Grand Committee

Monday 31st October 2022 Grand Committee

Monday 31 October 2022

Arrangement of Business

Monday 31st October 2022 Grand Committee

Announcement

15:45

[The Deputy Chairman of Committees (Lord Geddes) (Con)]

My Lords, if there is a Division in the Chamber while we are sitting, the Grand Committee will adjourn as soon as the Division Bells are rung and resume after 10 minutes.

Higher Education (Freedom of Speech) Bill

Committee stage
Monday 31st October 2022 Grand Committee

Committee (1st Day)

15:45

Relevant document: 3rd Report from the Constitution Committee

Clause 1: Duties of registered higher education providers

Amendment 1

Moved by

[Baroness Smith of Newnham]

1: Clause 1, page 1, line 10, after “speech” insert “within the law”
Member’s explanatory statement
This amendment seeks to ensure that the definition of freedom of speech in section A1 is identical to that within A3.

[Baroness Smith of Newnham (LD)]

My Lords, I rise to speak to Amendment 1 and other amendments in the name of my noble friend Lord Wallace of Saltaire, with his permission, as he cannot be with us in Committee today.

Quite often in Committee, the first amendment can seem a little trite. Sometimes it inserts “and” or deletes a semi-colon, because the way we have to table amendments is sometimes a little esoteric. On this occasion, the first amendment fits with the wide range of amendments that form this group—namely, in Amendment 1, my noble friend suggests that after “speech” we should insert “within the law”. This goes with a whole set of amendments that, in many ways, are trying to ensure that the variety of issues within this legislation, if it is necessary and has to pass—like my noble friend, I query its necessity—are dealt with. The first amendment seeks to make sure that we are clear about what we are looking at in the concept of freedom of speech. Reaffirming that within the law is clearly important.

My noble friend also tabled a range of amendments to insert or withdraw “beliefs”. He says that they are self-evident but, in particular, he wants the Committee to think about what His Majesty’s Government mean by “beliefs” in the context of this legislation, because the problem that this legislation purports to resolve is about freedom of speech in higher education, but that concept is not always well-defined.

At this point, I take a moment to declare my interests. As outlined in the register, I am an academic employed by the University of Cambridge, a fellow of Robinson College Cambridge and a non-executive director of the Oxford International Education Group, plus I sit on the odd advisory body of other places of higher education. Therefore, I have a professional interest in the Bill, but I also have an interest in ensuring that any legislation that we pass is absolutely clear. One of the biggest problems for many of us, whether in higher education or other parts of public service, is not necessarily whether the legislation exists but how clear it is and how effectively the people subject to it are going to be able to monitor it—is it clear to everybody? One of the best examples of this was the Licensing Act 2003. When it was introduced, it was full of uncertainty, vagueness and lack of clarity. It took many amendments and much work by local authorities to understand what the Government wanted.

It is important that in this legislation we are clear what is meant by “beliefs” and what the Government’s understanding of “beliefs” is. Also, as Amendment 3 in the name of the noble Lord, Lord Collins of Highbury, points out, we need to be clear what we are talking about in the context of freedom of speech in higher education. Although there are no Liberal Democrat signatories, I have no hesitation in putting forward Liberal Democrat support for Amendments 3 and 11, because both amendments are extremely important to bring clarity. I shall not pretend in Committee to channel my noble friend Lord Wallace; I shall simply move the amendment in his name, support those in the name of the noble Lord, Lord Collins of Highbury, and look forward to hearing the debate at this stage. I beg to move.

[Lord Hope of Craighead (CB)]

My Lords, I shall speak to Amendment 2, which is in my name and that of the noble Lord, Lord Triesman. The amendment seeks to do two things. First, it seeks to explore what the Government mean when they refer to

“freedom of speech within the law”

in new Section A1(2). Secondly, it seeks to avoid a possible inconsistency between the freedom of speech that the Bill seeks to protect and promote and the right to free expression that is protected by Article 10 of the European Convention on Human Rights.

There is a bit of history behind this amendment. I drafted it just after the Bill received its Second Reading in the summer. At that time, the Prime Minister was Boris Johnson, the Secretary of State for Justice was Dominic Raab and the Bill of Rights had just been introduced, which I think it is right to say he particularly favoured. The point that concerned me at that time was two Bills dealing with freedom of expression or the right to freedom of speech proceeding together without any connection between the two. What happened, as we all know, is that there was a change of Prime Minister. When Liz Truss became Prime Minister, Dominic Raab was no longer the Secretary of State for Justice and it was made known that the Bill of Rights was no longer to be proceeded with. However, there has been another change: we have a new Prime Minister, Dominic Raab has come back in again as Secretary of State for Justice and it is possible that the Bill of Rights may be resurrected and create the problem that I was anticipating in the summer. I stress that one of my motivations behind this amendment was to be sure that both bits of legislation, if they are to proceed, are in communication with each other and that, when we use the expressions “freedom of expression” or “freedom of speech”, we are talking about the same thing.

I come back to the point that I mentioned at the beginning: the phrase “within the law” needs some explanation. It seems to assume that the law already tells us what the freedom amounts to. I think that most people—certainly most lawyers—would tend to look to Article 10 of the European Convention on Human Rights as telling us what the freedom amounts to, because it spells it all out and it is suitably qualified for various reasons when you read the second part of Article 10. I should have thought that to build it into this Bill makes good sense. The amendment seeks to explain and give body to the expression “within the law”.

Those are the two reasons: first, to give greater body to the phrase “within the law”, so that everybody understands what it means and to preserve consistency with Article 10, which is part of our law; but also to avoid a possible inconsistency with the Bill of Rights, should it be reintroduced, because it would be unfortunate if that Bill, when it talks about freedom of speech, as it does, should be using a different basis for legislation. I should explain, and I am quoting now, that Clause 4 of the Bill of Rights says:

“When determining a question which has arisen in connection with the right to freedom of speech, a court must give great weight to the importance of protecting the right.”


It goes on to say:

“In this section ‘the right to freedom of speech’ means the Convention right”.


It then sets that out in full in the way that my amendment does.

My amendment is based on the wording that can be found in Clause 4(2) of the Bill of Rights as it was, and it is the best I can do to bring the two Bills into line. With great respect, I do not think that this amendment does anything to harm this Bill or in any way interfere with the basic principles which the Government are seeking to achieve by promoting this legislation. All I am trying to do is avoid misunderstandings and inconsistencies. With that background, I commend the amendment to the Committee.

[Lord Triesman (Lab)]

My Lords, I start with my declaration of interests: I still hold academic posts at Cambridge, and I was the general secretary of what was the Association of University Teachers, now UCU—it is a rather different beast these days, but none the less, it was part of my history. It is a privilege to follow the noble and learned Lord, Lord Hope of Craighead. I think the distinction he makes, and the way we could embody consistency between potential pieces of legislation, is very important.

Although Amendment 22 is in a different group, I will make a point now which might mean that it does not have to be repeated later. It is very important to the academic world to know exactly what we as legislators mean by the different terms used. These terms are used very widely in academic life; they always have been and so they should. They were widely defended in academic life as being fundamental to its culture. I would like to believe that they are fundamental to the culture of many other parts of life as well, but they were fundamental to that culture. One of the reasons it is so important to express these concepts in this Bill, and one of the reasons I can understand why the Government have produced it now, is that, sadly, the challenges to freedom of speech and academic freedom have become much more acute and have not been dealt with particularly effectively.

I hark back to the earlier period precisely because the sector itself would have then dealt with these things very firmly and effectively. It was the DNA of the sector. Nobody would have questioned the right of people within the law to espouse views that were unpopular, take sometimes dogmatic positions and engage in every kind of argument under the sun, and, if others wished to try to rebut those arguments, to hear those other arguments in the same spirit. That was—I hope the Committee will forgive me for repeating the point, but it seems so fundamental—the DNA of this sector. I would like to feel that, when the final draft of this Bill appears, it will contain expressions about that which will be instantly recognisable to the people who used to celebrate those values. They will then see this as theirs, not just ours—not just what legislators think is right but what the sector was committed to and always believed was right. The noble and learned Lord, Lord Hope, has done us a great favour in saying that.

I also support wholeheartedly my noble friend Lord Collins’s amendments. I want to make one brief point about the concept of “within the law”. Generally speaking, I would hope that I understand what those words mean, but there are some areas where freedom of expression arises where I am not entirely sure that I do. I want to mention those here, not because I want to restrict people’s freedom of expression but because I do not want us to do undue harm to anybody. I am thinking here of the kind of coverage given in public by some people to the murder of the children at Sandy Hook and the case, which I believe will be reported on “Panorama” this evening—goodness knows how I know, but I have heard this—to do with people making gross allegations about what happened at the Manchester Arena bombing.

16:00

I am not 100% certain—and I shall not pretend to be, as I am not a lawyer but a mathematician by trade—whether those things are strictly against the law, or whether somebody getting up in a university and repeating those conspiracy theories would be breaking the law. I would dearly like to know, and it may well be that there are definitions that would be satisfying to me and to the Grand Committee. But what seems to me worth expressing and exploring is the thought that some things do such egregious harm to the victims of terrible crimes that we should not be negligent about preventing that harm being done to those near and dear to them and others scarred by that experience.

A simple way of dealing with it, I suppose, would be to say, “Here’s a law that prevents that kind of behaviour”, and then it would be contrary to the law. I am not confident enough to know whether that is the case. But on the margins of this, I do not want another parent, aunt, uncle, brother or sister to have references to those appalling crimes repeated ceaselessly and without any chance of redress. I make that point in part in agreeing with what my noble friend Lord Collins has said in his amendment. I would like to believe that the scope is wide enough to deal with what I think would be an appalling act, were it to be committed.

I come back to my fundamental point: at the end of this, whatever we say and whatever mechanisms we put in place, the academic community has to own it. It has to say that the culture of free speech is fundamental, and it needs to know that that is what it lives and breathes by. It will listen to legislation, but if it does not embody it in its own culture, we will have failed.

[Lord Moylan (Con)]

My Lords, I will speak to the two amendments in my name in this group, Amendments 13 and 28. In doing so, I am conscious of speaking after the noble and learned Lord, Lord Hope of Craighead, with whom I agree on the matter of principle—a nice easy place for me—but disagree on the response of substance. It always fills me with trepidation to think that I am not on the same page as he is on some things.

I shall address the two amendments in the reverse order and speak to Amendment 28 first. That amendment should have been coupled with a proposal to delete lines 36 to 38 on page 2, which it appears to replicate in some ways; that will be corrected at Report, if we get that far.

The substance of what we are discussing is essentially clear. The noble and learned Lord, Lord Hope of Craighead, has rightly pointed out that the Bill lacks a clear definition of what is meant by free speech, and on that we agree. He proposes that the definition of free speech be tied to the convention right in relation to free expression. My view is that that does not take us far enough. The convention right is, first, subject to the jurisdiction of the European Court of Human Rights, which has a history of narrowing that definition over time and creating more exceptions—for example, for the protection of reputation, and so forth. Because it is one that can be appealed in the European Court of Human Rights, it is likely to be interpreted in a very legalistic way by universities and to lead to a great deal of litigation. As the noble Lord, Lord Triesman, rightly said, universities need to be persuaded to own this as a project and not regard it simply as a further aspect of the legal thicket through which they have to work.

There is also great advantage in having a definition of freedom of speech which is a British tradition and based on British notions of common law: the notion that you are free to express anything which is not specifically prohibited by law. That is a different approach, if I may say so, from the one being advanced by the noble and learned Lord, Lord Hope of Craighead.

Amendment 28 is an attempt to put that approach—the idea that you can say something as long as it is not prohibited by law—into statute. That is the essence of Amendment 28. It contains an exception for Holocaust denial, but otherwise I think it resolves this question of defining freedom of speech in a clear and unambiguous way. I say this without knowing any more than the noble and learned Lord does about the Government’s current intentions in relation to the Human Rights Act, but my definition would future-proof the Bill against any attempt to resile from the European Convention on Human Rights that might come forward in such legislation, if it appears.

I now turn to Amendment 13, which is an attempt to define what is meant by reasonably practicable on the part of universities. Here, as the noble Lord, Lord Triesman, has made clear, drawing on his experience as an academic, there has been a significant change over the years in the attitude of universities towards these tricky and difficult questions. As he says, some years ago, when he was perhaps a younger academic, university authorities themselves were committed to freedom of speech and it was they who would be protecting those who wished to express controversial and difficult appointments from the activist behaviour, riots or mobbish-type behaviour that might seek to close them down. As the noble Lord implied, the situation now is that, very often, the problem arises not simply from the student activists but more from the university authorities. We perhaps need a more directive approach, one that makes clear the burden on university authorities to protect free speech, as we can no longer rely on that innate instinct of theirs to do so.

As I said, Amendment 13 is an attempt to do that. First, it makes it clear that doing nothing is a reasonable activity—so that not intervening in order to close things down is a perfectly reasonable activity—and that there should be a clear obligation of tolerance on universities, allowing them to restrict only speech that harms the functioning of the institution. That is a vague phrase which perhaps could be improved in discussion as we come to Report, but I suggest that that latter category would include anti-social behaviour of abuse and insult, or destructive behaviour or racism. Those things could be taken to harm the functioning of the institution, but they would be narrowly drawn so that, in practice, the university had a legal obligation to defend people’s right to their free speech.

It is, if I may say so, a different approach—a slightly fresh and unusual approach. We are understandably so used to relying on the European convention as the basis of our interpretation of rights in the modern age, but our rights go back to well before the drafting of and our accession to the European Convention on Human Rights. We have a proper and correct, distinctly British approach to rights: the notion that one should be able to say something that is not prohibited by law and free to do so is a much wider notion than that imported in the European convention. I think it is a defensible one, and I think the notion in Amendment 13 of what constitutes reasonably practicable addresses the change in circumstances since the 1986 Act in a way that the noble Lord, Lord Triesman, identified. I believe it makes the fairly vague obligation on universities in that Act much clearer and much more deliverable.

[Lord Hunt of Kings Heath (Lab)]

My Lords, it is a great pleasure to follow the noble Lord. In this very short but interesting debate we have already seen the problem that the Government are essentially seeking to address—a failure of leadership in many of our universities—through legislation that, given the amendments we have seen today, I suggest will be very hard to implement.

I remain unconvinced that this is the right way to tackle what is undoubtedly a problem in our universities. I first came across this when meeting Professor Kathleen Stock, who was subjected to horrific abuse in her own university for simply saying that your biological sex cannot be changed by feelings of identity, which I think are quite unexceptional and certainly legal remarks. Many other women academics in universities have felt threatened and censored for the simple act of trying to engage in these kinds of debates, particularly in relation to women’s sex-based rights. Unfortunately, many universities have allowed abusive behaviour to go unchallenged.

It seems to me that, at the heart of it, there is a question as to whether, even at this late stage, we can look to universities to put their house in order. I think that that would be a much more appropriate way forward than seeking to implement what I am convinced will be wildly impractical legislation. Already, our very civilised debate over what we mean by free speech suggests that this will be a huge problem when it comes to implementation.

The recent survey by the Higher Education Policy Institute showed a distinct shift in attitude by students, who it says

“have a very different conception of academic freedom and free speech norms than earlier generations”.

It suggests that these may have

“swung too far in one direction, with relatively few students recognising the unavoidable trade-offs involved with ever-greater restrictions on legal free speech.”

HEPI has come up with a list of things that it thinks universities might take forward, which seem very sensible to me. They include:

“reassessing formal procedures, such as existing codes of practice … ensuring consistent good practice, such as balancing controversial speakers with others … giving students improved information on academic norms, including in freshers’ weeks”.

I still think it might be better if the OfS, HEPI and the universities were allowed to work this through together. I suggest to the Minister that, if I were him, I would delay the date on which the Bill came into force to give universities time to try to change the culture and atmosphere within universities. This would be a much more practical and effective way of going forward.

However, if the Government are determined to press ahead, they clearly need to answer a lot of questions about the practical implementation of what they are proposing and the guidance to be given to universities. This is the reason for my Amendment 25. The question is how far intimidatory tactics against people speaking in universities are to be allowed under this legislation. We have seen intimidatory tactics. They can take a range of forms, including open letters demanding that an academic should be sacked for what they have said, vexatious complaints, petitions to publishers demanding that work be withdrawn, campaigns of defamation and smears, demands to prevent an academic being platformed, attempts to prevent events going ahead by threatening trouble if they do, and disrupting events that do go ahead. The targets of these tactics are typically women who believe that sex matters and have the courage to say so.

One possible response to these kinds of attacks is to frame the attempt to silence as itself a form of free speech, but this confuses the right to protest with a right to silence others. Speech that is merely intended to silence the speech of others, far from contributing to knowledge and learning, narrows the scope of the educational sphere. I argue that to frame attempts to silence as equally valid speech ignores the educational purpose of the university.

The amendment would explicitly exclude attempts to silence the speech of others from the scope of the core “secure” duty in the Bill and would require universities to take positive steps to mitigate the effects of those exercising what has been described as the “heckler’s veto” without disproportionately affecting the right to lawful protest. It would also clarify that the use of what I have described as the heckler’s veto to silence legitimate debate and dampen academic freedom on campus is not in itself protected speech.

This is a probing amendment because I want to hear what the Government have to say about our concept of free speech, how far it goes and what is to be done with intimidatory tactics. However, I am still left with the sense that the Bill as it stands is unworkable and will be an absolute nightmare for universities to implement. If only universities had shown leadership in the last few years this would not have been necessary.

16:15

[Lord Sandhurst (Con)]

My Lords, I will speak to Amendment 30. I should first apologise for not speaking at Second Reading. Because of other commitments I could not be there at the beginning and the end, or indeed to speak in the middle.

Amendment 30 seeks to add to the proposed matters to be addressed in the education providers’ code of practice. It would add a new paragraph to new Section A2(2), which would impose an obligation within the code of practice to put in place measures to ensure that politically motivated complaints against academics do not lead to time-consuming investigations. Education providers should have procedures enabling them to dismiss vexatious, frivolous, malicious or politically motivated complaints made against a member of their community—in other words, to snuff them out at the start. It might be that sensible universities will do that anyway, but if it is made part of a mandatory condition of the codes of practice then they will all have to do that, and make certain that they do.

It is plain that there are plenty of academics who hold unfashionable views of one kind or another, and they sometimes bring in unfashionable speakers with minority views. It is also plain from newspaper reports that we operate in a climate of fear, in the sense that academics and students are sometimes afraid for their careers. Without going into any unnecessary detail at this stage, the latest incidents were at Cambridge, where Professor Arif Ahmed, who is professor of philosophy, invited Helen Joyce, who has rather clear views on sex issues. We do not have to go there, but there was a tremendous hullabaloo and his own college, Gonville and Caius, made life very difficult for him.

What might have happened is that there might have been a complaint after the event or at the time. If a summary procedure is open to the university, it would see at once that such a complaint should not go any further but should be snuffed out at the beginning. This amendment is designed simply to provide for that and to encourage universities and other education providers to do things quickly and appropriately. That will help to improve the atmosphere.

[Baroness Bennett of Manor Castle (GP)]

My Lords, I shall speak to Amendment 36 in my name. I apologise for not speaking at Second Reading. I was then in the acute phase of Covid-19, so I guess noble Lords will all be rather pleased that I was not in the Chamber at that time.

I begin by saying that I believe that this is an unnecessary Bill that is clearly playing politics with the very important issue of how critical and independent thinking happens in our country. I share the view of the University and College Union that there are great threats to academic freedom in our country at the moment. Those threats include the extreme casualisation of many parts of the university workforce, low pay and the fact that universities are being forced increasingly to act like businesses. We see the impact that that has had on freedom of speech. At Leicester and Sheffield, universities I know quite well, we had seen that whole departments doing really creative, original, critical thinking have been decimated or destroyed by the imperative to go for business returns. However, I will resist the urge to make a Second Reading speech, tempting as it is, and focus on my Amendment 36, which is drawn from an amendment that was tabled in the other place and makes a crucial point.

Anyone who read the Times this morning will have seen some very disturbing articles about harassment, particularly sexual harassment, in our military. That is a reminder of how institutions that have existed for many centuries have accumulated cultures that tend to be extremely hierarchical, and it tends to be the more junior elements who suffer pressure from the more senior. That is where harassment can be a particular issue, as was identified by the article in the Times about the military this morning.

I bring a little personal experience in that, many years ago, before the Green Party took over my life, I was very interested in history. I went to a great many academic history seminars and one thing I noticed in those seminars was that questions were asked by the senior professors, then by the professors, then by the associate professors, then by the senior lecturers, and then by the lecturers. Universities and academia in general can be surprisingly extremely hierarchical organisations. When we talk about protection from harassment, we have to look particularly at the situation of more junior staff, especially those with the casualised contracts I mentioned earlier, as so many are.

I would prefer that the Bill did not exist at all, but since it does exist, I believe it is important that we have this protection against harassment, particularly harassment against more junior members who may find themselves effectively subjected to a barrage of attack under the guise of free speech. It is crucial that the Bill does not empower that to happen.

[Baroness Fox of Buckley (Non-Afl)]

My Lords, I support Amendments 13 and 28, which I have put my name to. In general, I support any amendments in any of the groups coming up that aim to strengthen, extend or deepen the Bill’s duty to academic freedom and free speech, and that give some ballast to seeing free speech as not extraneous to the purpose of universities but core to their mission.

The key point in Amendment 13 for me is that it notes the nature of the speech as covering speech of a

“political, philosophical or academic nature”

and that

“‘Speech of a political nature’ includes … debate of any question of public interest.”

That is the kind of broad definition that we need at the present time. Amendment 13 also seeks to clarify when steps are not reasonably practicable. It avoids the excuse often given, “We tried to be reasonably practicable but”, and instead makes free speech the default position, meaning that we are not just paying lip service to it.

This is important because we have to remember that, in the Education Act 1986, there was a clear duty to ensure free speech, academic freedom and so on. But, as other noble Lords have mentioned, it might already be in the law and yet the situation is deteriorating. In that sense, I am looking to bolster and improve or strengthen the free speech aspects of the law, not just to repeat them with threats—which is sometimes the way some people talk about the Bill.

The fact that those censorious trends have carried on despite the commitment to academic freedom in the Education Act 1986 is because universities generally argue, when controversies arise, that they are balancing academic freedom against other increasingly onerous statutory duties and institutional values. One excuse given is that of avoiding harassment, which is why I am rather concerned about the amendment of the noble Baroness, Lady Bennett of Manor Castle. I have recently found harassment to be a weasel word: for many words that we think we know what they mean, we often discover it is not quite as it was previously.

It is also why I support Amendment 28. I put my name to it because it aims to provide an enhanced sense of freedom of speech but it also—and this is key—clarifies the relationship between free speech on campus and other legal duties. The Equality Act 2010 specifies that universities must prevent harassment directed at members of their community who have protected characteristics. Section 26(4) of the Act, in which harassment is mentioned, is reasonably clear and caveated—it is not a blanket provision that anyone can say “harassment”—but because harassment is defined partially by the perception of the victim, it becomes problematic for us.

Over recent years, we have seen that universities are often overzealous in interpreting their responsibilities under the Equality Act, stressing the subjective perception of complainants and ignoring other tests in the Act. To give a couple of examples, that has resulted in the no-platforming of visiting speakers such as Professors Jo Phoenix and Rosa Freedman at the University of Essex, when it was claimed by trans activists that allowing them to speak would itself constitute harassment of trans students and staff, and the university authorities accepted that. They have since received apologies, but that is not the point I am making. This harassment excuse has added to a climate that morally devalues free speech by suggesting that it is itself harmful and that free speech can be harassment, especially to identity groups.

I suppose that gets me into the bulk of what has been discussed already: how do we define free speech? At the moment, free speech is constantly maligned as nothing more than hate speech. It is constantly said to me, “Oh, you support free speech. That is because you want the excuse to have hate speech”, or, “What is your attitude to hate speech?” I am concerned that hate speech is also ill-defined and too often amounts to little more than speech that we hate.

Perhaps we have to bite the bullet in our definitions here and recognise that there is a huge range of ideas that can be and are silenced as hateful. Even if we take hate speech at face value—something that most of us would agree was hateful, such as racist speech, bigoted views or whatever—as a free-speecher, and as I think is true in academic circles, I think we have to defend views that we do not like or consider to be bigoted. We might then have an argument about which of those views is bigoted or hateful. That is especially important in a university context because that is where we think we have the seat of debating, debunking and demolishing false ideas; that is one of the key purposes of universities in and of themselves.

One reason I worry about Amendment 3, from the noble Lord, Lord Collins, is that it claims that freedom of speech should not include freedom to espouse Holocaust denial—this is an awkward thing to talk about. It is also in Amendment 28, to which I have added my name, but I feel queasy about it. I want to probe why we would make Holocaust denial a special case. I understand that the Holocaust is a special case, and we all understand that Holocaust denial is abhorrent and monstrous, and part of the vile anti-Semitic playbook, and needs to be challenged at every opportunity. But it is not illegal in the United Kingdom. I wonder whether it is appropriate to use this legislation to make this one named exception. It might give a green light to it being said of other speech, “If that can be exempt from academic freedom, why cannot this particular hate speech be banned, even if it is legal?” There is a disingenuous strand of argument that says that the Bill will allow Holocaust denial, as though the nation’s students and academics are just waiting for the Bill to pass so that they can all rush out to deny the Holocaust. It just confuses what is really at stake here.

I want to say just a couple of other things. I have every sympathy for the amendment on the hecklers’ veto proposed by the noble Lord, Lord Hunt, and the noble Baroness, Lady Morris. But in a Bill that is meant to increase students’ rights to speak their mind, it might seem a bit of a problem to hint at restricting students’ freedom to speak, even if it is to shout loud slogans. I am genuinely torn on this, but I feel that it is the wrong thing to do, as it gives the impression that only certain people are allowed to speak; I am not keen on it.

16:30

On the general point made by the noble Lord, Lord Hunt, at the beginning, I have needed to be convinced that we need this Bill at all. There is a much deeper problem of cultural change, and I worry that people will think that this Bill will be enough—a legalistic tick-box exercise. I look at it like this: of course the Bill is not a silver bullet, but already it has created quite a big debate in universities, which is important. I am not keen on using legislation for messaging purposes; it has to be more than that. I think that we just need more speech.

I am delighted that there is an initiative at Cambridge University tomorrow night, with Alastair Donald from Living Freedom, Free Speech Champions, and professors at Cambridge, including Arif Ahmed, who has already been mentioned. They will be putting on a series of seminars on John Locke and John Milton and liberty of conscience. They are trying to have a proactive attitude, and I am all for that.

To the noble Lord, Lord Hunt, and others who are sceptical, I say that that is necessary but the Bill is the bottom line. The more that we can clarify through this Bill that free speech is under attack and that the law will not allow people to be penalised for speaking out in terms of academic freedom, the better. But we probably have to clarify what we mean by free speech before it will work.

[Lord Mann (Non-Afl)]

I begin by saying that, although I do not know how many others here have, I have on more than one occasion been banned, or attempted to be banned, from speaking at a university. I was last issued a banning order by the University of Nottingham in 2009, I believe, which I ignored. Various people were running around with tape recorders. The argument put forward then was that I might say something offensive because I was speaking at the Jewish society.

In the 1980s I was banned, and I had to have a meeting reorganised in a local hostelry. I was banned then because—it was very simple and straightforward—I had had the audacity the year before to visit the state of Israel. I spent four days there with the Government, but I also spent four days with Fatah, the Palestinian liberation organisation on the West Bank. It seemed to me a balanced visit, and very interesting and educational. But I was banned from speaking at a university and in two other universities my publicity was withdrawn, which made it rather difficult for anyone to attend a meeting because they did not know that one was taking place.

So this is not a new problem—and nor is it a new problem in terms of debate. I recall well the speaker tour of the Paedophile Information Exchange across universities, which took place in 1978 and 1979. Many universities had such speakers; the content was not illegal but without question it was an organising campaign for that organisation, much more than an educative one. That was certainly my assessment of it. I recall in 1985 the banning of Jewish societies, on the basis that they were bound to be racist because they were full of racists and therefore should not be allowed any space in a university. I make the point simply to inform the debate—we are not talking about a modern phenomenon.

I want to pick up one particular point from these amendments: the proposal on Holocaust denial. It is true that Holocaust denial is not a criminal offence in this country, unlike in other countries, such as Germany and Austria—I think seven or eight countries across western Europe have that. To me, that does not seem a sufficient reason not to have such an egregious denial of history in this legislation. It would be a positive outcome if the Government wished to go further in terms of criminal justice. That would be done by a separate department, with separate legislation, and it may well get some support. In this context, it seems that provisions on the acceptability of entirely turning history on its head would be helpful to our universities, although the main problem we have these days is of course Holocaust distortion and minimisation. I would not suggest going further into a much greyer area, but I think this proposal ought to be considered very strongly by the Government.

[Lord Macdonald of River Glaven (CB)]

My Lords, I declare an interest as the former warden of Wadham College, Oxford, and as an honorary fellow there and at St Edmund Hall, Oxford.

I have a great deal of sympathy with the remarks made by the noble Lord, Lord Hunt, in which he identified a problem but suggested that this Bill was not the right way to confront it. As the noble Baroness, Lady Fox, rightly said, the problem is a very deep-seated cultural issue that I doubt will be dealt with significantly by this legislation, should it pass. It is my experience of running a college that has led me to feel rather queasy about some of the slightly nightmarish, as I see them, schemes and bureaucracies proposed by the Bill.

Of course, there is an issue. The case of Kathleen Stock is the most egregious example. In my view, she was disgracefully mistreated by her university and professional colleagues, not to speak of the students at the University of Sussex, some of whom seemed to be clearly breaking criminal law with the demonstrations they mounted against that highly respected academic. Young men—they seemed to be men—wearing balaclavas, holding flares and chanting threats against her seemed to me clearly to represent a breach of the criminal law, and it is a great shame that the university did not see it that way.

However, it is not just Kathleen Stock. The events in a Cambridge college over the past few days have also been deeply disturbing. The idea that a writer such as Helen Joyce, who I would regard as entirely in the mainstream, should be regarded by the most senior figures in that college as unacceptable as a speaker seems deeply depressing and redolent of a cultural problem, not just in that college.

An amendment put forward by the noble Lord, Lord Hunt, therefore attracted my interest. It is the one that relates to the question of a hecklers’ veto. The way I perceive it, the issue in universities is not so much that events are being stopped by demonstrators standing outside chanting and making a nuisance of themselves; it is the more or less cowardly response of university and college authorities who decline to host events when they fear or are warned that that sort of response will eventuate. This is a true hecklers’ veto. I have some sympathy with that amendment, although I share again the hesitation expressed by the noble Baroness, Lady Fox, that the Bill should contain a clause which is anti-free speech, if you like, rather than it being consistently pro-free speech.

I have great respect for the noble Lord, Lord Moylan, but I strongly disagree that Article 10 is somehow deficient for our needs in this area. On the country, it provides generous and comprehensive jurisprudence on the right to free speech; it is suitably qualified and well understood by our courts, public bodies and public institutions. It is certainly well understood in the University of Oxford, the university I have been most associated with. I think Article 10 is entirely fit for purpose and I strongly support the amendment from the noble and learned Lord, Lord Hope, to reference it in this legislation. It would provide consistency and legal certainty, so I hope the amendment will not in the end be controversial with the Government.

[Baroness Chakrabarti (Lab)]

My Lords, I did speak at Second Reading, so I really am not going to make a Second Reading speech; I am not going to say I am not and then do it. Although I have been clear that I think the Bill is a mistake that will lead to a great deal of time-consuming, heartbreaking and expensive litigation for our universities, which should instead be engaging in what they should be engaging in, including creating the culture that we all want, I say in some sort of spirit of bipartisanship to the noble Lords and Ministers opposite that the amendment from the noble and learned Lord, Lord Hope, is a learned and friendly gesture indeed.

All these amendments and everything that I have heard so far merely emphasise the dangerous complexity of legislating so clearly in the realm of a convention right without referring to it at all, save the statement that the Minister is required to make on the cover of the Bill about compatibility with Article 10. It is clearly the Government’s intention that this Bill, wrong-headed though I think it is, should comply with Article 10, so to try to redefine Article 10 in a slightly different way in the body of the Bill is a mistake that adds to the complexity and the danger for different regulatory bodies, be it the Equality and Human Rights Commission or the Office for Students. The noble and learned Lord has helped by making it clear that freedom of speech within the law in the United Kingdom means compliance with Article 10 of the convention. Frankly, that was pretty much the case before incorporation by way of the Human Rights Act.

I take the point from the noble Lord, Lord Moylan, that, with the resurrection of the former Justice Secretary and Deputy Prime Minister, he wants to future-proof and hopes for the scrapping of the Human Rights Act, but even the rather botched and misnamed Bill of Rights Bill purports to comply with Article 10. It is jumping the gun to try to define freedom of speech within this sector differently from the way it is defined in every other aspect of UK law and life.

I also say to the noble Lord, whose libertarian instincts on free speech I share, that, as a matter of jurisprudence and law, he is mistaken in a number of ways. It is all very well banging the drum for the common law, but there literally was no actionable right to free speech in this country until Article 10 was incorporated by the Human Rights Act. There could be under a future Bill of Rights, but there literally is not this magic thing in the common law that will protect people’s free expression without Article 10. Why? Because Parliament is sovereign and every other law that impacts on free speech will trump the free speech that I believe the noble Lord wants to see. Evidence for that lies in the issues around policing and all the other things that he has touched on in the Chamber in his time in the House. Parliamentary sovereignty will trump common law, and without Article 10 there is currently no actionable right to freedom of expression in this country.

With respect, his Amendment 28 fails to achieve what he would like. It is much more limiting a protection than the protection in the extensive jurisprudence of Article 10. For example, to say:

“‘Freedom of speech within the law’ means”


freedom of speech that

“is not prohibited by law”

is somewhat circular.

16:45

Crucially, to give a great big “get out of jail free” card for any confidentiality agreement will make a lot of people very nervous about the way in which such confidentiality agreements have been used and abused by the powerful against employees and other staff in recent years. The beauty of Article 10 is that it would not be open to a funder or a university to construct such a non-disclosure agreement in a way that did not comply with Article 10. They are public authorities under the Human Rights Act. As long as we have the Human Rights Act, they must honour their Article 10 obligations to protect people’s free speech, even when they are considering employment contracts, confidentiality agreements and so on. It is a mistake—and it interferes with the precious right to free speech—to make exceptions in that way.

Finally on this whole issue of the relationship between Article 10 and the Bill, the point from the noble Lord, Lord Moylan, worrying about the jurisdiction of the Strasbourg court because it is an appeal court, as he put it, is not quite right. He will appreciate that only victims of human rights abuses can go to the Strasbourg court, not the Government. It is really our own Supreme Court here in the UK that is a proper appeal court and referee in relation to free speech. If people are unhappy about what the Supreme Court has found, only a victim—not a public authority or the Government—can seek further redress in the Strasbourg court.

The noble Lord, Lord Moylan, will also know that our courts, and ultimately our Supreme Court, need only take account of the Strasbourg jurisprudence; they are not bound by it. So Article 10 is actually squarely in the hands of our own judges to make their own jurisprudence.

Universities are already public authorities under the Human Rights Act. If they are not discharging their duties currently, that will partly be a matter of culture. It may also be a matter of students, academics and others not having the confidence to challenge universities, or perhaps not having access to legal aid in order to do so.

We will come on to the mechanisms of complex litigation later. I commend Amendment 2 from the noble and learned Lord, Lord Hope, and my noble friend Lord Triesman. While I disagree with the Government, I think they would be very wise indeed to accept it.

[Lord Moylan (Con)]

My Lords, it sounds to me that the noble Baroness is making the case for why Article 10 is insufficient. It applies already and it is not working. She has given a number of reasons why it is not working. It has not achieved the culture shift that—I think this is common ground—we believe needs to be achieved.

[Baroness Chakrabarti (Lab)]

Inasmuch as there is a limit to what any legislation can do without the resources and culture, clearly that is the case. This is an argument that people make against human rights all the time. My point is simply that, if you are legislating for free speech in any sector in this country, you have to make reference to the human right to free speech in this country. Our current legal regime means that that is Article 10.

[Lord Moylan (Con)]

With respect, I have not made a case against human rights. The definition I propose does not impinge on or restrict Article 10; it actually gives greater freedom and greater rights. I quibble at that point, because it is quite a serious point if it is being suggested that I am trying to impinge on existing rights. I am not.

[Baroness Chakrabarti (Lab)]

I beg the noble Lord’s pardon. I take the point, and I tried to make it clear that I know that he has a very libertarian instinct towards free speech, which I share. I tried to argue that his Amendment 28 is more restrictive than Article 10; that is a matter of the way that it has been crafted.

My general point is that if this area of complexity that we are entering is to be made even more complex and potentially incoherent by having two different definitions of freedom of speech—one for everyone in the country and in the Council of Europe, to some extent, under Article 10 and another in relation to universities only—then that is at the heart of the problem in a thoroughly problematic Bill.

[Lord Grabiner (CB)]

My Lords, I also apologise for not having participated at Second Reading. I have a perfectly excellent excuse: I was having knee surgery, which I am afraid has not worked out as well as I had hoped, so I will have to go back for some more. That is my reason for not having attended before.

I should disclose my interest in this Bill. In previous lives I was for nine years chairman of the LSE and for seven years, until last year, the master of Clare College, Cambridge. I am an honorary fellow at both places. I am currently president and a non-executive director of the University of Law.

Unlike some noble Lords who believe that there is no need for this Bill, I take the view that there would be great value if legislation was in place that enshrined the duties spelled out in Clauses 1 to 3. On the need for the statutory duties, I respectfully agree with the points the Minister made at Second Reading, especially when he listed numerous examples of recent behaviours that were designed to stifle freedom of lawful speech or had that effect. I completely agree. I take much the same position as the one advocated at Second Reading by the noble Lord, Lord Macdonald of River Glaven. There is a serious problem, but in key respects the Bill addresses it, though not necessarily in the best way and possibly in the wrong way.

As far as the matters that are being discussed are concerned, I will deal very briefly with one point. It has become apparent from a number of points that have been made thus far that there really should be a definition in the Bill, and ultimately in legislation, of freedom of speech within the law. At the moment, the Bill contains no definition provision at all. My view, for what it is worth, is that the definition put forward by the noble and learned Lord, Lord Hope of Craighead, is a perfectly excellent and workable suggestion.

I would not go so far as to say that I disagree with the proposal in Amendment 28 from the noble Lord, Lord Moylan, and others because at the moment I have not fathomed in my own mind the relationship between the noble and learned Lord’s proposal and the noble Lord’s. There may be some scope for a combination of the points made in both amendments—I do not know. If anything was to be added to the definition in the amendment from the noble Lord, Lord Moylan, I would be interested in seeing precisely what that was before coming to a final conclusion on the validity or worth of one amendment versus the other.

The one point that I would pick up on in relation to the amendment proposed by the noble Lord, Lord Moylan—the noble Baroness adverted to it moments ago—relates to the reference to “any confidentiality agreement”. In my view, that is far too wide. Non-disclosure agreements have developed a good deal of notoriety, especially over the last few years. If the non-disclosure agreement were to be used as a mechanism effectively for suppressing free speech—of course that is very often precisely why they are devised and forced on one side to sign up to—the reference to the confidentiality agreement proposed in Amendment 28 would not be acceptable.

There may be very good occasions when a confidentiality agreement needs to be properly respected and observed, when it is not being used for that offensive objective, to suppress free speech. There will be many circumstances, commercial as well as in a university environment, where the need for confidentiality is absolutely critical, but I would not agree simply to have a broad exclusion for confidentiality agreements.

[Baroness Smith of Newnham (LD)]

My Lords, I wish to speak briefly in my own right, as opposed to speaking for my noble friend Lord Wallace, apart from one point about Amendment 1. The point of adding “within the law” is to fit with new Section A3, but that would be subsumed by the amendments in the name of the noble and learned Lord, Lord Hope of Craighead. The idea of defining freedom of speech is highly desirable, and that amendment appears to do the job.

I have some difficulties with Amendment 28, and it would be interesting to understand what the movers of that amendment mean in proposed new subsection (2). The relationships between this legislation and the Equality Act, and this legislation and other pieces of existing legislation, need to be thought about. I have some concerns about what the ramifications of proposed new subsection (2) would be.

[Lord Collins of Highbury (Lab)]

My Lords, this has been a fascinating debate, and one we could continue for some time, because it is about trying to reach a consensus about concepts—I have my name down to Amendments 3, 11 and 30—but it is also about how we talk about free speech in universities and about academic freedom. There has been confusion in the debate about those two things. One of my amendments tries to say that we should not forget academic freedom and how important it is to university life, and asks about the constraints on it, which are not necessarily all the things that we have been talking about. In my experience, academic freedom can be constrained by economic factors and income streams that universities might have. Research can be restrained for those sorts of reasons, and academics who followed a particular route of research have been constrained by those other pressures.

The noble Lord, Lord Mann, is absolutely right. He and I have shared the same experience: political views can be unpopular, and some of the demonstrations that we have faced have been quite violent. The noble Lord, Lord Alton, has sadly left the Room, but we had a debate on Friday on his genocide Bill, as well as a debate on Thursday about Ugandan Asians. I remember standing up and defending the need to protect Ugandan Asians and facing a quite violent reaction from people. It was not limited to the streets; it was in other institutions, even in my own trade union and my own party.

As a lifelong trade unionist—I am not making a Second Reading speech, but talking specifically about my amendments—I have long experience of how politicians want laws to change culture, which is impossible. The most successful progress in industrial relations has been made not by legislation but by consensus, agreement and discussion.

17:00

My noble friend Lord Hunt of Kings Heath is absolutely right. There have been failures; the Kathleen Stock situation was a complete failure of leadership, in my opinion. Even though my noble friend and I have had disagreements about the actual issue, I do not have a problem in saying that we must stand up and say when management gets it wrong. They clearly did in that case. The failure of leadership is a key issue in terms of the definitions that will apply in this Bill.

We need to ensure that this Bill does not inhibit good practice when it becomes an Act. The danger is that some of the things in these clauses will. Universities UK issued a very clear statement on good practice that universities should follow, which I read this morning. It was a very clear statement about protecting and promoting free speech and academic freedom, and the obligation on universities to defend staff. I shall refer to one bit that struck me:

“Universities must also invest in good relations between different groups on campus, creating a climate in which all students and staff can discuss a range of topics—including the complex and controversial—in the knowledge that they will be listened to and treated with mutual dignity, tolerance, and civility.”

I do not think that this Bill will do that. What will is universities taking their responsibilities seriously, giving leadership and complying with the law.

One of my amendments specifically addresses academic freedom and goes into the issue of definition. My noble friend Lady Chakrabarti made a very strong case, and I agree with the noble and learned Lord, Lord Hope, that repeating the convention and Article 10 is a good thing. We are being very clear that the existing obligations on universities include Article 10. But what about academic freedom? This is not about just the right to free speech. What are the pressures on students and academics that could inhibit academic freedom? Hence, I have proposed the UNESCO definition, the internationally agreed definition of academic freedom, which covers the freedom of teaching and discussion, the freedom to research and publish the results, and the freedom for higher education teaching staff to express their opinion about the institution and system in which they work.

We have mentioned and will go on to discuss that insecurity in employment is often the biggest constraint on what academics can say at the moment, which is something that has changed a lot. The noble Baroness, Lady Bennett, said, and this came up in the Commons debate on academic freedom, that evidence was presented of some universities blocking research that they deemed too controversial. A lot of that is to do with the marketisation of the sector and the promotion of students as customers. I see no reason why the research interests of academics should not be protected under the definition of academic freedom.

Coming back to the point made by my noble friend and the noble and learned Lord, Lord Hope, we have mentioned before that a week is a long time in politics, so we may not know which Minister is responsible, but in the light of the Government’s stated desire to repeal the Human Rights Act there is no doubt that we need to reinforce the convention and Article 10. It is a really good point and therefore I support the noble and learned Lord’s amendment.

The most important thing about the Bill is that the scope of academic freedom needs to be as I suggest in the amendment and that we do not narrow it in the way that some noble Lords have suggested. That is why our amendment is vital.

I conclude with this point. Protecting academic freedom goes beyond partisan political lines. It provides a solid basis on which academics can feel secure enough to test and challenge the perceived wisdom. No matter how much we disagree on some of the issues—my noble friend Lord Hunt and I have disagreed on some of them—we are at one on protecting the principle of free speech and how we change the culture. As a trade unionist, I come back to that basic point. Codes of practice and understanding responsibilities are the most important things. I hope that, in our debates on the Bill as we go through each clause, we will have that uppermost in our minds.

[Earl Howe (Con)]

My Lords, we have begun our debates in Grand Committee with a group of amendments all of which, in one way or another, address the main duties in the Bill relating to freedom of speech.

Amendment 1, introduced by the noble Baroness, Lady Smith of Newnham, would add the words “within the law” and is intended, as she explained, to ensure that the reference to the importance of freedom of speech in new Section A1 is identical to that within new Section A3. Let me straight away assure her that the speech protected by the Bill is only speech that is within the law.

The duty in new Section A1 to have particular regard to the importance of freedom of speech is part of the duty to take reasonably practicable steps to secure freedom of speech within the law. It emphasises the significance of freedom of speech as a concept and ideal, but a provider needs only to take reasonably practicable steps to secure freedom of speech if that speech is within the law. So the reference to freedom of speech within the context of the duty to have particular regard does not need the narrowing descriptor of “within the law”.

This is different from the duty in new Section A3, under which a provider must promote the importance of freedom of speech within the law. The duty to promote is about encouraging a culture of free and open discussion on campus. In this context, the importance of freedom of speech does need the narrowing descriptor of “within the law”.

Amendment 2 seeks to make clear in the Bill that freedom of speech in the Bill is an aspect of freedom of expression under Article 10 of the European Convention on Human Rights. I listened with great care to the noble and learned Lord, Lord Hope, and those who spoke in support of what he said. Amendments 3 and 28 also propose definitions of freedom of speech. Amendment 36 seeks to prevent freedom of speech being used as a defence against behaviour which amounts to harassment under the Equality Act.

Freedom of speech is a term that has been used in domestic legislation in a higher education context since the Education (No. 2) Act 1986. It is well understood in that context and there is no intention to change its meaning in this Bill. It is important to note, for example, that it covers both verbal speech and written material, including in electronic form. Accordingly, freedom of speech is a broad concept, and is indeed protected under Article 10 of the ECHR as an aspect of freedom of expression. It is worth adding that Article 10 includes the freedom to receive information from other people by, for example, being part of an audience or reading a magazine, which this Bill does not cover.

There is, in fact, already a non-exhaustive definition of freedom of speech in new Section A1(11), which provides that

“references to freedom of speech include the freedom to express ideas, beliefs and views without suffering adverse consequences”.

We did not consider it necessary to include in this definition a reference to Article 10. The Human Rights Act requires that, so far as possible, legislation

“must be read and given effect in a way which is compatible with”

the rights under the ECHR. We are clear that the Bill is entirely consistent with that requirement.

The activities mentioned in Amendment 3—teaching, researching, engaging in intellectual inquiry, contributing to public debate and criticising any institution—are all covered by the concept of free speech as just described. However, affiliation to an institution and being a member of a trade union body are not per se matters of speech and so are not covered by a Bill that is about speech.

As regards Holocaust denial, referred to in Amendments 3 and 28, let me make clear that any attempt to deny the scale or occurrence of the Holocaust is morally reprehensible and has no basis in fact. In many cases, those who deny the Holocaust also have links to neo-Nazi extremism, anti-Semitic violence and intimidation. The European Court of Human Rights has held that Holocaust denial is not protected speech under Article 10 of the ECHR, as such speech is intolerable in a democratic society, and that Holocaust denial, even if dressed up as impartial historical research, must be seen as connoting an anti-democratic ideology and anti-Semitism.

There is no place in universities for extremist views that masquerade as facts but are in fact complete fiction and are deeply offensive. We certainly do not encourage higher education providers, constituent colleges or student unions to invite individuals who deny that the Holocaust ever happened to speak on campus. However, I should note that it is not the intention of the Bill to change what speech is held to be lawful or unlawful.

