as the body responsible for the devolved areas of consumer advocacy and advice. Consumer Scotland has been created by the Scottish Government as a source of expertise focused on advocating for change on issues that affect people in Scotland.

This order assists with the implementation of Consumer Scotland by establishing it as a non-ministerial body of the Scottish Administration. It also ensures that its new functions are reflected in UK legislation. Through this order, Consumer Scotland will be accountable to the Scottish Parliament and will be added to the list of bodies whose members are disqualified from being members of the House of Commons under the House of Commons Disqualification Act 1975. This is necessary as Consumer Scotland must legally be operationally independent of Scottish Ministers. Furthermore, the legislation will also give consumers confidence in the independence of this new body.

Let me provide some background on consumer law in the UK. In 2010, BIS, as the department was then called, consulted on changing the consumer landscape to make it easier for consumers to access advice. Consumer advocacy functions and the responsibility for the delivery of general consumer advice by Consumer Direct were transferred to Citizens Advice and Citizens Advice Scotland. This resulted in the abolition of Consumer Focus in 2014.

Under the Scotland Act 2016, functions relating to the delivery of consumer advice and advocacy, but not consumer protection, were devolved to the Scottish Parliament. This meant that it was the Scottish Government’s responsibility to fund and decide on the delivery mechanism for consumer advice and advocacy in Scotland. The power to raise a levy on industry to fund energy and postal advice and advocacy, against an agreed work programme, remains the responsibility of the UK Government. Consumer advocacy is just one of the activities that Citizens Advice Scotland and the bureaux network undertake. The advocacy work, including highlighting issues of consumer detriment and potential remediation, will pass to Consumer Scotland. These outputs will support front-line delivery by individual bureaux and other organisations.

Next, I would like briefly to provide some background on the type of secondary legislation we are discussing today. Scotland Act orders are legislation made under the Scotland Act 1998, which devolved significant powers to Scotland and provided the foundation of the devolution settlement. The order before us is a Section 104 order, which allows for necessary or expedient legislative provision in consequence of any provision made by or under any Act of the Scottish Parliament or Scottish statutory instrument. In this case, provision is required in consequence of the Consumer Scotland Act 2020, which I shall refer to as the 2020 Act.

Turning once again to the purpose of this order, as I mentioned earlier, the 2020 Act allowed for the establishment of Consumer Scotland as the body responsible for the devolved matters of consumer advocacy and advice. The aim of the order is to amend UK legislation, which will provide Consumer Scotland with full authority in its role of dealing with consumer advocacy and advice. Consumer Scotland will take over a range of responsibilities relating to advocacy in the energy, postal services and water sectors, currently undertaken by Citizens Advice Scotland. The advice it provides will be on new and emerging issues or matters of general interest to a range of consumers.

In 2020-21, Citizens Advice Scotland advised over 171,000 clients and dealt with over 647,000 advice issues, helping clients to gain nearly £147 million. Citizens Advice Scotland will remain a vital player in this area, and it will continue to provide advice to individuals, and also on a range of other areas, including social security and tackling poverty.

In closing, this instrument supports the Scottish Government’s decision to establish Consumer Scotland, which will give consumers confidence in the independence of the new body, and ensure that its functions are reflected in UK legislation. This instrument, the policy behind it and its legislative contents have the support of Scotland’s Governments in London and Edinburgh. It represents an excellent example of devolution in action to deliver for the people of Scotland. I commend the order to the Committee, and I beg to move.

17:30

[Lord Hope of Craighead (CB)]

My Lords, I am grateful to the Minister for his explanation of the background to this instrument. Of course, it is set out very clearly in the Explanatory Memorandum, which I have read.

I have just one comment, which is on the change of name. The name Citizens Advice Scotland is very well known to people who live in Scotland, and the crucial word in the name is of course “advice”. As an ordinary consumer in Scotland in need of advice, the body to go to would be Citizens Advice Scotland. The new name going into the legislation is Consumer Scotland, which does not include the word “advice”, which begs the question of whether this new body continues to have the function of providing advice. As I understand what the Minister said, and what is set out in the Explanatory Memorandum, the answer is yes; there is no change in function, but there is a change in name.

I was not quite sure whether I picked up the Minister correctly as to whether Citizens Advice Scotland will exist as a body beneath the umbrella of Consumer Scotland, or whether its name will go altogether. If its name goes altogether, there is a question as to the extent to which Consumer Scotland will advertise and make it known to everybody in Scotland that it has an advisory function as well as an advocacy function. For the ordinary person in the street, that is possibly more important than the advocacy—which is important, of course, but not everybody in the street is thinking of it. People seeking advice want to know where to go.

Can the Minister reassure us that the advice function will not only continue to be performed but the people in Scotland will be aware that Consumer Scotland is the body to which to go?

[Lord Tunnicliffe (Lab)]

My Lords, this is a bit of a maiden speech, in that I must have done at least 100 SIs over the past years, especially in that wonderful rush towards leaving the EU, but I have managed to avoid Scottish SIs until today. As a result, I found reading the SI and the Explanatory Memorandum something of a challenge. Everything I now say may be rubbish, because I might have got it wrong, but I do not really think that we are here to discuss the merits of Consumer Scotland.

It seems to me that the Scottish Government created Consumer Scotland, and as far as I can see that is their business, and they have to be accountable to their electorate over whether it is a good or a bad thing. To do its full job, as I understand it, it needs to take over responsibility of Citizens Advice Scotland with respect to energy, postal services and water, because they are not devolved areas, and therefore it is our responsibility to agree that these non-devolved areas shall be given to Consumer Scotland. As I said, to do this, it needs our authority, because those areas are not devolved. This oversight activity seems to have worked in the past with Citizens Advice Scotland, and I have no reason to believe that it will not work as well with Consumer Scotland. Our only interest should be whether those transfers will bring harm to those services in the rest of the UK—and, frankly, I do not see how it can possibly produce any harm.

As far as I can see, the other parts of the SI seem to be technical in nature, and we have no interest in whether Consumer Scotland is a good or a bad thing. That is the responsibility of the Scottish Government. I therefore fully support the draft instrument.

[Viscount Younger of Leckie (Con)]

I start by thanking both noble Lords for their general support for this order. Our amendments to the UK legislation made through this Scotland Act order will enable, as I hinted —or said—earlier, effective implementation of the Scottish Government’s decision to establish Consumer Scotland.

The few questions that arose were over the relationship and to do with the changes, and I hope that I can answer them. The noble and learned Lord, Lord Hope of Craighead, asked whether the advice function would continue to be performed in Consumer Scotland. I shall give the noble and learned Lord a little more detail on this. Consumer Scotland, as it will be called, will have five key functions. The first is a general function to provide consumer advocacy and advice—so the word “advice” is definitely in there. Secondly, it has a representative function to provide advice—again, it says “advice”—information and communication to other public bodies on consumer advocacy. Thirdly, it has a research and investigation function to research consumer matters and conduct investigations into consumer harm. Fourthly, it has an information function to provide public-facing consumer advice and information; and, finally, a recall of goods function, which will allow for the managing of records of recall of goods. As the noble and learned Lord will know, that is something that has been in England for some time.

I just add that Citizens Advice Scotland will still operate in Scotland. It will remain an important partner for Consumer Scotland and the Scottish Government in tackling consumer issues, providing advice to individuals and in a range of other areas, as I mentioned earlier, including social security and tackling poverty.

I shall try to answer a question from the noble Lord, Lord Tunnicliffe, on how the body might differ, and I shall perhaps add to what I have been saying. The 2020 Act created an independent consumer champion dedicated to representing the interests of consumers, so it will be a source of expertise, focused on advocating for change on issues that particularly affect people in Scotland. It will recognise Scotland’s distinct circumstances, such as its rural population and devolved industries. That would include matters of transportation, which I suspect will be of interest to the noble Lord, and the fact that there are particular specific issues in that respect for Scotland. I hope and believe that Consumer Scotland will create better outcomes for citizens in Scotland.

I hope that that gives a little bit more meat to the bones on the questions raised. To close, our support for the Scottish Government on the establishment of Consumer Scotland demonstrates Scotland’s two Governments working very well together, and the commitment of this Government to strengthen the devolution settlement. I hope that with those remarks, this order will be passed, and I commend the order to this Committee.

Motion agreed.

Civil Partnership (Scotland) Act 2020 and Marriage and Civil Partnership (Scotland) Act 2014 (Consequential Modifications) Order 2022

Tuesday 14th December 2021 Grand Committee

Considered in Grand Committee

17:40

Moved by

[Viscount Younger of Leckie]

That the Grand Committee do consider the Civil Partnership (Scotland) Act 2020 and Marriage and Civil Partnership (Scotland) Act 2014 (Consequential Modifications) Order 2022.

[Viscount Younger of Leckie (Con)]

My Lords, this draft order was laid before the House on 16 November 2021. I am pleased to have the opportunity this afternoon to debate these consequential amendments, which support the Scottish Government’s decision to introduce opposite-sex civil partnerships to Scotland.

Civil partnerships were first introduced across the UK through the Civil Partnerships Act 2004, with the first civil partnership taking place in December 2005. Opposite-sex civil partnerships were then introduced in England and Wales in 2019, and in Northern Ireland in 2020, following a ruling by the Supreme Court. The Scottish Government passed the Civil Partnership (Scotland) Act 2020, which enabled opposite-sex civil partnerships to become available in Scotland in 2021. Consequently, 22 opposite-sex civil partnerships were registered in Scotland in June 2021. From July to September 2021, there were a further 216 opposite-sex civil partnerships in Scotland, making a total so far of 238.

The order makes a range of technical changes to reserved legislation that are required in consequence of the Civil Partnership (Scotland) Act 2020, which I will refer to henceforth as the 2020 Act. It is important that we support the Scottish Government to provide equality of opportunity as they introduce these changes in Scotland. Later in my remarks, I will outline the legislative changes that we seek to make in this order but, first, I want to offer a real-world example of what these changes will mean in Scotland. The order is complex, but one example is the change made to the Human Fertilisation and Embryology Act 2008 on assisted conception. The amendments will ensure that, when it comes to establishing the parentage of a child in assisted conception cases, couples in a civil partnership are treated in the same way as married couples.

Before we look at the legislative detail of this order, it is worth spending a moment explaining Scotland Act orders to everyone here today; I hope that the Committee will forgive me because I outlined this in the previous debate, when noble Lords were very patient in listening to me. This type of statutory instrument is a form of secondary legislation made under the Scotland Act 1998, which devolved significant powers to Scotland and formed the basis of the devolution settlement that has been in operation for more than 20 years. The order before us today is a Section 104 order, a type of order that allows for necessary or expedient legislative provision in consequence of any provision made by or under any Act of the Scottish Parliament. It can also be made in consequence of secondary legislation made by Scottish Ministers. In this case, provision is required in consequence of the aforementioned 2020 Act.

Turning to the purpose of this order, I shall highlight some of the key legislative changes made here. The main changes reflect that civil partnership in Scotland no longer includes a same-sex relationship; it now includes an opposite-sex relationship too. Therefore, amendments are made to the Equality Act 2010, for example, further to protect persons such as religious and belief celebrants who do not wish to take part in the registration of mixed sex-civil partnerships. These amendments to the 2010 Act, which is generally a reserved matter for Westminster, reflect that, in Scotland, religious and belief celebrants can register civil partnerships in much the same way as they can solemnise marriage.

A number of amendments are also made to the Gender Recognition Act 2004. The changes made reflect that, now opposite-sex civil partnership is recognised, it is possible for civil partners to apply for gender recognition and stay in the civil partnership. Changes are made to the rules governing applications for a gender recognition certificate by some persons who are party to a civil partnership registered in Scotland but resident elsewhere in the UK. Provision is also made to make it clear that, for the purposes of the law of England and Wales, and Northern Ireland, a civil partnership registered in Scotland continues after either party to it has obtained a full gender recognition certificate.

As I have mentioned already, the Human Fertilisation and Embryology Act 2008 is also amended to ensure that children of marriages and children of civil partnerships are treated the same in cases of assisted reproduction and that the legal parenthood of these children is therefore clear. The order also makes changes to a range of legislation with regards to the registration overseas, through UK consular officials and the Armed Forces, of marriages and civil partnerships.

In summary, this order supports the establishment of opposite-sex civil partnerships in Scotland. The instrument and the policy behind it have the support of Scotland’s two Governments. I commend the order to the Committee.

17:45

[Lord Hope of Craighead (CB)]

My Lords, I very much welcome this order for a particular reason, if I can give a little bit of history. As the noble Viscount will be aware, I sat as a Lord of Appeal in the days when the House of Lords was the final Court of Appeal. In one case, which is very firmly in my memory, a couple appeared before us who were unable to marry. As far as one could tell they looked a perfectly normal, very respectable and charming man and woman, but the problem was that the man had been born as a woman. In those days, we did not have all the language to express that, as we have nowadays. It was a sex change problem. The problem was that the Marriage Act made it absolutely clear that whether one was a man or woman for the purposes of marriage was dependent on the sex at birth. We were unable to give them the authority to marry, but we drew the Government’s attention to the fact that there was a human rights element to this—a right to family life and so on—that they were being denied by the wording of the Marriage Act.

I must say that the Government acted commendably well in response to what we said. It led to the Government bringing in the civil partnership legislation, which was to deal with the problem of people of the same sex at birth wanting to marry. Certainly, as Law Lords, at the time we never contemplated that marriage would have to be replaced by a civil partnership between opposite sexes, but the Government have moved on, and there is obviously public demand for this now—people want to use civil partnerships rather than go through a formal marriage. I understand that. It makes obvious sense to do what the measure does to make up the position so that there is an equality of treatment through all the legislation.

There is one common law right that I do not think this measure deals with, but there is a way round it. If one dies intestate there is a legal right that children have, called legitim. At the moment, children of civil partnerships do not have that right because in common law it is available only to children of particular individuals who marry. Civil partnerships are not recognised in the way the legislation is designed for common law, because it is for children of a regular marriage.

There is not a problem, because those who wish to take advantage of legal rights can cure the problem by the adoption process, because adoption has allowed for it, but I wonder whether the noble Viscount and his advisers might take away consideration as to how to deal with legitim. At the moment, as I understand it, you have to go through the adoption process to give the children of a civil partnership the right to legitim. I might be wrong about this. As it happens, I have been looking at a soon to be published textbook on this subject that indicates that children of a civil partnership do not have the right to legitim, which one would want them to have. Because it is common law it is not embraced in the legislation, but it might be helpful if something was done about that to address what is quite a real problem. This is a right that attaches to every estate; it is a legal right given by common law. You cannot disinherit children in Scotland, because they have a right to a part of the estate. We would want to be sure that that survived into a civil partnership.

The only other point I want to ask the Minister about is whether there is any statistical information on how widely this provision is being used for its original purpose, between same-sex couples, and/or now between couples of opposite sexes. I rather think it has overtaken the same-sex situation. Although that solution is available—it is the one solution that same-sex couples have—it has rather overtaken it. But that would be quite interesting, if there are statistics readily to hand; if there are not, do not bother about it—but it would be interesting to know how widely it has been taken up between those two branches of couples.

That all having been said, I very much welcome this legislation. It makes obvious good sense and, as far as I can see, has done all the right things where statutory law is concerned, leaving aside the common-law problem to which I have drawn attention.

[Lord Tunnicliffe (Lab)]

My Lords, I am struggling in a sense with this Scottish stuff. I suppose it shows that I do not really understand the devolution settlement. My simple idea is that the settlement says, “Scotland can do what Scotland wants to do, except where powers are reserved to the United Kingdom as a whole”. It seems that what we have in this order means that, to achieve that, reserved law sometimes interferes at the edges. If one is respecting the devolution settlement, one should accede to the requests of the Scottish Government to change this stuff around the edge to meet what Scotland wants to do. Once again, I do not think it is really our business whether what Scotland wants to do is a good or bad idea.

I was not helped on this order because I did not have the training, mind or history of the noble and learned Lord, Lord Hope. I always enjoy him presenting his ideas on these occasions. Unfortunately, I did not really grasp the SI. I read it—no, let us be realistic. I read the Explanatory Memorandum several times, but I just could not keep up with the interrelationships.

Another thing I am sensitive about in the Scotland situation is that to blunder into such sensitive areas and make any comments on the substance of what the instrument is trying to achieve is probably unwise because one could, at the end of the day, create offence. Accordingly, I shall refrain from commenting on the substance. I have only one question: the Explanatory Memorandum says at its beginning that it is created by the Scotland Office, but it reads as if it is a consensus document between the Scotland Office and the Scottish Government. Who fundamentally created this statutory instrument? That is: whose ideas were they, and it is in fact a consensus document between the Scottish and UK Governments? If it is, I can see no way in which the SI adversely affects the UK-wide legislation, which I believe is the limit of our concerns. Accordingly, we support this statutory instrument.

[Viscount Younger of Leckie (Con)]

Again, I thank the noble Lord, Lord Tunnicliffe, and the noble and learned Lord, Lord Hope, for their support for this order. I also welcome the noble Lord, Lord Tunnicliffe, as I should have done before, into Scottish matters. I am sure he is being extremely humble and knows a lot more than he is giving out. As I come originally from north of the border and know that the noble and learned Lord, Lord Hope, does so too, we are reasonably well versed in this. However, the noble Lord is very welcome indeed.

I also say at the outset that I was very interested to hear the remarks of the noble and learned Lord. I am well aware of his experience, and it was very interesting to hear his real-life example. He spoke movingly about how, in that example, the issue revolved around and focused on how children are treated and cared for. He raised a question about children’s rights in this respect. I shall obviously have to write to him about the specific issue he raised, which is a legal issue, and I will copy in the noble Lord, Lord Tunnicliffe, rather than trying to cobble something together this afternoon.

I am not sure that I have all the statistics that the noble and learned Lord asked for. I have the statistics for the number of people in civil partnerships or marriages going through gender recognition, and I think that might have been part of what he was asking for. It is too soon to produce statistics which are available on the number of people in civil partnerships who obtain gender recognition. However, in 2020-21, the gender recognition panel granted 427 gender recognition certificates. Of those, 33 were granted to married people and 394 to single people. The gender recognition panel does not produce separate figures on the number of applications for gender recognition from Scotland. However, we estimate—and it is an estimate —that there are about 25 applications a year from Scotland. As I said earlier, it is too early to give definite figures, but that might give an indication.

I come to some points raised by the noble Lord, Lord Tunnicliffe, on the interrelationship between the UK Government and the Scottish Government. I mentioned earlier that the Scottish Government and the UK Government came together to produce this. It is a consensus document; I can definitely confirm that. I do not know who wrote it, but I think I am right to say that it was the UK Government. It is our job to take this through, but it is with the consensus of the Scottish Government. On the nuance of that, I will write in the same letter to confirm precisely how it came together. I can say that confirmation that the two Governments are working well together is clearly there.

I think I have answered the questions as far as I am able. In closing, I hope that we can now take this forward, and I therefore beg to move.

Motion agreed.

Committee adjourned at 5.58 pm.

House of Lords

Tuesday 14th December 2021 Lords Chamber

Tuesday 14 December 2021

14:30

Prayers—read by the Lord Bishop of St Albans.

Maldives: Tariffs

Tuesday 14th December 2021 Lords Chamber

Question

14:36

Asked by

[Baroness Mobarik]

To ask Her Majesty’s Government what plans they have to lower the tariffs on tuna imported from the Maldives.

[The Minister of State, Department for Business, Energy and Industrial Strategy and Department for International Trade (Lord Grimstone of Boscobel) (Con)]

My Lords, the Maldives is an important trading partner for the UK and we are keen to co-operate on trade opportunities including in such areas as food, drink and sustainable development, including fishing. However, the country is rated by the World Bank as an upper-middle-income country and therefore does not qualify for reduced tariffs under the UK’s generalised system of preferences, which, of course, lowers tariffs for developing countries.

[Baroness Mobarik (Con)]

I thank the Minister for his Answer. I am aware that the Maldives has transitioned from a developing to a middle-income country and is therefore not eligible for GSP. However, it seems to me an injustice that the Maldives, one of the few countries to practise genuinely sustainable fishing where fish are caught one by one, is the only Commonwealth country with small island development status on which the UK imposes an import tariff. The UK has economic partnership agreements with Caribbean and Pacific states, the Seychelles and Mauritius, which, incidentally, has a higher per capita income than the Maldives. Given that the tuna fishing industry is vital to the Maldives economy, can my noble friend tell us when there is likely to be a change in the status of the Maldives in its access to the UK market?

[Lord Grimstone of Boscobel (Con)]

My Lords, my noble friend makes a good point about the fishing practices used by fishermen in the Maldives, on which we must congratulate them. However, there are classifications that determine whether a country is a developing country. To go outside those classifications would have ramifications elsewhere.

[Lord Teverson (LD)]

My Lords, surely we need to be more flexible than that these days. I congratulate the Maldives Government on their sustainable practices, which the noble Baroness mentioned. The UK Government are rightly a champion of ocean conservation and biodiversity. Where there are good fishing practices, particularly for tuna, should we not give them strong trade preferences—yes or no?

[Lord Grimstone of Boscobel (Con)]

Again, the noble Lord is quite right to applaud the fishermen in the Maldives but, as I said, these things are governed by rules not always set by the WTO. We hope always to take a lead on this but, at present, our tariff rates on tuna do not differentiate between production methods of the same goods, such as different ways of catching tuna.

[Lord Lansley (Con)]

Does my noble friend not agree that the way forward is for us to enter a bilateral economic partnership agreement with the Maldives? I believe that the Government of the Republic of Maldives would be open to that possibility. Could we initiate such discussions?

[Lord Grimstone of Boscobel (Con)]

My Lords, my noble friend makes another good point. The UK currently has a busy and ambitious FTA negotiation programme with a full pipeline of negotiations. Sadly, we therefore have limited capacity to consider new FTA or EPA negotiations in the immediate term. However, the Maldives is an important trading partner to the UK and officials are exploring pragmatic options to enhance bilateral trade relationships in areas of mutual interest. I am sure that noble Lords will applaud that.

[Baroness Chapman of Darlington (Lab)]

My Lords, the Government talk a lot about wanting to be a champion for the Commonwealth—and so they should—and about sustainability. We have a nation here with small island development status that, as far as we know, is fishing sustainably on a global basis, so it seems extraordinary that the Government are being so cool on the prospect of having some kind of bilateral agreement with the Maldives. Will they perhaps warm up a little and try to progress this a bit more quickly?

[Lord Grimstone of Boscobel (Con)]

My Lords, no one could feel warmer towards the Maldives than I do. In a sense, it is a matter of congratulation for the Maldives that it is now an upper-middle-income country. We should congratulate it on that, but the downside is that it is no longer classified as a developing country.

[Lord Hannay of Chiswick (CB)]

My Lords, could the Minister, who has mentioned a list of countries that have a higher priority than the Maldives for a free trade agreement, tell us which African countries are on that list and when they will get an agreement negotiated?

[Lord Grimstone of Boscobel (Con)]

My Lords, on many occasions the House has heard me refer to the FTA negotiations. We are hoping to finalise now with Australia and New Zealand, we are hoping to resume trade negotiations with the US and our negotiations with the Trans-Pacific Partnership and we are hoping to start negotiations with India and the GCC. I think that the House will recognise that that is a full pipeline and, frankly, we cannot do everything at once.

[Lord Hannan of Kingsclere (Con)]

My Lords, I am pleased to hear my noble friend the Minister recognise the sustainable and ecologically friendly fishing practices of the Maldives. Will he recognise, at least as a medium-term objective, the desire for the UK to move to zero tariffs and zero quotas with our friends and allies in the Commonwealth?

[Lord Grimstone of Boscobel (Con)]

My Lords, that is another good point made by my noble friend. The issue of a free trade agreement covering the whole of the Commonwealth is the rich diversity of nations in the Commonwealth. Some are large and some are small; some have a certain economic capacity and others have another economic capacity. A free trade agreement with the Commonwealth would of course have to be negotiated over that whole range of countries. It is a wonderful, idyllic idea but in practice it would be hard to achieve.

[Lord Boateng (Lab)]

My Lords, we all understand why the Minister’s department cannot do everything at once, but why is Africa so often at the bottom of the list?

[Lord Grimstone of Boscobel (Con)]

My Lords, I think that is a rather unfair point. I do not have the figures at my fingertips but I well remember a debate that we had just a couple of months ago on the agreements that we have reached with certain African countries. We are making progress. Of course we would all like to make more progress, but at a time of limited capacity you have to prioritise.

[Lord Cormack (Con)]

My Lords, bearing in mind the size of the Maldives, will my noble friend not allow his warmth to become generosity in this season of good will?

[Lord Grimstone of Boscobel (Con)]

Of course size matters, my Lords, but it is not an easy criterion to apply to free trade agreements.

[Baroness Jones of Moulsecoomb (GP)]

I understand that since Brexit we have joined the International Commission for the Conservation of Atlantic Tunas. With all our knowledge of sustainability and conservation, are we actually contributing to that organisation? Are we urging it to improve constantly?

[Lord Grimstone of Boscobel (Con)]

My Lords, it is a long time since I did geography at school, but I am not entirely sure that what we are doing in the Atlantic necessarily applies to the Maldives. I do not have full details of the agreement that the noble Baroness refers to, so I will research it and write to her.

[Lord West of Spithead (Lab)]

My Lords, the Minister will be aware—and we should be proud—of the huge maritime protection zones which we have placed around so many of our overseas territories and which cover hundreds of thousands of square miles. Does he agree that we have insufficient maritime assets to protect and look after them, particularly bearing in mind the House of Commons Defence Committee’s report that said that we have too few ships?

[Lord Grimstone of Boscobel (Con)]

I congratulate the noble Lord on extending the range of this Question to talk about the important matter of the Royal Navy. Of course, I fully sympathise with him on that. Who would not want it to be one of our glorious services?

[Viscount Waverley (CB)]

Remembering that principle not size should govern the Government’s thinking if possible—and remembering, with deep appreciation, Sir David Amess taking a great interest in this subject and inviting me to join him for a meeting with a UK Minister—surely the ability to offer zero tariffs is one of the really meaningful ways to best assist the emerging markets. Could I encourage the Minister to take that on board?

[Lord Grimstone of Boscobel (Con)]

My Lords, when setting MFN tariffs and the UK global tariff, we of course have to balance various interests: UK interests, meeting strategic trade objectives and the maintenance of the Government’s commitment to developing countries. The GSP’s whole purpose is to give preference to developing countries. I repeat: it is the classification of the Maldives as no longer a developing country, which this House should congratulate it on, that means that it is not treated in the same way as developing countries in this instance.

Covid-19: Vaccine Donations

Tuesday 14th December 2021 Lords Chamber

Question

14:47

Asked by

[Baroness Sugg]

To ask Her Majesty’s Government how many of the 100 million COVID-19 vaccines they have committed to donate to the rest of the world have been delivered and where they have been sent.

[The Minister of State, Foreign, Commonwealth and Development Office (Lord Ahmad of Wimbledon) (Con)]

My Lords, the United Kingdom has delivered over 21.2 million doses to recipient countries. Some 16.6 million have been distributed through COVAX, a further 3.4 million doses are with COVAX for allocation and distribution and another 6.3 million will be delivered to it directly from AstraZeneca in the coming weeks. In addition, 4.6 million doses have been delivered bilaterally to 17 countries, including Jamaica, Kenya and Indonesia.

[Baroness Sugg (Con)]

My Lords, unvaccinated populations will mean more variants and we must redouble our efforts to help to vaccinate the world. Will my noble friend agree to update the House in writing at the end of this calendar year, and at the next deadline of June next year, with details of how many vaccines the UK has shipped and indeed delivered? Responsibility for global vaccines seems to sit across multiple departments: FCDO, DHSC, BEIS, DIT and of course the Treasury. We have seen the success of our domestic vaccine efforts, thanks to a focused and dynamic Minister, so will the Government consider giving one Minister responsibility for global vaccination?

[Lord Ahmad of Wimbledon (Con)]

My Lords, on my noble friend’s first point, yes, of course, and I shall write to her with an update. We have already responded to the Foreign Affairs Committee’s report on this issue. I will take her suggestion of one single dynamic Minister for global vaccines back and share it with the department.

[Lord Watts (Lab)]

My Lords, what progress has been made so far on helping countries to provide their own capacity to build their own vaccines so that it is not left to other countries to donate but, instead, they would be able to manufacture their own?

[Lord Ahmad of Wimbledon (Con)]

My Lords, the noble Lord makes an important point. The UK has engaged and continues to engage thoroughly on the issues around the TRIPS waiver, which has been discussed. We have certainly seen how we can work though transferring technology, for example. Indeed, early on in the pandemic, that same working together aided the world, in bringing together India and the UK on the Serum Institute of India initiative with the University of Oxford.

[Baroness Sheehan (LD)]

My Lords, in the wake of the new omicron variant, which undermines existing vaccination efforts, will the Minister support the temporary TRIPS waiver proposed by South Africa and India to the WTO and supported by more than 100 countries, including the US? This would allow for widespread manufacturing scale-up regionally, ensure that all countries could get access to the vaccines they need to protect their populations and reduce the risk to all of us of new variants emerging.

[Lord Ahmad of Wimbledon (Con)]

My Lords, I share the noble Baroness’s concern. We are engaging pragmatically on the TRIPS waiver. However, when looking into some of the hurdles that developing parts of the world have faced, we see that the main issue is still a lack of skills, in terms not just of health infrastructure but physical distribution of the vaccine even once it is in country. Vaccine hesitancy is also a large barrier. As I have said, we are engaging on the TRIPS waiver, but we are very clear that any negotiation should not lead to a reduction in the quality of the vaccine.

[Lord Flight (Con)]

My Lords, who decided that this country would donate 100 million Covid vaccines to the rest of the world and who chose which countries should be the beneficiaries?

[Lord Ahmad of Wimbledon (Con)]

On the 100 million vaccines, as my noble friend will be aware, this was very much part of our drive during our leadership at the G7 and it was announced by my right honourable friend the Prime Minister. On distribution, we are looking at key factors. Ultimately, we look at our own ability to provide vaccines, both through COVAX and bilaterally. We then make a decision on the availability of those vaccines as well as the ability to distribute them across the world. That decision is taken by the FCDO.

[Lord Collins of Highbury (Lab)]

My Lords, as we have heard, the two key issues in reaching the target of 70% of the global population being vaccinated are delivery mechanisms and manufacture. At the Foreign Ministers meeting at the G7, Liz Truss stressed the importance of strengthening health systems, which is vital to ensuring that vaccines are administered. What she did not address is how we are going to do that. Can the Minister commit his department to giving us a strategy of implementation so that we are confident about reaching the target in June of 70% of the global population?

[Lord Ahmad of Wimbledon (Con)]

My Lords, the noble Lord makes a very practical point, and I share his view on the importance of having the necessary infrastructure around the world to ensure equitable and safe distribution of vaccines. We are working closely through the COVAX facility as well as the World Health Organization to ensure that we can support that principle fully. Equally, prior to our bilateral donations being made, we go through quite thoroughly the infrastructure in a given country and its ability to ensure the safe and equitable distribution of the vaccine once it arrives.

[The Lord Bishop of Leeds]

My Lords, it is not just a matter of quantity, supply and logistics but, as the Minister indicated, of vaccine hesitancy. What consideration have the Government given to working with partners such as the Anglican Communion, which is well placed at local level to work with local leaders to use the right language and to persuade local people to take the vaccines?

[Lord Ahmad of Wimbledon (Con)]

My Lords, the right reverend Prelate will know what a strong supporter I am of the Anglican Communion and other faith-based institutions in different countries as key partners on not just vaccine issues but civil society issues. I will certainly take back what the right reverend Prelate has said, but let me assure him that we are working with the Anglican Communion and other faith communities to tackle vaccine hesitancy. Indeed, we experienced it here in the UK as well, and the churches and faith groups played a sterling role in ensuring that it could be overcome.

[Baroness Hayman (CB)]

My Lords, this country is in the midst of a damaging and costly response to a new variant of Covid-19. If we are to avoid a constant stream of disruptions of this sort, is it not in our country’s strategic interest that we work urgently to ensure the vaccination of the rest of the world?

[Lord Ahmad of Wimbledon (Con)]

My Lords, I totally agree with the noble Baroness.

[Lord Oates (LD)]

My Lords, in response to my question on vaccine equity on 2 December, the Minister, the noble Lord, Lord Sharpe of Epsom, said:

“I think, actually, the first duty of a Government is to protect their own population.”—[Official Report, 2/12/21; col. 1456.]

Does the Minister recognise that omicron demonstrates that Governments cannot protect their own populations unless they first understand that, in a pandemic, acting in the global interest is the only way of protecting the national interest? If he does recognise that, why are the Government cutting support for African health services at their time of greatest need in delivering vaccines to their people?

[Lord Ahmad of Wimbledon (Con)]

My Lords, on the noble Lord’s second point, we allocated specific support for African nations and have continued to support them in that respect. On his first point about my noble friend’s response, it is important to secure domestic vaccinations, but I agree with what he has put forward: we are only as safe as everyone else is. Therefore, we must support other countries, but this is not a binary choice; we can do both. We can secure our own populations and help those elsewhere in the world as well.

[Lord Foulkes of Cumnock (Lab Co-op)]

My Lords, is it any wonder that we face a tidal wave of omicron when we have provided only one-fifth of the vaccine doses promised to countries overseas? Did the Minister hear the evidence given by an expert to the Select Committee in another place that it was very short-sighted of the Government not to support the facility at Livingston in Scotland which was ready to provide hundreds of millions of doses that could be sent overseas? Will he ask his colleagues in the departments concerned to think again about keeping that facility open?

[Lord Ahmad of Wimbledon (Con)]

My Lords, one thing that the challenge of Covid-19 has shown is our interdependency and the need to work together. We have certainly demonstrated that. On the noble Lord’s first point about short-sightedness, on the contrary, when my right honourable friend the Prime Minister returned from his own challenge with Covid-19, the first thing he did was to spearhead the COVAX facility. That is doing exactly what the noble Lord suggests in ensuring that the most vulnerable are supported. I shall follow up on his specific question about the Livingston facility.

[Lord Hamilton of Epsom (Con)]

My Lords, there have been reports in the press that the problems in sub-Saharan Africa relate not to supply but distribution. Which is the difficulty, supply or distribution of vaccines?

[Lord Ahmad of Wimbledon (Con)]

My Lords, there is a need to do more on supply to ensure equitable distribution of vaccines. However, as I have said in earlier answers, there is equally a real challenge with infrastructure in developing parts of the world to ensure that, once vaccines arrive, they can be distributed around the country.

Breast Screening

Tuesday 14th December 2021 Lords Chamber

Question

14:57

Tabled by

[Baroness Morgan of Drefelin]

To ask Her Majesty’s Government what plans they have to ensure screening of the estimated 1.2 million women in England who missed breast screening during the COVID-19 pandemic; and what assessment they have made of the extent to which health disparities may have been exacerbated due to the reduction in screening attendance.

[Baroness Meacher (CB)]

My Lords, I beg leave to ask the Question standing in the name of my noble friend Lady Morgan on the Order Paper.

[The Parliamentary Under-Secretary of State, Department of Health and Social Care (Lord Kamall) (Con)]

Recovery of screening has been an ongoing priority and all NHS breast screening providers are now operational. We allocated £22 million towards mobile breast screening units and £50 million towards increased regional capacity, and have collaborated across cancer alliances, primary care networks and NHS England and NHS Improvement regional teams to promote uptake. We know inequalities in screening exist, exacerbated by changes to service provision during the Covid-19 pandemic. Inequalities remain key in restoration planning, and guidance was recently published on reducing inequalities in breast screening.

[Baroness Meacher (CB)]

My Lords, I thank the Minister for his reply. He appears to be aware that it is in fact minorities and socially deprived women who have been hardest hit by the shortfall in screening take-up due to Covid. I understand from his response that the Government are issuing guidance. What action will that guidance envisage to ensure that these minorities and deprived women receive screening for breast cancer?

[Lord Kamall (Con)]

The noble Baroness raises a very important point; we need to tackle inequalities not just in this area but across all healthcare. One of the things we have been looking at is research into why women in certain areas do not come forward. That is why we have invested in mobile breast screening units, so that we can take screening services closer to those people who are reluctant to come forward.

[Baroness Walmsley (LD)]

My Lords, we heard the Minister’s Answer about the money that has been pledged, but the elective delivery plan promised by the end of November has not been published. Can he say when it will be published and how it will help to find and treat the just under 10,000 fewer than usual women who would have been diagnosed with breast cancer between March 2020 and October 2021?

[Lord Kamall (Con)]

The plan will be published in due course. When we look at the backlog for the breast screening programme, we see that all 77 NHS breast screening providers are now operational and screening women. Some have caught up, and others are not predicted to recover by the end of March 2022. That is why NHS England and NHS Improvement have comprehensive plans, including spending and investment.

[Baroness Ritchie of Downpatrick (Lab)]

My Lords, as I can testify, breast cancer screening is vital. Allied to this is the need for funding for secondary breast cancer. I know that an audit has been launched here in England, but there are no such audits for secondary breast cancer in Northern Ireland and Scotland. Will the Minister use his good offices with those appropriate Ministers to ensure that such audits are established and that this House can be furnished with ongoing reports of the audit here in England, and the results thereof, to ensure that funding can be deployed into oncology, nursing and care support?

[Lord Kamall (Con)]

I thank the noble Baroness for raising the importance of co-ordination and sharing information across the devolved Administrations. I have meetings scheduled with health Ministers from the devolved Administrations, and I will make sure that my office puts this on the agenda.

[Baroness Finlay of Llandaff (CB)]

My Lords, following on from the question of the noble Baroness, Lady Ritchie, will the Minister tell us how the stage of presentation of breast cancer has altered over the past two years? How many women presenting with stage 3 and stage 4 cancers had never been screened?

