Grand Committee
Arrangement of Business
The Deputy Chairman of Committees (Lord Geddes) (Con)
My Lords, as is normal on these occasions, I advise the Committee that if, as is likely, there is a Division in the Chamber while we are sitting, the Committee will adjourn as soon as the Division Bells are rung and resume after 10 minutes.
Energy Bills Support Scheme and Alternative Fuel Payment Pass-through Requirement (Northern Ireland) Regulations 2023
(1 year, 2 months ago)
Grand CommitteeRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Callanan
That the Grand Committee do consider the Energy Bills Support Scheme and Alternative Fuel Payment Pass-through Requirement (Northern Ireland) Regulations 2023.
Relevant document: 26th Report from the Secondary Legislation Scrutiny Committee (Instrument not yet reported by the Joint Committee on Statutory Instruments.)
The Parliamentary Under-Secretary of State, Department for Business, Energy and Industrial Strategy (Lord Callanan) (Con)
My Lords, the Energy Bills Support Scheme and Alternative Fuel Payment Pass-through Requirement (Northern Ireland) Regulations 2023 were laid before the House on 11 January 2023.
Throughout this winter, the Government have responded rapidly to the unprecedented rise in energy prices. This includes introducing emergency legislation on energy support. The Government’s support package has protected and will continue to protect households and non-domestic consumers across the United Kingdom.
In December, the Government announced details of the merged delivery of the energy bills support scheme, EBSS, and alternative fuel payment, AFP, in Northern Ireland. Householders in Northern Ireland have already received or will soon receive £600 in a single payment for support with their energy bills. In recognition of the high prevalence of alternative fuel usage in Northern Ireland, the AFP will be delivered to all domestic households in Northern Ireland. The total of £600 is composed of £400 of EBSS, which provides support for the energy costs of all domestic households, and the AFP, which provides an additional £200 of support.
To deliver the scheme, in December the Secretary of State made a direction pursuant to Section 22 of the Energy Prices Act. This placed requirements on Northern Ireland electricity suppliers to provide this crucial support to households this winter. Delivery has commenced and households are already benefiting. We expect the vast majority of eligible households to have benefited by the end of February.
Turning to the pass-through requirements, these regulations will place a legal obligation on intermediaries to pass any benefits received through the schemes to end-users. This will help ensure that the energy support is received by the intended beneficiaries. These regulations have been created under the Energy Prices Act 2022. They are essential secondary legislation to fully implement the schemes.
The regulations are modelled on the pass-through requirements for other energy schemes, such as the EBSS in Great Britain. In that, we are not waiting for intermediaries to act on their own accord; we are legally requiring that they pass on the financial benefit to end-users.
An intermediary is any individual who is party to a domestic electricity contract, has a domestic electricity meter and is the recipient of government energy support. This group includes landlords. An end-user is an individual who consumes the energy and pays for this energy usage. This includes tenants. The regulations also outline when and how intermediaries should communicate with end-users about information regarding pass-through of benefit from the schemes.
The enforcement approach for EBSS AFP NI is consistent with other support such as the energy bills support scheme in Great Britain and the UK-wide energy price guarantee. Namely, if the intermediary does not pass on the benefit, the end-user could pursue recovery of the benefit as a debt through civil proceedings. Should a court rule in the end-user’s favour, they would be entitled to the payment plus interest. The interest is set at 2% above the Bank of England’s base rate.
The Government continue to ensure that the intermediaries and end-users are clear on their obligations and rights. In particular, we have published guidance on GOV.UK to help support intermediaries to discharge their obligations. There are also template letters to support tenants, should they wish to raise concerns with their landlords about their energy bills and the pass-through.
I thank the Secondary Legislation Scrutiny Committee for its view on these regulations. I have noted that its concerns remain the same as those it previously raised on the pass-through requirements of the energy bills support scheme in Great Britain. The committee’s concerns relate to the definition of “just and reasonable”, and to an “inequality of arms” and how that affects vulnerable groups.
The energy market is complex. There is a vast range of contracting structures relating to the supply, resale, provision and charging of energy. This means that there are many different circumstances for how energy can be consumed. That is why it continues to be important that the regulations can account for the numerous configurations of an intermediary/end-user relationship. It is highly risky to draw a narrow and limiting definition which could result in some intermediaries falling outside the pass-through requirements. By requiring landlords to pass on the financial benefit in a just and reasonable manner, end-users will be treated fairly and lawfully.
The fact that the regulations require intermediaries to pass on the amount in a just and reasonable manner means that situations where there could be an inequality of arms are also covered. For example, if a landlord owns multiple properties and receives the scheme benefit on them all, he or she must divide and allocate the amount among their end-users and inform them how they have calculated the financial benefit.
The committee’s other concern, about vulnerable groups, is of course valid. The Government are also making sure that all groups in scope of the pass-through regulations, including vulnerable groups, receive what they are entitled to through our engagement with those impacted. Over the past several months, we have engaged with consumer groups, landlords, housing associations and charities to disseminate communications and to underline the obligations placed on intermediaries and the rights of end-users. Our extensive engagement activities include organisations in Northern Ireland.
In conclusion, these regulations are essential to ensure the effectiveness of the energy bills support scheme and the alternative fuel payment Northern Ireland scheme and that the support reaches the people it is intended to help. Without the regulations, there would be a risk that intermediaries did not pass on the £600 benefit in a just and reasonable way, leaving some households in Northern Ireland exposed to high energy costs. I therefore commend the regulations to the Committee.
Lord Teverson (LD)
My Lords, I thank the Minister for going through yet another of these SIs. I am sure he will not mind if I ask him some just and reasonable questions about it.
First, I note that the measure came into force on 12 January, so it is already in place. Obviously, it is administered, to a degree, by the energy companies, but who is policing it? Is it the Northern Ireland civil servants, or is it BEIS directly? I would be interested to understand that. If it is Northern Ireland officials, are we confident that sufficient management governance will take place from here?
I welcome that the Government and the department have spoken at length to consumer organisations in Northern Ireland. I am interested to understand whether there have been any complaints yet of end-users not receiving this when they feel that they should have, to get some idea of how well it is working.
The Minister talked about the method of civil law, and having fines—plus, generously, an interest-rate benefit if people manage to get through a whole court process. We have said before that it is very unlikely that much of that would happen, but, if an intermediary ignored the need under this legislation to pass on those payments, would the Government have the ability to prosecute that person? I can imagine there being a certain number of landlords who will just think, “No one’s looking at me, there’s not a lot of publicity about this, I’ll just keep the money”. I would be interested to understand whether there is, at the end of the day, a criminal long-stop prosecution ability in terms of fraud and so on. Also, will the Minister say how many more SIs around these schemes are still to come?
Lord Lennie (Lab)
My Lords, I thank the Minister for introducing this scheme. If he feels a bit of déjà-vu, it is because we have already been here. We discussed this on the UK scheme. This scheme is to ensure that support provided to intermediaries on behalf of the end-user in the energy bill support scheme and the alternative fuel payment in Northern Ireland must be passed to the intended recipients. This is welcome and important, but there are questions about what difference the instrument will make to intermediaries if they do not do it.
The Explanatory Memorandum states:
“Relevant intermediaries are any individual that is party to a domestic electricity contract … and passes on the costs of the energy supplied under this contract to an end user of the energy supplied … Intermediaries should pass on the discount irrespective of how the end user pays for their energy use … If an intermediary does not pass through the whole of the scheme benefit provided to them, then they must demonstrate to the end user that the amount they are passing on is just and reasonable, including taking into account the extent to which the intermediary’s charges to end users reflect the increased cost of energy as a result of the energy crisis.”
The Minister said that intermediaries include landlords. They do indeed, but they also include sublets, student accommodation, social housing providers, local authorities, site owners, site managers, marinas for onshore power, combined heat and power operators, electric vehicle charging operators and other residential building managers. It is possible for an intermediary also to be an end-user because they can live in the scheme that they manage. Given the variety and range of intermediaries and the complexity of this calculation, will it have any impact on the number of intermediaries that do or do not pass the benefits through?
The Explanatory Memorandum also states:
“The intermediary must, within 30 days of a scheme benefit being provided, provide information to the end user in writing ... The intermediary must ensure the end user receives the pass-through amount as soon as reasonably practicable ... Where an intermediary fails to effect a pass-through to which an end user is entitled, that end user may recover the amount from the intermediary as a civil debt.”
How many end users will be aware of this? How many will know about this scheme at all? If I am a landlord, is it worth the risk of not passing it on and sitting and waiting to see what happens? If I do not get any orders to justify, I can just keep the funds. It is a small amount of money to a court—a maximum of £600—but to a landlord who may have multiple lettings, it can be a considerable amount of money. Do the Government expect end users will do this for £600? Will fees make it not worth while for them to do it? How will intermediaries be disincentivised from taking this gamble? There is no penalty if you are found not to have passed on the money. Intermediaries are just ordered to pass on the funds in the scheme, plus 2% above interest rates. It does not seem to be a huge gamble that the intermediary might be taking. Will the Government not be enforcing this in any way? As the SLSC said, there is inequality of arms. It almost encourages intermediaries to take a chance, and the victims are the tenants and the end-payers of the scheme.
Lord Callanan (Con)
I thank the noble Lords, Lord Teverson and Lord Lennie, for their comments. I guess they do not disagree with the principle, but nevertheless had some notable questions which I will address in a second.
These regulations are critical to the successful implementation of the energy bills support scheme and alternative fuel payment in Northern Ireland. The Government’s focus has been on delivering this support to those who need it in Northern Ireland. That is why we focused on creating a delivery mechanism which could be rapidly implemented this winter and allow consumers to feel the benefit immediately, which is quite a challenge in government. This includes combining the support from two schemes into a single payment. Now that delivery has commenced, more than 800,000 households in Northern Ireland will benefit from this support. This comes on top of support households in Northern Ireland have received and will continue to receive through the energy price guarantee.
Spearheaded by the energy bills relief scheme and energy price guarantee reviews, the Government are considering the broader energy affordability landscape. Naturally, our considerations will include the needs of those in Northern Ireland.
Lord Teverson (LD)
I wish to comment on the Minister’s reply. It seems just a little supine that the only threat to intermediaries and means of enforcement is their tenants having to go through a civil court process for a fairly small amount of money. To me, that seems to have no consequence whatever. I have that concern but, as the Minister has explained, that is the situation.
Energy Bill Relief Scheme (Non-Standard Cases) Regulations 2023
(1 year, 2 months ago)
Grand CommitteeRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Callanan
That the Grand Committee do consider the Energy Bill Relief Scheme (Non-Standard Cases) Regulations 2023.
Relevant document: 26th Report from the Secondary Legislation Scrutiny Committee
The Parliamentary Under-Secretary of State, Department for Business, Energy and Industrial Strategy (Lord Callanan) (Con)
My Lords, I beg to move that the Energy Bill Relief Scheme (Non-Standard Cases) Regulations 2023, which were laid before the House on 11 January, be approved.
The EBRS regulations require licensed suppliers to discount their prices for the supply of electricity and gas to non-domestic consumers. Licensed suppliers provide the vast majority of electricity and gas supplied to non-domestic customers but some UK businesses do not receive their energy in this way. The Energy Prices Act 2022 allows us to provide financial assistance for energy costs using non-legislative schemes. On 9 January 2023, the EBRS non-standard customers scheme opened for applications. This is a grant scheme that allows payments to be made to those non-domestic customers who receive an unlicensed supply of electricity or gas that has been drawn from the public electricity or gas grid over the period from 1 October 2022 to 31 March 2023. The regulations we are discussing today are ancillary to the non-standard customers scheme.
The businesses eligible to benefit from the scheme include energy-intensive critical national infrastructure. They have been exposed to high energy costs in the same way as those who have benefited from discounts under the EBRS regulations. The scheme enables them to receive relief at a level comparable to the customers of licensed suppliers. We expect businesses to begin receiving support under the scheme this month; this will be applied retrospectively. The EBRS non-standard cases regulations are essential secondary legislation needed to support the operation and delivery of the EBRS non-standard cases scheme. I pay tribute to the work of the Secondary Legislation Scrutiny Committee for reviewing these regulations and note that it has no comments.
Let me turn now to the detail of the regulations for the benefit of the Committee. Identifying who is eligible to receive payments under the scheme is not always straightforward. The regulations provide the Secretary of State with powers to obtain information from those involved in the often quite complex supply chains through which this energy flows, so that we can be sure that the right businesses are admitted to and benefit from the scheme. They imply some terms into the contracts between those involved in these supply chains to help the scheme work more smoothly.
Finally, as in the case of all the schemes put in place under the Act, they provide for certain intermediary businesses—again, often landlords—that receive a benefit under the scheme but which in turn provide energy to others, often in another form, such as heat, and pass a fair share of the benefit that they receive on to their end-users. The regulations also make provisions for pass-through requirements. The energy provider must calculate and pass through a just and reasonable amount of the benefit to end-users as soon as reasonably practicable.
These regulations set out the information which relevant intermediaries are required to provide end-users about the scheme benefit, including the amount and supporting details about how they have calculated this in a just and reasonable manner. Where the energy provider fails to effect a pass-through, the amounts are recoverable from the energy provider by the customer as a civil debt.
To accompany the regulations, we have published a suite of scheme terms and non-statutory guidance, which provides further detail on how the scheme for non-standard cases works. Given the urgency of ensuring that organisations receive the support they need this winter, we have not launched a formal consultation. Instead, we launched a call for evidence on 17 November requesting examples from organisations that are unable to access the EBRS because they are non-licensed suppliers of energy or supply energy to businesses in non-standard ways.
We have also had informal consultation with energy providers, and their energy-intensive customers, on the scheme terms and guidance. My department will continue to monitor this instrument following its implementation, including any feedback from stakeholders, and will of course review as necessary.
Support delivered through the scheme provides relief on the wholesale element of customers’ gas and electricity bills. Customers eligible for support under the scheme are exposed—sometimes very exposed—to high energy costs. In some cases, relief from those costs may well help to avoid firm closures and potential redundancies. More broadly, by reducing industry’s energy costs, the scheme should support economic growth and limit inflation.
In conclusion, the EBRS non-standard customers are a source of critical support for non-domestic customers in the UK, particularly those in energy-intensive industries, many of which are essential to our national infrastructure. I emphasise that the measures in these regulations are crucial for the effective operation of the non-standard cases scheme. The scheme complements the existing large-scale support that the Government are providing during the energy crisis. On that basis, I hope that noble Lords will support these measures and their objectives and I commend these regulations to the Committee.
Lord Teverson (LD)
My Lords, again, this instrument came into force on 12 January and we are now more or less into February. Can the Minister remind us when the scheme ends, because we must be getting quite close to that?
I have only one question on this, and I will not ask the one about prosecution, because these are large amounts of money; I would have thought it was more important. According to the Explanatory Note on page 11,
“Regulations 3 and 4 provide the Secretary of State with a power to obtain information about the supply of gas or electricity to persons who are or may be eligible for assistance under the Scheme.”
I am interested in whether the Minister’s officials have done that, and how they found it.
Lord Lennie (Lab)
My Lords, this requires energy providers to share information with the Government, such as meter readings and contract agreements, to allow BEIS to ensure that appropriate relief can be passed on to businesses that are not eligible for the energy bill relief scheme because their energy is supplied by the grid, not from a licensed supplier. The current energy bill relief scheme, announced in September, comes to an end in March 2023. It supports businesses and public sector organisations such as schools and hospitals, and so on, by providing the discount on wholesale gas and electricity prices.
First, this instrument applies only until March 2023; it has been in effect since September without this information. How much relief has not gone to the relevant businesses in this time period? What impact will this error have had on these businesses and how long will it take the Government to gather this information, analyse it and enact the required changes?
The Government have announced a new energy bills discount scheme, the EBDS, from April 2023 to April 2024 for eligible non-domestic customers in Great Britain and Northern Ireland. Is the error that occurred in the original scheme now fixed so that, from day one, the EBDS will be fully effective?
Lord Teverson (LD)
They are not even fined; they just get the money back plus the interest.
Lord Lennie (Lab)
I agree; there is no penalty at all. They just have to pay back the money to the individual that they should have paid in the first place, plus a bit of additional assistance.
Lord Callanan (Con)
I again thank the noble Lords, Lord Teverson and Lord Lennie, for their contributions. As both noble Lords have said, the EBRS Great Britain and Northern Ireland regulations are already in force and delivering support to organisations across the United Kingdom. However, the Government have responded to the concerns of stakeholders to ensure that a further group of non-domestic energy consumers, including some critical to national infrastructure, can also receive support to avoid decreases in production or, even worse, the closure of some businesses. These regulations are essential secondary legislation which is needed to support the delivery and operation of the EBRS non-standard scheme.
The Government remain committed to taking decisive action during this energy crisis to assist the widest possible range of consumers. As well as providing immediate assistance, this relief will support economic growth and limit inflation caused by increasing energy bills and their knock-on impacts on prices, labour, goods and services. We are confident that providing relief via the non-standard cases scheme will help mitigate the risks of closures and redundancies among eligible businesses and ensure that they can continue to operate.
The scheme has been designed to operate robustly and guard against fraud, error and gaming. We will continue to monitor it to ensure that this support is provided to the businesses it is designed to help. The Government remain committed to ensuring that consumers receive help with the rising cost of energy. The regulations are vital in ensuring that support is delivered to those businesses.
I turn to the questions asked by both noble Lords. The noble Lord, Lord Teverson, asked whether the scheme will run for the same period as the standard EBRS. Yes, it runs from 1 October to 31 March. He also asked about passing information to the Secretary of State—whether the department has done this and how it found it. So far, we have found that energy suppliers are providing the information we require to support their claims in a timely manner, which ultimately supports their own customers and end-users.
The noble Lord, Lord Lennie, asked why it applies only until March 2023; that is, the same finishing date as the existing EBDS. Of course, there are substantial costs on the Exchequer. I am sure the Chancellor keeps all these things under review, but at the moment, the scheme ends at that point. The noble Lord also asked whether the EBDS will be fully effective after the EBRS is ended. I assure him that many civil servants in my department are working to ensure that that is exactly the case and that there is a smooth transition between the two schemes.
The noble Lord also asked whether a mistake has been rectified with EBRS. It was not a mistake. We identified that there was a group of businesses supplied with energy by unlicensed suppliers and we have set up this scheme to provide support for those businesses which did not benefit when others benefited because they receive their energy through licensed suppliers. We stood up the scheme as quickly as we possibly could, given all the demands that have been placed on the department from all the other schemes as well.
In response to the noble Lord’s questions about intermediaries, we believe that in those cases, energy providers are working closely with their end-customers to ensure that they are all offered support. Of course, in many cases, these are very big businesses, and we have direct communication with many of the end-customers. Normally, we do not have a problem making sure they realise their eligibility, but we are of course seeking to provide as much information as possible to ensure that they are aware of their rights—although, in those cases, I am sure they are well aware of them themselves.
I think I have dealt with the questions from both noble Lords, and I therefore commend the regulations to the Committee.
Financial Services and Markets Bill
Monday 30th January 2023
(1 year, 2 months ago)
Grand CommitteeRead Full debate Financial Services and Markets Act 2023 View all Financial Services and Markets Act 2023 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 80-III Third marshalled list for Grand Committee - (30 Jan 2023)
“FCA powers beyond designated activities
(1) This section applies to any person (P) conducting or purporting to conduct any financial services and markets activity, including advisory services, whether or not that activity is designated or regulated, provided that P—(a) occupies a position in which they are expected to safeguard, or not to act against, the financial interests of another person (CP), or in which there is significant asymmetry of information,(b) dishonestly abuses that position, and (c) intends, by means of the abuse of that position—(i) to make a gain for P or another, or(ii) to cause loss to another or to expose another to a risk of loss.(2) A person may be regarded as having abused their position even though their conduct consisted of an omission rather than an act.(3) If the conditions set out in subsections (1) and (2) are met, the FCA has the following powers in relation to P—(a) a power to require the supply of information;(b) a power to make investigations (including the making of reports);(c) a power of entry into premises controlled by P;(d) powers of inspection, search and seizure with respect to premises controlled by P;(e) a power to make a private or public statement of censure;(f) a power to impose monetary penalties.(4) The Treasury may by regulations make provision about enforcement in connection with the powers included in subsection (3), and may make such modifications to the provision in subsection (3) as the Treasury considers appropriate.(5) If the conditions set out in subsections (1) and (2) are met, P is liable—(a) to account to CP for any gain P has made directly or indirectly by the transaction, and(b) to indemnify CP for any loss or damage resulting from the transaction.(6) If the FCA is satisfied that the conditions set out in subsections (1) and (2) are met, it may order P to pay to the appropriate person or distribute among the appropriate persons such amount as appears to the FCA to be just, having regard to the profits appearing to the FCA to have accrued to P.(7) The FCA has the power to institute criminal proceedings, including under section 4 of the Fraud Act 2006, provided that the conditions set out in subsections (1) and (2) are satisfied.”
Baroness Bowles of Berkhamsted (LD)
My Lords, the amendments in this group address matters of fraud or misrepresentation that occur around and because of the regulatory perimeter and have been factors in various recent scandals. Amendment 38 establishes a regulatory offence for fraud by abuse of power and reaffirms FCA power to undertake criminal prosecutions for fraud. I thank the noble Lord, Lord Naseby, for his support on that amendment. Amendments 39 and 198 deal with instances where there are forms of deception or inadequate or lack of information that can mislead about regulated status but which are not caught by existing offences.
A central feature in various scandals has been the abuse of a position of power and/or a belief that an entity was regulated and therefore all its activities had some seal of approval. It has later been discovered that there is no regulatory, supervisory or any other cover and no redress via regulators. The list of examples is extensive, and includes Lloyds Bank’s business support unit, HBOS Reading, Blackmore Bond, London Capital & Finance and RBS’s Global Restructuring Group, but there are many more.
Smaller but nevertheless still substantial businesses have been particular targets: bankers taking advantage of business lending being outside the regulatory perimeter, seemingly not covered by the integrity objective or anything else, which I and other noble Lords have laid out in detail and has been covered by the APPG on Fair Business Banking and others.
The FCA explained in excruciating detail how the asset stripping in the GRG case fell outside its objectives and its own created interpretations, and Andrew Bailey, then CEO of the FCA, said that even if the SMCR had been active at the time, it would not have been covered by it. Later, he hedged and said that maybe it would have applied, but it would all depend.