I turn to other aspects of my noble friend Lord Moylan’s amendment. It is not necessary to specify that speech that is unlawful, whether because it is in breach of a legal duty, a confidentiality agreement or intellectual property rights, is not included. Finally, on the element of Amendment 28 relating to the Equality Act, and also Amendment 36, it is important to note that, when considering a claim of harassment, courts and tribunals must balance competing rights on the facts of a particular case, which could include the rights of freedom of expression, as set out in Article 10 of the ECHR, and academic freedom, as set out in the Explanatory Notes to that Act. Guidance has specifically made clear that the harassment provisions cannot be used to undermine academic freedom.

Amendments 9, 10, 27 and 42 are designed to probe the meaning of “beliefs”. As I mentioned earlier, new Section A1(11) has a definition of freedom of speech which includes

“the freedom to express ideas, beliefs and views without suffering adverse consequences”.

This builds on the current wording of the Education (No. 2) Act 1986. It is vital that students, members, staff and visiting speakers can speak freely on campus about their beliefs, without damaging their prospects or suffering other repercussions. Beliefs are not the same as views.

17:15

In terms of the interaction of the Bill with other areas of law, the key point is that religion or belief is a protected characteristic under the Equality Act 2010. There is a test for what is a protected philosophical belief, but under the Bill the test is simply whether the speech is within the law, to ensure that there is freedom of speech on our campuses in the widest sense. I emphasise that the duty in the Bill to take reasonably practicable steps—

[Lord Grabiner (CB)]

I am sorry to interrupt, but the Minister said a couple of times that subsection (11) is a definition of freedom of speech. I respectfully suggest that it is no such thing; it simply says that

“references to freedom of speech include the freedom to express ideas”,

and so on. It is not a definition at all. It merely gives an example of what freedom of speech would be. The point about the amendment tabled by the noble and learned Lord, Lord Hope, in particular is that it requires the introduction of a definition into the Bill, not simply the provision of an example of what freedom of speech might consist of. I suggest that a definition is essential, otherwise you will simply be scrabbling around to see what somebody thought freedom of speech might have meant in 1986. We have a perfectly excellent definition in the human rights legislation and the convention, and I am not quite sure why there is such a determination to avoid the obvious, so to speak.

[Earl Howe (Con)]

I take the noble Lord’s point entirely. I think that I said that the definition I referred to was non-exhaustive. It is quite deliberately non-exhaustive, because it is a definition that we felt was appropriate for the purposes of the Bill. I suppose I could sum up the issue by saying that we believe there is a consistency between the Bill and the ECHR, even if there is not total congruency.

I emphasise that the duty in the Bill to take reasonably practicable steps means that providers, colleges and student unions can take account of all their legal duties on a case-by-case basis. If another legal duty requires or gives rise to certain action, it would not be reasonably practicable to override that.

Amendment 11 would provide that a non-disclosure agreement with a provider does not mean that members, staff, students or visiting speakers could not speak freely. There is an exception for intellectual property. I very much support the spirit of this amendment—in particular, victims of sexual misconduct and harassment should never be pressurised into keeping silent. The previous Minister for Higher Education, Michelle Donelan, strongly supported work in this area. She launched a voluntary pledge in January this year, in conjunction with Can’t Buy My Silence and universities, to encourage providers to commit not to using NDAs to silence victims of complaints of sexual harassment, abuse or misconduct, and other forms of harassment and bullying. To date, 74 higher education institutions and three Oxford colleges have signed up to this. The Government are working with Can’t Buy My Silence to call out those who have not yet done so.

[Lord Collins of Highbury (Lab)]

Does the noble Earl not think that that is a good example of where good practice can be adopted not by legislation but by employers agreeing that something is not appropriate? Can he not proudly point to that as somewhere the Government have intervened and change has happened without the need for legislation?

[Earl Howe (Con)]

We certainly hope that this will gain traction. I agree that in most circumstances it is better to encourage voluntary action, as long as it works. This is very much a work in progress.

We have also asked the Office for Students to create a new registration condition to ensure that it properly tackles sexual misconduct. This would have real teeth and would mean that providers could be sanctioned with penalties, suspension from the register or even deregistration. This follows the publication by the OfS of a statement of expectations for providers in this area.

I make the point that we are the first Government who are prepared to tackle this issue. I shall continue discussing with colleagues on both sides of the House how best we can tackle sexual harassment and misconduct in our universities. I therefore have no difficulty in committing to taking this matter away and looking at it further.

[Lord Moylan (Con)]

Does my noble friend wish to expand at all on my Amendment 13 about “reasonably practicable”? The essential point is that there is an existing duty in the 1986 Act that has two parts to it to take reasonably practicable steps to secure freedom of speech. If my noble friend’s position is that neither the definition of freedom of speech nor the definition of what is reasonably practicable is to be amended, why is he not frank in saying that there is no intention to change the current duty?

[Earl Howe (Con)]

I apologise to the Committee. I know that I have been speaking for a long time, but this is the very issue that I was about to come on to next, if my noble friend will allow me.

Amendment 13, which is the amendment that my noble friend was referring to, seeks generally to strengthen the test for what is “reasonably practicable”. It would mean that, in relation to speech of a political, philosophical or academic nature, it would always be reasonably practicable not to interfere; in relation to other speech, it would be reasonably practicable only if taking that step would prejudice the functioning of the provider. I hope that I have paraphrased the issue correctly.

The Government’s position, supported by the OfS, is that we stand for the widest possible definition of free speech—anything within the law—and that, where debate is particularly contentious, it is all the more important that everyone feels able to put forward their views and arguments and be heard, on all sides.

The “reasonably practicable” wording of the main duty means that providers can take account of all their legal duties on a case-by-case basis. But I must be clear that my noble friend’s proposed strengthened test goes too far in not allowing providers to take account of all the relevant circumstances, including their other legal duties—for example, to prevent unlawful discrimination or harassment, or to comply with the Prevent duty so as to stop students and others being drawn into terrorism. There may be occasions where it is not reasonably practicable to secure freedom of speech of a political, philosophical or academic nature, even if that speech is lawful, and we must not impose a test that has so few exceptions.

If I might address the point made by the noble Lord, Lord Triesman, about conspiracy theories, the question of whether espousing a conspiracy theory is lawful depends on what is said. If it is defamatory, it would be unlawful. The point of the Bill is to take a wide approach to freedom of speech as a fundamental principle in a democratic society, but there is nothing in the Bill to encourage baseless or harmful claims, or bad science, on campus, for example.

Amendment 25 seeks to clarify the position regarding balancing the right to freedom of speech with the right to protest. The purpose of the Bill is to protect freedom of speech, but the right to peaceful protest is a fundamental tool of civic expression and will not be curtailed by this Government. Of course, it can itself be an aspect of freedom of speech. If there is a protest against a particular academic because they have said something controversial but lawful, providers will need to decide what reasonably practicable steps they can take to ensure that the academic can speak freely.

The intended effect of the Bill is not to prioritise one right under the ECHR—that is to say, freedom of expression under Article 10—over others, such as the right to protest under Article 11. The requirement to have “particular regard” to the importance of freedom of speech builds on existing provision under Section 43 of the Education (No. 2) Act 1986 and could, in a particular case, prompt a higher education provider to prioritise freedom of speech over another convention right. However, this would remain subject to its assessment of what is reasonably practicable and would need to be lawful.

It is worth noting that a provider’s code of practice under new Section A2 must include the procedures to be followed when organising meetings and activities, as well as the conduct required in connection with them. This will ensure that staff and students are aware of their responsibilities as regards their own conduct.

The noble Lord, Lord Hunt, suggested delaying Royal Assent to allow universities due time. Let me confirm to him now that implementation of the Bill will not be rushed. Various actions need to be taken before the new regime can come into force, including consultation with the sector and the provision of guidance, so providers, colleges and student unions will be fully engaged and able to understand their responsibilities under the Bill.

I turn next to Amendment 30 in the name of my noble friend Lord Sandhurst, which seeks to ensure that codes of practice have a process in place for dealing with meritless claims against staff and students. It is an important point that providers should not have to spend time and resources responding to frivolous or vexatious complaints. However, I should make it clear that the duties in the Bill are imposed on the governing body of registered higher education providers. There cannot be complaints made under the Bill about the freedom of speech duties against staff, members and students of the provider, or visiting speakers, as the amendment suggests. Higher education providers will in any case have their own procedures already in place for handling internal complaints. As for burdens on providers, unnecessary bureaucracy can take up time that could be spent focusing on the academic experience and high-quality teaching, but these measures are absolutely necessary to protect the core value of freedom of speech and we consider that the duties imposed are proportionate and appropriate.

I hope my remarks have provided noble Lords with reassurance about the Bill’s approach regarding the main duties set out in it and that they strike the right balance.

[Baroness Smith of Newnham (LD)]

My Lords, clearly, I have not quite been mandated by my noble friend to accept the noble Earl’s answer, but, given his answer, I shall beg leave to withdraw Amendment 1 and I suspect it will not need to come back on Report. The clarification on the other amendments associated with belief were very helpful, but that might be an area where further amendments are brought on Report. I beg leave to withdraw the amendment.

Amendment 1 withdrawn.

Amendments 2 and 3 not moved.

Amendment 4

Moved by

[Baroness Smith of Newnham]

4: Clause 1, page 1, leave out line 14
Member’s explanatory statement
This amendment is intended to probe the definition of “members” in this paragraph.

[Baroness Smith of Newnham (LD)]

My Lords, again I am moving an amendment on behalf of my noble friend Lord Wallace. It might appear that he has been in a particularly frivolous mode in deleting the odd word. In this case, three of the amendments in the name of my noble friend, Amendments 4, 37 and 57, all suggest that we delete “member”. This is because the concept of “members of the provider” seems somewhat unclear.

17:30

I suspect I am not alone in being linked to Oxford or Cambridge colleges; we have heard from other noble Lords who are or have been. When people arrive at their Oxford or Cambridge college, they are often welcomed and told, “This is your college for life; you will always be a member”. Is this legislation really supposed to extend as far as people who have been undergraduates at certain institutions? One assumes not, but it is not entirely clear. Although it may not be necessary to delete “members of the provider” in new Section A1(2), it is highly important that we understand what it really means. It surely cannot mean anyone who has ever matriculated at an Oxbridge college, or perhaps attended other universities.

Two of the other amendments in this group go into much more detail looking at how we might understand to whom the Bill applies. In particular, Amendment 22 in the name of the noble Lord, Lord Triesman, picks up on a point that is clearly very important and was highlighted in the debate on the previous group by the noble Baroness, Lady Bennett of Manor Castle, and the noble Lord, Lord Collins: if we are looking at academic staff, it should not be only people who have tenure, permanent contracts or full-time jobs. It ought to apply to people who are part-time and those who have short-term contracts, and not even short-term contracts but ad hoc teaching. The amendment in the name of the noble Lord, Lord Triesman, is extremely important and very welcome, because if this legislation is to have value it absolutely should support people whose jobs may be somewhat precarious. People who feel that their jobs might be more on the line if they speak out of turn need to have their academic freedoms supported.

Amendment 26, in the names of the noble Lord, Lord Sandhurst, and others, perhaps goes too far. Here my noble friend Lord Wallace left me a message saying that people like him, as an emeritus academic, could cause really quite a lot of nuisance to their previous employers. I wonder how far the Government have explored what they really mean by “academic staff”. Clearly, people who have contracts of employment would fit within the Bill’s purview. To what extent might honorary or emeritus staff have a role?

I would be very interested to hear the views of the noble Lord, Lord Sandhurst, and others when they speak to Amendment 26. It will leave a large number of people within the Bill’s scope if we are really talking about all emeritus staff. There are cases in which people officially retire from their university jobs and then take on other contracts that mean they still have a role in their higher education institution. Those people rightly appear to fall within the Bill’s purview, but should people who have retired? This is not to say that their rights of freedom of speech or academic freedoms, if they are working within a higher education institution, should not be met, but how far are we going to go with the Bill and how far do the Government really intend it to go?

Please can we have some definitions of “member”? I beg to move.

[Lord Triesman (Lab)]

My Lords, I will speak to my Amendment 22. One of the things that I have inevitably observed over a long period is that the proportion of the academic and academic-related staff who are on full-time contracts of the kind that we used to describe as tenured contracts has declined significantly. In some institutions it has declined almost to the point where they are a small minority. I do not agree with why that has happened, but I understand why it has. Generally speaking, it is quite difficult to get rid of people who are tenured, and if you are in economically straitened circumstances, you are probably looking for the least protection possible for some grades of staff.

But it is also true that the number and proportion of staff, and I make the point about both, who are no longer tenured but are absolutely vital parts of the academic community and are now on part-time, hourly and short-term contracts—a whole variety of contracts that do not conform to what we would have thought of as tenured staff—are increasingly women and members of ethnic minorities. There are all sorts of reasons why that is the case. For women, it is often said that, because their careers get interrupted for various reasons, it is easier to deal with them if they are not in a tenured position. For example, you do not have to replace them for maternity leave purposes. This has had a detrimental effect on the security of employment that is also discriminatory.

I will make two points that I hope the Grand Committee will feel are not in any sense unhelpful. First, if we want to ensure that the whole of the academic community buys in effectively to these concepts and the Bill’s key propositions—I share with my noble friend Lord Hunt and many others who have spoken the belief that this is probably not the right way of going about it, but none the less we are going about it so I am going to do my best with what we have—then we need to make sure that universities understand that it means the whole of the community. I regret to say that many universities tend to think of the academic community as being the tenured staff; I fear that that is probably also true of some Cambridge and Oxford colleges, having known those colleges myself over the years. They have much less regard for whether other aspects of academic life apply to all the other academics. I am not even being particularly critical of that; I am just saying that it is one of the ways that the sector has evolved.

Secondly, as I have said, this has had a discriminatory effect. When we talk about the academic community, it would be very easy to say that we do not have exceptions in mind. As the noble Baroness, Lady Smith, said just a few moments ago, we mean the whole thing, because we intend that the Bill’s impact should be on the whole of that community who are employed as academics, irrespective of the character of the contract they hold. I do not even believe that it would have any difficulty embodied in it for contractual or other purposes; it would simply be everybody who is employed to teach or research. I include in that “academic-related”, because, rather like the librarians in your Lordships’ House, there are a number of people who do background research that is fundamental to the academic conduct of an institution.

I commend this amendment without embarrassment, because either the Bill means what it says or it means it for only some people.

[Lord Sandhurst (Con)]

My Lords, I will address Amendment 26 and the consequential Amendment 71, which we need not look at. Amendment 26 effectively aims at much the same target as the noble Lord, Lord Triesman. It may be that the definition is different and it may be that we can discuss this, but the point is exactly the same: it is to include the whole of the academic community in the university. We must get these words right. If there is a practical difficulty with the use of “emeritus”, for example, we can look at it.

What is really necessary is that “academic staff” is made clear in the Bill and that it covers the range of people who are most vulnerable. The most vulnerable are not those on full-time contracts; they are the doctoral students, other teaching staff and researchers, and those on part-time or less secure contracts. It is vital that, if they are pushing forward ideas that happen to be unpopular in their particular community, but are legitimately doing their job well, they are not dismissed or otherwise penalised for holding those views and expressing them.

Amendment 26 was tabled at Report in the Commons, and on 13 June, the Universities Minister offered the following clarification:

“To clarify, the Bill uses the term “staff” to broaden the existing reference to employees, as not all those who work for a higher education provider have an employment contract or employee status. I can confirm that it will include those on short-term, casual contracts and PhD students undertaking teaching.”—[Official Report, Commons, 13/6/22; col. 72.]


I suggest that my amendment would go a little further and make it absolutely clear that it encompasses all those who will need protection.

[Baroness Fox of Buckley (Non-Afl)]

My Lords, much has been said that I agree with. I shall speak to Amendment 26, to which I put my name. As people have been declaring their interests, I should say that I have never run an Oxford college and am never likely to, but in the Academy of Ideas, I have been working with students for a long time on the issues of free speech and academic freedom—that is the kind of work I do—and a number of those students go on to become young academics. I fully support the broadening out of what we mean by academics, because sometimes it means the seasoned prof rather than the broader community of the academy.

The recent report of the Policy Institute at King’s College London said that 41% of students agreed that academics who teach material that offends students should be fired. That is extraordinary, if you think about it: they think that they should be sacked if they teach the wrong things. I do not suggest that those students cannot be won round or that those academics will all be fired, but that is the kind of climate we are talking about. There is an institutionalised acceptance of this—which, by the way, I think is partly due to the students-as-consumer atmosphere, and the managerialism and commercialisation of universities. It is a bit like saying, “I don’t like what you teach, I find that offensive; you should be sacked.” That is one explanation of why nearly 36% say that they are self-censoring.

When I have talked to young academics, I have found that they are the ones who feel that they cannot speak out, and that they are looking over their shoulder all the time. A number of older professors who are prepared to speak out say, “Well, what can they do to me, I am about to be emeritus?” But even then they do not speak out because they say, “I don’t want my reputation to be sullied, to be slandered or to be called a bigot.” If you are trying to get research grants, or get on the ladder of work and so on, you are going to be wary.

17:45

The other thing that is very important here is that I would have said in the past that we could maybe rely on those young academics turning to their trade unions, but we should notice something extraordinary that has happened. When the Times reported in August that members of the University and College Union were compiling a list of university backroom staff that they suspected of holding gender-critical beliefs, creating a kind of blacklist of their trans-sceptical colleagues, you thought it was no wonder that people self-censor. A lot of this is about the backroom staff. It is things we are not seeing. As it happens, this seems to be true of all institutions at the moment, with these kinds of blacklists of junior staff existing.

I was genuinely shocked in the cases of Kathleen Stock and Jo Phoenix, who are more experienced academics, when their own union branches sided with the people who were calling for them to be driven out of their jobs. As somebody who spent a long time as a trade union rep in what was then NATFHE, I am shocked by that turn of events. I am pleased that the Free Speech Union exists, but this is about a recognition in the Bill that workers’ rights need to be protected across the board. If the Bill can do something to make that clear, that would give some comfort—even though I want the trade unions to start fighting for their members, as a better remedy.

[Lord Macdonald of River Glaven (CB)]

My Lords, I thought it axiomatic that references to academic staff in the Bill included all academic postholders, whether tenured or on short-term contracts. I had assumed that they were included. It would be very useful if the Minister could confirm that, because there is no doubt that academics who are working on short-term contracts are more vulnerable in this field than others. I myself had the experience of speaking to young academics—junior research fellows and so on—in that situation, who are a little nervous about expressing views which are, if I can put it this way, outside the cultural mainstream. They need particular protection in this area, so I would be grateful if the Minister could confirm that “academic staff” includes those on short-term contracts as well as those enjoying tenure.

[Lord Grabiner (CB)]

My Lords, is this not another example of why it would be helpful to have a definition provision in the Bill? If there was one, “academic staff” and “members” could be defined, and there would not be any debate about who did or did not fall into one or other of these categories.

In this context, it is worth bearing in mind another point. All universities, as institutions, will have either statutes—as in Cambridge, Oxford and some other universities, such as Durham—or their own constitution. You would glean from the constitutional documents of the institution who is a member of the academic staff and who is a member. We are a bit in the blind here, because in order to determine whether person X is a member of the academic staff or person Y a member of some institutional college, you will have to look at the constitutional documents of the organisation to find the answer. It would be quite helpful to have it in the Bill as well, so that there could not be any misunderstanding. Also, we could end up protecting through the Bill people who, strictly speaking, might not fall within the relevant definition of a particular institution. In that sense, the Bill could improve the position of individuals who are, to use a loose expression, associated sufficiently with the world of academia and who are deserving of cover here.

For example, there is a big difference in Cambridge. Once you are a student in a college, you are a member of that college for life. That may not be true in other universities—I do not know. For example, it probably was not true at the LSE; I do not remember. It is certainly true of any college in Oxford and Cambridge, so it is a bit unsatisfactory not to have a sufficiently clear definition applicable to everybody.

[Lord Stevens of Birmingham (CB)]

My Lords, picking up that last point, I support the amendments in this group that expand the definition of what constitutes an academic, but I wonder whether the Minister in his response can provide reassurance on the interaction between the academic freedom requirements of the Bill and the ability of universities to ensure high academic standards. Most of the amendments before us relate to the question of what constitutes freedom of speech, rather than academic freedom per se. I think the Minister said a moment ago that nothing in the Bill prevents bad science on campus. The corollary of that should be that nothing in the Bill should prevent universities preventing bad science on campus.

We cannot have a situation in which the academic freedom protections are used to allow those who do not believe that smoking causes cancer to continue at a medical school or those who believe in creationism to lecture in the physics faculty rather than the theology faculty, to cite a well-known example. Indeed, the University of Manchester had the discretion to take action against its PhD student who, noble Lords may have observed, is pursuing a thesis on paedophile masturbation, which is deemed not to meet sufficient academic standards. Yet under the definition of academic freedom here, those views could affect the likelihood of that person’s promotion or securing different jobs at the provider.

[Baroness Fox of Buckley (Non-Afl)]

My Lords, if a science department employs people who do not believe in science, that does not seem to me to be a free speech issue. Even with the PhD thing, they can have those views in the bar and nobody will care, right? It is about what they teach. I am not suggesting that people should be able to carry on doing their job if they are not able to do their job, but they should probably never have been employed or signed up for the PhD in the first instance.

[Lord Stevens of Birmingham (CB)]

The noble Baroness is making precisely the point I was seeking to draw out. As we discussed at Second Reading, freedom of speech is not the same as academic freedom. We need to make sure that, in protecting both appropriately, we do not stand in the way of the kind of management action that it would be reasonable for universities to take. In a nutshell, we are saying that universities are not a single space. There is a space for freedom of speech, particularly in respect of students, but the classroom is a place for verified expertise. Perhaps in his response the Minister can give us the assurance that nothing in the Bill will stand in the way of universities continuing to exercise that function.

[Baroness Chakrabarti (Lab)]

My Lords, first I need to apologise—I forgot to declare my interests in the debate on the previous group. I refer to my academic interests as set out in the register. I also forgot to thank the Minister and his colleagues for the meeting they had with many of us last week, which I for one found very helpful in trying to unpack such a complex area.

This is a vital group of amendments in probing the class of people protected by the new duty, which dovetails with what will come later—the new statutory tort. I suspect that, in replying, the Minister will try to give comfort that the class defined in new Section A1(2) is intended to be a very wide class and to cover tenured and non-tenured academic staff, postgraduate teaching students, et cetera. I am instinctively for that.

I would even go further and say that universities are vital centres of the communities in which they are situated. They have a wonderful economic and cultural impact in the towns, cities and rural areas where they exist. One of the many things that they contribute is public lectures and meetings, where people who have never even attended university themselves get the opportunity to come and hear from world-class academics and other speakers. That is all wonderful, but it creates challenges in relation to these very divided times we live in.

One of the smaller questions that I put to the noble Earl’s team last week—for me, this is a grey area; I am not an expert in education law—is the relationship between subsections (2) and (3) and whether there is potentially an even wider group of people who may be protected and therefore have the benefit of the statutory duty. To be clear, and to go back to my comments in the first group, I want freedom of expression to be protected for the broadest group of people in our society, subject to the caveats and balancing exercises in Article 10. If a member of the public comes to a public lecture, I do not want them to be unnecessarily censored, manhandled or thrown out just for having a different point of view, even though they are not a member, staff member or student of the university. I am confident that that is properly protected by Article 10. The beauty of Article 10 is that it does not really invite lots of financial damages and therefore does not cause too much of a nightmare for the university. However, now we are talking about a statutory tort and pecuniary damages, so we have to be a little bit careful about whether the point in subsection (3) about

“securing that … the use of any premises … is not denied to any individual or body”

is not too broad in relation to bodies which are not even constituent parts of the university.

I know that the noble Earl’s team have views about that, and I certainly believe that the Government’s intention is that only the people covered by new Section A1(2) get access to the statutory duty. Subsection (3) is not intended by the Government to throw the statutory duty wide open to anybody who is thrown out of a meeting for heckling, et cetera; but I urge caution, because this clause will be read expansively, not least because of the duty in Section 3 of the Human Rights Act to which the noble Earl referred in his earlier remarks. Maybe he will have something to say about that.

Even if every heckler who is ultimately thrown out will not be protected, because subsection (3) is not intended to expand upon subsections (2)(a) to (2)(d), we have quite an issue—that is, quite an expansive category of beneficiaries under “visiting speakers”. I am absolutely clear that to make sense, “visiting speakers” here must mean putative visiting speakers, otherwise there is no point to this paragraph. So many of the stories noble Lords have complained about are about people who could have come, would have come, were invited, were nearly invited but were never quite invited because of the atmosphere there, or were denied. So, I am quite clear in my own mind that in subsection (2)(d), “visiting speakers”, must and will include—and will be found by a court to include—potential, putative speakers.

I put the scenario to the noble Earl last week of the meeting that takes place to discuss the speaking programme. A controversial name is mentioned, and the decision is ultimately made that that person is not to be invited because of fear of controversy. People are tweeting after the meeting, because that is what people on Twitter do—I am not in that category—and we now have potential litigation from the putative speaker, whatever level of controversy they excite.

18:00

Finally, I want to respond to the noble Lord, Lord Stevens, because, notwithstanding the comfort offered by the noble Baroness, Lady Fox of Buckley, I think he has a point. The interaction between the provisions in the Bill as drafted and the quality of research and expression of research has not been adequately considered. As I read the Bill, the academic who is put under pressure for the quality of their science being inadequate or anti-science will now have access to the new statutory tort. Of course, if they lose their job, that is a real loss. That problem will not be solved even by the proposition of the noble and learned Lord, Lord Etherton, about pecuniary loss because, by definition, the academic who was putting out bad science or non-science and was not standing up to refereed scrutiny will have pecuniary loss and is going to say, “I deny the climate catastrophe”, or “I deny any human contribution to the climate catastrophe”, or “I deny that tobacco has any effect at all on cancer, and that is my belief, that is my freedom of speech, I am a member of this university, you have put me out of a job and I am suing.” I do not see anything in the Bill that helps potentially beleaguered universities with that challenge.

[Baroness Thornton (Lab)]

My Lords, this is a very important small group of amendments. It seems to me that the previous group was about what the law should say, while this debate has been about is who it is going to apply to. I was struck by my noble friend Lady Chakrabarti’s description of the academic who might suffer. I was thinking back and remembering, and I need to say that I am an emeritus governor of the LSE, but I think I am absolutely not a member of the academic staff there. When I was at the LSE, I attended a whole year of lectures and I fell asleep at every single one, but I do not think that counts with this.

I think the noble Lord, Lord Wallace, has been very clever in these two groups; his small amendments are exactly how you probe a Bill. I am full of admiration for his ability to do that, and I am grateful. The issue here has been mentioned by most noble Lords, because it is vital in legislation that we define who will be affected by the legislation and in what way. That is why my noble friend Lord Collins added his name to Amendment 26 in the name of the noble Lord, Lord Sandhurst. My noble friend Lord Triesman made some very good points, as did the noble Lord, Lord Stevens, and others. I think the Minister will need to continue the discussion on this because by now the Bill team and the Minister will realise that there is a lack of clarity here, which provides enormous risks to the effectiveness of this legislation.

[Earl Howe (Con)]

My Lords, this second group of amendments relates to members and academics, as covered by the Bill, but I will also try to address the questions put to me on related issues.

Amendments 4, 37 and 57 in the name of the noble Lord, Lord Wallace, and spoken to by the noble Baroness, Lady Smith, seek to probe the meaning of the term “members” in the Bill. The term “member” in the sphere of higher education has a specific meaning as a term of art. It includes in particular a member of the governing council of a university and those with certain honorary positions, such as an emeritus professor. Such a person may not be a member of staff of the institution and so needs specific provision in order to be protected under the Bill.

A member does not include a person who simply studies or used to study at the university, though some might use the term in that way. Current students would be covered by the term “students”. It also does not include a recipient of an honorary degree, which is awarded to honour an individual and does not give any academic or professional privilege.

The term “member” is well understood in both legislation and universities. In particular, it is already a category of individuals which is protected under the Education (No. 2) Act 1986, which sets out the current freedom of speech duties.

[Baroness Smith of Newnham (LD)]

It appears, according to Clause 2, that colleges are constituent parts of universities and are therefore brought into this Bill. Given that Oxbridge colleges refer to people as members, would it be possible for the noble Earl to think about further clarification? While I understand the general point that “members” might have a clear definition, it is not clear in the Bill as currently framed.

[Earl Howe (Con)]

I would be happy to take this away and investigate. Once I have done so, I would be happy to write to the noble Baroness and the noble Lord, Lord Wallace.

[Lord Triesman (Lab)]

I would be grateful for that letter as well. I suggest to the noble Earl that one of my experiences of these colleges is that they do not go back and read anything much later than 1650—I do not mean pm—and they probably do not care. If it is has to be clarified, it is much better that it is clarified.

[Earl Howe (Con)]

I am grateful to the noble Lord. I wanted just to cover another question that the noble Baroness put to me about retired professors. If a retired professor is an emeritus professor, they are protected by the Bill as a member. This is important if they still have a role in the university. If they have no such role, then in practice the provider will not have to take steps to secure their freedom of speech since they will not be speaking on campus or taking part in university life.

I turn to Amendments 22, 26 and 71, which seek to define academic staff for the purpose of the Bill. We have used the term “staff” to broaden the existing reference to “employees” in the Education (No. 2) Act 1986, as not all those who work at a provider have an employment contract or employee status. This term is already used in the current definition of academic freedom in the Higher Education and Research Act 2017 so is an understood term in this context.

“Staff” includes academics who hold honorary appointments for which they are not paid, for example honorary fellows. PhD students will be considered to be academic staff, for example, in so far as they teach undergraduate students. It will be a question of fact in each case whether they are covered as staff or students. The term covers staff at all levels, whether or not they are full time or part time, permanent or temporary. Visiting staff who are perhaps working at the university for a year are also covered. They must be distinguished from visiting speakers who are academics working at another institution, who are covered by the Bill as visiting speakers, rather than as staff of the provider.

I listened with care to the noble Lord, Lord Stevens of Birmingham, and his question about the way in which academic freedom interacts with academic standards. I said earlier that there is nothing in the Bill to encourage baseless or harmful claims or bad science on campus, but it is important to recognise that a provider in this context is an employer, and that its staff will have signed an employment contract and be subject to its employment policies.

[Lord Mann (Non-Afl)]

Under the Bill as currently worded, would the emeritus professor at Sussex University—who was not an employee but would have been covered—who was sacked four years ago for saying that 9/11 was an Israeli plot have had the option of suing the university?

[Earl Howe (Con)]

I do not think it is for the Bill—or indeed the Government—to specify an answer to that question one way or the other. It would depend on the policy of the university as to whether it wished to still regard that person as an emeritus professor if it took exception to what he said. I think that is as far as I can go at the moment, but I am happy to write to the noble Lord, Lord Mann—

[Lord Mann (Non-Afl)]

So, is the Minister clarifying that there is nothing in the Bill that would prohibit the university from sacking that emeritus professor if the university determined that it was appropriate?

[Earl Howe (Con)]

Exactly right.

I was making the point that a provider in this context is an employer and that its staff will be subject to its employment policies. Those policies must, of course, take account of the high regard that academic freedom is held in. However, depending on the circumstances, a provider may need to consider factors such as whether it is appropriate for the academic to continue to teach students; whether the academic has met accepted academic standards for their speech; and the ability of the academic to properly represent the provider in terms of its values and the reputation of the department and the provider.

The Bill recognises the nuances of the potentially difficult decisions that will need to be made under it. The “reasonably practicable” test allows for case-by-case decisions to be made, taking account of all the relevant factors.

[Lord Macdonald of River Glaven (CB)]

Does the noble Earl nevertheless recognise that this is one of the weaknesses in the Bill that is causing consternation in universities: that it appears on the face of it to provide what I might describe as malignant actors—the sort of individuals the noble Lord has just referred to—with several new avenues to cause disruption, difficulties and problems for universities, including potentially launching a specific new tort? Is it not a weakness in the Bill that universities are likely to be subject to malignant activity?

[Earl Howe (Con)]

With great respect to the noble Lord, I challenge any university to point to a provision in the Bill that changes the duties and responsibilities it has at the moment to take decisions for itself about what constitutes malignant speech, unsound science or whatever it happens to be. The Government are not trying to interfere in any way with the autonomy of universities in that sense.

[Baroness Chakrabarti (Lab)]

I am really quite surprised, because I hoped that the noble Earl was going to respond to my question, which was based on the question from the noble Lord, Lord Stevens, with some magic provision in the Bill or in the parent 1986 Act—if I can put it like that—which ensures that academic standards are specifically protected and held in the balance with the vital freedom of speech. If that is not the case we really do have a problem, because we then have the potential for one of the scientists I described in my hypothetical to sue under the new tort on the basis that they are being dismissed because of their speech and beliefs. The university will say, “No, it’s because of your bad science”, but they could say, “No, it’s because of my speech and beliefs”, and then the university would face costly, lengthy litigation.

[Earl Howe (Con)]

We always have to come back to what the Bill specifies that a university should do, which is to take reasonably practicable steps. That is governed by the circumstances and facts of the case, which the university will have to weigh up: the pros and the cons, the arguments on either side. That is nothing different from what they do at the moment. In a later group, the ninth, I think, we shall come to the issue of tort and, if the noble Baroness will forgive me, I will not cover that now, but I shall cover the questions that she asked me about who exactly we are referring to in subsections (2) and (3) of proposed new Section A1.

18:15

Those protected under proposed new Section A1 are only those categories of individuals mentioned in subsection (2). The objective of the duty is to secure freedom of speech for those persons. That is done, in particular, by securing the matters referred to in subsection (3), which includes securing that the use of premises is not denied to any individual or body on certain grounds. What is said in subsection (3) is a way of securing freedom of speech for the persons mentioned in subsection (2), not for any individual or body, as referred to in subsection (3).

The noble Baroness asked me about visiting speakers. “Visiting speaker” is a term already used in the Education (No. 2) Act 1986. It is not defined, so it has its normal meaning in English. We are using the same term and not changing its meaning, which providers have understood for 35 years. We are clear that it is not anyone who wants to speak, and there is no right to a platform. Someone who is not invited or even contacted would, on the normal construction of the words, not be considered to be a visiting speaker. We should note that a person is eligible to complain to the OfS if they were or were at any time invited to be a visiting speaker —paragraph 1 of Schedule 6A makes that clear.

It is vital that members, as a group of senior and respected individuals closely involved in university life, should be protected under the Bill so that they are able to talk about academic and other matters without fear of repercussion, just as academic stuff are protected, as I have just outlined.

[Baroness Smith of Newnham (LD)]

I think that, although I shall withdraw this amendment, we are likely to have a form of amendment coming back at Report, unless the Minister manages to pull some sort of rabbit of the hat defining members and other things in a clearer way than is currently in the Bill. But with what, I beg leave to withdraw the amendment.

Amendment 4 withdrawn.

Amendment 5

Moved by

[Lord Stevens of Birmingham]

5: Clause 1, page 1, line 17, leave out “securing that” and insert “not denying”

[Lord Stevens of Birmingham (CB)]

The noble Lord, Lord Willetts, sends his apologies for an unforeseen family emergency, so I will formally move Amendment 5 and speak to Amendments 7, 8 and 38 to 41.

Given that these originate with the noble Lord, Lord Willetts, noble Lords can be assured that they are pragmatic and constructive amendments that will not necessarily detain the Committee for terribly long. Their aim is simply to make clear that universities should be allowed to move events around the campus without cancelling them, on the grounds that it should be reasonable to move a controversial and possibly noisy event so that it does not occur, for example, next to an exam hall at exam time. It is reasonable to move an event so that it happens on a part of the campus that makes event management easier or so that it does not conflict with other events at the same time.

Some people may argue that these flexibilities might mean the surreptitious or indirect cancelling of events, but other parts of the Bill address this concern. Indeed, to pick up the point that the noble Baroness, Lady Chakrabarti, made earlier, in fact they may make it easier to invite people and expand the number of speakers invited to campus, knowing that these flexibilities exist. Per the rest of the Bill, universities and student unions would remain liable to sanction if they had in fact cancelled an event, not merely moved it, and the Office for Students would be able to respond to a complaint.

In a nutshell, these practical amendments that we hope the Government might consider as the Bill progresses would simply provide sensible if narrow discretion to universities and student unions to decide where and when events happen.

[Lord Mann (Non-Afl)]

My Lords, my Amendment 6 is on the same principle: unintended consequences. The Government would be very foolish not to listen in and to amend the Bill accordingly.

When I was a student leader, I had a range of tactics. With this Bill, I could put those tactics into play very easily. At the moment I go around a huge number of universities in another role; I was at one this morning. A week ago I was at a very prestigious one, in the vice-chancellor’s office. I did a recce in preparation and spotted a meeting room. If I was at that university, or knew someone in a society at that university—such as, let us say, the anarchist society—I would get invited there and, if I wanted to be disruptive, have a rolling meeting. The meeting would simply continue and continue. Some activists and campaigners would do that. They may not glue themselves to the door, because that would be criminal damage and they would be removed, but it would be possible to keep a rolling meeting going. I can recall one that was kept going for six weeks, not in the vice-chancellor’s office but in the registrar’s office. That is possible. I suggest that that would be an unintended consequence of this.

There are also groups that could get themselves invited in with the sole aim of maximising disruption, in order that they get their meeting broken up—in essence, they get thrown out—and then they can sue. This would be, by definition, extremist groups on the fringes. That would be, and has been in the past, a tactic employed. There was a whole period of time when various extremist activists were trying to do this. With this Bill, they would have a perfect opportunity. So this small tweak, giving that flexibility to a university, would have a profound impact.

There is one other good reason. If one wanted to be politically aggressive, when booking a room one could insist that an anti-Israel meeting, to use one example, was located in a room next to a synagogue or the Jewish chaplaincy. That would seem egregious to me. It could be—this happens a lot in the United States at the moment—directly in and among the Jewish student accommodation, the Hillel accommodation, which would be more than egregious. To give universities the flexibility for that bit of common sense, which they apply routinely in these isolated examples, would be a way of stopping those unintended consequences and would help the Government in their objective and their free speech proposals.

[The Lord Bishop of Coventry]

My Lords, I support Amendments 5 to 7 in particular. I shall follow on from the comments of the noble Lord, Lord Mann, because I had similar concerns about unintended consequences. I wonder whether your Lordships would mind me sharing some rambling thoughts that have come through my mind. I was not going to, but the reference by the noble Lord, Lord Triesman, to nothing before 1680—I think it was 1680—strengthened me.

In many countries in Europe, today is Reformation Day. I happened to be in Dresden yesterday, where you cannot help but see the statue of Martin Luther, which I was admiring. That is not irrelevant to these discussions. The history of academic freedom in Europe—freedom of expression and of religion—will have different views about the Reformation, but I cannot help celebrating the fact that, 500 years later, the Roman Catholic Church and the Lutheran World Federation said that they agreed over the doctrine of justification by faith, which was the great thing that divided the Churches at that time. As this fascinating debate has continued, I could not help thinking that, if there had not been a suppression of academic freedom at the time, there may not have been that great bust-up, which caused a lot of tearing to society and Church. I simply share that to reinforce that which we are all committed to—academic freedom and freedom of speech—and to recognise that institutions did not always get it right. Certainly, the Church has not.

I have quite a lot of sympathy for what the Bill is trying to achieve and welcome these amendments. The flexibility that they suggest would be very helpful. They work with the grain of the Bill in trying to encourage and enable robust and vigorous discussion and debate, and there are some sensible proposals.

My concern, perhaps slightly similar to that of the noble Lord, Lord Mann, was that an unintended consequence could be that spaces designated for pastoral, religious and spiritual needs might find themselves appropriated by bodies that would be offensive to those. I do not imagine that that was necessarily a concern of the noble Lords, Lord Willetts or Lord Stevens. I am really grateful to the Minister and his team for the discussions that I have had with him, particularly those assurances that I have been given that taking such steps as are “reasonably practicable” requires a careful consideration of how other legislation applies here, such as the public sector equality duty or the Prevent legislation. I would be very grateful for any further assurances that the Minister felt able to give.

I welcome that the amendments would provide the flexibility to help providers know that they were not cancelling a particular body because of its beliefs, even though they might be offensive to a particular body, but rather providing another space. I would also be very interested to hear any further assurances the Minister might be able to give on how guidance to the Office for Students on navigating some of these matters might be best given, and what other wisdom or what other bodies might help to advise on that.

18:30

[Lord Grabiner (CB)]

My Lords, on the point we have just been discussing, is this not a very good example of the kind of matter that could be very conveniently addressed in a code of practice? If the position is that some obviously controversial matter or speaker, whatever it may be, is in the first instance being located in an inappropriate place, this is a very good example of how that could be dealt with in a code of practice. We do not actually need primary legislation for this purpose.

[Baroness Smith of Newnham (LD)]

My Lords, I shall speak to yet another amendment from my noble friend Lord Wallace of Saltaire. I was reminded by the comments of the right reverend Prelate that I speak as a Catholic, so I am very glad that academic freedom has actually extended to Catholics: we were eventually emancipated and are now able fully to participate.

Amendment 24, from my noble friend and the noble Baroness, Lady Bennett of Manor Castle, is slightly different from the other amendments in the group. It would omit lines 30 to lines 34 on page 2. Again, it is a probing amendment to do with the costs that might fall on the provider. At present, the Bill says that

“the governing body of a registered higher education provider must secure that, apart from in exceptional circumstances, use of its premises by any individual or body is not on terms that require the individual or body to bear some or all of the costs of security relating to their use of the premises.”

How far are universities or, indeed, student unions expected to cover the cost of security? Do the Government think there is a limit to those costs? How do they view “exceptional circumstances”? Some clarification is needed on the expectations here, because although moving venues might be relatively straightforward and incur but a small cost for the education providers, providing security could prove prohibitive, certainly for student bodies. That then raises the question: if we are trying to enhance academic freedom but are then imposing costs on the providers, is there not a tension there? Have the Government thought this through?

[Baroness Bennett of Manor Castle (GP)]

My Lords, it is a pleasure to follow the noble Baroness, Lady Smith, very briefly, and to speak to Amendment 24 in the name of the noble Lord, Lord Wallace, to which, as the noble Baroness noted, I attached my name. I guess this comes from personal experience, because as leader of the Green Party I only once had security guards shadowing my every move. That was at the 2015 general election on a visit to Exeter University. Our very new, very young Young Greens were suddenly told that they had to arrange security and had to find the money to do so. I think the reason may have had something more to do with the fact that, the previous week, Nigel Farage had visited the university under the same circumstances and the university felt that it had to apply the same rules to both. That is how the situation arose, but I am none the less acutely aware that that was a considerable impediment.

If the cost of security is laid on student bodies particularly, that may stop an event going forward. However, I admit some sympathy also with the earlier intervention in this group asking whether this is really the sort of level of detail the House of Lords should be debating, which goes back to the whole question about the Bill.

[Lord Collins of Highbury (Lab)]

My Lords, I welcome these amendments, because they probe the practical implications of these clauses. The noble Lord, Lord Grabiner, raised the point about the code of practice, and I was going to ask the Minister exactly how the code of practice in new Section A2 would cover the circumstances in relation to these amendments.

At the end of the day, as the noble Lord, Lord Mann, says, organising meetings has all kinds of implications for universities and colleges. Health and safety is a critical issue for the organisation of meetings, and the timing of meetings has employment issues, relating to staff and things like that. There is a whole range of practical issues that could result in having to say to the organisers of a meeting that they cannot have their meeting on that day or in that place.

The Minister may say that the code of practice referred to in new Section A2 talks about the procedures to be followed in connection with the organisation of meetings to be held on the provider’s premises. I want to know about the status of the code of practice and how the office of free speech will look at it. Are we going to end up with universities producing a code which fits all their requirements—health and safety requirements, employment law conditions, staffing issues, security issues and so on—then being tied up with people challenging it through the complaints process, saying, “They said that thing about health and safety as an excuse to ban us having a meeting on the premises.” I have heard it before. I have heard people say, “What has health and safety got to do with it?” or “Why should a maintenance staff member tell us to get out at 8 o’clock when I want to continue this speech and have this meeting?” There are practical implications.

How does a university know that the code of practice it adopts according to new Section A2 will meet the requirements? Will draft codes be circulated? What sort of advice and guidance will universities get—or are the Government simply going to say that this is all about what is reasonably practicable? I have heard those words many times in different contexts, particularly in terms of employment law and conditions. I hope that the Minister can reassure us on these probing amendments. Universities are independent bodies and should be able to manage their own organisation without the interference of outside bodies. I think this is a step too far.

[Earl Howe (Con)]

My Lords, the group of amendments to Clauses 1 and 3 tabled in the name of my noble friend Lord Willetts and spoken to by the noble Lord, Lord Stevens, seek to give higher education providers and student unions the flexibility to move events to alternative premises but not cancel them. The noble Lord, Lord Mann, has also tabled Amendment 6 to the provisions concerning premises.

Under the Bill as drafted, providers, colleges and student unions will already be free to move events to alternative rooms, should that be appropriate. The main duty of taking reasonably practicable steps to secure freedom of speech is linked to the provisions that are the subject of these amendments—those in proposed new Section A1(3). This means that the duty is to take reasonably practicable steps to secure that the use of premises, and the terms on which such use is offered, are not based on the ideas, beliefs or views of individuals or groups. The duty to take reasonably practicable steps therefore means that there is already flexibility.

In any event, a provider, college or students’ union is not required under the Bill to allow the use of their premises at all times and in an unlimited way. It is open to them to offer particular rooms for use by event organisers at specified times. As regards Amendment 6, Section A1(3)(a) refers to “any premises” but could refer to “premises” without changing the effect. It should also be noted that the relevant body can place conditions on the use of rooms.

In this context, it might be helpful to touch specifically on the point raised at Second Reading by the right reverend Prelate the Bishop of Coventry regarding concerns about the use of faith spaces. I was very happy to meet him some days ago to discuss this. The example given by the noble Lord, Lord Mann, of having an anti-Israel talk right next to Jewish premises, touches on a similar point. Sections A1(3) and (4) on the use of premises essentially replicate the wording of the Education (No. 2) Act 1986, referring to beliefs among other things in that context. As I said earlier, the provisions link back to the main reasonably practicable duty in subsection (1), so it is not an absolute requirement. I think that was an initial cause for concern on this point, so I am happy to clarify that. In fact, the “reasonably practicable” steps wording enables providers to continue to designate spaces for use by faith groups without any obligation for the provider to open those spaces up to other groups, whether or not they have conflicting ideologies.

Under the reasonably practicable steps duty, it would be legitimate for a provider not to offer a particular faith space to any group that wants to hold an event, but to offer another suitable space, thereby upholding the freedom of speech duties and preserving the integrity of the space set aside for the faith group. The legislation enables providers to respect the religious views of those with designated rooms, taking into account the duties under the Equality Act, while still complying with the freedom of speech duties. To pick up a point made by the noble Lord, Lord Grabiner, we anticipate that the Office for Students will publish guidance for providers on how to comply with the duties. We can certainly discuss this with the Office for Students to ensure that it covers this issue, which I hope will provide noble Lords with further reassurance.

I just say to the noble Lord, Lord Collins, that providers are already required under the Education (No. 2) Act 1986 to have a code of practice regarding freedom of speech. The Bill strengthens that requirement. Providers will now need to include a statement of values in their codes of practice that clearly sets out the importance of freedom of speech. Providers should be setting the tone and expectations campus-wide so that everyone is confident to express their lawful views and challenge received wisdom, even if their views are unpopular. Codes of practice will also need to set out the criteria that providers will use to make decisions about the use of their premises for events involving potentially controversial views, as well add the criteria for when exceptional circumstances may apply regarding the payment of security costs. The Bill strengthens the duty on providers already set out in the Education Act 1994 so that all students, not just those who are members of student unions, are made aware of the duties and the code. Once again, the Office for Students will give guidance on this.

[Lord Triesman (Lab)]

I want to go back to the noble Earl’s point on security costs. I would like to understand a little more what that might involve. My own experience, probably not wholly appropriate, comes from football. Inside many football stadia, including quite small ones, the clubs provide stewards. Sometimes, certainly outside, the police provide security, and sometimes, if it is called for, they also provide it inside. There is a huge argument about who should bear the cost of the police providing security, since it has an often quite considerable impact. In the event that internally provided security, whoever pays for it, is not adequate to the circumstances and the police are called in, who becomes responsible for the costs?