[Lord Kamall (Con)]

I thank the noble Baroness for giving me advance notice of the question, and so giving me the chance to get some information. Data on cancer stages is currently published only annually, and NHS Digital is publishing the data from 2019 on Thursday 16 December. The latest data from 2018 shows that nearly 86% of breast cancers were diagnosed at stages 1 and 2, meaning that about 15% were diagnosed at stages 3 and 4, but this was pre-pandemic. I will make sure that I get the updated data as soon as possible.

[Baroness Thornton (Lab)]

My Lords, in October, when we last had a Question on this issue, the Minister was asked about the need to ensure that innovative new treatments such as Trodelvy reach patients as quickly as possible. I gather that this issue is still not resolved. As yet, there is no agreement between the drug company Gilead and the NHS, which means that access to this transformational treatment is extremely ad hoc and unfair. Will the Minister please help to expedite this issue with NICE, the MHRA and the manufacturer?

[Lord Kamall (Con)]

As the noble Baroness will acknowledge, the MHRA and NICE are independent, but I can, of course, raise the issue with them.

[Baroness Fookes (Con)]

My Lords, can my noble friend confirm that the incidence of breast cancer increases with age? If I am right in that, what plans do the Government have to help older women?

[Lord Kamall (Con)]

The statistics we have show that four out of five breast cancers tend to develop in women over 50. Therefore, screening is really for women between 50 and 71, which will catch most of them. The 2012 review of breast cancer screening, the Marmot review, estimated that inviting women between the ages of 50 and 70 reduces mortality in the population invited by 20%. It also found concerns about screening women outside those ages and overdiagnosis.

[Lord Stirrup (CB)]

My Lords, this issue, like many across the NHS, is exacerbated by what the Financial Times today referred to as a workforce crisis. When will the Government take urgent action to stem the large and increasing outflow of trained medical personnel that is proving so debilitating to the provision of health services across the board?

[Lord Kamall (Con)]

In previous debates this week I have outlined what we are doing to increase recruitment. On the specific issue in the mammography workforce, Health Education England is providing £5 million to support a new training and development programme through the National Breast Imaging Academy. That itself will increase recruitment, improve screening targets and increase early diagnosis of cancer.

[Baroness Sheehan (LD)]

My Lords, while we wait for the routine screening programme to get back to normal, is there a fast-track mechanism for women who believe they have themselves detected a lump or a worrying change in their breast tissue to be screened and seen by a specialist?

[Lord Kamall (Con)]

The method for booking screenings has now changed, so people can book online on demand, rather than waiting for a referral.

[Baroness Bryan of Partick (Lab)]

Does the Minister agree that it is beyond doubt now that screening is beneficial? Can he assure us that no credence is given to those arguing that screening leads to overtreatment? Can we say that that is scotched?

[Lord Kamall (Con)]

The Government completely agree with the sentiments expressed by the noble Baroness.

[The Lord Privy Seal (Baroness Evans of Bowes Park) (Con)]

My Lords, the noble Baroness, Lady Masham of Ilton, wishes to speak virtually, and I think this is a convenient point for me to call her.

[Baroness Masham of Ilton (CB) [V]]

My Lords, as GPs are having to work in vaccination centres, would it be possible for people who think they have or may have cancer—breast cancer or other cancers—to go straight to secondary care for investigations? GPs cannot do everything at the same time. Does the Minister agree with me that it is important to have a speedy diagnosis for cancer?

[Lord Kamall (Con)]

I think all noble Lords would agree with the noble Baroness that it is important we have speedy diagnosis. On the specific question, I will check and get back to her.

[Lord Boateng (Lab)]

My Lords, will the Minister accept that, at the same time as aid and assistance to the developing world is being cut in the health sector, we are increasing the recruitment of doctors and nurses, not least from Africa, while Africa is experiencing a real issue with the distribution of the Covid vaccine? Is there not something terribly wrong there?

[Lord Kamall (Con)]

I thank the noble Lord for raising the issue; I know he has been a strong champion of Africa over the years. The fact is that, when it comes to recruitment, we adopt ethical guidelines in line with the World Health Organization. I will give him one example. Recently, I had a discussion with the Kenyan Ministry of Health about sending Kenyan nurses. I asked whether we were depriving them of their nurses, and was told “No; we train far more nurses than our health system can absorb, and therefore we see this as a powerful way to increase earnings for our country.”

[Lord Aberdare (CB)]

My Lords, further to the question asked by my noble and gallant friend, Lord Stirrup, the Minister’s answer related to what was happening in the recruitment of new staff. Can he say something about what the Government are doing to retain existing staff?

[Lord Kamall (Con)]

I have previously announced government investment in retention programmes and looking at getting back those who have retired and increasing training places in medical schools and elsewhere.

[Baroness McIntosh of Hudnall (Lab)]

My Lords, going back to the question from the noble Baroness, Lady Fookes, could the Minister remind the House exactly what is the rationale for not including women over 70 in the screening programme, given that, as he has conceded, vulnerability to breast cancer increases with age?

[Lord Kamall (Con)]

The Marmot review found that screening women outside the ages of 50 to 70 could lead to overdiagnosis and to referring women for unnecessary tests and overtreatment. But women in other categories with a very high risk of breast cancer—those with a family history, for example—are often screened earlier and more frequently. Women are not automatically invited for breast cancer screening if over 71, but they can request screening themselves.

Covid-19: Entertainment and Arts Venues

Tuesday 14th December 2021 Lords Chamber

Question

15:08

Asked by

[The Earl of Clancarty]

To ask Her Majesty’s Government what further support they will provide to entertainment and arts venues following the introduction of new COVID-19 regulations.

[The Parliamentary Under-Secretary of State, Department for Digital, Culture, Media and Sport (Lord Parkinson of Whitley Bay) (Con)]

My Lords, Her Majesty’s Government are continuing to support the sector through the Culture Recovery Fund, which has provided nearly £2 billion of public support for arts and culture. To help people over the winter, we have reopened the emergency resource support strand of that programme, giving more applicants at risk of financial failure an opportunity to bid for support. We continue to work with our arm’s-length bodies and the sector to understand the pressures being felt as a result of the pandemic and the move to plan B.

[The Earl of Clancarty (CB)]

My Lords, the Minister will be aware of the considerable difficulties the arts are having getting back on their feet, with many venues experiencing low ticket sales before the most immediate crisis. Will the Minister look again at the Live Events Reinsurance Scheme, which does not cover regulations that make events financially unviable or where cancellations occur because of staff contracting Covid? Will the Minister look as well at extending the Culture Recovery Fund to creative freelancers, many of whom, particularly in the music sector, did not receive help under the Self-employment Income Support Scheme?

[Lord Parkinson of Whitley Bay (Con)]

My Lords, the noble Earl is right to point to the fact that we are doing everything we can to support the sector to return to doing what it loves and what people love to enjoy it doing. We launched the live events reinsurance scheme in September, and I will certainly look at examples where people are not able to benefit from it. Self-employed people have been able to enjoy some of the other support that has been given by the Treasury but, again, I am very happy to hear from freelancers and those representing them to make sure that the support is being given.

[Lord Cormack (Con)]

Does my noble friend acknowledge that English choral music is particularly enriched by church music? Is the Royal School of Church Music eligible for grants from the Culture Recovery Fund?

[Lord Parkinson of Whitley Bay (Con)]

I do not know specifically, but I will follow up on my noble friend’s request, find out whether it has bid for any of the rounds of the Culture Recovery Fund and write to him with the answer.

[Lord Clark of Windermere (Lab)]

My Lords, I declare an interest as a director of Carlisle United Football Club. What plans do the Government have to ensure that places are available for away fans in football games which are subject to the latest Covid regulations?

[Lord Parkinson of Whitley Bay (Con)]

I will discuss that matter with my honourable friend the Sports Minister. Of course, the Culture Recovery Fund has been helping organisations right across the wide range of things that people enjoy.

[Lord McNally (LD)]

My Lords, yesterday’s newspapers reported on the new musical “Cabaret”. These five-star reviews remind us what a magnificent magnet our London theatres in particular are for inward investment and tourism. However, the Society of London Theatre is warning us that these new circumstances—and they are new; the Prime Minister had to have a special broadcast, and we have to have special legislation—mean that the theatres are now faced with entirely new threats, yet from the department it still sounds like it is business as usual, rather than action this day.

[Lord Parkinson of Whitley Bay (Con)]

My Lords, the department, both at official level and ministerially, has been speaking to the sector throughout the pandemic. Of course, we have stepped that up since the move to plan B. I have a meeting tomorrow with our venue steering group so that I can hear from it myself. I have been to two theatres since we moved into plan B: the Young Vic on Thursday, and the Greenwich Theatre to see the pantomime at the weekend. I am pleased to report that they were full houses of people wearing masks. The most important thing we can do to support not just the cultural sector but every part of our economy is to get our boosters, wear our masks and have consideration for those around us.

[Lord Berkeley of Knighton (CB)]

My Lords, given that so many freelancers fell through the Government’s welcome support network during Covid, the noble Baroness, Lady Stedman-Scott, promised from the Dispatch Box to write to me about the rules concerning universal credit, because she accepted that there was a problem. Would the Minister be kind enough to fulfil that promise, as I have yet to hear from her? Also, the double whammy of Covid and the restrictions on touring have really hit the musical sector. Given that the Prime Minister, Boris Johnson, told us that the advantages of Brexit would outweigh the disadvantages, could the Minister enlighten me as to what advantages the creative sector has so far garnered?

[Lord Parkinson of Whitley Bay (Con)]

My noble friend Lady Stedman-Scott has been away for a few days, so I will certainly pick that up with her office to make sure that the noble Lord gets the answer to his first question. I also have a meeting with counterparts in the DWP to take up this issue in response to a question we had in a debate recently with the noble Lord, Lord Cashman, and others. As the noble Lord, Lord Berkeley of Knighton, knows, we continue to work bilaterally on touring. We provide information on GOV.UK to make sure that the sector has clarity about the rules, and we are making progress with many other countries in ensuring that they match the welcoming access we provide to musicians who want to come to the UK.

[Baroness Merron (Lab)]

My Lords, many venues which took out government-backed Covid loans early in the pandemic are either now starting to repay the loans or are coming up to being asked to repay them. With the continuation of the pandemic, are the Government looking at whether those repayments can be deferred? Given the contribution that live entertainment and the arts make to our well-being and that of our communities, what work is being done across government, including with the Treasury and the Department for Levelling Up, Housing & Communities, to recognise that so that this time, if needed, support measures can hit the ground running?

[Lord Parkinson of Whitley Bay (Con)]

My Lords, the money continues to be disbursed. So far, we have helped more than 5,000 organisations around the country and the money continues to go out. As we set out in the accompanying fund guidance documents, the Government will keep the delivery of the funding under active review and will consider how best to adapt it in line with the needs of the sector. We continue to work with other departments to make sure that our response is appropriate.

[Lord Watts (Lab)]

My Lords, many public houses have a tradition of providing live music. That seems to have ceased since Covid. Have the Government any measures whatever to try and encourage public houses to start to open up as venues for live music?

[Lord Parkinson of Whitley Bay (Con)]

The rules on certification vary depending on the size of establishments, their opening hours and whether they serve alcohol after certain times. The noble Lord is right that live music can be enjoyed in all sorts of settings and we want people to get back to doing that safely. The best way for them to do that is to help us by getting their boosters and wearing their masks.

[The Lord Bishop of Leeds]

My Lords, does the Minister agree that the cultural venue future for the north of England would be considerably enhanced if communications were improved—that is, if you could actually get to venues in the first place? What weight are he and his department giving to discussions about northern rail and other transport infrastructure?

[Lord Parkinson of Whitley Bay (Con)]

The right reverend Prelate makes an important point. We want to ensure that people have access to entertainment, arts and culture wherever they live and however they get there. We work with the Department for Transport, local authorities and metro mayors to deliver that.

[Baroness McIntosh of Hudnall (Lab)]

My Lords, I remind the House of my interests. The noble Lord has rightly focused on the enjoyment that people get from the arts and of course I would be entirely in sympathy with that, but he has not mentioned the economic benefit that comes to the country from the success of the sector. That very much includes the performing arts, particularly theatre. Have the Government made any assessment of the likely impact on our economy if there is serious damage to that sector over the next few months or years?

[Lord Parkinson of Whitley Bay (Con)]

The noble Baroness is absolutely right. This is about not just the enjoyment that the arts bring but the contribution they make to our economy and society. The Culture Recovery Fund was testament to that—money from the Treasury to make sure that our vibrant and expanding cultural sector was still there and in good health as we emerged from the pandemic. That is why we keep that under review and are keen to ensure that it can continue to grow as quickly as it has been.

[Lord Bird (CB)]

As most people get their entertainment from television and from Netflix and Amazon, is there a way that we can tax these much more severely because they take so much out of our live music, our theatres and all sorts of things? Can the Minister not start petitioning for a real tax of Amazon and all those others?

[Lord Parkinson of Whitley Bay (Con)]

My Lords, during the pandemic thanks to the Culture Recovery Fund a lot of independent venues have been able to stream the work that they have done, bringing it to people to enjoy in their homes. A lot of the film and television production companies have been working with us, making use of apprenticeships to help get lots of people into the creative industries and taking up job opportunities. They are part of the solution. We want a thousand flowers to bloom.

Subsidy Control Bill

1st reading
Tuesday 14th December 2021 Lords Chamber

First Reading

15:19

The Bill was brought from the Commons, read a first time and ordered to be printed.

Armed Forces Bill

Consideration of Commons amendments
Tuesday 14th December 2021 Lords Chamber

Commons Reasons

15:19

Motion A

Moved by

[Baroness Goldie]

That this House do not insist on its Amendment 1B, to which the Commons have disagreed for their Reason 1C.

1C: Because a presumption in favour of the offences in question being heard in the civilian courts is not necessary or justified.

[The Minister of State, Ministry of Defence (Baroness Goldie) (Con)]

My Lords, with the leave of the House I will speak also to Motion B.

Your Lordships will understand that the Bill is essential. It must pass this week or the Armed Forces Act 2006 will cease to have effect. As my honourable friend Mr Leo Docherty, the Minister in the other place, made clear yesterday, we have been listening to the concerns of noble Lords and honourable Members and the Government have responded to them. We recognise that all Members of this House want to do the best they can for our Armed Forces and to support them in the vital role that they play.

I turn first to the views put forward by the noble Lord, Lord Thomas of Gresford. I think we all agree that criminal wrongdoing must be robustly and swiftly addressed for the sake of our service personnel and for the victims of crime. We respectfully maintain that the provisions in the Bill will meet these concerns. They will require civilian prosecutors across the United Kingdom to agree with the Director of Service Prosecutions protocols for determining in which jurisdiction cases should be heard. The Bill provides that civilian prosecutors will always have the final say on the choice of jurisdiction under those protocols.

The Government therefore agree that civilian prosecutors should be able to decide whether a case proceeds in the service or civilian jurisdiction. However, we are unable to agree that a role for the Attorney-General is needed, and we consider that it is wrong for there to be an explicit and inbuilt bias towards one system or the other. Each system is and should be capable of dealing with all types of offending, with decisions made by prosecutors on a case-by-case basis. The service justice system will be dealing with all offences when they occur overseas, and it really makes no sense to truncate our capability in this area and create the very real risk that the system could be seen as second class if serious offences such as rape and serious sexual assault can be dealt with in the service justice system overseas but not in the United Kingdom.

There was some discussion in this House last week about the implications of this amendment for Scotland and Northern Ireland. The earlier amendment applied only to England and Wales, giving the role of authorising a service justice prosecution to the Director of Public Prosecutions after consulting the Attorney-General. The latest amendment retains that feature but creates rules for Scotland and Northern Ireland, giving the authorising function to the Lord Advocate in Scotland and the Director of Public Prosecutions for Northern Ireland.

Let me be clear that this formulation remains unacceptable to the Government. As I have said, the provisions of the Bill already give the final say on jurisdiction to the civilian prosecutors: the Director of Public Prosecutions, the Lord Advocate, and the Director of Public Prosecutions for Northern Ireland. Our objection remains to any involvement of the Attorney-General or Attorney-General for Northern Ireland and to any inbuilt bias towards either system, for the reasons which I have explained.

We recognise, however, that we could increase confidence in the service justice system by being more open and transparent about the cases that the system is dealing with. This is why a specific commitment was given in the other place yesterday to improve our annual statistical update on offences contrary to the Sexual Offences Act 2003 and historic sexual offences dealt with in the service justice system to include other serious offences. Our bulletin in spring 2022, published on the GOV.UK website, will, in addition to reporting on rape statistics, now include granular data on cases of murder and manslaughter, and for sexual offending those cases involving personnel serving in the Armed Forces who are under 18 at the time of the offence. Furthermore, from January 2022, we will start to record separately information about domestic violence and child sexual abuse offences in the service justice system so that these too can be reported in our spring 2023 bulletin.

Greater reporting will enable the Government to be held to account and to transparently monitor the health of the service justice system so we can make adjustments and improvements where necessary. We know of course that the service justice system deals with a significantly lower number of cases than the civilian system and that small variances in the data can produce seemingly large swings in performance when expressed as percentages. However, low case numbers aside, the service justice system has trained police investigators, prosecutors and judges who are experienced and capable of dealing with the serious offences which are of concern here. We are strengthening and improving investigative capability through the defence serious crime unit.

I now turn to the views of the noble and gallant Lord, Lord Craig, on the need for a report to be laid within six months of this Bill receiving Royal Assent, setting out the implications of not applying a new covenant duty to central government. I appreciate the sincere desire that lies behind the original amendment. As the Minister explained in the other place yesterday, the Government have already committed to reviewing the operation of the covenant duty to indicate whether other policy areas or functions could be usefully included. We have listened carefully to the views expressed in both Houses and, recognising the strength of feeling across both, the Government have now committed to going further and have set out in clear terms how such a review will occur. I am pleased to repeat these clear terms, to share that commitment, and to set out as follows how we see such a review progressing.

The review will encompass the operation of the new duty across the UK, going further than your Lordships’ proposals, and it will consider whether it would be beneficial to exercise any of the powers conferred by this Bill to add to its scope. This will include specific consideration of whether central government and any of its functions could usefully be added. The Government will report on the review as part of the covenant annual report in 2023, 18 months after the new duty is expected to come into effect. This timescale is more realistic than the six-month timeline from Royal Assent suggested by your Lordships, which is too short a period for any meaningful review to take place.

Once the Bill is passed, elements of the new duty, such as the statutory guidance, will require further statutory consultation and parliamentary scrutiny. We expect to see the new duty standing up in law by the middle of 2022 at the earliest, which is around the time that your Lordships’ amendment would have required a report. We also need to allow for an implementation period to give local authorities time to adjust to their new responsibilities. Therefore, to conclude and publish the review at the 18-month point of the new duty having been in operation is most appropriate.

Recognising the level of interest in this new duty, we will provide an update in the covenant annual report in December 2022, some six months after the duty is expected to come into effect. We will be able to say more at this point about the scope and methodology for conducting the review, and Members of Parliament will have the opportunity to assess and comment in the 2022 covenant report debate. We are committed to ensuring that parliamentarians from both Houses can contribute and give their views as part of the review process.

I have sought to reassure this House where I have been able to do so. We are up against time, the Bill must pass, and I urge noble Lords to support the Government. I beg to move.

Motion A1 (as an amendment to Motion A)

Moved by

[Lord Thomas of Gresford]

At end insert “and do propose Amendment 1D as an amendment in lieu—

1D: Page 4, line 27, at end insert—
“(4A) Guidance under subsection (3)(a) must provide that where offences of murder, manslaughter, domestic violence, child abuse, rape or sexual assault with penetration are alleged to have been committed in the United Kingdom, any charges brought against a person subject to service law shall normally be tried in a civilian court unless, by reason of the circumstances, including but not limited to specific naval or military complexity involving the service, trial by court martial is directed by—
(a) in England and Wales, the Director of Public Prosecutions, after consultation with the Attorney General;
(b) in Scotland, the Lord Advocate;
(c) in Northern Ireland, the Director of Public Prosecutions for Northern Ireland, after consultation with the Attorney General for Northern Ireland.””

[Lord Thomas of Gresford (LD)]

My Lords, the Justice Minister, Dominic Raab, speaking on “Today” this morning, said:

“I’m proud of our tradition of freedom in this country. We believe in liberty under the rule of law … We want to reinforce our typical British liberties like freedom of speech, the liberty that guards all the others … trial by jury, that’s a common-law right, very much part of the British tradition.”


In another part of the thicket, the Defence Secretary, Mr Ben Wallace, is seemingly against trial by jury and is acting contrary to the advice of his advisers and the judgment of his departmental Ministers, as Johnny Mercer, the Minister for Defence People and Veterans until April of this year, told us last week. Mr Wallace refuses to accept that, where charges are brought against a person subject to service law for serious cases of murder, manslaughter, rape or serious sexual offences allegedly committed in the United Kingdom by a person subject to service law, there should be a presumption that the accused should have the “common-law right” to trial by jury. Let us spell it out clearly again. If you join the services, you lose the common-law right to trial by jury—which is very much part of the British tradition, as Mr Raab would have it.

In the Commons last week, Sarah Atherton, the Member of Parliament for Wrexham, who has made her way up from the ranks of the Intelligence Corps to the green Benches in the other place and to the chair of the defence sub-committee charged with studying this issue, voted against her own Government and in so doing lost her ministerial appointment.

15:30

Nevertheless, Leo Docherty, the Minister, said of her last night:

“I put on record our gratitude for that hugely important piece of work, which we will use as a lever to accelerate institutional change to ensure that women can thrive in military careers”.

It is rather ironic that a government Minister expresses his gratitude for Sarah Atherton’s work, which will ensure that women can thrive in military careers, while his Government reward her with the sack. What did that hugely important piece of work from Sarah Atherton reveal? Speaking on the debate on this amendment in the other place yesterday evening, she said:

“The House is aware that the Defence Committee’s inquiry into the experiences of women in the armed forces opened up a catalogue of harrowing evidence around sexual assault, rape, gang rape, poor standards of investigation, and the manipulation of power to deliberately disadvantage servicewomen in complaining or seeking justice.”—[Official Report, Commons, 13/12/21; cols. 824-827.]

She was joined in her opposition to and vote against the Government by three Conservative Members of Parliament with military experience: Tom Tugendhat, a lieutenant colonel who served in Iraq and Afghanistan; Johnny Mercer, who did three tours in Afghanistan as a commando officer attached to Special Forces; and Philip Hollobone, a territorial in the Paras for some eight years.

This amendment reflects the first recommendation of the review carried out by His Honour Shaun Lyons CBE. He achieved the rank of lieutenant commander in the Royal Navy at the age of 32. Later, he served as Chief Naval Judge Advocate for three years. Later, as a judge in the Crown Court, he was ticketed to try, with a jury of 12, all the serious cases that we are concerned with and which he said should be heard in the ordinary courts of this country.

On the Government’s side, Sir Richard Henriques in his report was content with concurrent jurisdiction. So be it. I have huge respect for Sir Richard and his career at the Bar and on the Bench, but I have not found a military element in it. I hope that all his recommendations and areas within his terms of reference will be accepted by the Government, but what were his terms of reference? They were:

“Policing, prosecutorial and other processes for addressing credible allegations emanating from overseas operations”—

nothing to do with what happens in this country.

He was required, in his first term of reference, to

“Build upon the previous Service Justice System Review”

by His Honour Shaun Lyons

“the recommendations of which MOD”

was then considering,

“and not undertake another broad review of the Service Justice System or investigate specific cases.”

His second term of reference was to

“Focus on setting the context for the future so that we can be sure that, for those complex and serious allegations of wrongdoing—against any of our forces—which occur in theatre on overseas operations, we have the most up to date and futureproof framework, skills and processes in place and can make improvements where necessary”.

His view on the jurisdiction for offences committed in the United Kingdom, is, as we lawyers say respectfully, obiter.

The minor alterations to the amendment before the House today reflect the trivial criticism advanced last time that I had omitted to refer to the other criminal jurisdictions in the UK. That is a pretty desperate argument, dreamed up, no doubt, by some intern in the Ministry of Defence.

In my previous remarks in support of my amendment last time, I dealt extensively with the problems of servicewomen reporting sexual offences up the chain of command, their treatment and their difficulties in giving evidence before a court martial panel of officers. Your Lordships will be pleased to hear that I shall not repeat it, but the evidence of the experienced social worker Paula Edwards, of the charity Forward Assist, given to the Atherton committee on 4 March, contains the essence. She was asked by the committee what support the servicewomen who came for help to her organisation received from the military. Her reply was, “None.” She said:

“They don’t get sexual assault screening. When they do make a complaint, it is often to a perpetrator or to somebody who victim-blames and makes that woman feel like she is to blame, like she was asking for it, which, of course, makes that woman have significant mental health problems, and it goes round in circles. A lot of the women do not get any support. The investigation isn’t fair or just and it has poor outcomes for women in the Military.”

That is the view of someone very experienced in dealing with the victims of sexual offences.

Last night, the current Minister of Defence People and Veterans, Leo Docherty, gave the reason for resisting this amendment:

“the Government believe very strongly that the SJS needs to retain the full complement of capability because our armed forces are expeditionary by design and our justice system also needs to be expeditionary”.—[Official Report, Commons, 13/12/2021; col. 815.]

The picture immediately springs to mind of a red-coated regiment marching through the streets packed with cheering, waving crowds to the sound of the regimental band, followed by a ragtag of lawyers, before embarking to go abroad on some colonial enterprise. We are not dealing with overseas expeditionary forces, but with serious criminal offences that occur on the soil of Great Britain and Northern Ireland.

In speaking further on this amendment, Mr Docherty’s big concession, repeated by the Minister today, was to promise improved statistics to cover all the offences listed in 2023. He said:

“We believe that this will increase the transparency of, and the confidence in, the service justice system, and we welcome this scrutiny … and it is right that data is available to hold the Government to account”.—[Official Report, Commons 13/12/2021; col. 814.]

My specific question to the Minister is whether that promised transparency will extend to publishing the precise terms of the protocol that is to be agreed between the Director of Public Prosecutions and the Director of Service Prosecutions on the question of venue, as other prosecutorial protocols are routinely published. I beg to move.

[Lord Morris of Aberavon (Lab)]

My Lords, it is with pleasure that I support the amendment in the name of the noble Lord, Lord Thomas of Gresford. It has been a long campaign since I first initiated a series of debates following the case of Sergeant Blackman for murder. I also note, as the noble Lord, Lord Thomas, has said, the proposals of the Lord Chancellor to embed the right to trial by jury in his reforms, as was referred to this morning. It would be gravely inconsistent of the Government to declare this right in statute while denying it to service men and women.

The right to trial by jury—the right to trial by one’s peers—goes back to Magna Carta, with all the protections that have been hammered out over the years for majority verdicts, announced publicly, with everyone knowing exactly what is happening and the careful directions that are given to juries. It should be the right of every serviceman and every servicewoman, too.

[Lord Thomas of Cwmgiedd (CB)]

I rise to support Motion A1 in the name of the noble Lord, Lord Thomas of Gresford. The key issue is trial by jury. I completely accept the improvements in the service justice system—I saw them in my former role as Lord Chief Justice. However, the Minister does not grapple with the fundamental issue: why take away the right to trial by jury? It is important, because sometimes Ministers misspeak on the “Today” programme, to see what the Deputy Prime Minister wrote in this morning’s Times:

“Trial by jury is another ancient right, applied variably around the UK, that doesn’t feature in the ECHR, but will be in our bill of rights. We should be proud of our history of liberty—and preserve a human rights framework that promotes it.”


It seems inconsistent with that declared policy of Her Majesty’s Government that the Ministry of Defence opposes the fundamental right of trial by jury for those who put their lives at risk for our country. That is what this amendment has at its heart.

It seems to me that by their support of this amendment in the course of debate, the Opposition have accepted that a mistake was made in 2005 when the right to trial by jury was taken away from those in the armed services for these very serious offences. Why does the Ministry of Defence not have the courage to admit that a mistake was made and restore the fundamental right of every member of the Armed Forces to trial by jury for these most serious offences?

[Lord Craig of Radley (CB)]

My Lords, I give a cautious but warm-hearted welcome to the remarks and undertakings from the Dispatch Box by the Minister about my amendment. She will recognise that the amendment last week required a report from the Secretary of State about why he, and so central government, should not have statutory authority or due regard. As the Government have stated in both Houses that they have reached the view that legislation is not necessary, it should not have been unduly onerous or difficult for them to explain why in a report to both Houses in the six-month timeframe. Now, however, I sense a changing view and the need for a longer period before making a report.

This change of view is most welcome. It has effectively been demonstrated since Report by the decision of the MoD to refer the case of the Hong Kong Military Service Corps to the Home Office, from one central department to another, dealing with a veterans issue that could not be gripped at devolved or local authority level. However, the MoD must continue to discharge its responsibilities to those veterans. It must continue to take an active interest in their plight until the Home Office responds. Will the Minister give that undertaking now? It should not need to wait for further consideration under the Nationality and Borders Bill when it comes to this House. My hope is that the Government will take “nonne” or a “ne” rather than a “num” approach in answering the request and reporting on why central government must have a legal covenant duty of due regard.

I am very conscious that time is pressing to gain Royal Assent, without which the Government have no statutory right to military forces. I was also somewhat reassured by the Minister’s statement in the other place, so I have not moved any further amendment. I thank the Government for conceding that the role of central government must be considered and reported upon to Parliament.

15:45

[Lord Coaker (Lab)]

My Lords, let me say once again that Her Majesty’s Opposition support the Bill; we have sought only to challenge the Government to improve it. I believe that, including today, it has been a very good debate in your Lordships’ House, with important contributions from all parts of the Chamber. As we have seen, this has led to many important clarifications and further commitments from the Government. In this, the House has been helped by the approach of the Minister, who has been both engaging and constructive in the work that she has done.

We accept the Government’s Motions A and B as sent back to the House today, but we remain determined to hold the Government to account as we go forward, ensuring that commitments made on the record—both in this House and in the other place—are indeed met. We remain disappointed that the Government have not agreed to Motion A1 in the name of the noble Lord, Lord Thomas of Gresford, which we have supported all along.

We will want to test the Government on the commitments that they have made on transparency. Leo Docherty MP talked about all sorts of statistics, which were now to be used by the Government to enhance transparency with respect to serious violence, serious sexual violence, the recording of sexual offences against under-18s and so on—and these will be included in the annual report. When reporting those statistics, however, what will happen if problems remain despite the Government’s belief that the service justice system, as it is to be constituted, will improve the situation? What if the situation does not change? Will that be the time, perhaps, for the Government to consider Motion A1 in the name of the noble Lord, Lord Thomas of Gresford, supported by the noble and learned Lord, Lord Thomas of Cwmgiedd, and my noble and learned friend Lord Morris of Aberavon? It would be helpful if the Minister could say how the Government will judge the statistics that they are committed to publishing with respect to dealing with sexual violence and sexual offences within the criminal justice system.

I turn to the amendment in the name of the noble and gallant Lord, Lord Craig, and, much as he has done, welcome the changes and further commitments that the Government have made on reporting with respect to the covenant, its scope and its extension to government—so that government itself must have due regard to it—with the first annual report to be published in 2023, and an interim report in 2022. We welcome that, but what happens if these reports show that change is needed, and how will they be reported to Parliament?

We believe that the Government have moved forward, making concessions and additional commitments. We thank the Minister for ensuring that the debate has taken place and has been used to inform decisions in the Ministry of Defence; I am sure that all your Lordships welcome that. However, as the Minister knows, serious questions remain around the amendment of the noble Lord, Lord Thomas of Gresford. We look forward to seeing how these will be dealt with as we go forward.

It would not be appropriate for us to allow the Bill to pass today without once again praising the bravery and professionalism of our Armed Forces. As well as their duty abroad, they are once again to be called upon to help in the fight against the pandemic. Whatever discussions and debates we have, they should know that this Chamber, and all your Lordships, recognise that duty and service as we pass this Bill. We will never, and should never, take that for granted.

[Baroness Goldie (Con)]

My Lords, I start by echoing the sentiments of the noble Lord, Lord Coaker, because throughout the Bill’s progress in this House, we have genuinely had well-informed debates which have been extremely helpful in the scrutiny of the legislation. I again pay tribute to all who have facilitated that positive review of it. I also thank the noble Lord for his kind remarks.

Let me try to deal with some of the points which have arisen. In relation to the service justice system, there was a sense of reprise of previously presented arguments. I know they were presented in good faith. Some have now been addressed by the Government, but, as your Lordships will be aware, others they reject. We have a fundamental point of principle here, which is that some of your Lordships feel that there should be a bias and an explicit tilt towards the civilian system, while the Government are not convinced that that is in the interests of the service justice system or of those who would have to use it. What matters is that the service justice system is robust, which it is, and this Bill introduces many improvements to it.

I do not want to bore your Lordships by repeating the arguments I have previously adduced as to why the Government support the approach of concurrency of jurisdiction. I simply observe that trial by jury is not a part of the service justice system, but we require a system which works both overseas and across the United Kingdom, is professional and has capability and capacity. That is what this Bill provides.

The noble Lord, Lord Thomas of Gresford, asked me specifically about publishing the detail of the protocols. I would direct him to Clause 7, creating a new Section 320A, and to subsection (8) of that, which directs that the current version of the protocol must be published in whatever manner the directors think appropriate.

I thank the noble and gallant Lord, Lord Craig of Radley, for his kind remarks and his acknowledgement of the Government’s willingness to hear his concerns and to seek to address them. I am not a position to deal with the specific point that he raised, but he will know that announcements are likely in the near future.

The noble Lord, Lord Coaker, raised two issues. He asked what would happen if the publication of the more detailed data and statistics for the service justice system caused concern. I said that we are very clear as a Government that that additional data will help to inform us as to where we may need to make adjustments or where improvements may be necessary if issues arise which occasion concern.

On the covenant, the noble Lord asked a similarly aligned question about the reports: what if they suggest that the positive progress we all want is not being made as effectively as we would hope? First, that will inform the Government, but, secondly, as his honourable friend in the other place said, it is the job of opposition to hold the Government to account and to scrutinise. I absolutely agree with that; that is what the Opposition exist to do. I know that the noble Lord, Lord Coaker, is an exemplar of holding me as a Defence Minister to account, and I am sure that formidable and tenacious approach will continue.

What this Bill and our debates are all about, and what we try to do in improving this legislation, is of course for the benefit of our Armed Forces. All of us are very conscious not only of what they have done over time, of the sacrifices they make and of the commitment they give, but, perhaps very particularly at this time, of the extraordinary support they have been giving to the country during the pandemic. I know that your Lordships will want on behalf of this Chamber to express our unqualified appreciation—

[Lord Thomas of Cwmgiedd (CB)]

Before the Minister sits down, I would be grateful if she could write at some point saying why trial by jury is not being conceded for members of the Armed Forces. It may require some legal argument. I would be delighted to read it.

[Baroness Goldie (Con)]

I will address the noble and learned Lord’s point in a moment, but if I may continue with my tribute, it is very important for this House to send a message to our Armed Forces that we absolutely value everything they are doing. I am particularly conscious of that at this time. Their contribution is extraordinary and invaluable to the country, and we would want them to know just how much we appreciate that.

The noble and learned Lord will be aware that the jury system is not part of the service justice system. It is the view of the Government that the service justice system is robust, that this Bill will make distinct improvements to it and that it has to operate in a manner which makes it fit for purpose both overseas and across the United Kingdom. That is what this Bill does. I beg to move.

[Lord Morris of Aberavon (Lab)]

If the Minister will allow me, will she deal with the inconsistency between the Lord Chancellor’s remarks this morning that he seeks to embed the right to trial by jury in statute and the fact that, at the same time, this is being denied to service men and women?

[Baroness Goldie (Con)]

I think the noble and learned Lord overlooks the tradition of the service justice system and why we have such a system. That has been one of its characteristics over decades: that is the character of the system. It exists to serve a particular purpose, which most people in this Chamber acknowledge, and that is why it has different characteristics from the civilian justice system.

[Lord Thomas of Gresford (LD)]

My Lords, I thank everybody who has contributed to this debate. Many fine words have been said and two issues have really come forward. The first is the denial of the right to trial by jury to members of the Armed Forces—they sign away that right when they join up. This issue will not go away but will rumble on and on.

The second issue relates to victims and the problems so clearly delineated to Sarah Atherton’s committee. She had representations from more than 4,000 women serving in the Armed Forces, all going the same way. Indeed, one person from an NGO which helps them said she was looking after 600 servicewomen, none of whom wanted trial by court martial; all wanted their right to have a trial in the ordinary courts so that the alleged transgressors could be brought to justice in the ordinary way.

This is absolutely fundamental to the constitution of this country. Regarding what the noble and learned Lord, Lord Morris, said a moment ago, in his press release today Mr Raab talked about the Magna Carta, the Bill of Rights, the Slave Trade Act and so on, calling them to his aid in supporting the right to trial by jury. It is a simple point.

I am very conscious that there are good things in this Bill that I have worked for for ages, such as majority verdicts in courts martial. I do not want to see this Bill fail, nor do I want the military to be let loose at this particular time by this Bill falling for lack of time. Therefore, I do not propose to press my amendment, but I hope we will come back to this issue. I hope that that will not be in five years’ time with our next Armed Forces Bill but that, once statistics emerge and show us the true situation, the Government will have the guts to admit that they were wrong.

This is not a historic thing going back decades. Jurisdiction was given to courts martial to try murder, manslaughter and rape in 2006, so this is barely 15 years old. Consequently, it is not a great military tradition— if it is being presented in that way. Up until that time, the service justice system insisted that offences committed by servicemen in the United Kingdom, on the soil of this country, should be tried in the ordinary courts. I hope we get back to that very quickly. I will not press the matter and beg leave to withdraw Motion A1.

Motion A1 withdrawn.

Motion A agreed.

16:00

Motion B

Moved by

[Baroness Goldie]

That this House do not insist on its Amendment 2B, to which the Commons have disagreed for their Reason 2C.