In its final report, the FCA concluded that there was no case to rule senior RBS managers not fit and proper, because the bar was too high. The fact is that the relationship that businesses and individuals have with their bank is a special one: finance, loans, mortgages, outgoings and income, available capital and other assets, trading accounts, major clients, cash flows—all such things are known by the bank, indeed required to be known, to access finance. But little is known about the bank’s assessment criteria. The relationship is inherently asymmetric in both power and information, and can and has been abused repeatedly.
The relationship with your bank is the lifeblood of businesses, especially small businesses, the homes of which are often subject to a charge. It is known what you are good for and can be taken for. Consumers have had additional protections that businesses do not.
Amendment 38 is specific to abuse of power within financial services and it uses the same wording that appears in Section 4 of the Fraud Act 2006 for fraud by abuse of power. The Fraud Act conditions are that if a person is in a position in which they are expected to safeguard, or at least not act against, the interests of another person, or where there is asymmetry of information, and there is dishonest abuse of that position to make a gain or cause loss to another, it is a criminal offence. My amendment replicates those Fraud Act provisions and introduces a corresponding regulatory offence.
Subsection (7) of my amendment reaffirms the power of the FCA to institute criminal proceedings under Section 4 of the Fraud Act. I say “reaffirm” because the FCA has power to prosecute beyond offences explicitly listed in FSMA, as confirmed in Regina v Rollins [2010] UK Supreme Court 39, in which the court found that the FSA’s powers to prosecute criminal offences were not limited to the offences referred to in Financial Services and Markets Act. The FSA always had been able to bring any prosecution, subject to statutory restrictions and conditions, provided that it was permitted to do so by its memorandum and articles of association, which were so permissive. The FCA, in essence, has the same articles and legal position as the FSA did then, but seems to need both more tools and more encouragement.
Various particularly relevant offences continue to be singled out and put into FSMA. Adding an offence of fraud by abuse of power is therefore long overdue, given the power and asymmetry of information that I have already explained. We know that the bar is high for criminal prosecution—to the extent that some rely on that, a chain of command and shared responsibility to eliminate mens rea and the ability to obtain a conviction, hence my suggestion that there is also a regulatory offence.
Turning to the other amendments in the group, Amendment 39 is also about when a regulated person carries out unregulated activity, the boundary is not clearly understood, and a customer may not know when they have strayed into riskier waters. A common thing may be to see headed paper or a website displaying, as required, that a person is regulated for a given activity, but the limiting language is not always going to be meaningful to the ordinary person. As we discovered in the Gloster report, even the FCA got it wrong.
Baroness Kramer (LD)
My Lords, my noble friend Lady Bowles’ speech was so powerful that I saw a lot of heads nod, but perhaps that has discouraged other noble Lords from standing up to speak on this occasion.
I am not going to attempt to repeat an excellent speech which made the points which such clarity. I just want to underscore two things. Whenever I have conversations with the FCA and whenever you read its articles, it prays in aid the complexity of the regulatory perimeter so that on so many occasions it is hard to know exactly where it is and how it is applied. However, when you look at abusers and scammers, they have absolutely worked out where the regulatory perimeter stands and know exactly what scope they have, and they make sure they use every scrap and every inch of that space which is provided to them. That is addressed by these amendments.
The second issue that I want to underscore was raised by my noble friend. It is that, culturally, the FCA seems to be very timid about pushing to the limit of the perimeter the regulatory powers it already has. It is so because it is very afraid of stepping over the boundary at any point. These amendments provide not only much more clarity but some backbone for the FCA to take a far more positive stance. It is quite shocking to most people that the key financial regulator can be absolutely aware that abuse is taking place, that mis-selling is taking place, but feels that it is unable to do or say anything because there is a regulatory perimeter after which the issue is caveat emptor and those who are defrauded can turn only to the enforcement agencies, which relies on finding a local police force that has the resources and capacity to pick up the issue. We know that with the Lloyds Reading case small businesses that were very badly abused went to police force after police force and were turned down until they went to Thames Valley Police, which had more resources, and the police and crime commissioner, Anthony Stansfield, whom I utterly praise in this issue, decided to take on the case—a very rare instance. They got no help from the National Crime Agency or the Serious Fraud Office because they considered that the fraud that everyone recognised was taking place was too small fry to occupy them. Frankly, it is a shocking situation to be in. Many people have said that this must be remedied. I congratulate my noble friend on bringing forward an amendment that aptly provides that remedy. I very much hope that the Government will take it up.
Lord Tunnicliffe (Lab)
My Lords, I am impressed by the arguments made by the noble Baronesses, Lady Bowles and Lady Kramer. To me, the fundamental issue seems to be the asymmetry in both power and information between those who have been defrauded and the fraudsters. These amendments are a useful vehicle to try to adjust that asymmetry, at least in part. I look forward to the Minister’s response and hope that she says something positive.
The Parliamentary Secretary HM Treasury (Baroness Penn) (Con)
My Lords, tackling fraud requires a unified and co-ordinated response from government, law enforcement and the private sector to better protect the public and businesses from fraud, reduce the impact of fraud on victims and increase the disruption to and prosecution of fraudsters.
As the noble Baroness, Lady Bowles, explained, Amendment 38 targets fraudsters; the Government strongly agree with the spirit of it. However, strong punishments for those carrying out these acts already exist under the Fraud Act; also, the police and the National Crime Agency already have the powers to investigate fraud, with the FCA providing strong support. That is why we are ensuring that the police have appropriate resources to apply the existing powers to identify and bring the most harmful offenders to justice, including through severe penalties for those who target some of the most vulnerable in society. The Home Office is investing £400 million in tackling economic crime over the spending review period, including £100 million dedicated to fraud.
As the noble Baroness noted, although FSMA does not provide the FCA with an express power to prosecute fraud, it is able to prosecute fraud if it furthers its statutory objectives. The FCA continues to pursue firms and individuals involved in fraud; most of this work is against unauthorised activity operating beyond the perimeter, which is where the FCA sees most scam activity occurring. As at the end of September 2022, the FCA had 49 open investigations, with 217 individuals or entities under investigation.
In its 2022 strategy, the FCA outlined and emphasised its broad existing remit in relation to reducing and preventing financial crime, including fraud; it also recognised the important role that it plays in tackling this issue.
Baroness Kramer (LD)
I am sorry but can I ask the Minister a specific question? The Blackmore Bond case was a massive abuse in the mini-bonds scandal when 2,000 people lose something like £46 million. Other than dealing with a small entity that was doing some illegal promotion, the FCA declared that it could not act because the case was beyond the regulatory perimeter. I am therefore rather befuddled by the Minister saying that the FCA acts beyond its perimeter when it is associated with its principles; the principle of integrity obviously applies.
Baroness Penn (Con)
In dealing with the noble Baroness’s points, I should perhaps write to her on the particular case to which she refers. However, as I understand it, the FCA has a remit to tackle fraud, for example where unauthorised firms are purporting to undertake authorised activity—a point that we may come on to in our debates on later amendments.
Baroness Kramer (LD)
May I just have clarity? The Minister said, “Only where an unregulated firm undertakes an authorised activity”. Blackmore Bond was selling mini-bonds, which was not a regulated activity at that time. Is the Minister explaining to us that the FCA and regulator do not or cannot act in that area and that she is satisfied with that situation?
Baroness Penn (Con)
No, I am saying that I gave an example of where the FCA could take action for activity beyond the regulated perimeter, but I will write to the noble Baroness on the specifics of the Blackmore Bond case as an example of the question that she asked about this interaction and limitation on where the FCA can act.
Further action was taken to avoid a repeat of cases such as Blackmore Bond and London Capital and Finance. In November 2019, the FCA banned the promotion to ordinary retail investors of high-risk speculative illiquid securities, which includes the types of bonds sold by Blackmore and LCF. The Government have also set out our intention to include non-transferable securities, including mini-bonds, within the scope of the prospectus regime. This would mean that issuers of mini-bonds would be required to offer their securities via a platform when making offers over a certain threshold, which would ensure appropriate due diligence and disclosure and be regulated by the FCA, providing stronger protection for investors. However, I know that that does not address the noble Baroness’s particular point, on which I will write.
Lord Hunt of Kings Heath (Lab)
My Lords, I accept that the Minister is, essentially, responding in the narrow terms of the amendment before us, but she will be aware that our Lordships’ Select Committee looked into the whole issue of financial fraud and crime. The Minister mentioned the FCA, but the committee found that there are so many agencies involved that their collective effort is a total lack of integration and co-ordination, and that thousands of people are left completely unsupported. Less than 1% of police resources are spent on tackling a huge sector. The Government have now stopped publishing statistics in relation to crime that includes financial crime. I wonder why.
Baroness Penn (Con)
I opened my remarks by acknowledging that fraud needs a co-ordinated response from government, law enforcement and the private sector. That is at the heart of our approach, and it is why the Government established the Joint Fraud Taskforce to bring all those actors together. I attended it towards the end of last year, and it meets regularly. There are many different actors that need to take action in this space, including the regulators but also law enforcement, industry and companies—not just the financial services sector. Measures in the Online Safety Bill look at online platforms, for example.
Lord Vaux of Harrowden (CB)
I apologise for interrupting, but all this would be a lot easier if we had the national fraud strategy. When can we expect it?
Baroness Penn (Con)
I agree with the noble Lord. We can expect it soon—or imminently; I could use a variety of different descriptors, but it will be sooner than “in due course”.
Lord Tunnicliffe (Lab)
I hope the Minister will appreciate the utility of publishing it before Report.
Baroness Penn (Con)
I note the noble Lord’s point about the timing of that.
The noble Lord, Lord Hunt, mentioned resources. I repeat that additional resources have gone into tackling economic crime—£400 million during the spending review period, including £100 million dedicated specifically to fraud.
In its 2022 strategy, the FCA outlined and emphasised its broad existing remit in relation to reducing and preventing financial crime, including fraud, and recognised the important role it plays in tackling this issue. This existing remit allows the FCA to take proactive steps to tackle fraud and wider financial crime while driving a whole-system approach with relevant stakeholders.
Baroness Bowles of Berkhamsted (LD)
I thank the Minister and other noble Lords who have spoken and intervened in this debate. We have strayed a little from my amendments into the general issues of fraud, which will come up in later groups because I think the body of opinion is that not enough is yet being done to prevent fraud.
The Minister suffers to some extent from exactly the same tunnel vision as the FCA, in that it wants to deal only with those things that are convenient, and it is not looking for the enemy and the evil within—and within regulated entities. One would have thought that those banks that defrauded business customers were reputable institutions, and that deception is not addressed at all by anything that the FCA is doing or that the Minister has said. It is doubtful whether it can be addressed even by the senior managers regime, because again, that has been diluted and spread around in such a way that you have the same problem as trying to find mens rea with a board.
The FCA may have done all the things that the Gloster report required but most of those were to do with things that were operationally bad within the FCA; they were not necessarily going to do anything to address the kind of “enemy within” fraud in banks, on their customers, that I outlined in my first amendment.
There is an urgent need to do something about this. It is ridiculous to say that there is a role or any integrity in our financial markets when this kind of thing can go on and be unpunished. The FCA may indeed be able to take a criminal offence if it ever finds the guts to do so, but I was giving it a regulatory offence here, which would be much easier for it to do, and at least there would be punishment and maybe more awareness through reputational damage within the banks so that that they would do something about it. I am not convinced that it cannot happen again. This is special—the inherent asymmetry of power and information—and this appears to be totally disregarded both by the FCA and by the Minister.
The other two amendments also plug important gaps that, no matter much you tweak Section 24, are not covered by it; therefore they can be used and abused. So I am far from satisfied that the Minister or the FCA is in any way serious about trying to tackle the type of fraud that I am discussing here. We will come on later to other kinds of things—there are other ways to do it. However, to say it is caveat emptor everywhere does not leave us in a good state when the next scandal comes along and everybody says, “There’s the rotten UK banking system again. Don’t do business in the UK—your own bank might fleece you.”
Due to lack of enthusiasm, obviously I will withdraw this amendment for now. However, I will not leave this issue alone, because it is quite clear that the Government have not understood the seriousness of this for businesses—small businesses and profitable businesses—which are being scammed by their own banks. However, with the leave of the Committee, I beg leave to withdraw the amendment.
Lord Sharkey
“Regulation of commercial lending to SMEs
(1) The Financial Services and Markets Act 2000 (Regulated Activities) Order 2001 (S.I. 2001/544) is amended in accordance with subsections (2) to (4).(2) In article 60C, in paragraph (3), at the end of sub-paragraph (b) insert “, and(c) the borrower is not an SME.”(3) In article 60D, at the end insert—“(6) This article does not apply to an agreement if the borrower is an SME.”(4) In article 60L(1)—(a) at the appropriate place insert—““SME” means a small or medium-sized enterprise, being any person who is not an individual which—(a) carries on business of any kind which employs fewer than 250 persons, and(b) has either an annual turnover not exceeding £40,000,000 or an annual balance sheet total not exceeding £36,000,000.”;(b) in the definition of “relevant recipient of credit”—(i) omit the “or” at the end of paragraph (a), and(ii) at the end of paragraph (b) insert “, or“(c) an SME;”.”(5) Article 3(1) of the Financial Services and Markets Act 2000 (Rights of Action) Regulations 2001 (S.I. 2001/2256) is amended in accordance with subsections (6) to (8).(6) In sub-paragraph (a), for “any individual, unless he” substitute “any individual or SME, unless he or it”.(7) In sub-paragraph (b), after “individual” insert “or SME”.(8) At the end insert—“(c) “SME” means a small or medium-sized enterprise, being any person who is not an individual which carries on business of any kind which employs fewer than 250 persons; and has either an annual turnover not exceeding £40,000,000 or an annual balance sheet total not exceeding £36,000,000.””Member’s explanatory statement
This would bring lending to SMEs within the perimeter of the FCA.
Lord Sharkey (LD)
My Lords, Amendment 40 is in my name and that of the noble Baroness, Lady Bennett of Manor Castle, whose support I am grateful for. The amendment would bring lending to SMEs within the FCA’s perimeter and would allow a private right of action to enable SMEs to sue lenders for breaches of regulatory protection, as I believe would Amendment 219 in the name of the noble Lord, Lord Holmes of Richmond.
However, there appears to be some uncertainty about the definition of an SME. The government website, which I checked this morning, says that it encompasses all businesses with no more than 250 employees and a turnover or balance sheet of no more than €50 million—the qualification is still given in euros—but it seems that Liz Truss might have changed all this. In an article in the Telegraph of 3 October last year, she raised the employee limit from 250 to 500. I cannot find this on any government website and I do not know whether the turnover and balance sheet requirements were also raised. If this is still government policy—perhaps the Minister can tell us whether it is—that is a good thing, bringing with it a significant relaxation in reporting rules and red tape to an important part of our commercial base. In fact, any encouragement or support for SMEs is a good thing.
As Rishi Sunak said in the policy booklet he wrote in 2017 for the Centre for Policy Studies:
“We have a world-beating record when it comes to creating entrepreneurial start-ups. Some 21% of UK firms are less than two years old, a higher figure than even the US … Yet when it comes to growing those businesses—the stage at which access to capital is most crucial—Britain’s record is dismal. In a ranking of 14 OECD countries, the UK comes a lowly 13th in terms of the proportion of start-up businesses that grow to having 10 or more employees within three years.”
He also noted that
“UK companies are far too reliant on banks for their credit financing needs”,
a reliance that has increased post pandemic. This reliance has been extremely problematic. Mistreatment of SMEs by banks is a truly serious problem, not just because it causes immense damage to companies and individuals but because the means of redress are cumbersome, full of long delays and generally unsatisfactory.
Commercial lending to SMEs is not regulated. It sits outside the FCA’s regulatory perimeter. In its annual perimeter report published last year, the FCA said:
“SME lending is a longstanding perimeter issue, as business lending is generally only a regulated activity where both the loan is up to £25,000, and the borrower is either a sole trader or a ‘relevant recipient of credit’”.
That excludes most of the SME sector by value. That sector operates without FCA regulation and has suffered some of the most appalling mistreatments at the hands of banks. Some examples of this have already been quoted this afternoon by my noble friend Lady Bowles.
There was the scandal of the mis-selling of interest rate hedging products, about 90% of which were subsequently found to have been mis-sold. There was also the treatment of SMEs by the Royal Bank of Scotland’s global restructuring group; the Tomlinson report on the scandal suggested that there were occasions where RBS had engineered businesses into default to move them out of local management and into the clutches of the GRG. The FCA later found that there was a systemic and widespread mistreatment of SME customers between 2008 and 2013. Andrew Bailey said
“GRG clearly fell short of the high standards its clients expected but it was largely unregulated and so”
the FCA’s
“powers to take action in such circumstances, even where the mistreatment of customers has been identified and accepted, are very limited.”
Then there was the HBOS Reading fraud in the early 2000s. A group of bankers was found by a court to have run
“an ‘utterly corrupt scheme’ that left hundreds of small business owners ‘cheated, defeated and penniless’”.
Those are just three of the major scandals affecting SMEs. There are others: mis-selling of loans under the Government’s enterprise finance guarantee scheme; mis-selling of tailored business loans by Clydesdale plc; allegations of misconduct involving business support units at other banks and mistreatment of small business borrowers when they are in arrears. There is clearly widespread, long-standing mistreatment of SMEs by financial services organisations. The case for regulation is particularly compelling because SMEs rarely have the practical ability to enforce whatever legal rights they may have against the banks. It would be exceptional for an SME to have the financial resource to take a bank to court.
Lord Holmes of Richmond (Con)
My Lords, it is a pleasure to take part in the second day of Committee on this Bill. In doing so, I declare my financial services interests as set out in the register. In speaking to my Amendment 219, I give more than a nod to the amendment in the name of the noble Lord, Lord Sharkey, which he set out so eloquently; had I had a pen, I almost certainly would have signed it and put my name against it.
In simple terms, this is very straightforward: SMEs are the backbone of the British economy. They are the largest private employers and the big companies of tomorrow yet, in this area, we are leaving them high and dry and at the will of many of the schemes that were set out so well by the noble Lord, Lord Sharkey, and the noble Baroness, Lady Bowles. I know that the noble Baroness, Lady Kramer, has all those unfortunate instances tattooed and ready to come out at any moment—rightly so because they all demonstrate that, when things go wrong, they go badly wrong. All too often, it is individuals and, in this instance, SMEs that are on the wrong end of it without a right of action against the FCA. My amendment would provide that right of action for breaches of the FCA handbook; I believe that it is similar to the amendment set out by the noble Lord, Lord Sharkey.
The Government talk, rightly, about the need to grow the UK economy. That growth will come largely from SMEs. Does my noble friend the Minister agree that they deserve our support? By simply accepting either of these amendments or, indeed, tabling a government amendment on Report, they would enable commercial loans over £25,000 to be brought within the perimeter and give SMEs not only the protection but the support that they should have from the regulator—and through that, from the Government—to enable that growth, which we all need for the UK economy and society. I ask my noble friend whether she will look to engage and potentially bring a government amendment to this effect on Report.
Baroness Bennett of Manor Castle (GP)
My Lords, it is a pleasure to take part in this debate on the second day of Committee. I have to say that it has been an extraordinarily powerful debate thus far and an absolute indictment of the UK financial sector. I begin by apologising for not taking part in the first day of Committee, despite having signed a number of amendments. I am afraid I was taking part in the debate on the so-called Genetic Technology (Precision Breeding) Bill, and it is impossible to spread oneself across too many places.
The case for these amendments, in particular Amendment 40 in the name of the noble Lord, Lord Sharkey, to which I am pleased to attach my name, has already been powerfully made, by the noble Lord himself and by the noble Baroness, Lady Bowles of Berkhamsted, in the debate on the previous group of amendments. I will make a couple of additional points. In particular, I draw on a survey by the Federation of Small Businesses, published in December, which found that 30% of small and medium-sized enterprises thought that they had signed financial contracts that contained unfair clauses and provisions.
The survey also found that successful applications for loans and other financing for SMEs had fallen precipitously. Less than half were successful in the third quarter of 2022; before Covid, two-thirds had been successful. One of the things we are always hearing from the Government is, “Rely on the market! People can shop around and choose”. We have already heard the reality of the inequality of arms—as the lawyers would put it—between a small business and a giant financial-sector company. But there is also no opportunity: small and medium-sized enterprises have to take money from wherever they can get it, if they are lucky enough to get it at all.
What we have here is a practical reality, as the noble Lord, Lord Holmes of Richmond, just set out. The financial sector is not meeting the needs of the real economy, and that issue underlies all our debates on the Bill. Is the financial sector there as a high-stakes casino in which a few people can make a lot of money and the rest of us have to pick up the pieces when it all goes wrong, or is it there to meet the needs of the real economy and give us a genuinely sustainable—in all senses of the word—society?
Although we have perhaps not needed him, it is a pity that the noble Lord, Lord Sikka, is not currently in his place, as he could also have contributed very powerfully to this debate. What we have is a litany of disaster. The FCA has a terrible track record. Your Lordships’ Committee is trying to do something to fix that, and, boy, does it need fixing.
Baroness Altmann (Con)
My Lords, I too support both amendments in this group. I congratulate my noble friend Lord Holmes on his Amendment 219, and the noble Lord, Lord Sharkey, on Amendment 40 and the way in which he explained it. I urge my noble friend the Minister to take seriously the comments that have been made and the reference to the Treasury Select Committee, which recommended just this kind of change.
I would like to understand from my noble friend: if the Government do not agree with the Treasury Select Committee, why? How do they believe that SMEs are protected against the kinds of scandals and bad behaviour that have clearly been rife within the sector over a number of years? Does my noble friend seriously believe that small and medium-sized enterprises are equipped enough to stand up against the information and resources available to the financial services industry to avoid the kind of problems that we have seen in the past?
Baroness Kramer (LD)
My Lords, the last group of amendments and this one are not identical and cover different aspects of abuse by financial institutions. Were the Government to accept them, together, or to draft their own versions, that would completely change the playing field. Small businesses would be in a position whereby they could breathe easily and make business decisions, and not worry that, embedded in whatever product they were purchasing—
The Deputy Chairman of Committees (Lord Geddes) (Con)
I hate to interrupt the noble Baroness, but a Division has been called in the Chamber. The Grand Committee stands adjourned until 5.20 pm.
Baroness Kramer (LD)
My Lords, in light of all the pressures we have—the speeches were so brilliant—I will not try to add to them, other than to say that I very much support the amendments in this group.
