Grand Committee
Arrangement of Business
The Deputy Chairman of Committees (Lord Duncan of Springbank) (Con)
My Lords, you know the drill but, for the record, if there is a Division in the Chamber while we are sitting, the Committee will adjourn as soon as possible and resume after 10 minutes.
Merchant Shipping (Standards of Training, Certification and Watchkeeping) Regulations 2022
(2 years ago)
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Baroness Vere of Norbiton
That the Grand Committee do consider the Merchant Shipping (Standards of Training, Certification and Watchkeeping) Regulations 2022.
The Parliamentary Under-Secretary of State, Department for Transport (Baroness Vere of Norbiton) (Con)
My Lords, these draft regulations implement amendments to the International Convention on Standards of Training, Certification and Watchkeeping for Seafarers 1978 into law. They update the training requirements for seafarers on specific types of ship and make further provision for the approval of training providers, including express powers to suspend or cancel approvals, and to make provision to allow the Government to charge for those approvals.
The STCW amendments came into force internationally on 1 January 2017 and 1 July 2018, and the draft regulations were laid before your Lordships’ House on 31 October 2022. They revoke and replace the current regulations implementing the STCW convention, the Merchant Shipping (Standards of Training, Certification and Watchkeeping) Regulations 2015. As such, they restate existing regulatory provision in this area, and make new provision.
The International Maritime Organization adopted the STCW convention in 1978; it came into force internationally in 1984. The IMO is a specialised agency of the United Nations and is responsible for facilitating the development of international rules for shipping. The STCW convention and code—an integral part of the convention—contain standards of competence for seafarers internationally. Because human error is recognised as the cause of a large percentage of maritime casualties and pollution incidents, the STCW convention addresses this problem by providing minimum standards of knowledge, experience and professional competence for seafarers.
The United Kingdom is a member of the IMO and a signatory to the STCW convention, to which there are a further 164 parties, estimated to represent the vast majority of global shipping. Being a party to the convention allows the UK to issue internationally recognised seafarer qualifications, which means that UK seafarers can work on ships that operate internationally. Since its entry into force in 1984, there have been a number of revisions to the STCW convention. These latest amendments came into force on 1 January 2017 and 1 July 2018. As a party to the convention, the UK is required to implement these amendments into UK law.
The STCW convention amendments being implemented in the draft regulations relate to training for seafarers serving on ships subject to the International Code of Safety for Ships Using Gases or Other Low-flashpoint Fuels—the IGF code—and seafarers working on passenger ships. These specialised ships require seafarers to have additional training and certification to demonstrate competency appropriate to the responsibilities undertaken by those seafarers on board. This additional training will allow United Kingdom seafarers to take up employment on these ships.
These updated and improved regulations will enhance the employment opportunities for UK seafarers by ensuring a modern training and certification structure that reflects the current and future needs of shipping. This includes: clarifying the definition of “seafarer” to ensure that all persons, including non-employed crew, engaged in the operation or navigation of a pleasure vessel of 24 metres in length or over—or 80 gross tonnes or over—are subject to the regulations; clarifying the position of the Secretary of State in relation to the approval of training providers, ensuring that approvals may be suspended or cancelled where appropriate to do so by providing express provision; introducing a charge for the approval of training providers to ensure that the MCA can approve and monitor training providers who deliver the training required by the STCW convention, in line with the principle of public authorities recovering money spent on services, which would otherwise fall to the taxpayer; and, finally, providing powers to approve equivalents and alternative certification, as permitted by the STCW convention.
Enhancing safety through improving the regulatory regime for seafarers’ training will complement the department’s nine-point plan to support seafarers and introduce new powers to protect maritime workers. Furthermore, these regulations allow the UK to grow its high-quality seafarer training brand worldwide, at the same time as supporting the Government’s Maritime 2050 strategy to support quality training initiatives that raise the standards for seafarers across the globe.
The Government fully supported the development of the STCW convention amendments in the IMO, and the UK shipping industry was consulted throughout their development to ensure that they are modern and fit for purpose. The Government’s proposals for implementing the convention amendments and additional regulatory provision by way of this statutory instrument were the subject of an eight-week public consultation. The MCA has refined the proposals based on the comments received, but no substantive changes have been required.
These regulations will be made under the safety powers conferred by the Merchant Shipping Act 1995, as well as prevention of pollution powers contained in the Merchant Shipping (Prevention of Pollution) (Law of the Sea Convention) Order 1996. The draft regulations also make amendments to the Merchant Shipping (Fees) Regulations 2018. This is the part that allows the MCA to charge for the approval of training providers. The draft regulations are subject to the enhanced scrutiny procedures under the European Union (Withdrawal) Act 2018, as they revoke the 2015 STCW regulations, which were made under Section 2(2) of the European Communities Act 1972. The regulations do not themselves implement any EU obligations.
These draft regulations implement amendments to the STCW convention for seafarers and improve the regulatory regime by raising standards of training and education. The draft regulations will continue to allow the United Kingdom to maintain its role as a world leader in seafarer training and education. I commend these regulations to the Committee and beg to move.
Lord Greenway (CB)
My Lords, I thank the Minister for outlining these new regulations that, as she has explained, implement amendments made to the STCW convention. I think we were all taken aback by the size of these regulations; in fact, if I took time to read right through them, it might take almost as long as these regulations have taken to reach this House. We are playing catch up again, but I am pleased that we are now getting on with it, and I have no real queries with the regulations.
I see that pleasure craft are included, and I think there are limits. I cannot remember what the length and tonnage is for pleasure craft, and I have not had the time to work it out, but could the Minister tell me if it brings the Thames Clippers operating on the Thames here into the remit of these regulations?
Lord Berkeley (Lab)
My Lords, I also congratulate the Minister and her officials. I think I should also congratulate the MCA, which has probably done most of the work and produced some amazing documentation; I think we are all very grateful to it. As the noble Lord, Lord Greenway, says, it has taken a lot of reading and I will not go through many of these things, but I have a couple of questions for the Minister.
First, concerning the heading “Application” in Part 2, the noble Lord, Lord Greenway, asked about the Thames Clippers. I saw that the minimum weight was 80 gross tonnes and the length 24 metres. Which ships on the Thames does this apply to, as he asked? We debated life jackets on ships some time ago and I trust that has all been sorted out.
I have another question on this section. We see that it does not apply to foreign- registered vessels, which we know, but in Regulation 5(2)(e) we get an exclusion for
“wooden ships of primitive build”.
Can the Minister say what a wooden ship of primitive build is? Does it have to be over or under 24 metres? Is it powered by sail or motor, and where does it go? The only criterion seems to be that it should have a UK flag, if it ever had one. I do not know about that, but I suppose my concern is that these regulations go into great detail. I notice that only 25 UK-registered ships are owned by small businesses, and you can understand why: if they have to plough through all this and comply with it, the answer is they probably will not. That is quite a worry.
I am not sure how much of these provisions will apply to foreign-registered ships in UK waters. Does anybody check on those? Do the other ports of registry for ships have similar requirements to this—let us hope they do—or will we have one law for the British ones and one law for the rest of the world? As the Minister said, we want to encourage UK-registered ships but if this is the only country of registration that requires 200 pages of documents to be gone through, that is hardly an incentive.
Finally, I have often raised the question of enforcement before on different things. The Minister mentioned human error in her introduction. There have been a couple of interesting accidents with ships this summer, including the MV “Alfred”, which seemed to hit an island in Orkney on 5 July. One has to question how, in broad daylight, that happened with safe manning. I am sure we will see the results of an inquiry into that. I hope that in implementing and enforcing these regulations, the MCA will be given enough staff and resources to do it properly—it will be largely down to them—so that we have a good reputation for following these regulations, rather than just publishing more bits of paper.
Lord Jones (Lab)
My Lords, I too thank the noble Baroness for her helpful introduction and exclaim, as others have, at the huge challenge that these pages offer to those who have little or no expertise on what is clearly a vital matter. This is a doorstep of regulations, Explanatory Notes and, shall we say, additional pages. Taking into account the principle that the Executive are to be questioned and held to account, which in this instance is virtually impossible by what might be called a Back-Bencher, I want to ask the Minister about the importance of training, which is now a priority for all Governments in succession.
I am looking at page 37 and its references to nautical colleges. Might the Minister say who reports to her department regarding assessment and inspection there? Does she know, or is her department able to say, how many nautical colleges there are? Is it possible for her to say what the number of students is in the average nautical college? Where might they be located?
On that basis of attempting, in principle, to question the Minister, I say that time is of the essence so I shall sit down.
Baroness Randerson (LD)
My Lords, first, I thank the Minister for her introduction. I declare an interest as the chancellor of Cardiff University, which runs courses on maritime law, shipping, logistics management and transport education—all pretty intrinsic to the topic that we are looking at this afternoon. As has been said, these regulations relate to the updating of the STCW convention, which was the first international treaty to establish basic requirements and qualification standards for seafarers. However, we have come a long way since then, so the delay in this latest update is, as the noble Lord, Lord Greenway, said earlier, unfortunate.
The regulations update previous regulations; they are therefore important in enabling UK ships to trade and UK seafarers to work internationally. They are welcome because they broaden the scope of the 2015 regulations and, as has been said, now include pleasure vessels. Does this mean that the regulations will include people crewing their friends’ yachts, for example? If so, how large does the yacht have to be before it comes into scope? It has always surprised me that so little experience is required before people put to sea in leisure boats of one sort or another, because we require so much of individuals before they are allowed to drive on the roads. We require very little of people before they set off towards the horizon on what is basically a road that moves up and down unpredictably. However, being serious about this, if these regulations start to extend to new categories of people, they will of course have an impact on small businesses that build, sell and maintain boats.
There are very detailed specifications here for training providers, so my question for the Minister is this: where precisely does all this detail come from? Obviously, it comes via the IMO and is set out under the auspices of the MCA, but how exactly is it aligned internationally? Is it identical from one country to another, or are we able to vary our standards and specifications? In the past, we would have aligned ourselves with the EU rules, but of course that no longer applies, so how much freedom do we have to interpret the standards?
Paragraph 12 of the Explanatory Memorandum refers to a specific impact for the instrument of “£1.6 million per year”, but there is absolutely no detail as to how that figure was reached. What does it mean? How did those who write the EM get to that figure, because there has been no full impact assessment on the grounds that the instrument does not really affect small business? I would be interested to know the calculation, or at least the basis for the calculation, there.
Finally, I take the opportunity to thank the Minister for a copy of her letter to the noble Lord, Lord Hodgson of Astley Abbotts, the chair of the Secondary Legislation Scrutiny Committee. That sets out in detail, item by item, the overdue maritime legislation. I congratulate the Minister on making progress with this. It does not look good but it looks a great deal better than it did a few months ago, so clearly a lot of hard work has gone into it. I have a couple of questions about the ones we have not dealt with yet. For speed, I will refer to the itemised numbers on the Minister’s list. We are told that items 8 and 16 are expected in March next year and item 9 by mid-year—let us be generous and call that July—but items 11, 12, 13, 18, 19 and 20 all just say “2023”. I would be grateful if the Minister could give us a little more detail. Do we have a whole calendar year still to wait for those six important pieces of legislation that are already seriously overdue, or can we realistically expect them to come through mid-year? What will the Government do to ensure that we keep up with maritime legislation more efficiently in future?
Lord Tunnicliffe (Lab)
My Lords, I too thank the Minister for introducing these regulations. The Government are right to make further provision for the approval of training providers, including powers to remove that approval and to make provision to allow the Government to charge for approvals.
Across the world, 90% of global trade is made possible by the maritime sector, which is why it is so important that it is properly regulated. Highly skilled seafarers are incredibly important to the sector, and anybody with responsibility for safety at sea must be trained. I therefore welcome these amendments to the 1978 International Convention on Standards of Training, Certification and Watchkeeping for Seafarers.
However, I would appreciate clarification on three minor points. First—I think this question has already been asked—the Explanatory Memorandum says:
“The impact on business, charities or voluntary bodies is estimated to be £1.6 million”.
Can the Minister provide a breakdown of this? Secondly, has the department collected information on how many other parties to the 1978 convention have implemented these amendments? Finally, just yesterday the department published new merchant shipping regulations. Should the House expect further merchant shipping legislation next year?
One or two speakers have commented on the size and thickness of the document. I compare it with the similar regulations for an airline pilot; they are substantially the same volume. In his career a commercial pilot is required to understand them all and, essentially, absorb the basic principles. This is what keeps aviation safe, and I am sure this is what will keep seafarers safe. The hazards are very similar. Aeroplanes are in the air, and therefore are intrinsically dangerous because they might meet the ground in an unscheduled way, but they can usually avoid difficult situations by virtue of their speed. Ships are much more vulnerable, in a separate way, being at sea and subject to the weather and the elements and not having the provision to run away from trouble in nearly the same way as aircraft. The responsibilities that the senior people on ships have, particularly with the enormous numbers of passengers that some ships carry, are about right.
I also heard some words which might be taken to say that somehow these standards might be reduced to facilitate more ships accepting regulation under a UK flag. That would be totally wrong. I have not read them all, but I read the process that created them and it seems that they are the right standards and that we should not move from them. They will make shipping safer, and that is an entirely good thing.
Baroness Vere of Norbiton (Con)
My Lords, I am grateful for such a fine turnout in this short debate on maritime safety standards. I will, as ever, try to answer as many questions as possible and will write with further information in due course. I will start with the comment by the noble Lord, Lord Jones, about the size of the regulations because he is right: they are a weighty tome. The reason for this is that in our discussions with the industry it was felt that revoking the 2015 regulations and putting them all in one place would be the better option rather than having some sort of supplementary regulations to the originals, which, quite frankly, may have been confusing. As the noble Lord, Lord Tunnicliffe, said, it is expected that people will read and understand these regulations, and having them all in one place is beneficial. Many of the regulations will not have changed. Seafarers also have the support of merchant shipping notices, which come from the MCA, and of their professional associations in understanding the applicability of the regulations to what they do.
A second question raised by the noble Lord, Lord Jones, was about the number of nautical colleges. There are 160 UK approved training providers and nine nautical colleges: Plymouth, Southampton, South Shields, Fleetwood, Lowestoft, Glasgow, Portishead, Shetland, and Grimsby. They take about 1,500 people a year, so this is quite a significant industry and of great benefit to the UK maritime sector. In addition to the colleges and the approved training providers, tens of thousands of safety courses go on all the time.
On the applicability of the regulations, one of the things that might be slightly missing from the discussion, and perhaps I did not explain it well in my opening speech, is that the vessels need to be seagoing—so, of course, Thames Clippers do not count, unless they have got lost, but they have high standards and I am not concerned about the level of safety on Thames Clippers. The regulations apply to pleasure vessels. They were not included in 2015 regulations, which is one of the things that these regulations fix, as is right.
I will have to write to noble Lords about whether you can crew your mate’s 24-metre pleasure vessel. I do not have any friends with a 24-metre pleasure vessel. We will have to write about whether having ad hoc people on board to help out is okay or whether they too should have the right training.
I turn to the international nature of these regulations and maritime in general; this picks up point raised by the noble Lord, Lord Tunnicliffe, and the noble Baroness, Lady Randerson. Shipping it is so amazingly global. It does not make sense for one country to set standards that are different from those of another country. The UK is very much at the forefront of improving safety and welfare for people at sea. That is why we speak to our colleagues in the IMO to make sure that these standards are appropriate.
Noble Lords may have noticed that we have included ambulatory references in the regulations. This is now becoming fairly commonplace when dealing with IMO-type regulations. It does not mean a lack of scrutiny; it means that we engage with the industry and reach agreement with the IMO to improve standards over time. I am afraid I do not have the number for the other countries that have already put this into place, but I will endeavour to find out. I will come on to the impact on the UK of the slight delay in getting these in place.
Lord Jones (Lab)
All credit to the department for furnishing this Committee with that magnificent detail.
Baroness Vere of Norbiton (Con)
The department is grateful, as is the MCA. I look forward to the next debate on maritime regulations.
Social Security (Class 2 National Insurance Contributions Increase of Threshold) Regulations 2022
(2 years ago)
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Baroness Penn
That the Grand Committee do consider the Social Security (Class 2 National Insurance Contributions Increase of Threshold) Regulations 2022.
Relevant document: 19th Report from the Secondary Legislation Scrutiny Committee
The Parliamentary Secretary, HM Treasury (Baroness Penn) (Con)
My Lords, in the Autumn Statement, the Government set out their prioritisation for taxation to be fair by following two broad principles: first, that we ask those with more to contribute more; and, secondly, that we avoid the tax rises that most damage business.
Noble Lords will remember that the National Insurance Contributions (Increase of Thresholds) Act 2022 increased the point at which class 1 and class 4 NICs are paid to align with the personal allowance for income tax. As a result of that legislation, almost 30 million working people are better off. We are here today to discuss the final element of the Government’s ambition to align national insurance contribution thresholds with the personal allowance for income tax.
I note that, in its 19th report, the Secondary Legislation Scrutiny Committee raised these regulations as an instrument of interest. The regulations introduce a new threshold within class 2 NICs from which self-employed individuals start to pay class 2 NICs. This will be known as the lower profits threshold. Class 2 NICs will now be due only if profits exceed the new lower profits threshold, set at £11,908 for the 2022-23 tax year.
The new lower profits threshold will be aligned with the personal allowance. However, the threshold is being set at £11,908 for 2022-23 to reflect the fact that personal NIC thresholds were increased from July this year, meaning that individuals will benefit from an increased threshold for nine months of the tax year. For 2023-24, the self-employed thresholds will be set at £12,570. This means that no one will pay a penny of income tax or national insurance contributions on their first £12,570 of income from 2023-24 onwards, allowing people to keep more of what they earn.
However, this measure goes further. Class 2 NICs are the mechanism by which the self-employed become entitled to certain contributory benefits, such as the state pension and statutory maternity pay. To ensure that individuals do not lose access to their benefit entitlement, the existing small profits threshold will be maintained as the point at which the self-employed gain access to certain contributory benefits. This means that individuals will benefit from the increased threshold for paying class 2 NICs without losing their entitlement to contributory benefits.
This measure will apply retrospectively from the start of the 2022-23 tax year, in line with the provisions made in the parent Act. This means there will be no delay in this measure benefiting around 500,000 self-employed individuals, saving them £163.80 a year. Changes will be delivered via the annual self-assessment process for the vast majority of customers, following the end of the tax year.
These regulations fulfil the Government’s obligation to increase the point at which the self-employed pay class 2 NICs. Importantly, they ensure that thresholds are aligned and our tax code is simplified. I beg to move.
Lord Davies of Brixton (Lab)
My Lords, as a supporter and fan of national insurance, I did not want these regulations to pass unnoted. I am a believer in the national insurance system—I guess there are not many of us left—where people pay contributions and that provides entitlement to national insurance benefits.
It has been understood, from the beginning, that there are people in employment and people who are self-employed. For practical reasons, different sets of rules have to apply to each group of workers. Nevertheless, the objective should always be neutrality in the financial impact, otherwise it is bound to give rise to issues of financial arbitrage regarding being employed or self-employed. That is all well understood. I will avoid going off down the IR35 track; there will be plenty of other opportunities to pursue that.
On the face of it—I would be interested in the Minister’s views—this change might be seen as a move towards reducing inequality between the employed and self-employed. However, in practice, it increases the difference. The tell is the fact that there is a cost, in a normal year, of £100 million. In the context of the figures we have seen in recent Budgets, that is not an enormous sum, but it suggests that this is a move away from neutrality and that it further increases the advantages that people perceive in being self-employed as opposed to being employed, with all the problems that flow from that. The background to this is clearly the extent of the acknowledged problem of fake self-employment for financial reasons. Perhaps the Minister would indicate, in broad terms, quite how this change fits in with what I hope is an understanding that there should not be excessive financial advantages in being self-employed.
I heard what the Minister said about the changes to entitlement to benefits. I emphasise that, in achieving neutrality between employed and self-employed contributions, there should equally be neutrality between the benefits paid to people who have paid the different types of contribution.
Lord Tunnicliffe (Lab)
My Lords, I welcome the Minister’s introduction of these technical amendments by His Majesty’s Revenue & Customs. As she outlined, the practical impact is to implement the self-employment element of the Government’s commitment to align the trigger points for national insurance contributions with the income tax personal allowance. The SI will also ensure that individuals with profits at or above the existing small profits threshold but below the lower profits threshold are treated as if they have paid class 2 NICs. This will ensure that those individuals continue to be eligible for the contributory benefits, which is hugely important. We will not oppose the regulations, as they provide some much-needed help for self-employed people in the face of the current inflation crisis and probable recession.
Baroness Penn (Con)
My Lords, I thank both noble Lords for their contributions to this brief debate. We discussed some of these issues when the parent Act was passed. We also discussed issues around the national insurance system with the introduction and then removal of the health and care levy.
In response to the noble Lord, Lord Davies of Brixton, the intention behind this change to the national insurance system, which I think reflects a longer-term ambition in the manifesto to align the income tax threshold and the NICs threshold, and the reason the measure was brought forward last spring, was to provide people with more money back in their pockets at a time when the cost of living was rising significantly. The most effective option to do this, particularly targeting it at lower-paid, self-employed people or workers, was an uplift in the NICs thresholds. Although it may not deliver on the wider ambition to have greater equality between NICs contributions from the employed and self-employed, none the less it had a very good policy rationale, one that the Government were keen to deliver on.
On that longer-term ambition, perhaps I should not have expressed it in that way because I do not think the Government have any intention at the moment to change how employed and self-employed NICs are treated. The raising of the threshold was a measure focused on helping people with the cost of living. It was seen to be an effective way to target resources at those further down the income scale. This SI seeks to complete the process that started with the Act, but we had to take the powers to do this last element because it was a bit more complicated and we needed a bit more time to work it through. I hope that answers the noble Lord’s question.
Money Laundering and Terrorist Financing (High-Risk Countries) (Amendment) (No. 3) Regulations 2022
(2 years ago)
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Baroness Penn
That the Grand Committee do consider the Money Laundering and Terrorist Financing (High-Risk Countries) (Amendment) (No. 3) Regulations 2022.
The Parliamentary Secretary, HM Treasury (Baroness Penn) (Con)
My Lords, these regulations provide the legislative framework for tackling money laundering and terrorist financing and set out various measures that businesses must take to protect the UK from illicit financial flows. Under these regulations, businesses are required to conduct enhanced checks on business relationships and transactions with high-risk third countries. These are countries identified as having strategic deficiencies in their anti-money laundering and counterterrorist financing regimes that could pose a significant threat to the UK’s financial system.
This statutory instrument amends the money laundering regulations to update the UK’s list of high-risk third countries. It adds the Democratic Republic of the Congo, Mozambique and Tanzania to the list and removes Nicaragua and Pakistan. This is to mirror lists published by the Financial Action Task Force, the global standard setter for anti-money laundering and counterterrorist financing.
This is the sixth time we have updated the UK list to respond to the evolving risks from third countries. This update ensures that the UK remains at the forefront of global standards on anti-money laundering and counterterrorist financing. In 2018, the Financial Action Task Force assessed that the UK has one of the toughest anti-money laundering regimes in the world. The UK was a founding member of this international body, and we continue to work closely and align with international partners such as the G7 to drive improvements in anti-money laundering and counterterrorist financing systems globally.
FATF has identified that the Democratic Republic of the Congo, Mozambique and Tanzania must each make a range of domestic reforms to address their non-compliance with FATF standards. These include improving their understanding of risk, increasing the effectiveness of their domestic supervision, supporting money laundering investigations and prosecutions and more effective implementation of sanctions.
FATF found that Pakistan and Nicaragua have made the necessary domestic reforms to improve their compliance with FATF standards, which have been confirmed through on-site visits to both countries. In its October public statement, FATF expressed concern at the potential misapplication of FATF standards by Nicaragua, resulting in the suppression of Nicaragua’s non-profit sector. Therefore, although Nicaragua has been removed from FATF’s list, FATF will continue to monitor this issue to ensure that Nicaragua’s oversight of the non-profit sector is risk-based and in line with FATF standards.
Lastly, this high-risk third country list is one of many mechanisms that the Government have to clamp down on illicit financial flows from overseas threats. We will continue to use other mechanisms available to respond to wider threats from other jurisdictions, including applying financial sanctions as necessary.
This amendment to the money laundering regulations will enable them to continue to work as effectively as possible to protect the UK financial system. It is crucial to protect UK businesses and the financial system from money launderers and terrorist financers. I therefore hope that noble Lords will join me in supporting these regulations. I beg to move.
Lord Tunnicliffe (Lab)
My Lords, I am grateful to the Minister for introducing the latest iteration of the Financial Action Task Force’s list of high-risk countries. As she outlined, this is a routine piece of secondary legislation. These Benches are pleased to support its passage.
I want to pick up on a couple of outstanding questions from the Commons debate on this instrument, which took place on Monday. The Minister’s colleague, Andrew Griffith, noted that the
“removal of Nicaragua and Pakistan does not bring to an end any monitoring of those countries, which are covered by a much broader set of arrangements.”—[Official Report, Commons, Delegated Legislation Committee, 5/12/22; col. 6.]
He talked of an “ongoing duty of care” to fight money laundering but did not go into any detail about what that looks like. My understanding is that the duty of care has often been found wanting. Does the Minister agree with that assessment? If so, what work is under way to strengthen the current arrangements? I appreciate that she may not be able to answer that today, so I would be happy for her to write with further details.
My colleague, Tulip Siddiq, raised the Government’s plans to make future versions of these statutory instruments subject to the negative procedure. We appreciate that parliamentary time is finite and that there is an ever-growing body of secondary legislation for us to consider, in part because the Government keep presenting skeleton Bills full of broad delegated powers. The Commons Minister committed to writing with details of how the Government will ensure that Parliament gets the information it needs to discharge its rightful job of scrutinising such decisions. Will the Minister see that such information is passed on to interested parties in this House?
We came across this problem before with the end of EU laws coming to some extent almost between affirmative and negative regulations. That was in the middle of the pandemic, so it got lost there, but there is a need for something more consultative than the negative procedure. The problem with negative procedures is that they are almost invisible. Unless the Secondary Legislation Scrutiny Committee picks up on them, it can be difficult to realise that the instruments are there. If the Government are to introduce a propensity to use negative procedures more, and we can obviously see some sense in that, I hope they will make sure that they have a rethink about how such negative instruments are brought in front of this House in particular.
Finally, I note that Gibraltar continues to feature on the list, despite assurances that the authorities there are making good progress on implementing FATF’s recommendation. Is the Minister able to offer any further comments on that?
Baroness Penn (Con)
I thank the noble Lord for his questions. I can probably expand on my answers in writing, if needs be. On his point about the procedure used for future updates to this list and parliamentary scrutiny of that, I will certainly ensure that any response from my colleague—I believe the EST took this debate—is copied to Members of this House and answers those points.
In this area, future updates to the list will continue to mirror the findings of FATF as an international standards-setter where it has identified countries as having weak anti-money laundering controls. FATF’s decision-making process is underpinned by a robust technical methodology and has a high level of scrutiny of the multilateral process, which the UK is involved in at all stages. We are committed to continue to provide written updates to Parliament on the outcomes of each FATF plenary, as these inform the list.
On this measure, we consider that the procedural change will have quite limited impact, given Parliament’s full support on all updates to the list so far. We can consider the attendance at this debate as perhaps an indicator of that, but I take the point that updates may not always be uncontroversial. Ensuring that Parliament is kept up to date with the outcome of FATF meetings, from which we derive our list, might be a good way to ensure that parliamentarians feel that they are kept abreast of the changes that might then flow through the negative statutory instrument procedure.
On Nicaragua and Pakistan having been removed from the high-risk third country list and the ongoing monitoring in these areas, I mentioned that the Government have concerns about allegations of misuse of AML powers by Nicaragua. We have agreed that Nicaragua should report in February to FATF members on how it is applying anti-money laundering powers proportionately to charities and civil society organisations. We will consider that report and next steps at the time.
In relation to both countries, the list of high-risk third countries is only one of many measures used to combat illicit finance. There are many other measures available to the Government. I am not sure that that completely answers the noble Lord’s point, so I will make sure I read Hansard and write with any further points that I should make.
Restriction of Hazardous Substances in Electrical and Electronic Equipment (Exemptions) (Fees) Regulations 2022
(2 years ago)
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Lord Benyon
That the Grand Committee do consider the Restriction of Hazardous Substances in Electrical and Electronic Equipment (Exemptions) (Fees) Regulations 2022.
Relevant document: 18th Report of the Secondary Legislation Scrutiny Committee. Special attention drawn to the instrument
The Minister of State, Department for Environment, Food and Rural Affairs (Lord Benyon) (Con)
My Lords, the regulations were laid before the House on 18 October. The Restriction of the Use of Certain Hazardous Substances in Electrical and Electronic Equipment Regulations 2012, also known as the ROHS regulations, restrict the use of 10 substances that were commonly used in the manufacture of electrical and electronic equipment but which have now been proven to cause harm to the environment and/or human health. This is particularly the case when products become waste, with the potential for these harmful substances to be released into the environment or the workplace of those working in the waste treatment sector.
Businesses can apply for exemptions from the ROHS regulations if they need to use any of the restricted substances above the permitted threshold limits in order for products to function safely and reliably. Any such exemptions apply to the product rather than to the specific organisation that applied for the exemption. When the United Kingdom was a member of the European Union, applications for exemptions and the renewal of exemptions were submitted to and considered by the European Commission using delegated powers and the ROHS directive. On leaving the EU, this function was transferred to the Secretary of State by the Hazardous Substances and Packaging (Legislative Functions and Amendment) (EU Exit) Regulations 2020, bringing with it new freedoms to determine the outcome of applications as they apply to Great Britain.
The instrument makes provisions to transfer the costs of undertaking the necessary technical appraisal and public consultations associated with it from the taxpayer to business. This approach is entirely in keeping with the requirements of the Government’s Managing Public Money principles. The charge is set on a cost-recovery basis. Such an approach is common practice in circumstances in which industry is required to apply for regulations, authorisation and licensing to comply with regulatory requirements.
The fee will be £39,721 per application and will be payable on exemption applications received from 6 April 2023. Most of those costs reflect the cost to the Government in contracting with technical specialists to undertake the technical appraisal of each application. It is important that a full technical assessment is made when assessing applications to use restricted substances above the permitted level that could cause significant harm to human health and the environment. That technical assessment will, crucially, include an in-depth analysis of any potential less harmful substitutes that could be used to enable the Secretary of State to make an objective determination on each application received. Applications for exemptions are typically submitted by industry rather than individual businesses, because exemptions are granted to products rather than the organisation that submits the application. Historically, most applications for exemptions are made by trade bodies on behalf of a sector, and we anticipate this collaborative approach to continue, with associated costs being spread across the relevant sector.