2C: Because the proposed legal duty is unnecessary having regard to the Government’s existing obligations.

Motion B agreed.

Education (Environment and Sustainable Citizenship) Bill [HL]

Report stage
Tuesday 14th December 2021 Lords Chamber

Report

16:01

Report received.

Health and Social Care Act 2008 (Regulated Activities) (Amendment) (Coronavirus) (No. 2) Regulations 2021

Tuesday 14th December 2021 Lords Chamber

Motion to Approve

16:01

Moved by

[Lord Kamall]

That the draft Regulations laid before the House on 9 November be approved.

Relevant document: 21st Report by the Secondary Legislation Scrutiny Committee (special attention drawn to the instrument).

[The Parliamentary Under-Secretary of State, Department of Health and Social Care (Lord Kamall) (Con)]

My Lords, I will make a Statement on measures to make sure that our health and care system is as safe as possible in the battle against Covid-19 by making vaccination a condition of deployment for more health and social care settings.

Across the UK, the overwhelming majority of British people have played their part by getting vaccinated against Covid-19. Over 81% of people over the age of 12 have had two doses, a figure that rises to around 91% when you look at NHS staff. The impact of this outstanding vaccination effort is clear. The UK Health Security Agency estimates that at least 127,000 deaths and 24 million infections have been prevented as a result of the Covid-19 vaccination programme. In addition, around 260,000 hospitalisations have been prevented in those aged 45 years and over.

But we still need to do more. Uptake rates vary between different health and care organisations and across the country, and, despite the incredible effort to boost uptake across the country, over 94,000 NHS staff are still unvaccinated. It is important that our health and care staff get jabbed to protect the vulnerable who are in their care and to protect the NHS workforce in the wake of new variants, such as omicron. We made vaccination against Covid-19 a condition of deployment in care homes from 11 November this year. Contrary to initial fears, we are not aware of any care home closures where vaccination as a condition of deployment has been the primary cause.

Today, we are putting before your Lordships the regulations to extend this requirement to health and other social care settings, including NHS hospitals and GP and dental practices, regardless of whether a provider is publicly or privately funded. Anyone working in health or social care activities regulated by the Care Quality Commission will need to be vaccinated against Covid-19 if they are deployed to roles that have direct contact with patients or service users, apart from a few limited exemptions—for example, for medical reasons.

I hear the concerns that have been expressed or raised about the impact of these measures on the workforce, especially during these winter months. For this reason, we are allowing a 12-week grace period to give people the chance to make the positive choice to get protected. We are committing to enforcement of the requirements by 1 April next year, subject to the will of Parliament.

We are also increasing the number and diversity of opportunities to receive the Covid-19 vaccine, using the booster campaign to make the most of walk-ins, pop-ups and other ways to make sure that people are getting the vaccine as easily as possible. The NHS has already written to all providers providing early guidance, setting out what vaccination as a condition of deployment means for the system, as well as advising on next steps to boost uptake and help to ensure smooth implementation. After consulting on the policy in September, we have seen a net increase of over 55,000 NHS staff vaccinated with a first dose.

These steps complement key interventions that we have made to support services, including bolstering capacity across urgent and emergency care and the wider NHS, including with a £250 million investment in general practice, £55 million for the ambulance service and £75 million for NHS 111, and publishing an adult social care winter plan, including £388 million to support infection prevention control and £162.5 million for workforce recruitment and retention. In addition, we have invested £478 million for support services, rehabilitation and reablement care following discharge from hospital, and we are ensuring that health and social care services are joined up.

Although the Government believe that these measures are a proportionate way of protecting those at greatest risk, we recognise that some noble Lords have asked whether we should or would extend these measures even further. So let me state clearly that although we have seen plans for universal mandatory vaccinations in some countries in Europe, we do not support them here. The Government have no intention of extending condition of deployment to other workforces or introducing mandatory vaccination more widely.

At this point, I would like to address head on some of the concerns your Lordships may have regarding concerns raised by the Regulatory Policy Committee and the Secondary Legislation Scrutiny Committee about these regulations. I sympathise with noble Lords who are concerned with some of the procedural aspects of the passage of this legislation, but in unprecedented times such as these it is right that the Government do everything in their power to protect the vulnerable.

The Government have responded to the concerns raised by the Regulatory Policy Committee and the Secondary Legislation Scrutiny Committee as quickly as possible and have provided further information to your Lordships, including on the actions on workforce capacity—as I have set out—and the steps we are taking in collaboration with the NHS and adult social care sector to mitigate the risks to small business, which is of particular concern to the Regulatory Policy Committee. An updated Explanatory Memorandum has been provided to Parliament, and the department’s consideration of the RPC’s concerns has been published on the government website.

The updated Explanatory Memorandum provides further information on the scientific and clinical rationale for the policy, the exemptions that have been provided and those not provided, and the steps we have taken to further encourage uptake of vaccinations and to mitigate workforce issues. The Secretary of State also wrote to all Peers on 10 December to set this out.

In these difficult times, we have seen the very best of those who work in health and care. We have seen care, compassion and conscience. Noble Lords across the House continue to pay tribute to the heroic responses across the health and care sectors. Today’s Motion is about protecting not only health and care staff but the patients in their care. By protecting patients and staff, we protect the NHS from being overwhelmed. I commend this Statement to the House.

[Baroness Chisholm of Owlpen (Con)]

My Lords, I just want to make a quick adjustment: we are of course debating the Health and Social Care Act 2008 (Regulated Activities) (Amendment) (Coronavirus) (No. 2) Regulations 2021.

Amendment to the Motion

Moved by

[Baroness Noakes]

Leave out from “that” to the end and insert “this House declines to approve the draft Health and Social Care Act 2008 (Regulated Activities) (Amendment) (Coronavirus) (No. 2) Regulations 2021 because Her Majesty’s Government have not published a full impact assessment”.

[Baroness Noakes (Con)]

My Lords, I thank my noble friend the Minister for introducing this order with his customary clarity. I tabled my amendment because when I read the excellent report of your Lordships’ Secondary Legislation Committee, I saw red. This was yet another set of regulations from the Department of Health and Social Care that came without an impact assessment. My amendment asks the House to decline to approve the regulations as a full impact assessment has not been published. I was informed by the Printed Paper Office yesterday afternoon that the impact assessment was in fact laid on Friday, which I had discovered online over the weekend. So, to an extent my amendment has been overtaken by events and I do not expect to press it to a Division. The Department of Health and Social Care is, however, still seriously in breach of its obligations in relation to impact assessments with this late document, and I shall move my amendment so that the issues can be debated.

The department published a so-called impact statement alongside these regulations, but noble Lords should be in no doubt that there is a big difference between an impact assessment and an impact statement. The impact statement amounted to nine pages and was in a rather large font size. The impact assessment amounts to 69 pages in a normal font size. The arrival of this impact statement so late is all the more shocking because it has been rated red and not fit for purpose by the Regulatory Policy Committee, which carries out the independent reviews of impact statements required by the Small Business, Enterprise and Employment Act 2015. It is a very unusual for the RPC to rate statements not fit for purpose, so this is a serious issue.

While my instincts are against the compulsion these regulations introduce, I was prepared to be persuaded if a good case had been made. In the absence of the analysis and evaluation accompanying the regulations, the case was not made. The very late impact assessment, together with the RPC’s views, raise many questions that cannot simply be answered by a couple of sentences from my noble friend the Minister at the Dispatch Box or, indeed, by revised papers put on websites late in the day. It suits the Government to operate in this way. They have become accustomed to making sweeping changes to our lives without meaningful challenge from Parliament.

The 21st report of the Secondary Legislation Committee is excoriating in its criticism of the regulations and the quality of the supporting material accompanying them. The noble Baroness, Lady Thornton, had tabled a regret Motion that captured many of these criticisms, and I am sorry she has pulled it, doubtless for political reasons. I agreed with it and would have supported it had she chosen to divide the House. My amendment focuses on impact assessments because this strikes at the heart of effective policy-making and, importantly, effective parliamentary oversight. On effective policy-making, it is a clear requirement on the Government that the development of policy should be subject to rigorous analysis and evaluation of options, set out in a Green Book. There is little evidence that this has taken place.

Secondly, the Government’s better regulation framework builds on that foundation and requires impact assessments to be prepared at the consultation phase for policy development, as well as at the final policy implementation stage—the stage we are now at. Regulatory impact statements at the final stage have to be independently appraised by the Regulatory Policy Committee, but it is voluntary at the earlier consultation stage. It came as no surprise to find that when the DHSC issued its consultation on this policy in September, it did not include an impact assessment, let alone have it independently assessed.

All this raises serious questions about the quality of analysis underpinning the Government’s policy formulation, which has been a concern throughout the pandemic. Some on these Benches have regularly challenged the lack of impact assessments for the policies pursued under the Covid banner. Regulatory impact assessments are required in order to evaluate burdens on business, primarily, but the bigger issue is whether the Government have considered the broader costs and benefits of their Covid policies. We have been particularly concerned about the lack of analysis of the non-Covid health harms as well as the non-health harms—in particular, to education and to the economy. Certainly, there has been little government analysis of this in the public domain.

The Government’s line has always been that they are not required to produce regulatory impact assessments for policies expected to last less than one year—an excuse not available for these regulations. That is technically correct, but it entirely misses the point, which is that good policy formulation requires a comprehensive analysis of costs and benefits, however long the policy is expected to last, and that is what the Green Book requires.

16:15

Let me now turn to the dimension of effective parliamentary oversight. Parliament cannot be expected to scrutinise legislation, whether primary or secondary, without access to full impact assessments. That means impact assessments issued on a timely basis with the related documents, not rushed out days or hours before parliamentary debate. Parliament deserves not only the assessments required by the 2015 Act but the broad analysis that should underpin good policy-making; and in the case of Department of Health and Social Care orders, that must include impacts beyond the health and social care sector.

For example, this impact assessment’s central estimate of the likely loss of staff to the health and social care sectors is 126,000. That is twice the number expected to be vaccinated as a result of the policy. So, it does the calculation but makes no real attempt to explore whether it is feasible to recruit sufficient new staff and what would actually happen if suitable staff were not available. This is more than a mere calculation of costs, because it could impact on service availability, as has been the experience in the care home sector. The Minister referred to no care home closing, but care home capacity has been cut back in many areas where it has not been possible to recruit suitable staff. All these impacts can be significant.

My amendment is, at its core, a plea for the Department of Health and Social Care to stop taking Parliament for fools. The department must respect the role of Parliament by facilitating rather than evading effective parliamentary scrutiny. That means full impact assessments for all significant policy interventions, whether of long or short duration; and, of course, it means they must be timely. At the very least, I hope the Government and, in particular, the Department of Health and Social Care will reflect on their duty to ensure that Parliament can do its job of oversight of the Executive. I beg to move.

[Lord Rooker (Lab)]

My Lords, I did not intend to contribute, but I just want to thank the noble Baroness, Lady Noakes, for that speech. I shall get Hansard tomorrow, make my little checklist and wait for what is coming from the other place—the borders Bill; the human rights Bill; the electoral reform Bill—and I will check off her claims about parliamentary scrutiny and believing in the House to see how sincere that speech really was.

[Lord Cormack (Con)]

My Lords, I would not doubt for half a second that my noble friend was entirely sincere. I also believe that she made some extremely powerful points which apply right across the legislative pattern, and which apply equally to both Houses. I hate to say this of a Conservative Government, but they behave as if they treat Parliament with contempt. Whether one is talking about Christmas tree Bills, Henry VIII clauses or the lack of impact assessments—a point made so very powerfully by my noble friend—the Government are found wanting. If we were marking in Greek letters the performance of the Government, I would, as an old schoolmaster, give them “gamma double-minus.”

It really is sad that we have a Government who are treating Parliament in this manner. I sincerely hope that, when he comes to reply, my noble friend the Minister will give a firm undertaking to draw the attention of his parliamentary masters in government to this debate and to the speech of the noble Baroness, Lady Noakes, in particular. They should read, mark, learn and inwardly digest it—to quote the collect for the second Sunday in Advent.

When it comes to the substance, I always deplore anything that smacks of retrospective legislation, because that again is treating Parliament with studied contempt. I know how difficult it has been during these last 18 months or more. We all know that—and we all know that mistakes have been made, sometimes with the very best of intentions. But it is deeply disturbing that there has not been a recognition that retrospective legislation is the very antithesis of democratic parliamentary government.

I have suggested many times, including very recently, that there should be a continuing committee of both Houses looking at Covid legislation and being able to pronounce on it quickly. I made this point only recently to my noble friend. He completely, I am afraid, misunderstood it and told me quite inaccurately that this was a matter for the Lord Speaker—but anybody who knows what the Lord Speaker is able to do and not able to do knows that that is fundamentally wrong.

I know that he is new to Parliament and is serving his apprenticeship with great distinction—we all appreciate that—but it is important that the powers that be realise that in an unprecedented situation unprecedented measures are sometimes needed. They have shown that by issuing diktats; they have not shown it by creating a vehicle for continuous parliamentary monitoring—and they should.

On the subject of compulsory vaccination, my noble friend Lord Bethell knows very well that I have been on about this almost from the very beginning, urging that care home workers should receive compulsory vaccination, and I believe that it is entirely logical to extend that to those who work, because people who come into close proximity to patients at their most fragile and their most vulnerable should not themselves be a potential risk to those patients. We know that in some care homes during the early months—I appreciate that it is much better now—you could find that 30%, 40% or even 50% of care home workers, looking after the most fragile and physically feeble of people, themselves not vaccinated.

How do you solve this? It is, of course, a combination of persuasion and cajoling, but at the end there has to be a point where you say that we cannot allow this to continue indefinitely. Therefore, I think on that point the Government are right and I am grateful for it.

However, we are a Parliament and therefore I come back, as I began, to the admirable speech from my noble friend Lady Noakes. She pointed out—as many others have over the past two or three years, particularly the noble and learned Lord, Lord Judge, who I think must go to bed with an image of Henry VIII by his bedside—how cavalier has been the treatment of both Houses of Parliament by the Government. We are approaching a new year. Let it be a resolution of the Prime Minister and all his Ministers that they are accountable to Parliament; they are not the masters of Parliament.

[Baroness Tyler of Enfield (LD)]

My Lords, I wish to make some comments about the actual substance of this statutory instrument, although I will start by saying that I have a lot of sympathy with what has already been said about the lack of proper parliamentary scrutiny and indeed the lack of an impact assessment, which is extremely regrettable.

As I have said in your Lordships’ House before, I am very sympathetic to the overall principle that both front-line health and care workers should be vaccinated. However, as I have always said, it must be handled in the right way, particularly given the absolutely acute pressures that both health and social care are under and will be over the winter months. It is absolutely critical that the right amount of help and support is made available to health and care workers who are genuinely vaccine hesitant—and that means things such as one-to-one conversations during work time in which they can express what their concerns are and, I hope, get additional information.

I know very well from personal experience that care homes that, for example, have brought GPs in to have one-to-one conversations, taken the concerns that care workers have expressed seriously and tried to explain why it would be a good idea to have the vaccine, have had an awful lot of success, and I am concerned that there is not enough focus at the moment on that help and support. It was very regrettable—this point was raised by the Secondary Legislation Scrutiny Committee —that the draft Explanatory Memorandum made no reference to any lessons learned from the rollout of the earlier care home regulations, as well as being silent on what contingency plans the department had to cope with the expected staff losses when the regulations take effect. I know that those staffing issues will be particularly acute in London, where I live.

I recently had a helpful meeting with Healthwatch, which shared with me some very good research. It commissioned an organisation called Traverse to undertake in-depth conversations with a range of people, mainly of African, Bangladeshi, Caribbean and Pakistani ethnicity, to understand the reasons for their vaccine hesitancy and what can be done about it. Although the research was carried out with the groups I have specified, I suspect that the conclusions drawn in the report have more widespread application.

I found it interesting that the attitudes expressed were incredibly personal to the individual. One of the lessons learned is that you cannot lump all this together and say, “This is the issue for this group”; you have to think very carefully about individual concerns. There was most clearly, as we know, a lack of trust, which featured strongly in terms of the vaccine, and there was very strong distrust of those who had any possibility of standing to gain commercially from the rollout, which I thought was an important point. Probably most notable of all, people said that they trusted most of all front-line healthcare workers to talk about Covid and the vaccine and had less trust in very senior people in the NHS or Public Health England, who were perceived to have less tangible experience. That interesting document ends with very seven practical tips: ways to try to encourage health and social care workers to become less vaccine hesitant.

I end by asking the Minister whether he is aware of this document—if he is not, I am very happy to send it to him—but, more generally, what steps the Government and NHS England have taken to promulgate this sort of important and practical good practice and advice?

[Baroness McIntosh of Pickering (Con)]

My Lords, I echo the words of my noble friend the Minister in introducing the regulations before us in praising the heroic efforts of the whole health service: the volunteers, nurses, doctors and pharmacists—everyone involved. The vaccination programme is essential, but I hope that GPs and practitioners will have the vaccines in time to roll them out. My noble friend is aware of my work with the Dispensing Doctors’ Association.

16:30

I want to focus on two particular aspects: the implications for the workforce of the regulations before us and the helpful questions and comments posed by the 21st report of the Secondary Legislation Scrutiny Committee in that regard. What has the impact been on the care home workforce of the compulsory vaccinations that the regulations require? I presume that the reports were accurate that a number of those who did not wish to have vaccinations left care homes to go and work in the NHS, which is now the subject of these regulations. Is that the case, and how many were involved in that regard?

I share the concern that has been expressed by the Secondary Legislation Scrutiny Committee in its report that non-care-home staff who are not in face-to-face contact with patients are exempt from the compulsory vaccinations, despite the fact that SAGE—which of course advises the Government closely on these issues—suggests that co-workers may be an important factor in transmission. I yield to no one in my admiration for my noble friend Lord Cormack in the work that he has done to ensure that care home staff are vaccinated, but it is a case of whether we should look at the wider helpers of those working in care homes.

Lastly, I have a question that follows on from a question at Oral Questions today on the retention, as well as the recruitment, of the workforce. I do not know whether I am reading paragraph 1.37 on page 63 of the impact assessment correctly, but it says:

“Given uncertainty in how provides”—

I presume that is meant to read “providers”—

“will respond to workforce shortages we have made simplifying assumption that replacement staff are available immediately from wider labour market and used band 5 wages as a proxy for all staff affected by this”.

What is the current recruitment and retention in care homes in particular, as so many in your Lordships’ House have raised concerns in that regard?

[The Lord Bishop of St Albans]

My Lords, I think many of us are grateful for the comments from the noble Baroness, Lady Noakes, about process and impact assessments, and I echo those.

I shall make one or two comments about the substantive issues. Incidentally, we have been thanking the Government and medics for the rollout, but I want to pay tribute to the people who are going to be sitting up half the night: the managers of GP practices—they are the ones who get people there to get the vaccine. Very often they are forgotten, so I want to make that point.

I want to make some points about the very real problems that there are with this way forward. I am very sympathetic and, on balance, I think this is the way forward, but for many decades we have taken very seriously those who have very real concerns about receiving a vaccination. Those are not concerns that I share personally, but there are those, for example, who are concerned about the use of aborted foetal cells or testing on animals. We—both myself and more widely in the Church of England—have always maintained the position that freedom of belief or religion should not be compromised by the introduction of any form of coercion or forced decree. This is difficult, because it is not just about someone’s right but about the effect that they have on someone else. Recently, I heard from someone who was jabbing—giving vaccinations—that someone came in without a mask on. They challenged him and he said, “I don’t get on very well with masks”, to which one of the nurses said, “Well, I hope you get on well with a ventilator.” That is the implication; we know what the medical science is.

The problem is that there is the danger of a subtle form of racial discrimination via the backdoor. Ethnic minorities comprise a much higher percentage of healthcare staff compared with the overall population. We know that they are more likely to be religious than the white British majority, and vaccine hesitancy is much higher among these communities. There is a whole range of complex issues to do with social trust and people’s position in society that I do not want to steamroller over without raising and putting on the record as we move forward with this programme. A worrying confluence of factors could leave those historically discriminated against being forced to choose between violating deeply held principles and unemployment. No one, whether white or from an ethnic-minority background, should be forced into that corner.

This raises the really important issue of how we are addressing vaccination hesitancy. I have been talking to the noble Lord, Lord Sharpe, about how can we help with that more widely across the globe. This is a reminder to those of us who are in touch with—particularly if you are in my line of business—black churches and so on that we need to up our game in addressing the reasons for vaccination hesitancy. We need to do it urgently, because the more that we can win the argument, the more we will save ourselves a lot of unintended consequences of discrimination that may result from these regulations.

[Lord Cunningham of Felling (Lab)]

My Lords, I declare an interest as a member of the Secondary Legislation Scrutiny Committee. Your Lordships will no doubt be delighted to know that, in January, I shall be leaving it—not by choice but because I have been cycled off.

At the heart of this dispute with the Department of Health and Social Care is the requirement, not option, that any department submitting secondary legislation—principally to this House, since it is almost never discussed at the other end of the Corridor in the House of Commons —should include an impact assessment. This is not an optional extra. It is not a take it or leave it. It is a requirement at the heart of the process. The committee is meeting at the moment—it may have concluded—and it has a Conservative chairman, who is very good. There is no predetermined disposition among its members to seek a confrontation with any government department. However, in this case, the Secretary of State and his department have point-blank refused to carry out an impact assessment. It is a challenge to Parliament and to the parliamentary process. That is what is taking place.

I agree with almost everything that the right reverend Prelate said about enforcing vaccination and I realise that there are some very serious problems to be resolved there. But that is not what the argument is about. It is about whether Parliament—in this case, your Lordships’ House—has the right to require any government department to produce an impact assessment about its proposals for legislation. It is quite a simple matter. It is not onerous in most cases. It is necessary for the committee to consider the impact assessment—along with other aspects of the legislation, of course—before reporting to your Lordships’ House. I did not hear in the Minister’s opening remarks a coherent explanation—and I have never received or seen one—of why that is not possible in this case.

As I said, your Lordships require their colleagues on the committee to analyse secondary legislation. That is our role and, if we do not have an impact assessment, we cannot fulfil it. That is the issue. I agree with what the right reverend Prelate said, but this is not about enforcing vaccination. It is about trying to learn to understand the impact, through an impact assessment, of this proposed secondary legislation. If committees are not allowed to take a stand on this, there is little purpose to them, because this is one of the fundamental issues of secondary legislation. That is our job and our responsibility and it is what we have been trying to do.

[Lord Framlingham (Con)]

My Lords, I had not intended to contribute to this debate, but I will say a few words. First, I am completely against any compulsory vaccination of any kind. It goes completely against all that we should believe in and I am totally opposed to it. Secondly, I recently put down two Written Questions to the Minister’s department: one about people who had been vaccinated and one about people who had tested positive with antibodies. I wanted to know the difference between the two; I wanted to know about protection from the disease and about transmission of the disease. The Answers that I got said, “We’re looking at it, but as far as we can tell at the moment, there is no difference”—it was 84% versus 85%. There is no difference between the protection that the vaccine offers and the protection given by antibodies in the normal course of events. Surely we are not going to vaccinate people who have the antibodies. It is absolutely pointless, particularly if they are thousands of schoolchildren. Can we not test people who have the antibodies and tell them that they do not need to be vaccinated? That seems to be common sense.

[Lord Hunt of Kings Heath (Lab)]

My Lords, it seems that we have come down to debating two specific issues. The first is, of course, the question of mandatory vaccination for healthcare staff and whether we should support it. The second is the way in which the Government have been treating Parliament over not just this issue but the hundreds of statutory instruments that have been brought in relation to Covid, many of them by the Minister’s department.

We are entitled to a full response as to why the impact assessment was published so late. As I said, I am afraid that this is not the first occasion. I have been following the work of Big Brother Watch over the Covid experience. It has set out clearly the hundreds of SIs that have been brought here retrospectively and the impact on parliamentary democracy. We all know that we are in the middle of a crisis and that, of course, the Government have to act quickly—we all understand that. Even so, the one thing that we are entitled to say is, if they are doing that, they should be able to produce the documentation to justify the action that they are taking.

The mandatory vaccination of healthcare staff was not a decision that was suddenly reached in the last few days; it has been trailed for weeks in the consultation. I declare my interest as a member of the GMC board. I am not speaking on its behalf, but the GMC and many other organisations responded to that consultation, so there is no excuse, in this instance, for there not to be a full impact assessment published alongside the SI so that my noble friend Lord Cunningham and his committee can consider it with ample time and we can then enjoy their recommendations to us.

16:45

A couple of weeks ago, two Select Committees of your Lordships’ House, the Secondary Legislation Scrutiny Committee and the Delegated Powers and Regulatory Reform Committee, produced two important reports. That of the latter, entitled Democracy Denied?, looked at what it saw as the urgent need to rebalance power between Parliament and the Executive. Each report contained a stark warning about a shift in power towards the Executive and both expressed considerable alarm, criticising the increasing tendency of Governments to adopt procedures that effectively bypass Parliament’s role in the legislative process by enabling Ministers to make the detailed laws that govern every aspect of how we operate. As the noble Lord, Lord Cormack, said, skeleton Bills or Christmas tree Bills giving Ministers huge powers have become not an infrequent passage but typical of each Bill brought before Parliament.

The problem that we have as a House is that, in effect, the veto power on secondary legislation is so huge that we hesitate to use it. The last time we did—if I remember rightly—the Front Bench opposite threatened to abolish the House of Lords. We talk about scrutiny of secondary legislation, but the reality is that we can have these debates and we can make our contributions but the Government will take absolutely no notice. That means that we must be very careful when it comes to SIs of this kind. I support this SI, but it is draconian—there can be no doubt about it. I think that it is justified but, my goodness me, to produce it without the proper supporting documentation is a contempt of Parliament.

[Baroness Walmsley (LD)]

My Lords, before I follow up my noble friend Lady Tyler’s comments, I want to say how much I agree with the noble Lord, Lord Cormack. The way in which this has been done—I agree also with the noble Lord, Lord Hunt—is absolutely shocking; it is a contempt of Parliament. I was horrified when I read the report of the Secondary Legislation Scrutiny Committee about how bad it was and how late the sort of impact assessment—I call it a sort of impact assessment —has been produced.

Of course, we do not need an impact assessment to know what the problem at the heart of this is, apart from the compulsion element, which I understand: it is the fact that so many people are hesitant and mistrusting about having a vaccination. We also know from the work of Healthwatch, mentioned by my noble friend, that the most effective way of addressing the problems that people have with the vaccination is to have a one-to-one discussion with them so that they can say what their problems are and have them addressed. It needs to be done with a person whom they trust—somebody who they believe has some knowledge and understanding of the issues.

The difficulty with doing this at the moment is that all those people are very busy. We have the winter problems coming up; we have the omicron variant of Covid-19 increasing day by day and our NHS is on the edge of falling over. So I have a little suggestion for the Minister. There are plenty of doctors and nurses relatively recently retired who for one reason or another are reluctant to come back into the front line at the moment. However, they retain the respect of the health community. I understand from the executive summary that the total cost of replacing members of staff who are likely to leave because, whatever happens, they do not want to have a vaccine is £270 million. Could not some of that money be used to get those doctors and nurses with the knowledge and the trust of their recent fellows to have those conversations, without interrupting the staffing of hospitals, where it is bad enough at the moment, as we have lots of vacancies? We know that we cannot take all those people out to have those conversations, because it takes time and it has to be done with sensitivity and consideration. Could not some of that money be used to bring back some of those very experienced people to have those conversations and, hopefully, to reduce the number of those who absolutely will not be vaccinated and, sadly, will leave the profession?

I shall ask the Minister one more question. A few weeks ago, I asked him whether patients had the right to request that they should be treated by vaccinated staff only. Whatever the Government do, it will not all be done until April, which is months away. So there will be lots of patients treated between now and then by people who are not vaccinated. I asked the Minister whether patients had a right to request to be treated by vaccinated people only. He very kindly wrote to me, but I am afraid he was not able to give me a definitive answer. Now all the work has been done on this statutory instrument, I wonder whether things have become any clearer on that issue.

[Baroness Bennett of Manor Castle (GP)]

My Lords, a great deal of concern about procedure has been expressed from all sides of your Lordships’ House. I have nothing to add on that, except to say that I share those concerns.

I have two specific questions for the Minister. The first builds on the comments of the right reverend Prelate the Bishop of St Albans, who talked about how we have to win the argument on vaccination and the concern about unintended consequences and potentially discriminatory outcomes. When I look at the impact assessment, it is focused entirely on the care and health sectors. For example, paragraph 126 refers to

“the possibility of negative behaviour change resulting from the policy. For example, a German experiment found that vaccination requirements increased anger among individuals with existing negative vaccination attitudes and led to a decrease in uptake”.

As far as I can see, there does not appear to be in this impact assessment any consideration of impacts outside the health and care sectors. If we are creating this process, it will have impacts right across society, not just in the health and care sectors. We are talking about systems thinking here: not just what making a decision in the health and care sectors means for the health and care sectors, but what it means across the whole of society. What are the negative impacts of people in general deciding not to get vaccinated because of this?

The second point I draw from a very useful briefing from the Homecare Association. I do not think anyone else has asked this question, and I feel I should ask it for the Homecare Association. It said that it is extremely concerned about the intention to legislate rather than persuade. It is asking about a contingency plan if, indeed, the results are towards the worst end of the impact assessment. What are the Government doing to plan for this situation, when we have already had 1.5 million hours of commissioned care not delivered between August and October because of lack of availability? If this gets much worse, what plans do the Government have to fill the gaps?

[The Deputy Speaker (Lord Duncan of Springbank) (Con)]

My Lords, there will be one winder taking part remotely, the noble Baroness, Lady Brinton. I hope we can go to her now.

[Baroness Brinton (LD) [V]]

My Lords, I declare my interest as vice-chair of the All-Party Parliamentary Group on Coronavirus and a vice-chair of the All-Party Parliamentary Group on Adult Social Care. The Minister started and ended his contribution to the House by saying this was a statement. I suspect the Minister is in no doubt now that this is actually a statutory instrument. I thank the noble Baroness, Lady Thornton, and also the noble Baroness, Lady Noakes, for her Motion, given the clear failings of the presentation of this statutory instrument. The Minister needs to hear the concern from every part of your Lordships’ House this afternoon, and it very gracious of the noble Baroness, Lady Noakes, to say that she will not press her fatal Motion, for all the reasons cited by the noble Lord, Lord Hunt.

The 21st report of the Secondary Legislation Scrutiny Committee states at paragraph 10:

“An EM … should be a freestanding, comprehensive explanation, and it should not be necessary to conduct extensive research into other documents in order to achieve an understanding of what an instrument does: we regard this EM as an example of poor practice.”


From these Benches we thank the Secondary Legislation Scrutiny Committee, including the noble Lord, Lord Cunningham, whose presence will be missed when he leaves it, for going further and collating as much other information as it could for your Lordships’ House. The committee is excoriating about the failures of the legislation, the Explanatory Memorandum and the guidance, including unclear definitions in law.

For example, what does “vaccinated to a complete course” mean? At what point does the booster jab become compulsory? Will whoever is checking check that the severely clinically extremely vulnerable have had their four doses instead of three? That would require access to very personal staff health information. There is no definition and there are no practical suggestions. The use of the term “registered person” is set out in the Health and Social Care Act 2008, but there is no explanation of who, in reality, in a hospital, has responsibility for checking that staff have had their vaccines.

This SI speaks of people with face-to-face clinical and non-clinical ancillary contact with patients and those who are directly involved in patient care having to have the vaccination. The guidance, however, is still not published to define what is and is not in scope. Does it include clerks on the wards? What about catering staff bringing meals? Does “not being vaccinated” mean that you have to stay a certain number of feet away from patients?

The Secondary Legislation Committee report also points out that non-face-to-face staff are exempt—but they can still mix with front-line staff at other times. Does the Minister think that Covid can tell the difference and that the virus will not transmit from an exempted co-worker to a front-line member of staff in the cafeteria? We know that omicron is bypassing the vaccinated, even if it is bringing possibly less serious disease—although we are waiting to see the evidence.

The government consultation document published on 10 December on vaccination says that more than 1.2 million social care workers in England have now taken up the vaccination. As of 19 August, vaccination take-up was around 87% of staff in younger-adult care homes; 81% of domiciliary care staff; and 75% of staff in other settings. In London, obviously, this is lower, as we all know. This data, however, directly contradicts the Explanatory Memorandum, which says that only 65% of care homes are meeting the 80% staff rate; so they are not even co-ordinating on their own data. The Government’s own data has shown that there has been a 3% reduction in social care staff since March. Some—not all—will have left because of compulsory vaccines. They are not just leaving the care home; they are leaving the profession. They are going into retail or hospitality, and we know that people, having left, often do not return.

I entirely agree with my noble friends Lady Tyler and Lady Walmsley that targeted help and support has worked with a large number of social care staff, as the Government’s own figures in the 10 December document demonstrate. The evidence is that the most effective way of changing the minds of vaccine-hesitant people is to give them a chance to sit down with a local doctor and their own community leaders, ask questions in their own time and listen to people that they trust. The problem with compulsion, especially short-notice compulsion, is that it removes the opportunity to take that time to listen, think, discuss and be reassured. Worse, as we are moving into another wave of the pandemic, doctors will not have the time to do this, whether it is with other NHS workers or with more social care staff.

Even more than that, the Government undermine their own arguments for urgency. At paragraphs 25 and 26, the Secondary Legislation Committee report points out that, in discussing making the flu vaccine compulsory, the department said that

“the government has considered the concerns raised in relation to introducing flu vaccination requirements. The flu programme runs between October and March, with most flu vaccinations happening October through January. Due to the need to balance this with the time necessary for health and social care to implement the regulations, the government has decided not to introduce vaccination requirements for flu at this time. The government will keep this under review following this winter and ahead of winter 2022-23.”

It seems extraordinary that, while this precedent has been set to delay one type of compulsory vaccination due to the time of year and the extreme pressures on the healthcare and social systems, the Government are insisting on doing it for another. The left hand does not know what the right hand is doing.

17:00

Finally, the noble Baroness, Lady Noakes, raises concerns about the impact statement as opposed to the impact assessment. Your Lordships’ House has already—repeatedly—had this debate and, once again, Ministers are treating Parliament with contempt. The difference between an impact statement and an impact assessment is that the latter must have third-party validation and be published on the legislation.gov.uk website, while a statement may be untransparent and unaccountable. The Minister is now hearing why noble Lords are concerned, and late-notice publication really is not helpful. I believe that the noble Lord, Lord Cormack, once again spoke for all of us who have spoken in this debate.

I hope that the Minister has some answers to all these contradictions. His concern for procedure is not matched by his department’s actions. Trust about the so-called “urgent business” is being squandered, given that our first debate on this matter was in July. The Government cannot argue that this is short notice. I hope that the Minister will give the House an undertaking that, in future, an impact assessment will be published in the proper way.

[Baroness Thornton (Lab)]

My Lords, I declare an interest as a non-executive director of an NHS hospital. I thank the Minister for explaining this statutory instrument, although I have to confess that I had a moment of panic during his opening statement. I thank him also for explaining his understanding of how the Government arrived at this point. I note that the department has at last produced at least something called an impact assessment, as well as other documentation. This was the subject of my Motion to Regret, now withdrawn. That does not mean that I no longer regret the lackadaisical manner in which this Government approach their accountability to Parliament and the legislative process.

As most noble Lords, including the noble Lord, Lord Cormack, have said to the Minister in clear language, we still wish to know how the legislation will operate. We hope that the Minister will be more forthcoming about, for example, the “significant workforce capacity risk” which the Secondary Legislation Scrutiny Committee mentioned in its very critical report. We note that the committee was damning in its criticism, and I thank my noble friend Lord Cunningham for speaking about the fact that these things are not an option but a requirement.

I say to the noble Baroness, Lady Noakes, that we agree with her criticism of the Government’s handling of these issues. We absolutely agree about the procedure, the drafting and the lack of justification that supports the legislation. I have been commenting on this from this Dispatch Box since March last year. However, the noble Baroness did not say that this was necessarily the wrong way to go. I withdrew my regret Motion because, today, given the new clear threat of omicron, we need to focus on the way forward. I do not believe that that is a political reason for withdrawing the Motion. Had the noble Baroness tested the opinion of the House on her fatal Motion, we on these Benches would have supported the Government, just as we are doing right now in the Commons. The Labour Party has acted, and will always act, in the best interests of our NHS, our public health and our nation.

Of course, we want everyone working in the NHS to take up the vaccine. It is safe and effective, and the Government should be focused on driving up vaccination rates through persuasion, education and support for the vaccine-hesitant, as many noble Lords, particularly those on the Liberal Democrat Benches, have said. We know that omicron is now a clear threat. It is important that the elderly and the vulnerable, and those being cared for in healthcare settings, are protected. Vaccination also protects staff from severe disease, so we will not oppose the Government on this.

Compulsory vaccination for NHS staff is a difficult question—of course it is—as the right reverend Prelate the Bishop of St Albans and my noble friend Lord Hunt explained to the House. We would all much prefer that all front-line NHS staff voluntarily agree to have the vaccine. The latest SAGE advice, however, suggests that omicron may increase the risk of hospital-acquired infections. Vaccination will not eliminate all transmission, but it will reduce the risks and protect both patients and staff in the NHS from severe disease. It may also reduce staff absences caused by Covid.

Of course, there is a precedent for certain NHS staff having to be vaccinated, for example against hepatitis, and given the evidence that being vaccinated reduces the risk of transmission, it is reasonable to ask whether those who are looking after our loved ones should themselves have taken every step possible to reduce the risk that they may pass the virus on to those whom they are caring for, many of whom may be elderly and vulnerable.