Lord Thomas of Cwmgiedd (CB)
I will make one brief observation and declare my interest as chairman of the Financial Markets Law Committee. It seems to me that the real problem, which both amendments rightly seek to address, is to give SMEs an effective remedy. The courts system—for various reasons—and the costs that lawyers charge make it almost impossible for SMEs to take on the banks. Therefore, there seems a good deal of force in the arguments that have been put forward. I would be grateful if the Minister were able to tell us what the attitude of the regulators, particularly the FCA, would be to extending the position in this way. It is very important for the Committee to know what they think of this amendment. Really, the object of it is to cure a deficiency in the way in which our legal system functions.
Lord Tunnicliffe (Lab)
My Lords, once again, the arguments for these amendments seem quite persuasive, and I look forward to the Minister’s reply. Having probably been responsible for this legislation in the past—since I failed to duck most of it—I cannot remember for the life of me why SMEs are excluded. Before addressing the amendments, I would be grateful if the Minister could explain the thinking behind the law as it stands.
Baroness Penn (Con)
My Lords, Amendment 40 intends to offer additional regulatory protections for businesses taking out finance. I hope this, in part, addresses the question of the noble Lord, Lord Tunnicliffe: the Government are committed to regulating business lending only where there is a clear case for doing so. Bringing SME lending into regulation would risk increasing costs for banks and alternative finance providers, which would in turn be passed on to businesses in the form of higher fees and interest rates. This could negatively impact the price and availability of credit for small businesses.
However, the Government see a case for regulation where that asymmetry which we have talked about is at its greatest. At the moment, loans of £25,000 or less to the smallest businesses are already regulated as consumer credit agreements under the Financial Services and Markets Act 2000. This captures over 60% of all UK businesses and aims to protect them where there is the potential for detriment in their dealings with banks and alternative finance providers.
Even for medium and larger firms outside the perimeter, multiple protections are already in place which, in some instances, act as a de facto extension to the regulatory perimeter, without the associated costs that formal regulation would bring. Over 99% of UK businesses can access independent dispute resolution through either the Financial Ombudsman Service or the Business Banking Resolution Service. I note the comments from the noble and learned Lord, Lord Thomas of Cwmgiedd. Alternative dispute resolution services provide a form of access to businesses that can be less costly to them. On his specific question about the views of regulators on the regulatory perimeter, I will write to both the noble and learned Lord and the Committee.
Furthermore, a recent FCA investigation found that many lenders, particularly large banks, extend regulatory protections to many or all of their unregulated business relationships. All the major bank lenders are signed up to a voluntary industry code, the Standards of Lending Practice, which contains clear guidance on best practice and can be considered by the Financial Ombudsman Service when adjudicating a business’s complaint against a financial institution. This achieves many of the same outcomes as extending the regulatory perimeter, so many loans that are not captured by consumer credit regulation nevertheless benefit from effective protections.
Given these factors, at this time, the Government do not believe that there is a clear and proportionate case for bringing business lending into regulation. I should be clear that we are open to considered, evidenced arguments on specific regulatory questions related to SME lending. That is why we have invited views on it as part of our ongoing consultation on the reform of the Consumer Credit Act.
Amendment 219 seeks to ensure that SMEs are given rights of action against firms that breach the FCA handbook. Currently, a breach of the FCA handbook may not be actionable by an SME in court—as noted by my noble friend. However, as I have already said, the Financial Ombudsman Service provides consumers and small businesses with a route to raise complaints against firms. This is an alternative to going through the courts, which can be expensive for the parties involved and delay redress. The Financial Ombudsman Service is required to decide cases on the basis of what it considers is fair and reasonable, in all the circumstances of the case, including whether there has been a breach of FCA rules.
Since 2019, SMEs with an annual turnover of up to £6.5 million and fewer than 50 employees have been able to take cases against financial services firms to the Financial Ombudsman Service. All firms regulated by the FCA are required under the FCA’s rules to co-operate with the ombudsman, which includes complying with any decision that it may make.
Since 2021, SMEs with a turnover of between £6.5 million and £10 million can also raise complaints about firms to the British Banking Resolution Service. This is a voluntary body set up and funded by banks to provide an alternative dispute resolution service without the need for litigation or external legal support. Given that more than 99% of UK businesses can access independent dispute resolution through either the FOS or the British Banking Resolution Service, it is unnecessary to provide for a right to take civil action in the courts for a breach of the FCA handbook.
Lord Tunnicliffe (Lab)
The Minister’s argument seems to be about the cost of introducing regulation—that there is a big black cloud that means they cannot do it—but I have not heard any figures. Can she find an estimate of the cost of introducing the sort of regulation envisaged under the amendments and send us all a letter when she has?
Baroness Penn (Con)
I will write to the Committee with that information, where it is available. I will also write to the Committee on the point about the proposal to change SME definitions.
Those were all the points—
Lord Sharkey (LD)
The Minister mentioned the BBRS as part of this panoply of organisations that are spending their entire time defending SMEs. How many cases has the BBRS handled since its inception?
Baroness Penn (Con)
I do not have the figure to hand. I note that it started in 2021, so is a relatively new organisation. Perhaps I could also—
Baroness Kramer (LD)
Perhaps the Minister would confirm that the only cases in which the BBRS will intervene is where the bank complained against is Barclays, Danske, HSBC, Lloyds, NatWest, Santander or Virgin Money and that any institution outside that group—and there is a great range of new banks, challenger banks and others—is not included in its activities? Is that correct?
Baroness Penn (Con)
I note that it is a voluntary body. I do not have the list of those who have signed up to it to hand. If it differs from those outlined by the noble Baroness, I will write to the Committee, but she may well have listed those who have signed up to it. I note, however, that the combination of that service, and the scale of those involved in it, with the ability to go to the Financial Ombudsman Service means that research suggests that more than 99% of UK businesses can access independent dispute resolution. We should look at the size of the customer base as well as the number of organisations signed up to such dispute resolution mechanisms. I will write to the noble Lord, Lord Sharkey, on the number of cases taken by the organisation.
Baroness Altmann (Con)
I thank my noble friend for giving way, but perhaps I could press her a little more on the effectiveness of the Financial Ombudsman Service in providing a deterrent against poor practice in the areas where we have seen it in the past. The noble Baronesses, Lady Bowles and Lady Kramer, and the noble Lord, Lord Sharkey, have outlined instances of banks not treating their customers well. Does my noble friend agree that having a statutory duty written into the legislation would be much more of a deterrent against the behaviour we have seen than the potential threat of someone going to the Financial Ombudsman Service?
Baroness Penn (Con)
That is one element to be considered. I was pointing in particular to the combined role of the FOS and the Business Banking Resolution Service in providing a route of redress for over 99% of businesses. In part, it comes back to my question in relation to Amendment 40 from the noble Lord, Lord Sharkey, on the Government’s commitment to regulating business lending only where there is a clear case for doing so, given some of the increased costs that bringing SME lending into regulation would bring. I return to the point that we currently have a consultation out on the Consumer Credit Act in which there is a question on business lending; the Government are considering this through that consultation.
With that, I hope that the noble Lord, Lord Sharkey, will withdraw Amendment 40 at this stage—
Baroness Bennett of Manor Castle (GP)
I think the whole thrust of the noble Baroness’s argument is that the non-statutory protection effectively offered to SMEs through the ombudsman and independent dispute resolution procedures is essentially the same as having statutory protection. She suggested that statutory protection would cost more, but if the protection is equal through these other mechanisms, surely the costs of the banks providing the documentation and the system to enforce those mechanisms would be very similar to the statutory costs.
Baroness Penn (Con)
The noble Baroness touches on one possible difference in documentation needing to be provided where something is regulated versus where it is voluntary. That comes back to the question of SME lending having increased costs for banks and alternative finance providers. This can be passed on to businesses in the form of higher fees and interest rates, and it can affect the availability of credit for small businesses. The noble Baroness, Lady Kramer, mentioned start-up banks and challenger banks. When we have discussions elsewhere on other issues related to financial services regulation, we also discuss how we create a more competitive environment in the banking sector, as smaller banks can struggle to deal with regulations. This is a general point about balance.
Baroness Bowles of Berkhamsted (LD)
I am sorry to intervene again, but I am also intrigued about what the extra cost is of this coming into regulation. We are not suggesting that there should be great big oversight mechanisms which mean that the FCA would have to do a lot more—until problems occur, when there must be a route to justice. Is the Minister saying that banks will make less profit when they cannot cheat their customers, and that is where the cost comes from? I do not understand it. The suggestion was that it might be documentation, but the cost of that is the same wherever the documents go. What is this extra cost other than banks having to behave responsibly?
Baroness Penn (Con)
In relation to Amendment 40, there are benefits—which we have heard about—and costs to any activity being brought within the regulatory perimeter. I think that point is fairly well accepted. The noble Lord, Lord Tunnicliffe, asked me for further details on that, and I will write to the Committee.
On my noble friend’s Amendment 219, there are costs related to bringing disputes through the courts system as opposed to other dispute resolution mechanisms. There can also be benefits to that mechanism, but it is not enormously contentious to say that there are both costs and benefits to these solutions, which need to be weighed up when we consider them.
Baroness Kramer (LD)
I will add one more piece to the response from the Minister—one more request. I just want to double-check what she said. She said that small businesses could go to the FOS and that they have to employ fewer than 50 people. The definition of a small business seems to encompass something much larger than that. Can she help us understand what happens to the businesses that are still considered small but have more than 50 employees? I would imagine that they are pretty easy targets. As I say, one of the things that is always noticeable is that those who decide to exploit are very clear about where the perimeters are and who they can freely approach, so they get away with it.
Baroness Penn (Con)
As I hope I was setting out for the noble Lord, Lord Sharkey, there are different definitions of businesses that can have different protections and routes of redress within a system of small business lending. The system that we have is aimed to be proportionate, focusing on the smallest SMEs which are at the most risk. On the difference between the voluntary measures that are in place and bringing it within the regulatory perimeter, we are not saying that those are entirely equivalent protections but that they are proportionate protections to the risks faced by those firms. I set out different thresholds in my answer in relation to both those businesses that are protected under the Consumer Credit Act, which are sole traders, loans under £25,000 and a few others there, and businesses that are able to access either the FOS or the Business Banking Resolution Service. There are other thresholds too. Therefore I appreciate the point that that is different from the definition of a SME that the noble Lord asked about. The system is designed to be proportionate to the size of the SME and the protections it affords to them as regards business lending.
Baroness Altmann (Con)
I thank my noble friend for giving way once again. This is an important area for the whole financial services framework that we have in this country. I think that the noble Baroness, Lady Bowles, the noble Lord, Lord Sharkey, and my noble friend Lord Holmes are all trying to press the Minister on the issue of protection before scandals happen so that our system can be trusted more. The point here is about deterring financial institutions from even trying to undertake these actions by having stronger regulatory protection upfront, rather than this or that right of redress after the event has happened.
Baroness Penn (Con)
I understand my noble friend’s point, and of course the Government also consider that when we look at what to bring into the regulatory perimeter or the right of redress, both as a route of redress and as a point of deterrence. The Government take all those factors into account when considering this question.
Baroness Bowles of Berkhamsted (LD)
If I may ask one more question, one area that might be interesting for comparison, especially if we are looking at the Consumer Credit Act, is what the difference is between the loans of £25,000 to small businesses and bounce-back loans, where the conditions of the Consumer Credit Act were dispensed with. Can we have a comparison to see whether they have fared better or worse? That will perhaps show us where the true costs of regulation and lack of regulation lie.
Baroness Penn (Con)
The noble Baroness makes an interesting point. However, bounce-back loans were designed for a specific set of circumstances, and the aim of disapplying the Consumer Credit Act provisions was to do with the speed of being able to get bounce-back loans out to customers. The noble Baroness has indicated that there can then be some regulatory cost to having those protections in place. That is an interesting point, which I am sure people will want to think about in the consultation that is under way on the Consumer Credit Act and the direction of travel there.
Baroness Bowles of Berkhamsted (LD)
I must point out that I was fearing that the true cost was with the small businesses.
Baroness Penn (Con)
The true cost of the protections afforded under the Consumer Credit Act—
Baroness Penn (Con)
To be honest, I am not sure that I totally follow the noble Baroness’s point.
Lord Sharkey (LD)
I thank the Minister for her response but this all seems astoundingly Panglossian. It is as though there is nothing wrong with all this and the SMEs are protected, happy and profitable. That is not the case. If it were the case, why has there been this succession of appalling scandals and appalling mistreatment, causing so much damage to our small businesses? We cannot both be right here. If the system is working, why do all these things continue to happen?
I beg leave to withdraw the amendment and give notice that we will return to this issue on Report.
Baroness Sheehan
“Vote reporting
(1) The FCA must—(a) make rules requiring relevant FCA-regulated persons to give clients information on request about the exercise by the persons or on their behalf of all voting rights attached to assets in which the clients have an interest, including in respect of any specified description of scheme or investment vehicle, and(b) issue guidance in respect of the format of the information provided.(2) A Minister of the Crown must make regulations requiring other relevant persons to give beneficiaries information on request about the exercise by the persons or on their behalf of all voting rights attached to assets in which the clients have an interest.(3) In this section—“relevant FCA-regulated persons” means—(a) managers of personal pension schemes within the meaning of an order under section 22 of FSMA 2000 (regulated activities),(b) managers of stakeholder pension schemes within the meaning of such an order,(c) persons managing investments within the meaning of an order under section 22 of that Act, including the activity described in paragraph 6 of Schedule 2 to that Act,(d) persons effecting or carrying out a contract of insurance within the meaning of an order under section 22 of that Act;“other relevant persons” means—(a) trustees of occupational pension schemes within the meaning of section 1 of the Pension Schemes Act 1993 with £1 billion or more in assets;(b) an administering authority of the local government pension scheme.”Member’s explanatory statement
This amendment requires (a) the FCA to make rules requiring fund managers, personal pension providers and insurers to give information on request to clients, and (b) Ministers to make regulations requiring pension funds to give information on request to beneficiaries, on the exercise of all voting rights on their behalf, however those rights are held.
Baroness Sheehan (LD)
My Lords, I rise to move Amendment 42 in my name, to which the noble Baronesses, Lady Hayman and Lady Wheatcroft, have added their names; I thank them for their support. I refer noble Lords to my interest as per the register as a director of Peers for the Planet.
Amendment 42 seeks to inject a much-needed dose of realism into this Bill. I quote my noble friend Lady Kramer’s summing up of the debate on it at Second Reading:
“This is an industry that knows how to promote itself and speaks with a great sense of invincibility.”—[Official Report, 10/1/23; col. 1394.]
Yet this is also the industry that comprehensively crashed the economy in 2007. Some individuals walked away with accumulated profits, leaving the taxpayer to pick up the costs, with the most vulnerable suffering the most—as ever—through the years of austerity that followed.
I am sure that there are those who say that the financial services sector is our biggest asset; that we must unleash its potential, not shackle it with undue openness and transparency; and that we should most definitely not saddle it with an overarching requirement to safeguard the future of the one and only planet we have. However, I profoundly disagree, which is why I think that a healthy dose of realism is needed—not wishful or short-termist thinking, but reflection on what is happening to our planetary ecosystems in the real world and whether our sons and daughters will curse us in future as the last generation that could have acted in time to save the planet but did not do so.
Money matters. Money drives our economy and all our futures. We need to be able to find out easily what is being done in our name with our money. Amendment 42 is a simple but necessary one. It would require the FCA to make rules requiring fund managers, personal pension providers and insurers to give information on request to clients. It would also require Ministers to make regulations requiring pension funds to give information on request to beneficiaries, on the exercise of all voting rights on their behalf, however those rights are held.
This amendment is necessary because, at present, investors cannot easily find out how fund managers managing their money have voted on their behalf. This cannot be right. Good disclosure principles dictate that investors should be able to find what they need easily, be able easily to understand what they find and be able to use what they find to make informed investment decisions. It also goes without saying that good disclosure principles are a precursor to good governance and essential to a stable financial sector.
Noble Lords will be aware that with ownership of listed companies comes the opportunity to exercise the right to vote at the company’s AGM, including on the appointment of the chair and other independent directors, to accept or reject the annual report and accounts, to appoint auditors, and to agree pay arrangements and any shareholder resolutions which have been tabled or to table resolutions if they meet the minimum threshold. Voting with or against the management and supporting or rejecting shareholder resolutions is an incredibly important tool in ensuring good corporate governance, good long-term investor returns and good economic outcomes more broadly.
Of course, it is also important for the journey to net zero. The Treasury acknowledges this in its report Greening Finance: A Roadmap to Sustainable Investing, which was published in September 2021. In that report, the Government set out their expectations that pension funds and investment managers should
“Actively monitor, encourage, and challenge companies by using their rights and direct/indirect influence to promote long-term, sustainable value generation”
and
“Be transparent about their own and their service providers’ engagement and voting, including by publishing easily accessible, high-quality quantitative and narrative reporting.”
This is what Amendment 42 would do. It is necessary because, regardless of the Government’s expectations, the reality is that the complicated architecture of investment with large numbers of intermediaries, such as investment managers, insurers, consultants and additional fund managers, means that despite efforts by the DWP and the FCA to give pension savers greater transparency about how votes connected with their investments have been cast, it is still practically impossible for savers and often difficult even for the pension funds to get the information.
It is true that the FCA has made rules under the shareholder rights directive, which—in another world many millions of years ago now, it seems—the UK Government championed to improve levels of corporate governance and oversight across the EU. However, in DWP’s implementation of the directive, the pension fund must publicly report on only those which it considers significant. Guidance issued by the pension funds trade body—the Pensions and Lifetime Savings Association—recommends that around 10 out of at least 1,000 votes in which a pension fund typically has a stake should be disclosed. A fundamental weakness is that the pension fund does not have a statutory right to information on unreported votes from the fund manager, and the pension saver does not have a statutory right to information on unreported votes from the pension fund. Obscurity rules, it seems. I guess that even this weak reporting requirement will be swept away by the Retained EU Law (Revocation and Reform) Bill.
The difficulties with obtaining information on voting were covered at length by the DWP-commissioned task force on pension scheme voting implementation—I think it is called TPSVI—which reported in September 2021 and recommended that the DWP and the FCA should closely monitor delivery of vote reporting at fund level. It recommended that if investment managers do not deliver by the end of 2022 the FCA should legislate or issue handbook guidance to deliver fund-level reporting. Managers have not so far delivered.
In its letter to the DWP in October 2022, more than a year after the report, the FCA indicated that it was setting up a vote-reporting group with a view to having draft proposals by the middle of this year. However, the solution still seems entirely reliant on voluntary participation by investment management firms, which I understand are lobbying furiously against standardised disclosure. Some firms do not wish to provide reports on request because it will make them look bad and some do not want to invest in the technology to allow them to provide the data, but neither of these positions is acceptable today.
It was surprising to hear, in response to two Parliamentary Questions from the noble Baroness, Lady Ritchie of Downpatrick, that the Government do not appear to know anything at all about the voting records of UK-authorised fund managers and pension funds in relation to climate-related resolutions at AGMs. Yet the Government are reliant on the financial sector to take strong action on climate change through the exercise of voting rights.
For 16 years, the Government have had powers to require comprehensive vote reporting via the Companies Act 2006, but they have not yet used them. My amendment is intended to give the FCA, which regulates the voting behaviour of fund managers and insurers, the duty to make rules, rather than BEIS or the Treasury.
The US Securities and Exchange Commission regularly updates requirements for standardised disclosure of voting by fund managers, which must be presented in a consistent and machine-readable form, so action by our regulators in the UK is long overdue. Smart regulation is a vital aspect of retaining competitiveness, and this amendment is intended to be smart by giving the FCA the nudge to make rules and ensure that reporting is standardised, with similar provisions for pension funds, but it is not prescriptive on the details. If the FCA intends to make comprehensive reporting in standardised form mandatory, the Minister should welcome the amendment. I look forward to his response. I beg to move.
Baroness Wheatcroft (CB)
My Lords, it is a pleasure to follow the noble Baroness, Lady Sheehan, and I echo everything she said. I apologise to the Committee that I was unable to be at Second Reading.
I believe that this amendment is necessary if we are to have a properly active shareholder democracy in this country. At the moment, shares are not held by the majority of individuals directly; they are held through institutions, and shareholders tend to be passive. The individual shareholder does not know what is happening with his or her money. Yet when we look at how companies behave, all too often, one is reduced to saying, “How on earth could the owners allow that to go on?” Whether it is overpaying executive directors while the people at the bottom of the pile in the business are dependent on universal credit, paying the executives in the water companies huge bonuses while they pour sewage into our rivers or continuing to do business in Russia when the country is absolutely begging people to come out of Russia, too many companies behave badly, and they are not held to account.
It is very rare for institutional investors to vote against a remuneration report to the extent that a majority forces the company to think again. It is probably even rarer for institutional investors to vote against a proposed merger when it will be in the long-term interests of the executives, perhaps, but not of the workers in the UK.
We need individual investors to take a serious interest in what the business is doing. Not all of them will, but for those who are interested, it should be very easy for them to find out how their money—their shares—are being voted. It is a perfectly simple thing to do. Websites could easily be made accessible to show how the vote has been cast on every issue with every company at every annual meeting. Technology would find that quite straightforward. The majority of private individuals with investments in pension funds and insurance companies would not find it difficult to access that information, but it has to be made available.
It has to be an absolute requirement that all companies make all that information available, not just a fraction of it, and the sooner the regulators and the Government move towards that position, the better. The more information is out there, the more individuals will look at it and decide, for instance, that their company—the company in which they have a stake through their pension fund or insurance company—is not behaving as they would wish it to, and they can begin to put pressure on those who hold their shares. That might be because they are passionately involved in the employment issue or in remuneration, or because they want to see evidence that the company is taking its net-zero responsibilities seriously, and in many cases companies now have a vote on the net-zero target and how they are meeting it. Let us give the majority of people who hold shares through intermediaries the chance to see how those shares are being voted and to decide for themselves whether they approve of the way their shares are being used.
Baroness Hayman (CB)
My Lords, as this is my first contribution in Committee, I remind the Committee of my interests as set out in the register, particularly Peers for the Planet. I also have a son who is employed by Make My Money Matter, an organisation that campaigns in this area.