18:45

[Earl Howe (Con)]

Amendments 24 and 43, spoken to by the noble Baroness, Lady Smith, exactly address that set of issues, and I was about to comment on them. They concern the duty to generally bear the security costs for events. Understandably, the amendments probe how the costs of the provision of security for controversial meetings should be distributed among appropriate bodies. The duty on higher education providers, colleges and student unions is that they must not pass on some or all of the security costs to event organisers unless there are exceptional circumstances. The criteria for what are exceptional circumstances will depend on the nature of the particular body, and therefore must be set out in its code of practice, for the sake of transparency.

This element of the Bill is exceptionally important. We know that certain minority groups face serious security concerns when speaking on university campuses, as the noble Baroness, Lady Bennett, pointed out. My right honourable friend the Minister spoke in the other place about the University of Bristol students’ union imposing a £500 security bill on a student society in order to allow the Israeli ambassador to give a talk. This is simply not right. The cost of securing events should not stand in the way of people having a voice. The Bill as currently drafted protects these groups while also giving autonomy to providers, colleges and student unions to make their own decisions about what constitute exceptional circumstances. This drafting reflects that their resources are not finite and that there may be other relevant factors specific to that institution that will need to be taken into account.

The noble Baroness, Lady Smith, asked about exceptional circumstances and when costs can be passed on. We believe it is important that providers, colleges and student unions have the right to determine what constitutes an exceptional circumstance when considering who should pay for security costs of an event, taking into account, in particular, what is reasonable given their resources and other relevant factors. It is also important that the criteria they use are transparent, so that student societies are aware of them when they are planning an event. If costs are passed on to a student society and it considers that the criteria have been wrongly applied, it will be able to complain to the OfS under the new complaints scheme. Once again, we anticipate that the OfS will publish guidance on the content of codes of practice, including on security costs.

[Lord Triesman (Lab)]

When the police decide to intervene, it is often not because a host organisation decides that they should or invites them to. They make a judgment, as constables, as to what would constitute a way of securing a peaceful circumstance for the event or for the premises. Nobody knows that it is going to happen unless they decide to do it, and nobody decides who is going to pay for it in advance, but happen it does, and arguments about who should then pay for it occur. How would a code of practice deal with that?

[Earl Howe (Con)]

I am not sure I accept the noble Lord’s argument. If an event is properly planned—which it should be, particularly if it is sensitive or controversial—its security implications should surely be considered in advance. If it involves a police presence, that consideration should surely encompass the cost of that police presence. It would be a very remiss institution that did not look at the effects and requirements of the event in the round before it happened.

[Lord Grabiner (CB)]

If I may respectfully say so, that is a terribly important point. It is obviously critical that people give careful consideration in advance as to whether they are going to invite a particular speaker, or whoever it may be, to come along and speak. I made a note of what I regard as a rather important observation the Minister made a little earlier this evening; he said that there is no right to a platform. That is a very important point. If I may say so, it would be helpful to record that point in the code of practice in due course, because if at the outset the relevant university organisation can anticipate a problem, one way of resolving that problem, including the cost question, is simply to say, “There is no right to a platform and we are not going to invite this person to speak”. That also involves necessarily the proposition that each of the university institutions has a very good processing place for room booking and matters of that kind. That is a very important point. I respectfully suggest that the code of practice should emphasise the importance of that discretionary power, which would not give rise to any liability or obligation on the institution under the Bill, if and when it becomes legislation, and that institutions are free to say no from the outset.

[Earl Howe (Con)]

I am very grateful to the noble Lord; I will certainly take that point away and make sure that it is noted.

[Baroness Smith of Newnham (LD)]

Following on from the point made by the noble Lord, Lord Grabiner, could the Minister clarify how the Government envisage the duties in the legislation we are debating today and the Prevent duties? There is already a whole set of pieces of paper and so on that organisers of events in higher education institutions are required to fill in. Are we expecting additional work and additional documents, or would the same set of paperwork work for this legislation as well as for Prevent?

[Earl Howe (Con)]

We are coming later on to a group of amendments that could well encompass the noble Baroness’s question about the Prevent duty, but my answer to her now is that the planning of an event involves a number of considerations: the security costs; whether it impacts in any way on the Prevent duty; whether it impacts in any way on the public sector equality duty; and so on and so forth. This is a set of issues relating to an event that might be considered controversial that will need to be looked at altogether in the round. I cannot say whether there will be a separate set of papers, but if I receive advice on that point, I will certainly write to the noble Baroness.

To conclude, we want these provisions to offer a safeguard to groups that might come under serious security pressures, while also giving providers, colleges and student unions the independence that they need. I hope I have reassured noble Lords on these issues and sufficiently addressed the concerns raised.

[Lord Stevens of Birmingham (CB)]

I beg leave to withdraw Amendment 5.

Amendment 5 withdrawn.

Amendment 6

Tabled by

[Lord Mann]

6: Clause 1, page 1, line 18, leave out first “any”

[Lord Mann (Non-Afl)]

In not moving the amendment, I just say to the Government that sometimes, in government and politics, simplicity is best. If the word “any” stays in the Bill, people will read that and it will create additional conflict in advance for universities. I hope the Ministers will take that away and consider it.

Amendment 6 not moved.

Amendments 7 to 11 not moved.

Amendment 12

Moved by

[Lord Sandhurst]

12: Clause 1, page 2, leave out lines 7 and 8 and insert—
“(5) A provider must—(a) take the steps set out at subsection (1) to secure the academic freedom of—(i) academic staff, and(ii) visiting speakers who are academic staff of any other higher education institution; and(b) not subject any member of academic staff to any detriment (including dismissal) through any act, or deliberate failure to act, done on any ground that the member of academic staff has exercised his or her academic freedom.”Member’s explanatory statement
This amendment seeks to extend academic freedom protection to academic visiting speakers, and to forbid outright any punishment of academics for lawful exercise of academic freedom.

[Lord Sandhurst (Con)]

My Lords, the importance of this amendment is to put the duties towards academic freedom on a rather different basis from those currently in the Bill. New Section A1(5) says:

“The objective in subsection (2), so far as relating to academic staff, includes securing their academic freedom.”


We want to secure their academic freedom, but that is—via new subsection (2) and then back to new subsection (1)—on a “reasonably practicable” basis, so it is not an absolute duty.

The effect of the amendment is, first, that:

“A provider must … take the steps set out at subsection (1)”—


which is a “reasonably practicable” duty—

“to secure the academic freedom of … academic staff, and … visiting speakers”.

That will remain on a “reasonably practicable” basis. But secondly, under proposed new paragraph (b), the amendment would

“not subject any member of academic staff to any detriment (including dismissal)”

and so on, and is subject to the “must” clause because it does not link back to new subsection (1).

The important essence of this amendment is to impose an absolute, rather than a “reasonably practicable”, duty not to dismiss or punish an academic for exercising his or her academic freedom. Without this amendment and this change to the structure, a provider could argue that continuing to employ an academic who has stirred things up and who is unpopular with activists would be impracticable. That would be particularly relevant, for example, where an academic is conducting or has conducted a line of research that is socially or politically sensitive so far as the end product is concerned, and where that research perhaps upsets existing social norms as well as academic norms. In the field of science, for example, one can think of genetics, sex, race or psychology. It can also be in political contexts.

Let us assume it is completely bona fide scientific research but of a novel line that has discovered things that upset people dramatically. There is then an uproar, and the university just says, “This is all too difficult—I’m afraid Dr X has to go”—and, actually, Dr X has been doing proper research subject to all the norms of academic freedom.

19:00

Nowadays, the problem is not simply how universities control third parties who are trying to shout down free speech, but how they themselves act. That is something in their absolute control when they take a decision on whether to hire or fire somebody and it is important that the duty not to dismiss is subject to this absolute obligation. Of course, they can dismiss on proper grounds, as one would in any contractual state or fair dismissal; but if it is based on academic freedom, and they simply say, “Your research has stirred things up too much. We can’t cope with this. We want a quiet life”, that must not be acceptable. It must be an absolute duty and that is what this amendment is about.

[Lord Grabiner (CB)]

Looking at proposed new subsection 5(a)(ii), I do not really understand why the noble Lord wishes to confine this to

“academic staff of any other higher education institution”.

A visiting speaker may not fall within that definition, but is nevertheless a person who in principle should be protected and allowed to speak, and have freedom of expression. I do not really understand why it is restricted in that way.

[Lord Sandhurst (Con)]

What we are concerned with in particular is people losing their employment, but I am happy to go further.

[Lord Triesman (Lab)]

My Lords, I wish to introduce Amendment 14. It touches on the kinds of concerns that the noble Lord, Lord Sandhurst, has just raised and it is, in my estimation, a kind of partner clause that I want to explore with your Lordships to the one introduced by the noble and learned Lord, Lord Hope of Craighead, at the very beginning.

One of the arguments I have tried to advocate to the Grand Committee is that, if this is to work at all, it must be felt to be under the ownership of the university and higher education world. For people to address a cultural problem, they need to get to grips with it. It is not about just processes and techniques—it is to do with very fundamental feelings. However many times references to academic freedom are made, if they are not made in a way which aligns with how the academic world and the academic community understand the meaning of those words, it is unlikely to take root and will not have that cultural impact.

That is why I have raised the question, which was also raised earlier by my noble friend Lord Collins, of the UNESCO normative instrument. This was a worldwide UNESCO conference, which adopted a worldwide definition of academic freedom which had been promoted by the academic world, the very people we are trying to address, as a definition to which they could all assent and which they would all defend. I make that point because, if we are to achieve success in this, we certainly want them to adhere to it and defend it.

The work was invited by UNESCO of a body that at that time I had the great honour to chair, which was the Association of Commonwealth Universities, an association of universities literally throughout the Commonwealth. It was drafted—some bits have been cited by my noble friend Lord Collins already—in the United Kingdom and Canada, and went through a very long process to try to make sure that this was the definition of academic freedom which the world of academics would feel was theirs.

If we had gone to UNESCO slightly earlier, the noble Lord, Lord Boswell, would have been the Minister. If it had been slightly later, it would have been the noble Lord, Lord Henley. As it happens, it was just after the general election of 1997 and, as a consequence, it was a Labour Minister who spoke to it. I make that point because there was never a cigarette paper—I know nothing about cigarettes, but the Committee will bear with me—of ideological difference between us about this. There were some differences around the world about it, and one or two nations—only one or two—declined to sign it, much to the annoyance of the rest of us. Saudi Arabia declined on the grounds that it covered women academics as well, and it did not accept that anything should be a right or privilege for women academics—no rights to academic freedom whatever. If we had included a clause restricting it to male academics, Saudi Arabia would probably have signed it as well. I just make the point that this was as close to universal as you could get in academic life where, believe me, getting universal agreement is very close to impossible.

The merit of that is that it provides us with a definition of academic freedom. It may be said that there are other definitions, but this provides us with one that the academic world itself formulated, adopted, approved and, with the exception of people who did not want women to be covered by it, was accepted by everybody. I should probably add that Qatar did not like it either for the same reason, but none the less, all the rest of us did. I commend it to the Government because, if the Bill is to become law—we have expressed our anxieties about whether it is the best way forward, but it may very well do; it is government-backed legislation, after all—I appeal to them to try to ensure it brings along everyone, because short of that, its prospects in practice are very poor.

That is why I provided a small history. As it turns out, it was engendered in the Commonwealth, in institutions with which we are probably all very familiar, against the background of a set of values with which we are all familiar and opposed only by people who, if I may say so without being unnecessarily unkind, do not share some of those values at all. Aside from having the assent of the academic world and being still referred to and related to by it, it establishes in a way we would all want that if people want to get up within the law to make controversial, difficult, unpopular or any other kinds of propositions and speeches in the academic world, it is a global right to do so, signed off by the first signatory to it, the United Kingdom.

[Baroness Fox of Buckley (Non-Afl)]

I shall speak to Amendment 17 from the noble Lord, Lord Strathcarron, to which I have put my name. The amendment strenuously argues that the Bill needs to make it explicit that expressing opinions about any registered HE provider, including opinions on its “curriculum, governance, affiliations”, “teaching” and so on, will be protected by the Bill. Specifically, I want to look at a new challenge to academic freedom in relation to institutional values.

I do not know whether noble Lords saw a remarkable interview over the weekend with a couple of women, Carole Sherwood and Amy Gallagher from the Tavistock clinic. For once, this is not in relation to the gender issue and the Tavistock. One of the women had refused to accept as fact a critical race theory definition of racism as white privilege. Remarkably, the people who were teaching her in front of classes said that she would be denied her psychotherapy qualification because her views were not in line with the Tavistock’s values.

This is becoming a clearer problem that we face, because universities, or their HR and management, are signing up to third-party bodies, which then sign the universities up to values and priorities that might well be at odds with the views of academic staff. Obviously, the infamous example is Stonewall’s diversity champions scheme, but more recently it has come to light that Advance HE’s race equality charter is having the same impact. That charges universities a fee to provide advice and training to audit the university’s anti-racism strategies, themselves formulated around Advance HE’s guidance—you can get bronze and silver certificates and so on along the way. Advance HE encourages universities to highlight their race equality scores in their marketing. Arif Ahmed, lecturer at Cambridge, who has been quoted a lot today, thinks that the charter encourages what he says is virtue signalling competition between universities. I give credit to Dr Jim Butcher from Canterbury Christ Church University in Kent and the campaign group Don’t Divide Us for bringing this to light.

Obviously, we can assume that 99.9% of students and lecturers consider themselves to be anti-racist. The problem is that regardless, this is a very particular version of what constitutes anti-racism. Advance HE’s training argues that the curriculum has been corrupted by western ways of knowing; that our attitudes are shaped by whiteness. It is a version of critical race theory that says that inequality persists even in the context of formal equal rights. That is fair enough, but when it asks that question it gives some at least contentious answers, such as that unequal treatment is a product of white supremacy.

Of course academics and students should be free to hold any of those views—I am not one of those who think that critical race theory should be banned from the university, especially in the context of being a champion of academic freedom—but the problem is that when universities give CRT explicit institutional backing, that means that any academic who doubts the salience of white privilege theories or disagrees with the demand, for example, to decolonise the curriculum not only is arguing against a body of thought but ends up arguing against their employer, which puts them in a very difficult position. We have to be very clear that one should be able to argue against one’s employer or these theories, and we should not be in a situation where somebody is denied a qualification on the basis of the values of the university, which is imposed from the top down and which one is not allowed to query.

I also want to mention some qualms I have about Amendments 15 and 16, which have not been argued for. They attempt to hem in a definition of academic freedom into areas of expertise and professional responsibilities. In particular, Amendment 16 wants to remove

“and controversial or unpopular opinions”

because, as it says in the notes, they have no roots “based on evidence”. I query that, because it is very important that we have a sense of academic freedom here that is much broader than the narrow confines of one’s academic expertise. Actually, the Government did listen on this: I think they had “professional expertise” in and they have taken it out. I do not want to see it being brought back in.

19:15

One of the special things about collegiate academic life is surely, in its ideal sense, that academics are given time, space and resources to think deeply about the world. We want them to become our public intellectuals, do we not? I think it is very difficult to define what that professional expertise should be restricted to. Would a professor of international relations, for example, get into trouble for criticising the efforts to decolonise the curriculum in another department and fear repercussions if he was moving outside his area of expertise? I think this will have a chilling effect if we accept it.

On controversial and unpopular opinions, and the idea of, “Where is the evidence?”, we are haunted by this idea of a complete lunatic crank science person who does not believe in science, and we are told that they are going to have a field day if the Bill gets through—this even came up in the discussion earlier. However, it is important to note that, in science, or in any field, you do not always just have the evidence. Is not university where you find the evidence? Is not the push for truth where you ask questions and come up with new ideas of truth? Knowledge is not stuck in aspic, but we are constantly saying that things have to be evidence-based in this way.

I am reminded of the lecturer from the University of Plymouth who tweeted, “All lives matter, and gender has a scientific basis”, following which there was an anonymous complaint, and then a second complaint. He was accused of hating blacks, women and immigrants, and he was threatened with a process by his university. It was only when a barrister from the FSU got in touch that he was let off, but he described the process as horrific and damaging to his family, career and so on. The reason I am saying this is because the idea that academic freedom should be so narrowly hemmed in that it is based only on a scientific, “show me your evidence” approach is a dangerous way to go. That is why I keep insisting on a very broad definition of academic freedom.

[Baroness Bennett of Manor Castle (GP)]

My Lords, I rise very briefly, because I think Amendment 14, in the name of the noble Lord, Lord Triesman, gives us a very interesting, powerful and effective way forward. Like the noble Lord, I retain concerns about whether the Bill should be going forward at all, but if it is going to, to use a long-accepted international definition seems to take us somewhat in the right direction.

The stress in that UNESCO document on freedom from institutional censorship brings up some very powerful examples. I thought of some of our universities which have, I am afraid, accepted large sums of money from very dubious state bodies from around the world, where some academics have perhaps found themselves under pressure not to produce research or make comments critical of those authoritarian regimes. I also very much thought of a whole series of papers I have just looked at, all published in 2018, in the International Journal of Risk and Safety in Medicine, the American Journal of Industrial Medicine and the Journal of Public Health Policy, all of which address Monsanto’s influence on academic research and publication around the pesticide glyphosate, and all of which were published by different authors—none of the authors’ names are shared. For example, one paper revealed that Monsanto sponsored the ghost-writing of articles in toxicology journals and interference in the peer review process.

I retain all those concerns, but I think the noble Lord, Lord Triesman, may have found us a very useful potential way forward here.

[Baroness Smith of Newnham (LD)]

My Lords, I think my noble friend Lord Wallace’s amendments here speak directly to some of the points raised by the noble Baroness, Lady Fox. My noble friend’s Amendment 13 states:

“Page 2, line 12, after ‘wisdom’ insert ‘within all fields covered by their professional responsibilities’”.


That could be taken by the noble Baroness, Lady Fox, as a way of narrowing the legislation again. It is really intended, if not quite as probing, to try to understand the Government’s understanding, in this legislation, between academic freedom and freedom of speech for academics. Is it to be only within the confines of their own discipline, or is it to be anything within the academic sphere? The parallels are in other professions, where people might have their own standards, so Amendment 13 is to try to understand—

[Baroness Garden of Frognal (LD)]

Amendment 15.

[Baroness Smith of Newnham (LD)]

Sorry, Amendment 15. This just demonstrates that the profession I need to go to is my optician, which kindly cancelled my appointment.

Amendment 15 is very much to think about to what extent this is about particular academic standards. I suggest that it is in effect probing, although my noble friend does not say that.

The next amendment, which I think we all take as being Amendment 16, is to omit

“and controversial or unpopular opinions”.

This is not necessarily to say that these things should not be there, but in the debate on an earlier group of amendments the Minister pointed out that beliefs and views are not the same and that beliefs are protected under the Equality Act. But then there is the question of where we put unpopular opinions. They are not beliefs. Are they views? Should they be in there? My noble friend’s question here is about whether we should expect academics to put forward views based on evidence. Here the noble Baroness, Lady Fox, has a point, because while we would expect to look for evidence, at some point in the intellectual journey you might be looking for evidence and not yet have found it—but presumably we would want the views that academics espouse to be at least based on something that goes beyond the whole QAnon idea of fake news and invented facts. Do the Government have a view on that?

In Amendment 20, my noble friend is again concerned about practicality. To what extent should the Government expect to be involved, or expect the law to be involved, in the way higher education institutions are engaging in promotion and looking at the way people are appointed within higher education institutions? We are not necessarily suggesting in any way that people’s jobs should be put at stake, or indeed that they should not be promoted, but this is a probing amendment to understand how far this legislation is intended to go.

Finally, I suspect the last word from me today is on Amendment 23, also in the name of the noble Baroness, Lady Bennett of Manor Castle. Again, to what extent can the Government and the law be involved? What is the Government’s intention here? How far do they intend to interfere further in higher education institutions?

[Lord Johnson of Marylebone (Con)]

My Lords, I share the concerns of the noble Baroness, Lady Fox, around Amendment 15. I was quite pleased when the Government removed this language at an earlier stage of the Bill’s proceedings. I have concerns about it on a number of levels, but I shall focus on just two of them.

First, I think it would be potentially a big brake on the development of greater interdisciplinarity in academia. The ability of people to work across disciplines is vital to our ability to make progress on some of our biggest challenges as a society, climate change among them but far from the only one. Requiring academics in effect to stay in their lane would be a big brake on that and stop a lot of creative thinking. Research suggests that at the moment the most impactful science is happening at the margins of disciplines, when people take the courage to work with their peers in other disciplines and to think about the shared learnings and transferable skills they take from one academic discipline into another. If the Bill inadvertently sent out a message that this was epistemic trespass, it would be very bad for the quality of our science.

[Baroness Smith of Newnham (LD)]

Sorry, it is me again, but this is me as myself. Can the noble Lord explain why it is different for academics working at the margins of their fields but not experts in other fields, whose rights will not be protected by the Bill but who might also be contributing meaningfully to further research and pushing the boundaries of knowledge?

[Lord Johnson of Marylebone (Con)]

I think there is a marketplace in ideas—maybe I am not answering the noble Baroness’s question as she might like. Good ideas stand the test of time, they get picked up by other academics, they get cited, and that whole process of establishing which ideas are good and which are not is pretty effective and works well. The charlatans, the snake oil peddlers and the bullshit artists find that their ideas will not get repeated endlessly and established in the canon of good academic practice.

My second reason for questioning whether it will be sensible to reintroduce this language into the Bill is that I simply do not think it is practicable in any meaningful way. Who is to police the boundaries of someone’s academic expertise? Who is to stand in judgment and say, “You’re qualified to have an opinion”—unpopular or controversial—on a particular subject? I simply do not see that as viable, so I am very hopeful that the Government will not relent and let it back in.

[Baroness Falkner of Margravine (CB)]

I apologise to the Committee because I was unable to be here for Second Reading, so I come a little late to it. Nevertheless, it is a pleasure to follow the noble Lord, Lord Johnson, because I share his views on Amendments 15 and 16, but I will also speak in opposition to Amendment 17. He is quite right to say that they would diminish academic freedom. I refer particularly to the humanities and social sciences, although I think he was referring to “the sciences”. It is frequently the case that over a 45 or 50-year academic career someone will follow a particular discipline for, let us say, a decade or two, and then find themselves, as science and research continue, to have something to say about something else and to shift.

For example, somebody mentioned an international relations scholar—I am married to one—moving into historical research. It would dampen and diminish academic freedom, rather than enhancing it, so I certainly oppose Amendment 15 on those grounds. There is one other ground. I think that this year we are coming out of the 50th anniversary of Thomas Kuhn’s work on paradigm shifts, The Structure of Scientific Revolutions. That provides all the evidence we need that discovery does not move in a linear fashion. It does not have an end goal that you can arrive at. Ideas change, shift and adapt, and that is how new paradigms come about. I do not want the Minister to give way on those grounds.

The noble Baroness, Lady Smith, also wanted to know from the Government about beliefs and opinions and where the boundary lies. I suggest that the boundary lies in a tribunal in interpreting whether beliefs or opinions can be deemed to be protected characteristics. Because I have touched on protected characteristics, perhaps I need to declare that I chair the Equality and Human Rights Commission—to get that on the record—although I am speaking to the amendments in a personal capacity.

19:30

I have sat here for several hours. Much has been discussed about academic freedom and the definitions of it. Perhaps I could help the noble Earl by pointing out that, if I am correct, academic freedom is already defined in Section 202 of the Education Reform Act 1988. It states that in exercising functions, university commissioners must have regard to the need to:

“ensure that academic staff have freedom within the law to question and test received wisdom, and to put forward new ideas and controversial or unpopular opinions, without placing themselves in jeopardy of losing their jobs or privileges they may have at their institutions”.

If that already stands, I urge the Committee not to go there on Amendment 16.

Finally, I turn to Amendment 17, which, as the noble Baroness, Lady Fox, explained, seeks to protect an academic’s freedom to criticise the institutions at which they work. I feel deeply uncomfortable about this. Universities are employers like other employers. Employers have terms and conditions of employment, and it would be quite extraordinary if they were to continue to pay good money to staff who sought to undermine them. Academics within faculties at the same institution disagree with each other all the time. You only have to pick up the thinnest peer review journal article to see that there is vigorous disagreement between academics.

On the idea that we need to put into legislation that they should be allowed to criticise an institution, again, this could be tested by the courts. If a university was minded to dismiss someone because they were bringing the institution into disrepute at such a level that it thought it would be better not to have the services of that person in the institution, that person could test that through current employment law.

[Baroness Fox of Buckley (Non-Afl)]

I completely understand the noble Baroness’s point about terms and conditions. That is perfectly reasonable in terms of employment law, but what we are talking about here is the danger of the phrase “bringing an institution into disrepute”, which has been used by universities when people are accused of being, for example, transphobic. First, “disrepute”, in one of the amendments, is a very slippery word, as somebody said. Secondly, I was trying to draw attention to the fact that a lot of the new ways that universities are operating were never part of the terms and conditions that somebody signed up for, and academic freedom is something that you might expect of a university.

There has been a lot of talk about Oxford and Cambridge. Would a Cambridge academic not be able to criticise Cambridge University for its failure to, for example, maintain academic freedom? Is the noble Baroness suggesting that that would breach their terms and conditions, that it is egregious and that they should not be allowed to do that? It seems to me that that kind of freedom to criticise is very important.

Many years ago, I fought a strike and won, where they tried to impose on a further education college that we would never criticise what was happening in the college. It was seen then as an attack on our freedom to talk openly about education. Suggesting that if you are an academic you are going to go out and slander the college is completely different from what we are really talking about here, which is the open ability to be able to criticise when you are being clamped down on, often in free speech terms.

[Baroness Falkner of Margravine (CB)]

My Lords, I shall just deal with that. I am aware of very vigorous debate at Cambridge University, but I am not aware of the university having fired an academic for standing to defend free speech. In fact, most of the arguments at Cambridge currently are about academics who are standing up and saying to the former vice-chancellor that the current vice-chancellor is going to go and spend more time with his family and that they have had enough of him, more or less.

To my mind, the Bill could have been written in three pages. It almost goes into micromanagement of higher education institutions—autonomous institutions, we have to remember. To my mind, it makes a bit of a meal of a problem that I completely accept exists but could have been addressed in a slightly more constrained fashion. All the debates I have heard, and I read the Second Reading debate, had more and more people wanting to hang baubles on to the Bill to essentially make higher education institutions non-autonomous and to put them into a straitjacket whereby there will be a deeper constraint on free speech.

We will come to Clause 4 next time, on Wednesday or whenever, and we can talk about that then. It is a relatively good and carefully drafted Bill. We run the danger of adding so much to it—and it comes, as I said, on the back of several previous higher education Acts—that we will end up with the opposite of what we wish to see.

[Lord Moylan (Con)]

My Lords, I shall speak briefly in support of the noble Baronesses, Lady Fox of Buckley and Lady Falkner of Margravine, and my noble friend Lord Johnson of Marylebone in opposing Amendment 15. The noble Baroness, Lady Falkner, referred to the 50th anniversary of a seminal book. I think it would be odd if we got through a debate on universities without referring to the fact that it is roughly 170 years since Cardinal Newman published his lectures, known as The Idea of a University, probably the first attempt in the 19th century to define what a university looked like and what it was for. I have a familiarity with every single line of that book because, when I was a schoolboy, I proofread the standard current Oxford authoritative edition for its editor, Father Ian Ker. Indeed, a very minute examination of the acknowledgements would reveal that to be the case.

We are discussing this in a very modern way, but there are two things we can take away from Newman that really are very important and relevant to this amendment. The first is that the word “university” implies universal; that is, there are no bounds on the fields of inquiry to which a university can go. The second is that, for Newman, this is a collective endeavour. We are discussing this as if the advancement of knowledge was to be followed only by individuals with specific expertise in certain areas, and as if the sharing and communication of knowledge among them—be it through papers, through social engagement or simply through having dinner together and discussing things—was not a crucial part of that endeavour. I simply urge those two points at this stage. It seems to me that Amendment 15 is wholly misconceived as to how knowledge is advanced and what a university actually is and should be.

[Baroness Garden of Frognal (LD)]

My Lords, Amendments 15 and 16 were probing amendments, so I do not think my noble friend Lord Wallace will be totally mortified to discover that the entire Committee is not in favour of them.

[The Earl of Leicester (Con)]

First, I apologise for not attending Second Reading; I could not be here. I shall speak very briefly against Amendment 16 because I think it is very dangerous to leave out “controversial or unpopular opinions”. Newton had a particularly controversial opinion, Einstein too, and Galileo’s opinion on Copernican heliocentrism, which for you and I is the earth rotating daily and revolving around the sun, was met with opposition by the Catholic Church; he was tried under the Roman Inquisition in 1615 and spent the rest of his life in house arrest. To suggest that we remove the words “controversial or unpopular opinions” is, I think, very dangerous.

[Lord Strathcarron (Con)]

My Lords, I speak to my Amendments 17, 18, 19 and 21. We have already debated Amendment 17 at some length. I hope that Amendments 18, 19 and 21 are uncontroversial; I merely hope to tighten up and future-proof for anything that comes in the future. I believe that they address some concerns raised in an earlier group by the noble Lords, Lord Collins of Highbury and Lord Triesman, and the noble Baroness, Lady Fox of Buckley, and I hope they prove agreeable.

[Baroness Thornton (Lab)]

I briefly say that I think the noble Earl has three things he needs to address in this group of amendments. The first is academic freedom, which has been referred to before. My noble friend Lord Triesman has brought to the Committee an amendment that deserves consideration, because I think it helps us. The second issue has created quite a discussion—what is the interface between the terms and conditions, the values and employment of an academic and their speech? I am not going to comment on that, frankly; the noble Earl is going to have to tell us what the Government think about that. The third issue, of course, is whether the other issues raised in this group affect the practicality and appropriateness of universities’ appointment procedures. I am not sure at all that that is the case. Those are the three issues I think the noble Earl will have to address, probably the next time the Committee meets.

Debate on Amendment 12 adjourned.

Committee adjourned at 7.43 pm.

House of Lords

Monday 31st October 2022 Lords Chamber

Monday 31 October 2022

14:30

Prayers—read by the Lord Bishop of Southwark.

Introduction: Lord Soames of Fletching

Monday 31st October 2022 Lords Chamber

14:37

The right honourable Sir Arthur Nicholas Winston Soames, Knight, having been created Baron Soames of Fletching, of Fletching in the County of East Sussex, was introduced and took the oath, supported by Lord Maude of Horsham and Lord Benyon, and signed an undertaking to abide by the Code of Conduct.

Introduction: Baroness Taylor of Stevenage

Monday 31st October 2022 Lords Chamber

14:43

Sharon Jane Taylor, OBE, having been created Baroness Taylor of Stevenage, of Stevenage in the County of Hertfordshire, was introduced and took the oath, supported by Lord Kennedy of Southwark and Baroness Wilcox of Newport, and signed an undertaking to abide by the Code of Conduct.

Estonia: UK Troop Levels

Monday 31st October 2022 Lords Chamber

Question

14:47

Asked by

[Lord Coaker]

To ask His Majesty’s Government what assessment they have made of the United Kingdom’s troop levels in Estonia.

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

My Lords, the UK has worked in close partnership with Estonia to ensure that our force posture is correctly calibrated for the current security climate. We will continue to collaborate with Estonia on an enduring basis to implement the commitments offered by the UK at the NATO Madrid summit, and to ensure that our troop levels are commensurate with Estonia’s NATO security needs. The implementation of our summit commitments will increase the overall capability of our forces in Estonia.

[Lord Coaker (Lab)]

My Lords, is it not the case that the number of UK troops in Estonia is being halved? Estonia is a key NATO ally, on the front line of NATO and its border with Russia. Therefore, is it any wonder that the Estonian Government are extremely disappointed with us, with their Foreign Minister telling our media that this is an issue of existential security for Estonia? As we are a senior member of NATO, and given Estonia’s need for and call for existing UK troop levels to be maintained, is it not time for a rethink, given that Estonia’s security is our security?

[Baroness Goldie (Con)]

The noble Lord will be aware that the second battle group currently deployed was always designed to be temporary. It was placed there at the start of the illegal invasion of Ukraine by Russia. The noble Lord will also be aware that we are enhancing the lethality of the permanent EFP battle group, so we will maintain divisional level assets in country, we will augment these with episodic deployments of battle-winning capabilities, we are enhancing our EFP HQ, which will be led by a brigadier, and we are committed to the development of Estonian national divisional C2. So the overall commitment by the UK is being enhanced and strengthened.

[Lord Lee of Trafford (LD)]

My Lords, it was reported last week that Russia had carried out simulated nuclear drills. Do our troops in Estonia have NBC protective clothing and equipment available to them? In the event of the use of a Russian nuclear weapon, has NATO spelled out specific retaliatory actions and do any of them involve the use of British military personnel?

[Baroness Goldie (Con)]

The noble Lord will be aware that the attitude of NATO, and of the United Kingdom and our allies, is to invite Russia to de-escalate this rhetoric. Frankly, it will be destabilising and unhelpful if it continues to be intensified. The noble Lord will also be aware that, in connection with our overall commitments to NATO and the contribution we make not just to the enhanced forward presence but to equipment and personnel support, we will ensure that our troops are equipped appropriately for whatever task might confront them.

[Lord Balfe (Con)]

My Lords, the United Kingdom has a long-standing relationship in defence in that region, particularly with Norway. Will we co-operate with our Nordic and Baltic partners to make it quite clear to Russia that any incursion in any of the Baltic states is unacceptable, and that part of that must be to keep a substantial military presence in the Baltic states, which of course include Estonia, where we have a particular interest?

[Baroness Goldie (Con)]

I reassure my noble friend that we work closely with our friends in the Baltics, not least in Norway and Sweden and with our other presence in that area. He will be aware that, with our NATO commitments, we are very much committed to having a mobile and enhanced lethality in the area. As I said to the noble Lord on the Liberal Democrat Benches, that is designed to ensure that, whatever threat confronts us, we are able to play our part in seeing it off.

[Lord Howell of Guildford (Con)]

My Lords, we have every reason to support Estonia, having helped it regain its independence in 1922. However, is not Estonia’s immediate, real problem that it is being bombarded every hour of every day by Russian cyberattacks and fake attacks which aim to undermine and demoralise the whole country? Can the Minister assure us that this kind of defence—which, in the modern world, is probably the most important of all—is being thoroughly reinforced by us to enable Estonia to withstand Russian undermining?

[Baroness Goldie (Con)]

That is a indeed a very important component of the threat that we face. My noble friend will be aware that assisting countries to deal with cyberattacks is, again, part of our contribution to our UK and NATO commitments.

[Lord Liddle (Lab)]

My Lords, does the Minister agree that Britain has won a lot of credit in northern Europe by the commitment that we have made to Estonia? This is a very important part of our NATO commitment and in the modern Baltic states, in Poland and in the Nordic countries, this has been noted. Does she agree that it is not good optics for the UK to so drastically cut the level of its force commitment to Estonia? It is very positive that Sweden and Finland are joining NATO, but does she not agree that there is a risk that they may, in time, take over the lead in this area of commitment to defence?

[Baroness Goldie (Con)]

The intention of Sweden and Finland to join NATO is very welcome. Anything that cements the co-ordination and collaboration of countries with like-minded principles and values in the Baltic area is to be welcomed. Our future force posture in Estonia currently comprises 994 UK personnel, but it will rise to 1,020 when the battle group rotates in March. That is in addition to the enhanced details of capability that I outlined to the noble Lord, Lord Coaker.

[Lord Walney (CB)]

My Lords, is there not at least a case to maintain the current numbers until the NATO divisional headquarters is fully operational next year?

[Baroness Goldie (Con)]

The noble Lord will understand that, were we to retain that second battle group in Estonia, it would require significant extra investment and additional temporary winterisation of infrastructure and storage—and, of course, it would have a detrimental operational impact on the overall flexible deployment of the Army. We have a very good relationship with Estonia, as I said earlier. We have a robust and enhanced capability that we are making available to Estonia. I think that is a matter for commendation.

[Lord Austin of Dudley (Non-Afl)]

My Lords, why does the UK now have the smallest Armed Forces it has had at any point since the Napoleonic wars? Is it really realistic for the UK to play a full role in confronting the threat from Putin’s Russia with Armed Forces of that size?

[Baroness Goldie (Con)]

As the noble Lord will understand, looking back to the integrated review, what became very clear was that the review identified that it is not just numbers we have to talk about but capability, technical advancement and what we equip our Armed Forces with. That now includes sophisticated technologies such as artificial intelligence and robotic activity. There is a whole manner of ways in which we are taking forward our troop presence and the capability of the Army that goes beyond thinking simply in terms of numbers.

[Lord Hamilton of Epsom (Con)]

My Lords, my noble friend has made it clear that the doubling of the battle group in Estonia was a result of the invasion of Ukraine. Now that it has been halved, does this mean that the risk to Estonia has been reduced?

[Baroness Goldie (Con)]

My noble friend will be aware that in the MoD we constantly assess and respond to threat as the character of that threat emerges. What we did at the inception of the illegal invasion of Ukraine was to offer support where there might have been a vulnerability. It is important now, in conjunction with NATO and our other allies in the Baltic area, to work sensibly to collaborate—but nothing in any way diminishes our commitment to support that area.

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

My Lords, I congratulate the noble Baroness on her well-deserved reappointment as Minister of State in the defence department—even though she is very good at putting me in my place when I am trying to cause trouble. Today I have a very serious question in relation to Lithuania. She will understand the problems with Kaliningrad and Belarus effectively surrounding Lithuania, and the line in between potentially creating problems. Can she tell the House what discussions the UK Government have had with other Governments about what we can do to make sure that Lithuania as well as Estonia is protected?

[Baroness Goldie (Con)]

I thank the noble Lord for his kind comments. I sometimes feel that when he offers polite and complimentary remarks to me I should count my fingers afterwards—but I absolutely take his remarks in the spirit in which they are given, for which I thank him. It is a serious situation, and how we address the threats confronting Lithuania is all part of the overall NATO and UK approach to the Baltic area. We do not in any way seek to underestimate or diminish the threat confronting Lithuania, but I think that with the NATO summit plan that was announced back in the summer of this year, with the commitments being made by the individual NATO partners, not least the United Kingdom, we are offering up a very strong reassurance to the Baltic countries that help is to hand if they need it.

European Political Community

Monday 31st October 2022 Lords Chamber

Question

14:58

Asked by

[Lord Kirkhope of Harrogate]

To ask His Majesty’s Government how they intend to use their involvement in the new European Political Community to the advantage of the United Kingdom and for the improvement of relations with its European neighbours.

[The Minister of State, Foreign, Commonwealth and Development Office (Lord Goldsmith of Richmond Park) (Con)]

My Lords, the UK attended the summit of the European Political Community as an independent sovereign nation, pursuing our national interest and working with our European neighbours on issues that matter to the British people, such as our support for Ukraine, energy and migration. The summit was an opportunity for the UK to lead the European debate through productive exchanges with European leaders, and we will build on this enhanced co-operation with our European neighbours.

[Lord Kirkhope of Harrogate (Con)]

I am grateful to my noble friend for those encouraging remarks and particularly for the attendance of the then Prime Minister at an event that dealt mostly with security and energy matters. Can he elucidate on future programmes for that entity? Do we know precisely what it will be discussing in future? Can he give me an assurance that our current Prime Minister will also attend? Does my noble friend also agree that we should use every opportunity to re-establish and improve our relations both with Europe and with the EU?

[Lord Goldsmith of Richmond Park (Con)]

My Lords, it is expected—more than expected; it has been agreed—that the next host will be Moldova, followed by Spain, and the former Prime Minister Liz Truss agreed to host the third summit in the UK. Needless to say, we will engage with the hosts as well as with other partners to shape not just the event that we are hosting but those in Moldova and Spain.

[The Earl of Kinnoull (CB)]

My Lords, it was certainly a significant meeting. I want to ask the Minister two things: first, when will the Government set out to Parliament their aims and principles underlying engagement in this new forum? Secondly, will the Government commit to making a Statement to both Houses following each plenary session?

[Lord Goldsmith of Richmond Park (Con)]

I thank the noble Earl for the second half of his question, which I will convey to the Government; it is not a commitment that I can make but I imagine that it is something that the Government will want to do. The UK has been clear from the start about the importance of any new European political gathering not duplicating the established work of, for example, NATO, the Council of Europe, the OSCE or the UN. However, the summit was an opportunity for the UK to lead that European debate and deliver on issues that matter for the UK. It is worth pointing out that around a third of the participants at the summit are not members of the European Union. No new structures, institutions or anything of the sort were created; this is a forum for addressing pan-European issues of common interest.

[Baroness Ludford (LD)]

The attendance of the former Prime Minister at the EPC meeting was a welcome surprise. Given that one of the themes was security, as cited by the noble Lord, Lord Kirkhope, can the Minister tell us what plans the Government have to advance co-operation in the foreign and security sphere; for instance, by providing support to EU civil and military missions under the EU’s common security and defence policy?

[Lord Goldsmith of Richmond Park (Con)]

My Lords, there were no formal conclusions from the summit itself but progress was undoubtedly made in a bunch of areas and key priorities for the UK. For example, the former Prime Minister and President Macron issued a joint statement confirming plans to finalise arrangements to proceed with the Sizewell C nuclear power station by the end of the month—to be built, as noble Lords will know, by EDF. There was also agreement to enhance broader civil nuclear co-operation, to conclude a bilateral agreement on illegal migration, and to hold the first bilateral summit since 2018 in France next year.

[Lord Bridges of Headley (Con)]

My Lords, on the list that my noble friend just read out, he did not mention the use of interconnectors between the UK and the EU and what would happen in the event of an energy emergency. My understanding is that there is no agreement between the UK and the EU to cover such an eventuality. Was this discussed at the summit and what progress is being made to implement such an agreement?

[Lord Goldsmith of Richmond Park (Con)]

My Lords, it will be for BEIS to provide specific details on next steps in relation to this issue but I can confirm that it was discussed. The former Prime Minister pushed for the development of new North Sea hybrid interconnectors to accelerate renewables capacity, among other things, but I am afraid that I will have to leave the outcome to colleagues in BEIS.

[Lord Collins of Highbury (Lab)]

My Lords, I know it feels like some time ago but, at the Conservative Party conference, the Foreign Secretary said:

“We want to find ways of working well with our neighbours and partners … in Europe”.


I am rather disappointed with the Minister’s response; the security situation is incredibly grave and we do need more formal structures to address security. Instead of trading insults and threats to break international law, will the Government consider an EU-UK security pact to complement NATO in light of the security threats that we now face?

[Lord Goldsmith of Richmond Park (Con)]

My Lords, the UK will always do what is in our interests, and our interests are closely aligned with those of our European neighbours. The fact that progress was made at the forum without that forum being owned exclusively by the EU, with the summit being open to other non-EU member countries on the continent—as I said, one-third of the attendees were not members of the European Union—and the fact that no new structures or institutions needed to be created mean that this is exactly the kind of forum that we need, to be able to talk honestly with our friends and to align our response to things such as Russia’s illegal invasion of Ukraine with one another in our mutual interest.

[Lord Aberdare (CB)]

My Lords, both the UK and the EU have said that they want musicians to be able to tour freely. The present situation is particularly damaging to young up-and-coming artists seeking to perform in the EU. Might the UK Government seek to give a lead in improving relationships through unilateral actions, such as setting up a music export office to help to promote UK musicians globally or providing extra funding through a transitional support package, similar to that for fishing, particularly to help younger artists?

[Lord Goldsmith of Richmond Park (Con)]

Music has been one of the great exports of this country for many decades now. I know that the noble Lord’s comments will be heard loud and clear by colleagues in the appropriate departments.

[Lord Cormack (Con)]

My Lords, what provisions have been made for this new community, which we warmly welcome, to meet in an emergency? Is there to be a small—I stress “small”—secretariat so that these nations, which include so many outside the European Union, can keep closely in touch?

[Lord Goldsmith of Richmond Park (Con)]

My Lords, as I understand it, there are no plans for a formal secretariat. That is not to say that some kind of structure would not be set up on informal basis, but there are no plans for a formal secretariat. I point out to the noble Lord that there are numerous forums—not least NATO and the UN—where countries can meet in the event of emergencies.

[Viscount Waverley (CB)]

Does the Minister agree that the strength of a bilateral relationship is when the participants in that relationship come equally to the table? There is a real benefit from having parliamentarians engaging first-hand with colleagues around the EU, as indeed with the Commission, just to help out the overall form of camaraderie and get things moving.

[Lord Goldsmith of Richmond Park (Con)]

The noble Viscount makes an important point. That is true across all issues in all sectors. One of the most valuable organisations that I have been involved in is called GLOBE. It is about bringing legislators together from around the world to compare, and sometimes helpfully compete with one another in relation to, environmental legislation. That worked beautifully, and no doubt it works in every important sector.

[Lord Grocott (Lab)]

My Lords, is not the overwhelming evidence of anyone involved in public life that if something starts out with a small secretariat, it nearly always ends up being a big secretariat?

[Lord Goldsmith of Richmond Park (Con)]

My Lords, the participants, including the host country, are very clear that no new structures or institutions are to be created. That is absolutely not the purpose. There is a healthy scepticism towards the creation of such structures, precisely on the basis that they could end up duplicating the work of other such structures or even undermining it.

[Baroness McIntosh of Pickering (Con)]

My Lords, given the suspected sabotage of the underground cables and communication pipes outside the island of Bornholm, affecting the supply of energy to Denmark and Sweden, what precautions are the Government taking to protect not just our interconnectors but all our underground cables, which are vital to our communications system in this country?

[Lord Goldsmith of Richmond Park (Con)]

My Lords, I mentioned in response to a question from another noble Lord that discussions around the interconnectors took place, but I am afraid I am not in a position to provide an authoritative update. I will make sure that such an update is made available if that is possible.

[Lord Alton of Liverpool (CB)]

My Lords, the Minister will recall the reply that he gave to the debate in your Lordships’ House in July about the blockading of the terminals in Ukraine, preventing grain flowing to the Horn of Africa and other poorer countries. He will have seen over the weekend that more than 200 vessels have been held in those ports, as Putin has now said that the blockade will recommence. Given that Turkey participated in the important summit in Prague, what discussions are we having with that country to ensure that the flow of grain will continue?

[Lord Goldsmith of Richmond Park (Con)]

My Lords, those discussions with Turkey are ongoing, and they are key. As the noble Lord will know, Turkey, as an important NATO ally, played an important role in negotiating the Black Sea grain initiative that has enabled the export of over 8 million tonnes of grain and other foodstuffs through Ukraine’s Black Sea ports since 1 August. Those discussions continue with urgency, and they matter.

Incomes and Prices

Monday 31st October 2022 Lords Chamber

Question

15:09

Asked by

[Lord Hendy]

To ask His Majesty’s Government what steps, if any, they are taking to ensure that incomes keep up with prices.

[Viscount Younger of Leckie (Con)]

My Lords, in March 2022, the Government set out their annual remit to the independent Low Pay Commission, asking it to make recommendations on the next uprating of the national living wage and minimum wage rates by the end of October. The Government will respond in due course, and the new rates will come into effect from April 2023. In addition, the Government announced the energy price guarantee and £37 billion-worth of support for the cost of living in this financial year.

[Lord Hendy (Lab)]

My Lords, I thank the noble Viscount for his reply. The reality is that wages face a catastrophic situation this year. The annual rate of increase in wages, on average, is 7% or 8% less than the average rate of increase in prices. The consequence will be that many will face poverty, hunger and cold, and employers will lose demand for their goods and services. The OECD Employment Outlook 2022, published earlier this year, recommends the enlargement of collective bargaining as the answer to falling wages. Will the noble Viscount and his Government consider this option and join New Zealand and the state of California in adopting the enlargement of collective bargaining?

[Viscount Younger of Leckie (Con)]

First, we are very aware that people across the UK remain very worried about the cost of living—I think the House is very aware of that. The noble Lord raises an interesting idea. Certainly, collective bargaining plays an important part in the representation of workforces in the UK. The noble Lord will know, however, that the Government have accepted the pay recommendations of the independent pay review bodies, which cover the NHS, teachers, police and the Armed Forces, for 2022-23.

[Baroness Kramer (LD)]

My Lords, the TUC today reported that 1.8 million public sector workers are seriously considering quitting because of the very low, nominal pay rises that they have received, which were well below real inflation and low compared to the private sector. Do the Government accept that if even a small portion of those workers go through and quit, our public services are essentially up the creek without a paddle? What are the Government are doing to stem departures?