I stress that the fee is being charged strictly on a cost-recovery basis, reflecting the appraisal work undertaken. The amount payable will be reviewed regularly. I hope the introduction of an application fee will encourage industry to fully explore the use of less hazardous alternative substances before submitting full exemption applications. Noble Lords do not need me to remind them of the potential harmful effects of lead and mercury on human health and the environment, so we seek to minimise their use.
In line with published guidance, there is no need to conduct an impact assessment as any direct impacts from this instrument are judged to fall under £5 million per year. In any event, the only costs on business arising from this instrument relate to Defra’s appraisal of exemption applications. Costs on public bodies such as these fall within the statutory exemptions for which impact assessments are required.
This instrument was subject to consultation, as it alters existing policy. Unsurprisingly, those likely to be subjected to an application fee in future did not support these proposals. Our proposals are consistent with Managing Public Money principles, but in response to those concerns we have committed to consider the merits of recognising exemption decisions taken by other jurisdictions that have similar ROHS regulations to those in the UK.
The territorial extent of this instrument is Great Britain. This is considered a reserved policy, but the devolved Administrations were engaged in the development of the policy and are content. The ROHS regulations fall within the Northern Ireland protocol; as such, businesses placing product on the Northern Ireland market are bound by EU exemption decisions and, under unfettered access provisions, can subsequently freely supply those goods to the GB market. This does not represent a loophole, as suggested by the Secondary Legislation Scrutiny Committee, but is about ensuring that businesses in Northern Ireland can trade freely in the UK. I commend this instrument to the Committee.
Baroness McIntosh of Pickering (Con)
My Lords, I am most grateful to my noble friend for presenting this statutory instrument. I read very carefully the conclusions of the Secondary Legislation Scrutiny Committee and will go through some of the issues with this Committee this afternoon.
The Explanatory Memorandum sets out very clearly at paragraph 10.1 that a six-week public consultation was conducted which closed on 26 August. That is normally considered a holiday period. Certainly it is when I have always taken my holidays, as I tend to go to northern Europe and that is probably the last bit of good weather and bright sunshine that we might expect. It was a short six-week consultation; I think they normally last 12 weeks. Was there any reason why the consultation was shorter and not carried through to September, which would have given people more chance to respond?
Fifty-three of the 54 respondents objected to the line that the Government took. I will not read it out because it is there and everyone will probably say the same thing this afternoon, but I wonder why the Government overruled those who bothered to reply.
My noble friend said of paragraph 16 of the Secondary Legislation Scrutiny Committee’s response that this is not a potential loophole. I would like to understand why he and the department think that. If Northern Ireland, which is still part of the single market, can export these products to the rest of Great Britain, which is not, and those in Great Britain have to pay the fee, that gives those operators in Northern Ireland a commercial advantage, if I understand this correctly. I would like to understand the background to why my noble friend thinks it is not a loophole or a commercial advantage to the Northern Irish.
Previously, in its conclusions, the Secondary Legislation Scrutiny Committee confirmed that there is no payment for Northern Ireland operators and that 53 of the 54 responses were negative towards the Government’s position. I underline the uncertainty in paragraph 14 of that scrutiny committee report, which says that the view the department has put forward
“creates uncertainty and may be inconsistent with the Department’s declared intention to have a GB-specific, cost-recovery based system for exemptions.”
I take this opportunity to press my noble friend on that.
I have one last question. What will the position of this statutory instrument be under the retained EU legislation Bill? Are we coming back to revisit this, or is this the last time we will look at this statutory instrument?
Baroness Bakewell of Hardington Mandeville (LD)
My Lords, I thank the Minister for his introductory remarks on this statutory instrument.
Previously, applying for an exemption for the use of certain hazardous substances was handled and organised, and the cost was picked up, by the EU. After Brexit, the cost was picked up by the UK taxpayer. The Government are now moving the cost from the taxpayer to the businesses which are required to apply for exemptions. Not surprisingly, those businesses are balking at this additional cost where previously there was none for the same service.
As the Minister said, the fee that Defra is implementing to be payable is £39,721. At the same time, the Secretary of State will publish a charging scheme of fees and how they will be reached. The fee set out in the instrument will operate from April 2023, when the new scheme of charges will also become operable. There is no indication at this time whether those charges will be higher or lower, only that they will be on a full cost-recovery basis.
As the noble Baroness, Lady McIntosh of Pickering, said, Defra held a six-week consultation on the fee being introduced in this SI, which ended on 26 August. Of the 54 responses received, 53 disagreed with the consultation proposals. This is the first time that the businesses concerned have been expected to pay for exemptions.
The Secondary Legislation Scrutiny Committee, of which I am a member, asked a number of questions of Defra on the SI. The exemptions cover such items as the use of lead in portable emergency defibrillators and the use of mercury in intravascular ultrasound imaging systems. This is vital to the health service and a number of us at all levels, because of the effects on the health service, on which we are completely reliant.
The fee is to cover the cost of a consultant’s fee in assessing the application and whether the product is safe and fit for use. Regardless of whether the application is a renewal or a new exemption, the fee to be applied is the same. There are 23 existing exemptions that would require an application fee to be paid when they are next renewed.
Four businesses consulted were concerned that specialised items provided in low volumes but subject to the application of a fee might not continue to be supplied in GB due to the cost. This would have a significant impact on some medical technologies. Given that some of those businesses supplying this equipment and needing an exemption certificate are small and medium-sized businesses, the cost is likely to have a negative effect. Can the Minister comment on this?
The Northern Ireland market, as both speakers have said, is not subject to these regulations as it still operates under EU rules. No fee is therefore charged there. This SI applies to England, Scotland and Wales only. Can the Minister say whether it is likely that some devices might appear illegally on the Northern Ireland market, not subject to a fee, and then be sold on to England, Scotland or Wales? I understand the Minister says that this is not likely, but this is a loophole in the system whereby no fee would have to be paid for a separate GB exemption; the noble Baroness, Lady McIntosh, also referred to this. Would it not be better if the same system applied to the whole of Great Britain, including Northern Ireland? Would the Minister care to comment on that?
Baroness Hayman of Ullock (Lab)
My Lords, I thank the Minister for his detailed introduction to this statutory instrument. We have heard that previously, when we were part of the EU, applications around hazardous substances were dealt with in Brussels so did not attract an application fee, which is why this measure will be very new for businesses to deal with.
Much of what I want to say has been covered by other speakers but there are a few things to look at. First, there is the application fee of £39,721. The Secondary Legislation Scrutiny Committee’s report commented that it is a “surprisingly precise” figure. Can the Minister give some information on where this surprisingly precise figure came from? That would be helpful. He stressed that it has been calculated on a cost-recovery basis, with applications made between Brexit and now being covered by the taxpayer. It was good to have that clarification.
The Minister also said that the cost per business is high because of the low number of applications likely in the coming years. I understand that the information given to the JCSI said that only one application for a new exemption has been submitted since Brexit and that there are only 23 live exemptions, which may be renewed in future. The SLSC’s report states:
“Defra expects that most applications in GB will be made by international trade associations and industry organisations on behalf of a specific industry, rather than by individual businesses.”
It would be helpful if the Minister could explain where that expectation has come from and how that structure is likely to work in order to give individual businesses some kind of reassurance as to what the expectation on them is likely to be. We know that businesses have been facing supply chain issues and increased costs, so it would be extremely helpful to understand that.
On the refund of fees under Regulation 5, there is mention of partial refunds in the SI and the SLSC’s report. Again, it would be useful to understand how that works and what “reasonable costs” means in this instrument. What are considered to be reasonable costs that the Secretary of State could take into account?
The noble Baronesses both mentioned the shortness of the consultation at six weeks; that would be useful to understand. I am sure the Minister knows that I am quite interested in consultation. Best practice is 12 weeks, so I wonder why it was concertinaed to just the six weeks. The noble Baronesses talked about other areas around the consultation so I will not go into those details.
On the exemptions, it would be useful to have an example of what an exemption is and whether it is possible for a business to move away from the use of hazardous materials. Is that something that certain businesses could do? If that is the case, is Defra able to support or give advice to businesses that want to do that? I think that would be quite helpful.
Finally, on Northern Ireland, I completely agree with the points made about the potential loophole. I ask for reassurance on exactly how that will work with Northern Ireland. It is a bit concerning if that does not work as smoothly as expected.
Lord Benyon (Con)
I thank noble Lords for their valuable contributions to this debate. I will address the points that have been made.
The noble Baroness, Lady Bakewell, asked why the fee is being introduced when so many respondents to the consultation did not support it—a point made by both other speakers as well. If I am in business and not facing a cost that is being picked up by somebody else, and I am asked whether I would like to pick it up, I am likely to say no. I am not surprised that they did not want to do this, but there are two reasons for doing it. One is to relieve the poor, overburdened taxpayer from picking up the cost of this. The second is to drive behaviour change and to drive companies to look at the alternatives where possible; I will come on to talk about that. I assure the noble Baroness that introducing the fee is entirely consistent with the Government’s Managing Public Money principles and is based strictly on a cost-recovery basis. It is also worth noting that charging is common practice in circumstances in which industry is required to apply for registrations, authorisations and licensing to comply with regulatory requirements.
Existing guidance on how to submit an application for an exemption is available on GOV.UK and will be updated to reflect the requirement to pay an application fee well in advance of the April 2023 date when the fee will be introduced. I assure the Committee that in granting exemption applications, the Government are not acting to constrain the development of alternative, less harmful substances. A fundamental requirement in considering an exemption is to do a detailed technical appraisal of substitute substances. In circumstances where an application is granted, it will be done for a time-limited period only.
I will address some of the other points. A short consultation was required to ensure that this statutory instrument could be laid using powers that expire at the end of this year, using the EU withdrawal Act. While it was short, key stakeholders were contacted and encouraged to respond. I suspect the noble Baroness and I were on the same side in the referendum, but I can assure her that this gives more accountability for the decisions that are taken. When I was last at Defra, this would just have been rubber-stamped. It would come have from the Commission and we would have had no say over it. At least we can now drive standards and do things in the right way. I hope that responds to the first and second points made by my noble friend Lady McIntosh.
The points raised by the Secondary Legislation Scrutiny Committee are important, but I reiterate that there is no loophole. Products placed on the Northern Ireland market must comply with the EU ROHS and EU exemptions. Unfettered access means that such products can then move freely into Great Britain. They are not required to submit a GB exemption application, so there can be no loophole in avoiding paying the necessary application fee. I hope that satisfies the Committee’s concerns.
Points were made about the REUL Bill. Ministerial colleagues and I are in the process of analysing Defra’s REUL stock and determining what should be preserved as part of domestic law, as well as REUL that should be repealed or amended. This work will determine how we use the powers in the Bill and, therefore, inform assessments of the Bill’s impact.
It is important that we consider whether recognition of exemptions in other jurisdictions with similar ROHS regulations to ours could work. There is no guarantee that we will proceed even after that assessment, but any proposal to proceed will be subject to consultation. It is therefore sensible to proceed now on the basis that no alternative to the current arrangements will be in place.
A number of people asked questions about the fees. The fee will be £39,721, as I said. This is made up of the technical consultant’s fee of £36,625 plus £3,096, which covers the cost of other administrative tasks such as publishing the consultation. The fee will be payable from April 2023. Exemptions last up to five years, or seven years for medical devices such as those mentioned by the noble Baroness. Exemptions are granted to products rather than to the applicant. This reduces the impact on business because, very often, the applications are made by trade bodies and huge multinational companies for which this figure is loose change down the back of the sofa. For an SME it would be a substantial cost, but that cost is very likely to be picked up by a whole range of different SMEs operating together through a trade body.
Since January 2021 we have received two applications for exemptions for Great Britain.
Baroness Bakewell of Hardington Mandeville (LD)
I am sorry to interrupt the Minister. Is he saying that if, for instance, an MRI scanner received an exemption certificate, it would not matter who manufactured it and it would have the same exemption certificate?
Lord Benyon (Con)
The exemption is on the product, not the applicant, so yes. Some of these would be multinational companies based overseas wanting to export their products here. They would have to get this to do so.
I think that addresses the main concern of the noble Baroness, Lady Hayman. Trade bodies will be the vast majority of the applicants, not businesses. It is crucial that we drive behaviour change where it can be achieved. The application process requires the applicant to have looked at alternatives before securing an exemption.
The noble Baroness, Lady Hayman, asked for examples of recent exemption decisions. Lead in solders in portable emergency defibrillators is one. Mercury in components of intravascular ultrasound imaging systems and lead in hexavalent chromium used for civil explosives in mining and quarrying are other examples of where this requirement will be used.
The Secretary of State could grant exemptions without the need for an application if the sale of essential equipment were jeopardised because of the non-payment of a fee. For example, if the supply of essential equipment was required for the health sector and was jeopardised because of the requirement to have an application, the Secretary of State could overrule it and give that exemption. I think that gives a lot of assurance to people who feel that, for example, our NHS could lose out on getting a vital piece of equipment.
The final question, quite rightly put, was whether this drives business away from the UK. It is normal for businesses to be charged fees for registrations and applications if necessary. As I say, it is important to note that the fees apply to the product, not to individual businesses. There is a track record of businesses working together to submit applications.
Baroness McIntosh of Pickering (Con)
Can I just clarify that point for my noble friend? It is about whether there would be a commercial advantage in what we are pursuing, thus giving Northern Ireland a benefit.
Lord Benyon (Con)
In Northern Ireland, our wish for there to be unfettered access is absolutely paramount. As things stand, businesses in the European Union will seek applications from here, as will businesses from beyond the European Union. It is vital that we maintain that unfettered access while we sort out the implications of the Northern Ireland protocol, which are very familiar to Members of this Committee.
I hope that I have answered all the questions. If there are further points that noble Lords wish me to comment on, I would be happy to contact them. I commend these draft regulations to the Committee.
Motion agreed.
Agricultural Holdings (Fee) Regulations 2022
(2 years ago)
Grand CommitteeRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Benyon
That the Grand Committee do consider the Agricultural Holdings (Fee) Regulations 2022.
The Minister of State, Department for Environment, Food and Rural Affairs (Lord Benyon) (Con)
My Lords, I beg to move that the draft Agricultural Holdings (Fee) Regulations 2022, which were laid before the House on 20 October, be approved. I declare my farming interests as set out in the register and point out that I am a member of the Royal Institution of Chartered Surveyors. I speak for England only. However, I highlight that we have worked closely with the Welsh Government on this instrument, and the same composite instrument was debated and approved by the Senedd on 22 November.
This Government believe in a vibrant and flourishing tenant farming sector. We believe that it is vital for the future of agriculture. A third of farmland in England is tenanted, with 14% of farms wholly tenanted and 31% of farms with a mixed tenure—that is, both owning and renting land. This variety in land tenure and the ability to rent land on a flexible basis is important as it enable tenants and owners to grow and adapt their farm businesses. It also provides a route into farming for new entrants, bringing new skills and ideas into the sector.
Many tenants and landlords work collaboratively and progressively to resolve issues that may arise during their tenancy agreement. However, sometimes, that is not possible. In those cases, our agricultural tenancy legislation enables either party to the tenancy agreement to apply to a professional authority to appoint an independent arbitrator to help resolve a dispute. It also enables the professional authorities to charge a small statutory fee to cover the administration costs of delivering an arbitration appointment service.
The current fee that can be charged for the appointment service was set in 1996 at £115. Inflation since then means that this level of fee no longer covers the costs incurred by the professional authorities in delivering the arbitration appointment service. The purpose of this instrument is to update the statutory fee on a cost recovery basis to £195 in line with His Majesty’s Treasury’s guidance, Managing Public Money. The increase was supported by 73% of the respondents to the Government’s consultation on this issue.
Although I recognise that this increases costs for tenants and landlords, it remains a relatively small statutory fee that is necessary to sustain the continued delivery of an important independent appointment service. The costs of running the service include staff time to assess each application for the arbitration skills and knowledge required to make a relevant match with a suitably qualified arbitrator, as well as conducting the necessary checks for any conflicts of interest to ensure independence.
This instrument also updates the regulations in line with changes we made in the Agriculture Act 2020 to include a wider list of professional authorities that can now offer an arbitration appointment service. This now includes the president of the Central Association for Agricultural Valuers and the chair of the Agricultural Law Association, alongside the president of the Royal Institution of Chartered Surveyors. This means that tenants and landlords now have more choice between different service providers, which will help to drive continuous improvement in the provision of an efficient and quality service.
In addition, this instrument includes a new duty to review the regulations every five years. Reviews will be carried out in consultation with industry to check that the level of the statutory fee is appropriate and in line with cost-recovery principles.
I am aware of the recently published report on tenant farming led by my noble friend Lady Rock. It includes recommendations on the operation and oversight of dispute resolution. I thank my noble friend and members of the working group for producing this report. I welcome it and its focus on supporting a vibrant tenanted sector. The Government are considering its recommendations and will publish a formal response in due course.
I also highlight that the professional authorities delivering arbitration appointments have responded positively and proactively to requests for improvements. For example, the Royal Institution of Chartered Surveyors is in the process of implementing the recommendations made in the recent review by the noble Lord, Lord Bichard, to improve governance structures, deliver greater independence of its regulatory functions and focus on its public interest remit. In addition, the professional authorities delivering arbitration appointment services have transparent and high standards of professional conduct that they expect their arbitrators to comply with.
I hope I have assured noble Lords of the need for this instrument, which will ensure that tenant farmers and landlords continue to have access to the appointment of an independent arbitrator when they need it, funded by an appropriate statutory fee on a cost-recovery basis. I beg to move.
Baroness McIntosh of Pickering (Con)
My Lords, I welcome the content of these regulations and thank my noble friend for presenting them. I pay tribute to the work of my noble friend Lady Rock and all those who contributed to the review that she conducted.
It is a little disappointing that my noble friend says that we will have a response only “in due course”. We owe it to the tenanted sector to have a response in real time and a date when that might be due. I regret that I cannot remember whether it is Agricultural Holdings Act 1986 tenancies that are for one year only or more, but I know that the Tenant Farmers Association has expressed concern that where a tenancy agreement is for only three or five years, it is simply not long enough for tenant farmers to make the required investment.
This is an issue very close to my heart. I grew up in an tenanted area in the Pennines where there are smallholdings—mixed farms with not a great deal of land. At one stage my brother and I farmed two fields, but I could not stand the excitement so he now farms them in his own right. My late father is no longer there to look after all the admin for us, so my brother is in sole charge as the owner of those two fields. These smallholdings are very dependent on spring lamb and stall cattle, that is bringing young beef on and fattening them up. Marts such as at Middleton-in-Teesdale, Kirkby Stephen, Thirsk and Skipton are very dependent on this.
I argue that, if anything, there will be more call on these advisers. I accept that there has not been a review for five years. It could be argued that the fee is almost double, but I think it is a reasonable level. No one has corresponded with me to say that they will not be able to pay this.
I understand that 60% of all land in England is farmed by tenant farmers. Certainly in North Yorkshire, where I was an MP for 18 years, 48% of the farms are tenanted. This is a very big sector, so I would like to press my noble friend by asking whether the fees will cover all eventual disputes in this area. For example, will they cover potential eviction from the tenanted farm if the fee could be used to be represented in an arbitration procedure?
Similarly, the landowner may seek to take back the farmland if they wish to plant trees, for example. I know that my noble friend and the department are very keen on that but, from what we have seen in Cumbria and Wales, it is not always ideal to be taking land that has been actively farmed—particularly when our food supply chains are under pressure of being in an emergency situation, as we hear this morning, with the NFU calling on the Government to take urgent action in that regard.
My heart goes out to tenant farmers at this time. The fees proposed in this statutory instrument are affordable given the increase that the Government are seeking. I welcome the fact that there could be a five- yearly review; I think I saw that in paragraph 7.6 of the Explanatory Memorandum. Can my noble friend say in precisely which circumstances the fee would be applied and assure us that the tenants will have recourse to a professional authority in the circumstances that I outlined?
Baroness Bakewell of Hardington Mandeville (LD)
My Lords, I thank the Minister for his introductory remarks on this statutory instrument. The essence of the instrument is to increase the fee charged when a dispute arises around a tenancy agreement between a landlord and an agricultural tenant. This is then referred to the Agricultural Holdings Act 1986 for arbitration where the fee is charged.
I note that the requisite fee has not been increased since 1996 and agree that it is necessary to set it at a realistic level. I also agree with the regulations and, I assume, the fee being on a cost-recovery basis, to be reviewed every five years. This seems sensible. The previous fee was £115; however, the proposed fee of £195 seems to have been set in 2019 by Defra. If that fee is intended to be on a cost-recovery basis, it is already three years out of date and inflation has not stood still in the intervening years.
The consultation undertaken by Defra received a favourable response, with 73% of respondents agreeing to the update and the proposed fee. The Explanatory Memorandum refers in paragraph 12 to the impact as “a relatively small increase”. This is somewhat true in that £195 is not a huge sum but it is, nevertheless, a 70% increase on the fee previously paid. If the fee were to go up by 70% every five years and be linked on a cost-recovery basis, those involved might not be quite so keen to agree to it.
Given that some holdings will have cross-border implications, can the Minister say whether the devolved Administrations are likely to be charging the same level of fee for arbitration as England? I was not entirely sure from his remarks whether that was the case. If not, and there is a difference in fees, that would cause some problems.
Lastly, like the Minister and the noble Baroness, Lady McIntosh of Pickering, I refer to the Rock review on farm tenancy. There is evidence that in some cases the slow rollout of the sustainable farming incentive grants has led to tenants being refused permission by their landlords to apply for this scheme. This may cause an increase in the numbers coming forward for arbitration. Can the Minister tell the Committee how many cases of arbitration there were last year and how many there have been this year? Are there sufficient staff in the arbitration service to deal with increased demand, if that should prove to happen?
I believe that this is the right way forward and I support this SI.
Baroness Hayman of Ullock (Lab)
My Lords, I thank the Minister for his introduction to what is, on the face of it, a fairly non-contentious amendment to the fees paid for the appointment of an arbitrator to resolve disputes or make certain records about agricultural tenancies under the Act that we have referred to. Other noble Baronesses have talked about the increase in the fees and whether it is still appropriate considering when it was set, so I will not go into detail about that.
I want to focus on the concerns raised by the Tenant Farmers Association about the increased costs that are in this SI, and about tenancy arrangements more generally. The TFA has said it is worried there has been a lack of contact between it and Defra, and the Secretary of State, around the report on the Rock review. The noble Baroness, Lady McIntosh of Pickering, has referred to this. She asked a question yesterday in the Chamber and the Minister basically gave the same response as he has today, which is that the Rock report is very interesting, the Government are benefiting from it, it is being reviewed and had lots of recommendations, and that they will report in due course. I think what we would all like to see is a little more information about what that looks like going forward. Clearly, it is a very important report.
I am sure the Minister will know George Dunn from the Tenant Farmers Association. He has raised some real concerns. If the Minister will bear with me, I would like to go through them because his response to these concerns is important. George Dunn says the TFA is objecting to these proposals, and he cites the recommendations of the Rock review, which expresses concern about the way in which agents operate in general and how arbitration is in need of oversight and reform. The report also highlights the need for a commissioner or ombudsman to oversee the operation of arbitration and the Tenant Farmers Association’s view is that this needs to be implemented, preferably before or alongside any decision to increase the appointment fee. I would be interested in the Minister’s response and comments on that proposal.
George Dunn also says that the increase in the fee would land much better with his members if they had some sort of indication or assurance that Defra would be taking seriously the recommendations set out in the Rock review about the appointment of a commissioner or ombudsman with a role to look at the operation of arbitration. In addition, he comments that most of the costs associated with the accreditation, assessment, training and continuing professional development of arbitrators fall to the arbitrators themselves. He believes that the cost of using arbitrators already reflects increasing costs, as the arbitrators pass on those costs to the parties involved in the process. I hope that is clear. What is unclear is what costs RICS and others incur in the appointment process, because none of that is on the record.
It would be very helpful, ahead of any formal response to the Rock report, to know that Defra and the Minister were listening carefully to the concerns being expressed by the Tenant Farmers Association, so that we can work with it going forward to ensure this process works as it should and is effective. At the end of the day, that is what we want it to be.
Lord Benyon (Con)
I am grateful for the noble Baronesses’ views on this instrument. I believe we all recognise the importance of the tenant farming sector and the need for tenants and landlords to have access to independent arbitrators to resolve any disputes when they arise. I also believe that it is right for the professional authorities delivering arbitration appointments to be able to recover their costs through an appropriate statutory fee. The improvements this Government have made, including widening the choice of professional authorities that tenants and landlords can go to and the introduction of a regular review clause, will drive continuous improvement in delivery of the service going forward.
I am actually someone who has attended one of these tribunals. I was a trainee at the time. It was in Wales. I remember being struck by one thing: the complete breakdown of the relationship between the landlord and the tenant. That is very rare. Mostly, there is a good working relationship. Where disputes occur—even the best relationships can be tested at times of rent reviews and suchlike—there needs to be a mechanism in place for this.
The only issue on which I differ from my noble friend Lady McIntosh is her feeling that we should have somehow given our response to the Rock review by now. That review has taken many months and was published just over a month ago. The Farming Minister, Mark Spencer, and I have spent many hours going through its nearly 80 recommendations. We also have officials working through them. I do not want to prejudge, but noble Lords will be pleased to know that many of them have “agreed” next to them, while there are also some where we need to do some more work. But with all that is going on—and to do my noble friend Lady Rock and her review panel justice—it is not possible just to publish a response that does not respect the work that has gone into the review and thoroughly respond to the important points it makes.
To answer my noble friend’s other point, this instrument relates principally to the Agricultural Holdings Act, which is a succession tenancy law. There are of course many other types of tenure that can be the subject of disputes, such as farm business tenancies. My noble friend is entirely right that the best type of tenure is a long-term tenancy where there is a commitment to invest and improve. In extreme cases, some short-term tenancies have the effect of little or no investment and a lot of extractive activities, so the natural environment and natural capital involved in the farm are depleted. In most cases, longer-term tenancies are better, but we want to create flexibility for certain circumstances where, for whatever reason, for the landlord or the tenant’s advantage, there is the possibility of short-term arrangements.
Of course, there are many other types of tenancy; my noble friend referred to her family but it could be a grazing tenancy or many others. On our uplands we see how farmers work together with commoners’ rights, which also need to be respected. My noble friend is absolutely right that small farmers need to be supported. I believe passionately in that; I want to see coming through our transition in agriculture a real attempt to understand that small can be beautiful. Small farmers can adapt in a way that some bigger farmers cannot. Some of them will be able to access government support when they were not able to do so before. People who were not able to use the basic payment scheme will be able to access our environmental land management schemes.
My noble friend Lady McIntosh asked about the cases that could be taken to such an arbitration. I remember from my chartered surveyor training something called the “seven deadly sins”. One of them was the failure to pay rent. Another was poor husbandry, which is incredibly difficult to prove. There are a number of other issues that could go to arbitration. The Royal Institution of Chartered Surveyors reports that it receives an average of 195 requests for the appointment of an arbitrator each year. When you think how many thousands of tenants and farmers there are in this country, that is a very small percentage, but it is vital that they have access to a good arbitrator. About 25% of those requests come from tenants, and about 75% from landlords.
The Government recognise that farming is often a long-term business. We are interested in exploring ways of encouraging more landlords and tenants to consider longer-term tenancy agreements. I applaud organisations such as the Duchy of Cornwall, which, by and large, gives 20-year farm business tenancies; that kind of commitment is very valuable. As we transition to new farming systems, there will be more certainty and encouragement for landlords and tenants to enter into a longer term agreement.
There is also a role for industry leadership and best practice guidance in setting out the options and benefits for tenants and landlords of longer term arrangements. A tenant of a small family farm can request the appointment of an arbitrator for all circumstances, such as notice to quit on land resumption, where they have a case to dispute that, as well as for other matters such as tenancy compensation, maintenance and rent reviews. The thorny issue of tenant rights when a tenant vacates land is also sometimes the subject of dispute.
I think 70% over nearly 30 years is probably affordable. We will review it every five years, and I hope it will be considered on a cost basis. We came to the figure working with the CAAV, RICS and the Agricultural Law Association; we did not pluck it out of thin air. It is important that we keep this as a cost-recovery activity for the small number that use it. The noble Baroness, Lady Bakewell, made the point that it is three years out of date. After nearly 30 years, I do not think it is an unreasonable figure; in five years’ time, we shall see what it is like and how this is working.
I turn to the points very properly made by the noble Baroness, Lady Hayman. First, on lack of contact with the Tenant Farmers Association, nobody has more respect for George Dunn than me. The Tenant Farmers Association operates out of a village next door to where I live. He is somebody with whom I have had the pleasure of working. His contribution to the Rock report and to the welfare—mental, financial and in business terms—of tenants over many years is exemplary. It was a great pleasure to go to an event at the Farmers Club to celebrate a milestone in his commitment to the Tenant Farmers Association.
When we respond, soon, to the Rock review, I hope that he will feel that we have considered the points that he makes. I will not pre-empt that response by saying where we are on issues such as a commissioner. We will not agree on everything, but I state absolutely that it is the Government’s intention—the intention of my colleague Mark Spencer, the Secretary of State and me—that we see a vibrant tenanted farmers’ sector. As I said in the House yesterday, without it, the only way that people can get into farming is by buying land or inheriting it. We think it is vital that we see new entrants being able to get access to farming businesses. We have developed our exit scheme for those who want to exit the farming industry with dignity, and we are also working on a new entrants scheme, which will encourage skills, support and the availability of land for new entrants.
We hope to create more mobility within the sector; we can do that only if we have the right systems in place, the right tenure and, as and when issues result in dispute, a proper mechanism for their resolution. We think that that lies within this SI; it is a small part of it. We will be working with noble Lords as we develop the thinking in the Rock report and other measures in environmental land management to make sure that we are supporting farmers—owner-occupiers, tenants and the large number who are both. We have to recognise that they all have a place in our farming system. With that, I commend this instrument to the Committee.
House of Lords
X-Rays: Child Refugees
(2 years ago)
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Baroness Prashar
To ask His Majesty’s Government what assessment they have made of the ethical considerations of the use of X-rays to determine the age of child refugees seeking asylum in the United Kingdom.
The Parliamentary Under-Secretary of State, Home Office (Lord Murray of Blidworth) (Con)
The Home Office Chief Scientific Adviser convened an independent age estimation science advisory committee to provide the department with independent advice on the ethics and implementation of different scientific approaches to age assessment. No official decisions have been made on the use of scientific methods, and the use of X-rays specifically would need to be independently justified and approved under the Justification of Practices Involving Ionising Radiation Regulations 2004.