However, ahead of any rollout, the Government must ensure that this change does not make the staffing crisis in the NHS any worse and must work with the royal colleges, NHS Providers and the trade unions to agree a framework for how this change is rolled out. The trade unions and royal colleges have been critical of the proposals for compulsory vaccination, ahead of what will be, and is becoming, a very difficult and challenging winter for the NHS because of the implications this could have for staffing. So we welcome the fact that the Government have pushed the date back to April 2022, but we continue to be concerned about the implications that mandatory vaccination for NHS workers will have on staff shortages. We have asked the Government to set out a plan for this.

For the record, on the separate issue of mandatory vaccination for the public, the Prime Minister probably puzzled the whole nation—he certainly puzzled me—when he floated this idea. We are opposed to this—as is the Minister’s boss, I expect. We are opposed to the use of Covid status certification for access to essential services. Forcing the general population to have the vaccine would not only be wrong but impractical. The Government have not brought forward any measures to introduce this, and we would not support any future attempt to do so.

Finally, all of us want to enjoy Christmas safely this year. We all want to protect our NHS, which has been suffering from staff shortages and record waiting lists and has been performing miracles for the last 18 months. Our best defence against all variants of the virus, including omicron, is that we all get vaccinated.

[Lord Kamall (Con)]

My Lords, I thank all noble Lords for taking part in this debate. I apologise to noble Lords for getting the terminology wrong at the beginning. I will make sure that that is corrected in future.

I thank my noble friend Lady Noakes for raising this important issue, and for challenging us and rightly holding the Government to account on many procedural issues. I accept that your Lordships perform an essential role in scrutinising the measures that we have put forward today. That is one of the things that makes me very proud to be a Member of this House. I recognise the strength of feeling of your Lordships for and against what we are proposing and about the procedures thus far. I know that these feelings are sincere and heartfelt.

I now turn to some of the point raised by noble Lords. My noble friends Lady Noakes and Lord Cormack and the noble Baroness, Lady Brinton, raised questions about the red-rated impact assessment from the Regulatory Policy Committee. I hear the concerns of this House, and I acknowledge that, due to the necessity to move as quickly as possible and minimise the risk to those who are vulnerable, we were unable to publish the full impact assessment alongside the regulations being laid. We set out a statement of impacts, and the full impact assessment has now been published on GOV.UK, but I accept the argument made by noble Lords that this is rather late. We have also now published additional consideration of the points raised by the RPC in relation to private businesses.

My noble friend Lady Noakes also asked what the Government have done in response to the criticisms of regulations from the Secondary Legislation Scrutiny Committee. I reassure noble Lords that we have published the updated Explanatory Memorandum to provide additional information on the specific concerns raised. I also accept the criticisms that this could have been more timely. This includes more information on the scientific and clinical rationale for the policy, the exemptions that have been provided for, those not included, and the steps that we have taken to further encourage uptake of vaccinations and to mitigate work- force risks.

The SLSC also raised concerns about the impact assessment on process. We have worked hard and as quickly as possible to finalise the impact assessment that we feel best captures the likely impact of this novel policy in the uncertain circumstances that we are still living through and the need sometimes to react quickly. As my noble friend Lady Noakes rightly said, this impact assessment was laid before the House in advance of this debate.

My noble friend Lady Noakes also raised the question of whether a cost of £270 million is value for money, considering the impact assessment. While it is not possible to model the non-monetised benefits that this policy would have due to the limited data available, the health benefits through reduced infections and deaths among health and care users—as well as the wider community—from the workforce being vaccinated are likely to be large and should be considered when focusing on costs.

A key benefit is the impact of reassurance to patients and care users that they are being looked after by staff who are vaccinated. This avoids the very dangerous situation of people feeling wary of going to the NHS and other health and care providers, which can have dangerous long-term implications regarding health outcomes for our society. This is non-monetised, yet it remains a highly significant factor.

My noble friend Lady Noakes also asked about the workforce impact of this legislative instrument. As of 5 December, 521,000 staff in all care homes, or nearly 96%, have been vaccinated with the first dose, and 511,000 staff, or 94%, are reported to have received a second dose based on responses from 99% of providers. Although NHS workforce figures are dynamic as people join and leave, since the Government consulted on the policy in September, the latest published figures show an overall net increase of NHS staff vaccinated with a first dose of over 55,000.

My noble friend Lady McIntosh also raised valid questions about the impact on the social care workforce. We are not aware of any care homes where VCOD is the primary reason for closure, but we continue to work with our regional assurance team, which works closely with regions across the country to understand the local and regional pressures, and offer support and advice as appropriate.

In social care, we have already put in place a range of measures to help local authorities and providers to address workforce capacity pressures; indeed, I have announced some of those in this House. As in healthcare, there will be a 12-week grace period for workers in the wider social care sector before requirements come into force, which will give all unvaccinated staff time to get their jab. We are focusing every effort on promoting and encouraging vaccine take-up across social care, and £300 million was announced for the workforce on Friday 10 December to support the care sector over winter.

My noble friend Lord Cormack, the noble Lords, Lord Cunningham and Lord Hunt, and several other noble Lords have eloquently raised points about the use of retrospective legislation and emphasised the importance of parliamentary processes. I sympathise with noble Lords who are concerned about some of the procedural aspects of the passage of this legislation.

As my noble friend Lord Cormack rightly said, in unprecedented times such as these it is right that the Government do everything in their power to protect the vulnerable. Vaccination is our best defence against Covid. It reduces the likelihood of infection and therefore helps to break chains of transmission, as the noble Baroness, Lady Thornton, rightly acknowledged. It is safe and effective. The legislation will protect those receiving care in all health and social care settings as well as our valuable health and social care workforce themselves.

I agree with my noble friend on the point about reviewing the use of such legislation. I assure noble Lords that Regulation 5 sets out the requirement for the Secretary of State to carry out an annual review of these regulations, taking into account clinical advice and accessibility and availability of authorised vaccines, and to publish a report setting out the conclusions of this review.

On my noble friend Lord Cormack’s suggestion of an ongoing Joint Committee, I apologise if the response I suggested was inaccurate. I suggest that I discuss it with him so that I can learn from his experience of parliamentary procedures.

The noble Baroness, Lady Tyler, referenced the importance of encouraging the hesitant. I completely agree. We both come from the same part of London; indeed, she informed me that we went to the same school. We come from an incredibly diverse area, and we understand the different concerns and pressures in many of these communities; as noble Lords will recognise, I myself come from one of these communities. But as she will know, the NHS has focused in recent months on a targeted approach to improve uptake in hesitant groups by undertaking campaigns not only based on function, such as at midwifery staff, but directed at different communities, such as ethnic-minority groups and students, as well as using the booster campaign as an opportunity to re-engage staff. I repeat my gratitude to noble Lords across the House who have suggested to me ways that we can address many of these communities, including working with interfaith communities and networks which really understand these communities and have the trust of many individuals.

17:15

To maximise uptake over the winter months, the NHS’s plan includes a range of strategies. We have increased the number and diversity of opportunities to receive the vaccine. Many noble Lords will be aware of pop-up centres, pharmacies and mobile units available. It has come to this: we have to go out and take services as close to those communities and individuals as possible.

The right reverend Prelate the Bishop of St Albans echoed the vital importance of engaging with faith groups throughout; I recognise that. That is why, to maximise uptake over the winter months, the NHS is planning further increases in engagement, targeted at the communities where uptake is the lowest. We will look to have those one-on-one conversations, and to recognise and identify people who are trusted and who can help those conversations.

The noble Baroness, Lady Walmsley, spoke about the importance of encouraging uptake, noting the challenge with the winter months ahead. This is why we are ensuring one-to-one conversations for all unvaccinated NHS staff with their line manager, which take place with clear guidance. On her point on funding, the Government are making key interventions to support NHS services over the winter. This includes £478 million for support services, rehabilitation and reablement care following discharge from hospital, and ensuring that health and social care services are joined up. She also asked whether patients can ask whether staff treating them are vaccinated, prior to enforcement. I assure the House that there is no specific entitlement for patients in NHS facilities to ask whether the staff treating them are vaccinated but, once the regulations come into force, patients and service users will have confidence that all staff interacting with them as part of a CQC-regulated activity are either vaccinated or exempt.

The noble Lord, Lord Framlingham, noted recent data on the effectiveness of vaccinations against the new omicron variant and asked about the difference in protection between vaccination and infection antibodies. I emphasise to noble Lords that vaccination remains the best defence against Covid-19. There is also significant evidence that vaccines are effective at preventing infection and will therefore reduce transmission. We have not yet identified similar strength of evidence for natural immunity. The uncertainty around natural immunity and protection makes it difficult to consider this as an alternative to vaccination at the moment.

The noble Baroness, Lady Brinton, asked an important question about which health and care workers are in scope of policy. Those in scope include staff who have direct face-to-face contact with patients and service users in either secondary or primary care, community settings and wider care settings. This includes, for example, doctors, dentists, midwives, nurses, paramedics and social care workers. Also in scope are ancillary staff who may have social contact with patients but are not directly involved in patient care. This group includes receptionists, ward clerks, porters and cleaners. She also asked about the definition of a complete course of vaccination. The current definition is two doses, but we will keep this under active review and, in light of the omicron variant, will not hesitate to act if necessary to update that guidance at a suitable time to refer to three doses. All health and social care staff providers and staff are encouraged to follow national guidance.

The noble Baroness, Lady Thornton, asked what is meant by “registered provider”. A registered person is defined in Regulation 2 of the 2014 regulations as a person registered with the Care Quality Commission who is, in respect of a regulated activity,

“the service provider or registered manager in respect of that activity”.

She spoke of the threat that omicron poses, and I thank her for those comments. She also raised concerns about the workforce impacts. NHS workforce figures are constantly updated as people join and leave, but we can see that, since the Government consulted on the policy in September, the latest published figures show an overall net increase of staff vaccinated with a first dose of over 55,000. Our best mitigation, as identified in the advice of many noble Lords, is to encourage people to have that positive choice and take up the vaccine.

While vaccination has been and remains our best line of defence, I recognise that this is an emotive issue on many fronts. I also recognise concerns over civil liberties and parliamentary procedures. Whether in our care homes, our hospitals or any other health or care setting, it is an important duty of everyone working in health and social care to avoid preventable harm to the people they care for. People working in health and social care are often in close contact with some of the most vulnerable people in our society. That is the nature of the job and much of the reason behind our heartfelt gratitude and respect for the work they do. However, we know that those vulnerable people are more likely to suffer serious health consequences if they catch Covid-19.

The Government hear and recognise the concerns that have been raised about the impact of these measures on the workforce, especially during these winter months, but we continue to insist that mitigation against these risks is to keep driving uptake. We continue to encourage health and care workers to protect themselves and protect the people they care for before the deadline. The 12-week grace period allows time for both workforce planning and for more colleagues to come forward and get the jab. I recognise the concerns raised by noble Lords on a number of issues.

I am grateful for noble Lords’ contributions, for their passion and sincerity, and for the advice given to me to take back to my department. In the face of this virus that has harmed countless lives and livelihoods, we must do what we can to keep the British people safe. The measures before us will help us to do that and I hope in future that we will be able to improve on the procedures that we have adopted. I take on board the legitimate concerns about the procedures and I will take these back to the department.

I commend these regulations to the House.

[Baroness Noakes (Con)]

My Lords, I thank all noble Lords who supported the points I made about needing better information for parliamentary scrutiny of government policy. This was very ably led by my noble friend Lord Cormack who put it very well when he talked about treating Parliament with contempt. That was echoed by a number of noble Lords. It was very good to hear from the noble Lord, Lord Cunningham, from his perspective on the Secondary Legislation Scrutiny Committee, which has served this House very well, particularly in relation to this order.

I am sorry that the noble Lord, Lord Rooker, questioned my sincerity in bringing these points to the House. I am a mere Back-Bencher; I was trying to make the kind of points that Back-Benchers should be making about effective parliamentary scrutiny. I cannot be held accountable for what the Government do in bringing legislation in the future, so I would encourage him not to try to use my speech as a checklist against future primary legislation brought to your Lordships’ House. This will not be my fault.

I am grateful for what my noble friend the Minister said. He accepted my criticisms with good grace and did not seek to defend the indefensible. As to the future, I would have hoped to have something a little more encouraging than that he hoped they would do better in the future and that he would take the matters back to his department. I hope he will take the matters raised back to his department but with a stern resolve to get them dealt with better next time. With that, I beg leave to withdraw my amendment.

Amendment withdrawn.

Motion agreed.

Metropolitan Police: Stephen Port Murders Inquest

Tuesday 14th December 2021 Lords Chamber

Commons Urgent Question

The following Answer to an Urgent Question was given in the House of Commons on Monday 13 December.

“I am sure the thoughts of the whole House are with the families and friends of Anthony Walgate, Gabriel Kovari, Daniel Whitworth and Jack Taylor. The stories we have all read, of their lives and terrible deaths, have moved and horrified the country.

The Government and the people we serve expect the highest standards from the police as they carry out their vital work protecting the public and investigating serious crimes. The conclusions of the inquest have shown that those standards were not met and that investigative failures probably contributed to the deaths of three of the young men. The Metropolitan Police has accepted as much. There are now serious questions for it to answer. It is profoundly important that the force takes responsibility for past failings and makes sure they are not repeated.

The primarily accountability body for the Met is the Mayor of London and the London Assembly, but the Metropolitan Police Service has assured us that it is putting in place significant improvements, including: more and better trained investigators; new structures so that intelligence teams, specialists and officers on the ground can work more closely to identify and link crimes much earlier; and work to develop a greater understanding of the drug GHB and its use as a weapon in sexual assaults. It is also essential that the police build trust with all London’s communities and that includes the LGBT+ community. I know that the commissioner and her team are committed to doing so, at a time when the trust the public have in them has been seriously shaken by recent events.

It is, of course, right that the police handling of cases such as these is subject to independent scrutiny. Her Majesty’s Inspectorate of Constabulary and Fire & Rescue Services has been asked by the deputy Mayor of London and the commissioner to conduct an inspection into the standard of the Metropolitan Police Service’s investigations, and the Independent Office for Police Conduct is now assessing whether to reopen, either in full or in part, the investigation into the way that the Metropolitan Police Service handled the inquiries into the deaths of these young men.

The police perform an enormously important function in our society. It is a job that, on the whole, they do with skill, courage and professionalism. Only last Thursday, I attended the police bravery awards and heard stories of selfless heroism, but when things go wrong it is profoundly important that lessons are learned and applied. We will continue to hold the Metropolitan Police Service and the Mayor’s Office for Policing and Crime to account in making sure that the failures highlighted by these truly awful cases are addressed.”

17:23

[Lord Coaker (Lab)]

My Lords, this an incredibly serious inquiry that we are discussing in this Urgent Question. Four men were vilely murdered by a man who targeted young, gay men. They were failed by the police and the system. The jurors’ verdict that fundamental failings in the police investigation probably contributed to three deaths is serious in itself, but equally, the families and partners have raised concerns about homophobia blighting the investigation and the way they were treated. They have accused the Metropolitan Police of being prejudiced and institutionally homophobic.

Given how serious this is, is there not a need for an independent inquiry which, unlike the other inquiries already announced, including that of the noble Baroness, Lady Casey, will look specifically at whether homophobia was involved in this investigation, and lessons learned for the police not only in London but, crucially, across the country, rather than trying to keep it under review, as the policing Minister said in the other place just yesterday? We cannot change the past, but we must do all we can to ensure it does not happen again. The victims of this horrific crime need to at least know that.

[The Minister of State, Home Office (Baroness Williams of Trafford) (Con)]

I join the noble Lord in lamenting the deaths of Anthony Walgate, Gabriel Kovari, Daniel Whitworth, and Jack Taylor, three of whom might not have died. The inquest’s conclusions provide very serious lessons for policing to consider and act upon. It is also right that independent and professional bodies have the opportunity to review the case. HMICFRS has been asked to conduct an inspection into the standard of the Metropolitan Police Service’s investigations. The IOPC will also assess whether to reopen, either in full or in part, its investigation.

I understand that the coroner ruled that on the basis of the evidence, it would not have been possible for a conclusion to be reached on whether homophobia was an overriding factor in mistakes made, but the MPS has already announced an independent review, headed by the noble Baroness, Lady Casey of Blackstock, into its culture. I will, of course, take a very close interest in her findings and any recommendations she makes.

[Lord Paddick (LD)]

My Lords, I speak as a gay former senior police officer whose former partner died, as these men died, of the drug GHB. There is an expectation that the Commissioner will front press briefings when the reputation of the Metropolitan Police is in jeopardy, as she did over the death of Sarah Everard and the photographing of murdered sisters Nicole Smallman and Bibaa Henry. When the jury in this case concluded that the deaths of three young gay men could have been prevented had the police done their job properly, she was nowhere to be seen. Can the Minister explain why? Did the Commissioner think this was not important enough? Is this further evidence of institutional homophobia? There may be an innocent explanation, but I hope the Minister understands how this looks.

[Baroness Williams of Trafford (Con)]

In response to the noble Lord’s question about why the Commissioner was not publicly fronting any statements or comments, one thing we can say is that attitudes in the police have changed since the time of those young men’s murders, which is not to diminish this in any way. The Commissioner is, of course, a member of the LGBT community. I do not know the answer. I do not think it diminishes in any way the horror and the feelings of the Metropolitan Police about what has happened. I will say that, since the time of those murders, diversity within the police has improved—it has a long way to go, but it has improved—and there is more training in place to improve that diversity and the culture in which the police operate.

[Lord Harris of Haringey (Lab)]

My Lords, we all take extremely seriously the findings of this inquest, but could the noble Baroness tell us what steps are in place within the Metropolitan Police, or any other police service in the country, to ensure that when there are adverse findings, as there were in the case of this inquest, or when there are issues raised through reviews by the inspectorate or, indeed, by an independent review, whether commissioned by the police themselves or by the Government, the lessons from those reviews are taken on board, acted upon and continue to be acted upon?

[Baroness Williams of Trafford (Con)]

The noble Lord makes a very good point. We can pay lip service to inquiries and investigations or we can actually try to make sure that there is a shift in the way that we operate. I know the Metropolitan Police is committed to a series of actions, including providing further training to officers, which is clearly needed. With more training and support, response team officers now investigate all but the most serious and complex crimes and victims are not passed between different units, and the quality of each investigation is improving. The College of Policing is regularly reviewing the training offered to police forces, and the NPCC is delivering a series of programmes to support forces in securing the trust of the public. The public need to have more faith in the police and that trust desperately needs rebuilding, certainly in the light of recent events such as the terrible murder of Sarah Everard. The noble Lord will probably know that the NPCC appointed Maggie Blyth as the national police lead for violence against women and girls, and a police plan of action on inclusion and race is also being led by the NPCC. Some things have been done, but there is a long way to go.

17:31

Sitting suspended.

Advanced Research and Invention Agency Bill

Report stage
Tuesday 14th December 2021 Lords Chamber

Report

17:36

Clause 2: ARIA’s functions

Amendment 1

Moved by

[Lord Browne of Ladyton]

1: Clause 2, page 2, line 6, at end insert—
“(ba) financial support provided by ARIA may be treated as convertible to equity interest in the business entity which has received such support; (bb) for a period of ten years after ARIA has provided financial support, or made property available, the business entity which has received such support must obtain the consent of ARIA before—(i) transferring specified intellectual property rights from the United Kingdom to any territory outside the United Kingdom, or(ii) selling or otherwise transferring a controlling interest in that entity to another entity not resident in the United Kingdom;”Member’s explanatory statement
This amendment would enable ARIA to make it a condition of the provision of financial support to a business that it is convertible into an equity interest in the business and that, for 10 years after ARIA has provided financial support, or made property available, the business requires the consent of ARIA either to transfer abroad intellectual property rights or to sell or transfer a controlling interest in that business to another business not resident in the United Kingdom.

[Lord Browne of Ladyton (Lab)]

My Lords, Amendment 1 would enable ARIA to make it a condition of the provision of financial support to a business that it is convertible to an equity interest in the business and that for 10 years after ARIA has provided that financial support, or made property available, the business requires the consent of ARIA either to transfer abroad intellectual property rights or to sell or transfer a controlling interest in that business to another business not resident in the United Kingdom. I am grateful for the support from my noble friend Lady Chapman of Darlington and the noble Lords, Lord Morse and Lord Clement-Jones, who have added their names as supporters of the amendment. I am especially grateful to the noble Lord, Lord Morse, who prepared the first draft of the amendment—although, anticipating that its drafting may be criticised, I make it clear that I take full responsibility for its revised form.

In moving Amendment 1, I support the other five amendments in the group in the name of the noble Lord, Lord Lansley, and have added my name to Amendments 2 and 8. I am pleased that these amendments have been grouped, as they are a response to the same concern. The House will be pleased to hear that I do not intend to rehearse the arguments that I advanced in Committee. I am grateful for the support that I received then from the noble Lords, Lord Fox, Lord Lansley and Lord Broers, and my noble friends Lady Chapman and Lord Stansgate.

Yesterday, I and other noble Lords received a letter from the Minister, which I will come back to later. First, I will explain exactly what the amendment would do, because it is relevant to the letter, which was extremely welcome; it covers the issues that have been raised and shows that those who have amendments in this group have common concerns with the Government —we are broadly on the same page. The degree to which we differ is marginal now, and much less than it was at the beginning of these issues being raised in Committee. So that is progress, but I do not think we are yet where we want to be.

This amendment is to Clause 2, headed “ARIA’s functions”. It would amend Clause 2(4) to add to the conditions that in particular, in exercising its functions, ARIA may attach to financial support or making property available to other parties. It would do this in the context of a clause which has six subsections, five of which are permissive, including that being amended. They are permissive to the extent that they set out what ARIA may do and are designed to give ARIA the flexibility needed for it to carry out the challenging function it is charged with.

However, Clause 2(6) is instructive. It requires ARIA to have regard in exercising its functions to the desirability of doing so in a way which, as the Minister summarises it in his letter, ensures that

“public investment in research and innovation should drive long-term socioeconomic benefit and deliver overall value to UK taxpayers”.

That is a very good summary of what is required, and it is demanded of ARIA by this section of the Bill.

By going to the permissive elements of ARIA’s function, these amendments go beyond willing the end; they help ARIA by willing the means, specifically in relation to intellectual property. This amendment would do so by ensuring that the successes of ARIA stay for a sufficiently long time in the hands of those who have the UK’s best interests at heart.

I thank the Minister for his letter, and I welcome the invitation to a meeting with the Minister for Science, Research and Innovation, George Freeman, and himself to discuss further the concerns that underlie these amendments. I accept, as the letter says, that these concerns are broader than just this Bill, but we only have this Bill to deal with today and they are very significant in the context of what we are asking ARIA to do.

I thank the Minister not only for that invitation but for the all-Peers session that he arranged on 1 December to brief noble Lords on the devolved Administration agreement and ARIA’s governance. Those who attended were delighted that George Freeman turned up unexpectedly and generously shared with us, candidly, his views about several matters relevant to the establishment of ARIA and the policy implications of setting it up.

I was very pleased that, in response to a question about ownership of intellectual property posed by the noble Lord, Lord Lansley, the Science Minister shared his concern about the risk that publicly funded research and innovation may lead to foreign, as opposed to British, private or public gain—the issue at the heart of these amendments and mine in particular. We all now know that the Science Minister shares the concern that lies behind this problem. In fact, he shares it so much that he deflected the specific question about intellectual property and said, “I am much more worried about a very successful ARIA development falling into the hands of foreigners”.

In Committee, I pointed out that twice before the Committee stage I had tried to engage the Minister on this very issue—what is happening in the United Kingdom and has been happening for some time to some of our best and brightest businesses, and the effect it is having on our ability to apply these developments to the benefit of the United Kingdom. I even quoted on one occasion the concerns of the Bank of England about the way in which those businesses are funded and the damage this leveraged debt might do to the UK economy in the long term, but I could not engage the Minister on these issues. I was repeatedly told that we are an open economy that welcomes this investment, when in fact, in most cases, it is not investment at all

17:45

Since receiving the letter yesterday, I began to wonder what had caused this apparent change of tack by the Government and this Minister in particular: the debate that we had in Committee, or the Science Minister who is responsible for this Bill expressing the view at that meeting that he shares the objective we have set ourselves by tabling these amendments, and that it is a matter of concern that needs to be addressed.

On the content of the letter, as the noble Lord, Lord Lansley, pointed out when he responded to it, there is a lot in common between those who support these amendments and the Government. The concerns have been identified; we know that they are serious; we know that they sit in a broader set of circumstances that will need to be addressed. But we still think it important that they be addressed in this particular case and that, in meeting the objective which the Government have set for ARIA in exercising its functions and later, in Schedule 1, in the supplementary powers it is given, it is advised and helped by us, protecting its ability, if necessary, to take equity in businesses in which it invests and to insist that, over a period of time, those businesses stay in the hands of those who have the UK’s economy in their interests.

That is essentially what the letter sets out. However, it does not go as far—nobody would expect it to—as we seek to do in this Bill, for reasons which are articulated. The first of them is that the Minister does not

“think it is appropriate to mandate a particular ‘one size fits all’ approach through the Bill”—

that is why I explained what Clause 2 did in the first place. In this particular subsection, nothing is mandated; it only facilitates ARIA including these conditions if it thinks that is appropriate—a power which the Government, as they set out in the letter, are willing to give ARIA and wish it to have.

Secondly, the letter states:

“The type of obligations referenced in the amendment should not be applied inconsistently. The approach taken by ARIA to IP ownership must reflect the approach taken by other public R&D funding bodies in equivalent situations, or it would create an unlevel playing field. If funding from ARIA comes with strings attached, or fewer IP rights compared to funding from IUK—

that is, Innovate UK—

“or elsewhere, it would act as a further disincentive to the most innovative businesses choosing to participate in ARIA programmes. This discussion should therefore encompass our wider public R&D funding system.”

I agree that there may be a problem in the wider R&D funding system, but we are dealing with this Bill. The Bill cannot keep a level playing field for this reason. It is interesting that Innovate UK was the example the Minister chose to put in the letter. If this Bill is passed in its present form, there will be an unlevel playing field for this reason.

Innovate UK helpfully publishes on its website a brochure for those whom it wishes to engage. It states on page 3 that

“we do not take any equity in the business or make any claim on the intellectual property created in the innovation”.

That is its stated position. Therefore, to get a level playing field, according to the Government’s ambitions, it will mandate ARIA not to hold equity or intellectual property, because otherwise, there cannot be a level playing field. If the Government get their way, there will not be a level playing field.

We recognise that that level playing field does not exist; we recognise that ARIA needs these powers to prevent what has happened to far too many British businesses happening to the businesses it supports during their developmental stage or when they begin to produce significant profits. It has happened to too many British businesses; the Government were slow to wake up to it. Substantial potential income for the United Kingdom based on government R&D has gone abroad, and this should not happen to ARIA.

The Minister, I think, wrote in the hope that I might accept the generous offer of a meeting instead of taking this amendment to a vote. This is my position: I gratefully accept, as I am sure other Members will, the invitation to have a meeting with the Science Minister so that these concerns can be addressed. I do not accept, however, that in accepting that offer, I give up the right to ask your Lordships’ House to vote on this amendment. Clearly, the Science Minister wishes to explain how he is going to deal with these concerns in the way set out in the letter. He ought, of course, to do that for us. But much more importantly, he ought to do it from the Dispatch Box in the House of Commons, and I hope that this House will give him the opportunity to do so by agreeing to this amendment.

[Lord Lansley (Con)]

My Lords, as the noble Lord, Lord Browne of Ladyton, said, there are six amendments in this group, five of which have my name. I am grateful to noble Lords who have also put their names to those amendments, including the noble Lords, Lord Browne, Lord Ravensdale and Lord Broers, and the noble Viscount, Lord Stansgate. I am particularly grateful to the noble Lord, Lord Broers, not least because of the impetus I derive from his contributions in our Committee debates—about the centrality of the acquisition, use and deployment of intellectual property to ARIA’s activities being central to its task. If I may be so presumptuous, I am looking forward to hearing some of the noble Lord’s arguments again, if he has the opportunity, because I am sure he will convey the arguments behind a number of my amendments better than I could. If it is not impertinent on my part, let me say that we will miss his counsel and advice when he retires from the House at the end of this week, and I am glad that we have the opportunity of hearing his advice today before that happens.

I draw noble Lords’ attention to one simple fact: at present, nothing at any place in the Bill refers to intellectual property. It refers to property and rights, and I suppose Ministers might say, entirely correctly, that they are within that thought. But intellectual property is the essence of what ARIA will be doing. As the noble Lord, Lord Browne of Ladyton, said, the Minister most helpfully sent us a letter explaining the centrality of intellectual property activities. Ministers wish for ARIA to devise its own strategy for the intellectual property it creates. For that to happen, as the noble Lord, Lord Browne, said, we want the Bill to make it clear to ARIA, in law, what its powers and responsibilities are. The powers it needs in relation to intellectual property need to be specified.

There are other ways in which Ministers have decided to say that ARIA can set conditions for its financial support, but it does not refer to the conditions relating to intellectual property. Ministers can attach conditions to the grants and funding they give to ARIA, but those do not refer to intellectual property; listed in the schedule are the supplementary powers that will be available to ARIA to do various things, including create partnerships and join ventures and companies, but they do not refer to intellectual property.

The purpose of five amendments in this group is to fill those gaps; Amendments 2 and 3 propose that when ARIA is providing financial support to its research projects, among the conditions it can apply are those relating to the acquisition, disposal, retention and assignment of intellectual property. It clearly ought to be able to do those things. Ministers may say that of course it can because it has the necessary powers. So why are other things specified but not this, since it is central to its activity?

When we look, for example, at the supplementary powers in the schedule given to ARIA, various things are mentioned. It can

“borrow money … acquire and dispose of land … accept gifts … form and participate in partnerships … and … form companies;”

but the schedule does not refer to the ability to acquire, retain, assign, license or dispose of intellectual property and related rights. Indeed, even where it refers to acquisition and disposal of land, as we discussed in Committee, it does not refer to land or other property. These, it seems to me, are all the ways we should better define, in legislation, what ARIA’s powers are.

I have left out one amendment. Amendment 8 relates to the Secretary of State providing grant funding to ARIA. Clause 4 says that this may be subject to conditions, and the only condition which is then referenced is the provision under which sums paid by the Secretary of State to ARIA may be repaid with or without payment of interest.

We have not been provided with, is the framework document that will establish the relationship between the Treasury and ARIA as a publicly funded body. That being the case, if we regard something as important enough, should we put it in the legislation so that it has to be addressed in the framework document? When ARIA, as a result of its funding, has rights relating to intellectual property, can it retain the revenue derived from that investment, or does it have to give that revenue back to the Secretary of State? The frame- work document will, I suspect, provide a reference to this; we know this is important.

In my former constituency, the Laboratory of Molecular Biology, which the Medical Research Council provided funding to, had major research projects, including with highly talented individuals who created immense value. They were enabled to participate in those projects and retain some rights in that intellectual property, and the LMB itself retained revenues which then, by way of negotiation, served to enhance and sometimes substitute for the grant funding received from the Government. If ARIA is to have a strategy for the funding it receives from the Government, it needs to know in advance whether it can retain revenue derived from investment. Can it retain it, or does it have to give it back to the Government? All Amendment 8 does, essentially, is require the Government, when they provide such grants, to set out under what circumstances that revenue can be retained by ARIA for further investment in additional projects to meet its functions or whether it has to pay it back to the Government.

That is where I want the most specific assurances from my noble friend that the Government will provide that opportunity to ARIA. In the absence of that, at a later stage, when we reach Clause 4, depending on the nature of the assurances I receive from my noble friend, I may wish to test the opinion of the House. But we will leave that for a later moment.

For the moment, I am very glad to express my support for what the noble Lord, Lord Browne, said. There is a wider issue, of course there is, but we do not really know the extent, for example, to which the National Security and Investment Act is enabling Ministers to intervene and to protect intellectual property in this country. In any case, that is in relation only to national security issues, and the intellectual property that we are concerned about here will inevitably go much wider.

18:00

Finally, I hope that, in this context, my friend, the noble Lord, Lord Broers, will be able to amplify the question of adding technological advance into the benefits that ARIA should be aiming for. At the moment, we have a reference in the Bill to “scientific innovation and invention”, but by its nature what we are looking for is often wide-ranging technological advances that will be derived from the nature of the scientific research that is undertaken. At the moment, the interpretations in the Bill define scientific research but not scientific innovation, and they do not specifically reference technological advances as a benefit that ARIA should be aiming for.

I hope that explains these five amendments, and that we will take this opportunity to put intellectual property right at the heart of ARIA’s functions and the Bill, as it should be.

[Lord Broers (CB)]

My Lords, I thank the noble Lord, Lord Lansley, for his kind remarks. I have spent most of my life in this environment working on very complicated projects, and I feel very strongly about this issue. I therefore support Amendments 2, 3, 21 and 22, which would secure ARIA’s rights to retain and exploit the intellectual property generated by its research and to obtain intellectual property from elsewhere in order to advance its projects. As I have mentioned before, the projects that ARIA will be working on will draw upon knowledge from all over the world. It is unlikely—almost impossible—that it can generate all its own intellectual property. The world has changed; that is not the way high technology develops today.

It is also of prime importance to the creative engineers and scientists working on ARIA projects that they feel that their creativity is recognised. There are various ways in which this recognition can be granted, but the most straightforward is for them to receive financial benefit, usually through shared ownership of the intellectual property. High-technology companies and universities have found it effective to have a fraction of the income from patents and other intellectual property go to those who create the intellectual property. This creates a sense of fairness and generates loyalty. The result is highly motivated employees who are not tempted to keep their ideas to themselves and go elsewhere where they can be more fairly treated. This is essential. There is massive competition for the top technological brains in this country. We will not get them into ARIA if they think that they will be entangled in a whole lot of bureaucratic government regulations that prevent them from getting the benefits of being entrepreneurs who are free in the world.

I notice that Amendment 17 seems designed to deal with such errant behaviour—how dare they consider doing such things?—but this sort of thing has its dangers, in that its very existence shows that the organisation does not trust its employees, even encouraging them to take their talents elsewhere. It happens with everybody. When you are working on a project, you suddenly have a brilliant idea. You know that you have cracked the nut and really opened up a way for progress, and your first thought is, “My God, I could be rich if I took this off and formed my own company”.

This happens with big companies. I spent a lot of time in IBM, which had to be terribly careful because it provided huge resources for people to make immense progress, but at the same time we did not want people, when they made that progress, to be immediately motivated to leave and exercise that somewhere else, and make more money; I am afraid that money is a motivation. In IBM, in essence you got points towards quite a lot of money when you invented something. You also got a very large award if you did something that opened new pathways in a technology, over and above your salary.

That is the way a company such as IBM in the great days, and Bell Labs subsequently, kept their brilliant people working there. ARPA has that reputation. You will be treated fairly, do well and get paid a lot if you work in ARPA or DARPA; they are prestigious places to work. I imagine that ARIA will be just like that; it will be a prestigious place to work and there will be lots of reasons for that. At times, there has been concern in the UK about the brain drain out of the country. Of course, this has been largely because the incomes offered to creative engineers and scientists have been higher elsewhere, but it is also because it has been perceived that their creativity will receive more recognition.

Those are my remarks on intellectual property for the noble Lord, Lord Lansley. That is the core of what we are doing; it is the intellectual output. It is a very familiar feeling among academics.

I also support Amendment 1, because I believe that it should help to arrest the flow of technology businesses that originate in ARIA being acquired by overseas businesses, which is a concern that everybody has. I just wonder whether 10 years is sufficient time for this to be effective. There are two very important examples of our losing, or potentially losing, outstandingly successful companies originating entirely in the UK.

The first is Arm, which designs the microelectronic chips for the majority of the world’s portable information and communications equipment. Founded in 1990, it went public in 1998, and was then acquired financially by Japan’s SoftBank for about $32 billion in 2016, 26 years after it was founded. If conditions similar to those in this amendment had been in place in the UK, it would have had little or no effect, and its effect would have been even smaller today in preventing the threatened takeover by the US company Nvidia, which began in 2020. Fortunately—as an aside—the American Federal Trade Commission looks as though it may prevent that takeover anyway because of the threat it presents to world competition in the semiconductor business.

The second company is Solexa, which was based on the fundamental research of Balasubramanian and Klenerman in Cambridge that enables the high-speed decoding of DNA. They obtained their initial seed funding to form Solexa in 1998, and in 2000 Solexa’s corporate facilities were established. Solexa was then acquired by Illumina in early 2007, and now generates billions of dollars of revenue. The conditions of this amendment might have slowed if not stopped this takeover. The amendment would help to retain businesses emerging from ARIA in the UK, but it is also important to enhance the activities of the Competition and Markets Authority, which is looking at that, to solve this problem much more widely in the UK. The loss of Solexa was a laughable mistake— one of the most exciting companies in the most exciting scientific field being pursued, and we just wave it goodbye.

We have to fix these problems. I will vote for these amendments if they are put to a Division.

[Viscount Stansgate (Lab)]

My Lords, I rise to speak in support of Amendment 2, to which I have added my name, and the other amendments in this initial grouping. I begin by paying tribute to my noble friend Lord Broers, who, as the House now knows, will leave this House at the end of this week. He is president of the Parliamentary and Scientific Committee and, as noble Lords can see for themselves, he has carried on, to the very end, making excellent arguments for science. I thank the Minister very much for the letter and the offer of further discussions and a meeting with the Minister for Science, which I welcome.

In view of the points that others have made, I will be very brief. As has been said more than once in its passage through your Lordships’ House, the Bill is more about an idea or experiment than it is about anything concrete—at least at this stage. No one, including the Government, can be entirely sure what will happen after we establish ARIA and it sets out to fulfil its mission. We can probably all agree that this is what makes it an exciting venture. But one thing that we can be sure of is that, if it all goes well, ARIA will amass a great deal of intellectual property over the next 10 years, and it will certainly be dealing with successful ideas about which we know nothing as yet.

So these amendments—Amendment 2 in particular—are essential to enable ARIA to benefit from the intellectual property that it creates, and we must ensure that, whatever it comes up with, its intellectual property cannot be sold off or acquired by others without its agreement. Not to agree this amendment would run a risk that I do not think we should run.

