House of Lords

Tuesday 22nd March 2022 Lords Chamber

Tuesday 22 March 2022

11:00

Prayers—read by the Lord Bishop of Leeds.

Police, Crime, Sentencing and Courts Bill

Consideration of Commons amendments & Lords Hansard - Part 1
Tuesday 22nd March 2022 Lords Chamber

Commons Reasons and Amendments

11:05

Motion A

Moved by

[Lord Sharpe of Epsom]

That this House do not insist on its Amendment 58, to which the Commons have disagreed for their Reason 58A.

58A: Because it is premature to confer new search and seizure powers on the Food Standards Agency until the accompanying accountability arrangements, including in respect of the handling of complaints about the exercise of such powers, have been determined.

[Lord Sharpe of Epsom (Con)]

My Lords, I will also speak to Lords Amendments 89 and 146, and Amendments 114 to 116, which are in this group.

Noble Lords will recall that Amendment 58, put forward by the noble Lord, Lord Rooker, would confer a power on the Secretary of State, by regulations, to apply any provisions of the Police and Criminal Evidence Act 1984 to the investigation of offences by officers of the Food Standards Agency’s National Food Crime Unit. As I set out during the debate on Report, the Government recognise the serious nature of food crime and the importance of empowering the National Food Crime Unit to investigate these offences independently, so that its specialist knowledge is put to best use and the burden on the police is reduced. We support the principle behind the noble Lord’s amendment and recognise his concern on the likelihood of another food safety scandal.

However, it remains the case that there is further work to do before we can move forward with legislation. Before proceeding with an extension of police powers to the National Food Crime Unit, we would need reassurance that what is proposed is necessary and proportionate and that suitable accountability arrangements will be in place, including in respect of the investigation of complaints.

Specifically, we will need to work with the National Food Crime Unit, the Independent Office for Police Conduct and Her Majesty’s Inspectorate of Constabulary and Fire & Rescue Services on establishing a formal independent oversight framework for the NFCU’s exercise of these powers and the potential for the NFCU to be brought under their respective jurisdictions, as the Gangmasters and Labour Abuse Authority has been. This is likely to require other legislative changes in addition to that provided for in Amendment 58.

Given that we are dealing with intrusive powers of the state, I am sure that noble Lords will understand that we must ensure that these necessary oversight mechanisms are in place in tandem with conferring certain police powers on the NFCU and not legislate for these separately as an afterthought. These are complex issues that will require detailed consideration and I know that noble Lords would not want the Government to confer intrusive powers on the NFCU without also putting in place the arrangements for use of these powers to be properly and independently scrutinised and for any misuse of powers to be dealt with swiftly and appropriately.

We are committed to working with the Food Standards Agency and its sponsoring department, the Department of Health and Social Care, to take this work forward, as we recognise that these legislative changes are in the long-term interest of all those concerned with combating food crime. The Health Secretary has agreed that the Food Standards Agency should publicly consult on the question of additional investigatory powers later in the spring, which will allow a broad spectrum of views to inform and enhance the development of these proposals. I know that the noble Lord, Lord Rooker, and other noble Lords want to make progress with this issue, but I hope that this House will agree with the other place that it is premature to legislate in this Bill and that additional time is needed to get the package of legislative changes right.

Turning to Lords Amendments 89 and 146, I commend the noble Lord, Lord Best, my noble friend Lord Young of Cookham and other noble Lords who have campaigned with such determination and, I might add, so effectively for the repeal of the Vagrancy Act 1824. The Government agree that the Act is antiquated and no longer fit for purpose. That is why we have brought forward amendments in lieu to consign this outdated Hanoverian statute to history.

However, as my noble friend Lady Williams indicated on Report, we must balance our role in providing essential support for the vulnerable with making sure that we do not weaken the ability of the police to protect communities who play an important role in local partnership approaches to reducing rough sleeping. We must ensure that the police have the tools that they need to effectively respond to behaviour that impacts negatively on communities and to protect all individuals.

Therefore, although the Government are committed to repealing the Vagrancy Act in full in England and Wales, these provisions will be commenced only once we have suitable replacement legislation in place. As the Policing Minister indicated in the debate in the Commons, it is our intention to commence the repeal within 18 months of Royal Assent. As a first step, we intend to consult on this issue in the coming months.

In the meantime, we will deliver a bold new rough sleeping strategy, which will set out how we will end rough sleeping, building on recent success in ensuring that rough sleeping is prevented in the first instance and is effectively responded to in the rare cases where it does occur, but also ensuring that our police have the ability to intervene where needed to keep people safe.

Finally, the House will recall that Amendments 114, 115 and 116 seek to specify matters to be addressed in the report on the operation of the pilot for serious violence reduction orders and to provide for the national rollout of SVROs to be conditional on a parliamentary vote. I appreciate the case that the noble Baroness, Lady Meacher, and other noble Lords have made and agree that the pilot must be robust and its evaluation thorough. The assessment of the pilot will be conducted by an independent evaluator and the Government will consider thoroughly the findings of the report on pilot before any decision is made to roll SVROs out across England and Wales. The report will be laid before Parliament. However, commencement regulations are not normally subject to any parliamentary procedure and, although we are not bound to follow the precedents in this regard, the Government remain of the view that this approach should not be changed for SVROs.

However, we accept that the Bill can and should say more about the evaluation of the pilot and the content of the report on its outcome. Amendments 116A and 116B agreed by the Commons are directed to this end. These amendments specify a non-exhaustive list of matters that must be addressed in the report of the pilot. They include information on the number of offenders with an SVRO; information about the offences that were the basis for application for an SVRO; information about the exercise by constables of the powers in Section 342E of the Sentencing Code; an assessment of the impact of SVROs on people with protected characteristics within the meaning of the Equality Act 2010; an initial assessment of the impact of SVROs on reoffending rates of those who are subject to an SVRO; an assessment of the impact on offenders of being subject to an SVRO; and information about the number of offences committed under Section 342G of the Sentencing Code and the number of suspected offences under that section that have been investigated. This a comprehensive list and, as I indicated, it is not intended to be exhaustive.

We have listened and acted. I hope that the noble Baroness, Lady Meacher, will agree that the Commons amendments in lieu respect the spirit of her amendments. For all those reasons, I invite the House to support the Motions in my noble friend’s name. I beg to move.

Motion A1 (as an amendment to Motion A)

Moved by

[Lord Rooker]

Leave out from “House” to end and insert “do insist on its Amendment 58”.

[Lord Rooker (Lab)]

My Lords, contrary to what we have just heard, this issue was not discussed in the House of Commons when it was sent there. The Minister said about three or four sentences, which I will refer to in a moment.

This is a piece of enabling legislation, which will save hours of parliamentary time and slotting for parliamentary time in due course. I am reminded of the late Alf Morris; once when someone said to him, “We’ll kick that into the long grass”, he asked, “How long is the grass?” and the answer came back: “Can you see the giraffe?” That is what I am trying to avoid.

Amendment 58 seeks to place the new section after Section 114B in the Police and Criminal Evidence Act 1984. Section 114B(1) states:

“The Secretary of State may by regulations apply any provision of this Act which relates to investigations of offences conducted by police officers to investigations of labour market offences conducted by labour abuse prevention officers.”


That was the bit that the Government put in the PACE Act to help over exactly the same problem with the gangmasters. Amendment 58 is taken from subsection (1) of that part of the legislation.

In a public presentation last Friday of the Food Standards Agency’s new five-year plan, the current chair, Professor Susan Jebb, said:

“We are pursuing greater powers for the National Food Crime Unit”.


This amendment does just that. There is no pressure on timing. The Secretary of State “may” act. It is pure enabling.

11:15

During Oral Questions in February last year, I raised the issue of food-related crime and the resources devoted to it. The then Minister, the noble Lord, Lord Bethell, pointed out that the FSA constituted the National Food Crime Unit in 2014 and that Ministers were in dialogue about increasing its powers. In a supplementary answer, he went further and said that

“its investigatory powers could be enhanced and its impact improved. That is the view of the Government, industry and the police”.—[Official Report, 22/2/21; col. 614.]

So what is the problem? We have had dialogue for over a year and have got nowhere. Ministers have been too slow on this.

The Food Crime Unit’s work is about tackling serious organised or complex cases of food crime. The original assumption when the unit was set up, which was after my term at the FSA, was that 10 full-scale investigations could be managed by the crime unit in a year. Data from the first quarter of 2020 shows that more than 30 operations were opened, in addition to 40 pre-existing ones.

The Food Crime Unit and the FSA can already use the powers in RIPA and the covert human intelligence sources legislation and it can also access the PNC and ANPR. But in key respects it cannot get into serious cases without the support of hard-pressed police officers and local government, and delays owing to competing higher-risk police priorities have already proven detrimental to a number of Food Crime Unit investigations.

The unit needs the powers in PACE to go direct to the courts rather than have the police doing it at one remove. The officers from the Food Crime Unit are in a position to answer questions from the Bench about the application that police officers drafted in at the last minute, unfamiliar with the case, cannot. I have to say that, in my experience, the police have never taken food crime seriously. That was my experience at MAFF from 1997 to 1999. The police admit that it is not a high priority. Therefore, if food crime is to be taken seriously, the unit needs the powers.

There have been well-documented cases where the police have been unable, unavailable or reluctant to apply for warrants on behalf of the unit. There have been delays while the unit had to wait for police officers to become available. Exactly these problems arose with the gangmasters authority and the Government acted, as I pointed out, by amending PACE. The gangmasters authority has secured the powers. I do not know all the detail today, but the gangmasters authority was run and managed by ex-police officers. In fact, I think that the first chair or chief executive was an ex-chief constable. The lack of these powers is affecting staff in the Food Crime Unit and is a real constraint.

Officers in the Food Crime Unit—I repeat what I said in January; I have not spoken to any of them—are well qualified to present cases direct to the courts. They consist of ex-police officers of very senior rank, ex-National Crime Agency officers and ex-police intelligence officers. We are not talking about unqualified people. The unit cannot do its job

“relying on the kindness of the police to lend their powers in important cases”,

as the former chair of the FSA, Heather Hancock, said.

The issue was considered by the National Audit Office in its report, Ensuring Food Safety and Standards, in June 2019. It said in paragraph 13:

“The regulatory system lacks the full range of enforcement powers to ensure businesses supply safe food.”

It went on to say that the Food Crime Unit

“does not yet have the statutory enforcement powers it needs to investigate … such as powers of search and seizure.”

That is what this is about: getting a warrant to do that work without having to queue up. The FSA wants the powers, the National Police Chiefs’ Council agrees that it should have the powers and the NAO agrees. The Government imply support by answers they have given.

I have worked in both the Home Office and the FSA over the years and the grapevine tells me that there is a big reluctance in the Home Office to acquiesce to a Back-Bencher initiating change. This a silly and not adult politics. The amendment is in effect a framework for the Government to build on. There is no need to queue for valuable parliamentary time. It does not require them to act now but it saves us from having to queue later.

There was no discussion in the Commons on the issue. On 28 February, the Minister, Tom Pursglove, after agreeing that

“food crime is a serious issue, costing billions of pounds each year,”

described Amendment 58 as putting

“the cart before the horse”.—[Official Report, Commons, 28/2/22; col. 803.]

The Minister, not I, said that food crime is costing billions of pounds a year. It makes you wonder why we are hanging about all this time with the Government having dialogue.

Speaking of horses, has anyone wondered why no court action was taken over the horsemeat issue in 2013? Thank goodness it was not a food safety issue, although we did not know that at the time. No company has ever sued another on the issue. Why? The answer is to avoid washing the dirty linen in public. This shows how vital it is to have an independent regulator, as industry cannot be trusted to do it itself.

Although the FSA is a government non-ministerial department, it has independence from day-to-day control of Ministers. From my experience, Ministers of all parties —I am the only FSA chair who has experience of Ministers from both Labour and Tory Governments—do not like it when they cannot pull the levers. As such, the FSA and its work by evidence and science—that is legally required in Section 1 of the Act that set it up on behalf of consumers—operating in an open and transparent way, is not the top of Ministers’ list for action, as Ministers do not get to pull any levers. The present Secretary of State, who answers to Parliament on behalf of the FSA, is no exception.

We have moved on from 2010, when the plan of the incoming team was to abolish the FSA. The announcement was all set for 12 July 2010—it still generates 50 pages on Google due to the briefings. The FSA has had over 20 years’ experience and is part of the fabric of generating confidence in food. It is crucial that we maintain confidence. We still get food-borne illnesses: each year, there are 15,000 hospitalisations and, sadly, food poisoning leads to the death of 150 people. We are nearly 10 years away from the horsemeat issue and there will be another one round the corner. Will we be able to move fast enough when the time comes? The clear answer is no. Therefore, we need to push these powers.

The Minister said that the FSA will consult. The FSA can consult all it likes—rightly so—but whatever the outcome of the consultation, primary legislation is needed to allow Food Crime Unit officers to use the PACE legislation of search and seizure. It is as plain as a pikestaff that we ought to pass this enabling legislation.

I make one final point to every Member of the House of Lords who has ever served as a Minister or an official. I can guarantee that each one of them will remember one occasion when they wanted—I quote myself—to save the Government from themselves. I had those moments. I recall doing a Bill with the noble Lord, Lord Bassam, when we became convinced, due to exposure in your Lordships’ House, that it would not work as planned. We blew hot and cold each day in Committee and on Report. We told the powers that be in the other place, but to no avail. It required Eric Pickles—now the noble Lord, Lord Pickles—entering government in 2010 to put that policy out of its misery. I do not need to identify it, but it is an example. We were trying to save the Government from themselves and this is another good example today.

Why wait on the issue? Send it back to the other place. The Government can then modify it and add the bits from the gangmasters clause to the back end. There is no requirement on time. It solves the problem of queueing for parliamentary time in the future and it shows that the long grass is not so long. We will then get some action, because the dialogue has gone on without any success for far too long. I beg to move.

[Baroness Boycott (CB)]

I support the amendment from the noble Lord, Lord Rooker. It is insane that we do not have this. Food crime is complicated and difficult. Food chains are very long with no roles of responsibility. It is not like selling an egg to your next-door neighbour and then they end up sick; the egg has probably travelled 1,000 miles and nobody really gives a stuff about what happens at the other end.

There are lots of categories of food crime: illegal processing, which can mean the unapproved slaughter or ingestion of food; waste diversion, which means you send waste food back into the supply chain; adulteration, which is fake food; substitution, which is what happened in the horsemeat scandal; misrepresent-ation, which is endless and to do with marketing saying, for example, that pork has come from a happy pig when, in fact, it came from some pig reared in Poland in a miserable condition; and discount fraud. It is very common, widespread and difficult to deal with.

The fact that we bring only a tiny number of prosecutions, as the noble Lord, Lord Rooker, mentioned, is a scandal, but it is one that we can fix. The FSA has a brilliant new chair in Professor Susan Jebb, who is gagging to go and to get on top of this. It would do more than just sort out crime; it would also bring safety and responsibility. It would stop this massive dispersion of food into all different places.

The noble Lord, Lord Rooker, mentioned the horsemeat scandal of however many years ago. At that point I was working for the current Prime Minister as chair of the London Food Board. He rather jovially suggested that he and I should go up to Trafalgar Square and eat a horsemeat burger. We did not, because it probably would have got him into even more trouble than usual. However, the point is that at that moment we all saw the chains. Some of that horsemeat had passed through no fewer than 15 hands as it travelled around, each time making a little bit of money. Every moment is a moment for adulteration. I cannot understand why the Government are not happy to accept the amendment and to put it in the Bill. We would then have a much brighter future for all of us.

[Lord Cunningham of Felling (Lab)]

My Lords, I strongly support my noble friend—indeed, my very personal friend. He and I wrote the White Paper on the Food Standards Agency. It was necessary then and it was the right thing to do. The public had lost confidence in politicians of all parties and we had to create a new and independent organisation. That is what we did. Believe me, I cannot for the life of me understand why Ministers object to the proposal. It is already in legislation, so what is the problem?

The reality is that food crime is a global occupation. The European Union is concerned about it, as is the Government of Australia. In the United States of America, the Department of Justice recently fined a Brazilian company $110 million for trying to rig the beef market. For that matter, it also tried to rig the chicken market there. We need these powers to combat that level of organised and very sophisticated criminal activity in food markets. I do not know why there is any hesitation about this. If America can do it, we can. Australia is looking very closely at the activities of this same food company intervening in the Australian market. It already has two subsidiaries here in the UK. I have drawn this to the attention of the noble Lord, Lord Benyon. The reality is that, unless we strengthen the Food Standards Agency, these people will fiddle, rig, and have criminal activities in our food markets. We cannot stand by and allow that to happen. As I said at the outset, I strongly support my noble friend’s amendment. I urge noble Lords on all sides of the House to support it too.

11:30

[Lord Young of Cookham (Con)]

My Lords, in his opening remarks my noble friend spoke to Amendment 89, and I hope that it is in order to introduce a more consensual note to this debate by welcoming Amendment 89. The first subsection of the new clause states:

“The Vagrancy Act 1824 is repealed.”


This shows the value of your Lordships’ House. When the legislation came to this House, there was nothing in it at all about the Vagrancy Act. But an all-party campaign, led by the noble Lord, Lord Best, who had hoped to speak to this amendment, inserted an amendment that would have repealed the Vagrancy Act in its entirety. That went back to the other place and, following a very constructive meeting with the Minister, my noble friend Lady Williams, and Minister Eddie Hughes, a satisfactory compromise was reached that is set out in Motion J and government Amendment 89, which, as I said, begins:

“The Vagrancy Act 1824 is repealed.”


My noble friend explained that there may be sections of the Vagrancy Act that need to be kept and therefore that total repeal is subject to a review, with an undertaking that it will be repealed in its entirety, subject to that review, within 18 months. I am most grateful to my ministerial friends for their constructive approach and I wonder whether the Minister, when he winds up, can say when the review that he referred to will be completed, and when we can have the assurance that there is nothing in the Vagrancy Act that needs to be kept and that, within the total span of 18 months, it will be repealed in its entirety. On behalf of all those who supported the campaign led by the noble Lord, Lord Best, I say that we very much welcome the outcome of our discussions.

[The Lord Bishop of Manchester]

My Lords, I echo the thoughts that the noble Lord, Lord Young, has just shared. I declare my interest as chair of the Manchester Homelessness Partnership board and as co-chair of the national police ethics committee, because I also wish to speak to the Motion regarding serious violence reduction orders.

I support the Vagrancy Act repeal, as I know my right reverend and most reverend friends on these Benches do, and have sought to see that included in previous Bills. I am grateful that it is now on track and I look forward to working with Ministers and others to ensure that we avoid any unintended consequences and do not simply recreate the old Act in more modern language.

On serious violence reduction orders, I am deeply concerned about knife crime. In fact, in Greater Manchester we are holding a summit on the afternoon of Friday of next week and I would be delighted if the noble Baroness the Minister could join us on that occasion, if her diary permits. As one of those who sponsored Amendments 114 to 116, I am grateful that we now have an expanded list of things that the review of the pilot must include and I am grateful for the assurances that we have heard today that the list is not exhaustive.

I still have concerns that these orders may prove unworkable, that they may put vulnerable women and girls at greater risk or that they may damage community relations with police through their disproportionate application. At worst, I think that all those things could happen, but for now I am willing to accept that the review is in good faith. Again, I look forward to seeing how the lessons learned from it will be taken fully on board and incorporated into any subsequent national rollout of SVROs.

[Baroness Bakewell of Hardington Mandeville (LD)]

My Lords, I will speak briefly to Motion A1. I congratulate the noble Lord, Lord Rooker, on his introduction and support his amendment. Organised food crime costs billions and the police have far more urgent priorities to deal with. Food-borne illnesses cost money in lost earnings and even in some cases result in death. In the current food shortage scenario, it is open season for the unscrupulous to take advantage and exploit the public by producing and selling adulterated food that is not fit for human consumption. They avoid prosecution while the police are completely overstretched. This amendment would assist the FSA to act to prevent future food scandals. I fully support the noble Lord, Lord Rooker, and urge the Government to accept this very sensible amendment.

[Lord Paddick (LD)]

My Lords, we support Motion A1 in the name of the noble Lord, Lord Rooker. Compared with other important issues that the House is considering today, it is a relatively minor one. None the less, it will save no time if we abstain, so if the noble Lord divides the House, we will support him.

On Motion J, although the repeal of the Vagrancy Act is very welcome and something for which Liberal Democrats have been campaigning for many years, it is unfortunate that the Government are still insisting on delaying the repeal of the outdated and unnecessary Act until replacement legislation is in place, as we believe that existing alternative legislation is sufficient. Unlike the noble Lord, Lord Young of Cookham, I heard the Minister say that the Government will commence, not conclude, repeal in 18 months—I wrote it down. If I am right and the noble Lord is wrong, can the Minister tell us how long it will take to repeal the Act in its entirety?

On Motion L, serious violence reduction orders will allow the police to stop and search people without any suspicion that those targeted have anything on them at the time they are stopped and searched that they should not have in their possession. It is another form of stop and search without suspicion, which is notorious for being ineffective. It is even less effective at finding weapons than stop and search based on suspicion and it is disproportionately focused on black people, even compared with stop and search based on suspicion. As a consequence, it is notorious for the damage that it causes to the relationships between the police and the communities they are supposed to help. The Government’s own impact assessment shows that these measures will disproportionately impact black communities and fly in the face of the Government’s response to the report by the independent Commission on Race and Ethnic Disparities.

The police need to work together with communities suffering serious violence to build trust and confidence and to demonstrate that they are on the side of the community—not using powers disproportionately against it, as these new powers, by the Government’s own admission, will continue to do. Even Her Majesty’s Inspectorate of Constabulary and Fire & Rescue Services says that the disproportionate use of powers against certain communities is “undermining police legitimacy”.

Like the right reverend Prelate the Bishop of Manchester, we have concerns. We believe that serious violence reduction orders are likely to make serious violence worse, as they further alienate the very communities the police need to co-operate with to identify the perpetrators. However, we have reluctantly agreed to see how SVROs, arguably a manifesto commitment, work in practice in a limited number of pilot areas. We supported an amendment in the name of the noble Baroness, Lady Meacher, on Report that would have strengthened the proposed pilot evaluation and prevented SVROs from being introduced beyond the pilot phase until a report on the pilot had been laid before Parliament and both Houses had agreed to the rollout.

The Minister has given assurances that the pilot will be independently evaluated and that the Government will not continue with the scheme if it proves, as we suspect, to be ineffective or counterproductive. The evaluation must include crime reduction outcomes and community impact assessments. Given those reassurances and the Government’s strengthening of the pilot evaluation, we have agreed with the noble Baroness, Lady Meacher, not to insist on her amendments, but we will be watching the pilots very carefully and listening to the communities affected, whose trust and confidence in the police is essential if knife crime is to be tackled effectively.

[Lord Rosser (Lab)]

There are three issues in this group and I wish to say something about all of them. Starting with Motion A1, I thank the noble Lord, Lord Sharpe of Epsom, for sending me a copy of his letter of 22 February to my noble friend Lord Rooker on Lords Amendment 58, which relates to the Food Standards Agency. As the letter says, the amendment gives powers available to the police under the Police and Criminal Evidence Act 1984 to the National Food Crime Unit of the Food Standards Agency. However, the Commons disagreed with the amendment, giving this reason:

“Because it is premature to confer new search and seizure powers on the Food Standards Agency until the accompanying accountability arrangements, including in respect of the handling of complaints about the exercise of such powers, have been determined.”


Yet Lords Amendment 58 does not lay down a specific date or timescale by which powers available to the police under PACE have to be given to the National Food Crime Unit. It simply says:

“The Secretary of State may by regulations apply any provisions of this Act to investigation of offences conducted by officers of the National Food Crime Unit in respect of search and seizure.”


If I am right, the Commons reason suggests that the Commons and the Government never actually read the terms of Lords Amendment 58. That is surprising, since the letter from the Minister to my noble friend Lord Rooker states that

“the Government agrees in principle that these powers should be conferred upon NFCU officers in order to support their vital work tackling food crime.”

There is no argument about whether the powers should be given, but simply over when they should be given. Lords Amendment 58 would give the statutory authority to the Secretary of State to give those powers but leaves it up to the Secretary of State to decide when the time is right. So what is the problem with the amendment?

The letter from the Minister goes on to say:

“Food crime is a very serious issue and empowering the NFCU to investigate these offences independently will ensure that their specialist knowledge is put to best use and that the burden on police forces is reduced”.


Yet the Commons and the Government have disagreed the amendment. The Minister goes on to say that

“further work is required to fully work through the implications of these proposals to ensure that any exercise of police powers by a non-police body is necessary, proportionate and legitimate and that suitable governance and accountability arrangements will be in place”,

and:

“For these reasons we have tabled a motion to disagree with Lords amendment 58”.


But Lords Amendment 58 does not say that the Secretary of State has to do it; it would simply give the Secretary of State the necessary statutory power to do it if and when the Secretary of State so wishes, which is the point being made by my noble friend Lord Rooker. Frankly, the Government really are struggling to think of a credible argument why Lords Amendment 58 should not be accepted.

The powers currently available to the Food Standards Agency under food law relate to the enforcement of regulatory matters. The NFCU investigates cases of serious crime, often involving offences such as fraud. However, the FSA’s existing powers do not sufficiently equip the NFCU to investigate these crimes fully and lawfully, and to collect evidence to the higher standard needed to prove criminal intent, without the support of partners in the hard-pressed environments of policing or local authorities.

As part of the FSA, the NFCU already has access to sensitive law enforcement powers around directed surveillance, securing communications data and the management of convert human intelligence sources. But NFCU officers have not yet been given essential investigatory powers, including the power to apply to courts for warrants to search premises and seize evidence, or to interview suspects without police officers present. The unit has to rely on the support of partners, including the police forces, to carry out these activities. This means that the courts are not hearing from the experts familiar with the cases, which can increase the likelihood that warrants are not authorised.

As I understand it, competing demands on police time have led to delays in several NFCU investigations. At present, the NFCU needs the police to go to court and swear warrants on its behalf, so investigations are delayed if the police decline or take time to do so, or if the court refuses to authorise the warrant, which is more likely if the person swearing it cannot answer questions about the case. The NFCU also needs the police to be present when warrants are executed, which can lead to delays in the unit being able to carry out searches or seize critical evidence if the police have other priorities. As I understand it, the evidence seized then needs to be taken into police custody before it can be transferred to the NFCU. These issues can and do create delay, which is a problem in running a live investigation and trying to gather evidence before it is moved or destroyed.

I understand that NFCU investigations have been impacted by all the issues to which I have referred. I am also advised that the FSA’s view is that these additional powers are essential to enable the National Food Crime Unit to properly investigate and pursue complex food crime cases. As has been said, this was also identified as a gap in its systems to keep food safe in the independent review by Professor Elliott in I think 2014 following the horsemeat scandal.

In the Commons debate on this Lords amendment, the Minister said that the chairman of the Food Standards Agency had written to the Minister for Crime and Policing on 11 August 2021, expressing concern that the existing powers of the National Food Crime Unit were insufficient for their purpose. The Minister responded in October by expressing support for the request and indicating the Home Office’s intent to work with the NFCU to find a suitable legislative vehicle.

11:45

Well, we have a suitable legislative vehicle: it is this Bill. But five months after the Minister’s reply to the chairman of the Food Standards Agency expressing support for the request, we appear to have had very little action. It is time for action now, and my noble friend Lord Rooker has made the case for achieving that objective of action by proposing Motion A1, his amendment to government Motion A: that this House

“do insist on its Amendment 58”.

I turn to the other two matters referred to in this group. First, on the repeal of the Vagrancy Act, the Government have given a concession on this, as has been said. They have brought forward their own amendment, which will repeal the Vagrancy Act. In the Commons, the Minister said the Government agreed that no one should be criminalised simply for sleeping rough and that the time had indeed come to repeal the antiquated Vagrancy Act 1824. The Minister said that the Government were planning to bring forward replacement legislation in the next Session to ensure the police had “the tools they need” to intervene where necessary. So the Government will delay commencement of the new clause for 18 months while the legislation is introduced and scrutinised. The noble Lord, Lord Paddick, asked what exactly was going to happen in the 18 months, and I, too, await an answer from the Minister on that point.

We welcome the fact that the Government have accepted the terms of this amendment and have finally decided to act. Likewise, we pay tribute, as the Minister did, to the tenacity of the noble Lord, Lord Best, and those who have worked with him on this issue—not least for ably moving the amendment and winning a vote in the middle of the night on Report, which was some achievement.

My only question follows on from what the noble Lord, Lord Paddick, said. Could we have an assurance from the Minister that this is not going to be kicked into the long grass due to the plans for delayed commencement, and that the Government will get on with improving support for those who find themselves sleeping rough on our streets?

On the issue of serious violence reduction orders, the noble Baroness, Lady Meacher, led on this on Report and we gave our support. The noble Baroness led on amendments that would strengthen the pilot of these orders, requiring it to proactively report on a number of concerns, and would require a vote in Parliament following the pilot before the orders could be brought in. The Government opposed the amendments but have brought forward Amendment 116A in lieu, which provides a non-exhaustive list of matters that must be covered in a report on the pilot. The Government say that the pilot will be robust and that an assessment of it will be covered by an independent regulator.

We are disappointed, as I said, that the Government have not accepted the reasonable amendments from the noble Baroness, Lady Meacher, on serious violence reduction orders. Prevention of crime is obviously a priority for our Benches and, I am sure, for all noble Lords in this House, and we considered this part of the Bill carefully. But the Minister is aware of our concerns that these orders may reduce trust in the police disproportionately and will not actually reduce crime.

As my colleague Sarah Jones MP said in the Commons, some years ago there was a similar scheme and knife crime prevention orders were lauded by the Government as the answer to crime. But they have not even been brought into force, presumably because they are hard to make work. What we are all trying to do is pass good law and bring into force only initiatives that actually prevent crime and protect communities. That is why the quality of the pilot is so important.

Having said that, we welcome the fact that the Government have moved slightly and included a list of areas that must be included in the assessment of the pilot, including the impact of the orders on reoffending and an equality impact assessment—of sorts. I ask the Minister whether the Government will promise a debate in Parliament after the pilot concludes. It would be appreciated if that undertaking and guarantee could be given when the Minister responds.

[Lord Sharpe of Epsom (Con)]

I am grateful to the noble Lord, Lord Rooker, for his comments and to all noble Lords who participated in this short debate. I will try to reassure the noble Lord, Lord Rooker, that we fully recognise the need to make quick progress with the consultation on extending Police and Criminal Evidence Act powers to the Food Standards Agency and then to introduce the necessary legislation as soon as parliamentary time allows.

The noble Lord very properly pushed me on a credible argument for this. I refer back to one of the paragraphs in my opening remarks: we specifically need to work with the National Food Crime Unit, the Independent Office for Police Conduct and Her Majesty’s Inspectorate of Constabulary and Fire & Rescue Services on establishing a formal independent oversight framework for the NFCU’s exercise of these powers and the potential for the NFCU to be brought under their respective jurisdictions. The noble Lord referred to gangmasters; that is what happened with the Gangmasters and Labour Abuse Authority. That is likely to require other legislative changes in addition to those provided for in Amendment 58. The issue is one of linked legislation. I have no doubt that the noble Lord will monitor this closely and I will ensure that he is kept informed of all developments. I hope that, on that basis, he will not press his Motion A1.

My noble friend Lord Young of Cookham asked about our commitment to commencing the repeal of the Vagrancy Act just as soon as we have consulted on and legislated for replacement legislation. The noble Lords, Lord Paddick and Lord Rosser, asked me precisely when. Perhaps it would help to clarify this if I read out what the Minister said in the Commons:

“On the undertaking that I was asked to give about the Vagrancy Act, let me say that 18 months is a maximum. If we can act faster, we will, but intensive work will obviously be required to get us there.”—[Official Report, Commons, 28/2/22; col. 855.]


My noble friend Lord Young asked about the consultation. All I can say is that it will take place this spring.

The noble Lord, Lord Rosser, quite rightly asked why the House will not necessarily have a debate on the SVRO pilot. We have done this because, subject to the Bill receiving Royal Assent, we expect the pilot to take two years, having started in early 2023. It will then take some two or three months to complete the evaluation. That timetable firmly takes us beyond the life of this Parliament. I hope that the noble Lord understands that it would not be right for me to commit a future Government or Chief Whip to provide parliamentary time to a debate on the report of the pilot. That is not within my gift or anyone’s gift. But we have said that in principle we endorse the case that has been made for such a debate and we understand the concerns. Therefore, we commit to sending all noble Lords the terms of reference for the independent evaluation of the pilot once they have been finalised and to lay a copy of those in the Library of the House.

In conclusion, I hope that, in the light of the Commons amendments in lieu providing clarity in the Bill on the matters to be addressed through the pilot and the observations about affording this House the opportunity to debate the pilot report, the noble Lord, and indeed the whole House, will support Motion L when we come to it.

[Lord Paddick (LD)]

I am still confused, despite what the noble Lord read from Commons Hansard. There will be consultation and replacement legislation, but will the repeal start in 18 months’ time or will the Vagrancy Act in its entirety be repealed in a maximum of 18 months? I am still not sure.

[Lord Sharpe of Epsom (Con)]

I go back to the statement that I just read: 18 months is a maximum for this issue to be resolved.

[Lord Rooker (Lab)]

My Lords, I will make two very short points. All the issues that the Minister has talked about could be dealt with in the regulations—that is the whole point. The issue of parliamentary time is the giveaway.

From time to time, the House is fortunate to have one or more of its Members on the board of the FSA, such as the noble Baroness, Lady Howarth of Breckland, and the noble Lord, Lord Krebs, who was the founding chair of the FSA. He is tied up in committee this morning, but I have his authority to say that he will vote for this Motion. Currently, we have someone sitting in the Chamber who, as a member of the board, has inside knowledge of the crimes that the Food Standard Agency’s National Food Crime Unit is dealing with. However, because the noble Lord, Lord Blencathra, is a member of the board, he cannot speak in this debate—but he will vote for the Motion.

11:55

Division 1

Ayes: 181

Noes: 157

12:08

Motion B

Moved by

[Baroness Williams of Trafford]

That this House do not insist on its Amendment 70 and do agree with the Commons in their Amendments 70A and 70B in lieu.

70A: Page 46, line 35, at end insert the following new Clause—
“Administering a substance with intent to cause harm
(1) The Secretary of State must, before the end of the relevant period—
(a) prepare and publish a report—
(i) about the nature and prevalence of the conduct described in subsection (2), and
(ii) setting out any steps Her Majesty’s Government has taken or intends to take in relation to the matters referred to in sub-paragraph (i), and
(b) lay the report before Parliament.
(2) The conduct referred to in subsection (1)(a)(i) is a person intentionally administering a substance to, or causing a substance to be taken by, another person—
(a) without the consent of that other person, and
(b) with the intention of causing harm (whether or not amounting to an offence) to that other person.
(3) In subsection (1), the “relevant period” means the period of 12 months beginning with the day on which this Act is passed.”

70B: Page 195, line 27, at end insert—
“(ka) section (Administering a substance with intent to cause harm);”

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

My Lords, in moving Motion B, with the leave of the House, I will also speak to Motion M. Amendment 70, originally tabled by the noble Lord, Lord Ponsonby of Shulbrede, and passed by this House on Report, would require the Secretary of State to

“establish a review into the prevalence of, and the response of the criminal justice system to, the offence of administering a substance with intent under section 61 of the Sexual Offences Act 2003”.

As I have made clear previously, the Government share that concern about spiking, whether it is spiking of drinks or by needles, which has prompted this amendment and we are taking the issue very seriously.

In September last year, my right honourable friend the Home Secretary asked the National Police Chiefs’ Council to review urgently the extent and scale of the issue of needle spiking. We still have much to learn, as the noble Lord acknowledged at the time, but it is clear from what the police have told us that the behaviour is not exclusively carried out with the intention of perpetrating a sexual assault. Sometimes, financial crime might be a motivation. Indeed, many reported incidents do not appear to be linked to any secondary offending at all. It seems that sometimes the act might be an end in itself, yet all examples of this behaviour are serious in their impact on the victim and in the fear and anxiety felt more widely by those seeking simply to enjoy a night out.

It is also clear that we need a response that goes beyond the criminal justice system and encompasses health, education and the night-time economy. In the Commons, therefore, the Government tabled Amendment 70A in lieu, which is drafted more broadly. It requires the Home Secretary to prepare a report on the nature and prevalence of “spiking”—which, for these purposes, we are defining as

“intentionally administering a substance to someone without their consent and with the intention of causing them harm.”

The report will also set out the steps that the Government have taken or intend to take to address it. The Home Secretary will be required to publish the report, and lay it before Parliament, within 12 months of Royal Assent.

I hope that this addresses the concerns that underpinned the amendment tabled by the noble Lord, Lord Ponsonby, but in a way that enables the Government to consider the issue in the round. In addition, the Government are looking at whether creating a new offence specifically of spiking would help the police and courts to tackle the issue. If we need to take action to do this, we will not hesitate to do so.

Amendments 141 and 142 provide for bespoke new offences to tackle so-called sex for rent. We are very clear that exploitation through sex for rent has no place in society and we understand the motivation behind the amendments. However, as I previously explained, there are two existing offences in the Sexual Offences Act 2003 that can be, and have been, used to successfully prosecute this practice, including the Section 52 offence of causing or inciting prostitution for gain. We recognise the need to stamp out this terrible practice and support those at risk of exploitation. Again, on Report I set out some of the actions that we have already taken, including producing updated guidance for prosecutors and measures in the forthcoming online safety Bill to tackle harmful content on the internet.

We recognise that we need to go further. We are determined to act on the concerns that have been raised on this issue, both in your Lordships’ House and in the other place. Accordingly, we will launch a public consultation before the summer to invite views on the issue of sex for rent and, as part of this, we will look at the effectiveness of existing legislation and whether there is a case for a bespoke criminal offence. Following our commitment to undertake a consultation on this issue, the Commons disagreed with the Lords amendment by a majority of over 100.

All sides of the House share the heartfelt desire of the noble Lord, Lord Ponsonby, to do more to tackle spiking and sex for rent. We are fully committed to doing so. We will publish a report on the nature and prevalence of spiking and the actions that we are taking in response, including consideration of the case for a bespoke offence, and we will be consulting before the summer on the issue of sex for rent. In the light of these clear commitments, I invite the House to agree Motions B and M. I beg to move.

[Lord Paddick (LD)]

My Lords, the amendments in this group were introduced by the Official Opposition and we supported them. We welcome the Government’s undertakings in Amendment 70A in Motion B to prepare and publish a report on spiking, for example of drinks, intentionally and without a person’s consent and with the intention of causing harm, so as to establish the extent of the problem and therefore to inform what measures need to be taken to address it.

We also welcome the Government’s commitment to undertake a consultation on whether the existing law in respect of requiring or arranging sexual relations as a condition of accommodation—so-called sex for rent—needs to be strengthened. The prevalence of the phenomenon and the lack of prosecutions under the Sexual Offences Act 2003, which the Government believe covers these scenarios, indicate that such action is likely to be necessary. We are grateful to the Official Opposition, particularly to the noble Lord, Lord Ponsonby of Shulbrede, for raising these important issues and securing government action to address them.

12:15

[Baroness Kennedy of Cradley (Non-Afl)]

My Lords, I declare my interest as director of Generation Rent. I will speak briefly to Motion M. Campaigners have argued consistently for a specific offence to more easily prosecute predators who seek to exploit women and men, including renters, by asking for sexual favours in return for a roof over their heads. It is disappointing that the Government did not accept the Lords amendment. It is not right that a victim has to be defined as a prostitute for justice to be served. The fact that there has only ever been one prosecution is proof that the current law is woefully inadequate.

However, movement has been made on this issue: there is recognition that it needs addressing and, of course, we welcome the public consultation as a step forward. In welcoming that, I ask the Minister—I am sure that other noble Lords will want to know the answer too—when the timetable and the terms of reference for the consultation will be published.

Regarding action against online platforms and hosts, for too long the tech firms have not been held accountable for hosting harmful and abusive content. Instead, they have been able to facilitate the exploitation of renters through sex-for-rent ads, completely without consequence. The Minister confirmed that this will be dealt with in the online safety Bill. Can she confirm that paragraphs 16(a) and 16(b) of Schedule 7 will mean that sex-for-rent ads will be classed as priority illegal content and will therefore be dealt with under the schedule? Can she confirm the sanctions that will be used to deter tech platforms from hosting sex-for-rent ads and the consequences if they continue to do so?

I appreciate that, as a Minister in a different department, the noble Baroness may not know the full detail of the DCMS Bill to answer my specific questions about sex for rent and Schedule 7, but if she could commit that she or someone else will write to me to explain exactly how the online safety Bill will deal with online sex-for-rent ads under the “Priority offences” schedule on illegal content, I would be very grateful. Will these online safety provisions be part of the public consultation or will the consultation deal solely with the criminal justice aspects of sex for rent?

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I open by thanking the noble Baroness, Lady Williams, for the way in which she introduced the two government Motions.

First, on Lords Amendment 70 in my name and the Government’s Amendment 70A, it is fair to say that the Government’s response goes wider than my original amendment. That is a good thing. It is indeed true that the Government are considering the issue in the round. Sexual motivation is not the only reason why people are spiked through their drinks or through needles; there may be any number of motivations for people doing it, so it is reasonable to look at this matter in the round and that is what the Government are proposing to do through their amendment. I thank the noble Lord, Lord Paddick, for his support on this matter.

Moving on to sex for rent, I pay tribute to my noble friend Lady Kennedy, who has played a leading role in this House in promoting Amendments 141 and 142. She showed her knowledge in this area in the questions that she put to the Minister about how this matter will be taken forward regarding the online safety Bill. She put some pertinent questions and I hope that I can be copied in on the answers regarding the timetable and whether particular aspects of the DCMS Bill will address the sex-for-rent issue.

The further concession, if I can use that word, which the Minister has made is that there will be a public consultation, which will launch by the Summer Recess. Of course that is welcome but, as she fairly pointed out, there are a number of elements to this. It is not an issue for one department or one that is easy to solve. Indeed, it is not easy to quantify, although there is no shortage of horrific examples that one can see online on any number of websites where people seek sex-for-rent arrangements.

I thank the Minister for the way she introduced the Government’s Motions. We will support them if they are put to a vote.

[Baroness Williams of Trafford (Con)]

I thank the noble Lords, Lord Ponsonby and Lord Paddick, for their very constructive comments, and the noble Baroness, Lady Kennedy of Cradley, for her always very constructive approach in bringing these matters forward.

The point about someone having to identify as a prostitute is a really serious matter. I say again that anyone who makes a report to the police would benefit from the anonymity provisions in the Sexual Offences (Amendment) Act 1992. The Section 52 offence applies when an identified victim has been caused to engage in prostitution or incited to do so, whether the prostitution takes place or not. The Section 53 offence applies where a victim has on one or more occasions provide sexual services to another person in return for financial gain.

The consultation on this will be before the Summer Recess. We will write about the terms of reference once they are settled. The consultation will be confined to the case for a bespoke new offence.

On the online safety Bill and where it meets what we have been talking about, the legislation will define the harmful content and the activity covered by the duty of care. This includes illegal content and activity, harms for children and legal but harmful content, and activity for adults. The relevant offences, which are Sections 52 and 53 of the Sexual Offences Act 2003, have been included in that list of priority illegal harms in the Bill, demonstrating the importance that the Government attach to the tackling of these harms.

I hope that answers the noble Lords’ questions. Again, I thank them for their constructive work on this.

Motion B agreed.

Motion C

[Lord Wolfson of Tredegar]

Moved by

That this House do not insist on its Amendment 71, to which the Commons have disagreed for their Reason 71A.

71A: Because police officers are already subject to a duty to cooperate during investigations, inquiries and formal proceedings and it would be premature to add to such provision pending further consideration by the Government.

[The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Wolfson of Tredegar) (Con)]

My Lords, I will also speak to Motionexpand-col4 K on secure schools, which is in this group.

The House will recall that Amendment 71 would introduce a duty of candour for the police workforce. The other place has now considered this amendment and rejected the proposed duty, without, I might add, putting the amendment to a vote.

The Government take police integrity and accountability extremely seriously. As has been outlined to the House previously, in February 2020 we introduced a statutory duty of co-operation for serving police officers as part of wider integrity reforms. This duty forms part of the standards of professional behaviour set out in Schedule 2 to the Police (Conduct) Regulations 2020, and therefore has the force of law.

For the benefit of the House, I will reiterate the extent and focus of this duty. It says:

“Police officers have a responsibility to give appropriate cooperation during investigations, inquiries and formal proceedings, participating openly and professionally in line with the expectations of a police officer when identified as a witness”.


A failure to co-operate is a breach of the statutory standards of professional behaviour by which all officers must abide, and could therefore result in disciplinary sanction. I therefore suggest again to the House that this duty to co-operate puts a greater onus on officers than the duty of candour provided for in Amendment 71, because a breach of this duty could ultimately lead to dismissal. We are reluctant to dilute the existing measures in place to compel individual officers to co-operate.

This duty to co-operate was introduced in 2020, after the issues highlighted in the Bishop James Jones report concerning the bereaved Hillsborough families’ experiences, and the issues relating to the work of the Daniel Morgan Independent Panel. We are keen that this duty becomes rooted within the police workforce before considering any further changes to legislation. The recently commenced inquiry, chaired by the right honourable Dame Elish Angiolini QC, will provide a proper test for this duty. Noble Lords will also be aware that a response to the Daniel Morgan Independent Panel and the Bishop James Jones report concerning the bereaved Hillsborough families’ experiences will provide a government view on a wider duty of candour for all public bodies. Before the Government respond to these reports, it is of course imperative that the Hillsborough families are given the opportunity to share their views.

We will continue to assess the impact of the existing duty on police co-operation with inquiries and investigations. As we consider the case for a broader duty of candour for public servants and bodies, we will determine whether the existing duty is sufficient to ensure public confidence. As for timing, I can assure the House that we will set out our conclusions later this year.

Given these considerations and the decision of the elected House, I respectfully ask the House not to insist on Amendment 71.

Turning to Amendment 107, the House will recall that the amendment sought to confirm that local authorities can establish and maintain secure 16 to 19 academies, either alone or in consortia. The elected House disagreed with this amendment by a substantial majority of 190. In inviting this House not to insist on the amendment, I remind noble Lords that there is no legal bar preventing a local authority setting up an entity capable of entering into academy arrangements directly with the Secretary of State, or indeed doing so itself. This is not prevented by the Academies Act. I therefore ask the House not to insist, on the grounds that this renders the amendment unnecessary and it could have disruptive consequences for the academies legal framework.

I appreciate that existing government policy is not completely aligned with the spirit of this amendment. But I want to be positive, and recognise the expertise of the local government sector and the critical role that it already plays. Local authorities have a long-established role in children’s social care and the provision of secure accommodation for children. I should therefore highlight that, in practice, there are already important ways in which local authorities can be—and already are—involved in academy trusts, which we would certainly be open to utilising also in secure schools. Trusts can, and do, procure services from local authorities; some local authorities have established spin-out companies specifically to provide services to trusts and maintained schools alike. In principle, there would be nothing to prevent a spin-off company entering into an agreement with the Secretary of State for Education to establish an academy trust.

Our vision for secure schools is to take a new and innovative approach to the delivery of youth custody and to engage visionary, child-focused providers—many of which are charities—in the running of establishments. It would therefore certainly be possible, for example, for a charity and a local authority to come together to put forward a bid to establish a trust in which both parties could have some involvement across both the governance structure and the delivery of services.

12:30

Even now, local authorities can be involved on the governing boards of academy trusts at the policy-imposed maximum level of 19.9% representation on the member group or trust board. A forthcoming schools White Paper will say more about how the Government will be working with local authorities to enable every school to benefit from the support of a strong multi-academy trust.

It remains true, I accept, that although there is no legal barrier, the Government’s current policy is that academy trusts are not local authority-influenced companies and therefore our starting point in secure 16 to 19 academies is to mirror this position. However, to repeat a commitment that I have previously made, my department will assess in detail the potential role of local authorities in this new form of provision before we invite applications to run any future secure 16 to 19 academies.

Turning again to the amendment, I appreciate that the question was asked in Committee and I think on Report: “Why not put the matter beyond doubt and send a strong signal to local authorities?” The short answer is that the statute book should not be used as a form of signalling. It is not a method of semaphore. As a former practising lawyer, I can tell the House that when the statute book is used in that way, the result usually is to increase legal uncertainty and not to make things clearer.

Specifying that local authorities can “establish and maintain” secure 16 to 19 academies would give rise to more questions than it would answer. It would bring into question whether local authorities could run and maintain mainstream academies—a matter that, as I said, is clear already under existing law. It would create questions about whether other types of organisations that run academies presently could also run secure 16 to 19 academies.

I respectfully commend the noble Lord, Lord German, for raising this issue and ensuring that it was fully debated by both Houses. I am particularly grateful to him and the noble Lord, Lord Marks of Henley-on-Thames. He is not in his place, but I thank both noble Lords for their sustained engagement with me and my officials on the issue, which I and my officials have found extremely helpful. However, for the reasons set out, I respectfully invite the House not to insist on Amendment 107 and invite the House to agree Motion C and, in due course, Motion K. I beg to move.

[Lord Paddick (LD)]

My Lords, in relation to Motion C, one of the main recommendations of the Daniel Morgan Independent Panel, led by the noble Baroness, Lady O’Loan, was for the police to be subject to a statutory duty of candour, as has been introduced into the National Health Service, and Lords Amendment 71 sought to establish that. The Government with their Amendment 71A, in Motion C, claim that police officers are already under a duty to co-operate during investigations, inquiries and formal proceedings and that it would be premature to add such a provision pending further consideration by the Government.

The provision to which the Minister referred makes a lack of candour a matter for police misconduct proceedings, except in the most serious cases where a complaint is made by someone who is not a member of a police force and who is directly affected by the conduct. Whether a police misconduct investigation is held, or misconduct proceedings are brought, is a matter for the relevant chief constable of the police force concerned.

Her Majesty’s Inspectorate of Constabulary and Fire & Rescue Services has today published a report in which it describes the Metropolitan Police’s approach to tackling corruption as “not fit for purpose”. Publishing the report, Her Majesty’s Inspector of Constabulary, Matt Parr, said:

“It is unacceptable that 35 years after Daniel Morgan’s murder, the Metropolitan Police has not done enough to ensure its failings from that investigation cannot be repeated. In fact, we found no evidence that someone, somewhere, had adopted the view that this must never happen again.”


That is why we need a statutory duty of candour. In the case of the issues covered by the Daniel Morgan Independent Panel, there was systemic and institutional withholding of information by the police sanctioned at the highest level. Arguably, the current Commissioner of the Metropolitan Police, who as an assistant commissioner decided to withhold essential information from the panel, would have had to order an investigation into herself under the provisions that the Minister is relying on.