Baroness Prashar (CB)
I thank the Minister for that Answer, but can he say when the report will be completed and published?
Lord Murray of Blidworth (Con)
The report is still under evaluation. I am afraid there is no estimate at the moment for the production of the report.
Baroness Lister of Burtersett (Lab)
My Lords, I have twice recently through Written Questions tried to find out whether the Government will publish the report of the advisory committee. Both answers—which were almost identical—avoided answering the question. Could the Minister therefore tell us now whether the Government will publish this key report and, if not, why not?
Lord Murray of Blidworth (Con)
As I said, the report is being considered and a decision on publication will be made in due course.
Baroness Brinton (LD)
My Lords, the British Dental Association is opposed to dental X-rays being used because of their inaccuracy. Other organisations such as the BMA agree. During the passage of what became Nationalities and Borders Act, the noble and learned Lord, Lord Stewart of Dirleton, the Minister at the time, acknowledged this lack of accuracy by saying that
“assessments are not of themselves accurate”.—[Official Report, 8/3/22; col. 1280.]
There was no dentist on the age estimation science advisory committee. Do the Government understand that both their own Minister and dentists disagree that this should be one of the methods used to assess age?
Lord Murray of Blidworth (Con)
The answer is no. By way of background, I remind the noble Baroness that, between 2016 and September 2022, there were 7,357 asylum cases where age was disputed and subsequently resolved, in which half the individuals—3,696—were found to be adults. At least 27 other European countries use scientific or medical methods as part of their age assessment process. The most common method by far internationally is the use of one or more X-rays, usually dental, wrist, clavicle or knee, although MRI scans, CT scans and physical or psychological examination by a doctor are also reported. The implementation of SAA across Europe varies enormously, with different methods or combinations of methods, data outputs and timing, and the use of negative interference.
Lord Bellingham (Con)
My Lords, given that 12 EU countries do not allow any asylum applications from Albania on the grounds that Albania is a democratic and aspirational country, why do we not do the same?
Lord Murray of Blidworth (Con)
Although I am tempted to address my noble friend’s topic, which is slightly off the topic of this Question, I will say only that the response to the problem of Albanian young men crossing the channel is being considered speedily by the department, and policies will be formulated shortly.
Lord Singh of Wimbledon (CB)
My Lords, it is an understatement to say that the use of X-rays to assess the age of children is like using a sledgehammer to crack a very small nut: it not only exposes children to harmful radiation but damages our image in the wider world. Would the Minister agree that traumatic events such as seeing near and dear ones killed and homes destroyed can visibly age people, including children, and that a country that is not even in the top 10 of those giving asylum per head of population should eschew this demeaning practice?
Lord Murray of Blidworth (Con)
I disagree with the noble Lord. As I have already said, there is clear evidence that many people claim to be a minor when they are not. Clear safeguarding issues arise if a child is inadvertently treated as adult and, equally, if an adult is wrongly accepted as a child and placed in accommodation with younger children to whom they could present a risk.
Lord Coaker (Lab)
My Lords, the Minister has just told us that the Government are assessing the evidence. Can he tell us what assessment they have made of the Royal College of Paediatrics and Child Health? Its members are experts in this area and it has said that the use of X-rays for age assessment does not work and is unethical.
Lord Murray of Blidworth (Con)
The international experience would tend to suggest that that is not the case. The position adopted by the department is that age assessment is one option on a menu of options available for the assessment of age; there is no suggestion that the assessment of age will be undertaken, at this stage and in the present state of the science, simply on a scientific assessment.
Lord Kirkhope of Harrogate (Con)
Would my noble friend the Minister not agree with me that this has been a problem for a considerable period of time? When I was in the Home Office, we also had difficulties with this matter, but the rules are quite clear: minors are entitled to support in a way that those who are overage are not. So, although it is regarded as being rather unfair to use X-rays, and maybe even dangerous, does my noble friend not agree that at least we have to apply those rules and find ways of applying them that are as fair as possible?
Lord Murray of Blidworth (Con)
I entirely agree with my noble friend. I can assure the House that we will ensure that scientific methods are implemented in such a way as to be compliant with the existing regulatory and statutory frameworks governing safety. I entirely agree with the sentiment of my noble friend’s question.
The Lord Bishop of Carlisle
My Lords, further to that answer, in determining what constitutes an appropriate scientific method of age assessment, can the Minister assure us that any future methods will be formally approved by the relevant medical body before they come into use?
Lord Murray of Blidworth (Con)
Plainly they will be formally approved by the advisory committee to the Home Secretary, and one suggests that the views of relevant professional bodies will be of great weight in making such a decision.
Lord Ponsonby of Shulbrede (Lab)
My Lords, as a sitting magistrate I occasionally have to do age deeming, both in youth court and in adult court. Sometimes we have reports from social workers and sometimes—although rarely—we get expert reports. In the training I received, maybe 10 or 12 years ago, the central message I got was that it was ultimately a judicial decision and that all forms of report, be they from social workers or scientific reports, have quite large elements of doubt within them and the decision is ultimately a judicial one. Does the noble Lord agree?
Lord Murray of Blidworth (Con)
In the context of decisions made in magistrates’ courts, I agree that it is a judicial decision. In the context of asylum-seeking people who say that they are minors, the question then falls to the Secretary of State to determine whether they should be treated as a minor—and sadly, as I say, experience suggests that a large number of people have suggested that they are minors in order to take advantage of the perhaps more beneficial regime. It is very important that those people, for the reasons that I have already given the House, are weeded out by such a fair system as we can determine.
Baroness Hayman (CB)
My Lords, in response to the noble Baroness, Lady Lister, I think I heard the Minister say about a report that a decision on publication will be made in due course. Can he tell the House whether that is a decision on whether to publish or when to publish?
Lord Murray of Blidworth (Con)
At the moment, the answer is both.
Lord Lilley (Con)
My Lords, the British Dental Association has written to all of us saying that X-rays carry a small risk of possible long-term physical harm and that the risk is cumulative and successive exposures increase the risk, which means that each exposure over a lifetime must be clinically justified. Over my lifetime I have had more than 20 X-rays from dentists and have never been warned of this cumulative risk. Can my noble friend explain why the BDA is so worried about a single X-ray of someone claiming asylum who looks 22, especially when the BDA says that it can tell the age to within four years with 95% accuracy? So it might well show that someone was younger than they looked and be to their benefit.
Lord Murray of Blidworth (Con)
I entirely agree with my noble friend that it is an unusual position for the BDA to adopt.
Employment Policies
(2 years ago)
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Lord Woodley
To ask His Majesty’s Government what assessment they have made of the compatibility of their employment policies with the International Labour Organisation’s Declaration on Fundamental Principles and Rights at Work.
The Parliamentary Under-Secretary of State, Department for Business, Energy and Industrial Strategy (Lord Callanan) (Con)
My Lords, the Government are proud to uphold our high, internationally recognised labour standards. The UK continues to be committed to enhancing labour standards globally by negotiating and implementing International Labour Organization standards, having raised domestic standards over recent years to make them some of the highest in the world. To date, the UK has ratified 89 ILO conventions, most recently the violence and harassment convention, which was ratified in March this year.
Lord Woodley (Lab)
My Lords, I only wish that the Government were indeed honouring their international obligations, as the Minister suggests. Since 2010, the Government have reneged on ILO commitments time and again, as he knows, most recently by allowing unscrupulous bosses to break strikes with agency staff, which is a clear breach of Convention No. 87 on freedom of association and protection of the right to organise. Now, they are proposing to do so again with their disgraceful minimum service levels Bill, which is another violation of Convention No. 87. Are these anti-union attacks intended to deprive workers of the only means they have to protect themselves against the greatest fall in living standards in over 100 years?
Lord Callanan (Con)
The noble Lord will be unsurprised to know that I completely disagree with him. The Government are confident that all our measures are in full compliance with our international obligations. We remain in full compliance with ILO conventions. We are trying to balance the understandable right to strike, which I know that the noble Lord is very proud of—but I also want to support the right of people to go to work, if they wish to do so.
Lord Fox (LD)
My Lords, there is another area that the Minister could address for your Lordships’ House. I had a meeting this morning with about 20 representatives of manufacturing businesses, and one thing that they were anxious to highlight was the failure of the apprenticeship levy. When the levy was brought in, 150,000 young people were going in to become apprentices; that number is now below 50,000. The first way in which to solve a problem is to admit that you have a problem. Will the Minister admit that there is a problem, and will he undertake to solve it?
Lord Callanan (Con)
I thank the noble Lord for his question. It is slightly unrelated to the point under discussion, but I would be happy to get back to him in writing.
Lord Forsyth of Drumlean (Con)
My Lords, could my noble friend tell me whether it is consistent with the International Labour Organization’s declaration on fundamental principles and rights of work to have Ministers in this House one-third of whom are unpaid?
Lord Callanan (Con)
The ingenuity of my noble friend in seeking to ask his questions knows no bounds. As far as I am aware, Ministers do not have employment contracts. We serve at the behest of the Prime Minister and sovereign, and I am sure that most Ministers are happy to continue doing so.
Lord Lennie (Lab)
My Lords, in September, the TUC reported the UK Government to the ILO, saying that they had taken steps to infringe the right to strike. As the noble Lord, Lord Woodley, said, that was done, first, by passing a law to use agency workers to break legitimate strike action and, secondly, by proposing a minimum service level of transport. What consideration have the Government given to the substance of this complaint in how they progress the Transport Strikes (Minimum Service Levels) Bill?
Lord Callanan (Con)
Forgive me for taking everything that the TUC says with a little pinch of salt but, as I said to the noble Lord, Lord Woodley, we are very confident that all our measures do not infringe the right to strike. They seek to provide a balance between, on the one hand, allowing trade unions to take legitimate strike action but, on the other hand, trying to ensure some level of minimum service for the public. I hope that the Labour Party will take the opportunity to condemn the disgraceful tactics of the RMT recently in seeking to deny people their essential travel at Christmas.
Lord Jordan (Lab)
My Lords, I declare an interest as life president of RoSPA. This year, the ILO declared that a safe and healthy working environment is a fundamental right for all workers. Can the Government confirm that this fundamental right will be included in their proposed Bill of Rights, when that comes forward? Will they also confirm that all the protections afforded by Britain’s present health and safety at work Acts will be guaranteed to anyone who is given permission to work from home?
Lord Callanan (Con)
I am proud to say that the UK has one of the highest rates of employment practice in the world. We have one of the safest working environments in the world, and it is our full intention that that should continue.
Lord Hendy (Lab)
My Lords, the Minister said that the UK is in compliance with ILO standards. The problem for him is that the supervisory bodies of the ILO have consistently said that the United Kingdom is in breach of numerous ILO conventions. Not only that but the Council of Europe has also found that the United Kingdom is in breach of various articles and provisions of the European Social Charter, which the UK has ratified.
Lord Callanan (Con)
The European Social Charter no longer applies to us, as we are not in the European Union any longer. The noble Lord may have noticed that we had a referendum on the subject.
The Earl of Courtown (Con)
My Lords, will the noble Lord give way? There is only one question that he can ask in each Question.
Lord Callanan (Con)
As I said, we had a referendum on the subject, and we are no longer members of the EU. The Social Charter no longer applies to the UK. As I further said, we have some of the highest labour standards in the world, way in excess of the minimum standards of many states of the European Union. Many other member states of the European Union also have minimum service levels in their law—this is not unprecedented.
Lord Davies of Brixton (Lab)
Will the Minister acknowledge that the European Social Charter, to which my noble friend referred, is an instrument of the Council of Europe and not the European Union, so still applies to this country?
Lord Callanan (Con)
Of course, the UK is proud of its membership of the Council of Europe, but we have left the European Union.
Lord Watts (Lab)
My Lords, the Minister blames train unions for the dispute. Would it not be more effective if he and the Government stopped interfering in those negotiations and allowed a fair settlement, then we could get back to normal business on our transport and our rail systems?
Lord Callanan (Con)
I agree with the noble Lord: I do blame the train unions for the strike, because they are the ones who are taking strike action and depriving people of the right to go and see their relatives and loved ones at Christmas.
Baroness Blower (Lab)
The Government’s plan to introduce a minimum service level for transport workers on strike, which reports in the media suggest may be extended to the whole public sector, is clearly a direct violation of Convention No. 87 and more, so how can the Minister claim that the Government are keeping the UK’s international obligations when they plan such egregious attacks on workers’ rights?
Lord Callanan (Con)
The noble Baroness states that something is clearly in contravention; we do not agree with that advice. If she were right, then France, that bastion of liberalism, would not have minimum service level provisions in its domestic law, which it does.
Lord Cormack (Con)
My Lords, so does Spain. Does my noble friend not agree that the rail unions are holding this country to ransom in an entirely unnecessary and very selfish way? They deserve any unpopularity that accrues to them for taking this action.
Lord Callanan (Con)
I agree completely with my noble friend. It is almost as if the action that the trade unions are taking is designed to cause as much inconvenience as possible to the travelling public. I know that there is a dispute and they are entitled to take their action, but they have been offered a very generous pay rise, and the taxpayer has been extremely generous in supporting the rail industry throughout the pandemic. It is about time some of those workers saw just how well off they really were.
Lord Grocott (Lab)
My Lords, the Minister has repeatedly said, apparently with approval, that Britain has some of the highest labour standards in the world. I assume he is referring to such things as the Health and Safety at Work etc. Act, trade union recognition legislation and minimum wage legislation. Can he remind the House, as some memories are short, which party was in power when all these procedures were put in place?
Lord Callanan (Con)
Indeed, but the national living wage has been raised to one of the highest levels in Europe under this Government. For those who wish to compare our record with those of European member states, I remind Members that maternity leave provisions in the UK are one year; the minimum standard in Europe is 14 weeks.
Lord Dobbs (Con)
Does my noble friend agree that those who support the right to strike should be careful about seeming to be enthusiastic about all strikes? Does he agree that the current train strike is not simply against workers who want to get to work by train to support their families and pay their mortgages but against sick people who want to get to their hospital appointments and against young people who want to get to their colleges and schools? Is it not about time that we accepted that there are some strikes where the balance shifts from a right to strike to holding the whole country—the weak, the sick, the needy —to ransom, which is increasingly the case with this train strike?
Lord Callanan (Con)
My noble friend puts it extremely well and I agree with him completely. It is almost as if this action is designed to punish the travelling public. With the way they are targeting the Christmas period, when a lot of essential engineering work was due to take place to improve the service for the travelling public, and with the way that they are targeting the weeks before Christmas, when they know that many people travel to see their friends and loved ones, it almost seems as if they are positively enjoying the right to inflict damage on the public.
Cross-Government Cost Cutting
(2 years ago)
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The Parliamentary Secretary, HM Treasury (Baroness Penn) (Con)
My Lords, the Government announced the efficiency and savings review in the Autumn Statement to keep spending focused on government priorities and to help departments manage the inflationary and other pressures on their budgets; all savings will be reinvested in departments’ budgets. We need to be ambitious as a Government in finding ways of working more efficiently and focusing spending on where it delivers the greatest value for the taxpayer. The Government will report on progress in the spring.
Lord Bird (CB)
Does the Treasury also measure the costs of cost-cutting, because that is the important thing, is it not? It is all well and good to cut something, but if the damage is greater than the savings, surely it is not wise government to do that.
Baroness Penn (Con)
I put it to the noble Lord that there is a cost to not having efficiency and value for money in our services. That means we can deliver less for people for the money that we are putting into them. We want to see it the other way around, and that is the aim of this review.
Lord Wallace of Saltaire (LD)
Does the Treasury consider capacity when enforcing efficiency cuts on other departments? Later this afternoon we shall discuss the National Security Bill, which has several clauses imposing a new foreign influence registration scheme, which will lead to a great surge in new submissions to the Home Office, which I suspect it does not currently have the capacity to cope with, so it will need to recruit additional civil servants. The Retained EU Law (Revocation and Reform) Bill will also impose new tasks as they are repatriated from tasks we used to share with our European allies. We know what happened when the Home Office cut police numbers and when the criminal justice system’s budget was cut: capacity decreased and the Government are now having to recruit additional police officers. Does the Treasury think about this or is it simply budget-cutting?
Baroness Penn (Con)
Can I reassure the noble Lord that these questions are considered in spending reviews? They are also considered as part of the process of collective agreement when new policy is made between the periods of spending reviews. The noble Lord mentioned the MoJ and the Home Office; they will grow by, respectively, 3.6% and 3.1% a year over this Parliament.
Lord Howell of Guildford (Con)
The noble Lord, Lord Bird, made a very sound and good point. Would the Minister recommend to her Treasury colleagues that the “10%/slash everything” approach to public expenditure used in recent times is not the best way of controlling and curbing the size of the public sector, of improving its efficiency or of cutting out waste? There are techniques that have been tried in the past, namely the policy programme budgeting system, learned from the original Bureau of the Budget in America 40 years ago, and which should be revisited. Such techniques are much more effective in delivering real, effective, cost cuts, which take into account all the side effects that can sometimes overwhelm the original attempt at economy.
Baroness Penn (Con)
My noble friend is right: we must ensure that when we undertake these exercises, we really are delivering efficiency and value for money gains, rather than short-term fixes for departments’ budgets that, in the long term, may create other problems. I can reassure him that no figure is attached to the current exercise; it is about working with departments to see where they can find efficiency savings to help them manage the pressures they are under.
Lord Blunkett (Lab)
My Lords, does the noble Baroness not agree that what she has just said underlines the total failure of the short-term and damaging fixing over the last 12 and a half years?
Baroness Penn (Con)
No, I would not agree with the noble Lord at all. Efficiency savings are something that Governments of all colours have striven to deliver, including in previous comprehensive spending reviews under the Labour Government. It is absolutely right that, when we look at departmental spending, we build in an assumption of improved efficiency and value for money, but also that, at this time of increased inflationary pressures, we put even more work into looking at where we can achieve efficiencies and release savings to be reinvested into those budgets.
Lord Young of Cookham (Con)
My noble friend said that the Government were ambitious in their search for cost-cutting savings. May I suggest that ambition be extended to the number of Ministers in the Government? In 1979 there were two Ministers in the Department of Transport; there are now five. In 1979 there were five Ministers in the DHSS. That department has since been split into two and there are six Ministers in each. Is this not an area worthy of some exploration?
Baroness Penn (Con)
I take my noble friend’s point. The scope of government and what it is attempting to deliver has changed somewhat over that time, but whether the growth in Ministers has matched that scale of delivery is another question.
Baroness Uddin (Non-Afl)
My Lords, I cannot help but wonder what the damaging impact of the lost billions spent on poorly chosen PPE orders is, but will the noble Baroness’s department ensure that services for women fleeing domestic violence are ring-fenced and protected, as we have promised to do in this very Chamber many times?
Baroness Penn (Con)
My Lords, I am sure the Home Office takes that into account. This Government have a strong record on protecting women who have had to flee violence; we brought forward the Domestic Abuse Act, among other things. Even when looking back to previous years, from 2010 onwards those budgets were protected.
Baroness McIntosh of Pickering (Con)
My Lords, would my noble friend look closely at the property portfolio? As of January this year, only 34% of government office property had been onboarded, as it is apparently called. There is obviously scope to add more to this. Will my noble friend look closely at NHS properties in particular? For example, in a city such as York, with all the different organisations that have owned various properties, I would be interested to know how many are occupied and used for NHS purposes at this time.
Baroness Penn (Con)
I reassure my noble friend that the Government continue their efforts to reduce the government estate, and progress is being made to hit the £500 million per annum asset disposal target. There are significant property sales under way, including the empty sites and outdated buildings around the Royal London Hospital, which will create a new home for life sciences in London: the Whitechapel Road life sciences cluster.
Lord Hunt of Kings Heath (Lab)
My Lords, one of the best examples of cross-government working is the vaccine task force headed by Dame Kate Bingham. The noble Baroness will know that Dame Kate very heavily criticised the Government last week for dismantling our vaccines capability and stopping all the initiatives she had put in train. Is that an example of cross-government cost-cutting?
Baroness Penn (Con)
The noble Lord will know that we have increased the budgets in the health service, but that does not reduce the need to look for efficiencies. I pay tribute to the work of Dame Kate Bingham in delivering the results from the vaccine task force. We are now living in a different world from the one in which she did her work. I am sure we will look to learn the lessons from her work and take it forward in the most appropriate way.
Lord Butler of Brockwell (CB)
My Lords, in following up the question from the noble Lord, Lord Young of Cookham, could the Minister also carry out an audit of the number of special advisers?
Baroness Penn (Con)
I do not believe that it is within my responsibilities to carry out an audit of special advisers, but I will take the noble Lord’s point back to the department. I should probably declare an interest as a former special adviser myself; I would not be best placed to undertake such work.
Lord Berkeley (Lab)
My Lords, perhaps I could be helpful to the Minister and give her some advice. If she wants to save £150 billion, she could cancel HS2.
Baroness Penn (Con)
I always welcome helpful advice. However, I am not sure that I can take it up in this case.
Lord Tunnicliffe (Lab)
My Lords, even though markets have stabilised somewhat in recent weeks, our borrowing costs are extraordinarily high. Debt payments are second only to spend on health and social care. Most straightforward efficiency savings have already been implemented, meaning that the Government may have to spend now to achieve savings later. What would that mean for the Chancellor’s fiscal rules, which have already been broken 11 times in 12 years?
Baroness Penn (Con)
My Lords, initiatives to spend to save were included in the different departments’ spending review bids and they are welcomed by the Treasury. Increased evaluation of policy and programmes allows us to divert resources to where they can make the most difference. Another example of spending to save in SR 2021 was putting more money into the Supporting Families programme. That was informed by a strong evaluation which showed that those targeted interventions up front for families experiencing hardship delivered savings in terms of the number of children entering care and the number of adults and juveniles entering the criminal justice system. It is really hard to deliver spend-to-save measures, but where they work, they can be a really effective tool for delivering better public services for less money.
COP 27: Outcome
(2 years ago)
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Lord McNicol of West Kilbride
To ask His Majesty’s Government what assessment they have made of the outcome of COP 27; and what plans they have to address the issues raised at the conference.
Lord McNicol of West Kilbride (Lab)
My Lords, I beg leave to ask the Question standing in my name on the Order Paper, and I make the House aware of my register of interests.
The Parliamentary Under-Secretary of State, Department for Business, Energy and Industrial Strategy (Lord Callanan) (Con)
My Lords, COP 27 established a new fund for responding to loss and damage as part of other funding arrangements relevant for loss and damage. This is significant in supporting the most vulnerable. New pledges were also made to the Adaptation Fund totalling more than $230 million. However, we had to fight at COP 27 to keep 1.5 degrees alive. While we were disappointed not to make progress on fossil fuels, the deal does preserve the Glasgow climate pact.
Lord McNicol of West Kilbride (Lab)
My Lords, I thank the Minister for his Answer. I had the privilege of attending COP 27 with rewired.earth, a not-for-profit organisation. Like many, we were very concerned at the low level of agreement and ambition for the future. With the war in Ukraine, the energy crisis and the cost of living crisis, it is understandable but very worrying that there was not more emphasis on the net-zero approach. Global emissions remain at a record level and the world is on track for warming well in excess of 2 degrees. I believe Britain can be at the forefront of solving the problem. What mechanisms have the Government put in place to ensure joined-up, consistent policy-making between departments so that policies are aligned with and do not put in jeopardy our pull towards delivering on climate?
Lord Callanan (Con)
I agree with the noble Lord’s initial comments about COP. I think it is worth being a little optimistic, in that over 90% of world GDP is now covered by net-zero commitments and 169 countries have put forward new or updated 2030 NDCs. However, I entirely agree with him that there is a lot more progress still to be made. This Government are very proud of our record. We have the world-leading net-zero commitment in law and all government departments are working together to deliver that.
Lord St John of Bletso (CB)
My Lords, one of the most significant challenges outlined at COP 27 was the rapidly increasing use of single-use plastics globally. The United Kingdom is one of the worst offenders, with almost 99 kilograms per person. What are the Government doing to address this and transition to more sustainable alternatives?
Lord Callanan (Con)
The Government have taken a number of measures—I point the noble Lord to the tax on single-use plastic bags—but clearly there is a lot more that we need to do. I know that colleagues in Defra are working on this.
Baroness Altmann (Con)
My Lords, I praise the Government on all their work so far on the climate issue. Could my noble friend tell the House whether they have plans to embed into the United Kingdom standards in the upcoming Financial Services and Markets Bill the recommendations of the UN high-level expert group on the net-zero pledges of non-state entities, such as pension funds, to ensure that our massive, long-term institutional investor money will support net zero and green growth?
Lord Callanan (Con)
I am sorry to tell my noble friend that I am not responsible for the financial services Bill. I would be very happy to get Treasury colleagues to write to her.
Baroness Walmsley (LD)
My Lords, could I ask the Minister about our overseas investments? It is important that we put our money where our mouth is. Since Boris Johnson announced that we would stop supporting fossil fuels overseas nearly two years ago, what, if any, investments have been made into fossil fuels through British International Investment, UK Export Finance or one of their subsidiaries? If he does not know the answer, would he write to me?
Lord Callanan (Con)
As far as I am aware, the Prime Minister’s pledge has been kept. If that is not the case, I will certainly write to the noble Baroness.
Lord Sikka (Lab)
My Lords, can the Minister confirm that the UK’s share of the cost of reparations relating to damage from greenhouse emissions will be borne solely by the ultra-rich? Research shows that billionaires are responsible for a million times more greenhouse emissions than the average person.
Lord Callanan (Con)
If the noble Lord is referring to the UK’s taxation system, it is clear that those at the top end of the scale pay the largest amounts of taxation by far. If that translates through to our international climate commitments, where we are proud to be contributing something like £11 billion, then I suppose in a strange way the noble Lord gets his wish.
Lord Howell of Guildford (Con)
My Lords, the main problem at COP 27, and the main disappointment, was that it failed to address the central and crucial issue of rapidly rising global carbon emissions. In light of that, is it not time to reassess our own contribution to meeting this crisis, recognising that a 1% reduction in emissions, which our net zero might achieve, is all right, but it is only an example and an example is not going to be enough. We have to think in terms of mobilising old and new technologies on a massive scale with other countries to begin to bring the temperature down from the 2 to 2.5 degrees centigrade it is heading to, and curb the otherwise inevitable climate violence which will hurt a lot of people.
Lord Callanan (Con)
My noble friend makes a very good point of course. Our 1% is not going to make a massive difference, but there are also opportunities attached to it. Our rollout of renewables is going extremely well. We have one of the largest selections of offshore renewables in the world, which has enabled the cost to come down. It is an example we have set through our contracts for difference scheme, and now renewables—particularly offshore wind renewables—are coming in at a fraction of the cost of fossil-fuel generation, so the market is also helping to drive these matters, and of course provides excellent export potential for our industries.
Baroness Blake of Leeds (Lab)
My Lords, as well as the net-zero priorities highlighted at COP 27, the Russian invasion of Ukraine has of course underlined the need to move away from oil and gas and on to homegrown, cheap, clean energy sources that guarantee our energy security. Why have the Government been doubling down on this in regard to fossil fuels, including the loophole to save generators’ profits, while continuing to block the cheapest, cleanest, quickest forms of power —onshore wind and solar?
Lord Callanan (Con)
As I said in response to the previous question, we have one of the fastest rollouts of renewables in the developed world. We have the second largest share of offshore wind after China, but there is undoubtedly still a need for gas as a transition fuel. It makes sense therefore to use that transition fuel from our own North Sea resources, rather than importing it, in a very carbon-heavy manner, in LNG.
Baroness Boycott (CB)
My Lords, when we were in Egypt, the UK Government signed up to the global methane pledge, which commits to a cut in global methane emissions by 30% by 2030, though we have not yet set any domestic targets. Bearing in mind that 80% of methane stems from agriculture and waste, will the Government consider bringing forward the UK’s ban on landfilling biodegradable waste, better biogas capture from landfill and better slurry management?
Lord Callanan (Con)
The noble Baroness raises an important point. I am happy to tell her that, through our green gas levy and support scheme, we are continuing to support the rollout of biomethane—an understated industry in the UK but one doing extremely well—and we need to align our food waste policies to produce even more biomethane.
Baroness Manzoor (Con)
My Lords, my noble friend is well aware of the devastating effects of climate change on countries such as Somalia and India and Pakistan. In Somalia, there were first floods and then drought. I am therefore very pleased to hear that the Government have worked closely at COP 27 to secure compensation. Will my noble friend agree that that framework needs to ensure that the money goes to the people who really need it—those families and children who are currently dying?
Lord Callanan (Con)
I agree with the point made by my noble friend. We will need to make sure that, when the fund is up and running and established, it goes to the people who really need it, which is sadly not the case with some other UN funds.
Baroness Jones of Whitchurch (Lab)
My Lords, in addition to the steps we need to take to curtail our use of excavation of fossil fuels, we need to do something about the consumption of those fossil fuels. What are the Government doing, in terms of our use in industry, home heating and transport systems, to cut down on the demand for fossil fuels and to make sure that all those sectors start to move very quickly towards using renewable energy?
Lord Callanan (Con)
The noble Baroness makes an important point. Energy efficiency should be our first port of call, and indeed it is. Over this Parliament, we are spending £6.6 billion on home energy efficiency measures. In the mini-Statement a couple of weeks ago, the Chancellor announced additional funding of another £6 billion from 2025. We are currently consulting on the £1 billion ECO+ energy conservation scheme. We are looking at additional measures in terms of regulation that we would also need to introduce, and that is just on the domestic side. On the industrial side, we have a suite of measures—the industrial decarbonisation fund, et cetera—to help industry to cut back on its emissions and to save energy as well. Energy efficiency should always be our first port of call, and I agree with the noble Baroness.
Protection of Care Recipients and Carers Bill [HL]
Tuesday 6th December 2022
(2 years ago)
Lords ChamberRead Full debate Protection of Care Recipients and Carers Bill [HL] 2022-23 View all Protection of Care Recipients and Carers Bill [HL] 2022-23 Debates Read Hansard Text
Draft Mental Health Bill
(2 years ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Genetic Technology (Precision Breeding) Bill
Lord Harlech
That the order of commitment of 21 November be discharged and the Bill be committed to a Committee of the Whole House; and that the instruction to the Grand Committee of 21 November shall also be an instruction to the Committee of the Whole House.
Energy Bill [HL]
(2 years ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Callanan
That the Bill be reported from the Committee of the Whole House in respect of proceedings up to and including Wednesday 7 September; and that the order of commitment of 19 July be discharged and the remainder of the bill be committed to a Grand Committee; and that the instruction to the Committee of the Whole House of 19 July shall also be an instruction to the Grand Committee.