[Lord Morse (CB)]

I too will speak to support the amendment advanced by the noble Lord, Lord Browne, who has explained it very clearly. It is worth getting back to basics on it—if I may use that expression—for a second. The ARIA scheme is about driving our national research frontiers forward by publicly funded risk taking, if I can summarise it as simply as that. It is a good idea that is widely supported.

But this is the reverse of what will happen if foreign-owned companies are allowed to acquire companies that own intellectual property derived from ARIA or to take that intellectual property offshore. If this happens, the reverse of the objective of the scheme will be achieved. This possibility is not far-fetched. I spent 10 years as Comptroller and Auditor-General at the National Audit Office, and, during that time, I saw cases relating to a series of companies where exchange of control provisions in the hands of government were not exercised properly or the scheme was administered rather feebly. As a result, these things became faits accomplis and the property went offshore. Sometimes, you would be told, “Well, we believe in the market operations, so we really don’t like to interfere with this sort of thing”.

Actually, we need strong, clear decision-making about this now. We need to make it clear in this amendment that we are not prepared to see intellectual property that has been paid for by British taxpayers go offshore. It makes mugs of British taxpayers.

[Baroness Neville-Rolfe (Con)]

My Lords, I rise to cast some doubt on Amendment 1. It is very well intentioned, but I fear that it may be mistaken. The background to my concern is my regret that ARIA is modest: some £200 million a year is being provided, which is a pinprick compared with the vast sums spent on other things, such as Covid and bailing out the banks.

The Bill is meant to set up an agency that can take risks free from bureaucracy and the day-to-day constraint of politics—a latter-day Manhattan Project, if you like. Bureaucratic and other constraints are being applied to the R&D budgets of many billions in the hands of UKRI. That is fine, but I do not think that they have a place in ARIA, which should be run leanly and efficiently and not encumbered by expensive experts—on IP, for example—and large legal departments. It should be able to think and act outside the box.

So I object to the provision in paragraph (bb)(ii) in Amendment 1, and I am slightly surprised that the noble Lord, Lord Clement-Jones, has signed the amendment, because we generally agree on these IP issues. However, I agree with my noble friend Lord Lansley that we need to know whether ARIA can keep the income that it receives from IP and rights. To answer his question, I see IP and rights as being in the same box—but no doubt the Minister will clarify that when he speaks.

18:15

ARIA should be able to choose what to do about the IP that it creates. It should not have to be involved in monitoring et cetera for another 10 years, as the amendment implies. Sometimes it will want to hold on to the IP; on other occasions, it will want to grant all IP rights, or a share of them, up front, to provide a greater incentive to a supplier, especially perhaps a small supplier. Having been IP Minister, I know that practice will vary from sector to sector, and of course we do not know where ARIA will place its firepower. That is the whole point: it is meant to be able to look ahead independently. So we want to avoid a situation where the possible loss of, or constraint on, IP rights acts as a dampener on the involvement in ARIA’s work of the most innovative partners, businesses or suppliers.

Some noble Lords will know that I have been both an IP Minister and a Business Minister, and of course I served on the board of some creative companies, such as ITV and Tesco. I have two brief tales of woe that illustrate my concern. First, I came across a firm providing fancy and efficient legal systems and software to the Ministry of Justice. It wanted to provide consultancy doing a similar thing in export markets around the world. However, it had been required to agree to a contract some years earlier, under which the MoJ owned all the IP. So it was frustrated and UK plc suffered because it could not establish an export trade.

Secondly, when I was on the board of ITV, we invested through our Studios business in the United States. We found that the treatment of IP and rights was different in some of the vehicles that we wanted to buy: the broadcasting company owned the IP and did not share it with the creative supplier of original programmes. So, in time, the latter could fail, having insufficient income from past hits to keep going independently. In the UK, the creators shared or even owned the IP rights completely, so a vibrant and creative film and programme industry built up in our country. Strangely, this helped our creative companies, some of which are quite small. The result was that the many companies that have become the backbone of our success grew and flourished. I do not know what the situation is now, but I am doubtful about the proposed amendment, because I fear that it would have a perverse effect, and without evidence to the contrary—which I have not heard—we should be very careful about agreeing to it.

On equity sales, which are also the subject of Amendment 1, I doubt whether we should have special arrangements for ARIA. We now have a new law dealing with sales of sensitive businesses overseas—the National Security and Investment Act—and perhaps the Minister could confirm that it applies to ARIA and would deal with the risk, which the noble Lord, Lord Browne of Ladyton, mentioned, of ARIA falling into the hands of foreign players. I believe that the Arm deal, which I opposed at the time because of its effect on IP, would have been caught by the Bill—and I am not sure that we need to duplicate that.

So, finally, I agree with what was said by the noble Viscount, Lord Stansgate, about the record of the noble Lord, Lord Broers. We will miss him from today and on future occasions.

[Lord Bethell (Con)]

My Lords, I will speak to the centrality of intellectual property to the Bill and, in particular, on two themes, very briefly. First, on the protection of intellectual property, the noble Lord, Lord Browne, spoke very movingly and interestingly about the concerns that were brought up by George Freeman in the meeting that we had. It was reassuring to hear George Freeman speak so clearly and emphatically. That is why Amendment 2 is very interesting and worth a really good look.

I am very concerned that, in our efforts to build Britain into a science and research superpower, all that we will be is a laboratory for others to borrow from and that we will simply supply the unicorns of the future from overseas. Somehow, we have to capture that value here in the UK.

The second point, which the noble Lord, Lord Broers, spoke so movingly about and selected such a good example of, is about how we encourage the breed of entrepreneurs that I hope will come out of ARIA. We must encourage this. We should not have something like Amendment 17, which somehow suppresses the entrepreneurialism of our researchers and scientists. I have been to Kendall Square on the MIT campus, next to the Harvard campus, which is buzzing with excitement, with start-ups and major new enterprises feeding off the intellectual energy of those great universities. That is what we need to have here in the UK.

On Clause 1, I am torn between my noble friends Lord Lansley and Lady Neville-Rolfe, who both put their arguments so well. I would like to split the difference and agree with the noble Lord, Lord Browne, that these are things that I would like to hear about from George Freeman from the Dispatch Box. That argument has merit.

[Lord Clement-Jones (LD)]

My Lords, I am largely going to speak to and support Amendment 1. I commend the noble Lord, Lord Browne, for raising these important issues on the question of ARIA’s ability to impose investment conditions. Unlike the noble Baroness, Lady Neville-Rolfe, I do not see those as bureaucratic constraints.

One key issue in delivering technology into the market in this country is the commercialisation and translation of that technology. We have seen report after report telling us about that. The UK is a top nation for the global impact of its R&D but not so effective at innovation, where it ranks 11th in the world for knowledge diffusion and 27th for knowledge absorption, according to an October 2021 report by our own BEIS department. The greater risk averseness of the VC and private equity market for technology start-ups in the UK compared to that of the US is common ground in the investment community itself; we need to hang on to our unicorns. As a result, outside fintech, we have seen too many high-technology companies sold to overseas companies at too early a stage. We have heard examples from the noble Lords, Lord Broers and Lord Morse—and, in Committee, the noble Lord, Lord Browne, took the risk of quoting the Daily Telegraph.

The National Security and Investment Act will impact on that to some extent, but in a limited number of sectors involving national security. Without this kind of scale-up support we cannot become—to coin the phrase so often used by this Government—a science and tech superpower by 2030. This excellent amendment will, I hope, ensure that those making decisions about future financing at least have some friction in the system to ensure that they have to think twice about where and how to raise capital for the future; at the same time, it gives ARIA skin in the game to help it do so. The Minister has said in correspondence that he shares the objectives of this amendment, so I hope that he will agree at the last stage to accept it.

As regards the other amendments by the noble Lord, Lord Lansley, in this group, I agree in principle with many of the issues that he has raised and the support for intellectual property rights that should be retained by ARIA in certain circumstances. He had powerful support from the noble Lord, Lord Broers, whose expertise we are certainly going to miss when he retires from the House.

As the noble Lord, Lord Browne, says, we have only this Bill today. We cannot solve all the problems relating to the taking of stakes by companies or our research institutions, but we can put this into ARIA’s terms; I very much hope that we will do so today.

[Baroness Chapman of Darlington (Lab)]

My Lords, I find myself listening to some excellent speeches and frantically scratching sections from my own contribution as I do not see the point in repeating the points that have already been made. I put on record my thanks to my noble friend Lord Browne, in particular, for his generosity with his expertise and time in working so collaboratively on this issue, which has support on all sides. The principle is very simple: the state is taking a big risk by granting funds to speculative research projects. In cases where that risk pays off—we hope that is not an infrequent event, but we understand that this is about high-risk ventures—ARIA should have the ability to protect the potentially significant benefits that will arise from initial taxpayer support. It seems equally appropriate that ARIA has a say in potential takeovers or transfers of intellectual property. We know that there is a big market for speculative purchases of new technology. While ARIA may decide that there is no public interest in preventing certain events from taking place, there might be other investments that should be safeguarded.

It is clear from the debates that we have had in Committee and this evening that there is a shared desire on all sides—including, to be fair, from the Minister—to deal with this issue. He has correctly observed previously that the problem we are trying to fix is not limited to ARIA; that is understood and agreed with. However, while the amendment by the noble Lord, Lord Browne, does not fix everything, that does not mean we should not try to fix the thing that is in front of us now. It moves us in the right direction and is appropriate given the specific activity of ARIA; the Opposition are solidly in support of Amendment 1.

[The Parliamentary Under-Secretary of State, Department for Business, Energy and Industrial Strategy (Lord Callanan) (Con)]

I thank noble Lords for what has been an excellent and very well thought-through debate. While the noble Baroness, Lady Chapman, was lucky enough to be scratching bits from her contribution, I found that I was adding lots more to mine to take account of some of the excellent contributions. The debate showed the House at its finest, even if I do not necessarily agree with all the points raised, as I will outline.

Amendment 1, introduced by the noble Lord, Lord Browne, imposes a number of conditions on ARIA’s financial support. He made his case well, raising a number of important issues regarding the UK’s approach to capturing value from public investment in R&D, the role of public IP retention within that, the Government’s powers to intervene in acquisitions and our approach in so doing. I have listened carefully to all the contributions made by noble Lords on this matter, and I think that there is some measure of common agreement. We are all agreed that public investment in R&D should indeed drive long-term socioeconomic benefit and ultimately drive value to UK taxpayers who are funding it. We are clear across this House that exploitation of IP will play an integral role in creating these benefits, and that our paramount concern should therefore be generating the maximum public value from that exploitation; I will return to that specific issue shortly.

The debate that we have had today on the benefits derived from public investment in R&D speaks to a much wider issue, which extends beyond intellectual property, ARIA and this piece of legislation. I respectfully say that I do not think that Report on the Bill is the most effective forum for setting precedents to this very expansive and wide-ranging area of government policy. While I will do my best to address the range of points raised this evening, the Government’s approach to foreign investment and how IP rights are treated within the public funding disbursed across the entirety of our considerable R&D system are indeed extensive areas of policy.

I recognise that there is some common ground, as the noble Lord, Lord Browne, has set out—although perhaps not as much as he might have indicated. As he said, I offered to facilitate a meeting with the Minister for Science, Research and Innovation, who came along to our all-Peers meetings to discuss these issues in the round. I still believe that this is the correct forum to discuss this issue in sufficient breadth—something that I do not think could be provided through this amendment to the proposed arrangements for ARIA alone. I suspect that the noble Lord will not be satisfied with my offer but nevertheless I repeat it here.

I have welcomed the insightful contributions of noble Lords in the scrutiny of the Bill so far, and I recognise the importance of Amendment 1 in providing a vehicle for this debate, but I hope that the noble Lord, Lord Browne, will recognise that this represents an unusual and strong restriction and we would have serious concerns as to its proposed workability.

To respond directly to the noble Lord’s amendment, let me set out the Government’s current position. The UK is a premier destination for foreign direct investment. I recognise the concerns the noble Lord has expressed about the current context and the issue of leveraged loans highlighted by the Bank of England, but, in general, I think we all have to recognise that this investment brings tangible economic benefits and the Government are rightly cautious about introducing wider powers to act on the grounds of public or economic interest, as such an approach could destabilise investment into the UK, reduce economic growth and ultimately, therefore, risk jobs and prosperity.

18:30

Of course, it is worth saying that, where necessary, the Government have statutory grounds for making interventions. The Enterprise Act 2002 enables the Government to intervene in mergers or acquisitions on media plurality and financial stability grounds and, recently, in relation to public health emergency. I say to my noble friends Lady Neville-Rolfe and Lord Lansley, for the sake of clarity, that the National Security and Investment Act 2021, shortly to commence on 4 January, gives further powers to scrutinise and to intervene in acquisitions of control of entities and assets that may pose a risk to national security. This includes areas of emerging technologies, such as quantum and artificial intelligence, which draw on significant previous public investment. I add, again for clarification, that the powers and provisions of the NSI Act will apply to ARIA and that it does cover intangible property.

Today, as outlined by the noble Lord, Lord Clement-Jones, and in Committee, we have heard desire to increase the scale of investment available to our most innovative businesses from within the UK to support their growth in this country. This is not an issue that the Bill alone can solve, and I do not believe that acting in isolation to curtail the access of these businesses to investment from elsewhere would be to our long-term advantage. I hope the noble Lord will recognise that this is a genuine concern.

I return to the issues of intellectual property more closely connected to the Bill. It is a clear ambition of the Government to become world-class at securing economic and social benefits from the research. I thank my noble friend Lady Neville-Rolfe for her contributions and I agree with many of the points she made. In the case of ARIA, we wish to equip it to take a case-by-case view of the most appropriate IP arrangements for individual programmes by varying its contracting and granting arrangements. I think we have some common ground across the House for this approach.

Depending on the route to market for the innovation or technology in question, on some occasions ARIA may retain IP generated through its programmes to reap the greatest public value. For example, if a programme is fully funded by ARIA and creates IP with commercial application but strategic importance from a security perspective, it may be appropriate for the IP to be retained directly by ARIA. In such circumstances, ARIA would draw on the new strategy outlined in the Mackintosh report as part of a concerted government effort to identify how to get greater value from public sector knowledge assets. ARIA would be responsible for developing its own knowledge assets strategy, taking into account the draft guidance in that report. It would also be able to utilise specialist support of the new government office for technology transfer to get advice on the best way to protect or to exploit public sector IP.

However, most often, we expect that the businesses or universities that ARIA has funded or contracted to conduct research will be best placed to exploit the IP generated. ARIA, seeking to take a greater role, would likely then disincentivise the very people that we most want to draw in to participate. For many SMEs, ownership of IP is critical to their businesses. Restricting their IP access and ownership would likely deter them from engaging in any collaborative ARIA programmes. ARIA acting as a powerful convener of multiple, disparate collaborators in pursuit of a single, ambitious, programme-level objective is an integral feature of the agency’s design.

As attested to by the noble Lord, Lord Broers, in Grand Committee, when he spoke about DARPA’s development of GPS, ARPA-like agencies play an important convening and co-ordinating role in drawing in technologies and IP. Done effectively, these agencies can drive progress and can pull through a novel idea to a prototype or to the market.

Let me take a moment at this stage to pay tribute to the noble Lord, Lord Broers, for the contribution he has made to this House in scrutinising this Bill and many others, and in sharing his immense expertise. I totally associate myself with the remarks of my noble friend Lord Lansley and others—he will be greatly missed and we will be poorer for not having his contribution to many of these debates. I place that on record.

Any restriction on ARIA’s IP arrangements that would deter broad participation in its activities would be detrimental to its collaboration and ultimately to ARIA’s potential achievements. More broadly, I would also argue that we should be very cautious about introducing additional obligations on ARIA’s IP arrangements which would place it at a disadvantage to other R&D funders. As the noble Lord, Lord Browne, reminded us, Innovate UK, for example, generally does not retain IP generated through grants and loans, on the grounds that the business closest to the innovation and the research will be best placed to exploit it and to generate value from it, which will, in the end, of course, benefit the public finances.

Our exact concern is that if funding from ARIA has additional conditions attached, or if the agency can make available fewer IP rights compared to funding from Innovate UK or others, there is a risk that the most innovative businesses will be disincentivised from participating in ARIA’s programmes. Where IP generated through ARIA programmes was vested in private entities, there would remain a variety of mechanisms to ensure that public value was generated as a result. I have previously highlighted existing initiatives aimed at retaining public investment in R&D within the UK, such as the patent box tax, which supports the retention and exploitation of IP rights by UK businesses by allowing them to pay a reduced rate of tax on profits arising from exploiting patents and other qualifying products. In addition, we expect that ARIA may use clauses that enable it to claw back funding provided to entities that do not then exploit the outputs of projects in the UK, as Innovate UK routinely does.

I believe that these points lead on well to Amendment 2, in the name of my noble friend Lord Lansley, which seeks to explicitly include in the Bill ARIA’s ability to retain IP rights and specify that rights held by beneficiaries should not be sold or assigned without ARIA’s approval. As I have just outlined, these things are important but they are not unique. There are many other conditions that ARIA may need to attach to the funding it provides: they cannot, and should not, all be listed in the Bill.

As I have stressed previously, the legislation as drafted already enables ARIA to acquire, retain, share, license or dispose of IP. ARIA can, and will, use this full suite of IP options. No amendment is needed for it to negotiate and tailor its IP arrangements to suit each project or programme.

The noble Lord, Lord Browne, has suggested that his amendment is not intended to impose a particular approach on ARIA but rather signal what it may do. If that is the case, I can assure him that ARIA may already attach conditions on its funding through its contractual arrangements, if that is agreeable to its research partners and helps it to achieve its objectives. I believe that the decisions ARIA takes on IP should ultimately be a matter determined and detailed in its contracting and granting arrangements within individual programmes, not in its founding legislation. As drafted, the Bill enables ARIA to have the greatest flexibility in its IP arrangements.

Amendments 21 and 22, in the name of my noble friend Lord Lansley, would add explicit reference to ARIA’s ability to own, acquire, retain, assign, license and dispose of intellectual property into its supplementary powers. I thank my noble friend for his consistent engagement and challenge on this issue but, as I have assured him, we have discussed this drafting very closely with lawyers. We are in clear agreement that IP will be a central consideration for all of ARIA’s activities, and IP arrangements and rights will be considered, tailored and embedded in the contractual arrangements for every project that ARIA funds. I am certain that the activities covered in these two amendments are entirely possible through the Bill as currently drafted, and that adding these references in ARIA’s supplementary powers would not enable the agency to do anything that it cannot already do currently. It is my view, therefore, that such legislative changes are unnecessary, but I thank my noble friend for continuing to champion the centrality of IP and the integral role it will play in ARIA fulfilling its functions.

Moving to Amendment 8 to Clause 4 from my noble friend Lord Lansley, this extends the arrangements in place for where ARIA retains IP and relates to ARIA’s ability to retain income generated through the exploitation of intellectual property. On the point made by my noble friend Lord Lansley, the framework document is a governance document between BEIS and ARIA and does not primarily involve the Treasury, although obviously Her Majesty’s Treasury will review it and will be required to approve it. The power in Clause 4 to attach conditions to grants reflects the usual process for allocating budgets to public bodies. Such conditions are usually attached through letters of allocation and delegation and would usually set requirements for resources to be managed in line with the principles of Her Majesty’s Treasury’s Managing Public Money.

I assure my noble friend that the Bill as drafted and the provisions of Clause 4 are already entirely compatible with ARIA retaining income. However, as was set out in Committee by my noble friend Lady Bloomfield, these arrangements are not dealt with in legislation. The 2020-21 consolidated budgeting guidance states that income generated by the exploitation of IP would be retained within a public body as standard, but Her Majesty’s Treasury would need to consent to the precise arrangements for ARIA and the implications of retaining such income. This is a live matter of discussion between my department and Her Majesty’s Treasury and, while I very much appreciate my noble friend’s support on the matter, I do not believe that it would be appropriate to introduce a legislative commitment on this issue at this stage.

Finally, Amendment 3, from my noble friend Lord Lansley, would add reference to ARIA having regard to technological advances in the UK as one of the benefits which it should seek to promote. Similarly, I believe that this is perhaps more a difference of opinion on drafting than a difference in policy intent. Driving and promoting technological advancement in the UK is indeed intrinsic to ARIA exercising its functions. I hope this is already evident from the existing drafting of Clause 2, and again I do not think that the amendment adds to or clarifies ARIA’s purpose. For those reasons, I am unable to accept it.

I apologise for the length of my contribution, but it brings me to the end of this very important group. I hope that the detailed explanations of the Government’s approach, the further assurances on the robustness of the existing drafting in permitting the full suite of options that ARIA might need, and my offer of a meeting with the Science Minister for the noble Lord, Lord Browne, and others will be sufficient to enable the noble Lord to withdraw his amendment.

[Lord Browne of Ladyton (Lab)]

My Lords, I thank the Minister for the care he has taken in responding to this debate and I thank all noble Lords who have contributed to it. I find myself in the position—other than in the Minister’s case—of saying that I agree with everything everyone else said, and I include in that the noble Baroness, Lady Neville-Rolfe. I agree with everything that she said, other than that she has, with respect to both her and the Minister, made the same mistake in that they characterise this amendment as imposing or mandating behaviour on the part of ARIA. With respect to both of them—I pointed this out in my opening remarks to the Minister—this is a misreading of the Bill.

The amendment is placed in a position which does not mandate or impose anything. It enables ARIA to choose what it wants to do but directs its attention to what all contributors to this debate have made clear is an issue of necessity as far as they are concerned if we are to achieve what this letter I have received from the Minister expresses as our common objective—that is, to generate the greatest public value from ARIA’s exploitation activities which will be publicly funded. There is a common understanding that if these exploitation activities fall into the hands of businesses that are based abroad, large amounts of money and great improvements in our society and our socioeconomic affairs will be denied to the people of the United Kingdom. There is no doubt about that.

18:45

With respect to the Minister, I think he is complacent about the degree and the extent to which that has been happening over the past decade. I repeat that it has been happening so much over the past decade that the Bank of England expressed concern about it because of the financing mechanism that is used, which is not investment. It is leveraged debt that is imposed on our economy to such an extent that it undermines our economic performance. I have in the past endeavoured, as have others, to have the Government engage on this. The success of these amendments, in this context, in this Bill, is that the Government have engaged more at the Dispatch Box and in debate than they ever have before, and I am delighted at the opportunity to have a meeting with others and with an important Minister in the Government who is now willing to discuss extensively how the Government intend to deal with this issue.

In thanking all noble Lords for their contributions, I repeat that my intention is to use this important amendment—it is not perfect in the sense that it does not solve this problem extensively, but it does here and it draws ARIA’s attention to the danger of this and concentrates its mind on it—to get the Minister, who shares the concerns we all have because we heard them in an earlier meeting with him, to share them where he should share them, which is at the Dispatch Box in the House of Commons.

Finally, I echo noble Lords’ words on the contribution that the noble Lord, Lord Broers, has made to your Lordships’ deliberations and the insight and wisdom he has brought to the House. I am proud—in fact, I am honoured—that one of his last acts in this House has been to support my amendment. If he could persuade the Government that perhaps they should draw to ARIA’s attention the opportunity it has to extend the period in which it can protect its intellectual property and its exploitation of it for the people of the United Kingdom, I would be happy that he did so. This amendment has not yet served its whole purpose, and it will not unless it is supported by your Lordships’ House. I wish to test the opinion of the House.

18:48

Division 1

Ayes: 166

---

Labour: 77
Liberal Democrat: 56
Crossbench: 25
Independent: 6
Green Party: 2

Noes: 153

---

Conservative: 144
Democratic Unionist Party: 5
Independent: 3
Crossbench: 1

Amendments 2 and 3 not moved.

Amendment 4

Moved by

[Lord Ravensdale]

4: Clause 2, page 2, line 18, at end insert—
“(7) In exercising its functions ARIA must give due consideration to the following—(a) compliance with the duty imposed by section 1 of the Climate Change Act 2008 (UK net zero emissions target),(b) adaptation to climate change, or(c) meeting other environmental goals (such as restoration or enhancement of the natural environment).”Member’s explanatory statement
This amendment seeks to include the UK’s net zero target and environmental goals as matters which ARIA must give due consideration to when exercising its functions.

[Lord Ravensdale (CB)]

My Lords, in moving Amendment 4 I will speak to Amendment 19, in my name. I declare my interest as a director of Peers for the Planet and as an engineer and project director with Atkins.

I thank my supporters who have signed these amendments, the noble Baroness, Lady Chapman, and the noble Lords, Lord Browne and Lord Oates. Alongside them, I thank the noble Baroness, Lady Brown, and the noble Lords, Lord Lansley and Lord Broers, for their invaluable support and advice throughout this process. Like others, I pay tribute to the noble Lord, Lord Broers. His will be a huge loss to the House; we will much miss his expertise. I particularly pay tribute to his work leading the All-Party Parliamentary Engineering Group, which is all about getting schoolchildren excited about engineering and exposing them to the latest ideas. It has made a huge difference, as I know from the involvement of a school that is local to me. Maybe one day we will see some of those children pushing new frontiers with ARIA—who knows?

I spoke at Second Reading and in Committee on the progenitor organisation for ARIA, DARPA. In 2013, DARPA took the gamble of awarding a small firm called Moderna $25 million to develop the idea of using messenger RNA to make vaccines. So I had reason to be personally thankful for the work of DARPA at the weekend, having received my Moderna booster on Saturday. I could also mention the GPS technology that guided me to the vaccination clinic, and the internet that I used to book the appointment—innovations that were both seeded by DARPA. DARPA has literally changed the world in so many ways, creating trillions of dollars of value. We all look forward to ARIA doing the same within the UK.

Starting with Amendment 4, I thank the Minister for taking the time to meet me to discuss the amendment, and for all the work that he and his team have done to investigate its implementation. As I stated at that meeting, I want to clarify a potential misconception about my amendments. I am not seeking to implement a mission or purpose for ARIA. I listened carefully to what the Minister said in Committee. It is clear that the Government want to maintain flexibility for ARIA, and so I have withdrawn my original Committee amendment, which attempted to implement one. Instead, I am looking to put a “have regard to” statement in the UK’s primary strategic goal of climate and the environment, similar to the other statements in Clause 2(6) of the Bill on ARIA’s functions, which talk about economic growth, promoting scientific innovation and improving quality of life. ARIA would still be free to choose whatever missions it likes within the constraints of Clause 2(6) and this proposed new subsection, as the Government intend.

Part of the argument for this amendment is consistency. The Government have sought to implement similar climate and environmental amendments across a whole range of recent legislation—the Skills and Post-16 Education Bill, the Pension Schemes Act and the Financial Services Act—and these are all “have regard to” amendments. My amendment uses the same wording as these amendments, specifically using wording from government amendments to the skills Bill.

I know that the Government want to ensure that they are taking a systems view of net zero, with climate as a golden thread through all relevant legislation. This certainly is relevant, given that we know how important R&D is to our net-zero and environmental targets and how important ARIA could be to those. As we know, the International Energy Agency stated that almost half of the needed emissions reductions for 2050 are expected to rely on technologies that have not yet reached the market. This is a great opportunity for the Government, given the focus on delivery post COP. It is a minor but beneficial amendment which would ensure that the organisation has regard to the primary strategic goal of the UK, but which does not detract from what the Government want from ARIA overall.

Amendment 19 simply calls for ARIA to develop its own environmental and social governance, or ESG, strategy, to consider the impacts of the exercise of its functions and the projects which it funds. It would allow the board of ARIA to consider their own strategy for alignment with the environmental and climate goals, and so is consistent with the other amendment. I note that other government-created bodies are also developing ESG strategies. For example, the FCA recently published an ESG strategy, and the national infrastructure bank has a requirement to develop an ESG strategy in its framework document. Bringing ARIA in line with other government organisations would again ensure consistency and that it is playing its part in the principal strategic goal of the nation.

Finally, these points relate to a substantive proposal that the Minister has offered relating to both amendments, so I look forward to hearing his proposal in detail when he sums up. I beg to move.

Amendment 5 (to Amendment 4)

Moved by

[Baroness Bennett of Manor Castle]

5: At end insert—
“(d) meeting Sustainable Development Goals 1 (no poverty), 2 (zero hunger) and 3 (good health and wellbeing).”

[Baroness Bennett of Manor Castle (GP)]

In moving Amendment 5 in my name, I will briefly comment on Amendments 4 and 19. Had there been space in our procedures, I would have attached my name to Amendment 4; I note that it has broad cross-party support. It addresses the Climate Change Act and imposes a legal requirement to comply with the duty of Section 1 of that Act, which concerns net-zero emissions. That is an important and good way of expressing it, and I hope that we will see that eventual outcome.

Amendment 19 talks about ARIA having an ESG strategy. This would not be my preferred way forward. In a way, it is better than nothing, and I see the point that was made by the noble Lord, Lord Ravensdale, about lining up with other vaguely similar institutions. However, we have seen a great deal of criticism of ESG as not always being a very strong or effective tool.

My Amendment 5 calls for ARIA to include sustainable development goals 1, on poverty, 2, on zero hunger, and 3, on health and well-being. These are internationally recognised and accepted goals, with targets within them to which the UK, like every country on this earth, is signed up. Surely these should be the goals of every element of the Government, both direct and arm’s-length parts.

I thank the Minister and his staff for engaging with me in discussions on this, but before I get to that I want to address why it is so important to talk about poverty, health and hunger in this ARIA Bill. When people talk about what ARIA will achieve, very often it sounds as if we are talking about Silicon Fen, often known as the “Cambridge cluster”—the region around Cambridge which has so many high-tech business, including software, electronics and biotechnology. But if you look at the reality of life in Cambridge, the top 6% of earners take home 19% of the wealth generated in the city, and the bottom 20% of earners get 2% of the wealth generated in the city.

I encourage noble Lords, if they have not yet seen it, to have a look at an article in the Guardian by Aditya Chakrabarti, who visited a foodbank in Cambridge recently. In his reflections there, he noted that this is a tiny city with a population half the size of a single London borough, yet in one postcode in Cambridge you can expect to live until 87. In a postcode just down the road, it is 78. This is the kind of development that has delivered a miserable life for many, many people. This is why I tabled this amendment.

In the discussions that I mentioned with the Minister and his staff, which raised some very interesting issues, they pointed me to Clause 2(6) of the Bill, which states that, in exercising its functions,

“ARIA must have regard to the desirability”

of various things. Clause 2(6)(c) states that one of those is

“improving the quality of life in the United Kingdom”.

I would be very interested to hear from any noble and learned Lords who might be able to assist me. I am not a lawyer and I am not quite sure what the legal definition is of “quality of life”. I suggest that it is open to political contention and discussion. More than that, in the context of what I was saying about Cambridge, whose quality of life are we talking about? That is a very important question to ask. In your Lordships’ House, I often comment on the Government’s pursuit of GDP as a goal in itself, but here we are talking about quality of life, which surely has to include a distributional element.

That was my purpose in tabling this amendment. I was asked whether I intended to put it to a vote. Given that I called a Division yesterday, and given that I have not had as much time as I would have liked to devote to thinking it through and finding a form of words that really works, it is not my intention to put it to a vote. However, I would be very interested to hear from the Minister what the Government mean by “quality of life” in Clause 2(6)(c). Do the Government acknowledge that that has to address distribution as well as GDP growth? I cannot see any way that it could not. If the Minister is looking for a way of measuring this, I point him to the Living Standards Framework used in New Zealand, which directs the New Zealand Treasury and the actions of the New Zealand Government. That is a good measure of the quality of life. I beg to move.

[Lord Oates (LD)]

My Lords, I rise to support Amendments 4 and 19 in the names of the noble Lords, Lord Ravensdale and Lord Browne of Ladyton, the noble Baroness, Lady Chapman of Darlington, and myself. I commend the noble Lord, Lord Ravensdale, in particular for his tireless work on this issue. I too join in the tributes to the noble Lord, Lord Broers, and wish him well in his retirement. I also have some sympathy with the intention behind the amendment of the noble Baroness, Lady Bennett, which raises very important and wider questions, but I am going to focus on Amendment 4.

As the noble Lord, Lord Ravensdale, has said, a number of Acts of Parliament that have gone through this House have had “have regard” amendments relating to climate change made to them. I was pleased to be a signatory to the cross-party amendment to the Financial Services Bill, which the Government substantially accepted in this regard. This point of consistency is extremely important. However, I would have preferred it if the Government had been willing to accept a stronger amendment on the purpose of the organisation, but I recognise that political pragmatism is wise on occasion.

In Committee, we had a very useful discussion about whether the agency would benefit from the sort of mission and focus that helped the Defence Advanced Research Projects Agency in the United States—mentioned by the noble Lord, Lord Ravensdale—achieve its success. The noble Lord, Lord Lansley, told us that DARPA’s mission had been to not be taken by surprise by new technology and, perhaps by implication, to surprise others with the advanced technology of the United States. That may well have been the mission, but the purpose of the mission was surely what drove DARPA’s success: to maintain the national security of the United States against the threat of Soviet communism. It is that purpose which provided DARPA with its edge, its sense of urgency and an understanding of the stakes of the mission on which it was engaged.

While Soviet communism posed an existential threat to our freedom then, today the threat we face from climate change and ecological destruction is even more acute: an existential threat to life itself. Surely, there can be no more profound purpose to drive our new advanced research agency, no greater focus to inspire research, innovation and the practical application of science, than that of tackling a threat to humanity itself.

19:15

Personally, I would have liked that to have been ARIA’s explicit purpose; nonetheless, I am heartened by indications that the Government might be prepared to move on this issue. I am very pleased to support this amendment because I think it would represent important advances to some degree on this issue. I very much commend the noble Lord, Lord Ravensdale, for—hopefully—his persuasive powers in getting the Government to the right place. I will listen carefully to what the Minister has to say, but I still suspect that future generations will look back with a degree of surprise that at this time, and in the knowledge of the climate and ecological threat we face, our advanced research agency was not more clearly harnessed to this, the gravest and most important task at hand.

[Baroness Neville-Rolfe (Con)]

My Lords, it is a great delight to hear from the noble Lord, Lord Ravensdale, who brings his business acumen and passion for both innovation and climate change to the feast. We have discussed these together often in Peers for the Planet.

We have the climate change Acts, and a huge amount of attention is paid to climate change in every part of government life and in their multi-billion-pound R&D budget. ARIA is a small, independent body and should be left to decide what is most important to our future and to the inventive opportunities that it is set up to create. That might include climate change, health, poverty or the quality of life. Technology, for example, improves our lives, but it also brings risks. ARIA should be left to decide what is most important. It should be able to think completely outside the box and make its own choices, and not be bound by precedent. I am afraid that I am therefore sceptical about these amendments.

[Lord Clement-Jones (LD)]

My Lords, the noble Lord, Lord Ravensdale, the noble Baroness, Lady Bennett, and my noble friend have made a compelling case for supporting this amendment, based on the climate and ecological emergency that we face. Tackling those challenges will require massive innovation and ingenuity and the development of practical applications from that. If ARIA has the bold, independent, innovative culture that the Minister emphasised throughout Committee, then it must be the ideal vehicle for this research, and we should spell it out. We should make ARIA an essential component of the net-zero strategy.

[Baroness Chapman of Darlington (Lab)]

My Lords, I am grateful to the noble Lord, Lord Ravensdale, for bringing back his amendment on these important issues. It has been a real pleasure working with him and hearing from him throughout the debates on this Bill. In Grand Committee, Labour proposed making addressing climate change a core purpose for the first two years of ARIA’s existence. It is, after all, one of the greatest challenges, if not the greatest, that we face, and it is science and technology that we look to for new tools and solutions. We were disappointed by the Minister’s response to that suggestion and to the proposals put forward by other noble Lords. We feel this is of critical importance, so we would be prepared to support Amendment 4—depending, of course, on what the Minister has to say.

The noble Baroness, Lady Bennett of Manor Castle, has tabled Amendment 5, which seeks to promote three of the UN sustainable development goals, which Labour supports. My noble friend Lord Collins of Highbury looks for any opportunity to press the Government to secure progress on them, domestically and overseas. Without wanting to soften the Minister’s cough—as I think we say where we are both from—I am sure he will say that the Bill is not the correct vehicle. However, whether or not there is a vote, the Government should understand that amendments such as this, which embed climate as a golden thread in legislation, will be put forward by noble Lords and Members in the other place at every opportunity.

[Lord Callanan (Con)]

My Lords, I thank the noble Lord, Lord Ravensdale, for his productive engagement on the amendments in his name, as well as others for contributing to this important debate. Clearly, this issue matters to us all. I will start by exploring the intention behind the amendment. If it is to signal the importance of climate action, of course there is no disagreement between us on that. It is clearly an issue of the utmost strategic importance to this country, and that is reflected in the Climate Change Act, which marks the UK as the first major economy to pass laws to end our contribution to global warming by 2050. Our statutory obligations and ambition on this issue could not be clearer, and they do not need to be marked elsewhere. I do not believe that we should add to this legislation to signal our general intent. It is not appropriate for any provision to be added to a Bill unless it has an actual effect.

The alternative is a statutory duty that seeks to influence—and therefore constrain—ARIA’s activity in some way and, as drafted, the amendment would do so in a very sharp sense. I am grateful to the noble Lord, Lord Ravensdale, for his willingness to engage with the concerns that I put to him and explore alternative ways to achieve his objectives. I have raised these points with him directly, so for the benefit of others I will outline my position—with apologies to the noble Lord, who has heard all this before.

There are well-rehearsed arguments that I have put forward against a defined climate mission. I remind noble Lords that UKRI, through which the overwhelming majority of our public R&D funding is delivered, funds a full portfolio of projects focused on tackling climate change. Where there are specific research and innovation needs to support the Government’s strategic priorities in this area, UKRI delivers across: adaptation and resilience; clean energy; and sustainable industry, agriculture and transport. I think we are all aligned behind the idea that ARIA should complement, not duplicate, our existing capabilities. That is why this amendment is rightly presented now as a more general obligation. The excitement and support that ARIA has generated within the research community has been based on its different model of funding, with agility and risk appetite absolutely central to all the recommendations of how and why ARIA should be created.