The provision that the Government are relying on is not fit for purpose in the circumstances of police cover-ups, even when there is a member of a police force who is a whistleblower, because the whistleblower is a member of the police force and cannot bring a complaint against his or her own force. However, work is ongoing by the families of the victims of the Hillsborough disaster and the family of Daniel Morgan to ensure that a comprehensive, effective and legally binding duty of candour is imposed on all public institutions. Therefore, we have reluctantly decided not to insist on Lords Amendment 71.

In relation to Motion K, we are grateful to the noble Lord, Lord Wolfson, for clarifying that there is no legal barrier to local authorities setting up and running academies and for the Government’s acknowledgement of the important role that local authorities have played in the past in running secure accommodation for young offenders.

[Lord Rosser (Lab)]

There are, as has been said, two issues here, the duty of candour and secure academies. I note what the Minister said on the duty of candour and must say that our views are rather more in line with those just expressed by the noble Lord, Lord Paddick. One might think it rather odd, particularly at the present time when trust in the police appears to be at such a low level, that the Government and the Commons decided to disagree with such an amendment, but it is their prerogative to do so.

As the Minister said, this issue is not going to be dropped. There are people within Parliament, including ourselves, and people outside Parliament, to whom reference has been made, who intend to pursue the issue of a duty of candour. I think I am right in saying that the Minister referred to the fact that the Government would further consider the position—indeed, that is given as a reason for disagreeing—and that they would come up with conclusions later this year. While indicating that we intend to pursue the issue, we will, with some reluctance, leave this in that context. It is certainly not going to be pushed to one side now. It will be pursued and we will wait to see what conclusions the Government come up with later this year. The issue of trust in the police is a serious matter and I know the Government agree. We need to make sure that the mechanism is in place to improve the levels of trust that currently seem to exist.

On secure academies, the Government and the Commons have disagreed the amendment from the noble Lord, Lord German, which would put explicitly in the Bill that local authorities can establish and maintain secure academies. The aim of the amendment was to put beyond doubt that applications from local authorities to run secure academies would be welcomed and would be considered on their merit, on a level playing field with other providers.

The Government’s response has been that there is no legal barrier to local authorities setting up an entity that could enter into an academy arrangement with the Secretary of State, so there is not a legal barrier to them establishing a secure academy. The Government said that the Ministry of Justice

“will assess in detail the potential role of local authorities in running this new form of provision, before we invite applications to run any future secure schools.”—[Official Report, Commons, 28/2/22; col. 803.]

The Minister also made that point.

Our response in the Commons was that this does not go far enough. We argued that local authorities have the expertise needed to run services and provide care for vulnerable children with a high level of need in a secure environment and that the Government should widen the pool of expertise that providers bring and ensure that local authorities are explicitly brought into the fold when planning for secure academies.

We recognise that the Government have committed to look at the involvement of local authorities in providing secure academies before any new applications are invited, so we will now deal with and pursue this issue outside of the Bill. However, we strongly support the noble Lord, Lord German, in saying that what is needed, and what we will keep calling on Ministers to deliver, is, frankly, not vague statements that a local authority could provide a secure academy but a proactive change to bring the expertise that local authorities have into that pool of providers.

[Lord Wolfson of Tredegar (Con)]

My Lords, I am grateful to the noble Lords who took part in this debate. I will take matters fairly briefly, given the amount of other business before the House.

On the duty of candour, I emphasise the essential point that the disciplinary system provides clear sanctions that can lead to dismissal. We should not introduce criminal sanctions for the police alone. Ultimately, the inspectorate can determine whether forces are following the guidance. We will monitor that extremely carefully.

I do not want to take up the House’s time too much on the report, which has been published in the last half an hour. My right honourable friend the Home Secretary has already issued a statement, which noble Lords will be able to find online, but my understanding is that the Metropolitan Police has 56 days to respond formally to the report. The Home Secretary will of course return to Parliament to provide a full government response once the final report and responses have been received.

I am grateful to all noble Lords for their engagement on the issue of secure schools. I have tried to set out the legal position clearly. I hope that the undertaking that I have set out will be sufficient. Again, with apologies to the House for not dealing in too much detail with the new report, because I am sure there will be other opportunities to debate it, I beg to move.

Motion C agreed.

Motion D

[Baroness Williams of Trafford]

Moved by

That this House do not insist on its Amendment 72, to which the Commons have disagreed for their Reason 72A.

72A: Because pending the Government’s full consideration of the Law Commission’s review of hate crime legislation, the Law Commission has identified adding sex or gender to this legislation could prove detrimental to efforts to tackle violence against women and girls.

[Baroness Williams of Trafford (Con)]

My Lords, I am grateful to the noble Lord, Lord Russell of Liverpool, for seeking to move the debate forward by tabling an amendment in lieu. Before I turn to the specifics of his Amendment 72B, I will say something about the wider context. The Government take the issue of violence against women and girls very seriously. The last couple of years has, sadly, seen some terrible incidents and I do not think that anyone could doubt that there is more to do.

The Government have ambitious plans in this area. We have debated them often enough in your Lordships’ House, such that I do not need to set out again everything that the Government are doing to tackle violence against women and girls, but I reiterate that this is an absolute priority for the Government. Although we might disagree on the best approach, all of us, and Members in the other place, are on the same side. All of us share the same absolute determination to do our very best to tackle these awful crimes.

I am glad that in tabling this amendment, the noble Lord, Lord Russell of Liverpool, is not pressing to add the characteristics of sex or gender to hate crime laws, making misogyny a hate crime, as it is colloquially known. I do not decry the motives of anyone who advocated that course of action but, as the Law Commission identified in its review examining the question of whether to add sex or gender to hate crime laws, this amendment is not the right course of action.

12:45

I will not repeat the Law Commission’s general recommendation against adding these characteristics through the various legal models that it examined, as I outlined during our debate on 17 January, except to quote its stark concerns. It said that,

“we have concluded that … hate crime laws”

are

“unlikely to prove an effective response to misogynistic offending, and may prove more harmful than helpful, both to victims of violence against women and girls, and also to efforts to tackle hate crime”.

Furthermore, the Law Commission came to its conclusion after almost three years of careful deliberation and a public consultation. The results of the latter found that a majority of both individual and organisational respondents opposed adding these characteristics to the law, including, crucially, a number of organisations experienced in the field of tackling violence against women. Every model examined to make misogyny a hate crime could not garner consensus and simply gave rise to a different set of equally negative trade-offs that might prove counterproductive.

There were considerable problems with the amendment that was passed at an earlier stage by your Lordships’ House. These arise both in broad matters of law, as highlighted by the Law Commission, and in its specific formulation. In my mind, this continues to speak to good intentions being frustrated by the reality that, on this occasion, the approach is regrettably not the right solution. That is why the other place voted by a substantial majority to disagree with your Lordships’ amendment.

On Report, the noble Lord, Lord Russell of Liverpool, suggested that your Lordships’ House should send the amendment to the other place for them to have another look, as matters such as this were better considered by the elected House. The other place has now considered the matter fully and sent back an unequivocal response.

I turn now to the issue of police recording, which is one of the main features of the amendment proposed by the noble Lord, Lord Russell, before us today. Noble Lords might recall that during the debate on the Domestic Abuse Bill I committed to asking forces on an experimental basis to identify and record any crimes of violence against the person, including stalking and harassment, as well as sexual offences where the victim perceives it to have been motivated by a hostility based on their sex.

I admit fully that I am disappointed that we have not made greater progress on this commitment. The reasons for this stem from a desire to ensure consistency across forces, which I know the noble Lord is also very keen on, and guarantee that the resulting data is reliable. A number of forces have opted in the past five years or so to take such recording forward themselves, but they do so using different terms, concepts and frameworks. For example, some forces are recording misogyny and misandry; some only misogyny. Some are recording sex, while others are recording gender identity. The inherited landscape of different local efforts makes it quite difficult and more complex than the typical hate crime data collections.

However, I can assure noble Lords that discussions with the police through the NPCC have been under way on this for some time. Our intention has always been and continues to be to harmonise the various approaches, but we need to get it right and ensure that we are getting the maximum benefit from the data that is recorded. We need to be mindful of the Law Commission’s findings in December, which said that

“several stakeholders felt that adding sex or gender to hate crime laws could help to bolster the reporting of crimes included in its scope. Whilst we acknowledge this argument, we also note that the Nottingham ‘Misogyny Hate Crime’ pilot has not been associated with increased reporting.”

With all that in mind, we need to ensure that the experimental collection is properly conceived and carefully designed. This takes time and the Government already have the legal powers they need to take it forward. Legislating on this matter will not offer a panacea to what are wholly technical questions that need resolving. We have already exercised such powers, with success, as it concerns other forms of hate crime data, making incremental but important progress in building a picture of patterns and trends.

I repeat that I would have liked to have made swifter progress; that we have not done so is certainly not through lack of effort or intent. I assure noble Lords, however, that we will continue to work with the NPCC to institute a reporting system as soon as it is reasonably possible. As soon as we have a way forward, the Policing Minister will write to all forces to disseminate this message. We simply need continuing effort; that is what I can recommit to pursuing in this House today. What I cannot provide is a specific timetable here and now. I fully recognise that this amendment is perhaps an expression of the understandable frustration about seeing results. As such, I will be sure to update noble Lords as to the progress that we are making as we go.

I turn to the other issue raised by the amendment before your Lordships from the noble Lord, Lord Russell, which concerns legislation related to a separate public sexual harassment offence. The Law Commission report touched on this and did not recommend one as such, noting that such a question was beyond its terms of reference. What it recommended was that the Government explore the possible need for one, ensuring that if it is found to be required it is also proportionate and well defined.

We have been actively considering this proposal and, as I undertook to do in a recent meeting with noble Lords, I have spoken to my colleague the Minister for Crime and Policing. As we set out in the Tackling Violence Against Women and Girls strategy last July, this is a complex area and we remain cognisant that there are arguments for and against creating a new offence. As such, we feel that it is right formally to elicit expertise and views on this topic. I am very happy to announce today that, before the Summer Recess, we will launch a consultation on whether there should be a new offence of public sexual harassment.

I repeat that the Government take the issue of violence against women and girls very seriously. We will do all we can to move the dial on tackling that violence and consider the Law Commission’s proposals in full. We will continue to drive forward solutions outside hate crime, underpinned by the VAWG strategy. As I have said, through this we have already done a wealth of work. However, on the immediate issues raised by this amendment, I hope I have been able to provide reassurance to noble Lords that we will continue to work with the NPCC and launch a consultation on a new offence of public sexual harassment before the Summer Recess. On that basis, I invite the noble Lord, Lord Russell of Liverpool, not to press his amendment and invite your Lordships to support Motion D. I beg to move.

Motion D1 (as an amendment to Motion D)

[Lord Russell of Liverpool]

Moved by

As an amendment to Motion D, at end insert “and do propose Amendment 72B in lieu—

72B: After Clause 54, insert the following new Clause—


“Intimidatory offences aggravated by sex or gender

(1) A person must not commit an act—


(a) which amounts to harassment or intimidation of another,


(b) which he or she knows or ought to know amounts to harassment or intimidation of the other, and


(c) which is aggravated by hostility towards sex or gender.


(2) For the purposes of this section, the person whose act is in question ought to know that it amounts to or involves harassment or intimidation of another if a reasonable person in possession of the same information would think the act amounted to harassment or intimidation of the other.


(3) Subsection (1) or (2) does not apply to an act if the person who pursued it shows—


(a) that it was pursued for the purpose of preventing or detecting crime,


(b) that it was pursued under any enactment or rule of law or to comply with any condition or requirement imposed by any person under any enactment, or


(c) that in the particular circumstances the conduct was reasonable.


(4) A person who commits an act in breach of subsection (1) is guilty of an offence.


(5) A person guilty of an offence under this section is liable on summary conviction to imprisonment for a term not exceeding six months, or a fine not exceeding level 5 on the standard scale, or both.


6 Police, Crime, Sentencing and Courts Bill


(6) An offence is “aggravated by hostility towards sex or gender” for the purposes of this section if—


(a) at the time of committing the offence, or immediately before or after doing so, the offender demonstrates towards the victim of the offence hostility based on the victim’s sex or gender (or presumed sex or gender); or


(b) the offence is motivated (wholly or partly) by hostility towards members of a group based on their sex or gender.


(7) The Secretary of State must make regulations within six months of the passing of this Act requiring the chief officer of police of any police force to provide information relating to—


(a) the number of crimes reported to the police force which, in the opinion of the chief officer of police, fall under subsection (6), and


(b) the number of crimes reported to the police force which, in the opinion of the chief officer of police, do not fall under subsection (6) but in which the victim indicated they believed they were targeted due to their sex or gender.”

[Lord Russell of Liverpool (CB)]

My Lords, the noble Baroness, Lady Newlove, who would have been presenting this amendment and making the argument for it—which is why on Report the precursor to this amendment became known as the Newlove amendment —is today receiving, rightly, yet another honorary degree to add to her rather large handful of them, and thoroughly deserved it is. However, she is here in spirit and if we were still able to vote virtually, she would be voting in favour.

This Amendment 72B in Motion D1 is a response to the rejection by another place of that amendment, which, in essence, argued that we should make misogyny a hate crime. The debate about misogyny—what it is and what we should do about it—was discussed at length in the passage of the Domestic Abuse Bill last spring. One result of that debate was that, in return for particular amendments not being pressed, as the Minister indicated, Her Majesty’s Government agreed almost exactly one year ago—which is also the anniversary of the murder of Sarah Everard—at the Dispatch Box to mandate all police forces in England and Wales to undertake a trial period of recording misogynistic hate crimes. That undertaking was given with an undertaking that it would begin in autumn 2021—not 2022, not 2023, not 2024 but autumn 2021. Noble Lords will not be surprised to hear that I will be returning to that subject later.

To summarise what happened in another place the other week, I will use the words of the Minister, Kit Malthouse, to summarise the Government’s view:

“On the misogyny issue, I commend the motivation behind the set of amendments that we are sadly declining. We understand people’s genuine concern about the safety of women and girls in the public sector”—


I suspect that when one is at the Dispatch Box one occasionally says things that when you read them do not make complete sense. I do not think he meant only women and girls in the public sector; I think he meant women and girls in general in public—

“and indeed we share it. We are determined to make significant inroads in this area … we cannot in all conscience support an amendment that the Law Commission and other large groups interested in this area believe runs the risk of damaging the cause of women’s safety. That puts an obligation on us to bring forward alternatives that will do something positive for women’s safety. That battle is under way, and we commit to doing exactly that.”—[Official Report, Commons, 28/2/22; col. 786.]

So today the battle recommences.

I am very glad to see the noble Baroness, Lady Kennedy of The Shaws, in her place, because I would like to recommend that all noble Lords who have not had the opportunity to do so read her report Misogyny: A Human Rights Issue, published last week by the Scottish Government. It recommends a much more proactive and focused approach to this problem than we are at the moment able to consider in England and Wales.

The working group underneath the noble Baroness agreed on a definition of misogyny to help focus its investigations and recommendations. I think it is worth reading it out for your Lordships, because it encapsulates pretty accurately what it is that we are talking about when we talk about misogyny—because, depending on who you talk to, you might get different definitions. The definition used by the group led by the noble Baroness, Lady Kennedy, is:

“Misogyny is a way of thinking that upholds the primary status of men and a sense of male entitlement, while subordinating women and limiting their power and freedom. Conduct based on this thinking can include a range of abusive and controlling behaviours including rape, sexual offences, harassment and bullying, and domestic abuse.”


Motion D1 is designed to focus on two key areas. First, it is a direct response to Minister Kit Malthouse’s undertaking to bring forward alternatives: we decided to bring forward our own alternative, which reinforces the commitment to ask all police forces across England and Wales to record misogynistic hate crimes. It also addresses the category of public order offences, ensuring that stronger sentences are handed down when an offence is motivated by hostility towards the sex or gender of the victim. This would allow the police and courts to take stronger action against gateway offences, which may lead on to serious violent or sexual offences if they are not properly addressed at an early stage. By bringing the treatment of these offences into line with the approach taken to racially or religiously aggravated public order offences, this amendment would enable the courts to raise the maximum sentence, allowing a range of factors to continue to be considered such as the degree of culpability and the degree of damage to the victim.

13:00

Secondly, this amendment is an opportunity to call Her Majesty’s Government to account for their failure, thus far, to deliver on the undertaking made a year ago to bring in England and Wales-wide recording of misogynistic crimes. At a meeting with the Minister and some of his advisers last week, for which I am most grateful, the experience was perplexing and somewhat frustrating. This initiative appears to be going at the pace of the slowest and most reluctant police force. In true British fashion, each force is currently reinventing the wheel in its own image and doing its own thing. Each force has different computer and database systems, most of them woefully out of date, which are incapable of talking to one another and, in some cases, to systems within the same police force.

This is not new news. It has been known for many years. Before the undertaking was given, there should have been a proper assessment of the degree of probability of it coming to pass and coming to pass in a timely manner. To commit that it would happen by last autumn was courageous and perhaps a touch foolhardy, with the benefit of hindsight. This is despite the NPCC itself being in favour of this initiative. My observation from my background in the private sector is that there appears to be a woeful lack of ownership for delivering this and lamentable project management. As I said at that meeting, if this was happening in the private sector—speaking as an ex-headhunter—had my firm been chosen, I would expect to have quite a lot of searches out to replace some of the people responsible for the initial phases of this project.

One year on since that commitment was given, 100 more women have died in this country at the hands of men. Each week brings new revelations of unacceptable behaviours and attitudes. Today, 22 March 2022, is no exception. In a newspaper that I do not normally read, because it is rather dangerously left-wing, the Daily Telegraph, a journalist called Cara McGoogan has today written about misogyny in police forces. This is in preparation for a documentary that will be on Radio 4 this evening, which is called, for reasons many of us will understand, given comments by various police forces, “Bad Apples”. For this documentary, she spoke to a dozen female serving or ex-police officers:

“They have told me male cops aren’t just assaulting members of the public—but also their own. They describe being the target of misogyny from their colleagues along a spectrum from sexist banter to bullying, domestic abuse and sexual assault, including rape.

Shockingly, they also describe a pattern in which it’s female officers who are forced out after they report this behaviour”.

Sue Fish, formerly the chief constable of Nottinghamshire Police, which in 2016 was the first police force to introduce the recording of misogynistic crime, was interviewed by this journalist:

“Within minutes of us meeting at her home in the East Midlands, she’s in tears as she tells me about the two times she was sexually assaulted by different senior colleagues—in around 1993 and 2007—one of whom was a superintendent … She didn’t report the first incident because she didn’t think anyone would believe her … Sue reported the second incident to her boss, who said it wasn’t a surprise from that officer. The officer remained in his position.”

Is it any surprise that the initiative committed to by Her Majesty’s Government one year ago is mired in obfuscation, evasion, an apparent unwillingness to take responsibility and arguments about database compatibility, when all the while more women die, week in and week out? There is perhaps a connection between the slow pace at which this initiative is proceeding and some of the attitudes evidenced in the documentary that will be on Radio 4 this evening.

This amendment asks the Government to give serious consideration to the alternative that we put forward and, at the very least, to come forward with a clear and concrete statement of intent. I am grateful for what the Minister has indicated the Government are willing to undertake. I hope that that undertaking, when it is delivered in April or May, will be taken with the degree of purpose, organisation, resourcing and ownership that is sadly needed.

Once and for all, we need to demonstrate that the recording of misogynistic crimes across England and Wales will happen. We want to know who will make it happen, how it will happen and—although it probably will not happen—when it will happen. It would be nice to know whether it will happen at a slightly faster rate than our R&R programme, because if it is anything like that I will not be around by the time these crimes are recorded. We have a sort of chicken and egg situation: we need to have reliable data about the incidence of these crimes and behaviours in order to inform the debate about how we can best create specific laws to try to address this. We cannot do one without the other. That is why I beg to move.

[Baroness Kennedy of The Shaws (Lab)]

My Lords, I support the noble Lord, Lord Russell. I am glad that he referred to the fact that Scotland had commissioned a report on this. Indeed, the report, which I chaired the working group to complete, took the same view as the Law Commission of England and Wales, in that we did not suggest that there should be a hate crime relating to sex or gender. In fact, we felt that misogyny is different in its nature and that the hate crime framework is not an appropriate way to deal with the problem.

I voted for the amendment from the noble Baroness, Lady Newlove, because nothing else seems to be on offer at the moment in England and Wales, but Scotland is looking at the creation of misogyny legislation. That is not because misogyny should be criminalised, because ways of thinking should never be criminalised. I have said that in this House before. I spoke only last Thursday in the International Women’s Day debate, in which I described how important it is to protect ways of thinking, because in our forum internum is our creativity, imagination and the ways in which we solve the world’s problems. Unfortunately, it is also the seat of the rather negative sentiments that people might feel, such as hatred. It is the actions that flow from that way of thinking that one has to look at and see whether they are appropriately criminalised.

In this House, we repeatedly have debates about the failure to prosecute rape, about domestic violence, stalking, revenge porn and so on. These continue to be insoluble and difficult to prosecute because of the mindsets of many of the decision-makers—even police officers on the ground, those prosecuting and making decisions about prosecuting, and those within our courtrooms. Unless we deal with this way of thinking in our society, we will continue to have these problems. I say that as someone who has practised at the Bar for more decades than I care to count. I have written about this and studied it. I have spent time looking at other jurisdictions, all of which have the same problems. Misogyny is a problem at the base of all this. Unless you address it seriously, you will not address the problems of how we deal with this continuing flourishing of crime against women and girls.

I urge the Government—any Government—to address misogyny. Our world is filled with it; it is a serious problem, and the way to address it is by trying to shift the dial among those who make the decisions to make them address their own way of thinking. That is what we sought to do in the working group that worked on this in Scotland. I urge all noble Lords to read the recommendations we made, because it is a serious piece of work. It is not knee-jerk or about saying, “Let’s just draw down the hate crime stuff”, because we are talking about what happens to 52% of our population. There is hardly a woman who will not be able to describe having been harassed, spoken to in unacceptable ways, degraded, humiliated or dehumanised at some point in her lifetime. That is what women are complaining of, and it is every woman, so let us have that in mind.

I heard what the Minister said about seeking to address this seriously. The Law Commission said that it was not within its remit to look at whether there should be a public harassment offence. We decided on having a public misogyny harassment offence and did not make it simply about sexual harassment, because the harassment is not of a sexual nature for older women; it is not the saying of the gross things that we have heard about from so many women.

What has happened in our society, and the reason why this is so urgent now, is that the internet—social media—has disinhibited people to say things that they would normally keep to themselves, even if they did have those intents on some women. Even if they did want to degrade and humiliate women, they would keep it to themselves. However, the internet has allowed people to pour this stuff out and it is translated on to the street. What used to be only online five years ago is now happening at the bus stop.

I want people to have this in mind; it is not some trivial matter. Noble Lords must see the enormity of the problem now: the stuff that is said to young women coming out of student unions, pubs and clubs would make men in this Chamber ashamed of their own gender—their own sex. Something has to be done about it. It is very different from what is experienced by men, so let us not make this mad equivalence, as though men at the end of their night in the pub say to each other, “Charlie, text me when you get home.” Men do not do that, because they do not have the same fear built into them from the age of nine that somehow there is something fearful out there, and it takes male form. That is the problem for girls and women: they are brought up knowing that there is something to be afraid of.

We really have to take this seriously. I support what the noble Lord, Lord Russell, has asked us to do because it is a signal to the women out there that we take it seriously. Women came in front of our commission and said that something has to be done. It may be that, in the longer term, we will have to introduce a misogyny Bill, like in Scotland. We advocated that where there is an offence, such as assault, threatening behaviour or criminal damage, judges can enhance the sentence so that there is an aggravation. It should not be inside a hate crime Bill, because it is different.

Most men do not hate women, but somehow from boyhood they breathe in this sense of entitlement and now feel entitled to say publicly things to women that noble Lords would not believe. Women who are parliamentarians, who write in newspapers or are campaign leaders receive online and now offline the most egregious threats to be raped or killed, which put them in fear. Is it any wonder, therefore, that women do not want to take part in public life or step forward to ask for equal pay or an improvement in their status in the workplace? They are undermined in their self-confidence and self-worth. We have to do something about it.

[Baroness Fox of Buckley (Non-Afl)]

My Lords, I disagree with this amendment, but I agree with one part, at least, of what the noble Baroness, Lady Kennedy, just said: any woman will indeed have heard the vile abuse that is spewed out online and can go offline to the bus stop, as she indicated. There is a coarsening of what is said to women, but that is my challenge: although it is vile, legislation to deal with what is said to women could well be a serious challenge to free speech.

Free speech matters because an emphasis on the cause of women’s safety could well be, and some women certainly believe so, at odds with the cause of women’s freedom and liberation. Despite everything, if we are going to say that words matter, by constantly talking about misogyny as a problem that is so rife in society we are, as I have said, in danger of frightening young women into believing that misogyny is indeed everywhere and that all men are misogynists and so on, so I want some caution here.

13:15

A definition of misogyny, despite the work that the noble Baroness, Lady Kennedy, has done in Scotland, is also very contentious. Indeed, I have talked to a variety of feminists in Scotland who disagree with the definition there. It is very difficult to pin down what we are talking about: goodness knows, we cannot even get the definition of “women” right in 2022. We do not even agree on what a woman is. I will not go round and ask Front-Benchers on all sides to give us that definition, but your Lordships will know that to get yourself cancelled, you merely have to repeat the biological definition of a woman as an adult female and you can get yourself into all sorts of trouble. I am not saying that to be provocative. I am making the point that if you are to have a misogyny definition and cannot work out what the definition of a woman is, that at least shows it is complicated.

I also think that the definition that was read out about a type of thinking—this is where I again agree with the noble Baroness, Lady Kennedy—is difficult if misogyny is a way of thinking that leads to action. We have to be careful that we do not try to criminalise ways of thinking. But if we are then going to ask the law to place extra sentences on people who are misogynists, that requires indulging in a certain amount of mind-reading if it is a way of thinking. How do you deal with that? That is a difficulty.

I also disagree with what the noble Lord, Lord Russell, said about stronger action being needed for what was described as gateway offences. When you look at what is actually being said, having gateway offences creates a danger that relatively minor offences will be treated as though they are a mere and inevitable step to the most grievous crimes, such as rape and so on. That will therefore lead to huge potential injustices. There are people who are indulging in no doubt sexist and inappropriate, or sometimes unpleasant, activities, but assuming that they will turn into a rapist, murderer or sex abuser could label a range of, essentially, young men—who have a lot to learn, goodness knows—as potential rapists. We have to be very careful.

It is not that I want reassurance from the Government. If anything, I want us to have a pause on this. It has become fashionable to feel that you have to say such things. I am as concerned as anyone about the problems with prosecutions and convictions for rape. These are discrete and important issues for us to deal with. Under the auspices of concern about misogyny, we have to be careful. If you oppose acting—or being seen to act—in relation to misogyny, I really do not want to be told that it means one is cavalier about violence against girls and women. Of course I am not cavalier about that; why would I be? But this is not a rampaging issue that threatens everyone, and it needs to be dealt with proportionately and with some sensitivity, rather than under a banner headline.

[Baroness D’Souza (CB)]

My Lords, in defending freedom of expression, which often includes offensive speech, various criteria are maintained, which largely concern the context in which the speech occurs. There are two particular aspects. The first is whether the hate speech, misogynistic or otherwise, is able to be avoided. Is there a way in which the individual can avoid the speech, for example by not turning on the radio or their text messages, or whatever it might be? The second is one that has already been alluded to by the noble Baroness, Lady Fox. It is the extent to which there is a direct relationship between hate speech, misogynistic speech, and actual harm coming to an individual woman.

The noble Baroness, Lady Kennedy of The Shaws, who is to be commended on almost everything that she does, talked about protecting thoughts. In a way, what one is doing is contradicting that by saying that if someone is thinking about delivering offensive speech that will automatically, if it is expressed, lead to action. I think there is a tiny bit of confusion here. Although I will support the amendment, there is an element of curtailing freedom of speech that we ought to be mindful of.

[Baroness Jones of Moulsecoomb (GP)]

My Lords, recently I was going home late and I got into a cab and was chatting to the cabbie. At some point he said, “Oh, you posh young birds”. It was so inappropriate on so many levels that I did not know what to do. I did not tip him, of course. It struck me that it was not necessarily offensive—but I did object to it.

I have heard today two incredibly powerful speeches in favour of the Motion, from the noble Lord, Lord Russell, and the noble Baroness, Lady Kennedy. I do not understand why the Government have not heard this message. It is not coming from just these two people; it is coming from millions of women who experience misogyny and really do need protection. It is not enough to say, as the police often do, “Don’t wear short skirts, don’t go out after dark and don’t drink too much” and things like that. This is on a completely different level. It is about protecting women who cannot protect themselves, so I hope that the Government are listening.

I noticed that the noble Lord, Lord Wolfson, was writing very seriously during these speeches. I hope he was making prestigious notes about what was said and how important it was, and I hope the Government are listening.

[Baroness Bertin (Con)]

My Lords, I support the amendment and thank the noble Lord, Lord Russell of Liverpool, for all his support on this issue. I say to the noble Baroness, Lady Kennedy of The Shaws: “What a powerful speech”.

I particularly want to reiterate the points made about police recording. I am really quite depressed that this amendment has had to be laid—depressed as a Conservative Peer, because I have been so heartened by the commitment that this Government have shown on the issue of violence against women and girls. But at the moment, on the issue of misogyny—it exists, it is there and is corrosive; it is huge, if you ask me—there is a lack of grip. There has also been a lack of leadership and accountability, in particular on the issue of recording, and that really matters.

It matters because we should not make promises at the Dispatch Box and not keep them. That picks away at the faith and trust we have in our democracy. I do not wish to make too big a point out of this, but it is important and we do notice it. It also matters because it helps victims to have much more faith in the system; it gives them confidence. We have heard that from chief constables who have voluntarily taken this approach on board. It matters because it helps them do their job as well. It helps them target their resources, understand where the repeat perpetrators are, and target the culture within their own police forces—which, as we know, is a huge problem.

I hope that noble Lords will support the amendment, as I will. It really matters. Misogyny exists, it is corrosive and it needs to be tackled, and this is a very thoughtful and reasonable approach.

[Lord Paddick (LD)]

My Lords, I rise with some trepidation as the first man to speak in the debate—sorry, after the noble Lord, Lord Russell, of course, the proposer of the Motion. Something seriously needs to be done about misogyny in society, as the noble Baronesses said. I think it was the noble Baroness, Lady Kennedy of The Shaws, who said that misogyny is not hatred of women. My understanding is that it is hatred of women who are not subservient to men and who do not allow men to do what they want because they can, because they are stronger or because they think they can get away with it.

I have to say that I do not understand the Law Commission’s assessment that having misogyny as an aggravating factor would undermine the investigation and prosecution of things such as domestic abuse and sexual violence. Racism is treated as an aggravating factor by the courts, yet black victims of domestic abuse and sexual violence are not disadvantaged by having racism as an aggravating factor. So why should women be disadvantaged were misogyny to be an aggravating factor? Perhaps the Minister can answer that question.

I agree with the noble Baroness, Lady Kennedy of The Shaws, that we must deal with misogyny in terms of the actions that have a detrimental impact on women—not the thought but the deed, not the prejudice but the discrimination against women.

Amendment 72B in Motion D1 would create a new offence of harassment or intimidation aggravated by hostility towards sex or gender, where the maximum penalty for the new offence is the same as the offence, under Section 4 of the Public Order Act 1986, of intentional harassment, alarm or distress without any aggravating factor. So there is an issue there.

There is a crisis of misogyny in society in general and in the police service in particular. Urgent, decisive action needs to be taken, notwithstanding the Law Commission’s findings. Creating a new offence, as suggested by the noble Lord, Lord Russell of Liverpool, in the form and with the penalties suggested might not be the right answer, but it is a vehicle to allow the Government to come forward with a better alternative using the Bill. We do not know when the next legislative opportunity will arise and we need to force the Government to take action now.

This urgency is reinforced by the fact that, as the noble Lord, Lord Russell of Liverpool, said, the undertakings given by the Government when we last debated this issue during the passage of the Domestic Abuse Bill—now an Act—to ensure that all police forces flag offences aggravated by hostility towards sex or gender do not appear to be happening. Even if the Government are not convinced that legislative change is needed, surely they must deliver on their commitment to ensure that the nature and extent of the problem of misogyny in society is measured by the recording of such offences by the police. Surely the Government must understand why police forces might be reluctant to record misogyny as a hate crime when there is clear evidence of a culture of misogyny in police forces. That is why they should be compelled to do so by the Government.

I am concerned that the Government, encouraged by the Law Commission, are going into reverse on the issue of misogyny, betraying women who suffer every day from male violence. If for no other reason, we should support Motion D1 and Amendment 72B.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, this has been an extraordinary debate in many ways. It has really gone to the heart of the issue. I pay tribute to the noble Lord, Lord Russell, in the way he moved his amendment.

I will start by addressing a specific point that the noble Lord, Lord Paddick, made about the way sentencing is done in courts. I speak as a magistrate who sits in London. When I sentence on a matter where there is racism as part of the sentence, I explicitly have to say in court what the uplift is because of the racist element. However, when there are other aggravating factors, be they misogyny or any other factor, such as the fact that the victim works in a public-facing way, I am not required to do that, but I can if I wish to. That is a very specific example of the difference in the way sentences deal with particular different types of aggravating factors.

13:30

I want to address some of the points which noble Lords have made and really focus on police recording. There is a history to this issue. I understand the points the Minister raised about the practical difficulties, but I thought the noble Lord, Lord Russell, had it right when he said that this seems to be going at the pace of the slowest police force. There is an opportunity through this Bill for the Government and the Minister—she is in a senior position—to show leadership and use the Bill to make concrete progress on police recording of misogynistic cases.

The noble Baroness referred to Sue Fish and Nottinghamshire Police. I consulted my noble friend Lord Coaker, who used to be a Nottingham MP, and he said that the noble Baroness’s assertion that there was no greater reporting because of the hate crime reporting mechanism in Nottingham—I think that is what she said—is a contested area. Sue Fish herself does not agree. She believes that the system she introduced in 2016 has been beneficial and we may hear more about that in the radio programme which the noble Lord, Lord Russell, referred to. So it is a contested issue, but my understanding is that Sue Fish believes it has been highly successful.

My noble friend Lady Kennedy gave an extraordinary speech. She told us about her experience in Scotland and made a very pertinent, interesting point that this is not about making it illegal to have hate thought; it is the actions that flow from that thought that the law needs to address. Other noble Lords addressed that philosophical debate, if I can put it like that. My noble friend also talked about the internet acting as a disinhibitor.

When the noble Baroness, Lady Fox, spoke about her reticence, if I can put it like that, on the type of legislation or amendment we are talking about here, my noble friend Lord Coaker said that we should just look at the mobile phones of teenage girls today to see how prevalent misogynistic abuse is. It is absolutely everywhere. I would say, as somebody who has brought up their family in London, that it is far more prevalent than racist abuse on teenagers’ phones. This is a very serious issue.

I thought the noble Baroness, Lady Bertin, also gave a powerful speech. She complained about a lack of grip and leadership. Well, her noble friend the Minister has leadership qualities; we see them every day in this House, and this is an opportunity for her to show that leadership. I look forward to the Minister’s response. We will certainly support the noble Lord, Lord Russell, if he chooses to press his Motion to a vote.

[Baroness Williams of Trafford (Con)]

My Lords, I agree with the noble Lord, Lord Ponsonby, that this has been a very interesting debate. Part of what has been interesting for me is hearing the differing views on misogyny across the House. This goes to the heart of the difficulties of this issue. The noble Baroness, Lady Jones of Moulsecoomb, asked if my noble friend Lord Wolfson was making prestigious notes. I wondered if he was making prodigious notes, but they might be both prestigious and prodigious—I do not know.

I thank all noble Lords who have taken part. I will restate three important points that I made in my opening remarks, as well as make some further points that were asked about. First, we are still pursuing the commitment that we previously made on data recording. I quote the comments that I made this time last year:

“I advise the House that, on an experimental basis, we will ask”—


not mandate, but ask—

“police forces to identify and record any crimes of violence against the person, including stalking and harassment, as well as sexual offences where the victim perceives it to have been motivated by a hostility based on their sex. As I have said, this can then inform longer-term decisions once we have considered the recommendations made by the Law Commission. We will shortly begin the consultation with the National Police Chiefs’ Council and forces on this with a view to commencing the experimental collection of data from this autumn.”—[Official Report, 17/3/21; col. 371.]

As the noble Lord, Lord Russell of Liverpool, pointed out, that was autumn 2021. I have absolutely voiced my disappointment on that. I am pleased that the wheels are in motion, albeit moving more slowly than I had hoped. We are making some progress.

The second point is that, before the Summer Recess, we will launch the public consultation on a new offence of public sexual harassment. I think that that reinforces the point made by the noble Baroness, Lady Fox.

Thirdly, the Law Commission, having studied this issue and a variety of possible solutions, recommended against making misogyny a hate crime. I am grateful to the noble Baroness, Lady Kennedy of The Shaws, for her points. I know that that is a source of regret for some noble Lords, but we cannot ignore the firm advice of experts that legislating in this way could do more harm to women than good. No one wants that outcome.

The noble Lord, Lord Russell of Liverpool, made an interesting point about Cara McGoogan’s article in the Daily Telegraph. The points that he raised about racism, misogyny and domestic violence within the police are being looked at by the noble Baroness, Lady Casey, and Dame Elish Angiolini. I know that we will get on to Child Q this afternoon when I repeat the Urgent Question. It is not a point that I dismiss at all; we all have to get to grips with the culture of the police.

The noble Baronesses, Lady Fox and Lady Kennedy of The Shaws, talked in different ways about the internet translating into real life. Obviously the online harms Bill is coming up. I do not want to give a complete prequel to that, but in that Bill we will need to consider the balance between free speech and protecting our children, women and girls. The noble Lord, Lord Ponsonby, referred to this and, as a parent, I am glad that my children had grown up by the time these problems began to surface, but I worry for the children, women and girls of the future.

To conclude, we are continuing to explore all options to tackle violence against women and girls and we are taking forward real change to achieve that. I invite the noble Lord to withdraw his amendment and I commend Motion D to the House.

[Lord Russell of Liverpool (CB)]

My Lords, this has been an interesting 55 minutes or so. We always seem to be at our finest when we discuss problems that a lot of people seem to agree are insoluble, which is disappointing in a way. It would be nice to talk about problems that are solvable.

I am grateful to all noble Lords who have spoken and to the three men who managed to stand up. Essentially, to some extent I apologise, as I feel I must, on behalf of many of my sex. The attitudes of an awful lot of males are a concern and are shaming. Unless more of us stand up and talk about it, it probably will not go away.

The noble Baroness, Lady Kennedy, is a pioneer in this area. I again recommend that all noble Lords read her report. When I started reading the preface, I realised that I was reading a report unlike most others I have read—and, in talking to her before we came in this morning, I discovered why: the noble Baroness wrote it herself and that does show. It is cogent, it is spirited, it is clear in its intent and it communicates brilliantly. So I recommend that more Ministers and noble Lords, when they put their names to a report, should write the preface themselves rather than get somebody else to do it. The noble Baroness’s point that what she is trying to do in her report is focus on egregious, unpleasant, aggressive and harmful actions, not thoughts, is also really important. We all think things that perhaps we should not from time to time. Mercifully, most of us do not act on them—or, if you get to my age, you probably forget them. At my age, the most important thing is to learn new things more quickly than you forget old things.

I take the point made by the noble Baroness, Lady Fox, about women’s freedom. But to suggest in some way that what we propose is potentially to label all men as misogynistic—and to send a message to all women that all men are basically misogynistic—is perhaps, might I suggest, slightly decrying the intelligence and perspicacity of members of the female sex to work out for themselves when something is genuinely misogynistic in a very unpleasant way and when it is less harmful. The noble Baroness is particularly skilled at talking about absolutes and problems. It would be great if we could move on and perhaps focus more on solutions than on the problems that are in the way of trying to find solutions.

My noble friend Lady D’Souza made an excellent point. We need to be careful that the law of unintended consequences does not lead us, in a sense, to suppress when what we are trying to do is liberate. I say to the noble Baroness, Lady Jones, that if she sees that taxi driver again I am sure she will give him a piece of her mind—or will change her accent to talk a bit more like me, so he will think that she is even posher than she really is.

I say to the noble Baroness, Lady Bertin, that it is always good to hear from the Government Back Benches. She made the good point that if you make a commitment, you should be able to keep it. The Minister has been frank and honest about some of the problems the Government have encountered, but I come back to the point I made earlier: this should and would have been foreseeable if they had done the proper analysis much earlier of what was implied by the commitment they were making.

The noble Lord, Lord Paddick, is far more skilled in these details than I am, and in particular on the law of unintended consequences in how one puts laws together and applies them. He makes a very good point but, again, there is the incredible importance of recording misogynistic data, so we actually know what we are talking about instead of just guessing.

The noble Lord, Lord Ponsonby, shared his direct experience as a magistrate and it was very compelling. If it is racially motivated, you have to fess up and say that up front, but if it is equally or more egregious, you do not have to. The fact that it is optional tells you that we are barking slightly up the wrong tree.

Finally, I turn to the noble Baroness’s contribution. What is so frustrating is that we spend so much time talking about all the problems that get in the way of trying to do something about this. We do not hear very much about prospective solutions. To some extent that is what Kit Malthouse invited us to do and committed the Government to doing—trying to find solutions.

On the point about asking police forces to comply with this rather than mandating them, I disagree with asking them. I actually think that we should mandate. Police chiefs are used to having a variety of things mandated by the Home Office, so would not be surprised or shocked. They might not particularly like it if the Home Office did so in this case, but I would strongly encourage the Government to think about doing that.

It is worth reading Hansard to see what happened when the Commons was considering our amendments. The vast majority of time in the early part of that debate was spent on the Newlove amendment, with speakers from all sides of the House, including a considerable number of Conservative Back-Benchers, particularly women. There was also a prominent man, the ex-Secretary of State for Justice, Robert Buckland. He has been intimately involved in helping to develop this amendment. I have also involved the noble and learned Lord, Lord Judge, in thinking through the validity and force of what we are talking about.

There is a growing concern and voice in another place that we need to stop talking about problems; we need to commit to doing solutions. So, for the reason that I feel that the soles of the feet of Kit Malthouse deserve to be subjected to a rather higher temperature than I think he feels at the moment, I would like to test the opinion of the House.

13:46

Division 2

Ayes: 198

Noes: 155

13:58

Sitting suspended.

Financial Conduct Authority: Financial Inclusion

Tuesday 22nd March 2022 Lords Chamber

Question

14:30

Asked by

[Lord Holmes of Richmond]

To ask Her Majesty’s Government what plans they have to require the Financial Conduct Authority to have regard to financial inclusion.

[Baroness Penn (Con)]

Financial inclusion is a priority for this Government. Her Majesty’s Treasury and the Financial Conduct Authority already work closely to meet the Government’s aims on tackling financial exclusion. As outlined in the future regulatory framework review consultation that was published in November 2021, the FCA’s current and ongoing initiatives to improve financial inclusion demonstrate that it can already effectively support the Government’s financial inclusion agenda through its existing operational objectives and regulatory principles.

[Lord Holmes of Richmond (Con)]

My Lords, financial exclusion has dogged this nation for decades. It is a personal tragedy for individuals and holds individuals, communities and businesses back. Does my noble friend not agree that with a concerted effort from HMT, a “have regard” duty for the FCA and the involvement of the Bank of England and all financial services firms, we could truly have an economy and a society that worked for everybody and were truly financially inclusive?

[Baroness Penn (Con)]

As I am sure my noble friend knows, since 2019 the Government have chaired the Financial Inclusion Policy Forum, which brings together the Government, the FCA, industry and consumer groups to deliver on the aims that he has set out. We are aware that there have been responses to the recent future regulatory framework review on the question of a “have regard” duty to financial inclusion. The Government are considering all the responses to that consultation and will set out their response in due course.

[Lord Watts (Lab)]

When the Government last discussed this, they said they would try to make sure that there was a bank left in every community, and that they were working on that policy. I remind the Minister that there are record numbers of closures, leaving many vulnerable communities without a bank. When are the Government going to take some action—or are they going to wait until all the banks have closed before they do anything?

[Baroness Penn (Con)]

My Lords, we are taking action in a number of areas. As we have committed to previously, we will ensure that we legislate to ensure access to cash. There are also some industry led-solutions under way, with five new bank hubs set up this year that allow different banks to pool their services together to ensure that communities still have access to those important services.

[Lord Tyrie (Non-Afl)]

Does the Minister agree that one means of improving financial inclusion would be to add financial literacy to the core curriculum in schools, and will she now consider it?

[Baroness Penn (Con)]

My Lords, financial education is covered within both the citizenship and mathematics curricula, and primary schools are strongly encouraged to teach citizenship, including financial education. In addition, the Money and Pensions Service published financial education guidance for primary and secondary schools last year to support school leaders in enhancing the financial education that is currently delivered in their schools to make it memorable and impactful.

[Baroness Tyler of Enfield (LD)]

What assessment have the Government made of the effectiveness of the FCA in tackling the poverty premium—that is, the extra cost that people on low incomes pay for essential services and products such as prepayment energy meters? Does the Minister agree that, as the cost-of-living crisis grows, the FCA could make more progress on this vital issue if the regulator were required to consider financial inclusion across all areas of its work?

[Baroness Penn (Con)]

My Lords, the Government are conscious of the poverty premium, and so is the Financial Conduct Authority. We are committed to ensuring that all consumers can access financial services and products that are affordable to them. There are examples of concrete action in this area—for example, a pilot of a no-interest loans scheme and a pilot of prize-linked savings schemes for people who are struggling to access appropriate and affordable financial services. That is something that we want to continue to build on.

[Baroness McIntosh of Pickering (Con)]

Does the Minister share my concern at the rate of closures of rural banks? This is a particular problem for the elderly who often have no access, other than by public transport, to get to banks. It also poses security problems for many shops in what is coming up to the busiest time of year. Should there not be some sort of social policy constraint on banks to ensure that a minimum number of branches are kept open in rural areas?

[Baroness Penn (Con)]

In addition to the answer which I gave previously, it is also possible for consumers to use Post Office services to carry out many of the functions they need to access banking. That network is distributed around the country.

[Baroness Wheatcroft (CB)]

My Lords, the Centre for Social Justice estimates that 1 million people are currently borrowing from illegal moneylenders. Clearly, they do not feel financially included. What steps will the Government take to stop that, and to ensure that these people known more about credit unions, for instance?

[Baroness Penn (Con)]

The noble Baroness is right to raise the issue. The Government are taking a number of actions in this area. I previously referred to the pilot of a no-interest loan provision which the Government are supporting. They are also putting record financing into consumer debt advice to ensure that if people are in trouble, they get access to the help which they need.

[Lord Sikka (Lab)]

My Lords, I have a letter here written by the FCA chief executive to the Financial Services Consumer Panel, dated 20 October 2021. In it, the FCA chief executive associates financial inclusion with the expectation that

“Firms must pay due regard to the interests of its customers and treat them fairly.”


Given that almost every financial product has been mis-sold, and given that many banks have been engaged in money laundering, tax dodging and sanction busting, so that it is hard to find a pristine bank, how are the Government going to deliver fair treatment of customers, when the FCA’s fines are puny, and they have so far not secured better practice or behaviour.

[Baroness Penn (Con)]

I do not recognise the picture which the noble Lord paints. Our banks and financial services provide an essential service to people up and down the country. They were one of our essential partners in distributing the support we provided to businesses through bounce-back loans and other support packages throughout the pandemic. Yes, there have been certain problems in certain areas, which is why the Government are taking action—for example, on anti-money laundering legislation and counterterrorist financing legislation. I am afraid to say that I just do not agree with the noble Lord.

[Baroness Altmann (Con)]

My Lords, given that there is a significant amount of in-work poverty, will the Minister join with me in congratulating those employers who are working to assist their workforce to access low-cost loans and debt repayments via salary deduction? Might the Minister also consider encouraging some of the financial firms to make financial education more widely available in the workplace, given that many have not had the benefit of this education in schools?

[Baroness Penn (Con)]

My noble friend makes a very good point. Financial education should not stop at schools, and the workplace offers a great opportunity to continue that education. For example, with the success of auto-enrolment in pensions, we see the importance of an ongoing engagement in our financial lives throughout our careers.

[Lord Tunnicliffe (Lab)]

My Lords, the bank HSBC, the housing and homeless charity Shelter and other charity partners are working collaboratively to ensure that certain people with no fixed address are able to access basic banking services. Do the Government welcome this kind of innovative thinking? More importantly, what efforts are Ministers making to encourage other banks to design and launch similar products for other financially excluded persons?

[Baroness Penn (Con)]

I absolutely welcome that kind of innovative thinking, and the collaboration between the private sector and social enterprises, to support vulnerable consumers. Of course, there are basic bank accounts designed to ensure that everyone can have access to banking services; however, we want to encourage continued innovation and collaboration with the private sector.

[Baroness Jolly (LD)]

My Lords, what support are the Government currently giving the credit union sector?

[Baroness Penn (Con)]

My Lords, I think a noble Baroness before referenced the credit union sector. It does excellent work in supporting people with access to low-cost credit. I am sure that it is part of our Financial Inclusion Policy Forum, where we bring together representatives from industries of all sorts to look at what more we can do to ensure financial inclusion in this country.

[Lord Hunt of Wirral (Con)]

Would my noble friend the Minister like to reflect for a moment on the excellent work of the Financial Inclusion Commission, which has put forward a plan to ensure that the regulator has a “must have regard” provision to tackle financial inclusion? Will she and her colleagues sit down with that commission and put together an action plan that can see real progress in tackling the issues facing financial inclusion?

[Baroness Penn (Con)]

My Lords, the Government are absolutely committed to taking action on financial inclusion. That is why we have the Financial Inclusion Policy Forum that brings together industry, consumer groups, the regulator and the third sector. We publish an annual report on the Government’s work on financial inclusion, which sets out the broad range of initiatives and ongoing work to support the sentiment that my noble friend expressed about taking action in this area.

Football Governance

Tuesday 22nd March 2022 Lords Chamber

Question

14:41

Asked by

[Lord Faulkner of Worcester]

To ask Her Majesty’s Government (1) how, and (2) when, they plan to respond to the recommendations of the Fan-Led Review of Football Governance, published on 24 November 2021.

[Lord Faulkner of Worcester (Lab)]

My Lords, I beg leave to ask the Question standing in my name on the Order Paper, and refer to my football interests as declared on the register.

[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 have endorsed the principle that football requires a strong, independent regulator to secure the future of our national game. We are working swiftly to consider the recommendations of the fan-led review and to determine the most effective way to deliver an independent regulator. My right honourable friend the Secretary of State committed in another place on 3 March to bring forward the government response as soon as possible. This will be issued in the coming weeks.

