Grand Committee
Arrangement of Business
The Deputy Chairman of Committees (Lord Geddes) (Con)
If, as is quite likely, there is a Division in the Chamber, the Committee will adjourn as soon as the Division Bells are rung and resume after 10 minutes.
Covid-19 and the Use and Scrutiny of Emergency Powers (Constitution Committee Report)
(2 years, 6 months ago)
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Baroness Drake
That the Grand Committee takes note of the Report from the Constitution Committee COVID-19 and the use and scrutiny of emergency powers (3rd Report, Session 2021-22, HL Paper 15).
Baroness Drake (Lab)
My Lords, in June 2021, the Constitution Committee published its report COVID-19 and the Use and Scrutiny of Emergency Powers, following a broader inquiry into the constitutional implications of Covid-19 chaired by my esteemed noble friend Lady Taylor of Bolton. The social, economic and health implications of the pandemic were profound, the constitutional impact significant. The committee examined the emergency powers sought by the Government, and the extent to which they were used and how. We wanted to determine if there were lessons to be learned for future uses of the emergency powers, their safeguards and the processes for scrutinising them. We addressed four main dimensions: the legislative approach taken and parliamentary scrutiny afforded; co-ordination between the UK Government and the devolved Administrations; the impact of rapid changes to the law on the public and public authorities; and lessons learned. Inevitably, for any Government, national responses to such a fast-moving crisis can sometimes be sub-optimal. However, any Government must be open to learning lessons to inform future contingency planning. Witnesses told us that much could be done differently the next time.
I turn to the legislative approach taken and parliamentary scrutiny. The pandemic unquestionably necessitated a swift response from the Government. Two Acts of Parliament were used by the Government to make regulations: the Public Health (Control of Disease) Act 1984, and the Coronavirus Act 2020. However, scrutiny by Parliament was significantly restricted due to the procedures in the 1984 and 2020 Acts and Covid-driven changes to parliamentary proceedings. A large volume of new legislation came into effect as secondary legislation, much through public health regulations placing unprecedented restrictions on ordinary activities and freedoms, often without parliamentary approval. Of the 425 Covid regulations by the end of the 2019-21 Session, 398 were subject to the “made negative” or “made affirmative” procedures, and 86 were made using the urgency procedures under the 1984 Act. Regulations under the 2020 Act were more targeted on matters such as business tenancy forfeiture and local government elections.
The Government relied on the powers in the 1984 Act, rather than the Civil Contingencies Act 2004, and rather than incorporating a Covid-specific lockdown power in the Coronavirus Act 2020. Either of these latter two options could have resulted in greater parliamentary scrutiny and legal clarity. As a committee, we took the view that, if the use of the Civil Contingencies Act was not considered practically desirable, the Government should have voluntarily subjected themselves to comparable parliamentary scrutiny safeguards in pandemic-related legislation. We recommended that Parliament be consulted on any future draft legislation prepared on a contingency basis to address a potential emergency, ensuring that it provides for sufficient parliamentary scrutiny.
I turn to co-ordination between the UK Government and the devolved Administrations. Joint action was necessary to respond to a UK-wide crisis. The Coronavirus Act 2020 was the product of collaboration, passed with the consent of all three devolved legislatures. In the early stages, the First Ministers of Scotland and Wales and the First Minister and Deputy First Minister of Northern Ireland were invited to attend COBRA meetings. Ministers from the devolved Administrations attended meetings of five new ministerial implementation groups—MIGs—that looked at aspects of the coronavirus response. The different Administrations’ Chief Medical Officers and Chief Scientific Advisers met regularly, sharing information. The chairs of the Scottish and Welsh advisory groups on SAGE outputs were also participants in SAGE.
As the UK moved out of the first lockdown, however, although co-ordination on some devolved areas continued, such as scientific advice, procuring equipment and virus testing, intergovernmental co-operation appeared to decrease significantly. Each Administration started to take independent decisions about lockdown restrictions. On 10 May 2020, the Prime Minister announced the change from “stay at home” to “stay alert” but did not make clear that it applied to England only. This change was apparently made without informing the devolved Administrations. The UK Government set out three phases for easing lockdown restrictions in England. The Northern Ireland Executive set five, the Scottish Government four, and the Welsh Government opted for a traffic light system.
By early June 2020, both COBRA and the MIGs ceased to meet, replaced by two new Cabinet committees. Neither included representatives from the devolved Administrations. Yet the Cabinet Manual makes it clear that this is permitted on an exceptional basis to deal with an emergency response. Differences arose between parts of the UK on the countries exempt from quarantine restrictions and the international travel restrictions. This strained intergovernmental co-operation contributed to a lack of clarity about what rules applied where, causing difficulties for enforcement and compliance.
There is much to learn from the pandemic period to inform improving intergovernmental working. The Secretary of State, Michael Gove, recognised this when he
“described the pandemic as ‘a learning process for everyone’, raising broader questions about ‘making sure the whole devolution settlement works’. He said the UK Government intended to address this through reforms to intergovernmental mechanisms”.
Can I ask the Minister what consideration has been given to how the new intergovernmental relations arrangements could be deployed in the event of another national emergency similar to that created by the pandemic?
Turning to the impact of rapid changes to the law, the Constitution Committee noted that legal changes introduced were often set in guidance, or announced during media conferences, before Parliament had an opportunity to scrutinise them. The law was sometimes misrepresented in these public-facing forums, leading to a lack of clarity about what was legally enforceable. This posed challenges for the police and local government, sometimes leading to wrongful criminal charges. Guidance and media statements, when used appropriately, can enhance access to the law by simplifying legal complexity in a format that is easy to digest, but the committee found that, throughout the pandemic, government guidance and ministerial statements failed to set out the law clearly, mis-stated the law, or laid claim to legal requirements that did not exist.
Sometimes, public health advice was incorrectly enforced by the police as though it were law, and public authorities incorrectly suggested that guidance had the force of law. The report contains the detail of our findings but, as an example, on 23 March 2020, the Prime Minister announced the first England-wide lockdown in a televised address. The following day, the then Secretary of State for Health stated:
“These measures are not advice; they are rules. They will be enforced, including by the police”.—[Official Report, Commons, 24/3/20; col. 241.]
The announcement caused confusion about their meaning, with one police force threatening to search individual shopping baskets in supermarkets to check for non-essential items.
The UK Government’s website included the headline rules:
“Stay at home. Only go outside for food, health reasons, or work (but only if you cannot work from home). If you go out, stay 2 metres … away from other people at all times. Wash your hands as soon as you get home.”
The first instruction was a simplified explanation of a legal obligation. The second and third instructions were public health advice. The chair of the National Police Chiefs’ Council later had to clarify that the two-metre rule was not a legal requirement enforceable by police. The Secondary Legislation Scrutiny Committee also expressed concern that the distinction between legislation and guidance had been unclear, citing further examples.
New strains of the virus and spikes in infections made urgent legislative changes necessary, but sometimes seemingly non-urgent measures were introduced at short notice. In other cases, the urgency appears to have resulted from a lack of preparedness. The repeated repeal and amendment of Covid regulations added to confusion as to what restrictions applied at any one time. For example, on 2 and 3 September 2020 the “protected area” covered by the Health Protection (Coronavirus, Restrictions) (Blackburn with Darwen and Bradford) Regulations were amended twice in 12 hours. The Health Protection (Coronavirus, Wearing of Face Coverings in a Relevant Place) (England) Regulations 2020 were amended by three different statutory instruments made on 22 and 23 September 2020. The “all tiers” regulations were amended by eight further statutory instruments between December 2020 and March 2021.
In summary, legal uncertainty, short notice of new measures, and repeated amendment and revocation of secondary legislation combined in certain instances to undermine parliamentary scrutiny and made it difficult for public authorities tasked with enforcement to understand the law. Her Majesty’s Inspectorate of Constabulary reported:
“At times, the introduction of, and variation to, new legislation and guidance affected the police service’s ability to produce guidance and to brief staff. This inevitably led to some errors or inconsistencies in approach.”
The Secondary Legislation Scrutiny Committee recommended that an evaluation of how information about which instruments were superseded or had lapsed could have been provided more effectively. In our report, we strongly recommended that government information
“during a public health emergency conform to”
certain
“essential conditions to enable people … to understand the law”,
one such being
“A consistent approach to use of the terms ‘advice’, ‘guidance’, ‘recommendation’, ‘rules’ and ‘restrictions’”,
because those descriptions clearly did not have the clarity that people needed, and that in enacting any further restrictions,
“the Government should be guided by the principles of certainty, clarity and transparency”.
Finally, as to lessons learned, the Government used a wide range of emergency measures to respond to the pandemic, many introducing significant curbs on civil liberties and businesses. Scrutiny of these regulations by Parliament was significantly restricted. The chair of the public inquiry into the handling of Covid says that public hearings are unlikely to begin before 2023. Can the Minister give an indication of how long the inquiry will take? We recommended a review of the use of emergency powers by the Government, and their scrutiny by Parliament. It should take place in advance of the public inquiry, not after, so that the review can inform both the public inquiry and the planning for future emergencies. Can the Minister tell us the Government’s position on this recommendation from the committee?
It is unquestionable that the Government faced an enormous challenge with Covid-19, and the first responsibility of any Government is to protect their citizens. However, I refer to a conclusion that we made:
“All governments should recognise that, however great or sudden an emergency … powers are lent, not granted, by the legislature to the executive, and such powers should be returned as swiftly and completely as possible, avoiding any spill over into permanence.”
That conclusion is probably still valid while we wait to see the outcome of the various reviews that the Government are engaged in. I look forward to the Minister’s response.
Baroness Foster of Oxton (Con)
My Lords, the use of emergency powers is defined in the report as follows:
“Emergency legislation may be necessary in exceptional circumstances, but its use should be limited given its significant constitutional consequences.”
In addition:
“All governments should recognise that, however great or sudden an emergency may be, exceptional powers are lent, not granted, by the legislature to the executive, and such powers should be returned as swiftly and completely as possible, avoiding any spill over into permanence … . The vast majority of these regulations became law before being laid before Parliament; in other words, before members of either House”
had the chance to see them. The question is: did this need to be the case, notwithstanding the urgency with which we were required to act?
What is clear is that we can never implement emergency powers in such a cavalier fashion in future. The consequences of lockdowns on health, both physical and mental, and on so many vulnerable adults and children were appalling. Despite many scientists being aware of the effects that would take place, they said nothing. This led to millions of people waiting for treatment, some dying prematurely through lack of referral. Even now, all this time later, we are left with accident and emergency clogged up trying to sort out the mess.
The financial cost to the economy of three lockdowns was £370 billion, with many small and medium-sized businesses going bankrupt and many in the private sector losing their jobs. Thankfully, many have managed to find jobs—which will not do them much good today, if we look at the appalling actions taking place across the country.
Although I criticise my own Government, which of course I can do, while acknowledging the challenges of the decisions they had to make, I would certainly not allow the opposition parties off the hook, because too often, as far as I am concerned, this situation was turned into a political football. If it had been left to many of them, I suspect we would still be in lockdown.
My second point is on school closures. This was never necessary. Sweden and many other countries kept children in school not only for academic purposes but because it meant that their parents could carry on working to prevent the economy closing down. The huge issue of safeguarding was paramount but many children fell through the net, as we have seen from so many recent horror stories concerning child abuse and even murder. We can never allow a situation like that to happen again, where, in fact, many of the trade unions decided who could attend school and who could not.
Finally, there is much in this report to welcome. I hope that one of the most critical lessons will be regarding scrutiny, which has been raised, and making sure that Parliament can properly scrutinise measures and ensure legal clarity where necessary. The blur between guidelines and legally enforceable procedures and requirements left many police forces not even understanding the difference.
I hope nothing like this will happen again in our lifetimes, but if it does we need to have an open and frank debate. We must always be the order of the day, and I hope that, for once, lessons will be learned so that we can deal with future emergencies in a much more grown-up and responsible way, with all countries across the United Kingdom adhering to one set of regulations, while avoiding some of the knee-jerk fear- mongering by too many in the media and in medicine who did nothing to calm a most difficult situation. I hope I never witness anything like that again.
Baroness Bryan of Partick (Lab)
My Lords, I thank the Select Committee for another excellent report. While it is a shame that it has taken so long for it to be considered, many of the issues raised remain very relevant and have constitutional implications that are very much alive and unresolved.
The report rightly identifies that, by its very nature, a global pandemic cannot be contained within borders; there had to be joint action and intergovernmental collaboration. But the report quite rightly states, in paragraph 92:
“A core principle underpinning the UK’s devolution arrangements is the respect that the UK Government and the devolved administrations must show for each other’s areas of competence.”
It notes that communication and co-ordination had been “close and effective”, while at other times that had been “less evident”.
One important lesson is that during the time when the First Ministers participated in COBRA there appeared to be successful co-ordination. What made this effective was a commitment to a shared approach and shared decision-making. Once this broke down, the result was confusion and a lack of trust. We have to ask why, at this point, a joint ministerial committee was not tasked with continuing the collaboration.
The House of Commons Scottish Affairs Committee recommended that there be regular intergovernmental meetings, but this was not accepted by government. With hindsight, this was a missed opportunity that could have built bridges between those making decisions —rather than barriers, which broke down co-operation.
Living in Scotland, I was aware of the confusion among businesses and individuals as to which rules covered the whole UK, which were Scottish regulations and which applied only to one local authority area. The First Minister of Wales, Mark Drakeford, called the situation “utterly shambolic”. It was particularly difficult for people living and working across borders.
I believe the main reason for confusion is the asymmetry of the UK. When the Prime Minister speaks on national television, is he speaking as the Prime Minister of the UK or as the equivalent of the First Minister of England? He does not generally make that distinction, so it is not surprising that others, including the London-based media, do not acknowledge it either.
During 2021 we saw tensions between the devolved Governments and the UK Government, but also between English regions and the Government. Central government imposed different regulations on different regions at different times. Because of the varying devolution deals, this resulted in different levels of support and compensation. It has been suggested that this has raised interest in and support for more regional devolution. Andy Burnham, the Mayor of Greater Manchester, has argued that all parts of the north need substantial regional devolution. He suggests that the House of Lords needs to be an elected senate of the nations and regions.
The committee’s recommendations have been enhanced by its more recent report, Respect and Co-operation: Building a Stronger Union for the 21st Century. I very much look forward to being able to discuss that report—I hope without such a long wait. We have yet to see whether the new structures for intergovernmental relations will contribute to more effective systems of collaboration.
I am sorry that the Government’s response to the report did not cover the sections on co-ordination across the UK, including relations between central and local government. The worry is that, unless there is an acknowledgement that each part of the governance of the UK should be treated with esteem and not simply be subjected to the vagaries of central government, the tensions that occurred in response to Covid will happen again and contribute to the growing lack of trust.
Can the Minister give any explanation as to why there was no response to the concerns raised in recommendations 16 to 20? Could he also say what lessons have been learned from the way in which decisions were taken during this period? Finally, will he share his thoughts on the views expressed by Andy Burnham about regional devolution and a second Chamber of the nations and regions?
Lord Hope of Craighead (CB)
My Lords, I am the other Member of this Committee who was a member of the committee whose report we are considering. I thank the noble Baroness, Lady Drake, for the careful way in which she introduced our report and highlighted the particular matters on which the Minister is being asked to reply.
For myself, I begin by referring to the Government’s response, which I have read with great care and much of which I found reassuring, but two or three points arise out of it that I might mention briefly. The first arises out the paragraph where reference is made to our recommendation 6 that, among other things:
“The pre-legislative scrutiny of what became the Civil Contingencies Act 2004 provides a clear model”
for the approach to pre-legislative scrutiny. I am not sure that the response really picks up the point we were trying to make. It refers to “changes” to the Civil Contingencies Act, but it does not recognise that the way that Act was dealt with was a model. It also raises a question, on which the Minister might feel able to reply, as to whether it is proposed that changes should be made to that Act in the light of the experience of the Covid crisis. That might be desirable, but it would be interesting to know whether changes are in prospect.
The other paragraph that is worth mentioning is on our recommendation 38. It does not quite pick up the point we sought to make. Our recommendation was that
“all future ministerial statements and Government guidance on changes to … restrictions clearly state the geographic extent of the new requirements.”
The response deals with the Covid-19 guidance but does not mention ministerial statements. It is right to say that the guidance, on the whole, was clear—it was written down and made it clear to which part of the UK it referred—but the ministerial statements from time to time did not make it clear that they referred only to England and Wales. That is a matter of concern for the reasons already mentioned by the noble Baroness, Lady Bryan of Partick. Those are the only two points in the response, apart from the third point, that might require further comment.
The third point is the one that the noble Baroness, Lady Bryan of Partick, mentioned, which is that there is no mention in the response of chapter 3 of the report. It is that chapter on which I wish to concentrate, for that reason among others. The chapter was of particular interest to me because, like her, I spent the period when we were in lockdown at home in Scotland. That meant that, especially during the early days, when we sought information about what was going on and what we should do, I found myself trying to obtain it from two sources.
First, there were daily briefings from Downing Street, usually at about 5 pm, which were initially presented by the Prime Minister and, later and more frequently, by the Secretary of State Mr Hancock, against a backdrop of union flags. As has already been mentioned, that tended to suggest that what was being said there applied to the union as a whole. But we also had briefings from St Andrew’s House in Edinburgh, which appeared on BBC Scotland, usually just after midday, and were invariably conducted by Nicola Sturgeon, the First Minister. I believe that similar briefings were being presented from Cardiff by the First Minister for Wales, Mark Drakeford, and from Northern Ireland by the appropriate Minister. In their case, if there were flags, they were appropriate to the parts of the UK to which they related.
There is a question there about whether it is right that, where statements are being made that apply to England and Wales only, they should be set against a background of the union flag without making it absolutely clear that they apply to England and Wales only. Not to do so is the product of confusion.
I take these briefings as a starting point because they were a powerful demonstration—as we say in our report, “unprecedented” in its intensity—of devolution in action. In paragraph 85 we refer to “particularly visible” devolution arrangements in Scotland, and in paragraph 115 to a “dramatic increase in awareness”. As we know, health and education are devolved in Scotland, as they are in Wales and Northern Ireland, so here was the First Minister in each case fulfilling their constitutional roles when they were telling those in those parts of the United Kingdom how they should react to the emergency.
It was clear to us in the evidence we received that the level of co-ordination was good to begin with. There were cases when we really understood that what was being said applied to both nations and that there had been proper discussions between the relevant Ministers and their advisers. The messages from both were consistent with each other: you must stay at home, we were told. That message applied across the United Kingdom, and rightly so, and was promulgated on road signs and so on.
However, as our report points out, there came a later stage, as we began to relax from the lockdown, when different guidance and rules were promulgated north and south of the border. This was because the different Administrations were taking different decisions, looking at the needs and demands to protect the health service, which were different depending on which part of the UK you lived in and as to what needed to be done. We had different rules about the number of people who could gather, where they could go and so on.
In the evidence we received there is a suggestion that, in this situation, co-ordination was not as effective as it should have been. The United Kingdom took a lead in the co-ordination of vaccine development and procurement, much to its credit and to the benefit of all throughout the UK. That was a definite benefit of co-ordination when it was needed, but there seemed to be an increasing disregard, particularly in Whitehall, for the need to co-ordinate the way that restrictions were being adjusted and promulgated. Reference has already been made to the “stay at home” message being changed to “stay alert” in England and Wales, but not in the devolved Administrations; and to research by a school in Cardiff about the extent of the failure to understand the situation in Wales in the light of that change of message.
I do not want to further elaborate the point about confusion, which the noble Baronesses covered very effectively, but I ask the Minister to think about whether there is any value in reflecting on the way the devolved Administrations reacted to the situation according to their own rules and guidance. My impression is that there was less changing of the rules in Scotland than there was in England and Wales. The “rapid changes” referred to by the noble Baroness, Lady Drake, were not reflected in the way that this was handled in Scotland, so there may be lessons that could be learned from looking across the border.
There is another matter that we do not with deal in our report, but for which I can draw on my own experience: there were, and still are, problems for those who live in Scotland about obtaining proof of one’s Covid vaccination status in a form that would be acceptable outside Scotland. This is because NHS Scotland has its own system, which can be accessed by a mobile app, distinct from the system used in England. I have no doubt that they are very similar, but the fact is that they are different systems.
The result is that there have been times when people have travelled abroad, taking the Scottish app with them, only to find that it is not acceptable in France, for example, or any other place where you need to establish your status. I personally found, when I went to Italy in the recess, that the information on my NHS Scotland app was not acceptable to the airline I was using, although it was acceptable when I went to its desk. This situation is being overcome gradually, but I suggest that someone should have a look at the way these two apps failed to interact with each other so that there will be less uncertainty for people travelling abroad—particularly from the devolved Administrations —as to whether their vaccine status would be properly recognised.
Leaving these points aside, I invite the Minister to reassure us that the Government have noted carefully what we say about the practical difficulties that were created for members of the public by the divergences that emerged—occasionally accidentally—between the UK position in England and Wales and the position in the other devolved Administrations. There certainly were occasions when the need for co-operation was overlooked in Westminster when rules were being made or relaxed. I accept, and fully recognise and understand, that there were policy differences that made this difficult, especially in the later stages when it was quite clear that the Prime Minister was conspicuously keener than the other Administrations to lift restrictions to get the economy going. Nevertheless, the fact that they existed means that there were occasions when the rationale behind the differences was not apparent to members of the public.
This report and the forthcoming inquiries are all about lessons for the future. There is much else in the report that needs to be considered carefully, but there is a message here, as the noble Baroness, Lady Bryan, made clear, about devolution and the necessity of close co-operation at a ministerial level, as well as between officials. That was plain to see in the early stages, but, as I mentioned, it seemed to be increasingly absent as time went on. “Respect and co-operation” is the key message; it is the way in which we are best guided for living with devolution and maintaining the strength of the union, which is so important in the current climate. I hope that the experience of the pandemic will help to reinforce that message about co-operation and the need for it right across the board, to the benefit of everyone in all parts of the United Kingdom.
Baroness Fox of Buckley (Non-Afl)
My Lords, I congratulate the Constitution Committee on this excellent report. I certainly recommend that it is read widely in the public sphere because it is important to try to assimilate what happened and to learn lessons. However, before I recommend that it is read, I might have to issue a warning because, despite my long-standing hostility to “Generation Snowflake”-like trigger warnings, I must say that reading the report brought me out in a rash of post-traumatic stress disorder. All those bad memories that I tried to supress were brought to the fore with my horror at the ease with which civil liberties were suspended and intrusive legislation transformed the minutiae of everyday life. This was something I would rather forget, but we cannot forget it. The unprecedented attack on the freedom of ordinary activities for which, overnight, we needed permission to do anything—from walking outside to visiting loved ones in hospital or having a pint with mates—is something that we do not actually want to remember, but should never, ever forget, because we should never, ever repeat it.
The fact that public life was closed down has totally discombobulated society. The report reminded me of all those last-minute changes. I remember when the rule of six regulations were published only 30 minutes before the law came into force, making it a criminal offence to have more than six people gathering outside, because I was organising to have six people gathering outside; I was the seventh and did not know what to do. There was a sense of confusion and panic.
The report notes:
“1 in 5 … did not know what Tier their area was in”.
I never understood the tier system; I got completely confused. It says that
“only 12% knew the correct amount of time a person is required to self-isolate”
if they tested positive, and that
“53% … did not know whether they were allowed to visit other parts of the UK”.
We all felt disorientated at all these things. Family Zoom calls—maybe it was just my family—were full of angst and arguments about what we were allowed and not allowed to do. In other words, the stuffing was knocked out of spontaneous interactions and everybody became totally preoccupied with trying to decipher the runes of what we were and were not allowed to do by the law.
This might not be a constitutional matter, but it matters for the constitution. Individual agency of grown-up decision-makers, and taking responsibility, became the collateral damage of what this report describes. The confusion and conflation between guidance and law was particularly damaging, as described in the report, which says that
“‘guidance’, ‘guidelines’, ‘rules’ and ‘restrictions’”
were used
“interchangeably, in reference to … legal requirements and public health advice”.
Worse, as Kirsty Brimelow QC rightly notes, we had the added confusion of the police being equally unclear and often acting on the messaging of announcements by the Home Secretary or the Prime Minister at press conferences, rather than on the law. As for the consequences of some of this, I think this has undermined confidence in the police as an impartial, trusted body implementing the law. It has also undermined trust in the law itself if it can become such a shape-shifter, with hardly anybody knowing what it was.
I also fear that the use of the Public Health (Control of Disease) Act 1984 to push through so many of the most draconian measures has damaged the reputation of public health advice more generally. One thing the report does not note is the use of the behind-the-scenes, behind-the-backs-of-the-public devices that we use to soften up public opinion in relation to law changes. It is worth reading Laura Dodsworth’s book A State of Fear, which includes the minutes of SAGE meetings and the discussion on the use of behavioural psychology and nudging, so that the public would be faced with the worst-case scenarios and scared enough to comply with behaviour changes backed by legal force. Rushing laws through, justified by fear, obviously leads to a lack of scrutiny. It has been bad for the constitution that we have allowed fear to push through law.
Moving on, I agree with the report that the Civil Contingencies Act 2004, with its triple lock, would have been a better piece of legislation to use than the Coronavirus Act 2020, which completed its passage through both Houses of Parliament in just three sitting days. Of course, we all know and understand that these legal changes were made in the context of the very real and justified sense that this was an unprecedented health emergency at the start of 2020, but it is the job of the Government to keep society calm. Hyperactive lawmaking, hyped up by using fear, is the wrong approach.
It was not just the Government. While Parliament was complaining about not having scrutiny over the Government, many people on all sides in Parliament went along with this hyped-up, over-the-top, disproportionate fear-mongering. This in turn created a mood of permanent emergency. Even post the vaccine, the misuse of Section 45R of the Public Health (Control of Disease) Act, using the urgency clause for which there is no objective definition, created an atmosphere in which there was no constraint over what could be done. It makes me very nervous now, when I hear people declaring endless emergencies: the climate emergency, the energy emergency, the cost of living emergency. You think, “Oh my goodness; they’re going to bring in emergency legislation for all that, and we’d be locked down for that too”. Some are advocating that we do just that, so I am not exaggerating.
There is a good quote in the report from Professor Hickman:
“Once the true emergency abated … proper legislation should have been put in place. Parliament could and should have insisted on protections such as the ability to amend regulations”.
But Parliament did not, and that is what should have happened. I note that some of us, even if it was a minority, advocated such an approach at the time—not afterwards, as in the report—and were vilified for doing so. Lord Sumption spoke out very early on but was treated as a pariah. When I arrived in this place, I raised certain questions about the legislation; I did so rather anxiously as I was new and arrived here during lockdown. I was treated like a wide-eyed loony libertarian for suggesting a sunset clause in certain legislation and for querying things such as Covid passports. In the House—would you believe it?—a Minister added me and other Members of the House of Lords to a list of Covid deniers for raising this. I felt nervous raising questions or being critical—being not cynical but sceptical.
There is no mention in the report of free speech. You cannot have a constitution report without noting that, although no laws were brought in to attack free speech during this time, free speech suffered by behind-the-scenes methods. I look forward to at least having a discussion about the forthcoming Bill of Rights, which will apparently put free speech as a core societal value; we need to protect it.
This is not over yet by any stretch. I worry that the Government have got a taste for the extensive use of secondary legislation and a lack of checks on executive powers. The new Schools Bill, which I am following at the moment, has rightly been criticised as a power grab to, to quote the noble Lord, Lord Baker, increase
“the powers of the Secretary of State and the Department for Education in a way unprecedented since 1870.”—[Official Report, 23/5/22; col. 689.]
Talking of schools, it is only now that we are admitting, as the noble Baroness, Lady Foster, mentioned, the devastating impact of school closures on young people. We should never forget the human cost of these constitutional changes.
It is interesting to note that, at the moment, there is a panic about those pupils who have not returned to school. That might have something to do with the fact that they were told that school was not so important after all; we locked the gates and education became a secondary matter. Guess what the Government’s response to the increased non-attendance of children at schools is? It is to bring in illiberal legislation that threatens to fine parents. I worry that the legislative track we were on is not over yet.
I make my final point as baroness of Buckley, which is in north Wales; I could not but mention the impact of the legal divergence between the four parts of the United Kingdom. The whole constitutional decision to have legal divergence was completely unnecessary and created a fragmented mood in the country. The mood was almost competitive between the different jurisdictions. My very own north Walian leader, Mark Drakeford, wanted to prove that he was harder on lockdown than anyone else, and Nicola Sturgeon was competing with the UK Government. There were massive arguments in our family about what was an essential good or not, because we lived one mile apart on either side of the border between England and north Wales. If you went on a train, you had to dodge between having your mask on or off as you went down the track. It was ridiculous.
Legal divergence was also bad for scientific advice. If the Welsh jurisdiction said that its science showed one thing, and one mile away the science showed something else, why would any member of the public trust anything that was proved to be scientific evidence? The whole thing became, to be frank, farcical.
Tensions were exacerbated when the country faced a big challenge. Legal divergence has been hugely bad for the union in general and, as I said, was unnecessary. It would have been far better to have had a UK-wide response that we all united around.
Having said all that, I hope there is never a UK-wide response like this again, because I say: never again. This report gives us ample evidence as to why we should think that.
Lord Collins of Highbury (Lab)
My Lords, I thank the committee for its report and my noble friend for her excellent introduction. What I recall most about the pandemic—I appreciate that, because it is such a void in our lives, it is very difficult to remember what we did—was the strength of our communities. Our communities and the people within in them were so determined to support and care for each other. That is something I had not seen before in my lifetime. Perhaps Members who were alive during the war may have seen it. It was that resilience that I was most impressed by; people were determined to care for each other and those most vulnerable in our communities, and we should not forget that.
My noble friend’s introduction highlighted four key themes. The first is on why the Government chose the legislation they did, particularly the 1984 Act and the use of the Coronavirus Act 2020, rather than others that were available to them. I think we all appreciate that with fast-tracking of legislation and the extensive use of secondary legislation, essential checks on executive power are lost and the quality of law suffers. There is no doubt about that. Emergency legislation is never an acceptable alternative to effective government planning for periods of crisis.
The second theme, which all noble Lords have referred to, is to do with the fact that, although the four Administrations in the United Kingdom clearly demonstrated that they were capable of working together, the pandemic created political tensions. One example that the committee highlighted—one I was very familiar with—is how rules on face coverings on public transport in one part of the UK created difficulties when you crossed the Severn Bridge, and things like that. Clearly, that led to confusion.
The third theme is lack of clarity. There were a number of occasions when government publications and statements did not distinguish between public health advice and legal requirements. Rules were identified by the Government as having legal effect without any law having been made—for example, guidance about exercising once per day. My noble friend Lady Bryan highlighted that this confusion created strains on the relationships between the UK Government and certain local government leaders within England during the pandemic. We should not forget that there was obvious public confusion. One study, conducted when the tier regulations were in force, found that one in five did not know what tier their area was in, leading to extensive confusion.
The final theme of my noble friend’s introduction was that no Government should be frightened of learning the lessons, and I will return to that in a moment.
As the noble and learned Lord, Lord Hope, highlighted, the committee recommended that Parliament be consulted on any future draft legislation on a contingency basis to address a potential emergency. That is what we are all looking for, because it provides for the most sufficient parliamentary scrutiny.
The pre-legislative scrutiny of what became the Civil Contingencies Act provided a clear model for that. The Government’s response to the committee’s report merely stated that the Government will “endeavour to provide opportunities”. That is not a sufficiently clear commitment. I hope the Minister can reassure us that it will be more than an endeavour; it is a principle that we all want to ensure is taken on board. I hope he can be a lot clearer in his response today.
On learning the lessons, I read the Covid-19 inquiry final terms of reference, which have just been published. The Constitution Committee recommended that a review of the use of emergency powers by the Government, and the scrutiny of those powers by Parliament, should take place in advance of that inquiry, and for very good, obvious reasons. The results of that could then inform the public inquiry and any planning for future emergencies. I hope that the noble Lord can reassure us on that point and that the Government will consider committing to undertake a full-scale review of emergency powers, as recommended, in time to inform the public inquiry.
Of course, no one knows when the next pandemic or national emergency will occur. Despite what I heard from the previous speaker, I have no doubt that there will be one, and we need to be better prepared. That is one of the most important lessons that we can learn. I hope that the Government will commit to an expedited review of the CCA, because that would also allow for fuller parliamentary scrutiny.
As we have heard, the Government introduced a large volume of new legislation in response to the pandemic. Because the Government chose not to use the Civil Contingencies Act, some argue—I am inclined to that view as well—that they evaded the Act’s important constitutional safeguards and that, as a result, parliamentary oversight of significant policy decisions was limited. A Law Society Gazette article in 2020 argued that the CCA represented a legal landmark:
“It updated and consolidated laws which enabled public authorities to prepare for, and respond effectively to, emergencies”.