ARIA should not be focusing on the scale-up and exploitation of known technologies, for climate change or indeed any other government priorities; noble Lords with expertise in this area will know well that the extent of its funding, at £800 million over five years, makes it completely unsuitable to play such a role. ARIA will contribute by focusing its programmes on the most ambitious objectives, and funding high-risk research and innovation to achieve them. When ARIA finds solutions to these hard problems or gathers learnings along the way, they will be adapted and applied to other fields in different contexts: that is where the benefits to our climate ambitions are likely to be felt.

Breakthroughs in materials science led to huge progress in what is possible in terms of battery storage or fusion. Those technologies are now critical to the energy transition, but much of the original research was not done with that goal in mind. Being prescriptive limits the scope to take completely novel approaches, as we hope and expect ARIA will do. Placing this obligation on ARIA requires us to answer the question: who will assess whether the radical breakthrough targeted by an ARIA programme might—in future, in some way—contribute to our climate goals?

The National Audit Office will assess the regularity of ARIA’s spending each year, which would include this addition to its funding. Is it well placed to make this assessment? That is not intended as any slight at all on the NAO—I am sure the noble Lord, Lord Morse, will be glad to hear that. However, I submit that even the researchers and innovators steeped in a technology cannot predict how it might evolve or be applied in the years to come. That is the nature of innovation and high-risk research. Essentially, it is unknowable. Adding this provision to the Bill asks us to make that essential assessment not only knowable but justiciable. Whoever performed the assessment of whether ARIA’s activities fell within the scope of this obligation would have their judgment subject to judicial review.

I strongly suggest that the actual effect of this amendment would be to push ARIA towards objectives where the assessment would be clear cut. It would disincentivise risk-taking, new approaches or exploring the application of technologies in unusual or unprecedented contexts. I submit that it would work against the grain of everything we are seeking to achieve with this organisation—

[Lord Lea of Crondall (Non-Afl)]

Is it not a fact that, although the Minister believes that we cannot make concrete commitments on method, we now have some very concrete commitments on outcomes? Glasgow is the best example of medium-term commitments. Unless we monitor those against the metric—the Minister will know that he used that word some months ago—how do we get around the following dilemma? We have concrete commitments on outcomes in a lot of areas but are now putting quite serious dilemmas—I am not saying it is nit-picking—before ourselves as to how we can make sure that we are on track to go where we are trying to get to.

[Lord Callanan (Con)]

I thank the noble Lord for his contribution. I am not 100% sure of the point that he is making. I agree with him that we have concrete commitments, but we have a well-defined track of a number of strategies heading towards those commitments. In the Bill we are talking about funnelling one small part of our R&D funding into a separate agency, while seeking to take novel, innovative approaches to research and development.

I have cautioned against placing this obligation in the Bill but that does not mean that it is unimportant for ARIA to have an awareness of these issues, as the noble Lord, Lord Ravensdale, articulated so forcefully. I am pleased that many noble Lords attended the briefing we held where my colleague George Freeman, the Minister for Science, Research and Innovation, discussed this. It is not plausible that any appropriate CEO candidate for ARIA would be ignorant of the opportunities connected to net zero within research and innovation. There is a similar situation with regard to Amendment 5 and the sustainable development goals, raised by the noble Baroness, Lady Bennett of Manor Castle.

As a result of the ongoing discussions that we have had on this issue during the passage of the Bill, I am able to commit now that, as an alternative, ARIA will evaluate itself against the pillar of the 2021-25 greening government commitments most relevant to this amendment on mitigating climate change by working towards achieving our net-zero environmental goal. This would be included within the framework document; ARIA would therefore be required to consider this objective from its very first cycle of reporting and evaluation.

I also agree that it is through its projects, and its funding, that ARIA’s greatest contribution to our net-zero objectives will be made. I can therefore also commit that ARIA would have regard to its projects contributing to our climate change targets and environmental goals. This is distinct from the sustainability reporting framework and should sit alongside it as a broader obligation, rather than being part of that evaluation process. That consideration would again be included in ARIA’s framework document. In my view, that is the appropriate place for such requirements, which relate to the effective governance of the organisation and its alignment to wider public sector objectives, as it can be more readily updated to reflect changing circumstances or priorities.

19:30

The existing reporting requirements, as set out in Her Majesty’s Treasury’s sustainability reporting guidance, mean that environmental and social considerations are well catered for within existing public sector authority obligations. I hope that will reassure noble Lords that the statutory requirement for a specific ESG strategy, as introduced by Amendment 19 in the name of the noble Lord, Lord Ravensdale, is unnecessary.

There are a huge number of possibilities here that I would be happy to discuss further, but I strongly believe that the effect of this amendment would not be productive for ARIA or our climate ambitions. I am grateful to all noble Lords for their contributions and thank the noble Lord, Lord Ravensdale, in particular for his engagement and correspondence on the subject and for acknowledging in a reasonable and productive way the concerns I have set out and the alternative I have proposed. I hope this outcome is productive and acceptable to all and that it will enable noble Lords to withdraw or not move their amendments.

[Baroness Bennett of Manor Castle (GP)]

I apologise; the procedure is a little different and more complicated because I put down an amendment to an amendment. It is not my intention to respond substantively to the Minister’s response to Amendment 4. The noble Lord, Lord Ravensdale, has consistently championed Amendment 4 and variations of it, so it is most appropriate that he responds on that one. I should just say that I failed to declare earlier that I am a member of the committee for Peers for the Planet. On Amendment 5 and my side of this, I do not think the Minister responded to my question about defining quality of life. I realise this may be a legally complicated matter, so will he commit to write to me about this and lay a copy of the correspondence in the Library?

[Lord Callanan (Con)]

Regarding the noble Baroness’s question on the definition of the quality of life—we are getting into a very esoteric debate for this time of night—I do not think there is a technical definition specific to her suggestions that I can point towards. It is not in such common usage but, if I can find an appropriate definition, I will of course send it to her.

[Baroness Bennett of Manor Castle (GP)]

I thank the Minister for his answer. I want to make one other point very quickly. He talked a lot about the hard sciences. It is interesting that, when we had a private discussion with a number of his colleagues, there was also a lot of focus on what might be described as the softer biological sciences and issues such as plant health and the human microbiome. I hope those will be considered within ARIA’s remit. I beg leave to withdraw my amendment.

Amendment 5 (to Amendment 4) withdrawn.

[Lord Ravensdale (CB)]

My Lords, I am most grateful to the Minister for his proposal and for ensuring that ARIA will be asked to demonstrate through integrated reporting how sustainability is an essential characteristic within its strategic objectives, operations and policy-making. I believe that this proposal meets the intent of my original amendments through implementation in the framework document. It will ensure that ARIA has regard to the areas set out in my original amendment; it will be asked to consider and demonstrate how it has met them. In particular, as he said, it will ensure that ARIA has regard to its projects contributing to our climate change targets and environmental goals. Through working together with the Government, we have reached a good compromise on this issue. I again thank the Minister, his team and my supporters and beg leave to withdraw my amendment.

Amendment 4 withdrawn.

Amendment 6

Moved by

[Lord Clement-Jones]

6: Clause 2, page 2, line 18, at end insert—
“(7) ARIA is a public authority within the meaning of section 3 of the Freedom of Information Act 2000, and Schedule 1 to that Act is amended accordingly.”Member’s explanatory statement
This amendment would subject ARIA to Freedom of Information requests.

[Lord Clement-Jones (LD)]

My Lords, Amendment 6 is in my name and that of my noble friend Lord Fox, the noble Baroness, Lady Chapman, and the noble Viscount, Lord Stansgate. As my noble friend said in Committee, without the FOI amendments, ARIA would follow in the footsteps of a very small number of institutions that currently do not have Freedom of Information Act obligations. I will not extensively rehearse all the arguments, but suggest that the organisations involved, which include the Royal Family and security and intelligence bodies, are not natural bedfellows to ARIA. The Minister complained about the burdens for ARIA of responding to FOI requests but nowhere, not even in Dominic Cummings’s evidence to the Commons Science and Technology Committee last February, was the FoIA identified as an obstacle to ARIA’s success.

The Minister has continually highlighted that ARIA is modelled on DARPA. ARPA was subject to the US Freedom of Information Act and DARPA is subject to it as well. This has not prevented them achieving the successes which the Government wish ARIA to emulate. We talked in Committee about the equivalent number of requests received before the restructuring of the research bodies, which were exactly equivalent to those of DARPA. The argument that DARPA charges fees falls away too. The main classes of requester—the news media and educational staff—and requests in the public interest are not charged. In practice, only commercial requesters have to pay.

As I said in Committee, there is no question that, under the FoIA, ARIA’s research programme could be prejudiced, given the clear exemptions under the Act for research interests. In Committee, the Minister gave away the real reason for the Government’s refusal to include ARIA under the FoIA. He illustrated his general contempt for freedom of information legislation, saying:

“From my point of view, it is a truly malign piece of legislation”,


and that

“there must be many hundreds of civil servants engaged in doing nothing other than responding to these fishing expeditions”.

It looks like this is personal—or is the truth that the Government find the daylight shed on them by the FoIA truly inconvenient, and ARIA is just the start of an erosion of FoIA rights?

Transparency is crucial for all our public institutions. ARIA will be in receipt of a substantial amount of public funding—£500 million over the next three years—so there are compelling grounds for its inclusion. Coming under the FoIA is an essential part of retaining public trust.

As regards Amendment 7, which relates to procurement, the Minister said in Committee that:

“When ARIA is commissioning and contracting others to do research for it, it will be operating in a fundamentally different way from traditional R&D grant-making where procurement rules do not apply.


In my view, it is therefore appropriate for ARIA to be given freedom from procurement rules to ensure that the agency has greater flexibility in its contractual arrangements.”—[Official Report, 22/11/21; cols. GC 147-49.]


If ever I heard a circular argument, that was it.

Why are the Government having to perform drafting contortions to exclude ARIA from these procurement requirements in the Bill? Why on earth should ARIA not be subject to exactly the same procurement regime as other public bodies? UKRI is subject to rules and procures and commissions services, including research services. What makes ARIA so different? I beg to move.

[Viscount Stansgate (Lab)]

My Lords, I rise to speak to Amendment 6, to which I added my name. This is a subject I raised at Second Reading, but I reassure the noble Baroness acting as the Whip that, on this occasion, she can relax; there is unlikely to be any need to interrupt me on the grounds that I have gone on too long, because I want to be very brief.

There are two reasons why ARIA should be subject to the Freedom of Information Act. The first is one of principle. Public bodies set up in statute should be subjected to the same FOI requirements as apply elsewhere. In this country, I submit that FOI legislation is an essential safeguard in the political world in which we now live. To reject this amendment will send a bad signal and set a bad precedent. I even suggest to the Minister that he may reconsider his view as and when he sits on these Benches in the future.

The second reason is practical. We do not want to allow ARIA to come to be viewed with public suspicion and distrust, especially as it has the right to fail, so being open about its work will be beneficial. If it turns out that it is not easy to discover what it is doing, public support for ARIA might be damaged, to the detriment of its wider role. It is not difficult to imagine circumstances in which a campaign is waged against ARIA for excessive secrecy, possibly utilising inaccurate information about it, and for public support to be damaged; nor, in my judgment, would making ARIA subject to freedom of information turn out to be an excessive practical burden. Moreover, if there are aspects of ARIA’s future work that turn out to be sensitive, the Government already have powers elsewhere in the Bill for the Secretary of State to intervene on grounds of national security.

I will leave my remarks there, but I strongly urge the acceptance of Amendment 6.

[Baroness Noakes (Con)]

My Lords, I spoke about the freedom of information aspects of these two amendments in Committee, and I repeat that I think it is reasonable to exclude ARIA from the freedom of information requirements.

I do not regard the Freedom of Information Act as malign, and I am sure my noble friend does not either. It is appropriate in many cases that our public bodies are opened up, but it is true that it is burdensome. That has been a constant complaint, and certain kinds of organisations attract lots of fishing expeditions which increase the burden, and this goes beyond what would be regarded as being reasonable.

In Committee, I quoted both Tony Blair—who, having introduced the Freedom of Information Act, had a Damascene conversion and did not regard it as a helpful thing in the end—and Professor Philip Bond, the Professor of Creativity and Innovation at the University of Manchester. Both of them highlighted the fundamental reason why ARIA should be free from the Freedom of Information Act: because the last thing our scientists need when looking at the next internet, or whatever it is, is to be overcome with excessive caution because they are worried about what would happen if their conversations had to be revealed through Freedom of Information Act requests. Creativity thrives in an environment where it is not subject to ex-post analysis.

The other reason why I wanted to speak this evening is that I do not understand why Amendments 6 and 7 have been positioned as they are in Clause 2. They seem to set up a conflict with the provisions of Schedule 3, which is introduced by Clause 9. I have not followed through the detailed drafting in respect of freedom of information, but I have followed it through in respect of the Public Contracts Regulations. Basically, Amendment 7 says that the regulations will apply to ARIA, while paragraph 17 of Schedule 3 says that the requirements do not apply to ARIA.

So, the effect of these amendments—and I believe the same is true of the freedom of information amendment, but I have not completely followed that through—is that one part of the Bill would say that the requirements do not apply, but the next part would say that they do apply. That does not seem to me a very clever way to write amendments or legislation, so I suggest that the amendments themselves are defective. Also, I think they are defective in drafting terms—in particular, the public contracts amendment does not mention the separate Scottish regulations, which are included in paragraph 17 of Schedule 3. Paragraphs 13 to 15 are much more complex than Amendment 6, so that may well not be as effective as noble Lords seem to suggest.

[Baroness Chapman of Darlington (Lab)]

My Lords, Labour tabled a combined version of Amendments 6 and 7 in Committee, and we welcome the re-tabling of the text by the noble Lord, Lord Clement-Jones. We debated FoI extensively at Second Reading, in Grand Committee and in private meetings with the Minister and his officials. Despite the strong feelings expressed, the Government have offered us absolutely nothing—not just on FoI but on transparency more generally.

The Government’s determination to keep ARIA’s projects and decision-making secret is worrying. This is a matter of principle: do they believe in transparency, or not? If they do, such a measure should be put in the Bill. If they do not, they have not really given us a sufficiently good explanation for their reluctance to do this. We believe that it is in ARIA’s best interests to have the benefit of engagement of the public through the use of FoI. Failing to do that is not going to stop ARIA’s activities becoming known; it will just happen in a less controlled manner and create more suspicion.

19:45

Previous arguments about the huge burden of FoI—in the Minister’s terms—appear to be somewhat disingenuous. We appreciate the Government’s desire for ARIA to be a small and agile body, but they have produced no evidence at all that such a body would be overwhelmed by requests. Indeed, at earlier stages, there was an extensive discussion about DARPA, which receives an average of just under one FoI request per week.

In Committee, the Minister said that this comparison was not appropriate as DARPA charges fees for such requests and this keeps the numbers manageable, but he must accept that that statement was not a full reflection of what happens with DARPA. Other than a small bill for a large photocopying job, for example, fees are not payable by the news media, educational staff or non-commercial scientific researchers, and waivers are granted if requests are in the public interest.

We remain concerned about the issues with the Public Contracts Regulations. The Minister knows we are not happy about his approach to that, but our priority on this group is the issue of FoI, and we will support that amendment if it is put to a vote.

[Lord Callanan (Con)]

I thank noble Lords who have contributed on this group of amendments. Turning to Amendment 6 in the names of the noble Lords, Lord Clement-Jones and Lord Fox, the noble Baroness, Lady Chapman, and the noble Viscount, Lord Stansgate, I start by thanking my noble friends Lady Noakes and Lord Patten for their supportive statements in general as the Bill has progressed through this House.

ARIA will be a lean, streamlined agency which we expect to employ people in the tens. It will recruit a small team of exceptional individuals with both technical expertise and scientific vision. I contend that it is appropriate that we consider how their time, focus and energy is best applied.

We have designed this new, unique agency to operate and behave in a way we do not usually see in the public sector—with leanness, agility and efficiency being core to its function. We have also tasked it with embracing risk and failure. As noted by my noble friend Lady Noakes during consideration in Grand Committee and again this evening, these exceptional scientists should not be fearful of or driven to risk-aversion by the prospect of FoI disclosures, nor should they be distracted or bogged down by the bureaucracy of fulfilling such requests.

The issue of the volume of FoI requests we expect ARIA to be subject to has been raised throughout the passage of this Bill, and comparisons have been drawn between the number of requests received by smaller public bodies such as parish councils, and other research organisations such as UKRI. Pursuing this exemption reflects our expectation that, given ARIA’s profile, its focus on high-risk research and the speculation on its activity so far, it would indeed be subject to a disproportionately high number of FoI requests. It is not accurate to suggest that ARIA would get the same number as a single UKRI research council or other small organisations. It is already clear that its activities will generate a much higher degree of interest and, therefore, corresponding requests.

The noble Lord, Lord Clement-Jones, made a comparison to the number of FoI requests to DARPA. Let me remind the noble Lord that when making an FoI request in the US, requesters are required to consider paying applicable fees up to $25. If requests are expected to exceed this cost, the requester is notified to agree additional payment. While fee waivers or reductions can be granted in certain circumstances, it is not a like-for-like comparison to the FoI process in the UK. Therefore, in my view it is not right to assume that ARIA will receive a similar number of FoI requests to DARPA.

I also reassure noble Lords that our reasons for placing ARIA outside FoI legislation are specific and do not extend to other new public bodies, which will not have the same requirement for flexibility and agility and therefore will not require the same exemption.

However, to suggest that the agency will therefore be operating under a veil of secrecy is, in my view, not accurate. We expect ARIA to be an outward-facing and transparent body, which will proactively provide information about its activities to encourage collaboration around its programme goals, increase public understanding of its work and build public trust. Alongside this, it will be held to account by robust transparency arrangements. Let me remind noble Lords about them. It will publish its annual report and a statement of accounts, which will be laid before Parliament. It will be subject to annual audits by the National Audit Office. It will appear before and be accountable to Parliament through its chief executive officer and it will remain, of course, an arm’s-length body of my department in BEIS.

That said, I have also taken into account the opinions of noble Lords on this matter. To reflect the considered debate in Grand Committee on the balance of ARIA’s transparency and accountability arrangements with this unique freedom, I am happy to provide further assurances to noble Lords on ARIA’s reporting requirements. Annually, ARIA will proactively publish information on its regional funding and will make information publicly available on all delivery partners supported through the full range of its funding mechanisms. Taken alongside and together with ARIA’s annual report and accounts, these are significant and robust transparency arrangements which will ensure Parliament and the general public are informed of ARIA’s activities, the projects it funds and where it funds them.

I hope that, given these reassurances, noble Lords are satisfied that the FoI exemption serves an important function for ARIA and that we have struck the right balance here. I thank them for their input.

[Lord Browne of Ladyton (Lab)]

Before the Minister moves on to the next amendment and off the FoI amendment, has he read the Department of Defense information handout? That makes it clear that the vast majority of those who request information from DARPA would not have to pay any fee at all. Can the Minister share—either now or at some point—with noble Lords the genesis of his belief, which he has now repeated a number of times, that everyone who asks for information from DARPA has to pay a fee in the United States? If that is not true, then the comparison that we all make is a relevant comparison and is the only data; the only other thing we have is the Minister’s animus against freedom of information requests. And is he aware of the provisions of Section 19 of the Freedom of Information Act?

[Lord Callanan (Con)]

I think the noble Lord will find, if he looks at my remarks, that I did not say that every applicant will pay fees but that there is a general expectation that a fee of $25 will be charged, or even more in some cases if more information is required. However, there are exemptions to that, which can be exercised. If the noble Lord looks back at Hansard, he will see that I did not say that everyone would be charged a fee. In most cases, a fee would be applicable, but there are certain exemptions.

I turn to Amendment 7, in the names of the noble Lords, Lord Clement-Jones and Lord Fox, and the noble Baroness, Lady Chapman, which relates to procurement regulations. I note that the noble Lords did not address this, but it is worth while setting out the Government’s position on that amendment. I believe there are clear reasons why this exemption is beneficial to ARIA and why it will be integral to the agency’s effective operation. First, unlike other R&D funders, ARIA will be commissioning and contracting others to do research for it in pursuit of its own technological visions or research goals. The process of contracting and commissioning means ARIA will be operating in fundamentally different ways from traditional R&D grant making, where procurement rules already do not apply. Placing ARIA outside the existing public procurement rules will mean that the agency can freely procure expert investment and consultancy advice, which will be important given the highly varied and technical nature of the agency’s work.

While we imagine that the bulk of ARIA’s research activities will be carried out by its partners and funders, it remains possible that ARIA may wish to procure and own a piece of research equipment to crowd-in interest from other research partners, or to accelerate the progress of a project. Freedom from traditional procurement rules will facilitate ARIA making those investments quickly and with ease. In my view, it is appropriate for ARIA to have greater flexibility than the R&D exemption would afford it so that it can design and tailor its contractual arrangements to precisely suit its research endeavour.

Secondly, in designing ARIA, we have put a premium on the agency investing and acting quickly. In our view, this agility would be incompatible with the public tendering process mandated in the Public Contracts Regulations 2015, which can require contracting authorities to put contracts out to open tender for up to two to three months. Such a delay could prevent critical investments being made with sufficient speed or, indeed, at all. In choosing to exempt ARIA from standard procurement rules, we have learnt from the successful approach taken by DARPA, which benefits from “other transactions” authority, giving the agency the flexibility to operate outside traditional US government contracting standards. It is our belief that ARIA should benefit from similar flexibilities.

I also dispute the notion that taking ARIA outside traditional procurement rules will leave the agency vulnerable to cronyism. I think this was a point made by the noble Baroness, Lady Chapman, in Committee. This exemption will ensure ARIA’s leadership and programme managers—who have been recruited for their technical expertise and scientific vision—can take decisions on ARIA’s procurement with autonomy, as they will have the freedom to procure at arm’s length from government and Ministers.

As I have already detailed, ARIA has clear lines of accountability, transparency and scrutiny in the preparation of its an annual report, scrutiny by the NAO and an annual independent audit to report on its procurement activities. As I have already alluded to, to reflect the constructive and considered debate in Grand Committee, ARIA will publish information on its delivery partners, and this expectation will be detailed in ARIA’s framework document. I thank the noble Baroness, Lady Chapman of Darlington, for tabling an amendment to that effect previously. I hope she and other noble Lords welcome this principled commitment to transparency, which would extend to delivery partners supported through the full range of ARIA’s funding mechanism.

In conclusion, I hope noble Lords have been assured that exempting ARIA from traditional procurement rules will be integral to the agency’s effective operation. The package of accountability, conflict of interest procedures and governance provisions that sit within this Bill are an appropriate counterbalance to that. Taken in the round, this represents an essential, proportionate and balanced freedom, placed in the hands of ARIA’s incoming leadership and programme managers. Taken together, I hope that the assurances and explanations I have been able to provide for noble Lords will allow the noble Lord to withdraw his amendment.

[Lord Clement-Jones (LD)]

My Lords, I thank the Minister for his response and thank noble Lords who have taken part in this debate. There is clearly an argument to be had on our Amendment 7 and the whole procurement regime. The one argument that the Minister has is that DARPA is not subject to procurement rules.

However, the position is quite other on Amendment 6, as the noble Baroness, Lady Chapman, has said. This is a matter of principle. The Minister keeps coming up with some quite colourful phrases. This evening he said that scientists should not have to be fearful at the prospect of FoI disclosure. That is quite an interesting phrase—those scientists quivering in their labs, waiting for freedom of information disclosure. I must say it is quite a colourful way of looking at the situation, but, clearly, we have a matter of principle to decide on here, and I would like to test the opinion of the House.

19:59

Division 2

Ayes: 126

---

Labour: 64
Liberal Democrat: 48
Crossbench: 8
Independent: 3
Green Party: 2
Ulster Unionist Party: 1

Noes: 134

---

Conservative: 115
Crossbench: 11
Democratic Unionist Party: 5
Independent: 3

20:12

[The Deputy Speaker (Baroness Fookes) (Con)]

We come to Amendment 7 in the name of the noble Lord, Lord Clement-Jones. Is it moved or not moved?

[Lord Clement-Jones (LD)]

My Lords, I am speaking to and will support Amendment 9.

[The Deputy Speaker (Baroness Fookes) (Con)]

One moment. I asked about Amendment 7 in the noble Lord’s name.

[Lord Clement-Jones (LD)]

Not moved.

Amendment 7 not moved.

Clause 4: Grants to ARIA from the Secretary of State

Amendment 8 not moved.

Clause 8: Power to dissolve ARIA

[The Deputy Speaker (Baroness Fookes) (Con)]

Now we get there. Amendment 9, Lord Clement-Jones.

Amendment 9

Moved by

[Lord Clement-Jones]

9: Clause 8, leave out Clause 8

[Lord Clement-Jones (LD)]

My Lords, in Committee the Minister explained that he accepted the DPRRC’s recommendations regarding Clause 10, and indeed was taking it out of the Bill, but added:

“Clause 8 is, I believe, an important part of the Bill. Although the DPRRC also raised concerns about this power, there is a strong policy rationale and a clear precedent for this particular delegation of power.”


He was then able to cite one solitary example, the Administrative Justice and Tribunals Council, which was dissolved by the super-affirmative procedure, but he admitted that that was in the context of widespread public body reform. He continued:

“In contrast, the power in Clause 8 is narrow, such that ARIA can only be dissolved. It cannot be merged or have its functions or governance changed in any way, as set out in my response to the DPRRC last week.”—[Official Report, 22/11/21; cols. GC 162-63.]


I still believe that the objection from the DPRRC stands. It said it was not necessary legally, politically or practically for something created by primary legislation to be dissolved by secondary legislation. On the contrary, if Parliament creates ARIA, the right to dissolve it should naturally belong to Parliament.

This is all reinforced by the recent report of the DPRRC, Democracy Denied? The Urgent Need to Rebalance Power between Parliament and the Executive. This kind of power assumed by the Government is what it objects to. I agree with the committee’s conclusions that we need to stop this accretion of Henry VIII powers by the Government, who are still proceeding willy-nilly in the face of the clear views and warnings of one of our own very well-respected committees.

The Minister said that these were narrow and limited powers, but what could be wider than abolishing the very subject of the Bill? That seems to be an extraordinarily wide power and a completely unjustified use of a Henry VIII power. So I look forward to the Minister’s reply but I very much hope that the Government will rethink their response to the DPRRC’s objections to the inclusion of Clause 8. I beg to move.

20:15

[Lord Davies of Brixton (Lab)]

My Lords, I am disappointed that the noble Lord, Lord Fox, is not with us this evening because, following Committee—which I attended, sat through, listened to all the debates of and did not say a word in—he said he was surprised that I had not found something better to do with my time. I just wanted to explain that I am extremely interested in this subject, but I am interested not in the detailed implementation of this legislation but in what it says about how research should be conducted. I am also glad that we have been joined by the Whip, the noble Viscount, Lord Younger, because, in a previous debate on another subject, he cast me as a pessimist—and I have to own up to being a pessimist on this particular proposal as well.

However, I support the Bill because it provides an interesting scientific experiment from which we can learn. We have a very small sample size: we have the existing system and the new system, a sample of two. But, as scientists often do, we have to work with the material that we have. So I am pleased that we have this proposal. Let us see how it works—albeit that I am a pessimist.

So, in Amendment 10, I am proposing that the Government should commit themselves to a review of how this proposal affects the corpus of research that takes place in the United Kingdom. This is a helpful suggestion. If pushed, I might possibly accept that it is unnecessary, because it will be done anyway. People will look to see what happens, and I just hope that the Government will recognise this and build it into the legislation.

I support Amendment 9—clearly this is an overreach of power on the part of government. I also support my noble friend Lord Stansgate’s Amendment 11, which proposes a much more detailed and thorough review of how this proposal matches up against the specific objectives that the Government have set out.

[Viscount Stansgate (Lab)]

My Lords, I will speak to Amendment 11, which is in my name. Of course, the idea behind it also applies to Amendment 10, as just outlined by my noble friend Lord Davies of Brixton, who has probably halved my speech because there is no need to repeat everything.

This amendment is very straightforward. It seeks to ensure that, at an appropriate time—I have suggested half way through its allotted 10 years—Parliament has the chance to be sure that ARIA is fulfilling its broad mission. After all, as we all agree, we are doing something new, and, while it is scheduled to receive only a small amount of funding compared with the wider scientific landscape, the fact is that we are still talking about £800 million of public money. So I ask the House: is it that unreasonable to want to ascertain how it is getting on after five years?

In looking ahead, Parliament will want to be sure that, for example, ARIA has not begun to duplicate work that can or could be done elsewhere—by UKRI, for example. Parliament will want to be satisfied that it has not been captured in some way by a scientific cabal or that it has not become involved in dealing with what you might call the “known unknowns”—because other parts of the scientific world are in charge of that—when we want it to focus on the “unknown unknowns”. We are all hoping—at least, I hope that we are—that ARIA will continue to focus on exciting and potentially disruptive new areas and inventions.

The purpose of this amendment is not—I repeat, not—to enable a future Government or Parliament to require a report into every single programme with which ARIA is engaged, or to burden ARIA with what we might call “excessive accountability”. We have already agreed to give the programme managers a huge degree of freedom, including the freedom to fail. However, we must remember that ARIA’s initial lifespan of 10 years will span at least one Parliament and maybe more, and it seems reasonable, without placing too great a burden on it, to enable a future Parliament to have the chance to satisfy itself that it is fulfilling its strategic mission. I look forward to the Minister’s reply and commend this amendment to the House.

[Baroness Chapman of Darlington (Lab)]

My Lords, we remain disappointed that the Government failed to accept the Delegated Powers and Regulatory Reform Committee’s recommendation to omit Clause 8, which provides a very broad power to be carried out with minimal parliamentary scrutiny. I am not surprised that the noble Lord, Lord Clement-Jones, has retabled the amendment, although I suspect that the Government will not change their approach this evening.

I am grateful to my noble friends Lord Davies of Brixton and Lord Stansgate for tabling their Amendments 10 and 11, which would ensure that there is better understanding of ARIA’s work as it progresses toward the magic 10-year mark. We agree with the thrust of both those amendments. On Amendment 10, it is important that lessons can be learned and any required changes enacted to ensure that ARIA’s funds are continually put to the best possible use. Amendment 11 would give Parliament a loose oversight role, which feels incredibly important, given its almost complete lack of involvement once the body has been established. I noted that when he was in his place earlier, the Minister described the arrangements that the Government are proposing as “robust”. I gently say that they are anything but.

We hope that the Government see some merit in these proposals. It is not clear that the provision needs to be statutory—I accept that—but can the Minister give a clear commitment about interim or periodic reviews beyond the publication of annual reports, which are the absolute minimum that we should expect, and opportunities for Members of this House and the other place to discuss and debate them?

[Baroness Bloomfield of Hinton Waldrist (Con)]

I want to start by addressing the comments on the Delegated Powers and Regulatory Reform Committee’s report on this Bill. As noble Lords will know, the Government made significant changes to the Bill in Committee to respond to the DPRRC’s recommendations. We have taken its report extremely seriously and shown that we are willing to engage with, and act on, its recommendations.

Regarding the committee’s other recent report, on the delegation of power more generally, we would submit that the changes we have made to this Bill are a clear demonstration of the relationship between the legislature and the Executive operating as it should and of legislative proposals submitted and amended in response to scrutiny. Certainly, what we are proposing for ARIA is a world away from some legislation made in the context of Brexit or the pandemic, which is the focus of the committee’s concern in its report.

We have carefully considered the committee’s recommendation with regard to Clause 8. In our view, the power to dissolve ARIA through regulations made under this clause, which would be omitted by Amendment 9 in the name of noble Lord, Lord Fox, remains an important part of the Bill. We have decided not to accept the recommendation in this instance because there is both a strong policy rationale and a clear precedent for this delegation of power.

As was said in Committee, the power can be exercised only 10 years after the Bill receives Royal Assent, and it is therefore an indication of the Government’s long-term commitment to ARIA. I think there is broad agreement that this patience will be essential if ARIA is to pursue successfully the most ambitious research and innovation. It goes to the heart of what ARIA is about. It must have the opportunity to prove itself before it is judged, and this has been recognised by many R&D stakeholders.

In Committee, my noble friend Lord Callanan referred to the precedent for this delegation of power. Under powers contained in the Public Bodies Act, several bodies established in primary legislation have been dissolved by statutory instrument. Again, if noble Lords will permit me, I will refer to the Administrative Justice and Tribunals Council, which was created by the Tribunals, Courts and Enforcement Act 2007 and was abolished using powers from the Public Bodies Act in 2013. The Public Bodies Act gave Ministers broad delegated powers not just to abolish bodies but also to merge them and change their governance structure and functions. That goes far beyond the power in Clause 8. As we do not know the context in 10 or more years’ time, when this power might be exercised, it is right that it is applicable in a range of scenarios.

On consultation, there is a broad requirement for the Secretary of State to consult those they think appropriate. I suggest that Parliament and Select Committees will be included among these stakeholders, and that the Secretary of State will think it appropriate and necessary to consult them. We do not believe that there is no opportunity for parliamentarians to be involved in those discussions. I hope I have managed to convince noble Lords of the seriousness with which we take the DPPRC’s recommendations, the careful consideration we have given to its view of Clause 8 and the very good reasons I think there are for departing from its recommendation in this instance, and retaining it. I hope noble Lords are convinced and that the noble Lord, Lord Clement-Jones, feels able to withdraw his amendment.

The power in Clause 8 shares with Amendments 10 and 11 a recognition of the experimental nature of ARIA, which has been highlighted by many in the R&D community. These amendments speak to our desire to extract the greatest possible benefit from our £800 million investment in this new agency. We hope those will be both direct benefits from the research and innovation it funds and indirect benefits in terms of learning that can be applied to R&D funding in the UK more generally. I hope that learning will be a dynamic process, and while I sympathise completely with the intent behind these amendments, I hope I can reassure noble Lords that there are already more than adequate arrangements in place for public bodies such as ARIA to be formally reviewed. I do not think anything further is necessary.

Amendment 11 in the name of the noble Viscount, Lord Stansgate, introduces a review of various aspects of ARIA’s operations, including whether it has fulfilled its functions and achieved value for money. Both of these are core considerations of the National Audit Office. The regularity of ARIA’s spending—whether it is in line with its functions—will be part of the annual assessment and certification of ARIA’s accounts, and the NAO will be able to conduct value-for-money examinations of ARIA as per the National Audit Act in the usual way. I hope the noble Viscount will agree that a further review mechanism on these points is not needed.

I turn to the second two elements of this amendment, which deal with the geographical spread of grants and ARIA’s transparency arrangements. I stand by my noble friend’s earlier commitment that ARIA will proactively publish information on its regional funding annually and, in the interests of transparency, make information publicly available on all delivery partners, supported through the full range of its funding mechanisms. I hope this reassures the noble Viscount, Lord Stansgate, that there are already arrangements in place to cover all these important points he has raised and that he does not feel it necessary to press his amendment further.

Amendment 10 is very specific to ARIA. As I have said before, I do not think a one-off formal report is the right way to envisage these lessons being learned. It should be a dynamic process: some important points may become apparent relatively quickly while some advantages or disadvantages of the ARIA model may not emerge even within the six years outlined in this amendment. We have discussed the need for patience, and I believe that means we must resist, as far as possible, the temptation to poke and prod and investigate this new organisation. Clearly, there is a balance to strike here, but it is my contention that the default position must be to let it be and gather these learnings in the most light-touch way we can.

In his amendment, the noble Lord, Lord Davies of Brixton, has allowed an entire year for the review to be conducted and published. That indicates a significant intervention in ARIA’s activities and a degree of close scrutiny that I do not think is a natural companion to risk-taking and high ambition. I note that the noble Baroness, Lady Chapman, also expressed concern about 10 years being a long time without scrutiny. There are a number of avenues for scrutiny—as a public body, ARIA will be subject to tailored reviews of its governance and effectiveness. It will need to bid for new funding in coming years and evidence its effectiveness and impact at that point. I hope the noble Lord will accept my assurances that it is absolutely our intention to learn from ARIA to the benefit of the wider R&D system, and that he will not press his amendment, on the grounds that such a structured and formalised obligation may not be the most appropriate way to do so.

20:30

[Lord Clement-Jones (LD)]

My Lords, I thank the Minister for her reply, which, I am afraid, amounted to a very polite raspberry to the DPRRC. She used very polite phrases such as “carefully considered”, but the fact is that the Government are intent on ignoring one of the major recommendations of the committee—namely, that the powers in Clause 8 are inappropriate.

The Minister talked about a clear precedent, and I referred to the precedent that the Minister, the noble Lord, Lord Callanan, cited in Committee. But when the Administrative Justice and Tribunals Council was abolished, it was done by the super-affirmative procedure, and the Government have not even offered to use that in this case. This is rather different to that situation; this is effectively abolishing the whole substance of what the Bill is about: ARIA itself. I do not think there could be anything more radical than a Henry VIII power that does that.

I am afraid that I do not really regard what the Minister said as a full response to the DPRRC, and I am certainly not persuaded by the Government’s position. But this is part of a longer, long-running argument between the Executive and Parliament. Clearly, the DPRRC, which I support very strongly, wants much greater parliamentary involvement and oversight in decisions such as this. It believes that, where possible, primary legislation is the appropriate instrument, not secondary legislation. Does the Minister want me to give way?