We have had two powerful speeches in support of this amendment, and I do not need to detain the Committee long in registering my support for it. It comes back to that very basic issue that both noble Baronesses dealt with: transparency. It is only with information that individuals can make meaningful choices about the investment of what is their money. It is tremendously important that we do not fall behind on this and assume that decisions that will be made are nothing to do with the little people who actually put the money into the companies which make the decisions. As I understand it, other jurisdictions have found ways through technology and standard reporting procedures to allow this to happen as a matter of course. I would be interested to hear from the Minister why we cannot do that in this country too.
Baroness Bennett of Manor Castle (GP)
My Lords, I will briefly express support for this amendment, which has already been so powerfully argued for. I would have signed it had I caught up with the legislative deluge.
I want to make two additional points. First, the Pensions Regulator’s most recent survey of defined contribution schemes found that more than 80% did not allocate any time or resources to managing climate risk. It would be interesting if we were to see the way in which fund managers were voting, not only to have that recorded, but I would assume that they would have to have some kind of thought behind it to explain what was recorded. The transparency might force some more thinking to happen, which would clearly be a good idea.
I also want to ask a question of the proposers of this amendment because I was slightly puzzled by the information on request element of the amendment. The noble Baroness, Lady Sheehan, noted that US regulators forced this to be published openly as a matter of course. It seems that that would be the logical thing, that this should be available not only to clients but to anyone who might like to make an assessment of how companies and asset fund managers are behaving and why they are behaving in that way. Perhaps in my classic Green position, I wonder whether we should not go further, and, rather than saying “to clients on request”, say that this should be freely published and available to all.
Baroness Kramer (LD)
My Lords, with three outstanding speeches, I have very little to add other than to say that I very much support this. However, I have a question for the Minister. I was just looking up the definition of a fiduciary duty, which is when someone
“has undertaken to act for or on behalf of another in a particular matter in circumstances which give rise to a relationship of trust and confidence.”
We know that many people feel that there is an implied and inherent fiduciary duty between the person who puts their money into a pension fund and those who act to invest it—I see that the noble Baroness, Lady Noakes, is shaking her head. I know that in various pieces of legislation there has been an attempt to clarify that. However, surely at the very least there is a responsibility to transparency. This seems to me a very mild but important principle to establish. I suspect the Minister would be very concerned if she were to put her money into an entity and did not know, within reasonable boundaries, how it was being invested and used and what impact it had. Surely, these amendments are minor and mild but important.
Lord Harlech (Con)
My Lords, I thank the noble Baronesses, Lady Sheehan, Lady Wheatcroft, Lady Hayman, Lady Bennett of Manor Castle and Lady Kramer, for raising voter reporting.
The Government recognise that the ability of investors to exercise their voting rights is an important issue, which is why they are taking steps to address barriers in this area. The Financial Reporting Council’s world-leading UK Stewardship Code 2020 already requires detailed and annually assessed reporting from its voluntary signatories on voting disclosure, and the recent stewardship guidance for pension scheme trustees from the Department for Work and Pensions, which included substantial guidance on the exercise of voting rights, came into effect in October 2022.
However, the Government recognise that there is still more work to do. The DWP’s guidance includes sustainability-related issues, and its stewardship guidance focuses on areas where existing policies and reporting appear to be weakest: stewardship and, to a lesser extent, consideration of financially material ESG factors and non-financial factors. Stewardship encompasses a range of activities, and this guidance focuses specifically on voting and engagement; it is about creating long-term, sustainable value for savers and includes recognition of environmental and social governance factors, which is encompassed in the DWP’s guidance.
Furthermore, the DWP has already made a public commitment to review voting disclosure requirements in the response to the consultation on Climate and Investment Reporting: Setting Expectations and Empowering Savers. This review will be conducted jointly with other government departments, including the Treasury, and regulators. This will ensure consistency across the investment chain. The review will begin in late 2023, which will give the Pensions Regulator time to gather evidence on how the DWP’s existing guidance has influenced standards of voting disclosure.
Baroness Sheehan (LD)
Why is this review starting in late 2023 necessary when substantial reviews have already been carried out and there are various ongoing task forces? I am really at a loss to understand why this is necessary.
Lord Harlech (Con)
Is the noble Baroness asking why the review is necessary or why it is scheduled for that time?
Baroness Sheehan (LD)
It would be useful to have answers to both: why is a review necessary and why is it scheduled so late?
Lord Harlech (Con)
The review is necessary because it is important to take into account multiple government departments, including the Treasury, and non-governmental bodies such as the regulators. I believe it is scheduled for that time to facilitate the gathering of evidence and set out the scope of the review.
Baroness Wheatcroft (CB)
Rather than talking about a need for more investigation, could the Minister say what he thinks could possibly be wrong with telling organisations that they must put this information up? I cannot see the downside. Can he explain?
Lord Harlech (Con)
If I could go on, perhaps my further remarks will address the noble Baroness’s question; if not, I will endeavour to write to her, if that is all right.
In November 2022, the FCA convened an independently chaired vote reporting group following the recommendations made by the Taskforce on Pension Scheme Voting Implementation. The aim of this is to develop a more comprehensive and standardised vote disclosure framework for asset managers, ensuring a fair, proportionate and practicable approach. The group’s draft proposals are expected to be published in April 2023 for public consultation. Moreover, local government pension scheme funds are already required to publish an investment strategy statement, including their policy on voting rights and ESG matters, with guidance on annual reports also encouraging transparency on how voting rights are exercised.
The FCA’s Conduct of Business Sourcebook—COBS—Shareholder Rights Directive rules already require all investment firms to develop and disclose an engagement and voting policy. This includes how the engagement is integrated into the investment strategy; how environmental, social and governance issues are monitored; and how conflicts of interests are managed. This policy must be reported on annually online.
The Government believe that it would be premature and unnecessary to amend voting disclosure legislation at the current time, given the initiatives that are already under way. I therefore ask the noble Baroness, Lady Sheehan, to withdraw her amendment.
Baroness Sheehan (LD)
I thank the Minister for his response. I also thank the noble Lords who spoke in support of my amendment.
I found the Minister’s response unsatisfactory. It did not address any of the issues that have been raised. We know that the voting reporting group is doing its work at the moment. The issue that I wanted the Minister to address is that participation is going to be voluntary; over the past 17 years, that has not produced any further transparency of the kind that we are looking for in this amendment.
Before he sits down, I want to ask the Minister a question about the rules made under the Shareholder Rights Directive. If the rule Bill becomes an Act, will there be a void there? Will there be nothing in its place? I assume that that will be the case.
Baroness Sheehan (LD)
Undoubtedly, there are a great deal of unanswered questions but, for now, I beg leave to withdraw the amendment.
Baroness Noakes
“Regulation of consumer credit
(1) The Treasury may by regulations make such provision as they consider appropriate for the purpose of, or in connection with, the regulation of consumer credit.(2) The power under subsection (1) is exercisable only by making such provision as the Treasury consider necessary or desirable for or in connection with one or more of the following purposes—(a) promoting effectiveness in the functioning of financial markets; (b) promoting effective competition in the interests of consumers in financial services and markets;(c) facilitating the international competitiveness of the economy of the United Kingdom and its growth in the medium to long term;(d) protecting consumers;(e) providing for efficient and effective regulatory, enforcement, investigatory and supervisory arrangements in relation to the provision of financial services or the operation of financial markets.(3) The provision that may be made by regulations under this section includes provision—(a) conferring powers on the Treasury (including a power to legislate);(b) conferring powers, or imposing duties, on the FCA (including a power to make rules or other instruments).(4) In exercising their powers under this section, the Treasury must have regard to—(a) the general principle that consumers should take responsibility for their decisions,(b) the importance of securing an appropriate degree of protection for consumers, and(c) the principle that a burden or restriction which is imposed on a person, or on the carrying on of an activity, should be proportionate to the benefits, considered in general terms, which are expected to result from the imposition of that burden or restriction.(5) The power to make regulations under this section includes the power to modify legislation.(6) Regulations under this section are subject to the affirmative procedure.(7) Before making regulations under this section, the Treasury must consult the FCA.(8) In this section, “legislation” means primary legislation, subordinate legislation and retained direct EU legislation.”Member’s explanatory statement
This amendment would give HM Treasury the powers necessary to implement the findings of its ongoing review of the Consumer Credit Act 1974, saving the need for further primary legislation.
Baroness Noakes (Con)
My Lords, Amendment 43 would confer on the Treasury a wide-ranging power to legislate for consumer finance.
As I am sure noble Lords are aware, reform of consumer credit has been a long time in the making. The core legislation is nearly 50 years old and remains the Consumer Credit Act of 1974. That legislation was forged in a very different era: there were much lower levels of consumer credit; the internet was only a gleam in the eye of a few researchers; and regulation of financial services firms barely existed, certainly compared with what exists today.
The 1974 Act is based on a very different legislative approach from FSMA; it is based heavily on processes and paperwork rather than outcomes. When FSMA was passed, the Consumer Credit Act was left basically as it was despite the fact that the FSA became a powerful financial services regulator with a clear consumer focus. Some of the 1974 Act was later imported into the FCA model, in 2014, but that was only a partial exercise; the FCA was then tasked by statute to look at what could be done with the rest of the Act’s territory. That review eventually reported in 2019; last December, more than three years later, the Government finally produced their own consultation document.
Lord Tunnicliffe (Lab)
My Lords, I shall speak to both the amendments in this group. I was not going to speak on the amendment of the noble Baroness, Lady Noakes, because, frankly, I did not understand it as well as it was just explained. The key point she is making is that there is a whole series of things about credit. It is complex, and that allows the Government to go behind the screen of saying, “We need this review; we need more time to think about it”, and so on. The gripping words she used were that society needs this stuff up to date as quickly as is reasonably practicable. There is no area where that could be more true than buy now, pay later. We are in a period of enormous stress for poor people. They desperately need reasonably priced credit because they just do not have any reserves.
In this area, there is this wonderful illusion that the credit is free. People do not lend money for free, except, perhaps, foolish parents. Buy now, pay later depends, as far as I can see, on the borrower failing to obey the rules, and companies make their money out of the default situation. They also make some money out of what they charge to retailers, but it is a very uncomfortable area.
I recognise that buy now, pay later can be a lower-interest borrowing option for some consumers, and that it is an area where a lot of innovation takes place, but neither of these points means that it should not be properly regulated. The Government have again and again committed to bring in regulation. Indeed, we are talking about 18 months since we got the first assurances from the Government that this would be subject to proper regulation. The Government have not acted, and harm is happening all the time. For example, Citizens Advice research has found that nearly two in five buy now, pay later customers do not fully comprehend the nature of the loan they are signing up to and often vulnerable shoppers are signing up to financial products that they do not fully get. What are the Government doing and which buy now, pay later companies are they meeting to ensure greater transparency?
We need to act in this area. I cannot understand how the Government can expect the assurances they give on these sorts of legislation to be taken seriously in future with the delays that have appeared in this area.
Baroness Altmann (Con)
My Lords, I support both amendments in this group. I think my noble friend Lady Noakes’ Amendment 43, which she so eloquently explained, is very much needed within our financial services system. I agree that it is possible that we should consider introducing into the wording greater parliamentary scrutiny rather than the discretion that may otherwise be given wholly to the Treasury, but I think the explanation by the noble Lord, Lord Tunnicliffe, of the situation with buy now, pay later is a good example of the kind of amendment that my noble friend wants to put in which would have facilitated some faster action had it been put in. I am not sure, but with the Bill we are going back time and again to the asymmetry of information and power between those transacting with financial services in general and the financial services industry that is putting products out to those customers. I think these amendments would be very useful additions, and I look forward to hearing from my noble friend.
Baroness Bennett of Manor Castle (GP)
My Lords, I rise to express support for Amendment 212 and to make a couple of points about it. I noticed that a couple of days ago the New York Times reported that buy now, pay later is an industry facing “an existential crisis”. I also note that various market analysists are reporting that this is a huge area of growth for the UK economy and the UK financial sector. Putting those two things together is a cause for concern not just for individual consumers, as the noble Lord, Lord Tunnicliffe, set out so clearly, but for the structural impact on the UK economy.
A survey was done for a household debt report by a company called NerdWallet. I cannot attest to the value of the survey, but it confirms what I have observed: 20% of women and 11% of men have used buy now, pay later in what amount to loans. So there is a gender aspect to the use of buy now, pay later. We look at many other areas of our system where women are financially disadvantaged but there is real cause of concern here.
My final point concerns something that really puzzles me—I understand that we may not be able to get an answer on it now. It was reported recently that a company called Zilch, which has 3 million buy now, pay later customers, is planning to report to all the major credit agencies the amount of debt that is being held by its customers. I think customers’ understanding is that it does not show up on their credit records—this is usually a soft search—so they are able to keep borrowing money through this mechanism and it does not show up. I do not quite understand how, if something was taken out on that basis, it can suddenly become declarable to credit rating agencies. This is an area where it is clear that regulation is necessary.
Lord Northbrook (Con)
My Lords, I listened with interest to my noble friend Lady Noakes moving her amendment. Clearly, consumer credit is at a record level, due, I am sure, to a long period of low interest rates. I just find, probably deliberately, that the amendment is a little vague. Like the noble Lord, Lord Tunnicliffe, I like the idea of focusing on specific issues such as buy now, pay later. Perhaps more power should be given to the FCA to look at institutions that are offering huge rates of interest on loans.
Baroness Kramer (LD)
My Lords, I take a slightly different view on the two amendments in this group.
I say to the noble Baroness, Lady Noakes, on her amendment that I am entirely sympathetic to the idea that we need an up-to-date Consumer Credit Act sooner rather than later. However, I am concerned about the absence of parliamentary engagement in the process. To understand how controversial this is, we just have to look back at some of our discussions on amendments earlier today in which Ministers prayed in aid the Consumer Credit Act for taking no action to protect, for example, small businesses from abuse by a great variety of lenders. It is quite a controversial Act, in many ways, and it is one where, when the Government enter into a review, there tends to be quite a bit of industry capture, as we see in virtually all consultations. Essentially, Parliament tends to be the body that brings forward the consumer voice, so the absence of parliamentary engagement in the process as envisaged in the noble Baroness’s amendment troubles me hugely.
I say to the noble Lord, Lord Tunnicliffe, that we are very supportive of his amendment on buy now, pay later. I am disturbed by the growth of the industry, particularly at a time of such huge economic pressure. I think something like 17 million people in the UK have used buy now, pay later, with two in five young people using it regularly. It is particularly around young people that there is the greatest concern because they lack life experience to recognise the consequences of their purchasing habits and find it particularly tempting to exceed the budget that they should observe because buy now, pay later makes it sound so utterly painless. In discussing this issue, many people have looked at what happens to people when repayment eventually becomes due: individuals find themselves is very deep trouble indeed. That is one of the reasons why I am supportive of this amendment.
I have to say that I get angry with many of the companies that offer this because credit is never free. Someone is picking up the time value of money; in other words, the cost of the financing, the cost that is embedded in the reality that payment comes later. That presumably encompasses all the people who pay on time. I am curious to know whether we have any kind of assessment of how much more people who pay on time are paying as they pick up the cost of the credit that is extended to others. I think there might be some backlash to buy now, pay later, if people were conscious of what is added to their bills as a consequence. I admit that I am one of those stuffy people—I am sure we are laughed at—who pay on time rather than trying to use some mechanism to provide credit, so I admit to a personal interest but, in the end, young people may find themselves trapped.
Lord Mitchell (Lab)
My Lords, I thank the noble Baroness, Lady Kramer, for drawing your Lordships’ attention to the three-year campaign we had on payday lending, which in the end won. We removed a great scourge from consumer credit in this country. I apologise for not speaking at Second Reading; I intended to, then Covid got me.
I will make a couple of general points before getting into buy now, pay later. When I was 16, I was asked to leave school. One mock GCE pass out of seven subjects at O-level led to my marching orders. I got a job at Hoover selling vacuum cleaners and washing machines door to door. That truly was the school of hard knocks. It was 1959. We were sent to sales training school to learn how to complete a sale. They told us, “Wear a dark suit, white shirt, firm handshake, and at all costs, get your foot in the door. Demonstrate the product to the lady of the house and then present her”—it was always her—“with the dual positive suggestion: ‘Will madam like to pay cash, or would she prefer hire purchase?’ Whatever the outcome, you’ve got the deal.”
So, I know about deferred payments, which in those days were also called “the never-never”. I emphasise to noble Lords that I am not against buy now, pay later. In fact, I think it is a good thing. People’s budgets are squeezed, and if a financial mechanism can be devised to make purchasing easier, it surely must be applauded. The problem is when it gets out of control, as many noble Lords have said.
Buy now, pay later has no interest component, and because of this, it is not regulated by the FCA, it is not protected by Section 75 of the Consumer Credit Act and individuals do not have recourse to the Financial Ombudsman Service. This loophole was surely never intended and ought to be closed.
It is currently too easy for consumers to acquire debt beyond their affordability, and therein lies the danger. Plus, of course, consumers can acquire payment liabilities through a host of different providers, each of whom has no knowledge of the existence of the other. We saw that in payday lending, whereby you got to your limit with one payday lender, so you went to another and then another, you got the money from here to repay this one, and so it went, until people got into terrible situations.
I do not have the foggiest why the Government have said that they want to regulate that but are telling us that it is not appropriate. I ask the Minister: why are the Government dragging their feet on something that seems so dangerous, obvious and uncontentious?
I have one further point to make. Buy now, pay later is growing exponentially and we now have a measure of just how big it is. Half the population use this unregulated form of finance. Casting our minds back to the financial collapse of 2008, we cannot ignore the subprime mortgage crisis in the US that triggered all the turmoil. We are not there yet, but massive and increasingly unaffordable debt is simmering below the radar, and it is a huge potential danger. Can the Minster assure the Committee that the Government are tracking this sector and are aware of the risk?
Baroness Penn (Con)
My Lords, I shall turn first to Amendment 43, tabled by my noble friend Lady Noakes, before dealing with buy now, pay later. The Government fully support the intention behind this amendment to facilitate the swift reform of the Consumer Credit Act, and work is under way to do just that. There is no doubt that this legislation needs updating. The Act is becoming increasingly outdated, and its prescriptive nature means that it is unable to keep pace with advances in the market without modernising reform.
However, we must appreciate that the Act is complex, and any work to review it requires careful consideration to ensure that any future approach is fit for purpose. For this reason, a first public consultation on this reform was published in December, which will close for responses in March. As part of the review, the Government are seeking views on how to rectify the complex split of regulation currently contained in primary legislation, secondary legislation and FCA rules which is hard for consumers and businesses to navigate.
Baroness Penn (Con)
My Lords, as I was saying, we can also simplify the way in which information is provided to consumers throughout the lending process, which can be both inefficient and ineffective. This reform will also allow us to review retained EU law in the Act and amend regulation to better suit UK businesses and consumers.
Given that this work is at an early stage of policy development, the Government believe that it would be premature to consider legislative changes at this stage. I heard what my noble friend said about introducing more parliamentary scrutiny into her amendment but I am not sure that that would be sufficient to address the fact that we are not yet at the stage where we can bring forward our proposals and legislate on this issue.
On Amendment 212, the Government are working at pace to regulate buy now, pay later products, recognising the risks they may pose to consumers. We are now drafting secondary legislation and intend to consult on it very shortly. Subject to the outcome of the consultation, the Government aim to lay regulations later this year.
Lord Tunnicliffe (Lab)
I just point out to the Minister that “later this year” could be December. I hope the Government have a rather more optimistic view than that.
Baroness Penn (Con)
I would like to share the noble Lord’s optimism. We need to have the consultation on the secondary legislation, which we are expecting very shortly, and then progress as quickly as we can to lay the regulations after we have completed that consultation. I completely accept the point from the noble Lord and the Committee more widely that there is a desire for swift action in this area. We understand that there are concerns about the pace of the delivery of this secondary legislation. This is a new and developing market, and it is important to get the regulation right. We need to ensure that it is proportionate and that lenders can continue to offer a useful form of interest-free credit to consumers responsibly.
While work continues to bring this fully into regulation, I should stress that buy now, pay later borrowers already benefit from wider consumer protection regulation. This includes standards on advertising, rights concerning the fairness of contracts and regulations to protect consumers from unfair commercial practices. However, to reiterate, I reassure the noble Lord, Lord Tunnicliffe, and other noble Lords in the Committee that they can expect to see draft legislation very soon and that we are committed to progressing this as quickly as we can.
I therefore hope my noble friend Lady Noakes will withdraw her amendment and that the noble Lord, Lord Tunnicliffe, will not move his when it is reached.
Baroness Noakes (Con)
Will my noble friend say how she sees the timetable going forward? I think she said that the Treasury is at the first stage of consultation, but it would be interesting to see the outline timetable that my noble friend thinks the Government will work to on this. It has taken a long time even to get to this stage, and it would be very useful to have an idea of when something tangible might be expected.
Baroness Penn (Con)
I will do my best, but I am afraid it will disappoint my noble friend. We expect to publish a second-stage consultation in due course, and it is likely that the FCA will also consult. Implementation of the final approach will require primary legislation, which will be brought forward when parliamentary time allows. I hope she draws some comfort from the fact that this process has started and that this reform is under way. We heard from everyone that this legislation is long overdue for reform, but we also heard a desire from the Committee that appropriate parliamentary scrutiny be applied when the Government bring forward proposals for reform.
Baroness Noakes (Con)
I thank all noble Lords who spoke in this debate, especially those who supported my amendment. I freely concede that, as I said in my introductory remarks, more parliamentary involvement would be required before any proposals were finalised.
Consumer groups have already been heavily involved. There are problems because the Consumer Credit Act focuses on paperwork and processes and not on whether it produces good outcomes. For example, it has no concept of vulnerable customers. There are real, good reasons for progressing this into law.
I was not surprised but somewhat disappointed by my noble friend’s response; it is a big step to take a big Henry VIII power when dealing with anything other than EU law. Normally, of course, the Committee would be criticising such a power, but I was particularly disappointed not to get a sense of the real urgency from my noble friend. Having a secondary consultation in due course is the kind of timetable beloved by Governments who do not really want to do anything. I hope that my noble friend will go back to her department, the Treasury, and say that this issue must be progressed. With that, I beg leave to withdraw the amendment.
Baroness Hayman
Baroness Hayman (CB)
My Lords, this group of amendments aims to ensure that the future regulatory framework of the financial services sector supports the Government’s net-zero and nature commitments. I have Amendments 44, 53, 56, 62 and 68 in this group, and I thank the noble Lords, Lord Vaux of Harrowden and Lord Randall of Uxbridge, and the noble Baroness, Lady Northover—I wish her a speedy recovery—for supporting and adding their names to the amendments.