That is the key theme that we should focus on. How do we ensure that public bodies and people responsible for safeguarding our communities are better prepared in advance for something that we know will come to hit us again?
The first of two points in my conclusion is on the committee’s recommendation on sunset clauses. I have read the Government’s response on that. There is a strong case for ensuring that when we bring in these special powers, there is no keeping them on for longer than is necessary. I understand that the Government have been rescinding these powers as we go on, but some still remain. We need a clear commitment that in future the Government will adopt the principle of presumption in favour of sunsetting regulations. I think that will reassure us all about the taking of emergency powers.
I will conclude on the question of confusion. One of the committee’s recommendations was that the Government adopt alternative drafting practices to make the regulations more accessible to members of the public and lawyers alike. It asked that the Government should set out in the Explanatory Memorandum, first, the regulations being amended; secondly, the substance of the amendments being made; and, thirdly, the reasons for the amendments, following a practical approach that would ensure that people understood what they were about.
The Government’s response to the report did not appear to acknowledge the case for improvements in drafting the Explanatory Memorandum, so what does the Minister think will be necessary in future national emergencies to ensure less confusion among the public—and perhaps even a less confused Prime Minister? Surely improvements to the drafting of future Explanatory Memorandums will be a critical part of that.
Ultimately, we hope that the national inquiry will ensure that we all learn the lessons, but I do not want us to forget that the most important lesson for all of us is the importance of community and supporting each other.
The Minister of State, Cabinet Office (Lord True) (Con)
My Lords, I thought that the way the noble Lord, Lord Collins, opened and closed his speech was totally appropriate. Some of the finest moments in these terrible times—which, to agree with my noble friend Lady Foster, none of us wishes to see again—involved the sense of solidarity, togetherness and defiance which is a great part of human character. All those things were there, along with the great dedication of the public servants and the responders who served in every part of these islands, whatever the nature of their Government of the time. That part of this experience was a great good, and one that we should carry with us; perhaps we forget it rather too often. I am grateful to the noble Lord for reminding us of that.
I begin by thanking the noble Baroness, Lady Drake, and the Lords Constitution Committee for the comprehensive reports—not just this one, but the three reports—published during its inquiry into the constitutional implications of Covid-19. It is absolutely right that regulations made by Governments—every Government—are thoroughly scrutinised. Such scrutiny improves the legitimacy of, and respect for, legislation in wider society. It is a fundamental part of the principles of our historic democratic polity. I acknowledge and own the duty on behalf of the Government.
Although the most recent report from your Lordships’ committee was published in June last year and responded to in writing by the Government in October—not in every respect satisfactorily, I hear; if I fail to respond satisfactorily I will take away and reflect on what I have heard in the debate—I very much welcome the report and the fact that the Committee has taken the opportunity to debate this important issue today. I am grateful to all noble Lords for their contributions. I candidly acknowledge the importance of the points made by so many in the debate.
The coronavirus pandemic had an unprecedented global impact that severely affected public health, the economy and society in sometimes devastating and disorienting ways, as the noble Baroness, Lady Fox, described. The Government, faced with an unprecedented and unknown enemy, took early and decisive action by introducing a range of measures to combat the virus, increase testing, support detection, reduce transmission and engage in research to improve our understanding of the virus.
Legislation was needed to make this work possible, and that legislation had to be addressed swiftly. When the virus started, I was not even a member of the Government; I was in retirement, living happily in Italy, rather bemusedly reading reports in the Italian newspapers of towns in the north of Italy being eccentrically cut off by the Italian Government because this virus had arrived. Some time later, I found myself being presented with comprehensive legislation to deal with a virus that, we then knew, represented a profound threat of loss of life.
Having moved from being a private citizen to being a Minister who was partly responsible, I was struck by the enormity of some of the measures put forward. My reaction was that they would be severely contested and challenged in Parliament, because of their enormity and gravity, only to find that there was swift and general agreement across the parties to take these pieces of legislation through. It is important to remember that context: legislation had to be developed very rapidly.
I will provide a brief summary of these pieces of legislation. Although they are well known to your Lordships present, they are worth placing on the record in Hansard. The Public Health (Control of Disease) Act 1984 was designed to give the Government appropriate powers in the event of a serious public health situation. These powers, set out in Part 2A of the Act, were added following the global SARS outbreak in 2008. As many noble Lords have said, this was the main legislation used to deliver the Government’s response to Covid-19. It enabled the public health response to the pandemic and the rapid implementation of restrictions, including local and national lockdowns. I will come on to the variations later. This public health Act was the legal basis for many of the measures essential to limiting social contact, including the “stay at home” order in March 2020, which has been referred to, subsequent national and local lockdowns, measures requiring face coverings and isolation, and those on international travel.
It was felt that the fast-moving, urgent and often unpredictable nature of the pandemic—that was how it was seen—necessitated the use of the emergency procedure under Section 45R of the 1984 Act in a number of instances. Regulations made using the emergency powers in Section 45R were not always debated before they came into force, but they required debate and approval within 28 days or they would lapse. Parliament specifically approved the Secretary of State’s ability to use Section 45R to cover an emergency such as the pandemic. The decision to use it was deemed necessary based on the urgency of the situation with the rapid progress of the virus at the time and the transmission risk that the statutory instrument was designed to tackle.
The “made negative” procedure, which allows a measure to become law without debate, under Section 45Q of the 1984 Act, was also used in a number of instances. For example, travel regulations made under Section 45Q were made under the negative procedure, so were not debated before they came into force. That has been the subject of complaint and comment in your Lordships’ debate and is noted in the report.
For nationally significant Covid-19 legislation made under the public health Act, including that implementing national lockdowns, the Government have sought to provide a vote in Parliament ahead of any regulations coming into force, but this was always subject to the urgency of the situation, to parliamentary timetabling and to the sitting of Parliament. Parliamentary approval is needed to approve any regulations made using the emergency procedure within 28 sitting days, otherwise they would cease to have effect. Inevitably, the fast-moving and urgent nature of the pandemic led Ministers, at the time, to use the “made affirmative” procedure in a number of instances and the “made negative” procedure for travel-related regulations.
The other instrument that is the subject of this distinguished report, the Coronavirus Act 2020, came into force on 25 March 2020—a month after I returned to join the Government—and has played a critical role in the Government’s Covid-19 response. That Act was introduced during a period of extreme uncertainty, when the future course and potential impacts of the pandemic were unknown. It was designed to be a facilitative and supportive piece of legislation, creating a framework to supplement the public health measures enacted via the public health Act.
The Coronavirus Act did not introduce lockdowns or restrictions. Some have commented that, in their belief, it might have, but it did not. It enabled action in five key areas: increasing the available health and social care workforce; easing and reacting to the burden on front-line staff; supporting people, including through setting up the Coronavirus Job Retention Scheme, which supported 11.7 million jobs, and the Self-employment Income Support Scheme, which protected the livelihoods of nearly 3 million individuals; containing and slowing the virus; and managing the deceased with respect and dignity.
Sunsetting is an interesting and important concept in legislation. The temporary provisions within the Act had a two-year lifespan from when the Act was passed by Parliament. These sunset provisions ensured that the Government had the necessary powers to respond to the pandemic for a proportionate amount of time. The Government removed powers throughout the pandemic as and when they were no longer needed. Thanks to the progress made in the fight against the virus, the Government were able to expire 20 non-devolved temporary provisions in the Act early and suspended a total of four provisions which have since expired. The majority of the remaining temporary non-devolved provisions expired at the end of 24 March 2022. The Government have extended just five temporary provisions within the Act for up to six months beyond 24 March.
I was asked about co-ordination across the United Kingdom. This was a theme of the debate; many noble Lords—the noble Baronesses, Lady Drake and Lady Bryan, the noble and learned Lord, Lord Hope of Craighead, and others—raised this question. The noble and learned Lord referred to what he thought was a failure to respond to chapter 3 of your Lordships’ report. The noble Baroness, Lady Fox, came at this from a slightly different direction from other noble Lords.
The UK Government determined the lockdown rules that applied in England, while the Scottish Government, the Welsh Government and the Northern Ireland Executive were responsible for introducing and lifting restrictions in their respective parts of the United Kingdom. This is the result of devolution arrangements that have been in place for more than 20 years. Yes, they became particularly visible during the Covid-19 pandemic, but the way to proceed in each of the jurisdictions was a matter for the Administration there.
I slightly took issue with the noble and learned Lord, Lord Hope. I understand the point he was making when he was complaining about a union flag being displayed behind the Prime Minister. The union flag is the flag of our United Kingdom. There are many people in Scotland and every part of this kingdom who have been proud to go out to serve and, indeed, shed their blood under the union flag. I do not believe that one needs to apologise for the display of that flag by the Prime Minister of the United Kingdom.
That said, the Government have been determined to work collaboratively with the devolved Governments. Working together on health and social care is ingrained in the values of our National Health Service and our social care sector, and your Lordships’ committee is right to ask and press about this. The Secretary of State for Health and Social Care continues to have regular engagement with the devolved Governments’ Health Ministers to deliver responses that benefit people across the whole of the United Kingdom.
Between March 2020 and May 2022, 65 United Kingdom Health Minister forums were held, and there was further engagement at junior ministerial level. This engagement included sharing information, resolving issues and progressing areas of mutual concern in responding to and recovering from the pandemic. Key issues of discussion in these meetings have included: vaccine development; the national testing programme, including testing resilience; social care; review of the Coronavirus Act; Covid certification; and winter planning and recovery. On Covid certification and the app, again, it is a matter for the Scottish Government if they wish to design an app. Of course one would wish that there were joined-up relations; this is what the United Kingdom wishes to see.
Ministerial engagement and intergovernmental communication are ongoing. That has been underpinned by ongoing engagement between civil servants across numerous policy areas. It has also included conversations between the Chief Medical Officers, as well as joint devolved government representation on key programme boards within the UK Health Security Agency to co-ordinate various programmes.
People ask why, therefore, there have been such different approaches to Covid across the United Kingdom. Ministers and officials from the United Kingdom Government have worked closely with the devolved Governments to ensure a co-ordinated approach to the response to Covid-19 across the United Kingdom. Although many, and perhaps even I may regret the differences in public health approaches in reflecting and responding to different local circumstances, this diversity is a strength of our devolved systems. This has always been asserted by many in your Lordships’ House and many in our nation, and has been delivered by successive Governments.
In July 2020, the United Kingdom Government reaffirmed their commitment to frequent engagement with the devolved Governments on areas of shared interest. To take up a point directly asked by the noble Baroness, Lady Drake, following the review of intergovernmental relations the Secretary of State for the Department of Health and Social Care will continue to engage regularly with counterparts through the interministerial group on health and social care. The group will continue to consider and discuss matters relating to health and adult social care policy and strategic policy developments between the portfolio Ministers leading on these issues within the United Kingdom Governments.
I was also asked about the Covid inquiry. The Government are very grateful to the noble and learned Baroness, Lady Hallett, for leading such a full and extensive consultation on her terms of reference and producing a detailed set of proposed refinements to the draft terms of reference. She has published a set of proposals. Under the Inquiries Act, the Prime Minister must also consult the devolved Administrations before finalising the inquiry’s terms of reference. That will be done and, once these steps have been taken, he will publish the final terms of reference and the formal work can begin. The Prime Minister is considering fully the noble and learned Baroness’s proposals, is consulting the devolved Administrations and will publish the terms of reference.
I was asked when the inquiry will start and finish. It would be presumptuous of a mere Minister of the Crown to dictate to the chair of such an important inquiry. It will begin its formal work once the terms of reference are finalised. From that point, the process, procedure and timing of the inquiry stages will be for the independent chair to determine. The noble and learned Baroness, Lady Hallett, has set out that her investigations will begin once these terms of reference are finalised. She said that she intends to gather evidence throughout this year, with public hearings beginning in 2023. She has made it clear that she will do everything in her power to deliver recommendations as soon as possible.
I acknowledge that lessons must and will be learned for us all. The Covid inquiry has two key aims: to understand the facts and to learn lessons from the pandemic. Although the timing is up to the chair of the inquiry, those are the fundamental things we must all address. It is expected that government departments also conduct post-legislative scrutiny on government legislation within three to five years of the Act obtaining Royal Assent. This will be another opportunity for further lessons to be learned.
Nothing is perfect, and certainly Governments are not perfect. In this extraordinary situation throughout the pandemic, to aid parliamentary scrutiny, the Government maintained a constant dialogue with parliamentarians, making regular Statements in both Houses. Since March 2020, in both Houses, the Department of Health and Social Care has led on 56 Oral Statements, 14 general debates, five Lords debates, 113 SIs, 53 Oral Questions, 28 Lords Topical Questions and so on. This engagement with the House was supplemented by regular No. 10 press briefings—about which some have complained—including direct questions from members of the public.
I agree that here too there are lessons to be learned, and your Lordships’ report will be a document of lasting relevance. The Government will always endeavour to provide opportunities for pre-legislative scrutiny. We firmly believe that decisions are made stronger through scrutiny and debate. Any changes to the public health Act or other emergency legislation, such as the Civil Contingencies Act, will be subject to parliamentary scrutiny.
In conclusion, I thank your Lordships again for your valuable contributions in this debate. As we move forward from the response to Covid-19 it is crucial that we learn lessons wherever possible and ensure that our democratic values and our love of liberty are upheld. I reiterate my thanks to the Constitution Committee, which produced these reports, and those who have continued to uphold the values of this House in scrutinising the work of the Government. Any Government is stronger for facing your Lordships’ House.
The Government remain fully committed to ensuring that Parliament has ample opportunities to scrutinise the actions taken during the pandemic and our continuing approach to emergency legislation. Emergency powers and temporary legislation must always be used with the utmost discretion. They should be effective but proportionate to the circumstances that present themselves. That is the challenge that your Lordships’ Constitution Committee has added to; that is the affirmation I make from the Dispatch Box.
The Government will continue work to ensure that the correct legislative vehicles are in place to deal with any emergency scenario that presents itself. This includes retaining the Part 2 powers in the Civil Contingencies Act as an option of last resort while keeping other options with which to react to specific issues. Any changes to legislation, powers or the processes by which we use them will always be subject to parliamentary scrutiny, and the Government, whatever their past failings and whatever the difficulties of the situation we went through, achieved many things for this country in responding to this unprecedented pandemic and led us through difficult circumstances into what we hope are better times. We will always endeavour to provide opportunities for pre and post-legislative scrutiny.
Baroness Drake (Lab)
My Lords, I thank everyone who has contributed to a really important debate, in terms not only of efficiently dealing with a national crisis of huge relevance to its citizens—I am sure this will not be the only one—but of integrity around a Government and a Parliament in how they go about protecting citizens in that emergency.
I am very grateful to the noble and learned Lord, Lord Hope, for his contribution, and particularly for stressing the importance of pre-legislative scrutiny in any amendment of the legislation. The Minister referred to any changes to legislation being subject to parliamentary scrutiny, but the Constitution Committee puts a powerful case as to why that should also include pre-legislative scrutiny. Again, I thank the noble and learned Lord for the importance he placed on the need to ensure that we work with the devolved Administrations across the UK so that we can deal with UK-wide emergencies as efficiently as possible. I thank everyone who contributed.
I will reflect on some of the points the Minister made. He took us in some detail through the 1984 public health Act and how it operated. Although I do not disagree with a lot of what the Minister said, there are two or three key messages from the Constitution Committee. The Act could have been added to by incorporating a lockdown power in the Coronavirus Act. It was not that the emergency procedures needed to be used—quite clearly there were several cases where they did need to be. The question was whether it was an emergency in every instance that they were used.
I absolutely acknowledge that a Government faced with the challenges that this Government were faced with need to move with speed on regulations, but that raises the bar for the expectations of the level of confidence that people need in the scrutiny of those actions taken by government.
On going forward with pan-UK working with the Administrations, I welcomed the Minister’s comments in respect of the initiatives being taken by the Secretary of State for Health. The Constitution Committee also produced quite a large report on the whole issue of governance within the UK, Respect and Co-operation. In a sense, the response in an emergency is part of a wider governance structure that applies, so I hope some of our recommendations in that report will also apply.
In conclusion, there is no question but that the Government faced an enormous challenge. They had to respond quickly and to protect their citizens. In an emergency, Parliament transfers to the Executive so that they can move at the speed necessary to do that, but the efficiency with which the Government deploy those powers is therefore so critical. The extent to which they are open to checks and scrutiny on the deployment of those powers becomes even more important, and that was the thrust of the Constitution Committee’s report. What are the lessons learned, and what is the experience that informed those lessons, so that the preparedness for the next emergency—I hope we never have one—and the confidence in the level of scrutiny and checks are there? However, I thank the Minister very much for his response.
The Deputy Chairman of Committees (Lord Geddes) (Con)
My Lords, before the next Motion for debate is called, I advise the Committee that the noble Baroness, Lady Brinton, is unable to take part due to technical communication problems.
Equality Act 2010: The Impact on Disabled People: Follow-Up Report (Liaison Committee Report)
(2 years, 6 months ago)
Grand CommitteeRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Baroness Deech
That the Grand Committee takes note of the Report from the Liaison Committee The Equality Act 2010: the impact on disabled people: Follow-up report (2nd Report, Session 2021–22, HL Paper 60).
Baroness Deech (CB)
My Lords, I have had the privilege of being involved with disabled people’s rights since 2015. I say privilege in a personal sense, because albeit that there are 14.6 million self-reported disabled people in the UK—22% of the population—what we discovered on our committee was that, unless we are very lucky, as we get older we are all likely to suffer from mobility, sight and hearing problems without necessarily identifying as disabled, and yet in need of the adjustments made for disabled people. In the seven years of my involvement with disability, my arthritis has progressed and I completely empathise with step-free access, for example.
I know that the Minister is a caring and compassionate person, but I have to tell her that my involvement with disability rights has also been the most disillusioning and disappointing issue I have faced in my years in this House. What I have to say now will explain that. In sum, there has been hardly any progress: no central champion in the Cabinet; no will to be proactive rather than reactive; and always jam tomorrow, not jam today—witness the National Disability Strategy. Shockingly, I have to report that in January a High Court judgment, in the case of Binder v the Secretary of State for Work and Pensions, found that the strategy was unlawful because a proper consultation involving specific proposals to be put to disabled people was not carried out.
There is no strategy and the Government have not, as far as I am aware, started the process to reconsult and create a fresh strategy that takes account of what disabled people need and want. Rather than moving forward with disability rights, the Government have gone backwards. Moreover, it is an affront to parliamentary sovereignty that major parts of the Equality Act 2010, from 12 years ago, are still not in force.
The disability committee was fortunate and grateful that our report of 2016 was chosen for follow-up by the Liaison Committee, and we are appreciative of the boost that gave to our recommendations. The Government’s response, however, is almost entirely unsympathetic. I enumerate it here theme by theme. In the follow-up report, we expressed the hope that the Inter-Ministerial Group on Disability and Society and the ministerial disability champions would drive our recommendations forward. I have to confess that I do not understand the difference between the two groups but, in any case, there is little published information about the interministerial group. It is reported that it met three times and then lapsed. I see that the Government are advertising for regional stakeholder chairs of disability groups; that seems to me to be spreading tomorrow’s jam even more thinly so that it leaves no taste at all. Can the Minister tell us the difference between the two groups, whether they are functioning and what has been reported from them?
We made recommendations about government leadership in this field. In their response to our 2016 initial report, the Government said that they were committed to creating a public service ombudsman combining local government and parliamentary and health remits. It was announced in the Queen’s Speech in 2015. We saw that as an opportunity to support the Equality and Human Rights Commission and disabled people’s organisations, and secure compliance with the Equality Act 2010, but the Government now say that they are not bringing forward this legislation. Yet they have announced a new ombudsman for private landlords. Why should that have priority, and will it do anything for disabled tenants?
Coinciding with the Liaison Committee review, last summer the Government announced a National Disability Strategy. We immediately expressed the view that this new venture should not displace or put aside the need to implement recommendations already made, in favour of setting up new targets. The strategy is now null and void because of the High Court judgment I referred to. Where is the programme for starting again on consultation and creation, this time taking account of the recommendations in our report rather than setting them aside in favour of vague future promises?
Maybe the reason why disabled people are not heeded is that there is no Cabinet voice for them. We recommended that the Minister for Women and Equalities should be a stand-alone, full-time role with the right to attend Cabinet. This was dismissed as a matter for the Prime Minister’s choice. Who holds the role of Minister for Women and Equalities currently? It is Liz Truss, who is, as we know, Secretary of State for Foreign Affairs. Not even a superwoman, which no doubt Ms Truss is, could possibly carry out the exceptionally onerous job of Foreign Secretary while also concentrating on women and equalities. With all due respect to her competence, this is farcical.
We also recommended that the Minister for Disabled People be made a member of the Cabinet’s social justice committee. This mirrored a recommendation by the Commons Women and Equalities Committee. The social justice committee was set up about 10 years ago on the understanding that a cross-department attitude was needed. While Wales and Scotland have similar committees, the English one was disbanded in 2016 without its duties being redistributed to other committees. Why was this done? Who in Cabinet is leading on disability rights issues? What committees are taking these on?
As an aid to achievement of disability rights, we recommended that the public sector equality duty in Section 149 of the Equality Act be amended so that the public authority would be under a duty to take proportionate steps towards the achievement of disability issues. The way the PSED works now tends to be passive rather than proactive. The Government rejected our recommendation on the ground that it would involve opening up the Equality Act as a whole to amendment. They feared that such an alteration would lead to court litigation concerning actions that claimants alleged should have been taken and whether they were proportionate. The Government have left this untouched. Our 2016 criticisms remain. The wording of the PSED means that a public authority can make no progress at all towards the aims of the general duty and yet be judged compliant with it by the courts.
On a similar theme, we recommended that regulations should change so that public authorities would be required to develop and implement a plan of action setting out how they will meet the requirements of the PSED in all their functions. The Government pushed this into the long grass, commenting only that it would be considered in any future work to review the specific duties placed by the PSED on public authorities.
Perhaps the most egregious of all the failings to implement the Equality Act relates to Section 36, which would mandate reasonable adjustments to the common parts of buildings, paid for by the tenant, where needed for disability access. In 2016, we said we could not understand why another review was needed. Six years later, still nothing has happened, and again we recommended that Section 36 be brought into force within six months. The Government’s response was to refer to difficulties the Scottish Government had faced in implementing equivalent provisions, and to say that a consultation was imminent. When is this consultation? What is the timetable? Why is it necessary? How can the Minister defend non-implementation of a section of an Act 12 years after its passage? Is this not an affront to the legislative work of Parliament?
Disabled people’s access to sports grounds is a well-known problem. The noble Lord, Lord Faulkner, has tried to improve matters with his Accessible Sports Grounds Bill, which would have given local authorities a discretionary power to refuse a safety certificate to large sports stadia that were not accessible. It did not get through the Commons. The Government’s response was that existing legislation was sufficient to ensure access to sports stadia for disabled fans. It is a delicate issue because legal action can be initiated only by an individual, and no single fan wants to upset his club and come into conflict with it. While there has been some progress and recognition of the issue, a recent survey by Level Playing Field found that many disabled fans suffered abuse and that there was a poor level of staff disability awareness, inaccessible public transport and general access barriers at stadia. In 2015 the Government set out a sports strategy promising action and said that they would work with the football and safety authorities to improve the situation. But there are no metrics of success. What progress can the Minister tell us of in the last seven years?
I expect the Government will tell us that the number of disabled people in work has increased, but the gap between disabled and non-disabled working people remains the same. The figures look better only because more people are identifying as disabled and more people are in work. The Government’s aim to help disabled people into employment will be thwarted if public transport is not accessible, but Section 163 of the Equality Act, which would make taxi licences conditional on compliance with accessibility regulations, remains uncommenced after 12 years.
In addition, we recommended that the accessibility requirements apply to private hire vehicles. The Government did not accept our recommendations. They have launched a consultation on taxi and private hire vehicle best practice and have said that, at some time in the future, they will legislate to mandate disability awareness training for all drivers. When will the Government take the steps necessary to ensure that every disabled person can get into a hired vehicle and get to work? The new Taxis and Private Hire Vehicles (Safeguarding and Road Safety) Act, passed in May, is not relevant to disabled people, as it is, as it says, about reporting safeguarding and other dangerous issues relating to drivers.
Not just disabled people, but all citizens, need to be able to access justice to enforce their rights. Even where litigation can be afforded, it may present particular challenges to disabled individuals, who may find barriers to understanding and navigating their way through the legal system. We recommended that the costs should be mitigated by implementing qualified one-way cost-shifting in claims concerning discrimination under the Equality Act. This means that a successful defendant cannot recover their costs from the losing claimant, except in precise circumstances. It makes bringing reasonable legal action less of a costly risk.
Costs have an adverse effect on the rights of disabled people to enforce their legal rights. The Government said last year that they were considering the issue. Can the Minister tell us what progress has been made in amending the Civil Procedure Rules to achieve this? Can she explain future plans and timetables, given that a commitment has been made to do this? Our recommendation was that it be achieved within six months.
In general, disabled people need legal aid to enforce their rights, especially as it is for the individual to take action, and it is a brave and well-resourced individual who embarks on this. We salute the handful who have taken their issues to court. Legal aid may be available for legal advice concerning unlawful discrimination. Income thresholds qualifying for the help with fees remission scheme have changed in line with inflation, but not capital thresholds.
The Equality and Human Rights Commission launched an inquiry in May 2021 to examine whether legal aid enables people who raise a discrimination complaint to get justice. We do not know the result but, whenever it comes, it is intended to inform the Government’s review of the Legal Aid, Sentencing and Punishment of Offenders Act 2012. What progress has been made, if any, are the Government changing the Lord Chancellor’s guidance on legal aid in discrimination cases?
All in all, this is a sorry tale: no progress in implementing the 2010 Act; barriers to getting justice; poor treatment of sports fans; difficulty in getting transport to work and elsewhere; and a general sense that the Government prioritise the supposed interests of business over the needs of disabled people for adjustments and support. This has the effect of putting a large segment of the population out of the job market and out of contact with their fellow citizens. Why do the Government not have more empathy with them? Do Ministers not look at their ageing relatives—and indeed colleagues in this House—and realise that, in the fullness of time, they too will be in wheelchairs, on Zimmer frames, hard of hearing and worse still? They should act now to uphold parliamentary sovereignty as expressed in the Equality Act and for the sake of justice for a large segment of the population. I beg to move.
The Deputy Chairman of Committees (Lord Young of Cookham) (Con)
My Lords, the noble Baroness, Lady Thomas of Winchester, is taking part remotely. I invite her to speak.
Baroness Thomas of Winchester (LD) [V]
My Lords, I welcome the chance afforded us by the Liaison Committee taking the Equality Act 2010 and Disability Committee report of 2016 out of the long grass and producing its report, published last July. I was a member of the Equality Act 2010 and Disability Committee and I endorse all the comments of our admirable chair, the noble Baroness, Lady Deech.
It really is quite shocking that so little has improved for disabled people since our report, which was careful not to advocate remedies that would involve large spending commitments. It is telling that the Liaison Committee reserved its most damning criticism for the Government dragging their feet on bringing into force Section 36 of and Schedule 4 to the Equality Act 2010, which include provisions on reasonable adjustments to the common parts of buildings such as blocks of flats. If those components of the Act had been brought into force, those responsible for the common parts of buildings, such as a landlord in a leaseholder block of flats, would, after consultation, have to agree to reasonable adjustments, the cost of which could be entirely met by the disabled person.
A good example, which is worth quoting, is given in the report:
“An elderly leaseholder has a flat on the second and third floor. There is absolutely no reason why she cannot live independently, save that she has mobility issues. She wants to install a stair lift … She asks the freeholder for permission. The freeholder says no. She offers to pay the installation costs and all the running costs herself”.
The freeholder, quite legally, still says no.
The Government have announced their intention to bring this section of the Equality Act into force. Indeed, in the National Disability Strategy, published nearly a year ago and foreshadowed in the Liaison Committee’s report, they say:
“We will take immediate steps to … extend disabled tenants’ rights on accessibility”.
Now, we are told, it will happen in due course, with no timescale given. The Liaison Committee is not impressed. It says:
“The Committee finds it objectionable that parts of the Equality Act, now over 10 years old, are still not in force. It is an affront to Parliament that its will expressed in legislation has been ignored or set aside by the executive.”
The Government’s response points to the consultation, saying that any change has “significant implementation issues”. Yes, I am sure it does, but a way must be found to improve the housing stock for all disabled people as a matter of urgency. After all, we are told in the National Disability Strategy that nearly half of all disabled respondents had difficulty getting in and out of where they live. I do not know whether yesterday’s Statement on private rented housing will address this point.
I remind the Government that there are 14 million disabled people in the country and that this figure will increase in future years, so more accessible housing is crucial. If levelling up means anything, surely it should mean using the power of the law to make sure that disabled people do not lose out in basic ways such as being able to live, travel and enjoy leisure activities that are accessible. Will the National Disability Strategy make a difference? It is full of commitments to this and that to try to improve the lives of disabled people, but without concrete proposals with timescales, and updates on progress, it is difficult to get excited.
What is needed is someone with a driving ambition to find solutions to some problems that have been left unresolved for far too long. That person should first ask disabled people themselves what should be done.
Baroness Thornton (Lab)
I am up to speak slightly earlier than I expected. It is a shame that the right reverend Prelate the Bishop of Blackburn has found himself trapped in a previous debate in which he spoke: that is why he is not here. I am also sad that the noble Baroness, Lady Brinton, is not with us. She and I fought together, as it were, on these issues for many years and I was looking forward to seeing her again. I welcome the debate and compliment the noble Baroness, Lady Deech, and her committee. I share her disappointment and that expressed in the report, and the disappointment in the inadequate government response to the impact follow-up report.
I decided, as one of the government team which helped to put the Equality Act on the statute book in 2010, to delve back into Hansard to get a flavour of what we were aspiring to, and what was said by those participating in the debate then, who worked hard to put this important document on our statute book. It took a year to write that Bill. I attended meetings with counsel and others on behalf of the then Leader of the House for a year in the writing of that Bill, because it was a consolidation Bill and a very large and important piece of legislation.
When it came to your Lordships’ House at the end of the end of 2009, we discussed it through the spring—
Baroness Thornton (Lab)
I was reminiscing about the passage of the Equality Act 2010. We miss some of those who took part then and, in today’s debate, we miss perhaps most of all the noble Baroness, Lady Campbell of Surbiton, who is not able to be with us. I am sure all noble Lords wish her well and look forward to her return.
It is clear, if you look at the record of the passage of the Equality Act, that there was a great deal of optimism and of consensus, which allowed the Bill to be improved and amended as it went through your Lordships’ House. For example, on employment, the Labour Government responded to disability organisations and others by bringing forward amendments that addressed the compelling evidence of disabled people being discriminated against once employers were aware of their disability. They prohibited the use of pre-employment questionnaires, except in prescribed circumstances, thus stopping the inhibition of people with disabilities or mental health problems applying for jobs.
That is a good example, as we knew the words in the Act would and should tackle the discrimination faced—in this case disability—and therefore were very important. Being a practical politician, because it was in the run-up to a general election, there was an agreement to put measures in the Act that would need the new Government—in whatever form they took—to pick them up and implement them. In some cases, it was simply changing “may” to “must”. For example, I believe it was the coalition Government that, quite late on, approved the change of “may” to “must” on the monitoring of wage discrimination in companies of, I think, over 500 people. That was done long after the Act was passed.
This follow-up report builds on the recommendations of the March 2016 report by the House of Lords Select Committee on the Equality Act 2010, that I think the noble Baroness, Lady Deech, also led. What we saw, when we put the Act on the statute book, is that it created a positive duty to anticipate the needs of and make reasonable adjustments for disabled people. The issues that have been discussed today say that,
“in the context of services, the objective of the duty is to, so far as is reasonably practicable ‘approximate the access enjoyed by disabled people to that enjoyed by the rest of the public. The purpose of the duty to make reasonable adjustments is to provide access to a service as close as it is reasonably possible to get to the standard normally offered to the public at large’. The duty is contained in section 20 and comprises three requirements … to: avoid putting disabled people at a substantial disadvantage where a provision, criterion or practice would put them at that disadvantage compared with people who are not disabled—for example, adjusting a ‘no dogs’ policy for visually impaired people … remove, alter or provide means of avoiding physical features where those features put disabled people at a substantial disadvantage compared with people who are not disabled—for example, providing a wheelchair ramp alongside stairs … provide an auxiliary aid where disabled people would, but for the provision of that aid, be put at a substantial disadvantage in comparison with people who are not disabled—for example, providing an induction loop for hearing impaired people.”