[Lord Faulkner of Worcester (Lab)]

My Lords, that is an encouraging Answer, but can I press the Minister on when we might expect to see the Government’s response to Tracey Crouch’s excellent report, and whether he can give an undertaking that the legislation which will be necessary to establish the regulator will be included in the next Queen’s Speech? Football fans have waited a very long time for some action, and as Mr Huddleston, the Sports Minister, said to the DCMS Committee last week:

“We recognise there are failures in the structure and governance of English football and the fan-led review is pivotally important because it will contain an independent regulator.”

[Lord Parkinson of Whitley Bay (Con)]

First, I wish the noble Lord a happy birthday. I am afraid I cannot give him a birthday present of anticipating what might be in the gracious Speech, as I am sure he will understand, but I certainly agree wholeheartedly with my honourable friend the Sports Minister. The primary recommendation of the review is clear and one that the Government have endorsed: that football requires a strong independent regulator to secure the future of our national game. As I say, we are working quickly to determine the most effective way to deliver that and to see the powers that it may need. Football has had too many opportunities to get its house in order but has not done so. Without intervention, we risk the long-term future of a game which is enjoyed by people across the land.

[Lord Bellingham (Con)]

My Lords, I reiterate the support that the noble Lord gave to Tracey Crouch and her excellent report the other day. Can I ask the Minister about Chelsea Football Club? While it is imperative that Roman Abramovich is punished and sanctioned, it is also important that ordinary Chelsea fans are not too heavily penalised.

[Lord Parkinson of Whitley Bay (Con)]

I agree with my noble friend on both points—first, in commending the work of Tracey Crouch MP in leading the fan-led review, which of course was a manifesto commitment from the Government. My noble friend is right: we must punish individuals with links to the Putin regime. The sanctions we have announced in this and other areas will target the assets and lifestyles of those implicated, but it is right that we have a safety net in place to protect the sport, the club and the fans from irreparable damage that would prevent the club from competing.

[Lord Addington (LD)]

My Lords, would the Minister like to take this opportunity to assure the House that the Government are going to make sure that the big professional football clubs and other clubs, which are community assets and part of the social structure, are actually protected? At the moment, they are literally used as a football by financial institutions; they are seen as merely a business. Can we make sure that when we have some reform and change in this area, the fact that they are more than that to most people is recognised at a fundamental level?

[Lord Parkinson of Whitley Bay (Con)]

The noble Lord makes the very pertinent point that football clubs are rooted in their communities and are community assets. That is why we are very glad that the review by Tracey Crouch was fan-led. We are very grateful to all those who took part in it; we will set out our response in full having given it the thorough consideration it deserves.

[Lord Birt (CB)]

My Lords, I am a Liverpool, not a Chelsea, fan. We all support sanctions designed to bring an end to Russia’s acts of sheer evil in Ukraine, but it is surely not right that Chelsea’s fans, players and operational managers should be directly affected by sanction measures while they await new owners. Will the Minister urgently review and remove these purely sporting constraints?

[Lord Parkinson of Whitley Bay (Con)]

My Lords, given the significant impact that sanctions would have on Chelsea Football Club and their potential knock-on effects, Her Majesty’s Treasury issued a licence which authorises a number of football-related activities to continue at Chelsea, including permissions for the club to continue playing matches and other football-related activity, which will in turn protect the Premier League, the wider football pyramid, the loyal fans and other clubs. The licence allows only certain explicitly named actions, to ensure that the designated individual cannot circumvent UK sanctions. However, we are meeting daily with the club and football authorities to discuss further amendments to the licence should they be necessary.

[Lord Clark of Windermere (Lab)]

My Lords, I declare an interest as director of Carlisle United. As the Minister has recognised, English football is in a mess. A new study by Fair Game has come out showing that over half the top clubs are technically insolvent, yet clubs in League One and League Two are surviving on a 1.2% handout from the Premier League. Will the Minister commit that the widely recognised Tracey Crouch proposals will be endorsed by the Government before the end of this season in six weeks’ time?

[Lord Parkinson of Whitley Bay (Con)]

My Lords, Tracey Crouch’s review recommended that football should seek to resolve distribution issues itself. The Government have written to football authorities to ask how they intend to do this; we have received responses and will address this issue in our response to the review.

[Lord Brooke of Alverthorpe (Lab)]

I welcome much of the report, but does the Minister recall that the Prime Minister, when he was Mayor of London, was very concerned about domestic abuse that arose after football matches where drinking had taken place? Recommendations 42 and 43 of the report are that there should be experiments in reintroducing alcohol into these leagues, which had been banned since 1988. Can he tell me why the Government have changed their view?

[Lord Parkinson of Whitley Bay (Con)]

I advise the noble Lord to await the Government’s response to the fan-led review, in which we will deal with all its recommendations.

[Lord Hunt of Kings Heath (Lab)]

My Lords, will the noble Lord come back to ground ownership and the problems that have occurred when grounds have been sold off? The review recommended a golden share to be held by a community benefit society—in other words, supporters of the club—to have a veto, essentially, over such ground share sales in the future. Are the Government sympathetic to that?

[Lord Parkinson of Whitley Bay (Con)]

I am afraid I cannot anticipate all the areas of the review to which we must respond, but I repeat that football has clearly proven unable in the past to reform itself and deliver the changes needed. It is clear that current oversight of the game is not up to solving the structural challenges and that action must be taken. That is why we welcome the review and will respond to it in detail.

[Lord Austin of Dudley (Non-Afl)]

My Lords, some of us said at the time that it was a complete disgrace that Putin could use the World Cup for propaganda purposes. It is completely unacceptable that Qatar was able to bribe its way to hosting the World Cup this year, with its appalling record on human rights, women’s rights, LGBT rights and the way it has exploited labour to build the stadia. While I recognise the Government’s case for reform of the domestic game, do they agree with me that the international institutions running football need urgent reform as well?

[Lord Parkinson of Whitley Bay (Con)]

The suitability of football club ownership was an important part of the fan-led review, and we welcome recognition from the Premier League that current tests are not sufficient. The fan-led review is about future-proofing the system, both domestically and, as the noble Lord says, in the international leagues, and we will set out our response to all these issues in full.

[Lord Bassam of Brighton (Lab)]

My Lords, the takeover of Newcastle by a consortium with links to the Saudi regime prompted questions about the appropriateness of the current fit and proper person test for owners and directors, and Mr Abramovich’s recent hasty attempts to sell Chelsea also raised concerns about due process. Can the Minister give us some confidence that these issues will be dealt with when the Government issue their response to the excellent Crouch review?

To pick up a comment made by the noble Lord who preceded me, the Premier League confirmed recently that it is looking to add human rights components to its assessment of prospective owners and directors. Do the Government support such a change? If so, what discussions have they had with other football stakeholders, including the FA and the EFL?

[Lord Parkinson of Whitley Bay (Con)]

As I say, the suitability of club ownership was an important part of the review. The review is about future-proofing the system, and that is why we are considering how to enhance the owners and directors tests to ensure that football has only suitable custodians. It is difficult to look back retrospectively at individual cases, but we are determined to get this right, and we are discussing the matter with people across the football pyramid to make sure that we do so properly.

Social Security System

Tuesday 22nd March 2022 Lords Chamber

Question

14:51

Asked by

[Baroness Lister of Burtersett]

To ask Her Majesty’s Government what assessment they have made of the recommendations for reform of the social security system made in the report Covid Realities: documenting life on a low income during the pandemic, published on 24 January.

[The Parliamentary Under-Secretary of State, Foreign, Commonwealth and Development Office and Department for Work and Pensions (Baroness Stedman-Scott) (Con)]

My Lords, no specific assessment has been made. We are aware of the report and, as always, we constantly keep our policies and systems under review. Universal credit is a modern, flexible benefit, responding effectively to economic conditions. It replaces six outdated and complex benefits with one, helping to simplify the benefits system, providing support in times of need and making work pay. In 2021-22, we will spend more than £111 billion on working-age welfare, which is 4.9% of our GDP.

[Baroness Lister of Burtersett (Lab)]

My Lords,

“The title social ‘security’ is laughable. We have never felt so insecure.”


This quote sums up a key concern of social security claimants who took part in this important participative research project, and it is disappointing that the department has not actually read the report but is only aware of it. The recommendations, co-produced with participants, emphasise that benefits should provide genuine security and be adequate to meet needs, and that the lived experience of claimants should inform policy-making and implementation. What is the department doing to meet these very reasonable demands, which echo those of the Economic Affairs Committee?

[Baroness Stedman-Scott (Con)]

I can confirm, as I said, that the department is looking at the recommendations in the report. We are aware, as is the whole House, of the difficulties that people are facing at the moment. The department and the Government have moved to put in place finance to help the situation, but I cannot offer any other confirmation of funding. I guess we can wait for tomorrow in hope.

[Baroness Fookes (Con)]

My Lords, mention was made earlier in Questions to the shocking report from the Centre for Social Justice, Swimming with Sharks. It appears that loan sharks have been sinking their teeth into up to a million people. Can the Minister’s department give any practical assistance? I realise that it goes beyond her department, but there may be things that her department is especially able to undertake.

[Baroness Stedman-Scott (Con)]

I thank my noble friend for that question and for making a very valid point. I am aware of the Centre for Social Justice report about illegal moneylenders and the impact they have on vulnerable people. It makes three recommendations: clamping down on illegal moneylenders, protecting the most vulnerable and providing an alternative. When I get back to the department tomorrow, I will speak to the Minister for Pensions and the Minister for Welfare Delivery to see whether they have any plans to assist in any way and do something about this terrible situation.

[Baroness Ritchie of Downpatrick (Lab)]

My Lords, will the Minister, when talking to her ministerial colleagues in the DWP, give consideration to the contents of this report and the participation by ordinary people who have been impacted by poverty? Will she take on board the need to reform our social security system so that it is based on need, not other criteria that simply disadvantage people?

[Baroness Stedman-Scott (Con)]

These matters are discussed in all our ministerial meetings. I can confirm to the noble Baroness that I will redouble my efforts in the department to raise these issues. The Government want to do what we can to support people in these difficult times—please do not think that we do not want to.

[Baroness Janke (LD)]

My Lords, the report provides testimony from claimants that they are not always treated with respect by DWP staff. Will the Government introduce measures to improve the relationship between claimants and the DWP; for example, by providing a single point of contact or caseworker, including people with lived experience in staff training, and ensuring that staff understand the impact of disabilities, domestic abuse and racism on claimants?

[Baroness Stedman-Scott (Con)]

I am very disappointed to hear that there are claimants who feel they are not treated properly. I can confirm that the single point of contact—the one person—is the work coach. We have been expanding their role and training them to deal with the issues that the noble Baroness raises. We are giving them reasonable case loads and we are making sure that they address and help people with the dignity that they should receive. One of the most important points the noble Baroness made was on including first-hand experiences. It is in speaking to clients and spending time with them to find out how their experience has been that we are able to learn and make changes to the system.

[Baroness Eaton (Con)]

My Lords, can my noble friend say why the child element of UC is limited to the first two children?

[Baroness Stedman-Scott (Con)]

As I have said many times—this subject comes up regularly—a benefits structure that adjusts automatically to family size is unsustainable. We recognise that some claimants are not able to make the same choices about the number of children in their family, and we have exceptions to protect certain groups. We continue to take action to help families with the cost of living. At the moment, as I have said before, there are no plans to change the two-child limit.

[Baroness Wilcox of Newport (Lab)]

The Covid Realities report shows that the support for low-income families simply is not enough to manage on, even before the cost of living crisis hit. Does the Minister recognise that introducing a windfall tax would provide funding for immediate support and help families? What are the Government going to do to stop yet more of our children falling into poverty?

[Baroness Stedman-Scott (Con)]

Clearly, the Opposition Benches and others have asked for a windfall tax. As far as I know, the Government do not intend to impose a windfall tax—the energy companies are already taxed more than others. On the point the noble Baroness raises about children and helping them, there is nothing more I can add to what I have said already. However, I ask her please to take it from me that the Government are doing their very best to support families.

[The Lord Bishop of St Albans]

My Lords, does the Minister agree with me that we need a wide range of supportive schemes when we are trying to work with those who are coping with the issues caused by low incomes? Have Her Majesty’s Government assessed the Financial Shield pilot scheme which is running at the moment? It brings together health professionals and community organisations, as well as creditors, who are trying to take a long-term supportive approach to working with those who find themselves in debt?

[Baroness Stedman-Scott (Con)]

I thank the right reverend Prelate for his question. I am sorry, I have not heard of that scheme. I will go away, find out about it and respond to his question in writing.

[Lord Cashman (Lab)]

My Lords, the issue of Covid and poverty has revealed to us all deeper levels of poverty than hitherto imagined. It is about not only people on low incomes but people surviving on no income. An organisation, Neighbours in Poplar, has over the past two years delivered 24,000 hot meals each week to people who would not otherwise be fed. Reliance on food banks is growing. Therefore, will the Government undertake analysis with such community organisations and voluntary groups to make certain that when they withdraw what they are doing, the poorest and most in need are not left to suffer?

[Baroness Stedman-Scott (Con)]

I must pay tribute to the community organisation to which the noble Lord refers and many others with which noble Lords will have contact. We are aware of the work that food banks and other such organisations do. Our best way to help people through these difficulties is to get them into work, where they can, and to ensure that they earn enough to survive.

[Baroness Altmann (Con)]

My Lords, my noble friend may not be surprised when I ask whether there is any update on the issue of pensioner poverty and increasing the take-up of pension credit, to which so many pensioners are entitled but do not receive.

[Baroness Stedman-Scott (Con)]

I am not in the least surprised that my noble friend raises this issue. I commend her, and I was rather hoping that the noble Lord, Lord Foulkes, would be in his seat if this issue was mentioned. At DWP Oral Questions in the other place this week, my Secretary of State made some very good pronouncements about pension credit and our plans for a campaign to get take-up increased, which we will do. I am going to hold an all-Peers briefing on pension credit to bring all noble Lords up to date with the excellent work the department is doing.

Ukrainian Nationals: Visitor Visas

Tuesday 22nd March 2022 Lords Chamber

Question

15:01

Asked by

[Lord Moylan]

To ask Her Majesty’s Government what arrangements they have made for Ukrainian nationals who lawfully arrived in the United Kingdom on visitor visas before the war broke out and now cannot safely return to Ukraine.

[The Minister of State, Department for Levelling Up, Housing and Communities and Home Office (Lord Harrington of Watford) (Con)]

Ukrainians on visitor visas can now have them extended automatically—since the war broke out, obviously, they cannot safely return to Ukraine. They will be extended for six months. Alongside this, we have made it easier for Ukrainians on work, study or seasonal work visas to remain in the UK by extending leave or allowing individuals to switch routes fee-free. I assure my noble friend that people will be treated kindly and sympathetically by Border Force officers.

[Lord Moylan (Con)]

My Lords, can my noble friend give an assurance that the Government will consider extending the right to stay to three years, to put these people on the same footing as Ukrainian nationals arriving in the United Kingdom as refugees?

[Lord Harrington of Watford (Con)]

I can confirm to my noble friend that we are looking into this at the moment, and it would seem sensible to extend the scheme to 36 months and allow those people the same benefits of living in this country that are extended to people on the other schemes.

[Lord Watts (Lab)]

My Lords, if families are taken in by British people and they are paid £350 per month, can the Government assure me that that £350 is not taxable?

[Lord Harrington of Watford (Con)]

I can assure the noble Lord absolutely that that is the case.

[Lord Alton of Liverpool (CB)]

My Lords, underlining the point about the dire situation that the noble Lord, Lord Moylan, described, will the Minister respond to reports that, according to the United Nations, the number of people who have now fled their homes in Ukraine totals 10 million—a quarter of the population—that mass deportations and abductions from Mariupol into locations deep inside Russia have been instigated and that an art school sheltering some 400 people has reportedly been destroyed? Did the Minister have the chance to read the letter in Times on Saturday which highlighted the plight of the 100,000 orphans, half of whom are disabled, housed in 700 children’s homes? Is the noble Lord, as our Refugees Minister—where he is doing a terrific job—able to instigate and co-ordinate international efforts to ensure the safe evacuation of those, clearly very vulnerable, children?

[Lord Harrington of Watford (Con)]

I thank the noble Lord for his question. We have done quite a lot of work on orphans in the countries around Ukraine. The problem is that the policy of the Ukrainian Government, which we have to respect, is that orphans are to be kept in countries adjacent to Ukraine. In the vast majority of cases, they do not want them brought to the UK or other countries. It is therefore our role, predominantly, to support the Ukraine Government by providing aid, hospitality and all the facilities that we can in those countries.

[Lord Cormack (Con)]

My Lords, my noble friend has been very helpful. What happens to those to whom permission for three years is given when the six months for which the Government are paying elapses? Are the Government prepared to continue paying those families or are they expecting those refugees to move elsewhere?

[Lord Harrington of Watford (Con)]

My Lords, I will just clarify the situation. The six months to which my noble friend refers is the six months of the sponsorship scheme. That is the minimum period for which individual sponsors may be asked to provide accommodation. That, of course, is extendable. All the benefits, rights to education and all the other facilities extend for the full three years. Depending on what the sponsor wants, however, those people might have to move to another sponsored accommodation or elsewhere after six months.

[Lord Dubs (Lab)]

My Lords, I have not yet had the chance to congratulate the Minister on his new post. Many of us have quite high hopes for what he is going to achieve; I hope that does not damage his political future. Will the Minister have a look at the difficulty Ukrainians are having in getting visas to come here? There is still a very slow rate of progress, so could he do something to speed it up, please?

[Lord Harrington of Watford (Con)]

I thank the noble Lord for his kind words but I think my political prospects diminished several years ago. I am doing this job, as the noble Lord knows, because I was involved with the Syrian refugees. I thank him for his help then and for his candid, but always polite, criticism of what we did. The visa process has been greatly expedited: now, refugees with Ukrainian passports can download the form on their phone with the passport, and will get a response very quickly, without having to go to the visa centres, which have caused such delays. I regard that as a major improvement.

[Lord Newby (LD)]

My Lords, following up on that question, the noble Lord last week, in answering questions on the Statement, said that the intention was to greatly shorten the visa application forms and, I think, to make them available in Ukrainian. How long is the visa form now, compared to the 50 pages that it was originally? Is it available in Ukrainian?

[Lord Harrington of Watford (Con)]

I thank the noble Lord. I can assure him that it is a lot shorter. I am afraid I cannot give him the exact number of pages, but the Home Secretary and I have been through it line by line. It is shorter and, I hope, will get even shorter. As for the language, while the form itself is in English, at each section a drop-down column comes out with the Ukrainian translation. It is not quite what the noble Lord wants, because we also have to think of all the officers who have to work on it who are not trained in Ukrainian, but every single word is translated in those drop-down boxes.

[Baroness Butler-Sloss (CB)]

My Lords, I am co-chair of the All-Party Parliamentary Group on Human Trafficking and Modern Slavery. Our group is very concerned about the plight of vulnerable children on the borders of Ukraine, where they are at huge risk of human trafficking. What are the Government doing about that?

[Lord Harrington of Watford (Con)]

I share the noble Baroness’s concern about this. We are in regular touch with the authorities and the aid agencies on the ground. Predominantly, the Government’s policy is to fund the relevant agencies on the ground to help facilitate the kind of safety required. I must make clear again, however, that it is the clear policy of the Ukrainian Government, as reiterated to me by the ambassador here, not to move children very long distances but to move them to safety in countries such as Poland, adjacent to Ukraine.

[Lord Rosser (Lab)]

My Lords, I warmly welcome the noble Lord, Lord Harrington of Watford, to the government Dispatch Box and express the hope that he has rather more success than the football team mentioned in his title is currently having.

[Noble Lords]

Oh!

[Lord Rosser (Lab)]

I sincerely hope he does have more success. Can the Government confirm that, under the terms of the Nationality and Borders Bill, as it came to this House from the Commons, refugees fleeing the carnage and threat to their lives in Ukraine would be dealt with as having entered the UK unlawfully, thus creating a criminal offence, if they arrive here—perhaps by small boat across the channel—requiring leave to enter or remain and not having such leave?

[Lord Harrington of Watford (Con)]

The noble Lord has made me speechless about the prospects for Watford football club, but I reluctantly accept that he is quite correct.

On the substance of his question about Ukrainians arriving in small boats, all I can say is that it is our policy to treat any Ukrainian who arrives—and others, I hope—with as much sympathy and compassion as we can. I would like to meet with him or drop him a line about a more specific answer to his question.

[Viscount Waverley (CB)]

My Lords, referring to the Minister’s previous response, what measures will be taken to ensure that Ukrainian refugees are safeguarded from being subjected to modern slavery? Will welfare checks and safeguarding assurances be undertaken regularly and before any payments are made under the “Homes for Ukraine” £350-a-month “thank you” payment scheme?

[Lord Harrington of Watford (Con)]

I can confirm that checks are being carried out as we speak on sponsors before refugees arrive in their homes, and that local authorities will be carrying out further checks in the weeks to come.

[Baroness Meyer (Con)]

My Lords, I too welcome my noble friend Lord Harrington to the Front Bench. On the previous question about languages, given that not all Ukrainians’ first language is Ukrainian, can the Minister assure us that there will also be a Russian translation?

[Lord Harrington of Watford (Con)]

I cannot give my noble friend that undertaking because I am not sure, but I will know within minutes of sitting down what the answer is. We have certainly ensured that there are welcome signs and packs available at the airports for those who need Russian. However, we have been told that many Ukrainians are quite offended by the use of the Russian language, so we have to be careful.

[Lord West of Spithead (Lab)]

My Lords, we have huge admiration for the fighting ability and bravery of the Ukrainians fighting against the Russians, and it is important that they should continue that fighting for as long as possible, because that will mean a better outcome at the end when things change. You fight far better when you know that your family and loved ones are being looked after and are safe and being taken care of—not just while you are fighting but should you be killed. Does the Minister not believe that we should bend over backwards in every single way to look after Ukrainian refugees, to ensure that it is in our benefit and that it is the right and proper thing to do?

[Lord Harrington of Watford (Con)]

I agree totally with what the noble Lord said. Everyone in the two departments I am involved with is certainly instructed to ensure that refugees are treated in a humane, compassionate way, understanding that many have had very traumatic experiences before they get here.

Education (Careers Guidance in Schools) Bill

Order of Commitment discharged
Tuesday 22nd March 2022 Lords Chamber

Order of Commitment

15:12

Moved by

[Lord Lucas]

That the order of commitment be discharged.

[Lord Lucas (Con)]

My Lords, I understand that no amendments have been set down to this Bill and that no noble Lord has indicated a wish to move a manuscript amendment or to speak in Committee. Unless, therefore, any noble Lord objects, I beg to move that the order of commitment be discharged.

Motion agreed.

Taxis and Private Hire Vehicles (Safeguarding and Road Safety) Bill

Order of Commitment discharged
Tuesday 22nd March 2022 Lords Chamber

Order of Commitment

15:13

Moved by

[Lord Holmes of Richmond]

That the order of commitment be discharged.

[Lord Holmes of Richmond (Con)]

My Lords, on behalf of my noble friend Lord Borwick and with his permission, I understand that no amendments have been set down to this Bill and that no noble Lord has indicated a wish to move a manuscript amendment or to speak in Committee. Unless, therefore, any noble Lord objects, I beg to move that the order of commitment be discharged.

Motion agreed.

Police, Crime, Sentencing and Courts Bill

Consideration of Commons amendments & Lords Hansard - Part 2
Tuesday 22nd March 2022 Lords Chamber

Commons Reasons and Amendments (Continued)

15:14

Motion E

Moved by

[Baroness Williams of Trafford]

That this House do not insist on its Amendment 73, to which the Commons have disagreed for their Reason 73A, do agree with the Commons in their Amendment 74A, do not insist on its Amendment 87 and do agree with the Commons in their Amendments 87A, 87B, 87C, 87D, 87E and 87F to the words restored to the Bill by the Commons disagreement to Lords Amendment 87.

73A: Because it is appropriate for the police to be able to attach conditions to a public procession where the noise generated by persons taking part in the procession may result in serious disruption to the activities of an organisation which are carried out in the vicinity of the procession or may have a significant relevant impact on persons in the vicinity of the procession.

74A (as an amendment to Lords Amendment 74): Leave out line 2.

87B: Page 56, line 15, leave out “make” and insert “amend subsection (5A) for the purposes of making”

87C: Page 56, line 19, after “particular” insert “, amend that subsection for the purposes of”

87D: Page 56, line 20, leave out “define” and insert “defining”

87E: Page 56, line 22, leave out “give” and insert “giving”

87F: Page 56, line 29, at end insert “, including provision which makes consequential amendments to this Part.”

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

My Lords, with the leave of the House I will also speak to Motions F, F1, F2, G, H, H1 and N.

I shall begin with Amendment 143, as I believe that there is a large measure of agreement across the House on the need to better protect schools and vaccination centres from disruptive protests that take place outside such locations. The Government have listened carefully to the arguments put forward by the noble Lord, Lord Coaker, for introducing fast-tracked public spaces protection orders on a case-by-case basis.

Amendments 143A to 143C are similar to Amendment 143. They make provision for expedited PSPOs, which local authorities can apply to public places around schools, and to vaccine and test-and-trace centres, for up to six months. As with the original amendment, an expedited PSPO would need to be made with the consent of the relevant chief officer of police and, as the case may be, the appropriate authority for the school or NHS body in question. The local authority would then be required to consult on the expedited PSPO once it was in place. These amendments in lieu were welcomed by the shadow Policing Minister in the Commons, and I hope they will be similarly accepted by the noble Lord, Lord Coaker, and others.

It is the Government’s view that we must balance the rights of protesters to exercise their freedom of speech and assembly with the rights of non-protestors who might be adversely affected by a protest. Part 3 of this Bill has always been about a modest resetting of that balance, and it firmly remains our view that the provisions in Clauses 55, 56 and 61, which Amendments 73, 80 and 87 seek wholly or partly to expunge, should remain part of the Bill.

Noble Lords will recall that Amendments 73 and 87 relate to measures that would enable the police to attach conditions to a protest in circumstances relating to the generation of noise. As I have said to the House before, but it is worth saying again, we expect the vast majority of protests to be unaffected by these provisions. It is exceptional for the police to attach any conditions to a protest, and that will not change. Of course, protests are generally by their nature noisy; their purpose is to advance a particular cause. These measures do not prevent noisy protests, but the Government continue to believe that it is completely unacceptable that a small minority of protestors can, through the use of amplification equipment or other means, impose disruption and misery upon the public through the excessive noise they generate. The noble Lord, Lord Hogan-Howe, put it well in Committee:

“We have to consider its effect on people, where it is either so loud or so persistent that it cannot be ignored.”—[Official Report, 24/11/21; col. 944.]


If we accept that there must be limitations on egregious noise in other contexts—that is why local authorities have noise abatement powers—the same principle should apply in the context of a protest where the level of noise becomes injurious to others.

Amendment 80 would remove Clause 56. This clause would enable the police to attach any type of condition to a public assembly, in the same way that they can attach any type of condition to a public procession. The distinction between processions and assemblies no longer reflects the contemporary realities of policing protests over three and a half decades after the Public Order Act was enacted. This point has forcefully been made both by the national policing lead for public order, Chief Constable Harrington, and by Her Majesty’s inspectors of constabulary. We should recognise their expertise in this regard and accept that the 1986 Act needs to be updated.

Turning to Amendments 81 and 82, I am grateful for the further opportunity I have had to discuss them with the noble Viscount, Lord Colville. The noble Viscount has made a powerful point that the Palace of Westminster is the symbolic representation of our vibrant democracy and that it must be open to those who want to do so to protest in the vicinity of these Houses of Parliament. I want again to reassure the House that Clause 58 will not have the effect that some noble Lords have feared.

Since our last debate, we have discussed this further with the Greater London Authority, which has categorically confirmed that, were Clause 58 in its original form to be enacted, it will continue to authorise rallies and protests, as it currently does, on the GLA-managed area of Parliament Square Garden.

Since I had the opportunity to discuss this further with the noble Viscount last week, my officials have also been in touch with the Metropolitan Police, and it has similarly confirmed that the provisions in Clause 58 do not affect its ability to manage large protests of 5,000 people or more within Parliament Square. I should stress that it is not the function of the Metropolitan Police to authorise or otherwise protests in the vicinity of Parliament but to exercise its powers under the Public Order Act to attach conditions to a protest. The Metropolitan Police has also reassured us that, as with other public order powers, it will use this new power of direction only in a manner that is reasonable, necessary and proportionate to the rights of individuals to engage in peaceful protest.

As we are talking about the Houses of Parliament, I think this might be a good moment to reflect on the death of PC Palmer, five years ago today. I cannot believe it was five years ago, but it is. We pay tribute to him for the way he tried to protect the Palace when he was murdered.

Finally, moving to Amendment 88, this is a watered-down version of the Government’s plan to increase the maximum penalty for the existing offence of obstructing a highway. It is vital that we protect all our roads from the disruptive and damaging actions that we have seen some protestors employ in recent months. Limiting this increase to the strategic road network only, which excludes most A roads, as well as more minor roads, as this amendment seeks to do, would allow individuals to continue to block our roads without facing the appropriate sanction. I should stress that we are increasing the maximum penalty for this offence. It would continue to be for the court to decide the appropriate sentence in any particular case, and I would expect the sentence imposed to reflect the harm caused.

We have listened to and reflected on the concerns raised by noble Lords on Report. As is entirely proper, this House asked the other place to think again. It has now done so. The elected House has now endorsed, not once but twice, the provisions in the Bill enabling the police to attach conditions to a protest relating to the generation of noise. The elected House has also disagreed, following separate Divisions, with the Lords amendments relating to the policing of assemblies and protests in the vicinity of Parliament. We have done our duty as a revising Chamber, but now that the Commons has clearly expressed its view, I put it to the House that it is time to let this Bill pass. I commend the Commons reasons and amendments to the House.

Motion E1 (as an amendment to Motion E)

[Lord Coaker]

Moved by

Leave out from “House” and insert “do insist on its Amendment 73, do disagree with the Commons in their Amendment 74A and propose Amendment 74B to Lords Amendment 74 in lieu and Amendments 74C, 74D, 74E, 74F and 74G as consequential amendments, and do insist on its Amendment 87 and disagree with the Commons in their Amendments 87A, 87B, 87C, 87D, 87E and 87F—

74B: Leave out lines 20 to 26


74C: As an amendment to Lords Amendment 75, leave out “any of subsections (2ZA) to (2ZC)” and insert “subsection (2ZA) or (2ZB)”


74D: As an amendment to Lords Amendment 76, leave out “any” and insert “either”


74E: As an amendment to the Bill, page 47, leave out lines 36 and 37


74F: As an amendment to the Bill, page 47, line 40, leave out “an expression mentioned in subsection 12(a) or (b)” and insert “that expression”


74G: As an amendment to the Bill, page 47, leave out lines 44 and 45

[Lord Coaker (Lab)]

My Lords, first, I join the Minister in her tribute to PC Keith Palmer and in the sentiments she expressed, which will be shared by all of us across this House. As he protected us, he protected our democracy. As ever, we are grateful to PC Palmer for his sacrifice and for the sacrifice of so many others. I am pleased to join the Minister in her tribute.

This is an extremely important group of amendments. I thank the Minister for her thoughtful reply, even though I am going to disagree with some of it. I appreciate the comments she made and the way in which she made them.

This morning, on my walk into Parliament, knowing that we were going to discuss the issue of protests, I went to the gardens next to us and stood next to the tribute to the Pankhursts. I went across into Parliament Square to see Gandhi, Millicent Fawcett and Mandela. I wonder what they would say to us today as we discuss these amendments. I know the Government’s response will be that this is a different time, but that is irrelevant; or that this is an age that has amplifications, as we heard from the Minister, and they were not dealing with that. I suspect that, in their time, the Suffragettes, Mandela, Gandhi and all of those sorts of people were subject to being told that they were too extreme and were going too far.

I say to the Minister that this is a fundamental principle. I say again that I do not believe that the Minister wants to ban protests. I accept that. I am not saying that we have a Government who want to completely ban protests, completely end demonstrations and completely end the right to protest. I do not believe that. What I believe is that the Bill in certain ways undermines certain conditions which have always applied to people’s ability to protest.

The Government have got themselves in a right mess on this, as I will demonstrate, with respect to noise, which is the particular focus of the amendments that I want to point out. Let me quote from the Government’s own website, on thresholds. Our Amendments 73 and 87 would remove the Government’s proposed noise trigger which would allow the police to put conditions on marches or one-person protests that get too noisy. The problem is this: what on earth does too noisy mean? I would not like to debate that. One person’s too noisy is another person’s not noisy enough; some people get irritated by not very much noise and some people get irritated by no noise at all.

I went to the Government’s website for clarification on what too noisy means. When making use of these powers, the website helpfully gives advice for deciding what is too noisy. These are the thresholds that have to be met: who is impacted and how many people, which is fair enough, though it does not define it; who is vulnerable; and the duration of the impact. It very helpfully says that, if it is a short time, it is unlikely to meet the threshold. Presumably even if a protest is too noisy, if it is not for very long it is okay, because it is unlikely to meet the threshold.

The next threshold shows how ridiculous things are. Presumably a Minister has passed this; when I was in the Home Office, a Minister had to sign these things off—somebody has. If a protest is outside a building with double-glazing, it is not likely to have the same impact as if it is outside a building that does not have double-glazing. Double-glazing is a threshold now. If you are organising a demonstration, and if you are going to be noisy, you need to find areas where the buildings have double-glazing—that is what it actually says. I tell you, this will be a good advert for the double-glazing companies. It actually says on the Government’s own website that, if the protest is outside a building with double-glazing, it is not likely to have the same impact.

The serious point I am making is that you can see the problems the Government are having in trying to define what they mean by “too noisy”. As soon as you do that, you disappear down a hole. There is an old phrase, “If you are in a hole stop digging”. The Government are still digging.

The Minister berates the Opposition but the Government have not even convinced their own MPs. I will quote just two. Robert Jenrick, who was a Cabinet Minister until a few months ago, wondered

“whether the Government are going too far in this respect.”

He does not answer his own question but I think it answers itself. Steve Baker MP said:

“Let us say to the Government that actually this is going too far”. —[Official Report, Commons, 28/2/22; cols. 838 and 848.]

Somebody else made the point that Margaret Thatcher introduced the Public Order Act in 1986, which did not say anything about noise. John Major, following the poll tax protests, did not do anything about noise, and neither did David Cameron or Theresa May. But now we have a situation where being too noisy is regarded as something that it is important for the Government to legislate on.

15:30

As far as I am aware, the police have not asked for this power. It puts police officers on the front line in the impossible situation of deciding when a protest is too noisy. How will that be done? If I take part in a protest and think I am obeying the conditions, what happens if a police officer says to me, “You are being too noisy”? Will I be criminalised? How will that work? It is unbelievable. That is the emphasis of the amendment that I have tabled regarding noise. It is just too difficult to say what “too noisy” means, and inappropriate.

I am sure that most of us here have been on demonstrations that have been really noisy—I certainly have. How on earth do you define whether that noise has caused severe alarm, distress or anxiety to other people? I have been outside Parliament making a lot of noise; again, I am sure lots of others have. I know that even under these rules, you will be able to do that, but it will be very difficult.

On government Amendment 74, it is pleasing to see that the Government have responded to the Delegated Powers and Regulatory Reform Committee, which called on them to define the vague term

“serious disruption to the life of the community”

in the Bill rather than through secondary legislation. My Motion E1 accepts Amendment 74, as it focuses on the issue; it is an improvement, however minor, to have a definition of “serious disruption” in the Bill. My Amendment 74B, however, would remove the particularly flawed subsection (2ZC), which provides that noise causes serious disruption.

I am not a drafter of legislation, but the text of the government amendment that I am seeking to get deleted reads as follows:

“For the purposes of subsection (1)(aa), the cases in which the noise generated by persons taking part in a public assembly may result in serious disruption”

good luck with what “may” means—

“to the activities of an organisation which are carried on in the vicinity of the assembly include, in particular, where it may result in persons connected”

we have two “mays” in two lines—

“with the organisation not being reasonably able”

whatever “reasonably able” means—

“for a prolonged”

this is adjective after adjective—

“period of time, to carry on in that vicinity the activities or any one of them.”

I know what the Government are trying to do. Ministers in another place have gone back to the Home Office and said, “We are in real trouble on this noise thing. We will have to define it a bit better” and then disappear into “may”, “perhaps” and “it could be”, in the worst possible circumstances. How on earth does a police officer or a senior police officer decide? That is the focus of what I am saying and why it is so important. This legislation is unworkable as well as simply going too far on the conditions to be imposed on any protest.

I could not believe what I read from the Minister in the other place; I would not have said this as a Minister. When the Government, who are now worried about this, were asked about a review, the Minister, Kit Malthouse MP, said:

“I am happy to commit to reviewing the offence.”—[Official Report, Commons, 28/2/22; col. 827.]

So the Government are going to pass this even though they are already worried about it, and they will review it before, or as soon as, they have passed it. They will say, “It is a normal part of government to keep legislation under review.” That may be true, but you do not normally say when passing primary legislation that you expect to review it, unless you are in trouble; that is a Minister in trouble, trying to appease and buy off his Back Benches—so they do not vote against it—by promising a review. The only thing it lacks is the phrase “as soon as possible”. The provisions on noise are unworkable and ridiculous; whatever else the Government do, they should withdraw that part of the Bill.

We strongly support Motion F2 in the name of the noble Lord, Lord Paddick. It is crucial to opposing the Government’s noise provisions, as it would support my amendments by removing the proposed noise trigger for public assemblies as well as preventing the further extension of police powers in relation to public assemblies. Obviously, the noble Lord, Lord Paddick, will want to say more on that.

On government Motion G, providing that vehicle access to Parliament should not be blocked, we recognise that this was a recommendation of the Joint Committee on Human Rights, but I have still some concerns about what is proposed. As the Minister said, what is sought is a balance between ensuring that Parliament can function—in particular, so that disabled Members of Parliament, for example, can access the building—and protecting the right to protest. It is crucial that people have the right to protest in front of this building, which is the seat of our democracy. It should ring out from this debate that people will still be able to do that, because it is really important. It is also encouraging, as the Minister outlined, that the GLA has confirmed that the changes will not impact on its ability to authorise protests in Parliament Square as it currently does. In the spirit of reviewing, will the Minister keep that under review, and perhaps review it as soon as possible rather than in due course?

On Motions H and H1, on wilful obstruction of the highway, we supported the Government’s view that an increased sentence was appropriate in cases where people put lives at risk by walking on to motorways and blocking motorway traffic. This House supported an amendment from my noble friend Lord Rosser which would have limited that increased sentence to target motorways, A roads and the strategic roads network. This was to target the higher sentence at what it was designed for, where tactics are downright dangerous, block roads that people cannot easily get off or block the journeys of emergency vehicles. Unfortunately, we did not convince the Government or the House of Commons to accept what we saw as a common-sense change, but we do not believe that a further vote would change that. The noble Baroness, Lady Jones, has tabled Motion H1 to continue to raise her concerns about this power in general, but our focus is now firmly on the noise provisions. I know that she agrees with us on that.

On a positive note, I thank the Minister sincerely and welcome the Government’s concession in government Motion N, on my amendment to stop intimidatory protests outside schools and vaccine centres. We called on the Government throughout the Bill to focus their attention here, where anti-vax protesters were harassing and intimidating pupils and staff or disrupting the provision of medical care, rather than on peaceful protests being a bit noisy. The government amendment accepts what was asked for in my amendment, that authorities are able to respond quickly with an expedited process to put a buffer zone around schools or vaccine centres. We are grateful to the Minister and her Bill team for their work on this and welcome the fact that the Government have listened to what people have said and acted on it. We are very appreciative of that.

However, I go back to what for us is a point of principle; that is, the noise provisions. They are unworkable, will not be used and are simply a step too far for any Government to take. I say again that I do not believe that the Government are against protest; I do not believe that they want to ban that sort of peaceful protest activity. However, as a matter of common sense, to say that a demonstration can be stopped because it will be too noisy is nonsensical in practice and impossible to put into legalese which will work. From the contorted efforts of the Government to appease people like me and many others across this House, we can see the problems they get into with respect to their own definitions in their amendments. I beg to move.

[Baroness Jones of Moulsecoomb (GP)]

My Lords, I shall speak to my two Motions F1 and H1. I am sure it is no surprise that Green Party policy is a bit more radical than that of other parties—there is a lot of grumbling behind me; I hope it is support, not criticism—and is firmly against crackdowns on protest and the oppressive measures in the Bill against the Gypsy, Roma and Traveller communities. Personally, I would throw the Bill out; if they were any chance of filibustering it, I would stay here for several days in a row. However, that is not looking likely so, as the noble Lord, Lord Coaker, said, I accept what is happening today but with very bad grace, and I shall probably sit here snarling when we let this through. Incidentally, I am so glad that I am not on the other side of the Chamber with him shouting at me; that must be very distressing. It is great being here behind him.

I think the vast majority of the British public—I would like to think that sometimes I speak for them—agree that a potential ban on noisy protest is ridiculous, and of course we have heard some of the more ridiculous things that the Government have said already. I quite often feel sorry for their Front Bench, who have to come out and speak in favour of some of the stuff that this Government cook up which is clearly ridiculous.

Some of the Bill’s measures will make things more difficult for the police. They already have reputational problems with the general public, and this is going to make it worse for them; if they get tired or annoyed then they are likely to do something that will upset a lot of people, and cases will come to court. That is not good for anyone.

I have noticed a tendency to talk about protesters as if they are not people. My experience of protest, which is probably similar to that of some other noble Lords here, is that protesters are people. You might think they are all hippies and people like that, but they are not; some of them are ratepayers. Some of them earn a living and pay their taxes. People do not approve of crackdowns on protest because there are times when they themselves want to protest. They want to protest about a crossing that is in the wrong place on their own road or to complain about cars idling outside their children’s school. People protest. It is all very well to call them “protesters” but actually they are just people.

On the obstruction of the highway, I do not like the Commons amendment. I am not persuaded by the fact that there was a huge majority in the other place supporting the Government on it, because what else can you expect with an 80-plus majority? I do not like the original Lords amendment either because I think it was an absolute blunder. Obstructing the highway should not land anyone in prison for a year. There is a point here about how you can still be put into prison for a year even if the roads have already been closed by a traffic authority. When roads in Sheffield, sometimes quite minor ones, were closed for trees to be cut down, local people who were furious about that and were doing their best to stop it protested on those closed roads. Under the Bill, they could have faced up to 51 weeks in prison for protesting on their own road to try to protect their own trees. Peaceful protesters should never face jail. The original amendment was bad and the compromise is also bad.

We had the opportunity to throw this out completely but, sadly, the usual channels made it impossible to do so. If I thought I could convince enough people like the noble Lord, Lord Pannick, then I would push the Motion to a vote, but I did not even have enough voices to get a proper vote on Report so I will stick to sulking over here.

Still, the Government have badly misunderstood what the British public think about protest. Protest is something that we accept as part of our democracy. In other Bills, such as the Elections Bill, the Government are suppressing democracy, and here they are suppressing democracy again. I am devastated that we are allowing the Bill through.

15:45

[Lord Paddick (LD)]

My Lords, I will speak to my Motion F2 and the other amendments in this group. I start by joining the Minister in paying tribute to the selfless actions of PC Keith Palmer, who tragically died five years ago today.

I apologise for the length of my remarks, but there are numerous important issues contained in this group. I promise not to spend an average of more than two minutes on each Motion. There are few subjects on which I am an expert, but the policing of public order is one. I was one of a small cadre of advanced trained public order senior officers, and I have extensive experience of policing events. I remind the House that the majority of police forces outside London told HMICFRS that they did not need new public order legislation, and that the limiting factor in policing protests was the number of public-order-trained police officers they had to police protests. A whistleblower who worked for HMICFRS said that the conclusions in its review of public order policing did not reflect the evidence that the inspectorate had gathered. Having read the report in full, I agree. There is no justification for more public order legislation.

In relation to Motion E, the police already have powers to impose any conditions necessary—including an outright ban—on public processions, if a senior police officer reasonably believes that it will result in serious public disorder, serious damage to property or serious disruption to the life of the community, or if the purpose is to intimidate others. Adding a noise trigger to those powers will do more harm than good. As I said in Committee, from my experience, the more conditions you impose on a procession, the more likely those conditions are to be resisted and, therefore, the more police officers you will need to enforce them. As I have said, police forces already say that they do not have enough public-order-trained police officers.

A peaceful protest with no anticipated violent infiltrators and an agreed route—however large—can be policed with a minimum number of police officers and a lot of traffic cones and miles of white tape. Imposing conditions which the organisers are resisting is likely to require between double and five times the number of police officers. This is because confrontation must be anticipated, and the conditions may have to be imposed by force—such as a march wanting to take a different route. An outright ban on a protest, as well as being unlikely to be successful—as we saw with the Sarah Everard vigil on Clapham Common—requires about 10 times as many police officers as are required for a compliant, peaceful demonstration. How many police officers would it have taken to police the Sarah Everard vigil, in the middle of a common, if there had been agreement between the police and the organisers? The more conditions which can be imposed, and the more draconian those conditions, the bigger the drain will be on already overstretched police resources.

The second issue is the impact on trust and confidence in the police, as the noble Baroness, Lady Jones of Moulsecoomb, has just said. The impact of the policing of the Sarah Everard vigil was hugely negative, and the government proposals will simply increase the potential for, and frequency of, such scenes. By banning some demonstrations on the basis of anticipated noise, and not others, the police will be subjected to accusations that they are being political rather than practical. They will be accused of being selective about which protests can take place for political reasons—such as banning demonstrations against war, as they are likely to be enormous and noisy, but allowing demonstrations in favour of war to go ahead, as they are not likely to be very well supported, to take a Russian example. Such a change in the law is likely to draw the police reputation into even more disrepute. In addition, I ask how many times the business of this House or the other place has been disrupted because of noise by protestors. I suggest none —and I do not believe that the House has double glazing. In any event, the police can always divert disruptive demonstrations away from sensitive areas. This change—the noise trigger—is unnecessary and damaging, and we will be voting to support the Labour amendments.

Motion F is about maintaining the current position, where the police can impose conditions on those holding an assembly, a static protest or a meeting but cannot ban it altogether. The Government argue that their proposals simply bring assemblies into line with the powers that the police have in relation to processions, but there are very good reasons why the two should be treated differently.

As I said in Committee, on 13 January 1986 in the House of Commons, the then Conservative Home Secretary, later Lord Hurd of Westwell, explained why processions were being treated differently from assemblies:

“We stopped short of a power to ban”


assemblies

“because we believed that that would be an excessive limit on the right of assembly and freedom of speech. For this reason, clause 14 does not permit the police to impose conditions changing the date and time of an assembly.”—[Official Report, Commons, 13/1/1986; col. 797.]

We agree, and the effect of my amendment is to achieve the same result.

Already, if a senior police officer reasonably believes that an assembly may result in serious public disorder, serious damage to property or serious disruption to the life of a community, or that the purpose of the assembly is to intimidate others, he or she can, under existing legislation, impose conditions on where the assembly takes place; tell an existing assembly to move somewhere else; limit how long it goes on for; and/or limit the numbers attending. The wording of my Amendment 80G in Motion F2 is different from simply insisting on the amendment we made to remove the new provision proposed by the Government on Report —as Motion F1 in the name of the noble Baroness, Lady Jones of Moulsecoomb, does—but the effect is the same.

The only thing the police cannot do under existing legislation is to ban a static protest altogether. The police already have all the tools they need to deal with unlawful assemblies, but to give the police the power to stop people protesting at all smacks of Putin’s Russia, not the United Kingdom of Great Britain and Northern Ireland. I will seek the opinion of the House on Amendment 80G in Motion F2.

On Motion G, we share the concerns of others that all large demonstrations that have the potential to spill over into the road and, either by accident or design, impede vehicular access to Parliament could be banned even when Parliament is not sitting. We believe that this is legislative overreach, relying as it does on the discretion of the police to enforce it or not. However, we do not agree that the police should be able to give permission to allow entrances to Parliament to be blocked when Parliament is in session, so we do not insist on Lords Amendment 82.

On Motion H, we share the concerns of others that those who engage in peaceful sit-down protests, however short the duration, should face the potential penalty of imprisonment for highway obstruction where previously they could have been only fined. As we saw with the Insulate Britain protests, existing legislation, including the application for and enforcement of injunctions, can be successfully used to deal with persistent offenders, including imprisonment for those who breach injunctions. However, with the undertaking given by the Minister at the Dispatch Box that imprisonment is intended to be used only in the most egregious cases, we hope that this increased penalty does not have the chilling effect it may otherwise have done on peaceful protest.

On Motion N, we are grateful to the noble Lord, Lord Coaker, for raising the issue and for the Government’s response.

[Baroness Fox of Buckley (Non-Afl)]

My Lords, I regret that we heard the Home Secretary and now the Minister accept the principle of the Opposition’s fast-track public space protection orders in relation to Motion H and use that to justify broader anti-protest amendments as a balance in protecting non-protesters. I regret it but I am not surprised. The danger of advocating any measures that strengthen anti-protest measures is that it sets a tone that suggests that some protesters are good and some are bad, which politicises a general and universal right that I think we should defend. Putting that to one side, I want to oppose the Government’s doubling-down on a noise trigger and follow on particularly from the remarks made by the noble Baroness, Lady Jones, and others who have expressed their opposition so well.

I want to nod to the democratic dilemma of this ping-pong and whether we are actually blocking democracy. When summing up the rejection of the second tranche of anti-protest amendments on Report, the noble Baroness, Lady Williams, chided all of us who opposed them for ignoring the public’s demand that authorities deal with new forms of protest activities such as those we have seen used by Extinction Rebellion and its offspring, such as Insulate Britain.

I disagreed that those amendments would have dealt with those new forms of protest. I thought they were so broad as to sweep up all and any protests, including anyone who might have wanted to protest against net zero, to take an example of a different political side. The state also already has huge powers, whether the Emergency Workers (Obstruction) Act or the Public Order Act, as we have heard, that could have been used to deal with these forms of protest which are a particular nuisance, as the public would have it. Despite that, I felt the Government were at least responding to a particular form of protest about which there has been some public agitation and concern. Therefore, that chiding was listened to.

But now, here we are with government amendments on protest that bear absolutely no relation to the Home Office’s motivation on new forms of protest. I do not think the Government have a democratic mandate for these amendments. Fundamental and foundational democratic rights, such as the right to assemble or protest or the right to free speech, should be protected by an iron curtain. If there is any attempt to undermine them, the presumption must rest with the Government to justify in absolutely clear terms, with a sense of the absolutely exceptional reasons for the proposed changes, any more draconian measures being brought in.

It just does not add up. As I have noticed before, even these new types of protest that apparently upset the public are often silent, so the noise trigger does not apply to them in any way whatever. The authorities should consider proposing accruing further power when limiting the right to assembly, and ultimately the right to free speech, only ever in exceptional circumstances. In this instance, those exceptional circumstances are just not there.