[Baroness Bloomfield of Hinton Waldrist (Con)]

Before the noble Lord sits down, perhaps I could come back on the specific point he made about the Public Bodies Act. This Act was developed in the context of widespread public body reform. It was therefore appropriate that the super-affirmative procedure was applied. In the context of much broader powers, it was right that their use was subject to this higher level of parliamentary scrutiny. In contrast, the power in Clause 8 is much more narrowly defined, such that ARIA can only be dissolved—it cannot be merged, or have its functions or governance changed. That is a significant difference between the two.

[Lord Clement-Jones (LD)]

My Lords, that is a significant difference between us. Merging is one thing, but total abolition is another. Perhaps the Minister could have offered the super-affirmative procedure in those circumstances. As I say, this is part of a long-running argument. The Executive are determined to hang on to their Henry VIII powers. I hope that Parliament will continue to press for fewer Henry VIII powers, much greater use of primary legislation, where appropriate, less use of skeleton Bills, and so on. This is a very broad landscape that we are debating. In the meantime, I beg leave to withdraw my amendment.

Amendment 9 withdrawn.

Amendment 10 not moved.

Amendment 11

Tabled by

[Viscount Stansgate]

11: After Clause 8, insert the following new Clause—
“Interim review of ARIA
(1) Within five years of the date on which this Act is passed, the Secretary of State must undertake a review of ARIA and its operations.(2) The review under subsection (1) must include an assessment of—(a) the extent to which ARIA has, whether acting alone or jointly with others, fulfilled the functions listed in section 2(1),(b) whether projects undertaken or funded by ARIA are achieving value for money,(c) the geographical spread of grants awarded by ARIA, and(d) the operation of transparency measures and whether further measures are required.(3) Upon completion of the review, the Secretary of State must make arrangements for the contents of the review, including any recommendations arising from it, to be laid before and approved by both Houses of Parliament.”Member’s explanatory statement
To enable Parliament to review the work of ARIA after its initial five years.

[Viscount Stansgate (Lab)]

I thank the Minister for her reply. I look forward to reading the National Audit Office reports over the next few years and taking part in such discussions as we may have in this House on how ARIA is developing.

[The Deputy Speaker (Baroness Fookes) (Con)]

As the noble Viscount has made a short speech, I must now put the Question. The Question is that the amendment be agreed.

[Viscount Stansgate (Lab)]

I should have added the words, “I beg leave to withdraw my amendment”.

[The Deputy Speaker (Baroness Fookes) (Con)]

I have just explained that, as the noble Viscount has made a short speech, it is not possible to withdraw, so I must put the Question. It is up to Members of the House how they vote.

Amendment 11 disagreed.

Clause 11: Interpretation

Amendment 12

Moved by

[Lord Craig of Radley]

12: Clause 11, page 5, line 2, after “social” insert “and mathematical”

[Lord Craig of Radley (CB)]

My Lords, I speak to Amendments 12 and 14 in the names of the noble Lords, Lord Browne of Ladyton and Lord Clement-Jones, the noble Viscount, Lord Stansgate, and myself. Noble Lords will be aware that a number of fields of modern technology and research are coming to rely more and more on mathematical sciences. When I gained my degree in pure maths at Oxford over 70 years ago, and for many years since, maths was seen largely as an adjunct to other fields of science and technology, but the world of digital—particularly of AI, machine learning, 5G and quantum computing—is now becoming mainstream. These diverse technologies rely very greatly on mathematics for help to find solutions and answers.

Mathematical sciences today are employed in many ways: from risk analysis of the use of driverless cars to the likelihood of collisions and how best to avoid them in space; from sifting with AI through large quantities of medical data to spot treatments for illness, to the best ways of introducing superfast broadband nationwide; contributing to security risk analyses, or delving into the more esoteric problems of known and unknown unknowns. Mathematical sciences feature in improvements that will benefit the lifestyle and health of wide cohorts of citizens and the esoteric work of astronomers unlocking the secrets of the cosmos. Analysing and predicting trends in the Covid-19 epidemic is another active field in which mathematical sciences play an important part.

The marginalisation and exclusion of mathematical sciences in government legislation prompts this amendment. For example, the 2004 guidelines on research and development limit the definition of mathematical contributions in research and development to the “physical and material universe”. Far from sticking to current definitions in this new legislation, is it not time to recognise the unique and growing contributions of mathematical sciences in the new digital age of AI, quantum computing and much, much more? The ARIA Bill is an ideal opportunity to do so and move on. The focus and capacity of the Bill’s provisions should explicitly embrace the mathematical sciences. These now include “blue skies” maths, which is sometimes referred to as a new form of “pure” maths.

My amendment is thus not a probing amendment; it is a simple and straightforward proposal to reflect the advances being made by mathematical sciences in the digital age. I challenge anyone to assert that this new agency will not be making use of mathematical sciences in its work. This Bill is an excellent opportunity to give the rightful recognition in statute to the key role of mathematical sciences in advanced research and inventions. I beg to move.

[Lord Browne of Ladyton (Lab)]

My Lords, I support the noble and gallant Lord’s amendments and have added my name to them. More broadly, I support the work of the London Mathematical Society and the Protect Pure Maths Campaign to emphasise the importance of mathematics alongside science and technology, not only to the whole STEM ecosystem but to the UK economy overall. The briefing that I have received from them estimates—I am sure this is correct—that mathematics adds more than £200 billion to the UK economy, which is nearly 10% of our GDP; and it is one of the top three subjects for graduate earnings. As the noble and gallant Lord explained, mathematics enables most of today’s exciting and urgent technological developments, including artificial intelligence, driverless cars, and the development of quantum computers and superfast broadband, as well as the modelling of the Covid-19 outbreak, underpinning national security, the finance sector and the rollout of vaccinations.

Mathematics is a British success story. If it gets recognition at this level from Parliament, I am certain that it will send a powerful and supportive message to young people across the country to consider mathematics as a career or for further study—and that can only be a good thing.

[Viscount Hanworth (Lab)]

My Lords, my Amendment 13 does not differ greatly from the previous amendment. Indeed, it differs in only one word: “pure”. In proposing my amendment, I have been mindful that mathematics is in danger in universities from an attempt by administrators to reduce its presence. At the University of Leicester, where I am an emeritus professor, a considerable number of staff described either as “pure mathematicians” or “managerial sociologists” have been sacked. The so-called pure mathematicians have been sacked on account of the unpopularity of maths, as revealed in perennial student surveys. Mathematical subjects tend to be unpopular with students because they are challenging. Nevertheless, they are the backbone of degrees in science, engineering and other subjects. I suspect that the managerial sociologists have been sacked because administrators are loath to recognise the expertise of others in a subject in which they believe they have significant experience. Be that as it may, my present concern is with mathematics.

Very few mathematicians would call themselves “pure” mathematicians. They describe themselves as mathematicians without qualification. Pure maths is concerned with giving order and clarity to the subject of mathematics, of which the exposition stands in constant need of reform. Applied mathematics, as the name suggests, is concerned with applying mathematics to substantive issues. We cannot have the one without the other. Legislation that declares that mathematical advances are not science unless they are advances in representing the nature and behaviour of the physical and material universe speaks of a wrong-headed attitude on the part of administrators who may have little understanding of the nature of science. In derogating the role of mathematics, this attitude could have dire consequences. I hope that the acknowledgement of the importance of mathematics to science will serve to counteract the wave of intellectual vandalism occasioned by the insurgency of administrators that is sweeping through British universities. I beg to move the amendment standing in my name, but I propose that it should stand or fall with the other amendments in this group.

[The Deputy Speaker (Baroness Fookes) (Con)]

I think it may be helpful to your Lordships if I explain that only the first amendment in a group is moved. The noble Lord is speaking to his amendment, but it is moved or not moved only according to its place on the Marshalled List.

[Viscount Stansgate (Lab)]

My Lords, I rise to speak in support of Amendments 12 and 14, to which I have added my name, and the other amendment in this group. I hope the House will appreciate that this is not a subject that was touched on in Committee—so it is fresh for consideration by the House today. It is nevertheless very important. The noble and gallant Lord, Lord Craig, and my noble friends Lord Browne and Lord Hanworth have set out the case in some detail, and I do not want to repeat some of the examples they gave, very good though they are. However, I emphasise that mathematical sciences are vital not just to the future of science but to the work of ARIA.

Amendments 12 and 14 are very simple. They would insert the words “and mathematical” in the definition of scientific knowledge and scientific research in Clause 11. These amendments arise because the mathematical community is unsure about whether mathematical sciences are sufficiently included in the definition in the Bill—and it is because the mathematics community is unsure that this debate is taking place. Sometimes people think of sciences as only, or mainly, the core sciences of biology, physics and chemistry, but this is not the case. Mathematics underpins all the other sciences —hence we now use the term STEM as a routine acronym.

Perhaps I could just briefly introduce into this debate the definition of mathematical sciences that is accepted in the community: it is a group of areas of study that includes, in addition to mathematics, those academic disciplines that are primarily mathematical in nature but may not be universally considered as sub-fields of mathematics proper, such as statistics, computer science, computational science, data science, quantitative biology, operations research, control theory, cryptology, econometrics, theoretical physics, continuum mechanics, mathematical chemistry and actuarial science.

20:45

Noble Lords will note that in the Bill as it stands, the wording reads

“any of the sciences (including the social sciences)”.

Noble Lords might be wondering why in this Bill the social sciences have been specifically included. I think it reflects something of a mistaken belief for many years that social sciences are somehow not proper science, but attitudes have changed over the years. Noble Lords might cast their minds back to how we dealt with the Ebola crisis: social sciences had a very big part to play in that, and they are also playing a part in how we deal with Covid. My point is that I fully support the reference to social sciences, but I am arguing that the Bill needs specifically to add the phrase “and mathematical sciences”, because the work that ARIA does will be bound to involve maths in one way or another.

As I said, the maths community itself is unsure about its position. I want to quote from something that appears today on the government website—the BEIS website—about the definition of science, to which the noble and gallant Lord, Lord Craig, referred. I shall quote it in more detail. It says:

“Mathematical advances in and of themselves are not science unless they are advances in representing the nature and behaviour of the physical and material universe.”

That is what is causing unease, because this is too narrow a definition of the mathematical sciences when applied to ARIA and its work. These mathematical sciences will contribute hugely across a broad spectrum, including security, computing, astronomy and economics, all of which will be impacted by ARIA. Mathematics is visibly at the core of a great deal of what is at stake here.

I have many more examples but, in view of the late hour, I shall not refer to them—but they all illustrate in one way or another the importance of mathematics. However, I shall just point out that the Heilbronn Institute for Mathematical Research, which is a strategic partnership between GCHQ and universities, within which academic mathematicians contribute to problems of national security, is going to be a very important part of the work that ARIA does. That is another reason for adding the words in the amendments that I mentioned.

I look forward to the Minister’s reply, because what she could do very quickly and easily is reassure the mathematical community that it is included in the definition under Clause 11 and that, to some extent, this whole debate may have been unnecessary, as long as it is made clear from the Dispatch Box that mathematics is valued and included.

[Lord Clement-Jones (LD)]

My Lords, I have signed and I support Amendments 12, 13 and 14. As someone immersed in issues relating to AI, machine learning and the application of algorithms to decision-making over the years, I, too, support Protect Pure Maths in its campaign to protect pure maths and advance the mathematical sciences in the UK—and these amendments, tabled by the noble and gallant Lord, Lord Craig, reflect that.

The campaign points out that pure maths has been a great British success story, with Alan Turing, Andrew Wiles and Roger Penrose, the Nobel Prize winner—and, of course, more recently Hannah Fry has popularised mathematics. Stephen Hawking was a great exemplar, too. However, despite its value to society, maths does not always receive the funding and support that it warrants. Giving new funding to AI, for instance, risks overlooking the fundamental importance of maths to technology.

As Protect Pure Maths says, the 2004 BEIS guidelines on research and development, updated in 2010, currently limit the definition of science and research and development for tax purposes to the systematic study of the nature and behaviour of the physical and material universe. We should ensure that the ARIA Bill does not make the same mistake, and that the focus and capacity of the Bill’s provisions also explicitly include the mathematical sciences, including pure maths. Maths needs to be explicitly included as a part of scientific knowledge and research, and I very much hope that the Government accept these amendments.

[Baroness Bloomfield of Hinton Waldrist (Con)]

I thank the noble and gallant Lord, Lord Craig of Radley, and the noble Viscount, Lord Hanworth, for tabling Amendments 12 to 14, and those who contributed to the debate. We recognise the fundamental importance of pure and applied maths to other sciences, and as the focus of scientific inquiry in its own right. It is right that we take the opportunity to note that importance here.

The noble and gallant Lord gave a number of potent examples of the importance of mathematical contributions to scientific innovation. Much like, we hope, the projects and advances that will be supported by ARIA, breakthroughs in mathematics can lead to unexpected leaps of progress in separate fields or find application in solving intractable and seemingly unrelated problems in other areas of science. As we just heard from the noble Lord, Lord Clement-Jones, who rightly reminded us, the UK has been home to many outstanding mathematicians of global significance, from Isaac Newton to Andrew Wiles.

However, I emphasise to the noble and gallant Lord, Lord Craig of Radley, and the noble Viscount, Lord Hanworth, that the drafting of the clause that they have sought to amend follows existing powers in the Science and Technology Act 1965, and the Higher Education and Research Act 2017. It is important that it does so. Research into mathematics, including pure mathematics, has been funded in the UK using those powers for over five decades. Maths research is funded by the Engineering and Physical Sciences Research Council—one of the research councils that make up UKRI. The EPSRC spends more than £200 million on this theme, which includes research into maths in areas from number theory to topology and artificial intelligence. It is clear that maths is included in the definition of sciences as currently included in the Bill.

The 2004 guidance referenced by the noble Viscount, Lord Stansgate, predates the Higher Education and Research Act, which makes it clear that maths is included in the definition of science as drafted in the Bill. There is no need to particularise the interpretation through these amendments. Indeed, it would clearly be undesirable to seek to list exhaustively every possible field of scientific inquiry within the Bill. Departing from the existing embedded way these powers to fund research, including in mathematics, are drawn would be unhelpful.

ARIA’s programme managers will set ambitious programme-level goals. Although we do not often expect programme-level goals to lie within pure mathematics, it is right to highlight that ARIA might need to draw on pure and applied maths to achieve those goals, given their importance within the new fields noble Lords highlighted. It is right that ARIA may fund research in those areas.

We are confident that any activities of this nature that ARIA will seek to pursue are covered by its functions, and that the results of scientific research will encompass the results of mathematical inquiry that might be needed by ARIA. ARIA’s supplementary powers provide further reassurance. When exercising its functions, such as funding a programme with a specific scientific objective, ARIA’s supplementary powers allow it to do whatever is necessary in support of that. It is therefore the case that any mathematical endeavours that ARIA needed to draw on for a programme—for example, in support of a particular objective for machine learning—could be funded under its supplementary powers as well.

On that basis, although the noble and gallant Lord and the noble Viscount have raised important points, I hope they will be satisfied that there is no need for their amendments and feel able not to press them.

[Lord Craig of Radley (CB)]

My Lords, I thank the Minister and all those who spoke to this. Quite clearly, there is a difference of view between the Government and those of us who have spoken to them about how we should treat mathematical sciences in the present age. It is a pity that it has not been possible for the Government to agree to the amendment, but, in view of the late hour, I shall withdraw it.

Amendment 12 withdrawn.

Amendment 13

Moved by

[Viscount Hanworth]

13: Clause 11, page 5, line 3, at end insert “and pure and applied mathematics”

[Viscount Hanworth (Lab)]

I fully accept that the Bill has adopted the same definition of science found in previous legislation. However, this is not a reason for continuing to accept an obtuse and damaging definition. I beg leave to withdraw the amendment.

[The Deputy Speaker (Baroness Fookes) (Con)]

I am sorry, but we have the same problem again. I must put the question.

Amendment 13 disagreed.

Amendment 14 not moved.

Schedule 1: The Advanced Research and Invention Agency

Amendment 15

Moved by

[Baroness Noakes (Con)]

15: Schedule 1, page 6, line 18, leave out “five” and insert “four”

[Baroness Noakes (Con)]

My Lords, in moving Amendment 15, I will also speak to my Amendments 16 and 18 in this group. With these amendments, I am returning to the issue of governance of ARIA. We debated these or similar amendments in Committee, and I thought I would give my noble friend the Minister another chance to answer the issues that I raised.

Amendment 15 is directed at the maximum size of the ARIA board. In Committee, I explained that large boards are subject to weaknesses such as passive free-riding, dislocation and groupthink. While it is true that there is no magic formula determining the size at which boards become ineffective, studies generally agree that, once they get to 13 or 14, they do not work well.

Schedule 1 has no overall size constraint but does require a majority of non-executive directors. One way to constrain the size of the board is therefore to limit the number of potential executive directors. My Amendment 15 would limit those executive members to six, which implies a board size of 13, assuming that non-executives are appointed simply to achieve a bare majority. The current Bill would allow a board size of 15 with a full complement of seven executives.

In Committee, the Minister said that the Government believed that a size of 15 was

“in line with standard practice”.—[Official Report, 17/11/21; col. GC 103.]

It might well be standard practice for public bodies that BEIS creates, but I am sure that it is not in line with any of the literature on effective boards. I would hope that BEIS, in particular, would want to be at the forefront of best practice in this area.

Amendment 18 is about the executive/non-executive balance on the board, and I full support a majority of non-executive directors. I am concerned, however, that by allowing a quorum of half the members, as paragraph 10(2) does, a quorum could be achieved with only one non-executive member. My amendment requires a majority of non-executives for all board meetings, in order to ensure that important decisions are not taken by a dominant executive cadre.

My final amendment in this group, Amendment 16, would delete a power to pay pensions or gratuities to non-executive members, which I believe is drafting from another era and which keeps being repeated merely because it follows precedent. My noble friend the Minister said that the Government had no intention of using the power, but curiously then said that the Government wanted to retain it in the Bill. On the basis that the Government do not want to use the power, I hope my noble friend will now agree with me that it is time to read it its last rites.

Lastly, I will offer a comment on Amendment 17 in this group, tabled by the noble Lord, Lord Morse. I completely understand the thinking behind this amendment, but I believe we should be very wary of imposing this kind of legal straitjacket. We need ARIA to be the kind of place where high-quality people come to work. The concept of employment, which places a considerable fetter on life beyond ARIA, could well end up with exactly the wrong kind of people being attracted to work in ARIA. I agree with the earlier remarks of the noble Lord, Lord Broers, on this. I beg to move.

[Lord Morse (CB)]

My Lords, I just repeat a remark I made in Grand Committee in response to the noble Baroness’s speech: I think that she is expressing best practice, certainly as I understand it, on how boards should function. I reconfirm the supportive comment that I made before.

Amendment 17 stands in my name. I thank the noble Baroness, Lady Chapman of Darlington, and the noble Lord, Lord Browne of Ladyton, for their support. My amendment is intended to address potential abuse; I just put that clearly in people’s minds to start with. It sets out to do so in this way: it specifies that those who have been employed in a department that is either supervising or sponsoring ARIA and have been directly involved as part of the team doing so should not be employed by an entity that has benefited from ARIA funding within five years of leaving the department. It also, in proposed new paragraph 8A(2), applies the same five-year exclusion to persons who have been employed in ARIA itself and who might seek employment in an entity that has benefited from ARIA. Finally, in proposed new paragraph 8A(3), it provides that a person falling under either of the two new paragraphs I mentioned shall not acquire a proprietary interest, either directly or indirectly, in intellectual property or bodies owning intellectual property that have benefited from ARIA for a period of five years.

21:00

I will just explain the point. This is all about making sure that decisions are made independently of private interest. The amendment provides that officials in a department supervising ARIA who might make decisions and subsequently gain employment, or those working in ARIA making a funding decision to benefit a body applying for funding from it, need a gap—a cordon sanitaire—before they turn up working for that company or directly investing in it. That is ordinary protection of independent interest. It is important to understand.

I come from the world of scrutiny. Scrutiny has intensified a great deal over the past few years. The ARIA project will be scrutinised many times, not just by the National Audit Office; other scrutineers will feed from its work. That is our normal experience. This will be very closely examined, and if you find people popping up working for downstream companies, it may be viewed within the technology industry very tolerantly, but it will be viewed much less tolerantly in the journalistic or scrutiny community, if I may call it that, so putting strong protection in place now makes a lot of sense. That is what I seek to achieve in my amendment.

Would it be better, rather than having the amendment, to rely on a complex set of regulations that are supposed to govern these matters? Unfortunately, when you look at the record of success in such an approach, the results are extremely patchy and unconvincing. That is because, generally speaking, these codes are applied in quite a light way that understands people’s desire to have employment, rather than the importance of being seen to protect the taxpayer and the public interest.

In my view—this is the purpose of my amendment—it is better to go firmly in the direction of protecting the public interest now and prevent people making decisions that could be alleged to arise from conflict of interest.

[Lord Browne of Ladyton (Lab)]

I speak principally to support Amendment 17 in the name of the noble Lord, Lord Morse, to which I added my name, but having heard the noble Baroness, Lady Noakes, twice—in Committee and today—on Amendments 15, 16 and 18, I am persuaded by her simple, accessible and convincing explanation that changing the Bill in this way would be to its benefit. Hearing from the noble Lord, Lord Morse, that the amendments reflect current practice, I am even more convinced, so I have corroboration and I support them.

I have had the benefit of having had the noble Lord, Lord Morse, explain his amendment to me on a number of occasions. If I was going to be partisan about this, I could think of a lot of contemporary examples of behaviour which the existing ACOBA system has manifestly failed to deal with. Apart from anything else, recent history has damaged significantly the reputation of politics and politicians as a group, and it has bled into civil servants because of the apparent practice of senior civil servants taking positions in private industry while continuing to work in the Civil Service. I have no intention of going through all of them. I am just convinced by the argument made by the noble Lord, whom I have known for a long period, that if we do not recognise that this could become a problem, and if it does become a problem, it will seriously damage ARIA and we should protect it—at the very least by including these provisions in the Bill and indicating that Parliament decided that people who have had those experiences should not move to other positions where it looks as though they are exploiting the information that they had for their own personal gain, and therefore operating in a way that most people in the country would think unethical. If in these circumstances we do not have a narrative that says, “We in Parliament are concerned that this may happen and took the steps that we could to prevent it from happening”, we will be complicit in the damage that will inevitably be done not only to ARIA but, yet again, to those who work in the public service as officials, civil servants, Ministers or just politicians.

[Baroness Chapman of Darlington (Lab)]

My Lords, I recognise the expertise of noble Baroness, Lady Noakes, on issues of corporate governance and, like my noble friend Lord Browne, I have enjoyed listening to her in Committee and again today. I will be interested to hear what assurances the Minister is able to give as a consequence of her amendments. I have learned a lot from her through this process and I look forward to learning more in the future.

I welcome Amendment 17 from the noble Lord, Lord Morse, whose case is no doubt bolstered by his experience over many years. It is a real joy to me that we have come to this House at more or less the same time. This is our first Bill together, and I am very pleased to add my name to his amendment.

There have long been concerns about “revolving doors” in politics—it is not something that started with this Government—but my noble friend Lord Browne was correct to observe that concern about issues such as those dealt with by Amendment 17 is growing, and frankly the Government have brought it on themselves. There is deep concern in the public mind about these issues and we shall see on Thursday what the people of North Shropshire make of it all.

I am struck by the fact that the Minister has taken the amendment from the noble Lord, Lord Morse—a very good amendment which we support—and has directed us to look at paragraph 11 of Schedule 1, which states:

“The Secretary of State may by regulations make provision about the procedures to be adopted for dealing with conflicts of interest.”


They may, but “may” is doing a lot of lifting there, and obviously they may not as well, so there is nothing to give us any assurance that the danger of which the noble Lord, Lord Morse, is correct to warn us could be averted by that provision. We are just not buying it. Although the Minister has, for illustrative purposes, provided a suggestion of how the regulations might look, that does not provide us any assurance whatever.

Given the Minister’s reluctance to accept any of the suggestions that we have made—none of the suggestions, from FoI to reporting, have been taken up by the Government—he is somewhat leaving ARIA exposed, in the way that the noble Lord, Lord Morse, explained so well. We want this organisation to succeed, but because of the Government’s rigidity on these issues, the fear is that we are setting it up with a weakness: this lack of transparency and ability to challenge.

The Minister is kidding himself if he thinks that these issues will not be scrutinised and that some of the problems that may emerge will not somehow get out. I am sure that the Public Accounts Committee will enjoy crawling all over this when it gets the opportunity to do so. We want this to work, but I am afraid that the Government’s approach is not doing ARIA any favours.

I want to hear what the Minister has to say and whether something can be done to provide us with the assurance we are looking for that ARIA will not be characterised—or mischaracterised, I hope—as some sort of secret agency. That would only cause this fascination and determination to probe into its activities to grow.

[Lord Callanan (Con)]

Before I start, I will deal directly with the comments of the noble Baroness, Lady Chapman, which I thought were a little unfair. We have responded to a number of the points she has made, and we have adopted some of her suggestions on transparency, delivery partners and regional funding. We obviously have not gone as far as she would like in some respects, but it is slightly unfair to say that we have not listened at all to many of the reasonable suggestions that have been put forward from all sides. I will come on to another suggestion that we will adopt shortly.

I start by responding to the amendments put forward my noble friend Lady Noakes. I thank her once again for her considered contributions, which, together, aim to ensure that ARIA is a well-governed and effective agency. I certainly echo the comments of the noble Baroness, Lady Chapman, about her great knowledge of corporate governance. My noble friend’s Amendment 16 would remove the Secretary of State’s power to determine a pension or gratuity for non-executive members. As I said in Committee, it is in fact not our intention to offer these for ARIA’s non-executive members. In consequence of the helpful suggestions and debates we had on that occasion, I have reflected further on the functions of ARIA and the duties and responsibilities we expect of its non-executive members, and I am pleased to be able to confirm to my noble friend that we do not see circumstances in which this power will be required. I am therefore able to say that the Government will support this amendment, and I thank my noble friend again for bringing it forward.

I turn to Amendment 15, also tabled by my noble friend Lady Noakes, who spoke about reducing the maximum possible number of executive members from five to four. The chair of the agency will have responsibility for appointing ARIA’s executive members. Following government guidance for corporate governance, we will set out the responsibilities for ARIA’s chair to review the performance of ARIA’s board and its members in the framework document. This will include evaluating the composition of the board and considering its size, diversity and balance of experience and skills. We expect that, in the initial phases of ARIA, this will tend towards a small board structure. However, I believe that it is important to retain at least some flexibility in the legislation to account for ARIA’s future needs as appropriate, and to allow for a slightly larger board if necessary.

As ARIA will be working across the public and private sectors, using a range of funding mechanisms and funding research at various stages of technological development, I do not think we should rule out a slightly larger arrangement so that ARIA can bring knowledge from a range of backgrounds and ensure that this is represented at board level. I thank my noble friend for her thoughtful remarks on groupthink; it is this diversity of thought and experience that would be the best antidote to such an outcome.

21:15

Again, it will be the chairman’s responsibility to consider the best overall balance and composition for an exemplary board to lead this new and unique agency. Clearly, having an experienced and effective chairman is crucial for the good governance of ARIA, as it is for any other organisation, and we will be running the recruitment campaign for such a candidate shortly.

Turning to Amendment 18, also from my noble friend Lady Noakes, I agree that the quorum for ARIA should ensure a majority non-executive presence, as far as is practicable. I believe it is most appropriate to follow the “Governance” section of the Treasury’s specimen framework document guidance and set this out in ARIA’s framework document, rather than on the face of the Bill. We will agree the right form of words with the new chairman when they are in post, so that this is implemented in a way that is practical for the organisation. For example, there may be four executive members and five non-executive members, and we will need to ensure that a quorum can be achieved if one non-executive member is absent because of illness, for example. This will allow the chairman some flexibility to determine how to deal with absences, such as making arrangements for proxy voting or duly authorised representatives, and this reflects back on the chairman’s duties to lead the board. I hope that my noble friend is therefore suitably reassured. We agree with the intention behind her Amendment 18, but believe it is best to implement this outside the Bill itself.

Amendment 17, tabled by the noble Lord, Lord Morse, sets restrictions for ARIA’s staff and its sponsorship team in BEIS in respect of working for any organisation that has received financial support from ARIA, for five years after terminating their contract. I know the noble Lord, Lord Morse, brings an extreme amount of expertise on this subject from his work as the Comptroller and Auditor-General at the National Audit Office, when he spread fear throughout civil servants—and Ministers, I might add—across Whitehall, he will no doubt be delighted to hear. I have carefully considered his 2015 report on conflicts of interest across government. The report discusses business appointments policy where individuals transferring from public to private sector roles may be associated with conflicts of interest.

Those working in ARIA’s sponsorship team will be civil servants and will therefore be required to comply with the Civil Service’s business appointments policy. For senior civil servants, rules apply until two years after leaving the Civil Service; for those below, they normally apply for one year after leaving. Before accepting new employment, individuals must consider whether an application to the Advisory Committee on Business Appointments, which provides advice to the Prime Minister, is required under the rules. There are several considerations, including whether civil servants have been involved in developing policy affecting their prospective employer.

As these rules do not consider non-civil servants, I can confirm that ARIA will be required to implement its own business appointments policy, which will be agreed with the new chairman once he or she is in post. I believe this is the appropriate mechanism for guarding against abuse of office, undue influence or profiteering. Alongside this, ARIA will be required to have a conflict of interest procedure, which, at a minimum, will require the declaration and evaluation of board members’ interests, so that anyone with a conflict of interest is therefore not involved in any financial or executive decision-making relating to that interest.

Noble Lords will also be aware that the Bill allows for the Secretary of State to set out ARIA’s conflict of interest procedures through regulations, as the noble Baroness, Lady Chapman, referred to, to give them a legislative footing if needed, and I shared draft regulations for illustrative purposes with Front-Bench colleagues and the Cross-Bench Convenor’s office last month. ARIA will also be required to set other necessary policies, including a whistleblowing policy and a gifts and hospitality policy. Those working for both ARIA and its sponsorship team in BEIS will be required to follow the procedures in place, so that decisions are not made with other or future interests or bias in their minds.

We should not indiscriminately deny talented people the chance to share their skills and experience where it can genuinely add value. It is not unlikely to expect those working in ARIA or its sponsorship team to have a passion for science and research. They may want to move on to interesting careers at a university, research institute or exciting tech start-up. I am concerned that such an amendment could deter talented people from applying for these positions, as it would limit their career prospects.

I thank the noble Lord, Lord Broers, for his earlier contribution to the discussion on the amendments in the first group. The noble Lord is right that we must keep and motivate brilliant people, to help to make a success of ARIA, rather than creating a culture of distrust among its employees right from the start. I also welcome the remarks from my noble friends Lord Bethell and Baroness Noakes in supporting that sentiment.

On a practical point, these employees’ future roles might be in an organisation that received funding from ARIA but in an entirely different department, role or project. Furthermore, ARIA’s sponsorship team will not be involved in assessing funding programmes. It is key to the model we are pursuing for ARIA that it will have the autonomy to make its own funding decisions. That will not be down to civil servants, the Government or Ministers.

With particular reference to proposed new sub-paragraph (3) of Amendment 17, even when ARIA’s staff wish to pursue future roles connected to the work that they did at ARIA, that could be extremely valuable for the outcomes that ARIA is being created to achieve, such as the generation of new technologies and businesses in the United Kingdom. For example, a programme manager will bring forward a proposal that they are passionate about developing at ARIA. At the end of the programme, they may develop a successful proof of concept, thanks to all the contractors involved. The programme manager is then keen to take the benefits of ARIA’s funding through to commercialisation with the company that was funded to develop the original work. Such an amendment would outright ban the collaborative and seamless funding of R&D that we should be encouraging between the public and private sectors.

Let us not forget that ARIA will be funding high-risk research, which may be in extremely niche fields, with very few people in the country working on it. We should capitalise on these networks, encourage them to work together and follow their ideas through to real outcomes, with processes in place to consider and act on any conflicts—but on a case-by-case basis.

I hope I have clearly illustrated the potentially damaging unintended consequences of placing such broad restrictions in legislation. I hope I have also assured noble Lords that ARIA will be required, as is any other arm’s-length body, to have clear and robust business appointments and conflict of interest policies in place. On the basis of the assurances that I have been able to provide, I request the noble Baroness to withdraw her amendment.

[Baroness Noakes (Con)]

My Lords, I thank those noble Lords who supported the amendments that I spoke to in this group. There was a small, select bunch of us, but it was a high-quality debate.

I am grateful to my noble friend the Minister for the further helpful explanation that he has now given in relation to my Amendments 15 and 18. I should say that I am thrilled that the Government are accepting my Amendment 16. It remains only for me to say thank you and beg leave to withdraw Amendment 15.

Amendment 15 withdrawn.

Amendment 16

Moved by

[Baroness Noakes]

16: Schedule 1, page 7, line 36, leave out paragraph (a)

Amendment 16 agreed.

Amendments 17 to 19 not moved.

Amendment 20

Moved by

[Baroness Noakes]

20: Schedule 1, page 10, line 22, after “may” insert “with the agreement of the Secretary of State”

[Baroness Noakes (Con)]

My Lords, we will all be relieved that we are on the final amendment of this Report stage.

Amendment 20 would have the effect of requiring the consent of the Secretary of State if ARIA seeks to use the powers in paragraph 17(2) of Schedule 1. These powers allow ARIA to borrow money, to acquire and dispose of land, to accept gifts, to form and participate in partnerships and joint ventures, and to form companies. I have no problem with these powers existing; they are useful techniques which are commonly used in research and development activities and scale-ups. I am, however, against public bodies taking on liabilities which are counted as public sector liabilities and which will end up being footed by taxpayers if they go wrong, without any controls. I am also wary of private sector counterparties, who may well be queuing up for a free ride on the public sector’s credit lines, knowing that they will be rewarded for success and may not have to pick up the tab for failure.

My noble friend the Minister replied to my amendment in Committee, saying that conditions would be attached to grant funding given under Clause 4 of the Bill, and that borrowing would have to meet stringent requirements set out in Managing Public Money. The Minister also said that any borrowing would have to be agreed with HM Treasury in advance. I accept that it is possible that this will work perfectly well, with ARIA agreeing to abide completely by whatever the Treasury and BEIS say. It is certainly likely to toe the line all the time that it is dependent on grant funding from BEIS.

My question to the Minister is based on a different scenario. Let us assume that BEIS has handed over the £500 million committed for this Parliament and that the Chancellor has said that there is no more money. We know that the power to wind up ARIA will kick in only after 10 years, so what does the Minister think will happen in the years between, say, 2024 and 2032, with no more grant money arriving? My guess is that borrowing money would become irresistible. Moreover, the value-for-money test in Managing Public Money will be very easy to satisfy, because the counterfactual of using public money will not exist. Complex structures that look like partnerships or joint ventures could actually be borrowing by another name—I have seen that all before.

That is why I believe it would be safer if this Bill embedded a consent requirement. A consent requirement might look rather heavy-handed at first sight, but it could easily be tempered by delegation arrangements which did not require all transactions to have to be sent to the Secretary of State for approval.

I look forward to hearing how the Government think they can keep control of an organisation which has unconstrained statutory powers once the Government have lost the lever of grant payments. If they are not certain that they can deal with all eventualities, I respectfully suggest to my noble friend that an amendment such as this one, or something similar, is needed. I beg to move.

[Baroness Chapman of Darlington (Lab)]

My Lords, this is a very interesting discussion initiated by the noble Baroness, Lady Noakes. At first, I thought she was suddenly getting into big state interference, but that is obviously not the case. It is curious why ARIA would need to be able to borrow money when it is being given a budget from the Government. Presumably the intention is not to give it the Government’s credit card also, because we will be underwriting the borrowing that takes place—I think. I am not quite sure on this; perhaps the Minister could explain some circumstances in which the borrowing of money would be needed and how that would be beneficial to ARIA.

On gifts, we are not quite clear what that is about. If the noble Baroness wanted to test the will of the House—I suspect that she does not want to, this evening—we would be interested in supporting that.

We really need to get some assurance from the Government, particularly on this issue of borrowing money.

21:30

[Lord Callanan (Con)]

Once again, I thank my noble friend Lady Noakes for her thoughtful and constructive contributions throughout the progress of the Bill so far. However, she will be disappointed to know, I am sure, that on the substance of her Amendment 20, I am not convinced that adding a legislative requirement for the Secretary of State to approve how these supplementary powers are exercised would be beneficial to ARIA’s effective function or enhance its accountability measures that are already in place.

On ARIA’s ability to borrow money, I recognise that this has been consistently raised throughout the passage of the Bill by my noble friend. I thank her for her previous probing amendments on this matter, which prompted an important conversation on the balance between ARIA’s activities and the appropriate government oversight. As I outlined in correspondence with my noble friend, any borrowing would be contingent on ARIA complying with the rules of Managing Public Money and subject to approval by Her Majesty’s Treasury.

ARIA’s allocation and delegation letters, which the CEO of ARIA will be duty-bound to adhere to, will confirm that ARIA will be subject to, and comply with, all Managing Public Money rules that relate to borrowing. Managing Public Money sets robust conditions on borrowing, and states:

“Public sector organisations may borrow from private sector sources only if the transaction delivers better value for money for the Exchequer as a whole.”


Ensuring that ARIA’s expenditure is made in accordance with Managing Public Money guidance, except for in certain agreed circumstances, will be a condition of the budget ARIA receives from BEIS in its allocation and delegation letters from the BEIS Permanent Secretary to ARIA’s CEO.

There is an expectation of a level of faith between the Government and their arm’s-length bodies. This understanding of trust, and all of ARIA’s freedoms and powers, will be balanced with a number of core accountability principles. The CEO will be ARIA’s delegated accounting officer and will be personally accountable to Parliament for the stewardship of ARIA’s resources, decision-making and financial management. This includes the Public Accounts Select Committee, which will, I am sure, take an interest in such matters. The BEIS Permanent Secretary, as principal accounting officer, will retain an important oversight role, and has the power to make arrangements to ensure they are satisfied that ARIA’s systems are adequate and its finances soundly managed. The Permanent Secretary may intervene if ARIA is significantly off track, and in the unlikely scenario that serious concerns are raised, or there is financial mismanagement, the CEO’s delegated accounting officer authority can be revoked. I hope my noble friend is reassured that the mechanisms here are well established and robust and that they will be enforced.