[Viscount Younger of Leckie (Con)]

We are certainly very aware of these pressures. The uplifts to which I alluded in my earlier answer are the highest in nearly 20 years, reflecting the vital contributions that public sector workers make to our country and the cost of living pressures facing households. More than 2 million workers will benefit across the country. I should also say to the noble Baroness that most overall pay awards in the public sector are similar to those in the private sector.

[Lord Suri (Con)]

My Lords, it is not an easy task to keep incomes up with prices. We have heard what the Government are doing, but I think this needs more of a helping hand from the Government.

[Viscount Younger of Leckie (Con)]

My noble friend makes a very good point. I have taken note of what he has said.

[Lord Tomlinson (Lab)]

My Lords, the Minister says that pay rises in the public sector are very much in line with those in the private sector. That is not readily accepted by Members on this side of the House. Will he produce his evidence for that and place it in the Library, so that we can see the basis on which the Government are working?

[Viscount Younger of Leckie (Con)]

I most certainly will do that. It is certainly a fact, but there is a lot more that we are doing, of course, to help people pay their bills. There are many who are really struggling at the moment, so this is not the only answer. We have to create that balance between recognising the vital importance of public sector workers, while delivering value for the taxpayer and being careful not to drive prices even higher in the future by contributing to the wage-price spiral.

[Lord Howell of Guildford (Con)]

Has my noble friend noticed that global wholesale gas prices are now falling and that global oil prices, despite the efforts of OPEC in the other direction, are also falling? This implies that the main source of our inflation problem, energy prices, will ease considerably—with luck—before the first half of next year. Would it not be wise to delay as long as possible, if we can do so without breaking any established laws and customs, the fixing of the estimates for full inflation for next year while ensuring that those demanding that wages are not cut too much in real terms also wait to see what actually happens?

[Viscount Younger of Leckie (Con)]

I certainly take note of what my noble friend has said although I cannot particularly comment on it, because this matter falls very much within the remit of the Bank of England. As an observer, I too have noticed that there has been some slipping of energy prices; I have also noticed that mortgage rates are slightly down. But there is a long way to go, as they are very high and people are struggling very much, so I must make that point again.

[Baroness Blower (Lab)]

My Lords, does the Minister accept that an independent pay review body is not the same as collective bargaining? Does he also recognise that the poorest 10% of households pay 47.6% of their gross income in direct and indirect taxes, compared with 33.5% paid by the richest 10%? In what sense could that possibly be consistent with the Government’s alleged levelling-up agenda?

[Viscount Younger of Leckie (Con)]

The noble Baroness of course has much experience, particularly in the teaching sector, but the pay review bodies, of which there are eight, are very representative. They consider the needs of all public sector bodies and are made up of a number of representative parties, including trade unions and academics, to make the necessary decisions, so I believe that they are independent. One can have a discussion as to whether they are the same as collective bargaining, but that is where we are.

[Lord Paddick (LD)]

My Lords, I understand that the latest figures show that the average public sector pay increase is running at 3%, while in the private sector it is running at 7%. Can the Minister explain the difference between those figures and the figures that he has?

[Viscount Younger of Leckie (Con)]

Well, the figures vary, but if we look at the lowest-paid staff, particularly in the NHS, they are seeing a pay rise of 9.3%. It does vary enormously.

[Lord Tunnicliffe (Lab)]

My Lords, the energy price guarantee will reduce some inflationary pressures over the winter period. However, does the Minister acknowledge that the scaling back of support from April 2023 could have a detrimental impact on inflation from that point? The Bank does not expect to meet the 2% target for some two years. Where does that leave working people, whose incomes will have to continue to be stretched further and further?

[Viscount Younger of Leckie (Con)]

The noble Lord makes a good point because, as the House knows, we announced significant support worth over £37 billion for households this year, targeted at those who need it the most. However, we continue to keep the situation under review. The Chancellor has made it clear that, looking into next year, the Government will prioritise the needs of the most vulnerable and support those in need, while ensuring that we act in a fiscally responsible way.

[Lord Woodley (Lab)]

My Lords, there seems to be consensus in the Government at last that the economy benefits when people have more money to spend or in their pockets. Government statistics show that the best way to improve pay is to join a trade union, such as my union, Unite, which has put £200 million into workers’ wallets through pay increases in the last year alone. It has won four in five out of more than 450 disputes. That is why, as my noble friend Lord Hendy said, the reintroduction of sectoral collective bargaining would make such a massive difference by growing wages, productivity, and the economy. Does the Minister agree?

[Viscount Younger of Leckie (Con)]

I have said already that the unions play an important part through their role in representing workforces, and I stick by that, but it is not just that. There is the amount of support that we are giving over and above it. The noble Lord mentioned the energy price guarantee, but millions of the most vulnerable households will receive £1,200 of support this year through the £400 energy bills support scheme, the £150 council tax rebate and the one-off £650 cost of living payment. It is to do with how much they earn, but also how much we can stretch their pockets.

[Lord Sikka (Lab)]

Earlier, the Minister referred to the inflationary pressures from wage rises. Why is he silent on the inflationary pressures caused by corporate profiteering, especially from energy companies, escalating executive pay and the billions being spent on share buybacks and dividends? Could he explain why he is being inconsistent?

[Viscount Younger of Leckie (Con)]

The noble Lord will be aware that there is already a levy on energy companies. In terms of those earning at the higher level, I said in response to a question last week that I thought that raising the cap on bankers’ bonuses, for example, was a very good thing. It is very important that we attract the very best people from around the world as our investment bankers, who might bring in about £30 million just on one deal. It is better that it comes into the UK than to Frankfurt, Paris or New York.

Police and Crime Commissioners and Panels

Monday 31st October 2022 Lords Chamber

Question

15:20

Asked by

[Lord Bach]

To ask His Majesty’s Government what assessment they have made of the ability of Police and Crime Panels to hold Police and Crime Commissioners to account.

[The Parliamentary Under-Secretary of State, Home Office (Lord Sharpe of Epsom) (Con)]

My Lords, the two-part police and crime commissioner review considered the role of police and crime panels and concluded that they have the appropriate powers to scrutinise police and crime commissioners. However, the consistency and quality of this scrutiny can vary. Recommendations arising from the review have therefore focused on improving panels’ understanding of their role, the application of their existing powers and strengthening the professionalism and quality of the support provided to panels.

[Lord Bach (Lab)]

My Lords, I thank the Minister. Does he agree that, to do their core job of holding police and crime commissioners to account—nobody else does it, least of all the Home Office, I am afraid—it is necessary for a panel to be robust, challenging and fair? Much depends on the approach, attitude and style of the chair of the panel. Given the need for the public to have confidence in the system, would the Government consider amending the rules so that a chair of a police and crime panel cannot be from the same political party as the police and crime commissioner?

[Lord Sharpe of Epsom (Con)]

As the noble Lord will be aware, the Government believe that panels have the appropriate powers, agreed by Parliament, to effectively scrutinise the actions and decisions of PCCs and enable the public to therefore hold them to account. As I have also just said, we concluded a two-part review. In part 1 we took steps to improve and strengthen the scrutiny of PCCs by issuing new guidance and a training package for panels. Through part 2 we are undertaking a fundamental assessment of the panel support model to further improve the professionalism, quality and consistency of support provided to panels. I am very happy to take the noble Lord’s suggestion on chairmen back as part of that ongoing assessment.

[Lord Lexden (Con)]

My Lords, should not the police and crime panel in Leicestershire be urged to pass a vote of censure on the irresponsible PCC Mr Rupert Matthews for paying some £100,000 per year for advice from Mr Mike Veale, a discredited policeman who is facing a gross misconduct hearing? Could not that money have been spent better on front-line policing?

[Lord Sharpe of Epsom (Con)]

My Lords, it is not for me to comment on individual cases. However, police and crime panels must refer serious complaints and conduct matters to the Independent Office for Police Conduct. Panels are responsible for resolving non-serious complaints made about a PCC’s conduct when in office. Ultimate responsibility for handling any complaints they have received remains with the panel.

[Lord Paddick (LD)]

My Lords, what assessment have the Government made of the likelihood of members of police and crime panels asking difficult questions of police and crime commissioners if they belong to the same political party, bearing in mind that they will want a police and crime commissioner from their own political party to be re-elected? Is it not time to take party politics out of policing?

[Lord Sharpe of Epsom (Con)]

I would argue that it is about public accountability, not party politics. We heard through part 1 of the PCC review that the public cannot always easily access information on how well their force is doing, which is obviously vital if they wish to hold PCCs to account. The review therefore recommended that the specified information order of 2011 was amended to require PCCs to publish additional information. That came into force in May 2021. There is transparency and accountability in the system, and rather more than under the old one.

[Lord Naseby (Con)]

My Lords, I remember when the original police and crime commissioners Bill went through the other place. Like other parties in the Midlands, where I come from, I wonder whether the role now pursued by police and crime commissioners is what was originally conceived. Given that worry, is it not time perhaps to have an overall look at the role of our police and crime commissioners?

[Lord Sharpe of Epsom (Con)]

It is fair to say that the role has evolved to some extent. Whether it is appropriate to have an overall review is already under discussion.

[Baroness Jones of Moulsecoomb (GP)]

My Lords, before the Government introduced police and crime commissioners, we had police and crime panels, just as we now have to oversee the police and crime commissioners. If that system was so bad that we needed to introduce police and crime commissioners, who cost a huge amount of money and whose ability is variable, why do we now have police and crime panels to oversee them?

[Lord Sharpe of Epsom (Con)]

I made it clear that there is a transparency and accountability issue. I am grateful to my friend Katy Bourne, the Sussex police and crime commissioner. She tells me that PCCs are more visible and approachable than the police authorities that they replaced. Many hold monthly accountability meetings with their chief constable, often online, which the public can attend and contribute to.

[Lord Hunt of Kings Heath (Lab)]

My Lords, surely the ultimate test of the PCC system and the panels is whether policing has improved as a result of the legislation that the Government brought in. Surely the general concern about the overall performance of police forces is an indication that the system is not working.

[Lord Sharpe of Epsom (Con)]

I am obviously aware of the noble Lord’s long engagement with this subject, but I do not agree; there are lots of reasons why things have happened.

[Lord Dobbs (Con)]

My Lords, I will be perhaps a little unhelpful to my noble friend and say that I quite agree with the noble Lord, Lord Bach. Trust in the police has measurably declined in recent years. My noble friend’s predecessors have stood at that Dispatch Box and talked about the former chief constable of Wiltshire and commissioners of police in the London Met, and we have had endless examples of where the system is going wrong. Whatever system we have set up for this, is it not ultimately the Government’s responsibility to sort this out and restore trust in the police? Without that, we cannot trust in justice.

[Lord Sharpe of Epsom (Con)]

I thank my noble friend for his helpful question. It is of course up to the Government, and we talked about last week’s Casey review at some length in the Chamber. The Government are doing a lot to restore confidence in the police, and of course the police also have a responsibility to do so, as Sir Mark Rowley has said.

[Lord Coaker (Lab)]

My Lords, as the noble Lord, Lord Dobbs, said, is there not example after example, across the country, of police and crime panels failing to hold chief constables and commissioners to account? Instead of the Government having review after review, is it not about time that police and crime panels were given the teeth to hold commissioners to account and, in that way, restore confidence to policing? If the Minister is so confident of the work of the police and crime panels, will he place in the Library a list of examples of where they have worked?

[Lord Sharpe of Epsom (Con)]

The Government are confident that the panels have the appropriate powers—agreed by Parliament, as I said—to effectively scrutinise the actions and decisions of PCCs and enable the public to hold them to account. Through the review process, we agreed that this scrutiny was inconsistent in some cases, and significant measures have been taken to do something about that. These include extensive engagement with members of the panels, which has proved popular; indeed, there are requests for more of that engagement.

[Lord Hannan of Kingsclere (Con)]

My Lords, at the risk of asking another unhelpful question, I say that the noble Lord, Lord Coaker, and the noble Baroness, Lady Jones of Moulsecoomb, are on to something about the imperfections of the panels. But why not replace them with a really powerful body that could fire the police and crime commissioners just like that? We could call it the electorate. Is that not the strongest accountability of all?

[Lord Sharpe of Epsom (Con)]

Actually, that is a helpful question, because the electorate do of course have ultimate responsibility for the election of the PCCs. I am pleased to say that the electorate seem to be becoming more enthusiastic about the elections: turnout has increased every year. Obviously that is not determined by a single factor, but it is going up.

[Lord Grocott (Lab)]

My Lords, the Minister’s definition of “enthusiasm” is certainly different from some that I could suggest. One of the main purposes of the whole system of police and crime commissioners was to get closer engagement between the public and policing. With three rounds of police and crime commissioners elections having taken place, the turnout has varied between poor and abysmal. Clearly, they are not fulfilling one of the key reasons for their having been established, so what is the point of them?

[Lord Sharpe of Epsom (Con)]

I have answered the question about the point. I have the turnout figures: in 2012, it was 15.1%; in 2016, it was 27.4%; and in 2021, it was 33.9%. We cheerfully accept that those are not the greatest numbers—certainly not relative to national elections—but, in a local context, they are not bad.

[Lord Cormack (Con)]

In most democratic contexts, they are pretty awful numbers. Did my noble friend see the report in the Times this morning quoting the chief constable of the West Midlands, in which he expressed great concern that crime figures were being inflated by including so-called intimidatory gestures, which resulted in no charges but created a fair amount of bureaucracy? Could this be something that the police and crime commissioners are asked to look into as a matter of urgency?

[Lord Sharpe of Epsom (Con)]

I absolutely think that it is, but police and crime commissioners are of course answerable to their electorate, so it depends on the electorate’s priorities. I imagine that the electorate of the West Midlands would share my noble friend’s concerns.

Environmental Targets

Monday 31st October 2022 Lords Chamber

Private Notice Question

15:31

Asked by

[Lord Randall of Uxbridge]

To ask His Majesty’s Government when they intend to publish their environmental targets to comply with the legal requirements under the Environment Act 2021.

[Lord Randall of Uxbridge (Con)]

My Lords, in asking a Question of which I have given private notice, I draw attention to my conservation interests as set out in the register.

[The Minister of State, Department for Environment, Food and Rural Affairs (Lord Benyon) (Con)]

My Lords, as set out in the Written Ministerial Statement I laid on 28 October, we will continue to work at pace to lay draft statutory instruments as soon as practicable. Our next steps include agreeing the final targets across government and scrutiny by the Joint Committee on Statutory Instruments. His Majesty’s Government remain committed to our future targets to halt the decline in species by 2030 and to bring forward the wider suite of targets specified under the Environment Act as soon as practicable.

[Lord Randall of Uxbridge (Con)]

I thank my noble friend for his Answer. I congratulate him on not only his reinstatement in the department but his elevation to Minister of State; it reassures me that this Government are reaffirming their commitment to their manifesto promises on the environment.

It is of course disappointing that we have not met these targets by the due date. However, can we use this delay to increase, for example, our target for the protection of terrestrial sites, which would be very helpful in encouraging into domestic law our 30by30 commitment, and our species abundance target? I urge the Government not only to do this as fast as possible but to ensure that, by the time we attend COP 15 in Montreal, these targets are in place—and remember, they are just targets; what we really want is action.

[Lord Benyon (Con)]

I am grateful to my noble friend for his kind words. I share his and other noble Lords’ disappointment that we have not been able to fulfil the perhaps over-ambitious target date set out in the Act. However, I am confident that we will be able to show that we have meaningful evidence-based targets that will deliver on our overriding commitment to see a reversal in the decline of species by 2030. He is absolutely right to highlight the importance of sites, and the protection of rare and special habitats within them, as part of our 30by30 commitment. We are absolutely determined to achieve this not just for our own domestic benefit but, importantly, so we can say to other countries in the CBD, “We are doing it; so should you”.

[Baroness Jones of Whitchurch (Lab)]

My Lords, the Minister will know that the Office for Environmental Protection has also taken this failure seriously. In its latest letter to the Secretary of State, it has pointed out that this is not the only failure to comply with statutory legislation—it has also kindly included an annexe of other failures to comply. It is a non-exhaustive list and, as it says, a pattern is beginning to develop. Can the Minister assure us that Defra is addressing these issues? These are not just policies; they are statutory requirements that have been missed time and again. Can the Minister tell us what the department is doing to get back on track on these issues?

[Lord Benyon (Con)]

One reason why we will be publishing these targets later than we would have liked, and later than the Act required, is that we had over 180,000 responses to our consultation. It is important that we listen to those, because these targets affect people whose interests are not directly affected by Defra; they could be right across the whole gamut of what government does and how it regulates. It is important that we get this right.

I would hate for any noble Lord to believe that this is the one area of the Environment Act that really matters. It covers a whole range of other issues: storm overflows, our environmental principles, biodiversity net gain, waste, illegal deforestation, the establishment of the Office for Environmental Protection, and local nature recovery strategies. Work on all those are under way, and they were written into the Environment Act, which is what makes it such a world-beating piece of legislation that we want to see implemented.

[Baroness Bakewell of Hardington Mandeville (LD)]

My Lords, the Minister will be getting used to answering questions on the targets, which should, legally, have flowed from the Environment Act by now. Yet here we are, on 31 October, and no targets are forthcoming. With COP 27 approaching, is there any point at all in the Government sending any representatives when they have so woefully fallen short in setting targets, never mind meeting any?

[Lord Benyon (Con)]

That would be an absolutely extraordinary thing to do. The United Kingdom is a global leader on the environment. We are one of the leaders of the High Ambition Coalition, which is seeking to get countries right across the world to fulfil really demanding targets to protect nature, which has suffered depletion of such staggering quantity in recent decades. It is absolutely right that we continue to do this. I can tell the noble Baroness that the United Kingdom is revered abroad for the leadership we took at Glasgow and the leadership we are taking in the CBD. To diminish what we are trying to do internationally is quite extraordinary.

[Baroness Willis of Summertown (CB)]

My Lords, will the Government commit to not repeating the missing of dates when it comes to the 557 pieces of environmental legislation that are about to disappear next year under the Retained EU Law (Revocation and Reform) Bill?

[Lord Benyon (Con)]

My Lords, I think there is a collective clunk of realisation of what it would actually take to replace that. That legislation was created for an environment that goes from the Arctic to the Mediterranean. I am sure she understands, being the expert that she is, that it is a bit clunky when it comes to dealing with the bespoke environment of these islands. It can be improved, but in a way that is at least no worse for nature, and which preferably improves it.

[Baroness McIntosh of Pickering (Con)]

My Lords, that “collective clunk” took hours of time of the Minister’s department and both Houses of Parliament. Is he saying that, at the stroke of a pen, the Government are going to write off all the environmental protections that we spent hours in this place writing into retained EU law?

[Lord Benyon (Con)]

No, that is not what we are saying at all. Most of the protections we have are written into law in the Climate Change Act, the Environment Act and many other provisions that no Administration in recent months—of any form—have talked about trying to tamper with. The habitats directive and other measures are very important; we will not be able to hit our 2030 target for no net loss of biodiversity if we were somehow to sweep those away.

So, if we are going to get rid of them, we have got to replace them with something that is meaningful and bespoke for these islands, and that cannot be done overnight. The Government want to hit our target for 2030, our 30by30 target and many other measures that are written into the Environment Act. The directives we have transposed into UK law have got to be dealt with carefully and in a way that results in no net loss of benefit for the environment, preferably improving it.

[Baroness Hayman of Ullock (Lab)]

My Lords, I remind your Lordships’ House that the Environment Bill was introduced in July 2018. However, lengthy delays caused not just by consultation responses but by Conservative Party divisions meant that it became law only last November. During its passage, concerns were raised about the lack of targets, and the then Minister assured your Lordships’ House that they would appear by today’s deadline. My noble friend Lady Jones referred to the repeated missed deadlines, and the Government have again failed to deliver. The future of our environment is one of the most pressing issues we face, so why have the Government again broken their promise?

[Lord Benyon (Con)]

We will be publishing these targets and they will be very much linked to the areas we consulted on: halting the decline of species by 2030; reducing exposure to PM2.5, benefiting health, as the noble Baroness knows it will; helping restore water bodies to their natural state; increasing woodland cover; protecting marine habitats; and setting a clear direction of travel in reducing the amount of waste per person. These are the measures we want to see implemented, and they will be rigorous targets we can meet, not just for this Government but for future Governments. In line with the Act, they will mean that this country is respected for its protection of the environment above all others.

[Viscount Stansgate (Lab)]

My Lords, the Minister talks of ambitious targets. Is it too ambitious to use his position in the department to persuade the Prime Minister to attend COP 27?

[Lord Benyon (Con)]

I would say to the noble Viscount the words “over pay and grade”, but I do appreciate the point he makes.

[The Duke of Wellington (CB)]

My Lords, the Minister mentioned storm overflows. I wonder if he shares my and many others’ frustration that the water companies continue to discharge dreadful quantities of sewage into our rivers and the sea, using as an excuse the fact that they are storm overflows. What are the Government going to do about that?

[Lord Benyon (Con)]

As the noble Duke knows, the Environment Act places several duties on government and water companies to reduce sewage discharges from storm overflows. The Government have now launched the most ambitious plan to reduce sewage discharges from storm overflows in water company history. Our new strict targets will see the toughest crackdown on sewage spills and will require water companies to secure the largest infrastructure programme in water company history: £56 billion of capital investment over the next 25 years. Our plan will protect biodiversity, the ecology of our rivers and seas, and the public health of our water users for generations to come.

[Baroness Bennett of Manor Castle (GP)]

My Lords, in answering the noble Baroness, Lady Bakewell, the Minister appeared rather powerfully to make the case for the Prime Minister’s going to COP 27, so we can only hope that he was listening. I want to go back to an earlier answer from the Minister. He said that the delay occurred because it was important to listen to public concern. Did the response to this consultation really come as a surprise to the department? As the noble Duke, the Duke of Wellington, and many others in this House highlighted, there was enormous public concern about these issues. Why did the department not put enough resources into handling these responses in a timely manner—or does the department not have enough resources to do its job?

[Lord Benyon (Con)]

Every department could do with more resources. As I said at the beginning, the Government regret not being able to hit this target. Perhaps we were overambitious in thinking it could be done to the timescale we had. There is no point in holding a consultation if you do not listen to the consultees’ replies, and more than 180,000 is at the maximum end of the response to most consultations. That requires that this House and the other place make sure that we are putting in place statutory instruments that really do the job. It is a complex process, and I regret that we have not done it by now, but we will do it as soon as we can.

[Lord Bilimoria (CB)]

My Lords, what note have the Government taken of Sir Partha Dasgupta’s report The Economics of Biodiversity, released by Cambridge University, and are they acting on its recommendations? Secondly, why are they not encouraging His Majesty King Charles to attend COP 27? He was ahead of the game by decades.

[Lord Benyon (Con)]

The Dasgupta review was extraordinary in so many ways: first, because it was the first piece of work on the economics of biodiversity commissioned by a finance department in any country. The Treasury having commissioned it makes it a very powerful tool. It shows that we are talking about not just species that the noble Lord and I have grown up appreciating but the economic future of this country. It is fundamental to what we are talking about; that is why we want evidence-based targets. On the other matter, I refer the noble Lord to the answer I gave to the noble Viscount opposite.

[Lord Berkeley (Lab)]

My Lords, the Government seem worried that too many people have responded to this consultation. This deadline was put in at the insistence of Parliament so that Ministers would be held to account. There is another deadline today in the Department for Transport—nothing to do with the Minister—so that is two deadlines missed. All that Ministers can say is, “We’ll ask them to extend the deadline.” That is not good enough. Surely, we have to get a grip on these things; if a Government commit to a deadline, they should keep to it.

[Lord Benyon (Con)]

I entirely accept that point. I would be treating your Lordships with disrespect if I did not mention the elephant in the room: a bit of mid-air turbulence in recent weeks, which may have somewhat contributed to some of the wheels of government not being correctly oiled. However, I assure the noble Lord that we are determined to deliver proper, meaningful targets as soon as we can.

Exclusivity Terms for Zero Hours Workers (Unenforceability and Redress) Regulations 2022

Monday 31st October 2022 Lords Chamber

Trade Marks (Amendment) Regulations 2022

Motions to Approve

15:47

Moved by

[Baroness Bloomfield of Hinton Waldrist]

That the draft Regulations laid before the House on 6 and 19 July be approved.

Relevant document: 11th Report from the Secondary Legislation Scrutiny Committee. Considered in Grand Committee on 25 October.

Motions agreed.

Social Housing (Regulation) Bill [HL]

3rd reading
Monday 31st October 2022 Lords Chamber

Third Reading

15:47

Motion

Moved by

[Baroness Scott of Bybrook]

That the Bill be now read a third time.

[The Parliamentary Under-Secretary of State, Department for Levelling Up, Housing & Communities (Baroness Scott of Bybrook) (Con)]

My Lords, I will take a moment to do one last piece of housekeeping on the state of the Bill. My department has been working closely with the Welsh Government to ensure that they are kept abreast of the Bill’s progress and implications. Two legislative consent memorandums have been lodged with the Senedd Cymru indicating that consent should be given for this Bill. My officials will continue to engage with their colleagues in the Welsh Government and I hope that, by the time the Bill leaves the other place, legislative consent will have been given by the Senedd Cymru.

15:48

Motion

Moved by

[Baroness Scott of Bybrook]

That the Bill do now pass.

[Baroness Scott of Bybrook (Con)]

My Lords, I thank noble Lords on all Benches—noble friends behind me and noble Lords across the House—for their co-operation on this Bill. I view the Bill as essential to bringing much-needed and long-overdue change to the social housing sector—long overdue because it has been more than five years since the Grenfell Tower fire. I thank in particular all members of the Grenfell community, who have pushed so hard and contributed so much in shaping the Bill. I hope it will stand as part of the legacy of Grenfell and play its part in ensuring that such a tragedy never happens again.

It is my sincere hope and belief that the Bill will create a strong and proactive consumer regulation regime that will drive up standards in social housing and help tenants and the Regulator of Social Housing hold landlords to account.

However, it is important that the Government remain open to new ideas from Peers from across the House, and those within the industry. We listen to the points raised by Peers in this Chamber and during valuable meetings between debates. Consequently, we tabled two important amendments. The first gives the regulator powers to set standards for competence and conduct for staff working in social housing. This will ensure that staff have the knowledge, skills and experience to deliver a high-quality service for tenants. I am grateful for the contributions from the noble Baronesses, Lady Hayman of Ullock and Lady Wilcox of Newport. The second amendment imposes a duty on the regulator to publish and take reasonable steps to implement a plan for regular inspections. The regulator had previously committed to this but I am glad that we have enshrined it in legislation. This will give tenants confidence that landlords will be required to deliver on the standards imposed on them and be held accountable if they do not. Again, I should like to thank the noble Lord, Lord Best, for his determination to see this included in the Bill.

Turning now to the amendment on energy efficiency in the name of the noble Baroness, Lady Hayman, I recommit to the House that we will consult on energy efficiency in the sector within six months of the Bill becoming an Act. We continue to support the sector in becoming more energy efficient but remain firm in our belief that this amendment is not the right way to achieve this. However, I must respect the will of this House on this issue and I thank the noble Baroness for bringing what is clearly an important issue to the fore. I thank all Members from the Front Benches opposite and my noble friends here for their wisdom and commitment. Lastly, I thank my noble friend Lady Bloomfield of Hinton Waldrist for her support beside me since Committee, which has been invaluable.

I am sure noble Lords will also join me in thanking the Bill team for their engagement, in particular Patrick, Ed, Dan and Elena. I also thank Marcus from my private office and Ruhena, Josh, Matthew, Shayne, Ellen, Richard, Mette, Richenda, Will, Nici and Jim—I hope I have not missed anybody—who have all provided invaluable support to a very rookie Minister with her first Bill. I also extend my thanks to all the policy officials as well as the legal team, ably led by Clare, and to the parliamentary counsel, who worked tirelessly to get this Bill to where it is.

It is important to remember that we are only half way there with the Bill. I wish it a swift journey through the other place, and hope that Members there will debate and consider it in a thoughtful, passionate, detailed and courteous manner, as we have done here. I reassure noble Lords that I remain open to further meetings with them to discuss this important legislation and look forward to picking this up again in what I hope will be a very brief discussion following its passage through the other place. I beg to move.

[Baroness Hayman of Ullock (Lab)]

My Lords, this is a really important Bill and I will briefly say some thank yous. I thank all noble Lords who took part to improve the Bill as it made its passage through this House. I thank, as the Minister did, Grenfell United, Shelter and the residents who suffered most from Grenfell and have worked so hard to bring this new legislation forward, alongside the Government. I thank my noble friend Lady Wilcox for her great support. I also support the Minister; this may have been her first Bill, but we have worked very constructively together and I thank her for her approach to the Bill, her approach to the House and for her time and that of her officials.

[Baroness Pinnock (LD)]

My Lords, I had better remind the House of my relevant local government interests, as set out in the register. Throughout the Bill, we have supported its purpose. We have simply worked hard to try to make what we believed were essential improvements. Of course, in the area of energy efficiency, the amendment from my group was accepted by the Government and the Minister. I know that housing campaigns across the country were very pleased that it was accepted as a key priority for the regulator.

I thank the Minister for coming in at the deep end, taking on the Bill, and being so helpful in enabling pre-reading discussions on it and amendments that we wished to table. It always eases the path of a Bill if we can do that. I therefore look forward to the next time, when we might also be able to work together constructively for the benefit of people out there.

I record my thanks to the Grenfell Tower campaigners. Despite the terrible tragedy that they experienced, they have never faltered over the last five years in their determination to see action on improving social housing. Here we have a Bill that should make social housing safer and fairer for tenants. I look forward to it coming back unamended from the other end.

Bill passed and sent to the Commons.

Northern Ireland Protocol Bill

Committee stage
Monday 31st October 2022 Lords Chamber

Committee (2nd Day)

15:56

Relevant documents: 7th and 12th Reports from the Delegated Powers Committee, 6th Report from the Constitution Committee

Motion

Moved by

[Lord Ahmad of Wimbledon]

That the House do now resolve itself into Committee.

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

My Lords, I beg to move.

[Lord Howell of Guildford (Con)]

My Lords, before we proceed with this Committee, can we be assured that there is not a plan to alter radically or even withdraw the Bill? Your Lordships will remember that with the Energy Security Bill we all put in weeks of work, as did the Government and everybody else, only for the whole Bill to be scrapped. It would be nice now to know whether we are going ahead with a Bill that will be pursued and not altered or scrapped as well.

[The Deputy Speaker (Baroness McIntosh of Hudnall) (Lab)]

My Lords, I believe it would be for the convenience of the House if I were to put the Question to the House and perhaps allow the matters which have been raised by the noble Lord and potentially by others to be discussed when there is a question before the House. The Question is that the House do now again resolve itself into a Committee upon the Bill.

[Lord Cormack (Con)]

I understand my noble friend’s desire for clarity and certainty, but the Government would be performing an enormous public service if they withdrew the Bill today.

Motion agreed.

Clause 2: Limitation of general implementation of the Northern Ireland Protocol

Amendment 4

Moved by

[Baroness Suttie]

4: Clause 2, page 1, line 17, at end insert—
“(A1) This section is subject to section (Limitation of general implementation of the Northern Ireland Protocol: approval of Northern Ireland Assembly).”Member’s explanatory statement
This amendment is linked to Baroness Suttie’s new Clause after Clause 2 (Limitation of general implementation of the Northern Ireland Protocol: approval of Northern Ireland Assembly).

[Baroness Suttie (LD)]

My Lords, I will also speak to Amendment 5, in my name and that of the noble Baroness, Lady Ritchie of Downpatrick, as well as to Amendments 68 and 69.

These amendments aim to require the approval of the Northern Ireland Assembly before the measures contained in the Bill can be used to limit the general implementation of the Northern Ireland protocol. Clearly, we are debating these amendments against the backdrop of the 28 October deadline having been missed and the continued absence of the Northern Ireland Assembly, as well as the continued stalemate, with the DUP refusing to allow the Assembly to function since the elections in May of this year.

It is very hard not to feel deeply frustrated and indeed angry on behalf of the people of Northern Ireland. The lack of an Assembly and functioning Northern Ireland Executive has meant for ordinary people across Northern Ireland a deteriorating healthcare system, a lack of strategic economic planning, and little or no progress on legacy matters or on issues such as developing an integrated education system. The stop-start nature of devolution over the last 25 years in Northern Ireland has meant that we have seen only fleeting periods of stable government there, and the Government’s attempts to overcome their own internal divisions since 2016 have been at the expense of the people of Northern Ireland.

16:00

These amendments are therefore primarily probing in nature and aim to set out important matters of principle. As a strong believer in the principle of devolution, I think it is quite wrong that the Government are proceeding with this Bill in the absence of proper consultation and consent from the majority in the Northern Ireland Assembly. In paragraph 24 of the Explanatory Notes, the Government state their intention

“to seek consent from the Northern Ireland Assembly as soon as possible.”

In its recent report on this Bill, the Constitution Committee of your Lordships’ House stated:

“The need for consent from the devolved legislatures is important given the delicate nature of the Northern Ireland Protocol, particularly in light of the current political situation in Northern Ireland. We are concerned that enacting the Northern Ireland Protocol Bill without legislative consent will exacerbate tensions and ill will within the Union.”

The Minister will be aware that, in June, 52 of the 90 MLAs in the Northern Ireland Assembly signed a letter to the then Prime Minister, Boris Johnson, stating their clear opposition to this Bill. They said:

“We reject in the strongest possible terms your Government’s reckless new Protocol legislation, which flies in the face of the expressed wishes of not just most businesses, but most people in Northern Ireland.”

Ultimately, we know that the decision to press ahead with this Bill is a political choice made by this Government to rectify their decision to sign up to the Northern Ireland protocol in the first place. It is true that, in their haste to get Brexit done, the Government did not give enough consideration to the sensitivities of the unionist community, in particular the DUP. Let us be clear: the protocol was no one’s first choice but, again, the Government put the interests of the Conservative Party ahead of those of the people of Northern Ireland. However, in realising their error and pressing ahead with this Bill, the Government have now vastly overcompensated and appear not to be listening to either the business community or the majority view in Northern Ireland.

Under normal circumstances—not something we have seen very much of recently—the impact of these amendments would be to strengthen the authority of the Northern Ireland Assembly. They would mean that changes to the protocol could happen only if they had the agreement of the democratically elected MLAs. One could even hope, perhaps in vain, that this would prove an incentive to the DUP. The current stalemate is utterly unacceptable and can be resolved only through genuine negotiations in Brussels and proper consultation with all political parties in Northern Ireland.

In concluding, I ask the Minister to set out what constructive engagement will now take place on this Bill with those who do not want to see it implemented; they are the majority in Northern Ireland. In the continued absence of the Northern Ireland Assembly, how will the Government keep the political parties in Northern Ireland informed of the progress, or otherwise, of the negotiations? I beg to move.

[Baroness Ritchie of Downpatrick (Lab)]

My Lords, I am absolutely delighted to add my name to this suite of amendments in the name of the noble Baroness, Lady Suttie.

These amendments clearly have a specific purpose. First, I believe that full recognition needs to be given by your Lordships’ House and the UK Government that the Good Friday agreement is the bedrock upon which all institutions are based and out of which they emerged. It includes three strands: the Northern Ireland Assembly and the Executive; north/south; and east/west.

Devolved structures and the power of the MLAs must be recognised, acknowledged and reflected, and their mandate must be so acknowledged. They must be allowed to have an accountability role. If this Bill becomes law and results in the limitation of the protocol, your Lordships should remember, as the noble Baroness, Lady Suttie, said, that a majority of MLAs elected in early May wrote to the then Prime Minister, Boris Johnson, indicating their opposition to the provisions in the Bill.

It is important, as I said, that the UK Government recognise that the majority of Assembly Members support the protocol, with refinements. They believe, as I do, that mitigations are required and, most importantly, they want the restoration of political institutions, particularly after Friday’s very odd press conference, given by the Secretary of State in the middle of Chichester Street in Belfast with onlookers walking past. An election will serve no purpose whatever. We would probably end up with a more polarised outcome in Northern Ireland and it will not have served its purpose.

The view of Assembly Members was also reflected in a recent poll by Queen’s University Belfast, which stated that 51% think that the protocol is having a positive impact on the Northern Ireland economy. Immediately we see the evidence of our divided society in Northern Ireland—63% think that it offers opportunities that could benefit Northern Ireland and 60% think the same about its impact on British-Irish relations. There is a fear that the UK Government are not operating or proposing a consensual approach through this Bill and are recognising only the views of unionists. Arrangements work in Northern Ireland only when they have the buy-in of unionists, nationalists and the non-aligned, and that is not possible under the provisions of the Bill.

We have no political structures operating at the moment, with no impetus from the Government to have them up and running. I hope that this week’s discussions between the Secretary of State, the political parties and the Irish Government will produce better outcomes and a better trajectory of travel. People do not want direct rule; they want their own Government.

Elections will not provide the answer, as the default legal position allows. Designation of Joint First Ministers should have been allowed. That would have obviated many of the problems currently being experienced. I hope that if there are negotiations and there is a review of the institutions, this issue comes back into; the Minister will recall this item being discussed in debates on the Elections Bill. It is worth noting that, very sadly, institutions have operated only at a very low percentage in the last 24 years. There is a need to end the inherent sectarianism that was ushered in by the St Andrews agreement in 2006-07.

It is also important to remember that the poll from Queen’s University told us that 65% of the Northern Ireland Assembly agree that the Northern Ireland Executive should be fully functioning regardless of what happens with the protocol, while 32% disagree. Broadly, these figures represent the political support and opposition in the Assembly in relation to the protocol.

The protocol should not have prevented the restoration of all the institutions. Noble Lords will become very angry when they realise that there are important issues for many people, such as the cost of living, the cost of doing business, and health waiting lists and getting on to these. It is worth noting that, at the evidence session during the protocol sub-committee’s visit to Belfast two weeks ago, young people who were there as community representatives viewed health waiting lists and the cost of living as much more important than the protocol.

The bottom line is therefore that the GFA standard, in all its strands, must be adhered to and protected. The pathway to that includes the need for all-party talks to resolve the outstanding issues. Rather than having a potential election, there must be renewed vigour in the UK-EU negotiations on the protocol, not only on the technical aspects but with the political negotiations that are urgently required. My fear is that any election process could stop the political negotiations. There has been a renewed focus on the technical, and it is important that renewed focus is given to the political.

I support the amendments in my name and that of the noble Baroness, Lady Suttie. I urge the support of your Lordships’ Committee. The accountability mechanisms in the Northern Ireland Assembly must be recognised and adhered to if this Bill is passed. They must be given their say, because the vast majority of Assembly Members elected do not agree with this Bill. They would prefer that it were not on the table and that the Government removed it.

[Lord Cormack (Con)]

My Lords, Harold Macmillan, that great Tory Prime Minister, had a quotation on his desk or wall—I forget which—by WS Gilbert:

“Quiet, calm deliberation disentangles every knot.”


If there were ever a need for this, it is now, on the issue of the Northern Ireland protocol: a treaty negotiated by a British Prime Minister and one of his colleagues, who is present this afternoon; commended to both Houses of Parliament; and given support—with a degree of reluctance, because many of us realised that it was far from perfect.

I understand why my noble friend Lord Howell of Guildford made the brief point he made before he left the Chamber. I believe that we are wasting our time in a prodigal fashion. To quote the noble Lord, Lord Reid of Cardowan, many years ago, the Bill is not fit for purpose. It never will be, however many amendments we pass on the Floor of your Lordships’ House.

We have all agreed that there will be no call for Divisions in Committee. Colleagues on both sides of the Committee know that I would have liked to have a vote to pause proceedings at Second Reading. However, it was conveyed to me that the Labour Opposition were not prepared to support that, and it would not have been right for me to go ahead when I clearly did not have strong support in all parts of the House.

We are now in an Alice in Wonderland situation where a series of amendments—the noble Baroness, Lady Suttie, moved her amendment eloquently and persuasively—are not going to change the fundamental nature of the Bill; they are not going to make it acceptable. So this charade is going to continue through today and two more days, and then the Bill will go to its Report stage. I beg my noble friends on the Front Bench: for goodness’ sake, pause it there at least, so that negotiations can take place without any implicit threats over our European friends and neighbours. I deliberately and repeatedly call for that. Let us have those negotiations, and let us hope that they are entered into in good faith on the both sides.

16:15

The noble Baroness, Lady Ritchie, is right that we all accept that alterations should be made, although those who enthusiastically presented this to us as the answer to all our problems at the time did not think there were any alterations to be made, and frankly did treat the DUP with a cavalier disregard over which it is entitled to feel somewhat aggrieved—but let us calm it, let us pause it, as soon as possible. Let negotiations be conducted in a spirit of reciprocity, and then I do not think there will be any need for any sort of legislation. That would be an ideal situation, and it would echo the fundamental desire of a majority of people in Northern Ireland, the majority of elected representatives in the Northern Ireland Assembly, certainly a majority of those engaged in industry and commerce in Northern Ireland and, if my postbag is anything to go by, a majority of people even with a strong unionist inclination.

I am not going to make repeated speeches on this Bill because there is no point. Let the Government see that there is no point. Let us draw it to a convenient and seemly close as soon as possible, have the negotiations and, if I am entirely wrong, then perhaps there will be a case for coming back. But we are wasting your Lordships’ time. It would be far better to be having on the Floor of the House today consideration of the Bill on free speech which is taking place in the Moses Room, on which I cannot take part because I cannot be in two places at once and in which I would like to be taking part. So let us pause it. It would be in the interests of our country, as well as in the interests of the new Government and, most of all, in the interests of the people of Northern Ireland if we did that.

[Lord Bruce of Bennachie (LD)]

My Lords, I rise to support these amendments tabled by my noble friend Lady Suttie and signed by the noble Baroness, Lady Ritchie, and I thank both of them for the way they have introduced them. This is a Foreign Office Bill, but its implications are vital for the people of Northern Ireland and for the people of the United Kingdom, because it is a political Bill which is dangerous in terms of what the Government are playing with.

At the heart of the protocol is the debate about unfettered access to both the UK market and the EU single market. Of course, unfettered access to both those markets is what we had before we left the European Union, and leaving that Union inevitably led to a situation where an open border between the UK, GB, Northern Ireland and the EU is not compatible with the agreement post leaving the EU. That is clearly the source of the problem—but everybody knew that at the time when the agreement was struck and signed, including the UK Government and Northern Ireland politicians. However, on the face of it, from all the implications that the noble Baroness, Lady Ritchie, quoted, there is a clear majority for moving on—not for setting aside the protocol or, by implication, the trade and co-operation agreement or, frankly, the Bill to repeal EU law, when we have sweated for the past several years to transfer that EU law into UK law.

Do the Government really want to provoke a trade war when our economy is in such a fragile condition? The Prime Minister says, and I agree, that we are facing a profound economic crisis. Is tearing up the protocol more or less likely to alleviate this or help recovery in Northern Ireland? The issue, therefore, is surely not how to achieve the minimal friction. We all agree that we want minimal friction; we want as free access as we can get. The issue is not how to achieve it but how we can get it to the lowest compatible level for business to carry on with minimal cost and delay.

The case for consulting the Northern Ireland Assembly is overwhelming. Not least, it is not just a matter of the numbers. The whole point of legislatures is that they are where compromises can be negotiated and struck; where the balance can be found. And there is the rub. The DUP insists that the Irish Sea border must go. As I have said, it would of course be ideal to have no borders, but that would be inconsistent with being outside the single market and the customs union. So a low-friction agreement on implementation of the protocol appears to be the answer, appears to have wide support and could surely be negotiated with good will on all sides.

Unfortunately, as I understand it—and I would be happy to be contradicted when the DUP enters the debate—the DUP is insisting on what it knows to be an impossible solution: no borders. The party has said that, unless it gets that solution, it will never re-enter the Assembly or the Executive. The Good Friday agreement—the Belfast agreement—is a power-sharing arrangement between the largest nationalist and largest unionist grouping. It is not a majoritarian arrangement, as the DUP rightly insists on telling us—but nor is it a never-ending veto. To share power is to seek and find compromise. Refusal to do so is to deny the spirit and probably the letter of the agreement. It is to deny democracy. Most important of all, it is to deny the people of Northern Ireland the delivery of essential services that they require and that they voted for—and, as the noble Baroness, Lady Ritchie, said, they desperately want solutions to be addressed.

So we are facing the prospect of a fresh election. I do not think anybody wants an election, and nor does anybody believe that it is likely to make a huge difference; it will not change much. I hope that it might further strengthen the Alliance but, on the whole, it is not likely to make a huge difference. If the DUP, before or after the election, blocks any compromise—I repeat, any compromise—is it not time to reconsider the arrangement? I have already said that power sharing requires compromise. Should refusing to compromise question the right to share power? Is it not time for some hard consideration of the rights of the people of Northern Ireland—their rights to have a functioning Government, to move forward and to have a solution that is based on reality, not fantasy?

[Lord Hannay of Chiswick (CB)]

I support the amendment, so ably moved by the noble Baroness, Lady Suttie, for a simple reason. It relates to what is frequently called the “democratic deficit”—a phrase that often finds itself in the mouths of those who support this Bill, among whom I am not numbered. They talk about the democratic deficit in Northern Ireland mainly in respect of the fact that the people of Northern Ireland do not have a say over the legislation for the single market, which will be passed in Brussels. They erroneously say that that is the only place in Europe where that happens. That is untrue; it is the same for Norway, which has no say over legislation passed in Brussels but accepts it when it is sent through on a fax. So the use of the words “democratic deficit” by the supporters of the Bill is in any case a bit erroneous. It is even more erroneous when you consider that the people of the Northern Ireland actually voted to remain in the European Union; that surely is something of a democratic deficit.

These amendments, which I imagine the Minister will explain the Government cannot support, are also an attempt to address the democratic deficit, to say that the people of Northern Ireland collectively should have some say in the operation of this deeply flawed legislation. So why will the Government oppose it? We know why: because a majority of Members of the Assembly who were elected in May have said they do not want any of it, and that would not be helpful to the Government’s objectives. When you bandy around phrases such as “democratic deficit”, you should follow them through to their logical conclusion, and that logical conclusion is in the amendments that the House is now debating.

[Lord Browne of Belmont (DUP)]

My Lords, the amendments would subject aspects of the Bill to the approval of the Northern Ireland Assembly. However, my contention is that they will work only if preceded by a prior vote on the protocol itself in accordance with the standards of cross-community consent put in place for the controversial matters set out by the Belfast/Good Friday agreement.

The Good Friday agreement is now very vulnerable because of the approach of the European Union in relation to two key principles at the heart of it. First, the Good Friday agreement is predicated on a commitment to affording the interests of both communities parity of esteem. The interests of unionism have not been afforded parity of esteem vis-à-vis those of nationalism with respect to the protocol. While the protocol represents an existential threat to all that unionists hold dear and is rejected by all the unionist parties, it authenticates that which nationalists and republicans desire: the breaking of the UK economy. Secondly, the Good Friday agreement is predicated on a commitment to non-majoritarian politics, which means that controversial decisions have to be made on the basis of cross-community consent. Again, that has been cast aside.

In the first instance, the EU sought to pressure the UK Government into the protocol without affording Northern Ireland any say in the matter, notwithstanding the fact that the effect of the protocol is to slash the value of the Northern Ireland vote, as 300 areas of lawmaking to which we are subject are taken from us and made by a legislature of a foreign power. When the EU finally agreed that the Northern Ireland Assembly should be given some say in the matter, it insisted for some bizarre reason that it should happen four years afterwards. It made provision for it to continue for at least another four years without cross-community support, resulting in eight years of government outside the confines of the Belfast agreement, which could of course continue indefinitely with regular four-year extensions.

That is the height of irony because anyone who studies democracy will know that leading academics in the field, such as Professor Arend Lijphart, are very clear that the EU is one of the most consensual, non-majoritarian polities in the world today. That the EU decided to betray its own commitment to non-majoritarianism by going out of its way to impose majoritarianism on a polity that it knew was based on non-majoritarianism is quite extraordinary.

This is a major problem not just for the Good Friday agreement but for the protocol. The protocol subjects itself to the Belfast agreement in all its dimensions through Articles 1 and 2. That is a problem for those who wish to argue that international law constrains those seeking to address the clear injustices of the Northern Ireland protocol, because Article 3 of the Vienna Convention on the Law of Treaties is very clear that:

“When a treaty specifies that it is subject to … an earlier or later treaty, the provisions of that other treaty prevail.”