Even more galling is the smoke and mirrors of posing these proposals as protecting the public from the consequences of protest. The public are described as “non-protesters”; as I think the noble Baroness, Lady Jones, pointed out, this turns the public into two different groups of people, but actually the public are the people who go on protests. They might not go on all of them all the time, but it is their right as the public that we are talking about. There is an Alice in Wonderland approach here that gets the issues upside-down and implies that the Government are far removed from the reality that free protests have been crucial for the public over centuries. The denial of that right, whether in Putin’s Russia or China’s Hong Kong, should be a visceral reminder to us here of why protest —warts and all—matters.

Of course not all protests are popular. Many of the modern protests I have mentioned, such as those by Extinction Rebellion, I do not support and they irritate me but, as with all fundamental democratic rights—free speech, free association and so on—it does not matter whether they are annoying, unpleasant or objectionable, or even if those demonstrations are directed in a hostile way against what you believe to be true.

We cannot pick and choose which speech or which protest we agree with and then endorse only the ones that we like. We have to make sure that we do not let those kinds of political prejudices get in the way. We are bound to feel uncomfortable at times when people protest for things that we disagree with, but that is freedom for you. It has never been claimed that living in a free society is safe and cosy. It is designed to make you, on occasion, feel uncomfortable. But there are principles here. As the Court of Appeal notes:

“The right to protest becomes effectively worthless if the protesters’ choice of ‘when and where’ to protest is not respected as far as possible”,


and I stand by that.

16:00

Finally, we should, if anything, be doing something in this House to facilitate civil society having the freedom to stand up to power. We should not only encourage the public to have their right to be heard protected loudly but encourage voters to actively engage in extra-parliamentary activity and to shout as loudly as possible about what concerns them, because that way we will get to actually hear some of that public debate. It is also a safety valve for democracy. If, on occasion, that causes inconvenience or annoyance or is too loud, we will survive, and democracy will be better for it.

I will finish with a quote from a participant from the Citizens’ Assembly on Democracy, because it sums up what is at stake: “When civil society or minority groups or opinions are ignored by politicians, it is the British way to assemble or march with an exuberant voice, carrying placards and symbols of protest. Peaceful protest sheds light on the mood of the nation and informs the elected representatives”—and, dare I say, the unelected representatives—“of the strength of opinion residing outside their bubble or chosen focus group.” I say “hear, hear” to that, and gladly.

[The Lord Bishop of Manchester]

My Lords, ever since this Bill began its progress through your Lordships’ House, I have struggled to understand why the source of noise seems to make a difference.

I am lucky to live in a large, busy and somewhat noisy city. Last week one of our local Jewish communities, which I live at the heart of, celebrated Purim, and it celebrated it noisily. I live close to Salford City football ground. I have a season ticket and go to watch matches there. But I would not need to be in the ground to know the score; I could tell from the noise that emerges from it. I am well within earshot of the annual Parklife festival in Heaton Park in north Manchester, which brings countless people from all over the country and beyond to have a fun weekend. I struggle to see why a night of noise from a religious festival or a weekend of noise from a pop concert is somehow acceptable, but noise from a protest for a night or a weekend somehow is not. If noise is a nuisance, it is a nuisance. The fact that it is generated by protests and not by pop music seems entirely irrelevant.

I take great comfort from what the noble Lord, Lord Coaker, said earlier. I have double glazing, so perhaps nothing at all is a nuisance to me; but not all my neighbours in Salford are quite so lucky. Unless the Minister can give me some clarity as to why the source of the noise make such a substantial difference that we have to legislate against it, I will be supporting the amendment in the name of the noble Lord, Lord Coaker, and others this afternoon.

[Lord Hogan-Howe (CB)]

My Lords, I suggest that noble Lords may want to follow Sheffield Wednesday because, if you lived anywhere near the ground, you would never be disturbed by much noise from the team scoring.

I support the right to protest. What I am about to say may leave people thinking that I do not, but I genuinely do. I say that as somebody who, like the noble Lord, Lord Paddick, has been a gold commander for public order events with tens of thousands of people—hundreds of thousands on occasion. Sometimes people in London imagine that the only protests that happen are with the Metropolitan Police leading them, but of course other forces have to deal with similar challenges an awful lot of the time.

There are different types of protest, but we seem to have started to talk about the only types of protest being the ones that happen in Whitehall, which we all regularly see and hear and which we have the most experience of, but they are not the only types of protest that happen around the country. I want to say a few words about those types of protest, and why I broadly support the Government’s idea to look at why noise can be a problem. Noise can be threatening and intimidating, it can be a nuisance and it can damage health. Surely the test of whether or not noise is okay is whether somebody of reasonable firmness—not somebody who is particularly sensitive—can withstand it. In certain circumstances we would all be very prone to being damaged by noise. Imagine a family who had someone who was terminally ill. Some of us who can cope with noise most of the time cannot cope with it all the time. So I think there is a test that can be applied, and the police would be quite able to apply it.

There is another example, I would suggest, of something that is lawful generally but when done too much can be a crime: picketing. That may have been contentious in the past, but people have engaged in it as part of a trade union dispute. However, it was made illegal, some time ago now, to gather in such a large number that it would intimidate people and prevent them working or doing other things that were reasonable. Picketing is therefore lawful, but not if it is done in such numbers and is causing such damage that it would cause normal people to be worried that they could not carry on with their normal lives.

The question that is not really addressed by those who object to the Government’s proposal is: is it always okay for protesters to cause noise nuisance, even if somebody is unreasonably damaged by that noise? If it is outside your home or your business, and it is day after week after month, is that okay? If not, how are you going to deal with it? I have not heard any proposals for doing that. Of course, it is okay in Whitehall, but it is not okay if it is at your home. We have had examples where people have had complaints and protests against them at their home or business repeatedly and frequently. We have to at least consider this when scrutinising this legislation. It is important to them, even if some people do not think it is important in general.

A question was raised as to whether police officers could assess whether noise “may” cause damage. That is a reasonable question, but, of course, police officers do this type of thing every day. They have to decide whether a breach of the peace is likely, and they might make an arrest or make an intervention around threatening behaviour. Whether something may happen is one of the things that they have to decide. They are just normal people who have to make a reasonable assessment. I do not worry about them too much on those grounds: they make that sort of decision every day and I suspect that they can carry on making it even if this was to be made further legislation.

There was a question about whether the police could intervene in a particular protest if there were tens of thousands of people involved and they were causing lots of noise. Could the police intervene and do they have enough staff? That is a fair question, but, of course, they do not have to intervene on that day. Perhaps it is impossible to intervene, but they can use that as evidence to decide whether to impose a condition in the future. That is one of the reasons why we have law: to decide whether you are able to impose conditions, what the reasons are for the conditions, and whether you can gather enough evidence to say that your “may” is a reasonable test. Therefore, it may not be on the first occasion that the protest happens, but it may be on the subsequent one, which, if noble Lords accept my argument, is something that at least has to be considered if there are repeated protests causing excessive noise for people, making it difficult for them to enjoy their lives.

I understand why people complain about this government proposal, but I honestly think that the people who oppose it have not yet addressed how they would deal with the problem if it was their home, their parents or their business. How do they intend to stop the noise, which can be so damaging to life? That is the question I would ask but, broadly, I support the Government’s proposal.

[Baroness Altmann (Con)]

My Lords, I commend my noble friend for all the hard work that she has done on this Bill and for accepting a number of the amendments, as well as the Government’s own amendments which she has brought forward, having listened carefully to the debates in this House and in the other place.

I do not believe for a moment that my noble friend or her colleagues on the Front Bench would intend to ban peaceful protest, but Part 3 of the Bill seems to be straying towards authoritarianism. We see at the moment how democracy is fragile and how important it is to protect it. This House is challenging what looks like an attempt to undermine the democratic right to protest, with what could be disproportionate criminalisation of peaceful protest.

Demonstrations must almost always be noisy. The demonstrators want their voices heard—that is the point of the protest. As I understand it, the Joint Committee on Human Rights confirms that the police already have powers to stop extreme and disruptive protests. If there is enough power already, I am not clear how, in practice, as the noble Lords, Lord Coaker and Lord Paddick, explained, the police would be able to assess how to implement this legislation. It may well be an unwise hostage to fortune that could be used for repression of unwanted opposition. As we are passing primary legislation which will outlast the current Administration—and who knows what the future holds?—I urge my noble friend to listen carefully to what has been said this afternoon about the vagueness of the word “noisy”.

[The Lord Bishop of Leeds]

My Lords, I was not going to add to the argument, but—and I do not want to depress the noble Lord, Lord Coaker—I have never been on a demonstration. At least, I have not been on a demonstration that was protesting against something. I have been on two marches that were very noisy and were accompanied by bands and so on, and which were protests for something. On the definitions of these things, I would love to know whether we are talking about protest, which is assumed to be against something, or a call for something, which is entirely positive. If the phenomenon is the same, what are we faffing around with this for? I just do not understand. I also got arrested for busking, which could be related to noise but I was only 20 and it was on the Paris metro, so it does not count. But being serious, I do not understand why the Government are pushing this when there is no call for it and it is unlikely to achieve anything because the definition is so vague.

[Lord Pannick (CB)]

My Lords, my objection to the noise provisions, in addition to the points made by the noble Lords, Lord Coaker and Lord Paddick, is the complete uncertainty of the concepts the Government wish to introduce into legislation. What level of noise is unacceptable, what level of disruption is unacceptable, and how will the organisers of a protest control the noise generated by the people demonstrating? What are they supposed to do in these circumstances? Enacting legislation of this sort will inevitably cause problems for the police, raise expectations that cannot be met and—I declare my interest as a practising barrister—undoubtedly lead to prolonged and expensive litigation that will result in the conditions being overturned.

[Baroness Wheatcroft (CB)]

My Lords, on the first Sunday after the invasion of Ukraine, I joined the protestors in Trafalgar Square. They were peaceful but noisy. It may well be that there were some minor oligarchs—maybe even friends of the Prime Minister—living in those new and very expensive penthouses overlooking the square, and I would like to think that they were annoyed. Unfortunately, I suspect that they have double glazing. However, the right to protest and to cause a degree of annoyance to a few people is surely something that Ukrainians would be amazed we were even thinking of curtailing.

I absolutely believe the Minister when she says that the Government have no intention of curbing that right, but this will be on the statute book if we allow it to go through, and not every Government might be quite as benevolent as the one we are currently living with. For that reason alone, we should absolutely support the amendment of the noble Lord, Lord Coaker. It is extraordinary that we are even contemplating this. It is like the Elections Bill. These are clauses which we are promised will be used in only the most innocuous of fashions. However, they give power to future Administrations to do things that none of us in this Chamber, or indeed at the other end, would like to see happen. For that reason alone, we should just say no—and what is more, we should say no time after time.

16:15

[Lord Hendy (Lab)]

My Lords, in addition to the objections to Motion F that have already been made, I have particular one. I made it earlier in the proceedings on the Bill, and it is the one the noble Lord, Lord Purvis, made a moment ago. It concerns the right to picket. Part 3 deals with demonstrations and freedom of expression generally. The provision that is sought to be reintroduced to the Bill will affect all those things, but will also affect the right to picket

“in contemplation or furtherance of a trade dispute”.

The right to picket is not only protected by Article 10 of the European Convention, concerning freedom of expression, but by Article 11, which protects freedom of association and the right to be a member of a trade union for the purposes of protecting one’s interests. It is a right that has been highly regulated in English and Welsh law for more than 100 years, beginning with the Conspiracy, and Protection of Property Act 1875, which, I point out for the benefit of the noble Lord, Lord Purvis, prohibits pickets picketing domestic houses. The restrictions on the right to picket in English legislation are reiterated in Section 220 of the Trade Unions and Labour Relations (Consolidation) Act 1992, which nevertheless preserves the right to picket in contemplation or furtherance of a trade dispute, but imposes restrictions on it by way, among other things, of a code of practice which extends over 19 pages. In 2016, Parliament sought to increase the number of restrictions on picketing by way of the Trade Union Act.

My submission is a simple one: the right to picket industrially is already sufficiently protected and should be excluded from any restrictions. I accept the justification for excluding all restrictions on the right to demonstrate as set out in the Bill, but if there are to be restrictions, the right to picket should have some exemption. I recall that in Committee, the Minister thought there was some substance to that argument because she introduced an amendment on, I think, blocking strategic highways which contained a particular protection for those engaged in a trade dispute.

If anybody doubts that this will affect picketing, one has only to look at Amendment 80A. It inserts a new subsection (2ZA), which refers to actions that

“may result in a significant delay to the supply of a time-sensitive product … or … may result in a prolonged disruption of access to any essential goods or any essential service, including, in particular, access to … the supply of money, food, water, energy or fuel … a system of communication … a place of worship … a transport facility … an educational institution, or … a service relating to health.”

I remind noble Lords that “a transport facility” will of course include P&O ships. If this provision is enacted, and if RMT and Nautilus International invite pickets to stand at Dover docks to discourage workers from taking their place, or other workers from refuelling or revictualling vessels or discharging cargo, they will not only be subject to all the existing picketing restrictions under UK legislation, but they will be bound not to be noisy. I therefore support the amendment of my noble friend Lord Coaker.

[Viscount Stansgate (Lab)]

My Lords, before we vote on this Motion, I invite Members to consider what the history of our country would have been like if the laws that the Government are proposing had been in place at the time. We are very proud of the development of parliamentary democracy in this country, but I can think of major occasions in the past when major change took place which was quite right and very noisy. Do you think that the Chartist demonstration that took place two miles from here at Kennington was noiseless? Were the suffragettes and suffragists who waged the campaign to give women the right to vote somehow noiseless? They were noisy. Do you think that the poll tax demonstrations were noiseless? They were noisy, and the Government of the day finally realised that it was a mistaken policy. I modestly mention to your Lordships that this legislation will unleash terrible trouble in the future. I do not know what kind or when, and I am not a barrister so I will not benefit personally from any of the legal cases that will arise, but it will cause trouble and it should not be passed.

[Baroness Williams of Trafford (Con)]

My Lords, I cannot see anyone trying to get up. If they are doing, they are probably behind me; do not encourage them. I thank all noble Lords who have taken part in this debate. I say to the noble Lord, Lord Coaker, that we always keep all legislation under review. The Minister in the other place, in saying that, was not saying anything unusual.

I am glad that I give the noble Baroness, Lady Jones of Moulsecoomb, the opportunity to vent at every piece of legislation that I bring into this House, because we are friends and I feel that it is some form of therapy for her. I do not know why she was picking out the noble Lord, Lord Pannick, for not supporting her, but that is probably a side issue that I do not know anything about. She talked about reading the public mood, and I will get on to that and the facts behind the public mood shortly; I warn her that she will not like it. About Putin’s Russia, or indeed Ukraine, I do not want to make a cheap point but I see the point about democracy. The people of Ukraine or Russia will look at this Parliament and realise how very lucky we are that we can not only argue but shout at each other and the majority wins. Noble Lords will be particularly pleased because there is generally a majority against the Government in this place.

Amendments 143A to 143C provide for the expedited public spaces protection orders. I am glad that they find favour with the noble Lord, Lord Coaker. In doing so, clearly he makes the distinction between noise generally, noisy protests and noise that is injurious to others, as evidenced by his amendments.

I welcome the noble Lord’s acceptance of the decision taken by the other place in relation to the increase in the maximum penalty for the offence of obstructing a highway as reflected in Amendment 88A. I am sorry that the noble Baroness, Lady Jones of Moulsecoomb, takes a different view, but I hope she will not press Motion H1, given that the courts are able to take into account the level of disruption when sentencing for this offence.

I know the noble Viscount, Lord Colville, is not in his place, but I want to make the point that we have had a very constructive discussion on Amendments 81 and 82. I hope that he will have heard it remotely. Like him, we want to monitor carefully the impact of Clause 58 to ensure that it does not have the unintended consequences of inhibiting large protests in the vicinity of Parliament. I was particularly struck by our conversation: when I was coming into Parliament on my bike this morning—I know noble Lords are very impressed—there was an ambulance trying to get into Parliament, and it kind of illustrated the point for me.

Amendments 73, 80 and 87 relate to the powers of the police—not the Government or the Secretary of State—to attach conditions to protests, including, in particular, in relation to the generation of noise. I know that noble Lords continue to have concerns about these provisions, and I hear that in the House today. I think they are unfounded, and I say again that the provisions do not ban noisy protests; the overwhelming majority of protests will be unaffected by these provisions. But are noble Lords really saying that any amount of noise, in any situation, at any time and for any length of time, is acceptable if it is generated by protestors? The amendments of the noble Lord, Lord Coaker, clearly demonstrate that it is not. The Government do not subscribe to this view and nor does the majority of the British public. Back to the noble Baroness, Lady Jones of Moulsecoomb: we have seen in a recent YouGov poll that 53% of respondents supported giving senior police officers powers to set noise limits on protests, compared to just 33% of respondents opposing the measure.

As I said in my opening remarks, the elected House has now endorsed the noise-related measures on two separate occasions during the passage of this Bill. They have the support of the British public that they should now be allowed to pass. I invite the House to reject Motion E1.

[Lord Coaker (Lab)]

My Lords, I thank the Minister for her reply and all noble Lords who have responded to the debate on my amendment. I do not want to detain the House because there is a lot of other business to pursue. Let me just say that the noise provision is the one we really object to. I think that, if it is passed, in a year or two years, a senior police officer will restrict a demonstration on the basis of noise. The Minister has prayed in aid public opinion in her favour. The public will ask who on earth passed legislation that means they cannot demonstrate in a democracy in their own country—who allowed that to happen? It will be this Parliament, and for that reason I press Motion E1.

16:27

Division 3

Ayes: 208

Noes: 166

16:41

Motion F

[Baroness Williams of Trafford]

Moved by

That this House do not insist on its Amendment 80 and do agree with the Commons in their Amendments 80A, 80B, 80C, 80D, 80E and 80F to the words restored to the Bill by the Commons disagreement to Lords Amendment 80.

80A: Page 48, line 40, at end insert—


““(2ZA) For the purposes of subsection (1)(a), the cases in which a public assembly


in England and Wales may result in serious disruption to the life of the community include, in particular, where—


(a) it may result in a significant delay to the supply of a time-sensitive product to consumers of that product, or


(b) it may result in a prolonged disruption of access to any essential goods or any essential service, including, in particular, access to—


(i) the supply of money, food, water, energy or fuel,


(ii) a system of communication,


(iii) a place of worship,


(iv) a transport facility,


(v) an educational institution, or (vi) a service relating to health.


(2ZB) In subsection (2ZA)(a) “time-sensitive product” means a product whose value or use to its consumers may be significantly reduced by a delay in the supply of the product to them.


(2ZC) For the purposes of subsection (1)(aa), the cases in which the noise generated by persons taking part in a public assembly may result in serious disruption to the activities of an organisation which are carried on in the vicinity of the assembly include, in particular, where it may result in persons connected with the organisation not being reasonably able, for a prolonged period of time, to carry on in that vicinity the activities or any one of them.”


80B: Page 49, line 13, leave out “make” and insert “amend any of subsections (2ZA) to (2ZC) for the purposes of making”


80C: Page 49, line 18, after “particular” insert “, amend any of those subsections for the purposes of”


80D: Page 49, line 19, leave out “define” and insert “defining”


80E: Page 49, line 21, leave out “give” and insert “giving”


80F: Page 49, line 31, at end insert “, including provision which makes consequential amendments to this Part.”

[Baroness Williams of Trafford (Con)]

My Lords, I have already spoken to Motion F and I beg to move.

Motion F1 (as an amendment to Motion F) not moved.

Motion F2 (as an amendment to Motion F)

[Lord Paddick]

Moved by

Leave out from “House” and insert “do insist on its Amendment 80, do disagree with the Commons in their Amendments 80A, 80B, 80C, 80D, 80E and 80F, and do propose Amendment 80G instead of the words so left out of the Bill—

80G: After Clause 55, insert the following new Clause—


“Imposing conditions on public assemblies

(1) Section 14 of the Public Order Act 1986 (imposing conditions on public assemblies) is amended as follows.


(2) After subsection (2) insert—


“(2A) For the purposes of subsection (1)(a), the cases in which a public assembly in England and Wales may result in serious disruption to the life of the community include, in particular, where—


(a) it may result in a significant delay to the supply of a time-sensitive product to consumers of that product, or


(b) it may result in a prolonged disruption of access to any essential goods or any essential service, including, in particular, access to—


(i) the supply of money, food, water, energy or fuel,


(ii) a system of communication,


(iii) a place of worship,


(iv) a transport facility,


(v) an educational institution, or


(vi) a service relating to health.


(2B) In subsection (2A)(a) “time-sensitive product” means a product whose value or use to its consumers may be significantly reduced by a delay in the supply of the product to them.”


(3) After subsection (10A) (as inserted by section 57(11)) insert—


“(11) The Secretary of State may by regulations amend subsection (2A) or (2B) for the purposes of making provision about the meaning for the purposes of this section of serious disruption to the life of the community.


(12) Regulations under subsection (11) may, in particular, amend either of those subsections for the purposes of—


(a) defining any aspect of that expression for the purposes of this section;


(b) giving examples of cases in which a public assembly is or is not to be treated as resulting in serious disruption to the life of the community.


(13) Regulations under subsection (11)—


(a) are to be made by statutory instrument;

(b) may apply only in relation to public assemblies in England and Wales;


(c) may make incidental, supplementary, consequential, transitional, transitory or saving provision, including provision which makes consequential amendments to this Part.


(14) A statutory instrument containing regulations under subsection (11) may not be made unless a draft of the instrument has been laid before and approved by a resolution of each House of Parliament.””

[Lord Paddick (LD)]

My Lords, because the police will otherwise have the powers to ban assemblies, I beg to move Motion F2.

16:42

Division 4

Ayes: 190

Noes: 175

16:57

Motion G

Moved by

[Baroness Williams of Trafford]

That this House do not insist on its Amendments 81 and 82, to which the Commons have disagreed for their Reasons 81A and 82A.

81A: Because it is not appropriate to enable authorisation to be given for obstruction of access to the Parliamentary Estate.


82A: Because it is not appropriate to enable authorisation to be given for obstruction of access to the Parliamentary Estate.

Motion G agreed.

Motion H

Moved by

[Baroness Williams of Trafford]

That this House do agree with the Commons in their Amendment 88A.

88A: Leave out lines 5 to 9 and insert—


“(2) In subsection (1)—


(a) after “liable to” insert “imprisonment for a term not exceeding 51 weeks or”;


(b) for “not exceeding level 3 on the standard scale” substitute “or both”.”

Motion H1 not moved.

Motion H agreed.

Motion J

Moved by

[Baroness Williams of Trafford]

That this House do not insist on its Amendments 89 and 146 and do agree with the Commons in their Amendments 146A and 146B in lieu.

146A: Page 56, line 32, at end insert the following new Clause—


“Repeal of the Vagrancy Act 1824 etc


(1) The Vagrancy Act 1824 is repealed.


(2) Subsections (3) to (7) contain amendments and repeals in consequence of subsection (1).


(3) The following are repealed— (a) the Vagrancy Act 1935;


(b) section 2(3)(c) of the House to House Collections Act 1939 (licences);


(c) section 20 of the Criminal Justice Act 1967 (power of magistrates’ court to commit on bail for sentence);


(d) in the Criminal Justice Act 1982—


(i) section 70 and the italic heading immediately before that section (vagrancy offences), and


(ii) paragraph 1 of Schedule 14 and the italic heading immediately before that paragraph (minor and consequential amendments);


(e) section 43(5) of the Mental Health Act 1983 (power of magistrates’ courts to commit for restriction order);


(f) section 26(5) of the Criminal Justice Act 1991 (alteration of certain penalties);


(g) in the Criminal Justice Act 2003—


(i) paragraphs 1 and 2 of Schedule 25 and the italic heading immediately before those paragraphs (summary offences no longer punishable with imprisonment), and


(ii) paragraphs 145 and 146 of Schedule 32 and the italic heading immediately before those paragraphs (amendments relating to sentencing);


(h) paragraph 18 of Schedule 8 to the Serious Organised Crime and Police Act 2005 (powers of accredited persons).


(4) In section 81 of the Public Health Acts Amendment Act 1907 (extending definition of public place and street for certain purposes), omit the words from “shall”, in the first place it occurs, to “public place, and”.


(5) In section 48(2) of the Forestry Act 1967 (powers of entry and enforcement), omit “or against the Vagrancy Act 1824”.


(6) In the Police Reform Act 2002—


(a) in Schedule 3C (powers of community support officers and community support volunteers)—


(i) omit paragraph 3(3)(b), (ii) omit paragraph 7(3), (iii) in paragraph 7(4), omit “or (3)”, and (iv) in paragraph 7(7)(a), omit “or (3)”, and


(b) in Schedule 5 (powers exercisable by accredited persons), omit paragraph 2(3)(aa).


(7) In the Sentencing Code—


(a) in section 20(1) (committal in certain cases where offender committed in respect of another offence)—(i) at the end of paragraph (e), insert “or”, and


(ii) omit paragraph (g) (and the “or” immediately before it), and


(b) omit section 24(1)(f) (further powers to commit offender to the Crown Court to be dealt with).


(8) The amendments and repeals made by this section do not apply in relation to an offence committed before this section comes into force.”


146B: Page 194, line 22, after “61” insert “, (Repeal of the Vagrancy Act 1824 etc)”

[Lord Best (CB)]

My Lords, I hope the House will indulge me if I say a few concluding words about Motion J on the repeal of the Vagrancy Act, with my sincere apologies that I failed to speak during the earlier debate. I welcome the Commons Amendments 146A and 146B in lieu of Lords Amendments 89 and 146, which were passed by your Lordships on 17 January. The Commons version covers the same ground as our amendments and will finally repeal the notorious Vagrancy Act 1824. This means that being homeless and sleeping rough will no longer make you a criminal.

17:00

The repeal sends out the message that times have indeed changed, and that we all recognise today that, if you are sleeping on the pavement or in a doorway, you need to be helped and supported, not persecuted and branded a criminal. The old Act has deterred people who are homeless, and likely to be the victims of crime, bullying and vile harassment, from seeking the protection of the law and receiving the assistance which they need. All that will now be consigned to the history books.

As always, however, things are not exactly as we would wish them. There is to be a delay in implementing the repeal, as the Minister explained this morning. This is to allow a review to see if there are any ingredients in the Vagrancy Act that should be retained by incorporating them into other legislation. There will now be some delay while this review proceeds. However, Ministers have put a longstop of 18 months for this section to come into force, and for the repeal to take effect, and I think everyone concerned hopes, and expects, that a much shorter timescale can be achieved.

I am delighted to congratulate the Minister and privy counsellor, the noble Baroness, Lady Trafford, who has worked with Eddie Hughes MP, the Minister for Rough Sleeping and Housing, to achieve this positive outcome. I also congratulate Matt Downie of Crisis, who led the charities campaigning for this result, as well as the steadfast supporters in the other place. Special thanks are due to the Lords team, the noble Baronesses, Lady Thornhill and Lady Chakrabarti, the noble and learned Lord, Lord Falconer of Thoroton, and especially the noble Lord, Lord Young of Cookham. Last but not least, I sincerely thank all noble Peers who stayed up late to vote for our amendment long past midnight. Their effort has led directly to this milestone in housing history. I support the Commons amendments in lieu.

Motion J agreed.

Motion K

Moved by

[Baroness Williams of Trafford]

That this House do not insist on its Amendment 107, to which the Commons have disagreed for their Reason 107A.

107A: Because the amendment is unnecessary as there is no legal barrier to local authorities setting up and running academies.

Motion K agreed.

Motion L

Moved by

[Baroness Williams of Trafford]

That this House do not insist on its Amendments 114, 115 and 116 and do agree with the Commons in their Amendments 116A and 116B in lieu.

116A: Page 137, line 5, at end insert—


“(3A) A report under subsection (3) must in particular include—


(a) information about the number of offenders in respect of whom serious violence reduction orders have been made;


(b) information about the offences that were the basis for applications as a result of which serious violence reduction orders were made;


(c) information about the exercise by constables of the powers in section 342E of the Sentencing Code (serious violence reduction orders: powers of constables);


(d) an assessment of the impact of the operation of Chapter 1A of Part 11 of the Sentencing Code on people with protected characteristics (within the meaning of the Equality Act 2010);


(e) an initial assessment of the impact of serious violence reduction orders on the reoffending rates of offenders in respect of whom such orders have been made;


(f) an assessment of the impact on offenders of being subject to a serious violence reduction order;


(g) information about the number of offences committed under section 342G of the Sentencing Code (offences relating to a serious violence reduction order) and the number of suspected offences under that section that have been investigated.”


116B: Page 137, line 22, after “section” insert—


“serious violence reduction order” has the same meaning as in Chapter 1A of Part 11 of the Sentencing Code (see section 342B of the Sentencing Code);”

Motion L agreed.

Motion M

Moved by

[Baroness Williams of Trafford]

That this House do not insist on its Amendments 141 and 142, to which the Commons have disagreed for their Reasons 141A and 142A.

141A: Because conduct requiring or arranging sexual relations as a condition of accommodation may already constitute an offence under the Sexual Offences Act 2003 and the Government is committed to undertaking a consultation on whether the law in respect of such conduct needs to be strengthened.


142A: Because conduct requiring or arranging sexual relations as a condition of accommodation may already constitute an offence under the Sexual Offences Act 2003 and the Government is committed to undertaking a consultation on whether the law in respect of such conduct needs to be strengthened.

Motion M agreed.

Motion N

Moved by

[Baroness Williams of Trafford]

That this House do not insist on its Amendment 143 and do agree with the Commons in their Amendments 143A, 143B and 143C in lieu.

143A Page 56, line 32, at end insert—


“Expedited public spaces protection orders


(1) The Anti-social Behaviour, Crime and Policing Act 2014 is amended as follows.


(2) After section 59 insert—


“59A Power to make expedited public spaces protection orders


(1) A local authority may make an expedited public spaces protection order (an “expedited order”) in relation to a public place within the local authority’s area if satisfied on reasonable grounds that three conditions are met.


(2) The first condition is that the public place is in the vicinity of—


(a) a school in the local authority’s area, or


(b) a site in the local authority’s area where, or from which—


(i) vaccines are provided to members of the public by, or pursuant to arrangements with, an NHS body, or (ii) test and trace services are provided.


The reference in paragraph (b)(i) to arrangements includes arrangements made by the NHS body in the exercise of functions of another person by virtue of any provision of the National Health Service Act 2006.


(3) The second condition is that activities carried on, or likely to be carried on, in the public place by one or more individuals in the course of a protest or demonstration have had, or are likely to have, the effect of—


(a) harassing or intimidating members of staff or volunteers at the school or site,


(b) harassing or intimidating persons using the services of the school or site,


(c) impeding the provision of services by staff or volunteers at the school or site, or


(d) impeding access by persons seeking to use the services of the school or site.


(4) The third condition is that the effect or likely effect mentioned in subsection (3)—


(a) is, or is likely to be, of a persistent or continuing nature,


(b) is, or is likely to be, such as to make the activities unreasonable, and


(c) justifies the restrictions imposed by the order.


(5) An expedited order is an order that identifies the public place referred to in subsection (1) (“the restricted area”) and— (a) prohibits specified things being done in the restricted area,


(b) requires specified things to be done by persons carrying on specified activities in that area, or (c) does both of those things.


(6) The only prohibitions or requirements that may be imposed are ones that are reasonable to impose in order—


(a) to prevent the harassment, intimidation or impediment referred to in subsection (3) from continuing, occurring or recurring, or


(b) to reduce that harassment, intimidation or impediment or to reduce the risk of its continuance, occurrence or recurrence.


(7) A prohibition or requirement may be framed—


(a) so as to apply to all persons, or only to persons in specified categories, or to all persons except those in specified categories;


(b) so as to apply at all times, or only at specified times, or at all times except those specified;


(c) so as to apply in all circumstances, or only in specified circumstances, or in all circumstances except those specified.


(8) An expedited order must—


(a) identify the activities referred to in subsection (3);


(b) explain the effect of section 63 (where it applies) and section 67;


(c) specify the period for which the order has effect.


(9) An expedited order may not be made in relation to a public place if that place (or any part of it) is or has been the subject of an expedited order (“the earlier order”), unless the period specified in subsection (11) has expired.


(10) In subsection (9) the second reference to “an expedited order” is to be read as including a reference to a public spaces protection order (made after the day on which this section comes into force) which neither prohibited nor required anything that could not have been prohibited or required by an expedited order.


(11) The period specified in this subsection is the period of a year beginning with the day on which the earlier order ceased to have effect.


(12) An expedited order must be published in accordance with regulations made by the Secretary of State.


(13) For the purposes of subsection (2), a public place that is coextensive with, includes, or is wholly or partly within, a school or site is regarded as being “in the vicinity of” that school or site.


(14) In this section references to a “school” are to be read as including a 16 to 19 Academy.


(15) In this section “test and trace services” means—


(a) in relation to England, services of the programme known as NHS Test and Trace;


(b) in relation to Wales, services of the programme known as Test, Trace, Protect.”


(3) After section 60 insert—


“60A Duration of expedited orders


(1) An expedited order may not have effect for a period of more than 6 months.


(2) Subject to subsection (1), the local authority that made an expedited order may, before the time when the order is due to expire, extend the period for which the order has effect if satisfied on reasonable grounds that doing so is necessary to prevent—


(a) occurrence or recurrence after that time of the activities identified in the order, or


(b) an increase in the frequency or seriousness of those activities after that time.


(3) Where a local authority has made an expedited order, the authority may, at any time before the order is due to expire, reduce the period for which the order is to have effect if satisfied on reasonable grounds that the reduced period will be sufficient having regard to the degree of risk of an occurrence, recurrence or increase such as is mentioned in subsection (2)(a) or (b).


(4) An extension or reduction under this section of the period for which an order has effect must be published in accordance with regulations made by the Secretary of State.


(5) An expedited order may be extended or reduced under this section more than once.”


(4) After section 72 insert—


“72A Expedited orders: Convention rights and consents


(1) A local authority, in deciding—


(a) whether to make an expedited order (under section 59A) and if so what it should include,


(b) whether to extend or reduce the period for which an expedited order has effect (under section 60A) and if so by how much,


(c) whether to vary an expedited order (under section 61) and if so how, or


(d) whether to discharge an expedited order (under section 61), must have particular regard to the rights of freedom of expression and freedom of assembly set out in articles 10 and 11 of the Convention.


(2) In subsection (1) “Convention” has the meaning given by section 21(1) of the Human Rights Act 1998.


(3) A local authority must obtain the necessary consents before—


(a) making an expedited order,


(b) extending or reducing the period for which an expedited order has effect, or


(c) varying or discharging an expedited order.


(4) If the order referred to in subsection (3) was made, or is proposed to be made, in reliance on section 59A(2)(a), “the necessary consents” means the consent of—


(a) the chief officer of police for the police area that includes the restricted area, and


(b) a person authorised (whether in specific or general terms) by the appropriate authority for the school or 16 to 19 Academy.


(5) If the order referred to in subsection (3) was made, or is proposed to be made, in reliance on section 59A(2)(b), “the necessary consents” means the consent of—


(a) the chief officer of police for the police area that includes the restricted area, and


(b) a person authorised by the appropriate NHS authority.


(6) In this section—


“appropriate authority” means—


(a) in relation to a school maintained by a local authority, the governing body;


(b) in relation to any other school or a 16 to 19 Academy, the proprietor;


“appropriate NHS authority” means—


(a) if the order was made, or is proposed to be made, in reliance on sub-paragraph (i) of section 59A(2)(b), the NHS body mentioned in that sub-paragraph;


(b) if the order was made, or is proposed to be made, in reliance on sub-paragraph (ii) of section 59A(2)(b) and the site is in England, the UK Health Security Agency;


(c) if the order was made, or is proposed to be made, in reliance on that sub-paragraph and the site is in Wales, the Local Health Board for the area in which the site is located.


(7) In this section “proprietor”, in relation to a school or a 16 to 19 Academy, has the meaning given in section 579(1) of the Education Act 1996.


72B Consultation and notifications after making expedited order


(1) A local authority must carry out the necessary consultation as soon as reasonably practicable after making an expedited order.


(2) In subsection (1) “necessary consultation” means consulting with the following about the terms and effects of the order—


(a) the chief officer of police, and the local policing body, for the police area that includes the restricted area;


(b) whatever community representatives the local authority thinks it appropriate to consult;


(c) the owner or occupier of land within the restricted area.


(3) A local authority must carry out the necessary notification (if any) as soon as reasonably practicable after—


(a) making an expedited order,


(b) extending or reducing the period for which an expedited order has effect, or


(c) varying or discharging an expedited order.


(4) In subsection (3) “necessary notification” means notifying the following of the extension, reduction, variation or discharge—


(a) the parish council or community council (if any) for the area that includes the restricted area;


(b) in the case of an expedited order made by a district council in England, the county council (if any) for the area that includes the restricted area;


(c) the owner or occupier of land within the restricted area.


(5) The requirement to notify the owner or occupier of land within the restricted area—


(a) does not apply to land that is owned or occupied by the local authority;


(b) applies only if, and to the extent that, it is reasonably practicable to notify the owner or occupier of the land.”


(5) Schedule (Expedited public spaces protection orders) contains amendments relating to subsections (1) to (4).”


143B: Page 220, line 15, at end insert the following new Schedule—


“SCHEDULE


EXPEDITED PUBLIC SPACES PROTECTION ORDERS


1 The Anti-social Behaviour, Crime and Policing Act 2014 is amended as follows.


2 In the heading of Chapter 2 of Part 4, at the end insert “and expedited orders”.


3 In the italic heading before section 59, at the end insert “and expedited orders”.


4 In the heading of section 59 (power to make orders), before “orders” insert “public spaces protection”.


5 In the heading of section 60 (duration of orders), after “of” insert “public spaces protection”.


6 (1) Section 61 (variation and discharge of orders) is amended as follows.


(2) In subsection (1), in the words before paragraph (a), after “protection order” insert “or expedited order”.


(3) In subsection (2), for “make a variation under subsection (1)(a)” substitute “under subsection (1)(a) make a variation to a public spaces protection order”.


(4) After subsection (2) insert—


“(2A) A local authority may under subsection (1)(a) make a variation to an expedited order that results in the order applying to an area to which it did not previously apply only if the conditions in section


59A(2) to (4) are met as regards that area.”


(5) In subsection (3), after “59(5)” insert “or 59A(6) (as the case may be)”.


(6) In subsection (4), after “order” insert “or expedited order”.


7 (1) Section 62 (premises etc to which alcohol prohibition does not apply) is amended as follows.


(2) In subsection (1), in the words before paragraph (a), after “order” insert “or expedited order”.


(3) In subsection (2), in the words before paragraph (a), after “order” insert “or an expedited order”.


8 In section 63 (consumption of alcohol in breach of prohibition order), in subsection (1)—


(a) in paragraph (a), after “order” insert “or an expedited order”;


(b) in the words after paragraph (b) omit “public spaces protection”.


9 (1) Section 64 (orders restricting public right of way over highway) is amended as follows.


(2) In subsection (1), in the words before paragraph (a), after “order” insert “or expedited order”.


(3) After subsection (1) insert—


“(1A) Before making a public spaces protection order that restricts the public right of way over a highway, a local authority must take the prior consultation steps (see subsection (2)).


(1B) A local authority may not make an expedited order that restricts the public right of way over a highway unless it—


(a) takes the prior consultation steps before making the order, or


(b) takes the subsequent consultation steps (see subsection (2A)) as soon as reasonably practicable after making the order.”


(4) In subsection (2), for the words from “Before” to “must” substitute “To take the “prior consultation steps” in relation to an order means to”.


(5) After subsection (2) insert—


“(2A) To take the “subsequent consultation steps” in relation to an expedited order means to—


(a) notify potentially affected persons of the order,


(b) invite those persons to make representations within a specified period about the terms and effects of the order,


(c) inform those persons how they can see a copy of the order, and


(d) consider any representations made.


The definition of “potentially affected persons” in subsection (2) applies to this subsection as if the reference there to “the proposed order” were to “the order”.”


(6) After subsection (3) insert—


“(3B) Where a local authority proposes to make an expedited order restricting the public right of way over a highway that is also within the area of another local authority it must, if it thinks appropriate to do so, consult that other authority before, or as soon as reasonably practicable after, making the order.”


(7) In subsections (4), (5), (6), (7) and (8), after “order” insert “or expedited order”.


10 In section 65 (categories of highway over which public right of way may not be restricted), in subsection (1), in the words before paragraph (a), after “order” insert “or an expedited order”.


11 (1) Section 66 (challenging validity of orders) is amended as follows.


(2) In subsections (1) and (6), after “public spaces protection order”, in each place it occurs, insert “or an expedited order”.


(3) In subsection (7), in the words before paragraph (a)—


(a) after “order”, in the first place it occurs, insert “or an expedited order”;


(b) for “a public spaces protection”, in the second place it occurs, substitute “such an”.


12 (1) Section 67 (offence of failing to comply with order) is amended as follows.


(2) In subsections (1) and (4), after “order”, in each place it occurs, insert “or an expedited order”.


(3) In subsection (3), after “order” insert “or expedited order”.


13 (1) Section 68 (fixed penalty notices) is amended as follows.


(2) In subsection (1), at the end insert “or an expedited order”.


(3) In subsection (3), at the end insert “or expedited order”.


14 In section 70 (byelaws), after “protection order” insert “or an expedited order”.


15 (1) Section 71 (bodies other than local authorities with statutory functions in relation to land) is amended as follows.


(2) In subsections (3) to (5), after “public spaces protection order”, in each place it occurs, insert “or an expedited order”.


(3) In subsection (6)—


(a) in paragraph (a), after “order” insert “or expedited order”;


(b) in paragraph (b)(i), after “order” insert “, or an expedited order,”.


16 In the heading of section 72 (Convention rights, consultation, publicity and notification), at the beginning insert “Public spaces protection orders:”


17 (1) Section 74 (interpretation of Chapter 2 of Part 4) is amended as follows.


(2) In subsection (1)—


(a) at the appropriate places insert—


““16 to 19 Academy” has the meaning given by section 1B of the Academies Act 2010;”;


““expedited order” has the meaning given by section 59A(1);”;


““Local Health Board” means a Local Health Board established under section 11 of the National Health Service (Wales) Act 2006;”;


““NHS body” has the meaning given in section 275 of the National Health Service Act 2006;”;


““school” has the meaning given by section 4 of the


Education Act 1996.”;


(b) for the definition of “restricted area” substitute—


““restricted area”—


(a) in relation to a public spaces protection order, has the meaning given by section 59(4);


(b) in relation to an expedited order, has the meaning given by section 59A(5).”


(3) After subsection (2) insert—


“(3) For the purposes of this Chapter, an expedited order “regulates” an activity if the activity is—


(a) prohibited by virtue of section 59A(5)(a), or


(b) subjected to requirements by virtue of section 59A(5)(b), whether or not for all persons and at all times.””


143C: Page 195, line 27, at end insert—


“(ka) section (Expedited public spaces protection orders) for the purposes of making regulations;”

Motions N agreed.

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

Let us take a moment or two to clear the Chamber before we move onto the next piece of business.

Dissolution and Calling of Parliament Bill

Consideration of Commons amendments
Tuesday 22nd March 2022 Lords Chamber

Commons Reason

17:02

Motion

Moved by

[Lord True]

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

1A: Because the Commons do not consider it appropriate that the dissolution of Parliament should be subject to a vote in the Commons.

[The Minister of State, Cabinet Office (Lord True) (Con)]

My Lords, with the leave of the House, I will briefly remind your Lordships of where we find ourselves. Your Lordships’ House amended the Bill, which had been passed by the other place, to give the Commons the right to a veto on dissolution and invited the other place to reconsider its decision. As the noble and learned Lord, Lord Judge, told us, the amendment would offer the House of Commons an opportunity to reflect again on this highly important constitutional Bill.

It has now been considered by the other place again, and the Commons unsurprisingly maintained its previous decision. During the discussion in the other place, Members noted the flaws of a prescriptive system and feared that it would recreate the paralysis of the 2019 Parliament—something that the manifestos of both major parties at the last general election said they wished to avoid. Furthermore, the importance of retaining the flexible nature of the constitution was emphasised.

Your Lordships asked the other place to consider its role, as is your Lordships’ right. For a second time it has done so, and it has decisively rejected a Commons veto, placing its trust, as do the Government, in the constitutional practices that served this country well for generations before the failed experiment of the Fixed-term Parliaments Act. The Government agree with the view of the other place: the amendment would undermine the rationale of the Bill.

We are now within reach of securing important and historic legislation and delivering the manifesto commitment of two political parties—and notably, from my point of view, of the Government. The Bill returns us to the status quo ante, revives the prerogative powers for the Dissolution and calling of Parliament, and preserves the long-standing position on the non-justiciability of these powers.

I thank all noble Lords for their important engagement in the passage of this Bill, which was valued by me and the Government. It deepened reflection on the Bill and the principles behind it. However, I would be grateful if your Lordships now accepted the clear decision of the other place, which, as the reason before us today notes, is that

“the Commons do not consider it appropriate that the dissolution of Parliament should be subject to a vote in the Commons.”

That is a very clear message from the other House, and I urge your Lordships not to insist on their amendment.

[Lord Judge (CB)]

My Lords, after a short debate in the other place, the amendment proposed by this House was disagreed, and here we are today. There is still an issue: we believe the Dissolution of Parliament should not be based on the revival of the prerogative, but the other place takes a different view. The other place is the elected Chamber. As I made clear during the debate, this issue was to be decided not by Parliament as a whole but by the other place because that is the elected Chamber. It has spoken. I stand by the undertaking I gave during the debate, and therefore this must be carried.

In doing so—I think I am allowed to say this—I very much hope that, in the long march of the future, it will turn out that the decision of the House of Commons is vindicated. I really do hope that. I would like to think that I will be right, but I still do not have confidence that we can be sure that no future Prime Minister will misuse or abuse this power. We will therefore have to wait for the future to decide who, in truth, was right on the issue.

[Lord Lansley (Con)]

My Lords, I hope we are all agreed that we should not insist on the amendment that we passed on the previous occasion. However, we were right to ask the other place to think again. Indeed, even though it was a relatively short debate, and programmed as such, it was an opportunity for a number of Members to think again—if not necessarily to change their minds, at least to reflect on the nature of the decision that was being made. For example, Jackie Doyle-Price said:

“In building legislation that will last, we need to ensure that we have sufficient, adequate checks so that any Prime Minister will not abuse their position.”


Kevin Brennan asked a very interesting question, which we raised here:

“What would happen where the Prime Minister of a minority Government wished to call a general election, but there was the possibility of an alternative Government being formed? Would that Prime Minister be able to dissolve Parliament by prerogative in those circumstances, or would another person be given an opportunity to form a Government and a majority in the House of Commons?”—[Official Report, Commons, 14/3/22; cols. 647 and 643.]


Of course, the answer is that such a person may be given such an opportunity but that would be by the exercise of the discretion of the sovereign, which would draw the sovereign back into decision-making—something we were all agreed that we wanted to avoid.

The point is that our amendment was intended to raise these issues but not in any sense to undermine the manifesto commitments of the two main parties to repeal the Fixed-term Parliaments Act. However, the manifestos did not say how the Act was to be replaced.

The Government have settled to their satisfaction that the constraint of Parliament upon the prerogative power is to be removed, but they have not settled the question of whether the sovereign might continue to be drawn into Dissolution decisions. It is unfortunately likely that, if there were to be another coalition—I speak as a former Minister in a coalition Government—this issue will resurface; it is bound to do so. Like the noble and learned Lord, Lord Judge, I hope that we will be proved wrong and the Government proved right.

In such important constitutional legislation—the Government are fortunate in having my noble friend on the Front Bench to steward it in this place—we should be looking for consensus and certainty. I am not sure that this Bill has achieved that. None the less, I hope that the Bill will succeed in its objectives.

[Lord Grocott (Lab)]

My Lords, we should not let this moment pass without reminding ourselves of precisely what a bizarre set of circumstances we find ourselves in. I remind the House that the Lords amendment that we sent to the Commons says:

“The powers referred to in subsection (1)”


—that is, the power to dissolve Parliament—

“shall not be exercised unless the House of Commons passes a motion in the form set out in subsection (1B).”

In other words, very simply, this unelected House is saying to the elected House that, while it is none of our business, we think the House of Commons should have something to say about whether the House of Commons should be dissolved and the electorate consulted. I hope that, at some point in the future, the Commons reason for disagreeing with this House will be printed word for word in Erskine May, as follows:

“The Commons disagree to Lords Amendment 1 for the following Reason—Because the Commons do not consider it appropriate that the dissolution of Parliament should be subject to a vote in the Commons.”


Imagine if we substituted “the Dissolution of Parliament” for, say, something that we are going to debate in another Bill tomorrow—“the electoral system”. This is our constitution. It is not any old Bill but the rules of the game. Could we have an amendment in future saying that the Commons disagrees with the Lords in an amendment on the electoral system, on the basis that the Commons does not consider it appropriate that the electoral system should be subject to a vote in the House of Commons? That could apply to any other aspect of our constitution.

I feel pretty confident in saying that there has never been anything quite like this. As we have said time and time again, the whole development of our parliamentary democracy has been a slow transference of power from the monarch/Executive to the elected House of Commons; yet this particular Commons, elected just two years ago, is saying that whether or not there is an election is not anything to do with it. Ultimately, this entrenches the possibility of the monarch becoming profoundly and deeply involved in politics and in an acutely political decision: whether there should be a general election—there is no bigger decision than that. The House of Commons feels that it should not have any say in that whatever, and it should ultimately be a decision for the monarch.

I encourage those who revise Erskine May to make sure that this stunning reason on Dissolution appears somewhere in the text of that great tome. I am sure that it has never happened before. I think it is absolutely bizarre of the Commons to say that it does not want anything to do with this.

17:15

[Lord Butler of Brockwell (CB)]

My Lords, I have mixed feelings on this occasion. As the House may remember from my remarks on Report, I always thought that our amendment to the Bill that we passed back to the Commons was a second best. I also regret, as the noble Lord has just said, that the monarch should be left as the only protection against the misuse of the prerogative power to ask for a Dissolution of Parliament. I wish that we had decided not to pass the amendment that we did but instead had removed Clause 3 from the Bill, but we did not. I hope that no trouble will come from this, but I fear that it could.

[Lord Cormack (Con)]

My Lords, I fear that if we had removed Clause 3, although I was very sympathetic to that line of argument, as the noble Lord knows, we would have had the same result. The Commons, whipped, would have sent back the Bill with Clause 3 reinserted. We should not delude ourselves.

Both noble Lords on the Cross Benches performed a signal service. It was right that the noble and learned Lord, Lord Judge, should take the initiative that he did. I supported him then, and I would support him again, but not tonight, because we both made it plain, as did others, that this had to be the decision of the House of Commons. I think Members have made an unfortunate and potentially dangerous decision, bearing in the mind the delicate position of the monarch. I am very sorry they have deleted the wisdom that we inserted into the Bill. But it has, and there for the moment is an end to it.