Before I turn to the rationale for these amendments, I will say a word about another amendment to which I have added my name: Amendment 69, in the name of the noble Baroness, Lady Sheehan. She will of course explain her amendment when she speaks later in the debate, but it might seem slightly perverse to have added my name to it, since it is amending the regulatory principle that I will argue against in principle in a moment. However, at Second Reading, I and many others drew attention to the fact that the Bill as written and presented to the House is totally silent on issues of nature, nature-based solutions and investments in natural solutions. This is a ridiculous and wrong omission, and it was in some way recognised in Committee in another place, when Andrew Griffith, the Economic Secretary to the Treasury, recognised that
“we cannot achieve our climate goals without acknowledging the vital role of nature. That should concern us all, as it is part of the carbon ecosystem.”
He promised to consider the issue further
“to see whether there is anything … that can be done.”—[Official Report, Commons, Financial Services and Markets Bill Committee, 27/10/22; col. 162.]
So I hope that, in the spirit of a probing amendment, the Minister will be able to respond to the general principle of the inclusion of nature objectives in the Bill.
But, as I say, I want to go beyond a statutory principle to a statutory objective—a new secondary statutory objective that would sit alongside the proposed competitiveness and growth objectives. My amendments mirror the same drafting structure. The intention is that a climate and nature objective would require the regulators actively to facilitate or contribute to net zero and nature’s recovery through their activities and bring financial services regulation in line with government policy. The amendment uses existing drafting and recognised targets. On the climate, the objective attaches the targets under Section 1 of the Climate Change Act 2008, and, on nature, it follows the language included in the Natural Environment and Rural Communities Act 2006 and suggests supporting the targets in Part 1 of the Environment Act 2021 as a starting point. As I say, the Government’s proposed regulatory principle on net zero would be removed to avoid duplication.
It was clear from the Minister’s comments at Second Reading that the Government intend the new regulatory principle to embed net zero within the regulator’s functions, but I am afraid this step remains insufficiently robust to support their commitment to become
“the world’s first Net Zero-aligned Financial Centre”
or to invest, as was stated in their response to the Treasury-commissioned Dasgupta review,
“in nature and a nature-positive economy.”
Baroness Sheehan (LD)
My Lords, I rise to speak to Amendment 69 in my name and those of the noble Baronesses, Lady Hayman and Lady Young of Old Scone. I should say at the outset that I support all the amendments in this group. It is heartening to see support from across your Lordships’ House for strengthening the Bill’s remit on green finance.
My noble friend Lady Northover is unable to be with us today as she has Covid. I know other noble Lords will join me in wishing her a speedy recovery.
Baroness Sheehan (LD)
I thank your Lordships. In my noble friend’s absence, I will speak briefly in support of the amendments to which she has added her name.
I turn first to Amendment 69, which should not have been necessary if the Government truly understood how intertwined the twin threats of climate change and nature loss are. They are two sides of the same coin. Climate change is destroying nature and the destruction of the natural world is accelerating climate change; it is us humans who have set this downward spiral in motion, and it is us who can put a stop to it. My Amendment 69 would add nature to the new regulatory principle on net-zero emissions; I tabled it purely for the sake of completeness and to make the point that the Government have, at best, been careless in leaving out nature from the single line that they have devoted to this issue in the entire Bill. I quote from the Explanatory Notes:
“This clause embeds the UK’s net zero target into the regulatory principles for the PRA and the FCA.”
It patently does not do that. My tabling this amendment in no way takes away my support for the series of amendments in this group tabled by the noble Baroness, Lady Hayman, which is a far more satisfactory way of embedding the net-zero target and nature loss into the Bill. She has already introduced her amendments in such comprehensive style that I have little left to say on them.
In any case, let me turn to those amendments in the names of the noble Baroness, Lady Hayman, my noble friend Lady Northover and the noble Lords, Lord Vaux of Harrowden and Lord Randall of Uxbridge. I strongly support their Amendment 44, as well as the consequential Amendments 53, 56, 62 and 68. That is because Amendment 44 would introduce a climate and nature secondary objective for the FCA, alongside the competitiveness and growth objective. That has to be the correct place for this objective. It must be clear that it is an overarching objective for the two most important regulators in the financial space.
Government is as government does. Failure to put in place firm rules on the drivers of the economy, the institutions of the financial services and markets sector, would be irresponsible on the part of the Government. The reason why this is important is because there will inevitably be difficult decisions ahead, where the fork in the road points one way to a short-term gain but with negative effects on the environment while the other fork points to a safer, greener investment that will mature later but will be beneficial to future generations. Decisions must be made to favour the greener, more sustainable path. There must be no incentive to take the quick buck to the detriment of the carbon budget or nature.
Amendment 65 in the name of the noble Lord, Lord Tunnicliffe, is not in this group and will appear later. However, it is interesting because it probes such a dilemma, albeit from the point of view of potential conflict between primary and secondary objectives. I look forward to the debate on that amendment.
Where in the Bill are the safeguards for future generations, the respect for nature and the recognition and acceptance of the findings of the seminal Dasgupta review? Nowhere. It unleashes the power of money to do its worst and seek short-term profit. I say to the Minister, for whom I have a great deal of respect, that a reference to the medium and long term does not cut it without clear direction to the financial sector that green growth and international competitiveness in long-term, net-zero and nature-compatible investment is where sound investment decisions must be directed.
In the US, the IRA—the Inflation Reduction Act—is showing the power of government to unleash private investment into this century’s big growth opportunities. All that UK investors need is a regulatory nod from the Government, then they will take money to where it can deliver good green growth. Growth is the holy grail and future growth will be green; of that, there is no doubt. We will let UK Ltd down big time if we do not put in place policy and regulatory levers to deliver the confidence that business needs to move forward.
In the blink of an eye, the US has transformed international investor confidence in renewable energies. The EU will follow suit. Where are we in giving the clear direction that business is calling for? Chris Skidmore’s review and the report from the Industry and Regulators Committee by the noble Lord, Lord Hollick, made it clear that there is a large quantity of money waiting for a clear signal from the Government to invest in the UK. In the words of the Minister at Second Reading,
“this Bill is a landmark piece of legislation—the most ambitious reform of our financial services regulatory framework in over 20 years.”—[Official Report, 10/1/23; col. 1331.]
Our Government cannot let this historic opportunity pass by without adding those words to a third secondary objective: climate change and nature.
I have added my name to Amendment 208 in the name of the noble Lord, Lord Tunnicliffe, for the simple reason that the Government have stated their ambition for the UK to become the world’s first net-zero financial sector yet we are still waiting for an updated green finance strategy. For the regulators to be able to do their job on net-zero and nature targets, we must have sustainable disclosure requirements and a green taxonomy.
Finally, I support the amendment in the name of my noble friend Lady Northover, which seeks to place a requirement on the PRA and the FCA to report on the ways in which they have promoted and incentivised green finance and green investment. It would be very useful if that information were placed in Parliament.
To conclude, we do not have the luxury of waiting another 20 years for the next financial services Bill. This is the Bill that will decide whether the transformative change that we need in our big investment decisions gets the nod from the Government. The answer has to be yes.
Baroness Bennett of Manor Castle (GP)
My Lords, I rise to speak to Amendment 69A in my name and briefly express my support for all the other amendments in this group. They have been very ably and clearly introduced.
I had something of a flashback to the Pension Schemes Bill, which was the first time I spoke in this Room. I believe that that was the first time that climate had ever appeared in any finance Bill. The noble Baroness, Lady Sherlock, did a great job of supporting me through that: I had no idea when to speak so she gave me a nudge with her elbow. That was three years ago. We have now got to the point where we are trying to get nature to join climate, which is so obviously necessary.
As you might expect from a Green, my Amendment 69A goes further. I do not know whether the Minister can respond to this but the fact is that the economy and financial system are complete subsets of the environment. There is no financial system on a dead planet, to amend a phrase. All the amendments on climate and nature are clearly essential but we know that they do not fully cover the way in which we are breaking the limits of this planet.
Baroness Lawlor (Con)
My Lords, I thank the noble Baroness, Lady Bennett, who I am very pleased to follow, and the noble Baronesses, Lady Hayman and Lady Sheehan, for their lucid and eloquent statements, but I oppose Amendments 44, 53, 56, 62, 69 and 69A. I see no grounds for increasing or extending the obligation as the amendments in this group propose. The Bill already includes a new regulatory principle for the FCA and the PRA, requiring them when discharging their role to have regard to the need to contribute towards achieving compliance with Section 1 of the Climate Change Act 2008. Were we to go along with this group of amendments, we would see as a consequence the further erosion of the competitiveness of the sector. Adding a climate and nature objective, as Amendments 53, 56 and 62 would, or adding, as Amendment 69 proposes, a further regulatory principle on the natural environment to that in Clause 25, would do likewise.
To my mind, such a way of thinking is vague and aspirational. “Climate and nature” or “the natural environment” are vague, whereas the tangible aims of clean water or clean air, or of mitigating against pollution, are serious and important aims of policy. There, the policy is clear and has been pointed out in the legal context; the law is clear. The “polluter pays” principle of tort law establishes the obligation to compensate those injured by these kinds of harm. Indeed, there is scope for strengthening the prohibition on dumping industrial chemicals in rivers or disincentivising the use of petrol engines in crowded cities.
The amendments in this group would undermine competition. The UK is competing in a world in which it is already legally bound by net-zero emissions law, although many of its rivals are not. In the Global Financial Centres Index table of the various global financial centres, New York and London stand at the top and are followed—in this order—by Hong Kong, Shanghai, Los Angeles, Mumbai, Singapore, Beijing and Tokyo. Tokyo is under a net-zero target regime, and Los Angeles has recently introduced a law. Of the top greenhouse gas emitters, only Japan, Canada and the EU have legally binding net-zero commitments. The bulk of Asian markets and those rising in China do not. As matters stand, these are the competitors.
There is also a danger that such amendments are parochial, whereas the sector is—and must continue to be—global, not retreating into a little UK or little EU syndrome. The result of putting the extra demands on the UK’s financial services and market would be to handicap the sector and make it less competitive—a less attractive place to do business, with global competitors edging their way up the league tables. The world has changed since London overtook Amsterdam in the 17th century and Paris at the end of the 18th. Since the 20th century, it is rivalled only by New York.
If we are to take the competitiveness object seriously, the law must facilitate and encourage competition, not handicap it. Each successful demand for an extra law in pursuit of one or the other’s picture of an ideal world will handicap our financial sector and make this country a less attractive place to do business. At the moment, London and New York, static at the peak of the pyramid, face stiff competition.
This is a very controversial question—too controversial and political to be slipped into the Financial Services and Markets Bill. The measure will have an impact on our whole economy, as noble Lords have quite rightly pointed out throughout. Constitutionally, we have not the mandate to change the policy and, politically, I doubt whether there is an appetite for extending the law beyond what there now is. If anything, there may be an appetite to suspend it during these periods of shock.
Lord Naseby (Con)
My Lords, I declare an interest: I am a trustee of the parliamentary pension fund. I am also a former chairman of a financial services organisation, Invesco. I have tried to put myself in the shoes of when I did that, some 15 years ago.
It comes down to what my noble friend has been talking about: the practical side of financial services. There have been major changes in the time since I last chaired an organisation, but the trustees of the parliamentary pension fund have a meeting this Thursday and we always have to balance the objectives of that fund, which is primarily to ensure that there are adequate funds to pay the pensions of our membership—that is the primary purpose of that organisation. Secondly, we have to respond to the laws of the land; indeed, because we are a parliamentary group, we are adamant that we should keep track of what is happening on the green dimensions as they affect financial services.
In her speech, which we have just listened to and which I was certainly listening to, my noble friend Lady Lawlor made it clear that, in her view, the amendments before us—with one exception, which I will come to in a minute—are, frankly, not practical. On Thursday, I will have to be practical. If anything, as matters stand at the moment, the amendments will handicap the financial services world. This worries me even more because it undermines competition. We must remember the primary new dimension that we are talking about in financial services: the requirement for growth. We look for the key kernel of that growth to come from the City of London and financial services in general. For my money, this is a stage too far. Having previously been an RAF jet pilot, I must say that, when I read about planetary limits et cetera in Amendment 69A, I think that that is going too far.
However, although I am not sure that it is ideally written, I think that there is merit in Amendment 240 —particularly proposed new subsection (1), which would require a reporting system on green material—in broad terms. Whether that is the right phraseology, I am not able to judge, but, from a practical point of view, I do not think that the amendments we have before us are appropriate at this point in time.
Lord Vaux of Harrowden (CB)
My Lords, as this is the first time I have spoken in Committee, I should start by declaring my interest in Fidelity National Information Services, which, among other things, owns Worldpay.
I support the amendments in this group—particularly those in the name of the noble Baroness, Lady Hayman, to which I have added my name. She and other noble Lords have already explained the reasoning for them, so I will try not to be repetitive. I have added my name to them because I think that the climate and nature objective is so important that it deserves at least equal billing with the other secondary objectives of growth and competitiveness. For the record, I wholeheartedly support those growth and competitiveness objectives.
As we heard from the noble Baroness, Lady Lawlor, a few moments ago, some have argued that the climate and nature objectives conflict with the growth and competitiveness objectives. Frankly, I do not believe that that is the case. There are always trade-offs, of course, but, if done well, encouraging and facilitating the financing of the technologies and businesses that will enable the path to net zero will be a substantial driver for growth. I want to see the UK financial market become the global leader in financing and facilitating these exciting technologies. I believe that there is an enormous opportunity for the UK here.
The noble Baroness talked about this being a somewhat parochial objective. I could not disagree more. This is a global opportunity. Just the other day, I was talking to the ambassador from Vietnam, a country that is looking to expand its offshore wind arrangements massively; it has the most perfect coastline for it. That is something that this country could be hugely involved in from both a technology point of view and a financial services point of view—that is, financing this stuff.
Another argument that I hear against the climate and nature objective is that it is a negative objective focused on banning and stopping activities. In my view—this is where I suspect I disagree with the noble Baroness, Lady Bennett of Manor Castle—a climate and nature objective should not be about, for example, preventing investment in companies that are involved in fossil fuels or other activities.
Baroness Young of Old Scone (Lab)
My Lords, I very much enjoyed what was just said by my fellow countryman. I will talk to Amendment 69 in the name of the noble Baroness, Lady Sheehan, which I have also put my name to. The amendment adds nature to the new regulatory principle on net-zero emissions. I also recognise everything that the noble Baroness, Lady Hayman, said about needing an objective rather than a regulatory principle. However, if we are to be stuck with a regulatory principle, it needs to address the twin existential crises we are facing globally and as a nation: climate and nature decline.
I must confess that I was kind of taken aback by the two previous speakers. The fact that climate and nature are such major things and go hand in hand, with one not being able to be resolved without the other, is now so commonly recognised globally by the business and financial communities and by Governments that I felt there was a whiff of quill pen coming from the other side, which is most distressing. The reality is that our financial institutions have a key role in enabling the financing of decarbonisation of the economy but also in promoting nature-based solutions. It is partly about making sure that the natural environment is lending its full hand to solving the climate change crisis, because we need every lever in the kit—every tool in the toolbox—to step up to that challenge. The financial institutions have a key role in that.
However, we also already have government commitments on the natural environment in this country: the Environment Act targets. That was the first time we have had statutory nature conservation targets in this country, which the Environment Act introduced and which become binding on government at midnight tomorrow night. We have to recognise that, if we have big bucks that are directed by the financial institutions and by investment, they absolutely have to tackle both climate change and nature conservation.
We should not look at this as a sort of dead-weight cost on the regulatory process or the financial markets because these investments in nature and climate are vital for our future economic growth. They are the heartland of our future economic growth; the jobs of the future are green jobs. We are behind the curve at the moment; the director-general of the CBI and others are all commenting that we are falling behind and losing our international competitiveness because we are not being vigorous enough in getting investment streams into climate change and nature. So we need the regulators to drive green growth and green investment really hard, for both net zero and nature recovery, to give businesses the confidence to invest.
These are very big bucks: the director-general of the CBI was absolutely clear that, in the past two years, the UK has lost its market share in green tech, which is equivalent to a potential value of £4.3 billion by 2030. Globally, an estimated $32 trillion of investment is needed by 2030 just to tackle climate change. So we are talking about big bucks, big investment, big jobs, big economy and big growth, and we were on it until a very small number of years ago. We have to get back on it to be able to hold our heads up in the international economic community.
So I hope that some of the things I have heard tonight are not government policy and that the Government are still absolutely clear about their commitment to action on the twin crises to turn them into opportunities. So, if the amendment moved by the noble Baroness, Lady Hayman, on regulatory objectives is not adopted, I ask the Minister at least to ensure that the regulatory principles reflect that commitment.
Baroness Bowles of Berkhamsted (LD)
My Lords, I had not intended to speak on this subject, but I very much agree with everything that has been said, especially by the noble Baroness, Lady Young, just now, about the lost opportunity if we do not take climate change and embedding it in financial services seriously. ESG investing is the big growth area at the moment, and what message are we giving if we say, “Well, we’re not really that interested in the ‘E’”? I am not sure about the “S” and the “G” either. We will potentially lose out.
It is not as if this will be an environmental tax on every business, or as if it has to be woven into every last little bit of financial services, like some chain round their neck. I spend some time looking at the general duties of the regulators, and, if I were to say anything about the positioning of this, I would say that it is not necessarily high enough up in the hierarchy because it is entirely forgettable within the layering that we have. I object to the notion that we are still in an era where we can do damage and compensate; you cannot compensate for a ruined planet. That is very much old thinking. It is almost centuries old in my book.
The FCA’s general duties state:
“In discharging its general functions, the FCA must, so far as is reasonably possible, act in a way which … is compatible with its strategic objective and … advances one or more of its operational objectives.”
What we are talking about here is a secondary operational objective, but the whole thing could be forgotten. If you ask me, it should be in the strategic objective, which is the only thing that cannot be rubbed out, because that is where we are at. We can go through this lovely list. Integrity gets rubbed out when it comes to SMEs—we have been through that debate—so climate things will be rubbed out if you want to be one of the rough-and-tumble financial firms that wants to deal with gas and oil exploration. Money is needed for that to work it all through and make sure that there are no stranded assets.
What is the big problem with what I would call a measly secondary objective? I understand the competitiveness and growth objective, which seems to be liberally sprinkled throughout to try to give it some kind of priority, but you have to balance that with sustainability in its broadest sense. All these things are about balance. We cannot have a Climate Change Act that says we will do things and then just ignore it in our biggest industry. It is the biggest case out there and we need something on it here. I will look at this again on Report and the Minister jolly well knows where I will put it.
Baroness Kramer (LD)
My Lords, this has been such an enjoyable debate, although I fear that the Government may not be listening as much as they should. When I first looked at this Bill, I was absolutely shocked that the word “sustainable” was not in front of “economic growth”. That seemed quite extraordinary in the era in which we live. It is a very old-fashioned, limited kind of approach that does not recognise the significant intertwining between finance, economic growth, the future of the planet and meeting our targets on climate change and protecting nature. It is extraordinary that it was removed.
I want to pick up the comments of the noble Baroness, Lady Lawlor, in particular. I disagree with her purpose but in one thing she is exactly right: as this Bill is currently written, that international competitiveness objective will largely drive us to try to compete with Asian financial centres that, frankly, could not give a single hoot about climate change and nature. That is why, frankly, the way in which the Bill is currently structured is so weak. As my noble friend Lady Bowles, who knows about this even more than I do, said, we have seen how the FCA deals with secondary operating objectives—I forget the exact phrase—in the past. Occasionally, it might pay attention to them if it suits it but they are certainly not embedded in its culture and do not light the core of its thinking or drive most of the decisions it makes.
I very much support the amendments led by the noble Baroness, Lady Hayman, and joined by others, as well as Amendment 69 in the name of my noble friend Lady Sheehan. However, I will talk in particular to two of the other amendments: first, that from the noble Lord, Lord Tunnicliffe, which asks, as the noble Lord, Lord Vaux, said, that we get this green taxonomy in our sustainable disclosure requirements fast because we desperately need that structure and strategic update.
This is in the context that the European Union already has its sustainable financial disclosure regulations; noble Lords may notice that the initials are exactly the same, bar one letter, which is part of my general concern in all this. Financial investors based in the UK are now using that as their template. As far as they are concerned, having to run one regime if they fall under EU regulations and a different one if they fall under UK regulations would be a nightmare. They are now wondering whether they are being pushed to choose between the two.
In its consultation on sustainable disclosure requirements, the FCA very helpfully provides a chart of how you can cope if you are trying to be under what is contemplated for the UK regime while also dealing with the EU regime. I honestly think that that is in there because the FCA thought that it would be helpful, but I recommend that somebody go and look at it, because it is a nightmare. You can see that it will be incredibly difficult and very costly for companies that work in both arenas to deal with these different alignments.
Lord Tunnicliffe (Lab)
My Lords, the debate this afternoon, not just on this group, has been around how this Bill will influence the future. One of the advantages of being old is that you do not have to look too far, because you know where you are going to be. That is not true for our grandchildren. The present progress on the environment is painfully, frightfully slow. All the stuff I read says that, if there is not a change—if not in direction, then in the commitment and energy we put in—the future for our grandchildren will be very grim.
The other thing that has come out of this debate is the recognition that we have to move beyond carbon. If we crack net-zero carbon by 2050 and do nothing else for all the parts of the green world—the world that should be green—then we will live on a virtually lifeless planet, and we will have lost so many things. There are so many other issues that have to be taken into account in shaping the world of the future.
What does that have to do with financial services? Some may argue that financial services are just about making money and so on, but the way in which people in the past have chosen to make money has had a profound effect on societies—some good, some pretty frighteningly bad—and financial services and the way society develops are intertwined.
I do not support all the amendments in detail in this group, but their direction surely speaks to the fact that financial services will influence the future. The hopeful thing about financial services is that they will be provided by young people. They will not be young when they get around to doing it, but they are young now, and young people grasp this crisis much better than we do. One or two of us in this Room are young but, in general, it is the teenagers and the 20 and 30 year-olds who are really taking this issue on board. They will be the investors and shareholders of the future, so it is right that, in this Bill, we give them the best possible basis for their desire to create a greener world. It has to be a global solution—they will want that to happen.