As noble Lords have said, those duties are really very clear, so the shame of this is that they have not been fully enacted 12 years later. I can see that the disability organisations are both disappointed and disheartened by that. For example, on Section 36, no reasonable explanation was given to the noble Baroness’s committee about the continued delay. I quote from the report:
“The Committee could find no reasonable explanation for the delay in bringing section 36 into force in 2016, and the evidence received in 2021 paints a similar picture … asked why the Government had failed to commence this section of the Act, Catherine Casserley said: ‘I really do not understand why the provision has not been implemented’.”
Further down in the evidence section, when asked about Section 36, Melanie Field, who is an absolute veteran of the 2010 Act and worked with us all the way through it, said:
“We often draw government’s attention to the need to implement that provision, and we hope that progress will be made.”
I would like to ask the Minister when. When will progress be made? It really is shameful that it has not been made already.
Turning to making the public sector equality duty more effective, can the Minister expand on the statement and the Government’s answer to recommendation 8 about the public sector equality duty? There, the Government note that amendments to Section 149 will be considered or the Act will be replaced in the future. Can the Minister give the Committee the likely timetable for bringing forward the amendments? Can she please tell the Committee whether the Government intend to replace the Equality Act altogether, and when they intend to do that?
I draw specific attention to the report’s challenge that the Government do not produce data on their interministerial group on disability and society, so it is unclear whether it still exists or not. I ask whether it does in fact exist and, if so, in what form. If it does, will the Government commit to publishing data on it regularly so that it is embedded at the heart of government decision-making—as disabled people have demanded quite rightly and as they need? Do the Government intend to follow up on the recommendation that the Women and Equalities Minister becomes a full-time Cabinet-attending post?
As the noble Baroness, Lady Deech, said, the court challenge suggests that the national strategy for disabled people was not legal because the consultation did not take place in a proper fashion. I echo the question: when will we see a new strategy and how will the proper consultation take place? This draws particular attention to the lack of trust in this area. This report, the one before it and this debate show that there is a lack of trust in the Government’s commitment to disabled people and the reforms that are required, many of which are very straightforward. When the Prime Minister called the strategy a “down payment” in February 2022, when it was first launched, you could almost see the eye roll across the whole disability sector. I would like the Minister to go back and re-establish trust, which has been eroded, and work out how best to do that.
The last words I say should go to the noble Baroness, Lady Campbell, because, during the debate in 2016 on the impact of the Equality Act on people with disabilities—led by the noble Baroness, Lady Deech—she said, quoting Sir Bert Massie:
“‘It is now ... 35 years since disabled people called for the right to be treated as equal citizens. Yet the Government still wants to ... talk and meet. It is no wonder disabled people are ... becoming increasingly angry. The Government’s tepid response to the Committee’s report clearly demonstrates a deep lack of understanding and concern about Britain’s disabled people’.
I am afraid that this just about sums up how the committee and disabled people feel about the Government’s disability agenda”—[Official Report, 6/9/16; cols. 980-81.]
today.
The Parliamentary Under-Secretary of State, Foreign, Commonwealth and Development Office and Department for Work and Pensions (Baroness Stedman-Scott) (Con)
My Lords, I thank the committee chair, the noble Lord, Lord Gardiner, the noble Baroness, Lady Deech, and other members of the committee for calling for this debate on a very important subject for our society. I hear the strong and impassioned points that have been made; there have been some forceful interventions and relevant questions that I will address in this closing speech.
I take the point raised by the noble Baroness, Lady Thornton, about re-establishing and rebuilding trust and, in my role as Minister for Women and Equalities in this House, I start by answering noble Lords’ questions and then offer a meeting to see if we can start to rebuild that trust as we go along.
I ask noble Lords to be in no doubt of this Government’s determination to promote the interests of disabled people and increase their participation in the labour market and wider society. This is even more important as society recovers from Covid and faces a number of post-pandemic challenges. This Government are committed to disability policy that supports all areas of life, and to taking action to create a society that works for everyone so that we can build back better and fairer for all. Our aim is to transform the everyday lives of disabled people across the country, through delivering long-term change through practical plans.
Since the start of 2022 alone, our wider work to support disabled people is having a real impact. We have supported two landmark pieces of legislation, the British Sign Language Act and the Down Syndrome Act, which have both been granted Royal Assent in the last few months. The BSL Act came about, with widespread support across government, from a Private Member’s Bill put forward by Rosie Cooper MP and with the help of personalities such as “Strictly Come Dancing” winner Rose Ayling-Ellis and of deaf people’s organisations. It promotes and facilitates the use of BSL, with legal recognition as a language of England, Scotland and Wales—a recognition that I know has been awaited for many years.
The Act provides a specific duty on the DWP Secretary of State to prepare and publish a British Sign Language report. This describes what each ministerial department has done to promote and facilitate the use of British Sign Language in its public communications. The Act specifies that these public communications should include: any public announcement that a government department makes about policy or changes to the law; the publication of any plan, strategy, consultation document or consultation response, or any explanatory or supporting materials; and its use of press conferences, social media or a government website to publicise any of its activities or policies.
The Act places a duty on the Secretary of State for Work and Pensions to issue guidance on the promotion and facilitation of BSL, which will be developed together with D/deaf BSL users as part of a non-statutory board of BSL signers. We hope to produce this guidance in 2023. A BSL advisory board will bring to bear the perspectives and priorities of those with lived experience, from BSL signers living across England, Scotland and Wales. It will be established in autumn 2022 with a broad remit to advise the Government on matters related to BSL, including how to increase the number of BSL interpreters and to review how the DWP might work to ensure that the Access to Work fund helps BSL users.
The Down Syndrome Act is an enabling framework to give a voice to people with Down syndrome. This will ensure that local government meets the needs of people with Down syndrome to ensure they receive better services now, and to transform their future experiences across social care, healthcare, education and housing services.
I know that the noble Baronesses, Lady Thornton, Lady Deech and Lady Thomas, raised issues relating to Section 36 of the Equality Act 2010. In the six months since the Government responded to the Liaison Committee’s report, I am pleased to update this Committee on important progress on an issue in which the Liaison Committee, and before it the 2015 Select Committee, took a close interest—namely the commencement of the remaining parts of Section 36 of the Equality Act.
As many noble Lords know, commencement will enable a disabled tenant or leaseholder to require their landlord to make reasonable adjustments to the common parts of their homes—for example, entrances, hallways and stairs. I am aware that progress has been slower than all noble Lords would like, because we have been looking at the cost implications of implementation and how it fits with wider leasehold law and practice. However, on 9 June, the Government launched a consultation on implementation. This is important because disabled tenants and leaseholders are being given a real voice in how the detail of the policy is being shaped.
Regulations will be needed to set out some of the detail prior to commencement. Feedback from the consultation will be key to this. For example, we are asking all interested parties whether they would like a specified structure for reasonable adjustment agreements and further views on how works might be fairly financed. Via GOV.UK, we are offering a variety of formats to help people understand what switching on the provisions means and to enable views to be fed back as easily as possible. We are keen to give maximum opportunity to those affected by this change to feed in their views, so the consultation will last 10 weeks.
The noble Baroness, Lady Thomas of Winchester, raised accessibility to buildings and housing. We are also assessing disabled people’s needs in the built environment more generally. In June 2021 we commissioned research, as part of a full review of Part M of the building regulations, on the prevalence and demographics of impairment in England and the ergonomic requirements and experience of wheelchair users and disabled people. The research is looking at the size and layouts in toilets and the range of facilities needed to suit our population. Work is under way to develop robust data and evidence to help government consider what potential changes can be made to statutory guidance covering access to and the use of buildings.
As part of the review, government consulted from 8 September to 1 December on options to raise the accessibility of new homes, recognising the importance of suitable homes for older and disabled people. The consultation proposed whether to wait to see the full impact of recent planning policy changes on the use of the optional technical standards, or whether and how changes could be made by either mandating a higher standard or reconsidering the way existing optional standards are used, including set proportions for wheelchair user homes.
This is a technical and important piece of work. We have analysed all the responses, which have been comprehensive and have helped inform our work on how best to raise accessibility standards of new homes. We will set out our plans in due course. Evidence gathered will help government consider what changes can be made, including reviewing and potentially tightening the regulatory framework to deliver accessible new homes and updates to statutory guidance.
Our planning rules already mean that councils must consider the needs of older and disabled people when planning new homes. We have also given councils guidance on options they should consider, such as housing with improved accessibility, to enable older and disabled people to live more safely and independently.
The noble Baroness, Lady Deech, raised private hire vehicles. The committee’s report, and noble Lords’ contributions to this debate, raised accessibility to taxis. On 28 March we launched a public consultation on the updated best practice guidance document aimed at local licensing authorities, incorporating strengthened recommendations on the provision of an inclusive service. The consultation closed yesterday, and work is now starting to assess the views of stakeholders.
A wide range of stakeholders responded to the consultation, and we will consider their responses carefully before finalising the guidance. We hope that, once published substantively, the guidance document will support licensing authorities to ensure that the taxi and PHV services they regulate provide a genuinely inclusive and accessible service, meeting the needs of those who rely on it.
In the meantime, the Government remain committed to improving the experience of disabled taxi and PHV passengers—a commitment the committee welcomed in its report. Subject to parliamentary time, we will legislate to mandate the completion of disability awareness training by taxi and PHV drivers as part of national minimum standards. We also recently supported the Taxis and Private Hire Vehicles (Disabled Persons) Bill, which gained Royal Assent on 28 April, introducing improved rights for disabled people travelling by taxi and PHV. Together, we hope these measures will allow more disabled people to use this vital mode of transport with much greater confidence.
I am sure that noble Lords will also want to know what advice and support is available to disabled people concerned about taxis, and indeed the full range of service provision across the economy. The Government sponsor a free helpline, the Equality Advisory and Support Service, which provides support and advice to anyone in England, Scotland or Wales who feels they may have suffered discrimination. It receives approximately 35,000 contacts per year, of which about 70% are queries relating to disability. This means that the government helpline assists in more than 24,000 disability-related issues a year.
The EASS works closely with organisations such as Disability Rights UK to ensure that its services are widely accessible to those with a range of disabilities, offering: a textphone system alongside the main telephone number; British Sign Language via a video conference call that a deaf individual can access via the EASS website; video calls to individuals who are visual learners within the autistic spectrum who would find it difficult to process advice via voice channels; a webchat service that offers an accessible route for people who choose to type rather than use the telephone; documents in accessible formats such as large print alongside different font options, colours and sizes, which are posted to individuals; documents in Braille; and an email, transcript or audio file of a call or advice for individuals who find it difficult to recall information provided.
Finally, government services are working for disabled people across a range of other important areas, including the following.
As more disabled people are starting new jobs, there has been an increased number of people applying for support through Access to Work. We have delivered improvements to the Access to Work programme to meet this increase in demand.
The autumn 2021 spending review has allowed the Department for Education to deliver an additional £1 billion for children and young people with more complex needs, including those with a disability, in 2022-23, bringing the total high-needs budget next year to over £9 billion.
In collaboration with ACAS, BEIS launched an online advice hub in July 2021, containing clear, accessible information and advice on employment rights for disabled people.
The DfE contributed £9.3 million in the 2021-22 financial year to fund the training of more educational psychologists, increasing the number of trainee educational psychologists each year to over 200.
The Rail Delivery Group and the Department for Transport have introduced a new Passenger Assistance app, with over 80,000 users of the app supported to receive over 400,000 different forms of assistance.
To make housing more accessible, the Department for Levelling Up, Housing and Communities published a new National Model Design Code in July 2021, setting out comprehensive guidance on the design of homes and neighbourhoods for local planning authorities. The guidance emphasises the importance of designing new development, including public spaces and play areas, in a way that creates safe, inclusive, accessible and active environments.
To support people in court proceedings, the MoJ brought a new revised victims’ code into force in England and Wales on 1 April 2021, which set out enhanced rights for disabled people, as well as other victims.
The Cabinet Office has launched an enhanced programme of disability and access ambassadors, expanding to include 19 ambassadors, senior business leaders who help to ensure businesses are doing all they can to support their disabled customers.
BEIS published a consultation on making flexible working the default in September 2021. Flexible working can be particularly valuable for those who need to balance their personal lives with their working lives, including those with caring responsibilities. The consultation closed on 1 December, having received over 1,600 responses.
The Department of Health and Social Care’s adult social care reform White Paper, People at the Heart of Care, published in December 2021, reflected the needs of disabled people.
I will try to answer some of the specific questions that noble Lords raised. Both the noble Baronesses, Lady Deech and Lady Thornton, raised the issue of the disability strategy, in particular in relation to the judicial review. The national disability strategy set out our ambition to improve the lives of disabled people. We are disappointed by and strongly disagree with the High Court’s finding, and the Secretary of State has sought permission to appeal its declaration. While awaiting a decision on permission to appeal from the Court of Appeal, we are required to take steps to comply with the court’s declaration. We will do everything we can to limit the impact of this ruling on disabled people but, to ensure compliance with the court’s declaration, we are obliged to pause a limited number of policies which are referred to in the strategy or are directly connected to it. We remain committed to improving opportunities and outcomes for disabled people as we await the outcome of the appeal.
As I said, in less than a year, we passed the British Sign Language Act and the Down Syndrome Act. Our intent is still to create more opportunities for disabled people to participate and thrive; to protect and promote the rights of disabled people; and to tackle the barriers that prevent disabled people from fully benefiting from and contributing to every aspect of society.
The noble Baroness, Lady Deech, raised issues about the progress of legislation in relation to the public service ombudsman. The Government do not anticipate bringing forward legislation at this time. Should the Government take forward any ombudsman reform, we would run a full public consultation, including responses from equalities and disability organisations.
I have already referred to many of the things the Government are doing in taking leadership of these issues, and I am very happy to say that the ministerial disability champions were appointed in summer 2020 at the request of the Prime Minister to help drive the development and delivery of the national disability strategy. The champions meet quarterly through the year; during the development of the national disability strategy, it was set out that the Minister for Disabled People will continue to chair a quarterly meeting of the champions to drive progress.
Noble Lords raised the status of the role of the Minister for Women and Equalities, and how that needs to be a Cabinet post. I am unable to give noble Lords any good news on that. All I can say is that, as well as it being the prerogative of the Prime Minister to determine who sits in Cabinet, I will do my best in my role in the Lords to support all disabled people, and I will work as hard as I can. My colleague, Chloe Smith, Minister for Disabled People, is equally committed and, as I said, it would be good for us to meet after this debate to see what progress, if any, we can make.
The noble Baroness, Lady Deech, raised the point of the Cabinet social justice committee. Again, the Cabinet and its committees provide a framework for Ministers to consider and make collective decisions on policy issues, covering the full range of government business, including issues of equality and fairness.
The noble Baroness, Lady Deech, raised the issue of sports and accessible facilities. The Government’s sports strategy
“commits us to work with the football authorities to ensure that all clubs meet their legal obligations under the Equality Act 2010 to provide reasonable adjustments to accommodate disabled spectators.”
We expect all sports and clubs to take the necessary action to fulfil their legal obligation under the Equality Act 2010 to make “reasonable adjustments” so that disabled people are not placed at a substantial disadvantage when accessing sports venues.
The noble Baroness, Lady Deech, raised the public sector equality duty. It has very wide application, applying to all functions of most public bodies, to the public functions of other organisations and to every protected characteristic in the Act. It is often added to other grounds as part of a claim for judicial review, although a requirement to take all proportionate steps would be a positive duty. Inevitably, claims made against public authorities for failing in this duty would be setting negative, and possibly counterfactual, terms that the authorities should have taken this or that step—or, indeed, several successive steps—but had failed to do so. Arguments in the courts would focus on actions that had not happened and whether they would have been proportionate if they had happened. Adoption of the 2009-10 Bill amendment, as a way of moving to an outcome-focused duty, would, therefore, not simply be a shift in policy terms but raise potentially significant issues for legal bodies. The Government, therefore, take the view that the amendments to the public sector equality duty set out in Section 149 of the Equality Act should, in due course, be considered if or when any more general decision is taken to revise or replace the Act in future.
The noble Baroness, Lady Deech, also raised the issue of access to justice and the legal aid system. The Government remain committed to ensuring that access to justice is a reality for disabled people in exercising their rights and are continuing to carefully consider the issue. This includes examining the possibility of consulting on the feasibility of a potential pilot scheme testing the advantages and disadvantages of extending cost protection to disability claims. This is a key issue on which we aim to set out the way forward in the coming months.
The noble Baroness, Lady Thomas, raised the issue of disabled people’s access to housing. I have already referred to that in my closing speech, but the Government have consulted, as I said. We will wait to see the outcome of the consultation. Again, the consultation is part of a full review of Part M of the building regulations. Evidence gathered will help the Government consider what changes can be made, including reviewing and potentially tightening the regulatory framework to deliver accessible homes and update statutory guidance.
The noble Baroness, Lady Thornton, asked what accessible support and advice are available for disabled people who face discrimination. As I said, the Government sponsor a free helpline, which works in the ways I already described: textphones, sign language and video calls for those who need it.
We will continue to be ambitious to deliver meaningful policies to improve disabled people’s lives, and we will continue to ensure that the voice of disabled people is properly heard. We will continue to work closely with disabled people and disabled people’s organisations.
Baroness Deech (CB)
My Lords, I thank all those who have joined this debate. The absence of certain members of our committee who are disabled is really rather poignant and illustrates just how difficult it is for disabled people to participate, whether it is by video or whether they cannot get here on public transport. I know that several of them would have wanted to be here.
I very much welcome the Minister’s offer to meet, and I apologise to her most sincerely for not having spotted her email of about a week ago offering a meeting. Had we had one, our speeches would have been a bit less like ships passing in the night. I would very much like to take up her offer and look forward to working with her, because I know that she cares about this. We have seen her attitude in various welfare matters, and I know her to be a caring person who wants to do the right thing by disabled people.
I welcome the Government’s efforts in sign language. When we heard witnesses in our committee six years ago, some people managed to come and give evidence in sign language and interpretation was provided—however, at very great expense. Anything that improves the ability of people who use sign language to get their message across and be heard is very welcome.
I welcome the fact that a consultation has been launched on Section 36, on new homes and, I think, on various other things too. An awful lot of consultation is going on, and I must remind the Minister that the judgment in the Binder case said that a consultation should not just be vague and unspecific; it should put forward specific proposals that the Government are making, in order that there be a specific response from disabled people. The court also said that disabled people and all their various organisations should be consulted. I hope that we are not back again in future saying, “Another consultation has gone wrong”. I urge the Minister and all her assistants to make sure they get those consultations, of which she mentioned about half a dozen, right according to the judgment in the Binder case.
I also hope that consultations will not hold things up. We would like a date of commencement of, for example, Section 36 and when new homes will be required to be accessible. There was a little bit too much use of the words “commitment” and “subject to parliamentary time”. Those phrases always raise red flags with me.
On sport, I have to respond that sports stadia do not know exactly what is required of them under the Equality Act. There is a need to be more specific, which is why the noble Lord, Lord Faulkner, put forward his Bill. They are bound by the Equality Act to make “reasonable adjustments”; it would seem by past practice over the last few years that either they do not know or they wilfully do not know.
Finally, it is disappointing that some of the responses that the Government gave in their answer to the Liaison Committee’s report, for example on PSED, are still there. The main flaw in the approach is the lack of a strong champion in the Government and of a strategy. I hope that, one day, we will have both of them. In the meantime, I thank the Minister and I look forward very much to having a meeting with her very soon.
House of Lords
Water Companies: Sewage Discharge Monitoring
(2 years, 6 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Baroness Jones of Whitchurch
To ask Her Majesty’s Government what plans they have, if any, to require water companies to monitor the volume of sewage discharged into water courses and not just the frequency of such discharges.
The Parliamentary Under-Secretary of State, Department for Environment, Food and Rural Affairs (Lord Benyon) (Con)
My Lords, I refer noble Lords to my entry in the register. The volume of storm overflow discharge is not directly proportional to its harm as the concentration of sewage in discharges depends on the volume of rainwater it is mixed with. Therefore, we have taken a more effective approach to place a duty on water companies in the Environment Act to directly monitor the impact of discharges on water quality upstream and downstream of overflows. This monitoring system will identify harm from storm overflows and ensure that water companies are held to account through enforcement action.
Baroness Jones of Whitchurch (Lab)
I thank the Minister for that response, but the Environment Agency has already said that there has
“been widespread and serious non-compliance with the … regulations.”
How can it be expected to act if water companies do not have to measure the intensity of polluting sewage being discharged. Of course there is a cost, but we have always known that more investment is essential to tackle this problem. The Commons Environmental Audit Committee has already recommended installing these monitors, so why are the Government siding with the water companies against the interests of the public, who are rightly outraged at this ongoing scandal?
Lord Benyon (Con)
The Government are very much not siding with the water companies. The level of storm overflows into our rivers is totally unacceptable. That is why we are publishing on 1 September this year our storm overflows plan, which will give details of how we will monitor this. We have measures within the Environment Act which give new legally binding targets and measures which we will bring into force. We have the 25-year plan commitment and our strategic policy statement for Ofwat, which gives a very clear direction. We also have our requirements to the Environment Agency on enforcement, which will hold water companies that break the law to account.
The Duke of Wellington (CB)
My Lords, as the Minister has just said, the Government recently published a draft of what they describe as the storm overflows discharge reduction plan. That draft was published and consultation was invited. In that plan there is a target of reducing discharges of sewage over the next 18 years by only 40%. Does the Minister agree that the public expect a much more ambitious target than that?
Lord Benyon (Con)
The public are right to feel very strongly about this and we try to reflect that in the priority we give to this. The target will be to concentrate on bathing waters and special environmental waterways, such as chalk streams. They will be the Government’s absolute priority and by 2035, under our plans, we will have eliminated nearly all outflows into those waterways.
Baroness McIntosh of Pickering (Con)
My Lords, does my noble friend accept that if he introduced Schedule 3 to the Flood and Water Management Act 2010, the amount of discharge would be immediately reduced? What plans have the Government got to do so?
Lord Benyon (Con)
From memory, I think that Schedule 3 refers to water companies being statutory consultees. I am very happy to follow that up with my noble friend in the near future.
Lord Oates (LD)
My Lords, is the Minister aware that last year South West Water discharged raw sewage into rivers and beachfronts 43,000 times over a period of 350,000 hours, including for 3,709 hours into the River Otter in Honiton, for 1,872 hours into the River Exe in Tiverton, and for 1,482 hours into the River Axe in Axminster? Will the Government end this scandal by imposing a sewage tax on water company profits to fund necessary upgrades, and will they ban water company bosses claiming bonuses until that is done?
Lord Benyon (Con)
I think that was a very good choice of geography. The noble Lord will accept that this is an absolute priority for this Government. People who live in that part of the world, in places such as Tiverton and Honiton, are right to want a Government who will clean this up, but who have a plan to do it without raising their bills to unaffordable levels. That Government are this one.
Baroness Jones of Moulsecoomb (GP)
We have better policies than Labour, do not worry.
I am really sorry to hear that these volume monitors are so expensive, but let us remember that the water companies are not short of a penny or two. For example, Liv Garfield, the CEO of Severn Trent, has just been paid £4 million a year; Anglian Water has just today paid shareholders a £92 million dividend; and of course £72 billion was paid out in dividends by water companies, while also raising bills by 31% and cutting investment in infrastructure by, in some cases, almost 40%. These are all facts and figures from Feargal Sharkey, and I thank him very much. Can the Minister tell me how much these volume monitors cost?
Lord Benyon (Con)
I cannot tell the noble Baroness precisely. I can tell her that, 11 years ago, the then Water Minister was quite stunned to discover that we knew of only 10% of sewage outflows into rivers. He required all water companies to identify them and, by the end of next year, we will have identified 100% of them, with real-time monitors, so that the public will know. I know who that Minister was, because it was me.
Lord Watts (Lab)
My Lords, the Minister has just said that he found out about this 11 years ago. What have government and the regulator been doing since then? Quite frankly, I think the regulator needs sacking and the Minister needs sacking. Perhaps if he brought my good friend Feargal Sharkey in as a regulator, things would happen.
Lord Benyon (Con)
The noble Lord is not the only person who refers to Feargal Sharkey as his friend. He is someone I know and worked with when I sat on the board of River Action, which was set up to clean up rivers such as the Wye, part of which is ecologically nearly dead. That is why there is an absolute priority in my department and in this Government to make sure we are making these changes and restoring our rivers.
Lord Hannan of Kingsclere (Con)
My Lords, have my noble friend or his department seen any assessment of the impact on rivers or consumers if, as some in this House want, the water companies were nationalised?
Lord Benyon (Con)
I have. An independent piece of research said that water bills would be considerably higher if we had not privatised all those years ago. We know that if water companies were in public ownership, the heads of those utilities would have to sit in the queue behind the health service, education, the police and all the other priorities of public spending, and our environment and water customers would get the crumbs at the end of the queue.
Baroness Bryan of Partick (Lab)
My Lords, as somebody who drinks water from Scottish Water, I am pleased to tell noble Lords that it is of excellent quality, our water bills are very reasonable, and the water is owned by the people who use it. I would like to follow up the question from the noble Duke, the Duke of Wellington, because I do not think the Minister gave him an adequate answer. It is not good enough to say that the Government are prioritising one type of water over another when by the time most of us here will be long gone, we will still have only a 40% reduction in sewage in our water.
Lord Benyon (Con)
I very much hope that I and the noble Baroness are spared until 2035, so that we can see that priority waters—those for public bathing and those which we mind desperately about, such as chalk streams and other very special environmental ecosystems —are prioritised. That is what we are intending to do. Our ambitions are both high and achievable.
Baroness Boycott (CB)
My Lords, the Minister mentioned the River Wye, yet the rivers in the west of England are largely polluted through industrial chicken farms. Can the Minister enlighten the House on what regulation the Government might take to stop this form of pollution?
Lord Benyon (Con)
The noble Baroness is absolutely right that the problem does not just exist with water companies. Agricultural activities in certain parts, particularly the Wye and Usk catchment, are detrimental to water quality. We have to make sure that, for the phosphates that are run off from the chicken and poultry farms in that area, there is more join-up to protect waters. This is not just an agricultural issue; it is also a planning issue. There is an added problem, in that that river catchment runs across Welsh and English boundaries, and so we have to work with the devolved Government as well.
New Homes Commitment
(2 years, 6 months ago)
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Lord Young of Cookham
To ask Her Majesty’s Government whether they remain committed to building 300,000 new homes a year.
The Minister of State, Home Office and Department for Levelling Up, Housing & Communities (Lord Greenhalgh) (Con)
Delivering new homes and regenerating left-behind communities are central to our levelling-up mission and we remain committed to our ambition of delivering 300,000 homes a year. We have made progress, with more than 2 million additional homes being delivered since April 2010. Over 242,000 homes were delivered from April 2019 to March 2020, which is the highest level for over 30 years.
Lord Young of Cookham (Con)
I am grateful to my noble friend. The Construction Industry Training Board has forecast that we will need an additional 266,000 construction workers over the next three years if demand is to be met—and that is in an industry already facing shortages. What action can my noble friend take to see that those numbers are met? If there is to be a shortfall in output, can he ensure that that does not fall on the affordable sector of the market?
Lord Greenhalgh (Con)
My noble friend is right that there has been a recent report by the CITB, but I point out that that shortfall is for the whole of the construction industry, not just housing. We have significant cross-government intervention and investment in skills, and the CITB made £110 million available in training grants to support 14,000 businesses. However, we continue to recognise—this was picked up by the Federation of Master Builders—that there are stresses and strains in terms of labour and materials. The Government are working hard to overcome these.
Baroness Warwick of Undercliffe (Lab)
My Lords, I declare an interest as chair of the National Housing Federation, which estimates that we need 90,000 social homes a year in England. Can the Minister tell us how the Government will ensure that their reforms in the planning system contained in the Levelling-up and Regeneration Bill will help deliver that much-needed social housing?
Lord Greenhalgh (Con)
My Lords, there is a real commitment to build more social housing, including more affordable housing. As the noble Baroness knows, the programme is for some £11.5 billion, with a target of double the number of social rented homes in this particular grant period than the previous one. The Levelling-up and Regeneration Bill recognises that, in order to get the housing, we need the infrastructure in place and must ensure that neighbourhoods have mixed communities at their heart. That is what the Bill is planning to do.
Baroness Walmsley (LD)
My Lords, can the Minister tell us that all the new houses will be built with a high level of insulation, the quality of which is properly inspected, and will not be fitted with gas boilers but will be heated by renewable energy?
Lord Greenhalgh (Con)
My Lords, we recognise that in order to meet our net-zero commitment we need to implement the future homes standard, which comes in, I believe, in 2025. Building regulations will reflect that ambition to ensure that we build not only more homes but more sustainable homes that use heat pumps and other devices to meet that target.
Lord Moylan (Con)
My Lords, I declare my interest as a member of the Ebbsfleet Development Corporation board. Does my noble friend agree that many public bodies would be willing to get on with delivering homes if they had access to the brownfield infrastructure land fund? Nearly three months into the financial year, can my noble friend say when the allocations from that fund will be announced?
Lord Greenhalgh (Con)
My Lords, £550 million has been allocated to seven mayoral combined authorities. However, we recognise that we need to announce the availability of funding for smaller brownfield sites, which will happen very shortly.
Lord Best (CB)
My Lords, the Minister will know that half of all the affordable housing that is produced annually within the 300,000 target comes from the planning obligations on housebuilders. Can he reassure the House that the planning reforms in the levelling-up Bill will not diminish the amount of affordable housing that housebuilders have to produce, since we need to double the output of affordable housing and not halve it?
Lord Greenhalgh (Con)
I can give an assurance that the Levelling-up and Regeneration Bill recognises the role of building more housing, including more affordable housing. We are trying to ensure that there is a more transparent approach to the levy. There is reform around the current community infrastructure levy to get that right and to make sure we get a proper contribution to affordable housing in the coming years.
Lord Mackenzie of Framwellgate (Non-Afl)
My Lords, has there been a detailed assessment of the decision by Mrs Thatcher to sell off council houses 40 years ago in the light of chronic shortages of houses for sale and rent at affordable prices? Are the Government positively encouraging local authorities to increase their public housing stock?
Lord Greenhalgh (Con)
My Lords, we can prima facie assess that 2 million people chose to buy their own council home and are now homeowners as a result. We make no apology for that. We want to make sure that, in spreading the ability for housing association tenants to buy their own homes, we design the scheme in a way that enables the homes sold to be replaced on a one-for-one basis, which I think everyone can get behind.
Lord Lilley (Con)
Can my noble friend confirm that an unbelievable 1 million people were given the right to come and settle in this country last year? Even if we assume that 300,000 return or emigrate, can he confirm that the remainder—even if they occupy houses at twice the density of the indigenous population—will use up half of the houses we build every year?
Lord Greenhalgh (Con)
My Lords, I recognise that this has been a very welcoming country. We have welcomed refugees from Afghanistan and there has been the very successful programme of welcoming British Hong Kongers to this country. We make no apologies for that. We recognise that there is a need to hit our new-build housing targets and that those will be homes for people who have come to this country for a better life, but we need homes for the younger generations as well.
Baroness Hayman of Ullock (Lab)
My Lords, the housebuilding index produced by the Chartered Institute of Procurement & Supply found that, last month, residential construction slowed to levels last seen during the first Covid lockdown. What assessment has the Minister made of the impact this will have on house prices and private rents?
Lord Greenhalgh (Con)
I do not recognise the cataclysmic drop since the pandemic. We hit a record number, as I pointed out, in 2020-21; there was a slight falling back, but all our internal assessments are that we will see a rebound and that the dip this year will not be pronounced or continue into the mid-decade. Hitting 300,000 is a stretching target, but we will see increasing numbers in the years to come.
The Lord Bishop of Blackburn
My Lords, is it possible for a developer to pay the local authority a certain sum of money to be relieved of its responsibility, and for that local authority then to use the money elsewhere? I hear that is happening in other parts of the country.
Lord Greenhalgh (Con)
My Lords, I do not recognise that you can discharge your responsibility. That is almost describing a bung—I do not think that happens. If there is an affordable housing requirement, you can choose to discharge that off-site, but you still have the requirement to deliver it. We see that in some areas where there is very high-value housing; it is simply more economic to build it elsewhere. I do not recognise that, but if the right reverend Prelate has specific examples, I am happy to look into them.
Viscount Waverley (CB)
My Lords, it is said that pressure on housing supply is often at the expense of regional and national economic development, and that government departments work on their own strategies in silos to the detriment of the broader strategy. Can the Minister give assurance that this is not the case and that he will take up the cause if evidence is presented to the contrary?
Lord Greenhalgh (Con)
I recognise that we cannot look at housing in isolation; we need to get investment in the infrastructure and other factors to allow for growth. It is a good start to have had a £10 billion investment in housing supply since the start of this Parliament, but there is also investment to enable brownfield sites to be built out rather than the—sometimes easier—greenfield sites. We want to see brownfield development and that requires infrastructure, and the money is in place to do precisely that.