Prison Capacity
(2 years ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Ponsonby of Shulbrede (Lab)
My Lords, in response to the prison capacity update Statement read in the other place, I draw Members’ attention to my role as co-chair of the Justice Unions Parliamentary Group.
Using police cells and custody suites to house prisoners for any extended period of time is, in my opinion, an admission of failure by the Government. Does the Minister agree that insufficient capacity to hold prisoners is directly linked to the staffing and workload crisis within the probation service? Staff under excessive pressure are more risk averse and therefore more likely to recall offenders to prison. Does the Minister recognise that one solution to the crisis is for probation to be properly resourced and for workloads to be reduced? Does he agree that probation can take the pressure off prisons?
There has been a 13% rise in licence recalls in the last year. This should have indicated to the Government that prison places were not sufficient to meet the current demand. The Prison Governors Association has said that the use of police cells would place extra pressure on the police service and increase risk to prisoners. The association said:
“The use of police cells under these conditions is an exceptional measure and, in our view, should be reserved for unforeseen circumstances where no other options exist. We do not believe the circumstances that sees this announcement are unforeseen and we believe there are other options open to Government.”
Do the Government agree with the Prison Governors Association?
If the cost of Operation Safeguard is to be met from within the prison budget, what will be cut to pay for these prisoners being placed in police cells? What is the cost of using the police estate, and when do the Government plan to end Operation Safeguard?
Prisons are in crisis. Almost every report from HM Inspectorate of Prisons tells a tale of failure. Just two weeks ago, HM Prison Exeter was given an urgent notification, with crumbling estates, dangerous staff shortages, prisoner-on-prisoner violence and rehabilitation all but non-existent. Ultimately, the public pay the price because they are being kept less safe.
In the other place, Sir Bob Neill, chairman of the Justice Committee, pointed out that, even with increased spending on maintenance, there is still a significant backlog and shortfall in the maintenance budget. Many prison cells are therefore out of commission and not usable, when they ought to be brought back into use. What is being done to accelerate the maintenance programme to get more cells back into use?
Finally, the Minister will be aware that many of the people in the criminal justice system are mentally unwell. Can he assure me that these people will not be among those being held in the 400 police cells as part of Operation Safeguard?
Lord Marks of Henley-on-Thames (LD)
My Lords, this Statement betrays a panic reaction to a crisis of the Government’s own making. Can the Minister say whether the Government finally accept that their policy of increasing time served in prison and their acceptance of prison sentence inflation have increased the number of prisoners? Do they accept that their policies have failed to cut our appallingly stubborn reoffending rates?
Understaffing and overcrowding have given our prisons revolving doors, reducing the chances of education, retraining and rehabilitation within prisons; yet in this complacent Statement, the Government accept no blame. “More rape prosecutions”, they say. Can the Minister say how many more convicted rapists are in prison now than were in 2019?
Then the Government blamed the criminal Bar strike. For years they have paid scandalously low fees to criminal barristers, who finally felt forced to take action. I remind the House of my registered interest as a practising barrister, although I have conducted no criminal cases for decades. If they had settled six months earlier, on the terms that were ultimately offered, how many police cells would now be unnecessary?
How do the Government plan to create more prison spaces, as they say they do, apart from the building program, without yet more overcrowding or even more shunting of prisoners around the prison estate to wherever space may be found, disrupting training, release preparation, visiting arrangements and family relationships, all of which are essential to rehabilitation?
I say yes to body cams, as mentioned in the Statement, and yes to preventing smuggling, but may we please have an end to short-term, panic responses to increased prisoner numbers, for which the Government’s failures alone are responsible, and have a corresponding increase in concentration on rehabilitation?
The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Bellamy) (Con)
My Lords, I thank noble Lords for the points just made. Before I reply to them, I should say that Operation Safeguard is a temporary measure to meet a recent surge in demand for prison places and to keep the public safe. This is due in part to an exceptional number of prisoners held on remand as a result of the barristers’ strike, and the surge in offenders receiving custodial sentences. The prison population rose by over 1,500 in October and November, a highly unusual increase, which has caused pressure on the adult male estate but not the female or youth justice estates.
Operation Safeguard is a long-standing scheme, also used by the Labour Government, which allows about 400 police cells to be made available for prisoners to be held temporarily before they are moved to prison. It enables better management of the reception process, and in the main, it is anticipated that prisoners are held in police cells for only one night before being moved into a reception prison. This operation enables the police to mobilise their operations and work more closely with HMPPS.
Turning to the various points made, the Government do not accept the link made in relation to the probation service by the noble Lord, Lord Ponsonby. We are doing our very best to increase resources for the probation service, to recruit more probation officers and to improve the service to the best of our ability. This extra pressure has been rather unexpected. The Government do not accept that no other options exist; otherwise, we would not have triggered Operation Safeguard, the Government’s primary duty being to keep the public safe. The operation will come to an end as soon as possible, but I cannot give a date.
We are pursuing the prison maintenance programme as far as we can. We have gone around in a circle to some extent: the maintenance work, which was increased recently, has left us with fewer cells. Within the operational possibilities, improving maintenance in prisons is a priority.
As far as mental health is concerned, respectfully, I entirely agree that vulnerable offenders, whether suffering with their mental health or otherwise, should not be part of Operation Safeguard. My information is that those prisoners are not being held in police cells and that prisoners are properly assessed before they move to prison cells.
On the other points raised, the question of sentencing is a matter for the courts. It is right to point out that reoffending is falling, albeit slowly. But it is falling, and we seem to be on a good track in that regard. The Government are fully committed to the rehabilitation of prisoners. On earlier occasions in this House, we have discussed the steps taken, including education in prisons; employment advisers in prisons; accommodation for prisoners being released; and equipping prisoners with an ID pack consisting of a bank account, national insurance number and so forth. That rehabilitation programme is contributing to the steady, albeit slow, fall in reoffending. I hope I have dealt with the main points raised.
Lord Carlile of Berriew (CB)
My Lords, can the Minister point to any empirical evidence or analysis that demonstrates that the doubling of the prison population in the last 40 years has made this country more law-abiding and less violent? Is he able to commit the Government to a new prison policy that is based on merit and not headlines?
Lord Bellamy (Con)
My Lords, I am not in a position to comment on the last 40 years, but, respectfully, I would not make any link between the Government’s policy on prisons and the other matters to which the noble Lord referred. On the second part of his question, as I said just now, sentencing policy is a matter for the courts and not the Government.
Lord Clarke of Nottingham (Con)
My Lords, I think I am correct in saying that we have the second highest incarceration rate in the western world by far, after the United States of America. I have been around for the last 40 years and, in recent years, successive Governments—Labour and Conservative—have tended to introduce an annual criminal justice Bill increasing the maximum sentences for offences that have featured most in the popular press of the previous 12 months. As there is no evidence whatever that the length of sentence has any effect on the incidence of crime, and as the Minister also acknowledges the value of rehabilitation—it is the most valuable service prisons can give the public, because it saves them from future offences that might be committed, unless people go straight when they leave—does he agree that reversing the trend on sentencing and concentrating more on rehabilitation work, which he rightly praises, would be a valuable change in criminal justice policy if the new Government were to adopt it in the next two years?
Lord Bellamy (Con)
I thank my noble friend Lord Clarke for that question. The Government place the highest premium on rehabilitation and reducing the reoffending rate. The Government’s position is that this is not the moment to consider a change in sentencing policy.
Lord Brooke of Alverthorpe (Lab)
My Lords, will the Minister look at, and be so kind as to bone up on, the draft mental health Bill? A section of it deals with the prison population and the inadequate treatment currently given to those with mental health problems. There are some beneficial changes coming, but we need much more. They address only the really vulnerable, and there are many people in prison with serious mental health problems that are not being addressed. The way forward is to give them greater support and assistance. In that context, we perhaps ought to take a more liberal view and not solely employ psychiatrists but bring in therapists to assist with rehabilitation.
Lord Bellamy (Con)
I thank the noble Lord and will certainly bone up on the mental health Bill, as he suggests. It is true that the proportion of prisoners suffering from mental health problems is too high. We, as a Government and as a nation, should try to do something about that, and I hope the mental health Bill will represent progress in that regard.
The Lord Bishop of Carlisle
My Lords, my friend the right reverend Prelate the Bishop of Gloucester much regrets that she is not able to be present today. I know she shares my concern over this Statement since we, like others who have spoken, believe that the emergency use of police cells for prisoners is deeply worrying. We greatly welcome the increase in the number of police officers but feel that it is connected to the larger number of people going to prison, and that that should not be the case. Initially I wanted to ask about rehabilitation, but that question has already been addressed. I accept that the question of sentences is for the courts, but can the Minister help us by saying what the Government are doing to promote community and non-custodial sentences, rather than people simply going to prison?
Lord Bellamy (Con)
My Lords, as I have just said, that is an area for the courts. Judges, of course, have fairly extensive training in sentencing and I think I can fairly say that no judge would send anyone to prison if a community or other sentence was a realistic option.
Baroness Fox of Buckley (Non-Afl)
My Lords, I concede that many members of the public want tougher sentences for serious crimes, but can the Minister comment on a key point made at the North Wales Women’s Centre’s 21st anniversary in Rhyl that I was at the other day? They made the point that far too many prisoners are locked up for short, two-week sentences for non-violent crimes, rather than the Government investing in alternatives to custody. Secondly, if capacity is at such a crisis point, will the Government use the opportunity to finally deal with IPP sentences? They were so awful they were abolished in 2012, but still thousands on IPP are languishing in prisons indefinitely. It is time to end them and free up the space.
Lord Bellamy (Con)
My Lords, in relation to the comment from Rhyl in north Wales, I entirely take the point that is being made. Unfortunately, the courts sometimes feel that a short sentence is the only available, or the best, option in those circumstances—and that, as I have already said, is a matter for the courts. As far as IPP prisoners are concerned, the Government will respond to the recent report from the Justice Committee of the other place, I hope next week.
Lord Cormack (Con)
My Lords, my noble friend said that female prisoners were not involved in today’s announcement, and I completely understand that. However, is it not time to move to a stage where men who are physically male are not allowed to share or be incarcerated in women’s prisons? Surely, we can have enough respect for women to end this deeply unfortunate practice.
Lord Bellamy (Con)
My Lords, action is being taken on transgender issues in the prison estate. I do not have the details with me, but I will write to my noble friend with the up-to-date position.
Lord Hastings of Scarisbrick (CB)
My Lords, the Minister has already said that if the Government had an alternative, they would put it in place. The issue of IPP sentences has been mentioned: 1,988 men are held under IPP charge. They should be set free. The former Prime Minister from the Minister’s own party decided that that was no longer an appropriate sentence, and why the Government persist with it is a bemusement. The number of those held on remand has tripled in the last 15 years and many of those remand prisoners who are young black men do not need to be held in prisons. They are being treated in a discriminating and racially inappropriate manner, simply because of suspicion. The Government ought to end the excessive use of prison for remand.
Lord Bellamy (Con)
The matter of prisoners being held on remand, particularly black prisoners, is again a matter for the courts, before the question of remand or bail comes. The Government respectfully would not accept that it is a matter of racial discrimination. If it were, it would be regrettable—I can certainly say that. I would point out to your Lordships that, in terms of young offenders, and in particular young black offenders, there is very significant success in diversion from the court process, away from youth courts and so forth, so that the number of young offenders coming before the courts has fallen very significantly in recent years.
Lord Mackenzie of Framwellgate (Non-Afl)
My Lords, in my experience, overcrowding in prisons leads to reduced security, which concerns me. The Minister will be aware of the recent case of David Norris, the murderer of Stephen Lawrence, who was found with a mobile phone in his cell at Dartmoor for the second time. Will the Minister tell the House what action the MoJ has taken to stop this egregious breach of security?
Lord Bellamy (Con)
My Lords, I cannot comment on the specific case, although I know that action has been taken. Again, I can follow up with details of what action has been. The Ministry and HMPPS do all in their power to reduce overcrowding wherever possible. I accept the noble Lord’s observation that this needs constant attention.
Lord Farmer (Con)
My Lords, it is interesting that the whole increase is in the adult male estate. It is also interesting that there is a tremendous emphasis on not having women in prison, one of the reasons being that they are primary carers and that relationships are important to them. We have something like 4,000 women in prison and 80,000 men in prison. We do not have the same emphasis for the men. The Statement talks of rehabilitation and my noble friend has also mentioned employment, education and training. There was no mention of relationships, yet the Government’s own data says that prisoners who have family relationships are 39% less likely to reoffend than those who do not. I suggest that the Minister and all other Ministers mention family relationships as part of the reducing reoffending programme, because 39% is not a statistic that we should ignore.
Lord Bellamy (Con)
I accept my noble friend’s points about family relationships and their importance. They should be borne in mind in the rehabilitation programme and in post-release care.
Lord Dholakia (LD)
Community service orders are far more effective than short-term sentences. As a large number of cases go through magistrates’ courts, are we making effective use of such sentences? If not, why not?
Lord Bellamy (Con)
As I think I said earlier, I am sure that a court would always prefer to impose a community sentence if it can.
Baroness Jones of Moulsecoomb (GP)
I would like to correct the Minister. He said in an earlier answer that part of the problem was the barristers’ strike. That is absolutely not true. Part of the problem is that the Government are not funding them properly; that is why we have such a problem. On a wider issue, the Government have started sending climate change protesters to prison for quite long periods of time. I suggest that it would be more appropriate to send the climate criminals to prison and let the protesters out.
Lord Bellamy (Con)
On a point of detail, the Government do not send anyone to prison. These are court decisions.
Lord Watts (Lab)
I apologise for my earlier intervention. The Prison Officers’ Association tells us that there is some space in our prisons: even after the need to do more repair and maintenance, there is still capacity there. But the association says it cannot use that capacity because of recruitment and retention problems. What are the Minister and the Government going to do to staff up our prisons so that they can use the space that they have?
Lord Bellamy (Con)
We are working hard on a recruitment programme for prison officers. I do not have the exact figures in front of me, but I think we have recruited an additional 5,000 or so in recent times. I will give the noble Lord the exact figure as soon as I can obtain it.
Baroness Wheatcroft (CB)
My Lords, many prisoners arrive illiterate or barely literate, yet earlier this year His Majesty’s Chief Inspector of Prisons said that
“it is astonishing that prisoners can serve their sentence without being taught to read or to improve their reading skills”.
So they leave prison illiterate, cannot find work and reoffend. Will the Minister undertake the cost-saving measure of ensuring that every prisoner is taught to read?
Lord Bellamy (Con)
My Lords, in relation to specific costs, no, but in relation to the general question of whether we should improve and develop educational facilities in prison, particularly so that prisoners can read, yes, the Government entirely agree with that aspiration.
Baroness Berridge (Con)
My Lords, I serve on the Joint Committee on the Draft Mental Health Bill, which has been mentioned before. In a secure mental health hospital, there will be prisoners who are civilian patients as well as people who have been transferred from the prison estate. Hopefully, of course, they are treated and then are well enough to go back into the prison estate. However, do we have an issue here of people still being within secure mental health hospitals, where beds are scarce, because they cannot be moved back into the prison estate?
Lord Bellamy (Con)
We do have an issue, as my noble friend puts it, around managing mental health in the community and among prisoners. I hope the Mental Health Bill will help to address that. This is an ongoing problem of which the Government are well aware and to which we are working towards solutions.
Baroness Manzoor (Con)
My Lords, I would hope not only that those in prison are able to read but that we are doing everything we can in the education system to ensure that no child leaves school without being able to read and write. What are the Government doing to ensure that children and young people are made aware of the dangers of prison and illegal acts much sooner in the system, so that we are not catching people after they have offended?
Lord Bellamy (Con)
My Lords, that is a question directed to the education system and slightly outside my present brief. But I would hope that everything is being done to educate children in following the right way of life.
National Security Bill
Tuesday 6th December 2022
(2 years ago)
Lords ChamberRead Full debate National Security Act 2023 View all National Security Act 2023 Debates Read Hansard Text Watch Debate Read Debate Ministerial Extracts Amendment Paper: Consideration of Bill Amendments as at 16 November 2022 - large print - (16 Nov 2022)
Lord Sharpe of Epsom
That the Bill be now read a second time.
The Parliamentary Under-Secretary of State, Home Office (Lord Sharpe of Epsom) (Con)
My Lords, the first responsibility of any Government is to ensure the safety of their citizens, both at home and abroad. For this Government, it is not just a responsibility but an absolute priority. The introduction of the Bill is a result of the manifesto commitment to ensure that our law enforcement and intelligence agencies have the powers they need to combat the evolving nature of state threats. That is why we are adopting a robust and front-footed posture. The Bill will confront and tackle state-threat activity that may seek to undermine the democratic principles of the United Kingdom and the security of its people.
I know noble Lords will all join me in paying tribute to those in our law enforcement and intelligence agencies, who go above and beyond to keep us all safe every day. They are the very best of us and they have my enduring gratitude, respect and admiration. For all that they do, we must hold up our end of the bargain and ensure that they have the necessary tools and powers to do their vital work, which is precisely what we will do through the measures in the Bill.
It is worth looking back for a moment to understand the context in which we are discussing these matters. Russia’s recent illegal invasion of Ukraine has shown the essential need to bolster our national security and ensure that we have the ability to counter state threats. The House will also recall the events in Salisbury in 2018, which are a clear reminder that we need laws that seek to deter serious harm from being inflicted on our soil. As that outrageous episode underlined, the dangers we face are real. We must continue to develop our robust and effective apparatus and act now to further harden our resilience. This is why the National Security Bill introduces enhanced powers for our intelligence and law enforcement agencies to do even more to counter state threats and strengthen the security of the United Kingdom.
States are becoming increasingly assertive and sophisticated in how they advance their objectives and undermine the safety and interests of the UK. It is therefore essential that we are able to deter, detect and disrupt state actors that seek to harm the UK by covertly targeting our national interests, sensitive information, trade secrets and democratic way of life. The National Security Bill will protect these interests and uphold our democratic principles, consolidating the safety of our citizens through essential new measures designed to address an ever-evolving threat. We are determined to advance the safety, security and prosperity of the UK, and the Bill is designed to achieve precisely that.
I will now speak to the key measures set out in the Bill. The Bill will modernise the law against espionage, replacing the 1911 to 1939 Official Secrets Acts. New offences of foreign interference have been carefully designed to tackle the threat from any foreign power that chooses to act with malign intent. It is important to stress that these offences are actor-agnostic, and any state or individual seeking to harm the UK will be met with the full force of these newly established powers and tools, regardless of their origin.
These offences, and the others introduced in Part 1, will enable the disruption of illegitimate influence by foreign states intent on advancing their own interests or seeking to damage the UK. It will be an offence for foreign powers improperly to interfere with our democracy and civil society through covert influence, disinformation and attacks against our electoral process.
The Bill also has police powers designed to address the specific threat of foreign power activity. There are specific powers of arrest and detention which reflect the threats posed by such actors. There are also additional police powers to support investigations into foreign power threat activity, focusing on obtaining information on financial activity. These powers will ensure that the police have the tools they need to fully investigate state threat activity and bring those acting for foreign powers against UK interests to justice.
Furthermore, the amendment to the Serious Crime Act 2007 will provide essential protection to those who discharge authorised national security functions on behalf of His Majesty’s Government. The amendment will enable more effective co-operation with our international partners. It is about addressing operational challenges and removing the personal risk that trusted and dedicated individuals face for carrying out their proper, official duties on behalf of our intelligence community and Armed Forces. I welcome the comments of Sir Alex Younger, the former head of our Secret Intelligence Service, who correctly highlighted that it is morally wrong that the risk of liability should sit with individual officers acting on behalf of our agencies. Any risk should rightly sit with the Government and this amendment supports that aim.
Preventing and disrupting state threats is one of the Government’s prime concerns. In a very small number of cases, it will still not be possible to bring a prosecution forward. We must therefore ensure that a backstop is in place to prevent state actors conducting harmful activities in the UK. We will introduce new state threat prevention and investigation measures, enabling restrictions to be imposed, when necessary, where there is a reasonable belief of involvement in foreign power threat activity.
It is important to clarify that this will be a tool of last resort, to be used only where it is believed that there is involvement in foreign power threat activity, there is a necessity to impose measures and a criminal prosecution is not available. These measures will also remain proportionate to the specific threat posed by an individual and be subject to rigorous checks and balances, including by the courts, to guarantee their appropriate use.
The Bill will also introduce measures to prevent the exploitation of the UK’s civil legal aid system by convicted terrorists. It will protect the UK’s civil damages system by ensuring that terrorists’ own misconduct is taken into account in an award from public funds. Courts will also be provided with the ability to order that civil damages awarded to a person are frozen or forfeited where those funds might be used to support terrorism. These provisions will allow the Government to take steps to ensure that a claimant’s damages cannot be used in this way.
With regard to legal aid, access to publicly funded services is a benefit of being part of a democratic society. This Government remain wholly committed to providing legal aid funding for those unable to resolve their issues alone, but there must be a line. Individuals who commit acts of terrorism are rejecting the values of state and society and it is right that the benefit of legal aid—a benefit of our democratic society —is removed from them. These measures will help instil a rigorous process that provides greater transparency around how public funds are distributed.
The Bill will also introduce a foreign influence registration scheme, requiring certain foreign activities and influence arrangements to be registered. The scheme’s aims are twofold: to strengthen the resilience of the UK political system against covert foreign influence and to provide greater assurance around the activities of certain foreign powers or entities.
I must make clear that we will continue to welcome open and transparent engagement from foreign Governments and entities. The scheme itself will play a critical role in encouraging such transparency and, crucially, will deter foreign powers that wish to pursue their aims covertly. The implementation of this scheme delivers a key recommendation of the Intelligence and Security Committee’s 2020 report on Russia and has been assisted by consultation with our friends in the United States and Australia, which have implemented similar schemes.
The National Security Bill is a dynamic piece of legislation that reforms our approach to hostile state actors and the threats that they pose. The introduction of our foreign influence registration scheme will ensure safety in our systems and transparency in our political processes. I look forward to engaging with all noble Lords on the Bill. I welcome discussion both today and as this essential piece of legislation progresses through this House. As I hope I have demonstrated in this speech, the Government are steadfast in their determination to protect our people, our values and our democracy. With that critical objective in mind, I beg to move.
Lord Coaker (Lab)
My Lords, I thank the Minister for his introduction and the very helpful briefings he has given me. I also thank the services for arranging that. While in the business of thanks, I thank the services for all they do on our behalf now, in the past and in the future.
First of all, I will set some context for this Second Reading debate. We are all united in our desire to protect our country, our democracy and human rights and freedoms across the world. We agree with the Joint Committee on Human Rights, which said in its recent report that, overall, this Bill
“is a welcome attempt to modernise espionage offences … and … broadly in line with recommendations of the Law Commission’s … review”.
We support the passage of the Bill and much that is in it.
The Bill introduces new measures to update the protection of the UK’s national security, the safety of the British public and the UK’s vital interests against modern hostile activities and threats posed by state and non-state actors. Many of these threats reflect the modern age in which we live, through cyberattacks and information and disinformation campaigns that are used to undermine or destabilise our institutions or policies, with direct interference always a possibility. All of this is delivered in ways and by using methods that were unthinkable in the past, so change is long overdue.
However, in responding to these changes, in renewing our national security interventions and in reflecting on our policies, we should never undermine the very values that we cherish and seek to protect. So, as I said, in supporting the Bill, we will challenge the Government, hold them to account and challenge them to explain why certain policies and powers are needed. This is not to undermine national security but to demonstrate confidence in our institutions. Transparency and openness are, as far as possible, a strength. Shining a light on what we do—debating security in this Parliament and implementing actions that are then subject to scrutiny here and in the courts—stands in sharp contrast to other states and bodies across the world that are shrouded in mystery and operate in total secrecy in the shadows. The contents of this Bill, therefore, are to be welcomed in general, but there are areas which need further debate during this Second Reading, in Committee and beyond.
First, I say to the Minister that, in discussing such changes and details, there must be absolute confidence that the Government practise what they preach. Does the Bill make it absolutely clear that a Foreign Secretary, or any other Minister, should not be meeting former KGB officers in secret and without officials, and that, if advice is given by the Security Service about the appointment of any Peer, as reported, it is acted on? The Public Administration and Constitutional Affairs Committee said in its report, published just last Friday:
“The reappointment of the home secretary sets a dangerous precedent. The leaking of restricted material is worthy of significant sanction under the new graduated sanctions regime introduced in May, including resignation and a significant period out of office.”
In his response, can the Minister reassure us all that everyone in the Government will act according to the principles that have been have laid out, and that the Bill will help to achieve this? It seems to me that someone working for any of the services doing the same would at least have been severely reprimanded, if not sacked.
Clause 1(1)(b) refers to
“the safety or interests of the United Kingdom”,
and the term is used or implied throughout the Bill. Who decides what that is? What are the “safety or interests” of the UK; what does the term include and exclude? Sometimes there is real debate in this House as to what the actual interests of the UK are. Should we not seek to define that, rather than just leaving it to the courts? Too often, we abrogate our responsibility; we are the legislators, and we should debate such issues. Again, as the JCHR says:
“More thought must be given to how the legislation will affect whistle-blowers, protesters and journalists who are engaged in activities which are part of a healthy functioning democratic system.”
This was a warning from a cross-party Joint Select Committee of this Parliament. Do we need a public interest test in the Bill? I have no doubt that this will be debated. What protections are there for investigative campaigners and journalists? It simply will not be good enough for the Government to say that there is nothing to fear. What does it mean that an offence is committed only if the “foreign power condition”, which is explained later in Bill, “is met”? Yet, from Clause 29 onwards, the clauses do not say “hostile power”, so the scope is extended, and we will need to discuss and debate that.
Who has to register under the lately added foreign activities and foreign influence registration scheme? How were the exemptions in Schedule 14 arrived at? A lot more detail and clarity will be needed. The Minister will have to be a lot clearer than, for example, in Clause 63, which states that “specified persons” will be “specified … in regulations”.
So many bodies, groups and individuals receive foreign support quite legitimately. We are told by the Campaign for Freedom of Information that the following have recently received or receive some funding from foreign Governments for their international work: Action Aid, Anti-Slavery International, ClientEarth, Global Witness, Privacy International and Reprieve, to name a few. Are they affected by the regulations in the legislation? Who else is and why? These are serious questions. Protecting information should not be about protecting Governments from the exposure of mistakes, embarrassment or worse.
In keeping the Bill—or Act as it will be—under review, who will be the independent reviewer? Jonathan Hall, the Independent Reviewer of Terrorism Legislation, keeps TPIMs under review. Will it be him or his office or whoever follows him? Will they be responsible for the STPIMs in the Bill? What about other parts of the Bill? Mr Hall has said:
“My answer is that I think it actually is quite a good fit for the reviewer’s job, and I think it probably is right that the person who does the independent review of terrorism legislation should also do the state threats legislation.”—[Official Report, Commons, National Security Public Bill Committee, 7/7/22; col.6.]
Do the Government agree? What is the thinking on that?
Surely, as the Minister outlined, one of the most contentious parts of the Bill is Clause 28. It creates an exemption under the Serious Crime Act for MI6, GCHQ and our Armed Forces when acting in the proper exercise of any function of an intelligence service or Armed Forces. We believe that this would remove the need to get a Section 7 authorisation under the Intelligence Services Act 1994, which allows the Secretary of State to give immunity from civil and criminal liability for pre-authorised crimes abroad. We believe there is a real risk that Clause 28 removes the role of Ministers even when there is a reasonable defence also available. The implications that possibly result from this are clear and, at the moment, unjustified. Why do the Government believe it necessary? As the House of Commons Library briefing stated:
“The provision therefore appears to be intended to extend immunity from criminal prosecution to actions which could not be proved to have been reasonable.”
This is hugely contentious and, notwithstanding what we may hear about further reassurances given to the ISC, it clearly cannot in its present form be right. Many senior MPs of all parties have criticised the clause for allowing actions with no safeguards, such as ministerial approval. As my colleague Holly Lynch MP said, or as David Davis MP said, how will we be able to criticise other nations for laws which allow their services to conduct foreign operations in that way when we will have a law which will do the same?
There are many other aspects to the Bill, including restricting the award of damages and the granting of legal aid, which will require debate. We also look forward to associated actions regarding the online harms Bill and what liaison is taking place for that. The need for joined-up government is clear if we are to take the example of Hikvision. Does this Bill deal with a technology that has raised such security concerns that the Government themselves will exclude it from their own buildings? In Committee, the Minister also committed to considering whether the Bill should clarify whether only sites located in the UK can be designated as places of detention. Has that been clarified?
We all wish to ensure national security. We all wish to modernise to meet the fresh challenges and the new threats we face. This Bill is an important chance for us to debate where the line should be drawn between security and our freedoms and democracy. Eroding those freedoms and human rights cannot be justified simply by saying “security” or “national interest”. They need to be argued for, with careful decisions made as to the correct balance. This Bill gives us the chance—the opportunity—to do that and we should take it. In doing so openly and transparently, we can showcase our democracy and respect for freedom even in the face of the new threats we face. Of that we can, and should, be proud.
Lord Marks of Henley-on-Thames (LD)
My Lords, in general we support the aims of this Bill. We agree that our national security law needs updating, and we agree that many of the threats posed by foreign actors to our national security are new and require fresh and targeted solutions. The Bill attempts to achieve all that and in many ways, which the Minister ably explained, it does so. I add our thanks to those of the Minister and the noble Lord, Lord Coaker, to the security services for all the brave, efficient and crucial work they do to protect our national security. However, we have a number of concerns. I shall concentrate largely on the criminal offences proposed in Part 1 of the Bill.
Our first concern is one of principle, because restrictions proposed in the Bill threaten important rights and liberties, but we are also concerned that the Government have missed serious adverse and almost certainly unintended and unforeseen consequences which follow from this proposed transformation of our national security law. These concerns overlap, where there are restrictions of our rights and liberties which were almost certainly unforeseen, and I shall deal with them together.
Our first objection in principle is that the breadth of many of the definitions in the Bill would substantially and unacceptably broaden the scope of the protections ostensibly afforded to national security. Let us consider protected information. The definition within Clause 1 is unduly wide. It covers any information where
“it is reasonable to expect that access to the information … would be restricted in any way”.
So the information does not need actually to be restricted to classify as protected information, disclosure of which is to be criminalised by the Bill.
Then there is the foreign power condition—the foundation of a major expansion of the reach of the national security provisions, and applicable to a number of the new proposed offences. I quite understand the need to replace the concept of a national enemy with the concept of a foreign power, in the attempt to update our legislation and rid it of old-fashioned distinctions between friend and foe and to make it “actor-agnostic”, as the Minister described it. But the attempt is not trouble-free.