Our effort, Amendment 208, may be a good vehicle. The Government said that they will publish an updated green finance strategy, relating in particular to a green taxonomy and sustainability disclosure requirements. The concept of a green taxonomy will have the same impact that universal financial reporting standards have had in improving the clarity with which you can look at enterprises. While it remains unregulated, the statements that companies make—especially those that are true—are diluted by the fact that nobody understands the terminology. Only when we bring the descriptions together—at least nationally and ideally internationally—will we start to shape the way that society develops and allow finance, which is so important in creating direction, to play its part.
I commend Amendment 208 to the Committee. Ideally, we should be going with the grain, because Ministers are committed to producing a financial strategy. We are told over and over again in some places—including, I believe, in the other place—that we might expect it imminently. Can we have some clarity about the Government’s commitment? I hope that in doing that, they will see the importance of a green taxonomy and that we can get this in hand and play our small part in what it is not overstating it to call saving the planet.
Baroness Penn (Con)
My Lords, the Government recognise and understand the importance of supporting the growth of sustainable finance in the UK. Indeed, it is because of the importance that Parliament, the Government, the regulators and industry have collectively applied to these issues that London ranks, once again, as one of the leading centres in the world for green finance in the Z/Yen global green finance index. The Government are committed to further strengthening the UK’s financial services regulatory regime relating to climate, which is why Clause 25 introduces a new net-zero regulatory principle for the FCA and the PRA.
Amendments 44, 53, 56, 62 and 68 seek to go further by introducing a secondary objective for the regulators to facilitate alignment of the UK economy with commitments outlined in the Climate Change Act and the Environment Act 2021. Similarly, Amendment 69 seeks to extend the new net-zero regulatory principle to also include nature, and Amendment 69A seeks to oblige the financial services regulators to have regard to a range of environmental concerns beyond the net-zero commitment.
It is important that we consider the regulators’ objectives, secondary objectives and regulatory principles in the round. The FCA and the PRA are required to advance their objectives when discharging their general functions. The FCA’s strategic objective is to ensure that relevant markets function well. Its operational objectives are to secure an appropriate degree of protection for consumers, to protect and enhance the integrity of the UK financial system and to promote effective competition in the interests of consumers. The PRA’s general objective is promoting the safety and soundness of PRA-authorised persons. It also has an insurance-specific objective of contributing to the securing of an appropriate degree of protection for those who are, or may become, policyholders. The PRA also has a secondary objective to facilitate effective competition.
As we have discussed, the Bill provides a secondary growth and competitiveness objective for both the FCA and the PRA. The Government consider that alongside these core responsibilities, it is right that the regulators can act to facilitate medium to long-term growth and international competitiveness, reflecting the importance of the sector as an engine of growth for the wider economy and the need to support the UK as a global financial centre. This proposal received broad support through the FRF review consultation.
These objectives are underpinned by a set of regulatory principles which aim to promote regulatory good practice and set out the considerations that the FCA and the PRA are required to take into account when discharging their functions. The regulators’ primary focus must be to ensure the safety, soundness and integrity of the markets they regulate. While the Government expect that regulators will play a crucial role in supporting the achievement of the Government’s net-zero target, it is not their primary responsibility given that many of the levers for change sit outside financial services regulation.
Having said that, we should not underestimate the significance of Clause 25, which will embed in statute consideration of the UK’s climate target across the full breadth of the regulators’ rule-making and therefore support the Government’s action and ambition to transform the UK economy in line with their net zero strategy and vision.
As noble Lords have noted, the legislation creates a clear hierarchy. However, it is not simply the case that issues relating to climate change will be addressed only through the new regulatory principle. The Government’s view is that consideration of climate is already core to the regulators existing objectives: both safety and soundness for the PRA and market integrity for the FCA.
The Government expect that this will also be the case for their new secondary growth and competitiveness objective. Indeed, the recent recommendation letters from the Chancellor to the FCA and the PRA, published as part of the Edinburgh reforms, set out the Government’s view that delivering net zero is part of the wider economic policy objective of achieving strong, sustainable and balanced growth. This means that the new regulatory principle will ensure that where there are broader issues relating to climate change that are not captured within their existing objectives, the regulators will be required to give them specific consideration, where appropriate, in taking forward their general functions.
Regarding consideration of nature issues, the Environment Act 2021 provides a framework for setting the definitions of the Government’s future targets in this space. Noble Lords will recognise that work is ongoing to understand the interaction between these targets and the work of the financial services regulators, which is not yet clear. The Government consider that it would therefore not be appropriate to place such a requirement within the FiSMA regulatory principles without this clarity. However, I reassure noble Lords that there are clear examples of how the FCA and the PRA are supporting the Government’s work on nature under their existing objectives.
The Government and the financial services regulators are active participants in the work of the Taskforce on Nature-related Financial Disclosures, which aims to help organisations to report and act on evolving nature-related risks. The UK is its largest financial backer. We are also committed to the International Sustainability Standards Board process, which will deliver a global baseline of sustainability disclosures that meet capital market needs, while working to decrease systemic environmental risk. These standards are expected to address aspects of the natural world beyond greenhouse gas emissions. The Government will continue to consider bringing these standards into any UK disclosure framework as they achieve global market consensus.
Baroness Hayman (CB)
My Lords, I am extremely grateful to everyone in Committee who has taken part in this debate. I expected it to be an argument—that did indeed take place and filled much of the Minister’s response—about the hierarchy of objectives and missions that the regulators should employ in meeting an agreed agenda for our financial services to be part of growth, to be central and, indeed, to be world leading. I have no problem with world leading. World beating always worried me, but world leading I am absolutely happy with. I am happy with the aspirations of the now Prime Minister, then Chancellor, in this field.
However, the debate went beyond whether the regulatory principle was enough to do what the Minister agrees should be done and it questioned—the noble Baroness, Lady Lawlor, did this—whether it should be a smaller objective in the first place and whether it was the right strategy to pursue. It was very useful having that debate opened up. In response, the noble Lord, Lord Vaux, spoke eloquently on this issue, but there are three things that I want to say to refute, if you like, the arguments put forward.
One is that this is not a little-Englander debate. It is absolutely a global debate; it is absolutely because other countries are investing in these areas and want their financial centres to be the lead that we are talking about finding the right regulatory framework to allow us to go forward.
I also bridled a little at the suggestion that what we have put forward in these amendments is vague. I have to say that, in terms of definition, my amendments, referring to the targets under Section 1 of the Climate Change Act 2008 and in Part 1 of the Environment Act 2021, are very specific and, might I even say, slightly more specific than “growth” and “competitiveness”—and slightly better defined.
The last thing I will say perhaps mirrors something that the noble Lord, Lord Tunnicliffe, said. The other criticism was that in these amendments we were somehow chasing a picture of an ideal world. Would it were so. We put forward the case for taking strong action on climate and nature because we have a vision not of an ideal world but of a world that is far from ideal and highly dangerous economically and in all other ways for us, our children and grandchildren.
I think we will return to this issue on Report but, for now, I beg leave to withdraw my amendment.
House of Lords
Cars: Headlight Glare
(1 year, 2 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Baroness Hayter of Kentish Town
To ask His Majesty’s Government what plans they have, if any, to introduce regulations for car headlight glare to reduce the reported problem of drivers being dazzled, especially from LEDs.
The Parliamentary Under-Secretary of State, Department for Transport (Baroness Vere of Norbiton) (Con)
My Lords, regulations are already in place to help prevent headlamps, including those using LED technology, causing dazzle and glare. Nevertheless, work is ongoing at an international level to develop and introduce improved headlamp aiming requirements. These are also likely to mandate automatic headlamp levelling systems on new cars.
Baroness Hayter of Kentish Town (Lab)
I thank the Minister for that Answer, which is rather better than a rather complacent Written Answer she gave me. I am grateful for that, because the RAC has reported that nine out of 10 drivers think that some or most headlights are too bright and 90% of them say that they get dazzled. The SMMT is aware of this, as is the College of Optometrists, which assures me that it is not just elderly eyes such as mine that are affected but youngsters’ as well—as I see being confirmed around the Chamber. Will the Minister agree to meet with me and others interested in this matter to see whether we can make more rapid progress on issues such as the aiming height of lights?
Baroness Vere of Norbiton (Con)
I will certainly meet the noble Baroness and others who are interested in this. She mentioned the RAC survey, which was a survey—people were self-selecting in their responses. In 2018, research concluded that overall there are no direct adverse health effects from LED emissions in normal use. Indeed, they might reduce light sensitivity due to the absence of UV radiation. As I said, work is continuing on this. It is important that we look at the research, but we have pressed the UNECE to make further progress.
Baroness Randerson (LD)
My Lords, the noble Baroness asked about new technology, but tomorrow is the 40th anniversary of the introduction of seat-belt laws in the UK. They have saved many thousands of lives since, yet in 2021 30% of those killed in car accidents were not wearing their seat belts. The Prime Minister’s recent experience has revealed the importance of raising awareness. The current £100 fine with no penalty points is out of kilter with the fine for, for example, looking at your mobile phone, which is £200 and six penalty points. Will the Minister guarantee that the Government will review the law on seat belts with a view to introducing penalty points?
Baroness Vere of Norbiton (Con)
The Government are doing a significant amount of work on road safety. Indeed, I took much of that work forward in the three years that I was the Roads Minister. We will publish the road safety strategic framework in the spring. That will look at all different elements of road safety with a focus on how we can reduce deaths and serious injury.
Lord Aberdare (CB)
My Lords, one thing that exacerbates headlight glare is that many cats’-eyes seem to be either not effective or not present at all. Can the Minister tell us what regulation there is to ensure that cats eyes are installed and maintained in working order?
Baroness Vere of Norbiton (Con)
I do not have information on the regulation of cats’-eyes to hand. However, I will happily write to the noble Lord with further details.
Lord Lexden (Con)
My Lords, when I was young long ago, it was considered right and courteous for motorists to dip their headlights for the benefit of others on the road. Is this practice still continuing or is it long out of date? I ask this question as a non-motorist.
Baroness Vere of Norbiton (Con)
My noble friend is quite right. One should not drive at another car with full-beam headlights on; it is right that they are dimmed. However, many vehicles nowadays have a manual system for levelling the aim of headlights; the problem is that not enough vehicle owners know how to use it. That is why we asked the UNECE to look very closely at the automatic systems that are available to see whether that would help.
Lord Tunnicliffe (Lab)
My Lords, I return to the point on road markings and cats’-eyes. An awful lot of road junctions have become increasingly complex. Good road marking is crucial to finding your way around them, but it usually seems to be only white lines on dark surfaces, and there seems to be a world shortage of white paint. Over and over again, the best you can see is a shadow during the day; at night, particularly when it is wet, you are all alone trying to navigate the complexity.
Baroness Vere of Norbiton (Con)
My Lords, the Government set out guidelines for local authorities on road markings and all sorts of different things on the streets. We are currently looking at revising these but, of course, for most roads across the country, it is for local authorities to make sure that they are marked up appropriately.
Lord Flight (Con)
My Lords, would not the solution to this issue be an automatic system that comes with any car purchased?
Baroness Vere of Norbiton (Con)
I am grateful to my noble friend, as that is precisely what we are looking at. Indeed, it was the UK that asked the UNECE to look at the automatic systems available, do the research and assess whether they should be implemented in new vehicles. The discussions on this matter will proceed in April 2023.
Lord Watts (Lab)
My Lords, the Minister says that her department is carrying out a review of road safety. Will it cover cyclists, who often travel with no lights, go through red lights, travel at high speeds and cause danger to the public?
Baroness Vere of Norbiton (Con)
The noble Lord is absolutely right. Road safety is not just about motorists; it is about everybody who uses the roads, including cyclists and pedestrians. We need to make sure that all road users can interact safely with each other to try to reduce deaths.
Lord Grocott (Lab)
The Minister seemed unconvinced by my noble friend Lady Hayter’s evidence of how motorists feel about dazzling lights coming towards them—it is certainly anecdotally the case from people I have spoken to—but, if she discounts my noble friend’s evidence, what evidence does the Minister’s department have on this issue, which seems to be of considerable concern?
Baroness Vere of Norbiton (Con)
I was just trying to point out that the evidence noted by the noble Baroness, Lady Hayter, was from a survey. The Department for Transport did scientific research into this matter in 2018. As I said, the conclusion overall was that there was no direct adverse health effect from LED light emissions. However, that does not mean that we do not continue to take a great interest in this. We recognise people’s concerns about dazzle and glare, which, indeed, is why we have pressed the international community to make some headway.
The Earl of Clancarty (CB)
My Lords, I am not sure the health effects are the real problem. I have read that quite a few accidents have been caused by this, so maybe there is quite an urgency to the matter raised by the noble Baroness, Lady Hayter.
Baroness Vere of Norbiton
I can provide some further evidence. Between 2010 and 2020, so a 10-year period, dazzle was a contributory factor—and indeed there can be many contributory factors; you do not just have to have one—in 0.25% to 0.34% of collisions. Far less than half a per cent have dazzle as a contributory factor. However, we have also looked at the trend over time and there has been no increase in the amount of dazzle caused. Again, we will continue to look at all evidence, but I can say that a very small number of collisions even have it as a contributory factor.
Lord Geddes (Con)
Does my noble friend know whether the self-adjusting lights can be retrofitted?
Baroness Vere of Norbiton (Con)
I am grateful to my noble friend. I do not know whether they can be retrofitted, but I will find out for him.
Lord West of Spithead (Lab)
My Lords, my noble friend mentioned the complexity of road crossings. Does the Minister feel that the number of signs one comes across, for example in London—telling one that one cannot turn left, right, go straight on; where the cyclists go, what the parking is like, what the speed limit has changed to—are so numerous? Has there been any study into what a human being can understand without running people over because he is trying to look at them all?
Baroness Vere of Norbiton (Con)
Yes, there is something called sign blindness where you get too many signs and the brain gets overwhelmed. We are very conscious of that, and that is why we are looking again at our guidance to local authorities. In London, that would fall under the remit of the Mayor of London, so the noble Lord may wish to take it up with him. I am aware of some junctions near me that could certainly do with some attention.
Pollution: Rivers and Beaches
(1 year, 2 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Watson of Wyre Forest
To ask His Majesty’s Government what steps they are taking to protect rivers and beaches from pollution.
The Minister of State, Department for Environment, Food and Rural Affairs (Lord Benyon) (Con)
My Lords, I declare my farming interests as set out in the register. The Government are committed to protecting our water bodies from pollution. In December we announced our ambitious suite of legally binding Environment Act targets, including four targets to address pressures on the water environment. To tackle agricultural pollution, in November we published a grant scheme to improve slurry storage on farms, alongside almost doubling the budget for our catchment-sensitive farming partnership. In August 2022, we also published our £56 billion plan to reduce sewage discharges.
Lord Watson of Wyre Forest (Lab)
I thank the Minister for that Answer, but in the light of increasing public alarm, Thames Water now provides live information on pollution caused by combined sewage overflow spills. When will the Government mandate all water companies to provide their customers with this information?
Lord Benyon (Con)
By the end of this year. I am grateful for the noble Lord’s interest in this subject. In 2013, I wrote to every water company in England and was amazed to find that only 5% of combined sewage outflows were registered anywhere. We did not know, and the reason we now know and are able to hold them to account is that we now have over 90% of those, and by the end of this year we will have 100%, so all the concerns people have can be measured in real time. We are also requiring water companies to put telemetry just below outflows so we can see precisely the impact of legal outflows and use it for enforcement for when there are illegal discharges into rivers.
Baroness McIntosh of Pickering (Con)
My Lords, I refer to my interest as listed in the register. Does my noble friend agree that sustainable drainage systems have a vital role to play in preventing sewage entering these surface water overflows and combined sewers? Will he therefore bring forward the deadline to this year to ensure that Schedule 3 to the Flood and Water Management Act 2010, on obligatory, mandatory sustainable sewage drains, is put in place as it has been in Wales?
Lord Benyon (Con)
Yes, we have announced that we will be consulting this year with a view to making an announcement about implementation of the Flood and Water Management Act.
The Duke of Wellington (CB)
My Lords, does the Minister agree that it is shameful and indeed embarrassing that a British windsurfer, Sarah Jackson, has had to leave Britain because she cannot train in British waters due to the amount of sewage pollution in so many of our coastal areas? She has had to go to Spain in order to train.
Lord Benyon (Con)
That is highly regrettable. I am not aware of that case but no doubt the noble Duke will make me aware of it. One of our targets is about bathing waters, and the classification figures for 2022 were that 72.1% of them were in excellent condition, 20.8% good, 4.3% insufficient and 2.9% poor. Either there is a discrepancy in the information individuals hold on where they can swim, or a discrepancy in the statistics the Government are receiving from very eminent sources. However, I am happy to discuss this further with the noble Duke.
Baroness Jones of Moulsecoomb (GP)
My Lords, I am sure the Minister knows that as of last Saturday, 28 January, Thames Water’s sewage overflow at Stratfield Mortimer had been dumping sewage non-stop for a total of 944 hours and 15 minutes—that is, dumping sewage continuously since 19 December last year. Does the Minister agree that, since Thames Water’s national television advertising must be costing quite a lot of money, that money would be better spent on renewing its sewage outflow pipes?
Lord Benyon (Con)
Stratfield Mortimer is well known to me and others in this Chamber. That is an appalling statistic, and it is why the Government have brought in strict measures that no other Government have ever brought in before. Through our regulator, Ofwat, we are requiring water companies to address this problem. We are requiring them to spend £56 billion of capex on improvements, and we are taking other measures, including enforcement. We have increased money to the Environment Agency and increased the number of inspectors, recognising that it is not just water companies; there are problems that come from farming and from poor connections. There are also a host of different other measures. That is why we are looking at water quality in our rivers holistically and are determined to see the improvements that the public desire.
The Lord Bishop of Manchester
My Lords, I declare my interest as a Church Commissioner in the farming industry. What attention are the Government paying to pollution as we get more and more extreme weather events, with climate change being upon us?
Lord Benyon (Con)
The right reverend Prelate is right to raise this issue. We are seeing more extremes of climate, and that is resulting in a lot of runoff into our rivers at particular times. That is why, for example, we are introducing in our environmental land management schemes a determination to use soil more effectively by binding it together with green cover crops, thus preventing it going into the rivers. I am keen to have a conversation with the Church Commissioners, one of the biggest landowners in the country, about how they are interacting with their farmers and supporting them in taking up these schemes, and about how we can work together with large and small landowners and farmers to ensure that we are improving the quality of our environment, particularly our rivers.
Baroness Hayman of Ullock (Lab)
My Lords, on Thursday the Leader of the House of Commons said that in 2010, only 6% of storm overflows were monitored but the figure is now 100%. However, it is not true that all overflows are monitored, so can the Minister confirm the actual figure today? Can he also confirm whether the department or the regulator collects data on the number of monitors that are offline and the reasons for them being unavailable? My noble friend Lord Watson mentioned Thames Water. According to its map, some two dozen of its monitors were out of action this morning.
Lord Benyon (Con)
The statistic is absolutely right—I can remember seeing it and being stunned that the Government prior to the coalition Government had no idea about this. They knew about only 5% of the storm overflows, so we set about getting that data. If the person quoted in the other place said 100%, it is not quite that but it is nearly there: we are in the 90s, and by the end of this year the figure will be 100%. If the telemetry we require to measure the quality is not working, I am happy to take any cases up with the Environment Agency and make sure that we are applying this.
Lord Cromwell (CB)
Can the Minister tell me how long this will take? I believe the £56 billion that he referred to will take about 25 years to roll out and invest. When will we be able to see a visible difference?
Lord Benyon (Con)
We have announced our targets in the provisions of the Environment Act—some of those are for 2035, and some are for 2038—and we will review them in 2027 to see how they are going. There are others that are more long term. There was an unfortunate mistake in a regret amendment last week, in which it was claimed, somehow, that we are pushing this out to 2063. What is absolutely true is that we are sticking to the requirements of the water framework directive, as we did when we were in the EU. We are emboldening that with other provisions, such as the ones in the amendments to the Levelling-up and Regeneration Bill. So, there is a degree of urgency because we want these matters to be dealt with as quickly as possible. I urge the noble Lord not to listen to what was claimed in the regret amendment last week.
Baroness Bakewell of Hardington Mandeville (LD)
My Lords, Southern Water is a persistent offender and has been fined in the past for discharging sewage into coastal seas and waterways. Despite this, there has been no change in its working practices. People are suffering stomach upsets and ear infections—the noble Duke, the Duke of Wellington, has referred to this. As heavy fines appear to make no difference, ahead of summer, does the Minister believe that the measures he has mentioned today will make a real difference to the quality of water around our coasts and keep our children and swimmers safe?
Lord Benyon (Con)
The measures we are bringing in can lead to fines of up to 10% of water companies’ turnover, and the inflicting of fines of over £100 million on a single water company. This will see a real drive towards raising standards across the piece, and not just in the area of enforcement. We have more enforcement officers in the Environment Agency to take up any complaints people have about water quality, but we are also making sure that we tie this in holistically. For example, our requirement that water companies get to net zero means no longer allowing sludge to be improperly applied to the land, and looking at such areas as a resource, rather than something that, ultimately, can pollute. We are working holistically across the water sector to improve the situation.
Russia: Sanctions
(1 year, 2 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Craig of Radley
To ask His Majesty’s Government what assessment they have made of the impact of the United Kingdom’s sanctions on Russia’s operational capabilities against Ukraine.
The Minister of State, Foreign, Commonwealth and Development Office (Lord Ahmad of Wimbledon) (Con)
My Lords, Russia is struggling militarily and is isolated internationally. It faces enormous replenishment challenges following major equipment losses and high rates of munition expenditure. The United Kingdom and its partners are weakening Russia’s military by sanctioning key defence organisations and banning the export of critical technologies. Our designations of individuals and military entities undermines Russia’s war effort, addressing alleged war crimes. We will continue to hold Mr Putin to account and stand up for freedom and human rights.
Lord Craig of Radley (CB)
My Lords, I thank the Minister for answering the Question, although I am not sure that the Ukrainians feel as confident as he is that the Russians are hampered by the sanctions. Government and Select Committee reports stress that sanctions are effective if they have clear objectives, well-defined demands and an exit strategy. Is His Majesty’s Government following that wise advice?