Lord Naseby (Con)
My Lords, is it not time that we had a meaningful new towns project which would benefit both owner-occupation and social housing throughout the United Kingdom?
Lord Greenhalgh (Con)
I think we need to find ways of coming up with new town projects but to do that we need the infrastructure, the transport, the roads and the rail, and that is why we recognise that a programme just to build homes is not enough. We need to get that in the round, and we are taking it forward as part of the Levelling-up and Regeneration Bill in this Session.
Baroness Bennett of Manor Castle (GP)
My Lords, I was very pleased to hear the Minister say enthusiastically last night that we need more affordable housing and social housing, and that the Government were happy to look at ideas. There are currently 500 projects for community land trust homes, creating 7,000 new homes around the country. Will the Government look at how they can encourage further this model of providing homes in perpetuity, of a structure and type decided by local communities for local communities?
Lord Greenhalgh (Con)
I think there is quite a degree of interest in how community land trusts can operate; Coin Street is an example, and I believe there are other examples in Watford. We are happy to take all ideas, including how we can use community land trusts as a vehicle to deliver more affordable housing.
Spousal Visas: Processing Times
(2 years, 6 months ago)
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Baroness Burt of Solihull
To ask Her Majesty’s Government what steps they are taking to reduce the processing times for spousal visas for the spouses of British citizens from in excess of 24 weeks.
The Minister of State, Home Office (Baroness Williams of Trafford) (Con)
My Lords, the Home Office is currently prioritising Ukraine visa scheme applications in response to the humanitarian crisis caused by the Russian invasion of Ukraine. Staff from other government departments, including the DWP and HMRC, are being surged into the department to help with Ukraine work and to enable normal visa routes to return to normal service levels in due course.
Baroness Burt of Solihull (LD)
My Lords, it is very commendable that the Government are pouring additional resources into processing Ukrainian visas, but can I ask that they do not lose sight of the over 18,000 families, split apart and waiting for spousal visas, who have no certainty that the recently increased 24-week timeframe will even be the maximum time that they will have to wait? What measurable steps are the Government taking to reduce this backlog, and when does the Minister expect the fast-track system to be reinstated?
Baroness Williams of Trafford (Con)
I concur with the noble Baroness that we will not lose sight of that, but what we will also not lose sight of is that in many instances it is life or death for the Ukrainian people. I totally appreciate that other people are having to wait, and we are going to return to normal processing as soon as we can in due course.
Lord Coaker (Lab)
My Lords, we agree with the prioritisation with respect to Ukraine, but the fact of the matter is that, whether it is passports, asylum applications or, now, spousal visas, the story at the Home Office is backlog after backlog after backlog. The Government’s response is to say that over the next few months they will come forward with plans for reductions of 10% in staff. What does the Home Office say to those people waiting for spousal visas, separated from their partners for six months at a time? What does it say to those people waiting for spousal visas who have given up their jobs on the basis that they expect to get them? It is not good enough. Prioritise Ukraine, but not at the expense of everything else.
Baroness Williams of Trafford (Con)
The noble Lord has neatly gone on to passports. Across March, April and May, HMPO processed approximately 3 million passport applications, with 98.5% of those processed within the published processing time of up to 10 weeks, and 91% processed within six weeks. It was not a backlog; it was the sheer volume of processing that needed to be done. In terms of workforce reductions, I have made the point before that every organisation should look at becoming leaner and more efficient. That certainly will not be to the detriment of any of the HMPO or processing surges that we see at the moment, where we expect to have the appropriate number of staff for processing.
Baroness Finlay of Llandaff (CB)
My Lords, are the Government aware that the Russian Government are using the delays as a form of propaganda by saying that it is the fault of the Ukrainians that other countries cannot get their visas, and that this propaganda is being specifically targeted at South Africa, India and other countries? That information came to me at a meeting I had with five Ukrainian MPs recently.
Baroness Williams of Trafford (Con)
The noble Baroness underlines that to have the Ukrainian visa scheme as a priority is absolutely the right thing to do.
Lord Kirkhope of Harrogate (Con)
My Lords, my noble friend has answered a question on the length of time for inquiries to be made and for decisions to be taken. This appears to be the case throughout administration in relation to passports, as well as in relation to these matters. If we are now going to totally rely on the number of weeks in which we have to deal with matters, surely we are at risk of cutting corners. Is it not really rather important that we be more concerned with the thoroughness and fairness of the examination that takes place before a decision is taken?
Baroness Williams of Trafford (Con)
My noble friend is absolutely right. Of course, those thorough processes were some of the things that noble Lords were asking us to cut corners on right at the beginning of this process. We have not, and we are proud of the thoroughness of our processes.
Lord Paddick (LD)
My Lords, the Minister of State for the Department for Levelling Up, Housing and Communities and the Home Office told the House on 7 June that there were 19,000 outstanding applications under the Ukrainian visa scheme. Can the Minister update the House on that number? Can she tell the House what the knock-on effect has been in terms of the number of outstanding applications for other visas?
Baroness Williams of Trafford (Con)
On the Ukrainian visas, I think there have been 188,000 applications, and I know that 130,000 have now been issued.
Lord Alton of Liverpool (CB)
My Lords, before the Minister returns to the Home Office this afternoon, will she encourage colleagues to go and see the exhibition that opened yesterday, sponsored by the United Nations High Commissioner for Refugees and Rehman Chishti MP, in the Upper Waiting Room between both Houses of Parliament? It highlights those who have been caught up in violence in Afghanistan, and the Rohingya, Yazidis, Nigerians and many others, so that we understand the plight that many women especially face when they become refugees, contrary to the caricature that is often made of those seeking asylum.
Baroness Williams of Trafford (Con)
The noble Lord points to the vulnerability of women. We have seen that very much during the flight from Ukraine; they are our most vulnerable. Again, that is why we have prioritised the visas and why we do not want women to take journeys across Europe to perhaps be at the behest of people who would not wish them any good.
Viscount Waverley (CB)
My Lords, notwithstanding everything that has already been said today, is the Minister aware that a drift back to Ukraine from countries such as Poland is starting, and that a direct train service from Warsaw to Kyiv—with a change of undercarriage at the border—has started to be reinstated, and that even the economic development agency based in Kyiv, on behalf of the Ukrainians, is now starting to get back into business to work out how it is going to advance the economic development of that country?
Baroness Williams of Trafford (Con)
The noble Viscount brings both good news and bad news. The good news is that the Ukrainians are desperate to get back to normal, but I say that with a note of caution, because I hope they are not going back to face further danger.
Lord Forsyth of Drumlean (Con)
My Lords, if a private company could produce its product only with a six-month wait, competition would move in to take over its market. Has my noble friend any plans to ensure that this happens with the delivery of these important services?
Baroness Williams of Trafford (Con)
I say to my noble friend, as I have said to other noble Lords, that I hope that normal visa services, in terms of delivery times, will return in due course, but we are prioritising the Ukrainians at the moment.
Lord Scriven (LD)
In answer to my noble friend Lord Paddick, the Minister answered the first part of his question. The second part was: as a result of Ukraine, what is the detriment in the number of outstanding applications from other people waiting for visas? Could the Minister please answer that part of the question?
Baroness Williams of Trafford (Con)
The noble Lord and the noble Lord, Lord Paddick, are absolutely right that it is to the detriment of other visa schemes— student and spousal visas, for example—and, as I said, we hope to get them back on to a more normal footing in due course.
Lord Roberts of Llandudno (LD)
My Lords, what preparations are in process to counteract the effects of climate change and the greatly increased number of people who will have to leave their homes and their areas because of the new weather conditions?
Baroness Williams of Trafford (Con)
That is a very interesting follow-up on spousal visas. But the noble Lord does have a point there, in the sense that we will see a lot more global migration, which needs to be tackled globally.
British Baccalaureate
(2 years, 6 months ago)
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Lord Lexden
To ask Her Majesty’s Government what assessment they have made of the main recommendation of The Times Education Commission, published on 15 June, which calls for the introduction of a British Baccalaureate.
The Parliamentary Under-Secretary of State, Department for Education (Baroness Barran) (Con)
My Lords, I thank the Times Education Commission and the Members of this House who have contributed to it for their insight and ideas. Over the last 10 years, the Government have transformed the quality of academic and technical qualifications, ensuring that they support all young people to achieve their full potential. That is why, with the further reforms currently in train, we have no plans to introduce a new British baccalaureate at age 18.
Lord Lexden (Con)
My Lords, have the Government noted the chorus of praise that greeted this report and, in particular, its recommendation for a British baccalaureate uniting academic and vocational study? Do the Government agree with the president of the Royal Society, who has said that:
“Given the breadth of support for the commission’s report, it is surely time for a cross-party approach to implementing a genuine reset of education”?
Will the Government now rise to this challenge, surely one of the most urgent of our time, which the current Schools Bill, to which my noble friend referred, seems to rather evade?
Baroness Barran (Con)
We think we have led, since 2010, a major reset of education in this country, with relentless focus on quality, clarity of purpose and good progression outcomes, and I commend to my noble friend the schools White Paper, which covers both our legislative and non-legislative actions.
Baroness Blackstone (Ind Lab)
My Lords, the Minister’s reply was extraordinarily complacent and very disappointing. I cannot understand how the Government can have such a closed mind to a sensible suggestion of the kind that the Times Education Commission has made. Is she not aware that no other OECD country has such a specialised curriculum for their able 16 to 18 year-olds? Surely it is now high time to look at this again and try to come up with a more sensible solution where young people have the opportunity to study a wider range of subjects, rather than being confined to just three as is the case with A-levels at the moment.
Baroness Barran (Con)
I thoroughly hope that I did not give the noble Baroness the sense that the Government are complacent. We are not complacent. She need only look at the measures we are taking in relation to technical education, I hope, to demonstrate that. Obviously, every country has a different education system. We have worked to build the best system for our children. We believe that it plays to our strengths and recognises the structure of the school system we have, rather than one that other countries have.
Baroness Coussins (CB)
My Lords, will the Government accept the Times education commission’s recommendation that bursaries for trainee language teachers be restored to the same level as for science and maths, given the current shortfall of well in excess of 50% for the recruitment of language teachers?
Baroness Barran (Con)
The noble Baroness has highlighted the issue of the shortage of modern languages teachers. She will be aware that we have taken a number of actions in this regard, including putting them on the shortage occupation list.
Baroness Garden of Frognal (LD)
Another great point in the education commission’s recommendations—forgive me if I read it out—is this:
“An ‘electives premium’ for all schools to be spent on activities including drama, music, dance and sport”,
which are so sadly missing in state schools these days,
“and a National Citizen Service experience for every pupil, with volunteering and outdoor pursuits expeditions to ensure that the co-curricular activities enjoyed by the most advantaged become available to all.”
What a brilliant idea. How will the Government take this forward?
Baroness Barran (Con)
The Government are already taking it forward. The department is investing around £115 million a year in cultural education over three years, on top of schools funding. We are also publishing a national plan for music education, thanks to the great leadership of my noble friend Lady Fleet, and will publish a cultural education plan in 2023. We are supporting the national youth guarantee in relation to citizenship opportunities.
Lord Cormack (Con)
My Lords, does my noble friend not accept those famous words that, without vision, the people perish? We have vision in this report from the Times. Will my noble friend at the very least —because many do think that the Government are complacent—talk to the Leader of the House about having a full day’s debate on that commission?
Baroness Barran (Con)
I would be happy to talk to the Leader of the House about my noble friend’s idea.
Lord Flight (Con)
My Lords, does the Minister agree that the main problem is that people have to specialise too early in this country? When many of us were doing O-levels, the standards were closer to today’s A-levels, so we have the problem that you cannot specialise when the quality of the teaching you are relying on is not high enough.
Baroness Barran (Con)
I can say to my noble friend that we have worked incredibly hard to reform both academic and, more recently, technical qualifications. I proudly wear my T-level badge, although it is slightly upside down. More importantly, there is a perception that one can do either academic or technical qualifications. In our response to the consultation on level 3 qualifications, published in July last year, we set out the groups of technical and academic qualifications that we will fund and how they can be combined.
Baroness Blower (Lab)
My Lords, although the Times education commission’s report is an extremely good piece of work with very good recommendations, other bodies were looking at the shape of our education system, particularly assessment, at the same time. So, although I wholeheartedly endorse the notion of having a day to look at this commission, it would pay dividends if the Government met all the commissions that have reported on the shape of our curriculum and assessment, and we thereafter debated all of them. I hope that the Minister agrees.
Baroness Barran (Con)
The Government engage with all the key stakeholder groups in this sector. We value enormously the expertise that they hold. However, I remind the House that attempts were made to deliver a broader 14-to-19 diploma but were not successful.
Baroness Neville-Rolfe (Con)
My Lords, the commission’s report comments on the importance of bringing out the best in teaching. Teach First has transformed the quality of teaching in some areas by attracting top-quality graduates into our schools. Would the Government consider a programme of Teach Last, to use the skills of those who retire early or want to give back to their communities after another career?
Baroness Barran (Con)
My noble friend will be pleased to know that there is such a programme, Now Teach, and that the Government have been active in supporting it.
Baroness Chapman of Darlington (Lab)
Last week, the Minister said at the Dispatch Box that it is not government policy to open further grammar schools, yet we read in the papers that new selective schools are on the cards as a way of soothing Tory Back-Benchers. Can the Minister confirm whether what she said last week was correct or whether the department is looking into new grammar schools?
Baroness Barran (Con)
I think the noble Baroness has seen from the Schools Bill and from the schools White Paper what our policy is in this matter.
Baroness Whitaker (Lab)
I make a plea to all those also asking the Government to take the baccalaureate more seriously. I declare an interest in that my eldest son took the baccalaureate because he was really distressed by the narrowness of A-levels. One advantage which has not been mentioned is that it can be internationally reciprocally recognised, so that children who emigrate or whose parents move for a job will not have to retake extremely alien examinations. Does the Minister not think that this is an advantage worth having for our children?
Baroness Barran (Con)
On the international recognition of our qualifications, the noble Baroness is right. We want an outward-looking and confident group of young people who seize opportunities all around the world, but certainly A-levels are extremely well regarded internationally, and we believe that T-levels will follow.
Baroness Bennett of Manor Castle (GP)
My Lords, the last Intergovernmental Panel on Climate Change report drew heavily on the work of anthropologists and sociologists. One aspect of the IB is that there is a theory of knowledge course, which looks not just at individual subjects but at how they intersect and divide between each other, and the challenge of acquiring reliable knowledge in an information age—referring to the media literacy question that we had yesterday. Therefore, is this cross-sectional, cross-disciplinary, systems-thinking approach not something that we urgently need across our education system?
Baroness Barran (Con)
The noble Baroness makes an interesting point. We agree that there is very much of value in the panel’s report, but one of its points is that there is an artificial dichotomy between knowledge and skills. All the evidence supports this. A knowledge-based curriculum stimulates critical thinking and inquiry skills, and those can be taught only in the context of solid subject content.
Public Procurement (International Trade Agreements) (Amendment) Regulations 2022
(2 years, 6 months ago)
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Abortion (Northern Ireland) Regulations 2022
(2 years, 6 months ago)
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17:35 - Division on Baroness O’Loan’s amendment - Ayes: 28 / Noes: 181 - Baroness O’Loan’s amendment disagreed.
Lord Caine
That the Regulations laid before the House on 19 May be approved.
Relevant document: 3rd Report from the Secondary Legislation Scrutiny Committee (special attention drawn to the instrument)
The Parliamentary Under-Secretary of State, Northern Ireland Office (Lord Caine) (Con)
My Lords, in opening this debate I first acknowledge and express my respect for the deeply held views that many noble Lords hold and will continue to hold on this subject. For my part, since becoming a Member of your Lordships’ House in 2016, I have never taken a position on the moral rights or wrongs of abortion; indeed, I have not previously voted on the issue. Therefore, rather than reopening the ethical debate about abortion, which has been discussed on previous occasions including during the passage of the 2020 framework regulations, I wish to focus on the legal obligations on the Secretary of State for Northern Ireland and the Government and how these regulations will address them.
The origins of these regulations were the decision taken by both Houses of Parliament in 2019 to support an amendment to the Northern Ireland (Executive Formation) Bill brought forward by the honourable Member for Walthamstow, Stella Creasy, in the other place, in respect of access to abortion services in Northern Ireland. Noble Lords will recall that this took place during the period of nearly three years from 2017 to 2020 when Northern Ireland was without a functioning Executive or Assembly. The effect of her amendment, which subsequently became Section 9 of the Northern Ireland (Executive Formation etc) Act, was to place a clear statutory duty on the Government to ensure access to services that are compliant with the report in 2018 of the UN Committee on the Elimination of Discrimination Against Women—or CEDAW for short.
I remind noble Lords that the amendment was passed by a majority of 332 to 99 in the other place, and a vote to amend that amendment in this House was rejected by 138 votes to 39. The size of these majorities indicated the clear will of Parliament to address these issues and ensure access to services in Northern Ireland in line with those available in the rest of the United Kingdom. As a result, since April 2020, access to a limited range of abortion services has been available in Northern Ireland; the latest figures I have show that between 31 March 2020 and 31 January 2022, 2,794 such abortions took place.
I take this opportunity to put on record my thanks to the medical professionals who have ensured that women and girls have had some local access to abortion services in Northern Ireland up to this point, and the organisations that have supported this work. I do not underestimate the huge efforts that have been made, and I have deeply been impressed when meeting, as I have on a number of occasions, clinicians and organisations who have helped to sustain the limited services currently in place.
Despite their best efforts, however, these services still fall far short of what is required by law, with women and girls still unable to access high-quality abortion and post-abortion care locally in Northern Ireland in the same way as women in the rest of the UK. The reasons for this are very clear. Following New Decade, New Approach and the restoration of devolved government in Northern Ireland in January 2020, it was always the Government’s expectation and preference that the Executive, with the relevant legal powers, policy and operational expertise, would take forward the commissioning of abortion services and ensure that they were embedded in the health and social care system in Northern Ireland. Yet, despite having had every opportunity to do so, and extensive engagement by the UK Government to see how best we could support delivery, the Executive have failed to act.
As a result, women and girls in Northern Ireland continue to be placed in vulnerable situations, which we cannot allow to continue. Many of them are still forced to travel to Great Britain to access services, with 371 making the journey in 2020 despite the difficulties attached to travelling during that period. Figures released just today show that 161 made the journey in 2021. I know from my discussions with clinicians in Northern Ireland that the limited services on offer are stretched to breaking point. This is clearly an unacceptable state of affairs. Despite being given the time, space and encouragement by the Government to do so, the Executive have not ensured the provision of services required by Parliament in 2019.
In the spring of 2020, the Government introduced, and Parliament approved, a framework for the Department of Health in Northern Ireland to deliver services, yet services were not commissioned. In March 2021, the Government introduced, and Parliament approved, the Abortion (Northern Ireland) Regulations. These provided the Northern Ireland Secretary with a power to direct that action be taken where it is required to implement the recommendations in paragraphs 85 and 86 of the CEDAW report. In July 2021, the Northern Ireland Secretary did indeed direct the Department of Health to commission and ensure the full provision of abortion services by no later than 31 March 2022, yet services were still not commissioned.
It is approaching nearly three years since the executive formation Act was passed. Section 9 continues to place the Government under a duty to implement the CEDAW recommendations and ensure that women and girls have access to services. We now have no alternative but to take all necessary actions to ensure that this happens.
In his Statement, therefore, on 24 March this year, my right honourable friend the Secretary of State for Northern Ireland committed to return to Parliament and make regulations after the Northern Ireland Assembly election which took place on 5 May, if no progress was made towards the delivery of services. He has now made the regulations that are before your Lordships today and they were agreed in the other place last week, in order to make sure that the will of Parliament is respected and his legal duties upheld.
In response to arguments made that these regulations ignore the devolution settlement and make constitutional changes via secondary legislation, I would remind noble Lords that the devolution settlement does not absolve us of our statutory duty to uphold the rights of women and girls in this context. I therefore hope that noble Lords will support these regulations without amendment to the approval Motion.
The Government have not taken these decisions lightly. We remain fully committed to protecting the Belfast agreement in all its dimensions and to the institutions it establishes, including devolved government. In this instance, however, as I have just said, the devolution settlement does not absolve the Government of the clear statutory duties placed upon them by Parliament. This Government’s actions up to this point reinforce that position and our desire to work with the devolved institutions. Indeed, it was only once it became clear that this deadline would not be met that on 24 March, my right honourable friend made a commitment to return to Parliament and make regulations on abortion should they be necessary. As a result, these regulations were laid before this House on 19 May.
Turning briefly to what they contain, they remove the need for the Northern Ireland Executive Committee to approve services before they can be commissioned and funded by the Department of Health in Northern Ireland. The regulations do this by providing that directions under the Abortion (Northern Ireland) Regulations 2021, which require action to be taken to implement the recommendations of the CEDAW report, must be complied with irrespective of whether the matter has been discussed or agreed by the Northern Ireland Executive Committee. Further, they confer on the Secretary of State the power to do anything that a Northern Ireland Minister or department could do for the purpose of ensuring CEDAW compliance. For the purpose of determining what a Northern Ireland Minister or department could do, any need for Executive Committee approval will be disregarded.
The effect of this is to ensure that the Department of Health will have no further barriers to commission and fund services. Even at this stage, it is our clear preference that the Department of Health should drive forward the commissioning of abortion services without further delay and that, as a devolved matter, funding remains the responsibility of the Northern Ireland Executive. To that end, we continue to engage with the Minister of Health and his department, but this requires an absolute commitment by the department to provide services, or the Northern Ireland Secretary will use his powers in these regulations to commission services himself. To ensure that we have all the information required in those circumstances, a small team has been established in the Northern Ireland Office to work alongside the Department of Health to take this forward.
I recognise that this is a sensitive and personal issue for many people, and we have heard many differing views in this House on previous occasions, as well as from Members of the Northern Ireland Assembly, in relation to abortion services. Yet this sovereign United Kingdom Parliament has also made its views crystal clear and placed a binding statutory duty on the Secretary of State to ensure access to properly commissioned services. In their absence, caused by a refusal on the part of the Executive to take this forward, women are currently forced to choose to travel or to resort to unsafe and unregulated measures.
A number of the clinicians I have met over recent months, who are struggling to provide these services without proper support, tell me of the very difficult situations into which women are being forced by a lack of safe, local, high-quality healthcare services. This is despite the fact that the law is in place to ensure that safe, properly regulated services are provided. We have a statutory duty in Section 9 of the executive formation Act to change this situation and ensure that CEDAW-compliant services are available. That is what these regulations will finally provide in Northern Ireland, and I commend them to the House.
Baroness O’Loan
At end insert “but that this House regrets that the Regulations (1) disregard the statutory role of the Northern Ireland Assembly and ignore the devolution settlement, and (2) make substantial constitutional changes via secondary legislation”.
Baroness O’Loan (CB)
My Lords, as the Minister said, there has been and continues to be very significant opposition to the imposition of the extreme abortion regime in Northern Ireland by this Government. It was done in July 2019, in circumstances that beggared belief. It left Northern Ireland with abortion law that goes further than that which applies elsewhere in the UK and that has been, and continues to be, rejected by the vast majority of people in Northern Ireland. Notwithstanding that opposition, the Northern Ireland Government have been acting in compliance with the 2019 Act and the 2020 regulations—I will deal with this in a minute.
The process by which we in Northern Ireland are governed is provided for in the Northern Ireland Act 1998. In its third report, the Secondary Legislation Scrutiny Committee of your Lordships’ House stated that these regulations
“allow the Northern Ireland Assembly Executive Committee to be bypassed”.
The Executive Committee is provided for in Section 20 of the Northern Ireland Act 1998. Section 20(3) and (4) provide:
“The Committee shall … have the function of discussing and agreeing upon … significant or controversial matters”
and those that cut across the responsibility of more than one Northern Ireland Minister. Accordingly, the Ministerial Code requires Northern Ireland Ministers to bring such matters to the attention of the Executive Committee. Abortion is a significant, controversial matter.
On each occasion when draft regulations have been presented to Parliament following the passing of the executive formation Act, they have extended abortion provision in Northern Ireland; it happened in 2020, in 2021 and now, in 2022. Despite the fact that a duly elected and appointed Northern Ireland Minister of Health is in office and working, we see an attempt to bypass him and give the Secretary of State for Northern Ireland powers that are not available to Northern Ireland Ministers or their government departments. All of this is inconsistent with the existing statutory provisions for government in Northern Ireland and with the international obligations of the British Government under the 1998 Good Friday/Belfast agreement.
Ignoring the expressed views of the people prior to the passing of the Abortion (Northern Ireland) Regulations 2020, Northern Ireland now has an abortion law that goes far beyond what was legally required by the formation Act 2019. Regulations provide that abortions can be carried out up to 12 weeks, permitting abortion of any baby, for any reason, including on the grounds of its sex. This provision is not consistent with the UN CEDAW report, on which the 2019 legislation was based. CEDAW has said that sex-selective abortion should not happen because it perpetuates negative stereotypes and prejudices towards women. I believe that it is not permitted in the rest of the UK.
Abortion can be carried out up to 24 weeks if one nurse or doctor certifies that
“the continuance of the pregnancy would involve risk of injury to the physical or mental health of the … woman which is greater than if the pregnancy were terminated”,
taking into account her “actual or … foreseeable circumstances”, such as poverty. Again, this is much wider than in the rest of the UK.
Abortion can be carried out in Northern Ireland up to birth, if it is
“immediately necessary … to prevent grave permanent injury to the physical or mental health, of the pregnant woman”,
if two doctors or two nurses certify that the termination is necessary to prevent such injury and if there is a
“substantial risk that … the child … would suffer from such physical or mental impairment as to be seriously disabled.”
This would include babies with Down syndrome or cleft palates. Again, this is much wider than in the rest of the UK.
As the noble Lord, Lord Shinkwin, said in 2020, speaking of babies with disabilities, this
“promotes and perpetuates disability discrimination.”—[Official Report, 15/6/20; col. 1981.]
So in Northern Ireland we have babies’ lives being terminated because of their sex or their disabilities, among other reasons.
In 2021, the Abortion (Northern Ireland) Regulations gave expansive powers to the Secretary of State, allowing him, for the purposes of implementing the recommendations in paragraphs 85 and 86 of the CEDAW report, to direct that action must be taken by Northern Ireland Ministers, departments, the Regional Health and Social Care Board and the Regional Agency for Public Health and Social Well-being. However, it is a discretion, not a duty. It says he “may” act. He does not have to act, and if he does not act, there will be no successful challenge.
Now we have the 2022 regulations. First, they disregard the statutory role of the Northern Ireland Assembly and ignore the devolution settlement. Secondly, they make substantial constitutional changes by way of secondary legislation. It is not the case that the Northern Ireland Assembly is in breach of its legal obligations to implement CEDAW. It is work in progress. Many changes have occurred. Abortion has been decriminalised in most situations, as required. Abortion is now available in Northern Ireland. The Minister has access to figures, which I could not find when I checked again this morning, and he has told us that there were 2,794 abortions in Northern Ireland in the last year and that in the previous year there were 1,345. These figures represent a 60% increase on the number of those who went to England and Wales for abortions in 2019.
The exclusion zones mentioned in the CEDAW report have now been provided for in law, in a Bill that was passed by the Northern Ireland Assembly and is currently, I believe, subject to legal challenge. As I have said previously, the Secretary of State is not in breach of his obligation. He has a discretion, not a duty, and this is work in progress.
I now address the first issue: that the regulations disregard the statutory role of the Northern Ireland Assembly and ignore the devolution settlement. The democratically elected Northern Ireland Assembly, acting in accordance with its constitutional processes, did not choose to legislate further or to commission directly abortion services that are otherwise provided. Abortion is available; 2,794 abortions in our small area is evidence of that. The Northern Ireland Assembly could have done so but it chose not to.
Your Lordships know that the history of Northern Ireland is tragic. After decades of war, the Good Friday/Belfast agreement of 1998 provided for the process of government within Northern Ireland. The arrangements that we have protect the rights of citizens by providing for the Assembly and the Executive, comprised of the First Minister and the Deputy First Minister, who are joint chairs, and eight other Ministers. Their job, as the Government’s website says, is to exercise executive authority on behalf of the Northern Ireland Assembly and to take decisions on significant matters and issues. Health is, as I have said, one of the matters that have been devolved to Northern Ireland. The Government’s website says:
“This means that local politicians, instead of MPs in Westminster, make key decisions on how Northern Ireland is governed.”
It is most regrettable that after our last election in May, there is as yet no sitting Assembly and no Executive. However, in the absence of the Assembly, Ministers in office before the election continue to hold office and have decision-making powers. There is a working Minister of Health, Mr Robin Swann MLA of the Ulster Unionist Party. He has massive responsibilities. Our health service has been described as “broken” by the director of the Royal College of Nursing and as “extremely broken” by a leading ED consultant and many others. We are short of some 7,000 medical and nursing staff.
There were 2,794 abortions last year. In April 2021, more than 300,000 people, almost 20% of our population, were waiting for a first consultant appointment. On 31 March 2022, 156,270 patients were waiting, having seen a consultant, for a diagnostic test and 50.7% of patients were waiting more than nine weeks for a diagnostic test to find out whether they have conditions which may be very serious or even life threatening. Some 29.6% of patients have been waiting more than 26 weeks for a diagnostic test. Only 43% of all cancer patients start treatment within 16 days of an urgent GP referral for suspected cancer.
We have amazing cataract waiting times. I declare an interest because I have cataracts and am awaiting surgery, but the waiting time is four to five years. However, you are not allowed to go on the waiting list until your eyesight is so bad that you cannot drive. You wait, with deteriorating sight, until you cannot drive, and then you wait another five years.
Just yesterday, Minister Swann published an action plan setting out a programme of reform for the delivery of stroke and orthopaedic services. Northern Ireland has 25,526 people waiting for orthopaedic treatment. I declare an interest as I am on the list. They can expect to wait four or five years for surgery that will give them mobility, without which their physical and mental health will in all probability decline further.
Abortion has been made available within the law. As Minister Swann has stated:
“My Department does not dispute that women in Northern Ireland are legally entitled to abortion services. The legal advice that was received by my Department states that the Abortion (Northern Ireland) Regulations 2020 do not require my Department to commission the relevant services. Registered medical professionals can now terminate pregnancies lawfully.”
There is, as the Minister said, nothing in the legislation thus far that requires the independent commissioning of abortion services. Rather, they are made available through normal procedures.
Abortion is a costly business and profitable for those who provide the services. UK health reports that it costs £500 for the abortion pills you can take up to nine weeks of gestation, rising to about £800 for an abortion up to 18 weeks and about £2,000 after that. The Minister and his department are working hard to try to resolve the massive problems faced by our health system across the board.
If passed, these regulations would fundamentally alter the principles of the Good Friday/Belfast agreement, which created a sophisticated process for decision-making. As I state in this amendment, they
“make substantial constitutional changes via secondary legislation”.
They would allow the Secretary of State to bypass the Northern Ireland Assembly and the Executive Committee entirely. They are not in any way limited. However, the Northern Ireland Ministerial Code makes clear that the Northern Ireland Act ensures that significant and controversial issues are for the Executive to decide.
The regulations give broad, sweeping powers to the Secretary of State effectively to act as a Northern Ireland Minister without having been appointed as a Minister in accordance with the provisions of the Good Friday agreement and the Northern Ireland Act 1998 and without any accountability to the people of Northern Ireland. Effectively, they would allow the Secretary of State to take command away from the duly elected and appointed Minister of Health in the areas of abortion services and all the other areas mentioned in paragraphs 85 and 86 of the CEDAW report, from the Minister for Justice and, in education, the Minister of Education. The regulations would give the Secretary of State all the powers of those Ministers to allocate resources and do anything a Minister or department could do, and to provide financial assistance for the purposes of ensuring that the CEDAW recommendations, which we brought into domestic law, are implemented.
If these regulations were passed, the Secretary of State would be able to take these decisions in isolation, having no regard to the impact of his decisions on the allocation of resources for neurology patients, cancer patients, orthopaedic patients, patients with cataracts and other eye problems, and patients in all other areas of medicine. The Minister of Health is in office and working to try to manage the impact of Covid on our broken health service. Undoubtedly, brave decisions need to be made to secure greater efficiencies and allow more people to be treated more quickly; however, there is no need for the drastic, unaccountable powers over elements of government that would be given to the Secretary of State were these regulations to be approved.