In particular, the foreign power condition must be met for an offence under Clause 1 of obtaining or disclosing protected information to be made out. The condition is defined by Clause 29 and relates, broadly, to conduct that is carried out for or on behalf of a foreign power, which may be any friendly non-UK Government. Conduct qualifies as carried out for or on behalf of a foreign power if it is carried out with financial or other assistance provided by a foreign power, so a state-backed broadcasting organisation or state-run company funded by a friendly Government would have such financial assistance. It follows that anyone who obtains or discloses information which they “ought to know” is prejudicial to the interests of the United Kingdom, however defined—and I agree with the noble Lord, Lord Coaker, that there is no definition available; it is a desperately controversial test—on behalf of a foreign nationally owned broadcaster is at risk of prosecution and conviction of this very serious national security offence.
The freedom of journalists working for foreign broadcasters might be substantially restricted if, for instance, they came by and used leaked information which the UK Government might prefer that they did not have and thereby found themselves at risk of being prosecuted for a Clause 1 offence. The relationship between the conduct and the foreign power may be indirect, so any such conduct meets the foreign power condition wherever it appears in the Bill. For example, it also appears in the definition of the new offence of obtaining or disclosing trade secrets under Clause 2, which carries a maximum term of 14 years. Clause 2 again is very widely drawn; it covers unauthorised obtaining, recording or retention of a trade secret, for whatever purpose, on behalf of any body deriving financial assistance of any sort from a friendly overseas government body. This presents a significant threat to a wide range of investigative journalism on matters of importance and public interest, which ought to be aired in public even if the owners of such information might regard such airing as highly unwelcome.
In the unforeseen consequences category, the Clause 3 offence of assisting a foreign intelligence service presents a serious difficulty. Under this Bill, the foreign intelligence service can be that of any friendly foreign country; an offence under the clause, again carrying a 14-year term, penalises all conduct to assist any foreign intelligence service in carrying out UK-related activities—that is, any activities, of whatever nature, taking place in the UK. So, a UK citizen who assisted Mossad within the UK to recover goods looted by the Nazis, or who helped the CIA find and arrest war criminals, would be guilty of an offence, unless they could show that they were acting under a UK legal obligation or effectively on the direction of the British Government. If they could not show that, I can see no defence under the clause as drafted. How can that be right?
The unauthorised entry to a prohibited place offence under Clause 4 is also far too wide, penalising even inspection of a photograph of a prohibited place, even for journalism, if the accused should have known that the purpose was prejudicial to the interests of the UK. And that is not just UK defence or security interests, but any interests at all. So, photographs of any environmentally damaging activity carried on by government as a matter of policy—fracking, for example, if it were ever again authorised—would count. That is not the defence of national security; that is the suppression of legitimate investigation and dissent.
The Home Secretary told the House of Commons in a Statement on national security and this Bill in particular on 1 November, a week after her reappointment:
“Now, as our markets integrate, we need to think about the future of our industry and innovation. Our economic security guarantees our economic sovereignty just as our democratic security guarantees our freedom … Britain has been on the frontline of the defence of liberty for generations”.—[Official Report, Commons, 1/11/22; col. 790.]
The Bill fails to ensure that the steps we take to defend our liberty are targeted and limited to what is necessary for that defence of liberty. So, the first task for this House at the later stages in the Bill will be to cut down the scope of conduct that is unnecessarily and wrongly caught by the Bill as drafted.
However, much of the discussion on the Bill has been as to whether there should be a public interest defence to the new offences. We regard such a defence as essential. It offers the prospect of avoiding convicting journalists, investigators, campaigners, whistleblowers and many others who should not be targeted by the criminal law at all. Such a defence must be broad enough to protect the free flow of information on which democratic political discourse depends, and it must protect from criminal sanction activities that may infringe private rights of physical or intellectual property where such infringement is justified in the public interest. As the NUJ briefing, which many of us will have received, put it succinctly:
“There should be no situation in which journalists risk being classed as spies or traitors … A free press is one of the conditions of a pluralistic democracy and the UK government should not close down scrutiny of its activities.”
I do not believe that the public interest defence should be available only in Clause 1 cases of obtaining or disclosing protected information. It should be no less applicable in cases under Clauses 2 to 5 and Clause 16, and possibly Clauses 13 and 15 as well.
The possible conditions of a public interest defence have been widely discussed, but I suggest they should include, in some form, each of the following. First, it should be for the defendants to raise the defence. I leave open the question of whether the burden of proof should be on the defence to prove the defence, or whether, once that defence is raised, it should be for the prosecution to rebut it. However, if the burden is to be imposed on the defendant to prove the defence, that should be on the balance of probabilities, and it should also be specifically incumbent on prosecuting authorities to consider the prospect of such a defence succeeding before a decision to prosecute is made. Unnecessary and unmeritorious prosecutions cause untold heartache and substantial loss. The prospect of being prosecuted has a serious chilling effect on conduct in the public interest, and the risk of such prosecutions should be carefully weighed before they are ever brought.
Secondly, the manner in which the defendant has acted should always be a factor to be considered. Thirdly, so too should the good faith of the defendant be considered, and whether or not the defendant reasonably believed that their conduct was in the public interest. Fourthly, proportionality should always be a factor, whether or not the conduct was no more than was necessary to protect the public interest asserted by the defendant. Fifthly, whether or not the conduct was for personal gain should be considered, but the fact that a defendant stood to gain from their conduct should not be enough to rebut the defence; after all, journalists stand to gain from scoops. Finally, a jury should always be left to consider the overall reasonableness of the defendant’s conduct in the light of a balancing of possible harms risked against possible benefits to be derived by the public.
In an interconnected world, many of us work in a number of professional fields, collaborating with agencies of foreign Governments. Particularly sensitive is the work of journalists, academics, researchers in commercial fields, and many working directly for friendly foreign Governments and international organisations. My noble friend Lord Wallace of Saltaire will elaborate our concerns about the foreign influence registration scheme, or FIRS, and the degree to which academics will be snowed under by a bureaucratic avalanche in working out what they need to do to comply with this law’s requirements, and then in undertaking the necessary registrations to comply with an unnecessary and overcomplicated registration system which threatens to stifle and deter international academic co-operation. Journalists, broadcasters and researchers in the commercial world, as well as the media, are equally under threat.
On a happier note, it is a relief to note that the Government have excluded giving and taking legal advice from the scope of this part of the Bill; a completely justified protection of legal professional privilege and the right of all to secure legal advice in confidence. However, the Bill contains a pernicious attack on the right to equality before the law. Clauses 82 to 84 give a court power to reduce damages payable by the Crown to any claimant bringing national security proceedings against the Government. But national security proceedings include any case where any of the claimant’s evidence or submissions, of whatever nature, relate to the activities of any security service, here or overseas. So if a claimant sues the UK Government—any department—and adduces evidence of wrongdoing by, for instance, the Saudi or Rwandan intelligence services, the Crown is entitled to seek an order that the damages will be reduced, and to seek that order at any stage in advance of final judgment. Granted that one of the factors the court must take into account is whether the claimant has been guilty of terrorist wrongdoing, but the lack of that factor does not avoid a reduction in damages. That is inequality before the law. It hands the Government a tool to stifle legal claims against them. It is inimical to liberty.
So too is the proposed ban of up to 30 years on the grant of civil legal aid for anyone convicted of any terrorist offence or an offence having a terrorism connection. The ban is not just for the most heinous terrorist offences but minor accomplice offences, which may have been committed by a family member and which, as the Joint Committee on Human Rights and the Law Society point out, may not be of a very serious nature. Further, the legal aid ban is not just for proceedings connected with terrorism but any civil legal aid to which they might be entitled for any purpose, thus largely putting them outside the protection of the law.
Although the general tenor of the Bill and its purpose are understood and accepted, at the later stages of this Bill we will be trying to make sure that it properly reflects the concerns that we have.
Lord Evans of Weardale (CB)
My Lords, I welcome the introduction of this Bill. It has been very clear for many years that our official secrets legislation is extremely elderly and was set up to counter threats that have changed and developed a great deal. It is right that we should be revisiting it. I hope that, in due course, the Government will seek an opportunity to revisit the Official Secrets Act 1989, which is also in need of reform, in my view.
For most of the last 20 years, the principal threat to national security we have faced in this country has been terrorism. While the terrorist threat continues to be very significant, throughout that period we have also faced state threats and foreign interference in this country’s activities. From time to time, that has become evident—for instance, with the Litvinenko killing or the Salisbury attacks—but much of what was going on was not visible. Indeed, many people, including some in public life, did their best to turn a blind eye to foreign interference activities throughout that period. That has been much harder to do since February and the atrocious invasion of Ukraine by the Russians. However, it is important to recognise that the threat of foreign interference does not come from just one country. We have seen a variety of foreign threats from several countries over that period, including a number of countries one would have viewed as a friend or ally in any other circumstances. Therefore, we need to have the ability to push back against foreign interference that is a threat to us, from whichever country it originates. In that regard, I think the Bill gets the balance correct.
The Bill also learns from a number of the legal measures that have been put in place to counter terrorism over the last generation. The introduction of prevention and investigation measures in respect of foreign interference seems to me an appropriate measure. We have been very careful in this country to apply the terrorist PIMs carefully, proportionately and in very small numbers, and I think we will learn from that in the way we apply the same mechanism to foreign interference threats.
I welcome the introduction of a foreign interests registration system; we have had a gap in our armoury on this for some time. It has worked well in the United States and Australia, and we need now to introduce similar legislation here. I have some sympathy for some of the concerns expressed about the definition of foreign interference, and I hope that, in Committee, we will be able to refine the definition and make sure that it bears heavily on those who cause a real threat but not on those acting legitimately. There are areas of concern here.
I welcome the proposals to introduce an offence relating to interference in elections, but I do not think that it goes far enough. I declare an interest as chair of the Committee on Standards in Public Life. In 2021, the committee produced a report on the regulation of election finance, which made a number of recommendations to tighten up the electoral system against the risk of foreign money and inappropriate finance coming in. I regret to say that the Government accepted almost none of the recommendations made at that point, but I wonder whether there might be a greater openness to such changes post Ukraine. I note that the Electoral Commission itself—in the briefing note it prepared on this legislation—made recommendations for tightening our election finance system which were broadly similar to some of the recommendations made by the Committee on Standards in Public Life.
The proposals in the Bill are worth while, but they do not go far enough. They still leave a wide opportunity for, for instance, companies to donate into the electoral system even though they have not earned the money from which the donation would come in this country. Where has that money come from? It has come from abroad.
The provisions in the Bill do not make any changes to, for instance, associations—I cannot think of the word, but there is a particular phrase which basically means any group of people who want to get together and donate money but do not want to be accountable as to who they are. That model of donation seems to me to be extremely open to abuse, not just domestically but internationally. So there is some progress here, but we have not gone far enough.
There are a number of areas of controversy in the Bill, as has already been stated, in particular the question as to whether there needs to be a public interest defence. I have some reservations on that proposal. I cannot think of any disclosures in recent years, even those that have been extremely damaging to national security, when the person making the disclosure has not claimed to be acting in the public interest. Edward Snowden is a good example of that; happily, he has just got his Russian citizenship, on which I am sure we wish to congratulate him.
The problem here is not that action needs to be taken against people who are genuinely acting in the public interest; it is the evidential problems of demonstrating whether the public interest has been engaged. That is a really big problem when you are talking about intelligence and the intelligence investigations that may lie behind that. We do not want to compound the damage by having to argue against a public interest defence. A similar issue appears in the Official Secrets Act 1989 with the definition of harm.
On Clause 28, I have complete sympathy with anything which provides protection for individual officers in the intelligence agencies or the military who are undertaking difficult and complex operations overseas. They need our support and protection. It is also extremely important that we retain the confidence of our allies, because so much of our national security is tied up with the strong alliances that we are part of.
Nevertheless, I recognise that we do not want to put ourselves in a position where it appears that we are endorsing illegal action which would be contrary to our values overseas. I use the word “appear” advisedly. I have no doubt that the agencies operate to high ethical standards and go to great lengths to ensure that they behave in an ethical and appropriate way in their operations, whether in this country or overseas, but we do not want to be easily accused of opening the door to unethical practice. I hope it will be possible in Committee to find a way of closing the gap between those who feel there needs to be protection and the concerns as to whether that protection is too broadly cast.
Finally, the timeliness of this legislation is extremely attractive. It is nice that we are in a good position to push back against foreign interference today, given the evidence that Russia is doing everything it can not just to destabilise Ukraine but to push back against the strong international co-operation and common disgust at what has been going on in that country. From that perspective, this is timely legislation and I welcome it.
Baroness Ramsay of Cartvale (Lab)
My Lords, this is a long and detailed Bill which is clearly the product of much consultation and effort over a considerable amount of time by all those currently engaged in the defence of the security and well-being of our country. I am grateful for the detailed introductory letter that we all received from the Minister.
All the challenges facing us are shared by our allies. There is an issue for all parliamentary democracies of how to fight hostile state threats in all their complexity without compromising our own ethical principles and standards. All other Five Eyes partners have reviewed or are reviewing their own legislation. There will be opportunities for detailed discussion on specific points as the Bill progresses, but today in Second Reading I want to make, as briefly as possible, some general points from my own past professional experience and membership of the ISC.
Co-operation among our own security and intelligence services is, and has been in recent years, extremely close and interlinked—something that is much envied by some of our closest allies. It was not always thus. As late as the 1960s, there was much less understanding between MI5 and MI6, but happily that has completely changed, which is very much to the credit of the leaderships and members of both organisations.
On reading parts of this Bill, it struck me that much of it is codifying into law what has developed as good practice already. This seems to confirm that much which should already have been in legislation is in fact not, which validates the judgment that for decades there has been outdated and inadequate legislation in this field which has hindered rather than helped our agencies. It is indeed high time that we get our act together and produce helpful and decisive guidelines.
UK agencies are generally considered to be among the most overseen in the world. That is something to be proud of, but only as long as it never blunts or hinders their efficiency. This Bill has to deal with one of the problems that arises for all parliamentary democracies, regarding the use of material that is at risk of having been produced by others by means that would not be approved by us. In my opinion, responsibility for that decision should not be put solely on the shoulders of individuals in the field. We will see in the detailed examination of this Bill if a fair conclusion can be achieved on this problem.
It is good to be assured that our practitioners in the intelligence and security world have been involved in agreeing the contents of this Bill, and I look forward very much to the future of our deliberations.
Lord Wallace of Saltaire (LD)
My Lords, this Bill is clearly necessary. I welcome the intentions behind it, but I want to focus on some of its weaker provisions, specifically Clauses 13 and 14, Clauses 29 and 30 and Part 3.
In Clause 30, the definition of “foreign power” is extremely broad, covering all foreign states except Ireland, including political parties in government and agencies that are subject to effective control by government. Last week in Westminster Hall, I was talking to some Canadian Liberal MPs, currently in the governing party. On the face of it, under the provisions of Clause 30 and Part 3, I in should have declared that interaction to the Home Office. Do I need to fill in a form every time I go to meetings with like-minded politicians from foreign Liberal parties? We need to find some way of narrowing the definition of “foreign power” to prevent overwhelming the Home Office and confusing the many, many British people who interact with representatives of other foreign states. Should we not amend the Bill to exclude all members of NATO, or all states with which the UK has a security relationship?
How do we tackle foreign powers that are deeply embedded in British life, such as the Gulf states? These are anti-democratic monarchies, with a record which includes kidnapping their nationals on British soil and murdering their critics in third countries, but they are visibly present at Ascot and Newmarket, with houses in Belgravia and estates in Surrey, mixing and conversing with British society at the highest level, including MPs and Members of this House—more difficult to disentangle than the Russian connection of which the ISC report warned.
Clauses 13 and 14 deal with foreign interference in British politics and elections. I find it astonishing that action is now proposed in response to what the Government rightly recognise as a serious threat without their having followed the recommendation of the Intelligence and Security Committee to publish a substantial part of the evidence it had collected on Russian interference. When I asked an Oral Question about this last year, the noble Lord, Lord True, told the House that the Russia report had found no evidence of “successful interference” in UK elections—an admission that they had indeed found evidence of attempts to subvert our democratic processes but were nevertheless refusing to publish it.
This is not a dead issue. Mrs Justice Steyn, giving her judgment in the libel case Arron Banks brought against the journalist Carole Cadwalladr in June this year, stated that Mr Banks had lied about his meeting with the Russians, that at least some of the meetings were covert, and that more investigation was needed into whether the Brexit campaign had accepted any funds from Russia. Earlier this year, Mr Banks reportedly wrote off a further loan of £7 million to Leave.EU when it went into liquidation. The source of the funds for his remarkable generosity over the last seven years remains unclear, except that it came from somewhere foreign. If we are to have an informed debate in Committee, the Government must now publish what the ISC recommended we should be told.
The Minister in the Commons spoke in Committee of the importance of Parliament and the public understanding and the nature of the threat. That would help us understand the nature of the threat that we recognise so far.
I have asked for advice on the interaction between Clause 14 and the Elections Act, which this House considered earlier in the year. That Act extends the right to vote in UK elections to all UK citizens resident in all other states in the world for their lifetimes. There is little provision to check the identity or status of overseas citizens applying for the register; personation will be easy, the origins of donations almost impossible to verify. This Act takes a much tougher approach, against personation, misuse of proxies and acting as a channel for funds from a foreign power. I welcome that, but Tom Tugendhat’s new Defending Democracy Taskforce, which he announced the other week, will need to rewrite parts of the Elections Act.
The Act’s references to undue influence in UK diaspora communities also raise delicate and sensitive issues that we will need to examine. I speak as someone who has done a lot of politics in Bradford. The Israeli embassy and the Indian and Pakistani high commissions, for example, work actively to maintain the links between British diaspora communities and the states they represent. Britain has many diaspora communities, and many dual nationals who have settled here, from hostile authoritarian states as well as from Commonwealth members and democracies—Iran, for example. So far as I am aware, the UK has no coherent policy on the legal rights and obligations of dual nationals, either when in the UK or in their other countries of citizenship. This suggests that greater clarity there is badly needed.
Part 3, which establishes a foreign influence registration scheme, was added in Committee in the Commons. Sir Iain Duncan Smith remarked in Committee:
“The Government seem almost to have cut and pasted some of the US legislation and possibly the Australian legislation.”—[Official Report, Commons, 16/11/22; col. 747.]
The Minister must be aware that the Australian legislation led to an unanticipated surge in reports of “foreign activity arrangements” by Australia’s eight research-intensive universities, which overwhelmed the Government’s capacity to process submissions. The UK has a great many more research-intensive universities than Australia, which are actively involved in research partnerships across the world. We also have world-renowned research institutes in Chatham House, the International Institute for Strategic Studies, the Royal United Services Institute and others. As it stands, Clause 62 would lead to a flood of reports from all of these to the Home Office, far beyond its limited capacity to cope.
I speak with passion on this subject because it would have hobbled my own career. I was director of research at Chatham House for 12 years from 1978 to 1990, and thereafter taught international relations at Oxford and then the LSE. At Chatham House, among other things, I was the British secretary of the Anglo-Soviet Round Table, a forum for dialogue with the Moscow institute for world affairs—a state-controlled entity close to the Politburo. Our engagement was supported by the Foreign Office but repeatedly attacked as subversive by the Murdoch press throughout that period.
My wife would still be caught by this clause. She keeps in touch with, and visits, several former students who are now in government in several countries across Europe. Some of her visits have no doubt been paid for from state funds in those countries. My son would be caught, too. He is a systems biologist at Edinburgh University, involved in a number of international collaborations with universities in Germany, the Netherlands and the United States, and with the government-funded Institut Pasteur in Paris. When attached to an American university, he was working closely with Russian mathematicians. They and thousands more academics and researchers will be filling in forms and sending them off to the Home Office. What do we do about the many foreign nationals working in UK universities? Over 40% of the staff in some of our top universities—the figure is higher in the London School of Economics—and a good deal more of the students in some of our universities are from a wide range of friendly and unfriendly countries.
I have been told that the proposals in Part 3 were floated by the Home Office before and then withdrawn after sustained criticism from other Whitehall departments and outside bodies. I have the strong impression that the Home Office has not considered the overlap and duplication of this provision with clauses in the Higher Education (Freedom of Speech) Bill, which the House will consider on Report tomorrow. I understand that there has been very little consultation with universities so far. One academic told me yesterday that the Bill as currently drafted will transform the UK from a science superpower to a scientific bureaucracy superpower.
A concern with real threats must nevertheless consider that Britain’s universities are among its greatest international assets and that Clause 62, as drafted, could severely damage their reputations and future operations. Can the Minister assure the House that Part 3 will not be considered in Committee until the Home Office has ensured that other Whitehall departments are content with what is proposed; that it does not contradict other Bills or Acts; and that our research universities, our leading international institutes, the Royal Society and the other academies have all been properly consulted on its implications?
The Bill focuses on state threats, rather than on non-state threats. It is fuzzy on quasi-state enterprises—companies owned by sovereign wealth funds in Malaysia or Qatar, or companies with a substantial and sometimes controversial presence in the UK, such as DP World—and does not touch on the role of immensely wealthy private persons, whether Russian, American, Arab or Asian, attempting to influence events in the UK by penetrating British society and through money.
Right-wing authoritarians such as Viktor Orbán in Hungary have made much of what they regard as the malign influence of George Soros and his open society foundations. I am concerned about the malign influence of the American Koch family foundations and their attempts to influence British politics through their close links with right-wing think tanks here. I read footnotes to Koch foundation publications in the Policy Exchange papers that shaped the Higher Education (Freedom of Speech) Bill. Policy Exchange does not publish where its funds come from. Nor does the Institute of Economic Affairs or the Adam Smith Institute, which together exerted such strong and malign influence over the Truss Government. We know, however, that they have received funds from American multinational companies and foundations, and we have a right to know more about all their foreign funders.
The Boardman review of the fallout from the Greensill scandal in 2020 recommended to the Government that they
“should consult on whether think tanks, research institutes and lobbying academics should be required to disclose their sources of funding and whether there are circumstances when they ought to be required to register as consultant lobbyists.”
I am surprised that this proposal is not in the Bill, at least as far as foreign funding is concerned. I will attempt to amend the Bill to force political think tanks to declare all overseas sources of funding.
This is an important and necessary Bill but it has been badly drafted and inadequately thought through. It is better to get it right than to rush it on to the statute book.
Baroness Manningham-Buller (CB)
My Lords, I was going to say quite a lot this afternoon, but my noble friend Lord Evans and I did not share each other’s speeches beforehand, and he has said most of what I wanted to say. I assure noble Lords that there are many times when I do not agree with him—we had plenty of animated disagreements in our past life together— but I agreed with everything he said a moment ago, so I will spare your Lordships a long repetition.
I start by mentioning, at my noble friend Lord Anderson of Ipswich’s request, that he very much wished to be here but is not able to be. He hopes that, as a former Independent Reviewer of Terrorism Legislation, and given his interest in this broader subject, he will be here at later stages of the Bill.
As we have already heard, this Bill is a doorstop. It is complex and long, and it attempts to do a number of things. I welcome it, as the Opposition and the Liberal Democrats have. It is important and long overdue.
Since I have been in this House, we have had plenty of legislation on aspects of terrorism but very little on aspects of what I was brought up to call “hostile states”. I have now learned that the current terminology is “hostile activity by states”—I must get that right. Either way, the defences of this country, and the work of my former colleagues in the intelligence agencies and the police, are weakened by the lack of a proper legislative framework—one that, in most cases, was drafted to deal with the run-up to the First World War and the Second World War and the threat from German espionage.
I have also heard people say that this is a new threat. To a degree, it is, in terms of its scale and what can be done by cyber, and given that there is no longer the need for small cameras to photograph documents. It is a different threat, but the reaction to the story of the Chinese agent in the Commons earlier this year showed me that there is a degree of naivety among the public about what is done by intelligence services that are hostile to this country. We should not have been as surprised that that woman was cultivating and paying money to Members of the other House; that is to be expected.
I remind people of various aspects of what this activity might be. There is, of course, the traditional one of stealing secrets, but there are not only state secrets but commercial secrets—we have seen the attempts to attack the work on vaccines in this country. We have also seen attacks on critical national infrastructure. I cannot remember all the aspects of it—being younger than me, my noble friend Lord Evans probably can—but it covers various sectors of British society whose continued successful operation the Government rightly believe is important for the success and safety of the United Kingdom. We have seen disinformation, including anti- vaxxer propaganda, spread around.
I know that I must not think just about Russia any more and must think more broadly. We were reminded only recently by our current head of MI5 about what Iran is doing in this country, trying to kidnap people, and about Chinese police stations. But I can remember when a key part of what the KGB did was called “active measures”. It was not stealing secrets but trying to attack us by influencing, persuading, sowing disagreement and undermining democracy. Disinformation is still very much happening.
There have been references to the murder of Litvinenko, the attacks in Salisbury and kidnaps. I strongly agree with my noble friend’s comments on the protection of the electoral process and its integrity. I do not know the facts, but I have certainly read, and believe it very likely to be true, of attacks on the British, French and American electoral systems. It is possible to know all that without knowing whether they had any effect or impact. Quite frankly, a lot of this effort may be pointless, but it is still there to be watched.
I am going to skip the next two pages and wind up with the challenges of this legislation, which I think are clear and have been extensively mentioned in the other place. They were all mentioned by my noble friend: legal aid, Clause 28 and the public interest defence. I join others in pointing out that there are some very good mechanisms for whistleblowers and others to raise issues, internally and externally, before going to the press. They have existed for many years. There is an ethics counsellor, internally, who has been there for at least 20 years. There is an external counsellor—it was previously Sir John Chilcot, but I do not know who it is today—to whom members of staff can raise ethical issues and concerns. There is the chair of the ISC and the Investigatory Powers Commissioner’s Office. There are others, before the press, to whom people can raise concerns and be listened to.
In protecting against damage, we have to remember the human agents involved. I do not mean members of the organisation; I mean those the legislation calls covert human intelligence sources—that awful chunky expression. These people give information, in some cases at risk of their lives, for very little remuneration, to protect us and others from threats and attacks. Any public interest defence risks danger to them. Getting that right is very important.
As others have mentioned, the scope and practicality of the foreign influence registration scheme, however important it is in principle, again needs more scrutiny.
I end by saying that we can address and manage those challenges during this Session. This Bill is fundamentally important and long overdue, and I welcome it.
Lord West of Spithead (Lab)
My Lords, this legislation has been a long time coming. The ISC first recommended reform of the outdated Official Secrets Act almost 20 years ago, in 2004. In the intervening period, as has been said by a number of speakers, the need for reform has become more pressing. The world has changed significantly. Threats to the UK’s national security, particularly from hostile state actors—I must get that right —have become more complex, varied and destabilising, making it more important than ever for our intelligence community to have the tools it needs to defend us.
In 2020, the ISC’s Russia report explicitly and simply stated that
“the Official Secrets Act regime is not fit for purpose”.
We recommended that new legislation be urgently introduced as,
“the longer this goes unrectified, the longer the Intelligence Community’s hands are tied.”
The ISC therefore strongly welcomes the long-awaited introduction of the National Security Bill.
Nevertheless, the committee is disappointed to see that the Government are only partially reforming the Official Secrets Act regime. The 1911 and 1939 Acts are being repealed but, crucially, not the 1989 Act, which deals with the unauthorised disclosure of sensitive information. This is a significant missed opportunity. The Government have accepted the need for change for years. In their 2021 consultation paper on the National Security Bill, they said it would,
“include, at a minimum … Reform of the Official Secrets Act 1989”.
Despite that recognition, this Bill still does not reform the 1989 Act.
If this Bill is to provide a new framework to tackle state threats, as it purports to do, it is vital that that framework is comprehensive. It must provide better protection for sensitive information, such that offenders can be prosecuted effectively. This is too serious an issue to have been put in the too-difficult pile, as it appears to have been. I hope the Minister agrees that sensitive information must be properly protected and will therefore commit to reforming the Official Secrets Act 1989 as part of this Bill or, at the very least, to introducing additional legislation in this parliamentary Session.
Before I address the detail of the Bill, I want to emphasise the words of my ISC colleagues in the other place. They made it clear that they felt the Government’s handling of this Bill had been disgraceful and had significantly undermined Parliament’s ability to scrutinise the proposed legislation. There has been a catalogue of problems, including multiple Security Ministers responsible for taking the Bill through the other place; the Government’s introduction of the most significant aspects of the Bill by amendment at a very late stage, reducing the time available for scrutiny; and the limited time made available for debate, preventing any serious consideration of the proposed changes to the Bill in the other place. This Bill is about our national security; it is too important to be handled in such a haphazard manner. I am sure that I speak on behalf of all noble Lords when I say that we expect the need for effective parliamentary scrutiny to be taken seriously by the Government.
I turn to the detail of the Bill. Many of the changes proposed were recommended by the ISC and therefore we broadly welcome them. Clause 1 incorporates updated language to reflect the modern espionage threat. It replaces the outdated existing legislation with provisions that are tailored to the radical technological changes that have taken place since the Official Secrets Act early in the last century. Clause 12 is also sensible, creating a new sabotage offence. This is an important change, particularly given the risks of foreign involvement in critical national infrastructure, which the ISC first publicised in its report of the same name in 2013. Clauses 3 and 15, which create new offences for assisting or obtaining material benefits from a foreign intelligence service, are valuable additions. Together with Clause 16 —the preparatory conduct offence—these will provide law enforcement with additional tools to disrupt foreign agent networks at a much earlier stage, making the UK a more difficult environment for foreign intelligence services to operate in.
Turning to the long-awaited foreign influence registration scheme, one of the cornerstones of the new regime, the ISC firmly supports such a scheme to increase the transparency of foreign influence activity in the UK. It was a key recommendation of the ISC’s Russia report in 2020, which assessed that such a scheme would be helpful in countering overt Russian influence. It is perhaps a case of better late than never. The United States first introduced such a scheme in the 1930s, over 80 years ago. By contrast, despite the Government describing it as a key component of the new Bill, it was introduced only by amendment late in Committee in the other place, driven, I understand, by the last-minute events in Ukraine. This delay has meant that there has not been sufficient time to scrutinise this very complex regime. We now have time to consider it and, as an aside, bearing in mind thoughts of abolishing this House, thank goodness for our Chamber’s ability to actually do that.
I believe that noble Lords will find the same as the ISC, that, as it stands, the scheme is too complex, compared to similar schemes in the United States, for example, while at the same time not going far enough. It is separated into two registration tiers: the first captures all arrangements and activities that are undertaken on behalf of any foreign power for the purpose of influencing a political event or decision. This is a welcome provision, providing an additional tool to disrupt clandestine foreign activity that is intended to influence our democratic institutions. The second, enhanced tier of registration will capture all other activity beyond political influencing. It will capture, for example, acting as a foreign intelligence officer. For arrangements or activity to require registration, such activity has to be undertaken on behalf of a country set out in secondary legislation. It therefore does not apply to every country automatically.