Moving on to ARIA’s ability to form partnerships, I believe that adding a Secretary of State approval to ARIA’s activities in this area would significantly hinder its effective operations. In designing ARIA, we have put emphasis on the agency operating with significant autonomy from government, and with freedom from standard bureaucracy. Forming partnerships, such as providing grant funding to a project with a university or a business, will be an essential part of ARIA’s daily operations. We expect the agency to contract with, commission and collaborate with a range of different actors for each of its research projects—indeed, that will be one of its core functions.

We have designed this agency to be led and run by experts with technological vision. It is vital that these individuals are free from arduous processes so that they can act quickly, decisively, with autonomy and with clear authority. We should trust ARIA to have discretion over how it forms those partnerships, and I believe that requiring it to engage in a central government approval process for each partnership sits squarely contrary to its aims and purpose.

Moving to ARIA’s ability to form companies and to form and participate in joint ventures, my department is currently in negotiations with Her Majesty’s Treasury about the exact clearance processes ARIA will undertake for each of these transactions. The detail will be set out in ARIA’s allocation and delegation letters, the conditions of which the CEO, as accounting officer, will be duty-bound to comply with. However, I assure my noble friend that all iterations of this delegation letter will include sufficient assurances that ARIA’s internal assessment processes and capability are sufficiently robust. Given that these arrangements may need to evolve in the future, it would not be appropriate for this to be mandated at this stage in the Bill.

On ARIA’s ability to accept gifts, there are already stringent conditions on this in Her Majesty’s Treasury’s Managing Public Money that ARIA would need to comply with. ARIA would consult BEIS about gifts, and HMT’s approval is explicitly required for any gift over £300,000. Gifts made would be recorded in ARIA’s accounts and gifts received would be recorded in a register. These rules will also be confirmed in ARIA’s allocations and delegations letter from the BEIS Permanent Secretary.

ARIA’s power to acquire and sell land would be exercised only in compliance with the Managing Public Money guidance, which sets controls on the below-market sale of land, will compel ARIA to take professional advice when disposing of land and property assets, and will mandate ARIA to include land in its asset register.

Furthermore, introducing a blanket statutory requirement for Secretary of State approval would leave ARIA with less freedom than comparable arm’s-length bodies such as UKRI, which is able to exercise supplementary powers related to accepting gifts and the buying and selling of land without a legislated approval from the Secretary of State.

I appreciate that my noble friend has significant expertise and interest in the areas of financial management and propriety, and we welcome that. However, adding a statutory requirement here would not add value or challenge beyond what is already well established and enforced through Managing Public Money. Furthermore, as I have set out, adding the requirement to the forming of partnerships would, I believe, be genuinely detrimental to ARIA’s agile, autonomous operations, which I know my noble friend is keen not to prejudice.

Before I conclude on this final group of amendments, I once again thank all noble Lords who have taken an interest in this Bill for their excellent and constructive contributions throughout our scrutiny. ARIA provides us with enormous opportunities. I have been delighted to take the Bill through this House and engage with colleagues on all sides, who have focused on the task of providing appropriate scrutiny with enthusiasm, ability and great skill.

[Baroness Noakes (Con)]

My Lords, I start by thanking again the noble Baroness, Lady Chapman of Darlington, for her support for my amendment. What the Minister has said in setting out in more detail how the various mechanisms work in the public sector to achieve de facto control over public bodies has been very useful. I hope he is right that this will work well in practice, and I completely accept his point that there has to be an element of trust and faith between BEIS and its public sector bodies. At the end of the day, this is a risk management decision on whether the balance has been set in the right place, given the particular circumstances of the public body.

I say to the Minister that I hope I shall never have to say, “I told you so”—I warn him that I have an elephantine memory. With that, it is late and time to withdraw my amendment.

Amendment 20 withdrawn.

Amendments 21 and 22 not moved.

[The Deputy Speaker (Lord Lexden) (Con)]

My Lords, that concludes proceedings on Report of this Bill. As it has been referred to as the ARIA Bill, I am tempted to suggest that the noble Baroness, Lady Noakes, sees us out with a song.

Charities Bill [HL]

Report stage
Tuesday 14th December 2021 Lords Chamber

Report

21:38

Clause 12: Power to borrow from permanent endowment

Amendment 1

Moved by

[Lord Parkinson of Whitley Bay]

1: Clause 12, page 13, line 37, at end insert—
“(4) In section 348 (regulations subject to affirmative procedure etc)—(a) in subsection (1), after paragraph (c) insert—“(d) regulations under section 285(3) (power to amend period or multiplier specified);”;(b) in subsection (2), for “or (c)” substitute “, (c), (d)”.”Member’s explanatory statement
This amendment provides for the power to make regulations added by Clause 12 to be subject to affirmative resolution procedure.

[The Parliamentary Under-Secretary of State, Department for Digital, Culture, Media and Sport (Lord Parkinson of Whitley Bay) (Con)]

My Lords, I rise to speak to Amendment 1 in my name. As this was a Law Commission Bill, scrutinised through the Special Public Bill process, I thank the noble Lords who sat on the Special Public Bill Committee which examined it, chaired ably by the noble and learned Lord, Lord Etherton. It consisted of my noble friends Lord Cruddas, Lord Bellingham, Baroness Fullbrook and Lord Sharpe of Epsom, the noble Lord, Lord Ponsonby of Shulbrede, and the noble Baronesses, Lady Goudie and Lady Barker, and was ably assisted by our clerk, Alasdair Love. I thank them and all those who gave evidence to the committee.



Amendment 1 responds to an amendment tabled by the noble and learned Lord, Lord Etherton, in Committee. I am grateful to him for his suggested amendment, and for the time that I have had to consider the policy behind it. The Government accept that the two thresholds in Clause 12—to vary the proportion of permanent endowment which may be borrowed, and the period over which such borrowing must be repaid—are of a different nature from the other financial thresholds contained in the Bill. Those other financial thresholds are concerned with monetary sums. They set the level at which it is appropriate for trustees to make their decision independently, or for the Charity Commission to oversee that decision. We maintain that in relation to the powers to vary those financial thresholds, and thus change where that balance is to be struck, the negative resolution procedure provides a proportionate level of parliamentary scrutiny.

However, Clause 12 does not indicate where regulatory intervention is required in the same way. It does not set out monetary sums. Instead, it places a percentage limit on how much a charity can borrow from its permanent endowment and specifies the period over which such borrowing must be repaid. Therefore, any variation of these thresholds has a slightly different implication. The financial thresholds elsewhere in the Bill can be adjusted to reflect changes in the value of money. By contrast, any amendment of the Clause 12 thresholds would not be about changes in the value of money.

We have carefully considered the various arguments regarding the right level of parliamentary scrutiny in relation to these powers, including the fifth report of the Delegated Powers and Regulatory Reform Committee of your Lordships’ House. We have been persuaded that it is appropriate for an additional level of parliamentary scrutiny to be put in place for any future changes made to the thresholds in Clause 12. Amendment 1 would therefore require any variation of the maximum proportion of permanent endowment from which a charity may borrow, and the period over which any such borrowing must be repaid, to be subject to the affirmative resolution procedure rather than the negative procedure. We consider that this amendment will help to maintain the balance between protecting donors’ funds and wishes and providing flexibility for trustees to make the best use of opportunities to fulfil their charitable purposes.

As a result of this change to Clause 12, it is also necessary to make consequential amendments to Clause 39 of the Bill. I will briefly explain these amendments. Amendment 1 inserts subsection (1)(d) into Section 348 of the Charities Act 2011 to confirm that any amendment to the delegated powers in Clause 12 is subject to the affirmative resolution procedure. Later in the Bill, Clause 39 makes other amendments to Section 348 of the Charities Act 2011. The Clause 12 amendment to Section 348 means that the wording in Clause 39 needs to be rearranged. Amendments 5, 6 and 7 are consequential amendments to change references to subsections in Section 348 to accommodate Amendment 1. I beg to move.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, we support these government amendments. The Minister has explained them very clearly. I have nothing to add. He is just following up on recommendations in the fifth report of the Delegated Powers and Regulatory Reform Committee.

Amendment 1 agreed.

Amendment 2

Moved by

[Lord Hodgson of Astley Abbotts]

2: After Clause 36, insert the following new Clause—
“References to the Tribunal
(1) In section 325 of the Charities Act 2011, in subsection (2), for “with the consent of the Attorney General” substitute “where the Commission has given the Attorney General 28 days’ notice of its intention to make such a reference”.(2) In section 326 of the Charities Act 2011, in subsection (1), at the end insert “provided the Attorney General has given the Commission 28 days’ notice of his or her intention to make such a reference”.”Member’s explanatory statement
This amendment implements the Law Commission’s recommendations that the Charity Commission should not be required to obtain the consent of the Attorney General before making a reference to the Tribunal and vice versa.

[Lord Hodgson of Astley Abbotts (Con)]

My Lords, the hour is late—later than any of us would wish it to be. In the famous phrase of Mr Jeremy Clarkson, it is time to put the pedal to the metal. Before I do, I thank the noble Lord, Lord Stevenson of Balmacara, and the noble Baroness, Lady Barker, for their putting their names to this amendment. The noble Baroness has tested positive for Covid and cannot be here tonight. I am sure that I speak for the whole House in wishing her a very speedy recovery.

The only other preliminary remark I wish to make is addressed to the Minister, who has struggled mightily to find a way through this particular problem. However, I am afraid that he has been impaled—as I have—on what I can only describe as the obduracy and inflexibility of the Attorney-General’s Office. With that—to horse!

21:45

When I undertook the review of the Charities Act for the Government 10 years ago, it was brought home to me that there was a fundamental flaw at the top of the regulatory structure. This comes about because under Section 325 of that Act, the Charity Commission, the sector’s regulator, cannot—and I mean cannot—approach the charity tribunal for a ruling on a point of law unless it has first obtained the permission of the Attorney-General. This has a number of serious consequences, which were brought out to me in evidence I gathered for my review.

First, there is not a clear chain of responsibility and command: an important issue in regulating a sector as diverse as the charity sector. Secondly, this divergence of control can undermine the authority of the commission and prevent it obtaining clarity in the development of charity law. Thirdly, and most unattractively, there is a possibility that rich, powerful and well-connected charities will think it possible to take on the commission in the hope that the Attorney-General will provide cover for them later. Those were the points made in favour of sorting this out.

However, there was a contrary point, which was that the commission should not be permitted to go running off to the tribunal too frequently. Therefore, when I made my recommendation, I said that while the veto of the Attorney-General should go, the Charity Commission had to inform the Attorney-General and join the Attorney-General in any case it wished to take to the tribunal. Therefore the veto went, but in no way could the Attorney-General be blindsided.

Although my report was well received by the Government and by the sector, this recommendation was rejected. However, the Government passed the report to the Law Commission and asked it to consult on whether it could form the basis of a Bill. The Law Commission did so and produced a report, and the Bill tonight is largely the result of that consultation. The Law Commission also produced a report, and in recommendation 43 of that report it supported the conclusion that I had reached. It produced—very much more elegantly—wording to cover this particular point, and it is that wording which forms the basis of Amendment 2 tonight. It is not my wording—it is the Law Commission’s wording.

However, the Government again rejected the Law Commission’s recommendation. What were the reasons for the Government not to accept its recommendation? First, they said that the Attorney-General’s consent was

“an important element in the system”—

but they did not say quite how it was important. The second argument is that the Attorney-General’s consent assists him in fulfilling his duties to protect charitable interests. I would argue that the Attorney-General has a role in protecting all the law, including charity law, but that if he intervenes in charitable law, this unilateral power may serve not to protect charity law but to risk confusing it.

The final plank of the Government’s argument is that this is very rarely used—it has been used only three times—and therefore it does not really matter about the Attorney-General because it is such a rare occurrence. The reality is that a matter that gets to the Charity Tribunal must be one of the most sensitive, important and critical issues of charity law, and therefore the role of the Attorney-General remains highly relevant. So I ask the House to hold in its mind briefly the basis for my in-principle objection to this. I now turn to how this power has been used in practice.

One of the first references was about private schools. The House will readily understand the difficulties that surround charitable status, public benefit and fee paying. It was always rumoured, and has now been confirmed, that in this case the Attorney-General asked the Charity Commission if there were any questions that it wished to be asked at the tribunal. The commission sent in a list of questions but, extraordinarily, the Attorney-General did not ensure that all these were asked. I ask myself whether this is a way that the Attorney-General is showing proper support for the charity regulator and helping to obtain clarity in charity law.

The second case is that of the Royal Albert Hall. It is one of our great public institutions and home to many important events in our cultural and other calendar, such as the last night of the Proms and the Festival of Remembrance, familiar to all Members of your Lordships’ House. It is a charity built by subscription in Victorian times. The subscribers received, in response to their money, seats in perpetuity to concerts in the hall. Since clearly not every subscriber will want to go to every concert every night, they arranged a system for the seats to be resold through the Royal Albert Hall box office with a 10% handling charge—face value less 10%. That is known as the TRS or ticket return scheme.

A few years ago, the seat-holders decided that there was a more profitable way of doing this and that they could sell their seats not through the Royal Albert Hall box office but through third-party websites. In Committee, I explained that tickets for an Eric Clapton concert in May 2022 with a face value of £175 were selling for £1,185. If your taste is for the Beach Boys, a ticket for the concert on 24 June next year with a face value of £85 is selling tonight on viagogo for £185. And so on.

As a result, this has become pretty profitable. It is alleged that pre-pandemic—I will come back to the pandemic in a minute—seats were earning between £10,000 and £20,000 a year and changing hands for £150,000 each. I need to make it very clear that I have no objection to seat-holders seeking to make the best use of their private property. The right to enjoy private property is a cornerstone of a civil society. Seat-holders take a risk when they buy their seats. I do not suppose that being a seat-holder in the Albert Hall in the last couple of years has been particularly profitable, although I have to tell that House that the hall did get a £20 million repayable loan from the Culture Recovery Fund which will have helped it deal with the short-term liquidity problems.

However, as I said a moment ago, the Royal Albert Hall is a charity and is governed by a board of trustees. There are 25 of them and 19 are elected by the seat-holders—so 75% of the governing body that decides ultimately which seats should be reserved for seat-holders, and which should be let go, are seat-holders themselves. There must be a concern that the more profitable events will be reserved for seat-holders and the less attractive ones handed back. It was on this very narrow point that the Charity Commission approached the Attorney-General for permission to go to a tribunal. It was not that you should not be able to be a seat-holder but that, if you were a seat-holder and a trustee, there was at least a possibility of a conflict of interest which should be decided by the tribunal.

The original application on this was made over four years ago in August 2017. During the intervening period, at six-monthly intervals, I have probed with Parliamentary Questions to no avail. That is how it lasted until Second Reading in the summer, when I drew attention to this issue and subsequently tabled this amendment. Then, quite suddenly, the walls of Jericho fell down. The Attorney-General made up her mind—only she did not. She made up her mind not to make up her mind. She decided to refuse the Charity Commission permission to go to the tribunal, and did so on the sole grounds that it “would not be in the public interest”; no more, no less. So, after four years, she kicked the legs from under the Charity Commission and gave no reason for so doing. That is an extraordinary situation for the Charity Commission—the sector regulator—to find itself in.

It has been suggested to me that, in pursuing this matter tonight, I may undermine the position of the Law Commission and bring its legalistic procedure into disrepute—first, on the grounds that Law Commission Bills are not amended. Well, they are amended; I served on a Law Commission Bill—an insurance Bill—when the noble Lord, Lord Eatwell, who is not in his place tonight, moved and carried an amendment. Secondly, there are the grounds that new material should not be introduced to the Bill. My amendment is not new material; it is a Law Commission amendment in a Law Commission Bill, word for word what the Law Commission suggested.

Thirdly, it was suggested to me that I should not have been surprised that the Attorney-General would give no reason for her decision beyond “not in the public interest” because law officers never give details of their advice. There are a number of very noble and learned Lords in the House tonight. I understand that, had it been advice, it would of course have been covered by privilege—but it was not advice, it was intervention. She chose to intervene in this case; if she chooses to intervene in the way that the charity sector is regulated, she owes to the regulator, the sector and, indeed, society an explanation of the reasons for her decision. The Law Commission’s work and procedures have a deservedly high reputation in modernising and clarifying our law. If the action of one Back-Bench Committee Peer should cause the Government to throw out and abandon the whole procedure, then matters have reached a pretty pass.

But enough of this—to summarise: the present position as regards the relationship between the Attorney-General and the Charity Commission is wrong in principle, and has proved flawed in practice. The change that I put before the House tonight is supported overwhelmingly by the sector, by trade bodies such as the NCVO and by academic opinion. With due deference to my noble friend on the Front Bench, the government arguments against this change are threadbare. I beg to move.

[Lord Grabiner (CB)]

My Lords, I support this amendment. In view of the hour, as well as the great clarity of the explanation given by the noble Lord, Lord Hodgson, in moving it, I can be brief. The Charity Commission is an expert body. It is perfectly placed to form its own view on all the matters identified in Section 325(1)(a) and (b) of the Charities Act 2011. The curiosity is that, notwithstanding that rather basic fact, Section 325(2) permits the commission to make a reference to the tribunal on these matters, or any of them, only with the consent of the Attorney-General.

I have two points. First, it seems to me rather wasteful for the Attorney-General, in effect, to have oversight—indeed control—over the decision-making of another expert body. That is especially the case here because the subject matter of Section 325 is very far removed from the traditional territory that we associate with the office of the Attorney-General—the criminal-law side of which will be familiar to all Members of your Lordships’ House. Secondly, I find it surprising that the Attorney-General should wish to retain this power at the margin of the regular diet of the office. One might imagine that the Attorney-General has many other very important matters to be thinking about, without the need to second-guess the deliberations of the commission.

22:00

[Lord Rooker (Lab)]

My Lords, I am very pleased to follow the noble Lord, Lord Grabiner, in supporting the noble Lord, Lord Hodgson. I have played no part in the Bill, but, when I saw the amendment and the background to it, I thought that it was worth supporting at whatever time, as it were. I am not bothered about what time it is; if we worried about the time, we would never get any legislation done.

I am not a lawyer, and it is almost 50 years since I was a PPS in the law officers’ department. I remember that, when I went there, it was explained to me what law officers did and did not do and how they were different from other Ministers. In this case, it seems to me—again, as a non-lawyer—that the Attorney-General is operating as a supervising Minister, not a law officer. That is a completely different function.

I have not checked, but, if I remember rightly, the Charity Commission is nominally still a department. It is not some quango that is too big or a body that is of no significance; it is one of, I think, 21 non-ministerial departments. I do not know how many other regulators that we think are doing their job on behalf of the public and Parliament are actually hemmed in by this kind of power. Twice I have put forward proposals for a Select Committee on regulators, because no one looks at regulators systematically in Parliament to check that what they do is what is says on the tin and to see what the difficulties are. We wait for the odd scandal to come, and then there is a Select Committee—that is not good enough.

With this one, the fact of the matter is that the Attorney-General is not, and cannot operate as, a law officer. It is the role of a supervisor. I have been in six government departments: I know the difference between a Minister supervising an external body, developing its own policy, and coming up against the law officers. There is a difference, and in this case it is absolutely clear that the Attorney-General is not operating in the formal structure as a law officer.

If it is the Law Commission, we are used to hearing the other place say, “Oh, don’t bother about that. It’ll get nodded through. We can trust it. It’ll have done all the homework”. You do not do the time, simply because that is what the Law Commission is there to do. I cannot see any damage to it from this. This is a Law Commission Bill, and, as the noble Lord, Lord Hodgson, said, he has used its report to construct the amendment. There has got to be a better reason. It is no good the Attorney-General hiding behind the law officer role when she is not performing that role. That bears some scrutiny, but of course we cannot do that in this place; it will require someone in the other place.

My final point is on the regulators, which we have to trust. There are a lot of regulatory bodies. The top 20 or 30 regulators look after billions of pounds of other bodies’ expenditure. Parliament delegates that role to those regulators.

The Charity Commission is a regulator; it is an awkward one, in the sense that the uniformity of charities is crazy. There are some 180,000 charities and the top 2% or so are probably dealing with half the money—there are loads of tiny charities which do not get a look in. When you get something such as the example of the Royal Albert Hall, raised by the noble Lord, Lord Hodgson, and which I am aware of from previous debates, you cannot ignore it. It is not right for Parliament or the regulator to ignore that—it is a failure of public duty. Therefore, the Minister will need to have better reasons than those given in the past for opposing this.

It is actually quite easy as a Minister at the Dispatch Box when you have an open and shut case such as this. I fully admit that I did it only twice in eight years when I was on that Bench in this House, but you can report back to the boss in the department: “Well, they were all against me; we were going to lose; it uses Government time; it was easier to accept the amendment because it was overwhelmingly agreed to”. You can do that, and if they are cheesed off with it, they can alter it down in the other place, because it is an open and shut case. So I invite the Minister to try it out; it can work. You can accept an amendment at the Dispatch Box on the strength of the debate and survive as a Minister, and the amendment can strengthen the Bill. That is what we are here to do.

[Lord Thomas of Gresford (LD)]

My Lords, we on the Liberal Democrat Benches fully support this amendment in the name of the noble Lord, Lord Hodgson. When I heard the story of the Albert Hall that he outlined, there was only one thing I could say: “Land of Hope and Glory”. It seems to me that there is no justification for the way in which the Attorney-General acted in this case, without giving any proper reason. I did a bit of research to see what the published response of the Government was to the report of the Law Commission. No satisfactory reason for the need for the consent of the Attorney-General was given.

Because of the time, I will not delay your Lordships any longer, but it seems that the noble Lord, Lord Hodgson, should be congratulated, not only on this amendment but on all the work that he has done in this field and the report that he brought forward.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, the view of the Labour Party, the official Opposition, is that we will abstain if this amendment is put to a Division.

I heard the speeches of the noble Lord, Lord Hodgson, at Second Reading, in Committee and on Report. He makes a very strong case, which he has made again today. As my noble friend Lord Rooker said, the traditional way that both Houses deal with Law Commission Bills is to essentially nod them through. That was, and is, the agreement between the usual channels regarding this Bill as well. However, the best that I can do for the noble Lord, Lord Hodgson, is to abstain, because there is merit in the underlying preceding agreement which the usual channels have had. That is the reason I take a different view from the noble Lord, Lord Thomas, who has expressed his support for the amendment.

We on these Benches will be abstaining. I will leave it to the Minister to make his own case.

[Lord Parkinson of Whitley Bay (Con)]

I thank my noble friend Lord Hodgson of Astley Abbotts for tabling this amendment and for outlining the case again. Before I respond to it, I certainly associate myself with the comments of the noble Lord, Lord Thomas of Gresford, that my noble friend should be congratulated on all his work in this field. The Bill we are debating tonight is in very large part the result of his long-standing interest and considerable work in reviewing charity law.

On this issue, we have from the outset been at odds: where my noble friend sees obduracy, I see consistency. The noble Lord, Lord Rooker, is absolutely right: we can amend these Bills, even in the Law Commission procedure—we have just made some amendments in the previous group—but what is important is that we proceed on the basis of consensus and avoid areas of political disagreement. On this, the Government have been clear from the outset that we were not minded to accept the single recommendation from the Law Commission; and my noble friend has been equally consistent that he thought it was an important one. But we have made clear throughout the passage of the Bill our position on the role of the Attorney-General and the value placed on the Attorney-General’s oversight of references to the tribunal.

With respect to the noble Lord, Lord Rooker, and his advice that I take this away: I have taken it away and discussed it with the Attorney-General and her office on numerous occasions through the passage of the Bill so far, and I have had some helpful discussions with my noble friend, the noble and learned Lord, Lord Etherton, who is the chairman of the Special Public Bill Committee, and others, but our position remains as my noble friend Lord Hodgson knows it. Let me explain why that is.

Section 326 of the Charities Act 2011 provides the Attorney-General with the power to refer to the Charity Tribunal any question involving

“the operation of charity law in any respect, or … the application of charity law to a particular state of affairs.”

The Charity Commission has an equivalent power to make a reference to the tribunal where the question has arisen in connection with the exercise by the commission of any of its functions, but only with the consent of the Attorney-General under Section 325(3). These rights were considered by Parliament during the passage of the Charities Act 2006, which now appear in the consolidated 2011 Act, and it was agreed that this provision was necessary. The Attorney-General has an historic duty, on behalf of the Crown, to protect charitable interests in England and Wales. The Attorney-General’s consent for references to the charity tribunal is an important element in the system of checks and balances which should not be removed.

My noble friend says the Government have not made clear what specifically the Attorney-General’s role is. It is part of the Attorney-General’s role to assess whether a referral to the tribunal is in the interests of the public. This oversight also provides a second pair of eyes in ensuring that the costs associated with such a referral are not put on charities or on the public unnecessarily. So the Attorney-General works alongside the Charity Commission and provides a second opinion on referrals to the tribunal.

While this particular consent function is narrowly drawn, it is only one tool in a wider portfolio for performing her constitutional role as defender of charitable interests in the wider public interest. The Attorney-General’s wider role means that she has a unique perspective and is able to take into account considerations of societal issues and the wider repercussions for charities. In recent years, we have had Attorneys-General in both your Lordships’ House and another place. As such, the Attorney-General’s oversight reaches beyond charity law and regulation.

It should be remembered that the reference procedure is a unique declaratory power which enables the Charity Commission and the Attorney-General to seek rulings on what might be hypothetical questions. Outside this procedure, hypothetical questions are rarely entertained by the courts, for good reason. It is therefore right and proper that a public interest consideration is applied in the exercise of this unusual procedure. The value of the Attorney-General’s unique perspective has been recognised and commented on by the courts.

With this in mind, the Government oppose my noble friend’s Amendment 2, which would do away with the Attorney-General’s consent function altogether. We believe that by removing this mechanism completely, an important part of the Attorney-General’s oversight of charity law would be lost. So my noble friend will not be surprised to hear me say again that I am afraid we still disagree on this issue, as we did at the outset, and I would hope that he may yet withdraw his amendment.

It is important to note how rare these cases are. The Charity Commission and the Attorney-General have worked together on two references that the Attorney-General has made to the tribunal since the 2006 provisions were put in place, and there has been only one reference that the Charity Commission has sought the Attorney-General’s consent to pursue, which the Attorney-General, as my noble friend outlined, refused to give earlier this year. That is the context we find ourselves in for this debate.

22:15

[Lord Thomas of Gresford (LD)]

Is it not the case that, if the amendment were to pass, the Attorney-General would have the power to intervene at any stage in the public interest if the public interest became involved? I do not see why she has to give her consent before the reference to the tribunal can be made.

[Lord Parkinson of Whitley Bay (Con)]

That consent function, my Lords, is something the Government consider important; it is part of the assessment of whether it is in the public interest for the reference to the tribunal to begin, with all the costs and time that it would involve. That is part of the reason why the Government cannot accept my noble friend’s amendment.

While supporting the Attorney-General’s role, we are also aware of concerns raised by noble Lords regarding the time taken for the Attorney-General to make a decision on whether to grant consent in the particular case to which my noble friend referred. His amendment is grouped with Amendment 4 in the name of the noble and learned Lord, Lord Etherton, which provides that the Attorney-General must make her decision on an application for a reference to the tribunal within 60 days, otherwise consent would be deemed to be given. His amendment also requires that the Attorney-General publish a comprehensive statement explaining the reasons for any refusal of consent.

Regrettably, however, the noble and learned Lord’s amendment does not acknowledge that there may be good reasons beyond the Attorney-General’s control that require additional time in her decision-making. There may be times, for instance, when a case requires further information to be submitted, either by an individual charity or the Charity Commission, to enable the Attorney-General to make a fully informed decision. There may be mediation under way between parties involved which needs to conclude before a decision can be made, or a case could be particularly complex and require further investigation and deliberation. Given how complex these rare cases normally are, a strict 60-day time limit following which consent is automatically given would amount to the effective removal of the Attorney-General’s consent function by the back door. I have outlined the reasons why we do not agree that the consent function should be removed. Doing it in that way would also be inappropriate.

It is regrettable that a decision on whether to grant consent to a reference in the case involving the Royal Albert Hall took so long, but one complex case does not justify a change in the law. I thank once again my noble friend Lord Hodgson and the noble and learned Lord, Lord Etherton, for his Amendment 4.

[Lord Rooker (Lab)]

I just want to be clear about this. I fully take on board the point that it is one case, but the Attorney-General is in a different position to other Ministers. With other Ministers, we can get access to their diaries, what meetings they have had, so we can see who has lobbied them. How do we know who, if anybody, lobbied the Attorney-General during that period of nearly four years? How do we know that, with the Attorney-General being unlike other Ministers?

[Lord Parkinson of Whitley Bay (Con)]

My Lords, the Attorney-General is a Member of Parliament. Previously, they have been Members of your Lordships’ House; the current Attorney-General is a Member of another place. She is therefore subject to the same parliamentary scrutiny and the methods available to Members in another place to ask her those questions. This is a reflection of her particular role, but she is not a remote person; she is a Member of Parliament who can be asked questions. She makes her view known, as she has in this case, but we do not think that this case alone should warrant a change in the law.

[Lord Thomas of Gresford (LD)]

Does the Attorney-General claim the same prevention of disclosing that there is when she gives advice to the Government for when she gives or refuses consent under this provision? If it is different, why has she not given more reasons for it in the case of the Albert Hall?

[Lord Parkinson of Whitley Bay (Con)]

My Lords, no, I do not think that the Attorney-General claims client confidentiality in the same way. Her role overseeing charity law is part of her function as parens patriae. However, we think that it is important to maintain the consent function. As I have said, she is a Member of Parliament, so these questions could be posed to her.

The Attorney-General has set out her reasons why she does not think it would be in the public interest for reference to be made. Noble Lords may disagree with that, and they may ask her about that, but I reiterate that I do not think that one case, however long or complex it may be, should warrant a change in the law. It is for that reason that I hope my noble friend may yet withdraw his amendment.

[Lord Hodgson of Astley Abbotts (Con)]

My Lords, this has, as ever, been an interesting debate and I am very grateful to the noble Lords, Lord Grabiner, Lord Rooker and Lord Thomas of Gresford, for their support and, indeed, to the noble Lord, Lord Ponsonby, for the half-loaf that he offered. I am very grateful for that as well.

I do not propose to go on about this. My noble friend has talked about the oversight of charity law. I think we have seen what has been happening with the oversight of charity law. The noble and learned Lord, Lord Etherton, produced quite an elegant half-loaf of a 60-day limit and a requirement to explain because the Attorney-General is performing a declaratory, not an advisory, role, which we discussed. The Attorney-General cannot even make that move to help a past Master of the Rolls with his elegant diplomatic solution.

It is late. Let us finish. If your Lordships support my amendment, you are voting for transparency, clarity and sunshine. If you vote against it, I am afraid you are voting for obscurity, obfuscation and concern that charity law may not be developing as even-handedly as it should. I have now been on this case for 10 years. I owe it to all the people who have been to talk to me, who say that this needs to be sorted out, that on this occasion I wish to test the opinion of the House.

22:22

Division 3

Ayes: 18

---

Liberal Democrat: 9
Crossbench: 3
Conservative: 3
Labour: 2
Green Party: 1

Noes: 81

---

Conservative: 80
Independent: 1

22:34

Amendments 3 and 4 not moved.

Clause 39: “Connected person”: power to amend

Amendments 5 to 7

Moved by

[Lord Parkinson of Whitley Bay]

5: Clause 39, page 29, line 20, leave out “(c)” and insert “(d) (inserted by section 12)”
Member’s explanatory statement
This amendment is consequential upon the amendment of Clause 12 in the name of Lord Parkinson of Whitley Bay.

6: Clause 39, page 29, line 21, leave out “(d)” and insert “(e)”
Member’s explanatory statement
This amendment is consequential upon the amendment of Clause 12 in the name of Lord Parkinson of Whitley Bay.

7: Clause 39, page 29, line 23, leave out “for “or (c)” substitute “, (c) or (d)”” and insert “after “(d)” (inserted by section 12) insert “or (e)””
Member’s explanatory statement
This amendment is consequential upon the amendment of Clause 12 in the name of Lord Parkinson of Whitley Bay.

Amendments 5 to 7 agreed.

Schedule 2: Minor and consequential amendments

Amendment 8

Moved by

[Lord Parkinson of Whitley Bay]

8: Schedule 2, page 35, line 3, in column 1, leave out “under section 226”
Member’s explanatory statement
This amendment removes an unnecessary reference to section 226 of the Charities Act 2011.

[Lord Parkinson of Whitley Bay (Con)]

Amendments 8 to 12 are in my name. I shall outline them as briskly as I can, and I think it makes sense for me to speak to them in reverse order.

Amendment 12 is a concessionary amendment, responding to the amendment tabled by the noble and learned Lord, Lord Etherton, in Committee on 18 November. He highlighted an issue that had arisen during the Committee’s evidence-gathering: that the Bill, as currently drafted, does not offer the right to appeal Charity Commission decisions made under new Sections 280A and 67A that the Bill would insert into the Charities Act 2011. Having had time to consider the policy and implications that lay behind his amendment, I am happy now to bring forward this government amendment by way of concession.

The Government agree that appeal rights should exist in respect of Charity Commission decisions to withhold consent under new Section 280A. New Section 280A replaces existing powers under Sections 267 to 280 of the Charities Act 2011 for certain types of unincorporated charities to transfer property and alter their purposes. Two of these existing powers, under Sections 268 and 275, carry the right to appeal a Charity Commission decision to withhold consent. It is appropriate, therefore, that an appeal right is afforded to decisions under new Section 280A where Charity Commission consent is withheld. This would create an appeal right that is as close as possible to the appeal rights connected to those sections that will be repealed and replaced.

The Government acknowledge that affording the right to appeal Charity Commission decisions to withhold consent under new Section 280A, and not to extend that appeal right to cover decisions to give consent, is not exactly matched to the equivalent appeal rights given to charitable companies and charitable incorporated organisations under Sections 198 and 226 of the Charities Act 2011. It is, however, consistent with the existing appeal rights under Sections 268 and 275 of the 2011 Act.

These types of amendments that require Charity Commission consent for unincorporated charities under new Section 280A are wider than for charitable companies and charitable incorporated organisations. It is important also to note that the new power under new Section 280A is broader than the existing powers for unincorporated charities. The right to appeal Charity Commission decisions to withhold consent under new Section 280A will therefore be a slightly broader appeal right than at present. There is operational concern that any wider broadening of appeal rights to cover both the giving and withholding of consent would not be proportionate for the tribunal and the Charity Commission. In a similar vein, this concern is echoed in the suggestion to introduce what would be a completely new right to appeal Charity Commission decisions under new Section 67A, which allows trustees to apply funds from a failed or surplus fund-raising appeal for new purposes. Where those funds exceed £1,000, Charity Commission consent is required.

Decisions regarding the use of funds from a failed fundraising appeal can often involve internal disputes within a charity, and these cases are generally low-risk for the sector at large but can be contentious for individuals. There will often be one party left disgruntled with whatever decision the Charity Commission makes. Opening up new appeal rights in respect of these decisions is expected to invite a disproportionate administrative burden on the Charity Commission and the tribunal, given the types of issues usually at stake in such decisions. The context of a charity using funds from a failed appeal for different purposes is also a narrower decision to be taken by trustees and is less likely to have the same impact as a charity changing its general purposes.

Sections 280A and 67A should not, therefore, be treated in the same way. A judicial review is considered the most appropriate route to challenge a Charity Commission decision under Section 67A. Amendment 12 therefore inserts the right to appeal Charity Commission decisions under new Section 280A, where consent is withheld, into Schedule 6 to the Charities Act 2011. It does this by inserting paragraph 8(c) into Schedule 2 to the Bill.

Amendments 9, 10 and 11 shift some wording around in order to accommodate Amendment 12. Without these very minor changes, Amendment 12 would not make sense.

Finally, I speak to Amendment 8. In reviewing the Bill to draft these concessionary amendments, it was noticed that paragraph 2 of Schedule 2 refers to “Section 226” twice, unnecessarily. In the interests of avoiding using unnecessary words—which is a good lesson for this hour of night—this amendment removes those superfluous words from the Bill. This is purely a drafting change for tidying-up purposes.

I hope noble Lords will agree that this amendment and the consequential amendments which accompany it are appropriate and necessary for the reasons I have set out. I beg to move.

Amendment 8 agreed.

Amendments 9 to 12

Moved by

[Lord Parkinson of Whitley Bay]

9: Schedule 2, page 35, line 25, leave out “omit”
Member’s explanatory statement
This amendment is consequential upon the amendment in the name of Lord Parkinson of Whitley Bay at page 35, line 29.

10: Schedule 2, page 35, line 26, at beginning insert “omit”
Member’s explanatory statement
This amendment is consequential upon the amendment in the name of Lord Parkinson of Whitley Bay at page 35, line 29.

11: Schedule 2, page 35, line 28, at beginning insert “omit”
Member’s explanatory statement
This amendment is consequential upon the amendment in the name of Lord Parkinson of Whitley Bay at page 35, line 29.

12: Schedule 2, page 35, line 29, at end insert—
“(c) after that entry insert—

“Decision of the Commission to withhold consent under section 280A(7) in relation to an amendment of the trusts of an unincorporated charity.

The persons are—(a) the charity trustees of the charity, and (b) any other person who is or may be affected by the decision.

Power to quash the decision and (if appropriate) remit the matter to the Commission.”

Member’s explanatory statementThis amendment would enable an appeal to the Tribunal in respect of a decision of the Charity Commission to withhold consent under section 280A(7), as inserted by Clause 3.

Amendments 9 to 12 agreed.

House adjourned at 10.43 pm.