Baroness Hoey (Non-Afl)
My Lords, I give my whole-hearted support to the amendment from the noble Baroness, Lady O’Loan, and thank her for tabling it. This is a free-vote issue, of course, and the proceedings here today are of huge interest to the people in Northern Ireland. There are not many controversial issues in Northern Ireland that can be defined as neither orange nor green and cannot be interpreted by anyone as sectarian. This is one such issue. On a lot of Northern Ireland political issues, I am sure I probably would not agree with the noble Baroness, Lady O’Loan, but this issue unites people across faiths and communities with different identities in Northern Ireland.
Up until 2019, as the noble Baroness, Lady O’Loan, has said, Northern Ireland had the right to decide its own laws on abortion. Then, some politicians here in Westminster decided that they could overrule the hard-won devolution settlement, and their campaigning was pretty tireless. But for me, this goes to the heart of whether devolution is to be meaningful. The Belfast/Good Friday agreement is meant to be the basis of all political decisions in Northern Ireland, and these regulations—and indeed the whole way the abortion debate has been handled by the Secretary of State—are, I believe, driving a coach and horses through that agreement.
I hope that Members of your Lordships’ House will actually take away the word “abortion” and not talk about abortion itself and their own personal views on the rights and wrongs of abortion, because this is much more fundamental. This is a fundamental constitutional change being proposed by regulation. The Secretary of State presented the regulations in the other place as changing the Northern Ireland Act in a limited and specific way, but that is simply not the case. These regulations set a precedent. They go right against the constitutional guarantee and give the Secretary of State power to make any decisions he sees fit, ignoring the will of the people of Northern Ireland.
Back in 2018, the Secretary of State said:
“it would not be appropriate for Westminster to seek to impose its will, or to be the arbiter of an issue that has long been devolved to the people of Northern Ireland.”—[Official Report, Commons, 5/6/18; col. 220.]
What happened? Why has he changed his mind? He has done a complete U-turn, and perhaps the reason is that he was being held prisoner by so many women actively campaigning on this issue. Now he wants to be the Minister of Health in Northern Ireland, or perhaps the Permanent Secretary of the Department of Health.
I genuinely think that the way this whole issue has been handled is shameful, and even more shameful when there are so many other crucial issues in Northern Ireland that the Government have chosen not to push forward. When it suits Her Majesty’s Government, they want devolution and they believe in devolution. When it does not suit them, they take away devolution, and that is what this is about today. Forget the issue of abortion: this is about the constitutional sabotage of devolution and the 1998 Act.
Baroness Suttie (LD)
My Lords, I speak in favour of the regulations before us this afternoon. As others have said, abortion is always a complex and highly emotive issue that is ultimately a matter of conscience for noble Lords. But in the debate this afternoon I think it is important to try to hold on to the facts and acknowledge why we are once again having to debate these issues. As the Minister set out in his opening remarks, we are debating these regulations because the Northern Ireland Department of Health has failed to make progress on implementing the 2020 regulations.
The 2020 regulations sought to bring Northern Ireland in line with the rest of the United Kingdom on reproductive rights for women and to ensure that the whole of the United Kingdom met its international requirements through CEDAW. I am very pleased that the Minister acknowledges the importance of adhering to our international legal obligations. In essence, we are debating two issues: the United Kingdom’s adherence to international treaty obligations, and the provision of equality of access for women in Northern Ireland to the same levels of reproductive healthcare as women can access in the rest of the United Kingdom.
For those colleagues who are concerned about the potential impact of these regulations on the devolution settlement in Northern Ireland, as a very firm believer in devolution, I believe that these are an exceptional set of circumstances that should not create a wider precedent. It would of course have been hugely preferable for the Northern Ireland Executive to have fulfilled their responsibilities directly following the adoption of the regulations in April last year. In that respect, I agree with the noble Baroness, Lady O’Loan. However, once again, Northern Ireland finds itself without a functioning Executive, so it is currently not possible to make progress in this regard.
The international treaty obligations in CEDAW were signed by the United Kingdom as a whole, so the Government in Westminster have a duty to ensure that the whole of the United Kingdom implements them in full. This debate is really about implementing a law that has now been in place for over two years. It should not be about reopening or unpicking what should be a settled matter. A woman’s right to choose in Northern Ireland remains in a precarious position. The reality is that women continue to be forced to travel to England for abortion services; some women, in certain parts of Northern Ireland, continue to purchase unsafe abortion pills.
Whatever one’s personal view on abortion, surely this is an unacceptable position. There is an urgent need to see consistency of services and rights to reproductive health across Northern Ireland. For this to be possible, it is important that the commissioning process be concluded as soon as possible, to ensure that services are fully accessible to all who need them. Can the Minister reassure us that the necessary funding will be made available, and give an indicative timetable for this to be concluded?
In summary, these regulations are about ensuring that every part of the United Kingdom adheres to our international treaty obligations, so that every woman in Northern Ireland will finally be entitled to the same level of reproductive healthcare as women in the rest of the United Kingdom. I therefore urge noble Lords to support these regulations and to reject the amendment to the Motion from the noble Baroness, Lady O’Loan.
The Lord Bishop of Blackburn
My Lords, I am conscious that it is not commonplace for Prelates to comment on matters that extend to Northern Ireland only. However, what made me reluctant to speak on this matter is the same driving force that has brought me to speak—the fact that this was, and should be again, a devolved matter. My desire and aim today is not to speak around the rights and wrongs of the matter but to state my discomfort that this debate is happening in this place at all.
I believe the mandate for decision-making on this matter lies in Northern Ireland, with the newly elected Executive. I would much rather see increased efforts towards their establishment than our making decisions on their behalf. Much was said in this place, and in print and online media, about the fact that the regulations we seek to amend today came through this House and the other place when there was no sitting Executive in Northern Ireland. I was one of those frustrated at the timing, and I feel that it happened when there was no sitting Executive precisely because they would never pass such legislation. It was imposed, and these regulations continue to impose on Northern Irish people in what I believe is an unacceptable way.
The point could not be made more clearly than in the first proposed amendment in the regulations before us:
“The fact that a matter has not been brought to the attention of, or discussed and agreed by, the Executive Committee of the Northern Ireland Assembly is to be disregarded”.
I am no stranger to legal language, but this does not make good reading. On top of this, we are also asked to support amendments which place financial demands on the devolved health service to fund decisions thrust upon it.
For these reasons, I am happy to see the amendment expressing regret from the noble Baroness, Lady O’Loan. I fully support it, because no word can better describe how I feel about these regulations coming to this place than “regret”. I am happy for those in Northern Ireland to disregard my comments if they are considered unhelpful or unsolicited, but for this House to put into statute that the views of the Northern Ireland Executive should be disregarded in this way seems to me wholly wrong.
Baroness Deech (CB)
My Lords, it is my firm belief that arguments about devolution are being used to disguise the fact that we are actually talking about human rights. The European Court of Human Rights has held repeatedly that access to abortion law is a human right. We do not always like it—only a week ago, some people were up in arms because the European Court of Human Rights put a spoke in the attempt to send people to Rwanda—but we have accepted it. Whether one likes it or not, there is a human right to abortion which women have been denied for a very long time in Northern Ireland. One would be more sympathetic had Northern Ireland not apparently made a mess of its health system—and of course, one recalls that not so long ago, illegitimate newborn babies were put in baby homes and taken away from their mothers. I cannot accept this excess care for the embryo when the actual live baby is then taken away from its mother.
Northern Ireland is clinging to us through the Northern Ireland protocol. It is only right that it should not have its cake and eat it. Northern Ireland must accept abortion; it is a human right. I strongly support the Motion before us, and I hope that we will not amend it.
Lord Morrow (DUP)
My Lords, I commend the noble Baroness, Lady O’Loan, on bringing this amendment to the Motion before your Lordships’ House today. In the event that she presses it, I assure her that my colleagues and I will support her.
I have set out my views on the 2020 abortion regulations and 2021 regulations before your Lordships’ House on earlier occasions. My opposition to the 2020 regulations is well known. The Secretary of State himself said in the other place last week that they
“go beyond what is in Great Britain”.—[Official Report, Commons, Delegated Legislation Committee, 16/6/22; col. 3.]
In April 2021, I said:
“The union has worked hitherto because Parliament has recognised that it cannot be used to impose a uniformity that undermines the key distinctiveness of the component parts.”
I said then that I thought that the 2020 and 2021 regulations
“do not provide grounds for overruling devolution or, more fundamentally, the understandings that make it possible to argue for the relationship that exists between the UK’s four component parts.”—[Official Report, 28/4/21; cols. 2269-70.]
I feel that even more strongly today.
It is extremely regrettable that we find ourselves talking about implementing the 2020 regulations, which were opposed by 79% of those who responded to the Government’s consultation in 2019 and which were not made with any involvement of the devolved Assembly and, as a result, any accountability to the people of Northern Ireland—citizens who have not been granted the right to decide their own abortion law through the representative process. My firm belief that this should be a matter dealt with by the Executive and the Assembly remains true.
Today we are discussing the 2022 regulations, which are already in place and give zero accountability to the people of Northern Ireland and fundamentally alter the Belfast agreement. Whether you agree with the 2020 regulations or not, the methods being used by the Government should make us all stop, pause and ask, “Is this the way we want our democracy operating?” For instance, would this be acceptable in a Scottish or Welsh context? I suspect not.
There is recognition by all three devolved Administrations that there are some matters that need to be dealt with centrally in a united manner; for instance, defence spending. The Northern Ireland Act 1998 recognised that there are times when it is appropriate for the Minister to direct the Executive, but these are narrowly defined in Section 26 as situations of national security or public safety, or where an action is needed under international law. We know that the Northern Ireland Office believes that the 2021 regulations do not fit any of these Section 26 criteria. It said that very explicitly last year in the Explanatory Memorandum, and it was for that reason that the Secretary of State gave himself new powers of direction.
The 1998 Act also acknowledged that matters that are significant to the Northern Ireland community are for the Northern Ireland Executive to decide. The law and policy on abortion fit this criteria, so, rightly, decisions in this area are for the Executive and not for the Minister of Health to make alone. Last year, the Minister took powers to make directions; this year, he has gone further in two respects: first, by saying he can make directions without any reference to the Executive, and secondly, by acting as if he were the Minister for Health and/or the Department of Health. The Secondary Legislation Scrutiny Committee said that these regulations give “extensive powers” to the Secretary of State, powers that have no accountability to the Northern Ireland electorate. This is a fundamental constitutional change proposed by regulation powers that the Minister confirmed last week he intends to exercise “relatively soon”.
These regulations set a precedent that we need to consider very carefully. They override the constitutional agreement that certain matters should be for the Executive and override the narrow criteria when the Secretary of State can act.
There are political questions to ask about why the Secretary of State is deciding to act now on this issue, when there was no action from the Government to make important decisions for Northern Ireland when the Assembly was suspended for three years. There are very practical questions to be asked and answered. The Secretary of State has made it clear that he intends to take these powers relatively soon, but when he does so how will his powers work alongside those of the Northern Ireland Minister of Health? Who will officials be responsible to and how will they take instructions from Westminster? What if there are conflicting instructions? How will the decisions the Minister says he is going to take affect the budget in the Northern Ireland Executive, and particularly other services that come under the Department of Health? What consequential budget decisions will need to be made by the Minister of Health because of the decisions made by the Secretary of State? How long will the powers last? Will these decisions be ongoing? Will the Minister of Health be constantly looking over his or her shoulder, wondering what decisions the Secretary of State may make in future years that could impact spending on policy?
In the other place, the Minister argued that questions about the budget were irrelevant because there had been a generous 2021 spending review settlement with more funds allocated to Northern Ireland than at any time since devolution. Really? I wish to draw your Lordships’ attention to the fact that over the period 2019-20 to 2024-25, the settlement will have been a real-terms increase of only 0.8%. I quote these figures from the 2021 spending review document. Since then, inflation has significantly increased, so it is right that the Northern Ireland Executive are cautious about spending, especially when that increase is compared to the 2.3% real-terms increase for Scotland and a 2.8% increase for Wales. Given this low increase, the Secretary of State may indeed find himself needing to use Regulation 5 to give grants or loans, and it is not clear how the Northern Ireland Executive will be able to fund any repayments. Nor is it clear how there will be transparency, or whether these decisions are good for the rest of the block grant or represent good value for money—a key Treasury principle. These are not theatrical questions. The Department of Health will be facing them very soon.
In summary, these regulations are counter to the devolution settlement. They set a precedent that should be a concern to the other devolved Administrations and will allow actions by the Secretary of State without any democratic accountability. Finally, this decision by government to push ahead with this issue further destabilises the devolution settlement.
Lord Robathan (Con)
My Lords, the moral dilemma of abortion is a fraught and complex one in which I do not intend to get too involved. In this country, it raises great passions; in the United States of America, it brings about conflict and leads to shootings, which I think we all regret. But it is the termination of life.
Personally, I believe that abortion is often necessary; it may be necessary for a great many reasons. However, I hope we would all regret that last year in the United Kingdom there were more than 200,000 abortions—I think that is right—which means that abortion has just become an extension of contraception, with all the dangers to mothers’ lives, apart from anything else, that go with it.
Although I may regret that, this debate is nothing to do with the morality of abortion. As we have just heard from several speakers, this is to do with the devolution of power to Northern Ireland. Some eight years ago, I worked in the Northern Ireland Office for a year. Devolution is very important. We know there are issues with it, but either we have devolved health to Northern Ireland or we have not. It seems to me that this is a matter of great principle. Notwithstanding any crusades in the House of Commons by one or two people, such as Stella Creasy, this is a matter that must be decided by the people of Northern Ireland. We should not be going there.
Lord Alton of Liverpool (CB)
My Lords, I fully support the amendment to the Motion introduced by my noble friend Lady O’Loan. I strongly endorse the remarks made by the noble Baroness, Lady Hoey, the right reverend Prelate the Bishop of Blackburn, and the noble Lords, Lord Robathan and Lord Morrow.
I say gently to my noble friend—for she is my noble friend—Lady Deech that, among the 30 articles of the 1948 Universal Declaration of Human Rights, there is no right to abortion. Article 3, on the other hand, guarantees the right to life itself. All the other rights are worthless without that paramount right to life.
It is fitting that this debate is taking place around an amendment that regrets this Motion because there is so much to regret in what Parliament is being asked to agree. We should register our profound regret for every life that will be lost because of this decision, at suborning the devolution settlement, and for measures that set aside ethical proprieties and are deeply flawed and frankly questionable, not least on the grounds of workability. These regulations are about more than just how abortion services are commissioned in Northern Ireland. They raise serious questions about devolution and highlight key constitutional challenges that go beyond abortion and should be of grave concern to your Lordships’ House, as we have heard. That is where I want to begin.
Today, the key question for your Lordships is this: should the constitution of this country be set aside on the basis of regulations alone, particularly when the regulations in question are vague and fail to set out how and when the power that they confer will be exercised?
I care about this deeply for a number of reasons. I led a delegation to see John Major when he was Prime Minister and urged him to make abortion a devolved matter—an argument that he accepted, as did Tony Blair. That delegation included leading figures from each of the constitutional parties then in the House of Commons, drawn from across the political divide. Indeed, for many years, I have been a parliamentary spokesman on Northern Ireland; I have come to respect and admire the people of Northern Ireland. I passionately believe that their voices deserve to be listened to, and that power-sharing through devolution holds the key to its future.
Each constituent part of the United Kingdom is permitted by virtue of devolution to take decisions that best meet the needs and political outlook of that part of this nation. The people of Northern Ireland have consistently elected to their Assembly people who take a different view concerning abortion than that expressed in other parts of the UK. Although attitudes and voting patterns in Northern Ireland may well change, the new Assembly has been elected only recently and this question is yet to be put to it. The clear constitutional imperative remains: devolved issues should be decided only by the devolved Administrations, who have been given the power to set policy and law for their area. It is arrogant in the extreme to overturn that principle, especially on an issue that is, for millions of people, not a marginal question but, as I have said, about the very right to life itself.
Regulation 2 permits the Secretary of State simply to bypass the Northern Ireland Executive and the Assembly. The Explanatory Memorandum states that
“a direction given under those Regulations must be complied with irrespective of whether any matter has been brought to the attention of, or discussed and agreed by, the Executive Committee of the Assembly.”
Even if a way forwards is agreed by the Northern Ireland Executive, or indeed the recently elected Assembly, the Secretary of State can simply make any direction he sees fit, even if it is in direct contravention of the decision made by the Executive or Assembly. Even if a majority of elected representatives in Northern Ireland disagree, they will be duty-bound to follow the decision of the Secretary of State. That cannot be right, and as a parliamentarian committed to the principle of devolution, I contest, as I have done in previous debates, this high-handed decision. Surely it would not be tolerated if it was in Scotland or Wales, and it should not be tolerated in Northern Ireland either. To set aside devolution and all it entails by statute would be bad enough, but to do so through regulation, regardless of whether it is technically legally permissible, is troubling indeed.
Lord Cormack (Con)
My Lords, it is impossible to have a pick-and-mix constitution. I approach this entirely from a constitutional point of view. My views on abortion are similar to those expressed by the noble Lord, Lord Alton, in his very thoughtful and thorough speech, but I do not want to follow him along that road.
As a democrat and a constitutionalist, I accept that abortion is entirely legal within England. I accept that it is entirely legal within Wales and Scotland. I accept, although I deeply regret it, some of the legislative moves on the gender issue that are being made in Scotland. All those years ago in Parliament I opposed devolution for Scotland, but that is over and done with. We are where we are. Therefore, we accept that the United Kingdom is united with the United Kingdom Government on the great issues—foreign policy, defence, et cetera. However, if we accept that we have devolution, it cannot be pick-and-mix devolution. Therefore, it is wrong for us to dictate to the people of Northern Ireland, whose views, so far as we can assess them, as referred to by the noble Lord, Lord Alton, a moment or two ago, indicate that they do not want this. We may think that is benighted. Many of your Lordships may think that it is wrong and would be entirely justified in taking that view.
But we have devolution. It is very important indeed that Northern Ireland gets its act together. We would not be debating this today had there not been three years without a proper Assembly and Executive in Northern Ireland, and we are now in another period where we do not have a functioning Executive. As one who loves Northern Ireland and got to know it fairly well when I was chairman of the Northern Ireland Affairs Committee in another place, I deeply regret this. I would say to my many friends in Northern Ireland that they should, please, get their act together—but we in this United Kingdom Parliament should not take back powers that we have devolved. That is what we would be doing; indeed, it is what we have done already.
Let us not forget that Northern Ireland has a much longer history of devolution than any other part of the United Kingdom, going back 100 years. We have decided that Northern Ireland should have autonomy in certain areas; for example, it should be responsible for its education and its health. I greatly admire my noble friend the Minister; he has done a great deal for Northern Ireland and relations within the United Kingdom, and he is a man with whom I do not disagree lightly. However, in all conscience—fundamentally this is both a constitutional issue and an issue of conscience—I cannot accept what the Government are asking us to do today.
I suspect a significant number of your Lordships will take a different view—that, of course, again, I respect —but I come back to where I started. If you have devolution, and devolve certain things to the constituent parts of the United Kingdom, you cannot mix and match. You have to be consistent with your principles. I believe that the only way of being consistent with our principles in this is not to support what my noble friend advanced but to support the line taken by the noble Baroness, Lady O’Loan, in her amendment.
Lord Clarke of Nottingham (Con)
My Lords, I did not think I would sit and listen to more than about 10 minutes of this debate, as I expected to hear a very familiar argument about the morality and legality of abortion, on which my views were long ago established. I have always been in favour of legalising abortion. Indeed, I am quite liberal and tend to go the liberal end of a woman’s right to choose. However, I have found myself listening to a very challenging debate that is not on that subject at all; it is on the question of what should be within the scope of the powers that we have devolved to the constituent parts of the United Kingdom.
The speeches have been extremely eloquent, if I may say so humbly and without being patronising; there have been some very moving speeches. However, I am not sure that they altogether satisfy the case for opposing these regulations. We are debating what the exact scope should be of what we have devolved to the different nations of the United Kingdom.
Lord McCrea of Magherafelt and Cookstown (DUP)
I commend the noble Baroness, Lady O’Loan, on her amendment. I can assure her that if it is pushed to a vote, I will be very happy to support it. I would like, however, to correct the noble and learned Lord, Lord Clarke, who has shown a somewhat inaccurate knowledge of what is happening in Northern Ireland. He said that there is one region within the United Kingdom where there is no abortion law. In actual fact, the very opposite is the truth: we have the most liberal abortion law of any region of the United Kingdom. If the noble and learned Lord wants to speak on the issue, it is best that he reads up on the reality of the situation, because his speech a few moments ago showed a total lack of knowledge of the reality on the ground in Northern Ireland in respect of abortion.
Lord Clarke of Nottingham (Con)
The availability of the service is much more restricted in Northern Ireland. If I said that the issue was the legality in Northern Ireland, that was a slip. There is no doubt that access to abortion is much more restricted in Northern Ireland than in the rest of the United Kingdom—that is the whole point of this debate.
Lord McCrea of Magherafelt and Cookstown (DUP)
But what he said was somewhat different—however, I want to move forward. I acknowledge that this is a very sensitive matter and different sides have deeply held views on it throughout the Northern Ireland community. The Secretary of State acknowledged that to the Seventh Delegated Legislation Committee in the other place last Thursday, but he then deliberately and defiantly—given the views held by many hundreds of thousands of people in Northern Ireland—sought to push through his regulation.
The Secretary of State also acknowledged that these regulations “go beyond” what is in Northern Ireland, in spite of the Government never having asked the people of Northern Ireland to give their express democratic opinion on this matter through the ballot box. Over the years, Northern Ireland has taken an approach to the protection of the unborn that is different from any other region of the United Kingdom—but that was regarded to be part of the beauty of devolution. This difference reflected the views of the people of Northern Ireland, which is what democracy is supposed to do: reflect the views of the people whom politicians serve.
The Secretary of State reminded the committee that “emphatic votes” on this ethical issue in 2019, 2020 and 2021 showed the will of the House of Commons to “implement abortion services” in Northern Ireland. That is factually correct, but this matter was devolved to Stormont—yet, in 2019, a group of MPs, none of whom were or are accountable to the people of Northern Ireland, decided to cast aside the devolution settlement and take it into their own hands. Sadly, their decision was aided and abetted by Members of your Lordships’ House. This happened in spite of the fact that we are daily told that the Belfast agreement must be upheld at all costs—yet, at the whim of the Secretary of State, to placate Sinn Féin and its fellow travellers, the fundamental principles of this international agreement have been altered. The protection of the unborn, which was cherished by the people of Northern Ireland, has been swept aside.
Earlier I noted that the noble Baroness, Lady Suttie, said that this is being done because of “exceptional” circumstances. That is interesting, because in Grand Committee tomorrow we will debate another devolved issue, in the Identity and Language (Northern Ireland) Bill, so where does this all stop? Is there any real reason for a devolved Government? Is this House really saying, “If you don’t do what we want, we will take the power from you. We will override your decision and make it for you”? So much for those who profess to believe in the Belfast agreement and devolution.
Lord Bellingham (Con)
Would the noble Lord agree that it would perhaps be better if HMG waited until the devolved Assembly and Executive got going again before a final decision is made?
Lord McCrea of Magherafelt and Cookstown (DUP)
I accept that we long for the devolved Administration to be set up in Northern Ireland, but we all know the reason why that is not happening at the moment. It is because of the forcing of the protocol upon the people of Northern Ireland, yet the heart of the Belfast agreement is that there has to be an acceptance and a willingness from all within the community of Northern Ireland, both the unionists and the nationalists, but the will of the unionist population has been totally swept aside. Therefore, we are ensuring that the will of the people—
Lord Cormack (Con)
It would appear that a majority of the people of Northern Ireland do not wish to see the protocol swept away—amended yes, but swept away most certainly not—and that is not a devolved issue. The noble Lord reprimanded my noble and learned friend Lord Clarke, and I must gently reprimand him to get his facts right.
Lord McCrea of Magherafelt and Cookstown (DUP)
Not one unionist representative within Northern Ireland supports the protocol. If the noble Lord, Lord Cormack, knows one, perhaps he wants to tell us who they are, and I will accept his—
Lord Cormack
A majority of people recently elected to the Assembly accept the protocol.
Lord McCrea of Magherafelt and Cookstown (DUP)
The noble Lord, Lord Cormack, has missed the point of the Belfast agreement. There must be a majority of unionists and a majority of nationalists. I am pointing out to the noble Lord—and I am not going to be deflected from the real issue that is before us we are talking about abortion—but I have to say to him, that as far as the protocol is concerned, and I emphasise it again, not one unionist representative returned to the Northern Ireland Assembly is there to support, or give support, or give credence to the Northern Ireland protocol.
Indeed, the damage to the Belfast agreement is clearly seen because Regulation 2 spells it out for us:
“the Executive Committee of the Northern Ireland Assembly is to be disregarded when determining what a relevant person could do for the purposes of paragraph (1).”
I trust that everyone understands that under this regulation the opinion of the Northern Ireland Executive is to be totally ignored, totally disregarded. Such is the arrogance of those who bring forth these regulations. Indeed, the present difficulties in establishing a new Executive in Northern Ireland are due to many law-abiding people in Northern Ireland feeling that their concerns have been disregarded, undermined and ignored.
This statutory instrument simply adds to such alienation and does grave damage to the restoration of devolution. The Northern Ireland Act 1998 makes it clear that on matters that are significant and cross-cutting, the Executive must take the decision and it cannot be left to an individual Minister to decide. I know that the powers granted to the Northern Ireland Executive are not limitless and that the Secretary of State for Northern Ireland does have power to intervene and directly administer. However, that power is also limited and is there to ensure that decisions taken are compatible with international law, having regard to the protection of public order or the vital issue of national security.
These regulations change the very substance of the Belfast agreement and the Northern Ireland Act. These regulations permit the Secretary of State to have absolute power without scrutiny or accountability. When the Minister replies perhaps he can tell us where the power of the Minister of Health stops and the power of the Secretary of State begins. If the Secretary of State commands a civil servant in the Department of Health to do something and the Minister of Health gives a contrary command, whose decision does the civil servant obey? Does this not put civil servants in direct conflict with their Minister?
Baroness Barker (LD)
My Lords, this has been a very wide-ranging debate, and I think it is important that we focus on the decisions that we are being asked to make today. I begin by commending the Minister for the clear, factual exposition of how we came to be in the position that we are in today. We are here debating these regulations because of a catalogue of failure of elected politicians in Northern Ireland and of officials to do something very basic: to ensure that any woman who needs or wishes to have an abortion can access it in Northern Ireland—for the avoidance of doubt, to coerce anybody to have an abortion in any part of the United Kingdom is against the law—and there has been a failure to do that.
I recommend that people read in Hansard the clear and factual way in which the Minister put forward the history of where we are and contrast that with some of the allegations made by the noble Baroness, Lady O’Loan. In her wide-ranging speech she made some very serious allegations. She said that in Northern Ireland there is abortion to term. She did not give any evidence that that has happened. She said that there is abortion on the grounds of sex. She knows that any healthcare worker who did so would be in contravention of their professional ethics. Again, she did not give us any examples. Noble Lords can contrast the evidence behind the two cases that have been made.
On what the noble Lord, Lord Cormack, said about picking and choosing, we do not, as a united kingdom, pick and choose the parts of international agreements that we uphold. It is important that having signed up to an international agreement to protect women and girls we throughout the United Kingdom stick to that.
The noble Baroness, Lady O’Loan, characterised providers of abortion services as people seeking to profit from other people’s misery. That is a world away from the work being done by organisations on a charitable basis to make sure that the current, wholly inadequate provision is, so far as they can possibly make it, accessible to all women in Northern Ireland. They know, because they meet them on a daily basis, that women who do not have money cannot get themselves to Great Britain, as 161 did last year, to get the care that they need; and 40 of those women were of under ten weeks’ gestation. It is quite clear that the provision of service is utterly inadequate. That is why it is important that the commissioning of services happens—the commissioning that we have been told the Northern Ireland Health Minister wishes to wash his hands of.
I say to the right reverend Prelate the Bishop of Blackburn—who I do not think has been involved in our discussions before—that I would take greater notice of the great constitutional outrage were it not for the fact that people such as the noble Baroness, Lady O’Loan, and the noble Lord, Lord Alton, have opposed every attempt to ensure that women anywhere have access to safe abortion. The views of the noble Lord, Lord Alton, are extremely well known. I can now almost write his speeches for him. I know that they will always include a reference to some poll that somebody has paid somebody to do to come up with the answer that he hopes they will find.
The important thing that nobody has said in all this is that the political failure in Northern Ireland has been particularly hard on women and girls, perhaps because of the non-sectarian consensus that the noble Baroness, Lady Hoey, alluded to. It is right that today we take this measure, which the Government have drafted in as narrow a way as they can, to make sure that the women and young people who have always been weighed down by the politics of the past in Northern Ireland have some hope for the future.
I hope that we will reject the amendment from the noble Baroness, Lady O’Loan, and that we will put this measure on the statute book as it deserves to be.
Lord Dodds of Duncairn (DUP)
My Lords, a lot has been said in this debate already and I do not intend to prolong proceedings unnecessarily, but I want to add a few comments about this set of regulations, because the most important aspect of it is the constitutional implications. This is a highly sensitive and emotive issue, and we have seen that on display in your Lordships’ House this afternoon. People have very strong feelings on both sides—I certainly know which side I am on. I believe that both lives matter.
That being said, I think that the issues that have come to the fore in relation to the breach of the devolution settlement of Northern Ireland—the precedent that that sets, the breach of the Belfast agreement—raise very serious issues. The noble Lord, Lord Cormack, was absolutely right. On whatever side you come down on any particular issue, if it is a matter that has been devolved, then the devolution settlement should be respected.
The noble and learned Lord, Lord Clarke, referenced that it was perhaps not foreseen that this type of situation could arise, but I have to say that these matters were foreseen at the time of the Belfast agreement in 1998 and indeed at the time of the restoration of devolution in 2007, because on those occasions the issue of abortion was deliberately referenced and discussed and made a devolved matter. The noble Lord, Lord Alton, referred to leading a delegation to a previous Prime Minister in which there was a cross-party, cross-community consensus that it should be a matter for the Northern Ireland Assembly. Therefore, it was entirely foreseen and foreseeable that Northern Ireland could legitimately have a different position from the rest of the United Kingdom. The argument that this needs to be a position which is the same across all four countries of the United Kingdom does not stand up to scrutiny or to the history of this matter and the very delicate balance of the Belfast agreement.
There is an alarming tendency—without discussing the merits of particular issues—to be very selective about the Belfast agreement as amended by the St Andrews agreement in 2007 whereby it now appears to be the view that majoritarianism is a good idea in Northern Ireland, but somehow for 99 years majority rule in Northern Ireland was unacceptable. We have not had majority rule in Northern Ireland since 1972 with the collapse of the old Stormont Parliament. For half of Northern Ireland’s existence, it has not been there.
Baroness Smith of Basildon (Lab)
My Lords, it is on days such as today, as the Minister may agree, that there is a feeling of déjà vu. I think he is the third Minister I have faced at the Dispatch Box on this issue, and the debate has been very similar to previous ones. I thank him for his very measured tone and the detail in his speech introducing this matter. I will not repeat the legislative background; noble Lords who have spoken both for and against will have heard what he said.
I suspect that there is a great deal of regret from the Minister in bringing this forward, because it is quite clear from the beginning of this debate—I looked up my previous speeches over three or four years—that Ministers were doing everything they could to encourage and support Northern Ireland to provide the services itself. There has certainly been no indication at all from the Government, as far as I am aware, that they wanted to be in this position. They wanted Northern Ireland to ensure that there was provision of services in the way the law requires.
I also thank the Secondary Legislation Scrutiny Committee, which has not been mentioned so far, which looked at the detail in its very helpful report. I hope the Minister’s department and other departments will take note of the comments made about the inadequacy of the Explanatory Memorandum. I have raised this kind of issue previously in the House. However, I commend the responses; once it was prompted by the committee, the department provided better, fuller and more detailed answers to the points raised. I hope it will become the norm that Explanatory Memoranda will provide more detail than we saw in this one, as the information was provided only later when the committee asked for it.
As we have heard, this is an issue where feelings run deep, as is any issue regarding abortion. It is significant that a number of the speeches made about the constitutional position of devolution came from Members who have already expressed a deep-rooted opposition to the principle of abortion taking place. In some ways, I commend the noble Lord, Lord McCrea, because there was an honesty in his speech, which, as he saw it, was about the rights of the unborn child, not the constitutional issues. For him, this is a matter of principle; he thinks that abortion should not take place and was quite honest about it. He did not deal with the wider issue, which the Minister dealt with in his speech and will no doubt deal with again at the end.
We heard noble Lords refer to the debate on Roe v Wade taking place in America; the noble and learned Lord, Lord Clarke, made a wise intervention on this point. There is always a danger that you end up in a ridiculous situation whereby, because of the actions of politics, women living in one state move to another or travel elsewhere to access services they were previously able to access in their home state.