[Lord Newby (LD)]

My Lords, I echo the sentiments of the noble Lord, Lord Grocott. This is a bizarre situation, in that we said to the House of Commons, “We think, O House of Commons, that you ought to have a bit more power on one of the most important acts of the political calendar; namely, the calling of an election.” It is an act, of course, which affects every one of them intimately whereas it affects us not at all. They have said, “It’s very kind of you to suggest that we have more power, but, actually, we don’t want it.” That seems bizarre and surprising, but if the Commons in their collective wisdom decide that they would rather the Queen retain a power than that they be given one which we have very generously offered to them, it seems churlish of us to insist on it. Therefore, I do not propose that we do.

[Baroness Smith of Basildon (Lab)]

My Lords, we laugh, and in some ways, it is amusing. It is also extraordinary—I am not sure that it is amusing. The Fixed-term Parliaments Act was an Act of its time whose main purpose was to protect the coalition Government, and it succeeded in that to a degree. I was very disappointed to read the response of Ministers in the other place. It seemed to focus on the argument that because all parties agreed that the Fixed-term Parliaments Act must go, there was only one way of doing it. That seemed an extraordinary proposition to make. On the points made by my noble friend Lord Grocott and the noble Lord, Lord Newby, this House had no vested interest whatever in the amendment that it passed. It sought to do so in the interests of the democratic system. The Government’s preferred option was one that we found quite extraordinary.

We enjoy in our Parliament a system of checks and balances in the democratic system. For those of us who do not consider that the Prime Minister alone should decide on the election, there seem to be three alternatives: first, that the courts intervene, which the majority of your Lordships’ House found unacceptable, although I take the point of the noble Lord, Lord Butler; secondly, as the noble Lord, Lord Lansley, said, that the monarchy would be drawn into that decision-making process, which we would all seek to avoid—I was glad that he quoted both Jackie Doyle-Price and Kevin Brennan, because I thought the points they made in the House of Commons were very pertinent; finally, that Parliament should have an opportunity to be engaged in that decision.

Those of my age who remember Wolfie Smith in “Citizen Smith” will have heard “Power to the people”; the Minister said, “Let us hand power back to the people”, but the Government are actually handing power back to the Prime Minister. There was never any difficulty in the election process—there was always going to be a general election—it is about who decides on the election. The Minister probably watched too much bad TV in his younger days. I find it extraordinary that the House of Commons was prepared to give up that power so easily.

I agree that, as the other place—albeit its majority being the Government’s majority—does not wish to pursue this, there is little point in our asking it to reconsider. However, I repeat a question that my noble friend Lord Collins asked the Minister in Oral Questions yesterday, which he sort of answered in the affirmative. The Fixed-term Parliaments Act was a prime example of legislation being passed for one particular purpose without a great deal of thought, and it has had to be undone for all the reasons we know. Legislation made too quickly for a specific circumstance does not protect the constitution in any way. I hope the Minister will agree with me that constitutional change needs much more careful examination of long-term and unintended consequences. We have got ourselves into a right pickle over this one. Does he accept that, when looking at any significant constitutional change, a period of pre-legislative scrutiny and consultation would provide for better legislation at the end of the day?

But for now, bizarre as the decision made by the other place may seem, we do not intend to pursue this further.

[Lord True (Con)]

My Lords, I thank all noble Lords who have spoken. I say to the noble Baroness that this Bill did receive detailed pre-legislative scrutiny; it was considered by a Joint Committee of both Houses and Ministers were scrutinised by committees in both Houses. Ministers in both Houses—I have had some small endeavour in this—have engaged actively with interested Members during the Bill. That is a contrast—perhaps this was the point the noble Baroness was making—to what happened in 2011 when the Fixed-term Parliaments Act was cobbled together in back rooms, as we learn about in the memoirs of Mr David Laws.

[Baroness Smith of Basildon (Lab)]

Just to help the Minister, that is exactly the point I was making about the Fixed-term Parliaments Act not having proper scrutiny and getting us into the position we are in now.

[Lord True (Con)]

I was agreeing with the noble Baroness on that. The Fixed-term Parliaments Act was an aberration from 2011 to 2022. Some noble Lords have expressed shock that the House of Commons would wish to return to an arrangement which endured for generations. I do not share that shock.

The noble Lord, Lord Grocott, who was a ferocious opponent of the Fixed-term Parliaments Act—I agreed with him profoundly on this—said he was surprised that the House of Commons responded in the way it did. I read out to the House its reason in my opening remarks. Your Lordships asked the Commons a specific question on the Dissolution Bill: did it want a veto on this Dissolution measure? The House of Commons has replied specifically to that question in its reason. That does not in any way detract from the powers of the House of Commons either to bring down a Government through withdrawing confidence or to sustain one. That remains one of its fundamental powers, which can promote a Dissolution and a general election.

I agree with those who said there is an abiding need to avoid the sovereign being drawn into politics. That principle is accepted by all people, I think, at every level of politics; it has been and will remain the case, as was set out in the Dissolution principles.

It was proposed that the Commons should have a vote, and the Commons has clearly rejected the proposal. I am grateful that noble Lords—albeit it in a mildly chiding way in some cases—have accepted that. I am grateful to the noble and learned Lord, Lord Judge, for not pressing his amendment. I did not chide the House in any way on the role it played—I respect that role—but I think we should show respect for the decision of the Commons in our words and deeds now.

I thank noble Lords for all the points made in the debate. I hope we can now proceed, and I beg to move.

Motion agreed.

Metropolitan Police: Strip-search of Schoolgirl

Tuesday 22nd March 2022 Lords Chamber

Commons Urgent Question

The following Answer to an Urgent Question was given in the House of Commons on Monday 21 March.

“The City and Hackney Safeguarding Children Partnership report into the strip-search of a 15-year-old schoolgirl while at school by police officers in 2020 is both troubling and deeply concerning. This experience will have been traumatic for the child involved; the impact on her welfare should not be underestimated.

The Government and the public rightly expect the highest standards from our police officers. The ability of the police to perform their core functions is dependent on their capacity to secure and maintain public confidence and support for their actions. While the Metropolitan police have apologised for their actions and recognised that this incident should never have happened, the force’s culture has again come under scrutiny.

Members of the public must be treated fairly and without prejudice, no matter their race, age or background. Strip-search is one of the most intrusive powers available to the police. The law is very clear that the use of police powers to search must be fair, respectful and without unlawful discrimination. Any use of strip-search should be carried out in accordance with the law and with full regard to the welfare and dignity of the individual being searched, particularly if that individual is a child. If police judge it operationally necessary to strip-search a child, they must do so in the presence of the child’s appropriate adult.

It is the role of the independent police watchdog, the Independent Office for Police Conduct, to investigate serious matters involving the police, and the IOPC says it has been investigating the actions of the Metropolitan police in this case. We must let the IOPC conclude its work. We will of course expect any findings to be acted on swiftly, but it is vital that we do not prejudge the IOPC’s investigations or prejudice due process, so it would be wrong of me to make any further comment on the case in question at this time.”

17:26

[Lord Coaker (Lab)]

My Lords, we are all, frankly, utterly appalled by the sickening details of the strip-search of Child Q, a 15-year-old black schoolgirl, a child, at a Hackney secondary school in 2020—an absolute disgrace.

How was it that existing guidance failed to prevent police officers undertaking this shocking strip-search? The Government have said there is to be a review of the incident and the guidance, but when will this be finished? How many such strip-searches have there been across the country? What is in place to protect children now?

Jim Gamble’s review concluded that the search was unjustified and that racism was likely to have been a factor. What is the ethnic breakdown of strip-searches conducted in the Metropolitan Police area and across the country? How on earth are we going to change this culture of racism, and soon? Child Q said:

“I need to know that the people who have done this to me can’t do it to anyone else ever again.”


Can the Minister assure Child Q, this Chamber and the country at large, of that?

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

First, I join the noble Lord, Lord Coaker, in expressing my disgust at what has happened to a child—and at school, no less. He is absolutely right to ask the questions he has asked.

I understand that the review by the IOPC, which I assume he is referring to, will be done at pace. His question on the collection of data is also absolutely the right question to ask. What are we doing now? I understand that from December this year, we will be including more detailed custody data in the annual police powers and procedure statistical bulletin. It will include the number of persons, including children, detained in police custody, broken down by age, gender, ethnicity and offence type. It will include the number of children detained in custody overnight, whether pre-charge or post-charge, broken down by age, gender, ethnicity and offence type. In fact, the noble Lord will recall that some time ago we banned the detention of children in custody, so I hope that figure comes out as nought.

Crucially, on the question of whether an appropriate adult was called out for a detained child, the review has yet to report but on the face of it, that does not appear to have been the case here. In the case of a detained adult who was declared vulnerable, and regarding the question whether an appropriate was adult called out, there is the time taken for an appropriate adult to arrive and the number of strip-searches carried out, broken down by age, gender, ethnicity and offence type. I am sure that all noble Lords and the other place will be very interested to hear those statistics, and I hope that is helpful at this stage to the noble Lord.

[Lord Paddick (LD)]

My Lords, the police strip search of a young black woman, legally a child, in her own school in the absence of an appropriate adult on the basis of her allegedly smelling of cannabis is clearly disproportionate and unacceptable, even if a teacher called the police. Have the officers been suspended, or at least removed from duties involving contact with the public? Have the Government found anyone in the Metropolitan Police who has said that a strip-search in these circumstances must never happen again? As a former Metropolitan Police officer, I am disgusted, appalled and ashamed.

[Noble Lords]

Hear, hear!

[Baroness Williams of Trafford (Con)]

My Lords, on the latter question, the outcome of that will be forthcoming in the review undertaken by the IOPC. In terms of police and the interface with vulnerable people and children, it is essential that front-line police recognise vulnerability in children and young people regardless of the circumstances around any interaction. We have funded various training programmes for social workers, health professionals, police and safeguarding leads in schools, and the Home Office-funded National Policing Vulnerability Knowledge and Practice Programme shares the very best practice across forces. As I say, on the noble Lord’s latter question, that is for the IOPC to conclude in its investigation, which I understand has almost finished.

[Baroness Chakrabarti (Lab)]

My Lords, I note that your Lordships are rightly concerned about data and evidence gathering, which we need to do in any problem-solving exercise. But as my noble friend Lady Lawrence of Clarendon said just yesterday, what evidence do we need after all these years—I would add, after recent years in particular—that we have a problem with police culture? It is not just an issue of data; it is an issue of culture, leadership and, I would say, law. We have just passed sometimes controversial police legislation, and the broader the power, the greater the discretion. If there are, as there always are, because humans are human—

[Noble Lords]

Question!

[Baroness Chakrabarti (Lab)]

Thank you for that. If there are questions of discretion, there will be questions of abuse of power. What were the teachers doing when this happened? What instructions will be given to the new appointee to the Metropolitan Police? What will we do about future broad powers before we hand blank cheques to the police?

[Baroness Williams of Trafford (Con)]

I will try to answer those questions rapidly because I know that other noble Lords are keen to get in. Teachers have a very clear duty of care to the children in their schools; that is writ large in every safeguarding policy in every school. In terms of culture, I know that Dame Angiolini and the noble Baroness, Lady Casey, in both their pieces of work for the Home Office, are involved in looking at the culture within the police. I do not think that anyone is trying to whitewash, for want of a better word, the fact that there are issues of culture within the police. We have seen so many incidents—Sarah Everard, to name but one. It is clear that over the last couple of years, BAME representation in the police has been much more representative of the population at large, and that can only be a good thing.

[The Lord Bishop of Leeds]

My Lords, there is an underlying question here that came up in the Sarah Everard case: how do you say no to the police? What do the Government plan to do to encourage and support schools and public authorities in addressing that question?

[Baroness Williams of Trafford (Con)]

The right reverend Prelate may have heard me say, when we discussed Sarah Everard’s murder, that I would not feel confident in saying no to the police if I were requested to do something. In a way, that is at the heart of this issue. It will all come out in the IOPC review, but did the school have confidence in saying, “Excuse me?” to the police or, “This is the way that we do safeguarding at this school”? That will all come out in the review. However, whatever the organisation, whether it is schools, teachers or the health service, we need to have confidence in challenging—not refusing but challenging—the police if we think they have got it wrong.

[Baroness Benjamin (LD)]

My Lords, childhood lasts a lifetime. The indignity that child Q had to go through is going to scar her for life. My daughter is a teacher and she too was appalled to learn about this blatant act of abuse of human and legal rights in a school—a place where children should be protected from physical and emotional harm. After the death of George Floyd, and Black Lives Matter, we all should know better. The police should know the importance of following the stringent guidelines and procedure when dealing with cases involving young people, especially those of colour, so both teachers and the police have questions to answer. What is being done to reinforce the safeguarding measures already in place to ensure that this kind of abusive and traumatic incident never, ever, happens again?

[Baroness Williams of Trafford (Con)]

The noble Baroness will have heard me talk about some of the measures that are already in schools and public institutions to safeguard children. Safeguarding children should be at the centre of what we do as public servants. There are clear guidelines around safeguarding and the type of thing we were talking about this week in relation to child Q. Strip-searching is probably one of the most intrusive things that one could ever do to a child.

I am going to beg the indulgence of the House and ask whether the noble Lord, Lord Harris of Haringey, might be allowed to come in.

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

I am sorry, but the time is up. I will allow a short interval for Peers who do not wish to take part in the next business to leave the Chamber.

Subsidy Control Bill

Lords Hansard - Part 1 & Report stage
Tuesday 22nd March 2022 Lords Chamber

Report

17:39

Clause 2: “Subsidy”

Amendment 1

Moved by

[Viscount Chandos]

1: Clause 2, page 2, line 26, after “grants” insert “, investment in equity securities”
Member’s explanatory statement
This amendment would specifically include investment in equity securities on the face of the Bill, as well as it being an example in the Illustrative Regulations and Guidance.

[Viscount Chandos (Lab)]

My Lords, when I spoke to a similar amendment that I tabled in Committee, I was encouraged by the support of the noble Lords, Lord Lamont and Lord Fox, my noble friend Lord McNicol and other noble Lords, so I felt it was worth trying one more time to persuade the Minister to make this small but, I believe, important change.

I have changed the wording of my amendment slightly in response to the concern expressed by the noble and learned Lord, Lord Thomas of Cwmgiedd, that the use of the simple word “equity” as a form of investment risked being confused with the use of “equity” in the social justice sense on which he is so focused. Although participants in financial markets have become used to thinking about equity in both senses, I was happy to change my amendment to include “investment in equity securities” as an example of when a subsidy can be given to avoid any possible misunderstanding.

I acknowledged in Committee that Clause 2(2) did not purport to be comprehensive and that the related guidance includes equity investment as a possible means of subsidy, but I continue to believe it is highly desirable that it is included as an example in the Bill. When responding to my amendment in Committee, the Minister, the noble Baroness, Lady Bloomfield, said that

“attempting an exhaustive list could be counterproductive, implying that measures not listed would not be considered subsidies.”—[Official Report, 31/1/22; col. GC 130.]

I am tempted to say “The prosecution rests, m’Lady.” The Government have chosen to include some examples in Clause 2(2), and although they are not intended to be exhaustive, the inclusion of six means by which financial assistance can be given, without any reference to investment in equity securities, risks exactly what the Minister said she was concerned about; that is, implying that a measure not listed would not be considered capable of being a subsidy. My amendment would not make the list exhaustive and, if it did, surely that would make a compelling case that the exclusion of equity investment was all the more unacceptable.

As I said at Second Reading and in Committee, equity investment is the most complex and hardest to measure of all of the transactions through which a subsidy can be given. Equity is the highest-risk form of capital and should therefore offer the highest prospective return, even if it is not precisely predictable from the outset. A market return on an equity investment is based on assumptions about the cash flow of the company concerned and often relies wholly or predominantly on the terminal value when the investment is realised. Let us say that, based on a company’s business plan, a public body makes an equity investment on terms that are projected to generate an internal rate of return of 10% per annum over 15 years. That may seem a good return compared with, say, the risk-free rate of return on a 15-year gilt, but a commercial venture capital fund would require a return of, say, 15% per annum and if that was the only source of funding for the relevant company’s competitors, the public body’s equity investment would have embedded in it a subsidy equal to 30% of the total amount of the investment being made.

Equity investment is a key instrument for state support for innovation and strategic investment, which, if implemented selectively, carefully and transparently, I strongly support. In their funding of, for instance, OneWeb, the Government would appear to agree with this, although whether it was implemented selectively, carefully and transparently I am not sure. That company’s dependence on Russian rocket launching is a belated reminder of the uncertainty and risks involved in this type of investment.

This Bill seeks to bring transparency and fairness to government support for private enterprise, first and foremost to ensure a level playing field for all participants in the market but also, as a by-product, to improve scrutiny of the use of public funds. This Bill is proceeding with an unusual degree of bipartisanship, as demonstrated by the amendments tabled in the names of both the Government and Opposition Front-Bench spokesmen. I urge the Minister to respond to my amendment in that same spirit and add equity investment to the six other examples of means by which a subsidy can be given. I beg to move.

17:45

[Lord Thomas of Cwmgiedd (CB)]

My Lords, I will speak to Amendment 9 and I am grateful for the support of the noble Lords, Lord Ravensdale and Lord Wigley, and the noble and learned Lord, Lord Hope of Craighead. I should first say how grateful I am to the Minister and to others for the amendments they have made to Schedule 1 to bring in the words “local or regional disadvantage”, to give some concrete context to the words “equity rationale”. This is an important and considerable advance. I am also grateful for the change to Clause 18, which again takes out any argument that if you are trying to attract a business to an area of disadvantage you can be penalised by that call.

However, despite that praise, there is a problem—I see the Minister smile—and it is this: what is lacking are the standards to ensure that there is some proper objective basis for the Secretary of State, the CMA and others to assess whether the use of the subsidy for this purpose is one that is properly justifiable, proportionate to the policy objectives and complies therefore with the subsidy control principles.

The proposal does not, as the Minister may think, seek to constrain local authorities from being imaginative, from being ingenious or from thinking what is the best standard or what is the best way to spend money for their local area. It does not seek to do any of that. What it seeks to do is to set standards to ensure that there is an objective basis for judging whether these bright ideas—this local freedom, which I welcome—are actually objectively justifiable. In short, the amendment seeks first to provide for efficiency and to ensure that scarce government money is spent wisely on thought-through and justifiable schemes that are proportionate to the policy objectives.

It also has another purpose: to ensure that all parts of our kingdom which are not economically disadvantaged cannot use this rationale to grant a subsidy. Levelling up is essential and subsidies can achieve that objective. As I said in Committee—but need not repeat in the time we have available for this important Bill—there has been a lot of controversy about the way in which the shared prosperity or levelling-up fund was used. That was very damaging. It is not appropriate for us to enter into that controversy tonight, but you have to have clear and objective standards. Some say that there were standards for the way in which those funds were distributed. If so, they were not clear and they plainly did not achieve a view among most people that the funds had been well spent. That controversy shows a number of things. First, there will be close examination of the way in which the subsidies are given and whether they are being properly directed to the right areas of our kingdom and not to the wrong areas. Secondly, you will never persuade the disadvantaged that something is being done for them unless it can be objectively shown that the use of funds across the kingdom is directed to helping those who need it most. The only way to do this is to set out clear criteria, and a failure to do so will be damaging to the unity of our kingdom.

In Committee, some commented that one of the terrible issues of the past number of years is that the rich have got richer and the poor poorer. We cannot go on like that, and we must not allow subsidies to facilitate that. I advocated a map. I have listened to what was said and moved away from that. What I therefore advocate are principles, and it seems to me that these principles are simple and could easily be adopted. I will listen carefully to what the Minister has to say, because my amendment is not the only way.

This Bill is going to have guidance, and I am not going to repeat what I said about the undesirability of legislating on an important matter with guidance. It is bad enough doing things by regulation. Guidance is just a step down the road away from what we should be doing. I have to be realistic and I very much hope therefore that, when the Minister responds, he will make it clear that guidance will cover this, will set objective standards and will include the standards to which I have referred. There is a lot of research on this, but we must be very clear. If we are not, we will waste money, be inefficient and make the rich richer. That is something we must not do.

[Lord Wigley (PC)]

My Lords, I am delighted to follow the noble and learned Lord, Lord Thomas, to whose amendment I have added my name. We discussed these matters in Committee at some length. I am also delighted to see the Government’s Amendment 2, which is a step in the right direction. However, we need to address the purpose of having subsidies and how the achievement of that purpose or failure to achieve such objectives is measured, and we need some quantified basis on which to monitor and fine-tune policy.

We in Wales, unfortunately, have had far too long an experience of so many parts of our country having to depend on assistance to try and overcome economic difficulties. From the rundown of coal and steel in the 1950s and 1960s through to now, that has happened. There has been investment from the public purse to areas such as the north-west of Wales, including Anglesey, and the Gwent valleys, where the income per head is a 10th of the level of Kensington in west London; clearly, policy has failed. Objective criteria were laid down by the European Union with regard to the Objective 1 funding and the subsequent programmes we have had since 1999. They were based on areas below 75% of GVA per head being eligible for assistance. Millions of pounds have gone into programmes of that sort, but they have not necessarily solved the problem. We are looking for a mechanism that enables the economies of these areas to become self-regenerative, not to depend on handouts for ever and a day. That must be the objective. Therefore, there need to be clear criteria.

It is a good step that the Government recognise the need for there to be a regional and social dimension to this, but there needs to be a means of monitoring and fine-tuning and ensuring the growth of the economy from within. Rather than just compensation for not having that economic growth, the ability must be created among people and businesses to generate growth and economic well-being for the future. If we get it right in this Bill, it could be a very important step forward. If we fail, it will be a missed opportunity.

[Lord Ravensdale (CB)]

My Lords, starting with the government amendment to Clause 18, I must thank the Minister for listening to my concerns in Committee and for responding by putting forward this amendment, which addresses my concerns with the impact of Clause 18 on the levelling-up agenda and meets the intent of my original stand part amendment. I must also thank the officials for the work they put into drafting and finding an acceptable way forward and for engaging with me throughout the process. I thank the noble Baroness, Lady Blake, the noble Lord, Lord McNicol, and the noble and learned Lord, Lord Thomas, for all their support throughout.

The Government have proposed a comprehensive amendment in Amendment 14, which will ensure that subsidies that target regional disadvantage are exempted from the prohibition on relocation of economic activities. It will address concerns from stakeholders I worked with in the Midlands Engine, home to many of the most deprived regions in the UK, that this would be a constraint on supporting disadvantaged areas; and it will address concerns from local authorities and other disadvantaged regions. I believe it will prove an important part of the Government’s toolkit in levelling up, through allowing productive relocation activities that reduce economic disadvantages within the UK as a whole.

I also welcome the clarification, provided through Amendment 2, to the equity rationale in Schedule 1 to the Bill, that it covers subsidies aimed at regional economic disadvantage. This whole package of amendments goes a long way to address concerns expressed by noble Lords in Committee. However, there is always more that can be done.

I very much support Amendment 9 in the name of the noble and learned Lord, Lord Thomas of Cwmgiedd, to which I have added my name. It addresses an issue in that the way the common principles are drafted can be viewed through a local context; there is nothing in the Bill to define what a disadvantaged area is, as opposed to an advantaged area. If national direction is absent, there is no means via subsidy control to steer intervention to those areas that need it most. The amendment seeks to set objective criteria to define a deprived area, which would resolve this difficulty. It would also give legal certainty for business on which areas would count as deprived, and hence work to drive investment into those areas.

The other way this could be approached is through streamlined routes. A streamlined route or routes could be created, through the mechanism in the Bill, to provide national direction on funding into deprived areas. This could be on the basis of the same economic indicators as in the amendment of the noble and learned Lord, Lord Thomas, where any one of several markers of deprivation is present. Again, the legal certainty that comes from this route would then help direct business investment into the deprived areas. There would be a clear definition of what a deprived area is, and therefore the areas of the country for which support would be available through the streamlined routes. Obviously the streamlined route would not prevent subsidy in a non-deprived area. It would just mean that the giving of a subsidy in a non-deprived area would be more complex, require more scrutiny and therefore help direct investment into deprived areas.

I would be most grateful if the Minister could give some clarity on a couple of things. First, to echo the request from the noble and learned Lord, Lord Thomas, can the Minister provide some reassurance that the Government will provide some specification or objective criteria of what a deprived area is within guidance? Secondly, can he provide some detail on the government programme for streamlined routes and how these will feed into the levelling-up agenda?

In concluding, I was delighted to see the appointment of Professor Sir Paul Collier to the Government’s levelling-up advisory council. Several years ago he wrote that what was needed was a shock to expectations, which in itself would provide the momentum required to level up the country. Noble Lords will recall Mario Draghi saying that he would do “whatever it takes” to save the euro. In a similar way, the Government need to take on the challenge of levelling up by stating that they would do whatever it takes to level up the regions. The Bill will be a key part of the Government’s toolkit for achieving just that.

[Lord Fox (LD)]

My Lords, before speaking to this group, I must say that our colleagues, my noble friends Lady Randerson and Lord German have been struck down with Covid, so, although there are amendments in their names, we will struggle on without them. Happily, my noble friend Lord Bruce has been restored from his bout, so at least we are not completely bereft.

I would characterise the purpose of this group of amendments largely as trying to avoid levelling down. I would put it down as damage limitation, and I think many of these amendments go some way towards that process. On Amendment 1, in the name of the noble Viscount, Lord Chandos, having dealt with the dual meaning of the word “equity”, I agree with him that this is a really important principle that ought to be enshrined in the Bill. It is not too late, and I hope the Minister can once again reflect on the wise advice of the noble Viscount and bring something back when we get to Third Reading.

18:00

Government Amendments 2 and 14 in the name of the Minister and countersigned by the noble Baroness, Lady Blake, and the noble Lord, Lord Ravensdale, really are a step forward. An amount of delight has been expressed from various Benches and I have a modicum of delight myself that some movement has been made. I would characterise this as important movement by the Government on a number of fronts throughout the Bill. However, Amendment 9, as eloquently proposed by the noble and learned Lord, Lord Thomas, is ideally where we would be. If there had been room, I would have signed it too, but others got there first.

The central failing of the Bill, as set out, is the absence of a definition of social and economic deprivation. Without that, there is no guide for how the Bill will work. The Minister repeatedly parades the virtue of this Bill as being that it is permissive. I am sure that phrase will come up, if not in this context in others. We would counter that that is also its weakness because it is not well defined within that permissive world. As it was set out, areas that need subsidies the most need to be targeted. Yet, in the way this Bill is structured, the authorities that have the money will be best able to deliver subsidies.

Those authorities with a low council tax base, which almost always have high levels of social need at the same time, are the ones that will not have the wherewithal in the context of how the Bill will work to deliver the subsidies needed. As the noble and learned Lord, Lord Thomas, said, there is a real danger that the rich get richer in a regional sense, which is why I framed this as damage limitation. The noble and learned Lord sets out a rational definition for the role of subsidies in promoting equity across the United Kingdom. This was backed up by a very good speech from the noble Lord, Lord Ravensdale, and the noble Lord, Lord Wigley. This sets out the reasons the Minister should think again, look at this advice and find a way—either in the law or through other routes suggested—to fix a central flaw in this Bill.

[Baroness Blake of Leeds (Lab)]

My Lords, I declare an interest as a vice-president of the LGA. I also express—I like the term—a personal “modicum of delight” at having been released from the Covid nightmare and enforced isolation which has unfortunately hit too many of us in this group.

I sincerely recognise the movement from the Government in the amendments tabled. I thank the Minister for taking our comments on board. We have all expressed our reservations and commented from wide experience and knowledge from the front line of how significant these subsidies are—particularly, as has been said, in the context of driving investment, regeneration and putting some substance behind the rhetoric around levelling up. We have given examples of discrepancies in investment and funding, and the real disadvantage that that has caused too many communities across the United Kingdom.

I express my gratitude for the quality of the discussion on the amendments in this group, particularly for several conversations my noble friend Lord McNicol and I have had with the noble Lord, Lord Ravensdale, about what it is like being part of a body with the responsibility for delivering on the ground. The issue here is bridging that gap between the words in the Bill and the reality of how you make this happen on the ground.

My noble friend Lord Chandos has, as ever, expressed his views eloquently. I cannot add to what he has said, other than to thank him for his reasonable and measured approach, which highlights the significance of his comments around the investment in equity securities and how we must ensure that the discrepancies between the contents and the supporting documentation are resolved. We hope that the Minister can offer helpful clarifications on this subject.

Like other noble Lords, we on these Benches are very pleased that the Government have been persuaded of the case for strengthening the Bill’s focus on local and regional economic disadvantage. These points have been raised consistently both in another place and in your Lordships’ House. Without wishing to sound churlish, we feel it is a case of “better late than never”. It seems obvious to use whatever instruments are to hand to bring advantage to all parts of the country.

It may be that the Bill never prevented subsidies from being used to level up deprived areas, but the clarification in Amendment 2 will be helpful for public authorities at all levels. The exemption for relocation subsidies, introduced via Amendment 14, is also a hugely significant step. As we will all recall, we had a very interesting debate on relocation in Grand Committee and how, perversely, not addressing this matter could have caused real damage, inadvertently perhaps. I am glad that we have some movement and some common sense in this area.

I understand the intention behind Amendment 9, in the name of the noble and learned Lord, Lord Thomas of Cwmgiedd. In an ideal world, the Bill would indeed contain further detail on how the equity rationale will work in practice. As has been said several times, the amendment is looking for that clarification—the standards and principles—for how we can ensure that there are no grounds for misinterpretation and confusion. I am fairly confident that the Minister will say that this is exactly the kind of information that will be contained in future guidance, but, again, we must bear in mind the recipients of that guidance and how it will be interpreted. The subsidies must be a force for good. They must clearly demonstrate purpose and benefit to the communities where they are applied. I emphasise the clarity that will be needed around this. Talking to various stakeholders in the field, it is about the level of advice and clarification, and about ensuring that everyone feels that there is a level playing field and that interpretation in different areas is not bringing disadvantage as a knock-on effect.

It is fair to say that the Welsh Government have consistently voiced concerns that the original Bill treated Mayfair and Merthyr in the same manner, and with these changes we are definitely making progress. However, as regards other elements of the Bill and the changes that have been made, we must emphasise the significance and importance of the review process, making sure that that is done in a transparent way at every stage of the game. We are talking about value for money, delivery, the spend of the public pound, making sure that all the concerns around the decisions that have led to investment decisions—which have been fairly, from our point of view, criticised—must be addressed. This is a powerful opportunity and I hope that through the changes that we are seeing, the opportunities are not missed.

As we speak, there is discussion about the spend of the shared prosperity fund, the delay in the skills element of that and the fact that ESIF will fall out next year, and there will be a gap if we do not pick up these issues. All those matters need to be brought together so that the spirit behind the gain-share agreements with all the devolved areas can be delivered with local determination, bringing benefit to all. This is a current and very important debate and I look forward with interest to the Minister’s response.

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

I start by welcoming the noble Baroness back to her rightful place on the Front Bench, fully recovered. In fact, I say that with more than a modicum of delight—to use my favourite phrase of the week so far. For the noble Lord, Lord Fox, that is the equivalent of being damned with faint praise. So as not to be sexist about this, it is good to see the noble Lord, Lord McNicol, back as well.

The interaction of the subsidy control regime with the Government’s levelling-up agenda has rightly occupied many noble Lords during their consideration of the Bill, both in Committee and on Report. I hope that so far I have been able to provide sufficient reassurance that public authorities are no less able to give subsidies to address regional disadvantage under the Bill than they were under the previous EU state aid regime. Indeed, moving away from the EU’s default prohibition on subsidies and the resulting exemption for certain categories of subsidy in specified areas will allow public authorities greater ability to design measures that address not only regional disadvantage but the stark differences in social and economic opportunity that exist at a much more granular local level.

It is important that public authorities understand the way that they are empowered by this regime to give levelling-up subsidies, so I recognise the value of noble Lords’ suggestions that this would benefit from being made clear in the subsidy control principles. Amendment 2 to Schedule 1 therefore makes it clear that addressing local or regional disadvantage is considered to be an equity rationale for the purpose of assessing compliance with principle A. That was urged on me by many noble Lords in Committee and I am delighted to be able to put that forward—with more than a modicum of delight —on behalf of the Government. This puts it beyond any doubt or confusion that a subsidy to address local or regional disadvantage can be given, provided, of course, that the other principles and requirements of the regime are met.

I am grateful to the noble Baroness, Lady Blake, and the noble Lord, Lord Ravensdale, for supporting this amendment—I am not sure that there are many occasions when people put their name to my amendments but I am more than delighted when they do so. I am also happy to reassure noble Lords, the noble Lord, Lord Ravensdale, in particular, that beyond this change to the Bill, the Government will be exploring the creation of streamlined routes to support levelling up. I reassure the noble Lord that these streamlined routes may have deprivation-related eligibility criteria, although it is important to note that levelling up is about improving opportunities in the whole of the UK.

A streamlined route could therefore facilitate interventions—high street regeneration is one example—that could be used by a range of public authorities, but particularly those who wish to address deprived areas. Although streamlined routes will be produced by the Secretary of State, none of this prevents local authorities or other public authorities making subsidy schemes that have deprivation-related eligibility criteria.

18:15

We must also be clear that a streamlined route is no more than a procedural facilitation and not a source of funds. Routes will create significant value by making it easier for public authorities to distribute certain subsidies, but creating a streamlined route in itself does not guarantee that those subsidies will be given. It is perhaps more important to look at where the money is coming from. For example, the £4.8 billion levelling-up fund invests in infrastructure that improves everyday life across the UK, including regenerating town centres and high streets, upgrading local transport and investing in cultural and heritage assets. The fund has adopted a prioritisation index that takes account of need according to objective criteria. Using this, the majority of funding in the fund’s first round was allocated to category 1 areas that are most in need of levelling up.

Turning to Amendment 9 from the noble and learned Lord, Lord Thomas of Cwmgiedd, I want to address the fundamental question that he implied here: how to ensure that public authorities’ use of subsidies to tackle disadvantage or other equity rationales remains objectively proportionate and justified. In general, the answer to that question is found in the subsidy control principles as a whole and in the common law duties of public authorities, including the need to act in a rational and unbiased way. That is a clear requirement of public law and provides a baseline of protection against the kind of abuses that I think the noble and learned Lord fears.

The principles then provide further reassurance, including principle A itself. I hesitate to say it to the noble and learned Lord, Lord Thomas, and the noble Lord, Lord Ravensdale, but the illustrative guidance makes it clear that public authorities must use supporting evidence that demonstrates the need for the subsidy. For a social equity intervention, it specifies that this should include measures or statistical indicators set against appropriate comparators such as regional or national averages. The Bill requires public authorities to have regard to this guidance, as I think the noble and learned Lord implied.

Principle B then makes it clear that the subsidy should be proportionate to the policy objective, principle E states that the subsidy should be an appropriate policy instrument for achieving its objective and principle G sets out that the benefits of the subsidy should outweigh any negative effects it may cause. Those negative effects must be assessed and evaluated over the lifetime of the subsidy or scheme before a decision to give a subsidy or make a subsidy scheme is taken. The Government therefore consider it unnecessary for the Secretary of State to set out extra conditions to establish the validity of the public authority’s rationale for an intervention.

I turn to the amendment’s provisions that would require the Secretary of State to set out specific measures that would justify a subsidy on an equity rationale. As I understand it, this is to prevent such subsidies being used in wealthy areas. That was the noble and learned Lord’s implication, and I understand his concern, but I do not think the amendment fits with the nature of the levelling-up agenda or the subsidy control regime. This is also goes to the heart of the point made by the noble Lord, Lord Fox.

Conceptually, as the Prime Minister has said, levelling up is a nationwide project, not a jam-spreading operation. It is about unleashing potential, so improving opportunities in the poorest parts of the country does not need to involve limiting them in richer parts. It is not a problem if a wealthier public authority has the resources to give a subsidy that improves social or economic opportunities in its area—even in the wealthiest boroughs, there are some areas of deprivation—provided, of course, that it is compliant with the subsidy control requirements.

I make the point to the noble Lords, Lord Wigley and Lord Fox, that where central government is giving out money for levelling up and wishes to target those funds at the most deprived places, it makes sense that this happens through the eligibility criteria for accessing those funds. Instead of doing it in an inflexible and general manner through this subsidy control regime, this allows the targeting to be done in a way that fits with the purposes and nature of those funds. For example, as I noted earlier and as the noble and learned Lord implied, the levelling-up fund has used a needs-based index of priority places to help direct those funds. It is also worth noting that an equity rationale does not necessarily have to be specific to a geographical area. For example, a subsidy scheme might be set up to support certain categories of disadvantaged worker into employment. It is all about giving ourselves the maximum flexibility.

In short, the subsidy control regime—in particular the principles and the guidance—already ensures that all subsidies, including those given for an equity rationale, must be used transparently for a defined purpose that has an objective justification, and proportionately. Where there is a need to direct central government’s levelling-up interventions towards the most deprived places, the way to do that is through the administration of those funds themselves, not by introducing general restrictions in this subsidy control regime. I hope that the noble and learned Lord is reassured and is therefore able not to move his amendment.

I turn to Amendment 14. I again thank the noble Lord, Lord Ravensdale, for his interest in and the discussions he has had with me and officials on the prohibition on subsidies contingent on the relocation of economic activity. The prohibition is there to prevent subsidy races, in which public authorities attempt to outbid each other in providing subsidies to attract investment, which is an inefficient use of public money; and to prevent public authorities poaching economic activity, which will tend to have highly distortive effects on competition.

Nevertheless, I accept the argument made by the noble Lord, Lord Ravensdale, the noble Baroness, Lady Randerson, and other noble Lords that there may be circumstances in which the relocation of economic activity is a legitimate way of delivering on levelling up. It might be needed to help with the regeneration of high streets, for example, or to move economic activity to disadvantaged rural or seaside areas. Therefore, I have tabled an amendment that exempts from the prohibition those relocation subsidies that have the effect of reducing social or economic disadvantage. At the same time, of course, the subsidy must still comply with the principles and other requirements. The test in principle G to balance the positive effects of the subsidy against the negative will be particularly important.

However, the reason for maintaining the general prohibition is that relocation subsidies carry some significant risks. This remains true even when the subsidy is given to tackle disadvantage. Clearly, relocation to place B involves leaving place A and potentially aggravating disadvantage there. The drafting of this amendment therefore includes extra safeguards to mitigate this risk. It requires the public authority not only to consider that the subsidy reduces disadvantage in the area to which the relocation takes place but to consider the United Kingdom as a whole—that is, to look, as a minimum, at the vacated area as well as the place to which the economic activity is subsequently moving—and be content that the subsidy reduces the overall level of disadvantage. I hesitate to say this to the noble and learned Lord, Lord Thomas, but the Government will of course produce guidance to assist public authorities in making this assessment.

The Government are also considering whether some or all of these subsidies should be deemed subsidies of interest or particular interest and therefore be referred to the subsidy advice unit for extra scrutiny. These types of subsidies will be defined in regulations that will be laid in draft and debated before commencement of the wider regime. As I have said, the Government intend to launch a public consultation on this in the coming weeks. This exemption and the safeguards that go with it will ensure that public authorities have the broadest range of tools to enable them to tackle disadvantage and help to level up the UK, and for that reason I commend it to the House.

Finally, I address the amendment tabled by the noble Viscount, Lord Chandos. He will be pleased to know that I shall not repeat at length the arguments that I made to the similar amendment tabled in Committee. In short, I believe that it is important to emphasise that subsidies come in many forms, and the Bill therefore sets out a fairly comprehensive test for public authorities to apply to all situations where financial assistance is being considered to identify whether a subsidy exists: from grants to loans, to loan guarantees, to benefits in kind, to contractual payments to provide services of public economic interest. The purpose of giving examples in the clause is to make it clear that this diversity exists, ensuring that no one makes the mistake of thinking that all subsidies are given in the form of grants. There are a number of different forms.

There is no question that an investment in equity securities may constitute a subsidy if it is made on more favourable terms than those dictated by the market. But there is no utility in attempting an exhaustive list on the face of the Bill. Not only is it unnecessary but it also runs the risk of implying that a measure not listed would not be considered a subsidy. The proper place to provide more extensive lists of examples is in guidance and, as the noble Lord mentions in his explanatory note, equity investments made on favourable terms are already mentioned in the illustrative guidance published by my department in January. I am happy to confirm that I will ensure that this remains beyond doubt in the final version of the guidance. I therefore hope that the noble Lord will feel able to withdraw his amendment.

[Viscount Chandos (Lab)]

I thank noble Lords who have spoken to this group, in particular the noble Lord, Lord Fox, and my noble friend Lady Blake, in confirming their view that this was a worthwhile and important amendment. Therefore, it is disappointing to hear the Minister repeat the same arguments as were made by the noble Baroness, Lady Bloomfield, in Committee, and I have to say that he showed no sign of having listened to my response to those arguments in the remarks that I made in introducing this amendment.

As I have said earlier, the Government’s argument that there is a danger in an example of a means by which a subsidy can be made being left out of that being interpreted as being that it is not susceptible to being used for a subsidy; that is precisely the argument that I was making. Six different examples are listed, which the Minister just read out. What I was suggesting did not make it exhaustive in itself. The Economic Affairs Committee, of which I am privileged to be a member, has heard over recent weeks about how important contracts for difference have been in helping to stimulate the growth in the generation of renewable energy. That may be a guarantee or a purchase of future services, but it is a good example—something that is fairly specialised and rare, which I do not think that it is appropriate to have as an example. But equity investment is one of the principal means by which a Government or a public body can give support, and it is perverse to exclude it.

That said, while I shall consider what I might do at Third Reading, I beg leave to withdraw the amendment.

Amendment 1 withdrawn.

Schedule 1: The subsidy control principles

Amendment 2

Moved by

[Lord Callanan]

2: Schedule 1, page 52, line 7, after “as” insert “local or regional disadvantage,”
Member’s explanatory statement
This amendment clarifies that Principle A of the subsidy control principles covers subsidies aimed at addressing local or regional disadvantage.

Amendment 2 agreed.

18:30

Amendment 3

Moved by

[Lord Whitty]

3: Schedule 1, page 53, line 6, at end insert—
“(c) progress towards targets under section 1 of the Climate Change Act 2008 (UK net zeroe emissions target), and section 5 of the Environment Act 2021 (environmental targets).”Member’s explanatory statement
This amendment requires public authorities to consider whether proposed subsidies would have any negative effects on progress towards the UK’s legally binding net zero and environmental targets.

[Lord Whitty (Lab)]

My Lords, I shall also say a few words about Amendments 51 and 61 in this group. I do so in lieu of the noble Baroness, Lady Boycott, who, unfortunately, has to be at a funeral this afternoon. I declare my interests as set out in the register but in particular a very new one, which is that I have become a director of Peers for the Planet.

This amendment is pretty straightforward. It says that our climate change strategy, our net-zero strategy, about which the Government have been very clear, should be taken into account in their subsidy policy. It is odd that it is not in the Bill, either in Schedule 1, which we are discussing, or virtually anywhere. However, we are lucky tonight because the Minister is of course also Minister for many aspects of net zero. I therefore assume that my amendment will be received with acclaim by the Government Benches. They might think they have a better form of words that they want to bring forward later, but I think my form of words is fairly clear.

We are on Schedule 1 to the Bill, which is headed “The Subsidy Control Principles”. That a flagship policy of the Government which has been said by Ministers time and again should apply across all government policy is not included in that schedule is very odd indeed, and it must surely be an oversight. Even more surprising, it is not referred to in Schedule 2, which relates to energy and efficiency principles, because that is mainly about energy policy. There is a reference which could be said to be relevant, which is to subsidies directed towards the reduction of carbon use and to help decarbonisation, but those are specific subsidies. What my amendment is concerned about is that all subsidy schemes should take into account their implications for our target zero policy and climate change objectives.

I would find it difficult to think the Government could reject that. Ministers have said on many occasions that it is one of our most important policies and strategic commitments. The Public Accounts Committee has recently said that all government departments must take it into account, and that includes new legislation. This is substantial new legislation which may not obviously directly affect climate change, but everything indirectly affects it. Subsidies after all, whatever their form, are about interfering with the market to get a different outcome. It would be odd indeed if the Government did not accept that, if the market was moving in the direction which was more or less in line with our climate change agenda, we should not intervene with a subsidy which reversed it or at least offset it. We are not saying that every subsidy has to be directed at climate change, but the implications have to be taken into account when considering the validity of that subject.

I am expecting a positive response from the Government. I do not think it would cost them a lot in terms of the overall nature of the Bill, but it would give credibility to the overall policy that our net-zero targets should be followed through across the whole of government and all public authorities. If the Government reject it, I will find that very difficult to accept, and I think we would wish to test the opinion of the House. I hope that the Government will be reasonable and either come up with their own wording or just accept the wording which the noble Baroness, Lady Boycott, and I are proposing. I beg to move.

[Baroness Bennett of Manor Castle (GP)]

My Lords, I rise with great pleasure to follow the noble Lord, Lord Whitty, who has powerfully and clearly introduced this group of amendments. I will offer the Green group’s support for Amendments 3, 51 and 61. Were we not in a state of continual juggling of different Bills, I am sure that we would have attached one of our names to them.

Amendment 3, on which the noble Lord indicated he is likely to test the opinion of the House, is particularly important in considering the negative effects. I am influenced in that view by a visit I made yesterday to a village called North Ferriby and a site threatened with the development of an enormous Amazon warehouse, with significant environmental effects. From those environmental effects flow effects to people’s lives and well-being. It is the absolute reverse of levelling up in that it is making people’s lives much worse. It is clear that, when talking about economic development, there is inadequate consideration of local environmental effects and the broader effects on the state of our world.

However, I rise chiefly to speak to Amendment 5 in my name. Rather than trying to stop damage, this amendment is trying to lead the Government in a positive direction, which could help them deal with some of the issues facing them today and will be tackled by the Chancellor tomorrow.

Amendment 5 is all about helping small-scale community energy projects to make a big impact in the energy system. In Committee, the Minister suggested that community energy is not within the scope of the Bill, but I hope we might see a broader response today, and at least a positive response and acknowledgement from the Minister that this is a huge lacuna in government policy that desperately needs to be filled.

This amendment adds community energy to the list of circumstances that may be used to determine a subsidy, where the generator is a community energy project. What we see is that the rural community energy fund is soon winding down, despite its success. The Minister and I have, in another context, discussed the lack of any other community energy schemes, despite the Government’s promises to deliver them.

You might ask, “Why would subsidies be needed?” The fact is that community schemes often need early-stage seed funding to get them to the stage where they can seek investment. Without that, many communities, desperately keen to set up their own scheme, are never able to get one off the ground. What we are talking about is perhaps something like an electric car club, where a community can generate its own energy. I saw this in Stroud a few years ago: solar panels on the roof of a doctor’s surgery powered an electric car club car. This had all been supported by community investment and was run by the community, with the nature of the project being chosen by the community.

It is clear that this can unlock more than £64 million in private capital investment. It is an incredible opportunity for public money to kick-start a community-led green revolution. Importantly, thinking about the levelling-up agenda, this means that communities with money can put it into their local community and get the money circulating around that community. This is a cost-effective way of unleashing the possibility of many new green jobs.

I am not expecting the amendment to pass today, but there is a huge opportunity here. The crisis the Government are facing is clear: the cost of living crisis and concern, particularly in the context of the tragic situation in Ukraine, about energy self-sufficiency. But there is energy all around us: energy from the sun, the wind and people within communities desperate to help tackle the climate crisis and meet the needs of their own communities. Let us make sure that we have a subsidy scheme that can support all that physical and human energy and put it to good purposes to improve the lives of us all and our environment.

[Baroness Sheehan (LD)]

My Lords, I rise to speak to Amendments 3, 51 and 61, to which I have added my name. I have checked with the Public Bill Office that my name is on those amendments—it is online but it has not made it to the printed copy. I should also add that I am a director of Peers for the Planet.

The reason I have added my name to these amendments is that I feel strongly about this. I hope that the noble Lord, Lord Whitty, will be press Amendment 3 to a Division if the Minister is unable to meet us half way or come some way towards what we are looking for, which is some recognition of an alignment with our climate change and natural environment concerns.

Just last month the IPCC published its sixth report, which is full of dire warnings about the climate. Time is running out and we are fast approaching a 1.5-degree rise. The raw science tells us that we really have to act now. The concentration of carbon dioxide in the atmosphere is at an unprecedented 419 parts per million; it has never been at that level, records show, in the last 800,000 years. It is going up in a straight-line vertical trajectory at the moment, so we really need to act as quickly as we can. The NASA website shows that many other of the planet’s vital signs are moving in the wrong direction and those adverse changes are accelerating.

A Bill laying out a new subsidy regime is an important policy lever to meet our climate ambitions. However, as things stand, there is a deafening silence on climate and nature alignment in the Bill. Amendments 3, 51 and 61 seek to fill that void, not in a prescriptive manner but by allowing the Government to determine how the aims should be achieved. Notwithstanding what the Minister’s response will be to the amendments, I hope that nevertheless he will confirm from the Dispatch Box that the guidance to the Bill will specifically include how public authorities should approach climate and wider environmental considerations with respect to subsidies. The Minister said as much in his letter to my noble friend Lord Purvis but it would be good to have it reiterated on this occasion.

[Baroness Hayman (CB)]

My Lords, I support Amendments 3, 51 and 61. I declare my interests as set out in the register.

The amendments seek to ensure that considerations around net zero and the environment are embedded in the legislation at the stage of principles, at the stage of guidance and at the stage of reporting. They are very similar to amendments well discussed in Committee. I have to say that when responding to those amendments the Minister did not show even a modicum of delight; he said that we were banging on—although he did not use that term—about our favourite topics, a term he did use, and said he had a sense of déjà vu. I am afraid it is déjà vu all over again, because these issues are too important for us not to return to them.

I believe there is a disjuncture in the Government’s attitude. When responding, the Minister made absolutely clear the Government’s view that

“net zero is of critical importance.”—[Official Report, 31/1/22; col. GC 159.]

That is not something between us. He also recognised the relevance of the subsidy regime that we are discussing in achieving the Government’s aims, and pointed out that environmental and net-zero schemes had already been agreed under the interim subsidy control mechanism. So we have a situation where the Government recognise the severity of the climate crisis, the fact that economically we need to shift the economy and growth into a sustainable pattern and into areas that will be productive in terms of jobs—and, indeed, will create the sorts of jobs that support the levelling-up agenda we were just talking about, because they are the sort of infrastructure jobs that go across the country—and that we need to support jobs that will provide energy security in future.

18:45

All those point to the importance and relevance of making sure that the regime we are setting up—not for the crisis we are in at the moment but for the long-term interests of our economy and people—should recognise the importance of statutory climate and environmental obligations that the Government have accepted.

I am profoundly disappointed that the Government have not been able to move or even have serious discussions on these issues in the way they have on other areas of the Bill. They have not put forward suggestions so that we could meet in the centre in a way that both sides would feel was productive. There is now nothing in this Bill to guarantee that an issue that is of supreme importance to the Government is carried through into legislation. I am afraid that we are in another area where the policies sound great but the delivery and coherence are not—an area of fine words and unbuttered parsnips. I therefore support these amendments.