Given that the convention also sets out mechanisms, such as Article 56(1)(b), whereby a state party can lawfully and unilaterally withdraw from a treaty, the refusal of the EU to amend the protocol so that it is properly brought into line with the prior treaty clearly gives grounds for our withdrawal.

16:30

We now find ourselves in a very difficult situation, where not only have the Government of Northern Ireland departed from the Belfast/Good Friday agreement but, because of this, a new arrangement has been permitted to develop that would never have come to pass had the Belfast agreement been respected. In this context, it is not appropriate to respond to the protocol as a given and to ask the Northern Ireland Assembly to agree, as the amendments before us now suggest, to any change.

If we are to engage the Northern Ireland Assembly and save the Belfast/Good Friday agreement, we have first to ask the more basic question of whether the Northern Ireland Assembly will consent to the protocol. If the Assembly endorses the protocol on the basis of cross-community consent, in line with the Belfast agreement, then it would be appropriate to move on to the votes mandated in these amendments. However, if the Assembly does not support the protocol on the basis of cross-community consent, in line with the Belfast agreement, and the surrendering of the right to elect legislators making laws to which the people of Northern Ireland are subject in some 300 different areas, then the protocol should fall away.

Whatever happens, we have to re-embrace the discipline of the Good Friday agreement and the subjection of the protocol to that prior treaty, courtesy of Articles 1 and 2 of the protocol, if we are to celebrate 25 years of the Good Friday agreement come April.

[Lord Purvis of Tweed (LD)]

My Lords, I support my noble friend Lady Suttie in her amendments. Notwithstanding the appeal from the noble Lord, Lord Cormack, these Benches do not need to be persuaded of his arguments. We are nevertheless tasked with scrutinising and testing this legislation, and I support my noble friend’s amendments.

I want to ask the Minister just two simple questions relating to the Sewel convention, which is now recognised as a constitutional principle. Michael Ellis, speaking on behalf of the Government in Committee in the Commons, was asked about legislative consent of this Bill. He said:

“As the hon. Member for North Down will be aware, the Sewel convention applies to this Bill, as it does to all Bills of this Parliament that intersect with devolved competence. I confirm that in the absence of functioning institutions, senior officials in the Foreign Office have already made contact with the head of the Northern Ireland civil service regarding legislative consent … The Government will consult stakeholders in Northern Ireland, including Members of the Assembly, on the operation of the Bill during its passage and thereafter”.—[Official Report, Commons, 13/7/22; cols. 385-86.]


What did the officials ask of the civil servants with regard to legislative consent in the absence of there being an Assembly? This is not a practice that has ever been seen anywhere else for the operation of the Sewel Motion. Which Members of the Assembly have been consulted during the passage of this Bill, and on what? Have they been asked, with regard to the dual regulatory regime that the Bill proposes, and what have their responses been so far?

[Lord Bew (CB)]

My Lords, I rise to put a technical point. I am not sure of the answer—it is a genuine question—but it bears on the amendment. Trade is a reserved matter in Northern Ireland. When there was first sight of Theresa May’s protocol, there was great rage in Northern Ireland. People in Northern Ireland were told, “Sorry, this is a reserved matter.” Subsequently—it was the second iteration—it was very much the view of the noble Lord, Lord Frost, that that was not itself a satisfactory answer, and there is provision in the protocol negotiated by the Johnson Government. The one significant change is to make, in very specific circumstances, a role for the consent of the Northern Ireland Assembly. That is probably the major difference between the two protocols. However, if it is a reserved matter—if that was the answer that I remember being given throughout 2017 and 2018 in this House—I cannot quite see the purchase of these amendments.

If it is a reserved matter, it is a reserved matter. It is for this Parliament to deal with these trade matters. The burden of the Bill is in dealing with Articles 5 and 10 of the protocol—not those on human rights and so on—in a way which, I accept, many Members of this House do not like. None the less, it does not seem appropriate to be raising these issues now about that role for the Northern Ireland Assembly, because trade is a reserved matter held by this House.

The history of this is perfectly clear: the Government of Ireland Act 1920 has language on trade, as do the prior Acts of Union 1800. Then there were modifications to the Government of Ireland Act—benign modernisations, I would say—under the Good Friday agreement and the legislation that went through this House, which left us with trade as a reserved matter. It seems to me that this should be taken into account. There may be some possible answer to it, and the noble Lord, Lord Frost, has negotiated a possible way that one might work around it, but trade is a reserved matter at this point. We are not concerned with the human rights provisions of the protocol and so on; they are not the issue in the Bill. It is directed mainly against Articles 5 and 10, rightly or wrongly—wrongly, I am sure many colleagues on my own Benches think—but trade being a reserved matter is a problem for amendments of this sort.

[Lord Kerr of Kinlochard (CB)]

I agree that external trade is a reserved matter, but here we are talking about trade inside the United Kingdom—as well as trade inside the single market of the European Union, of course. I do not think it follows at all that one can say there is no role for the Assembly because external trade is a reserved matter.

I would love to support the amendment in the names of the two noble Baronesses. I agree with the spirit of it. It is extraordinary how, throughout this saga, things have been done to Northern Ireland without Northern Ireland being fully consulted or even informed. It is extraordinary, when you think about it, that the protocol was concluded without the involvement—I want to embarrass him now—of the noble Lord, Lord Caine, who knows far more about these issues than most of us do and has a judgment that we would all respect. That should have been brought to bear.

I hesitate to criticise the noble Lord, Lord Frost, who is busy with his emails, but, if he would like to listen, I will criticise him. It would have been good if he had found the ability to spend more time in Northern Ireland while he was negotiating. It would have been great if his master, the then Prime Minister, had been able to spend some time trying to understand the issues and seeing people on the ground, but it is an astonishing fact that Michel Barnier had more direct personal experience of Northern Ireland than the noble Lord, Lord Frost, had. That was because Barnier had spent time there doing jobs for previous presidents of the Commission.

I feel that the syndrome of imposing things on Northern Ireland, perhaps under cover of talk about reserved matters, which I disagree with, has been damaging to the United Kingdom and, of course, to Northern Ireland. I would love to support these amendments, and of course I would do so. But it would not make an illegal act less illegal if the Northern Ireland Assembly voted for it, so what are we talking about here?

I caused the Minister to look askance when I said that we are talking about a pig of a Bill. The Minister thought that was an indelicate reference. However, what we are doing here is trying to put lipstick on the pig. It will still be a pig even if this amendment is approved. If it were put to a vote, of course I would vote for it, but my general feeling is that we know what we have to do with this Bill. The noble Lord, Lord Cormack, has correctly pointed out that what we are engaged in now is a waste of time because I am confident that at the end of the day, we will do what we have to do to this Bill. I hope the end of the day comes soon.

[Lord Davies of Stamford (Lab)]

My Lords, for a number of years I was shadow Secretary of State for Northern Ireland. I have not been involved in recent political discussions in the Province. In a sense, I have come back to the subject afresh today. It certainly keeps all its fascination. We have just heard two immensely important contributions to the debate by the noble Lords, Lord Kerr and Lord Bew. The noble Lord, Lord Bew, dealt clearly, decisively and definitively with whether or not trade is a reserved matter. We must be grateful for that analysis, which I hope will guide us in dealing with this Bill.

The Bill is an extraordinarily unpopular document, is it not? It is quite difficult to find anybody really prepared to defend it. The DUP is obviously very much opposed to it. We have heard this afternoon from people who are close to the DUP’s leadership. The European Commission has launched infringement procedures in relation to the British Government’s activity over this Bill. The British Government do not seem to be very convinced of the virtues of the Bill. Certainly no one this afternoon has made a strong defence of the Bill.

Against that background, I rather agree with the noble Lord, Lord Cormack. It is quite unlikely that the DUP will do a U-turn; it would be a humiliating thing to do. Therefore, one must assume that the Bill in its present form does not have very far to go. That is not surprising because—and the reason I really oppose this Bill—it seems contrary to the essence of parliamentary democracy. The principle which underlines our whole system in this country is that the law must be made by the legislature—the legally elected representatives of the public. It is their responsibility to make laws; it is not the responsibility of the Government to make laws, nor is it desirable that they should try to do so.

Many of the provisions in this controversial protocol Bill reveal that there is an ambition for the Government to rewrite the law themselves. I look at the overview of the Bill in the very helpful summary produced by the Library. It says that one of the purposes is

“giving ministers delegated powers to make new provision in domestic law ‘in connection with’ ‘excluded provision’”;

in other words, the Bill declares itself as being in the business of making law and imposing it on the public, which is quite contrary to all democratic principles, and we should be quite upset about it.

This is something which has disfigured European history in the last 100 years. A number of people, from Mussolini to Hitler to Marshal Pétain, have adopted this course of deciding to get through an assembly, which would be reasonably compliant, a Bill entitling the Government to write the law themselves in the future. That is what happens to democracies if they are under that kind of attack. We should not in any way be party to that.

The House of Lords Library’s summary of the situation makes it clear that, in this case, the executive branch is deciding to write law and change international treaties more or less at the drop of a hat. That is obviously not something that anyone in this House could tolerate, and we should therefore think about this extremely carefully before it proceeds. We should make it absolutely clear that the Government cannot get away with asking for power in an enabling Act to simply write the future statute—not making this clear would be contrary to what we should do in this place.

16:45

[Baroness Altmann (Con)]

My Lords, I congratulate the noble Baronesses, Lady Suttie and Lady Ritchie, on their amendment. I associate myself with the remarks about the democratic deficit problems that have arisen in Northern Ireland as a result of Brexit. Many of us in this House have always believed that a hard Brexit was incompatible with the Good Friday agreement. However, the Government assured the people of Northern Ireland and this Parliament that the Northern Ireland protocol was the answer to ensuring that Brexit would work with the Good Friday agreement. It clearly imposed a border between Great Britain and Northern Ireland, as the impact assessment explained. The problems that have arisen do not seem due to the intransigence of the EU; they are inherent in the protocol.

Brexit is yet another example of how, for so long—decades and decades—Britain has imposed things on the people of Northern Ireland and, as the noble Lord, Lord Kerr, said, done things to Northern Ireland, rather than working with the people there. But that is not a reason for our Government, shortly after signing the protocol, to say, “We don’t like it. We don’t like ECJ oversight or the EU deciding what it considers a risk to its single market. We must do that”, and then expecting the EU simply to accept that, in contravention of our signature on an agreement and of what was promised to the people of Northern Ireland.

Clearly, there is an issue. I hope my noble friend can explain how removing ECJ oversight and allowing the UK Government to assess risks to the single market will make hard Brexit work for all of the parties in Northern Ireland, not just the DUP.

[Lord Campbell of Pittenweem (LD)]

My Lords, the noble Lord, Lord Dodds, made a powerful—emotional, to some extent—speech last week and it certainly resonated with me. To a large extent, that has been reflected in the contributions so far, acknowledging that things have been done to Northern Ireland. Of course, when we consider what was done to Northern Ireland in relation to this protocol, it is right to remember that the then Prime Minister went to the DUP party conference and assured it that it was “oven ready”. In an aside, he also said, “Don’t worry about the paperwork”. Perhaps the DUP was overconfident in relying upon the word of the former Prime Minister: what has happened since has exploded the idea that what was in the protocol would somehow cover all circumstances.

The noble Lord, Lord Davies of Stamford, referred to the most helpful Library briefing, which says on page 50 that Article 16 is a “safeguard” mechanism. Are we looking for safeguards? Yes, of course we are. It allows either party to take temporary

“measures if the application of the Protocol leads to serious economic, societal or environmental difficulties that are liable to persist”.

On the attitude being taken by the DUP, what better definition can we have than this expression that embraces its concerns—almost exactly and in detail? It goes on to say that the “diversion of trade” is an issue that would justify reference to Article 16.

It seems that Article 16 has been rejected by the Government. I have never really heard a proper argument for why that should be the case. I will put it this way: if Article 16 does not cover what we are about today, when will it ever be of any relevance? This question would give an answer, though perhaps not one that would suit the DUP in every respect. Should Article 16 be invoked, an answer to this question would go a long way to helping those—including me—concerned about anything that might have the effect of undermining the Belfast agreement.

I think we will have a discussion later this week in this House about trade arrangements, so I will repeat a point I made in the last debate: the trade arrangements that were held in front of all our noses were those to be made with the United States. They were going to remedy any difficulties or subtractions that we might experience if we left the European Union. However, nothing much has happened with that. As I said then—I say it again now—we forget the extent to which the politics of the United States, as they affect us domestically in both Houses and across both sides of the aisle, are influenced by their attitudes towards Ireland. It seems that, so long as we have this unresolved issue, the prospects for a trade agreement are pretty remote. For this reason, I ask the DUP why Article 16 is not enough for it, and I ask the Government to give us a coherent explanation of why they are not willing to invoke it. At the very least, by invoking it, we would be able to test it.

[Lord Dodds of Duncairn (DUP)]

My Lords, it is indeed a great pleasure to follow the noble Lord, Lord Campbell, with whom I had the honour of serving alongside for many years in the NATO Parliamentary Assembly. I understand that he continues to serve there with great distinction, so it is a pleasure to hear what he has to say.

On the issue of Article 16, I say with the greatest of respect: I well remember that, when this was being discussed and advocated by us and others, there was agreement that some of the articles in the Northern Ireland protocol should be suspended. Article 16 was absolutely opposed tooth and nail by the vast bulk of everybody, not just in Northern Ireland on the nationalist side but both here in this House and in the other place. In the last debate, I quoted statements from leading members of what was then Her Majesty’s Opposition, including the Liberal Democrat Benches—as well as others on the Conservative Benches—who were vociferous and vehement in their opposition to any notion of the implementation of Article 16. The Irish Government went so far as to say that it would completely upend the Belfast agreement, which seems to be the chosen form of words when something is proposed that is not liked. I hear with interest what noble Lords are saying now about Article 16, but that certainly was not what was being said a few months ago. Noble Lords should look back in Hansard to what the situation actually was. The reality is that Article 16—whether or not it was invoked—was not going to solve all the problems.

[Baroness Altmann (Con)]

My Lords—

[Lord Dodds of Duncairn (DUP)]

Other Members have had their say so I am going to proceed in terms of my speech.

The amendment before us from the noble Baronesses, Lady Suttie and Lady Ritchie, has the intent of saying that the Bill’s operative clauses should not proceed unless there is approval from the Northern Ireland Assembly. I note, however, that this is not by cross-community vote. What is fascinating about people who defend and say they are defending the Belfast agreement—as amended by St Andrews, of course—is that they say, “Let’s give a vote to the Northern Ireland Assembly”. Regardless of whether or not it is reserved, the fact is that you are giving a power to the Assembly, and the Assembly in Northern Ireland operates by cross-community vote: there must be a majority of unionists, a majority of nationalists and an overall majority for all major pieces of legislation to pass. If it is subject to a majority vote, it can be turned into a cross-community vote by a petition of concern. Yet, uniquely, the proponents of the Belfast agreement only ever want to give a vote on the protocol issues to the Northern Ireland Assembly without a cross-community vote. So, if we are going to be consistent about defending the Belfast agreement and the institutions thereof, this amendment should include provision for a cross-community vote.

The other big flaw of course is that there is no such requirement for the absolute implementation of the protocol itself. I pointed out that Article 50 of the joint declaration in December 2017, signed by the EU and the United Kingdom Government, said that there could be no regulatory difference between Northern Ireland and the rest of the United Kingdom unless it was by a cross-community vote of the Assembly and the Executive in Northern Ireland. So that is what should be the priority. As my noble friend Lord Browne said, there needs to be a prior step before we go down this route, which is to ask whether the protocol has the assent of the Northern Ireland Assembly on the basis of the Assembly’s decision-making powers, which are by cross-community vote.

It has also been said that the democratic deficit argument is not valid because there are other countries that have no say in laws that govern them. Norway was cited. Of course, Norway is a member of the European Economic Area but is not a member of the customs union, so it does not have EU customs laws applied to it in the way that Northern Ireland has. That is a significant difference. But the other major difference is this: the whole of Norway is a member of the single market. Northern Ireland is separated out from the rest of the United Kingdom, so one part of the United Kingdom is subject to EU laws while the rest goes its own way, making its own laws and being free to make its own decisions. Given that Northern Ireland does more trade with the rest of the United Kingdom than with the rest of the world, Europe and the Republic of Ireland put together, that makes no sense whatever. So it is entirely wrong to suggest, “Oh, well, there’s no difference between Northern Ireland and places like Norway”—there is a world of difference. I am surprised that that has not been noted.

Then we have the argument that it is the Government who have set out the position as to what needs to be done in relation to the protocol and putting it right. They issued a Command Paper in July 2021 and have now published this Bill. A lot of it is good in terms of restoring democratic control over laws that apply to Northern Ireland; it goes some way to rectifying that, although it does not do everything that we would like. Then we are told that if the DUP do not get on board with this—the Government’s proposals—then somehow the rules for power sharing in Northern Ireland should be cast aside. Again, I ask defenders of the Belfast agreement: where are you when people say, “Let’s just do away with the cross-community mechanisms and go for majority voting”? We have not had majority rule in Northern Ireland for over 50 years.

But when people talk about the Assembly not functioning for a large bulk of the period since the Belfast agreement, remember that between 2003 and 2007 it was down because of the actions of Sinn Féin and its military wing, the IRA, in robbing the Northern Bank. The Government rightly insisted that it would have to give up its weaponry before it could be considered fit to have a place in the Government of Northern Ireland. For four years—and between 2017 and 2020, again Sinn Féin kept the Assembly down and boycotted the Executive—would not agree to re-form it—on the issue of language and culture. But, as soon as there is any suggestion that the DUP insists on the democratic rights of people in Northern Ireland to be treated in the same way as other citizens of the United Kingdom, to have their say and vote on laws that affect them, we have the defenders, it appears, of the Belfast agreement saying, “No, let’s jettison all that, let’s change the rules”. Well, I am afraid that really is a recipe for disaster.

17:00

The fact of the matter is that yes, we have had this 28 October deadline pass, and whether there is an election called or not, it appears to be something that is only in the mind of the current Secretary of State who has succeeded, I have to say, in uniting everybody in Northern Ireland, and across all parties here, in bamboozling the entire polity in Northern Ireland as to what on earth is going on, or what the thinking or rationale is. The DUP does not seek an election in Northern Ireland—no party does—but we do not fear an election; we have absolutely no difficulty about putting our position and our case to the people of Northern Ireland, and we will see who speaks for unionists, and we will see who speaks for a large section of the community in Northern Ireland.

As I say, we do not seek an election, we do not think an election will do any good, we think that it will be polarising and divisive and will not forward the case for finding the solutions that need to be found—but if it happens, so be it. But I would urge the Secretary of State, whatever he has decided, to get on and announce it, and stop the current limbo situation. Are we going to respect the Sewel convention? It has been disrespected with the support of some Members who have spoken here today in relation to imposing abortion laws, which are matters for the Northern Ireland Assembly—that has been disrespected. It has been disrespected in relation to the culture and identity Bill, which I just referred to, because that again is a devolved matter for the Northern Ireland Assembly—but many noble Lords were content to push that through, regardless of the views of the Assembly.

But what I would say is that, if you are going to give the Assembly a say on these matters, then respect the Belfast agreement. Why change it? Give it a cross-community vote. What is the problem with that? I humbly say that, when it came to the protocol itself, all of those safeguards were of course jettisoned, and we need therefore to go back to the rationale for this Bill. Whether it is through the Bill or new negotiations, we have got to get to a situation where we have a position which both unionists and nationalists can support in Northern Ireland.

[Lord Pannick (CB)]

My Lords, I am not going to comment on the politics of Northern Ireland—I am a mere lawyer—but the noble Lord, Lord Campbell, raised a particular point on Article 16, and the answer given by the noble Lord, Lord Dodds, as I understood him, was that there were discussions about that, and statements were made at various times by various politicians. But the fact of the matter is that Article 16 is part of the protocol; it cannot be ignored.

What it says is that it provides a procedure for dealing with

“serious economic, societal or environmental difficulties that are liable to persist, or to diversion of trade”.

It is a very broad concept; it provides a means by which such disputes can be resolved and, as I have said before in debates on this Bill, I simply do not understand how the test of “necessity” in international law can be satisfied when the Government have available, and are not using, a provision that is expressly provided in the protocol. You simply cannot resile from an international agreement because of problems when the protocol itself, the international agreement, provides a means of addressing them; it is as simple as that.

There is one other legal point. The noble Lord, Lord Browne, deserves an answer. He rightly emphasised that Articles 1 and 2 of the protocol preserve the Belfast agreement in various respects, upholding and emphasising it. As I understood it, his argument is that the Bill is consistent with international law because the protocol, in his view, undermines the Belfast agreement. However, if I may respectfully say so, there is an insuperable difficulty with that argument: this country signed the protocol on the basis of the view that the protocol was consistent with the Belfast agreement in the context of the difficult problems posed by Brexit.

Having signed the agreement, with respect, it is trite as a matter of international law that the United Kingdom cannot unilaterally resile from the protocol because, under political pressure, it now wishes to take a different view. Therefore, this Bill, as I have suggested before, is quite simply inconsistent with international law.

[Lord Frost (Con)]

My Lords, I appreciate that I am a relative newcomer to this House, but I had understood that in Committee discussion is supposed to focus on the amendments before us. What I have heard today is very much a rerun of the discussion we heard in this place last week, with repeated invocations of issues of principle around this Bill and the protocol, which are extremely important but might not be resolved in this debate simply by repeating the points over and over.

I have been trying to follow the detail of this on my electronic device, with my documents in front of me—I know the technique may not be familiar to everybody in this House, but I am trying my best. I was not intending to speak but, as some points of principle have been raised, I feel it is right to put certain circumstances on record.

I will make three brief points. First, I feel we are having a highly abstract discussion about a very concrete and real situation. Noble Lords all know what is happening in Northern Ireland at the moment and what has happened over the last year and in recent months: the constant, gradual deterioration of the real political situation in Northern Ireland, the undermining of the institutions of the Good Friday agreement, and the degradation of some of the habits of co-operation and working together that we have seen over the years. This is a real situation, which must be dealt with. This Bill is a way of dealing with it and the Government—rightly, in my view—believe it is the best way of doing so.

We have to engage with that. We have to take real-life action to deal with the problems that exist on the ground in Northern Ireland. Important though discussions of international law and a reinvocation of why we signed this agreement may be, they do not deal with the real situation on the ground now. The Government are the Government of this country, and they are right to put forward proposals that deal with this situation. The best way to deal with it would be to expedite this Bill, not to delay, defer or withdraw it. The best contributor to stability in Northern Ireland would be to get this on the statute book and enable people to know what they are dealing with.

Secondly—

[Baroness Meacher (CB)]

My Lords—

[Lord Frost (Con)]

No other noble Lords have taken interventions, so I will complete my points if I may.

It is a pleasure to follow the noble Lord, Lord Dodds, who made the points I was about to make about Article 16. When I was on the Front Bench here, I repeatedly stated that the conditions for meeting Article 16 had been met but we would prefer to proceed by negotiation. I was looked at as some sort of barbarian by many people in this House, and elsewhere, for daring to contemplate such a possibility. Yet it now seems that it is what many people would wish to do to resolve this situation—the natural way of doing so. I am very glad that is the view, but I am afraid that my view is that the situation on the ground in Northern Ireland has gone beyond that and Article 16 will not be the best way to resolve that.

[Baroness Altmann (Con)]

I thank my noble friend for giving way. The view that I think many around the Committee hold is that the triggering of Article 16 was something that we did feel would be premature and we had all expected that there would be negotiations with the EU. However, the opposition to triggering that stage never envisaged that something like this Bill could be introduced which would rip up the whole protocol before negotiations had even been completed.

[Lord Frost (Con)]

I thank my noble friend for her comments; she is correct to say that the situation last year was different from this year. We did not invoke Article 16 in the end and many people were disappointed about that. Since then, the situation has moved on; it has deteriorated. I think this Bill is really the only way of resolving it.

Thirdly and finally, many noble Lords seem to believe that a negotiated way through this would be made easier by withdrawing the Bill. I profoundly disagree. It is very much the best way through to find a negotiated solution and that is what I wanted to do last year. The observed behaviour of the European Union, through last year and this year, is that it does not wish to negotiate about the fundamental core of the problem. The proposals it has put on the table are at the margin; they are not to do with the core of the difficulties in so many areas—not just trade but state aid, VAT and other issues that go into the depths of the protocol. I do not believe it will unless it is forced to engage with the fact that the UK Government have an alternative, which is to use the powers in this Bill. If we take the Bill off the table, we are removing such limited leverage as the UK Government have to deliver for their people, the people of Northern Ireland, a better outcome.

I will wind up there. It is very important that we do not show infirmity of purpose on this and that the Bill continues. I urge the Minister in winding up to make it clear that we intend to move forward with it.

[Baroness Wheatcroft (CB)]

I did not plan on speaking in this debate, but I think it is only right that somebody should thank the noble Lord, Lord Frost, for explaining to us how bad things have become in Northern Ireland as a result of the treaty he negotiated. I am very happy to do that. I will, however, keep my speech brief and not make a Second Reading speech.

Of course, I support these two amendments but hope very much that we will not get to vote on them. To echo the noble Lord, Lord Kerr of Kinlochard, we have been asked to put lipstick on a pig again. We have been asked to do that many times in the last couple of years, but to my knowledge, this is first time that the pig is not only ugly but illegal. On that basis, we should not get to vote on it. What we should do now, as others have said, is invoke Article 16. If negotiations are not working, as the noble Lord, Lord Pannick, said, there is a route open to us but passing an illegal Bill is certainly not it.

[Lord Hannan of Kingsclere (Con)]

My Lords, I had been planning to speak on the detail of the amendments. It seems to me to be quite unreasonable, as the noble Lords, Lord Dodds and Lord Bew, have already said, that the whole essence of the Belfast agreement, which was that important decisions would be made on a cross-community basis—a difficult principle for unionists to accept at the time—is now being abandoned the moment it becomes inconvenient. I say that as someone who was rather opposed, at the time, to the Belfast agreement—not on orange or green grounds but because I thought it was unhealthy to have all the parties in power all the time. I thought it would be healthier for democracy to have a more genuine competition. I lost that argument and we went down this road. It seems a little inconsistent that we should move to majoritarianism only when it suits people pushing one agenda.

17:15

The point ably made by the noble Lord, Lord Kerr, is that this is not really what this or any of these amendments are about—I commend him on his honesty as well as on his customary eloquence. What all these amendments have been about—noble Lords have been perfectly frank about this—is their fundamental disagreement because of their contention that the Bill is illegal; that point was well expressed by the noble Lord, Lord Pannick. You can share or not the sense of the noble Lord, Lord Bew, that it is covered by Articles 1 and 2 giving primacy to the Belfast agreement and that that has prior force.

I am not a lawyer—there are many more distinguished people than I am—but I wanted to bring before the Committee one other observation. I sit on the sub-committee that deals with the protocol. We have heard from all the parties in Northern Ireland, and all of them support the unilateral grace periods. Not a single one has spoken out for full implementation of the protocol in the sense of wanting those unilateral grace periods withdrawn. In fact, I do not think that anyone in the European Commission is pushing for either. Other than one or two fairly ill-informed Democratic congressmen in the US, I do not think that anyone at all now says that we should apply in full the protocol without those alleviations and suspensions. I therefore put it to your Lordships that we are already in breach of international law, so the question is simply one of degree.

I very much sense that I am in a majority in this Chamber—I can see very well where most people stand. However, I plead with your Lordships to consider in mitigation that the Government are dealing with imperfect alternatives, it is simply a question of how far you want to go to prioritise one over another, and that therefore some of the more extreme rhetoric that we had both at Second Reading and on the first day of Committee about dictatorships, this being the worst Bill ever, tyranny and so on may be a little misplaced.

[Baroness Chapman of Darlington (Lab)]

This has been a much more wide-ranging debate than I had anticipated. I guess we will see a lot of that in Committee, because, as many noble Lords observed, of the fundamental nature of our objection to what the Government are trying to do. However, this group of amendments is timely and makes an important point. Whether or not we agree that we should be supporting these to the letter is not, I think, what the noble Baronesses, Lady Suttie and Lady Ritchie, were trying to ask in tabling them. They were trying to make an important point. The issues which the noble Lord, Lord Frost, quite rightly reminds us are real on the ground in Northern Ireland absolutely are. However, this situation is now unique to Northern Ireland, and in every instance where there are a set of problems that relate to one specific geographical area—perhaps especially Northern Ireland, but it could be Wales or the north of England—the idea that you would try to resolve them unilaterally, without proper engagement with communities who live there, is unrealistic. Whatever happens with our deliberations on the Bill, with the negotiations or even if there are to be elections, and as a consequence of all that, we will not be able to move forward unless all the parties in Northern Ireland get together and agree a way to proceed. Any other way of going about this will not provide us with a durable solution, and that durability of an agreement is what we all want.

The Government were warned about the protocol at the time. It has been said, “But we were in a bit of a hurry because we weren’t allowed to leave without a deal; we just had to do something and this was better than nothing.” We have heard all that, and whatever we think about a Government making that kind of argument when they had an 80-seat majority and could pretty much at that point do whatever they wanted, we are where we are. However, these problems were completely foreseeable, and I regret that we have got to where we are.

Some people say that we need to expedite the Bill—I think that the noble Lord, Lord Frost, said this—and move on. That is fine, but to do what? What is it that the Government want to do instead? We do not know. Last week, the noble Lord, Lord Dodds, said he was concerned that he did not know. We have not seen draft regulations. We are being asked to agree to something without knowing what it is we will be left with at the end of the process; that is not reasonable for this Committee.

At the risk of making a wide-ranging and ponderous speech that deviates all over the place and does not address these amendments, let me say that saying, “Oh well, some people on your side said it was a bad idea at the time; therefore we must never do it”, is not a serious response to the challenge from the noble Lord, Lord Pannick, about this being the legal mechanism to which the UK Government agreed. We have not heard an adequate response from the Government on why they now view Article 16 as an inadequate provision that would not address the issues with the protocol that they say, and we agree, need to be resolved.

Also, on the idea that having this issue on the table will somehow make the EU more forthcoming in giving us what we want—although we lack clarity on that—I think we could be forgiven for not placing too much faith in the brilliance of the UK’s negotiating ability, given that it has brought us to precisely where we are today. The point that the noble Baronesses were making in tabling these amendments is a very important one, and one that we want to take seriously—especially in what the noble Lord, Lord Dodds, said about the cross-community nature of that involvement. We absolutely take that on board but it remains a point of principle, and one we should not lose, that we cannot do things to or act unilaterally in a way that has a huge impact on Northern Ireland without proper, full engagement with the communities there.

[The Parliamentary Under-Secretary of State, Northern Ireland Office (Lord Caine) (Con)]

My Lords, I trust that the Committee will forgive me if I, somewhat unfashionably, pay lip service to the Standing Orders of the House and actually speak to the amendments. In so doing, I want to try to live up to the comments from my noble friend Lord Cormack. As an admirer of Harold Macmillan and the Baldwinite tradition in the Conservative Party, I will try to deliver my comments in that quiet, calm, deliberative way of which Mr Macmillan was so fond.

I am grateful to the noble Lord, Lord Kerr of Kinlochard, for his kind words. I fear that, from now on, I will only disappoint him. Without going over the history, I say that he is well aware of what my views were three years ago but, as I have said many times, I am less interested in how we got here and more interested in how we can move on and get out of here into a more satisfactory state of affairs.

Before I turn directly to the amendments, as this is my first opportunity to speak from the Front Bench since the passing of May Blood, I want to reiterate a number of the comments made about her last week. She was an absolutely fearless and tireless champion of the rights of everybody in Northern Ireland. Her record in bringing people together, particularly through her work on integrated education, was absolutely inspirational.

I have just been sent a text. Some people will have come across a chap called Bob Mauro, who was the director of Irish Studies at Boston College; I see the noble Lord, Lord Hain, nodding. Sadly, I have just been informed that he has passed away. He was a man with whom those of us who have been involved in the affairs of Northern Ireland over a number of years had a great many dealings, so our sympathies go to his family and colleagues as well.

I emphasise a couple of points on which I strongly agree with the noble Baronesses, Lady Suttie and Lady Ritchie of Downpatrick, and which underline the frustrations that we all share in this House over the lack of devolved government since February. A number of us have sadly been through this experience on too many occasions in recent years, and Members opposite went through it from 2002 to 2007. It is not a satisfactory state of affairs. We are firmly committed to the Belfast agreement, to its institutions and to getting devolved government back up and running as soon as possible. My right honourable friend the Secretary of State will have this at the top of his agenda when he meets the political parties in Northern Ireland over the coming days.

Amendments 4 and 5, in the names of the noble Baronesses, would essentially, by requiring the prior approval of the Northern Ireland Assembly, undermine the ability to exclude elements of the protocol and therefore undermine the entire operation of the Bill. In application, these amendments, if passed, would be wrecking amendments. We are very committed to restoring a fully functioning Executive and Assembly, but I remind the Committee that it is because of the operation of the protocol in its current form that the Northern Ireland Assembly has not sat since February. Sadly, we cannot be sure how long that state of affairs will persist. Therefore, these amendments risk setting a test which, in the current circumstances, could not be met due to the lack of an Assembly. The disapplication of elements of the protocol is also an excepted matter of foreign affairs reserved for the UK Government. Although we of course engage with parties in Northern Ireland, it would be improper, effectively, to transfer a new competence to a devolved Assembly in this way.

I assure the noble Lord, Lord Purvis of Tweed, that we are committed to the Sewel convention and that we are pursuing options for obtaining legislative consent to the Bill from devolved Administrations. The Permanent Under-Secretary at the Foreign, Commonwealth and Development Office wrote to the head of the Northern Ireland Civil Service regarding legislative consent and it remains our hope that we can reach a positive resolution on this point as soon as the institutions are restored. Regarding conversations with MLAs and political parties in Northern Ireland, I assure the noble Lord that these continue all the time, involving the Secretary of State, the Minister of State and me. We are in Northern Ireland, talking to political parties, all the time. It will not surprise the noble Lord that these issues surface from time to time. Without going into details of individual conversations, we continue to engage.

The noble Baroness, Lady Suttie, referred to the letter sent earlier this year to the then Prime Minister, setting out opposition to the protocol Bill. This was raised by a number of noble Lords. Like the noble Lord, Lord Dodds of Duncairn, I am somewhat surprised, as one who spent many years as an adviser in the Northern Ireland Office and was told that particular arrangements for Northern Ireland were completely unsuitable because they did not have the support of a minority, now to be told that somehow majority rule, after a 50-year absence, ought to make a return. As a number of noble Lords have pointed out, cross-community consent is at the heart of the Belfast agreement. Following the May election, the largest single designation in the Assembly remains unionist. Under the 1998 rules, we would still be looking at a unionist First Minister. That remains the largest single designation and it is worth pointing out again that not a single unionist Member of that largest designation in the Assembly supports the protocol in its current form. In those circumstances, it is fair to point out that we have a problem.

17:30

The noble Lord, Lord Hannay, for whom I have great respect, and my noble friend Lady Altmann said that a majority of people in Northern Ireland voted to remain within the EU. At the risk of exciting controversy, I point out to both of them that so did I. However, the vote was by the United Kingdom, and the United Kingdom as a whole voted to leave. For the sake of our democracy, it is important that we respect that vote.

The noble Lord said that Northern Ireland is not uniquely disadvantaged by a democratic deficit and referred to the European Economic Area. The noble Lord, Lord Dodds of Duncairn, dealt with this somewhat, but I should add that new EU legislation is not automatically added to the EEA agreement, whereas the protocol provides that new EU legislation automatically applies in Northern Ireland if it amends or replaces legislation in the annexes to the protocol, without adequate opportunity to reflect on its implications for NI. That is where the sense of a democratic—

[Lord Hannay of Chiswick (CB)]

I am most grateful to the Minister for giving way. Could he perhaps give an instance in which Norway has not immediately adopted a piece of European legislation since the EEA agreement came into effect?

[Lord Caine (Con)]

The noble Lord is a former diplomat. He is a far greater expert on these matters than I will ever be. However, my noble friend Lord Hannan has just whispered in my ear “the post office directive”. I will come back to the noble Lord with further details.

[Lord Purvis of Tweed (LD)]

I am grateful to the noble Lord for giving way. I know that we will come on to the application of EU law in later groups, but since the Minister has helpfully referred to that, it would be good for him to be clear that, even under this Bill—the dual regulatory regime that the Government are proposing—there will be direct application of EU laws.

[Lord Caine (Con)]

As the noble Lord rightly pointed out, we will deal with this subject in the fourth group of amendments. I shall be responding for the Government, so if he can contain himself, we will deal with it at the appropriate point—if we get there this evening.

In summary, we do not think that it would be right to make implementation of measures in this Bill contingent on the restoration of the institutions, given the urgency of the situation in Northern Ireland to which the Government must respond.

I turn briefly to Amendments 68 and 69, also in the name of the noble Baroness. Taken together, these would make the commencement of all operational aspects of the Bill dependent on the approval of the Northern Ireland Assembly. At the risk of repeating myself, it is because of the operation of the protocol that the Assembly has not sat since February. We do not know how long this state of affairs will persist. The situation in Northern Ireland is urgent, and we cannot allow addressing the problems with the protocol to be delayed indefinitely.

The noble Lord, Lord Bew—I should really call him my noble friend—rightly referred to the fact that trade has been a reserved matter ever since the Government of Ireland Act 1920. The amendments would essentially prevent the Government making secondary legislation in a reserved area. That is another reason why we cannot accept them.

Given the urgency of the situation—the need to fix the protocol—it would not be right to make the implementation of the vital measures in this Bill contingent on the restoration of the Assembly and Executive. For those reasons, I ask the noble Baroness not to press her amendments.

[Baroness Suttie (LD)]

My Lords, I begin by echoing the Minister’s comments on May Blood. On behalf of these Benches, I pass on our condolences to her family. I heard about her when I first went to Belfast, and she was held up as a role model for so many in Northern Ireland.

At the outset, I said that this would be a probing amendment. It would be fair to say that it has provoked and probed quite extensively. We have covered a variety of topics, with some very interesting and thought-provoking speeches. In particular, I single out the very measured speech by the noble Baroness, Lady Ritchie, and that of my noble friend Lord Bruce, who perhaps displayed his irritations and frustrations with the situation a little bit more clearly than I did.

As ever, I found myself agreeing entirely with the noble Lord, Lord Kerr, and the noble Baroness, Lady Altmann. They are both absolutely right in their analysis that things are being done to Northern Ireland rather than for it. That is, in essence, the purpose of these amendments: they are probing amendments about the principle of consulting, and not just with one part of one community.

I totally agreed with the noble Lord, Lord Cormack. It was a wonderful piece of common sense. Would that we could all now finish what could perhaps be described as a waste of our collective time. There was an interesting series of contributions none the less.

I want to thank the noble Baroness, Lady Chapman, who rightly said that the amendments are about the principle of consultation—consulting the Members of the Northern Ireland Assembly and, in their absence, making sure that they are properly involved in the process. I fear that the Minister did not really expand on how that will happen in the weeks and months ahead.

It is, perhaps, one of the peculiarities of this Bill that no one department ever seems to want to take ownership of it. However, it was very welcome to have the Minister from the Northern Ireland Office today because, with all his experience, he was at least able to speak first hand about the consultation and the details of this legislation.

To repeat, the Northern Ireland protocol is a problem of this Government’s own making. Finding practical solutions needs to be their responsibility. However, it is important to listen to all voices in Northern Ireland and, as I said earlier, not just those of one part of one community. It is hard to see how creating further ill will through this legislation will achieve that aim. However, I will not press these amendments this afternoon but reserve the option of re-tabling them on Report, depending on what happens in the weeks ahead in Northern Ireland around the possible elections to the Northern Ireland Assembly. I beg leave to withdraw.

Amendment 4 withdrawn.

Clause 2 agreed.

Amendments 5 and 6 not moved.

Clause 3 agreed.

Clause 4: Movement of goods (including customs): excluded Protocol provision

Amendment 7

Moved by

[Lord Purvis of Tweed]

7: Clause 4, page 3, line 13, leave out subsection (3)
Member’s explanatory statement
This is part of a series of amendments based on recommendations from the Delegated Powers and Regulatory Reform Committee which states that a number of subsections in the Bill “contain inappropriate delegations of power and should be removed from the Bill.”

[Lord Purvis of Tweed (LD)]

I rise to move Amendment 7 and to perhaps add some mascara to this porcine proposal for the satisfaction of the noble Lord, Lord Kerr. I tried to give a preview of the excitement of later groups to retain the attention of the Committee. Alas, we might be on to more of a core group with Clause 4. In many respects, it is the core of the Bill. We have been told by the noble Lord, Lord Frost—who is no longer in his place—that it contains the proposals which will resolve the issues. However, in many respects, the Bill should be called the Northern Ireland delegated powers Bill, because 19 of the 26 clauses are delegated powers clauses and not proposals that we are able to scrutinise properly.

On why imminent peril and the invocation of necessity is so important, it is because it is at the heart of the reasoning why Clause 4 exists. I shall not recap the discussion on the previous group or the first day in Committee, but there is still a lack of clarity about the Government saying that the protocol is the issue but then that it is not the issue, it is its implementation. They have said in their legal paper that the situation of necessity needs to be addressed urgently but also that they have not yet made up their mind on solutions and addressing them will take time. They have said that there is imminent peril, but the Advocate-General told me on the first day in Committee that imminent is as long as the Government might consider it to be, so it is important to try to pin down when the imminent peril started.

I am disappointed that the noble Lord, Lord Frost, is not able to stay for other groups in Committee because I wanted to respond to what he said. If this Bill is a negotiating tactic, he has completely undermined the Government’s argument for invoking the doctrine of necessity for this Bill, because it cannot be both. It cannot be a way of addressing grave and imminent peril and also be a negotiating tactic with the EU. I heard said from a sedentary position, I think by the noble Lord, Lord Lilley, “Why not?” If the whole reason of grave and imminent peril for the invocation of international law is to set aside treaty commitments but there are negotiations under way to resolve them, you cannot invoke the doctrine of necessity because the doctrine of necessity under Article 25 of the International Law Commission can be invoked only if there are no other means of resolving the issues, so it simply cannot be both.

I am trying to pin down when this peril actually started and how we are to consider what the baselines are. The noble Lord, Lord True, told the Chamber in January 2021 that concerns about the implementation of the protocol must not be overstated. He said:

“I acknowledge that there have been issues—that was never denied—but, overall, goods are continuing to flow effectively. Supermarkets are able to move their lorries into Northern Ireland. There are some specific issues, as we have seen with individual suppliers, but it is holding up well overall.”—[Official Report, 14/1/21; col. 884.]


A week later, his then Secretary of State Brandon Lewis told BBC “Question Time” viewers—I quote from the transcript of the programme: “The protocol means that as part of the United Kingdom Northern Ireland is going to have this unique competitive advantage in the world, in the sense that Northern Ireland has the ability to trade in and as part of the United Kingdom as well as through the single market with the EU. That is going to mean if you are a business that deals with the UK and a business that deals with the EU, the place to invest and grow your business is in Northern Ireland. You have got that ability to trade both ways and I think that gives Northern Ireland a competitive advantage and a huge opportunity.”

Therefore, the Government rest their case on grave and imminent peril somewhere between January 2021 and the publication of the White Paper. During that period, I asked repeatedly for information on UK-EU trade, and we were also asking questions about east-west trade between GB and Northern Ireland. Ministers stated to me in response that it was impossible to disaggregate factors such as Covid and then the global supply chain. They have found ways to do for this for GB-NI trade, but it is hard to discern from official government statistics produced by the Northern Ireland statistics body, and the Department for Transport’s data for UK major ports have not shown major shifts. So I would be grateful if the Government would publish this information directly. They have indicated that trade diversion exists, but they have not published statistics showing their case. I am very willing to look at them if they have published them, but they have not yet done so. Therefore, we need to have more information as they are seeking powers to put forward a dual regulatory system of both UK and EU procedures.

I appreciate the comments that were made on the first day in Committee by the noble Lord, Lord Dodds, and others that the protocol has not been implemented in full yet, and I understand that, but neither has the TCA for any UK port of exit and entry for goods into the UK. We are on our third delay for Dover and all other ports, and they are not fully operational. For trade between the UK and the EU, there is not a single fully operational port under the measures of the TCA in any of the four nations.

17:45

Clause 4 is an admitted breach of the protocol agreement. It represents withdrawing from the Government’s agreement on customs legislation—the unique competitive advantage described by Brandon Lewis. The powers under this section are affirmative but unamendable if they are changing the law, or making retrospective law, negative elsewhere, but also automatic in the “made affirmative” procedure. As the DPRRC said, the Government’s justification for the Clause 4(3) powers is the need for flexibility and that they are technical in nature and the technical should not be in statute. However, the regulations themselves can amend statute, so if it is justified for primary legislation in the first place, it obviously justifies it for its amendment. Let us not forget that this is international law. On the other point on flexibility, the DPRRC stated that this is

“at the expense of meaningful constraints and scrutiny, precisely because the power is so open-ended.”

The Clause 4(5) powers are also an admitted breach. They replace an agreed joint mechanism with a unilateral mechanism to decide how to categorise goods which may or may not be at risk of entering the single market. This would be a unique proposition for the UK now, contrary to all UK FTAs and the WTO. As the DPRRC states:

“It cannot reasonably be described as technical, administrative or operational detail.”

It is not just that committee. The Constitution Committee has said that

“it undermines the rule of law for the UK Government to invite Parliament to pass legislation in breach of the UK’s international obligations. Enabling ministers to do this through secondary legislation, particularly via the negative resolution procedure, is even less constitutionally acceptable.”

On the basis that this clause is an admitted breach of international law and the Government’s defence for the breach has fallen apart, and, further, that the Government have not presented a replacement for the provisions of the protocol they seek to exclude, and the powers are so broad and have been condemned by the committees of this House, I beg to move.

[The Earl of Kinnoull (CB)]

I was hoping that others would take on the strain. I spoke at Second Reading, and I have tried to come to this really representing the settled views of the committees of this House that have been considering these areas. I think we have heard quite a bit already in debates about the wisdom, or lack of it, of passing something that has the appearance of being an illegality. It does not matter whether or not it is; it is the appearance that is hugely damaging in terms of the rule of law point.

I will add briefly to those general views by saying only that there is a further view, and that is that we have to do an awful lot of deals with the EU over the coming years on a whole lot of things, and it is fairly unwise at this very early stage in the new relationship to have such a big black put up about us not being a reliable partner. I am deeply concerned about that, and it is a concern that has flowed through to the various reports that we have written over many years in this area. I am looking at a solid former member of the European Union Committee in my noble friend Lord Kerr of Kinlochard, who made a very good speech in the previous group, and at my noble friend Lord Pannick, who made an equally good speech and who has been strong in this area. In this group, I do not want to follow up on that, but in view of the fact that everyone seems to be going very wide here in Committee I thought I would just make that point now rather than very late tonight.

The particular point I want to raise came out of the June 2019 report of the European Union Committee, Scrutiny of International Agreements: Lessons Learned. The important thing to note here, I think, is what the man in the street had in terms of scrutiny at an elected or a parliamentary representative level in the moment before Brexit. The cherry had three bites out of it—or, really, two bites and a nibble. The first bite was that his representative in the European Parliament was going through the thing very carefully indeed, as most trade deals and many international agreements were on European matters. The second bite was that, through the action of the scrutiny reserve resolutions, the European Union Committee structure in this House and the European Scrutiny Committee structure in the House of Commons were going through things in exhaustive detail, and the interaction of those two committees and the European Parliament began at the start of any process and followed it all the way through to the end.

The third little nibble came with CRaG, a simple thing which looks at the eventual results; it is a quick yes or no procedure, where the House of Lords does not have any power at all and the House of Commons has precious little. We said in our report of June 2019 that

“the CRAG Act is poorly designed to facilitate parliamentary scrutiny.”

That is pretty clear, and it seems to me on rereading the report over the weekend that it is a pretty good report. I am coming at this in a slightly different way, but what worries me now is that these are core changes to an international agreement that could be made without any form of parliamentary scrutiny—that is true of this group but other groups as well—not even the CRaG form of scrutiny, just a Minister making an agreement. For core changes to core treaties with core partners, there must be a very good parliamentary scrutiny process.