That is what is happening in Northern Ireland. The noble Baroness, Lady O’Loan, said that abortion is available in Northern Ireland. Nobody is suggesting that no abortions have taken place. The Minister never made that point. The point is that, as previously agreed by your Lordships’ House, the provision of services is inconsistent, sporadic and not available to everybody who requires them. The noble Baroness shakes her head, but if that were not the case we would not need to be here today. As I said, time and again, the Government have provided opportunities for the Department of Health to bring forward proposals for the provisions required, as we have debated previously, but that has not happened.
I welcome the fact that the Government are still engaging with the Department of Health to ensure that there is still opportunity for services to be provided. However, I am conscious that, from what he and the Secretary of State in the other place have said, there is no intention to delay this matter further. I think the Government recognise this; as the Secretary of State said, “I fully suspect that we will have to provide these services.” Can the Minister say anything about the timescale? That would be helpful because this debate has been rather long and drawn out; there is an appetite for change.
A lot has been made of opinion polls and the views of people in Northern Ireland. I think the Minister will rely on them in his response, but I would point out that the 2019 internet poll, referred to several times, showed the majority of people not supporting the question about the imposition of changed abortion legislation by the Westminster Government. However, a 2020 poll showed that only 16% of people in Northern Ireland thought that no change to current abortion legislation was needed. A lot can depend on how the question is asked, but the idea that there is no appetite for change is wrong. Indeed, in the other place, Stephen Farry spoke about a vote in the Northern Ireland Assembly—he thought it was at the beginning of March—when a Private Member’s Bill that sought to adjust some of the existing legal provisions around access to abortion was defeated by a majority of MLAs. There is movement in Northern Ireland now and there are different views; we should take account of all of them.
We will support the regulations because it is the right thing to do. I welcome that the Minister has recognised the deep-seated views on this issue. However, in addition to my question on timescales, I have a second question about the extraneous services around abortion services. They are not a stand-alone provision. The provision of sexual health services and the whole wider landscape of reproductive sexual health is really important. I want to be assured by the Minister that, alongside the provision of abortion services, advice on contraception and sexual health will be provided. These things come as a package; they are not something to be seen in a vacuum. I hope the Minister can say something about that and about education on these issues, because that will be extremely important going forward. As I say, we should not see these services in a vacuum.
I thank the Minister for the way in which he presented his case. The noble Baroness, Lady O’Loan, will decide whether she wishes to put her amendment to a vote. If she does so, we will not support her; we will support the Minister.
Lord Caine (Con)
My Lords, I thank everybody who has participated in the debate on these regulations, and I am grateful to the number of noble Lords who expressed support for what the Government are bringing forward. We have heard a wide range of strongly held personal views, and varied contributions on all aspects of the regulations. The noble Baroness, Lady Smith of Basildon, referred to a sense of déjà vu; I think it was the late Viscount Whitelaw, when he was Secretary of State for Northern Ireland, who referred after one meeting to “déjà vu all over again”. I take on board the comments of the noble Baroness regarding the Secondary Legislation Scrutiny Committee, and I can assure her that my officials have returned to the committee with a number of additional pieces of information, which I am assured have been included in the Third Report, so I do take that very seriously indeed.
I shall take the opportunity to address a number of the points raised by noble Lords in quite a lengthy debate, although I fear that if I respond to every single point raised, the Chief Whip might come to the House tomorrow to cancel the Summer Recess, but I will do my best.
A number of noble Lords, not least the noble Baroness, Lady O’Loan, whom I know has very deeply held views on these subjects, have made heartfelt contributions on the provision of abortion services and the framework established in 2020, and the framework regulations introduced then. I appreciate and understand the views that have been expressed but, as the noble Baroness, Lady O’Loan, pointed out, Parliament has already decided on a number of occasions that abortion services must be provided in Northern Ireland, and by large majorities. Noble Lords referred to the 2020 framework regulations. I would just remind noble Lords that those regulations were passed in your Lordships’ House by 332 votes to 29, which is some indication of the will of the House on those issues. The focus of the Government, and of these regulations, is to ensure that Parliament’s decision, expressed on a number of occasions, to give women and girls access to abortion services in Northern Ireland, is properly and fully implemented. Although abortion is an extremely emotive subject, as the noble Baronesses, Lady Deech, Lady Suttie, Lady Smith and Lady Barker, made very clear, we must not lose sight of the fact that it is women and girls in Northern Ireland who are at the heart of these issues, and it is unacceptable that there are women and girls in any part of our United Kingdom who cannot access basic healthcare and whose access to services has been delayed for far too long. I agree with my noble and learned friend Lord Clarke of Nottingham, whose very wise speech I strongly commend.
Parliament has decided that women and girls in Northern Ireland should be able to make individual, informed decisions, with proper patient care and the provision of information and support from medical professionals, based on their own health and wider circumstances, similar to women and girls living everywhere else in the United Kingdom. I think that is very much the right decision.
I should like to reiterate that, as was made clear by a number of noble Lords, so many women in Northern Ireland are placed in a difficult situation by the lack of regulated commissioned abortion services. I referred in my opening speech to the very large numbers who still have to travel to Great Britain to access care, or have to access unregulated services in Northern Ireland. With the greatest respect to the noble Baroness, Lady O’Loan, the position cannot simply be dismissed as work in progress; it cannot continue in this way, as the noble Baronesses, Lady Barker and Lady Smith of Basildon, made absolutely clear.
A major theme of a number of noble Lords this afternoon has been the constitutional position and the importance of respecting the devolution settlement in Northern Ireland. I agree entirely with that, although I cannot avoid sharing the suspicion of the noble Baroness, Lady Smith of Basildon, that some—not all, I hasten to add—seek to use the constitutional argument as a screen for the fact that they oppose abortion in all circumstances. It is interesting listening to people invoking the Belfast agreement, some of whom have never supported it at all and others who have recently pronounced it dead. I assure noble Lords that I, for one, am a strong supporter of the Belfast agreement and have been since 10 April 1998 when that historic agreement was made. I have repeatedly said in this House and elsewhere that I regard it as the bedrock of all the progress that has been made in Northern Ireland over the past 24 years. I do not wish to see anything that puts the agreement and its success in jeopardy.
The right reverend Prelate the Bishop of Blackburn suggested, I think, that we are only making these regulations now because the Assembly is not sitting, and we can. I think I explained in my opening remarks the circumstances in which these regulations originated. The Assembly was not sitting, we had an amendment to the Executive formation Bill and since then, we have been working alongside the Executive, the Department of Health and the Minister of Health for a number of years, but we have simply made no progress. Therefore, it is not a question of doing this because we think we can do it at this stage; we have really run out of road on this issue.
A number of noble Lords referred to the pick-and-mix nature of devolution. I certainly do not wish to pick and mix when it comes to the devolution settlement— I think my noble friend Lord Cormack used that phrase. The fact is that Government and the Secretary of State remain under a statutory duty to provide access to abortion services. It is wrong to suggest that he is not under a statutory duty—indeed, he is found to be in breach of his statutory duties in court. He is in no way absolved from the duties imposed upon him by the executive formation Act 2019 by the restoration of devolved government in 2020, as I said in my opening remarks. Lord Justice Colton, in his decision in the judicial review brought by the Society for the Protection of Unborn Children, said the following:
“The clear will of Parliament was that if there was no Executive Committee established by 21 October 2019 then the relevant duties and powers come into existence without extinguishment consequent on events thereafter.”
It is clear that the Secretary of State remains under the obligation and duties that Parliament imposed upon him nearly three years ago.
Notwithstanding this, we have been repeatedly clear about our desire—as the noble Baroness, Lady Smith of Basildon, reminded us—to continue to work with the Executive, the Department of Health and the Assembly to ensure that these regulations are implemented effectively and in a way that works for Northern Ireland, consistent with the obligations on the Secretary of State that I have outlined.
The noble Lord, Lord McCrea of Magherafelt and Cookstown, asked about the accountability of the Secretary of State. Of course, as a Minister of the Crown, the Secretary of State will continue to be accountable to this sovereign Parliament of the United Kingdom, as will I in your Lordships’ House.
The noble Lord, Lord Dodds of Duncairn—I normally refer to him as my noble friend, because he is—asked about the team of experts that has been set up in the Northern Ireland Office. They are civil servants from the Department of Health and Social Care who are experts in these matters and have been seconded to the Northern Ireland Office for these purposes.
Returning to the Northern Ireland Executive, more than two years after the framework regulations were put in place, it became abundantly clear that the Department of Health was not progressing this issue and that even if it did, it would be blocked once it reached the Executive Committee. Our clear preference is that the Executive should drive forward these services. To that end, the Secretary of State has formally requested confirmation from the Northern Ireland Minister of Health that they will do so. Therefore, even at this late stage and with these regulations, there is still an opportunity for the Minister and the Department of Health to take forward the commissioning of services without the intervention of the Secretary of State. We are not, however, prepared to allow the provision of services to be delayed indefinitely.
The noble Baroness, Lady Smith of Basildon, asked about a timeframe, as did the noble Baroness, Lady Suttie. I cannot give an exact timeframe, as I am sure they will appreciate, but we are not prepared to let this run for much longer. The Secretary of State would not be taking on these powers if he was not prepared to intervene fairly quickly, but at this late stage there is still an opportunity for the Department of Health to take this forward. We hope that will be the case but if not, the Government are prepared to act very quickly.
A number of noble Lords, including the noble Lord, Lord Morrow, and the noble Baroness, Lady Suttie, asked about funding. The regulations enable the Secretary of State to make provisions about funding, but I reiterate what has been said and in doing so disagree with the noble Lord, Lord Morrow. The funding settlement in last autumn’s spending review was the most generous in the history of devolution in Northern Ireland—indeed, across the whole United Kingdom. It would be a devolved matter, and it would be for the Northern Ireland Executive and the Department of Health to provide funding.
Parliament made a clear decision in 2019, passed by large majorities, to place a duty on the Government to provide access to CEDAW-compliant abortion services in Northern Ireland. In 2020, the Government delivered a set of regulations to enable that to happen. I reiterate that the regulations were passed by a very large majority in your Lordships’ House. That was over two years ago. At every stage we have sought to ensure that services were delivered through the proper devolved channels, but we have been unsuccessful in so doing. The powers these regulations grant provide a mechanism to unblock the political obstacles which have been placed in the way of their delivery, in order that the Government can satisfy obligations placed upon them in 2019 and uphold the will of this sovereign United Kingdom Parliament. I therefore urge noble Lords to reject the amendment in the name of the noble—
Lord Dodds of Duncairn (DUP)
I am very grateful to the Minister for giving way. On a point of factual accuracy, he and others have referred to 2,793 abortions in Northern Ireland, but the latest figure given by the Minister of Health in Northern Ireland is, as of 13 June, 3,459. Can the Minister undertake that, once he has set up this team of experts, it will give up-to-date advice to the NIO on the factual position? There is quite a big difference between the figure cited today on the record and the actual figure as given by the Minister of Health in Northern Ireland, who is the Minister responsible.
Lord Caine (Con)
Of course—I am very happy to give my noble friend that assurance.
In conclusion, I urge noble Lords to reject the amendment in the name of the noble Baroness, Lady O’Loan, should she seek to test the opinion of the House, and I urge your Lordships to support these regulations.
Baroness O’Loan (CB)
My Lords, I thank all those who have spoken in the debate today, particularly those who have spoken with me on my amendment to the Motion. Like the noble Baroness, Lady Barker, I should like to provide a clear exposition of some of the facts raised today. I cannot answer all the points made without keeping your Lordships for too long.
The regulations are loosely and badly drafted. They give rise to a large number of questions, which the Minister has not answered. The devolved Government have acted in accordance with the Northern Ireland (Executive Formation) Act and the 2020 regulations. People do not have to buy unsafe abortion pills; they get them from their doctor now. Abortion is now available. The noble Lord, Lord Dodds, said that there have been over 3,500 abortions. If there had been no specific commissioning of health services, these women could not have obtained abortions in Northern Ireland without paying for them. However, the fact that they were able to obtain their abortions under the health service means that they have been commissioned by the health services. Northern Ireland abortion services are provided and paid for by Northern Ireland.
Product Security and Telecommunications Infrastructure Bill
Tuesday 21st June 2022
(2 years, 6 months ago)
Lords ChamberRead Full debate Product Security and Telecommunications Infrastructure Act 2022 View all Product Security and Telecommunications Infrastructure Act 2022 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 16-I(a) Amendment for Committee (Supplementary to the Marshalled List) - (20 Jun 2022)
“General principles relating to product security
(1) The provisions in Part 1 of this Act should be read alongside the general principles relating to product security as outlined in subsection (2).(2) The principles are—(a) in regard to the security of internet-connectable products and products capable of connecting to such products, manufacturers, importers and distributors have a duty of care towards their customers to secure their privacy and safety;(b) customers are entitled to have a reasonable expectation that manufacturers, importers, and distributors make sure their consumer connectable products meet minimum cyber security requirements before they are placed on the UK market;(c) manufacturers, importers, and distributors should be able to demonstrate an understanding of emerging security threats and a proactive, ongoing support programme to mitigate these risks and ensure that their products are safe by design.(3) In making regulations under Part 1 of this Act the Secretary of State must have regard to the principles outlined in subsection (2).”Member’s explanatory statement
This amendment would introduce a set of principles relating to product security into the bill.
Lord Fox (LD)
My Lords, I rise to move Amendment 1 in my name and that of my noble friend Lord Clement-Jones, who is sadly unable to be here today. Should your Lordships feel at times that I am going on a bit long, just think of the alternative: it could have been both of us.
I should first say in the spirit of co-operation that the aim of this amendment is wholly positive; it is designed to firmly support the intentions of the first half of this Bill—support which we heard right across your Lordships’ House at Second Reading. While introducing this part of the Bill, the Minister set out a clear need for improved security. He told us:
“The average UK household now has nine internet-connected devices, and over 50% of all UK households purchased an additional consumer connectable product during the pandemic.”
The danger to individuals is getting worse. As the Minister also said:
“In the first half of last year alone, we saw 1.5 billion attacks on connectable products—double the figure of the year before.”
With this rise in connectable devices, the Minister said:
“Thousands of people in the UK have been victims of cyberattacks.”—[Official Report, 6/6/22; col. 1033.]
I suggest that this is understating the situation—it must be tens if not hundreds of thousands—but frankly, we just do not know.
This is an international business, which preys on poor security and badly configured devices. Further, our household devices can be co-opted by sophisticated criminal or political hackers to present significant threats to our national infrastructure. That is why this part of the Bill is important; I think we all agree on that. For a connectable device to be secure, it needs to be set up right but then supported throughout its active life to meet the changing environment of security threats. We are all used to updating our laptop security regularly, but how many times have we updated other household-connectable devices? A baby alarm, for example, is never updated.
At Second Reading, I described my fruitless search within the Bill for a definition of the security support that a consumer might reasonably expect for consumer-connectable products in the house. This Bill takes the secondary-legislative route. Rather than set out what consumers should legally expect in terms of through-life product security support, we were promised some SIs, and we heard what the focus would be.
In a letter sent last week, the Minister gave the Government’s reasons for choosing those three areas; I will come back to them briefly. He wrote:
“we are starting with a focus on the three security requirements that will make the most substantial change to consumer device security at a proportionate cost to business”.
But why just these three? The Bill is heavily based on the Code of Practice for Consumer IoT Security, in which 13 security issues were highlighted. To be clear, the first two—“No default passwords” and
“Implement a vulnerability disclosure policy”—
match those of the Minister. Interestingly, on the third one, there is a big difference in language between the Bill—which mentions providing transparency on how long, at a minimum, the product will receive security updates—and the code, which says, “Keep software updated”.
But there are 10 other major areas. I will not list them, but the fourth is:
“Securely store credentials and security-sensitive data”.
The eighth is
“Ensure that personal data is protected”.
Why are those two not as important as the other three? I cannot fathom why those have been left out and the previous three selected. So, given the choice of 13—the Minister can look them up—what was the logic in choosing just those three and dropping the fourth and eighth in particular?
There is also the issue of changing technology. Without a set of principles, the Government’s aim is to chase technological development with a string of statutory instruments, simultaneously keeping up with the world’s most innovative companies and pitting their ingenuity against the world’s top criminals. Life is moving fast—for example, a recent issue of Wired announced the beginning of the end for passwords:
“At Apple’s Worldwide Developer Conference yesterday, the company announced it will launch passwordless logins across Macs, iPhones, iPads, and Apple TVs around September of this year. Instead of using passwords, you will be able to log in to websites and apps using ‘Passkeys’ with iOS 16 and macOS Ventura. It’s the first major real-world shift to password elimination.”
On that basis, this legislation will be partially obsolete before it is enacted.
I have one further technical problem for the Minister to explain. Once again, different bits of government are moving in parallel. A seemingly entirely different exercise—a consultation on app security and privacy interventions—was published in May this year. The suggested interventions include
“a voluntary Code of Practice for App Store Operators and Developers that is intended as a first step.”
Other possible future options set out in the document include
“certification for app store operators and regulating aspects of the Code to help protect users.”
The document then says:
“These proposals link into the National Cyber Strategy through requiring providers of digital services to meet appropriate standards of cyber security and developing frameworks to secure future technologies.”
No mention of this legislation is made.
So where does a connected device end and an app start? Where does the Bill stop and this new code of practice start? If I install my temperature control system, it will involve connected hardware and an app; which of these two pieces of government activity will cover my system, and how are they connected? The Government have not joined this up, and, once again, two things are going on with no connection to each other.
So, I borrowed some of the Code of Practice for Consumer IoT Security for this amendment, which sets out some of the principles. Proposed subsection 2(a) sets a simple obligation for “manufacturers, importers and distributors” to demonstrate a “duty of care”. Proposed subsection 2(b) sets out that
“customers are entitled to have a reasonable expectation that manufacturers, importers, and distributors make sure their consumer connectable products meet minimum cyber security requirements before they are placed on the UK market”.
Proposed subsection 2(c) calls for
“manufacturers, importers, and distributors … to demonstrate an understanding of emerging security threats and a proactive, ongoing support programme to mitigate these risks and ensure that their products are safe by design.”
The Minister would be hard-pressed to argue against these—and his planned SI on accessibility vulnerability is close to proposed subsection 2(c) anyway.
I would like to hear that the Government recognise the benefits that having clear principles in the Bill can deliver. I am sure that the Minister can see these benefits. Secondly, I am not proprietorial over the exact wording. We can use the time between Committee and Report to fine-tune and wordsmith those principles, but I hope that this is a constructive and helpful start.
Baroness Merron (Lab)
My Lords, I restate these Benches’ support for Part 1, which introduces a range of important powers and processes relating to the security of consumer-connectable products, including smart TVs, smartphones, connected baby monitors and connected alarm systems, all of which we use in our day-to-day lives. For me, the legislation that we seek to improve today is much needed and needs to move with the times and the way we live. For example, in 2006 there were just 13 million of these devices but in 2024, there is likely to be more than 150 million in the UK alone—a huge projected rise.
I am grateful to the noble Lord, Lord Fox, for introducing this sensible amendment, and to the noble Lord, Lord Clement-Jones, whose name is also on it. It seeks to introduce or suggest some guiding principles relating to product security. For me, the key principles are that manufactures, importers and distributors have a responsibility and a duty of care to meet minimum cybersecurity requirements and look forward to emerging security threats. It seems wise and sensible to include these, so I hope the Minister will take them into account. As the noble Lord, Lord Fox, said, the exact wording of the amendment does not have to be used; it is about the principles. Indeed, it is about not just principles but practice: the message given to consumers as well as to manufacturers, importers and distributors.
I know that in other legislation the Government are often nervous about using the phrase “duty of care”, but, as the Minister knows, there are very real concerns about data collection and privacy. I suggest that this is the very least that consumers should be able to expect. While it may be said that the other principles are not necessary to include, there have been several cases of manufacturers knowing about, yet failing to act on, significant security flaws. I feel this is something we need to guard against.
The Earl of Erroll (CB)
My Lords, I want to say just a couple of words because, having read this and listened, I think the amendment has a very good point. I like the concept of a duty of care, because if we do not have that, who are we worrying about? In fact, Clause 7, on “Relevant persons”, is all about the manufacturers, importers, distributors, et cetera, with nothing about the customer, the poor person who is going to get hit by it. It is a very good idea to put that in at the beginning, setting down some principles and duties, because the other trouble is that by the time that we have done all these bits and pieces, made the regulations and the provisions, we are always acting after the event. What we need is a bit of proactivity, and we get that in this suggested new clause, because manufacturers, importers and distributors would have to make sure that products met certain minimum requirements. They would need to understand what “emerging security threats” there were; in other words, thinking ahead to the next stage and not just saying, “Oh, well, it complied with those things last year”, by which time the horse has bolted and we are far too late. So, I like it.
The Parliamentary Under-Secretary of State, Department for Digital, Culture, Media and Sport (Lord Parkinson of Whitley Bay) (Con)
I am grateful to the noble Lord, Lord Fox, and, in his absence, the noble Lord, Lord Clement-Jones, for their Amendment 1 and for the wholly positive intention with which it has been tabled. I was grateful to have had the opportunity to talk to them about it before Second Reading as well. As the noble Lord set out today, he has argued that customers deserve some high-level principles setting out the security protections they should expect when purchasing consumer-connectable technology. In fact, Amendment 1 goes further, as noble Lords have noted, and would require manufacturers to owe their customers a “duty of care” to protect them. We are not as keen as the noble Earl, Lord Erroll, on that.
The first problem we have with a duty of care is that it could give consumers a false sense of security. If consumers buy well-designed technology products which meet the best standards, it considerably lowers risk, but with cybersecurity there is no such thing as zero risk: the most aggressive and well-resourced hacker will find a way. Somebody may have a quality product, but have they secured their wi-fi router? Do they have some legacy technology on their network? Manufacturers of a single device do not control the whole range of apparatus which constitutes the attack surface so cannot always provide an absolute security warranty, and they cannot always predict the next attack vector.
The second problem we have is that we have learned that the security of devices is best served by standards rather than principles. If one sets standards, one can send a device to a laboratory and assure oneself that those standards have been met. If one sets principles, that does not apply. That is why the Bill is designed to give force to standards. Those standards, developed here in the UK and now adopted by Governments and jurisdictions across the globe as well as by international standards bodies, are widely recognised significantly to lower risk for consumers.
Of course, we believe that the responsibility for the security of connectable products most effectively lies with the manufacturer. We expect manufacturers to take security seriously, to implement measures to develop and maintain an awareness of the security of their products, and to be up front with customers about the security support they can expect. We have tried voluntary compliance, with our code of practice which was published in 2018. We now need mandatory requirements, and that needs specific security requirements that can be independently assessed. The legislation must enable the Government to keep pace with market dynamics and the changing technological landscape—as the noble Baroness, Lady Merron, said, it is important that we move with the times. The flexibility to be able to set different security requirements for manufacturers, for importers and for distributors is key to this.
Amendment 1 in the form drafted would place an equal weight on the duties of each of these three groups to secure products. Compelling the Secretary of State to have regard to this general duty could constrain the Government’s ability to set specific security requirements in the future. Crucially, these principles could restrict the use of powers in this part of the Bill, working against the Government’s ability to bring this regime into force and impeding our ability to keep that regime future-proof. I should also say to noble Lords that industry and consumer groups have not raised the need for general principles such as this. Our efforts to engage and communicate our intentions have been clear, and the requirements we have set out for the relevant persons have been widely understood and are in line with international standards.
The noble Lord, Lord Fox, asked why the Government have chosen these three specific security requirements rather than others. During the consultation in 2019, we explored a number of options including mandating that all consumer-connectable products meet all 13 guide- lines in the code of practice. They are all important, but the majority of respondents supported the option that the top three security requirements represented the most appropriate baseline, by balancing the important requirements that are testable, being applicable across a range of devices and creating the right incentives to improve security in these products. That is why the Government are initially mandating the implementation of security requirements that will make the most fundamental impact on the risks posed by insecure consumer-connectable products for consumers, businesses and the wider economy.
The noble Lord also asked about where products end and apps begin. The powers in Part 1 allow Ministers to set out requirements that include products and software. The proposals in the consultation he mentioned relate to those who operate app stores. So, while I acknowledge the good intentions behind it, I hope I have been able to set out why the Government feel that this amendment—
Lord Fox (LD)
I thank the Minister for giving way. That does not answer the question of where an app starts. If I am downloading Nest for my heating system, I am getting it from an app store, so where is the regulation coming? Is it the app that is coming from the app store, or is it the connectable device law that is coming through here? In which case, I think some explicit connectivity between the apps that run the connected devices needs to be written into the Bill.
Lord Parkinson of Whitley Bay (Con)
Perhaps, if the noble Lord is happy, we can explore this. The example he gives, as he knows, includes software and technology. Perhaps we can have a detailed discussion where we can work through some of those examples. I would be very happy to talk to him about them because on the question he poses the line is drawn in a different place depending on the product and its nature.
The Earl of Erroll (CB)
The Minister talked about standards a moment ago. If we are going to rely on standards, who is writing them? I presume that he is talking about British standards; to write a standard will take a year or two. I hope that the Government are going to fund it. We got no help from them in trying to fund stuff around age verification, even though that was core to the Digital Economy Act. If we are going to elevate it to an international standard, that will take another year or two, so we will not see any action for a long time if we are going to rely on externally written standards. I have chaired two BSI standards so far, and it does not happen just like that.
Lord Parkinson of Whitley Bay (Con)
Some of the standards in this area have been set in the UK and have already been adopted by other jurisdictions, so I hope that we can give the noble Earl some reassurances. While I acknowledge his point about the time it takes for these to be adopted internationally, in some areas the UK is setting the way, and these are being picked up across the globe.
As I said, while I note the good intentions behind Amendment 1, these are the reasons why the Government are unable to support it. However, I am very happy to pick up the questions about apps and products with the noble Lord and others who wish to join that conversation. I hope that, for now, the noble Lord will be content to withdraw his amendment.
Lord Fox (LD)
My Lords, while that was a relatively disappointing response, I am pleased that we can have the discussion about apps. I thank noble Baroness, Lady Merron, and the noble Earl, Lord Erroll. I think he put his finger on it. If we are to keep pace with the speed of change only through a standards regime without making the companies delivering these products in some way responsible—whether through a code of practice or a duty of care, I am not quibbling—there is no way that a standards regime can keep pace with the innovative speed that international crime is running at on cybercrime.
The idea that we can chase this down the road is wholly wrong. I ask the Minister to sit down with the department and perhaps we can come up with a different way of doing it. I am totally agnostic about how we go about it, but some sense that we are not just chasing this needs to be in this Bill, otherwise it is going to be after the fact. That said, I am happy to beg leave to withdraw Amendment 1.
Lord Bassam of Brighton
Member’s explanatory statement
This amendment strengthens the duty on the Secretary of State to publish regulations introducing security requirements.
Lord Bassam of Brighton (Lab)
My Lords, I am happy to move Amendment 2 in this group and will speak also to Amendment 4. I am grateful to the noble Lord, Lord Fox, for signing up to our Amendment 2. Part 1, as we have said, represents a step in the right direction on product security. The Bill is, as is increasingly the case with this Administration, a general framework Bill which will have much of the detail filled in later by regulations—a point that the noble Lord, Lord Fox, among others, has persistently made, and we have made from our Benches.
Noble Lords might say that Amendment 2 is a rather crude way of discussing the processes and timescales attached to the regulation-making powers in this part of the Bill but, as was mentioned in the previous group, we need much more information about when these regulations are going to be brought forward. Have some already been drafted? If so, can we see them in advance of Report and certainly before Third Reading? If not, why not? Do any of them need to be consulted on, and if so, what implications will this have on the implementation of new rules and systems? This is, as we have heard before, a time-critical Bill so the regulations are time critical as well and, we argue, need an early airing.
Colleagues in the Commons expressed concern that it has taken too long to get to this stage. We, too, regret that the Government have not worked to introduce some of these measures at greater speed and that more of the detail is not in the legislation, a point which the noble Lord, Lord Fox, eloquently made earlier. Surely it would have been possible to do this, given that the Bill was carried over from the previous Session.
Turning to Amendment 4, it
“seeks to place certain product security minimum standards, including the prohibition of so-called ‘default” passwords, on the face of the Bill.”
We think this is an important amendment. I credit Which? as where it draws its inspiration from. It is right that we have some core security principles in the Bill. We know that the Government have form on overpromising and underdelivering. Surely these important security matters should not be left to the whim of the Secretary of State at an undetermined point in the future. This process provides a perfectly good opportunity for us to enshrine the requirements in primary legislation, whether in the form of Amendment 4 or Amendment 5 or something else. We believe that there is a strong case for action
Lord Fox (LD)
My Lords, I will speak to Amendments 3 and 5 and in support of the other two amendments in this group. All these amendments refer to Clause 1 and seek to add some specificity to its general nature. The first amendment in my name and that of my noble friend Lord Clement-Jones is Amendment 3. This inserts a new paragraph (c) into Clause 1(1), adding the text
“children where they are not primary users of products but are subjects of product use”.
Why is this necessary? Here I am indebted to a report on cybersecurity, the UK Code of Practice for Consumer IoT Security produced by the PETRAS National Centre of Excellence for IoT Systems Cybersecurity. Noble Lords may be aware of this group; it has a very strong record in this area. It is a consortium of leading UK universities dedicated to understanding the critical issues of the privacy, ethics, trust, reliability, acceptability and security of IoT. I commend this organisation to the small number of noble Lords in this Chamber interested in this area.
This report highlighted, among other things, the importance of children’s connected toys receiving the necessary scrutiny, due to the implications of embedded cameras and microphones, with the aim of ensuring the child’s and the parents’ protection and right to privacy. Such devices include a wide range of everyday artefacts with internet connectivity intended for use by children or in caring for them, such as interactive toys, learning development devices and baby or child monitors.
These connected toys and tools have the potential for misuse and unauthorised contact with vulnerable minors. The British Toy & Hobby Association has responded by offering a range of guidance notes and by interpreting the code of practice, but with SMEs manufacturing most of these devices, there is much more to be done to ensure that those organisations are sufficiently informed and equipped to produce and market toys that are secure.
Security is not straightforward, as the Minister has already pointed out. While these devices offer a range of advantages through their connectivity, they also potentially expose children and their families to risks that have not yet been fully articulated to many of the consumers who are buying these toys.
A real-life example is that the toy giant Mattel launched Hello Barbie. The Minister may be familiar with it—I do not know. This was as far back as 2015. It was a very innovative toy which it launched with a start-up business called ToyTalk. The principle of this toy was that it could converse using internet connectivity with speech recognition, so as well as talking it could listen. Hello Barbie also allowed parents to log in later and eavesdrop on their children’s conversations with their toys. I will leave your Lordships to decide the ethics of that.
But this connectivity raised some concerns, primarily around who could listen in and record these devices and store conversations and behavioural and location data, and for what purpose this data could be used. Toys like these are now prevalent and they raise significant questions about the appropriate support and guidance for the toy manufacturers, which understand an awful lot about conventional safety—they know how to make physically safe toys—but do not have a track record on developing informationally and data-safe toys because they have never been asked to do that before. This is a new venture for them, and it requires a totally new set of skills and standards, as the Minister might say.
As technology evolves hacking is increasing in sophistication, so it is necessary to keep moving forward. The challenge for cybersecurity in remaining ahead of the risks is inevitably a technological one, and the Minister may remember that the Hello Barbie toy, having been launched and lauded for its security, was ultimately found at some point to have serious security issues. Even that toy, from a very large manufacturer, fell foul of the progress of information crime.
Nevertheless, it is clear that today some toy manufacturers are releasing connected toys without adequate safety and security features. This is a competitive and dynamic marketplace—a lot of it is to do with price—and first movers are rewarded. In addition, the skillset and knowledge base, as I have just said, for conventional toy safety is mismatched with these new toys and we need to find a way of addressing that divergence. This is going to require investment and new learning and will not happen unless the toy manufacturers are required to do it.
Secure software development and cybersecurity are novel demands on this sector. However, the fact remains that these toy manufacturers are potentially placing consumer safety and privacy at risk. It does not matter whether this occurs due to the immaturity of the sector, market pressures or the lack of sectoral attention to the problem.
In the view of the Petras report,
“there are no indications that this will be addressed through market forces. Instead, the certainty of legislation to maintain standards would level the playing field and make clear for SMEs where they need to invest to make their toys market ready.”
Thus, more than the technological challenge of staying ahead of hackers, what is salient here are the challenges to the implementation of basic security features in manufacturing such as basic authentication and encryption, without which children’s safety and security is at risk.
This amendment explicitly places child security front and centre in this Bill. In other legislation involving the internet and digital issues, such as the Online Safety Bill, the Government have imposed more onerous duties on those delivering services to children than to adults. This amendment would be entirely consistent with that approach—very much in the spirit of understanding that our children and young people are more vulnerable and therefore need more protection from harms.