[Lord Hope of Craighead (CB)]

My Lords, I will say a word in support of Amendment 5 in the name of the noble Baroness, Lady Bennett of Manor Castle. Her list of small projects reminds me of the position of the many small islands around the coast of Scotland, in the Northern Isles, the Western Isles and the Inner Hebrides.

About 15 years ago I spent a week on the island of Fair Isle, which lies midway between Shetland and Orkney. It is too far away from the mainland and from those islands to have any electricity supply provided from outside; when I went there it was largely reliant on diesel generators, which were expensive and wasteful and could not run all the time. People had been relying on the diesel generator coming on at, say, six in the evening to fire up their cooking utensils and so on, but just before we got there someone with funding had been able to put up a wind turbine. It was there, and I remember the thrill of the islanders when it was put into operation and provided a reliable source of electricity which was available all day because it did not involve wasteful use of diesel oil.

That would fall well within the small projects in proposed new sub-paragraph (2)(d)(v); it is just one example of the value of these small projects to small islands such as that. I do not know how many like Fair Isle there are still relying on diesel generators, but anything that can be done by introducing and supporting projects of this kind to stop them using carbon fuels and relying instead on the renewables listed here would be of great value. Of course there is a climate change aspect to it, but it also has a real practical value for the communities themselves—otherwise, they are driven to spending money on carbon fuels, which we would all like to stop having to use.

Subsidy schemes for small projects have a real value in these remoter communities that cannot be linked into the grid around the mainland or some of the larger islands which can have their own generating facilities. The list is very interesting and valuable, and I hope the Minister will pay attention to it.

[Lord Fox (LD)]

I rise to support briefly Amendments 3, 51 and 61. On the point made by the noble and learned Lord, Lord Hope, and our Green friend, I was not aware that this scheme excluded small projects. What it will exclude is us finding out about them as they will all come in under the threshold and will not be reported. I hope that the Minister can perhaps come back and report on them; we will not find them in the database.

We have heard fantastic speeches on Amendments 3, 51 and 61. I will not repeat them but want to pre-empt a little what the Minister’s response might be. I have a hint of that; I suspect that he is guided by his feelings about Ukraine. Since its invasion, the mood will have changed, and that will be his line. The Russians are indeed committing atrocities in Europe as we speak, and it is terrible, but the climate crisis is not standing back while this happens. With this amendment, we are asking the Government to walk and chew gum at the same time. Yes, we have to deal with the consequences of the war and we understand how hard that is, but we have to do that within the context of attacking the net-zero challenge. Unless the Minister can officially announce that global warming is performing a ceasefire, this amendment has to be there for us to meet both the important things that this country has to face right now.

[Baroness Blake of Leeds (Lab)]

My Lords, I am grateful to the noble Baroness, Lady Boycott, for tabling her amendments and sorry that she cannot be here to move them today; I am grateful that my noble friend Lord Whitty stepped into the breach much more than adequately. I want also to recognise the contribution of the debate and the importance of getting on to the front foot with its urgency on such a range of different issues. Obviously we have the climate emergency, but we have to mention Russia’s illegal invasion of Ukraine and the West’s urgent discussions about how to lower its dependence on Russian oil and gas.

These discussions are happening at the highest possible level. For some, I fear that they will give a convenient excuse to promote activities that will cause significant environmental damage if unchecked, whether that is firing up coal-fired power stations, resuming fracking, or indeed Shell’s announcement just this morning that it will look again at the Cambo field. For many, the focus is on the acuteness of the energy security issues that we are facing, which have come to the forefront, and the ever greater need to develop energy self-sufficiency; that means focusing on the climate imperative together with security issues, regeneration and the new green jobs that will come along.

Following COP 26, the UK remains a key player in driving implementation of the various agreements reached. What hope do we have of ensuring that other countries follow through on their commitments if we do not play our leading role in this global fight? Another aspect is that we know the Government want a degree of flexibility for public authorities at every level, but we do not see anything in Amendment 3 that takes that flexibility away. The Minister has been keen to use the example of Welsh steel during our discussions on this matter. If, when conducting the so-called balance test, the Welsh Government decide that the short-term economic benefits outweigh the costs of emissions, they will be able to award the subsidy. However, as a general principle, public money should be used for public good, and what greater public good can there be than preserving our planet for future generations?

Now is the time for us to double down on our commitments to renewables and nuclear rather than being swayed by those who are seeking to turn back the clock. I finish by picking up on the comments of my noble friend Lord Whitty about pressing Amendment 3 to a vote. If he does indeed decide to do so, we will support him.

[Lord Callanan (Con)]

My Lords, first, I thank all noble Lords who have spoken on these amendments, which were introduced so ably, as always, by the noble Lord, Lord Whitty. I will respond to them all together since they all relate to climate change and energy matters.

Amendment 3, tabled by the noble Baroness, Lady Boycott, and the noble Lord, Lord Whitty, seeks to include specific mention of our “net zero emissions target” and “environmental targets”. It would require public authorities to consider the negative impacts, with respect to our Climate Change Act and Environment Act targets, when making a balancing test under principle G of Schedule 1. Amendment 61 would allow the Secretary of State to issue guidance to support public authorities with this assessment.

I understand noble Lords’ keen interest in ensuring that subsidies and schemes granted within the UK further our climate change and environmental targets, wherever practical, and that public authorities should be supported by the Government in making robust assessments of the impacts that their subsidies or schemes may have on these targets. The Government share this objective, and our record in office demonstrates that. I make it clear that this applies to some of the other amendments to which I will be coming later: the UK’s net zero target is, and remains, the law of the land. Nothing in this Bill changes or undermines that fact. The Government remain resolutely committed to net zero by 2050. At this point, I welcome the addition of the noble Lord, Lord Fox, to my speechwriting team. However, it is right and proper, particularly in the current crisis, that we keep in mind that our energy transition to net zero is an issue not only of decarbonisation but of national security and—especially at the moment—national importance.

In response to the noble Lord, Lord Whitty, I make it clear that the balancing test in principle G already requires public authorities to take into account all relevant “negative effects”, which would include negative effects in relation to climate change and the environment. Similarly, subsidies that support our net zero and environmental targets should also take those positive impacts into account in the balancing tests. Principle G emphasises particularly “competition”, “trade” and “investment” effects because minimising harmful distortions in these areas is the primary purpose of a system of subsidy control. However, it is not intended to suggest that these factors should override all other policy-making considerations. There is no implication that public authorities should set their climate and environmental obligations—or, indeed, any other duties or objectives—to one side.

I reassure the noble Baronesses, Lady Sheehan and Lady Hayman, and others, that the Secretary of State will issue guidance on the practical application of the subsidy control principles, and regarding the energy and environment principles. This guidance will include instructions on how to take into account, where relevant, any impacts the subsidy or scheme may have on targets under the Climate Change Act or the Environment Act—or, indeed, signpost the public authority to existing guidance to this effect.

It is also worth pointing out that environmental policy is a devolved matter. This regime is designed to empower public authorities with democratic mandates to use subsidies in pursuit of their own policy objectives—within certain bounds which merely protect UK competition and investment—and safeguard our international obligations. It is not seeking to direct the devolved Administrations, or any other public authority, to spend on one specific policy objective, however important and worthwhile that policy objective may be. For that reason, I am highly reluctant to impose any additional constraints on other public authorities which are fundamental neither to subsidy control policy nor to implementing our international obligations. There are later amendments in which noble Lords will seek to persuade me to do the opposite in respect of the devolved Administrations, so I hope that noble Lords will not be so hypocritical as to repeat those arguments back to me then. I believe that these amendments are therefore unnecessary, and I ask the noble Lord, Lord Whitty, to withdraw Amendment 3.

19:00

I turn to Amendment 51, tabled by the noble Baronesses, Lady Boycott, Lady Sheehan and Lady Altmann. Clause 65 specifies that the Competition and Markets Authority will periodically undertake a review of the operation of the subsidy control regime. This amendment would require that review to include an assessment of the impact of the operation of the Act on progress towards the target under Section 1 of the Climate Change Act 2008 and the targets under Section 5 of the Environment Act 2021.

I thank the noble Baronesses for tabling this amendment and assure them that the aims of the Government are entirely in line with the spirit of it. However, we do not believe that it is necessary to include these additional reporting requirements, not only because the report will, as the Bill currently stands, provide an appropriate level of scrutiny of the impact of the energy and environment principles, but because the appropriate monitoring and reporting mechanisms for the Government’s net-zero and environmental targets are already set up and have much wider scope than the subsidy control regime.

The new subsidy control regime will support environmental goals by allowing public authorities to make subsidies that address a market failure or equity rationale in relation to environmental and net-zero objectives with minimal delay. The Bill also sets out common-sense principles that promote energy efficiency, sustainable energy and environmental protection through the energy and environment principles set out in Schedule 2. The subsidy advice unit’s report will cover all aspects of the regime, including the operation of Schedule 2. These provisions provide an appropriate level of detail to enable the subsidy advice unit to fulfil its reporting function under Clause 65, and we believe that this strikes the right balance for monitoring the environmental and climate aspects of the regime.

I highlight that the Government already have robust reporting requirements on the meeting of net-zero and environmental targets. We have debated them extensively in this House. The Climate Change Act 2008 sets out monitoring and reporting requirements regarding compliance with the 2050 net-zero target and our carbon budgets. This includes laying before Parliament a report setting out current proposals and policies for meeting the UK’s carbon budgets, most recently the net-zero strategy; the UK’s energy and emissions projections, a world-leading approach to projecting the UK’s future emissions; and scrutiny by the independent Climate Change Committee, including an annual report by it to which the Government already must respond. We have also committed to update annually on progress on the net-zero strategy, and we comply with the UNFCCC’s emissions reporting obligations via annual submissions of the UK greenhouse gas inventory. Under the Environment Act the Government must report regularly on the progress made towards improving the environment.

The Climate Change Committee and the Office for Environmental Protection also have a function in holding the Government to account for progress towards climate targets and improving the environment respectively. Unlike the subsidy advice unit, these bodies specialise in climate and environmental matters respectively and can bring that expertise to bear on all the Government’s activities in that respect, including the subsidies they give. Furthermore, the Climate Change Act 2008 provides for parliamentary scrutiny. It is therefore our position that these are the sufficient and proper channels to ensure that these goals are being met and it is unnecessary to duplicate this work at the SAU. I therefore hope that this amendment will not be moved.

On Amendment 5 to Schedule 2, tabled by the noble Baroness, Lady Bennett, as noble Lords will know, Schedule 2 relates to subsidies and schemes in relation to energy and the environment. Under the terms of the Bill, principle C in Schedule 2 enables a non-competitive process to be utilised for the award of subsidies in relation to renewable energy or co-generation in limited and specific circumstances. These are where: first, projects are operating in a market with insufficient supply to ensure a competitive process; secondly, the project in question is a demonstration project; or, thirdly, the eligible capacity is unlikely to have a material effect on competition and investment within the United Kingdom or on international trade and investment. In any of these cases measures must also be in place to prevent overcompensation.

This amendment lists additional criteria for a number of small renewable energy or cogeneration projects that, under the terms of the amendment, could be granted without being subject to a competitive process, provided the other conditions in principle C are met. I understand the noble Baroness’s ongoing interest in this issue. It is important to note that the terms of Schedule 2 implement the UK’s international obligations under the trade and co-operation agreement with the European Union. Changing the terms of that schedule, as the noble Baroness’s amendment would do, would jeopardise the implementation of the UK’s international obligations and for that reason I cannot support the amendment. Furthermore, the Government understand the importance of supporting small-scale renewable energy projects of the kind set out in the noble Baroness’s amendment.

I point out that under the terms of principle C(2)(b), a non-competitive process may be used to determine a subsidy for renewable energy or cogeneration if appropriate measures are put in place to prevent overcompensation and if the subsidy is not likely to have a material effect on competition or investment within the UK or trade and investment between the UK and its trading partners. It is very likely that many of the projects caught within the terms of the noble Baroness’s amendment would already be included within these exemptions. Therefore, I believe that the noble Baroness’s amendment is unnecessary and I hope that, given the reassurance I have been able to give her, she will feel able not to press it.

With respect to energy and environment objectives, Schedule 2 of the Bill establishes a clear and flexible framework for the awarding of subsidies in relation to energy and the environment. This reflects the Government’s ongoing priorities on net zero and protecting the environment, while also ensuring that the UK complies with its various international obligations. All subsidies to which the subsidy control requirements apply, including small projects of the kind set out in the noble Baroness’s amendment in relation to energy and environment, should comply with these principles, not least of which is good value for taxpayers’ money.

I stress to noble Lords that the UK’s existing commitments and practices in relation to this critical priority are extensive and world leading, including, for instance, the various principles set out in the Environment Act which Ministers must give regard to when making policy. I believe, therefore, that we already have the right framework in place. For the reasons that I have set out, I hope that the amendment can be withdrawn.

[Lord Whitty (Lab)]

My Lords, I cannot really hide that I am deeply disappointed by the Minister’s response. One modicum of comfort, if that is the phrase, is that he did say that guidance to public authorities would include a reference to the climate change objectives. I therefore can see no possible reason for him rejecting Amendment 61 on that basis.

On the central issue, the Minister referred to all the existing mechanisms, and there are important existing mechanisms and commitments, but the Climate Change Committee has said to the Government time and again that every new policy ought to include a cross-reference to climate change targets. This is an enormous area of new policy that, rightly or wrongly, we have taken back from the European Union so that we control the levers of power for a new era. Yet the Government stumble at the first hurdle and do not put it in this very important legislation. I do not understand the logic.

To be fair to the Minister, he wants all these things delivered, as the Government appear to do. This is not to say that they override all other policies and objectives, but they should be part of the balance when these things are being considered. There is a danger, in rejecting such amendments to this important legislation, that the interpretation out there—which in a sense has been fed by the media over the last few days—will be of a backing off from commitments to climate change within government circles.

The Government are missing the point and missing a trick here. If they want to reassert that they are still on schedule to deliver the government commitments and the net-zero strategy to which the Minister is committed, that should be in this important legislation. I hope I am wrong, but in order to ensure that this House at least has a chance to give its view on these matters, I am prepared to put this issue to the vote tonight. I beg to move.

19:10

Division 5

Ayes: 133

Noes: 139

19:22

Amendment 4

Moved by

[Lord Bruce of Bennachie]

4: Schedule 1, page 53, line 6, at end insert—
“Agricultural subsidies
H_ Subsidies for agriculture should, in addition to being connected to the purposes under section 1 of the Agriculture Act 2020, take particular account of areas of agriculture disadvantage and levels of marginality of land.”Member’s explanatory statement
This amendment would require agriculture subsidies to take particular account of areas of agriculture disadvantage and levels of marginality of land.

[Lord Bruce of Bennachie (LD)]

My Lords, I shall speak to Amendment 4 in the name of my noble friend Lady Randerson and myself. As has already been reported, my noble friend is unfortunately self-isolating with Covid, but we are cosignatories of this amendment.

I hope to have a short but important debate about the role of agriculture in the context of this Bill. In Committee, we moved for the removal of agriculture from the Bill, and it remains our view that it is not appropriate for agriculture to feature in it. The European Union and World Trade Organization, as well as most countries and other organisations, keep agriculture as a completely separate administration, for all kinds of good reasons to do with issues such as food security and the environment. It is also important for the social and economic life of rural communities. In that context, given that the Government have made it clear that they are determined to keep agriculture in the Bill, we have tabled this amendment to try to ensure that the criteria by which agriculture is treated give some comfort—and, more than comfort, substance and reality—to how our marginal farming areas can prosper in future.

It is no secret that there is real concern among farming communities not only about the consequences of leaving the EU and its agricultural regime but about the trade agreements that the Government are signing with Australia and New Zealand, which open up our market to competitive imports—and without a subsidy regime for our marginal areas, we will simply not be able to compete. For example, 86% of the land area of Scotland is designated as less favoured; it is marginal and difficult to farm. It has mostly been dependent, therefore, on a range of different subsidy regimes, whether that is headage or area payments, market intervention or price support. All of those mechanisms have been designed to ensure that farming can be viable in those communities, and that the rural economy of those areas can be sustained.

Therefore, our amendment would put it into the Bill that particular account should be taken of areas of agricultural disadvantage and the levels of marginality of the land. I have cited the figures for Scotland; I do not have the exact figures for Wales, but it involves a significant proportion of the land area of Wales—and it is important for parts of England, such as the border country with Scotland, the Lake District, Cumbria and the ridge of the Pennines. Left to a completely open market and no subsidy support, agriculture on those hills would pretty well disappear. While it may be that the return of wilding is currently supported, it cannot maintain a viable community if there is no activity on that land that can be sustained.

In simple terms, we ask the Government to recognise that marginal land and land that is agriculturally disadvantaged should be explicitly stated as deserving of support. If the Government recognise that, they will give a degree of assurance to farmers across the areas identified, which they desperately need. It is already clear that subsidies are being reduced, and the marginality of those farms gives rise to real concern that they will not be viable in future—and the whole of our landscape will change.

This is a serious issue. It really matters to our hill farmers that they survive, and it matters to our rural culture that they survive, and this amendment would help to ensure that they do.

[Lord Wigley (PC)]

My Lords, I am delighted to support this amendment. I wish the noble Baroness, Lady Randerson well; it is a shame that she is missing this debate as her heart would very much be in it. She has quoted figures for Wales regarding the marginality of land.

In the context of European funding, which this regime is now replacing, the reality in Wales was that many of the schemes to help rural areas were under European grant systems rather than under specific agricultural systems. There is a coming together of the agricultural support and the support for the rural communities in which those agricultural businesses must exist, and both must work together if they are to underpin the future of the small farms, the hill farms, in Wales. There are many uncertainties at present, as the Minister answering this debate is aware. She has met the farming unions in Wales, and she knows their worries. One way of at least giving some hope for the future is to pass an amendment along these lines; if the Government cannot accept the exact words here, they can come back at Third Reading with an amendment that ensures that there is no inhibition, no prevention, in the new system of helping those rural communities in such vital matters.

[The Duke of Montrose (Con)]

My Lords, I declare my interests in farming in Scotland and as a member of the National Farmers’ Union of Scotland.

Agricultural support in Scotland is fully devolved but is an area where, as the noble Lord, Lord Bruce, has just emphasised, many elements of rural life can qualify as disadvantaged or marginal. Therefore, I sympathise with those who are keen to see that similar areas of the United Kingdom are adequately supported. However, I weigh it up with the fact that my noble friend the Minister has emphasised in earlier stages of our consideration that existing support schemes will be allowed to continue.

Those seeking to put this amendment into the schedule are surely looking at the rules that might apply to any new support schemes, but at the moment we are not looking at many new schemes. The measures put before us yesterday in Grand Committee were largely to do with amending existing support schemes. There is a possible exception in that elements of the lump-sum scheme, which at present is aimed at encouraging farmers to contemplate retirement, appear to contain the possibility that it could be applied to completely different circumstances. I asked the Minister yesterday whether it would apply for those in financial difficulty.

19:30

It is a little surprising to me that this amendment was not grouped with Amendment 2, in the name of my noble friend the Minister, which has been so warmly received on all sides. It is likely to achieve exactly what the noble Baroness and the noble Lord, Lord Bruce, would like to see, so I do not support this amendment.

[Lord Whitty (Lab)]

My Lords, I will say a couple of words in support of the amendment and widen it slightly. In Committee, we argued that agriculture had to be dealt with somewhat differently. Clearly, the most acute issue is those on the uplands and other disadvantaged areas. It is right that this amendment addresses that and that the Government—at least in words, if not in the Bill—accept that this will have to be the case.

There is another aspect to it. If we drive those farmers out of business and there is no farming on the uplands and other disadvantaged areas, relatively well-heeled organisations will buy that land, claim they are reforesting it or engaging in some other form of environmentally desirable activity and receive a government grant for it—but in the meantime they will destroy the communities, the culture and the whole nature of our upland areas.

I add the proviso that, as the new schemes come in, the subsidy policy will have to be reconciled with other aspects of agricultural policy. It will not be a simple area. As the noble Duke just referred to, the SIs we have seen so far do not give us any clear indication of the way that policy will develop. This will be an ongoing issue between the subsidy regime and the agricultural support scheme.

[Lord McNicol of West Kilbride (Lab)]

My Lords, I am grateful to the noble Baroness, Lady Randerson, for tabling Amendment 4 and wish her well in her recovery from Covid—it seems that working on BEIS Bills is a Covid-risky business for us all. I also thank the noble Lord, Lord Bruce, for introducing the amendment.

On our Benches, we have been puzzled by the Government’s decision to include agriculture and fisheries in the new subsidy control framework. These are complicated sectors already governed by their respective post-Brexit Acts of Parliament. Given the complex nature of agriculture, I imagine it will be high up on the list of streamlined subsidy schemes created by the Secretary of State or by devolved authorities with approval.

There are genuine concerns around the Government’s approach to the withdrawal of CAP funding and the seven-year transition to environmental land management schemes, ELMS. We support ELMS and the UK Government and devolved Administrations having far greater flexibility than that afforded under the CAP. Nevertheless, as the NFU president Minette Batters has made clear in recent comments, these are challenging times for UK food producers. There has been a worrying long-term trend in the agricultural sector, as my noble friend Lord Whitty just stated, with smallholdings being snapped up by ever-growing larger conglomerates. We take no issue with the bigger producers being present in the UK, but we are concerned about the ever-increasing squeeze on family farms and hill farmers, who struggle to make a living without stable subsidy support.

I am sure the Minister will tell us that this amendment would raise all sorts of unintended consequences, not least that it would fundamentally undermine the ability of the Welsh Government to support their farming sector. However, due to Her Majesty’s Government’s treatment of subsidy control as an entirely reserved matter, there is not a common framework on this topic. This was already touched on in detail in Grand Committee. Specific nations and regions of the UK may have very different interests from those of their neighbours.

Public authorities will of course be able to do what they deem appropriate in the context of overarching subsidy control principles, but this is one area where we may end up seeing subsidy battles and/or legal appeals. Ultimately, this is an opportunity for us to say that, where agricultural subsidies are given, public authorities should have particular regard to issues around the hardship and profitability concerns of smaller producers. As with Amendment 3, we do not believe this text in Amendment 4 precludes any public authority from awarding any particular subsidy; it merely adds an additional consideration to the decision-making process.

Amendment 4 may not instantly solve the problems faced by Welsh farmers, for example, but let us remember that in terms of the Welsh sheep industry something like 90% of the breeding stock fall within upland areas and 70% are in what are known as severely disadvantaged areas. These farms are a crucial part of the British landscape and, while they may not be as profitable as others, there is a public interest in preserving them. We will listen very carefully to the noble Baroness’s arguments, but at this time we are minded to support Amendment 4.

[Baroness Bloomfield of Hinton Waldrist (Con)]

My Lords, before I turn to this amendment, I want to take this opportunity to correct the record. During the fourth Committee session of the Subsidy Control Bill on 9 February, I stated that data for England from the Rural Payments Agency showed

“that 99.5% of subsidies given to the agriculture industry in the UK would not fall within the remit of the subsidy”.—[Official Report, 9/2/22; col. GC 428.]

This figure was also provided in a letter dated 8 February responding to the points raised by several noble Lords during the third Committee session on 7 February. Late last week, the data was reviewed, uncovering a calculation error. In reality, Rural Payments Agency data for England shows 96.4% and not 99.5% of farm payment recipients are paid below the level of the minimal financial assistance threshold. I wish to clearly correct that for the record today.

But my conclusion still stands. The vast majority of agricultural subsidies will indeed fall below the MFA threshold and will not be subject to the substantive subsidy control rules, including the principles. It is only the largest subsidies, many of which will be to relatively large and well-off landowners, that will need to be assessed to ensure they comply with the common sense principles in this regime.

I turn to Amendment 4, tabled by the noble Baroness, Baroness Randerson—I wish her a speedy recovery—which was so ably introduced by the noble Lord, Lord Bruce of Bennachie. It seeks to add an additional principle to Schedule 1 that would require agricultural subsidies to be connected to the purposes listed under Section 1 of the Agriculture Act 2020. It would also require subsidies for agriculture to take particular account of areas of agricultural disadvantage and levels of marginality of land.

The subsidy control principles set out in Schedule 1 to the Bill are designed to apply equally to all strands of the UK economy. Their central purpose is to help protect domestic competition and investment, as well as trade and investment between the UK and other countries, from undue distortion which can arise from the giving of subsidies. This amendment, however, would radically depart from this. It would create a new principle which is not aimed at reducing distortion to competition, investment, or trade and is of no relevance to most types of subsidies.

The noble Lord, Lord Wigley, is quite correct: I am fully aware of the concerns of the farmers’ unions—particularly those in Wales, whose representatives I have met—and indeed those of the noble Lord, Lord Whitty. I reassure both noble Lords, however, that nothing in the new system will work against the granting of subsidies because, building on what the noble Lord, Lord Wigley, said, both agricultural and non-agricultural subsidies have much in common and need to work together to support rural economies.

The Bill establishes a clear, flexible framework for granting subsidies and will not inhibit public authorities from taking into account areas of agricultural disadvantage if they wish to do so. Agriculture is of course an area of devolved policy under the devolution settlements of Scotland, Wales and Northern Ireland. Spending decisions on agriculture are for the UK Government on behalf of England, and the three devolved Administrations in the areas in which they exercise their responsibilities. It is for them alone to take these spending decisions, so long as they are compliant with their domestic and international obligations, including the subsidy control regime. I cannot accept an amendment that would have the effect of putting further constraints on how devolved authorities exercise their powers.

My noble friend the Duke of Montrose rightly mentioned that the existing agricultural schemes and subsidies will be able to continue. The Bill provides broad and flexible grandfathering provisions for legacy schemes. Subsidies and schemes in existence prior to the Subsidy Control Bill coming into force may continue indefinitely if provided for under the original terms of the scheme. The Bill does not require subsidies made under legacy schemes to carry out an assessment of compliance against the subsidy control principles.

In particular, I cannot accept a reference to the Agriculture Act in this Bill. This section of the Agriculture Act is an excellent list of legitimate reasons to give financial assistance, many examples of which will be considered subsidies under the definition in the Bill. But I do not know whether my counterparts in the Scottish and Welsh Governments and the Northern Ireland Executive would welcome the application of this largely England-only legislation to their own agricultural policy, when it was never intended to serve that purpose.

The Bill has been designed to support public authorities in giving subsidies in line with their policy goals and the specific circumstances of their areas of responsibility, and the subsidy control principles are conducive to that. Principle A, for example, sets out that subsidies or schemes must be designed to remedy a market failure or address an equity concern. A subsidy designed to address agricultural disadvantage could certainly fall under one or both of these categories, depending on the type of disadvantage meant. Indeed, the Government’s amendment to add “local or regional disadvantage”, as an example of an equity rationale, underlines that.

Marginality of land may also need to be factored into the design of the subsidy or scheme where it is relevant. The subsidy control principles require a public authority to design their subsidies and schemes to change the economic behaviour of the beneficiaries, and to limit the subsidy to what is necessary to bring about the policy objective. It may very well be relevant to take into account the marginality of land to ensure that these principles are met. Fundamentally, however, it is not for the subsidy control regime to dictate whether agricultural subsidies—whether given by Defra, the devolved Governments or another authority—should account for less favourable pastoral land. In many cases it may well be appropriate for agricultural subsidies to factor in unfavourable conditions faced by farmers. However, this is for the public authorities themselves to determine and to incorporate into the terms and conditions of their own schemes.

The noble Lord, Lord McNicol, mentioned the common frameworks. The new domestic subsidy control arrangements and the UK common framework on agriculture are complementary. The inclusion of agriculture in the domestic subsidy regime will minimise the risk of distortions to UK competition and investment and ensure consistency across sectors. The common UK frameworks will enable policy proposals to be discussed and areas of disagreement resolved.

I hope I have managed to reassure noble Lords and, for the reasons I have set out, I ask the noble Lord, Lord Bruce of Bennachie, to withdraw the amendment on behalf of the noble Baroness.

[Lord Bruce of Bennachie (LD)]

My Lords, I thank the Minister for her response and all noble Lords who have taken part in this important and useful debate. There are just two or three things that need to be picked up. The noble Duke, the Duke of Montrose, started off with some sympathy for what we were saying but then turned against it, citing the continuation of the existing schemes. As the noble Lord, Lord Whitty, pointed out in his intervention, however, the world is changing—rapidly—and it may well be that, in the coming years, new schemes may be introduced and therefore that assurance would not have validity. Indeed, there is a general concern that marginal farms could be bought up by big institutions and squeezed out of existence.

I take the Minister’s point about the Agriculture Act, but we just wanted to make sure that we could add into the Bill the very good principles in the Act. I accept that it applies to England, but it would be very surprising if the Government of Scotland took issue with the principles in it. The point, nevertheless, is that farmers want an assurance that the support that they have had under various schemes since the Second World War is likely to continue in some form or other. There is a very real worry that that is not the direction of travel in which the Government are heading. That the matter is devolved does not preclude it also costing a significant amount of money, which previously came from the European Union’s common agricultural policy and now has to fall on the budget of the devolved Administrations.

I hope the Minister will understand, therefore, that the reason we are trying to put this in the Bill is to set out an explicit assurance that marginality will be a criterion that will be encouraged, just as a minor detail. Moreover, if that is in the Bill, it will make it more difficult for New Zealand or Australia, for example, to suggest that the subsidy is somehow incompatible with a trade agreement. Speaking with the experience of an MP for a farming constituency, I can assure the House that the suckler cow premium and the hill farmers have been the basis of building up the pre-eminence of Scotch beef and Aberdeen Angus beef. It is a system that has worked extremely well. Take the subsidies away from the hill farmers and prime Scotch beef will be much harder to deliver economically. The same applies to lamb in Wales and in Scotland. The hills of Scotland, Wales, the Borders and the Lake District without lambs and sheep would not be the attraction that they have been in the past.

I regret to say that I do not think that the Minister’s assurances go far enough, and I would like to test the opinion of the House.

19:46

Division 6

Ayes: 110

Noes: 125

Schedule 2: The energy and environment principles

Amendment 5 not moved.

20:00

Consideration on Report adjourned until not before 8.45 pm.

P&O Ferries

Tuesday 22nd March 2022 Lords Chamber

Statement

The following Statement was made in the House of Commons on Thursday 17 March.

“Earlier today, P&O announced its decision to make around 800 seafarers redundant on several routes across the UK. Let me say right off the bat: the way that these workers were informed was completely unacceptable. I will say more on that in a moment or two. While this is fundamentally a commercial decision for the company, I wanted to come to the House today to inform Members about our latest understanding of the situation and what is now being done.

In taking this decision to make seafarers redundant, P&O has also today informed us that it will be suspending services, for approximately a week to 10 days, while it locates new crew. The affected routes are Dover to Calais, Larne to Cairnryan, Dublin to Liverpool and Hull to Rotterdam. I know right across the House will share my concern over the loss of these routes, but I should stress that P&O says they are only temporary and that alternative provision will be provided by other operators, to whom I am extremely grateful.

Passengers will still be able to travel to and from the UK, including across the channel, with freight coming in and out of the country. I understand that DFDS is stepping in to provide alternative services for passengers with valid tickets, and I would like to thank DFDS for its swift action.

However, I must warn travellers that they should expect some disruption over the coming days. I have asked my officials to liaise with the Kent Resilience Forum and the Cabinet Office to closely manage traffic in Kent over the coming days while P&O works to restore services. Today, the Dover TAP—the Dover traffic assessment project—has been activated, although as Members will know that is not all that uncommon, and there is some queuing on Jubilee Way, although the Port of Dover expects this to reduce over the afternoon. I have also asked officials to remain in close contact with other resilience forums around the country, as well as the devolved Administrations, in managing this issue.

We of course have long planned contingencies for such situations and disruption, particularly around the channel, and I do not expect the supply of critical goods and services to be impacted as a result of this decision by P&O, although queues on the way to Dover are more likely to occur at times. Modelling suggests we have sufficient capacity to handle the temporary loss of these P&O ferries.

Let me turn now to the issue of the seafarers. These are hard-working, dedicated staff who have given years in service to P&O. The way they have been treated today is wholly unacceptable and my thoughts are first and foremost with them. Reports of workers being given zero notice and escorted off their ships with immediate effect, while being told cheaper alternatives would take up their roles, shows the insensitive way in which P&O has approached this issue—a point I made crystal clear to P&O’s management when I spoke to them earlier this afternoon.

As I told Peter Hebblethwaite, I am extremely concerned, and frankly angry, at the way workers have been treated today by P&O. As a matter of urgency I have asked my department to liaise closely with counterparts in the Department for Work and Pensions to ensure that workers are being signposted to the most relevant support, and I am intending to call the trade unions immediately after this Statement to discuss the situation with them.

There can be no doubt that the pandemic has had a devasting impact on the finances of many travel companies, including P&O. But while their finances are matters for them, and them alone, I would have expected far better for the workers involved. We will continue to engage closely over the coming days, and I commend this Statement to the House.”

20:01

[Lord Rosser (Lab)]

The Statement is remarkably laid back. The decision

“is fundamentally a commercial decision for the company”.

So that is all right, then.

“I have asked my Department to liaise closely with counterparts in the Department for Work and Pensions to ensure that workers are being signposted to the most relevant support”.


The Government have accepted that 800 people have abruptly and probably unlawfully lost their jobs—and everything is hunky dory.

“I am intending to call the trade unions immediately after this statement to discuss the situation with them”.


Perhaps we could now be told what the outcome of that discussion was, how long it lasted, which trade unions were involved and how many subsequent discussions there have been between Government Ministers and the trade unions?

Finally, on P&O, the Statement meekly says:

“Their finances are matters for them, and them alone”.


Forget the furlough money it claimed from taxpayers; forget the wealth of its owners, DP World; and forget the approximately £140 million it splashed on sports sponsorship, despite the pension fund being saddled with a deficit of a similar amount.

In a nutshell, the Government’s Statement says that this a commercial decision by the company, its finances are nobody else’s business, and they will tell the 800 sacked seafarers which website or body to go to in order to inquire about job prospects. But yes, the Commons Minister also said:

“I would have expected far better for the workers involved”.—[Official Report, Commons, 17/3/22; cols. 1140-41.]


That Statement really will have shaken the company to the core, as will the demand from the Secretary of State that P&O rename its vessels to remove any suggestion of a link with Britain.

Beyond the ritual wringing of hands there is a deafening silence from the Government about what they intend to do now—yes, now—to pull this company up short, get this instant sacking decision reversed and send a loud and clear message to other companies to not even think of going down a similar road themselves. Doing that, though, is just not what this Government do when faced with a company treating its employees almost like criminals. A certain amount of wringing of hands, yes, but action, no.

Let us look what the Government’s priorities have been recently on industrial relations. The other week they forced through secondary legislation on compelling trade unions to fork out for the cost of certification officers, who have precious few complaints to deal with. Before that they had been opposing a Private Member’s Bill from a Labour MP to bring an end of the insidious practice of fire and rehire on inferior terms. There was no priority, one notes, for levelling up the playing field between employer and employee, as exposed by this episode, where in most situations the need of the employee for a job is greater than the need of the employer to employ that employee.

What the Statement reveals is the lack of any meaningful legal redress for the sacked 800. If there was clear and effective legal protection against the kind of action we have just seen, it would have been taken. But there is not, and the company knows that, which is why it carefully planned this far from spontaneous action over a period of time in the secure knowledge that what it was doing—even if in breach of the law—would be far more financially advantageous than abiding by recognised and established procedures.

A decisive majority of employers behave decently towards their employees, but there are still too many who do not, and one of those is clearly P&O Ferries and its owners DP World. The company refers to its losses as being unsustainable, but presumably this situation will now improve as the adverse impact of Covid on business and travel diminishes—or was the House of Commons Public Accounts Committee spot on in its recent report showing how our trade with the EU has declined following Brexit? Does P&O Ferries know that its traffic lost by Brexit will not return, with this abrupt mass sacking and employment of cheaper labour being an early example of the Brexit “dividend” we have heard so much about from the Prime Minister?

The abruptly sacked employees appear to have been offered an enhanced redundancy payment with a deadline of 31 March to accept, otherwise it will be withdrawn. It would appear that P&O is hoping that it will be difficult to advise the sacked employees that they have reasonable prospects of recovering more in an employment tribunal from an unfair dismissal claim.

The Government have been aware of this issue of sacking and then employing cheaper labour for some time. In a debate in this House on the National Minimum Wage (Offshore Employment) (Amendment) Order 2020 on 25 June 2020, the Minister responding said:

“We are aware that … ferry routes are largely not covered by the amendments and that some ferry services may be using low-cost employment models … We are committed to improving standards here and will consider other options in regard to these operations … The noble Baroness moved on to discussing differential pay. Maritime is the only sector in the UK that continues to permit this … The industry will still state that differential pay is the necessary requirement and that seafarers are paid a competitive rate when considered against the average salaries they could receive in their own countries. I acknowledge that this remains a difficult argument to accept when it would not be accepted in any other sector. The Government will consider whether further changes are required when the Equality Act regulations are reviewed towards the end of this year.”—[Official Report, 25/6/20; cols. 430-31.]


So, two commitments were made in June 2020: first, to

“consider other options in regard to these operations”—

that is, low-cost employment models—and, secondly, to

“consider whether further changes are required when the Equality Act regulations are reviewed towards the end of this year”.

Can the Government now say what the outcome was of those two commitments? Can they also say whether P&O Ferries had ever told them prior to last week that moving to what is euphemistically called a low-cost employment model was an option it was considering?

We now know that the Government were told by P&O Ferries and DP World of their actual intention the day before the 800 staff were abruptly told they were no longer required and that the Government took no action to try to stop it happening. What we want to hear tonight from the Government is what action they will take, first, to see that the 800 staff abruptly sacked are reinstated and, secondly, to ensure that a similar episode of abrupt mass sacking cannot happen again because the law will be tightened up as a matter of urgency and penalties for breaching it reviewed so that, financially, it would be a non-starter for any company to behave in the way that P&O Ferries and DP World have behaved towards their employees. The Secretary of State’s apparent priority of renaming ships as a remedy just will not suffice.

[Lord Fox (LD)]

My Lords, I want to talk about business culture, the culture of an organisation that takes action like this, the culture that led the management of P&O to turn these people out of their jobs with no notice because they could, or thought they could—Zoomed out of work after years, decades, of service to that company. There was no empathy or self-awareness in this action, and there was no understanding that it was wrong. The fact that the management was unwilling or unable to see this speaks volumes about the culture of P&O and that of its owner, DP World.

But how about closer to home? It is clear that government officials were warned about this act of corporate brutality, so can the Minister confirm to your Lordships’ House who knew in advance? Can she tell your Lordships why this knowledge rang no alarm bells? That it was apparently waved through also reveals the culture of this Government: they had time. If the Government allow this sort of behaviour to go unchecked, what sort of precedent does it set or reinforce? Will others, yet more in the shipping industry, argue that they are compelled to follow suit in order to remain competitive?

Speaking on the BBC’s “Today” programme on Friday 18 March, the spokesperson for the UK Chamber of Shipping, Peter Aylott, said at the end of an interview that he was content and very confident that P&O had acted properly. Does the Minister agree with the trade body?

Despite their knowing in advance, since the announcement, the Secretary of State and other Ministers have wrung their hands, as the noble Lord, Lord Rosser, pointed out. These displays of remorse are mere crocodile tears unless the Government actually do something. Ideally, the Government should cause P&O to think again. They should use their leverage on the parent company to make it make its company change its mind.

Assuming that that is not possible, here are a few ideas for the Minister and the Government. First, can the Minister say here and now that the Government will make sure that not one penny of the settlement to which these employees are entitled is withheld by P&O using legalistic threats and wrangles? Secondly, has the Minister spoken to the Pensions Regulator and can she assure your Lordships’ House that the pension fund it safe and will not need to be topped up by the Government or under the pension guarantee support scheme? Can she confirm that the huge amount of money P&O owes to the rating pension scheme is still on the hook and it will still pay it?

Thirdly, can the Minister undertake to ensure that every one of the new employees, if this has to go ahead, is reviewed for their qualifications? I fear that unqualified people will take these jobs, and that is a safety issue. P&O Ferries has obligations under the International Safety Management Code, which requires each vessel to have a safety management system. That system is then audited by the Maritime and Coastguard Agency, which produces a document of compliance. Can the Minister explain how on earth P&O can still comply with that vital safety certification if it has made a 100% change of crew?

Then there is the role of the corporate owner of P&O in the UK economy. Please will the Minister undertake to give a list of all the public contracts that are held by DP World, and can she explain how, on the one hand, her Secretary of State can say what he did about P&O and, on the other, those contracts can possibly be retained by its parent company?

Finally, there are freeports. DP World is at the forefront here. The Chancellor of the Exchequer, Rishi Sunak, personally opened the DP World-backed Thames Freeport. Speaking at the commercial launch, at the Saudi Arabian owned Savoy Hotel in London, the Chancellor said he was “thrilled” by DP World’s involvement. His level of thrill will no doubt have been doubled by the fact that DP World Southampton has also been awarded freeport status for the Solent Freeport. There is an inherent danger with freeports. They hold huge potential to be hotbeds of tax evasion and money laundering. For that reason, it is vital that organisations leading such ventures have an impeccable moral compass. After the events of last week, we now know that DP World presides over a culture that fails to understand the moral implications of its actions. It has a wonky moral compass. Is that really the sort of company that we want running our freeports?

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

My Lords, I thank the noble Lords, Lord Rosser and Lord, Lord Fox—the latter standing in for the noble Baroness, Lady Randerson, so well today—for their comments on this very regrettable and mishandled situation. The Government do not support the behaviour of P&O Ferries—clearly at the behest of its owner, DP World. It was an appalling situation for those workers to be in, and it will have had a devastating impact on the corporate reputation of P&O Ferries and DP World. I should like to point out that this is P&O Ferries, not P&O Cruises, which is owned under a different structure and has nothing to do with the ferries. I would not want this regrettable incident to bear too heavily—indeed, at all—on the cruises.

I will turn to the points raised by the noble Lords, Lord Rosser and Lord Fox, in due course, but I will first clearly set out that the Government are exploring all options to hold P&O Ferries and DP World to account. The circumstances are still unfolding. At this point, we need to get a clear understanding of what they are, what rights the seafarers have and what they are being offered by their very recent employer. It is also worth remembering that P&O Ferries still employs well over a thousand people—possibly up to nearly 2,000. We need to make sure that we understand what may happen to them and what P&O Ferries intends for them.

The world of employment law on international routes is hugely complicated. In many circumstances, the jurisdiction of the flag state applies on board vessels on international routes. Occasionally, that can also be a coastal state or the state under which the contract of employment was signed. We believe that was Jersey for some of these workers, but there is an awful lot of information to be found out about the circumstances surrounding the contracts and employment of these individuals. We are working very closely with officials in the department to press P&O Ferries and its owner, DP World, for the information we need to fully get to grips with some of the issues we want to proceed with. As mentioned by the noble Lord, Lord Fox, we are looking very carefully at our contracts with P&O Ferries and DP World. We will immediately review them all.

The noble Lord, Lord Rosser, mentioned furlough. It was, and remains right, that those employers received furlough. It is paid to the employee. It would be absolutely wrong to assume that P&O Ferries would have benefited from furlough, and those workers certainly had their jobs protected for longer because they got it. I still believe that providing furlough was the right thing to do in those circumstances. However, we will very closely consider the relationship of the UK Government with both organisations and put P&O Ferries and DP World on notice that their relationship with Her Majesty’s Government has now changed.

We have instructed all parts of government to do whatever they can to support the workers who have been impacted. Obviously, we are in touch with DWP, which will work with local employers. I am incredibly heartened by some of the messages we have had from local employers across the country looking for these highly skilled individuals and wanting to get them on board.

We have instructed the Maritime and Coastguard Agency to inspect all P&O vessels, including operational drills, to ensure that all new crews rushed through are safe to go to sea. They will not go to sea unless they have passed all those inspections. We have asked the Insolvency Service to look at the notification requirements and the specifics of the case, to consider whether action is appropriate. P&O has assured the maritime Minister that what it did was correct and legal. We are checking that that is the case and will seek further confirmation. There is a requirement to notify the BEIS Secretary of State if a redundancy notice is intended for more than 100 people. Again, we need to check which legislative framework that applies under.

We are calling on P&O Ferries to reconsider its actions, pause changes and start a meaningful dialogue with seafarers. The Transport Secretary has written to the company with an offer to facilitate discussions. There is quite a long way to go, but I share the anger expressed by both Front-Benchers about the manner in which this was carried out. We—the global we, as in my department and officials—were made aware on the afternoon of 16 March, the day before, which might have been a Wednesday, that this was happening. A very factual note was prepared—I often get factual notes telling me what is happening.

I think the noble Lord, Lord Fox, said it was waved through. Nothing was waved through. There was never a decision to be taken and Ministers were not aware of the note until matters became more urgent on the Thursday morning. It is the case that we are working very closely to understand exactly what has gone on here.

I want to point out at this stage because there has been much outrage—and I am outraged and think noble Lords should all be outraged—that the redundancies announced last week were actually much smaller than the redundancies announced in 2020 and in 2021. I missed the noble Lord’s outrage at that time. I am sure he probably felt it, but it did not appear. Why now and not the previous time? It is because it was done so badly and in such a poor fashion that it is outrageous that any company worth its salt would feel that it is okay to treat human beings in this way.

The noble Lord, Lord Rosser, referred to possible breaches in the law, and that is exactly what we are focusing on: which law might there have been breaches of and how are we going to address it? I have mentioned that the law is substantially different on international routes. We work on an international basis within the International Labour Organization’s Maritime Labour Convention, which sets out the minimum standards on some key employment and working conditions policy, but I absolutely accept that there is more to be done. This is an international workforce. It works globally. It works onboard. It is something that the UK Government can only influence internationally.

I will take the noble Lord’s point about the nationality-based pay differential. He noted that the regulations are due for review. I concede that the review has not been completed. The delay will have been due to Covid and other pressing needs on the legislative programme, but I will write to him with further details of what that review will be.

The noble Lord, Lord Fox, asked whether I felt that P&O acted properly. Clearly, I feel that it did not. There is an awful lot of work to be done. I do not know whether it will ever be able to rebuild its reputation because I fear that many people will vote with their feet. He also mentioned something important about the pensions. There is a deficit in the pension scheme and P&O will still be accountable for that deficit.

He asked whether the MCA will be reviewing the qualifications and the systems. As I have said, there will be a—how can I put this?—very thorough review by the Maritime and Coastguard Agency to make sure that these vessels are fit to go to sea. He mentioned a 100% change of crews. Again, I am not sure that there is a 100% change of crews. It could well be that certain crew members have been changed because, of course, P&O Ferries still employs well over 1,000—possibly up to 2,000—people.

I will check Hansard and go through any other points but, for the time being, I will move on to other questions.

20:23

[Baroness McIntosh of Pickering (Con)]

My Lords, will my noble friend accept that there is outrage across the House at these developments? The shock wave is such that no one quite understands what the implications are for other companies if they seek to do the same. Can my noble friend explain what the position is under the retained EU law that we have spent hours, days and weeks on since we left the European Union? I understand that means if a company wishes to act in this way, there has to be a statutory period of consultation. Why does that not apply in this case? Is it deemed to be an international route now because we are a third country? The difference in 2020 was that we were part of the European Union. Is that a clear understanding of the situation?

The only other point I would like to raise is: what is the ability of Her Majesty’s Government now to requisition such ships as owned by P&O if we encounter a time of hostility? Are we still able to requisition its services as we were in the past when it was owned under a British flag?

[Baroness Vere of Norbiton (Con)]

I will have to write to the noble Baroness about requisitioning. I believe that these vessels all fly under the flag of Cyprus and have done for some time. I am afraid that I am not an expert in requisitioning, but the law surrounding the employment of these seafarers is very complicated. There may be various jurisdictions under which they fall, but in previous times when redundancies have happened—and I mentioned earlier redundancies in 2020 and 2021—there was consultation and notification. So it is not right that this time P&O felt that it could get away scot free by not at least having the conversation. We recognise that sometimes negotiations do not work out and employers may have to make difficult decisions about making people redundant, but it must be worth at least having that conversation.

[The Archbishop of Canterbury]

My Lords, it seems that there is a lack of clarity about what is going to happen. I need to declare an interest, as Dover falls within the diocese that I serve, and economic effects in Dover affect the finances of the diocese of Canterbury. There seems to be a lack of clarity in what the Government are saying. First, we need to be assured not just that letters will be written to the noble Lord, Lord Rosser, useful as they will be, but that there will be a further Statement to your Lordships’ House setting out the results of the inquiries that the Government are making legally. Can the Minister assure us that that will be done, and at what point?

Secondly, there certainly seems to be a possibility of very sharp cuts in wages paid to the crews of these ships. Can we be assured that they will fall no further than the national minimum wage in this country? If the law does not permit that, can the law be changed?

Thirdly, in the United States, questions of security and national interest ensure that United States ships on crucial routes are flagged in the United States and crewed by United States citizens. Will be the Government undertake to look at the security implications of crucial short crossings across the channel being crewed by those from all over the world rather than those who are committed to the interests of this country?

[Baroness Vere of Norbiton (Con)]

I thank the most reverend Primate for his concern and intervention in this really important topic. We will return to the House and make further Statements. I know that colleagues from BEIS will look at the employment law elements of this issue, and I believe that there is a Question in your Lordships’ House tomorrow, should he wish to press this further.

On the wages of the crew, there are various media reports flying around—again, we do not have confirmation as to what will happen about the wages there. If they are operating on domestic routes within territorial waters, such as from Larne to Cairnryan, they will receive at least the national minimum wage. It is the case—if there is possibly a silver lining for some of those people who may well be losing their jobs—that they will receive six months’ pay plus 2.5 weeks for each year of service. So I am very much hoping that for those people we will be able to fire up the DWP services and work with local employers, and they will also have what is well above a statutory settlement as a result of their redundancy.

The most reverend Primate asked about the security of really important routes, and I recognise that and will take it back to the Maritime Minister and ask him to consider it.

[Lord Rogan (UUP)]

My Lords, the great port city of Larne has suffered a devastating blow by the outrageous actions of P&O, with around 50 Northern Ireland workers losing their jobs, many of whom were long-serving seafarers with families to feed. Meanwhile, the Road Haulage Association has said that Northern Ireland hauliers are now operating at around 50% capacity, with food supplies particularly badly affected. With services on this route not expected to resume for at least a week, will the Minister outline what direct action the Government are taking to safeguard the needs and well-being of the people of Northern Ireland who are already dealing with a never-ending supply problem related to the disastrous post-Brexit protocol?

[Baroness Vere of Norbiton (Con)]

Of course, the Government are watching the services and their capacity levels very closely at the moment. Our assessment is that there is sufficient capacity with other operators. For example, at the short straits, Eurotunnel combined with the other operators will provide sufficient capacity. Obviously, we are monitoring this on an hourly basis and working very closely with operators to see how they can put on extra ships to ensure that freight and passengers are able to move appropriately.