Lord Ahmad of Wimbledon (Con)
My Lords, our sanctions policy, first and foremost, is very much focused on addressing all the issues that I have already outlined and, of course, reflects the very points that the noble and gallant Lord raised. In this regard, we are having an impact on the Russian military capability and on the Russian economy. He mentioned the Ukrainian perspective; we are working hand in glove with the Ukrainians and are in regular contact with them. Only last week, I attended a G7 meeting virtually, where we were looking at energy issues, focusing on Ukrainian need, and Ukrainian Foreign Minister Kuleba was also present.
Lord Trefgarne (Con)
My Lords, to what extent are sanctions against Russia being evaded and what can we do to prevent that?
Lord Ahmad of Wimbledon (Con)
My Lords, the best way to ensure that sanctions are working effectively, as I have said every time that we issue a sanction on any individual or organisation, is to ensure that it is done in co-ordination with our key partners. That includes working very much together with the United States, Canada and the European Union. It is also about ensuring that where we see an issue of circumvention being highlighted, for example, we work with key partners such as the G7, and I assure my noble friend that we are doing so.
Lord Collins of Highbury (Lab)
My Lords, can I take that a little further? Enforcement is absolutely key, so can the Minister assure us that we have the capability, working with our allies, to ensure proper enforcement of sanctions? Can he also tell us what message he believes that it sends to Ukraine and our allies when our own Treasury helped one of Putin’s most notorious warmongers to evade sanctions?
Lord Ahmad of Wimbledon (Con)
My Lords, I will start with the noble Lord’s second point, without going into the specifics of the case. He will be aware that there is a right to legal redress, as is right in our own sanctions policy as opposed to those imposed by other countries on our parliamentarians. My noble friend Lady Penn also dealt with that issue and His Majesty’s Treasury is very much seized with it. We will continue to work with international partners, particularly the G7, to ensure the effective implementation of sanctions because there are undoubtedly ways of overcoming them. There will be new and novel ways to circumvent every sanction imposed and we need to ensure, in a co-ordinated fashion, that we address those.
Lord Purvis of Tweed (LD)
My Lords, as the Minister knows, we have supported this additional capability and the sanctions, but he also knows of my concerns that they are being offset. Regrettably, Russia is not as isolated as the Minister asserted earlier. I hope he will agree that after what we thought was an extremely successful state visit by the President of South Africa, it was troubling to see the red carpet laid out recently in Pretoria for Sergei Lavrov. When the Foreign Minister of South Africa was asked if she would repeat that country’s position of calling for a withdrawal by Russia from Ukraine, she said that it was simplistic and infantile. Will the Minister please agree that the joint naval exercises between South Africa, China and Russia on 24 February are not in our strategic interests, and are we making that message clear?
Lord Ahmad of Wimbledon (Con)
My Lords, the assessment of the Foreign Minister of South Africa was not something I agree with. We are of course watching the situation closely and I agree with the assessment of the noble Lord. When you see one of our key partners in Africa, which is also a member of the Commonwealth, carrying out such exercises and welcoming the Russian Foreign Minister, that is a cause for concern. I assure the noble Lord that we have made our views clear.
Lord Hannay of Chiswick (CB)
My Lords, does the Minister not agree that action to implement sanctions successfully has to be collective and not separate? What exists in the way of collective machinery among the main partners in those sanctions to ensure that the large numbers of people working in Moscow, Beijing and Tehran to evade such sanctions do not succeed?
Lord Ahmad of Wimbledon (Con)
My Lords, I agree. That is why, as I have said, we are working in close co-ordination with our key partners. Where we see circumvention we are acting in a co-ordinated fashion, including through the G7, to ensure that those issues can be addressed. Sanctions are there for a reason: to prevent certain individuals and organisations continuing their work, by penalising them quite directly. It is our job as part of British diplomacy, along with our key partners, to ensure that this message is heard around the world.
Lord Kamall (Con)
My Lords, sometimes one of the unintended consequences of sanctions is that they affect opposition movements and civil society in-country. Is my noble friend the Minister aware of any of those unintended consequences, and how has the sanctions regime been adjusted to avoid them?
Lord Ahmad of Wimbledon (Con)
My noble friend is correct to say that, when we impose sanctions, our argument or challenge is not with the ordinary citizens of countries. That is why we have worked with international partners. For example, there is a specific humanitarian carve-out on sanctions imposed internationally which allows essential humanitarian aid to be provided.
Lord Campbell of Pittenweem (LD)
My Lords, now that Ukraine is to receive tanks, it is seeking further fighter jets. What is His Majesty’s Government’s attitude to that request?
Lord Ahmad of Wimbledon (Con)
My Lords, I will not go into specifics, but the noble Lord will be aware that we work in a very co-ordinated fashion. We work very closely with the Ukrainian Government to ensure that their military requests and priorities are not only understood but that we work in co-ordination to best support them. Indeed, the UK was the first to offer tanks, which resulted in other countries following suit. It is important that we act in a co-ordinated manner.
Lord Skidelsky (CB)
My Lords, the list of individuals and entities currently sanctioned stands at 3,778 worldwide. It grows every year, but we are never told who is removed from it. Will the Minister give us the assurance that the Government will publish a list of those who have been removed from sanctions since 2001, so that the House is better able to assess the efficacy of the sanctions regime in meeting its objectives?
Lord Ahmad of Wimbledon (Con)
My Lords, the noble Lord will recall that, when we were taking through the sanctions and anti-money laundering legislation, part of that was to ensure a proper and structured review by the Government of those sanctioned. That is part of our legislative process. Providing details of every single individual or organisation would create more work for the Government than necessary, and the cost would be uneconomical. However, within our sanctions policy, when someone or an organisation first has a sanction imposed, there is a way for them to appeal and challenge it. Those sanctions are reviewed on a regular basis.
Lord Alton of Liverpool (CB)
My Lords, notwithstanding what the noble Lord has been able to tell us about the efficacy of sanctions impacting Russian GDP, will he return to the question of circumvention which has been raised with him? In particular, he will have noted that Chinese currency is being used to break regulations and sanctions on currency rules. He will have also seen the sale of Shahed missiles from Iran to Russia, which are being used to pummel and pound the infrastructure in Ukraine, terrorising the people there. How are we using Magnitsky sanctions to further identify those who broker such deals?
Lord Ahmad of Wimbledon (Con)
My Lords, there is a series of sanctions. The noble Lord spoke of the Magnitsky sanctions. We have exercised that type of sanction, particularly where we see human rights abuses taking place. That will continue as part of what we seek to do. On the issue of circumvention, he specifically raised how currencies are used, and the noble Lord, Lord Purvis, has also raised this. It is important that we use our good offices and work with key markets to ensure that it is made clear that circumvention is an abuse of laws of countries. The sanctions are imposed for a reason—to ensure, in the case of Ukraine, that those responsible for this illegal war are held to account.
Global Health Policies
(1 year, 2 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Collins of Highbury
To ask His Majesty’s Government what steps they will take to promote the global health policies specified in their strategy for international development, published on 16 May 2022, at the United Nations High-level meeting on universal health coverage in September.
The Minister of State, Foreign, Commonwealth and Development Office (Lord Ahmad of Wimbledon) (Con)
My Lords, we are advocating for a joined-up agenda across the high-level meetings on universal health coverage, tuberculosis and pandemic preparedness and response. Working through the UN General Assembly and the World Health Organization, and with our partners, we are promoting a co-ordinated approach that strengthens health systems to achieve universal health coverage, improve global health security and end preventable deaths of mothers, babies and children.
Lord Collins of Highbury (Lab)
My Lords, the latter part of the Minister’s Answer is precisely what this Question about, because the high-level meeting is an opportunity to make progress on ending preventable deaths and strengthening health systems, both of which are key priorities of the Government. However, that will be achieved only if we have global leadership and global leaders supporting it. One way to build momentum would be for the United Kingdom to provide leadership and signal now that either the Prime Minister or the Foreign Secretary will attend. Can the Minister commit to that now?
Lord Ahmad of Wimbledon (Con)
My Lords, I think I would cause some concern to the diary secretaries of the Prime Minister and the Foreign Secretary if I were to do that. However, I take the point that the noble Lord has raised: in any international forum, it is important that we see senior leadership and senior members of His Majesty’s Government representing the United Kingdom’s interests. I pay tribute to the noble Lord’s work on issues of nutrition, et cetera. I am sure he will agree that we have continued to stand firm on issues such as vaccinations, therapeutics and diagnostics—that is the Government’s approach, which I believe is the right approach. We also underline that with strong support, including for the Global Fund and in areas such as Gavi, to ensure that issues of health and vaccination are kept at the forefront of the discussions within international health structures.
Lord Foulkes of Cumnock (Lab Co-op)
My Lords, my friends at Age International have reminded me that access to healthcare in developing countries is even more difficult for older people, who are more vulnerable. The number of older people in developing countries is increasing rapidly. That is all acknowledged in the paper that the FCDO has produced. So what will the Minister do to ensure that the UN high-level meeting takes account specifically of the needs of older people?
Lord Ahmad of Wimbledon (Con)
My Lords, there are many vulnerable groups across developing nations who need our assistance—that is why global health structures are important. Our approach has been to target specific levels of support to different communities to ensure workable solutions on the ground. For example, we work with partner Governments and multilateral partners to strengthen health systems for all, including the elders. We are increasing support for women giving birth in health facilities; for example, in Nepal, that has risen from 9% in 2001 to 80% in 2022, specifically for young mothers. We are working in Nigeria to help a large uplift in support for vulnerable communities there. We are also adopting new technologies to ensure that we can deliver healthcare; we have a telemedicine pilot for reaching remote communities, including elders, in Brazil. Those are just some examples, and I will be happy to discuss with the noble Lord other examples of what we do across the globe.
Lord Fowler (CB)
My Lords, do we not need to recognise also how things have changed—particularly with HIV and AIDS, where the position has changed from there being no cure or any way of dealing with them to, today, it being perfectly possible to deal with them effectively? Is it therefore not totally distressing to find that the latest figures show that 658,000 deaths last year were AIDS-related and that these included around 250,000 women and 100,000 children under 14? Are those figures not disgraceful, and are they not a further explanation to us of what needs to be done in international co-operation to try to expand care for this terrible pandemic, which has done so much damage over the years?
Lord Ahmad of Wimbledon (Con)
My Lords, first, I pay tribute to my noble friend’s work in this area. I agree with him: tackling issues such as AIDS has changed from many years ago to where we are today; it is preventable and there are cures available. We need to work with our international partners and—coming back to the point raised by the noble Lord, Lord Collins, about the importance of international health architecture—to ensure that those most vulnerable communities get the support they need. That was why I was delighted that we committed a further £1 billion to the Global Fund, which, as my noble friend knows, is focused, among other things, on AIDS. We need to work on specific outcomes on the ground, particularly for young women and, again, on preventable deaths—there are babies who die of AIDS, and this can be avoided.
Baroness Manzoor (Con)
My Lords, I very much welcome both the Government’s leadership and the money they are putting in through the Global Fund. But my noble friend will know that one of the key elements of reducing maternal deaths, neonatal deaths and perinatal deaths is education—education, education, education—particularly for young girls and women. Without this, we will fail. Can my noble friend the Minister say what we are doing to try to improve this particular aspect through the Global Fund as well?
Lord Ahmad of Wimbledon (Con)
My Lords, I thank my noble friend for raising that important issue. The UK Government’s strategy for international development highlights our commitment to work towards preventable deaths for mothers, babies and children. Within that, we are building strong health systems. There are also important issues of sexual and reproductive health that need to be addressed, as well as good nutrition—a point the noble Lord, Lord Collins, has often raised. We also need to invest in research and innovation. We are doing all the above and, yes, investing in education as well. Our policy over many years, which I know all noble Lords support, has been education for every girl around the world irrespective; and quality education is a key part of that.
Lord Purvis of Tweed (LD)
My Lords, the strategy for international development, published on 16 May 2022, states categorically that funding for women and girls will be restored to pre-cuts levels. Two days later, on 18 May 2022, the Foreign Secretary told the International Development Committee in the Commons that this meant
“£745 million, which is the same as what it was in 2019-20. That is restored immediately”
in 2022-23. That was an unequivocal promise to women and girls in support. Can the Minister repeat that that promise is being upheld?
Lord Ahmad of Wimbledon (Con)
My Lords, as the noble Lord is aware, we have not yet announced our full settlement in terms of our ODA for the next two years.
Lord Ahmad of Wimbledon (Con)
I meant this current year and next year. That is why I can assure the noble Lord that within the scope of the decisions being made, the issue of girls and women is a key priority, and rightly so.
Baroness Deech (CB)
My Lords, does the Minister feel at all inhibited in calls for his international leadership by the fact that our own health system is failing in so many ways? In particular, we are drawing in nurses and doctors from countries that need them much more than we do.
Lord Ahmad of Wimbledon (Con)
My Lords, the noble Baroness raises a point about health recruitment. We are committed to working with the likes of the World Health Organization, which is governed by a strict UK practice for international recruitment, including a ban on direct recruitment for countries that the World Health Organization deems to have the weakest health systems. I agree with the noble Baroness, notwithstanding what I have just said, We work with particular countries to ensure that those who are recruited from those countries have an opportunity to return. For example, in India, we are looking at the opportunity to take advantage of studying medicine in the UK and working within the NHS in the UK; but within the scope of that, after the practical and academic experience, the individuals can return to healthcare in India. These are the innovative ways in which we need to work with other countries to ensure that we get the kind of universal healthcare coverage that is required.
Lord Cormack (Con)
The noble Lord, Lord Fowler, gave the figures for AIDS. Does my noble friend not agree that a similar number of people are dying every year from malaria? Most of them are children, and most of them are in Africa. What prospects of real progress can he hold out for us in that context?
Lord Ahmad of Wimbledon (Con)
My Lords, partly, I can answer in exactly the same way as I answered the noble Lord, Lord Fowler. The Global Fund, as my noble friend will be aware, targets three specific areas: HIV, tuberculosis and malaria. The United Kingdom has committed £1 billion for 2022-25.
Economic Crime and Corporate Transparency Bill
Monday 30th January 2023
(1 year, 2 months ago)
Lords ChamberRead Full debate Economic Crime and Corporate Transparency Act 2023 View all Economic Crime and Corporate Transparency Act 2023 Debates Read Hansard Text Amendment Paper: Consideration of Bill Amendments as at 25 January 2023 - large print - (25 Jan 2023)
National Security Bill
(1 year, 2 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Sharpe of Epsom
That the amendments for the Report stage be marshalled and considered in the following order:
Clauses 1 to 16, Schedule 1, Clauses 17 to 23, Schedule 2, Clause 24, Schedule 3, Clause 25, Schedule 4, Clause 26, Schedule 5, Clause 27, Schedule 6, Clauses 28 to 39, Schedule 7, Clauses 40 to 43, Schedule 8, Clauses 44 to 51, Schedule 9, Clauses 52 to 54, Schedule 10, Clauses 55 to 58, Schedule 11, Clause 59, Schedule 12, Clauses 60 to 65, Schedule 13, Clauses 66 to 70, Schedule 14, Clauses 71 to 73, Schedule 15, Clauses 74 to 88, Schedule 16, Clauses 89 to 92, Schedule 17, Clauses 93 to 100, Title.
Public Order Bill
Monday 30th January 2023
(1 year, 2 months ago)
Lords ChamberRead Full debate Public Order Act 2023 View all Public Order Act 2023 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 82-I Marshalled list for Report - (26 Jan 2023)
17:09 - Division on Amendment 1 - Ayes: 243 / Noes: 221 - Amendment 1 agreed.
18:35 - Division on Amendment 8 - Ayes: 221 / Noes: 224 - Amendment 8 disagreed.
Lord Coaker
“Meaning of “serious disruption”(1) In this Act, “serious disruption” means disruption causing significant harm to persons, organisations or the life of the community, in particular where—(a) it may result in a significant delay to the delivery of a time-sensitive product to consumers of that product, or(b) it may result in a prolonged disruption of access to any essential goods or any essential service, including access to—(i) the supply of money, food, water, energy, or fuel,(ii) a system of communication,(iii) a place of worship,(iv) a transport facility,(v) an educational institution, or(vi) a service relating to health.(2) In subsection (1)(a), “time-sensitive product” means a product whose value or use to its consumers may be significantly reduced by a delay in the supply of the product to them.”Member’s explanatory statement
This new Clause defines the concept of “serious disruption” for the purposes of this Bill, which is the trigger for several new offences and powers.
Lord Coaker (Lab)
My Lords, I start consideration on Report by moving my Amendment 1. I thank the noble Baroness, Lady Jones, the noble Lord, Lord Paddick, and my noble friend Lady Chakrabarti, for their support for this amendment regarding serious disruption and its meaning and relevance to this Bill’s new powers. I start by also thanking the Minister for his courtesy and usual help in discussing the Bill and its relevant parts, which have been very gratefully received. I also thank all his officials and other Ministers.
However, in thanking the Minister, I have to say how disappointed I was by the Minister in the other place, who said in an online article in the Telegraph over the weekend that our job as politicians “of all colours” was
“to stand up for the law-abiding majority whose lives were seriously disrupted by such protests”.
Who does not want to stand up for the law-abiding majority? I have never said, in any of the debates on this Bill, that the Government, or anyone who has opposed what I have said, want to ban protests, or accused any of them of being against the law-abiding majority. This is a genuine debate and discussion between people of different parties, across this House, on very serious issues on which we are seeking to improve and amend the Bill. There will be differences of opinion, but that does not mean that people are against the law-abiding majority, and that does not mean that people are not in favour of protest.
The debate is about clarity and thresholds; it is about where we draw the line—democracy at its best, thrashing out these issues and, yes, voting in the best traditions of a revising Chamber. It is my contention, and that of my party and others from other parties across the House, that the Bill has gone too far. My amendments have a higher threshold than there are in other amendments, such as Amendment 5—but there are others. There is a risk of the police, in my view and that of others, being given lots of new powers that, instead of providing clarity, will end up undermining and clamping down on peaceful and legitimate protests.
My Amendment 1 says that “serious disruption” must cause
“significant harm to persons, organisations or the life of the community, in particular”
in certain situations, but not exclusively in those situations. That would keep the threshold at a relatively high level, not lower it. The EHRC says, in an article published today, that these new amendments have the potential to enable the police to block peaceful protests or to shut down non-disruptive protests.
I shall not go through every amendment in this group tabled by the noble and learned Lord, Lord Hope, and supported by the Government. The language of Amendment 5 is much the same as in many of the other amendments, as it seeks legal clarity on definitions that are offence specific. Amendment 5, for example, relates to locking on, which means attaching yourself to a person, object or land, as set out in Clause 1. There is no definition of “attach”, so it can be linking arms. Clause 1 goes on to say that the offence happens if this
“causes, or is capable of causing, serious disruption”.
I want us all to consider that when we decide how we should vote on these matters. In other words, on some of the specifics around these amendments, we have to remember that an offence does not even have to happen—it just has to be capable of happening, and that should trouble us all.
Amendment 5 has a threshold and uses language such as “prevent” or
“hinder to more than a minor degree the individuals or the organisation from carrying out their daily activities.”
The same threshold is set for all the offences in Clauses 1, 3 and 4. Goodness me. Many of us—noble Lords in this Chamber and others watching these proceedings—would have been arrested or would have fallen foul of the law under these provisions. Let me give one example from my background. I will not go into the miners’ strike—it is more recent than that.
I, along with a community group, stopped a bus, rerouted by the bus company, from going down a road through an estate where there were children’s play areas, parks, et cetera. Many in that community were determined to act together because they decided that the bus company was acting in a way that was irresponsible with regard to the lives of people in that community and put children’s lives at risk. So we blockaded the road, linked arms across it and stopped the bus coming down that road for a few days. As a result, the bus company changed back to the original route.
This Bill would have threatened that activity and protest, making it unlikely that I, as a politician and councillor representing that area, as well as mothers, parents, grandmothers, grandfathers and friends with their children, using pushchairs in the road, would have been able to do that because it was more than a minor hindrance. It stopped that bus going down the road. Who is to say that that was wrong? Who can also say, if we pass these amendments, that that action would not be made inappropriate?
Do not take my word for it. I stand here as a Labour politician, but sometimes I read ConservativeHome. I was doing so at the weekend to see what might be said, which is always interesting and worthwhile. An article from Policy Exchange says that,
“the amended offences would make criminal liability turn on proof of serious disruption, which makes the meaning of ‘minor’ hindrance and ‘daily activities’ loom large”.
Of course there is a debate. I am sure that people are going to say, “Well, if you look at Lord Coaker’s amendment, and the others that support it, what does ‘significant’ mean? What does this mean? What does that mean?” Of course, there are debates about what different words mean, but the Government are pretending that, by lowering the threshold and using the words that they have included, you get rid of the legal uncertainty. That is not the case because, instead of having a debate about “serious”, you have a debate about “minor”. What is a “hindrance”? All those debates will loom large as, as the ConservativeHome article suggests.
As I have said, on my Amendment 1 there will be debate on the meaning of “significant”. It sets the threshold higher, which is the point that I am trying to make in my amendment. It does not prevent protest that might be capable of hindering someone carrying out their daily activities. So the lower threshold for serious disruption in Amendment 5 and others means that more than minor hindrance to the carrying out of daily activities, or construction, maintenance works or other activities, could result in police intervention and arrest. Wheelchair activists chaining their wheelchairs together in certain circumstances could cause more than a minor hindrance to daily activities. It could stop someone shopping.
I have looked at various websites through the weekend and have seen lots of different people supporting tree protests, where people have roped or attached themselves to trees to prevent something happening. Who is to say that those protests will not be affected by the new amendments? I have seen fine, upstanding citizens—not just members of the Labour Party, Communist Party, Socialist Workers, Liberal Democrats, Greens or others of similar ilk but even Conservatives—join those protests. Well, they are going to get a shock when they wake up and find that their own Government have said, “What you are doing is illegal, the village green trees that have been outside the pub for 300 years are going and there is nothing that you can do about it because we have introduced measures and amendments that mean that such protests will not be able to happen”.
Are we really saying in this Chamber that the definition of “serious” is “more than minor” and not incompatible with Articles 10 and 11 of the European convention? At the heart of this is the question of what “more than minor” means, particularly if applied to Clause 1. If, as Liberty says, I chain myself to a traffic light, and if that hindered two or more people for 10 minutes from crossing the street to shop, would that be “more than minor”? There is no legal certainty in what is meant by “more than minor”, nor indeed in what is meant by “hinder”—remembering that “serious disruption” does not even have to happen for those offences to be committed.