I turn next to Amendment 5. The eagle-eyed among your Lordships will spot that it is very similar to Amendment 4, proposed by the noble Baroness, Lady Merron, and set out very elegantly by the noble Lord, Lord Bassam. In fact, I would suggest that, largely, its construction is better than ours because they managed to do the same thing in fewer words. I will speak to Amendment 5 but my comments apply to Amendment 4 as well.
Amendment 5 seeks to ensure that:
“Regulations under this section must include provision that all security requirements specified in accordance with this Act are included as essential requirements in statutory conformity assessments and marking procedures under the Radio Equipment Regulations 2017 … and in any other such assessments and procedures applicable to relevant connectable products.”
I am speaking to the spirit of both these amendments. Amendment 5—similar to that of the noble Lord, Lord Bassam—follows on from the advice and help of Which? I thank that organisation, which has really been at the forefront of the consumer issues involved. In essence, the amendment picks up on three of the issues that the Minister tells us will be dealt with in SIs as soon as the Bill becomes an Act, but it takes the rather stronger approach of placing them in the Bill.
Paragraph (a) of proposed new subsection (2A) goes further than the general principle in specifying that passwords are not to be weak. As Which? explains, many smart products push the user to create a password themselves, rather than use a default password. However, they then allow weak and easily guessable passwords to be created, meaning that the risk of compromise stays high.
One of the outcomes of this amendment would be the introduction of a requirement for responsible password policy guidance to be adopted by the industry to ensure that security liability is not simply passed from the device manufacturer to the consumer. The Bill and associated guidance should be amended to clarify that every individual device must have a unique or user-set password that meets effective complexity requirements.
Paragraph (b) of proposed new subsection (2A) seeks to avoid the risk of disclosures going into a black hole or taking many years to fix. The Bill and associated guidance should be amended to make clear what is required of manufacturers, importers and distributors on provision of disclosure policy information, particularly around vulnerabilities. The appointed regulator should also clearly define and distribute a risk assessment framework for vulnerabilities that removes any sense of subjectivity and ensures that the response is effectively mandated.
Paragraphs (c) and (d) of our proposed new subsection concern the length of time a product is supported. The Government should introduce mandatory minimum support periods for smart products and consider whether these periods should reflect how long consumers, on average, continue to use such products. There is a precedent here. New ecodesign and energy labelling requirements came into force in England, Scotland and Wales in 2021. They include a requirement for electronic display items, including televisions, to be provided with firmware and security update support for a minimum of eight years after the last unit of a model has been placed on the market. A consistent approach to support periods for a range of products therefore needs to be considered, and it has already been considered in this other legislation.
Customers need absolute clarity on the support period manufacturers will offer, so that they are able to make more informed purchasing decisions. There must be a clear definition of what the “point of sale” means and how this relates to the definitions of “supply” in Clause 55. Without clearer specifications on what form the transparency requirements will take, there is a risk that this information could be hidden, obfuscated or even mislead. This amendment is designed to probe the Government’s thinking on these very important issues.
Finally, and very briefly, as a signatory to Amendment 2, I give it my full support.
Lord Parkinson of Whitley Bay (Con)
I am very grateful to noble Lords for setting out the cases for Amendments 2, 4 and 5. Since January 2020 the Government have been clear on introducing security requirements based on the three guidelines to which I referred in the previous group.
The commitment to set requirements has been made in response to consultations, published strategies and indeed to the Explanatory Notes to this Bill. Our notification to the World Trade Organization also contained reference to some of these documents. We have put manufacturers, trade bodies and industry representatives on notice. Supply chains are long and surprises unwelcome, so the Government have been very clear on whither we are heading.
Amendment 2 would remove any discretion the Secretary of State has to make regulations. I appreciate that the intention behind tabling it is to explore this issue, and I hope I can assure noble Lords that it is not needed. The regulations will be made, and swiftly. Indeed, we have already consulted on them, in 2020, which I hope gives noble Lords some reassurance that we intend to move swiftly in this area.
Amendments 4 and 5 would insert specific security requirements into the Bill. As several noble Lords mentioned at Second Reading, it is important that technology regulation enables the Government to respond to changes in threat and technology, and to the regulatory landscape. That is precisely why the Bill does not contain details of the requirements that the Government have assured industry they will set out.
Lord Fox (LD)
Perhaps the Minister should consult whoever drew up the legislation that managed to mandate that televisions should be updated for firmware and software for up to eight years after they have stopped being manufactured. Clearly, those people managed to find consensus among the industry—or decided to ignore consensus—and deliver something. If it can be done for electrical display devices, such as televisions, I do not see why it cannot be done here if there is a will to do it. However, I think the Minister is telling us that there is no will to do it.
Lord Parkinson of Whitley Bay (Con)
The noble Lord referred to mandatory minimum support periods for electronic display items and the Ecodesign for Energy-Related Products and Energy Information Regulations 2021. It is not quite correct to say that those requirements are applicable. They ensure that the last available security update continues to be available for at least eight years after the last unit of a product has been placed on the market but the requirement does not ensure that manufacturers continue to provide new security updates over that period to ensure that the product remains secure in response to changing threats.
Lord Fox (LD)
I did not say that those requirements are applicable; I implied that they are analogous. Frankly, the fact that there is some mandating of security support after the product has stopped being manufactured is a heck of a lot better than the situation for all the connectable devices we are currently talking about, where there is no requirement at the moment.
Lord Parkinson of Whitley Bay (Con)
I do not think that they are quite analogous. As I say, it is about the requirement to keep the last available updates available to consumers for eight years rather than evolving them. We do not yet consider that there is sufficient evidence to justify minimum security update periods for connectable products, including display equipment—certainly not before the impact of the initial security requirements is known.
It is important to stress that, as consumers learn more, they will expect more. This will drive industry to respond to market pressure. If the market does not respond to this effectively, the Government have been clear that they will consider the case for further action at that point, but we think that consumer expectation will drive the action we want to see in this area.
Amendment 3, tabled by the noble Lords, Lord Clement-Jones and Lord Fox, refers to children. All noble Lords will agree, I am sure, that protecting children from the risks associated with connectable products is vital. I assure noble Lords that the security requirements we will introduce are designed with consideration for the security of all users, including children, alongside businesses and infrastructure. The Bill already gives the Government the flexibility to introduce further measures to protect children, whether they are the users of the products or subject to other people’s use of a product. We therefore do not think that this amendment is necessary as this issue is already covered in the Bill.
The Bill, and forthcoming secondary legislation, will cover products specifically designed to be used by or around children, such as baby monitors and connectable toys; they include Hello Barbie, which I was not familiar with but on which I will certainly brief myself further. However, we recognise that the cyber risks to children are not limited to the connectable products in the scope of this Bill; indeed, a lot of the issues referred to by the noble Lord, Lord Fox, were about the data captured by some of the technology, rather than the security of the products themselves. That is precisely why the Government have implemented a broader strategy to offer more comprehensive protection to children—including through the Online Safety Bill, to which the noble Lord, Lord Bassam, referred.
I hope noble Lords will agree that Amendment 3 is not needed to make a difference to the Bill’s ability to protect children from the risks associated with insecure connectable products—this is already provided for—and will be willing either to withdraw their amendments or not move them.
Lord Bassam of Brighton (Lab)
My Lords, this has been a useful and interesting exchange.
In my lordly world, “may” and “must” are sort of interchangeable; they were a useful peg on which to hang our discussion about the statutory instrument nature of this piece of legislation. I am somewhat reassured by what the Minister had to say about that, and acknowledge that some of the regulations were brought forward and consulted on at an earlier stage. However, we on this side of the House—I am sure that I speak for the noble Lord, Lord Fox, as well—want to see increased transparency throughout this process. So much of what is in front of us will be in secondary legislation; it is essential that we, the industry and the sector are properly consulted so that we understand exactly what we are dealing with. I make that plea at the outset.
I was pleased to hear what the Minister said about children as the primary users of particular products. I am glad that we have got beyond the “Peppa Pig” world that the Prime Minister occasionally occupies and are giving this issue proper, serious consideration. It certainly needs to be that way.
I am not entirely convinced by what the Minister said on Amendment 4. I look at our amendment; it is pretty basic, actually. It is hard to argue against setting out a particular prohibition in legislation. The ones that we have picked out for prohibition and restriction are quite important and essential. Of course, the Minister is right that those subjects will change and technology will overtake the words we use. We understand that point but we are trying to secure some basic minimum standards and protections here. Clearly, we will retreat with our amendment and give it some further thought before Report, but we may need some further persuasion on this. That said, I am quite happy to withdraw Amendment 2 and not move Amendment 4.
Member’s explanatory statement
This amendment would mean regulations with the power to deem compliance with security requirements were subject to the affirmative resolution procedure, as recommended by the DPRRC.
Lord Fox (LD)
My Lords, in his response to the Minister, the noble Lord, Lord Bassam, talked about transparency. The Minister said that he hoped we were reassured by the presence, and indeed the draft, of particular regulations. More specifically on the point made by the noble Lord, Lord Bassam, we would be reassured if the Minister were prepared to share those drafts with Her Majesty’s loyal Opposition and those of us on this Bench, but the Minister has set his face against pre-publishing draft regulations so that we can have a chance. That trust will come if we are trusted in this process, but it does not come for nothing.
I rise to speak to these—whatever the collective noun for amendments is; perhaps a raft or a shedload—amendments, all of which are around delegated powers and secondary legislation, and to move Amendment 6. As we have discussed, in Part 1,
“The core provision is clause 1, which allows the Secretary of State to make regulations specifying the requirements that are to apply for the purpose of protecting or enhancing the security of internet-connectable products made available to consumers in the UK. The security requirements can be applied to … relevant persons.
Clause 3 allows the Secretary of State to make regulations providing that a relevant person is to be treated as complying with the security standard if specified conditions are met. No limits are imposed on the circumstances in which this power would be capable of being used. Subsection (2) provides that the specified conditions may include, “among other things”, compliance with specified standards. But this does not limit the circumstances in which this power may be exercised.
The explanation for the power is given in paragraphs 20 to 22 of the memorandum. The point is made that improving the security of connectable products is a critical global issue”—
which we have discussed,
“and therefore it is likely that many other countries and international standards bodies will introduce standards similar to or aligned with the security requirements imposed under this Bill. The purpose of the power is to allow products which meet these alternative standards to be excepted from the regime under this Bill, provided that those standards achieve equivalent security outcomes and do not weaken the regime established by the Bill.”
Are noble Lords still with me? The Bill’s
“powers will also facilitate mutual recognition agreements and therefore help the UK to avoid placing an undue burden on industry by restricting the free flow of international trade.”
I think we all can see this. I agree with the Delegated Powers and Regulatory Reform Committee,
“that this provides a reasonable explanation for the power contained in Clause 3, it does not explain why it is considered necessary or appropriate for the power to be at large and not limited so that it can only be used where a product is subject to an alternative security regime imposed outside the UK”
and that the Minister needs
“to explain whether the failure to limit the powers in this way is inadvertent; and, if not, why (whether by reference to technological change or otherwise) it is considered necessary to draw the powers more widely than indicated in the memorandum.
Regulations under Clause 3 are subject to the negative resolution procedure. That is based in part on the fact that the regulations will not reduce the effect of the legal framework. But that assumes that other international standards will apply instead.”
This amendment puts forward the DPRRC’s recommendation that
“the affirmative resolution procedure is more appropriate if the width of the regulation-making power is to be retained.”
The alternative is for the Government to narrow that regulation power.
Amendment 9 focuses on regulations under Clause 9(7), which are subject to the negative resolution procedure. This amendment implements the DPRRC recommendation that
“the affirmative resolution procedure is more appropriate if there are to be no limits on the circumstances in which the duty under clause 9 to provide a statement of compliance may be waived.”
Then we have tabled an amendment that removes Clause 9 altogether. Clause 9 is designed to take power to except manufacturers from the duty to provide a statement of compliance. The clause
“requires manufacturers to provide a statement of compliance when a product that is subject to security requirements is made available to the UK. Subsection (7) of clause 9 confers a power by regulations to provide that a manufacturer is to be treated as complying with this requirement if specified conditions are met.
The explanation in the memorandum links this power to the power in Clause 3 to treat a relevant person as complying with a security requirement.
‘Where the government has recognised another standard as being equivalent to compliance with a security requirement using the provisions of clause 3(1), it may be appropriate under certain conditions, for instance where the government has entered into a mutual recognition arrangement with another regime, for the duty to ensure that a product is accompanied by a statement of compliance to be waived for relevant persons in relation to products that meet that standard.’
However, this limitation on the circumstances in which the power will be used is not reflected in clause 9(7) itself, which simply confers a power to treat the manufacturer as complying with the duty to provide the statement of compliance ‘if specified conditions are met’, without any indication of or limit on what those conditions might be.”
As such, the purpose of giving notice of our intention to oppose the question that Clause 9 stand part of the Bill amendment is designed to get to the bottom of the issue and to get the Minister to explain whether the failure to limit the power, as described in the memorandum, is inadvertent; and, if not, why it is necessary to draw the power more widely than indicated in the memorandum.
Baroness Merron (Lab)
My Lords, I am grateful, as ever, to the Delegated Powers and Regulatory Reform Committee for its very helpful report on this Bill. It would be fair to say that, in general, this Bill has fared better than most Bills, so that gives some comfort. Nevertheless, it is also true to say that the committee has raised a number of concerns and has put forward a very helpful range of recommendations, which are encapsulated in this suite of amendments. I thank the noble Lord, Lord Fox, for his detailed canter through what might be called a veritable feast of amendments.
As I say, this group of amendments very much reflects the concerns of the committee. I should also put on record that as the amendments were tabled at a relatively late stage, these Benches have not signed them. I say to the Minister that there is nothing to deduce from that, because I can confirm that we hope that he will take the concerns that are seriously and sensibly set out in this group and will look at revising the scope of procedures relating to certain powers when it comes to Report stage.
Lord Parkinson of Whitley Bay (Con)
The feast of amendments in this group aim to implement the recommendations of your Lordships’ Delegated Powers and Regulatory Reform Committee. We welcome the committee’s report and are considering its recommendations, as we always do. It will infuriate the noble Lords who have asked detailed questions when I say that, ahead of setting out our response to the committee, I will not be able to cover all the issues they have pressed the Government on today. I am happy to say that we will set out our response in writing ahead of Report. Perhaps once we have done that, and noble Lords have seen the Government’s full thinking in their response to the committee, it might be helpful for us to speak in detail.
The legislation has been designed to protect people, networks and infrastructure from the harms of insecure consumer connectable products, while minimising the unnecessary regulatory burden on businesses. It does so in the context of rapid technological and regulatory change, evolving cybercriminal activities and a growing impact on people in businesses, all of which require us to ensure that the legislation can evolve quickly and effectively. The UK, as I have noted, is leading the world with its approach to regulating connectable products. As other jurisdictions increasingly turn their attention to this important issue, we will use this flexibility to achieve alignment with equivalent regulatory regimes, avoiding unnecessary duplication. These powers, and the others conferred by the Bill to make delegated legislation, are crucial for it to remain effective. We have carefully considered the number, scope and necessity of these powers, and believe we have struck the right balance between the need for that flexibility and the importance of Parliamentary scrutiny, which noble Lords rightly stressed again today.
We welcome the report of your Lordships’ committee and are considering its recommendations. I am afraid I cannot, at this stage, pre-empt our response, which has to be made while considering the recommendations’ impact on the broader framework. We will return to these matters on Report, and I am very happy to have a detailed conversation with the noble Lords about our response after we have responded to the DPRRC.
The noble Lord, Lord Fox, focused on Clauses 9 and 11. I am happy to confirm that nothing about how the powers are drawn in Clause 9 is inadvertent; this was our intent. Clause 9 contains four delegated powers; they will be used predominantly to provide administrative detail deemed too technical for primary legislation. For example, they will explain what must be included as a minimum in a statement of compliance, what steps must be taken to determine compliance, where appropriate, and for how long a manufacturer should keep a statement of compliance. They will also provide flexibility to respond swiftly to changes in the market. In addition, the delegated powers in this clause may be used in the future to provide that the statement of compliance is equivalent to certain product markings, or external conformity assessments, such that a manufacturer may be deemed to have provided a statement of compliance where such markings or assessments have been made or completed. This is dependent on regulatory changes to product markings and on the development of the assurance sector for product security.
At this stage, and awaiting our response to your Lordships’ committee, I hope noble Lords will agree that it goes without saying that the Government feel these clauses should stand part of the Bill.
Lord Fox (LD)
I sort of thank the Minister for his response, which is really no response at all. He did say that it would infuriate me and he is fairly accurate about that.
As correctly noted, I am merely a cipher for the DPRRC, a very serious committee that does not produce these reports lightly. The point it is making, particularly on Clause 27, is front and centre to this Bill. Who is going to enforce it? Who decides who will enforce the Bill, and how will Parliament know if the Secretary of State decides not to tell it, under the current regulations? These are very serious matters and not ones that your Lordships’ House should step back from. I am sure that the Minister will, on reflection, understand that the DPRRC has a very important point to make. The others are important points, particularly around Clause 3, but the Clause 27 piece is absolutely central to the future of this Bill. That said, I beg leave to withdraw Amendment 6.
Lord Bassam of Brighton
“(5A) For the purposes of subsection (5), a person who provides an online facility through which a distributor makes a product available in the United Kingdom is also a distributor.”Member’s explanatory statement
This amendment brings online marketplaces which allow relevant products to be listed for sale within scope of the security requirements outlined in the Bill.
Lord Bassam of Brighton (Lab)
My Lords, Amendment 7 is also in the name of my noble friend Lady Merron. This amendment, as the notes to the Bill’s amendments set out, brings online marketplaces which allow relevant products to be listed for sale within the scope of the security requirements outlined in the Bill. We wish to express again our gratitude to Which? and others for their work in relation to online marketplaces, including, but not limited to, Amazon and eBay, which facilitate the sale of many of these products.
Research suggests that a significant number of products listed on online marketplaces could have security and privacy risks. This is prior to the introduction of the new rules for producers, importers and distributors, but it does highlight the importance of ensuring that marketplaces are subject to at least some of the new measures. Following Second Reading, the Minister kindly wrote to noble Lords, as he promised he would, and suggested that in many cases these websites will fall under “at least one” of the categories and, even if they do not, earlier parts of the supply chain will be subject to the new duties. On that basis, the Government say they will not explicitly bring marketplaces within scope of these measures but will keep the matter under review. It is disappointing that the Minister decided to rule out this change without even having this Committee debate. I hope the Minister’s response will go into more detail than the letter, and he will outline exactly what this review process will look like. Importantly, if it becomes apparent that obligations need to be imposed on these businesses, can he outline the process for achieving this? Can it be done under existing powers, or would it require an additional, albeit simple, piece of primary legislation?
This may not be a gaping hole in the Bill, but it does feel like a gap that needs to be addressed. We hope the Government will be persuaded of that in the run-up to Report stage. It is important because we do not often get legislation on this subject and we do not often get the opportunity to deal with issues such as this. I say to the Minister that we need considerable reassurance on this point because of that very fact. The Minister may say that it is all going to be down to regulations. That is not really a complete answer but we look forward to hearing his response.
Lord Fox (LD)
My Lords, I rise to speak to Amendment 8 in my name and that of my noble friend Lord Clement-Jones. These are two ways of doing the same thing so I support the spirit of Amendment 7, about which we have just heard from the noble Lord, Lord Bassam.
This amendment adds the following wording to Clause 7:
“Any person who is a provider of an internet service that allows or facilitates the making by consumers of distance contracts with traders or other consumers for the sale or supply of a relevant connectable product is to be regarded as a distributor for the purposes of this Act, if not a manufacturer or an importer of the product.”
This amends the language that defines a distributor in the scope of the Bill. Online marketplaces are a mainstream form of today’s retail. Which? research in 2019 found that more than 90% of the UK population had shopped through an online marketplace within the month it was polling. That has increased during the pandemic. However, its research also consistently highlighted how online marketplaces are flooded with insecure products. It has previously demonstrated issues with the lack of legal responsibility of online marketplaces for the security and safety of products sold through their platforms.
The Government have recognised the problem, in their response to the call for evidence on product safety, that current safety rules were designed to fit supply chains as they operated before the world of internet shopping. In the realm of product safety, the Government have acknowledged that this can result in the peculiar situation where no actor is responsible for ensuring product safety. This has resulted in organisations such as Electrical Safety First repeatedly finding unsafe and non-compliant products listed on online marketplaces. Therefore, the traditional conception of actors in the supply chain is now outdated.
The Bill defines “distributor” as
“any person who … makes the product available in the United Kingdom, and … is not a manufacturer or an importer of the product.”
At present, it seems unlikely that certain online marketplaces, including eBay, Amazon Marketplace and Wish.com, will be included within the scope of that definition of distributors in the Bill. This will leave, without overstating it, a sizeable gap in the regulatory scope of this market.
Given the amount of insecure tech readily available on online marketplaces, it is paramount that these platforms are given obligations in the Bill to ensure the safety and security of the products sold on their sites, regardless of whether the seller is a third party. However, the Clause 7(5) definition of “distributor” in terms of making products available on the market is in line with existing product safety law, so we know that certain marketplaces are not classed as distributors and hence not obligated to take action. Amazon Marketplace, Wish.com and eBay are marketplaces where other people are selling; this is the issue.
This amendment seeks to expand the definition of distributors in Clause 7 to include appropriate online retailers, such as listings platforms and auction sites, including eBay, Amazon Marketplace and AliExpress. I feel sure that the Minister did not intend for the legislation to miss these marketplaces out; rather than risk this loophole going any further, we will work with the Minister and Her Majesty’s loyal Opposition to come up with some wording that absolutely iron-clads the Bill to ensure that these sorts of marketplaces are also included.
Lord Parkinson of Whitley Bay (Con)
I am grateful to noble Lords for speaking to their amendments in this group, both of which seek to make online marketplaces a “distributor”. It is vital that all products offered to consumers are secure, including those listed through online marketplaces, and we want to ensure that this is achieved in the most efficient way.
The explanatory statement for Amendment 7 suggests that products listed on online marketplaces might not be protected by the security requirements set out in the Bill. I reassure noble Lords, particularly those who tabled Amendment 7, that the security requirements will need to be met for all new connectable products offered to consumers in the UK, including those offered through online marketplaces. These marketplaces often act as a manufacturer, importer or distributor and, in those cases, they are subject to the same duties and security requirements as those three types of economic actor. If, however, the online marketplace does not fall into one of these three categories, the manufacturers, importers and distributors of those products are all still fully responsible for complying with security requirements.
Lord Fox (LD)
This has piqued my interest; how does this exercise relate to the Bill? This process of dealing with the online acquisition of unsafe products would seem to be what the Bill is doing front and centre, so what is that process? How do the two connect?
Lord Parkinson of Whitley Bay (Con)
They are complementary; the new product security framework sits alongside existing legislation on product safety, which is why we want to conduct a review of the safety framework and publish the consultation. I am certainly happy to write and endeavour to explain.
The noble Lord asked whether products sold through online marketplaces fall into a gap in the Bill. The Bill requires in-scope products offered for sale through online marketplaces to customers in the UK to be as secure as in-scope products sold, for example, in physical stores. We are mindful of the variety of services offered by different online marketplaces. Some act only as advertising platforms, while others facilitate transactions and store and ship products on behalf of the seller. As noble Lords have noted, this changes all the time. This must be carefully considered to ensure that businesses can comply with their legal obligations and that any regulation is necessary, appropriate and proportionate to provide the best protection to consumers.
Lord Fox (LD)
I am sorry to keep popping up; being a practical person, I will try to give the Minister a scenario and, if he cannot answer straightaway, he can write. I have bought a product through an online auction that turns out to be unsafe; I go back to the auction site, which tells me, “Not my problem. You have to return to the international manufacturer which made this product”, which turns out to be a brick wall and nothing comes back. First, is that online auction site correct in handing me over to the international manufacturer, which turns out to be a dead end? Secondly, if that site is correct, to whom do I go? Do I go to my local council trading officer or to the person who, under Clause 27, has been mysteriously made the enforcer for the Bill? I may or may not know who they are. How do I seek redress, and from whom?
Lord Parkinson of Whitley Bay (Con)
I will try answer the noble Lord’s question, and I am happy to write with further detail. Products sold on online marketplaces are covered by the Bill. All products sold to customers in the UK will have to comply with the security requirements set out under this framework. Where a product is sold on a third-party online marketplace, the seller will be responsible for ensuring that it is compliant. Third-party sellers who sell new products directly to customers on those platforms will also be covered under the “distributor” definition. I will happily write to the noble Lord with further detail ahead of Report but I hope that, for now, that goes some way towards addressing his question.
Lord Lucas (Con)
My Lords, I would be grateful if my noble friend included me in his replies and letters. Is he aware of the lamentable performance of Her Majesty’s Revenue and Customs when it comes to trying to enforce VAT in similar circumstances, and the enormous difficulty it has had with third-party sellers operating out of the Far East in particular? It is extremely difficult, and the volume of VAT lost runs into the billions. This is a large-scale enterprise and it will easily channel a large volume of unsatisfactory products into the UK if we do not take effective action.
I hope that the Government, in their new consultation, which I look forward to learning about, will be taking a robust attitude towards the platforms. For instance, it is entirely unsatisfactory that there should be a way in which unsafe toys can get into the hands of children at Christmas, and for which there is no effective means of prevention or redress. In other jurisdictions, these online marketplaces have proved amenable to a forceful approach by government. I very much hope that we will be joining in with that.
Lord Parkinson of Whitley Bay (Con)
I am happy to include my noble friend in the replies and the letter I send. This touches on work which falls under the Department for Business, Energy and Industrial Strategy, and the points he raised, of course, fall to Her Majesty’s Revenue and Customs. We will make sure that, having consulted officials there, we provide some details of the work those departments are doing as well.
Lord Bassam of Brighton (Lab)
My Lords, I am looking forward to the correspondence on this; I fancy that the noble Lord’s civil servants will have a tricky job on their hands. I do not think I quite got a response to what the nature of “being kept under review” really meant, but I await word in the future.
I have been reading the Explanatory Notes, as the Minister will probably be unhappy to hear, and I can see the difficulties. In trying to ensure that the legislation is focused, rightly, on the producers, manufacturers, importers and distributors, it is hard to work round that and not capture people who are simply installers of a product. On the other hand, there are circumstances where installers are primarily responsible for the effectiveness and working of the product, and if it was not for the way they install it, it would not be effective. The terms of the contract are such that it makes that difficult.
I can see the difficulty here, but for now I am happy to withdraw our amendment. In doing so, we are equally supportive of the amendment in the name of the noble Lord, Lord Fox, because the two are contiguous in their formulation.
Ukraine: UK and NATO Military Commitment
(2 years, 6 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Coaker (Lab)
It is the start of Armed Forces Week, so I begin by thanking them for all they do. We also reiterate our full support for the Government’s actions in Ukraine.
In continuing this support, the Prime Minister said last Friday that we would offer to train 10,000 Ukrainian soldiers every three months. Can the Minister say when this will start and give more detail of the plan? For example, where will they be trained—in the UK or another NATO country?
We also know that the Ukrainians have asked for more weapons. Can the Minister explain the Defence Minister’s remarks in the other place? He said that the Prime Minister and Defence Procurement Minister met yesterday morning to discuss
“escalating the supply of NATO standard equipment”.—[Official Report, Commons, 20/6/22; col. 558.]
New contracts are also under discussion. Can the Minister say more about that and explain what it means?
The new head of the Army is also reported to have said that we need an Army capable of fighting Russia in battle. Can the Minister clarify those remarks? Were they actually said and if so, what was meant? Is that accurate? Whatever he meant, a reduction in our Army of a further 10,000 soldiers is not in our interest or that of our allies, is it? The Government need to rethink this.
The Minister of State, Ministry of Defence (Baroness Goldie) (Con)
First, I echo the noble Lord’s sentiments of gratitude to our Armed Forces. I have already participated in one of the services, up in Scotland, and I did so with a great sense of pride. I also thank him for his constructive approach, as ever, to matters in Ukraine.
On training, on which the Prime Minister’s announcement was very welcome, the UK is considering several options outside Ukraine to roll out the training programme, and that could include locations in the UK and other locations in Europe. The UK plans to provide basic infantry training to new or entry-level conventional recruits of the armed forces of Ukraine. The noble Lord will be aware that the Treasury has made £1.3 billion in operational support and capability available for Ukraine. This fund is expected to contribute to the first stage of the training initiative.
The noble Lord asked about the placement of contracts. His colleague the noble Lord, Lord Reid of Cardowan, raised this last week and I shall write to him, but I can say to the noble Lord, Lord Coaker, that there is of course constant engagement. The department is fully engaged with industry, allies and partners to ensure that all equipment and munitions granted in kind are replaced as expeditiously as possible. But I am afraid that, for operational, commercial and security reasons, I cannot provide any further information at this stage.
The noble Lord, Lord Coaker, raised the question of the size of the Army. It is important not to impute to the Chief of Defence Staff anything he did not say. My understanding is that he did not make some simple, binary arithmetical comparison—big is good, smaller is bad. In fact, I think in his remarks he reflected exactly what we established and identified in the integrated review, reflected in the Command Paper and then fleshed out with Future Soldier. Some very interesting comments have been made in the House about this issue, but I was particularly impressed by two contributions in the debate on the humble Address, one by the noble Lord, Browne of Ladyton, and the other by the noble and gallant Lord, Lord Houghton of Richmond. They were incisive and analytical and I commend these speeches to your Lordships.
Lord Campbell of Pittenweem (LD)
My Lords, may I begin by associating myself with the expressions of gratitude to our Armed Forces? May I also say that, sooner or later, the Government will have to grasp the nettle and admit that the tasks before land forces in particular will not be carried out effectively by the numbers contained in the integrated review? It will happen sooner or later, but the sooner it does the quicker it will be possible to see how additional land forces can be properly deployed. I wonder whether the Minister sees what I see. I see a war of attrition, with Russia now temporarily outgunning Ukraine and doing so by grinding out painful and bloodletting progress at a terrible cost to forces on both sides. Does she accept that Ukraine can survive only if the supply of weapons from the United Kingdom and others in NATO matches that of Russia in quality, quantity and capability? Will she tell the Prime Minister to tell that to the meeting of NATO Heads of Government next week?
Baroness Goldie (Con)
With the greatest respect to the noble Lord, who, as he knows, I admire hugely, I disagree with his analysis. With the biggest investment since the end of the Cold War, the Army will reorganise; it will re-equip to become more integrated, active and lethal as a high-tech force fit for the threats of the future, not the battles of the past. As people increasingly recognise, what we do with the Army and how we do it in the future is not based simply on boots on the ground, but on a much wider understanding of how we are smarter and cleverer—finding better equipment and using technology. In that respect, we can operate in a much more agile and resilient fashion.
I say to the noble Lord that the nature of the conflict in Ukraine is certainly arduous and worrying; I think everyone accepts that it will be of long duration. But I would also say to him that the UK has been a singular contributor in leading the charge to help Ukraine defend itself, and we welcome those within and outwith NATO supporting that endeavour. The NATO summit on 28 June will be an important occasion because NATO will agree the new strategic concept and set the direction of the alliance for the next decade. Much of that will be informed by what has happened with this barbarous and illegal invasion of Ukraine by Russia.
Lord Balfe (Con)
My Lords, I shall use three quotes from yesterday’s debate. First, Tobias Ellwood, who put down the Question, said:
“But Russia is not losing and Ukraine is not winning”. ––[Official Report, Commons, 20/6/22; col. 556.]
Secondly, the new head of the Armed Forces said that we must be
“fighting alongside our allies and defeating Russia in battle”.
Thirdly, the Secretary-General of NATO said that this could take years. I should like to ask the Minister: where are we actually going? Last week in the Duma, there was discussion about the Suwałki Gap, the strip of land running between Lithuania and Poland that links Kaliningrad to Belarus. What happens if the Russians decide to force the Suwałki Gap? They would not be fighting Ukraine, but the Lithuanians are very anxious to implement all the sanctions and Kaliningrad is becoming more or less isolated. I should like to think that our forward planning stretches beyond Boris Johnson and the end of next week, and that we are looking seriously at ways in which this conflict could be gradually edged-up in a way that it would be very difficult for NATO to respond to with unity.
Baroness Goldie (Con)
I do not agree with my noble friend’s somewhat dismissive commentary on how the UK has responded to this. I think, by universal assent, the UK has played a pivotal role in coming to the aid of and supporting Ukraine, which knows that it has in us a solid and reliable friend. I say to my noble friend that within the whole Baltic area there has been a bolstering of the enhanced forward presence, to which the UK has been an important contributor. That has been a necessary response. As I said to the noble Lord, Lord Campbell of Pittenweem, what we are witnessing is quite simply an illegal and barbarous invasion by President Putin of an innocent sovereign state.