[Baroness Foster of Oxton (Con)]

My Lords, as a former trade union negotiator, albeit in my past life and in the airline industry, there were times when we had to negotiate under the most difficult circumstances, particularly concerning downsizing or cost savings. Schemes such as early retirement, voluntary severance and, often, flexible contracts were ways to resolve this issue. Fortunately, we never had to dismiss an employee. Notwithstanding the appalling behaviour of P&O, as has been clearly echoed by Members across this Chamber, could the Minister tell me how long the negotiations took between the trade unions and P&O regarding these redundancies? Were the paid-up members of the trade unions aware of the consequences of an agreement not being reached between the trade unions and P&O? If the Minister does not have this information to hand at present, could she look into this matter with some urgency? In my opinion, while the trade unions are clearly not responsible for these job losses, they were a huge influence in the negotiations which took place.

[Baroness Vere of Norbiton (Con)]

I can say to my noble friend that we do not believe that there was consultation with the unions, which is one of the big problems here. We have asked for urgent information as to how many conversations there have been. It is our impression, at this current time, that there have not been any conversations. If there were none, that may well be unlawful. That would be up to the employees to challenge via a tribunal. It will also depend on where the jurisdiction for the contract of employment actually lands. My noble friend is quite right that we need to dig into this in an urgent way to ensure that unions are not locked out of these circumstances in the future.

[Baroness Bennett of Manor Castle (GP)]

My Lords, the Minister, in responding to Front Bench questions, rightly said that this action will have a devastating impact on the reputations of P&O Ferries and DP World. The Minister further said that any company worth their salt “would not behave in this way”. The Minister said that the relationship between the Government and DP World has now changed. With that in mind, building on the questions of the noble Lord, Lord Fox, given the fact that freeports are by definition places of, if not lawlessness, certainly reduced legal protection for workers in terms of taxation and so on, how can the Government leave freeports with that kind of structure in the hands of a company which, in the Minister’s own words, has a devastated reputation?

[Baroness Vere of Norbiton (Con)]

I am not entirely sure I agree with the noble Baroness that freeports are areas of lawlessness. The point that I am trying to get across is that we are not sure that laws have been broken. Do I feel that, ethically, things have been done that should not have been done? Absolutely. But we do not know that laws have been broken. When it comes to the situation concerning freeports, which the Government wholly support, we are working urgently to establish the facts of what happened. There is a lot of speculation and comment in the media; we need to establish the facts and whether laws have been broken. We will then consider how this might affect any involvement of DP World in British freeports.

[Lord Purvis of Tweed (LD)]

My Lords, I agree with the Minister when she says that it is not okay to treat human beings like this, and that we will be holding DP World to account. DP World is not a public listed company but a fully owned company of the Dubai Government. Has any Minister picked up the phone to Sheikh Mohammed or any of the Dubai authorities to say that it is unacceptable to treat workers like this in our country? How will we be holding the Dubai Government to account, since they own DP World?

[Baroness Vere of Norbiton (Con)]

That is an excellent question to which I do not have the answer, but I will write to the noble Lord.

[Lord Dodds of Duncairn (DUP)]

My Lords, on the issue of whether any laws were broken, it is very clear that there needs to be some kind of law to prevent this kind of despicable mass firing and rehiring of hundreds of workers in the way that P&O has acted. Since employment law is a devolved matter, certainly in the case of Northern Ireland, will she undertake on behalf of the Government to liaise with the devolved Governments about any changes that are being thought about? Further to the question asked by the noble Lord, Lord Rogan, can she assure me that the Government have looked at the specific issue of supplies coming from Great Britain to Northern Ireland? We depend an awful lot on our air and sea connectivity. Given the problems of the protocol, can she tell us that the specific channel between Larne and Cairnryan has been examined by the Government?

[Baroness Vere of Norbiton (Con)]

I can reiterate that all of the routes previously operated by P&O Ferries and currently temporarily suspended are being reviewed by the Government; we are assessing and ensuring that capacity is available. The noble Lord talks about an incredibly difficult and complicated area; of course we will have conversations with the Northern Ireland Executive and, indeed, all devolved Administrations about how we can ensure decent standards for those seafarers who work on the international routes.

[Lord Browne of Ladyton (Lab)]

My Lords, this template must be deeply worrying for the Government. Post Brexit, we were going to be a high-wage, high-skilled economy; now we discover that there may well be a massive loophole in this ambition, through which companies like DP World and P&O Ferries that are motivated to do so can drive a coach and horses. If they can complicate their contracts in ways that are not covered by our law, they can dismiss people by not giving them appropriate notice, or any notice in this case, and not consulting with unions as they would otherwise be required to do, and then replace them with low-paid, apparently unskilled or lower-skilled workers on very temporary contracts where they have no continuity of work. The Government must be very worried if they have discovered this, so what are they going to do to make sure that nobody else can drive a coach and horses of this size through the protection of workers, particularly high-skilled and high-paid workers?

[Baroness Vere of Norbiton (Con)]

I do not feel that this is a systemic problem for the British economy. These are unique circumstances; they apply to the maritime sector where, of course, there is a very global workforce, particularly on the international routes. When you operate in non-territorial waters, the different jurisdictions that can apply are many and varied, as I said earlier, depending on the flag of the vessel and various other factors. So I do not see the issue that the noble Lord is painting as a widespread systemic factor across the economy, but it is something that we will need to be well aware of for maritime purposes. It is the ambition of this Government to build our skills in maritime as a world-leading maritime nation; indeed, our document Maritime 2050 set out how we were going to augment British skills to get them onto British-flagged vessels.

[Baroness Wheatcroft (CB)]

My Lords, I apologise for missing the beginning of the Statement; I hope that the Minister will still allow me to ask my question. I want to push her on freeports. DP World has the second and third-largest ports in the country; two of them are already designated as freeports. Can the Minister assure us that those who are employed in a freeport will have to be paid at least the minimum wage, in England as well as in Scotland?

[Baroness Vere of Norbiton (Con)]

I do not have any information on the employment status of workers in freeports but, if I can find out any information, I will certainly write to the noble Baroness.

[Lord Davies of Brixton (Lab)]

My Lords, I want to pursue the issue of pensions, which was raised by the noble Lord, Lord Fox, and highlight the question to the Minister: to what extent are the pension arrangements that apply to these workers under threat? Is the company doing this because it is encountering commercial difficulties? Is the covenant to which most company pension schemes rely therefore under any sort of threat? The fact that the pension arrangements are continuing is not sufficient comfort.

It is also important to understand that two pension arrangements are involved here: the P&O scheme and whatever other arrangements that provide pensions for the unfortunate workers who have lost their jobs, and the Merchant Navy Ratings Pension Fund, which is a separate arrangement in which I assume many of those who have been fired have deferred benefits. Because of the way that scheme has operated in the past, P&O potentially owes it a lot of money. There was an implication that pensions are not a problem but the issue bears further investigation and reassurance, both to the House and to the workers involved.

[Baroness Vere of Norbiton (Con)]

I would be pleased to take that issue away and ensure that we have looked into it in great detail. My understanding is that the employees’ pensions are protected. We are aware of the pension deficit in the Merchant Navy Ratings Pension Fund; P&O Ferries will need to pay what it owes.

[Viscount Waverley (CB)]

My Lords, presumably it is the gift of the Government to award these licences for P&O to operate to various destinations. Will the Government look carefully at the possibility of rescinding those licences, or, when they come up for renewal, at all possibilities of other carriers being used to replace P&O, so that, in other words, its future in this country, and that of DP World, is finished?

[Baroness Vere of Norbiton (Con)]

In these circumstances, we have to think carefully about taking steps such as those outlined by the noble Viscount. I am not aware that we would impose licence conditions as stringent as the ones he potentially proposes. As I said, I am conscious of the fact that well over 1,000 people still work for P&O Ferries. I would very much like them to have a successful career, hopefully with an organisation that takes a step back and learns its lessons, and then reapproaches the market with the sort of costumer-facing and employee-facing attitude that this Government want to see.

[The Deputy Speaker (Lord Russell of Liverpool) (CB)]

My Lords, the 20 minutes allotted for Back-Bench questions have now finished. We will allow a minute or so for the House to adjust itself for the next business, before we continue on Report.

Subsidy Control Bill

Lords Hansard - Part 2 & Report stage
Tuesday 22nd March 2022 Lords Chamber

Report (1st Day) (Continued)

20:45

Clause 10: Subsidy schemes and streamlined subsidy schemes

Amendment 6

Moved by

[Lord Thomas of Cwmgiedd]

6: Clause 10, page 6, line 31, after “Crown” insert “of his or her own accord or by a Minister of the Crown upon a reasonable request to make such a scheme addressed to him or her by the Scottish Ministers, the Welsh Ministers or the Department for the Economy in Northern Ireland”

[Lord Thomas of Cwmgiedd (CB)]

My Lords, in moving Amendment 6, I shall also speak to Amendments 58 and 64 and deal with three issues relating to devolution. I am grateful for the support of the noble and learned Lord, Lord Hope of Craighead, the noble Lord, Lord Wigley, and the noble Baroness, Lady Randerson—although obviously she is not here—on Amendment 6, and of the noble and learned Lord and the noble Lords, Lord Wigley and Lord Fox, on Amendment 64. I shall deal with those two amendments first.

I think it can truly be said that Amendment 6 is a very modest amendment because, unlike what was before the Committee, it does not seek to give the devolved Governments the power to make streamlined subsidy schemes, nor to submit them to their own Parliaments, but simply seeks to make it clear that if a reasonable request is made to the Secretary of State for a streamlined subsidy scheme by one of the devolved Governments then the Secretary of State would make such a scheme and lay it before Parliament in due course.

There are two reasons for that. First, it seems completely wrong in principle for the Secretary of State of his own accord to be able to make streamlined subsidy schemes within an area of devolved competence —I hope that is not in dispute. Secondly, there can really be no justification, if the nations of our kingdom are to be treated on the basis of equality, for the Secretary of State, having the power qua Secretary of State and Minister for England, to have the privilege of making these schemes for England that cannot be made in devolved areas of competence for Wales, Scotland and Northern Ireland. I therefore find it extraordinarily difficult to see what the objection is to this in principle, unless of course there is a commitment by the Government to provide for that in some other way.

On Amendment 64, it is a risk to claim that I am making a second move for a modest amendment, but again, when this is looked at, it will be seen to be modest. It would require the Secretary of State to seek consent from the devolved Governments in respect of some of the regulation-making powers, but not all of them, and in respect of guidance. I think we have debated long enough why guidance is so important.

This amendment is modest for a second reason: it would require the Secretary of State to consult and try to seek agreement over the period of a month. Thereafter the Secretary of State would be free, provided that, as no doubt a reasonable Secretary of State would always do, he had good reasons for not being able to obtain that consent. Again, there may be other ways of achieving that result, and I look forward with interest to hearing what the Minister has to say. It is very difficult to see what objection there could be to this measure.

Amendment 58 raises a very different point. I tabled it simply because it raises an issue of considerable constitutional importance, and one certainly treated by the devolved parliaments and Governments as such. There has been extensive debate in the devolved Governments about it and quite a lot of academic criticism. As is known, this schedule to the Bill sets out an elaborate procedure under which subsidies that have been made under the primary legislation and passed by the devolved legislatures can be challenged in the ordinary courts for breach of the subsidy control and other principles. The position of the Westminster Parliament, which may itself be able to pass legislation that breaches those principles, is of course different because of the principle of parliamentary sovereignty. There is no way this House could constrain a future House from passing a scheme in favour of England or doing something in respect of England which breached the subsidy control principles. It would simply be answerable for breach of its international obligations assumed under the treaty, but that has not always been a treaty with which the Government have accorded full and sufficient attention.

The devolved legislation originally contained principles—and all the amendments have contained principles—that, where the powers of the devolved legislatures are constrained, any issues as to whether they are in fact constrained in legislation passed are remitted to the Supreme Court. This legislation moves away from that fundamental principle, and it is important to realise the considerable concern caused by this move. It arises because, where a court decides to set aside the decision of the elected representatives of the people, considerable concern is always expressed. That concern should be dealt with by a special process, and submitting it to the ordinary courts is not right.

I am afraid that this amendment is a long and complex one and I will not attempt to go through it because it had to go through all those hoops. I have raised it because it seems quite impossible for us to pass this piece of legislation without noting what we are doing. Although I can see the hour—this is not the time for a debate on important constitutional principles—I very much hope that raising this issue now will give the Government pause to think about this and for this House to debate in future how we deal with the problem of ensuring that, when the people of Wales, of Scotland and of Northern Ireland for reasons of quite complicated constitutional doctrine have made a decision through their legislatures, that should be questioned only by a very senior court, through a process that is carefully thought through. We will need to return to that in due course.

Those are the reasons why I have put forward these three amendments, and I beg to move.

[Lord Hope of Craighead (CB)]

My Lords, I have put my name to Amendments 6 and 64 and I would like to say a word or two about them. I did not put my name to Amendment 58, partly because it came a bit later, although I discussed it with the noble and learned Lord, Lord Thomas, and I understand its structure and support the reasons behind it.

I remember standing here and smiling at the Minister about a week ago because he had put forward an amendment to another Bill in which he was proposing, with our agreement, that the consent of the Scottish Ministers should be obtained before certain steps were taken. I am afraid I have forgotten the name of the Bill and the particular amendment but I think we all congratulated the Minister because he was, I think, following advice that came from the Constitution Committee, which suggested that it was appropriate that this kind of measure should in the Bill. I had the feeling that the tide had turned and that we might see more of that sort of thing.

The noble and learned Lord, Lord Thomas, already made the point that Amendments 6 and 64 are really quite modest, and it is difficult to see any harm that is done to the structure of the Bill or indeed the way matters are worked out by putting into the Bill—through Amendment 6, for example—that a Minister of the Crown may be requested by the devolved Administrations to put forward a streamlined subsidy scheme. The Minister is not bound to give effect to that request, but it does mean that there is an avenue for the devolved Administrations to ask for a particular scheme to be proposed by him. It would be a reassurance to the devolved Administrations that their position has been properly recognised. After all, it is a partnership throughout the United Kingdom to make this scheme work. We do not want to fall into the trap of the then internal market Bill, which was notorious in seeming to ignore the devolved Administrations altogether.

These are modest amendments, as the noble and learned Lord said, which do not disturb the overall working of the Bill. If one is trying to recognise the position of the devolved Administrations, this kind of provision in the Bill would be very welcome, as it was in that Bill last week.

Amendment 58 enables me to ask the Minister about what paragraphs 6 and 7 in Schedule 3 are really doing. They refer to the “appropriate court”; the noble and learned Lord, Lord Thomas, asked whether it is properly designed. It talks about

“subsidy proceedings before the appropriate court”

in which the issue before the court is to be

“assessed by reference to the considerations and views of the promoter of the proposed devolved primary legislation”.

Who will bring these proceedings? It is an important question which I hope that the Minister might answer. What is meant by the assessment

“by reference to the considerations and views of the promoter of the proposed devolved primary legislation”?

Who will be the promoter? The wording of these provisions leaves a great deal to be discovered later. I would very much like to know what exactly is going on here, who will initiate the proceedings, and why the assessment is designed as it is in these paragraphs.

That brings me to the point that the noble and learned Lord, Lord Thomas, was making—that we are dealing here with a matter of great constitutional importance. Apart from the Scotland Act, no other provision directs a court on how to deal with proceedings brought against legislation passed by the devolved parliament. It must be remembered, as he was saying, that the devolved legislatures are democratically elected with the mandate of that democratic election behind them. One is not dealing here with delegated legislation. A much higher order of legislation is being considered, which deserves to be assessed with reference to the mandate that the parliament or assembly has from the electorate which gave it life. It is very important to appreciate the extent to which one is dealing here with matters of real importance to the Administrations and giving proper weight to the democratic mandate which they have.

The advantage of going to the Supreme Court is twofold. First, it avoids the possibility of appeals in the normal process, where the appropriate court takes its decisions and there are then appeals and the proceedings are delayed. The Supreme Court process is very simple and very quick. You go direct to the highest court under a reference which identifies the issue. The court then deals with it. The other point is the uniformity which the Supreme Court can bring through all the jurisdictions.

21:00

The amendment of my noble and learned friend Lord Thomas is long because he deals with each of the three jurisdictions; it emphasises that we are dealing with a UK enactment spreading its authority across all three jurisdictions of the United Kingdom and it makes sense that any issues about the appropriateness of legislation by the devolved legislatures should be decided by a single court so that there is uniformity throughout the system. That is what the amendment would achieve, and that is why it has a great deal of force behind it.

I have asked questions and am searching for a real understanding of what is going on in these provisions. I join my noble and learned friend Lord Thomas in inviting the Minister to consider the advantages of going to the Supreme Court instead of to the individual courts. There are the advantages of speed, certainty and uniformity throughout the jurisdictions because without those there is a risk of different decisions being taken in different jurisdictions, which is to nobody’s advantage.

[Lord Wigley (PC)]

My Lords, I am delighted to have added my name to Amendments 6 and 64 in the name of the noble and learned Lord, Lord Thomas of Cwmgiedd. I did not add my name to the other amendment in this group because I did not have time to study its implications, but I am grateful to him for having put these amendments forward and to the noble and learned Lord, Lord Hope, for his comments.

I am a little worried because these are described as very modest amendments. Are they too modest for me to urge on the Government? No, they are not. The Government, who have been forthcoming on some amendments tonight, should be sending a message to Cardiff and Edinburgh, and to Belfast—to the extent that there is a Government there—that there are acceptable mechanisms for dealing with any disputes. As the noble and learned Lord, Lord Hope, said, there is every argument for having a framework that is acceptable to Westminster and the devolved Administrations so they can at least respect the mechanism and when problems arise they can turn to it. I hope that the Government will be forthcoming on this tonight, and perhaps they will be. If they cannot accept these amendments, there may be other forms of words whereby this can be achieved.

This issue has arisen in so many pieces of legislation over the past two or three years where the relationship between devolved Governments and Westminster is concerned that a framework that is acceptable to both sides need to be established—all four sides, in fact. I hope that doing so will ensure that problems can be resolved before they have been created and that there is a transparent mechanism for everyone to do so, and for that reason I support these amendments.

[Lord Purvis of Tweed (LD)]

I shall make a few remarks with regard to Amendments 6 and 64 in particular. The noble and learned Lord, Lord Thomas, is modest. He did not need to take us through the hoops of Amendment 58. His argument that the Government should be thinking again on this approach was very powerful. As the noble Lord, Lord Wigley, said, this is now the third Bill, I think, which will become an Act, where the devolved Parliaments have withdrawn consent at the outset and there have been rather tortuous discussions during the passage of the Bill to try to receive consent. Those Parliaments, properly constituted under our constitutional arrangements, feel that the Government are deliberately encroaching on their territory.

We debated this at length in Committee and I do not need to rehearse any of the arguments, but, as the noble and learned Lord, Lord Hope of Craighead, said, the Government seem to be open, when it suits them, to moving the dial towards consultation before further regulations are made. I think the noble and learned Lord was referring to Part 3 of the economic crime Act. In Section 14, the Government indicated that if there were going to be further provisions, the Secretary of State must consult the devolved Administrations on them. In this Bill, the Government have been reluctant to take a similar position of forcing Secretaries of State to consult where there are implications on devolved legislative areas.

In Committee, the Minister fell back repeatedly on saying that this Act is a reserved issue. That has been disputed by some, but even if we take it as read, the implication is that some of the schemes will impinge on devolved legislative competence. Therefore, the amendments in this group are very well made. Amendment 6, which has been supported by my noble friend Lady Randerson, regards offering some form of equivalence. While the Secretary of State indicates that this is a fully reserved issue, when there are schemes that are applicable to England only, there is no equivalent power for Wales, Scotland and Northern Ireland. That is what this amendment is seeking to correct.

I call this devolution equivalence. We are not disputing reserved or devolved competences; we are simply saying that when there are schemes that will be put forward for one nation under the legislative framework for that nation—England—there should be legislative equivalence for schemes operating within other nations. The noble and learned Lord, Lord Thomas, might say that that is modest; I say that it is reasonable. Surely one fundamental principle of our system of devolution could be that when it comes to the implementation of legislation, the reasonable test should apply.

With regard to Amendment 64, as I said, the Government seemed to move in the economic crime Act, but they seem very reluctant in this Bill. I simply do not know why, because both are comparable. Both indicate that there are reserved functions but devolved competences. Ultimately, if the Government believe, as the Minister will make the case, that this Bill will bring about great benefits, there should be equivalence between those authorities to utilise those benefits. Therefore, I hope the Government will consider these modest and reasonable amendments today and, if not, bring back at Third Reading some indications of moving.

[Baroness Blake of Leeds (Lab)]

We are very grateful to the noble and learned Lord, Lord Thomas, for tabling these amendments relating to the various devolution matters we have had outlined. We have been pleased to engage with the noble and learned Lord between Committee and Report and are glad that he and his supporters have facilitated this debate. The Minister knows we have several concerns around this Bill and its impact on devolution. The arguments have been rehearsed consistently throughout the Bill, and it is regrettable that the Government have not moved on a single one of the devolved Administrations’ requests.

We hope the Minister can clarify the situation around streamlined subsidy schemes. It has been asserted on a number of occasions that, while the Bill does not expressly permit this, devolved Ministers will be able to propose such schemes. Amendment 6 seems a very sensible proposition. If a devolved Minister makes a reasonable request of the UK Government, the Government should facilitate the creation of the relevant streamlined scheme. The simplest solution here is for the Government to accept the amendment, but, failing that, we hope the Minister can offer a very clear answer as to whether the UK Government will respond positively to sensible requests from the devolved authorities.

Amendment 64 is an interesting attempt at reformulating several Labour amendments tabled in Committee. We continue to believe that there should be a formal attempt to gain the consent of the devolved Administrations before exercising certain delegated powers or publishing guidance. Subsidy control may technically be a reserved matter, but, as we have said on numerous occasions, it directly impacts on several areas of devolved competence, not least regional development. When the economic crime Act was fast-tracked through this House, the Government worked hard to accommodate requests from colleagues from the devolved Administrations. We had hoped that would mark a new dawn for the Conservative Party’s approach to the Sewel convention, but this does not appear to be the case.

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

My Lords, I will not detain the House too long. Before Committee, I talked all those who were interested through the work we have done to engage with the devolved Administrations and the commitment we gave to take on board many of their suggestions. I know that some Members have had sight of the draft memorandum of understanding that we are trying to agree with the devolved Administrations. There is a commitment from the Government to engage with them. I accept that they have a principled objection to the fact that subsidy control is a reserved matter, so of course they are not willing to provide LCMs on that basis. Having said that, and accepting that reservation, we are still talking to each other, officials are still liaising and we will still attempt to reach agreement with them on the MoU. We have taken and will take into consideration many of the suggestions they have made.

Amendment 64 from the noble and learned Lord, Lord Thomas of Cwmgiedd, would require the Secretary of State to seek the consent of the devolved Administrations before issuing guidance under Clause 79 or making regulations under Clauses 11, 33, 34 and 59. It would require the Secretary of State to wait for up to a month before issuing guidance or making regulations to obtain the consent of the DAs. Where the consent is not given, the Secretary of State will still be able to make the regulations or issue the guidance, but will have to publish a statement explaining the reasons for making the regulations or guidance without DA consent.

I realise that this is a contentious area but, as stated earlier, it is the settled will of Parliament that subsidy control is a reserved matter. In our view, it would not be appropriate for the UK Government to be required by legislation to undertake selective consultations with the DAs on guidance and regulations regarding reserved policy matters, which will affect all UK public authorities, before laying them in the UK Parliament.

Furthermore, as I stated in Committee, a formal consent mechanism would delay the issuing and updating of statutory guidance and regulations. It is important that the Government are able to update guidance quickly should circumstances change, for instance due to the development of new UK case law. Delaying changes would be unhelpful for public authorities and subsidy recipients alike. There is already a requirement in the Bill for the Secretary of State to consult such persons as they consider appropriate before issuing any further guidance—the DAs, of course, being appropriate in this case.

I hope noble Lords are reassured by these commitments. I have already set out that we will continue the extensive engagement we have had with the devolved Administrations in developing the policy for the new regime, including by sharing draft consultation documents on the definitions of subsidies and schemes of interest and of particular interest. It is right that the UK Government are not slowed down by the need to seek the formal consent of the devolved Administrations before issuing guidance.

Amendment 6 in the name of the noble and learned Lords, Lord Thomas and Lord Hope, the noble Lord, Lord Wigley, and the noble Baroness, Lady Randerson, would in effect allow the devolved Administrations to create streamlined subsidy schemes under Clause 10 by making a request of a UK government Minister. To respond directly to the description of this as “modest” by the noble and learned Lord, Lord Thomas, I am concerned that it would significantly affect the Government’s discretion to set out a wider strategy for developing streamlined routes, given the impossibility of refusing “a reasonable request”.

Streamlined subsidy schemes have an important role to play in supporting public authorities to deliver well-designed subsidies that address market failures and UK strategic priorities, while minimising risks of excessive distortion to competition, investment and trade. They are not subject to mandatory or voluntary referral to the subsidy advice unit under the provisions of Chapter 1 of Part 4 of the Bill.

21:15

The Government intend that streamlined subsidy schemes will be a pragmatic means of establishing schemes for commonly awarded subsidies. Streamlined subsidy schemes will therefore function best when they apply across the entirety of the UK. The Government will design these streamlined subsidy schemes so that they are fit to be used by public authorities in all parts of our United Kingdom. In addition, the clause also sets out the procedural requirements when making a streamlined subsidy scheme, including the requirement that it be laid before Parliament. Per the debate on government amendments earlier today, streamlined subsidy schemes will also be subject to the negative procedure and may be prayed against by either House within 40 days of being laid.

Finally, it is important to stress that any public authority in the UK will be free under the terms of the Bill to create subsidy schemes for their own purposes. The DAs, as primary public authorities under Clause 10(2), will also be able to create subsidy schemes for their respective local authorities to use. Schemes have many of the same attributes as streamlined subsidy schemes, in that only the scheme, and not the individual subsidies awarded under it, need to be assessed against the principles. Schemes therefore offer an administratively light-touch means of awarding many subsidies that are also open to use by all public authorities, including the devolved Administrations.

As emphasised earlier, we will continue to work closely with the DAs in developing different streamlined routes. This will include inviting DA officials to sit on expert working groups for each route we are developing. The DAs will, of course, also be able to suggest areas that future streamlined routes might cover, and we will undertake to consider any proposal extremely carefully.

[Lord Fox (LD)]

I apologise to the Minister and thank him for giving way. I am struggling a little with why the Government want to hoard the right to create streamlined subsidies to central government. I can assume only that it is because it gives the Government the ability to parachute schemes into Scotland, Wales and Northern Ireland—which might not be seen by those devolved Administrations as something they would have—and, because they are streamlined schemes, they cannot be challenged. Is that the reason the Government are not prepared to let devolved authorities have streamlined subsidy schemes for themselves?

[Lord Callanan (Con)]

No, I think the noble Lord is being unfair; the operation of these schemes is entirely optional. We will consult the devolved Administrations closely before making any such schemes. I only just said that we will seek to involve DA officials and others in expert working groups for each of the routes we are developing.

[Lord Fox (LD)]

I am sorry to prolong this, but is the Minister now saying that, for a streamlined scheme that is presented by central government and could be taken up by, for example, organisations and companies in Scotland, the Scottish Government have the option of not allowing that to happen? That, I think, is what the Minister just said.

[Lord Callanan (Con)]

They could choose not to use the scheme if they wished, but it would be a UK-wide scheme. They would be consulted on the development and involved in the expert groups that put them together.

I will move on to Amendment 58, also tabled by the noble and learned Lord, Lord Thomas. This amendment sets out a new route for subsidies given in devolved primary legislation to be considered by the courts, by allowing the relevant law officer to refer the question of whether a Bill is compatible with the principles in Chapter 1 of Part 2 to the Supreme Court. It also removes the requirement for the promoter of the legislation to consider the subsidy control principles and other requirements, and the ability of the courts to consider whether the provisions of Parts 1 and 2 of Chapter 2 have been properly applied, thereby removing the ability of an interested party to challenge the subsidy in the general courts on that basis.

I am of course very grateful for the interest taken by the noble and learned Lord in this clause and for his engagement on it with me and my officials. I believe that both he and I share an objective to ensure that these provisions reflect our constitutional and legal institutions, as well as our obligations under international law. Schedule 3, as it stands in the Bill, accomplishes those objectives.

It is important that the subsidy control requirements apply to subsidies in devolved primary legislation, and that these subsidies are not immune from challenge by interested parties. This is both for consistency with other subsidies and to ensure compliance with our international obligations, particularly under the trade and co-operation agreement with the EU. However, it is also important that the unique constitutional status of the devolved legislatures is respected. That is why we have tailored the provisions in Schedule 3 specifically, and there is no mandatory referral to the subsidy advice unit for these subsidies.

I must therefore reject the amendment tabled by the noble and learned Lord for two reasons. First, it would not meet our international obligations under the TCA, which requires us to make available a route to challenge in a court or tribunal for interested parties, on grounds of compliance with the substantive subsidy control requirements. This amendment would, effectively, remove that route.

In response to the noble and learned Lord, Lord Hope, on the intention of paragraphs 6 and 7, it is those interested parties that may challenge, for example, another public authority or another business, as long as they meet the test set out in Clause 70. The promoter would normally be the government Minister, or the person making an amendment to the Bill, and this is defined in paragraph 2 of Schedule 3.

The second problem with the amendment is that it would have the effect of asking the Supreme Court to consider questions of fact. It is my understanding that the High Court or Court of Session is the appropriate forum to consider these questions in the first instance, followed by the relevant appeals court, and, as relevant, the Supreme Court as the ultimate arbiter for questions of law. Creating a route for the law officers to refer a question to the Supreme Court implies that any challenge to a subsidy in devolved primary legislation would be a constitutional question, as it is comparable to the route for referring devolution issues under the devolution settlements. While the Bill affects the exercise of responsibilities of all public authorities in the UK, I do not consider that this is a constitutional question.

[Lord Purvis of Tweed (LD)]

I have a point of clarification, because this aspect draws two areas together. Given that agriculture and fisheries are part of this legislation, and because agriculture and fisheries are unquestionably devolved competences, there will be subsidy schemes—let us say for Scotland, an agriculture or fisheries subsidies scheme. The Minister has indicated that there can be a UK-wide streamlined scheme which will cover agriculture and fisheries, so for the first time in the devolution period, there would theoretically be two parallel support schemes for agriculture and fisheries. But there is no capacity for the devolved Administration to challenge the UK-wide scheme, because the Government are indicating that this is a reserved area, even though support for agriculture and fisheries is fully devolved. Furthermore, there is not even a direct route to ask the Supreme Court to consider the competences on the division of this. How does the Minister see the benefit of two parallel schemes: one streamlined and unchallengeable, and another a devolved one on agriculture and fisheries?

[Lord Callanan (Con)]

I understand the point that the noble Lord is making, but the idea that the UK Government are going to want to set up a streamlined scheme covering agriculture and fisheries in Scotland, in parallel to an existing subsidy scheme that the Scottish Government are already pursuing, is extremely unlikely. A streamlined route can indeed be challenged in the Competition Appeal Tribunal, and we would not introduce such a scheme without consulting closely with the devolved Administrations in the first place. I understand the constitutional question that the noble Lord is positing, but I think this is very unlikely. As the noble Lord well knows, all existing schemes are automatically out of scope of this Bill anyway, so the existing subsidy regimes that the Scottish and Welsh Governments have can continue as they are.

[Lord Purvis of Tweed (LD)]

I do not think I said that there would be a streamlined scheme from the UK that would be uniquely for Scotland. I indicated that there would be a UK-wide streamlined scheme that would be for agriculture and fisheries within Scotland. As the Minister said, it would apply in England and in Northern Ireland as well. However, there would be, for the first time since devolution, two parallel subsidy schemes operating. While the Government can indicate that there would be consultation, there is no mechanism in this Bill for that dispute to be resolved, because the Secretary of State retains the decision-making power. That is why the support for these two schemes running in parallel is not equitable.

[Lord Callanan (Con)]

There is a difference in principle here. Subsidy control is a reserved matter. Under the memorandum of understanding, we have said that we will set up a mechanism that the Scottish Government can use to challenge schemes. Of course, any streamlined scheme would be approved by this Parliament anyway. In any practical political environment, there is no way that the UK Government will want to set up a parallel scheme to subsidise agriculture and fisheries, which are devolved competences, when the Scottish Government already have similar schemes in the same area.

As I have said, the devolved Administrations will of course continue, as they have always done, to make subsidies and subsidy schemes using the resources that they have. It is important to note that this Bill does not provide any resources for any schemes, and the court would need to look at the facts of the case on legality grounds in the light of the requirements of Schedule 3 to the Bill. This is, in my view, comparable to other circumstances in which devolved primary legislation is reviewed on legality grounds, such as the Human Rights Act or the United Kingdom Internal Market Act. Importantly, and in contrast to the review of the Competition Appeal Tribunal for other subsidies, the court could not consider common-law public law grounds alongside the requirements of the subsidy control grounds.

For all the reasons I have set out, I hope that the noble and Lord will not press his amendments.

[Lord Thomas of Cwmgiedd (CB)]

I am grateful to all noble Lords who have spoken in this debate and for the various points that have been made; I hope it is not discourteous if I try to summarise them without individual attribution.

Fundamentally, this union is not going to hold together unless there is an acceptance of equality of treatment, and this Bill drives a coach and horses through that. One illustration suffices: if this Parliament, for England, makes a subsidy scheme that infringes the subsidy control principles, then those overseas cannot challenge it, but they can challenge what is done in Wales, Scotland and Northern Ireland. That is not equality. A second, more vivid example of equality is the ability to make streamlined subsidy schemes. Part of the difficulty we face is that all of this is for future legislation, but we are now trespassing into the constitution.

What has emerged from the questions that the Minister has tried to answer is this: where are we going in areas of devolved competence? He says that no Government would want to do it, but we are a country governed by the rule of law, and the law ought to be clear as to the constitutional responsibilities of the Government of the United Kingdom and of England and the constitutional responsibilities and powers of the devolved nations. This has not been thought through, as is evident from the Minister’s reply. I do not criticise him, because we do not have the detail of the streamlined subsidy schemes so that we could see how this would work.

Thirdly, we are trespassing into dangerous constitutional areas. I am sure that many lawyers will not accept that, if the Government tried to make a streamlined subsidy scheme that infringed on devolved competence, it would be challenged, because that would be made under subordinate legislation and would not have the equivalent status of an Act of this Parliament. It is a great misfortune that we have not thought all of this through.

21:30

That is finally illustrated by the curious Schedule 3. All law students were taught about a 19th century piece of legislation where an unfortunate town clerk who had an unhappy marriage put into the schedule to a waterworks or harbour Bill the words “and the town clerk’s marriage is hereby dissolved”, because divorce was not readily available in the UK. In a sense, very important constitutional issues have been shoved—I apologise for using that slightly familiar term—into Schedule 3 of a similar status. They have not been thought through, and this Parliament ought not to pass legislation of that kind. I hope that we will debate all these matters again. My noble and learned friend Lord Hope has underlined the importance of the constitutional issues, and we need to return to them before we make another mess in another Bill.

Having said all that, although I would like to talk for much longer about these important issues, I seek leave to withdraw the amendment.

Amendment 6 withdrawn.

Amendment 7

Moved by

[Baroness Bloomfield of Hinton Waldrist]

7: Clause 10, page 6, line 36, at end insert—
“(6A) If, within the 40-day period, either House of Parliament resolves not to approve the scheme, or the scheme as modified, then, with effect from the end of the day on which the resolution is passed, the scheme, or the scheme as modified, is to be treated as not having been made.(6B) Nothing in subsection (6A)—(a) affects any subsidies given under the scheme before the end of the day on which the resolution is passed, or(b) prevents a further scheme being laid before Parliament.(6C) In this section, “the 40-day period” means—(a) if the scheme is laid before both Houses of Parliament on the same day, the period of 40 days beginning with that day, or(b) if the scheme is laid before the Houses of Parliament on different days, the period of 40 days beginning with the later of those days. (6D) In calculating the 40-day period, no account is to be taken of any period during which Parliament is dissolved or prorogued or during which both Houses of Parliament are adjourned for more than 4 days.”Member’s explanatory statement
This amendment provides that the making of streamlined subsidy schemes is subject to the negative resolution procedure and provides for the legal consequences if such schemes are not approved.

[Baroness Bloomfield of Hinton Waldrist (Con)]

My Lords, the amendments in the name of my noble friend address the findings of the 17th report of this Session by the Delegated Powers and Regulatory Reform Committee. The report’s recommendations on the powers that the Bill delegates to Ministers have been endorsed with vigour by your Lordships’ House. This is a clear indicator of the high regard in which the DPRRC’s expertise is held, and I am sure that that will continue under the chairmanship of my noble friend Lord McLoughlin, to whom my noble friend wrote last week to set out how the Government were addressing the committee’s concerns with regard to the Bill.

As various noble Lords have noted throughout the passage of the Bill, the DPRRC’s report took issue with some of the ways in which it delegated specific powers to Ministers. I trust it will be reassuring to noble Lords that the amendments I shall now speak to respond to those concerns.

First, Amendment 7 amends Clause 10. Clause 10 provides, among other things, that Ministers may make streamlined subsidy schemes to facilitate the granting of subsidies in accordance with the subsidy control requirements. Streamlined subsidy schemes would be laid before both Houses of Parliament after they are made or amended. The DPRRC report recommended that the power to make streamlined subsidy schemes should be exercised by regulations, and that the negative procedure would be appropriate.

I am pleased to say that Amendment 7 does, I believe, meet the spirit of the committee’s proposal. The amendment provides for every new or modified streamlined subsidy scheme to be subject to the negative resolution procedure, meaning that either House of Parliament may resolve not to approve the scheme within 40 days of it being laid. I remain of the view that the nature of these schemes means that the power to make them should not be exercised by regulations. Specifically, they are designed to be easily comprehensible and used by smaller public authorities and include numerous economic criteria that would not be easily expressed in the form of regulations.

I turn to Amendments 10 to 13 to Clause 16, which concerns short-term export credit insurance as provided by UK Export Finance. The committee’s report recommended that the power to amend the list of marketable risk countries, which is included in Clause 16, should be exercised by regulations subject to a parliamentary procedure, instead of by ministerial direction. I trust the House will be reassured to hear that the Government fully accept the recommendation of the report and these amendments achieve this effect.

Amendments 15 to 17 relate to Clauses 25 to 27, which provide for definitions of “deposit taker”, “insurance company” and “insurer” respectively. The clauses include a power for the Treasury to change the definitions in these clauses via regulations. The committee took the view that the Government have not identified with sufficient precision the circumstances in which these powers would be necessary, and consequently recommended that the powers given to the Treasury to amend these definitions be removed from the Bill. The Government accept this recommendation of the DPRRC’s report. Amendments 15 to 17 will remove from the Bill these powers to make regulations in Clauses 25 to 27.

I turn to the committee’s recommendations on the much-debated Clause 47. Noble Lords will be pleased to hear that Amendments 45 and 46 respond to these concerns. The DPRRC raised several concerns on the drafting of Clause 47, in particular subsection (7). I will restate briefly the Government’s position on the necessity of this clause.

The flexibility to delay publication of a financial stability direction is important where that publication would prematurely disclose the existence of a subsidy. Immediately disclosing certain subsidies could potentially cause further damage to confidence in the recipient enterprise, cause a run on that recipient, and damage wider market confidence. While it may be possible to interpret Clause 47(6) as allowing for a delay in publication, that is not the intended purpose of the subsection, which is intended to provide for a duty of publication. The Government’s view is that it is much more appropriate to provide for an explicit process for delay in publication, with a limited and specific condition for such a delay. This is what the Government have done in subsection (7).

The absence of a parliamentary procedure is not to prevent non-approval of the direction by Parliament, but rather to ensure that the effectiveness of any intervention is not impaired by fear among stakeholders that support could be withdrawn. If there is concern that support could be withdrawn, there is a material risk that a recipient enterprise will reject the support offered or that the market will not be reassured by such support. That is why similar powers to act without parliamentary approval are provided for in the special resolution regime, reflecting the importance of legal certainty for the success of emergency interventions.

As the DPRRC report on this provision made clear, legal certainty was one of several factors considered in relation to a parliamentary procedure for this measure and was not the sole deciding factor for choosing the process in Clause 47. Other factors included protecting information flows and necessary secrecy in certain circumstances, and the speed of deployment.

Amendment 46 makes provision for a delay in publication of a financial stability direction in the event that the Treasury considers that doing so would undermine the purpose of issuing the direction. The amendment makes explicit the need to publish a direction and lay it before Parliament when doing so would no longer undermine the reason it was given. It constitutes a temporary delay in publication, not permanent secrecy, as was perceived by the committee, but which I assure noble Lords was never the Government’s intention. This amendment makes that explicit.

Clause 47(6) requires the Treasury to publish a direction in whatever manner the Treasury sees appropriate. In direct response to concerns regarding parliamentary accountability, Amendment 45 adds to this subsection the requirement for the Treasury to lay a direction in Parliament when publishing a direction. This ensures a direct route for parliamentary visibility of a direction in addition to the requirement in Clause 47(6) to publish a direction to the public. The Government fully agree with the committee: parliamentary scrutiny is vital to our democracy and this Government will not try to avoid it.

To further assuage the concerns of the House, I am happy to announce that my honourable friend in the other place, the Economic Secretary to the Treasury, has written to the Public Accounts Committee and the Treasury Committee; these letters commit to confidentially notify the chairs of the use of a financial stability direction to disapply requirements of the Bill where the publication of a direction is delayed.

Before I conclude with this suite of amendments, I must inform the House that there is one area where the Government have not amended the Bill in line with the committee’s recommendations. The committee stated in its report that it considers the powers in Clause 11 to be inappropriate, recommending instead that key terms relating to the definition of “subsidies and schemes of interest” and “subsidies and schemes of particular interest” are placed on the face of the Bill.

The Government do not agree that these definitions should be added to the Bill. It is important that the Government fully engage with external stakeholders as well as Parliament to ensure that this important element of the new regime is fit for purpose. The Government have already published, in January, a set of illustrative regulations, setting out a suggested approach for defining “subsidies and schemes of interest” and “subsidies and schemes of particular interest”.

In that vein, we can commit that the Government will undertake a public consultation before making the first set of regulations under Clause 11 that establish definitions for “subsidies and schemes of interest” and “subsidies and schemes of particular interest”. This consultation is expected to launch very shortly.

I trust that this demonstrates the willingness of the Government to design this important part of the subsidy control regime in an open and collaborative way, and in a manner that uses the expertise of the devolved Administrations and of legal and subsidy control practitioners at all levels of government within the UK. Following the consultation, the final regulations will be laid before Parliament for approval under the affirmative procedure before the regime comes into force.

Finally, Amendment 8 is a minor and technical amendment to Clause 11. It clarifies that regulations made under Clause 11 may make specific reference to the value of the subsidy or scheme or to the sector in which the recipient of the subsidy operates, as well as other appropriate criteria as necessary. I trust that this amendment makes it clear that the list in subsection (2) was always intended to be indicative as opposed to exhaustive. I beg to move.

[Lord Hope of Craighead (CB)]

My Lords, this group of amendments gives me an opportunity to express my appreciation to the Minister and his team for the work they have been doing under the legislative consent process. The Constitution Committee studied the working of this process for much of last year and in its report, Respect and Co-operation, expressed the concern that the process was not working properly—indeed, we heard quite a lot of evidence from the devolved Administrations that they were dissatisfied with the way it was working.

My impression has been that since late autumn of last year the working of the system has very much improved, and the remarks made by the Minister at the beginning of his reply on the last group of amendments tend to confirm that a great deal of work has been done behind the scenes to try to make the process work. I am therefore much encouraged by what he said, both in private conversations and in the Chamber.

I have one particular to request to make. When we come to Third Reading, I wonder whether the Minister would provide the House with a report to explain why, if it is the case, that consent Motions have not been passed by the devolved legislatures. It would be helpful to know what the sticking points were and why the Government were not prepared to give ground to the devolved legislatures to obtain their consent. It would inform the House. It would also enable us to understand how the process is working and to appreciate that the Government have been working as hard as they could to obtain consent and that there were genuine reasons for their inability to obtain it. I would be grateful if the Minister could do that when we come to Third Reading. I make that point now so that he can take it into account when the time comes.

[Lord Fox (LD)]

Your Lordships will remember that I made a very long speech on the DPRRC’s reports and I would like to think that it was the power of reasoning within that long speech that led to these very welcome amendments from the Government. I suspect, however, that it is the reputation of the DPRRC and the rigour of its work that caused these changes to be made. For that, we should be grateful and pleased. It is a shame that the Government had to go through this process to do it, but it has happened.

We on these Benches also welcome the announcement made by the Minister on financial stability issues and bringing in the PAC and Treasury Select Committees confidentially on that. That is a common-sense approach, and it goes a long way to solving any issues.

On defining subsidies and schemes of interest and of particular interest, we are disappointed that the definitions are not brought into the Bill, but I hope that following the consultation process the Government will come back and, either formally or informally, inform the Front Benches and those others involved in the Bill of progress, so that when the regulation is made, we will in a sense have been brought into that process. This is a good set of amendments that we broadly welcome.

21:45

[Lord McNicol of West Kilbride (Lab)]

My Lords, we now come to the first mass grouping of a government concessions package. Like others, I express the thanks of these Benches to the noble Lord the Minister and the noble Baroness and the Bill team for the discussions and this good set of revisions to the Bill. There are 11 amendments in all, and as the noble Lord, Lord Fox, has said, many have been previously moved and supported by noble Lords from across the House, especially in Committee.

As we have heard, this group relates to the recommendations in the DPRRC report, which were plentiful and uncharacteristically forceful. Like everyone else, we are glad that common sense has prevailed, particularly in relation to the situation around Clause 47, whereby certain information could have been withheld from Parliament and, by extension, the public.

The concessions made by the noble Baroness in the name of the noble Lord the Minister are most welcome, but the bigger issue at play here is the frequency with which the Government have attempted to take broad powers for themselves, often without proper justification. We hope that that trend will change as we move towards a new parliamentary Session, and these concessions and these moves help to show that. Like the noble Lord, Lord Fox, we would have liked to see movement on Clause 11, on definition of schemes of interest and schemes of particular interest—but we will take these 11 amendments, with thanks.

[Baroness Bloomfield of Hinton Waldrist (Con)]

My Lords, this has been a short but constructive debate, and I welcome noble Lords’ support for this suite of amendments.

The noble and learned Lord, Lord Hope, requested a report on the obstacles to the granting of LCMs by the devolved Governments, and I am happy to make that commitment: we will bring a report at Third Reading. We also wish to note the constructive engagement of the noble Lord, Lord Fox, who has successfully picked up the mantle on the issues highlighted in the DPRRC report. I am sure that his speech made some difference, alongside the good standing of the DPRRC and our respect for its work.

Amendment 7 agreed.

Clause 11: Subsidies and schemes of interest or particular interest

Amendment 8

Moved by

[Lord Callanan]

8: Clause 11, page 7, line 8, after “reference” insert “(among other things)”
Member’s explanatory statement
This amendment clarifies that the list in subsection (2) of what may be covered in regulations is intended to be non-exhaustive.

Amendment 8 agreed.

Amendment 9 not moved.

Clause 16: Export performance

Amendments 10 to 13

Moved by

[Lord Callanan]

10: Clause 16, page 9, line 22, leave out from “if” to end of line 23 and insert “regulations made by the Secretary of State provide for the marketable risk country to be so treated.”
Member’s explanatory statement
This amendment provides that the power to provide that a country is not to be treated as a marketable risk country is exercised by making regulations, rather than by giving a direction.

11: Clause 16, page 9, line 24, leave out “give a direction” and insert “make regulations”
Member’s explanatory statement
This amendment is consequential on the amendment at page 9, line 22, in the Minister's name.

12: Clause 16, page 9, line 30, leave out from “must” to “if” in line 31 and insert “by further regulations under subsection (4) revoke regulations under that subsection in respect of a marketable risk country”
Member’s explanatory statement
This amendment is consequential on the amendment in the Minister's name at page 9, line 22 and places the Secretary of State under a duty to revoke the regulations made under subsection (4) if a subsection (5) condition is no longer met.

13: Clause 16, page 9, line 33, leave out subsection (7) and insert—
“(7) Regulations under subsection (4) are subject to the negative procedure.”Member’s explanatory statement
This amendment is consequential on the amendment in the Minister's name at page 9, line 22.

Amendments 10 to 13 agreed.

Clause 18: Relocation of activities

Amendment 14

Moved by

[Lord Callanan]

14: Clause 18, page 10, line 24, at end insert—
“(4) The prohibition in subsection (1) does not apply if the public authority giving the subsidy is satisfied that the conditions in subsections (5) to (7) are met.(5) The condition in this subsection is that the effect of the subsidy is to reduce the social or economic disadvantages of the area that would benefit from the giving of the subsidy.(6) The condition in this subsection is that the giving of the subsidy results in an overall reduction in the social or economic disadvantages within the United Kingdom generally.(7) The condition in this subsection is that the subsidy is designed to bring about a change in the size, scope or nature of the existing economic activities referred to in subsection (1)(a).”Member’s explanatory statement
This amendment provides an exemption to the prohibition on relocation of activities by allowing subsidies that meet conditions on reducing social or economic disadvantage.

Amendment 14 agreed.

Clause 25: Meaning of “deposit taker”

Amendment 15

Moved by

[Lord Callanan]

15: Clause 25, page 13, line 32, leave out subsections (4) to (6)
Member’s explanatory statement
This amendment removes the Treasury power to make regulations to alter the meaning of “deposit taker”.

Amendment 15 agreed.

Clause 26: Meaning of “insurance company”

Amendment 16

Moved by

[Lord Callanan]

16: Clause 26, page 14, line 14, leave out subsections (4) to (6)
Member’s explanatory statement
This amendment removes the Treasury power to make regulations to alter the meaning of “insurance company”.

Amendment 16 agreed.

Clause 27: Subsidies for insurers that provide export credit insurance

Amendment 17

Moved by

[Lord Callanan]

17: Clause 27, page 14, line 40, leave out subsections (3) to (5)
Member’s explanatory statement
This amendment removes the Treasury power to make regulations to alter the meaning of “insurer”.

Amendment 17 agreed.

Clause 32: Subsidy database

Amendment 18

Moved by

[Lord Callanan]

18: Clause 32, page 17, line 17, at end insert “, and
(c) the subsidy database is kept under review in such manner and at such intervals as the Secretary of State considers appropriate.”Member’s explanatory statement
This amendment adds a duty on the Secretary of State to keep the subsidy database under review.

[Lord Callanan (Con)]

My Lords, I rise to move the government amendments in my name, with more than a modicum of delight, on the transparency of the new subsidy control regime. I have listened carefully to the arguments made for lowering thresholds and shortening the upload deadlines and, of course, I recognise the strength of feeling in the House on this matter. As a result, and as we said we would, the Government have gone back to first principles and reviewed the evidence base, ensuring the correct balance between administrative burdens on the one hand and transparency on the other.