It is difficult to understand why, unlike with comparable schemes in the US, there are two tiers and why the registration of harmful activity outside political influencing applies only where the foreign power is set out in secondary legislation. It is possible that harmful operations will be undertaken by countries that are not named in the regulations and so will not require registration. Requiring all countries to register such activity would act as a far stronger deterrent, helping the authorities prosecute such behaviour and making the UK a more challenging environment in which to operate.
Listing countries by regulation will also be a challenge to use in practice. It will take time for the Government to agree which countries to add, particularly given the potential diplomatic ramifications, when flexibility and pace may be required. These flaws will inevitably lead to the enhanced tier, which could have been a valuable tool, not being used. As the Security Minister recognised in Committee in the other place, the use of this enhanced registration requirement will be “limited”. This is a wasted opportunity, undermining a potentially effective tool. It must be more effective to have one tier that applies to all countries and a broad range of covert activity. That may require there to be a greater number of exemption categories, but it would surely be a simpler and more practical system of registration.
Little thought also appears to have been given to the transparency of the scheme. While the Security Minister has said that the registrations under the primary tier will be published, he confirmed in Committee in the other place that those relating to the enhanced tier, reflecting the most damaging activity, will not be published. There is no reason for that disparity. While there may be a national security reasons justifying why certain information cannot be made publicly available, that will not always be the case. Transparency is at the heart of the scheme and, in order to avoid it being fundamentally undermined, details relating to the secondary tier must be published.
For the scheme to work effectively, the Home Office team supporting it must be properly resourced. That unit will be responsible for scrutinising submitted documents, identifying risks and updating the register, yet in Committee in the other place the Security Minister said:
“It is unlikely that every registration will need to be scrutinised. More likely, the register will be a resource for public scrutiny.”—[Official Report, Commons, National Security Bill Committee, 18/10/22; col. 401.]
The Government clearly believe they can save money by not resourcing a team at the Home Office and relying on the public, a position completely undermined by the fact that details relating to the enhanced tier are not going to be published so the public will not know what to report. We believe that a failure sufficiently to resource this crucial unit or an overreliance on public scrutiny will fundamentally undermine the regime’s effectiveness.
I turn to the important Clause 28, about which Members of the other place had serious concerns and which the ISC cannot recommend to this House. Clause 28 disapplies the offence of encouraging or assisting offences overseas under the Serious Crime Act 2007 when the activity is deemed necessary for the proper exercise of any function of an intelligence service or Armed Forces. Put simply, it provides a rare carve-out from liability for the intelligence agencies and armed services when working abroad. Colleagues in the other place, particularly those from the ISC, question the justification for such a broad exception from criminal liability. There is already an offence of acting reasonably under Section 50 of the Serious Crime Act. Further, the agencies can already seek immunity from liability for any act committed abroad under Section 7 of the Intelligence Services Act 1994. The lack of a proportionality requirement and the absence of an oversight mechanism were also criticised.
The Bill Committee in the other place recognised that there may be highly classified information underpinning the Government’s rationale for the clause that could not be disclosed to it, and the Government committed to provide the ISC with that highly classified material. The ISC has now considered that highly classified material, which was taken in evidence, and I can tell the House that the committee is of the view that Clause 28 potentially identifies a legitimate problem, which is that, despite the existing legislative protection, there may still be a risk of criminal liability for junior members of the intelligence community and the military, even when acting within the remit of their duties, which could have an impact on operations. Indeed, to be fair, there have been historical instances where military and agency junior ranks in the field have effectively been hung out to dry when doing their best to fulfil what they see as their duty. The ISC therefore sympathises with the aim of the clause.
Nevertheless, the ISC is also firmly of the opinion that the clause goes considerably beyond what is needed and is not appropriate as drafted. While the existing mechanisms to avoid liability may not be comprehensive, that does not justify such a broad automatic exemption with such limited accountability. The clause must be either significantly amended or replaced entirely. The ISC has been given an assurance that the Government are looking to find a way to meet its concerns. They must work quickly to identify a more appropriate approach, as the current clause is unacceptably broad, and we cannot support it as it stands.
If there were time, I would draw noble Lords’ attention to a number of other important points that were raised by the ISC and other colleagues in the other place; no doubt we will consider these as the Bill progresses. I particularly note the need to consider simplifying the “trade secrets” definition in Clause 2 to make the offence more effective in practice; the need to expand the “foreign interference” offence to cover recklessness as well as intent; the concern that the state prevention and investigation measures be used only as a last resort; and exhortations to extend the oversight provisions in Clause 54 across the rest of the Bill.
The ISC firmly supports the aims behind the Bill, but it requires careful analysis and considerable improvement if it is to strengthen the ability of law enforcement and the intelligence community sufficiently to manage the significant threat posed by hostile state actors, and if the UK’s new national security regime is to be comprehensive and effective. We echo what was said about the bravery and efficiency of the agencies, and what they achieve. The Bill will be very useful for them in making our nation safer, but it needs a certain amount of amendment.
Baroness Jones of Moulsecoomb (GP)
My Lords, the speakers’ list for this Second Reading debate is a terrifying assortment of people who know what they are talking about, whether it is the law, foreign agents or hostile acts by other states. Unlike the noble Baroness, Lady Manningham-Buller, I will not hesitate to refer to things that have already been referred to, but I will do so more briefly and through the narrow lens of civil liberties and, of course, justice.
Call me untrusting of this Government, but I am always sceptical when they come to your Lordships’ House and ask for more power, especially under the vague guise of national security. Over the last two decades there has been a steady erosion of civil liberties, under both Labour and Conservative Governments, and this has become an absolute landslide in the past few years, given the legislation that has gone through your Lordships’ House.
The test for any such legislation is: what powers are being asked for, for what purposes and how might they be misused? As the mother of a journalist, I am particularly concerned about the Bill’s potential misuse against journalists, and the Government’s refusal of a public interest defence in the other place. Similarly, there are many concerns about the widely drafted offences being committed by civil society organisations that receive some funding for international work on environmental, human rights, press freedom, asylum or other issues. The Bill undermines the rule of law and our international reputation by shielding Ministers and officials from accountability for serious crimes such as torture, and by denying compensation to victims on the basis of vague national security factors in a crucial area.
There is also the question of what the Government are leaving out. As is often the case, the Bill is found lacking. There is a minor section in it about foreign interference in elections, but how is anyone supposed to judge whether this is sufficient when the Government have not published their 2019 Russia report? The country is still in the dark about the nature and circumstances of Russian interference, even if it did not achieve very much. Tinkering with election offences does not come close to giving reassurances that our elections are free and fair. So I only have one question for the Minister today: will the Government publish the Russia report before Committee, so that we can understand what is actually being said?
The Security Minister in the other place recognised that there are
“some important points and challenges that we will have to look at.”—[Official Report, Commons, 16/11/22; col. 760.]
The Government have had some months to look at the important points, and I hope the Minister will bring amendments to resolve them.
Lord Beith (LD)
My Lords, like previous legislation on intelligence and security, the Bill gives significant powers to agencies and Ministers, and it creates new offences. Its purpose is to help protect our citizens, but it is in the nature of these powers and this work that, in order to be effective, much of it must operate in secret, without the visible accountability we would normally expect. Therefore, there are alternative forms of accountability: commissioners, reviewers of terrorist legislation, the courts, the tribunal and the Intelligence and Security Committee, on which I will concentrate.
I was a member of that committee from its establishment in 1994 until 2008. One of the consequences of being on it rather a long time is that this debate is full of people from whom I took evidence during that period, not excepting the noble Lord, Lord West, the only present member of the committee in this House, who made such a valuable contribution to the debate earlier. The committee was created when, until very recently, the existence of the agencies was either denied or not acknowledged, and when the Five Eyes alliance was a secret. The result was that it was a battle—I suspect it still is—to get the level of access essential to the committee doing its job.
I see that job as having two principal purposes: to ensure that the secret parts of government operate competently and efficiently, with adequate resources; and to ensure that they do not do what Parliament would not allow them to do if they were openly accountable. I see it as a reassurance—or an intended reassurance—for Parliament that a representative group of colleagues not beholden to the Executive has sufficient access to the secret activities of government and sufficient independence of judgment to ensure that these objectives are properly met.
As time went on, the committee increased its access, helped by a new generation of agency heads, many of whom recognised that it was in the interests of their service to have effective accountability. We had many battles, particularly with Ministers. Battles continue, including the doomed attempt to instal Chris Grayling as the committee’s chairman. The Justice and Security Act 2013 strengthened the committee’s position, particularly in relation to operations and the important inclusion of defence intelligence in the committee’s remit. This Bill makes no further changes, but it creates further issues and processes for the committee to monitor. I want to focus on two examples of the problems it faces.
The first is the disengagement of Prime Ministers from the committee, which has occurred under several recent Prime Ministers. Because reports are redacted, the normal process of parliamentary and political reaction leading to improvement is severely limited. On some quite major issues, only the Prime Minister has full access to the committee’s conclusions. He or she needs to respond directly in discussion with the committee. Meetings between the committee and the Prime Minister were normal practice after the annual report was produced, and for some special reports as well. They should resume.
The second issue is what appears to be an obscuring of ministerial involvement in difficult and highly controversial issues where the agency’s actions may or may not have specific authorisation from the Minister. That brings me to Clause 28, which has been referenced. It provides a defence that “extra-territorial application” of the Serious Crime Act 2007 would not apply if the action or the assisting or encouraging of that action was necessary for
“the proper exercise of any function of the”
intelligence agencies or the Armed Forces. It is not a new problem, but it used to be dealt with by ministerial authorisation, which would be available only when the circumstances were exceptional and the action proportionate and defensible. As I understand it, ministerial authorisation is not required under this formula—or so it appears. It might not even be sought if it were thought better for the Minister not to know about it. That would be a very unhealthy state of affairs to encourage.
Serious issues may be raised by this provision. They range from very minor breaches of local law in intelligence-gathering right up to rendition resulting in torture. We should not have a situation in which the relevant Minister can claim that they were not fully consulted, briefed or asked for any specific authorisation. The ISC pointed out in its 2010 report on detainee mistreatment that:
“The Guidance is insufficiently clear as to the role of Ministers, and what (in broad terms) can and cannot be authorised. The Guidance should … make clear that Ministers cannot lawfully authorise action which they know or believe would result in torture.”
What if Ministers are never asked because of Clause 28? Ministerial approval, or its refusal, is an essential part of the chain of accountability, and it needs to be maintained and backed up by ISC scrutiny of Ministers’ actions in this area.
This brings me to my experience of the committee’s attempts to establish what submission was made to Ministers on the potentially controversial action outside the United Kingdom involving an intelligence agency. Several of our reports made reference to the stonewalling in this instance, with numerous mutually inconsistent excuses being offered for failing to provide the documentation. I refer right back to the 2006-07 annual report, under the chairmanship of the noble Lord, Lord Murphy of Torfaen, which reported that, at its meeting with the Prime Minister, the committee had been
“told that the matter would be reviewed once again, although this instruction does not appear to have filtered down to those concerned.”
Referring to the Government’s position as “untenable”, the committee revealed how many years it had been submitting this demand for the disclosure of specific documents. Although the paragraphs were published, No. 10 successfully demanded that the number of years the committee had been seeking this documentation would be redacted—and it was.
You cannot serve on the ISC without becoming aware of how many very able and, in some cases, very courageous people work in intelligence agencies and the related organisations on our behalf. Effective accountability in a form which is compatible with the secrecy of their work is in their interests, just as it is in the interests of the citizens they protect. It is also in their and our interests that the legislation they work under is fit for purpose. As noble Lords have indicated so far in this debate, there is considerably more work to be done to ensure that this Bill meets that test.
Lord Carlile of Berriew (CB)
My Lords, a benefit of my removal to the Cross Benches some years ago is that, very occasionally, I have the pleasure of following the noble Lord, Lord Beith. As ever, he spoke in a cogent and considered way, and I agree with most of what he said.
I am very grateful to Ministers and officials for the level of consultation that at least some of us have received on these important and difficult issues. Officials have been exemplary in those discussions: not venturing opinions but giving options we can discuss, to the benefit of the Committee stage, when we come to it. I know that my noble friend Lord Anderson of Ipswich shares that view. Unfortunately, as has been said, he is absent today as he is doing public duty in another part of the British Isles, but I am sure that his absence will be requited in Committee.
I broadly support the Bill, and, in doing so, I join in the tributes to the intelligence agencies. When I was the Independent Reviewer of Terrorism Legislation, I saw not only their diligence and efficiency but that they spared this country from numerous very unpleasant events which would have caused enormous distress to the public. They are not thanked often enough, perhaps because of their innate secrecy.
It is doubtless that, in Committee, we will discuss nuances and finesses that we will make on this Bill. I listened with particular attention to the noble Lord, Lord Marks, who raised some very important points which will benefit from detailed discussion. Broadly, I welcome the opportunity to update the legislation around official secrets and connected matters; it is overdue for this kind of update. As has already been mentioned, the Bill was amended in important aspects in Committee in another place. Of course, while we all acknowledge the skill and interest of the Members of Parliament concerned in those amendments, any amendment by even very senior Back-Benchers in Committee represents a perilous way of producing enduring legislation which would survive the scrutiny of the courts—and not only of mature policymakers.
I want to raise two issues in particular, both of which have already been raised. Clause 28, which the noble Lord, Lord Beith, referred to a few moments ago and the noble Lord, Lord West, referred to earlier, would amend Schedule 4 to the Serious Crime Act. Total and predestined immunity from prosecution is an unattractive option in any area where there may be—however remote—a risk of serious and possibly deliberate wrongdoing. I am totally opposed to any form of immunity, which sits uncomfortably in our law anyway, not least because there are alternatives. For example, I suggest to the Government that they could easily prepare a separate statutory defence that explicitly protects those carrying out acts necessary for the proper exercise of the United Kingdom intelligence community’s statutory functions. This could include a separate offence with an evidential burden of proof—mentioned by the noble Lord, Lord Marks—in which the prosecution would have to disprove to the criminal standard that the burden of raising the evidential standard of proof had been created in the case, rather than an elaboration of a reasonable defence. Reasonableness is something that is extremely difficult to define in a reasonable way because, of course, we have many views of what is reasonable, even in the expertise of your Lordships’ House.
I also suggest that, as an alternative to Clause 28, there could be a clear reference to the responsibility of agency heads and ministerial responsibility, which in my view remains important. Ministers should be required to take these responsibilities if they become Ministers; after all, it is voluntary and known to be responsible. Ministers and agency heads should ensure the acts of a member of the UK intelligence community which would otherwise be an offence under the Serious Crime Act are necessary to fulfil statutory functions. It is similar in wording to Section 13(2) of the Bribery Act. That could include a new document which would bear close similarity to the July 2019 document entitled The Principles relating to the Detention and Interviewing of Detainees Overseas and the Passing and Receipt of Intelligence relating to Detainees. That is a government document and is a splendid example, a paradigm, of the sort of document required in the situation we are discussing.
I also ask your Lordships to remember that in our unwritten constitution there is a further guarantee that is very rarely discussed: the second part of the Crown Prosecution Service code test. Before a prosecution can be brought, even if there is evidence prima facie that there was an offence, the Director of Public Prosecutions considers whether it is in the public interest to bring that prosecution. That is a very important protection which has been exercised in a few—only a few—extremely significant cases. In my view, the fears that I have heard expressed from the agencies that without an immunity there would be a serious risk of prosecution and that operatives would therefore move very nervously is not borne out by any evidence at all. If you look at very delicate areas of the law—take, for example, assisted suicide—there are almost no prosecutions and one can rely on that constitutional protection given by the public interest test as being important.
The noble Lord, Lord Anderson, has suggested—indeed if you care to read his interesting tweets you will see this set out in detail—an amendment of Section 7 of the Intelligence Services Act 1994. I offer that too for consideration and explanation so that we can make an educated choice on the alternatives to Clause 28 as it exists.
I turn to the second issue that concerns me: Part 3 and the foreign influence registration scheme, or FIRS, which has been mentioned by others. I should mention my interest in this area. I happen to be involved in running a small company that advises foreign Governments and entities, including companies and, occasionally, charities that would also be affected by this. We have experience in the work that we do with the National Security and Investments Act 2021. We have examined many cases under that Act and there have been more than was imagined at one stage, but the Act deals competently with national security issues. FIRS is not about national security. National security cases with an investment element are considered under that legislation. The Ministry of Defence and BEIS have set up well-organised units to deal with that small cohort of cases.
I have no objection in principle to the FIRS system. However, it is much broader than the United States equivalent, which is called FARA, or the Australian FITS system. The way it was raised in the House of Commons means that, to take a metaphor from architecture, it looks like the first concept drawing by an assistant in an architect’s office to see very roughly what the skyscraper they might possibly design in future would look like. That concept drawing has not been the subject of any detailed analysis or information.
FIRS could affect a huge number of entities. It could have a dramatic effect on legitimate commercial confidentiality by there being a registered public register that would tell competitors in the United Kingdom what foreign companies were thinking of doing. It would require the disclosure of other forms of confidential information, which fall within the normal commercial confidentiality picture. As I said, it would affect charities. I am aware of charities operating in Ukraine—Ukrainian charities that collect money in this country and do very good work. There are charities operating in Romania, dealing with the aftermath, now many years later, of the problems in orphanages, which many of us are old enough to remember. Those are foreign charities, some of them very small, which would find themselves having to instruct lawyers and consultants to swallow their hard-earned cash to be able to carry on with their work. I suspect that some smaller charities would simply give up. It will also affect the appetite of foreign large-scale investors, including sovereign wealth funds, to invest in the United Kingdom, if they think that, without a clear architecture to which they can refer, they will simply have to disclose. Because there are criminal sanctions, people will take the cautious approach and feel that they must register, even though it is not strictly necessary.
If we are to have a FIRS system—as I say, I am not opposed to it in principle—we must have the structure that makes it work. There has to be a registrar and it has to be a separate registrar, which must have enough staff, so that it does not become a pale imitation of the immigration system. We must have points of reference, so that those who intend to register can write frankly to the registrar and ask whether it is necessary, obtaining advice on how best to do it, as we do when we register our interests with the registrar of Members’ interests in your Lordships’ House, who is always very helpful in assisting us to draft a form of our registration of particular interests. We have seen nothing of that. If we in your Lordships’ House do not see codes for guidance—a document similar to the principles relating to the detention of overseas detainees—while we are debating this matter, we will be working in the dark. That would not be a proper way for the Government to proceed and, more importantly, could be damaging to the national interest.
The registrar could be self-funded, because it is perfectly reasonable to ask people to pay fees in proper circumstances, and required to produce annual or biennial reports, like the Independent Reviewer of Terrorism Legislation. Indeed, I am puzzled as to why FIRS has found its way into a National Security Bill, because it is not a national security issue. It looks as though it is a way to appease some argumentative Back-Benchers in another place, but I suggest to the Minister and the Government that what should really be done is that the Government should commit themselves to introducing another Bill in the next Session of Parliament, when these questions raised by me and others have been ironed out, so that it is a proper vehicle for legislation.
Lord Tyrie (Non-Afl)
I welcome the intentions of the Bill and I strongly support the work of the agencies in keeping us safe, but years of experience of trying to get to the truth on rendition—Britain’s facilitation of kidnap and torture—have made me cautious about it. Others have alluded to the shortcomings of Clause 28, and Clauses 82 to 85, among others, and I shall linger on their effects for a moment in the context of rendition.
As the noble Lord, Lord West, pointed out, Clause 28 would give effective immunity—a line of defence from prosecution—to politicians and those advising them for assisting or encouraging crimes such as torture, where their actions are deemed necessary for UK intelligence purposes. The word “necessary” is extremely important in this context. The effects of this clause are very broad and, in my view, disproportionate.
Clause 85 provides the means whereby, in civil cases, Ministers and their advisers could avoid paying damages, even where it is accepted that they carry liability, by citing “national security factors”. That also needs careful attention as a phrase: I was quoting from the Bill. The risk must be that, as a consequence, a number of obstacles —and the current arrangements are obstacles—to the practice of the UK’s facilitation of extraordinary rendition, the kidnapping of people and taking them to places where they may be maltreated or tortured, would be removed. An example might help.
In the Belhaj case, a Libyan family were tortured by Gaddafi after Mr Belhaj’s rendition with the assistance of American and British intelligence operatives. A criminal investigation followed—exactly the sort of investigation that these clauses might well close down. Ben Jaffey KC, who led in the Belhaj case, has concluded that the new clauses
“will in practice, allow UK intelligence services to carry out a range of grave criminal conduct, without existing safeguards of personal ministerial authorisation and oversight.”
Whether this transpires or not, even the appearance of it resulting would be damaging, a point made by the noble Lord, Lord Evans, earlier this afternoon. I do not think that even the appearance of such conduct should be made any easier, and these clauses need to be re-examined.
We need to have in mind that the existing checks on rendition have failed to prevent it. We also need to bear in mind that in the years following 9/11, Britain appears to have been involved in at least 70 cases, according to the 2018 ISC report. The fact that the UK was involved in any rendition is bad in itself, but we should be concerned for at least two other reasons. First, the effects of such facilitation have been the opposite of those intended: they have hindered the security services, and those of other western agencies, in their efforts to collect intelligence. That is a point—I was more or less quoting there, too—made on more than one occasion by Sir Richard Dearlove, the former head of the SIS. Secondly, our involvement also undermines the values that we are seeking to export—a point not lost at all on President Putin, among others, at the moment. The fact that these clauses might weaken the checks in place on the facilitation of such practices is reason enough to be very concerned about them.
These clauses might have been less unacceptable if the Bill had contained an explicit role for Parliament’s watchdog of the security services, the Intelligence and Security Committee; but far from containing such a provision, the Bill makes no mention of the ISC at all. In my view, the ISC can and should be given the job of ensuring that such a unique carve out of Ministers and officials from the criminal law, and such an exclusion in practice from claims that might otherwise come from maltreated victims, are not misused by future Governments.
Given the secret nature of much of the information likely to be covered by these clauses, and by other parts of the Bill, the ISC provides the only realistic place for parliamentary scrutiny. In this context it is important to bear in mind that almost all other scrutiny routes, and almost all means of securing reasonable transparency about rendition, have been closed down or abandoned. The Justice and Security Act created an effective bar against information coming from FOI, and the judge-led Gibson inquiry into kidnap and torture was first suspended and then abandoned, the Government clarifying later that they had no intention to resuscitate it, nor anything similar.
Even the Intelligence and Security Committee itself has struggled. In its first investigation the ISC erroneously concluded that there had been no British involvement in kidnap and torture. This was, we were much later told, because the committee had been supplied with misleading information, apparently as a consequence of inadequate record-keeping by the agencies. The ISC’s second inquiry into kidnap and torture was abandoned in 2018 when the then Prime Minister denied the committee access to almost all the people in the security services who might have been able to help it find out what was really going on. That is why that inquiry came to a halt. So the ISC itself needs bolstering. It needs, in my view, with the exception of material concerning current operations, to be given access to all people and papers that it deems necessary for its work.
However, the powers of the ISC are largely a subject for another day. For now, what matters is that, at the very least, the ISC’s remit is extended to include this legislation. The noble Lords, Lord West and Lord Butler, both attempted to provide the ISC with such a role in respect of the National Security and Investment Act, but they appear to have failed. The same arguments that they developed about the need for ISC oversight in a parliamentary democracy apply here.
Paragraph 8 of the Government’s own MoU, agreed with the ISC, asserts that
“only the ISC is in a position to scrutinise effectively the work of the Agencies”.
Yet as the noble Lord, Lord Butler, put it in that earlier debate last year:
“It is as if the Government have acquired a watchdog, yet are unwilling to let it bark”.—[Official Report, 16/3/21; col. 241.].
I urge the Government to think again about Clause 28 and Clauses 82 to 85, and I urge them to at least provide the ISC with an explicit scrutiny role and put it in the Bill.
Lord Stevenson of Balmacara (Lab)
My Lords, I want to pick up two points raised by my noble friend Lord Coaker in his introduction, and which others have touched on in the course of the debate. They are the proposals in the Bill to criminalise legitimate public interest journalism, and to ask whether the measures included within this Bill, and the similar measures in the Online Safety Bill, are sufficiently harmonised.
The Minister has explained the rationale for the Bill and noted the influence of the preceding Law Commission review. However, the Joint Committee on Human Rights points out that, although the Bill is broadly in line with the Law Commission recommendations, it does not include all of them, and as a result there are risks that the Bill would
“criminalise behaviour that does not constitute a threat to national security”
and
“interfere unnecessarily and disproportionately with rights to freedom of expression and association”.
A free and independent press facilitates government accountability and the public’s right to know, but the nature and scope of the proposed espionage offences will have a chilling effect, discouraging sources—including whistleblowers—from coming forward and engendering a risk-averse environment in media organisations. Others have argued that the failure to include a public interest defence in the Bill poses a grave threat to investigative journalism and its sources.
Clause 5 outlines conditions under which unauthorised entry to a prohibited place would be a criminal offence. The noble Lord, Lord Marks of Henley-on-Thames, expressed concern that photographers capturing material as part of their journalistic duties would thereby fall into scope of the Bill. The Law Commission envisaged a public interest defence available to anyone—including journalists and photographers—charged with an unauthorised disclosure under the Official Secrets Act 1989 on the basis that
“it was in the public interest for the information disclosed to be known by the recipient; and … the manner of the disclosure was in the public interest.”
I accept the concerns expressed by the noble Lord, Lord Evans, and the noble Baroness, Lady Manningham-Buller, but I believe that the courts would be able to reach a view on such cases, and I urge the Government to introduce the defence.
The Law Commission also advocated having a statutory commissioner to investigate allegations of wrongdoing or criminality made by civil servants or members of the public where disclosures of such concerns would be an offence under the 1989 Act. There may be other protections for whistleblowers, as has been pointed out, but there is a principle at stake here. The report I have already quoted noted that the
“recommendation for a statutory commissioner, fortified by a public interest defence, … is about a fair law that takes seriously the public interests in national security and in accountable Government”,
so it would have a dual function. Who could resist calling for “fair law” anyway? That would be nice.
A public interest defence enables matters of public interest to be scrutinised and debated and allows malpractice to be exposed and addressed. I suggest to the Government that this could help them with the problem they are having with the issue of “legal but harmful” material and freedom of expression in the Online Safety Bill. The intention in this Bill is clear: to ensure that platforms in scope of the Bill do not have the right to take down content from “recognised news publishers”, and that their websites are also exempt from the Bill’s scope. But the problem lies in defining “news-related material” and determining what constitutes “recognised news publishers”. As the Joint Committee for pre-legislative scrutiny of the Online Safety Bill—I declare my interest as a member—recognised, introducing a public interest test in the Bill for this purpose would be very helpful in this context, and it would have the additional benefit of ensuring that hundreds of independently regulated specialist publishers’ titles are not excluded from the protections afforded in the Online Safety Bill.
I look forward to the Minister’s response.
Lord Ricketts (CB)
My Lords, I rise from what has clearly become the securocrats Bench. I am able to speak pretty briefly, because I agree very much with what my two colleagues have said. Some very powerful speeches have been made already about the need to update our national security legislation in a changing world, and I am personally very encouraged by the breadth of agreement across the House on that.
I speak as someone who has worked with the intelligence community for more than 40 years, as a consumer, a colleague, and indeed twice as a co-ordinator —when I was chair of the Joint Intelligence Committee and then as National Security Adviser. I am not from the community, but I know the men and women who work there well. I entirely agree with all noble Lords who have paid tribute to these public servants of the highest integrity and real commitment. I want to focus just on Clause 28; I agree very much with what has been said on other aspects of the Bill.
My first point is that, in my experience, the men and women of the intelligence community were profoundly shocked by the revelations of what had happened in those fraught months and years after 9/11. The noble Lord, Lord Tyrie, has just referred to cases of rendition, all of which was laid out in as much detail as possible in the 2018 ISC report—a searing document to read. I believe that the agencies learned the lessons of that period and have changed deeply as a result. Even a decade ago, for example, I know that proposals to Ministers on the sharing of intelligence with allies would often be accompanied by pages of legal analysis. I sometimes wondered whether the extent of the precautions could affect the agility of the agencies in responding to fast-moving crisis situations. In short, this is not a group of people who have the remotest interest in doing anything to short-cut legal process or evade scrutiny.
Secondly, I am convinced from my discussions with officials that the motivation for Clause 28 comes from the public servants in the intelligence agencies. There is genuine concern among practitioners that circumstances could arise, when, for example, exchanging information and analysis with partners to identify a complex terrorist threat, where even if they had followed all the procedures in place, including the Fulford principles, they could still be legally liable under the SCA. That is something that the House needs to take seriously.
I was fascinated to listen to the noble Lord, Lord West, reporting the conclusions of the Intelligence and Security Committee. I need to read that more closely. If I understood him right, the ISC has had the opportunity of highly classified briefing on the sort of circumstances where that risk might become possible—the operational realities of real-life co-operation with our closest allies. As I understand it, the ISC felt that there were grounds for believing there is a serious problem here. That is important. There is clearly an issue that we need to get right if we are going to give the men and women of the agencies the tools they need to do their job of keeping us safe.
I am persuaded by the powerful points made today that the current Clause 28 goes too far by proposing this carve-out or exemption from the criminal law. There is therefore an obligation on this House and the Government to work towards an alternative. I hope it will be possible to do that and that it will address the concerns we have heard today, including the important issue of ministerial accountability and authorisation and oversight by the Investigatory Powers Commissioner and indeed the ISC.
I doubt that the Government will be attracted by the idea of reopening the 1994 ISA—that could well turn out to be a Pandora’s box—but I am sure there are ways of solving the need for a balance between clear oversight and accountability and effective security operations in a fast-changing environment. It is also clearly much better to build a broad coalition of support across this House and more widely. I very much hope that the Government will come forward with proposals in that spirit at Committee stage.
Baroness D'Souza (CB)
My Lords, like others in this Second Reading debate, I welcome the Bill. It updates security legislation that was designed to protect UK security in the context of the Second World War, as has been written recently by those who know. Threats to the security of this country and others have changed fundamentally in the last 20 years or so and, as has been pointed out by experts, are increasingly concerned with state-promoted terrorist action that includes undermining democratic institutions. Countering these threats before they can become destructive action is clearly necessary. That said, there are areas in the draft Bill that would benefit from clarification and, in some clauses, a serious rethink. Of the latter, I refer mainly to Clause 28, Clauses 82 to 85 and Clause 86, supported by Schedule 15.