It is interesting that, within the Baltic area, Sweden and Finland now seek to join NATO. I assume they are motivated by the sense of comfort and reassurance that the alliance will bring them if they are able to become members. That is a matter for hope and optimism.
Lord Browne of Ladyton (Lab)
My Lords, I wish to associate myself with the expressions of gratitude to our Armed Forces and our veterans. Yesterday in the other place, Leo Docherty, the Parliamentary Under-Secretary of State for Defence People and Veterans, in answering this Question spoke about the Government’s
“absolute resolve to meet our NATO commitments”
and said that they are doing that by delivering
“at pace the technological and military revolution necessary to make ourselves more lethal, agile and deployable around the world than ever before.”
He went on:
“For too long, the measurement of our military capability has been about men and vehicles in garrisons, rather than our ability to project power”.—[Official Report, Commons, 20/6/22; col. 558.]
The Minister knows that I think that is the right approach. Why then, on 15 June, did the MoD slip out, under cover of a Written Ministerial Statement, the Defence Artificial Intelligence Strategy and its accompanying document on the ethics of military AI? When will the Secretary of State or the Prime Minister come to Parliament to explain how this strategy will, in the words of that Statement,
“transform the culture of defence”—[Official Report, Commons, 15/6/22; col. 13WS.]
and to answer questions about it?
Baroness Goldie (Con)
As ever, I appreciate the noble Lord’s interest in these matters. Indeed, the Defence Artificial Intelligence Strategy was published on 15 June. It is an important development; on artificial intelligence, we as a department want to be effective, efficient, trusted and influential. As for when there will be an opportunity to question the Secretary of State in the other place—or, for that matter, to question me in this Chamber—I will make inquiries about what the intention is for parliamentary procedure. I shall try to ascertain whether there is a likely date for a Statement. Personally, I think it would make for an interesting and very useful debate in this Chamber.
Product Security and Telecommunications Infrastructure Bill
Tuesday 21st June 2022
(2 years, 6 months ago)
Lords ChamberRead Full debate Product Security and Telecommunications Infrastructure Act 2022 View all Product Security and Telecommunications Infrastructure Act 2022 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 16-I(a) Amendment for Committee (Supplementary to the Marshalled List) - (20 Jun 2022)
“Amendments to consumer protection legislation
(1) In section 9(3) of the Consumer Rights Act 2015 (goods to be of satisfactory quality), after paragraph (e) insert—“(f) compliance with security requirements.”(2) In Schedule 2 to the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 (S.I. 2013/3134), after paragraph (x) insert—“(y) where applicable, confirmation of compliance with all security requirements as set out in regulations made under section 1 of the Product Security and Telecommunications Infrastructure Act 2022.”(3) In section 2(2) of the Consumer Protection Act 1987 (liability for defective products), after paragraph (c) insert—“(d) in relation to a relevant connectable product within the meaning of Part 1 of the Product Security and Telecommunications Infrastructure Act 2022, any person who is a distributor of the product within the meaning of that Act.””Member’s explanatory statement
This amendment would clarify the relationship between proposed provisions in this Bill and those already in law under the Consumer Rights Act 2015 and other consumer legislation. This would include defining a security issue as a fault for the purposes of consumer law and ensuring the liability for a defective connectable product is properly defined.
Lord Fox (LD)
My Lords, this group contains two amendments that have been tabled by my noble friend Lord Clement-Jones, and I rise to move Amendment 14 and to speak to Amendment 14A on his behalf and my own. These are probing amendments to understand consumer law with this and other legislation.
It seems that the Government’s intention is that consumers will be entitled to redress under the Consumer Rights Act 2015 for breaches of the product security requirements in Part 1 of this Bill and the requirements of related future secondary legislation where breaches amount to a product not being of satisfactory quality as described or fit for purpose. However, for clarity, this will require the specific inclusion in this Bill of amendments to the CRA and other related consumer legislation. So I ask the Minister to clarify how redress will work in practice. As Which? has strongly urged in relation to the current consultation on reform of consumer law generally, collective redress should also be available for groups of consumers that have suffered breaches of the CRA relating to product security.
To help your Lordships, let us look at a typical scenario where the consumer reads a report about a security issue with a product that they own and considers it insecure and hence faulty. They try to take the product back to the retailer as redress, as per CRA 2015 rights, but under the CRA, after the first six months of ownership, the burden falls on them to prove that the fault was not of their making. It is unclear what burden of proof would be required at this stage for the consumer to get redress for security faults as described in this Bill.
The CRA places the primary obligation on retailers—as “traders” concluding contracts with consumers—not manufacturers, to remedy products found to be in breach. Due to the unique nature of security faults, it is currently unclear whether a retailer would have the ability to verify reports of faults to facilitate effective redress. Experience has shown that it has been hard when reporting security issues to retailers, and that can often result in pushback. There is a risk that the consumer will find it very hard to enact their CRA rights in practice to get redress on insecure products. In that regard, proper legal guidance for what classifies a security fault is absolutely vital for redress to work effectively.
At present, it is unclear how security updates—and hence a commitment to fix security faults that occur with smart products—interact with the CRA 2015. For example, a manufacturer could claim that it will provide four years of updates on a product at the point of sale but then renege on that; perhaps because it has gone out of business or some such reason. The product then develops a security fault that the manufacturer will not fix. It is unclear what the consumer rights would be in this scenario.
Moreover, it is unclear if the Bill effectively waters down consumer rights under the CRA. If the manufacturer claims that it will give four years of support in which it will fix security faults, how does this impact on a claim that a consumer may have under the CRA to have faults addressed—which they may be able to bring for up to six years from when they purchased the goods? If the Government are not willing to mandate minimum support periods for at least six years, this could become a commonplace problem to consumers seeking redress. The Bill must make it clear how it interacts with the CRA 2015 and associated consumer legislation in a way that gives maximum protection to consumers and does not water it down.
Finally, under the CRA 2015, after the first six months of ownership, the burden falls on the consumer to prove that a fault was not of their making. Consideration should be given to extending this period and making it easier for consumers to obtain redress for insecure products. The 2019 EU sale of goods directive has extended the burden of proof in EU member states to one year—extendable to two years by member states—from delivery of the goods. For goods with digital elements supplied on a continuous basis, the burden of proof for conformity is on the seller in relation to any non-conformity that becomes apparent during a minimum of two years, or the period of supply where longer than two years, effectively providing a minimum of two years of security support. The directive also has specific provisions requiring sellers to keep consumers informed about and supplied with updates, including security updates. Similar protections should be introduced for UK consumers.
So there is a whole heap of issues here, and these two amendments try to get some clarity. Amendment 14 seeks to clarify the relationship between the provisions proposed in the Bill and those already in law under the Consumer Rights Act 2015 and other consumer legislation. This would include defining a security issue as a fault for the purposes of consumer law and ensuring that the liability for a defective connectable product is properly defined. Amendment 14A would ensure that the provisions of the Bill will not conflict with any existing legal rights regarding the enforcement of consumer law, ensuring that redress for defective connectable products can be sought by individual consumers, as opposed to solely leaving the redress procedure to the designated enforcement body to ensure compliance.
We await detailed exposition on all this, either now or in a letter from the Minister. I beg to move.
Baroness Merron (Lab)
My Lords, I am grateful to the noble Lords, Lord Clement-Jones and Lord Fox, for tabling these amendments, which seek to clarify how the new measures in the Bill will interact with existing consumer legislation. In a practical sense, they are about how comfort can be given to the consumer and redress made available where necessary.
We in your Lordships’ House know that consumers have had to fight hard over many years to secure important statutory protections, including rights of redress when products do not live up to the standards that people rightly expect of them. I say to the Minister that the new measures in the Bill are certainly welcome and will improve certain aspects of the consumer experience, but it is also right to probe how this new regulatory regime interacts with consumer rights and protections enshrined elsewhere.
I feel that Amendment 14 seeks to update the state of play to refer to compliance with security requirements, but that needs to be an area where consumer protection is enshrined in legislation. To me, it goes with the sweep of the Bill, which is to bring us into today’s world and able to cope with the new and constantly evolving situation. Amendment 14A is also interesting, in that it seeks to maintain the right of individual consumers to seek redress in relation to defective connectable products rather than leaving these matters to a particular enforcement body or to collective legal action.
We would appreciate it if the Minister could clarify some of these matters in the Bill itself. If that does not prove possible, this is another area where we would very much like rather more information to be made available by the department so that we can seek to protect the rights and interests of consumers.
The Parliamentary Under-Secretary of State, Department for Digital, Culture, Media and Sport (Lord Parkinson of Whitley Bay) (Con)
I am grateful to the noble Lord and the noble Baroness for probing through Amendments 14 and 14A as tabled by the noble Lords, Lord Clement-Jones and Lord Fox. The amendments seek respectively to amend consumer protection legislation and clarify the relationship between this Bill and consumer protection legislation.
The Consumer Rights Act 2015 requires goods and services to be of a satisfactory quality, and the Consumer Protection Act 1987 imposes liability for defective products. Breaches of this Bill that meet the criteria of these Acts already entitle consumers to the protections they provide. This Bill focuses on the supply chain and what it needs to do to protect and enhance the security of products and their users. The security requirements will relate to processes and services, not just to the hardware of a product as the product safety framework does. It is not appropriate to retrofit the security requirements of this Bill’s regime into the existing framework of consumer protection legislation, which was generally designed to ensure that consumers have rights when products are unsafe—although, as I said, I appreciate the probing nature of these amendments.
Some security requirements will require ongoing action from manufacturers after they make a product available. It would be inappropriate to require traders to confirm one-off compliance with such requirements before contracts become binding. I acknowledge that existing consumer rights legislation will not always enable consumers to seek redress for breaches of the security requirements. I reassure noble Lords that this is not a gap. The evolving technological landscape means that the threats to consumers change, and we need flexibility to protect and compensate customers where that is necessary. The Bill, together with existing consumer rights legislation, already offers this.
The Earl of Erroll (CB)
The Minister said earlier that the whole point of the Consumer Rights Act was about unsafe goods. I think that he means “unsafe” as referring to physical harm. Actually, a major security breach could render serious physical harm to someone because having all their money removed from their bank account could affect their mental state and result in the breakdown of their marriage, suicide, failure of business, all sorts of things. Therefore, it may have just as damaging physical effects on someone, though not immediately apparent. Although they are different they are equally unsafe, so this has more merit than he is suggesting.
Lord Parkinson of Whitley Bay (Con)
At the risk of a philosophical debate on the nature of security versus safety, I accept some of the points that the noble Earl makes. There are distinct differences between our approach to product security and existing product safety as set out in consumer legislation, but I will address myself to that philosophical point in the letter, if I may. For now, I ask the noble Lord to withdraw Amendment 14.
Lord Fox (LD)
I hope that the Minister will take some time to read my speech in Hansard and address the issues that I have raised, because there are some specific points that have not been touched.
A lot of this has come from Which? whom I thank for its help. Which? is an extraordinarily experienced organisation, with some of the country’s most experienced consumer lawyers dealing with the sharp end of customer consumer problems. The fact that it has gone to the trouble of raising these issues should raise a red flag. It is not doing it out of mischief or political intrigue, but because it cares about the future of consumers. For that reason, the department needs to take this seriously.
If the Minister requires a meeting with Which? I am sure that I, the noble Lord, Lord Bassam, or the noble Baroness, Lady Merron, will be very happy to broker one. We could then go through some of these consumer issues. This is an organisation dedicated to protecting the needs of consumers. It has gone to the trouble of flagging up this and several other issues. For that reason, for the future of this Bill, it would be very sensible to take Which? seriously.
That said, I beg leave to withdraw Amendment 14.
Lord Arbuthnot of Edrom
“Offences under the Computer Misuse Act 1990: defence
Notwithstanding anything contained in the Computer Misuse Act 1990, it is not an offence for a person (“A”) to test the conformity of a relevant connectable product with all or any of the security requirements, without consent of the person entitled to control access to the product (“B”), where—(a) A reasonably believes that B would have consented to that testing if B had known about the the circumstances of it, including the reasons for performing it,(d) A is empowered by an enactment, a rule of law, or an order of a court or tribunal, to carry out the test, or(c) the test was necessary for the detection of crime.”
Lord Arbuthnot of Edrom (Con)
My Lords, Amendment 16 proposes a statutory defence for ethical hackers. I am grateful to the noble Lord, Lord Clement-Jones, and to the CyberUp campaign, for their help. Again, I declare my interests as chairman of the Information Assurance Advisory Council, chairman of the Thales UK advisory panel and chairman of Electricity Resilience Limited.
The Computer Misuse Act 1990 criminalised unauthorised access to computer systems. The methods used by cybercriminals and cybersecurity professionals are often identical, which is one of the things that makes the drafting of this amendment rather problematic. Usually, criminals do not have permission for what they do, and cybersecurity professionals do, but I am told by the CyberUp campaign that there are occasions on which that permission is difficult or impossible for a cybersecurity professional to get.
At Second Reading, I cited the case of Rob Dyke, who has been through a legal tussle with the Apperta Foundation, which has since been in touch with me to put its side of the story. It is clear that it feels strongly that it was right to pursue Mr Dyke until he gave undertakings that allowed it to drop its litigation. I do not know the rights and wrongs of that, but the Apperta Foundation supports the principles put forward by CyberUp for a legal defence for offences under the Computer Misuse Act.
In any event, the Government are carrying out a review into the 1990 Act. CyberUp’s submission to it sets out that many in the cybersecurity profession do not know whether what they are doing is legal. This is because legislation in 1990 came in before much of what now happens with computers had been thought of—so it inevitably created ambiguities. In the 1990 Act, no consideration was given—I remember because I was there—to web scraping, port scanning or malware denotation, and people are not sure that they are legal. Some of us are not sure quite what they are.
This is why there needs to be certainty for cybersecurity researchers; they need to be able to do things for the public good. We cannot rely on the National Cyber Security Centre for everything, because even the Government cannot keep up with the speed of technological development, as has been mentioned. The CyberUp campaign recognises that legislation also cannot keep up with the speed of change, so it has helped with drafting this amendment not with a view to seeing it enacted—my noble friend will resist it for a number of good reasons—but with a view to eliciting from the Government a statement about how they are getting on with this aspect of the review of the Computer Misuse Act.
One suggestion that the CyberUp campaign makes is that
“legislation to mandate the courts to ‘have regard to’ Home Office or Department for Digital, Culture, Media and Sport … guidance on applying a statutory defence that would, ideally, be based on the framework”
of principles. This includes, first, the prospective benefits of the Act outweighing the prospective harms; secondly, reasonable steps being undertaken to minimise the “risks of causing harm”; thirdly, the actor demonstrably acting “in good faith”; and fourthly, the actor being “able to demonstrate … competence”. Here we may come back to the standards/principle discussion that we had on the first group.
So I expect my noble friend to reject this amendment, but I should be grateful if he could say where the Government’s thinking on the matter is.
Baroness Neville-Jones (Con)
My Lords, I speak in support of this amendment. My noble friend has just said that he doubts that the Government will adopt it, but, like him, I want to know where their thinking has got to.
The Computer Misuse Act is one of the first bits of legislation passed in the cyber era. It is old and out of date, and it is fair to say that it contains actively unhelpful provisions that place in legal jeopardy researchers who are doing work that is beneficial to cybersecurity. That is not a desirable piece of legislation to have on the statute book.
Last year, before the consultation that closed over a year ago, I corresponded with my noble friend Lady Williams. The common-sense reading of her reply was that the Home Office was quite aware that the Computer Misuse Act needed updating. I confess that I am a bit disappointed that, a year after the consultation closed, there still has not been a peep from the Government on this subject—either a draft or a statement of intention. It would be good to know where the Government are going, because it is quite damaging for this legislation as it stands to remain on the statute book: it needs modernisation.
Like my noble friend, I recognise that actually getting the drafting right is tricky and complex. Drafting language that strikes the right balance is not all that easy. But inability to find an ideal outcome is not a good reason for doing nothing, so I live in expectation, because the best must not be the enemy of the good. If the Government do not intend to produce legislation that updates that Act, I should like to see something in this legislation, taking advantage of it, at least to move the dial forward and protect ethical hackers to a greater extent than is the case at the moment.
If the Government are concerned about our drafting, I am sure we would be willing to listen to suggestions on a better formulation. In the absence of that, perhaps the Minister will say when and how the Government intend actually to modify a piece of legislation that has served its time and now needs to be superseded.
The Earl of Erroll (CB)
My Lords, very quickly, I remember well during the passage of the Computer Misuse Act and the Police and Justice Act 2006 trying to tidy up language about hacking tools and so on. It became very complicated and no one could quite work out how to do it, because the same thing could be used by baddies to do one thing and by good people to help maintain systems, et cetera. In the end, I think it went into the Act and they just said, “Well, we won’t prosecute the good guys”. Everyone felt that was a little inadequate. I do not know quite what we are going to do about it but it needs to be looked at. Therefore, this is a good start and I would welcome some discussion around it, because we need something in law to protect the good people as well as to catch the criminals.
Lord Fox (LD)
My Lords, this amendment is countersigned by my noble friend Lord Clement-Jones. I know he will be very disappointed not to be able to speak to this, because it is an issue he feels particularly strongly about, as do I. Also in their absence are the auras of the noble Lords, Lord Vaizey and Lord Holmes, who spoke at Second Reading on this issue—it is a shame they are not here, but I think they have been ably replaced by the noble Baroness, Lady Neville-Jones, and the noble Earl, in their speeches. I will try not to duplicate the points that have been made by the three speakers before me. At the heart of this, as the noble Baroness confirmed, is the need to address the UK’s outdated Computer Misuse Act to create fit-for-purpose cybercrime legislation to protect national security. Clearly, that is not easy, as she pointed out, but that does not mean we should not do it at some point.
The Computer Misuse Act, as we know, was created to criminalise unauthorised access to computer systems or illegal hacking. It entered into force in 1990, before the cybersecurity industry as we know it today had really developed in the UK. Now, 32 years later, many modern cybersecurity practices involve actions for which explicit authorisation is difficult, if not impossible, to obtain. As a result, the Computer Misuse Act now criminalises at least some of the cybervulnerability and threat intelligence research and investigation that UK-based cybersecurity professionals in the private and academic sectors are capable of carrying out. This creates a perverse situation where the cybersecurity professionals, acting in the public interest to prevent and detect crime, are held back by the legislation that seeks to protect the computer systems: it is an anomaly.
As noble Lords will know, under the guidance that will be introduced following the passage of the Bill, manufacturers of consumer-connectable products will be required to provide a public point of contact to report vulnerabilities. This could be an important step forward in ensuring that vulnerability disclosures by cybersecurity researchers are encouraged, leading to improved cyber resilience across these technologies, systems and devices.
Lord Bassam of Brighton (Lab)
My Lords, this has been a far more interesting debate than I initially surmised it would be—
Lord Bassam of Brighton (Lab)
No, I give credit where it is due. I congratulate the noble Lord, Lord Arbuthnot, on his amendment because the issues that he raised and the questions posed by the noble Lord, Lord Fox, in particular, are legitimate ones.
Although this is not the place to amend or change the Computer Misuse Act 1990, as the noble Lord, Lord Fox, said, it certainly is the place to raise concerns. After all, we are talking about product security and safety. It is vital that we have appropriate safeguards in place to prevent and, if need be, punish cyberattacks and other forms of hostile behaviour online.
However, as we seek to make smart devices safer, clearly there is a role for researchers and others to play in identifying and reporting on security flaws. They need to be able to do this within the safe zone of concern, knowing that they are not themselves going to be captured by those who are responsible for cybersecurity. As I understand it, exemptions exist in similar legislation to ensure that academics and other legitimately interested parties can access material relating to topics such as terrorism. The amendment before us today raises the prospect of granting a similar exemption and defence in this particular field.
I am conscious that the noble Lord, Lord Fox, raised the spectre of auras in the form of the noble Lords, Lord Vaizey, Lord Clement-Jones and Lord Holmes of Richmond—as well as the intent of the noble Baroness, Lady Neville-Jones, who is of course very knowledgeable about the business of security and has had both professional and political responsibility in that field. However, I think that, when those auras and his own say that this is an issue of concern, we as the Official Opposition reflect that concern.
I hope that the noble Lord will engage with the noble Lord, Lord Arbuthnot, and others following Committee on this—I am sure he will—because it is a very important subject. A campaign backed by such an esteemed cross-party group of colleagues in the Committee and in another place cannot be entirely wrong. The Computer Misuse Act 1990 is the framework we have got, but it is right that it is reviewed and that something fresh is brought before us to protect us from cyberattacks in the future.
Lord Parkinson of Whitley Bay (Con)
I am very grateful to my noble friend Lord Arbuthnot of Edrom for representing the other three signatories to this amendment. I was glad to meet him and the noble Lord, Lord Clement-Jones, to discuss this yesterday.
The role of security researchers in identifying and reporting vulnerabilities to manufacturers is vital for enhancing the security of connectable products. The good news is that many manufacturers already embrace this principle, but there are also some products on the market, often repackaged white label goods, where it is not always possible to identify the manufacturer or who has the wherewithal to fix a fault. The Bill will correct that.
As noble Lords have noted, there are legal complexities to navigate when conducting security research. The need to stop, pause and consider the law when doing research is no bad thing. The Government and industry agree that the cybersecurity profession needs to be better organised. We need professional standards to measure the competence and capabilities of security testers, as well as the other 15 cybersecurity specialisms. All of these specialists need to live by a code of professional ethics.
That is why we set up the UK Cyber Security Council last year as the new professional body for the sector. Now armed with a royal charter, the council is building the necessary professional framework and standards for the industry. Good cybersecurity research and security testing will operate in an environment where careful legal and regulatory considerations are built into the operating mode of the profession. We should be encouraging this rather than creating a route to allow people to sidestep these important issues.
As noble Lords have rightly noted, the issues here are complex, and any legislative changes to protect security researchers acting in good faith run the risk of preventing law enforcement agencies and prosecutors being able to take action against criminals and hostile state actors—the goodies and baddies as the noble Earl, Lord Erroll, referred to them. I know my noble friend’s amendment is to draw attention to this important issue. As drafted, it proposes not requiring persons to obtain consent to test systems where they believe that consent would be given. That conflicts with the provisions of the Computer Misuse Act, which requires authorisation to be given by the person entitled to control access. As the products that would be covered by this defence include products in use in people’s homes or offices, we believe that such authorisation is essential. The current provisions in the Computer Misuse Act make it clear that such access is illegal, and we should maintain that clarity to ensure that law enforcement agencies do not have to work with conflicting legislation.
The amendment would also limit the use of such a defence as testers would still be subject to the legal constraints that noble Lords have described when reporting any vulnerability that the Government have not banned through a security requirement. If a new attack vector was identified that was not catered for by the security requirements, the proposed defences would have no effect. The amendment would not protect those testing products outside the scope of this regime, from desktop computers to smart vehicles. If we consider there to be a case for action on this issue, the scope of that action should not be limited to the products that happen to be regulated through this Bill. None the less, the Government are listening to the concerns expressed by the CyberUp Campaign, which have been repeated and extended in this evening’s debate.
The Home Secretary announced a review of the Computer Misuse Act last year. As my noble friend noted, the Act dates back to 1990. I do not want to stress too much its antiquity as I am conscious that he served on the Bill Committee for it in another place. His insight into the debates that went into the Bill at the time and the changes that have taken place are well heard. The evidence which is being submitted to the review is being assessed and considered carefully by the Home Office. It is being actively worked on and the Home Office hopes to provide an update in the summer.
I hope, in that context, that noble Lords will agree that it would be inappropriate for us to pre-empt that work before the review is concluded and this complex issue is properly considered. With that, I hope my noble friend will be content to withdraw his amendment.
Lord Arbuthnot of Edrom (Con)
My Lords, I was six at the time. It has been a useful debate and I thank all those who have taken part. I am particularly grateful to my noble friend Lady Neville-Jones, who made it quite plain that we understand the problems in the way of the Government in legislating on this but we are getting impatient. With everything that is going on in the world, out-of-date cybersecurity legislation is becoming more dangerous day by day. That said, I beg leave to withdraw the amendment.
“Rights in occupation
(1) The electronic communications code is amended as follows.(2) In paragraph 21 (test to be applied by the court), in sub-paragraph (4), at the end insert “the terms of any existing agreement, and any other method of statutory renewal available.””Member’s explanatory statement
This amendment seeks to ensure that any new agreements which are made with reference to Clause 57 of the Bill and using paragraph 20 of the Electronic Communications Code must have regard to the terms of the existing agreement to ensure continuity and fairness.
Lord Fox (LD)
My Lords, once again I am a substitute for the noble Lord, Lord Clement-Jones—
Lord Fox (LD)
I know. I rise to move Amendment 17 in his name. I am grateful for the tuition that I have also had from the noble Earl, Lord Lytton—more about him shortly. Unfortunately, we are missing his huge expertise, but do not worry, I will be here to channel some of his thoughts.
This amendment seeks to ensure that any new agreements made with reference to Clause 57 and using paragraph 20 of the Electronic Communications Code must have regard to the terms of the existing agreement to ensure continuity and fairness. It aims to address outstanding concerns with the way rights are assigned when there are operators in occupation at a site. This is a complex issue and I am aware that the Minister and his colleagues at DCMS have been grappling with it as the Bill has been developed, but it is vital that the Government get this right.
The issue that the Government are trying to address was brought about by a confusion in the 2017 code. There have been some issues where operators have been prevented from getting the code rights they need to support their networks because they are already in occupation of the land and they cannot grant themselves rights.
The Government’s original consultation response and the first draft of the Bill tried to address this by changing the definition of “occupier” in the Bill. This was at Clause 57 in the original Bill. The stated policy intent made it clear that the change is intended only to address the issue that we have outlined and to ensure that when operators are in occupation of land they are able to obtain new code rights.
However, it was made clear to the Minister and his colleagues at DCMS that the original draft would in fact have much greater implications and would potentially allow operators to misuse Clause 57 as it was originally set out to modify or cancel agreements mid-term. This would be in the operators’ interest, since they could break a contract that had been agreed in good faith and move the new contract on to a new valuation basis under the 2017 “no scheme” provisions for consideration.
The Government tried to address this by removing the original draft of Clause 57 and replacing it with the new Clause 57 that we have before us today. Instead of changing the definition of “occupier” in the Electronic Communications Code, it creates a more specific code right to deal with the underlying problem.
Lord Fox (LD)
I say to the noble Lord, Lord Bassam, we are coming to the Landlord and Tenant Act 1954.
The residential security of rent control caused a seizing up of the private rented sector for the next 25 years. This is something that the Landlord and Tenant Act 1954 avoided doing in the business sector by providing security of tenure, but on market rental terms. The word of warning here from the noble Earl is that Government should be careful what they wish for and how they go about any significant transition in dealing with human sentiment against actuarial robotics, and be aware of whose voices they lend their ears to.
There are apparently three routes to lease renewal: the 1954 Act, which the noble Earl believes is effectively overwritten in some instances by the 2017 code revision; the immediate pre-2017 code for non-LTA leases; and the situation that pertains for agreements following the 2017 changes. This seems a recipe for confusion, and if the noble Earl is confused, where does that leave the rest of us?
There is a lot of detail in quite a short amendment, but this is an issue. I understand, and I think my noble friend Lord Clement-Jones and the noble Earl, Lord Lytton, understand, that there needs to be some clarity over which measures apply where, and whether the Government really want to sanction wholesale renegotiations of the nature that the noble Earl, Lord Lytton, has set out. I think that is a law of unintended consequence, and it will slow down the implementation of what we want to be implemented rather than allow it to happen more quickly.
The Earl of Erroll (CB)
My Lords, I would add that I completely trust my noble friend Lord Lytton on these affairs and issues. I have talked to him, particularly when discussing burying fibre and things like that, and he knows a lot about it.
Baroness Merron (Lab)
My Lords, this is of course the first of a number of amendments that deal with Part 2 of the Bill. The amendment refers to telecoms infrastructure. This is far from the only debate that we will have on broad issues around property rights, operators, access to land and so on but, as a general point, it is worth restating our belief that this country needs access to better digital infrastructure. Our concern is that the Government have not been hitting their targets for the rollout of gigabyte-capable broadband. There have also been issues around the rollout of 5G technology. Although we want to see decent infrastructure, we also want to see fairness in the system, and that is what this amendment speaks to. It seeks to ensure a degree of continuity and fairness as new agreements are made to replace existing ones.
The principles cited by the noble Lord, Lord Fox, and in the amendments tabled by the noble Lord, Lord Clement-Jones, are reasonable. Again, they are principles that I am absolutely sure we will return to next week, as we have ever-more detailed discussions about rents, dispute resolution and so on.
As has been outlined in this debate, the court is not currently bound to consider the terms of an existing agreement. This feels like a significant oversight. Perhaps the Minister can inform us about what actually happens in practice and what will happen in practice. Both operators and landowners have, or should have, certain rights and responsibilities within this process. I look forward to the Minister’s response to Amendment 17 and to moving some of our own amendments during day two of Committee.
Lord Parkinson of Whitley Bay (Con)
As the noble Baroness says, this begins to anticipate some issues to which I know we will return on the second day of Committee, but it is useful to begin them tonight.
Amendment 17 seeks to insert a new clause after Clause 57 of the Bill. Its purpose is to add an extra element to the test at paragraph 21 of the code, where an operator enters into a new agreement because of the provisions in Clause 57. This is likely to be in circumstances where an operator in occupation of the land on which its apparatus is installed has an existing agreement but wishes to seek an additional code right. The code currently provides that operators in exclusive occupation of land are unable to obtain additional code rights until their existing agreement is about to end or has ended. This is because the code currently provides that only an occupier can grant code rights, and the operator clearly cannot enter into an agreement with itself.
Clause 57 remedies this position and allows an operator to obtain code rights where it is in exclusive occupation of the land. The test at paragraph 21 of the code is often referred to as the public interest test and sets out what a court must consider when deciding whether to impose a code right on a landowner. Paragraph 23 then sets out how the court should determine the remaining terms of the code agreement. Clause 57 simply gives an operator the ability to obtain a new code right or rights that they do not already have. The clause does not allow an operator to force changes to its existing code agreement or to compel the other party to modify any of its terms—for instance, to attempt to reduce the amount of rental payments. Furthermore, the clause does not enable an operator to bring an existing agreement to a premature end in order to take advantage of more favourable terms. Any existing code agreement that the operator has will be expected to continue and operate alongside the agreement relating to the new code right.
Amendment 17 seeks to expand the test at paragraph 21 so that the court also has to consider the terms of any existing agreement and any other method of statutory renewal available. We are, however, of the view that the court can already take such matters into consideration when deciding whether to make an order under paragraph 20 of the code, and again when applying the test at paragraph 23 to determine what terms the code agreement should contain.
This is a topical issue. Clause 57 rectifies an issue in the code that currently prevents operators who are in exclusive occupation of the land being able to obtain new code rights. As I said, three cases have touched on this issue, all of which were heard in the Supreme Court earlier this year, and the Supreme Court is due to hand down its judgment tomorrow.
At present we believe that Clause 57, as drafted, achieves its intended objective, but we recognise that this is a complex and technical area, on which the noble Lord, Lord Fox, valiantly conveyed the expert view of the noble Earl, Lord Lytton, and it is imperative that any unintended consequences are avoided. We will of course look closely at the Supreme Court’s judgment and carefully consider whether further amendments are needed, engaging with interested parties as required to ensure that the aim of the clause is fully realised.
I too am very conscious that the noble Earl, Lord Lytton, with whom we have already had some discussions on this and broader aspects of the Bill, will want to join those discussions, so I am sure he will be following the official record. But I am very happy to meet the noble Lords who have spoken, as well as the noble Earl, to discuss this issue in further detail, particularly once we have seen the judgment. For now, I urge the noble Lord to withdraw the amendment.
Lord Fox (LD)
I thank the Minister for his response, during which he said that the department is of a view. When I was speaking for my part, rather than for the noble Earl, I made it clear that there were quite strong opinions that that view might not be correct. Three cases are to be judged tomorrow, before this Bill is enacted, so although it may have some relevance, it will potentially —and in the views of the people we have spoken to, almost certainly will—end up back in the courts.
We share the objective of the noble Baroness, Lady Merron, that the rollout be accelerated, not inhibited. We also share the view, as expressed in the not very veiled threat in the part of my speech on behalf of the noble Earl, Lord Lytton, about what the 1963 rent Act did, which was clog up the system. We do not want to do that—we cannot afford to clog up the rollout. There are strong suspicions that, without giving the legal certainty we need to avoid getting tangled up in the courts, we will be back there again, notwithstanding the judgments of tomorrow. That said, I beg leave to withdraw Amendment 17.