As I set out in my letter to your Lordships on 15 March, the Government have published an updated impact assessment on the Bill which, using newly available data, assesses exactly that balance and has informed our approach to these amendments.

I will summarise the effects of this group of amendments. First, we have introduced a single threshold of £100,000, which applies across the vast majority of subsidy types. This is a substantial reduction of 80% from the original threshold of £500,000. Secondly, we have dramatically shortened the upload deadlines, reducing this by half for non-tax subsidy awards, so that subsidies will be visible on the database far sooner. We have retained the deadline for individual subsidy awards given as tax measures at one year. This is because a tax declaration, which is necessary to calculate the subsidy award, can be amended for up to a year after the tax return is submitted. Reducing the deadline here would make the cost of uploading tax subsidy awards disproportionate to the value of transparency for them. Noble Lords have recognised in previous debates that tax subsidies are in a unique position. I hope the House also recognises that, where it has been possible to reduce upload deadlines, we have done so.

In addition, the Government have introduced powers to be able to further amend the thresholds and the upload deadlines. The Secretary of State can review the levels in due course and make further changes as suggested by the available evidence at the time. Such new evidence will come about through the subsidy advice unit’s experience of how the regime is operating and the reports that it makes. I commit that these levels will be reviewed following the publication of the first subsidy advice unit report on the operation of the regime. Importantly, these regulations are made by the affirmative procedure, so Parliament will have maximum opportunity to scrutinise any changes. I know that noble Lords will do so.

The third change is that we have introduced new obligations to require the upload of permitted modifications of a subsidy or scheme. Public authorities will now face the same obligations to upload even minor changes, with the same upload deadlines as for the original subsidy.

Fourthly, we have placed a duty on the Secretary of State to review the transparency database as he or she considers appropriate, thereby ensuring additional quality control. As I stated in Committee, the Government are now carrying out additional checks on the database and following up with public authorities where we find mistakes. This will of course continue. As public authorities become accustomed to the regime they will, naturally, become better at uploading accurate information first time.

Finally, we have introduced an amendment specifying that the Secretary of State may provide statutory guidance to public authorities on pre-action information requests; that is, the provision of information following a request about a subsidy decision to an interested party that is considering whether to ask the Competition Appeal Tribunal to review the subsidy.

It is expected that any such guidance will encourage public authorities to discuss potential disclosure requirements with the beneficiary before the subsidy is given. This will help concerns about the confidentiality or commercial sensitivity of information disclosed in response to a pre-action information request to be addressed without unduly delaying or preventing the provision of sufficient information to potential challengers.

The overall effect of Amendments 18, 19, 21 to 44, 59, 60 and 62 in my name, taken together, will mean that we have a highly transparent subsidy control regime—far more so than existed under the EU state aid rules. Interested parties will be able to see subsidies they can challenge as well as numerous subsidies which are not challengeable under subsidy control requirements but whose publication is nevertheless in the public interest.

The new impact assessment reflects that the cost of lowering the threshold across the different subsidy types to £100,000 would have an administrative cost of £1.6 million over 10 years. This is not negligible, but the administrative costs of lowering the threshold further would be even greater. For example, a threshold of £25,000 per award would lead to a cost of just under £8 million, and a threshold as low as £500 per award—as was suggested by previous amendments—would be almost double that figure at just over £14 million. This has informed the Government’s decision on where to draw the most appropriate balance.

On the effects of shortening the upload deadlines, the impact assessment highlighted how there are unlikely to be significant cost burdens in reducing the upload deadline for non-tax subsidies from six to three months. However, lowering it below three months would have associated costs, as public authorities need to prioritise the gathering, checking and uploading of necessary information over other tasks they have. These costs will vary between public authorities.

The impact assessment also indicates that there would be disproportionate costs in relation to the uploading of tax subsidies to a shorter timeframe because of their unique nature, so the upload limits for tax subsidies in the Bill remain at 12 months, as I outlined earlier.

Before I conclude, I will address Amendment 20 from the noble Lord, Lord McNicol, which seeks to require the cumulation of subsidy awards within a scheme for the purposes of transparency. I recognise that this amendment would not represent a major change and I hope I can take from that that he is supportive of the package of changes the Government have made on transparency. None the less, my view is that it is seeking to solve a problem that does not really exist, creating an unnecessary administrative burden for public authorities.

I would first like to be very clear that the transparency obligation thresholds apply to subsidies, not payments. If a single subsidy to one enterprise for one purpose has been divided into multiple instalments, it remains as one subsidy and would need to be uploaded to the database if its total value was over £100,000. Any public authority trying to avoid the transparency requirements in this way would already be in breach of its obligations regardless of this amendment. I will ensure that this is reflected in the guidance so that public authorities are absolutely clear on this point.

I can see three possibilities for an enterprise to receive multiple awards under £100,000 for the same scheme, and none of them would justify the amendment. The first is entirely legitimate and they are simply separate subsidies. Perhaps different branches of the same business receive high-street regeneration subsidies for different towns in the same local authority. It is worth noting that some schemes will be made by a different public authority from the one giving the subsidy. For example, streamlined subsidy schemes are made by the UK Government but will be used by other public authorities, so the same enterprise could receive a subsidy under one scheme but from two different public authorities. I cannot see that this is a particular problem. In any case, the scheme itself will be on the database and subject to challenge in the CAT as provided for in the Bill.

The second possibility is that the public authority is trying to circumvent the transparency requirements simply to avoid the burden of having to upload its entirely legitimate subsidies, and is giving two separate subsidies under the scheme when it might have otherwise just given one. We can probably rule that out. There is no incentive for a public authority to do that: uploading an award on the transparency database will be a far more straightforward task than trying to parcel out a single subsidy into two different subsidies of £99,000 or less.

The third possibility is that the public authority is trying to game the transparency requirements to evade scrutiny because it believes that the subsidy is not compliant with the terms of the scheme and would be challenged if it came to light. Again, I find it hard to imagine that this is a tactic that any public authority in the UK would be so blatant as to deploy, and it would not be in compliance with the Bill requirements in any event. Should the subsidy lead to significant harms, it is highly likely to become apparent through other means, whether that is the recipient’s accounts, a press release, or other transparency mechanisms such as the local government transparency guidelines. A series of £99,000 awards would perhaps start to look suspicious when they came to light, which they inevitably would.

Overall, the requirement to cumulate awards within schemes for the purposes of transparency is a disproportionate response to a problem that I do not believe will arise in practice. It would add an unnecessary administrative burden to legitimate subsidies in the first category, and I cannot see that it would make much difference to the hypothetical nefarious public authority in the third category, since its attempts to game the system would probably breach the subsidy control requirements.

Therefore, I hope the noble Lord will not move his Amendment 20 and will agree to support, along with the rest of your Lordships’ House, my extensive package of transparency amendments. I beg to move.

22:00

[Lord Fox (LD)]

My Lords, as the Minister has set out, this group includes a number of concessions around the transparency issue. Again, we should thank him for coming some of the way towards the arguments that surfaced in Committee.

We welcome the reduction in the reporting threshold from £500,000 to £100,000. We recognise that that is some way short of the level that many external organisations were calling for and indeed that we wanted, but we also understand that it is a big step for the Government and they have come a long way towards where we think it should be.

I put my name to Amendment 20, tabled by the noble Lord, Lord McNicol, and I am looking forward to hearing his proposal. I am still not 100% convinced by what the Minister said, although he worked hard to explain to us why it would not be an issue. I think some of the points he made were right—sorry, acceptable; I am sure they were all right.

On the Minister’s first point about multiple payments to different branches, if they all have the same parent company, I start to get concerned about that issue. However, the biggest point was that if nefarious activity is going on and a £99,999.99 subsidy is being paid out by this mythological nefarious authority, the Minister said that that would no doubt surface. I am not sure how it would do so, given that there is no reporting requirement, unless that extra penny is forthcoming. Apart from sleuthing, submitting freedom of information requests and citizens’ activity, how does the Minister expect this information to surface—or indeed is he going to have an investigative unit at his side, ready to swoop on such nefarious organisations? I am interested to hear how this disclosure or uncovering process will work.

Other government amendments mean that the declaration of subsidies scheme is being improved in time terms, and that is also very welcome. The Minister was talking about a review process. I think he would be wise to maintain a rolling review in the department to be able to surface any issues and problems. This is a new process and a lot of different organisations will be trying to bed into it. The sooner that any misunderstandings or misapprehensions are understood, the sooner the department and the Government can do something about it.

In closing, I have a personal request. I probably should really understand this but I still do not: could the Minister clarify the rules regarding the declaration of subsidies awarded within subsidy schemes? I have heard different wordings at different times throughout the process, so perhaps the Minister could clarify once and for all how and if individual subsidies awarded under subsidy schemes will or will not be reported.

Overall, we are pleased with the amendments in this tranche. The Minister has moved on transparency, but we hope he will keep that situation under review with a view to more transparency in future rather than less.

[Lord McNicol of West Kilbride (Lab)]

My Lords, this group of concessions, as the Minister has outlined, is significant because of both the number of amendments and, more importantly, their text and practical effect. We are grateful to the Minister and the Bill team for their engagement on these issues over many weeks now; our discussions have been very useful, and although we have not achieved everything we wanted, as the noble Lord, Lord Fox, said, the new subsidy control scheme will be far more transparent than the Bill initially proposed. There are 31 amendments in this large group, 30 from the Government and one from me. I still think mine is a good amendment but I understand the Minister’s points, which we will come on to in a second.

The main issue is that we remain somewhat unconvinced of the Government’s argument in relation to the £100,0000 threshold. Given that many public authorities already have to publish details of spending at much lower levels—in many cases, it is £500 for local authorities—the £14 million cost quoted by the Minister to take the transparency threshold down from £100,000 to £500 would be well spent because that transparency would then sit across the whole of the subsidy controls and subsidies issued. However, an 80% reduction, coupled with the universal requirements across different subsidy types, is a clear step in the right direction.

To be fair, the noble Lord, Lord Fox, has already stolen a lot of my thunder in relation to Amendment 20. The points he made were absolutely spot on so I will not repeat them; I look forward to the Minister’s response. I tabled Amendment 20 in an attempt to deal with the potential for public authorities to award multiple payments that fall under the £100,000 disclosure threshold. As the Minister outlined in his opening remarks, there are a number of possible reasons why a subsidy may be given at that level. The noble Lord, Lord Fox, is right: it is the final one of those three points, about a nefarious reason why an individual in a local authority would encourage a local authority to give multiple awards under the reporting threshold. A fundamental question still sits there: how will we and, more importantly, businesses and organisations that are or could be affected by a subsidy, challenge it if we have no sight of it?

We would be delighted if the Minister accepted this amendment but he explained in his opening remarks why he will not. If the Government are not willing to accept it, can the Minister outline any other safeguards that could be brought in to check this possible kind of behaviour? He did not touch on safeguards in outlining the three points; his response was that the Government do not expect this to happen or do not believe that it could happen. I hope that the Minister can also confirm, because this is important, that the ministerial delegated powers to amend the transparency thresholds will not be used before—I would prefer that they were not used at all, but especially before—the CMA and other interested parties are able to see the new system in operation. We appreciate that any future increases are subject to a cap but it would make a mockery of the process and the concession package if any of the thresholds were increased before the new system was up and running and had been tested and checked by the CMA.

One area not subject to amendments today but which we see as incredibly important is the process around MFA subsidies. At present, beneficiaries in receipt of MFA subsidies must maintain paper records, which not only increases the bureaucracy involved but goes against the grain of the general transition to paperless record-keeping. We do not believe that moving this system to a digital process would require any amendments to primary legislation, so can the Minister commit today to looking at the available options for digitising the MFA process, either as part of the department’s existing subsidy database workstream or as a stand-alone project?

I will touch on one final point about the move on upload from six months to three months. Again, I fully support this. The sooner this information is uploaded on to the database, the better for all, but we still have concerns about the right to appeal against a subsidy that a business or an organisation could be affected by. That is limited to one month; the Minister and the department have not moved that to six weeks or two months. I have some concern that we could have gone a bit further. With the reduction from six months to three months, we could have increased the ability for someone—or an organisation—adversely affected by a subsidy awarded to a competitor to challenge this by giving them a little more time. I understand the Minister’s argument about wanting the subsidy to be in place, agreed and unchallengeable, before the business will spend it, because it then has certainty. None the less, we could have given a bit more time to those who could possibly be adversely affected by it to make a challenge. With that, I again thank the Minister for the 30 amendments—it is just a shame that he could not go one more and make it 31.

[Lord Callanan (Con)]

I thank the noble Lords, Lord Fox and Lord McNicol, for their relatively supportive comments. I can provide much of the reassurance for which both noble Lords are looking.

I can certainly reassure the noble Lord, Lord Fox, that the Government will continue to keep both the thresholds and the upload deadlines under review. We will carefully consider new evidence as it arises, most notably from the CMA’s regular reporting on the operation of the regime. As part of this package of transparency measures, the Government have taken the power to be able to amend these limits, as I said, via affirmative regulations. We will certainly want to see how the new regime beds in and operates in practice before we look at any changes. Of course, they are by affirmative resolutions, so I have no doubt that the noble Lord would take me to task if we did this too early.

I can also confirm to the noble Lord, Lord Fox, that subsidies given under subsidy schemes of more than £100,000 must be uploaded on to the database within three months for non-taxed subsidies, and within 12 months for taxed subsidies.

I turn to the point of the noble Lord, Lord McNicol, about how these nefarious subsidies would be discovered. If this nefarious activity is going on, it is clearly already not in compliance with the Bill and can be challenged—so there is no need to add more rules with which the public authority is then not going to comply. We believe that these subsidies will become apparent because they will lead to distortion and harms on the market.

I turn now to the question of safeguards raised by the noble Lord, Lord McNicol. The key safeguards for the regime as a whole are the existence of the Competition Appeal Tribunal enforcement process, the CMA’s regular monitoring reports and the ongoing responsibilities of my department for the successful operation of the scheme. We will carefully see how the system operates in practice and, as I said, keep the levels under review.

I turn now to the noble Lord’s point about cumulation. Cumulation is essential for the minimum financial assistance to ensure compliance with our international obligations. The Bill sets out a straightforward way for public authorities and enterprises to clarify whether the cumulative threshold has been reached. However, this process is not necessary for in-scheme subsidies. The MFA process set out in Clause 37 can be done simply and easily as part of the normal communications between a public authority and a recipient before any subsidy is given—for example, through forms, emails and tick boxes. We are committed to making this regime as straightforward as possible to ensure that funding reaches beneficiaries as smoothly as possibly, while balancing the need for transparency. Preventing misused cumulation of awards within a scheme for transparency is disproportionate, but we will also keep the operation of that under review and will seek to make it as unburdensome as possible for the various public authorities.

With that, I commend my amendments and ask that they be supported by the House.

Amendment 18 agreed.

22:15

Clause 33: Duty to include information in the subsidy database

Amendment 19

Moved by

[Lord Callanan]

19: Clause 33, page 17, line 28, leave out “£500,000” and insert “£100,000”
Member’s explanatory statement
This amendment reduces the threshold for the exemption from the requirement to upload to the subsidy database from £500,000 to £100,000.

Amendment 19 agreed.

Amendment 20 not moved.

Amendments 21 to 30

Moved by

[Lord Callanan]

21: Clause 33, page 17, line 31, after “given” insert “as a subsidy”
Member’s explanatory statement
This amendment ensures that the one year deadline for uploading to the subsidy database only applies to tax subsidies.

22: Clause 33, page 17, line 32, at end insert—
“(aa) if made as a subsidy scheme in the form of a tax measure, within three months of the confirmation of the decision to make the scheme, or”Member’s explanatory statement
This amendment provides a 3 month deadline for uploading tax schemes to the subsidy database.

23: Clause 33, page 17, line 33, leave out “in any other form, within six” and insert “or made in any other form, within three”
Member’s explanatory statement
This amendment reduces the time limit for making an entry in the subsidy database from 6 months to 3 months in respect of a subsidy or scheme given in a form other than a tax measure.

24: Clause 33, page 17, line 41, leave out “, or a subsidy scheme made,”
Member’s explanatory statement
This amendment ensures that the one year deadline for uploading modifications to the subsidy database only applies to tax subsidies.

25: Clause 33, page 17, line 41, at end insert—
“(aa) within three months of the date of the modification, in respect of a subsidy scheme made in the form of a tax measure, or”Member’s explanatory statement
This amendment provides a 3 month deadline for uploading modifications to tax schemes to the subsidy database.

26: Clause 33, page 18, line 1, leave out “six” and insert “three”
Member’s explanatory statement
This amendment reduces the time limit from 6 months to 3 months for making an entry into the database with regard to modifications to a subsidy or scheme given in a form other than a tax measure.

27: Clause 33, page 18, line 3, leave out from “apply” to end of line 4 and insert “to the modification of a subsidy if—
(a) the subsidy is one to which subsection (2) applied, and(b) the amount of the subsidy as modified is no more than the applicable amount.(6A) For the purpose of subsection (6)(b) “the applicable amount” is—(a) the amount specified in subsection (2)(c), or(b) if regulations under subsection (8)(b) provide for a different amount in relation to the subsidy, that amount.”Member’s explanatory statement
This amendment is consequential on the amendment in the Minister's name at page 46, line 39 and defines the limits of the exemption from the database requirements in relation to modifications for subsidies given under a scheme.

28: Clause 33, page 18, line 11, leave out from “regulations” to end of line 13 and insert “—
(a) substitute a different amount for the amount specified in subsection (2)(c);(b) provide for a different amount to apply, instead of an amount specified in subsection (2)(c), in the case of particular descriptions of subsidy.(8A) An amount specified in regulations under subsection (8) may not exceed £500,000.”Member’s explanatory statement
This amendment amends the regulation-making power to ensure that the transparency thresholds can be amended but also that they are capped.

29: Clause 33, page 18, line 13, at end insert—
“(8B) The Secretary of State may by regulations—(a) amend subsections (3) and (5) so as to substitute a different period of time for the period of time specified;(b) provide for a different period of time to apply, instead of a period of time specified in subsection (3) and (5) in the case of particular descriptions of subsidy or subsidy scheme.(8C) A period of time specified in regulations under subsection (8B) may not exceed—(a) one year in respect of a subsidy given in the form of a tax measure;(b) one year in respect of a subsidy scheme made in the form of a tax measure;(c) six months in respect of a subsidy given or scheme made in any other form.”Member’s explanatory statement
This amendment provides a power to make regulations to amend the time limits in Clause 33 for making entries in the subsidy database, subject to a cap.

30: Clause 33, page 18, line 14, leave out “are subject to the negative procedure” and insert “or (8B) are subject to the affirmative procedure.”
Member’s explanatory statement
This amendment provides that regulations made under subsection (8) and under the power inserted by the amendment in the Minister's name at page 18, line 13, are subject to the affirmative procedure.

Amendments 21 to 30 agreed.

Clause 36: Minimal financial assistance

Amendment 31

Moved by

[Lord Callanan]

31: Clause 36, page 19, line 28, at end insert—
“(3A) In subsection (1), the reference to the subsidy control requirements does not include the requirements as to transparency in Chapter 3 of Part 2 except in relation to the giving of a subsidy as minimal financial assistance if the amount of the subsidy is no more than £100,000.”Member’s explanatory statement
This amendment removes the exemption from the transparency requirements in relation to minimal financial assistance, in respect of each individual subsidy which exceeds £100,000.

Amendment 31 agreed.

Clause 38: Services of public economic interest assistance

Amendment 32

Moved by

[Lord Callanan]

32: Clause 38, page 21, line 8, at end insert—
“(3A) In subsection (1), the reference to the subsidy control requirements does not include the requirements as to transparency in Chapter 3 of Part 2 except in relation to the giving of a subsidy as SPEI assistance if the amount of the subsidy is no more than £100,000.”Member’s explanatory statement
This amendment removes the exemption from the transparency requirements in relation to services of public economic interest assistance, in respect of each individual subsidy which exceeds £100,000.

Amendment 32 agreed.

Clause 41: Exemption for certain subsidies given to SPEI enterprises

Amendments 33 and 34

Moved by

[Lord Callanan]

33: Clause 41, page 23, line 13, leave out from “requirements” to end of line 30 and insert “as to transparency in Chapter 3 of Part 2 do not apply to a subsidy given to a SPEI enterprise for the purpose of the provision of SPEI services, where the subsidy is no more than £100,000.”
Member’s explanatory statement
This amendment removes the exemptions from the transparency requirements for SPEI subsidies over £100,000.

34: Clause 41, page 23, line 31, leave out “(a)”
Member’s explanatory statement
This amendment is consequential on the amendment in the Minister's name at page 23, line 13.

Amendments 33 and 34 agreed.

Clause 42: Chapter 2: supplementary and interpretative provision

Amendments 35 to 44

Moved by

[Lord Callanan]

35: Clause 42, page 23, line 39, leave out “(a)”
Member’s explanatory statement
This amendment is consequential on the amendment in the Minister's name at page 23, line 13.

36: Clause 42, page 23, line 40, leave out “of total assistance”
Member’s explanatory statement
This amendment is consequential on the amendment in the Minister's name at page 23, line 13.

37: Clause 42, page 23, line 40, leave out “for the time being”
Member’s explanatory statement
This amendment is consequential on the amendment in the Minister's name at page 23, line 43.

38: Clause 42, page 23, line 42, leave out “(a)”
Member’s explanatory statement
This amendment is consequential on the amendment in the Minister's name at page 23, line 13.

39: Clause 42, page 23, line 43, at end insert—
“(c) amend section 36(3A) or 38(3A) so as to substitute a different amount for the amount specified;(d) provide for a different amount to apply, instead of an amount specified in section 36(3A) or 38(3A), in the case of particular descriptions of subsidy.”Member’s explanatory statement
This amendment allows the new transparency thresholds inserted by the amendments in the Minister's name at page 19, line 28 and at page 21, line 8, to be amended by regulations.

40: Clause 42, page 23, line 45, leave out “only”
Member’s explanatory statement
This amendment is consequential on the amendment in the Minister's name at page 23, line 46.

41: Clause 42, page 23, line 46, leave out “equivalent to” and insert “up to an equivalent of”
Member’s explanatory statement
This amendment ensures that Clause 42(2) operates to provide a cap on the amounts that may be specified by regulations under Clause 42(1).

42: Clause 42, page 24, line 6, leave out “(a)”
Member’s explanatory statement
This amendment is consequential on the amendment in the Minister's name at page 23, line 13.

43: Clause 42, page 24, line 16, at end insert—
“(3A) An amount specified in regulations under subsection (1)(c) or (d) which amend section 36(3A) may not exceed the amount specified in section 36(1).(3B) An amount specified in regulations under subsection (1)(c) or (d) which amend section 38(3A) may not exceed the amount specified in section 38(1).”Member’s explanatory statement
This amendment ensures that where the new transparency thresholds inserted by the amendments in the Minister's name at page 19, line 28 and at page 21, line 8, are amended by regulations, they are subject to a cap.

44: Clause 42, page 24, line 17, leave out “(a) or (b)”
Member’s explanatory statement
This amendment provides that regulations made under the power inserted by the amendment in the Minister's name at page 23, line 43, are subject to the affirmative procedure.

Amendments 35 to 44 agreed.

Clause 47: Financial stability

Amendments 45 and 46

Moved by

[Lord Callanan]

45: Clause 47, page 26, line 26, at end insert “, and
(b) be laid before Parliament.”Member’s explanatory statement
This amendment provides that a financial stability direction is to be laid before Parliament.

46: Clause 47, page 26, line 27, leave out subsection (7) and insert—
“(7) If the Treasury considers that the steps required by subsection (6) would have the effect of undermining the purpose for which the direction is given, the Treasury may delay the carrying out of those steps until such time as it is satisfied that to do so would not have that effect.”Member’s explanatory statement
This amendment ensures that the exemption from the requirement to publish a financial stability direction and lay it before Parliament is temporary; the exemption may only be relied on for as long as the Treasury considers publication would undermine the purpose for which the direction is given.

Amendments 45 and 46 agreed.

Clause 55: Call-in direction

Amendment 47

Moved by

[Lord Fox]

47: Clause 55, page 30, line 40, after “State” insert “or the CMA”

[Lord Fox (LD)]

I rise on behalf of the noble Lord, Lord Lamont, to move Amendment 47 and also speak to Amendments 48 to 50. I had never expected to be the noble Lord’s stunt double but I do not regret it at all. As on many issues, the noble Lord and I agree that the role of the CMA requires boosting so that, as he said at Second Reading, it can police the control of the regime. It is a shame that he is not here to speak on his own account as he would do so with much more vigour and verve than I, but we both see these amendments as analogous to the independence that was given to the OBR and the Bank of England. If the Government genuinely want to control subsidies, as the title of the Bill suggests, there should be greater independent enforcement instead of what is a pretty weak SAU.

I have a number of direct questions to channel from the noble Lord, Lord Lamont, before I speak on my own account. It is worth noting that on 7 February, the Minister said that

“the Bill does not, of course, replace our gold-standard mechanisms … for managing public money”.

The noble Lord would like to know: to what mechanisms was the Minister referring? I am looking forward to the answer to that question as much as is the noble Lord himself. As the Minister highlighted at the time, and as is the view of the noble Lord, Lord Lamont, balancing the current budget while having national debt on a declining trend does not deal with the micro issues such as distortions of competition caused by subsidies. That is clearly true. I wonder on my own part why the Minister brought that up. The final point is that the Minister went on to say that

“public authorities … take their statutory obligations seriously … we expect the vast majority of public authorities to comply with these requirements”.—[Official Report, 7/2/22; col. GC 382.]

The interpretation of that is that public authorities, including the Government, are to police themselves. This is not an enforcement mechanism; it is incredibly weak.

For my own part, I would say that this is strong criticism from a former Chancellor of the Exchequer and hits at the heart of the Bill. To that end, I think that we deserve a serious and studied answer from the Minister, which I am sure we will get. This centres around the self-policing, public reporting mechanism that, essentially, has been adopted. What we have are amateur regulators and citizen detectives. It is clear that this is not the way to police something as important as a subsidy regime.

In addition to the amendments from the noble Lord, Lord Lamont, I am delighted to support Amendment 55 in the name of the noble and learned Lord, Lord Thomas of Cwmgiedd. Throughout this and previous debates, his dedication to the cause of trying to bring some structure to this legislation should be commended by us all. In many ways, this amendment sits somewhere between the positions of the noble Lord, Lord Lamont, and the Government. As we would expect from the noble and learned Lord, Lord Thomas, it also addresses some serious devolution issues. I am really looking forward to hearing him set out how this amendment will solve some of the problems we have encountered throughout our debates.

A lot of those problems are based around the asymmetry that both the noble and learned Lord, Lord Thomas, and my noble friend Lord Purvis raised on a previous set of amendments. There is an asymmetry here: the Secretary of State in London can call in the CMA, whereas the authorities in Edinburgh, Cardiff and Belfast cannot do the same thing. This is at the core of the problem that people have. When we hear, in response to the request by the noble and learned Lord, Lord Hope, what the stymie on getting legislative consent is, I suspect the problem—one of the central issues—will be a version of that. Addressing that would go a long way towards bridging the gap to getting legislative consent, which I hope is the Minister’s objective.

That said, I will speak no longer and look forward to the noble and learned Lord, Lord Thomas, explaining his Amendment 55 much better. I beg to move Amendment 47.

[Lord Thomas of Cwmgiedd (CB)]

My Lords, I will speak to Amendment 55. I first thank the noble and learned Lord, Lord Hope of Craighead, and the noble Lords, Lord Wigley and Lord Fox, for their support. The amendment has two purposes, one of which has been outlined by the noble Lord, Lord Fox, dealing with the position of the CMA. The second is to deal with the position of the devolved Governments and legislatures.

I ought to deal first with the position of the CMA. Although I co-signed amendments with the noble Lord, Lord Lamont, before Committee, the amendments he put down did not include two of them; I am not sure why. I have restored them all, because it seems to me that, on analysis, if the Bill is to be regarded as a serious attempt to uphold the rule of law and not as a piece of window dressing to satisfy our international obligations, we need to look more carefully at the position.

There are three methods of enforcement. The first is to have transparency and force disclosure. We know of the force that has; the effect of sunshine as a disinfectant is well recorded in history.

Secondly, there is the need for the CMA to investigate. It seems to me that without the CMA having powers of investigation, you do not have a properly independent system of enforcement compliant with the rule of law. It cannot be right to leave enforcement to those giving subsidies. You must have someone independent and objective in making the investigation. That is a requirement of the way in which all investigations are carried out; they have to be independent and impartial. I simply do not understand why the CMA cannot be allowed to conduct investigations that it thinks should be carried out, not merely those that the Secretary of State wants carried out or that are referred to it. Of course it will carry out the investigations referred to it by the Secretary of State independently, but it does not have the necessary power to do it where it thinks it is in the interests of enforcement.

For a similar reason it seems clear that, as was proposed in the amendments in Committee, the CMA ought to have powers of enforcement before a CAT—this is where it differs slightly from the amendments put forward by the noble Lord, Lord Lamont. Again, independent powers of enforcement are essential. The Secretary of State will have some powers, as will those who say they are injured as a result of what has happened. But that is essentially, to take an analogy with the ordinary enforcement system, a system of effectively private prosecution. My experience of private prosecutions has always been that, unless they are funded for extraneous and charitable purposes, such as is done by the RSPCA, or there is money in it by obtaining a conviction for those who are businessmen interested in getting a private prosecution, it is unlikely that there will be private enforcement. There is no doubt that this kind of enforcement action is extremely expensive. Therefore there is a real risk that there will not be much effective enforcement and that such effective enforcement as there is will be directed only at what I would call big money cases. Having a justice system that deals only with big money cases is recognised to be no just system at all.

The noble Lord, Lord Lamont, put it very pithily by creating Juvenal: “Quis custodiet ipsos custodes?” It seems to me that that summarises it in four words. There must be someone independent, both to investigate and to bring a matter before the courts if necessary, who can ensure that the Secretary of State and others uphold the rule of law. That is all I wanted to say about the position of the CMA.

On the second purpose of the management, I can deal with that briefly. It is an important question even at this hour of night, because it raises the issue of equality between our nations. I spoke at length about this when proposing the amendments in respect of seeking the consent of the devolved authorities and giving them certain powers, but this is an egregious example of inequality. Whereas the Secretary of State qua Minister responsible for England and the giving of subsidies in England can refer matters dealt with by, say, the Welsh, Scottish or Northern Ireland Governments to the CAT, there is no equality the other way round. That seems a fundamental flaw in this part of the Bill. It could be remedied by an undertaking by the Secretary of State that, if he was asked by the devolved Governments to make a reference, he would do so, and I very much hope that the Minister will be able to give such an undertaking.

What is important about these issues of equality is that they matter in two respects: first, that there is equality, but also that there is seen to be equality, and the equality between the nations is fundamental to the union. Secondly, there is the purpose of the amendment relating to the devolved authorities—this differs from the amendments in the name of the noble Lord, Lord Lamont. It seeks to make clear that the devolved Governments will always be interested parties for the purposes of appearance before the CAT. Again, this could be clarified. It would be far better if this was done in legislation, but at least it could be taken some way by the Minister making this clear.

I am sorry to have spoken at such length at this hour of night but these are important points of principle. They go to the rule of law and the position of the CMA, but also go to the equality between our nations and the survival of our union.

[Lord Hope of Craighead (CB)]

My Lords, I have added my name to this amendment. We should pay tribute to the noble and learned Lord, Lord Thomas, for his insight on the importance of enforcement to make the system work. His two points do not need repetition but the first, about the role of the CMA, begs a question. Why should the CMA not have the powers that are being referred to in this amendment? As far as the equality issues are concerned, the question is: why not? One point in the amendment that particularly appeals to me is the reference to interested parties. All the bodies mentioned there—the CMA and the three devolved Governments—are interested parties. It may be that, as the jurisprudence of the system works its way through the process, this will be established; but it is far better to have it made clear at the beginning, so that its position is plainly established, and the enforcement process can be put through in a proper manner. Paying tribute as I do to the noble and learned Lord, I entirely support his amendment.

22:30

[Lord Bruce of Bennachie (LD)]

My Lords, I support the second part of the amendment tabled by the noble and learned Lord, Lord Thomas, on the point about equality. There is a poll out today which says that the majority of people in Scotland do not expect the union to survive for the next 10 years. I think and hope that they are wrong, but it is indicative of how serious this issue is and that it is really important that not only the law but the Government’s approach recognises the need to accommodate equality of treatment between the devolved Administrations and the UK Government. The noble and learned Lord’s amendment puts that quite clearly, and the Government should take it seriously.

[Baroness Bryan of Partick (Lab)]

My Lords, I too support Amendment 55. I travelled from Scotland this morning to support it, so I hope that despite the late hour, your Lordships will bear with me.

On the devolved Governments, this is yet another very modest amendment and provides the very minimum recognition that devolved Governments have responsibility for important areas of their economies and should have the right in relation to call-in and enforcement.

I thank the Minister for his letter of 15 March with the update on the Bill’s progress. I do not think that anyone was surprised to read that, despite what he terms the Government’s best efforts, they have not been able to secure the legislative consent Motions. However, I was very sorry to read that the Government have decided to proceed without them. The Minister wanted to emphasise the Government’s determination to continue working collaboratively and transparently with the devolved Administrations, but both the Scottish and Welsh Governments do not believe that there has been a strong attempt to work collaboratively. Instead, they feel that they have been told rather than consulted.

The explanation given in Committee by the noble Baroness, Lady Bloomfield, in her closing comments on the set of amendments dealing with devolution, made it clear that the Government believe that they have every right to override the concerns of devolved Governments on the grounds of the UK Parliament’s status as

“the supreme legislative body of the United Kingdom”,

believing that it is merely

“a reflection of constitutional reality.”

She also stated that she simply did not believe that

“it is appropriate to require the Secretary of State to seek consent even when the Secretary of State may ultimately proceed without that consent on a reserved matter.”—[Official Report, 31/1/22; cols. GC 115-117.]

This issue is at the heart of the problem that this amendment tries, in some small way, to deal with. As has been mentioned, the Secretary of State is acting for what the Minister describes as the “supreme legislative body” but at the same time is representing the interests of England.

Speakers in Committee described this as lacking justice and being unfair. The Minister did not answer on this issue in Committee, nor was it referred to in his letter. We hope that we will find out in due course whether the review of intergovernmental relations will make a real difference. While the UK Government show so little understanding of and lack of esteem for the devolved Governments, it is hard to imagine that there will be a significant change. I hope the Minister can give some reassurance that the Government will reconsider allowing the role for devolved Governments outlined in Amendment 55 as, if they do not recognise the legitimate concerns of the devolved Governments, I fear it will contribute to the break-up of Britain, as the noble and learned Lord, Lord Thomas, and the noble Lord, Lord Bruce, warned.

[Lord Wigley (PC)]

My Lords, I will detain the House for only a moment as it must take for read my feelings on the devolved questions which we have threshed around so much. I want to put on record how much I and, I hope, the House appreciate the contribution of the noble and learned Lord, Lord Thomas of Cwmgiedd, not only to this debate and earlier debates but for his work in Committee. That he is willing at this stage of his distinguished career to put hours of work into an amendment such as this demands that the Government take notice. He has raised serious points in a professional manner. If the Government cannot respond positively to them now, there is still a chance for amendments to come forward at Third Reading to take on board the points that he has made so eloquently.

[Lord McNicol of West Kilbride (Lab)]

My Lords, as we move to the final group it seems that Covid has claimed yet another victim in the noble Lord, Lord Lamont, who is unable to move his amendment. It is a shame that we get to this important group so late in the evening. If we had been here earlier, I am sure that the will of the House on Amendment 55 in the name of the noble and learned Lord, Lord Thomas of Cwmgiedd, would have been tested. At this late hour, I guess that is not going to happen. It is a shame because this group of amendments tabled by the noble Lord, Lord Lamont, the noble and learned Lord, Lord Thomas, and me are important in how the subsidy control scheme and processes will work. I am sure that those amendments would have brought more sense to the Bill, as did the amendments on transparency. I am grateful to the noble Lord, Lord Fox, for speaking to Amendments 47 and 50 on behalf of the noble Lord, Lord Lamont, and to the noble and learned Lord, Lord Thomas of Cwmgiedd, for speaking so ably to his Amendment 55.

I have tabled two amendments in this group. They both bring us back to earlier debates on the functioning of the challenge process. We continue to be concerned by the prohibition on challenges to individual subsidies made under a scheme. The threshold for successfully challenging a scheme is likely to be substantially higher than that attached to the challenge of an individual subsidy, and the Government’s refusal to move on this area suggests a determination to close the door, or at least to push it back a bit, on the ability legitimately to challenge any subsidies. I apologise for bringing up these issues on the previous group. I was getting a bit ahead of myself there.

We also do not understand why the Government have refused to move on the CAT application deadline. As I said earlier, many organisations will lack the capacity to constantly check the subsidy database to monitor the subsidies received by their competitors. This is a particular challenge for SMEs, which are unlikely to have in-house expertise on these matters but are arguably most susceptible to the impact of any economic distortions caused by a subsidy award.

The Government continue to insist that a six- or eight-week application window to bring a challenge under CAT would be an unacceptable length. From our Benches, we fundamentally disagree. An extended period would give those businesses and organisations possibly affected adversely by a subsidy more time to understand and analyse what was happening. However, with the disclosure deadline for non-tax incentives having been halved from six months to three, doubling the time for submitting a challenge to the CAT would not take us further than what was in the original wording of the Bill.

Having promised businesses, particularly SMEs, time and again that Brexit would mean the slashing of red tape, the Government continue to subject businesses to unacceptable burdens. The new subsidy control system may cut red tape in some respects, but it also imposes unacceptably high barriers in cases where a party feels wronged. We know from discussions between Committee and Report that the Government believe that affected enterprises would have alternative means of legal redress and I look forward to the Minister outlining them in his response to this group of amendments.

However, the fact remains that the entire enforcement side of this new regime does not seem up to scratch. We await the CMA’s initial report and I very much hope I will be proven wrong, but the Government will need to be prepared to revisit some of these matters if it transpires that their chosen approach is failing to ensure fairness, transparency and access to justice.

To finish on this, and to use the words that have come through on this debate, I have a modicum of comfort and delight that we are now completing the Report stage of this Bill.

[Lord Callanan (Con)]

I thank all those who have contributed to the debate. It has been a good discussion, both tonight and in the previous discussions we have had on the regime as a whole and the subsidy advice unit. I particularly enjoyed the contribution from the spokesman for my noble friend Lord Lamont. This is a trend that should perhaps continue on other subjects on which my noble friend feels strongly.

[Lord Fox (LD)]

Have I been fired as the Minister’s speechwriter?

[Lord Callanan (Con)]

If the noble Lord is going to write my speeches, he might as well write them for my noble friend Lord Lamont, as well. The answer to the question of my noble friend Lord Lamont, through his spokesman, is the Green Book and Managing Public Money guidelines; I suspect as an ex-Chancellor he knows that very well indeed—probably better than we do.

Government Amendments 52 and 53 to Clause 65 have been tabled to address your Lordships’ concerns regarding the frequency of the CMA’s monitoring reports under Clause 65. Instead of mandating a report within five years of the implementation of the regime, the amendments require an initial report after only three years, subsequently followed up by a further report after another three years. Subsequent reporting will then revert to a five-year cycle.

I hope noble Lords will agree that the publication of these two initial reports will be sufficient to keep Parliament and the public informed of how the new subsidy control regime is functioning, and to assist in setting best practice going forward. As a result of these changes, I have also tabled two consequential amendments to clarify how these new initial reports will interact with other provisions in the Bill. These are Amendments 54 and 63.

22:45

While the changes we are proposing will extend the life of the regulation-making powers under Part 4 from six to seven years, we believe this is a sensible extension allowing important observations on the regime from the subsidy advice unit, or indeed others, to be considered by the Government in the early years of the regime. I hope that noble Lords’ concerns have been addressed by these amendments and that they can find their way to supporting them as part of the Bill.

Turning to the amendments tabled by my noble friend Lord Lamont, I will not—noble Lords will be pleased to know—repeat at length points that I made in Grand Committee on the rationale behind the approach to enforcement laid out in the Bill, but the subsidy advice unit plays a fundamental role in the regime. By publishing reports on the subsidies and schemes that are most likely to be distortive to competition, investment and trade, it provides in-depth transparency and scrutiny that will support interested parties, including the Secretary of State, in bringing challenges in the Competition Appeal Tribunal.

It is important to underline that the vast majority of these reports will concern subsidies and schemes that meet the criteria set out in our definitions for subsidies and schemes of particular interest, which must be referred to the SAU, and subsidies and schemes of interest, which a public authority may choose to refer. These criteria will ensure that proper scrutiny is given to subsidies that are high value, that are in sensitive sectors, or that have certain characteristics that are more likely to lead to disproportionate distortion.

The advantages of setting out these criteria in advance are multiple. First, it allows the Government to consult widely on them, and to accumulate and publish their evidence base. A further advantage of providing these criteria in regulations is to minimise the need to carry out extensive and time-critical monitoring of prospective subsidies, and to analyse their level of risk on a case-by-case basis. The Government have no intention that this will be done on a routine basis by either my department or the SAU. Setting the criteria in advance is more predictable for public authorities and recipients and reduces the incentive for them to fly under the radar to avoid an unwanted pre-award referral. Finally, a fundamental advantage of providing these criteria in regulations is to make it absolutely clear that mandatory referral applies to UK Government subsidies as much as those given by other public authorities.

The Secretary of State’s powers to direct a subsidy to the SAU represent merely a safety net for the very rare event that a prospective subsidy does not meet the specified criteria for mandatory referral, but nonetheless appears concerning, or could benefit from the scrutiny of an SAU report. It is right to have this fallback, not least in view of our international obligations. But the call-in powers are not fundamental to the operation of the regime. The success of our subsidy of interest and of particular interest regulations will be measured by the infrequency with which this power is used.

Specifically on my noble friend’s amendments, as I have explained above, this role for the Secretary of State is of relatively minor importance in the context of the new regime. But this minor role is one that requires the political responsibilities of a Minister, not a regulator. A Minister of the Crown, acting in their capacity as a Minister for the whole of the UK and with responsibility for ensuring that the UK meets its international obligations, can exercise discretion in a way that a statutory body cannot. The CMA could not take on this function without compromising not only the agile character of the new regime but the primacy of the subsidy of interest and of particular interest regulations.

Unlike the Secretary of State, the SAU is a statutory body which can exercise only the functions given to it under legislation. Consequently, it cannot exercise discretion in the same way that the Secretary of State can. To carry out these functions, the SAU would be required to scale up considerably to conduct the level of oversight and monitoring needed to fulfil the duty that this amendment would place on it. Therefore, I hope that my noble friend will be able to withdraw his amendment—through his spokesman.

Amendment 55, tabled by the noble and learned Lord, Lord Thomas, would extend the powers in Clauses 55 and 60 to the devolved Administrations and the Competition and Markets Authority. It would have the effect of extending the power to direct public authorities to request a CMA report and to refer a subsidy or subsidy scheme that has been made to the CMA. It would also mean that the DAs and the CMA would be able to automatically apply to the Competition Appeal Tribunal to review a subsidy decision. For the DAs, extending these powers ignores the different roles the DAs and Secretary of State will play within the regime, and indeed the differing roles they play within the constitutional framework of the UK.

I have said this before, but I will repeat that it is the settled will of Parliament that subsidy control is a reserved matter. The UK Government have overall responsibility for the proper functioning of the subsidy control regime across the whole UK. It is also the UK Government who have the responsibility for our compliance with our international obligations in this area, including the TCA.

Furthermore, it is only the Secretary of State who will have, front of mind, issues such as the caseload and resource available to the SAU. Of course, it is important that the considerations of the DAs are taken into account regarding the call-in of subsidies. Noble Lords should be assured that the Secretary of State would take such requests seriously and consider them appropriately on their merits. I can provide the reassurance to both the noble and learned Lords, Lord Thomas and Lord Hope, that work has already begun with the DAs on formalising this process through the continued work on the memorandum of understanding with the DAs to set out in writing that, where such requests are received, they will be considered with due care, attention, and respect by the Secretary of State.

As regards the ability of the DAs to challenge subsidies in the CAT, the noble Lord should be reassured that there is no disadvantage to the DAs. As I have said, this is a reserved policy area, so the Secretary of State has a unique set of responsibilities in this regime—to ensure its good operation for the benefit of every part of the UK. Therefore, the Secretary of State has default standing to ask the CAT to review a subsidy so that he or she can protect those two interests. The DAs do not share the same responsibilities and it follows that it is neither necessary nor appropriate that they should have the same standing.

Crucially, though, that does not mean that the DAs cannot ask the CAT to review a subsidy decision. Anyone whose interests may be affected by the giving of a subsidy can do so, including one given by the Secretary of State in England to address—I hope—the noble and learned Lord’s concerns. As I have previously said, that includes the DAs where the interests of people in the areas from which they exercise their responsibilities may be affected by a subsidy. I am not sure what reason there is for the DAs to have standing where those interests may not be affected by a subsidy. For all the reasons I have stated, I hope that the noble Lord can withdraw his amendment.

I will address the amendment of the noble Lord, Lord McNicol, to extend the initial limitation period for challenging a subsidy in the CAT from one month to two. The limitation period is set as it is to strike a balance between the need to give an opportunity to challenge subsidies and creating prolonged uncertainty for public authorities and beneficiaries that will act as a brake on legitimate subsidies. However, as I have just outlined, the CMA will be undertaking a review of the regime and publishing a report—now after three years—which will be presented to Parliament. As set out in Clause 65, this report will include a review of the effectiveness of the operation of the Act, as part of which the CMA will be able to consider the effects of the limitation period on the successful operation of the regime.

I turn to Amendment 56 tabled by the noble Lord, Lord McNicol, supported by the noble Lord, Lord Fox, on the question of whether subsidies given under the scheme should be subject to challenge in the CAT. We debated that extensively in Committee, and the House will be pleased to know that, given the lateness of the hour, I will not repeat the arguments I made then. But this does not mean there is absolute protection for a subsidy purportedly given under the scheme. An interested party can argue that a subsidy does not in fact meet the terms of the scheme and can challenge it as a stand-alone subsidy. I therefore hope that the noble Lord will be able to withdraw his amendment. I would like to move my amendments and hope others will not press theirs.

[Lord Fox (LD)]

My Lords, I thank the Minister for his answers, although many of them are disappointing. On Amendment 56, it would be helpful if the Minister could write on how that challenge would work. I am looking particularly at where a scheme has been approved and a number of businesses granted subsidy under that scheme. What happens if I want to challenge not the scheme but the validity of that particular business getting that particular subsidy? It is not clear to me, under the rules, how that works, so could the Minister write a letter to me and the noble Lord, Lord McNicol, clarifying that?

On Amendment 55, repeating the mantra that it is a reserved issue is almost exactly the opposite of what we were calling for: having some sensitivity in the nature of the Bill. It is a reserved issue but it trespasses into areas that are devolved and, as my noble friend Lord Purvis illustrated, agriculture is one such area—there are others. The absence of sensitivity is the disappointing thing.

The noble and learned Lord, Lord Thomas, the noble Baroness, Lady Bryan, the noble Lord, Lord Wigley, my noble friend Lord Bruce and the noble and learned Lord, Lord Hope, all made valid points about reaching across that barrier, but there seemed to be no such reaching from the Minister. I hope he will have time to reflect on this and can come back at Third Reading with something a little more conciliatory than “This is a reserved issue” because that is really not good enough.

The criterion on which I was allowed to act as the spokesperson of the noble Lord, Lord Lamont, was that under no circumstances should I press Amendment 47 so, as a man of honour, I beg leave to withdraw the amendment.

Amendment 47 withdrawn.

Amendments 48 and 49 not moved.

Clause 58: Call-in direction following voluntary referral

Amendment 50 not moved.

Clause 65: Monitoring and reporting on subsidy control

Amendment 51 not moved.

Amendments 52 to 54

Moved by

[Baroness Bloomfield of Hinton Waldrist]

52: Clause 65, page 37, line 17, leave out “fifth” and insert “third”
Member’s explanatory statement
This amendment changes the reporting requirement so that the CMA must prepare its first report three years after commencement instead of five years after commencement.

53: Clause 65, page 37, line 18, after “falls” insert—
“(aa) the following period of three years”Member’s explanatory statement
This amendment provides that the CMA must prepare its second report three years after its first report, instead of five years after its first report.

54: Clause 65, page 37, line 21, at end insert—
“(4A) The Secretary of State may exercise the power in subsection (4) only after the CMA has prepared its reports in relation to the first two relevant periods mentioned in subsection (3).”Member’s explanatory statement
This amendment ensures that the Secretary of State can only direct the CMA to report on specified periods after the first two reports in respect of the first two relevant periods under subsection (3) have been prepared.

Amendments 52 to 54 agreed.

Amendment 55 not moved.

Clause 70: Review of subsidy decisions

Amendment 56 not moved.

Clause 71: Time limits for applications under section 70

Amendment 57 not moved.

Schedule 3: Subsidies provided by primary legislation

Amendment 58 not moved.

Amendment 59

Moved by

[Baroness Bloomfield of Hinton Waldrist]

59: Schedule 3, page 58, line 4, leave out “(1)(a) and (b)”
Member’s explanatory statement
This amendment is consequential on the amendment at page 46, line 39 in the Minister's name, and provides that for the purposes of paragraph 8 of Schedule 3, the Clause 33 references to subsidies and schemes are taken to refer to those provided by primary legislation.

Amendment 59 agreed.

Clause 79: Guidance

Amendment 60

Moved by

[Baroness Bloomfield of Hinton Waldrist]

60: Clause 79, page 45, line 30, at end insert—
“(ea) section 76 (duty to provide pre-action information);”Member’s explanatory statement
This amendment adds the duty to provide pre-action information to the list of matters in Clause 79 on which the Secretary of State may issue guidance.

Amendment 60 agreed.

Amendment 61 not moved.

Clause 81: Modifications to subsidies and schemes

Amendment 62

Moved by

[Baroness Bloomfield of Hinton Waldrist]

62: Clause 81, page 46, line 39, leave out from “apply” to end of line 40 and insert “—
(a) for the purposes of section 33(1) and (3) (see instead section 33(5)), or(b) if the modification is only a permitted modification (but section 33(5) applies to a permitted modification as it applies to other modifications).”Member’s explanatory statement
This amendment removes the exemption from the duty to enter modifications in the subsidy database, in relation to permitted modifications.

Amendment 62 agreed.

Clause 87: Regulations

Amendment 63

Moved by

[Baroness Bloomfield of Hinton Waldrist]

63: Clause 87, page 49, line 20, leave out “first” and insert “second”
Member’s explanatory statement
This amendment provides that the sunsetting provision for the Part 4 regulation-making powers will be triggered by the second report that the CMA makes under section 65, rather than the first report.

Amendment 63 agreed.

Amendment 64 not moved.

House adjourned at 10.59 pm.