My approach is informed by universal rights, the prohibition of involvement in criminal acts by Ministers and/or officers of the state and the implied legal cover for those who are. Such criminal acts might include targeted torture and killing. The Bill also appears to protect officials in the UK rather than those operating overseas. It was argued during the passage of the Bill in the other place that Clause 28, as written, could condone foreign assassination, for which we severely castigate other states, and not only make the UK liable to accusations of hypocrisy but undermine any moral leadership it continues to hold. It is worth recalling, as both my noble colleagues fore and aft have already done, that the ISC has documented the extent to which UK politicians and officials were involved in abuses overseas; for example, in the extraordinary rendition and subsequent torture of Abdel Hakim Belhaj in 2004 in Libya.
UK Ministers and officials already have a defence under the Serious Crime Act 2007 against criminal prosecution for “reasonable action”, taking into account the purpose of the action and any authority under which action is taken. It is questionable therefore if the extended legal cover in this Bill is necessary.
Clauses 82 to 86 pose a serious blow to those seeking legitimate damages awarded in civil cases by citing the newly introduced “national security factors”. Efforts in the other place to delete this clause on Report were unsuccessful. Instead, the Government introduced the all-encompassing phrase of “terrorist wrongdoing”, which can be invoked to discredit any such claim and prevent recompense. The phrase is to too broad to be meaningful and once on the statute book would exist as a hostage to fortune.
Terrorist wrongdoing would certainly cover direct efforts to build destructive weaponry, such as bomb making, but it could also encompass merely the purchase of hydrogen peroxide. A further rationale has been advanced that it is necessary to limit any financial recompense in a civil case, from re-investment in terrorist action. This restriction does not apply however to other sorts of revenue such as the lottery, and given the extremely low standard of proof for terrorist wrongdoing, protection and justified recompense for survivors of state-sponsored torture remain paper-thin.
Bearing in mind too that many states around the world use the accusation of terrorism activity to silence legitimate dissenters, these clauses could very easily act as an obstacle to claims made by torture survivors against unsubstantiated allegations. As is now universally accepted, survivors of torture require a formal acknowledgment of the wrong that has been done to them as part of their recovery. These clauses, if applied, would undermine the very notion of justice, so important to them.
The human rights organisation Reprieve has documented several ongoing cases where this clause, as currently set out, adversely affects torture survivors in their quest for redress. Other human rights bodies, including Redress and Freedom from Torture, similarly question the clauses in that they provide Ministers and officials with immunity from crimes that are specifically mentioned in the international treaties as crimes against humanity. I am sure that there will be reasoned debate and amendments to the Bill that will allow it to go through speedily, as it should, but many of us will press for amendments to Clause 28 and Clauses 82 to 86.
Baroness Kramer (LD)
My Lords, I do not normally speak in national security debates, and I bow to the far greater expertise of everybody else involved today, but I could not let this Bill pass without intervening to call for the insertion of a clause to provide proper protection for whistleblowers speaking out in the public interest. Some in the House may know that I focus on the issue of whistleblowers across a wide range of activities.
I recognise that this is a subset of the much broader issue of public interest disclosures, but I would argue, and would say this directly to the noble Lord, Lord Ricketts, that where there are human beings there will be wrongdoing, and where there is power there will be abuse. It is rarely exposed unless a whistleblower brings it to the surface and takes the risks associated with that.
The noble Baroness, Lady Manningham-Buller, said that whistleblowers could go to various individuals to make a protected disclosure. Let me say to her that of the three she named I could not identify one who could do what the whistleblower wants most: to guarantee an investigation of the issue raised. She mentioned the ISC, and we have heard now from both former and present members of the ISC that it is extraordinarily difficult for that body to access the information needed to carry out an investigation.
Therefore, without the mechanisms in place that link the whistleblower through to a process of investigation, most whistleblowers are going to hold back and decide not to speak out, and I would argue that that is very much to the detriment of the national interest.
However, it is also vital to protect whistleblowers, and none of the three powers that the noble Baroness mentioned can provide that protection. They can provide confidentiality but, frankly, keeping a whistleblower’s identity confidential is near impossible. The character of the information alone usually identifies who has spoken out. In addition, people who see something going wrong mention it to colleagues, managers and others whom they work with, and it becomes very evident very quickly, in almost every case, who is the relevant whistleblower. Existing legislation that requires going through an employment tribunal fails whistleblowers extensively. I will not go through that argument in detail today—I have in other places. Of course, even at its best, it only actually covers workers, whereas whistleblowing comes from a wide variety of people: suppliers, contractors and temporary staff—all kinds of people who are engaged around a process and see behaviour that they know needs to be called out. My fundamental argument is that every day that there is not adequate protection for whistleblowers is a day when somebody sees something that they should call out and decides that the price of doing so is too high.
If you are in some sector such as finance, the National Health Service or even the Metropolitan Police, and you speak out and there is retaliation against you, at least that is only losing your job or perhaps being blacklisted for your entire career. However, once this happens in the context of national security, the whistleblowers I hear from—I am careful not to get their names, because I am not a prescribed person, but I am aware of their experiences at second and third hand—are usually told that they will face retaliation through the mechanism of the Official Secrets Act, which, as everyone in the House will know, carries criminal penalties.
I decided to cite one case, and I was careful in choosing it so I do not expose any whistleblower to retaliation, which currently is a real fear. This is far from an isolated case. I am aware in general terms of the case of a whistleblower working for a subcontractor to a global brand, cleared to the highest level, who tried to disclose that work was being subcontracted to a hostile power, with serious national security consequences. The whistleblower was of course fired, threatened with lifelong career destruction and with the Official Secrets Act. After a long delay, a period of complete unemployment for the whistleblower and a bogus investigation by the contractor, the message eventually, through the whistleblower’s constant persistence, reached the right people inside the Ministry of Defence, and I understand that a proper investigation is now under way. However, obviously the whistleblower has suffered huge detriment and there seems no possibility that that will ever be reversed. I suspect the public will never know the harm done in just that one particular case. What I think has shocked many of us is that this process seems to be regarded as “just to be expected”, and in this wider sector of national security, the various mechanisms in place available to whistleblowers such as helplines are, frankly, regarded as anything but helplines. To me, it is totally unacceptable not to provide that protection for those who make disclosures which are fundamentally in the national and the public interest.
In the Commons, Kevan Jones MP and eight others attempted to introduce a public interest defence, but it was not even debated. However, I hope in this House, with its very different set of rules, we will be able to try to craft a series of amendments that will allow at least a detailed debate.
I have in Committee a Private Members’ Bill, the Protection for Whistleblowing Bill, that will deal with many of these issues. I will not go through that Bill today but, frankly, I have relatively limited hope of the Government taking up this Bill, even though every time that I raise this with Ministers, in area after area, they acknowledge that protection for whistleblowers is exceedingly limited, that something needs to be done and that there will be a review, but that it will be in due course.
I recently joined the All-Party Group on Extraordinary Rendition, which made me aware of the case of Jagtar Singh Johal. Again, with that whistleblower experience, I looked with real concern at Clauses 82 to 86. When you spend as much time as I do in dealing with attempts to gag disclosure of wrongful behaviour, you spot the tricks. Here they are, in clause after clause, limiting access to civil justice for redress, deliberately using sweeping language to deny legal aid, and none of that adding to the safety of the UK but rather adding to the safety of those who have abused their position.
I thank the same organisations that perhaps spoke with the noble Baroness, Lady D’Souza—Retrieve, Redress, Freedom from Torture, Survivors Speak OUT, Rights and Security International, and OMEGA—for the high-quality briefings that they have provided. I am a novice in this area, but I will push the issue of protection for whistleblowers. It is fundamental in a democratic society.
Lord Craig of Radley (CB)
My Lords, when I was a squadron leader, I signed the Official Secrets Act. I still have my copy of the form that I signed. We were required to sign, though the reasons given were limited —do not lose or pass on any classified or official information and in general abide by the restrictions of the Official Secrets Act. Signing had no effect on what behaviour was deemed to be legal, because the Act is a law, not a contract, and individuals are bound by it regardless of whether they have signed. Signing was intended as a reminder to the person that they are under such obligations. MoD Form 134 is still available to be signed and sets out the reasons for doing so, although I am not aware of any statutory instruction to sign.
A so-called minor amendment in Schedule 16 to this Bill is that the 1911, 1920 and 1939 Official Secrets Acts are to be repealed. That seems rather more than minor, though of course, OSA 1989 still stands. Will members of the Armed Forces and other Crown servants in future be required to sign the new national security Act? A bigger question for the Government has been mentioned already. If this new national security legislation is replacing the other three, then why is the legislative opportunity also to bring OSA 1989 into one updated Act not being taken?
The Law Commission found that all four existing Acts were outdated—or inadequate for dealing with new technologies—and in need of revision. However, this Bill is nearly 200 pages long, and deals with topics ranging from very major national security issues to the responsibilities in Clause 9 of a constable at the site of a military aircraft accident. I can see that the Government find themselves between a rock and a hard place. New legislation is urgently required to embrace evolving threats, but dovetailing the 1989 Act into this mammoth Bill is beyond any reasonable ask. Therefore, although much was made of the missed legislative opportunity in speeches in the other place, I accept that the current broad approach is right.
I mentioned Clause 9 a moment ago, which refers to when a constable may have to set up an exclusion zone around an aircraft accident. For the avoidance of doubt, I presume that “aircraft” covers manned and unmanned aerial vehicles. It seems that the constable might have powers under this legislation to move or remove the aircraft or parts, but I hope that the essential needs of the accident investigation authorities will ensure that critical evidence of the causes of a crash will not be tampered with or lost by some inadvertent action of the constable.
Also, why is this confined to aircraft? What about one of His Majesty’s ships or submarines that unfortunately finds itself beached on some shoreline? Surely one of these, too, might require an exclusion zone which, by its nature, would not be covered by a previously declared regulation under Clause 8 for any vehicle.
Clause 30, referring to the Republic of Ireland as not being a foreign power, intrigued me. I declare a lasting interest in things Irish: I was born and brought up in Dublin. There are of course many special arrangements agreed between the UK and the Republic, and the Explanatory Notes say that it is because a political party may be active in both. I doubt that it excludes espionage. It also raises this thought, perhaps theoretical at present: were green parties to grow into positions of government influence, would that be a reason for labelling a country with a strong green party as not a foreign country for the purposes in this legislation?
There is also the apparent anomaly that, although Gibraltar gets specifically excluded in Clause 95, which relates to the Clause 20 amendment of Section 238 of the Armed Forces Act 2006, it gets no mention in Clause 7, which lists the UK and the SBAs—sovereign base areas—in Cyprus. How then might monitoring of illegal intelligence behaviour and prohibited places be covered in, say, Gibraltar, the Falklands, or other overseas or dependent territories? Indirectly, this clause indicates that, at present, we do not have special intelligence facilities, other than in Cyprus, elsewhere overseas.
Finally, I found difficulty in discerning the meaning of this sentence in Clause 20, which amends Section 238 of Armed Forces Act 2006. It says that
“the reference in subsection (1)(b) to an offence which is not an offence listed in subsection (2) is to be taken as a reference to an offence under section 42 as respects which the corresponding offence under the law of England and Wales is not an offence”.
Perhaps the Minister or an official could transcribe this into less legal English for one to more easily comprehend its meaning.
Baroness Ludford (LD)
My Lords, this has been a most interesting debate, not least due to the contributions from our national security, defence and intelligence professionals—or the securocrats, as the noble Lord, Lord Ricketts, collectively named them. As the noble Baroness, Lady Jones of Moulsecoomb, said, we have heard from people who actually know what they are talking about in this debate—unlike people like me. However, I will plough on none the less.
I thought it rather a pity that nobody from the Conservative Benches, beside the Minister, felt motivated to speak in this debate, while there were five from the Opposition, five from the Liberal Democrats and no fewer than seven from the formidable Cross Benches.
It is clear that UK democracy is under systemic attack from various hostile foreign Governments, including from China and Russia. But, as my noble friend Lord Wallace of Saltaire said, it is absurd to ask us to debate the Bill without publishing the redacted sections of the ISC’s Russia report, which the committee recommended should be released. As the NGO Spotlight on Corruption said, the Bill does not address the hole in the regime for keeping foreign and tainted money out of politics.
The noble Lord, Lord Evans of Weardale, regretted the Government’s rejection of the recommendations from the Committee on Standards in Public Life on political funding. The Electoral Commission has repeated its call for parties and campaigners to be banned from accepting donations from companies that have not made enough money in the UK to fund them and to be required to carry out enhanced due diligence and risk assessments before donations are accepted. Can the Minister tell us why these recommendations are not in the Bill?
The Bill also unfortunately omits the Government’s promised reform of the Official Secrets Act 1989, as noted by the noble Lords, Lord Evans of Weardale and Lord West of Spithead. Perhaps the Minister could clarify whether the Government plan to add that to the Bill during its passage in this House?
The report from the Joint Committee on Human Rights, on which I sit, described this Bill as a
“welcome attempt to modernise espionage offences”,
but expressed many concerns about its human rights impacts, some of which I will mention and have been mentioned by others.
One of the main concerns about the Bill is the Government’s attempts to constrain both scrutiny and accountability, as my noble friend Lord Beith and other noble Lords have said. One of these attempts is the failure to incorporate protection for whistleblowers and journalists, as my noble friend Lady Kramer pointed out; the other is the proposal to grant immunity from prosecution for conduct said to be necessary for the functions of the intelligence agencies or Armed Forces.
A public interest defence for whistleblowers, such as journalists, security personnel or civil servants charged with unauthorised disclosure, is absolutely critical to a rewriting of espionage legislation. We on these Benches are severely disappointed that it has not been included in the Bill, despite the backing of the Law Commission. A statutory defence would act as an internal discipline on better government and better decisions. The run-up to the Iraq war and MI6’s co-operation in acts of torture and extraordinary rendition are examples that might have been prevented with a safeguard.
The NUJ, the BBC and others fear that the Bill poses a significant threat to public interest journalism and press freedom, through the chilling effect it will have on those who expose wrongdoing. Perhaps the Minister can be a bit more encouraging today than he was last Friday to my noble friend Lady Kramer’s Private Member’s Bill on protection for whistleblowers.
Of great concern is Clause 28—surely set to become another notoriously numbered clause from a Tory Government—which would grant immunity from prosecution for encouraging or assisting the commission of wrongdoing abroad by members of the intelligence agencies or the Armed Forces. The noble Lord, Lord West, reported that the ISC believes that Clause 28 is unacceptably broad. The noble Lord, Lord Carlile, backed the changes proposed by my noble friend Lord Marks, and the noble Lord, Lord Tyrie, warned of the experience of rendition, which has never been resolved.
A grant of criminal immunity goes to the heart of respect for justice, human rights and the rule of law. It would be outrageous for Ministers and officials to be granted immunity for actions such as ordering an unlawful targeted killing or providing assistance to torture, interrogation or a disappearance. It may thwart accountability for UK involvement in war-on-terror abuses and undermine the UK’s centuries-old legal prohibition on torture and related abuses. As the noble Baroness, Lady D’Souza, pointed out, it could also destroy the UK’s moral authority in condemning crimes such as the murder of Jamal Khashoggi by Saudi Arabia or international poisonings by the Russian Government.
I listened carefully to the noble Lord, Lord Ricketts, as always, but given the existing immunities under the Serious Crime Act 2007 where a person has acted reasonably, further protections for conduct that is not reasonable are surely invidious. Can the Minister give a credible explanation as to why immunity from criminal prosecution should be granted for unreasonable actions by the intelligence communities and the Armed Forces?
My noble friend Lord Wallace of Saltaire and others, such as the noble Lord, Lord Carlile, have robustly illustrated the huge flaws in the Government’s proposals for a foreign influence registration scheme in Part 3. It threatens to be a bureaucratic monster. Given the Home Office’s struggles with competence in administration, the mind boggles. At the same time, right-wing think tanks escape transparency over their funding from abroad.
The former Independent Reviewer of Terrorism Legislation, the noble Lord, Lord Anderson of Ipswich, who, as has been mentioned, is unavoidably prevented from being here today, has helpfully shared his thoughts with us in various Twitter threads. I am going to quote from a different one to the one that has already been quoted from. He warned that the requirement on all Governments and bodies from outside the UK to register “political influence operations” is broader than the Australian and US schemes relied on as precedents and “potentially onerous”. He also pointed out a possible loophole, whereby a large company could avoid registration by ensuring that any activities are conducted by a UK subsidiary. The noble Lord concluded:
“Since the registration requirement is not restricted to specified (hostile) govts, or to companies controlled by govts, or to activities relating to national security, I'm struggling to see what it is doing in a national security Bill … Is it not more in the nature of a lobbying requirement (but one applied, oddly, only to foreign entities?) If so, how does it relate to Lobbying Act 2014 &c?”
Perhaps the Minister will tell us.
“And what useful value is anticipated for it? The Govt’s Impact Assessment … is unspecific … The process of scrutiny requires us to probe this thoroughly so as to ensure that we are passing into law a useful defence mechanism rather than a bureaucratic nightmare.”
I have quoted the noble Lord’s Twitter thread at length, because I thoroughly agree with him.
There are many human rights and civil liberties concerns in Part 1 that I do not need to cover, because my noble friend Lord Marks covered them fully. In Part 2, although the measures are called “Prevention and Investigation Measures”, the investigation element appears extremely limited. These measures, which were not included in the Law Commission’s review, risk prejudicing the rights to a fair trial, to liberty and security, and to a private and family life. I am sure they will get the detailed scrutiny they deserve.
The provisions of Part 4 seeking to restrict both the award of damages to those who have been involved in terrorist activity and the grant of legal aid to those with a terrorism-related conviction raise significant human rights and other concerns. They would potentially enable the Government to evade paying damages for UK complicity in torture or other human rights violations. As the current Independent Reviewer of Terrorism Legislation, Jonathan Hall KC, said:
“It … risks the impression that if the government is sued, it will have a special advantage in keeping hold of monies which is not available to other unsuccessful parties in civil proceedings.”
The question also arises when the Government have a conflict of interest here. However, the availability of damages enabled litigation to be brought by Guantanamo detainees and others who had been subjected to rendition and torture. This uncovered a pattern of unlawful behaviour by the security services and thus served an important constitutional, as well as political, purpose. The proposed restriction on the grant of civil legal aid impedes access to basic rights and legal protections. The current independent reviewer’s view is that it is
“a purely symbolic measure that breaks new ground in the treatment of terrorist offenders and may be counter-productive in matters such as housing, mental health and debt.”
I have a few concluding points. The Bill provides that courts may exclude the public from criminal trials for offences under this Bill. The principle of open justice is fundamental to the proper administration of justice and the right to a fair trial. Clause 36 would be improved if it provided that the public could be excluded only where this was necessary for the administration of justice, having regard to the risk to national security.
The Government need to substantially increase funding for the National Crime Agency—a repeated call from these Benches. It must also strengthen the independence and powers of the Intelligence and Security Committee, which my noble friend Lord Beith and the noble Lord, Lord Tyrie, have called for. The post of reviewer for PIMs should be widened to match more closely the Independent Reviewer of Terrorism Legislation role, to include the full ambit of this Bill.
Lastly, there are several concerns over the Bill relating to the Government’s intention to abolish the Human Rights Act under the Bill of Rights Bill—which I am still hoping might disappear—or even pull out of the European Convention on Human Rights. The Lord Chancellor and Secretary of State for Justice tells us firmly that that is not intended, but this week the Home Secretary, in endorsing a pamphlet by Nick Timothy on asylum, has indirectly called for pulling out of the ECHR. One example of the danger from the Bill of Rights Bill is that the compatibility of national security and official secrets legislation with human rights often relies on the ability of the court to read legislation as compatible with convention rights, so far as it is possible to do so, under Section 3 of the Human Rights Act 1998. The Bill of Rights Bill would abolish that requirement. Can the Minister explain how the Government would then address incompatibilities in national security legislation with human rights?
Although we on these Benches support the Bill overall, it is a curate’s egg, displaying a lack of joined-up thinking. Significant parts of it must be altered both to improve our national security infrastructure and to protect our democratic processes and civic life.
Lord Ponsonby of Shulbrede (Lab)
My Lords, I too thank the Minister and his officials for helping us prepare for this Bill. As the noble Baroness, Lady Ludford, said, there has been a true demonstration of expertise in the debate that we have just had.
I want to give a general introduction and then talk in specific terms about matters that we in the Opposition will concentrate on. Much of the legislation around espionage was drawn from a time when we were at war with Germany, when the threats and capabilities of all the actors were very different. Thankfully, those threats fell away some 77 years ago, but threats from hostile and non-hostile states have not gone away, and indeed have evolved. As the Government’s integrated review makes clear, threats to government departments, national infrastructure, British business and private individuals are growing and becoming ever more complex as states become more assertive in advancing their aims. While hard-power methods of attack persist, the advent of technology has allowed soft-power methods to flourish, with electoral interference, disinformation, propaganda, cyber operations and intellectual property theft used to foster instability and interfere in the strength and resilience of the state.
Clause 28 creates an exemption under the Serious Crime Act for MI6, GCHQ and our Armed Forces when acting in the proper exercise of any function of an intelligence service or the Armed Forces. This could remove the need to get a Section 7 authorisation under the Intelligence Services Act 1994, which allows the Secretary of State to give immunity from civil and criminal liability for pre-authorised crimes abroad. We believe there is a risk that Clause 28 would remove the role of Ministers and, by doing so, remove the Investigatory Powers Commissioner from the process as he inspects Section 7 authorisations. The Intelligence and Security Committee has engaged with the UK intelligence community on Clause 28 but its members are still concerned that it is unnecessary. I will come back to that when I comment on Members’ contributions this evening.
The second matter I want to talk about is misinformation. We fully support action to protect our national security and to deal with the threats to us from hostile state activity, but we would also like to see specific measures to deal with misinformation and disinformation, specifically on social media. Although we welcome the new amendments on misrepresentation tabled by the Secretary of State during the House of Commons stages, we encourage the Government to review the extent of misinformation in the UK and take further steps to address it.
Turning to scrutiny and oversight, we support stronger powers in the Bill to tackle hostile state activity in order to protect our democracy and national interest, but these must be paired with appropriate oversight of these powers, in line with the oversight that exists for other comparable powers. The Government should introduce clauses providing for greater scrutiny from either an appropriate commissioner or an independent reviewer.
Turning to the ISC’s 2020 Russia report, the Bill delivers on some of the important recommendations proposed by the ISC and the Law Commission, but parts of the Russia report have not been implemented. We will explore amendments to ensure that the Russia report is fully implemented in order to protect the strength of our national security. We believe that the Government have been too slow to notice and react to the emerging trend towards hostile state activity over recent years, particularly in the wake of the 2018 Salisbury poisonings.
The public interest defence was extensively debated in the other place. From the responses of both Mr Tugendhat and the then Home Secretary Ms Patel, it seems that the Government continue to look at this matter. I am sure that we will come back to it in Committee, and I would be interested to see whether the Minister has anything to add on this.
Turning to the many contributions made today, I am grateful to the noble Lord, Lord Marks. for giving an extensive exposition of Part 1 of the Bill and pointing out the wide scope of many of the powers the Government seek in it. He went on to give persuasive and strong examples, such as a UK journalist working for a foreign broadcaster who could inadvertently break the laws proposed in the Bill. The noble Lord also commented on the public interest defence and the NUJ briefing, which we all received. As I said, I hope and expect that we will hear more about that from the Minister at a later stage of the Bill.
The noble Lord, Lord Evans of Weardale, referred to interference from other countries, both friends and allies. That goes to the heart of the Bill and the importance of trying to codify much of what should be good practice within the services already, as my noble friend Lady Ramsay of Cartvale said.
The noble Lord, Lord Wallace, made an interesting speech, quoting the noble Lord, Lord True, saying that there were no examples of successful Russian interference in our elections. I noticed that comment as well, and it would be interesting to know what attempts there have been to influence our election results. He also spoke very persuasively about universities potentially being overwhelmed by reporting requirements and the confetti of documents which need to be presented. So many of our universities are extremely international in the nature of their staff, students and research projects. That was a very strong point.
The noble Baroness, Lady Manningham-Buller, described the Bill as a doorstep of a Bill. We have heard that it is a curate’s egg and a doorstep; I suppose that is theoretically possible. She raised what she thought were the most important points, and perhaps they are the most contentious: legal aid, Clause 28 and the public interest defence. I am sure we will be coming back to these on multiple occasions as the Bill progresses.
My noble friend Lord West, the only Member of our House who currently sits on the ISC, gave a masterly exposition of the Bill. He questioned why there were two tiers of registration for foreign state actors, and whether the enhanced tier would be used sufficiently, for various reasons. He also made it very clear that the ISC questioned Clause 28 and thought it inappropriate as drafted. I look forward to working with my noble friend on that as the Bill progresses.
The noble Lord, Lord Beith, also provided some background as a former member of the ISC. It was interesting to hear about the problems he had as a long-standing member of that committee in getting to the bottom of many very controversial actions of our overseas agencies and trying to understand them. I will read his comments with interest, because he gave an interesting background to the role of the ISC and how it has developed over the years.
The noble Lord, Lord Carlile, also spoke about Clause 28. He made a particularly interesting point about the CPS’s second requirement of a public interest in proceeding with a prosecution, and he gave the example of assisted suicide. I see many similar examples in youth courts, where prosecutions are not proceeded with, even though one could argue that a crime has evidently been committed, because it is not believed to be in the public interest to do so. We see that routinely in our courts.
My noble friend Lord Stevenson also spoke about the potential for harmonising elements of this Bill with the Online Safety Bill. The Online Safety Bill is huge and we do not yet know when it is coming to us. It will be interesting to try to tie together some of those elements. He spoke in that context about the public interest defence, saying that there will be similar arguments in respect of that legislation.
The noble Baronesses, Lady D’Souza and Lady Kramer, spoke about the UK’s moral authority. The noble Baroness, Lady Kramer, spoke about whistleblowers, and I will be interested to see the amendments she tables in that regard. I am mindful of what we have heard from the experts about the internal processes, but I listened with great interest to the scepticism with which the noble Baroness spoke about those processes.
Finally, the noble and gallant Lord, Lord Craig of Radley, said something which surprised me: when he was a squadron leader, he signed the Official Secrets Act. I have a very vague recollection that when I was a university air cadet, a long time ago, I too signed the Official Secrets Act. I am not sure whether it is possible for someone to do so at such a junior rank as I suppose I was at that stage. Nevertheless, this has been an interesting debate, and I look forward to the Minister’s response. I think the Committee will be of equal substance.
Lord Sharpe of Epsom (Con)
My Lords, I am grateful to all who have contributed to what has been a very constructive and instructive debate. I welcome the broad support that has been shared across the House. I particularly thank the noble Lord, Lord Evans of Weardale, for his supportive comments on the foreign influence registration scheme. I also thank the noble Lord, Lord Carlile of Berriew, the noble Baroness, Lady Manningham-Buller, and others in this House who engaged us in such a constructive and supportive manner, in both this debate and the engagement sessions we have run over recent weeks.
I turn to some of the specific points that have been raised. I ought to crave your Lordships’ indulgence because this will not be a short speech; it will be a sincere effort to address all the key points in full, and not a cynical attempt to bore all noble Lords to tears. Starting with interaction between this Bill and the Online Safety Bill, which was referenced by the noble Lords, Lord Stevenson of Balmacara and Lord Ponsonby, the Government are obviously aware that we have overtaken that Bill in its passage, and we will ensure that the links between the Bills have the desired effect.
A central element of a number of offences in the Bill, alongside the foreign power condition, is the test of the safety and interests of the UK. This test is one way that legitimate activity is excluded from the scope of relevant offences. In considering any prosecution in relation to the offences to which the provisions regarding prejudice to the safety and interests of the UK apply, the court will consider the nature of the risk to the safety or interests of the UK. Case law already makes clear that
“the safety or interests of the United Kingdom”
should be interpreted as the objects of state policy determined by the Crown on the advice of Ministers. This is notably different from protecting the particular interests of those in office.
The noble Lord, Lord Wallace of Saltaire, questioned the scope of the foreign power condition in the Bill. The foreign power condition provides a single and consistent means by which a link to a foreign power can be made for the purposes of the offences of obtaining or disclosing protected information, trade secrets offences, sabotage, foreign interference and the state threats aggravating factor. The foreign power condition can be met in two scenarios: first, where a person is acting for or on behalf of a foreign power and, secondly, where a person intends that their conduct will benefit a foreign power. I reassure the House that this will not capture people who do not know, and could not possibly know, that they were acting for a foreign power. Rather, Clause 29 requires that a person knows, or ought reasonably to know, that their conduct is being carried out for or on behalf of a foreign power, or they must intend to benefit a foreign power. Of course, where our authorities consider a person to be carrying out harmful activity with a state link, this can be drawn to a person’s attention, providing a strong deterrent effect against a person continuing with that activity.
The Bill follows the Law Commission’s recommendation to replace the existing link of an “enemy”, as set out in the Official Secrets Act 1911, with a definition of a “foreign power”. We agree that incidental or tangential links to financial or other assistance from a foreign power will not suffice to meet the foreign power condition in relation to harmful conduct. Those who receive funding from foreign powers to carry out legitimate activities would not meet the foreign power condition if they were entirely separate to that funding to undertake activity covered by one of the offences in the Bill. The other place passed an amendment on Report to put it beyond doubt that any financial or other assistance must be clearly linked to the illegitimate conduct in question.
The noble Lord raised the matter of the Home Secretary. All I will say is that she has provided a detailed account of the steps she took in her letter to the HASC. I will not make further comment as this matter has been dealt with in detail at other times.
Oversight was discussed at length in the other place, as it has been today, and in the helpful engagement sessions I have held with colleagues. Although we already have oversight mechanisms in place for Part 2 of the Bill, the Government have committed to consider whether any additional oversight is required for state threats legislation. We have been considering whether it is possible to extend oversight beyond Part 2 in a way which does not duplicate or unhelpfully interfere with the responsibilities and functions of the existing mechanisms governing both the UK intelligence agencies and the police. Should we decide to extend oversight of the Bill beyond Part 2, it is important that we do not create any confusion or uncertainty. We are currently exploring the different options for appointing an individual to oversee Part 2, along with our work to consider whether there is merit in expanding oversight beyond it. It is crucial that whoever is appointed has relevant experience and skills and can provide an objective assessment of the offences and powers to ensure appropriate and transparent scrutiny.