I have not arrived with the answers to exactly what the process should be but I am saying that it must be a very serious process. I think the net effect of amendments like these would be to remove the ability of a Minister to make a decision like that but leave a mechanism whereby a Minister could come back to Parliament and—after suitable scrutiny with a suitable process—have a parliamentary agreement to back up whatever the change being discussed. I have been sitting over this for six and a half years, and I find it very difficult to discuss such changes in the abstract. I would like to discuss specific changes specifically, which is why I feel very supportive of this line of amendments and thankful that they have been tabled.

[Lord Cormack (Con)]

In effect, we have heard this evening a reiteration of Dunning’s Motion in the reign of George III:

“The influence of the Crown has increased, is increasing, and ought to be diminished.”


We are seeing in the Bill not only an abrogation of international law and our obligations, which is what primarily concerns me, but in the process, by the design of the Bill, an accretion of power to Ministers and the Executive—an unbalancing of the relationship between Parliament and the Executive.

The Executive are answerable to Parliament in our constitution. Here, great chunks are being given to the power of the Executive. We owe an enormous debt to the noble Earl, Lord Kinnoull, and his committee, and other committees in this House, which have pointed this out calmly—to use a word I used earlier—but very forcefully. We are embarking on a road towards executive superiority such as is incompatible with our constitution, which is moving away in the 21st century from what our forefathers fought for in the past. We cannot emphasise that too greatly.

The person who could make this speech far better than I and whose name is on the amendments spoken to eloquently by the noble Lord, Lord Purvis of Tweed, is the noble and learned Lord, Lord Judge. Time and again, in a variety of Bills and contexts, he has pointed out to your Lordships’ House how the accumulation of Henry VIII powers in the hands of Ministers, without proper accountability to the House, is the road towards executive domination such as is incompatible with our constitution, as I said a few moments ago.

In wholeheartedly supporting these amendments, I urge my noble friend, when he comes to reply from the Front Bench, to address this issue and address it directly. I have great admiration for my noble friend Lord Caine. I certainly have great admiration for his knowledge of, and concern for, Northern Ireland, to which he has dedicated a large part of his life; but is he really happy to be put in a position, or see any of his ministerial colleagues put in a position, where they can override Parliament effectively by diktat?

[Lord Pannick (CB)]

I completely agree with the noble Lord, particularly in relation to his tribute to the noble and learned Lord, Lord Judge. In his absence—as his junior as it were—I draw this Committee’s attention to the quite extraordinary report of your Lordships’ Delegated Powers and Regulatory and Reform Committee to which reference has been made before, particularly at Second Reading, but it bears repetition. Its seventh report of this Session says at paragraph 4 that this is

“a skeleton bill that confers on Ministers a licence to legislate in the widest possible terms.”

It continues:

“The Bill represents as stark a transfer of power from Parliament to the Executive as we have seen throughout the Brexit process. The Bill is unprecedented in its cavalier treatment of Parliament”.


That is quite an extraordinary criticism of this legislation. It is made not by novices but by highly experienced and respected Members of your Lordships’ House across party lines. I find it deeply regrettable that the Government should think it appropriate to continue with a Bill that has attracted such cross-party criticism.

[Lord Lilley (Con)]

My Lords, I came into Parliament nearly 40 years ago and was told first of all that you should never ask a question to which you do not already know the answer. Now that I have been here so long, I feel that I can take the risk of asking some questions to which I do not know the answer, about a very important aspect of the Bill that has just been raised by the noble Lord, Lord Pannick.

There are two criticisms of the Bill, the first being that it is allegedly against international law. I do not believe that and have not really heard any answers to the points raised by the noble Lord, Lord Bew. What happens when you have two conflicting international obligations? The second criticism is that it relies, very largely and to an almost unprecedented degree, on Henry VIII clauses. Historically, I am very reluctant to rely extensively on Henry VIII clauses, and I was rather shocked by the committee report to which the noble Lord, Lord Pannick, has just referred.

The questions that I want to ask, and to which I do not know the answer, are: first, what is the alternative in the context in which we are to have open-ended Henry VIII clauses; and secondly, why did the Government not adopt that alternative? I assume that the alternative to the Henry VIII clauses is to spell out in detail, in primary legislation, what you intend to do, but the context in which we are doing it is that we are simultaneously legislating and negotiating.

The noble Lord, Lord Purvis, said that we cannot do that. It seems to me perfectly compatible with the doctrine of necessity to do that. We have to do something, we need the power to do something, we have taken the legal power to do something, but we would like that something to be negotiated if possible. So we are simultaneously negotiating and legislating. If we spell out in primary legislation, in detail, the outcome that we want to get, in the context of a negotiation that involves give and take, we either have to spell out the maximum we want—what we want to take without any give—or the minimum we are prepared to accept: what we are prepared to give without any prospect of taking.

In this unusual situation of having to have the legal powers to act while we are negotiating and hoping for a negotiated solution, I am not sure what alternative there is to what the Government have done. I would be grateful to hear what noble Lords would do who share my reluctance to rely on Henry VIII clauses. Effectively, we are saying we are recreating the royal prerogative in the negotiation, giving the Government a free hand, while giving them the power to take legislative action if those negotiations do not achieve a satisfactory result.

18:00

[Baroness McIntosh of Pickering (Con)]

My Lords, in an earlier debate the noble Baroness, Lady Chapman of Darlington, pointed out precedents whereby the Government relied on regulations to give meat to a Bill and they had been published by this stage, so that we had some sight of what we were signing up to.

I am interested that on this occasion, on this group of amendments, my noble friends on the Democratic Unionist Benches have been strangely silent. Given what we have heard from the noble Lord, Lord Purvis, in moving the amendments and from others who supported him, to me, this amounts to a democratic deficit. All the conditions that would normally be put in place, involving a review of the regulations before they came up, appear not to be in play at this time. I hope my noble friends will find common ground with me, recognising that this could be a democratic deficit the likes of which they would not like to see.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, when the noble Lord, Lord Purvis, set out this group of amendments, he rightly said that Clause 4 is at the heart of the Bill, and the debate has really encapsulated that point.

I have a number of questions for the Minister. We will have several debates about the scope of the delegated powers proposed, but as this is the first group dealing with the reports by the DPRRC, it is worth recalling just how unprecedented these were. The DPRRC has chosen on a number of occasions to publish a report while a Bill is still in the Commons—there is nothing unusual in that—but rarely has it been so scathing, labelling the Bill

“unprecedented in its cavalier treatment of Parliament, the EU and the Government’s own international obligations”,

as the noble Lord, Lord Pannick, has said.

The committee was unable to propose tweaks to various powers in the Bill, including those in Clause 4. Instead, it recommended gutting several key clauses. As mentioned in the debate, the Government opted not to respond to the DPRRC before we moved into Committee, even though they had from July to do so. It is hard to see how the two sides can meet in the middle, so, if we proceed to Report, it is quite possible that this House will have to strip out several clauses.

The noble Earl, Lord Kinnoull, made interesting points when he talked about the previous level of scrutiny of EU law, in which this House played a very prominent part. I am sure many Members of this House served on those committees. The EU Committee scrutinised legislation, as did this House and a whole series of committees, and the House of Commons, of course. That was a far higher level of scrutiny than anything being proposed at the moment.

The noble Lord, Lord Lilley, asked an interesting question—and he was fair in saying it was a genuine question—about the alternatives to this multitude of Henry VIII powers. I will be interested to hear the Minister’s response. It seems to me that the alternative is to go through things in detail, as the old EU committee structure in this House used to do routinely. I will be interested to hear the answer to the noble Lord’s question.

We are sympathetic to this group of amendments. I do not know what the noble Lord, Lord Purvis, is going to do but we are happy to support him.

[Lord Bew (CB)]

My Lords, I am well aware of the sensitivity in this House regarding Henry VIII powers, and I respect that; it is a serious argument. However, Northern Ireland looks at these things from an angle that is not entirely the way the House of Lords looks at them. For one thing, there are what you might call Louis XIV powers all over the place in terms of European law and regulations, but there is silence about that.

The second issue, which has already been alluded to by the noble Lord, Lord Dodds, is that again and again, we have had the most dramatic demonstrations of Henry VIII powers in areas where I and other Members, a majority in your Lordships’ House, are in agreement—abortion laws and so on. We do it all the time. When we as a local assembly like it, when it is our kind of opinion, we have no problems. When we do not like what is proposed, we discover that this application of Henry VIII powers is intrinsically terrible. To be blunt, the House needs to avoid looking totally hypocritical on this point.

I feel that I have been living for a very long time with Article 16 and the potential illegality or otherwise of the Government’s legislation. When I first encountered it, in fact, it was Article 15 in Theresa May’s Bill; it was that long ago. I read and reread it until I was blue in the face. Let me say what the problem is in attempting to challenge the Government’s position. The best argument against the current position in the legislation is that Article 16 could be and should have been applied. At the moment, it is ridiculous. We are in the middle of a serious negotiation with the EU and it would break that up, so it is fatuous and politically absurd. Apart from the principle of reality, I can see why people want to argue that, but it is not going to happen now because the Government want this legislation with the EU to succeed. In the Financial Times as recently as September, the EU was defining the application of Article 16 as an outrage and so on. The situation would simply be aggravated.

The other weak point of this argument is that saying, “We want Article 16 but nothing else” is the sound of one hand clapping. None of those who have argued for it in this House since Second Reading has shown any grasp of the central difficulty of the relationship between the two treaties and their interaction. If you are going to argue, as distinguished international lawyers have done before both our Select Committees, that the Government have a case of sorts but Article 16 should be applied first, that is based on the idea that there is an interaction between the two treaties and this is the best way of acting to defend the Good Friday agreement. That is a perfectly respectable intellectual legal argument, but it just does not fit with the political moment we find ourselves in, with ongoing negotiations.

The sensitivity that people in this Chamber have about the attitudes and feelings of the EU is quite remarkable when they do not seem to feel it themselves; they feel that they are quite adult enough to get on with this negotiation anyway, regardless of the Bill. As I pointed out, the Irish Foreign Secretary said openly that they do not like the Bill but that is not a reason for not having the negotiations. Still, it is wonderful to see people stick up for other people’s rights and interests when they themselves do not seem quite so keen or worked up about the subject.

The main point is that just saying “Article 16” is simply one hand clapping. The only possible viable argument is to say—as indeed both the House of Commons and our own Select Committee have been told—that that is indeed the way you could use it to get a result. The best criticism of the Government is that you cannot really prove necessity unless you have gone down this route. It so happens that the Government are stuck in a moment of real politics, the real negotiation that is going on, so they cannot do it, but the majority of speakers in this House say, “I would like Article 16”. That is an amazing recent conversion to Article 16. A few months ago, most of us hated it and regarded even talking about it as a piece of British brutishness. Now we really love it because we prefer it to the Bill. Unless you add to that that you accept that there is a real problem with the interaction between this agreement and the Good Friday agreement, as the former Lord Chancellor said in the House of Commons, then, in the Chinese phrase, it is just one hand clapping.

[Lord Kerr of Kinlochard (CB)]

My Lords, the noble Lord, Lord Bew, raises a fascinating conundrum, but what he said about Article 16 was based on a misunderstanding of what the noble Lord, Lord Campbell, said earlier. I do not think I have met anybody in this House who believes that the right course of action, in abstract, is to use Article 16. The right course of action is to apply the treaty that we signed: that is what a lot of us believe. Clearly, there are others who take a different view. The point that the noble Lord, Lord Campbell, was making—which is clearly correct, and has been made several times by the noble Lord, Lord Pannick—was that there is Article 16. It exists. It is the designated route—the agreed route, the treaty route—to deal with a dispute about the implementation of the protocol. I am not saying that we should be using Article 16. I am saying that we should not be using another means and pretending that it is legal so to do while Article 16 exists. That seems to be the rub of it.

I will try to deal in an amateur way with the interesting questions from the noble Lord, Lord Lilley. I do not know the answer either, but one answer would be the Irish answer: “I wouldn’t be starting from here.” I am sure that the noble Lord agrees with me that if you read Clause 18(1) or Clause 22(1) and (2) of the Bill, the only question in your mind is: is this Lewis Carroll or is it Stalin? These are astonishing powers taken for the Minister, by regulation, to do whatever he likes, providing it is broadly to do with Northern Ireland. As the noble Lord, Lord Pannick, said, the reports that we have seen from three committees—but particularly the Delegated Powers Committee—are devastating. I cannot remember seeing in this House such strong language used in a unanimously agreed cross-party report.

The noble Lord, Lord Lilley, would agree with me that we do not want to be in this situation. There must be another solution. As a former negotiator, I would say that it is crucial to avoid putting the ball in your own net. Frankly, attempting this legislation while also attempting—or claiming to be attempting—to conduct negotiations, is absurd. Here I part company with my friend the noble Lord, Lord Frost, whose third argument today was exploded by the noble Lord, Lord Purvis. He said that it is necessary for negotiating reasons to advance this protocol; this is what will make the other side sit up and pay attention. You cannot argue both necessity and that. In my view, you would be mad to argue that, because on the other side of the table it is not a playground spat. On the other side of the table is a grown-up group of 27 countries that believe in the rule of law and are concerned that bad precedents should not be set. They cannot possibly concede that, because there is a blunderbuss on the table, they must give you what you are asking for in negotiations. They are not going to do that. Therefore, my answer to the conundrum of the noble Lord, Lord Lilley, is that it is a great mistake to legislate in these terms while you are negotiating. If Ministers are telling the truth about their wish to negotiate a solution to this, the last thing they should be doing is putting forward this Bill.

18:15

[The Earl of Kinnoull (CB)]

My Lords, I really agree with every word that has just been said. I have another suggestion for the noble Lord, Lord Lilley. The truth is that most liberal democracies in the world exist in an environment where major changes to international agreements or the making of international agreements are scrutinised by Parliament on a fairly open basis. We all know, for instance, that Mr Šefčovič has a mandate. In fact, we know an awful lot about that mandate. Mr Šefčovič regularly briefs committees in the European Parliament and has a pretty good ability to bring the European Parliament along with him, which is important—and, indeed, to bring the 27 nations along with him as well.

I am not suggesting that we should copy and paste that, but I note that the PACAC, a committee of the other place, was in Norway last week. I had a detailed discussion with a member of that committee on Friday about how Norway deals with this. In fact, Norway also brings along its Parliament in a very open way and this does not appear to interfere with the negotiating process in the way the noble Lord was worried about. These are major changes to an international agreement. The international agreements process that we have, which we need to rebuild in this Parliament, should take account of that and should apply. That is a fairly open process to the committees and Members of both Houses; I feel that strongly. I do not see any other liberal democracies doing this. We are unique in having cut Parliament out of the process. I see no other democracies having problems of the nature that the noble Lord, Lord Lilley, is worried about. I could see that he was genuinely worried, but I have to say that I am not.

[Lord Campbell of Pittenweem (LD)]

My Lords, I will not rehearse what I said previously about Article 16, but I will see if I can answer the question posed by the noble Lord, Lord Lilley. If you are faced with two instruments that appear to be in conflict—which I think is what we are arguing—the first thing you do is have a detailed analysis of these instruments to see whether there is a provision in them that will enable you to reconcile the difference. The advantage of Article 16 has just been set out by the noble Lord, Lord Kerr. You are adhering to the treaty by using a term within the treaty that helps you avoid being in conflict with the other treaty. That is a possible way of doing it.

[Lord Bew (CB)]

If I may intervene briefly, I have tried to explain that I had an intense relationship with Article 16 when it was deeply unfashionable in this House. Many times in the last year, I have wanted to argue privately with the Government that it should be applied. The arguments made for it are impeccable and have been for years; that is simply the case. The problem is that this is not conceivably a rational moment. There are complaints about the Bill. Does it matter what the Irish Foreign Minister says? It is said that it does not matter; we are choosing to disregard it. This is a moment when we are negotiating seriously with the EU. Suddenly to come in and say, “By the way”—and the logic is, in general terms, superb—“we are applying Article 16 now”, is bound to be destructive of the negotiations that are proceeding. We must respect the reality of the moment.

[Lord Campbell of Pittenweem (LD)]

But if the consequence of doing so is to embrace a Bill which drives a horse and cart through the procedures and principles by which this Parliament operates, surely that is an inhibition and we should avoid it at all costs.

[Baroness Ludford (LD)]

To prevent the noble Lord, Lord Bew, having to get up and sit down again, I ask him again to appreciate and acknowledge that, as the noble Lord, Lord Kerr, said, nobody in the debates we have had, whether at Second Reading, on the first day in Committee or today, is arguing to invoke Article 16. No one is advocating its use, let alone now. All that is being said is that the legal argument of necessity invoked by the Government is undermined by the fact that they have never resorted to the use of Article 16; hence necessity is on very shallow foundations.

[Baroness Butler-Sloss (CB)]

My Lords, is there not a very short answer to all of this: not to proceed with the Bill?

[Lord Dodds of Duncairn (DUP)]

My Lords, if I may make a short point before the Minister gets up to speak, it is clear that we are going to have a debate on international law and so on about every set of clauses. All I want at this stage is to draw attention to the actual situation and practical reality for people moving goods between Great Britain and Northern Ireland, as a result of the application of EU customs law for those goods coming to Northern Ireland. Briefly, and cutting through the arguments about international law, let us have a look at the reality.

The Government will have spent £340 million through the Trader Support Service helping traders process 2.3 million customs declarations for trade between two parts of the United Kingdom. For those 2.3 million declarations, by the end of the year the taxpayer will have forked out almost £350 million, and that comes on top of the movement and assistance schemes and other schemes designed to help people with the paperwork. According to some estimates, it could amount to £500 million. That support is not guaranteed to continue into the future. It has been extended for another year but at some point those costs will have to be borne by hauliers—the companies which move those goods—and consumers. There will certainly be a massive increase in the cost of living. Already, as a result of the paperwork that people have to go through, even with that support we have seen example after example of firms in Great Britain simply refusing to have any further dealings with Northern Ireland. It is simply not worth their time, effort or money, even with those vast millions going into the Trader Support Service.

I urge noble Lords to look at what people in companies such as McBurney Transport and McCulla—the people who transport goods to the Irish Republic as well, not just Northern Ireland—are saying about the paperwork and the reality of these customs burdens on trade between one part of the United Kingdom and another, and then tell people that this is a sensible way of approaching it. We need change. I understand the arguments about international law and all of that but we need to have this rectified. We cannot continue to fork out this kind of money and still have companies refusing to do business with one part of the United Kingdom; namely, Northern Ireland.

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

My Lords, I acknowledge that, as with the previous group, we have perhaps gone wider than the specific amendments. In the interests of time, and since we need to make progress on the Bill, I am not going to go into the more general arguments. My noble friends on the Front Bench and I have articulated several times the Government’s position on the need to proceed with the Bill, and those circumstances remain. I am reminded that when the debate started this afternoon, my noble friends Lord Cormack and Lord Howell, I think, among others, returned to the Front Bench the point about the necessity—to use a legal term, but not in its application to the Bill—to proceed with it. I assure the House as one of the three Ministers responsible for the passage of the Bill that, while in the middle of a reshuffle, our weekends—I speak for all three of us—have been focused on the detail of the Bill and proceeding with it. The fact that the three of us are still present reflects the Government’s current intent, because we feel that this is necessary.

I have heard the arguments again today, many of which were articulated at Second Reading and in our debates so far in Committee, and I understand the points made by the noble Lord, Lord Pannick. I listened carefully on the issue of Article 16, and he is of course right. I know that the noble Lord has a different perspective, but that is why I say that we have never said that Article 16 is off the table. It remains an instrument available to the Government within the treaty that we have signed, as noble Lords have said. However, there is a reality, which was articulated very well just now by my noble friend Lord Dodds. The reality is what businesses are now facing. The protocol is not working and if is not working in the interests of any part of the United Kingdom, as its Government we are obligated to ensure that we provide a practical solution which works in the interests, first and foremost, of the citizens of our united United Kingdom. That remains the primary intent of the United Kingdom Government.

I will pick up on some of the specifics. In introducing his amendments, the noble Lord, Lord Purvis, asked about published statistics. What I can share with the noble Lord is that HMRC has published summary data on the numbers of declarations, their associated value and the number of businesses importing goods into Northern Ireland from Great Britain in 2021. I will give a couple of summary statistics, if I may: in 2021, over 1 million full declarations were declared to HMRC. The number of businesses associated with those full declarations was 10,400, while 100 GB businesses have stopped supplying the Northern Ireland market already. The requirement to follow EU rules is one of the factors behind this situation, as was alluded to in the detail of the contribution of my noble friend Lord Dodds.

I turn to the amendments in front of us, including Amendment 7 in the name of the noble Lord. As many noble Lords noted, a number of the amendments are on the recommendations of the Delegated Powers and Regulatory Reform Committee, to which the Government will respond, as I said earlier, as they will to the report of the Constitution Committee. I have checked with officials and we will certainly seek to respond in advance of Report.

I acknowledge the reservations raised today. The noble and learned Lord, Lord Judge, is someone who I respect greatly and have great admiration for. I assure noble Lords that in our engagement on the Bill, it did not surprise me at all that the majority of our discussions began, as he said, “Well, Tariq, you know what I’m going to raise with you.” Yes, the Bill has many clauses where the Government seek to take certain powers because we believe that they are necessary. The Government remain of the view that these delegated powers are required, and will enable secondary legislation to set out precisely the UK or non-EU movements that will be excluded by Clause 4(2).

The operation of the protocol, as we heard from the noble Lord, Lord Bew, and my noble friends Lord Dodds and Lord Lilley, has shown that the manner and nature of the issues faced by businesses in moving goods have not been static over time. There needs to be flexibility to respond to the changing circumstances in order to maintain the effective flow of goods between Great Britain and Northern Ireland. As noted in the 2025 UK Border Strategy, we are seeing long-term shifts in how goods move; for example, through increasing e-commerce and advances in technologies for Governments to manage flow. It is therefore appropriate that means are available to adapt arrangements to be fit for purpose at all times. In the Government’s view, this power is drafted with the appropriate breadth for them to confidently address issues which may arise from time to time that disrupt businesses.

I listened carefully to the noble Earl, Lord Kinnoull, on the importance and appropriateness of making secondary legislative provision and what the alternatives would be. The EU legal acts in the first 10 points in Annex 2 alone are over 1,500 pages in length. Before one even comes to the remaining 37 points contained therein covering other pieces of EU law, that is already longer than some of the longest pieces of legislation currently on the statute book. To draw a totally different example, the Companies Act 2006 is 1,260 pages long. It would therefore not be appropriate, in the Government’s view, to have this amount detailed in primary legislation.

18:30

I turn now to Amendment 8, which is also based on the recommendations of the DPRRC and is in the name of the noble Lord, Lord Purvis. Clause 4(5) provides the power to

“make provision about the meaning of ‘UK or non-EU destined’”

goods and provides examples of how the power may be used. The conditions and criteria for determining what is a UK or non-EU-destined good are likely to be detailed. These conditions and criteria will need to be mindful of the full complexities of business operations and supply chains, which are constantly changing, as I said earlier. It would not be proportionate to update primary legislation with this level of detail. Similarly, delegated powers enabling detailed provision to be made in secondary legislation are suitable in the Government’s view for legislation dealing with the movement of goods. It would not be appropriate use of parliamentary time to engage in legal technicalities of how a movement is technically defined.

I hope those who seek to understand the Government’s intention in this clause will also consider the explanation that the Government have set out in the accompanying documents and statements. My noble friend Lady McIntosh raised the issues of regulations. I alluded to those earlier and of course I accept them, but as details emerge we will share further details on this. I also point out to noble Lords the volume of secondary legislative provision that might be required. I have been told that annexe 2 of the protocol contains over 1,500 pages. This is greater than the Government of India Act 1935, which the noble Lord, Lord Pannick, may know far better than I do, but, being of Indian origin, “India” certainly resonates with me.

The issue of negotiation and discussion was raised by the noble Lord, Lord Kerr. I had the opportunity to join the last call that the Foreign Secretary had with Commissioner Šefčovič. Therefore, when I talk about the tone and detail of our engagement, I can share with noble Lords that it was positive and constructive. I add the simple point that the EU is aware that the Bill is being proceeded with in your Lordships’ House; it is not lost on the EU. I am sure that it will have a different perspective from the UK Government, but this is a reality. My noble friend Lord Caine is in his place and the same applies to the discussions we are having with our colleagues in the Republic of Ireland. These things should not be factored out; these are the realities and practicalities of where we are today.

The tone and substance of the discussions were constructive—I share that not through something written in front of me, but from first-hand insight—but I cannot speculate on whether that will continue for ever. However, I can share with noble Lords, as I said I would, that we seek to provide, where we can, insights into how discussions are going. At the same time, I reiterate—no noble Lord would expect this, as many, like myself, have business experience—that you do not start showing every single hand and detail and discuss them openly in a negotiation. That point was made very ably by noble Lords who are supporting the Government’s actions on the Bill.

I move to the question of whether Clause 4 should stand part of the Bill. It is a key provision which will allow the implementation of a new regime for the movement of goods entering Northern Ireland and remaining in the UK. Clause 4(1) and (2) makes excluded provision those parts of the Northern Ireland protocol which require goods remaining in the UK to complete burdensome customs and regulatory processes. This includes provisions which would require the goods considered “at risk” of entering the EU to pay the EU tariff.

As noble Lords will be aware, the Government’s intention is to put in place a different regime with a green lane free of unnecessary paperwork, checks and duties for goods remaining within our united United Kingdom. For goods destined for the EU, there will be a red lane where full checks, controls and customs procedures would apply. I have said to officials that we are quite happy to arrange a briefing on the detail of how these lanes may work. I have said this to my noble friend Lord Cormack. Where I can, I will seek to provide clarification and more detail as necessary. If that is something that noble Lords feel would be helpful, we would be happy to arrange that.

[Baroness Ritchie of Downpatrick (Lab)]

The Minister is referring to the dual regulatory regime. I would like the Government to understand that this will work for some businesses but for other types of industry, such as the dairy and beef industries, it will not. It may be useful for the Government to take further evidence from those industries in Northern Ireland which have practical, on-the-ground experience of, for example, where there is a need for a department of agriculture certificate to certify that milk is milk and is of perfectly good quality. That needs to be addressed adequately.

[Lord Ahmad of Wimbledon (Con)]

My Lords, it would be a choice for that particular business or sector, as my noble friend Lord Caine, has just reminded me, but I take on board the noble Baroness’s point. That is what I have already suggested. When I was preparing for the sitting today, I asked officials if there were different approaches to different sectors. She has highlighted them. It would be helpful on the specifics, and I will certainly take that back to the department, but I have already offered that we could provide more insight and explanations.

On consultation, which the noble Baroness alluded to, we are doing exactly that. Our colleagues in the Northern Ireland Office are speaking with businesses and the practical issues are, where necessary, being highlighted so we can address them. As we proceed with the Bill and have further discussions, the ultimate objective is to ease the burden on the ability of businesses from Great Britain to operate effectively and in a fluid nature within the context of the wider United Kingdom, inclusive of Northern Ireland.

Clause 4(4) sets out a non-exhaustive list of criteria which may be considered when prescribing those movements. It is these “qualifying movements” which will be ultimately entitled to enter our proposed green lane. Clause 4(5) provides a power under which a Minister can make regulations about the meaning of those goods which are heading for the UK, or which are non-EU destined, including by providing the basis under which a trader registered under a prescribed scheme, such as trusted trader scheme, can state whether goods being moved are UK or non-EU destined.

Finally, Clause 4(6) defines the meaning of “qualifying movement” for the purposes of the clause. Qualifying movements are those from any place other than the EU to Northern Ireland and the reverse, including movements within the UK and movements of goods by sea into ports in Northern Ireland. Clause 4 is right at the heart of our intentions in rationalising the processes alluded to by the noble Lord, Lord Dodds, which are required when goods move into Northern Ireland. We have been clear that we do not believe it is appropriate to continue to require full customs and SPS processes when goods are not destined for the EU, and it is this clause that will allow us to put in place a more sensible regime. That is why I recommend that noble Lords allow this to stand part of the Bill.

[Lord Purvis of Tweed (LD)]

I thank the Minister for his response. We will get to SPS issues later, as well as some of the customs elements that the noble Lord, Lord Dodds, highlighted.

I thank the Minister for his information from HMRC, which I of course read before this debate—it is static information for one calendar year. One of the frequently asked questions under that data is:

“Does HMRC hold data on NI movements from GB before January 2021?”


The answer is:

“No, the collection of data for goods moving into NI from GB has only been required since 1st January 2021”.


The Minister then added anecdotal evidence, which the noble Lord, Lord True, told us that we should not use. Both things cannot equate: a static set of data for one calendar year does not necessarily demonstrate the implementation of the protocol, especially since the trader scheme would have operated under many of these declarations anyway—but we will no doubt pursue some of these matters later on.

I accept that the Minister is open with the offer of a briefing, but it is the draft regulations that we need to see; it is not briefing on what the theoretical operation of a dual regulatory system might be. We need to see the regulations that would operate that. In the previous group and on the first day in Committee, we heard that the Government have practical solutions, and the Minister has referred to them. But, as the junior to the noble and learned Lord, Lord Judge, indicated, an unprecedented breadth of regulating powers will be provided to Ministers. The noble Earl, Lord Kinnoull, was absolutely right: part of the unprecedented nature that is so egregious is that these will effectively be treaty amendments, and we have the well-established CRaG process for scrutinising and effectively approving treaty amendments.

Finally, the reason why all this is important—it addresses one element of the point from the noble Lord, Lord Lilley—is that the Government accept that they are breaching their commitments and that these are wrongful acts. The Minister shakes his head, but they have.

[Lord Ahmad of Wimbledon (Con)]

I am not clear on the noble Lord’s point. What have the Government accepted?

[Lord Purvis of Tweed (LD)]

The Government have admitted that these are breaches of the obligations under the protocol because they have invoked the defence of necessity for wrongful acts. You cannot invoke a defence for a wrongful act if you do not believe that you have committed a wrongful act.

[Lord Ahmad of Wimbledon (Con)]

But if the original instrument is not working in the first place, which it is not—

[Lord Purvis of Tweed (LD)]

Oh!

[Lord Ahmad of Wimbledon (Con)]

It is all very well to be critical. I accept the points that have been made about Article 16, but let us not open up that debate again. What specifically is the noble Lord’s proposal?

[Lord Purvis of Tweed (LD)]

Let us have an extra set of processes if we are now scrutinising alternative proposals. We are holding the Government to account here and trying to scrutinise the information. When we see the draft regulations, I will of course be able to give some thoughts about them—but how on earth can I respond to something that I have not seen? That is what the Government are asking for and why the DPRRC believes that these powers are not appropriate for primary legislation, and I agree.

On the defence of necessity for a wrongful act, the FCDO’s delegated powers memorandum admits that it is breaching its commitments, so this is not me making an assertion. I am sure that the Advocate-General will intervene on me if that is incorrect. I am just referencing the delegated powers memorandum. Even if this is a defence of committing a wrongful act, invoking the International Law Commission’s Article 25 on wrongful acts—and if the noble Lord, Lord Lilley, is correct that there are now competing treaty obligations—Article 13 of the protocol allows any other treaty mechanism under the TCA or the withdrawal Act to supersede the protocol. So, if the treaty is competing with other obligations, and if the Government accept the case of the noble Lord, Lord Lilley—which they have not—we have put mechanisms into statute to trigger the superseding of the protocol if we wanted to open up new negotiations under the existing treaty. The Government have not signalled that they are willing to do that, so the noble Lord’s case is not particularly strong, even if the Government do not accept it.

In the later groups, we will no doubt return to some of these aspects and points of principle in detail but, in the meantime, I beg leave to withdraw Amendment 7.

Amendment 7 withdrawn.

Amendment 8 not moved.

Clause 4 agreed.

18:45

Clause 5: Movement of goods: new law about matters other than customs

[The Deputy Chairman of Committees (Baroness Newlove) (Con)]

My Lords, if Amendment 9 is agreed to, I will not be able to call Amendment 10, by reason of pre-emption.

Amendment 9

Moved by

[Lord Purvis of Tweed]

9: Clause 5, page 4, line 14, leave out subsection (1)
Member’s explanatory statement
This is part of a series of amendments based on recommendations from the Delegated Powers and Regulatory Reform Committee which states that a number of subsections in the Bill “contain inappropriate delegations of power and should be removed from the Bill.”

[Lord Purvis of Tweed (LD)]

My Lords, I shall speak also to Clauses 5 and 6 standing part. There is consistency in some of the arguments to some extent, so this will not necessarily need to be as long.

As the DPRRC indicated, the Government have not yet formed their policy on the precise elements that they are seeking powers for. The DPRRC indicated and highlighted—I agree with it—that we should not legislate when government has not yet formulated its policy. Let us be clear that the Government’s memorandum states that the powers that they seek under these clauses could make criminal offences by negative instrument. Can the Minister confirm that in his response? We should not make new criminal offences by negative instrument.

The Government also state that they need these powers but should not present them through primary legislation. This includes certain areas of new powers for HMRC and other agencies. In primary legislation—in the Trade Act and elsewhere—proper procedures for dating sharing on customs arrangements within the UK have been brought forward. The Government felt that primary legislation was necessary for that, but, under this Bill, they say that they do not believe that primary legislation is the correct approach for it. This is simply not consistent.

I am interested to know what the Government consider to be the interactions with the Taxation (Cross-border Trade) Act 2018. The regulation-making powers under this legislation, providing more powers for HMRC legislative competence, were not provided for Northern Ireland under that Act. I am not sure what has changed. The interactions between Sections 30A, 30B and 30C of that Act are not clear.

Secondly, we can perhaps explore what the Government seek to do on the use of delegated powers to make new law in an area where we have made an international agreement—as we heard, they have not provided illustration for it. The Government’s response to the European Union’s proposals in October 2021 has not been entirely clear either. I am not sure whether they supported its proposals for having just one certificate per consignment of food products, rather than per product—presumably, that would have a major impact on the HMRC statistics and declarations that the Minister referred to. The European Union indicated that that would remove 80% of checks on products of animal origin, or new procedures for prepared meats, such as sausages, import of which into the EU is generally prohibited. So I am not sure what impact assessment was carried out for the EU proposals, had they been fully adopted.

As the noble Lord, Lord Dodds, said, the Ministers took credit for the Trader Support Service, but they now seem to suggest that it has failed. Why? What has been the impact of the Trader Support Service? As I understand, it raises all the documentation and it states that it has been successful. It is on a lucrative contract from Fujitsu Services Ltd, which is at the centre of the Post Office scandal, so what is the Minister’s view about how Fujitsu has carried out its contract? Fundamentally, legislating first before introducing proposals should not be done, and trying to say that legislating for areas where agreement can be made will not be sustainable elsewhere.

I close by thinking that there must be a prize somewhere for government irony. As we know, the delegated powers memorandum on Clause 6 states that it is a breach of an “international obligation”. Paragraph 56 says that

“regulatory procedures … can be updated to ensure compliance with, or give effect to, any international obligation or arrangement to which the United Kingdom is a party.”

That is quite welcome. However, it is a shame that these powers are removing those obligations and are providing such unprecedented breadth to the regulation-making powers for Ministers. The case has not been made; therefore I beg to move.

[Baroness Chapman of Darlington (Lab)]

I will speak briefly to Amendments 10 and 11, which we have tabled because, like the noble Lord, Lord Purvis, we too wanted to highlight concerns about these issues. As I am sure noble Lords can see, in the current Bill, delegated powers are to be used when Ministers consider it “appropriate”; we would change this to “necessary”. Prior to tabling these amendments, we have signalled our general concerns about delegated powers fairly consistently throughout the process of leaving the EU, since the EU withdrawal Bill in 2018. It is disappointing Ministers’ fondness for this technique seems to have grown; we now see it frequently in things that are quite wide-ranging. I was recently involved with the Schools Bill, which was riddled with these powers because, frankly, the Government did not know what they wanted to do on a wide policy area, so inserted a bunch of Henry VIII powers to give themselves the flexibility to backfill their argument later and decide what they wanted to do once the Bill had passed. Obviously, there was a huge row about that and the Schools Bill is no more, so we can only hope that lessons were learned.

We have been raising concerns again and again about how the Government are just relying on delegated powers, but for some reason the scope of the powers in EU-related Bills seems incredibly wide and we are starting to tease out, with the Minister, some of their intentions. However, an intention stated at the Dispatch Box—or something indicated in other government documents—is not sufficient when we are talking about these sorts of issues. What we really want is clarity and the ability to scrutinise and have those discussions on the Floor of this House, but the way the Government are going about this denies us this opportunity. One of our main concerns is the Government deciding to use skeleton Bills in the way they are.

These are quite general concerns. As we have heard, there are much bigger concerns about the Bill and we have covered some in our debates today and last week. We fully understand the concerns raised about Clauses 5 and 6, which enable the creation of new customs arrangements without primary legislation. The noble Lord, Lord Purvis, did a very effective job of going into those in some detail, which I do not feel I need to repeat. This is quite a precedent to set and we feel deeply uncomfortable about delegating these kinds of powers to the Treasury and its agencies. In the past—I mentioned the Schools Bill, but there have been other examples—the Government have backed off, removed some of these powers from legislation and changed tack by putting in place genuine checks on their use. In all honesty, I do not think that particularly helps us with this Bill because, as many have said, a whole face of make-up could be applied to this Bill but it really would not help.

That said, it is important that we, as a House, put down a marker and make our view known to the Government on this issue of delegated powers, because this is quite an extreme example in the Bill. Perhaps when some more stability is available to Ministers, this might be something we start to see less of, because the government agenda would become clearer. I must say—noble Lords can hold me to this—that should my party win power in the coming months or years, I hope that this is not an approach that we would seek to take. I am very well aware that this is on the record and will be quoted back to me. Such is our concern about the overuse of these powers that I am very happy to be held to my words.

[Lord Ahmad of Wimbledon (Con)]

I thank the noble Lord and the noble Baroness. On that final point from the noble Baroness, Lady Chapman, I am sure it will not only be held up for scrutiny but highlighted in several colours. Of course, we look forward to robust debates, and I am sure I speak for everyone in your Lordships’ House in saying this.

First and foremost, I will not go over what we have already discussed. I have heard noble Lords very clearly. Addressing the noble Lord, Lord Purvis, specifically, I am aware of the details of what the DPRRC report argues, and therefore I assure noble Lords of my good offices in seeking to have the report published on the Government’s response to the issues raised by not just that committee but the Constitution Committee.

In response to the amendments in front of us, the DPRRC report argues that Clause 5(1) contains an inappropriate delegation of power—on the basis that the skeleton construction is not justified by the circumstances and that it relates to matters of international law—and recommends it be removed. While noble Lords will have different perspectives, I have already discussed why the Government feel that there is an urgency in tabling this Bill, as well as the importance of flexibility in our approach in discussions and negotiations elsewhere, particularly with our colleagues and friends in the EU.

In relation to future policy direction, the Bill and the accompanying delegated powers memorandum provide a description of the types of circumstances under which regulations laid under Clause 5(1) may be made. This also includes necessary processes on UK or non-EU destined goods, the application of pre or post-movement requirements for those movements and the ability to undertake any checks or controls necessary to safeguard animal, plant and human health. These processes and their requirements may also be subject to change over time—due to changing risks, technologies and business practices—and it would not be proportionate to table new primary legislation every time this occurred. I have already referred to the details that would be required in this respect.

The noble Lord, Lord Purvis, referred to a couple of issues about criminal offences within the instruments and the Taxation (Cross-border Trade) Act. I have asked for responses to that, so I will write to the noble Lord specifically on those two points and will share it with your Lordships.

I now turn to Amendments 10 and 11 in the name of the noble Baroness, Lady Chapman of Darlington. These amendments would restrict the use of certain powers in the Bill to make provision only on that which “is necessary”, rather than provision which “the Minister considers appropriate”.

I say to the noble Baroness, Lady Chapman, that, as someone said to me over the weekend, after 10 years on the Front Bench, this is not an argument that I am dealing with for the first time. I acknowledge that there have been various Bills where this language has come in. I just mention to the noble Lord, Lord Purvis, that I even recall that, in 2017, when I was taking through the Sanctions and Anti-Money Laundering Bill, we had similar discussions on the use of these words.

19:00

The Government’s position is that “necessary” is a higher bar to meet and, while it would not prevent regulations from making provision for one option where alternatives are available, this amendment would, in our view, unnecessarily reduce the policy discretion for the exercise of these powers. This would provide additional uncertainty to businesses and consumers. In this clause, this would potentially limit the ability to design a green lane that aims—

[Baroness Chapman of Darlington (Lab)]

I think I may be a bit premature; I was going to ask the Minister for an example, but I have a feeling that he was about to give one.

[Lord Ahmad of Wimbledon (Con)]

The example that I was just detailing is that, in this clause, this would potentially limit the ability to design a green lane that aims to preserve the unity of the UK internal market and minimises risks to the EU’s internal market. It may also prevent the Government responding to issues facing Northern Ireland in a flexible way which, in turn, will have a negative impact on Northern Irish businesses and individuals. The issue was well-trodden ground in important legislation in recent years, particularly the EU withdrawal Act in 2018 and the withdrawal agreement Act, where your Lordships’ House accepted that “appropriate” is in fact appropriate. I therefore hope that the noble Baroness will feel able not to press her amendments on that basis.

[Baroness Chapman of Darlington (Lab)]

The example was good, but I am not sure that it meets the question in my amendment. I would have thought that a Minister would be able to make the regulation as he referred to in his example using the wording suggested in my amendment.

[Lord Ahmad of Wimbledon (Con)]

As I have alluded to, it is a question of where that bar is set. The Government are, in this instance, looking for that extra level of flexibility for the Minister concerned to be able to make that appropriate act. I accept what the noble Baroness is saying regarding her amendment. Certainly, I am sure that there will be some practical examples and insights that we will exchange on what can be met by those particular tests.

Clause 5 ensures that a Minister of the Crown also has the power to make regulations in relation to the movement of goods to which Clause 4 relates—[Interruption.]—my apologies: that is my phone. This is what happens when you have a 10 year-old and an eight year-old at home—they may be providing me with an answer to the question from the noble Baroness, Lady Chapman.

Specifically, the clause provides for the creation of secondary legislation, which will enable Ministers to define how the green and red lanes work in practice. Regulations made under this power may, in particular, provide for the application of any checks and controls before or after a movement of goods on UK or non-EU destined goods moving into Northern Ireland in order to ensure that appropriate processes are in place to manage, for example, biosecurity risks. Such powers may also be used to ensure that goods that are heading to the EU comply with relevant regulatory processes, such as sanitary and phytosanitary controls. Much of this is operationally focused or deals with the processes to be applied by the relevant government departments. We believe that this clause is essential to enable the appropriate Minister to have the flexibility to deliver the UK’s proposals for this new regime for the movement of goods.

I turn briefly to Clause 6. Again, the noble Baroness, Lady Chapman, alluded to the issue of the Treasury and HMRC having the power to make regulations in relation to the movement of goods for customs matters. Alongside Clause 5, this will enable the delivery of new green-lane arrangements, which remove unnecessary costs and paperwork for businesses trading within the UK. We heard in the previous debate from the noble Lord, Lord Dodds, on challenges being faced by businesses.

Specifically, the clause provides for the creation of secondary legislation to administer the green lane through appropriate checks, controls and administrative processes for goods that would otherwise be subject to EU customs rules. It is the Government’s view that this clause is absolutely essential to enable a Minister of the Crown to have the flexibility to deliver the UK’s proposals for the green and red lane arrangements. Taking power to provide for the regime is required and the precise detail of the regime will be properly subject to consultation with stakeholders. I therefore recommend that this clause stand part of the Bill.

[Lord Purvis of Tweed (LD)]

My Lords, I am grateful to the Minister for his reply—he can tell his kids that we are also doing trick or treat here, although I am not sure what the balance is between the tricks and the treats. I am grateful for his response and for the support of the noble Baroness, Lady Chapman, and the noble and learned Lord, Lord Judge, who is of course here in spirit if not in person.

I strongly agree with the noble Baroness. On a sensitive issue such as this, the powers that Ministers have should be absolutely necessary in order to deliver what they have said they want to deliver. They should not be any broader than that. But the Government have not formulated their policy yet, which is at the heart of the frustration. We are being asked to legislate to give powers to Ministers, but they have not said what they then want to implement. They have not indicated what the interaction with the Taxation (Cross-border Trade) Act will be or why HMRC will be given statutory powers which that Act does not provide it with. I do not believe that we should be in a position where we give in primary legislation the “level of flexibility”—as the Minister said—to Ministers when they have not explained to us what they want to do.

I do not think that the Minister has persuaded me at this stage. I welcome the noble Baroness’s commitment that, if her party wins power, they will not bring forward proposals such as this; on behalf of these Benches, I can give the same commitment that when we achieve power, we will not bring proposals such as this either. In the meantime, before Report or we achieve power, whichever comes sooner, I beg leave to withdraw the amendment.

Amendment 9 withdrawn.

Amendment 10 not moved.

Clause 5 agreed.

Clause 6: Customs matters: new law

Amendment 11 not moved.

Clause 6 agreed.

Clause 7: Regulation of goods: option to choose between dual routes

Debate on whether Clause 7 should stand part of the Bill.

[Lord Purvis of Tweed (LD)]

My Lords, I am grateful for the patience of the Committee on this trio of groups. Clauses 7 to 10 are at the real heart of the proposals, which links to the comments from the noble Baroness, Lady Ritchie, before about trying to understand how the Government will really manage the situation that they want to put in place with the dual regulatory regime.

The dual regulatory regime may be fairly neutral, but it of course means that Northern Ireland will be perpetually part of the EU single market. Clause 7 suggests that a trader can choose to operate under the EU law system or under a UK system, as the Minister referred to on an earlier group. That EU law system would be under separation agreement law.

My first question is genuinely a probing question: there may be a good reason for it, but what impact will the Retained EU Law (Revocation and Reform) Bill have on the implementation of EU regulations in this regard? I do not know what effect the mechanism for updating, as proposed under that Bill, will have on separation agreement law under this Bill. Do we have to legislate for any changes when it comes to the EU changing its regulatory approach?

Is this going to be a dynamic system where we will automatically update domestic statute if the EU changes its approach? If it does, then we are back to square one from our colleagues from the Democratic Unionist Party, who have been railing against that, but we will in effect be in a worse position because this is automatic updating of domestic legislation for another set of statutes from another power, which none of us will have any say over. I find this hard to believe and would be grateful if the Minister were able to say that this is not going to be the case.

The questions now relate to the green and red channels—the dual regulatory system. I would like to know from the Minister: who will operate them? The Delegated Powers and Regulatory Reform Committee says in paragraph 42 in reference to Clause 9:

“This is the frankest admission by the Government that policy is so embryonic that it has not yet been consulted on. And yet Parliament is being presented with a major Bill on the subject. Legislation has preceded policy development rather than vice versa. Nor is it remotely credible to say that it is not possible for these matters to be put on the face of the Bill. Why should the Bill say so little, with so much left to regulations?”


Perhaps we can get clarity for business on the dual system. The Government say that businesses will be able to choose. I would be grateful to know how. Will they have to fill in a declaration? What default system will be in place if they ship products without a declaration? Will they be prohibited from shipping to Northern Ireland if they have not declared what their route is? How will they know what status their GB or EORI classification gives them? We have been led to believe that if they operate under the Trader Support Service with an EORI classification, this process is already streamlined. Will there be a Trader Support Service for both the separate routes now?

The noble Lord, Lord Dodds, asked a valid question: for how long will this scheme operate? If the Government felt it was necessary that there was a Trader Support Service for a scheme which operated under EU procedures and regulations, and they are proposing that they will still be operating under EU regulations—under the dual regulatory system—so will a Trader Support System operate permanently? At what stage does a business choose? Is it for each consignment, or will the business have to choose at what stage of production it opts for each of the routes? What if it wants to use a UK route but also needs an EU conformity assessment? Will there be a public register of who is operating, and how will it be monitored? Who will have access to the data, and is this going to be a public mechanism for which routes certain enterprises choose to operate? The latter questions are vital, I think, because it has to be known, as it may well be challenged under a legal system, and what will that legal system be?

Clause 10(1)(d) relates to the use and import of goods. Is the choice for the seller or for the purchaser? This is fundamental if it is to do with east-west trade, so can a purchaser from Northern Ireland determine that their supplier uses the UK route, or is it the supplier who says, “I am very sorry but I have opted for the EU route, so this the situation that is going to have to be received, and the good that goes into the market has to have the EU mark on it”? I do not know, so I would be grateful for clarity.

Michael Ellis, the Paymaster-General, told the Committee in the Commons that the choice of using a route is completely voluntary, but Clause 11 means that it could be compulsory. Why? Which is it? Is it voluntary for businesses, or could it be voluntary until a Minister says it is compulsory? I think this is a breeding ground for utter confusion: an entire system being established at the outset, only for there to be a broad regulation-making power, which could be put in place without consultation—there is nothing in the Bill that states there will be consultation—to say, “All of your choices that you have been making for this, we have now said that you have to use this particular route.”

19:15

What does “classes of goods” mean in Clause 11(1)(a)(i)? I do not know what “classes of goods” are. It is not WTO language. Is it using WTO classifications of certain products? What kinds of exceptions are envisaged in Clause 7, as this power is so broad it can alter them all? I simply do not know the point of spelling out in primary legislation Clauses 7 and 8 when Clause 9(2) can simply amend them by regulations. We are making primary legislation in one clause, only for that to be completely changed by a negative instrument in another. It is utterly pointless.

The difficulties facing businesses trading east-west are not unique to Northern Ireland. The Public Accounts Committee report had indicated that the Food Standards Agency, for operating under what may well be a UK route, no longer has access to the EU’s Rapid Alert System for Food and Feed. Because the whole island of Ireland is a single SPS area, I do not understand how the UK route, operating under a single SPS area, without the EU’s Rapid Alert System for Food and Feed, will not have to have interaction with EU rules. I hope the Minister will be able to clarify that point, because I do not know.

The same applies to chemical safety for imports. The Health and Safety Executive no longer has access to the chemical safety data underpinning the EU’s registration, evaluation, authorisation and restriction of chemicals—REACH—process. We have debated REACH many times, but this is so significant for the Northern Ireland economy. I do not know, if you are supplying anything with links to REACH, whether you can choose between the two distinct routes, or is this going to be the area where it is a blend of them both? Is this going be a new orange route, where you choose between the green and red? A purple route? I do not know where it is going to be.

So, how efficient will this be if this is to do with reducing bureaucracy and costs, and is better than what has been proposed through the EU scheme for an “express lane”? I simply do not know, and given the fact that the Government seem to be keen now on having differing regulations on agriculture—for example, on gene editing, or allowing deals for banned pesticides to potentially be used which are not able to be put on to the EU market—I do not know how the two routes are going to interact, regardless of whether they opt to go on a route or not.

This is so fundamental because—the Minister knows that I have raised these questions before, about conformity marking—any good that goes through either of these routes is going to have to have a UK conformity assessment—UKCA—mark or a CE mark or a UKNI mark, if qualifying Northern Ireland goods are placed on the market in Northern Ireland. It is still not clear how this is going to operate, but the Government are indicating that from January 2023 this new scheme will be put in place. I hope that there will be some answers to these questions, which are being asked by businesses, and fundamentally the Government have to provide these answers before we complete the scrutiny of this legislation, because otherwise we simply do not know what we are giving the Government authority to do. I beg to move.

[Baroness Ritchie of Downpatrick (Lab)]

I thank the noble Lord, Lord Purvis, for his clear elucidation of the impact of these amendments. To give a practical example, the dairy industry in Northern Ireland, which I mentioned earlier, is largely all-Ireland in nature, because the greater proportion of the processing of dairy products is in the Republic of Ireland. If grain comes into Northern Ireland through either the red or green lane and could be used by a dairy farmer, the DAERA vet—the department vet—cannot certify whether the milk is produced to EU standards. How can he do so with no certificate? The milk is therefore not going south for processing. That also applies to animal healthcare products. The green and red lanes probably work for retail, but not for food processing. It does not work for primary processers who export.

It is worth noting that in 2021 the Northern Ireland dairy industry represented 31% of UK dairy exports overall. Green and red lanes, or the dual regulatory zones envisaged in this Bill, would cause huge damage to the dairy industry. I know that certain elements of the dairy industry, such as Lakeland Dairies, have had discussions with the noble Lord, Lord Caine, and, prior to that, former Minister of State Burns. I know it would be deeply appreciated if the noble Lord could have further discussions with them, because they know the practical outworkings of that.

Further to that, it is clear that these issues are fundamental to the negotiations, including the technical negotiations, that should be going on between the UK and the EU. We want to see resolutions to these issues. I recall what my noble friend Lord Hain said: where there are problems with the protocol—such as with its implementation—there are solutions. If there is good will on all sides, exactly those negotiations will try to resolve those wrinkles and difficulties.

[Lord McCrea of Magherafelt and Cookstown (DUP)]

My Lords, having listened to the debate thus far, I have again noticed that a number of noble Lords seem to be exercised about the DUP’s well-known opposition to the protocol. To be clear, not one unionist or unionist party in Northern Ireland accepts the protocol. Rather than just mentioning the DUP, I ask noble Lords collectively not to obsess over the party and realise that there is a serious problem to be dealt with. Clearly, we have an impasse at present, and until the Northern Ireland protocol is dealt with, we will not move forward into an Assembly. That must be restated.

In this group we are confronted with the proposal that Clause 7 should not stand part of the Bill. The clause deals with the option of dual regulatory routes, which arises from the Bill creating a regulatory route that does not involve complying with the protocol. Thus, those proposing the removal of Clause 7 once again engage their argument that the doctrine of necessity cannot be applied and thus excuse us from complying with the protocol. In that context, they maintain Clause 7 should not stand part of the Bill.

Once again, it seems to me that arguing for necessity and a special dispensation not to obey international law is not the best way of addressing the protocol problem. In making this case, I will pick up on the assertion made by some noble Lords that this Bill is problematic not only because no commitment was made to it in the 2019 Conservative manifesto but because the manifesto suggested that the Conservative Party was committed to the protocol. It seems to me that one can assert on this basis that it would be wrong for the Government to bring forward a Bill such as this only if we pretend that Articles 1 and 2 of the protocol are not part of it.

Not only do Articles 1 and 2 subject the protocol to the Belfast agreement treaty, but Article 30 of the Vienna Convention on the Law of Treaties makes it plain that, in the event of any conflict, the Belfast agreement should prevail. This clearly implies that if the operation of the protocol undermines the Belfast agreement, action must be taken. This is more than implied in Article 2, which actively places as a matter of international law an obligation on the UK Government to ensure that the operation of the protocol does not diminish the rights set out in the section of the Belfast agreement

“entitled Rights, Safeguards and Equality of Opportunity results from its withdrawal from the Union”.

As other noble Lords have pointed out, the operation of the protocol is dramatically diminishing the right in the relevant section of the agreement to

“pursue democratically national and political aspirations”.

This right can no longer be pursued in relation to 300 areas of law that have now been removed from a legislature that includes legislators elected by Northern Ireland and placed in a legislature where Northern Ireland has no legislators. This means that, rather than international law being the enemy of this Bill, it is its friend, because the Government are subject to an obligation in international law—Article 2 of the protocol—to take action to ensure there is no diminishment of the right to

“pursue democratically national and political aspirations”.

There is an additional international legal imperative in this regard which should not be overlooked. It arises from Article 3 of the protocol of the European Convention on Human Rights and the case law arising from the case of Matthews v United Kingdom. Matthews lived in Gibraltar and was subject to legislation made by the European Union. As in the case of Northern Ireland, this legislation was made by the European Parliament, in which Gibraltar had no representation. Paragraph 64 of the judgment of the European Court of Human Rights in the case concluded:

“In the present case, as the Court has found (see paragraph 34 above), the legislation which emanates from the European Community forms part of the legislation in Gibraltar, and the applicant is directly affected by it … In the circumstances of the present case, the very essence of the applicant’s right to vote, as guaranteed by Article 3 of Protocol No. 1, was denied. It follows that there has been a violation of that provision.”


This case is of seminal importance, because it established that it is not lawful for any jurisdiction to be subject to legislation made by the European Union when the citizens of the said jurisdiction are not given the opportunity to elect their own representatives to the EU institutions to make that law. The Matthews judgment rings out loud and clear across Northern Ireland. The legislation imposed on Northern Ireland, courtesy of parts of the protocol, denies the very essence of the right to vote, as guaranteed by Article 3 of the protocol of the European Convention on Human Rights.

[Lord Purvis of Tweed (LD)]

My Lords, I thank the noble Lord, Lord McCrea, for giving way. I am following his argument very closely. I do not understand why that argument will not apply to the red route under a dual system. The dual system, by definition, will include the EU route, which will automatically apply EU rules for trade with Northern Ireland, which will still apply to all the areas that he said will have no say.

19:30

[Lord McCrea of Magherafelt and Cookstown (DUP)]

I thank the noble Lord for his intervention, but I want to develop the point on the Matthews case and the human rights.

In the Matthews case, the party at fault was not the EU, which was not a contracting party to the ECHR, but the United Kingdom Government, who were deemed to have failed in their treatment of the people of Gibraltar in allowing them to be subject to the EU without representation. The failure of the UK with respect to the Northern Ireland protocol is even starker, coming, as it does, in the aftermath of the Matthews case law. Some might seek to defend this arrangement on the basis that four years after being subject to EU law without seats in the EU legislature, the protocol affords the Northern Ireland Assembly a vote. Crucially, however, this is not a vote on the legislation made under the protocol but on the protocol itself: the arrangement whereby 300 areas of lawmaking for Northern Ireland are given to the EU, notwithstanding that Northern Ireland has no representation in the EU legislature. Rather than giving MLAs the opportunity to scrutinise, amend and vote on all the laws passed in the previous four years, the vote is effectively to determine whether or not the constituents of the MLAs should surrender their votes in relation to the determination of the law to which they are subject in some 300 different areas, having been denied any vote, even in this regard, during the first four years when their votes were, effectively, taken from them. In this context, we need Clause 7, and indeed this whole Bill, to meet the demands of international law with respect to Article 2(1) of the protocol and Article 3 of the European Convention on Human Rights.

In conclusion, this matter concerning the Northern Ireland protocol may not be the flavour of the month for many in your Lordships’ House, but it must be dealt with to the satisfaction of both communities in Northern Ireland, not one.

[Lord Kerr of Kinlochard (CB)]

I yield to none in my respect for the noble Lord, Lord McCrea, and the way he pursues this argument. It was an argument that we had earlier in our debate, and I share his distaste for the protocol, as he knows. I do not agree with the noble Lord, Lord Hannan, that there is no democratic deficit. I think there is a real democratic deficit and it could be put right. It would be good if the noble Lord would think about the suggestions made by the noble Lord, Lord Hain, earlier in our debate. The argument that the protocol is inconsistent with the Good Friday agreement comes across rather badly from those who opposed the Good Friday agreement. I myself was strongly in favour of the Good Friday agreement and I was sorry to see the DUP against it at the time. It is hard to sustain the argument now, in any case, given that all the parties to the withdrawal agreement—in which the protocol rests—do not agree with it. The United Kingdom Government do not buy the argument that the DUP are making—or they have always, up to now, not bought that argument. Although I understand the concerns the noble Lord puts forward, I do not think it works as a matter of law or that the Gibraltar precedent—although he is quite right about it—is relevant.

[Lord Hain (Lab)]

Will the noble Lord accept a small intervention to follow up on the point he made about the democratic deficit? I agree with him and he agrees with me on it. Would he confirm that Norway, for example, does not have Ministers in the Council of Ministers or direct representation in the European Parliament because it is not in the European Union, but does have consultative rights? It is consulted on all EU single market matters. Northern Ireland could be consulted in a similar way.

[Lord Kerr of Kinlochard (CB)]

I so confirm.

[The Earl of Kinnoull (CB)]

My Lords, I ask the Minister a more technical question about the interrelationship between the trade and co-operation agreement and the withdrawal agreement. The European Affairs Committee spent a very long time writing a report, which came out last December, about trading goods. We were very careful to make sure that we did not talk about the Northern Irish situation for two reasons. First, we have our own sub-committee for dealing with that. Secondly, it was horribly complicated.

I should like some comfort on a problem that would arise should some kind of good head from Great Britain to Northern Ireland. For the purposes of the Minister’s powers, it is a Northern Ireland good. However, it is, at the same time, latently a TCA good for the purposes of moving across an EU border. An immediate set of complications arises from this. I would, therefore, be grateful for the Minister’s thoughts on what the interrelationship is between the TCA and the withdrawal agreement on goods in general. I would also be grateful for some comfort that when Ministers are thinking about exercising all the powers that this selection of clauses would give them, they will have do so in regard to all the relevant various international agreements we have. The TCA is not our only agreement with the EU.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I shall speak first to Amendments 13 and 14, in the name of my noble friend Lady Chapman. These would replace the word “appropriate” with “necessary”. The arguments are the same as we heard in the previous group and express unease about the scope of ministerial powers. On the others, we can see the case for what the Government want to achieve—a differentiation of goods destined for Northern Ireland or for the single market. We believe that the best way to secure such a scheme is to negotiate with the Irish Government and the EU. The two sides’ proposals to this area differ on various points of detail, but there is undoubtedly room to compromise if there is the political will to achieve this.

As we said on the first day in Committee, we are sympathetic to the case for removing various clauses from the Bill. That is particularly the case for Clause 9, of which the DPRRC said:

“This is the frankest admission by the government the policy is so embryonic that it has not yet been consulted on. And yet Parliament is being presented with a major Bill on the subject.”


That quote was also put forward by the noble Lord, Lord Purvis. Despite our calls last week, we have not heard anything from the Foreign Secretary regarding the negotiations, beyond a brief confirmation of a phone call with Vice-President Šefčovič. I ask the Minister: when can we have a fuller, formal report on the state of the negotiations?

The only other point I want to make is to pick up the question raised by the noble Lord, Lord McCrea. My party acknowledges that there is a problem with the protocol Bill. Of course, it is the Government who are negotiating this, not Parliament. We, on our side, do not believe that the Bill is helping that process.

[Lord Caine (Con)]

My Lords, I am grateful for the opportunity to convince noble Lords of the merits of the dual regulatory regime. In doing so, it is important that we just take a step back for a second and consider the overriding purpose of these clauses and the regime itself. It is to remove barriers to trade between Great Britain and Northern Ireland for goods that will never leave the United Kingdom. It will enable us to address the so-called Irish Sea border, and support trade between Northern Ireland and Great Britain, as has been government policy since the Acts of Union in 1800, while respecting the integrity of the EU single market.

Northern Irish businesses will be able to meet UK rules when supplying the UK market should they wish, benefiting from future regulatory reform. That in turn will help to create the conditions that in our view can lead to the restoration of a fully functioning devolved Government in Northern Ireland, and therefore the implementation of all three strands of the Belfast agreement. The clauses will enable this to be achieved in the following ways.

Clause 7 makes it clear that businesses will have a choice of which regulatory route to follow when placing goods on the market in Northern Ireland. It introduces, as I have made clear, a dual regulatory regime for regulated classes of goods to which any provision of annexe 2 of the Northern Ireland protocol applies. This will create a new option to meet UK rules compared to the existing protocol arrangements, whereby goods are required to comply with the relevant EU rules. Where the relevant requirements allow, it will also be possible for the same product simultaneously to comply with both sets of requirements.

Currently, as noble Lords will be aware, traders have no choice under the protocol but to meet EU rules when supplying goods in or to Northern Ireland. This deters some companies, especially those trading exclusively within the United Kingdom, from serving Northern Ireland due to costs and administrative burdens required to meet this EU law: for example, retesting, re-marking and relabelling of goods, as well as the appointment of a representative to undertake administrative duties. All this comes at a cost, which I submit is completely unnecessary for goods that are to remain on the UK market.

The dual regulatory regime provides businesses across the UK with choice. If a Northern Ireland-based business trades north-south on the island of Ireland, they can continue, as now, to follow EU rules and sell their products into the EU and across the UK because of the Government’s commitment to unfettered access between Northern Ireland and Great Britain. If their business model is UK-focused, they can choose to follow UK rules and benefit from the opportunities afforded there.

By providing an alternative UK-rules route to market in Northern Ireland, the clause fundamentally protects the integrity of the United Kingdom internal market and addresses concerns over the so-called Irish Sea border for goods that will remain within the United Kingdom. That concern over the Irish Sea border is, as I said in response to an earlier group of amendments, the principal cause of there being no functioning Executive and Assembly in Northern Ireland.

On the comments made by the noble Baroness, Lady Ritchie of Downpatrick, I am very much aware of the concerns raised by Northern Ireland’s agri-food sector, and in particular the dairy sector, as I know from experience and have seen at first hand on a number of visits. Indeed, a short while ago I visited a farm between Newry and Armagh where the same family have been farming the land since the 1740s. The farmers in question are, if I may use the terminology, from a Protestant unionist background. It is a dairy farm, and everything they produce on it is processed in Ireland. Therefore I completely accept that, for businesses like that, the provisions of the protocol that enable EU single market access are not just desirable but absolutely essential. I assure her that we are very much committed to upholding that seamless EU single market access where it is essential for businesses. We are in favour of retaining those elements of the protocol that work while remedying those elements that do not.

19:45

A dual regulatory regime will allow businesses to choose the regulatory regime which best fits their business model. This is about enabling choice for business, not prioritising one route over another. If businesses want to continue to follow EU regulations, they can, but they will also now be free to follow UK rules if they are selling goods within the UK. This is important to relieve undue burdens, processes and paperwork on Great Britain to Northern Ireland trade.

On that note, the noble Lord, Lord Purvis of Tweed, asked me a series of—how should I put it?—quite technical and detailed questions. He did not know the answers to those questions, and I do not think he will be surprised to know that I am not in a position to give him detailed replies to each of them at this stage. However, I will go through Hansard and will endeavour to come back to him with as much information in response to those detailed questions as I am able to do in advance of Report. However, in some cases he will probably have to wait for the statutory instruments which we are currently working through; I appreciate that he will not like that very much.

In that context, the Government are committed to working closely with businesses and other key stakeholders to help inform the details of how the dual regulatory regime should work in practice. As I referred to in my response to an earlier group, Ministers in the Northern Ireland Office are in constant contact with businesses but, across government, I think I am right in saying that since the summer something like 100 bespoke sessions have been held with over 250 businesses, business representative organisations and regulators. We will continue to listen to the views of those stakeholders, including, I assure the noble Baroness, Lady Ritchie of Downpatrick, those from the dairy industry, to develop the details of the underlying regime.

In response to the question raised by the noble Earl, Lord Kinnoull, I say that the TCA will cover red-lane goods in our model. At present it can, to an extent, apply to goods under the protocol judged at risk of onward movement to the EU. This complexity illustrates the challenges for firms and barriers to trade which we are seeking to address. Again, I hope that we will be able to provide more detail to him in due course.

In summary on Clause 7, our proposals are about business choice, and it is important to continue to stress that. If businesses want to continue following EU regulations they can, but they are now free to follow UK rules if they are selling goods within the United Kingdom.

Clause 8 ensures that the protocol no longer prevents a dual regulatory regime, as introduced by Clause 7. It provides clarity in domestic law that the relevant aspects of EU law, as it applies under the protocol, that would prevent goods made to UK rules being placed on the market in Northern Ireland will be disapplied in domestic law and made excluded provision, so far as it would prevent the dual regulatory regime from having effect. This clause means that goods made to UK rules can be supplied in Northern Ireland in accordance with Clause 7 to enable the functioning of the regime.

Clause 9 provides a Minister with the powers to make provisions through secondary legislation to ensure the effective working of the dual regulatory routes. The regime will need to take into account the results of engagement with business and will need to be able to evolve over time, as UK and EU regulatory regimes change. The default dual regulatory regime may also need to be amended to ensure that it works effectively for different types of goods: for example, should it be required to ensure that a specific highly regulated goods regime can function effectively. The clause is needed to ensure that goods are compliant throughout the supply chain for traders operating under the regime, whichever route is chosen. It will therefore safeguard the interests of consumer safety and biosecurity arrangements, and will maintain appropriate public health standards.

On Amendments 13 and 14 in the name of the noble Baroness, Lady Chapman of Darlington, the arguments might be very similar to those that were deployed in the previous group, so I apologise for repetition. Amendment 14 would restrict the use of the power in Clause 9 to make provision only which “is necessary” rather than provision which the Minister “considers is appropriate”. As my noble friend Lord Ahmad of Wimbledon said in response to the previous group, “necessary” is a higher bar to meet and, while it would not prevent regulations from making provision for one option where alternatives are available, this amendment would in our view unnecessarily reduce the policy discretion for the exercise of this power.

This would provide additional uncertainty to businesses and consumers and, in this clause, could potentially limit the ability to design dual regulatory routes to preserve the unity of the UK internal market. The noble Lord, Lord Ponsonby, referred to negotiating on this issue with the Irish and the EU. He will of course be aware that the EU negotiates for Ireland on these matters; Ireland does not negotiate independently, as was once made very clear to me during a meeting with Michel Barnier in Brussels.

Given that there are 200 pieces of goods regulations applied by the protocol, the power in this clause is needed to ensure that the regime can function effectively in practice for each class of goods. The dual regulatory regime is necessary to remedy disruption, which will only increase over time as EU and UK rules diverge. The amendment may also prevent the Government responding to issues facing Northern Ireland in a flexible way, which in turn could have a negative impact. I therefore respectfully ask the noble Baroness, Lady Chapman, not to move her amendments.

I now turn as quickly as I can to Clause 10, which is intended to provide clarity on the types of regulatory activity covered by the dual regulatory regime established in the Bill by providing a definition of “regulation of goods”. The purpose here is to provide clarity and certainty so that we understand the scope of the dual regulatory regime provided for in Clause 7 and the related powers. Subsection (4) provides:

“A Minister of the Crown may, by regulations, make provision about the meaning of references in this Act to regulation of goods (including provision that changes the effect of any other provision of this section”.

The reason for this is to avoid a situation arising where the sale of goods made to UK rules in Northern Ireland is prohibited due to a particular aspect of the regulation of a good not being considered to fall within the meaning of the “regulation of goods” in Clause 7, with the result that EU rules must be adhered to. In our view, it is important that Ministers have the power to ensure that the meaning of “regulation of goods” in the Bill remains appropriate to ensure that the dual regulatory regime functions effectively and can adapt to changes.

Finally, Clause 11 gives Ministers powers to ensure that the regulatory regime in Northern Ireland operates as intended and meets the relevant needs of a given sector. Again, this is intended to ensure the smooth running of the new regime for all sectors or classes of goods, some of which might be more complicated than others. It provides powers for a Minister to prescribe a single regulatory route for specific sectors—a UK-only route with no application of EU law, for example—and apply this approach to part or all of a category of goods or to some or all of the required regulatory route.

The noble Lord, Lord Purvis, raised some concerns about what I think he described—no doubt he will correct me if I am wrong—as the coercive power in this clause. I will attempt, if I may, to explain a little further how we might see the powers in Clause 11 put into practice through secondary legislation. For the majority of goods, we expect that EU and UK rules will be able to operate largely in parallel. For example, consumer products such as toys carry a product marking to show their compliance with the relevant regulations; we would see these products with both a UKCA and a CE marking. Products with either marking will be able to appear on shelves in Northern Ireland.

However, in some instances, there may be highly regulated goods that will require a different approach and specific modifications. We are working with industry and enforcement bodies to identify and consider these. One possible example is the supply of veterinary medicines from Great Britain to Northern Ireland, which has been operating under a UK-EU grace period since 1 January 2021 because of supply concerns caused by the operation of EU rules under the protocol. In these instances, it might be easier to operate a UK-only regime in Northern Ireland but, as we have said, we are working with businesses to understand the concerns for specific sectors in more detail as we further develop our policy solutions. We will be able to say more about this in due course.

I therefore recommend that these clauses, which are essential to delivering the Government’s objectives and dealing with key issues in the protocol, stand part of the Bill.

[Lord Purvis of Tweed (LD)]

My Lords, I am grateful for both the Minister’s full response and his offer to write when he has reviewed some of our questions. I still have questions over what “classes of goods” means and some of the issues that he raised.

I am grateful for the illustration of conformity assessment. It is one of those areas that sounds so technical and boring when you debate it. It is technical and boring, but every good will have to have it in every shop for every consumer. This means that, separate to the protocol, a manufactured good for a consumer in Northern Ireland, such as a toy, will have to have a CE mark on it if it has used an EU conformity assessment body, of which there are a number in GB. However, if it has used a UK-based body, of which there are none uniquely in the UK at the moment, it will have to have a UKNI mark and a CE mark on it. There is no option. So, uniquely in the four nations, consumers and importers in Northern Ireland will have to check that their goods have either a CE mark or a CE/UKNI mark on them. They will not have a UKCA mark on them; it will be different.

This goes back to the sincere points made by the noble Lord, Lord McCrea, about how to have a situation where there is no difference between Scotland, where I live, Northern Ireland, England and Wales. The reality of this Bill and this Government’s choices on the marking of goods and where they will be checked is that things will still be different, with different procedures and processes. When it comes to using an EU conformity assessment accreditation body, we have no say over its rules and regulations and what it says. This Bill is not going to resolve that but I am grateful for the Minister’s response.

I am going to call these the Rumsfeld clauses because what we are being asked to put in place in statute are regulation-making powers for the known unknowns. However, in Clause 9 we also want powers for the unknown unknowns. We do not know whether they are going to work so, under Clause 9, we want the powers to be broad enough for us to have the power to make them work if they do not work. I do not think that Rumsfeld powers are something that our Parliament should operate with; the case has therefore not been made.

I look forward to the Minister’s letter and further clarifications, of course—I therefore reserve judgment—but, in the meantime, I beg leave to withdraw.

Clause 7 agreed.

Clause 8 agreed.

House resumed.

Police and Crime Commissioners

Monday 31st October 2022 Lords Chamber

Question for Short Debate

19:59

Asked by

[Lord Lexden]

To ask His Majesty’s Government what plans they have to review the powers and functions of police and crime commissioners.

[Lord Lexden (Con)]

My Lords, I have two objectives. The first is to draw together and reiterate a number of concerns which I have raised in speeches and in Oral Questions and Written Questions over the last four years. My concerns relate to misconduct in three of the areas where police and crime commissioners are elected under current arrangements—Wiltshire, Leicestershire and Cleveland.

My second objective is to take the Government to task for doing nothing to bear down on the cases of misconduct which have given rise to my long-standing concerns. Regarding the Government, I have tried hard to make some progress by seeking a discussion with the Home Secretary. In an Oral Question on 18 July, I asked for a meeting to be arranged which a small group, drawn from across the House, could attend. I got in touch with a few Members in the opposition parties and on the Cross Benches to see whether they could take part. Unsurprisingly, ministerial changes complicated and delayed matters over the summer, but towards the end of last month, I enlisted the help of my noble friend Lord Sharpe of Epsom in finally fixing a date for the long-awaited meeting. On 26 September, he told me that he would pursue the matter, adding,

“I will come back to you as soon as I can.”


I have heard nothing further from him.

However, I have heard from his private office, which sent me the following email on 18 October:

“Thought I would provide an update now that we are post recess. I have reached out to the Home Secretary’s office again and due to her increasingly busy schedule she will be unable to commit to a meeting.”


The House will understand that my hopes of securing action by the Government have not been strengthened, rather it seems clearer than ever that the Government will continue to stand idly by in the face of my serious concerns. This debate is their opportunity to prove me wrong.

All this is very dispiriting, so let me make it plain that in using the limited time available to me to express worries and anxieties about specific issues, I cast no aspersions on the many police and crime commissioners, connected or unconnected with a political party, who are serving their communities with devotion and success. Since this year marks the 10th anniversary of the introduction of elected police and crime commissioners, it would be wrong not to pay tribute to what they have achieved, while at the same time expressing a little regret that they have not become better known and brought the system of which they are part widespread popularity. Opinion polls suggest that nearly half the country have never heard of them.

Here is another matter on which the Government could usefully exert themselves. If they took a sustained interest in the work of the commissioners, and made speeches about it, the public’s knowledge would increase. They have rejected other chances to show an interest in police and crime commissioners. If the noble Lord, Lord Bew, had been able to take part in this debate, he would have mentioned a report by his Committee on Standards in Public Life about police and crime commissioners. The report has been completely ignored by the Home Office.

The deep concerns that I mentioned at the outset are all connected with one person, Mike Veale. I have referred to him many times in the House over the years. He is at the centre of an issue of deep injustice. He is not a man lacking in regard for himself. In self-promoting publicity, he states, regarding his year as chief constable of Cleveland, a post from which he was forced to resign in 2019:

“I was responsible for the development and delivery of a compelling strategic vision … I am able to operate within my ethical and moral boundaries without compromising my values and integrity.”


His record tells a rather different story.

I first became aware of Mr Veale when, in 2015, as chief constable of Wiltshire and in charge of Operation Conifer, he sent officers to go through all Sir Edward Heath’s voluminous papers in the Bodleian Library, in the hope of finding evidence to show that the deceased statesman was guilty of the child sex crimes alleged by the notorious fantasist, Carl Beech, who is now serving a long prison sentence.

Veale said he was convinced that Sir Edward was “120 per cent guilty”. One of his senior officers stood outside Sir Edward’s house and appealed for witnesses against him. Veale destroyed his mobile telephone and so concealed its contents. Unable to substantiate any of the allegations against Sir Edward, he left seven of them open, neither proved nor disproved, in an obvious attempt to save face. Not a shred of evidence has been adduced to support any of these allegations against a public servant of immense distinction.

The then PCC for Wiltshire, Mr Angus Macpherson, said that he would establish an independent inquiry into Operation Conifer, but then changed his mind and called on the Government to set it up. The Government accepted that they had the power to intervene, the one exception to their normal Pontius Pilate stance, but then refused to use it. They say today that there is no need for them to do anything because Operation Conifer has now been carefully scrutinised. That was the line they took when writing in July to Lord MacGregor, a former Cabinet Minister who has now retired from the House, in reply to a letter from him sent to the Home Office one year—I repeat, one year—earlier.

That was no answer at all. Conifer has been scrutinised by the police themselves, not by an independent body. The Wiltshire PCC even allowed Veale to set up his own hand-picked scrutiny panel. Thanks to the Wiltshire PCC and a supine Home Office, Veale was left to transgress elsewhere. His brief stint as chief constable for Cleveland was investigated by the Independent Office for Police Conduct. After two years—things rarely move swiftly where police misconduct is concerned—the IOPC found in 2021 that Veale had

“breached standards of professional behaviour”.

On 2 August last year, the PCC for Cleveland announced that Veale would be referred “shortly” to an independent panel, where he would face gross misconduct proceedings. It is a legal requirement that such proceedings begin within 100 days, yet, by my rather shaky calculations, time ran out for Veale on 11 November last year. Very nearly 12 months later, proceedings have yet to begin.

During this period, Veale has been raking in an annual salary of some £100,000 as adviser to the so-called Conservative PCC for Leicestershire, one Rupert Matthews. He must have taken instruction in the Boris Johnson school of ethics. On 7 March, the noble Lord, Lord Pannick, asked the then Minster, the noble Baroness, Lady Williams of Trafford:

“Does she accept that, in many areas of public and private life, persons against whom serious allegations are made are suspended from their office, employment or other contributions to public life while an investigation is conducted? Why is that not happening here?”—[Official Report, 7/2/22; col. 1120.]


The answer he was given bore no relation to the question.

Answers, the Government say, must be sought not from them but from the relevant police and crime commissioners, so a public-spirited person, well known to me, has been doing just that. He has asked Mr Matthews several times to justify employing the discredited Veale. On 9 August last year, Matthews’s casework officer replied. Veale, she said, was being employed for six months. She added that

“it is important to note that he is currently not in breach of any misconduct regulations. The investigation is ongoing, and it would therefore be inappropriate to comment on anything in relation to that at this time”.

All further requests for a proper explanation were ignored until last month, when the same words were sent again, preceded by the following:

“This matter was discussed at the Police and Crime Panel for Leicestershire.”


Why was Veale still there long after the expiry of the six-month arrangement? To that, there was silence.

Is Cleveland more open and accountable? Not exactly. The PCC was asked in July why Veale’s misconduct hearing had not started. An executive assistant in his office replied:

“I have spoken to the Police & Crime Commissioner Steve Turner, and he has advised me this is currently being reviewed by our Chief Executive.”


In October, she was asked whether the review had been completed. The person who could supply an answer was on annual leave. She said:

“I will speak to her upon her return to the office and send you an update with regard to the review.”


At this rate, Veale will retire on a fat pension, and never answer for his misconduct.

What is needed is a Minister at the Home Office who will challenge the well-entrenched attitude in it that PCCs should be left entirely to their own devices, as if they constituted a separate estate of the realm. It is an attitude that makes effective accountability impossible. That accountability is not going to come from the small number of local electors who take an interest in the work of PCCs. Who but the elected Government is going to stop the offices of PCCs fobbing off inquirers with feeble and totally inadequate answers?

20:10

[Lord Bach (Lab)]

My Lords, I thank the noble Lord, Lord Lexden, for securing this short debate. I agree with his every word. I want to stress that I still support the idea of police and crime commissioners representing the public of a police force area in their relationship with the police, holding chief constables to account and performing a vital community and partnership role. As the noble Lord, Lord Lexden, said, there are some superb examples of PCCs and their achievements. However, my support nowadays is sometimes sorely tested. The speech by the noble Lord, Lord Lexden, has added to my concerns.

As for the Veale case, this is a truly astonishing position. He was brought in to be my successor’s main adviser; got rid of all the others on day one, with a number of substantial contracts; and is facing a gross misconduct charge, still not decided, although it should have been decided in 100 days. Of course, he should have been suspended pending the tribunal decision, as normally happens in public life. This happened to a Minister from the other place just a few weeks ago during the Truss Government. He was immediately suspended from the Conservative Party, awaiting the result of an inquiry. That was the appropriate way to do it. I repeat the question: why has that not happened here, and why has the Home Office not insisted on it?

What has upset me as much has been what I describe as the masterful inactivity by my successor as police and crime commissioner for Leicester, Leicestershire and Rutland a couple of months ago, when there was much-publicised violence and trouble between minority communities in my city of Leicester. Surely it should be the priority of every police and crime commissioner to intervene and do what they can to prevent, stop and sort out community unrest of this nature by decreasing tensions, talking to the various leaders and bringing people together.

A prominent and senior Conservative asked me why I was staying silent on this. He said, “What is the point of police and crime commissioners anywhere if they do not act in such a situation as there was in Leicester a couple of months ago?” I agree with that senior Conservative. Given that, in my time, I had a deputy who understood the inner city, I believe that I and every other police and crime commissioner would have acted at once. Unfortunately, my successor did not, and a number of senior people of all kinds have confirmed what I am saying. Frankly, apart from a brief statement and a silent attendance at a post-troubles meeting with the city mayor, he kept out of it, finding displacement activities. Indeed, he was in London when the Home Secretary visited Leicester. That is just an example.

It pains me to say so, but this behaviour obviously gives police and crime commissioners a bad name. Being photographed endlessly enjoying tea and cake in beautiful Leicestershire villages is, frankly, no substitute for doing your job, and no excuse for not doing the hard grind, with the disappointments and the moments of success. That is what police and crime commissioners are elected to do, and most do it. If they choose not to do their job, particularly when it is difficult, who can blame the public for rejecting the system in place altogether?

I am sorry that I have had to say what I have said today, but I feel it strongly. I really think that it is time that the Home Office took an interest in this.

20:15

[The Lord Bishop of Southwark]

My Lords, I am grateful to the noble Lord, Lord Lexden, for securing this debate and setting out for us with his habitual clarity the issues at hand. I am particularly saddened to hear that the good name of a distinguished former Prime Minister, Sir Edward Heath, has been traduced in the way that the noble Lord has described. However, I wish to approach this debate with a different focus.

Any hierarchy, any delivery of service, any public-facing organisation is fraught with multiple expectations and with the frailties and capacities of those who lead. For instance, diocesan bishops have wide discretion but are constrained by resource, custom, law, synodical structures and vocation.

The issues around effective delivery and of accountability in policing are very old. Historically, constables were at the direction of magistrates, who continued to sit on watch committees and police authorities until recent times. However, the growth in the size of forces and their operational complexity fuelled a sense of operational independence, away from political interference and amateur direction. It also allowed for co-operation at a national level where crime issues crossed county borders. Direct local accountability was seen to threaten professionalism, and it threatened the fight against crime nationally.

However, a police service insufficiently accountable fostered a culture apart from public concerns. In some places, it allowed corruption to be covered up and prejudices to become ingrained, and performance to become unchallenged. The alternatives, it seems, were national direction or local accountability, and the Government in 2011 opted for the latter by sweeping away local police authorities and replacing them, as we have heard, with directly elected police and crime commissioners.

Of the several commentaries on the progress of this innovation, the research commissioned by the National Police Chiefs’ Council in 2018 bordered on the excoriating. The more recent article by Simon Cooper in the journal Policing is more nuanced. It provides evidence for the sort of direct accountability and scrutiny the Government hoped for and for greater efficiency of action, but there is concern over idiosyncrasy of decisions, the increase in the removal of chief constables and the reluctance of suitable applicants to replace them.

This brings me to the special case of Dame Cressida Dick, who announced on 10 February this year that she would step aside as Commissioner of Police for the Metropolis in the midst of publicly expressed concerns about recent actions by the force. My thoughts on the matter are in no way related to the merits or otherwise of how the then commissioner carried out her role. Like others, however, I am concerned at the deficits in the process of removing her, identified by Sir Tom Winsor in his report of 24 August on her resignation, which was commissioned by the then Home Secretary—I have lost track of which one.

According to the former Her Majesty’s Chief Inspector of Constabulary, Dame Cressida was informed that morning that the mayor would publicly announce that same afternoon his lack of confidence and intention to begin the statutory process of removal. She had until then to act, and chose to go. The mayor, for whom I have a good deal of respect—in fact, a very great regard—has alluded to an “apparent degree of bias” in the report. There are questions about leadership and protection of the Metropolitan Police, but it remains the case that the process set down in Section 48 of the Police Reform and Social Responsibility Act 2011 was not followed. The commissioner was not suspended. The commissioner was not formally informed of an intention that she should retire or resign and was given no opportunity to respond, and the Home Secretary’s consent was not obtained to remove her. Virtue lies in following agreed procedures when it is inconvenient to do so, not just when it is easy, especially when one is talking about a service which, in turn, is about ensuring law and order. I remain saddened and disappointed that this happened in this way.

There is some merit in examining a revision of the regulations applying to police and crime commissioners and mayors under the Act, or a code of practice on its operation, and I hope the Minister might indicate some willingness move in that direction.

20:21

[Lord Thomas of Cwmgiedd (CB)]

My Lords, I, too, congratulate the noble Lord, Lord Lexden, on obtaining this debate, and on his speech, and I congratulate the noble Lord, Lord Bach, on his. They clearly illustrated that there are serious problems with the current regime of the governance of the police, but there is nothing new in this. The governance of the police has always been difficult. In the middle of the last century the chief constable of Worcester was jailed for fraud. There were terrible problems with watch committees. We set up a royal commission on the police, and it pointed, in some very wise words, to the issues: that the police should be powerful but not oppressive; they should be efficient but not officious; and they should form an impartial force in the body politic, and yet be subject to a degree of control by persons who are not required to be impartial and who themselves are liable to police supervision. That encapsulates, as only royal commissions can do, the difficult issues.

However, since the police authorities regime was reformed under the guidance of that royal commission, two things have happened which transformed the position and necessitated change in the form of the introduction of police and crime commissioners. The first was the enormous growth in the power of the chief constable. This, like all changes that do not occur through legislation, occurred imperceptibly, and there is no doubt that by the early part of the current century chief constables were too powerful and needed a more effective body than the police authorities. Secondly, there had been a change in the power of the police. It used to be our view that the police ought to have just a little bit more power than the ordinary citizen. I am afraid that, with the Criminal Law Act 1967, we departed from that very long tradition of our constitution and gave the police enormous powers.

So, these two forces required reform. I do not want to criticise the change that was introduced by the introduction of police and crime commissioners. In the period where I dealt quite extensively with them, they did, on the whole, a very good job. But we have never really stood back, and this is why I so much welcome what the noble Lords, Lord Lexden and Lord Bach, have said.

There are now enough problems that we ought to have a proper review. I know that the Home Secretary has many other matters on her mind, but what about an independent review? I dare not suggest a royal commission—those are so wholly out of fashion; I just raise a number of points that require us to look at them again. First, is the way the office of police and crime commissioner is set up sensible? Not being a politician, I have always thought that the genius of our system was that politicians had a permanent office behind them that provided a degree of guidance: that there was some institution that could ensure continuity. Should not the police and crime commissioners have some sort of established office that supports them, and that has the protection of a permanent Civil Service?

Secondly—we have not thought about this enough—the police now have extensive powers to impose sanctions. They started with police cautions. Then, penalty notices were introduced, which were fine for things such as speeding, but no one has reflected properly on the extent of the problems of accountability. There was a public investigation by the police into very senior civil servants and Ministers, and yet the decision was made by the police, in an unreasoned way, as to what they did or did not do. It epitomises the growth in the use of the police as a punishing body—a body entitled to decide issues of justice—that we do not have a mechanism of accountability.

As I tried to point out during consideration of what I call the “police et cetera” Act—the Police, Crime, Sentencing and Courts Act 2022—one of the defects is that there is nothing to provide a mechanism for supervising the penalty notices. Then, there is the problem of who holds the chief constable to account for operational matters, in so far as you can distinguish that from policy. Then, there is the whole question of the use of the police and crime commissioners in relation to criminal justice boards. I could go on and on. Of course, there is also the problem of Wales but I will not go into that tonight; that is too complicated an issue for police and crime commissioners.

All I am saying is that there is plenty of evidence that we need to look at this again, but we need to think of broader issues than these particular cases; they are the symptoms. We need to do everything with a proper regard to our constitutional rights, and acknowledge that the governance of the police is an intractable and difficult issue that has lived with us for a very long time.

20:27

[Baroness Jones of Moulsecoomb (GP)]

My Lords, I congratulate the noble Lord, Lord Lexden, on getting this debate. It is an interesting topic that we will keep coming back to, because we are facing legislation that will inevitably drag it to the fore.

In November 2011, the then Home Secretary Theresa May made the Policing Protocol Order, which stated:

“The establishment of PCCs has allowed the Home Office to withdraw from day-to-day policing matters, giving the police greater freedom to fight crime as they see fit, and allowing local communities to hold the police to account.”


The idea was that the public should have a direct say over policing in their area. I do not think that has happened. Although the old police authorities may not have been the ideal system, they were certainly more accessible by the average person. I was a councillor for four very long years and in my experience, people found it very easy to speak to me directly. They would stop me in the street, in the shops or in my front garden, and they were able to give me straight feedback on anything they were concerned about. When one has one person in a role of this kind, it is much harder to speak to them and to communicate. Police authorities probably worked much better and were probably more accountable.

I was on a police authority here in London for 12 years, from its start to its finish. It was a fascinating experience for somebody like me. I was possibly one of the rare types who went to protests and things like that, but not completely. We were an incredibly diverse bunch—a lot of elected people but also experts in various fields. It worked extremely well. We respected the successive police commissioners, but we also challenged them; we made them answer to us for their decisions. I think it worked extremely well.

At the moment PCCs can hire and fire police chief constables, who continue to manage things day to day. They also set the police budget and the police precept. They write the area’s policing plan and commission a range of crime-related services such as victim support. That is a very big job, and the PCCs I have spoken to need quite a lot of office help to make those things happen. Clearly, there have been many hiccups. One big problem that I have seen several times is that the chief constable resents the police and crime commissioner, and any breakdown in that relationship makes it incredibly difficult for the PCC to do their job properly.

In March this year the Home Office produced a report on a consultation it had done on giving PCCs greater powers of competence. The consultation had a staggering 84 responses—I am sure that all the groups that responded were very important—and the majority felt that PCCs should have more power. More scrutiny and accountability was also discussed. The police and crime commissioner review has considered options to strengthen the accountability and transparency of PCCs to ensure that the public can effectively hold them to account for the exercise of their functions. Given that the public find it difficult to hold them to account now, I guess that will be welcome.

Luckily, the end of the report states:

“We require primary legislation to provide PCCs with these wider powers. We will seek to implement the measures through the next appropriate legislative vehicle.”


So we lucky Peers will get the chance to debate this and suggest improvements. I rather think, given the nature of the debate today, that there might be a lot of amendments in the making.

20:31

[Lord Paddick (LD)]

My Lords, I too am grateful to the noble Lord, Lord Lexden, for securing this debate. Liberal Democrats are in favour of greater police accountability but the system of police and crime commissioners appears to be broken, as the examples provided by other noble Lords have demonstrated.

Much criticism has been levelled at police leadership in recent years. We have seen justified criticism of the lack of Home Office involvement in the development and selection of the most senior police officers. Gone is the previous requirement that no chief constable be appointed without experience as an assistant chief constable or deputy in another force. Gone is the Home Office assessment of the suitability of candidates, including the grading of candidates for promotion. Instead, chief constables can appoint their own senior officers and PCCs can select their own chief constables—almost always the incumbent deputy.

Competition for chief officer posts in forces has all but evaporated, given the belief that the incumbent will always be selected, having developed a relationship with his or her police and crime commissioner. As we saw in the Wiltshire Constabulary case of the investigation of Sir Edward Heath, and as the noble Lord, Lord Lexden, has said, the PCC failed to launch an investigation into his own chief constable, and the Home Office then failed to hold either the chief constable or the PCC to account. Under the old tripartite system of Home Office, police authority and chief constable, the Home Secretary could and did overrule the police authority, but, because PCCs are allegedly democratically elected, they can be held to account only every four years by the electorate.

I say “allegedly” for a number of reasons. In places like Wiltshire there is an inbuilt Conservative Party majority. An Electoral Commission report in 2016 found that 72% of the electorate knew not very much or nothing at all about police and crime commissioners. With PCC elections costing £50 million a go, plus two by-elections so far—and on the last count only a 33% turnout, with voters clearly voting along party lines in most places—this is a very poor example of democracy. I understand that there are no independent police and crime commissioners left. The Home Office has abdicated responsibility for policing, placing it on police and crime commissioners who are dubiously elected on small turnouts, based on little or no public awareness, with voters voting along traditional party-political lines.

Placing too much power into the hands of one individual—in this case police and crime commissioners —creates the potential for other accountability issues. We saw this in Avon and Somerset, where inappropriate behaviour towards women was alleged against a chief constable. Vulnerable victims came forward and a case put to the police and crime commissioner, who then allegedly passed the details to the chief constable concerned, including details of the victims. While the chief constable was eventually forced to resign and has subsequently had his Queen’s Police Medal “cancelled and annulled” by the Queen, the police and crime commissioner remained in place.

The problem with the whole system of police and crime commissioners can be summed up by the current situation in the Metropolitan Police, which was placed into special measures by Her Majesty’s Inspectorate of Constabulary and Fire & Rescue Services, the subject of a damning report by the noble Baroness, Lady Casey, with the Government blaming the de facto police and crime commissioner, and the police and crime commissioner blaming the Home Office, with the public confused as to where responsibility lies, and no one being held to account.

Liberal Democrats want police boards with similar powers to PCCs, composed primarily of local authority members, to replace police and crime commissioners. Representing a broad cross-section of constituencies and political parties, minority groups and ideas, and having responsibility for the overall funding and provision of local services, not just the police precept, most if not all of the problems with the existing system of police and crime commissioners could be overcome. At the very least, as the noble and learned Lord, Lord Thomas of Cwmgiedd, said, there are now so many problems with police and crime commissioners that a review is necessary, if not their removal and replacement.

20:36

[Lord Coaker (Lab)]

My Lords, I congratulate the noble Lord, Lord Lexden, on achieving this debate. His remarks were of concern to all of us. I have no doubt that, like him, we are waiting for the Minister’s response to that. The noble Lord, Lord Bach, raised similar concerns, and they deserve real answers and real steps to be taken to address them so that we are not here in six months debating the same thing. We are concerned to hear those remarks again: it undermines the whole PCC system. They might all be individual cases, as the noble and learned Lord, Lord Thomas, said, but individual cases undermine the whole system if we are not careful, and they need to be addressed and dealt with.

The creation of PCCs was to increase public accountability, due to a belief that police authorities were not working well—although some police authorities worked really well; I heard the remarks of the noble Baroness, Lady Jones—and that a new structure of accountability was needed. There was a belief that the public were shut out of decisions with respect to the policing of their own communities and that something had to be done. Of course, the policy debate that then takes place is about what that is. How do you give the public a say without interfering with the operational independence of the police? That was the establishment of the police and crime commissioner reform that the Government took forward. The idea was a sort of compromise, and led to an individual accountable to a police and crime panel holding the chief constable to account. Various problems have emerged, and the Government themselves have recognised them and undertaken to conduct a part 1 and part 2 review. It would be helpful if the Minister could give us some idea of the Government’s thinking, following on from those reviews.