Many have raised concerns regarding the Serious Crime Act amendment in Clause 28 of the Bill. I know there will be general understanding of why I cannot go into detail on operational issues in this place; however, let me reassure the House that the Government have been working with the UK intelligence community—or UKIC—which has now provided an operational briefing to the Intelligence and Security Committee outlining examples of why this measure is needed. The committee has acknowledged the need for the SCA to be amended and appreciates our reasoning for seeking changes, though it is not yet in full agreement on the way the problem is being addressed. I thank the committee for its engagement on this matter and welcome a collaborative dialogue going forward. I want to be clear that the Government have heard noble Lords’ concerns and will look carefully at what can be done to tackle these issues. I am grateful to all noble Lords who spoke on this clause and thank them for their thoughts. I look forward to further discussions to find the right way forward.
Let me turn to why the SCA amendment is necessary. Collaboration with international partners is a vital element of the national security work carried out by the Armed Forces and UKIC. To support this crucial work, a number of safeguards and processes are in place to ensure that this collaboration is necessary, proportionate and prevents potential wrongdoing. For example, the Government remain committed to the Fulford principles and overseas security and justice assistance guidance, which exist to ensure that our officers do not knowingly support unlawful activity. Further, UKIC’s regulatory compliance is monitored by the Investigatory Powers Commissioner’s office via regular inspections and routinely scrutinised by the Intelligence and Security Committee.
The UK has one of the most rigorous intelligence oversight regimes in world. There are several internal safeguards and processes in place which manage the way that UKIC and the Armed Forces work with and exchange information with international partners to prevent potential wrongdoing. Operational decisions are carefully recorded and made with the benefit of regular advice from specialist legal advisers to ensure compliance with domestic and international law. Intelligence officers receive mandatory training on the legal frameworks and policies which govern UKIC and Armed Forces activity. These policies include the Fulford principles, the compliance with which is assessed by the Investigatory Powers Commissioner annually and reported to the Prime Minister. UKIC’s regulatory compliance is also monitored by the Investigatory Powers Commissioner’s office via regular inspections and routinely scrutinised by the Intelligence and Security Committee.
The Serious Crime Act offences mean that individuals who have complied with all those safeguards—working under authorisation and in the interests of UK national security—may fear personal criminal liability. It is not right or fair to expect this risk to sit with trusted individuals who are acting in good faith and on behalf of our intelligence services or Armed Forces for authorised purposes. Instead, responsibility should sit with those organisations at an institutional level, where it is subject to executive, judicial and parliamentary oversight.
I want to be absolutely clear: Clause 28 is not a broad, general immunity from criminal offences and not about allowing the Government to carry out torture or commit murder. Rather, the Government are making an amendment to provide a targeted protection which better facilitates co-operation with our key overseas partners. At present, despite being satisfied that all other domestic and international law obligations are met, essential intelligence sharing with partners has been delayed or prevented in order to protect individual officers from potential liability for SCA offences. This is a having a chilling effect across UKIC and the Armed Forces, reducing the confidence of officers who make vital national security decisions every day. As a country, that means that we are less safe, because reciprocal access to intelligence facilitated by joint working is crucial to responding to the threats we face, such as terrorism.
This amendment is not about letting UKIC and the Armed Forces do whatever they want. It is about ensuring that we are protecting those working for us from prosecution and giving them the confidence that the Government have their backs. When things go wrong, it is entirely right that there is scrutiny of and accountability for the organisation’s activities, and I commend the important work of the ISC and IPCO in this space. Meanwhile, any individual found to be working beyond the proper functions of the security and intelligence agencies or the Armed Forces will remain personally liable for those actions. That is right and fair.
I have full confidence, however, in those to whom we are providing protection, including our intelligence agencies. They are expert, professional and highly trained individuals, whose judgment and skill we respect and have faith in. Not taking the opportunity to provide those individuals with assurances that they are protected would be an abdication of our responsibility to support them in keeping our country safe.
The noble Lord, Lord West of Spithead, asked why the SCA is necessary, given Section 7 of the Intelligence Services Act, which authorises the “reasonable” defence. The noble Lord, Lord Carlile of Berriew, also raised a point on those matters, so I shall try to deal with them now. While we consider that properly authorised activity to protect national security should be interpreted as being reasonable for the purposes of the existing defence to the Serious Crime Act offences, the application of the reasonable defence to UKIC and Armed Forces activity is untested. The Government believe that UKIC and the Armed Forces should have a targeted protection that provides far greater clarity and certainty to those tasked carrying out important national security work. Section 7 ISA authorisations are not available in all the circumstances in which the SCA risks arise. Those authorisations primarily apply to overseas activities, meaning that Section 7 could not generally be used to protect officers when carrying out activities in the UK. Section 7 authorisations may be sought only by SIS and GCHQ, and not by MI5 or the MoD.
The foreign influence registration scheme, or FIRS, is being created to tackle covert influence in the UK. It will strengthen the integrity of our systems and enhance the transparency of our political processes, delivering a key recommendation of the Intelligence and Security Committee’s 2020 Russia report. As I am sure noble Lords will agree, it can be only right that the UK public and our democratic institutions are appropriately protected from political interference from abroad and better informed as to the scale and extent of foreign influence in our affairs. Russia’s recent attempts to undermine European stability has brought the need for action into sharp focus. That is why the scheme will require the registration of all political influence activities where they are to be carried out in the UK at the direction of a foreign power or entity. It is important to note that the scheme will not impose restrictions on the legitimate activities of people or business. Indeed, it is there to encourage openness and transparency. To be clear: we continue to welcome open and transparent engagement with foreign Governments and entities, and we will ensure that the administrative burden of the registration requirement is kept to a minimum.
The noble Lord, Lord Wallace of Saltaire, raised two key concerns. First, he suggested that the political tier of FIRS would have a disproportionate impact on academia. That would be the case only when those bodies undertook political influence or activity. Further, no countries are now specified on the enhanced tier, so there is no activity to be registered as it now stands. If the Government list a country, we will consider what activity should be registrable, ensuring that any such registration would be proportionate.
Lord Wallace of Saltaire (LD)
My Lords, before Committee, could we be told how this new proposal will interact with the National Security and Investment Act, which already acts on universities? Universities are concerned that there will be a double effect, increasing the problems they face and the amount of time they will have to spend on them.
Lord Sharpe of Epsom (Con)
I shall get back to the noble Lord on that point.
To conclude on that issue, these decisions will be subject to parliamentary approval.
Secondly, I assure noble Lords that all the policy in the Bill is subject to collective agreement and has the support of the full Government. It is also important to note that the Government undertook a consultation on the Bill, including FIRS, in the summer of 2021, and ran targeted engagement with industry this summer.
With regard to the specified person measure included in the foreign influence registration scheme, it is important to clarify its necessity. It will offer us three key benefits. First, it will provide the Government with a greater understanding of the scale and extent of activity being carried out on behalf of specified foreign powers and entities. Secondly, it will increase the risk to those who seek to engage in covert activities for specified foreign powers, either directly or through entities. By requiring the registration of relevant arrangements and activities, the risk of engaging in state-threats activity against the UK is increased. Finally, the specified person measures provide a potential option for earlier disruption when there is evidence of a covert arrangement between an individual and a specified foreign power or entity but not disclosable evidence of a more serious state- threats offence. Crucially, this provides an opportunity to prevent harmful activities at the earliest possible stage.
On Clause 3, the noble Lord, Lord Marks of Henley-on-Thames, gave the example of an individual working with Mossad in the UK to recover artefacts looted by the Nazis. In his example, we would expect that the UK would have been made aware of such activity and it is possible that the UK would have made an arrangement with Israel. As such, the activity would have a defence in Clause 3(7)(c)(i).
A number of noble Lords raised the Official Secrets Act 1989, including the noble Lord, Lord West, and the noble Baroness, Lady Ludford. As the House knows, the Government are not planning to reform this Act. It is worth noting that the Law Commission, in evidence to the Bill Committee, clearly explained that it did not envisage that any one statute would implement all its recommendations at once, even if the Government were minded to accept them all. It also did not recommend that a public interest defence be created in relation to the espionage offences in the Bill. We continue to consider the Law Commission’s recommendations on the Official Secrets Act 1989.
On the specific issue of a public interest defence, or PID, to overcome a PID, the Government would need not only to show that the disclosure was damaging but that any harm from a disclosure outweighs the public interest in the disclosure. This would likely mean that in a prosecution, even one where a person clearly had malicious intent, the damage of the original disclosure could be severely compounded. This could lead to even egregious breaches of the Act not being prosecuted due to the sensitive nature of the evidence that the Government would have to reveal to defeat the PID. The Government recognise that there may be situations where an individual has a legitimate need to raise a concern—for example, in situations where there may have been wrongdoing and where they think there is a public interest in disclosing that information—but disclosing information protected by the Official Secrets Act 1989 and then relying on a PID is not the safest or most appropriate way for an individual to raise these concerns and have them rectified. Nor would this address the underlying wrongdoing.
The offences in the National Security Bill target harmful activity by states, not leaks or whistleblowing activity. There are safeguards that prevent the Bill capturing whistleblowers and negate the need or utility of PID. For example, to commit an offence of disclosing protected information, the conduct must be done for or on behalf of, or with the intention to benefit, a foreign power and with a purpose prejudicial to the safety or interests of the UK. A genuine whistleblower would not meet this bar. Including a PID in any of the offences in Part 1 strongly implies that acts of espionage could be in the public interest. Clearly, acts of espionage against the UK can never be in the public interest.
There are also already several existing internal and external routes in government through which individuals, including government subcontractors or contractors, can raise a concern about information relevant to the Official Secrets Act 1989 safely. The number of routes has increased since 1989. The Government consider that these routes provide safe and effective options for disclosure, although the appropriate route would of course depend on the disclosure in question. These routes include, among others, government departments’ internal policies and processes; a staff counsellor for the national security community; organisational ethics counsellors; the chair of the Intelligence and Security Committee; the Investigatory Powers Commissioner’s Office; the Attorney-General’s Office; the Director of Public Prosecutions; and the Commissioner of the Metropolitan Police in instances where an individual suspect’s criminal activity is taking place or has taken place. To sum up, the introduction of a PID would carry significant risks to our national security and do nothing to create a safe or effective route to raise a concern, compared to the many legitimate routes the Government are actively maintaining and improving.
Turning to the report published by the Joint Committee on Human Rights, raised by the noble Baroness, Lady Ludford, the Government are clear that the offences and powers introduced by the Bill are proportionate and necessary. Through the use of appropriate safeguards and conditions, and reflecting on the need to protect national security and public safety, the offences have been crafted to catch only legitimate activity, ensuring that they remain proportionate. The Government disagree with the overall position of the committee and maintain that the measures in the Bill are appropriately drawn. Our ECHR memorandum, updated on the introduction of the Bill into this House, outlines the government assessment of how our measures comply with human rights law. I look forward to engaging with the committee as the Bill progresses through this House and the Government will respond to the JCHR report in due course. I am sure the noble Baroness would not expect me to speculate on the Bill of Rights Bill and its future.
The noble Baroness, Lady Jones of Moulsecoomb, asked when the Government will publish the Russia report. I am pleased to be able to tell her that the Government did in July 2020. In fact, I can tell the noble Baroness that our response was published on the very same day; the Bill is a direct response to the recommendations in that report.
In conclusion, I will repeat my earlier thanks to all who have participated today. I look forward to further examination and challenge as we move to Committee, but for now I beg to move.
National Security Bill
(2 years ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Sharpe of Epsom
That the bill be committed to a Committee of the Whole House, and that it be an instruction to the Committee of the Whole House that they consider the bill in the following order:
Clauses 1 to 14, Schedule 1, Clauses 15 to 21, Schedule 2, Clause 22, Schedule 3, Clause 23, Schedule 4, Clause 24, Schedule 5, Clause 25, Schedule 6, Clauses 26 to 37, Schedule 7, Clauses 38 to 41, Schedule 8, Clauses 42 to 49
Schedule 9, Clauses 50 to 52, Schedule 10, Clauses 53 to 56, Schedule 11, Clause 57, Schedule 12, Clauses 58 to 63, Schedule 13, Clauses 64 to 71, Schedule 14, Clause 72 to 86, Schedule 15, Clauses 87 to 90, Schedule 16, Clauses 91 to 98, Title.
Royal Assent
Tuesday 6th December 2022
(2 years ago)
Lords ChamberRead Full debate Read Hansard Text Amendment Paper: Committee of the whole House Amendments as at 26 October 2022 - (26 Oct 2022)
Food (Promotion and Placement) (England) (Amendment) Regulations 2022
(2 years ago)
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Baroness Merron
That this House regrets that the Food (Promotion and Placement) (England) (Amendment) Regulations 2022 (SI 2022/1007) do not justify the delay in banning the promotion of high fat, sugar and salt (HFSS) products; and notes the evidence from the His Majesty’s Government’s own Impact Assessment that the ban would have substantial monetised benefits.
Relevant document: 15th Report of the Secondary Legislation Scrutiny Committee (special attention drawn to the instrument)
Baroness Merron (Lab)
My Lords, the regret Motion standing in my name, and also that standing in the name of the noble Baroness, Lady Walmsley, are critical of the Government’s handling of the Food (Promotion and Placement) (England) (Amendment) Regulations 2022. These regulations introduce measures designed to limit the ability of retailers to promote the purchase of products classified as high in fat, salt and sugar; the intention of the regulations was to help address the high prevalence of obesity in this country.
It is worth reflecting that on 29 September 2022, just a day before the regulations were due to come into effect, the Government of the then Prime Minister Liz Truss introduced these regulations to facilitate a delay to the “multi-buy” components of the regulations—multi-buy promotions are the “buy one, get one free” on products high in fat, salt or sugar. This was passed via a negative procedure without debate, whilst the location-based restrictions came into effect as planned on 1 October this year. That brought into play restrictions on the placement of unhealthier food products near to supermarket checkouts at aisle ends and store entrances.
The motivation, if I can put it that way, for this regret Motion is that the House of Lords Secondary Legislation Scrutiny Committee strongly criticised the Government’s handling of this issue, particularly with regard to the Government’s justification for the delay, and the lack of parliamentary scrutiny for the amendment. It is the report of the committee that has formed the basis for these regret Motions, and I certainly do agree with the observations that the committee made.
Let me summarise for the purposes of your Lordships’ House the concerns encapsulated in this regret Motion. First, the Government have not brought forward sufficient evidence to justify their decision. Their stated rationale for the delay was the “global economic situation”. I suggest to the Minister that this is a somewhat cursory comment; one sentence is not enough. It is quite unclear what the Government feel the “unprecedented global economic situation” is. Are we referring to the post-pandemic situation, the war in Ukraine, high gas prices or something else? In other words, this is hardly a full description that one might expect. The Secondary Legislation Scrutiny Committee concluded that there was insufficient
“justification for delaying the start of a measure intended, over time, to accumulate public health benefits including significant savings to the NHS.”
The Government’s decision to take this still further goes directly against their own impact assessment for these policies, which states:
“Although price promotions appear to be mechanisms to help consumers save money, data shows that they increase consumer spending by encouraging people to buy more than they intended to buy in the first place.”
The impact assessment further states that
“the monetised benefits greatly outweigh the costs on a ratio of around 14:1”.
The Secondary Legislation Scrutiny Committee then outlined a number of procedural criticisms of the Government, the most significant of which include that appropriate parliamentary time was not given for scrutiny of the legislation. After all, as I have already mentioned, the statutory instrument was introduced just one day before the regulations were due to come into effect, without the standard 21-day period normally expected to allow for scrutiny by Parliament through the negative secondary legislative procedure. Of course, the statutory instrument was also laid without a full analysis of the public consultation being published, making it impossible to assess the views of the sectors affected by this decision.
There are a few questions arising from this that I invite the Minister to address when he replies. Why were the Government not able to bring forward sufficient evidence to justify their decision? Why do their claims about the impact of this policy on the cost of living contradict their own evidence presented in the impact assessment? Could the Minister say whether the consultation responses will be published, even at this stage?
I also seek reassurance from the Minister that similar procedural issues will not arise with future legislation. I make this point in particular reference to the fact that the Government will be bringing forward secondary legislation to delay the upcoming restrictions on the advertising of products high in fat, sugar and salt on TV and online, before they are due to come into effect on 1 January. I hope that we will not see a repeat of the failure to provide the requisite amount of time to allow for parliamentary scrutiny of legislation when we come to that statutory instrument. There should not be an attempt to bypass Parliament by not giving it the opportunity to discuss and examine the regulations.
This debate would not have been needed had the Government explained everything clearly in their Explanatory Memorandum, and had they allowed Parliament the opportunity to scrutinise, as is normally required. I say to the Minister that the Explanatory Memorandum is important. It is not just about how parliamentarians understand regulations; it is also about the public, industry and third-sector stakeholders. We all look to understand regulations by these means. I hope the Minister will take that point away and emphasise to the department the importance of providing the right supporting materials for often complex—and sometimes highly challenging—government policies. With that, I beg to move.
Baroness Walmsley (LD)
My Lords, my regret Motion regrets these delay regulations because they damage public health and are against the Government’s previously stated policy. When the legislation for the ban, which these regulations delay, went through your Lordships’ House in the Health and Care Act 2022, it was supported enthusiastically from these Benches. We are keen on measures to prevent ill health, save patients distress and save the NHS money, and the evidence provided by the Government in the impact statement at the time was compelling.
However, during Report, the Government introduced an amendment to allow them to delay the implementation of this measure and others in the Bill. I distinctly recall being extremely sceptical and rather suspicious about this, because of the robust opposition to these and other measures from some Members on the Government’s own Back Benches and certain lobby groups. I felt that the Government were trying to keep their troops happy and ditch the measures by stealth.
In response to my concerns, I clearly remember the noble Baroness, Lady Penn, who was leading on this amendment for the Government, assuring me that the delay power was needed only in case of a very short delay being necessary as a result of consultations on implementation. I was not convinced then and I am not convinced now. I believe that the delay power was put into the Act at the behest of lobbyists who have their own interests at heart, rather than the health of the nation, in order to allow the measures to be kicked down the road indefinitely and quietly buried.
Last week, the Government announced £20 million of funding for research to develop new medicines and digital tools to help people shed 20% of their weight. Although this will be welcome to those living with obesity, it is closing the door after the horse has bolted. In addition to spending all this money on helping people lose weight, why not promptly implement some of the measures already in legislation to help prevent obesity in the first place? By its own figures, obesity costs the NHS £6 billion annually, and this is set to rise to over £9.7 billion each year by 2050 unless effective preventive measures are taken.
As the noble Baroness, Lady Merron, said, in its 15th report, the Secondary Legislation Scrutiny Committee criticised the Government robustly on this regulation. It reminded the House that, in the impact assessment to the original instrument setting up the ban, the Government said that
“the monetised benefits greatly outweigh the costs on a ratio of around 14:1”.
That is pretty good value. Of course, the costs would have been borne by the manufacturers, retailers and advertisers of these unhealthy foods, and the benefits would have been felt by patients and the NHS, but clearly that did not suit those who lobbied the Government to introduce this delay.
What is the Government’s justification for it? The unprecedented global economic situation. What I would like to ask the Minister to explain to the House is this: whose pocket do they think they are saving by delaying the ban on this kind of price promotion? Is it that of the shoppers who are trying their hardest to put food on the table after they have paid the vast increases in their energy bills and mortgages thanks to the Government’s economic mismanagement? Or is it that of the large, profitable organisations that make, sell and advertise these foods? I am not convinced that the global economic situation is going to cause these companies to go bust, but I am convinced that continuing to allow this kind of promotion will do harm to the average shopper. Why do I say that? For the very simple reason that the Government themselves, in their own impact statement, said:
“Although price promotions appear to be mechanisms to help consumers save money, data shows that they increase consumer spending by encouraging people to buy more than they intended to buy”.
So now we know: the big manufacturers, retailers and advertisers of unhealthy foods have won, and the patients and shoppers have lost.
Baroness Brinton (LD)
My Lords, it is a pleasure to follow the noble Baronesses, Lady Walmsley and Lady Merron. They have said practically everything I wanted to say, and as the Minister may find it depressing for me to say it a third time, I will not.
What I do want to focus on is the key role of Parliament, and in this case your Lordships’ House, in scrutinising statutory instruments. We all have to accept that the period during which Liz Truss was Prime Minister was a somewhat extraordinary, though very short, one. I note in parenthesis that the Minister was appointed on 10 October, after these incidents had happened, so I think we need to recognise that he is responding to something that happened before he was in post. He was, however, appointed by Liz Truss.
The key thing is the sleight of hand in turning something that was absolutely openly discussed during the passage of the Health and Care Bill, and which was only to be used as a very short-term emergency measure, into what has clearly become a highly political move. While I have perhaps been slightly harsh on the time during which Liz Truss was Prime Minister, her successor has chosen not to reverse this, which tells me that this is a move by the Government.
I have to echo the points made by the noble Baroness, Lady Walmsley, about the evidence to our eyes during the passage of the Health and Care Bill of those who had heard the lobbyists and were fighting hard against the amendments the Government wanted.
I have just a couple of questions. We do need to see the evidence. The Secondary Legislation Scrutiny Committee was right: it is not appropriate to ask Parliament to scrutinise something without the evidence. Where is it, when will we see it and why do claims about the cost of living contradict the Government’s own evidence in the impact assessment available at the time? It is important that Parliament sees the detail of the responses to the Government’s consultation from every sector—food and drink, supermarkets, health bodies, not-for-profit organisations and charities—and the public, in whatever way they responded. Do the Government plan to publish that consultation?
Given the concern expressed by everyone who has spoken this evening, and indeed the Secondary Legislation Scrutiny Committee, and the evidence of our own eyes in your Lordships’ Chamber during the passage of the Health and Care Bill, it might be helpful if Ministers could publish all the meetings that all Ministers have had with food and drink industry members this calendar year, which about ties in with the beginning of the passage of the Health and Care Bill—at least, the first consultations prior to legislation arriving here in your Lordships’ House.
Finally, I suspect this may be slightly beyond the power of the Minister, but I do hope he will go back to the usual channels and seek guarantees that this sleight of hand will not be used again, especially given the delay on advertising HFSS products on TV and online before the provisions are due to come into effect on 1 January 2023. We absolutely must have that 21 days to decide whether we want to pray something in aid and bring forward regret Motions. However, there is a bigger issue here: the reputation not just of your Lordships’ House but of the Executive, and the power of the Executive just to ignore the systems that are in place. We need to make sure that scrutiny can be done effectively.
The Parliamentary Under-Secretary of State, Department of Health and Social Care (Lord Markham) (Con)
My Lords, I thank the noble Baronesses, Lady Merron and Lady Walmsley, for securing this important debate to discuss the Food (Promotion and Placement) (England) (Amendment) Regulations 2022. I also pay tribute to the Secondary Legislation Scrutiny Committee for its 15th report of the 2022-23 Session, which considered the amendment.
I thank noble Lords for their constructive and thoughtful contributions to the discussion on tackling the significant challenge of obesity. From this debate and our previous discussions, the good news is that we are all agreed on the need to take action. We are all aware of the stats: 40% of kids are overweight when they leave primary school, 25% are obese and, as the noble Baroness, Lady Walmsley, said, there is a huge impact on the economy of £58 billion per annum and a huge impact on the NHS of £6.5 billion. That is notwithstanding the huge impact on individuals’ personal health and well-being as well.
We are also all agreed on the strategy that we need to take: reducing overconsumption of food and drink high in calories, sugar, salt and fat. I think we all know the main levers available to achieve that but, to paraphrase the OECD, there are four key steps: information/education, increasing healthy choices, modifying costs and restrictions on promotions and product placements. We have made good progress on each of those. We have extensive education programmes and traffic-light labelling on food, we are working with industry to reformulate food recipes, we are putting calories on menus to signal healthy choices and we are ensuring a healthy start to life through nutritionally balanced school recipes. Furthermore, the sugary drinks tax levy has had a huge impact, with a 47% decrease in sugar.
Finally, the introduction of restrictions on product placement has had a high impact on the look and feel of our supermarkets. It is early days but a year-on-year change in the consumption of these types of products—two months into this, I guess—shows an 8% fall in sugar content, a 5.7% fall in salt consumption and a 6.4% fall in fat, which shows that these restrictions on product placement are working. Furthermore, analysts calculate that the steps we have taken here will account for 96% of the reductions in calorific intake. I repeat: the actions that we have taken, thanks in large part to all of us in the House, account for 96% of the projected reduction in calories. The early signs from the evidence that I gave show me that those actions are working.
I turn to the 4% and the thing we have not done, the subject of the regret Motion tonight: the delay to the ban on promoting foods high in fat, sugar and salt—the so-called BOGOF, or “buy one, get one free”, promotions. I emphasise that this is just a delay to the ban to give people time to adjust. I am delighted to say that Tesco and Sainsbury’s, accounting for 42% of the market, have already voluntarily banned BOGOFs of these types of food products. I am confident that the rest of the market will voluntarily follow, whether they are supermarkets following the lead of Tesco and Sainsbury’s or food companies reformulating their recipes to reduce fat, sugar and salt to avoid the so-called BOGOF ban.
By working with the food industry, we have taken action to address 96% of the problem, and we are working collaboratively with industry to implement the remaining 4%. Those figures probably give the best answer for the delay, though I concede that maybe I say that as a data analyst—and it was before my time.
I agree with the noble Baronesses, Lady Merron and Lady Brinton, that the so-called sleight of hand clearly was not great. I am pleased to take that from this debate, and I commit to doing better for as long as I am here.
The noble Baroness, Lady Walmsley, asked about the benefits challenge. The action that we have taken is focused on 96% of the forecast decrease in calorific intake, which again shows that we have acted where the benefits are most likely to accrue. My rough maths says that, if 42% of the market—Sainsbury’s and Tesco—voluntarily introduce this, we are now looking at addressing about 98% of the calorific intake that we had forecast to reduce. By any measure, that shows very strong analytical evidence of good reasons for doing so, and for giving people time to adjust and make the other changes.
On the 21-day rule, a consultation on this instrument was conducted between 3 and 17 August 2022. This was a short consultation shared with key stakeholders, including trade industry bodies and organisations, non-governmental organisations and enforcement officers. We sought views on the proposed text of the instrument. A summary of the outcome of the consultation was provided in the published Explanatory Memorandum. We explained that the consultation received 11 responses, including from organisations that represent over 50 health organisations, and industry trade bodies that represent manufacturers and retailers. All proposed changes suggested as part of the consultation were considered in the light of ensuring that this instrument served the intended purpose of delaying the implementation of the volume price promotion restrictions by 12 months.
Baroness Brinton (LD)
My question was whether the detail of the consultation responses would be published in the future. I appreciate that the Minister may not be able to answer that now, but even though there may not have been responses from many people—and it sounds as though there were not—it would still be useful for us to see that to do our job. Can he take that back? It is the normal convention that the results of public consultations are published; if not word by word, there is certainly more of a summary provided than there was in the Explanatory Memorandum.
Lord Markham (Con)
I thank the noble Baroness and am happy to take that back.
I hope that I have answered the questions. In all honesty, I cannot go into some of the details of whether there were other reasons behind it. As ever, being the data anorak that I am, I will fall back on the fact that what we did addresses 96% of the forecast reduction in calories. As ever, I will happily follow up in writing on anything that I have not covered.
I thank the noble Baronesses, Lady Walmsley and Lady Merron, for bringing forward the debate tonight. We are all agreed on the need to tackle obesity, and I want to focus on those things that we agree on. We are agreed on the actions and that those implemented already, such as the sugary drinks tax levy, have resulted in an almost 50% reduction in sugar, and that those recently implemented account for 96% of the projected reduction in calories. Our only slight disagreement is over time, concerning the remaining 4%, but by working collaboratively, we have already brought the biggest two supermarkets on side, and we will have 100% implementation within the year. We are working with the industry and we are backed by the science in what we are doing. Most of all, the action taken to date is working.
Baroness Merron (Lab)
My Lords, I thank the Minister for his response. I particularly appreciate his acknowledgement of the criticism that the Secondary Legislation Scrutiny Committee made about process. I am sure that all of us in your Lordships’ House will very much welcome his assurance—I do not wish to put words into his mouth—that we will not see a repeat of that on his watch. That is very reassuring.
However, it is interesting that the Minister referred to this as just delay to take some time to adjust. I am not sure who we are referring to on taking the time to adjust, particularly in view of the fact that the Minister has informed your Lordships’ House that some supermarkets have already come forward to implement these measures. They clearly did not need time to adjust. I remain somewhat mystified by the logic put forward today, particularly as the points made by noble Lords very much echoed those raised in the passage of the Health and Care Act and have been repeated many times in this Chamber—we have great concerns about the failure to take action that we know will make a change because the Government’s own documentation says that it will.
I welcome the Minister’s concern that the processes were not followed. I very much hope that we will not have to repeat such a regret Motion. However, I have to part company on what I felt was a response that said that it is all in hand and this is merely a delay for a time to adjust—although we do not even know for whom. It is regrettable that we are in this position. However, on the basis that we are there, I beg leave to withdraw.
Food (Promotion and Placement) (England) (Amendment) Regulations 2022
(2 years ago)
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Baroness Walmsley
That this House regrets that the Food (Promotion and Placement) (England) (Amendment) Regulations 2022 (SI 2022/1007) will delay without sufficient justification the implementation of the ban on promoting high fat, sugar and salt products through “buy-one-get-one-free” offers in England, which was expected to deliver public health benefits and significant savings to the NHS.
Relevant document: 15th Report of the Secondary Legislation Scrutiny Committee (special attention drawn to the instrument)
Baroness Walmsley (LD)
My Lords, I congratulate the Minister on a really good try. I thank him very much. The problem is that we live in an obesogenic environment.
The Minister mentioned four ways in which we can try to help people to not eat too many calories. He talked about education. It has not worked, or we would not be where we are now. He talked about information. We have had lots of different systems of food labelling—some people like one and some another. The jury is out on menu labelling, because it has not been in place for very long. He talked about reformulation—absolutely. Bravo to the Government: reformulation has worked really well. Unfortunately, its application is very narrow, and things like this need incentives and enforcement. Of course, the incentive that worked so well with reformulation was you would pay the tax if you did not —that was really good. Lastly, he talked about restrictions on promotions. We are talking about that now, but we need implementation. It is in the statute.
The only thing the Minister could say was that the industry needs time to adjust. Well, Tesco and Sainsbury’s did not need time to adjust, and they have hundreds of shops. They have done it and bravo to them; I congratulate them for doing it. They have taken the moral high ground and they have done it. I do not see why everybody else cannot either. If they can do it, why not the rest?
I echo my noble friend Lady Brinton’s concerns about the shortness of time, the lack of scrutiny and all the other things that the Secondary Legislation Scrutiny Committee criticised. I am grateful to hear the Minister say that that is not going to continue on his watch. That is good news and I thank him very much for it. In the meantime, I shall not press the Motion.