The creation of PCCs was to increase public accountability but there is still a complete lack of public understanding about the role. What is being done by the Government to increase understanding of the role—how PCCs interact with the chief constable, and how the police and crime panels work and hold police and crime commissioners to account? On democratic accountability, what is being done to increase the turnout for PCC elections? The average was 33.2% across all PCC elections in 2021, with turnout generally higher in Wales; I mention that to the noble and learned Lord, Lord Thomas. Why was that? In Durham, the turnout was 16.9%. What work have the Government done to try to understand the differences in electoral turnout between different areas, what can be done, and whether there are any lessons to be learned about that?

The noble Lord, Lord Paddick, spoke about the complaints and misconduct processes. Earlier this month the review by the noble Baroness, Lady Casey, found grave failings in the misconduct processes in the Metropolitan Police. We need urgent action, not only in the Met but to overhaul the whole police misconduct system. What are the Government doing in working with PCCs to look at a national reform of the misconduct process and see what can be done about that? If we do nothing, it leads to the sort of example that the noble Lord, Lord Lexden, spoke to us about.

How is best practice to be spread? Some PCCs, as noble Lords have said, have done brilliant and innovative work and made a huge difference in their area. Some police and crime panels work really well. What are the Government doing to spread that good practice? How are they trying to ensure that some of the worst-performing areas are brought up to the level of the best?

In every area, what we all seek to do is to make a police and crime commissioner system work. I agree with my noble friend Lord Bach that it was an attempt to do something about a lack of democratic accountability. Many people have had faith in police and crime commissioners but are concerned about the way that they have operated. The Government have been slow in responding to the criticism and in coming forward with their own ideas. What we seem to get is a review reviewing the review that took place, whereas what people are demanding is action and reform. The police and crime commissioners, and the police of this country, deserve that.

One of the greatest problems facing us, as we have said before to the noble Lord, Lord Sharpe, is the undermining of public confidence in the police. That is a huge concern to all of us across this Chamber. One way which could take us forward in dealing with it is to help police and crime commissioners work to provide the link they were supposed to provide between the public and the police. The system has not worked in the way that the Government would have expected or that all of us would have hoped but, by grasping the nettle of reform and listening to some of the criticisms and not simply objecting to them, the Government could and should find a way forward which would command support across the House.

20:42

[The Parliamentary Under-Secretary of State, Home Office (Lord Sharpe of Epsom) (Con)]

My Lords, I am grateful to all noble Lords for their contributions and very much congratulate my noble friend Lord Lexden as well on securing this important debate. I know that the topic has long been of interest to him, and a wide range of views have been expressed relating to the roles and responsibilities of police and crime commissioners this evening. I ought to remind the noble Lord, Lord Paddick, that the policy was introduced under the coalition Government. I do not believe that the model is broken, but I will come on to that in a second.

I also reassure my noble friend Lord Lexden that I am certainly not idle, but he may have noticed that I have had three bosses since he wrote his letter. I am still busily asking for the meeting that he requested. My predecessor asked for that meeting, which I am afraid was denied, but I will continue to persevere.

Before I get on to the bulk of the more general points, perhaps I may go into Operation Conifer to answer my noble friend Lord Lexden’s specific questions about that unfortunate case. Obviously I understand the strength of feeling on this matter. However, the Government have no plans to commission a review of either the conduct of the investigation into allegations made against Sir Edward Heath or the findings of that investigation. It is unfortunate, of course, that Operation Conifer was not able to resolve conclusively the position in respect of all the allegations made against Sir Edward Heath. I understand the desire of noble Lords to find a solution but the investigation has already been subject to considerable external scrutiny. I will go into that in a bit of detail.

There were three main bits of scrutiny. First, there was an independent scrutiny panel—I stress “independent”—to ensure proportionality. Secondly, there were two reviews by Operation Hydrant in September 2016 and May 2017, which concluded that the investigation was proportionate, legitimate and in accordance with national guidance. Thirdly, there was a review in January 2017 by Her Majesty’s Inspectorate of Constabulary as to whether resources assigned to the investigation by the Home Office were deployed in accordance with value-for-money principles; the review concluded that they were. Finally, the Wiltshire PCC then referred two matters regarding Mike Veale to the IOPC. That is a lot of external scrutiny, if we are being objective about this.

I am going to talk more generally about the police and crime commissioner model and try to answer all noble Lords’ specific points. We accept that policing is a unique public service, but like any public service—I think all noble Lords acknowledge this—it needs to be transparent and accountable to the public. The introduction of PCCs in 2012 has brought real local accountability to how chief constables and their forces perform, ensuring that the public have a stronger voice in policing.

I say to the noble Lord, Lord Bach, that I have no particular knowledge of his successor; I do not know him, and I do not know what he has been doing in Leicester. I would have thought that, given what the noble Lord has said about him tonight, he is very accountable to his public. If he has behaved as described, then he deserves what is coming to him. PCCs operate in the full gaze of the media and must justify their record via the ballot box. This is in stark contrast to the invisible and unaccountable police authorities that preceded them. I will go on a little bit until we get to the review, then I will talk a little about complaints.

We are approaching the 10-year anniversary of their introduction and we think it is important to recognise the vital role that PCCs play in the public safety landscape. They work with their communities to focus on local priorities, using their convening powers to drive crime-fighting efforts in their areas and advocate for victims across the criminal justice system. PCCs have a strong involvement in work to tackle some of the most significant issues facing our society, including county lines, anti-social behaviour and violence against women and girls. There are lots of examples of that. I will go back to one from my friend Katy Bourne, the PCC in Sussex. She points out that 10 years ago, for example, only 20% of police and crime plans referenced prevention and now it is included in all police and crime plans. That is a direct, positive feature of the introduction of police and crime commissioners.

I will go on to the review, which the noble and learned Lord, Lord Thomas of Cwmgiedd, the noble Baroness, Lady Jones, and the noble Lord, Lord Coaker, referred to. It is vital that PCCs continue to be strong and visible leaders in the fight against crime. That is why in July 2020 the Government announced a two-part review into PCCs to strengthen their role, to ensure that they are accountable to the public and that they have the tools and levers to carry out their role effectively. Recommendations from parts 1 and 2 were announced by Written Ministerial Statement in March 2021 and 2022 respectively.

These measures will sharpen local accountability and improve the consistency and quality of scrutiny by police and crime panels, as we were talking about earlier, and make it easier for the public to hold their PCC to account for their record on reducing crime. They will also ensure that PCCs have the necessary tools and levers to cut crime and will turn the dial on their involvement in the criminal justice system, giving PCCs a more defined role in relation to offender management and strengthening their role in key local partnerships. Of course, the proof will be in the pudding. That is why we have retained a relentless focus on delivery to realise the benefits of these important recommendations as quickly as possible. We have moved to multi-year violence reduction unit funding to facilitate long-term preventative strategies, better enabling PCCs to develop long-term strategies for reducing crime in their locality.

We have amended the specified information order to improve PCCs’ transparency by requiring them to provide a narrative on the Government’s crime outcomes, their force’s His Majesty’s Inspectorate of Constabulary and Fire and Rescue Services performance reports and further complaint-handling information. We have also strengthened the scrutiny of PCCs by publishing new guidance for police and crime panels, including a variety of training tools such as videos, good-practice guides and sharing best practice, as referred to by the noble Lord, Lord Coaker. Also under discussion, and which I probably should have mentioned earlier in Questions, are regional panels. These are being looked at in terms of the police and crime panels as a way of ensuring that best practice is shared.

I take the point that publicity around the role of PCCs could be improved. I am going to get to the subject of the relationship between PCCs and chief constables. It would be important to answer the right reverend Prelate’s concerns and the question of the noble Baroness, Lady Jones, about the breakdown in communication and trust between those two roles. For a PCC to deliver to the community they serve, they need to have a strong working relationship with their chief constable. That has to recognise the operational independence of policing but also the local mandate of the PCC to deliver on local priorities.

The right reverend Prelate referred to the situation with Dame Cressida Dick. During the debate on the review of the noble Baroness, Lady Casey, a week ago, I referred—at some length, I am afraid—to the mayor and MOPAC’s complex relationship with the Home Secretary in regard to this. I refer noble Lords to that in Hansard. On the point made by the noble Lord, Lord Paddick, I do not think that anyone is blaming anyone; it is a complex relationship, and the lines unfortunately crossed on a number of occasions.

Through the PCC review, we heard loud and clear the need for clarification of the working relationships between policing system partners. This is one of the primary reasons why we consulted on the Policing Protocol Order 2011—I note the point of the noble Baroness, Lady Jones—to ensure that we are able to support effective and constructive working relationships in the policing sector as well as possible. These responses are currently being considered, and we will update in due course.

We are also working with the sector to further develop the existing PCC and chief constable accountability guidance, which is designed to embed healthy working relationships between PCCs and chief constables, as well as outlining a framework for mediation for relationships that may be at risk of breaking down. We will also bring forward legislative amendments to make the chief constable suspension and dismissal process more rigorous and transparent, which in turn will make it fairer, ensuring that the chief constable has a voice.

I take the point about chief officer recruitment, which a number of noble Lords referred to. We want to ensure that there is a wide, well-rounded and diverse pool of candidates for appointment to chief officer ranks. We also want to ensure that there are consistent and high standards in selection processes. We welcome the College of Policing’s proposals for fundamental change to the current system, following a full independent review of progression and development to chief officer ranks. These measures will increase transparency and open up access to senior officer level development.

We continue to engage with local areas developing devolution deals to expand the mayoral PCC model, in line with the Government’s wider devolution and levelling-up agenda, and we have published our response to the consultation on giving PCCs greater powers of competence.

Time allows me to talk a little about the PCC complaints process, to which my noble friend Lord Lexden referred. Our announcement of the PCC review recommendations did not make specific recommendations on the PCC complaints system, and we are still committed to developing reforms in this area. This includes ensuring that there is clarity on what constitutes misconduct or a breach of expected standards by PCCs, deciding which body is best placed to handle certain types of complaints, ensuring that the system does not give rise to vexatious complaints and ensuring the effective handling of criminal allegations against PCCs.

[Lord Lexden (Con)]

What do the Government plan to do to prevent serious misconduct hearings being indefinitely delayed, as has happened in Cleveland? What will the Government do to get clear answers to public inquiries made to the offices of police and crime commissioners, instead of the hopeless and inadequate answers that I cited?

[Lord Sharpe of Epsom (Con)]

I am afraid I will disappoint my noble friend to some degree. As I said, we are committed to developing reforms in this area, and this will obviously need to look at the specific sets of circumstances to which he refers. I will make sure that my noble friend’s particular points are taken back and incorporated.

As I was saying, developing reforms include ensuring that there is clarity on what constitutes misconduct or a breach of expected standards by PCCs, deciding which body is best placed to handle certain types of complaints, ensuring that the system does not give rise to vexatious complaints and ensuring the effective handling of criminal allegations against PCCs. We acknowledge that we need a system that is open, transparent and fair for all parties when handling complaints. While we develop the reforms in this area, we have taken interim steps to assist. This includes publishing guidance to strengthen the quality and consistency of scrutiny by panels, more clearly explaining their roles and responsibilities—I note the point of the noble Lord, Lord Coaker—including in relation to their remit for handling PCC complaints.

The noble Lord, Lord Lexden, also asked what legal requirements exist to ensure that police and crime commissioners answer the inquiries made to them. The actions and decisions of PCCs are scrutinised by the panels, and the PCCs must provide information and answer questions raised by their PCP, where reasonable and appropriate, in line with their duties in the Police Reform and Social Responsibility Act 2011. Where necessary, PCCs must also respond to freedom of information requests from the public, in accordance with the Freedom of Information Act 2000.

We intend to legislate to deliver those recommendations from the PCC review, which require primary legislation, as soon as parliamentary time allows. We are also fully committed to delivering the remainder of our non-legislative recommendations in conjunction with the sector by the end of this calendar year, where possible.

I am afraid I do not have any time left, but I close by saying that we seem to have debated the instances—very bad instances; no one is denying that—of one or two particularly bad apples. The fact remains that there are 39 PCCs and three mayors with PCC responsibilities and, as has been recognised, we should all acknowledge that they are, in the main, doing a very good job. I take this opportunity to thank all our sector partners for their continued support.

Northern Ireland Protocol Bill

Committee stage
Monday 31st October 2022 Lords Chamber

Committee (2nd Day) (Continued)

20:55

Clause 9: Regulation of goods: new law

Amendment 12

Moved by

[Baroness Chapman of Darlington]

12: Clause 9, page 5, line 26, at beginning insert “Subject to the conditions in subsections (3) and (4),”
Member’s explanatory statement
This amendment makes clear that the power in Clause 9(1) is subject to conditions contained in a later amendment to that Clause.

[Baroness Chapman of Darlington (Lab)]

I shall speak very briefly because this amendment gives rise to many of the same debates that we have already had this evening. We have tabled Amendments 12 and 15, which would prevent

“the delegated powers in Clause 9 from being used unless a draft of the instrument, a report of a relevant consultation exercise, and an appropriate economic impact assessment have been laid before Parliament.”

The Government say that Clause 9 is needed because the policy is not yet developed. We are worried about this, so these amendments would act as a safeguard by preventing the power being used unless the conditions in the amendment are met. We think Northern Ireland businesses would be better served if our amendment were to be accepted, notwithstanding all our previous comments on our approach to the Bill more generally. Businesses were telling us—I am sure other noble Lords have heard the same—that they want and need stability, predictability and security. I do not think this will be delivered by the Bill; it comes only through negotiation. We must amend the Bill; it is what we are here to do this evening. We have made this suggestion because we think it would be particularly helpful to the business community to have more of a say and to get more clarity from the Government on what they might intend to do.

[Baroness Ludford (LD)]

My Lords, I support these two amendments, but they are not even contesting the making of regulations or asking for substance or content; they just require a process for making the regulations. As my noble friend Lord Purvis said in the debate on the previous group, there is nothing in the Bill on consultation. Assuming that Clause 9 remains—which we hope it does not—this amendment is trying to put some meat on the bones that should probably already exist. The Government said in the delegated powers memorandum that the regulations under this clause would

“need to reflect the results of consultation with businesses”.

The problem is that this clause provides for no such consultation. Our Delegated Powers Committee commented:

“This is the frankest admission by the Government that policy is so embryonic that it has not yet been consulted on.”


The committee’s comment on Clause 5 is also pertinent and relevant:

“Ministers are said to need flexibility, but the reality is that policy has not yet been formulated … the Government could have formulated their policy, consulted on it, refined it (if necessary) and then brought forward legislation with the details filled in. This would have facilitated meaningful parliamentary debate.”


Yet, the Delegated Powers Committee went on,

“Parliament is being presented with a major Bill on the subject. Legislation has preceded policy development rather than vice versa”.

I think I may be repeating what my noble friend has already quoted.

Amendment 15 therefore contains reasonable and sensible conditions for a draft of any proposed SI—for a report on consultations with business and an economic assessment to be laid. I suggest that the Government will, or ought to, have some difficulty in finding arguments to resist these amendments.

21:00

[Lord Hannay of Chiswick (CB)]

My Lords, I intervene briefly in support of these amendments requesting that the Government provide an economic impact assessment.

Nothing could better characterise the extraordinary nature of our debates today, Wednesday and next Monday—and their unreality—than the fact that the Government are asking us to enact a Bill that gives them complete powers to do whatever they like in circumstances where it has been impossible, in the Government’s view, to get a negotiated solution. I recognise that the Government’s preference is for a negotiated solution. They are proposing that we give them a blank cheque for that without telling us what the impact on the British economy or the economy of Northern Ireland might be. That is frankly bizarre. It is not truly credible.

Of course, we all know that, in the event and after we have given them those powers, they would probably publish something, but we need to know now. We need some guesstimates—I accept they could be only guesstimates—of what the likely consequences would be if the Government’s preference for a negotiated solution cannot be achieved and they use the powers in the Bill that they are asking us to enact. I cannot honestly think of an argument against it.

Five years before we joined the European Communities, the then Labour Government issued a White Paper under George Brown which was an impact assessment of joining the European Communities. Why is it impossible to do that now? Why can the Government not say what the impact would be if the car goes over the cliff? I hope the Government will relent and will provide some impact assessments of these matters, because we really need to see them before we are asked to vote on the Bill.

[The Parliamentary Under-Secretary of State, Northern Ireland Office (Lord Caine) (Con)]

My Lords, I am very grateful to the noble Baroness, Lady Chapman of Darlington, for Amendments 12 and 15 in her name.

Since the Bill was introduced, the Government have engaged extensively with groups across business and civic society in Northern Ireland, the rest of the UK and internationally. In addition to routine engagement, as I have mentioned, during the summer, the Government held over 100 bespoke sessions with more than 250 businesses, business representative organisations and regulators to inform the details of how the dual regulatory and trade boundary models should work in practice. In response to the noble Baroness, Lady Ritchie of Downpatrick, I refer to some of my own engagement, not just with the dairy and agri-food sectors, but with business representative groups in Northern Ireland. That has been a similar experience to that of my right honourable friends, the Minister of State and the Secretary of State. We are very committed to this and we are reflecting on the huge wealth of feedback that we have received as we continue to develop the details of the underlying regime.

The clause is designed to provide stakeholders in Northern Ireland with certainty that the Government will deliver the solutions we have outlined. The House will have the opportunity to scrutinise regulations in the usual fashion, and the Government will provide all the usual accompanying material under normal parliamentary procedures. The full details of the new regime will be set out in, and alongside, regulations made under the Bill, including economic impacts where appropriate, so that Parliament may make informed scrutiny of the new regime which is being put in place.

The regulations themselves will be the product of engagement with businesses to ensure the implementation of the new regime is as smooth and operable as possible. Stakeholder views are of course important, but it is ultimately for Ministers to exercise these powers, and for Parliament to scrutinise and hold them accountable in the usual way. An additional requirement for the Government to lay an assessment and a report when it makes regulations using this power is therefore, in our view, unnecessary, and in that spirit, I urge the noble Baroness to withdraw the amendment.

[Baroness Chapman of Darlington (Lab)]

I am grateful to the Minister and to others who have contributed to the discussion on this group of amendments. I just gently say to the Minister that we do appreciate and respect the fact that a great deal of engagement is being undertaken by the Government and by others; we are all talking to businesses, and so we should. But that is not the same as a proper consultation process in line with Cabinet Office guidelines, which is what we really need here, because at some stage there will be decisions made by the Government about what they want to do, and it would be really unfortunate if those decisions were implemented without sufficient consultation. That is the point we are trying to get across to the Government at this stage, but for now I beg leave to withdraw the amendment.

Amendment 12 withdrawn.

Amendments 13 to 15 not moved.

Amendment 15A

Moved by

[Baroness Ritchie of Downpatrick]

15A: Clause 9, page 5, line 34, at end insert—
“(3) In exercising any of the powers under this section, a Minister of the Crown—(a) must act in a way that is compatible with the terms of Article 2 of the Northern Ireland Protocol,(b) must not suspend or seek to diminish any of the other provisions of the EU withdrawal agreement or the Northern Ireland Protocol so far as they relate to Article 2 of the Protocol, and(c) must not suspend or repeal, or make alternative provision to, domestic law so far as it gives effect to Article 2 of the Northern Ireland Protocol or any other part of the EU withdrawal agreement to the extent that it relates to Article 2 of the Northern Ireland Protocol.”Member’s explanatory statement
This amendment seeks to protect the operation of Article 2 of the Ireland-Northern Ireland Protocol.

[Baroness Ritchie of Downpatrick (Lab)]

My Lords, I rise to support the amendments standing in my name in group 6, which all seek to protect the operation of Article 2 of the protocol. There is much that is highly contentious about the Bill that we are considering, but I hope that there is at least one issue that is not controversial: that fundamental human rights should not be undermined by this Bill. As my noble friends Lady Kennedy and Lady Goudie both argued in their powerful speeches at Second Reading, they are too fundamental to the Northern Ireland peace process to risk that happening.

The purpose of Article 2 is quite clear: it is to protect the rights that those negotiating the Belfast/Good Friday agreement identified as the basis for moving Northern Ireland forward. The fear that Article 2 addressed was that these rights were underpinned by European Union law, and that that underpinning could be weakened, and in some cases destroyed, when the UK left the EU. The operation of Article 2 has never been regarded as controversial; indeed, when the Government identified the list of controversial issues in the protocol, Article 2 was explicitly identified as uncontroversial. So far as I am aware, no unionist politician—and in fact the noble Lord, Lord McCrea, referred to Article 2 earlier in a previous debate—has ever tried to argue that the operation of Article 2 is a problem for them, whatever other problems they consider the protocol to give rise to.

The Government themselves appear to have recognised the importance of Article 2 in Clause 15(3) of the Bill, which provides that the powers given to Ministers in that clause cannot be used to repeal Article 2. However, welcome as that protection in Clause 15(3) is, it does not deal with the problem. First, it does not apply to the vast panoply of ministerial powers granted by other clauses. Secondly, even regarding the limits it places on the exercise of ministerial powers under Clause 15, it only prevents Article 2 ceasing to have effect, not a weakening of Article 2 that falls short of repeal. Thirdly, it does not protect Article 2 from other provisions of the Bill that limit its scope immediately the Bill is brought into force and which are not dependent on the exercise of delegated powers to Ministers.

What is the problem and why are a significant number of amendments needed to protect Article 2? Simply put, the effectiveness of Article 2 in practice depends on other provisions of the withdrawal agreement and the protocol threatened by the Bill. To use an analogy, having a chair to sit on is pointless if all its legs are sawn off; it ceases to function as a chair. If the necessary supports for Article 2 are removed, it will cease to function. If the Bill is passed in its current form, it appears it will cut off one crucial support immediately, as well as enabling Ministers to remove all the other supports as they please.

I turn to the detail. I will identify the key questions which I expect the Minister to answer immediately or at least before Report; immediately following this debate, I will forward to him the text of the questions to which I seek answers.

When read together with Article 13 of the protocol, Article 2 requires that Northern Ireland equality law keep pace with EU equality law. This is the dynamic alignment requirement. My first question is this: may a Minister by regulation under Clause 14(4) provide that Article 13(3) of the protocol is disapplied in relation to Article 2? If so, can this power be used to prevent the equality directives in Annexe 1 being subject to dynamic alignment? Amendment 23A is relevant in this regard.

Clause 14(4) provides that:

“A Minister of the Crown may, by regulations, make any provision which the Minister considers appropriate in connection with any provision of the Northern Ireland Protocol and other parts of the EU withdrawal agreement to which this section relates.”


My second question is: does this mean that a Minister could, by regulation, provide that the provisions of the withdrawal agreement that enable disputes relating to Article 2 to go to international arbitration if they cannot otherwise be resolved—Articles 170 to 181 of the withdrawal agreement—may be disapplied with regard to disputes concerning Article 2? Amendment 23A is relevant in that regard.

Clause 15(2) provides that:

“A Minister of the Crown may, by regulations, provide for any provision of the Northern Ireland Protocol or any related provision of the EU withdrawal agreement … to become excluded provision”.


My third question is: does this empower a Minister to disapply Article 5 of the withdrawal agreement, which requires that the provision of the agreement be applied in good faith, in so far as it applies to Article 2 of the protocol? Amendment 31A is relevant in this case.

Clause 15(2) also appears to permit Ministers to designate Article 14(c) of the protocol as excluded provision. My fourth question is: does Clause 15(2) permit Ministers to limit the current powers of the Equality Commission for Northern Ireland and the Northern Ireland Human Rights Commission to refer matters to the specialist committee under Article 14(c) of the protocol? In this regard, Amendment 31A is relevant.

21:15

It is worth pointing out that the equality commission and the human rights commission have been given mandatory responsibility under the dedicated mechanism to deal with Article 2. Northern Ireland courts are currently under an obligation under Article 2 to interpret the equality directives listed in Annex 1, in conformity with the existing and future jurisprudence of the European Court of Justice. Clause 20(2) provides that in proceedings relating to the protocol, a court or tribunal

“is not bound by any principles laid down, or any decisions made, on or after the day on which this section comes into force by the European Court”.

Does this mean that the obligation to interpret the equality directives in conformity with the existing and future jurisprudence of the European Court of Justice ends on the day this section enters into force? In this regard, Amendments 41ZA and 41A are the relevant amendments.

The role of the European Court of Justice is also an issue in Clause 13. Clause 13(1) provides that any provision of the protocol or withdrawal agreement is an excluded provision so far as it confers jurisdiction on the CJEU in relation to the protocol or related provisions of the withdrawal agreement. Article 174 of the withdrawal agreement provides that disputes that go to international arbitration and raise issues of EU law must be referred to the European Court of Justice. This will be relevant as regards disputes regarding Article 2 of the protocol, because the Annex 2 directives apply as EU law. What is the effect of this provision on Article 174 of the withdrawal agreement? In this regard, Amendments 19A and 21A are relevant.

Clause 22(2)(d) of the Bill provides that:

“Regulations under this Act may make any provision that could be made by an Act of Parliament (including provision modifying this Act).”

Does Clause 22(2)(d) enable the ministerial powers provided by Clause 9 or 10 to override the application of Section 7A of the withdrawal agreement Act 2018 to Article 2? In this regard, Amendments 15A, 15B and 54A are the relevant amendments.

Since these questions are, in some cases, highly technical in their nature and as I have already referred to, I shall understand if the Minister is more comfortable writing to me subsequently, but I expect a detailed response to each of these questions at some point before Report. My last question, however, calls for an immediate answer. To the extent that the operation of Article 2 is adversely impacted by the Bill, resulting in the UK violating its obligations under the protocol and the withdrawal agreement, how on earth can this specific breach of international law be justified under the doctrine of necessity?

Therefore, it is unclear whether the Government intend to damage Article 2 or whether Article 2 is simply unintended collateral damage. I hope it is the latter and that the Government will agree to these amendments, or at least agree to bring forward their own amendments to deal with the problem. If, however, the Government see within their own case to refuse to do so, then the implication is clear: that damaging the operation of Article 2 is intentional. That would have serious consequences, for it would mean that the Government are willing to sacrifice a critically important part of the Belfast agreement in terms of its equality and human rights provisions.

I know that the Government are adamant that the 1998 agreement should be honoured in all its parts, and I fully comply with that. Now they have the opportunity to demonstrate that this commitment is sincerely meant. I hope tonight in your Lordships’ House and in subsequent correspondence to me, which I hope the Minister will place in the Library, that undertakings can be given that Article 2 is being protected at all costs.

[Lord Deben (Con)]

My Lords, the noble Baroness, Lady Ritchie, has done the Committee a great favour by detailing this particular aspect of the Bill. She has shown that the powers which the Government are seeking to take cover so much that none of us has any idea whatever as to what it may mean. No doubt, the Minister will be able to write a letter which details the answers to each of her excellent questions, but behind those questions is the fundamental falsehood of this Bill. The Bill gives to Ministers powers the strength, width and depth of which none of us have any idea, and the Government have even less idea, clearly, because if they did, they would have restricted those powers and would not have asked this House to accept a proposition which is manifestly undemocratic and which could not be accepted by any democratic House in any country in western Europe.

By the noble Baroness’s detailed forensic explanation of her particular interest, she has revealed the basic falsehood in the Bill and the reason that many of us are not going to allow it to pass, because it is contrary to everything that we have ever done in our political lives. I have been in politics in one House or another for more than 40 years, and no one has ever suggested a Bill of this kind ever before. Ministers had better understand just how serious this is.

I want to say one thing about Ministers too. Having been a Minister for 16 years, which is longer than most people are in post, I learned how important it was to have parliamentary restrictions—how important it was that civil servants could say to you, “I’m afraid, Minister, you can’t do that because that requires Parliament’s acceptance.” It was a vital part of the democratic process. We are being asked to remove that from Ministers, and I say to my noble friends that it is very bad for them, as Ministers, because it is that restriction and control which ensure that they do not move beyond where they ought to go merely because it is convenient.

The last thing that I will say about the excellent offering of the noble Baroness, Lady Ritchie, is this. However detailed the answer is, it will not overcome the fact that any promise made in this House can be taken apart if we give the Government these powers. It is not for Ministers to promise us things, because, if the Act gives them powers, however fine they may be—and what a fine list of Ministers we have—their successors will be able to use these provisions in a way which undermines any promise made to the noble Baroness, Lady Ritchie. That is why I wanted to come in particularly to congratulate her, because she has revealed the fundamental falseness of this whole proposition and the reason why this Bill, of all Bills, should not be passed by this House.

[Lord Bew (CB)]

My Lords, I rise to comment on the nature of the Bill, which has now taken on gargantuan proportions. It is a raging beast running through our constitutional rights and liberties.

However, to be clear cut, it is a good deal more modest. It says that there will be no hard border. It guarantees that it will protect the European single market. Just before the dinner break, the noble Lord, Lord Purvis, pointed out that, even if the Bill were implemented, it would not restore Northern Ireland completely to the UK single market in some pure form. He was quite right but it rather misses the point that this Bill is significantly more modest.

As for human rights, a very serious topic—the record of the noble Baroness, Lady Ritchie, in this respect is unequalled—the fact of the matter is that the Bill’s focus is the trade aspects of Articles 5 to 10. It is an attempt to remodel them so that it could reasonably be argued that the commitment in the protocol that the UK single market will be protected is lived up to rather better than it currently is. This seems entirely reasonable to me. I understand that there is a new doctrine in the House: if we read a document, we are all struck dumb by what was in the protocol and cannot even think. All further thought and debate about it is now over, as some mental trauma afflicts us all and we are so lost in admiration for it, but it is a problem. One of the many problems is this: there is a commitment to protecting the UK single market but we have many examples of how it is not protected.

However, the Bill is more limited than many would guess from listening to our discourse today. The crucial point with respect to this amendment is that Article 2 is not the target. That article and its points on human rights remain untouched by this Bill. It is Articles 5 to 10, which deal with the way trade is to be conducted, that are the target of the Bill. The Bill is therefore much more limited, and possibly less of a threat to our constitutional traditions, than has been said.

Above all else, there is a very simple thing that nobody seems to accept is critical: rather than saying, “We’re terribly sorry about the democratic deficit and so on,” how do you respond to the communities in Northern Ireland, who have a right under Article 1 of the international Good Friday agreement to have their aspirations protected by the sovereign Government and are saying, “We have a major problem here: the major issue of our alienation”? That seems to have disappeared entirely. For all its problems, at least the Bill is an effort to do this.

I am not convinced that the constitutionality of the United Kingdom and its great provisions are incredibly protected or defended by saying, “We just could not care less about that question.” This is about a more complicated balance. Is it not obvious that there is a balance to be found here? I desperately hope that it is reached in the negotiations with the EU. Is it not obvious that these strong, dramatic statements on both sides are not helpful in the struggle to reach the balance that must be found?

21:30

[Baroness Ludford (LD)]

My Lords, I want to bring the focus back to Article 2. The noble Lord, Lord Bew, said that this Bill is modest but the problem is that the law of unintended consequences could come into play here.

My noble friend Lord Purvis of Tweed coined the phrase “Rumsfeld clauses”. I do not want to detract from his trademark on that phrase—he will kill me—but, as concerns Article 2, the Bill shows some evidence of having been written on the back of an envelope. Concerns about human rights and equality have been at the heart of the conflict in Northern Ireland, so those concerns were central to the Good Friday agreement.

Thus Article 2 of the protocol, ensuring a non-diminution of the wide range of rights set out in the Good Friday agreement, is a key clause. However, there are worrying implications of the Bill for human rights and equality protections, which are in danger of being overlooked. The Northern Ireland Human Rights Commission and the Equality Commission for Northern Ireland point out that the Explanatory Notes to the Bill make no reference to any consideration having been given to compliance with Article 2 of the protocol. Those two commissions have previously recommended that this should be the case regarding all relevant legislation. I understand that the Leader of the House of Commons, the right honourable Penny Mordaunt, is talking about draft guidance to Bill teams on this matter. This is in response to concerns that have been raised for quite a few months now by various committees, such as the Northern Ireland Affairs Committee and Women and Equalities Committee in the other place, the Joint Committee on Human Rights, on which I have the pleasure to sit, and our own Northern Ireland Protocol Sub-Committee. They have all raised concerns about compliance with Article 2 of the protocol.

The Government gave assurances about their commitment to Article 2, and it is true that this article gets a degree of protection under the Bill; for instance, that Clause 15 does not permit Ministers to make regulations defining Article 2 among “excluded provisions”. However, even Clause 15 needs completion, as the noble Baroness, Lady Ritchie, pointed out. The logic of protection of Article 2 is far from fully reflected in other clauses of the Bill. Hence these amendments—and I support all those tabled by the noble Baroness, Lady Ritchie, not just the two I have co-signed—propose a strengthening of Clauses 9, 10, 13 to 15 and 20.

This Government do not like the European Court of Justice, but its role is essential at various points in relation to Article 2. That article includes a commitment to keep pace with EU laws, as the noble Baroness pointed out, with EU law developments falling within the scope of the six equality directives listed in Annexe 1 to the protocol. As these directives are updated or replaced under the normal process of EU legislation, the UK Government are committed to ensuring that domestic legislation in Northern Ireland reflects any substantive enhancements in relevant protections. There are also other relevant EU laws beyond the six equality directives that underpin rights in the Good Friday agreement, such as the victims’ directive, the parental leave directive, and the pregnant workers’ directive.

The Government are committed to ensuring that there will be no diminution of protections as contained in relevant EU law on 31 December 2020. The Northern Ireland Human Rights Commission and the Equality Commission for Northern Ireland have acquired additional powers to oversee the Government’s commitment under Article 2. However, it is essential that Clause 20, which removes the binding nature of judgments of the European Court of Justice, is amended to ensure that the dynamic alignments—the keeping pace—guaranteed under the protocol for citizens’ rights in Northern Ireland can be delivered. The same applies to Clause 13.

The UK-EU joint committee supervises the implementation of the withdrawal agreement, but where there is a dispute regarding the interpretation of EU law which the joint committee or the arbitration panel cannot resolve, then under Article 174 of the withdrawal agreement, the ECJ must be asked to give a binding interpretation. This needs to be recognised and incorporated in Clause 13.

I mentioned Clause 15. The remaining problem there is that it does not prevent Article 14(c) of the protocol, which provides for the UK-EU specialised committee to consider matters brought to its attention by the two commissions in Northern Ireland—human rights and equalities—from becoming excluded provision by sort of oversight. The same applies to the lack of protection of the protocol’s Article 15, which provides for a joint consultative working group on the effective operation of Article 2.

The other amendments in this group raise similar and related issues. For reasons of time, I will not dwell on them. I am sure that noble Lords get the drift. One is left to conclude that there was either a lack of thorough preparation on the Bill—hence my quip about the back of an envelope—or a disturbingly cavalier disregard for Article 2 of the protocol. I am not sure which is worse. Neither is excusable, but I hope the Minister can tell me that the Government will take away especially all those excellent, very dense and precise questions raised by the noble Baroness, Lady Ritchie. Quite honestly, what is in the Bill at the moment is not remotely satisfactory to honour and safeguard Article 2 of the protocol.

[Lord Dodds of Duncairn (DUP)]

My Lords, these amendments relate to Article 2 of the protocol. However, it is clear that Articles 1 and 2 subject that protocol to the prior treaty, the Belfast agreement. That is the fundamental point that must not be overlooked. There is merit in examining in detail what, for instance, Article 2(1) says, because it lends weight to arguments that we have advanced on our side and that have been advanced very eloquently by the noble Lord, Lord Bew. Article 2(1) specifically places an act of duty on the UK Government. That duty is as follows:

“The United Kingdom shall ensure no diminution of rights, safeguards and equality of opportunity as set out in that part of the 1998 Agreement entitled Rights, Safeguards and Equality of Opportunity results from its withdrawal from the Union”.


However, the operation of the protocol, as it is currently being operated and is designed to operate, is diminishing the rights set out in

“that part of the … Agreement entitled Rights, Safeguards and Equality of Opportunity”

and in the Belfast agreement, which sets out

“the right to pursue democratically national and political aspirations”.

That applies right across the whole remit of lawmaking in the Northern Ireland Assembly. Up until 31 December 2020, the people of Northern Ireland were represented in all the lawmaking to which they were subject.

However, since then, more and more laws are being applied that have been developed by the European Union, in which Northern Ireland representatives have absolutely no representation whatever. It is helpful that we are looking at Article 2. The operation of the protocol is therefore actively diminishing the Belfast agreement’s

“right to pursue democratically national and political aspirations”.

People in Northern Ireland can currently not do that—by standing for election or electing someone to the relevant legislature, whether here at Westminster or at Stormont—because they cannot make any laws. They have no say in any laws to which the people of Northern Ireland are subject in over 300 areas, hence the need for the Bill, which will return lawmaking powers for goods destined for Northern Ireland to a legislature within the United Kingdom.

I have listened to the outrage—as the noble Lord, Lord Bew, described it very well—that has been expressed about the powers that will be taken by Ministers. However, there seems to be little or no outrage felt at all about the absolute lack of any democracy whatever when it comes to whole swathes of laws over the economy in Northern Ireland. Never mind giving the powers to Ministers, or bringing forward regulations or statutory instruments capable not of being amended but at least of some scrutiny in a United Kingdom legislature—these are laws being brought forward on a dynamic basis, aligning Northern Ireland to EU law, different from UK law in many cases, with no scrutiny, say, vote, or anything else by anyone elected in Northern Ireland.

Where is the outrage about that? Where are the fulsome expressions of how this is a travesty of democracy, the like of which has not been seen—I cannot count any kind of precedents for it. The noble Baroness, Lady Ritchie, referred to the idea of a stool that has legs being cut off it. It reminds me of the description of the Belfast agreement as amended by the St Andrews agreement: a three-legged stool, with strands 1, 2 and 3; strand 1 being the internal affairs of Northern Ireland, the Assembly and so on; strand 2 being north-south; and strand 3 being east-west. When you interfere and cut the leg of the east-west relationship, which is what has happened as a result of the protocol, and you also interfere with the cross-community voting mechanisms of the Assembly itself in order to undermine any kind of unionist opposition to the protocol, you are cutting away at the legs of the Belfast agreement as amended by St Andrews. That is the reality, and, as the noble Lord, Lord Bew, said, we need to focus on the fundamental problem, which is that the Belfast agreement is being undermined by the protocol. Until it is sorted out, there will not be proper functioning of that agreement.

[Lord Purvis of Tweed (LD)]

My Lords, I want to rise very briefly in support of these amendments and also to say that my noble friend Lady Ludford made an extremely clear and very good case. I just want to add three very brief points.

The first is that I refer the noble Lord, Lord Dodds, to Hansard in 2019 and my contributions, among others from these Benches. We debated these issues and highlighted them, and he knows that. I am sure this evening it is just rhetoric in our Committee. He knows we have raised the concerns that he just outlined now. They are why we opposed it. So I do not think he can present that fact towards these Benches.

The second is that in my view Article 2 of the protocol should not be seen in a static form. Article 2(1) states:

“The United Kingdom shall ensure that no diminution of rights … results from its withdrawal from the Union”.


This is a permanent agreement, a permanent commitment, and therefore it cannot be seen that those that were in place in 2019 are now kept in aspic. So my noble friend is absolutely right that if you are taking away what is case law and when those rights and freedoms protected by Annexe 1 powers are adapted, unless they are dynamic, there is a diminution of those rights, by definition. The Bill proposes retaining them in aspic. The noble Baroness, Lady Ritchie, is absolutely right to highlight the fact that those Article 2 rights need to continue to be dynamic.

I know the hour is late, but I want to remind the noble Lord, Lord Bew, and others of Northern Ireland Protocol Bill: UK Government Legal Position, which is the founding basis upon which this Bill has been brought for our consideration. The final sentence of the penultimate paragraph is:

“The UK urges EU Member States to provide a new negotiating mandate to the Commission, wide enough to change the terms of the Protocol to respond to the full range of issues addressed by this legislation.”


So far, I have not heard a squeak from any Minister saying that the position of the Government is still that there should be a new negotiating mandate from the Commission to EU member states. I have not heard that; I am willing to be intervened on, or, if not, I want to hear from the Minister whether that is still the position. That was the legal position of the Government: that they are seeking a new negotiating mandate from the Commission. It is there in black and white, but I have not heard whether that remains the same. When it comes to putting faith in the negotiations, what is the basis of these negotiations if the Government’s legal position is that there has to be a new mandate and that is not forthcoming?

21:45

The third and final point I want to make in support of the comments of the noble Lord, Lord Deben, is that two committees of our House have now highlighted the unprecedented nature of this. With his experience as a Minister operating and then implementing legislation, he should be listened to. Whenever a Parliament passes something considered unprecedented, it immediately becomes precedent. Of course, we cannot bind our successors, but Ministers will be able to say as soon as this is done that this precedent is not tightened; of course it is not tightened. This is why we have gone from Henry VIII to Donald Rumsfeld. The breadth becomes wider and wider and, unless we say no, the ability to prevent that precedent becomes even harder; that is why these amendments are so important.

[Lord Bew (CB)]

My Lords, I will comment again briefly. I have said on the Floor of this House during these debates that I did not consider it necessary to reopen the mandate. If the EU can genuinely commit itself, as it is committed in the protocol, to defending the Good Friday agreement in all its parts, although it has not really understood what that means, my personal view is that that would be enough. I can understand why the Government feel the EU should reopen the mandate, but it is not a problem for me. I accept the point and I believe there could be successful talks without the reopening of the mandate; that is, providing that the EU accepts what it said itself that this is about protecting the Good Friday agreement in all its parts. As long as that part of the commitment, which has already been made, is upheld, I think there is a good prospect for these talks.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I open by thanking my noble friend Lady Ritchie for tabling this group of amendments. It has provoked an extremely interesting debate, with some strongly held views. First, in welcoming these amendments, my noble friend built on the contribution of my noble friend Lady Kennedy of The Shaws, who spoke last week about the importance of preserving the rights of people from all communities. The withdrawal agreement was not about the practicalities of trade; first and foremost, it was about setting out matters relating to the rights of citizens. Article 2 of the protocol reflects this, with the Government having committed to

“no diminution of rights, safeguards or equality of opportunity”

under the 1998 agreement.

The concerns raised by my noble friend Lady Ritchie are legitimate and need a detailed answer from the Minister. The Government’s obsession in relation to the European court is not helpful when it comes to questions about the rights of individuals. As my noble friend said, this is indeed an opportunity for the Government to show that they are protecting Article 2 at all costs.

The noble Lord, Lord Deben, asked a couple of very important questions. I think I wrote down correctly that he said that the Government do not even know the extent of the powers they are asking for in this Bill. That is quite a statement to make. He also gave a very telling comment about the importance of parliamentary restrictions when one has the responsibilities of a Minister. I thank him for making those points.

The noble Lord, Lord Bew, had a different view. He said that the Bill is less important than the noble Lord, Lord Deben, seemed to imply and that really the focus was on Articles 5 to 10; they are really the target of the Bill, not Article 2. I would be interested to see how the Minister reconciles those two points of view.

The noble Baroness, Lady Ludford, spoke of the law of unintended consequences. She went into some detail—almost the same level of detail as the noble Baroness, Lady Ritchie—with a number of questions that I hope the Minister will be able to answer, maybe in writing at a later stage.

The noble Lord, Lord Purvis, asked some interesting questions and reminded us all that two committees have highlighted the unprecedented nature of the Bill. This is an opportunity for the Minister to reassure us that the Article 2 rights can indeed be dynamically maintained through the Bill.

[Lord Caine (Con)]

My Lords, as ever, I am grateful to the noble Baroness, Lady Ritchie of Downpatrick, for her amendments, which have provoked a wide-ranging debate at this late hour. I put on record my acknowledgment of her forthright defence of human rights in Northern Ireland over very many decades.

I note that some of the amendments that have been debated this evening follow on from briefings and comments made by the Northern Ireland Human Rights Commission and the Equality Commission for Northern Ireland, both of which are important institutions that were established under the 1998 agreement and were set out in the Northern Ireland Act 1998. They perform a hugely important function, as noble Lords have pointed out, as part of the dedicated mechanism under Article 2 of the protocol. I do not think there is any difference between us on that point.

I therefore reaffirm at the outset that the Government are committed to Article 2 and to ensuring that rights and equality protections continue to be upheld in Northern Ireland. If noble Lords will forgive me, I think I have long enough experience in Northern Ireland itself to understand the importance of those protections. That is why Article 2 is explicitly protected from being made an excluded provision by Clause 15 in the Bill. To be clear, the Government will not do anything to undermine the provisions of Article 2. We believe that the Bill gives us all the powers we need to ensure that we can protect it. The noble Baroness’s amendments therefore seek to address problems that we do not envisage arising from the Bill.

I could go into great detail now but, given the lateness of the hour, I will say that we will continue to look at these issues as we consider plans for secondary legislation under the Bill. We will be particularly mindful of any interactions with Article 2, given the interest of the Committee. In that spirit, I look forward to receiving the detailed questions from the noble Baroness in writing. Of course, I give her an undertaking that we will provide her with very detailed responses, which will be placed in the Library well in advance of Report so that noble Lords have a chance to consider them.

On the noble Baroness’s specific question, Article 2 is not excluded and cannot be. Section 7A of the European Union (Withdrawal) Act 2018 will always apply. None of the provisions that the noble Baroness mentioned ceases to apply to Article 2 under this Bill, including Article 13(3), the arbitration provisions, Article 5 of the withdrawal agreement and Section 7C of the European Union (Withdrawal) Act. As I say, I am happy to put this down in much more detail in writing so that all noble Lords will have a chance to consider the responses.

On the point made by the noble Lord, Lord Purvis of Tweed, regarding the EU negotiating mandate, I am happy to confirm that the Government are still engaging with the EU in talks, and we are clear that movement from the EU is needed that goes beyond its 2020-21 proposals. We need to be able to make changes to the protocol.

To conclude—

[Lord Purvis of Tweed (LD)]

I know that it is late; it is very kind of the Minister to give way. Just so we are crystal clear, that means that we have formally sought EU member states to seek a new mandate from the Commission.

[Lord Caine (Con)]

I am sure that the noble Lord will forgive me if I do not give a running commentary on the negotiations. I have set out the Government’s position, and I do not really want to be drawn beyond it.

[Lord Deben (Con)]

I am sorry to interrupt my noble friend, but when he replies to the points made by the noble Baroness, Lady Ritchie, will he answer the question not just whether the Government will do these things but whether they would have power to do these things? That is the question that most concerns me and many on this side of the Committee.

[Lord Caine (Con)]

I am grateful to my noble friend, and I will ensure that the answers to the noble Baroness are as full and detailed as possible.

In conclusion, given the lateness of the hour and the need to make progress, I genuinely believe that the aims of the Government, the noble Baroness and other noble Lords who have spoken in the debate this evening are broadly aligned. There might be differences of approach, but we do not believe that the amendments are required. I will write to the noble Baroness in detail and, in that spirit, urge her to withdraw her amendment.

[Baroness Ritchie of Downpatrick (Lab)]

My Lords, I thank all noble Lords who have spoken in this debate, including the Minister who responded. I obviously look forward to the detailed answers following the submission of my speech, outlining the questions to him. What the noble Lord, Lord Deben, has just expressed, and it is the thread running through the contributions made by noble Lords this evening, is the fear of the power that Ministers will have through the regulations. That will have a damaging impact on Article 2, perhaps by default, but it is the worry and the concern of both commissions in Northern Ireland. I understand that they have a statutory duty under the dedicated mechanism to deal with these issues, but it might be useful for the Government to enter into discussions. I do not know whether that is possible, because one is the responsibility of the Northern Ireland Executive and the other is the responsibility of the Northern Ireland Office, but it might be useful, because of their joint responsibility, to have further discussions with them in relation to these issues.

Because of the lateness of the hour, I look forward to the answers from the Minister. I believe that the problem lies with the further powers in the regulations that are yet to be revealed to your Lordships’ House. At this stage, however, I beg leave to withdraw the amendment, with the proviso—dependent on the answers received—that I might bring some of these issues back on Report.

Amendment 15A withdrawn.

Clause 9 agreed.

Clause 10: Meaning of “regulation of goods”

Amendment 15B not moved.

Clause 10 agreed.

Clause 11 agreed.

House resumed.

House adjourned at 10 pm.