Lord Pannick (CB)
The noble Lord spoke about legal certainty. Could he help the House on how a court is to determine whether disruption is “prolonged”? If there is locking on and I am unable to take my child to school or my mother-in-law to hospital for an hour, two hours, or 10 hours, is that prolonged?
Lord Coaker (Lab)
That is the point I am making: there is of course going to be a debate about what various words mean. I have admitted it. I said to the noble Lord and to others that I have asked in the debate what “significant” means in certain situations. All I am saying is that I want to set the threshold higher; I want the threshold to be at a level at which “serious” can be used, rather than the “minor” level which the Government seek to introduce, supported by other noble Lords. Of course there will be a debate, whether about what I have put forward, or about “minor”, or about what “hindrance” means in certain situations. But this Chamber should be saying to the courts that what we mean by “prolonged” is that it has to happen not just once. It has to be more than a daily activity; it has to be something that impacts on the life of the community more than once or twice. That is what we are saying and that is why I am putting forward these amendments. I want the courts to realise that, when this Chamber passes these amendments, we are saying that serious means serious.
Of course there will be a debate about what that actually means. It is the same as with any other law we pass—it does not matter which one. The noble Lord, Lord Pannick, has much more experience in this than I do, but, in the end, the courts will have to determine what it means. We will come on to “reasonable excuse” in a minute, but I think the courts would want to know that this House has debated it. I am saying that “serious” means more than minor, and that “prolonged” means more than daily. In the end, the courts will have to determine that. But I say to the noble Lord, Lord Pannick, that that would be true whatever wording we use in the Bill: there will be a debate in the courts as to what it actually means. I want the courts to debate what “serious” means and what “prolonged” means. I do not want them to debate what “minor” means because the threshold starts too low.
Lord Faulks (Non-Afl)
I think the noble Lord said, just before the intervention from the noble Lord, Lord Pannick, that it would not be necessary to prove serious disruption. That cannot be right, with respect; I hope it was a mistake on his part. I understand that the proposed new clause inserted by the amendment is to go before the definition of the offence, which includes the words “serious disruption”, which will have to be established. Is that correct?
Lord Coaker (Lab)
Yes, of course. If I gave that impression, it was a mistake on my part. This is the whole point: there has to be “serious disruption”, as in my amendment. The debate—not the argument but the debate, as the noble Lord, Lord Pannick, just raised—is about what we actually mean by serious disruption. I thank the noble Lord, for pointing that out. If I said that, it was a mistake.
Baroness Jones of Moulsecoomb (GP)
I am curious about this “serious disruption”. Quite honestly, if anyone has driven on the M4, the M25 or through the streets of London, they will know what serious disruption is, because we get it every single day from people using their cars. If we have any confusion about what serious disruption is, that is what it is: traffic jams. Perhaps we ought to lobby the Government to stop traffic jams, because they cause more delays to children getting to school, to ambulances getting to hospital, and so on. Please, can we just understand that serious disruption is something we all experience, every single day of our lives? What we are talking about here is not really serious disruption: this is people who care about the future of humankind, here in London and worldwide. Could we take it a bit more seriously?
Lord Coaker (Lab)
I agree with my friend the noble Baroness about the importance of the issues. I think everyone in the Chamber is taking this seriously. There is a legitimate debate going on as to what “serious disruption” means. My friend is right to point out that we are discussing very serious issues, and we will talk about that when we come to “reasonable excuse” in particular. Before I am accused of being a hypocrite, I should say that I did drive here today—I thought I had better own up to that.
I turn to Amendments 48 and 49 and the Government’s response, we think, to slow walking, introduced at a very late stage—not in the Commons, and not even in Committee in this Chamber, but here on Report. It has been our contention that existing legislation, enforced robustly, would deal with many of the problems we have seen. As the chief constable of Greater Manchester said—and no doubt we will quote chief officers at each other, so let me start—in an article in the Telegraph on 12 December 2022, entitled “Just Stop Oil protesters should be arrested ‘within seconds’”:
“I think fundamentally, if people obstruct the highway they should be moved … very quickly”.
In other words, he argued for greater use of obstruction rather than a whole range of new powers, as contained in Amendments 48 and 49. We should remember that existing law, whatever the rights and wrongs of this, have led to Extinction Rebellion calling off its action.
In new subsection (3) as inserted by Amendment 48 and new subsection (4) as inserted by Amendment 49, there is the same argument about hindering that is more than minor, which I have just been through with respect to the meaning of “serious disruption”. In other words, the threshold for what constitutes “serious disruption” is being lowered.
I think all of us believe in the right to protest. Yes, sometimes we may get irritated when protests disrupt our lives, and clearly there have to be limits, but many of these amendments simply go too far; they will have a chilling effect on protests and protesters. It will undermine one of the fundamental freedoms we all enjoy: standing up to injustice as we see it. It is a price we pay for our democracy. Any interference with these freedoms poses an unacceptable threat to the right to protest, which is a fundamental cornerstone of our rights and our democracy. I beg to move.
The Deputy Speaker (Lord Brougham and Vaux) (Con)
My Lords, I remind the House that if this amendment is agreed to I cannot call Amendments 5, 14 or 24 due to pre-emption. As we are on Report, I remind noble Lords that they are allowed to speak only once.
Lord Brown of Eaton-under-Heywood (CB)
My Lords, I support Amendment 1, and no less strongly I oppose Amendment 5 proposed by the Government, my noble and learned friend Lord Hope and others. I never feel comfortable at the opposite end of the spectrum from my noble and learned friend Lord Hope, but I trust that he feels at least as uncomfortable on the other end of the spectrum from me.
Before commenting briefly on the actual language of these rival amendments, let me make what seems to me to be a critical preliminary point, and it is this: the meaning of “serious disruption”—assuming it is to be defined by one of these proposed amendments—is closely related to the concept and discussion and issue of “reasonable excuse” and the rival proposed amendments to that. I recognise that “reasonable excuse” comes under the next group but it is important that it should not be ignored at this stage. As your Lordships will readily understand, the lower the threshold is set for what constitutes “serious disruption”, the less justification there is for narrowing down, let alone excluding, the defence of “reasonable excuse” or for putting the burden of that defence on the accused. It becomes highly relevant as to what is decided in group 1 when we get to group 2. I acknowledge that the converse is true too: the higher the threshold for what constitutes “serious disruption” then the readier the House may be to look at shifting the burden, as the Bill already does, on matters of that sort.
Let me now turn briefly to the proposed definitions. Is “serious disruption” really to mean no more than substantial—in other words, something that is merely more than to a minor degree—interference with someone’s daily activities, as proposed by the Government, such as somebody driving to the shops? “Hindrance”, which is the concept used in the proposed government amendment, is effectively just that: it is really no more than interference and inconvenience. What weight, one asks, is given in the Government’s proposed definition to the word “serious”? Is it to be suggested that this is sufficiently catered to merely by the “hindrance” in the definition having to be
“more than a minor degree”?
I would submit it is surely not.
I do not wish to damage the points made by the noble Lord, Lord Coaker, and I would risk doing so if I were to go on at any great length. Surely the preferable definition is that which is proposed in Amendment 1, “significant harm”, as illustrated in the amendment. It is that significant harm, not merely interference or inconvenience, against which this legislation is directed, and it is certainly only that which could possibly justify most of the regressive, repressive features of this Bill. I therefore support Amendment 1.
Lord Paddick (LD)
My Lords, I will first address the opening remarks of the noble Lord, Lord Coaker. As I have told the House before, I have considerable experience of public order policing and my view is that the police have sufficient powers without any of the measures contained in this Bill. In fact, that is the view of many serving police officers who were interviewed by His Majesty’s Inspectorate of Constabulary and Fire & Rescue Services, some of whom referred to the powers that currently exist as an “armoury” of powers to use in public order policing. Now even the Just Stop Oil protesters say they are no longer going to protest in the way that they have before because too many of them are in prison. If too many of them are in prison, and they are not going to protest in the way that they have before, why do we need yet more powers for the police and more laws?
I have Amendments 3, 4, 12, 13, 22 and 23 in this group, which are nothing to do with the definition of “serious disruption”, so let me deal with these first. These amendments relate to the new offences of locking on, tunnelling and being present in a tunnel. The new offences include activity that is capable of causing serious disruption, even if no disruption whatsoever is caused—another example of giving the police the power to intervene in anticipation that serious disruption may be caused before a protest has even started.
Amendments 3, 12 and 22 restrict the offences to activities that actually cause serious disruption. The new offences are not only committed by those who intend to cause serious disruption, but also extend to those who are reckless as to whether serious disruption may be caused, even if they have no intention of causing serious disruption. Amendments 4, 13 and 23 remove the “reckless” element.
Amendments 5, 14 and 24—and part of Amendments 50 and 51, as we have heard—relate to the definition of “serious disruption”. The Minister will no doubt cite the Commissioner of Police of the Metropolis in saying that the police would find it helpful if the definition of “serious disruption” was clearer. Amendment 1, to which I have added my name—[Interruption.]
Lord Paddick (LD)
That was a natural break in proceedings as I am now going on to talk about the definition of serious disruption.
As we have heard, Amendments 5, 14, 24 and part of Amendments 50 and 51 relate to the definition of serious disruption. The Minister will no doubt cite the Commissioner of Police for the Metropolis in saying that the police would find it helpful if the definition of “serious disruption” were clearer.
Amendment 1, to which I have added my name, provides greater clarity in relation to, what—with the best will in the world—will ultimately be a judgment call by the police. I respectfully suggest that
“Significant harm to persons, organisations or the life of the community”
provides the clarity the police are seeking in ways that the alternative, from the noble and learned Lord, Lord Hope of Craighead, does not. It even provides examples of what might constitute “significant harm”.
I turn to the amendments in the name of the noble and learned Lord, Lord Hope of Craighead. The noble and learned Lord probably realised that he had gone too far in his definition when the Minister signed them. I am not a lawyer. At university, I studied philosophy, not law, but I am not sure that defining “serious” as being “more than minor” is that helpful or reasonable. Surely it begs the question, “Well, what is minor?” Does the noble and learned Lord define minor as “less than serious”?
Having taken a common-sense rather than legal approach, I thought that serious was the opposite of minor. They are at opposite ends of a spectrum, in the sense that black is the opposite of white, not just the next level up. There are 50 shades of grey, apparently, between black and white; anything lighter in tone than black is not white. To use another analogy, the definition of a serious injury is not “anything more than a minor injury”.
I am reminded of the story of a student at Oxford University where the rule was that cats could be kept as pets, but not dogs, so he called his dog “Cat”. Saying that “serious disruption” is “anything more than minor” does not make it serious, even if the noble and learned Lord wants to call it that.
Of course, if the Government want to ban all protest that prevents or would hinder individuals carrying out their daily activities to more than a minor degree, they should say that in the Bill. They should not try to disguise the fact by saying that anything more than minor is serious—that dark grey is white. More than a minor degree cannot reasonably be defined as serious. We will vote in support of Amendment 1 and, if necessary, against Amendments 5, 14 and 24.
Government Amendments 48 and 49 deserve additional mention, over and above their adoption of the noble and learned Lord’s definition of serious as anything more than minor.
The police are asking for clarity. Let me quote from Amendment 48. Among other things, proposed new subsection (3A)(c) states that
“(c) the senior police officer reasonably believes that one of the conditions in subsection (1)(a) to (b) is met in relation to the procession mentioned in paragraph (a), and (d) the senior police officer reasonably believes—(i) in relation to a procession mentioned in paragraph (b)(i), that one of the conditions in subsection (1)(a) to (b) is met in relation to the procession, or (ii) in relation to an assembly mentioned in paragraph (b)(ii), that one of the conditions in section 14(1)(a) to (b) is met in relation to the assembly ... (3B) The senior police officer may—(a) give directions under subsection (1) in relation to—(i) the procession mentioned in subsection (3A)(a), and (ii) any procession mentioned in subsection (3A)(b)(i) in relation to which the condition in subsection (3A)(d)(i) is met, and (b) give directions under section 14(1A) in relation to any assembly mentioned in subsection (3A)(b)(ii) in relation to which the condition in subsection (3A)(d)(ii) is met.”
I am not sure that is the clarity the police are seeking.
These amendments go far beyond a too-weak definition of “serious disruption”. In considering whether a protest may result in serious disruption, the senior officer must have regard not just to the protest they are considering but to any other protest being held in the same area, even if they are organised by different people, involve different people, or
“are held or are intended to be held”
on the same day. The next thing the police will be telling protesters is that they cannot protest in central London because “There have been a couple of protests this month already”.
What is more, the police can define what “in the same area” means. When the police were given powers to designate a delimited area for a limited time for stop and search without suspicion under Section 44 of the Terrorism Act 2000, they designated the whole of London every day for years. There is nothing in these amendments to stop the Metropolitan Police, for example, designating the whole of London as the area in which the cumulative impact of protests needs to be taken into account.
The police are asking for clarity, so can the Minister please explain proposed new subsection (2ZH)(a), to be introduced by Amendment 48? What does
“all disruption to the life of the community … that may occur regardless of whether the procession is held”
mean? How can the life of a community be disrupted if a procession is not held?
These amendments would give the police extraordinary new powers to limit where, when and for how long marches and assemblies can take place, even if the protest is going to be peaceful and is not itself going to cause serious disruption, but, taken together with others in the area, even on a different day, may cause serious disruption. They would also allow the police to define what “area” means. These are yet more totally unjustified, unreasonable and excessive powers being given to a police service that no longer enjoys the confidence of large parts of society. We will vote against the amendments.
Baroness Fox of Buckley (Non-Afl)
My Lords, we genuinely saw a demonstration there during an argument about what might constitute a “serious” or “minor” disruption. We could argue for ages whether it was “serious” or “minor”, but one thing I want to stress is why I support raising the threshold to the maximum and why I will support the amendments.
However, I want to ask the Minister, and the Government in general: who are the Bill and these amendments aimed at? Too much of the justification for the Bill that we heard in Committee, in newspaper articles since and in statements by Ministers, focused on the tactics of Just Stop Oil and Extinction Rebellion. Those organisations boasting that they wanted to maximise serious disruption to people’s lives to force and shock society into acting undoubtedly did not help those of us trying to be liberal about the right to protest. They did not exactly help my side of the argument, and I am certainly no fan of those tactics—but how on earth will the Bill confine itself to only those protesters? That is my point.
When we were talking earlier about serious disruption, the noble Baroness, Lady Jones of Moulsecoomb, made the point that those of us who get stuck in traffic jams know what serious disruption is. She used the point to illustrate that she feels there are too many cars on the roads, but in London—and not only London—there are lots of disputes concerning low-traffic neighbourhoods. Local people will tell you that, because the councils have put up obstacles and bollards on local roads, journeys that once took 15 minutes often take an hour and a half, and that that often goes against public consultations.
Baroness Butler-Sloss (CB)
My Lords, I would have thought that the necessity for the Lord Speaker to retire for five minutes might be termed a “serious disruption” of the working of this House. However, the point I want to make, briefly, concerns the use of the phrase “capable of causing”. According to Amendment 48, a senior police officer will make the decision. What on earth will he base the decision on? It would certainly be easier with Just Stop Oil or Extinction Rebellion, but, as we know, there are many other processions and disturbances—particularly in London but right around the country—that he would not know to what they were leading or what they would be like. How on earth is he to assess whether they are capable of causing serious disruption? I find the issue very difficult to understand. I hope the Minister will explain what is really meant by a police officer deciding what is “capable of causing” serious disruption.
Baroness Chakrabarti (Lab)
My Lords, it is a pleasure to follow the noble and learned Baroness, Lady Butler-Sloss, and a daunting privilege, as always, to follow the noble and learned Lord, Lord Brown of Eaton-under-Heywood. My views on the necessity and desirability of this proposed anti-terror-style legislation are no secret. But whether noble Lords are for or against this Bill—whether they are for or against its new offences, including thought crimes, stop and search powers, including without suspicion, and banning orders, including without conviction—all noble Lords must agree that the concept of “serious disruption” has been used throughout the Bill as a justification and trigger for interferences with personal liberty.
So, “serious disruption” should be defined. However, His Majesty’s Government resisted any definition at all, all the way through the Commons stages of the Bill and in this House, until this late stage, notwithstanding attempts by some of us on this side to provide a single overarching definition very early on, in Committee, and despite even senior police requests for clarity. What a way to legislate, bearing in mind that we are here at all only because of late amendments to last year’s bus—sorry, Bill—the police et cetera Bill, which would have had this whole Bill dropped into it, again at a very late stage.
Just over a week ago, via a Sunday afternoon No. 10 press release—because No. 10 press officers never rest on Sundays—and with no amendment even attached to that press release, we learnt that there was to be some sort of definition so that
“police will not need to wait for disruption to take place”.
The government amendments and signatures to amendments from other noble Lords were not published until about 24 hours later, so there was a whole media round of debate the next morning—this was before the conviction of Police Constable Carrick—concerning unpublished amendments. I hope that the Minister will tell us when he first knew about this new approach of having a definition, and why it was heralded by press release rather than discussion in your Lordships’ House.
As for the substance of the issue, government amendments are confusingly piecemeal and set the bar too low before a number of intrusive police powers and vague criminal offences kick in: “more than minor” hindrance is not serious disruption. More than minor is not serious enough. They cannot be serious.
I face more than minor hindrance in congested London traffic every day or even when walking through the doors and corridors of your Lordships’ House at busy times. The definition of civil nuisance at English common law involves “substantial interference” with the use and enjoyment of my property. Should it really be harder to sue my neighbour for polluting my private land than it will be under the Government’s proposal to have my neighbour arrested for protesting against pollution in the public square? Obviously not—or at least, not in a country that prides itself on both civil liberty and people’s ability to rub along together and even disagree well.
Instead, the single overarching and more rigorous Amendment 1 defines “serious disruption” as
“causing significant harm to persons, organisations or the life of the community”.
That is the overarching definition, and it includes “significant delay” in the delivery of goods and “prolonged disruption” of access to services, as set out in the Public Order Act 1986. To help the noble Lord, Lord Pannick, the concept of prolonged disruption is already in the 1986 Act as amended by last year’s bus, the police et cetera Act, so that is not a novel concept. We are really talking about significant harm instead of more than minor hindrance. I urge all noble Lords, whether they are for or against the Bill in principle, to vote for that.
Lord Hope of Craighead (CB)
I would like to speak next because my amendments have been mentioned and it is probably best that I explain what they are. I stress that the amendments under discussion are not my amendments: they are Amendments 5, 14 and 24 in this group, which substantially repeat amendments I tabled in Committee. There is a certain amount of revision of the words but essentially, I am making the same point as I did in Committee. They seek to give effect to a recommendation by the Constitution Committee, of which I am a member. I am grateful to the noble Lord, Lord Faulks, who, as I speak, is still a member of that committee, for adding his name to the amendments.
The committee noted that the three clauses concerning locking on, tunnelling and being present in a tunnel—the offences that are the target of my amendments—use the term “serious disruption” to describe the nature of the conduct that the Bill seeks to criminalise. The committee noted that this could result in severe penalties, such as providing the basis for a serious disruption prevention order, and took the view that a definition should be provided. On that issue, I think there is a wide measure of agreement across the House—perhaps with the exception of the noble Lord, Lord Paddick—that a definition is needed because of the nature of these offences and the consequences that follow from them.
Lord Paddick (LD)
I would like to clarify that I wholeheartedly support Amendment 1, which is a definition of “serious disruption”.
Lord Hope of Craighead (CB)
So there is agreement that a definition is needed because of the nature of the crime and the consequences that follow from it. The committee noted that a definition was given in Sections 73 and 74 of the Police, Crime, Sentencing and Courts Act 2022, to which the noble Baroness, Lady Chakrabarti, has referred. Those sections deal with the imposition of conditions on public processions and public assemblies. The amendment in the name of the noble Lord, Lord Coaker, seeks to adopt the same definition for the purposes of the Bill.
Baroness Chakrabarti (Lab)
I am sorry to be a hindrance to the noble and learned Lord, although I hope no more than a minor hindrance. The concept of “prolonged disruption” is a tiny part of the definition, but my noble friend Lord Coaker’s Amendment 1 does not replicate the definition in Section 73 of the 1986 Act. The new overarching principle that we would introduce with Amendment 1 is
“significant harm to persons, organisations or the life of the community”,
and that is not in the 1986 Act. It is not the provision that is limited in that Act to processions or indeed assemblies.
Lord Hope of Craighead (CB)
I am grateful to the noble Baroness and accept her correction. Of course the catalogue that follows is very much the catalogue that we see in the 2022 Act, and it was that which took our attention in the committee. Our view was that the definition is not suitable for use in the Bill because of locking on and, especially, tunnelling. The committee said that the definition should be tailored to the very different defences with which we are concerned in the Bill, and recommended that the meaning of the phrase should be clarified in a proportionate way—for a reason that I will come back to, because the noble and learned Lord, Lord Brown of Eaton-under-Heywood, mentioned that point—in relation to each offence. That is what my amendments seek to do. I suggest that they are more in keeping with what the Constitution Committee was contemplating than the amendment by the noble Lord, Lord Coaker.
I have tried to provide definitions that are tailored to each of those three offences and are short, simple, proportionate and easy to understand. After all, this is a situation where guidance is needed for use by all those to whom the offences are addressed. That audience includes members of the public who wish to exercise their freedom to protest; the police, who have to deal with these activities; and the magistrates, before whom most of any prosecutions under these clauses will be tried.
At the end of my speech in Committee, my aim was to invite the Minister and his Bill team to recognise the importance of the issue and, if my amendments were not acceptable, to come up with a more suitable but just as effective form of words. As noble Lords can imagine, as we so often issue invitations of that kind and those words were uttered more in hope than expectation, it was rather to my surprise that on this occasion my hope was realised when the Bill team began to take an interest in what I was seeking to do. I am grateful to them and to the Ministers in the other place and in this House for the discussions that then followed, which helped me to improve and finalise my wording. I cannot claim that I have found an absolutely perfect solution, but I think what I have done is achieve the best that can be done. Certainly, it is very much better than the alternative that is before your Lordships.
Lord Paddick (LD)
My Lords, the noble and learned Lord says that “more than minor” is “significant”. Would he say that “more than minor” is not “serious”; it is “significant”?
Lord Hope of Craighead (CB)
These are the words we are dealing with. “Significant” is the word in the Amendment 1 and it is defining “serious disruption”, but we are trying to find words that define what we mean by “serious disruption” in the case of these three offences, which is my point. I come back to the point that the important word is “more”, because I am trying to establish the threshold at which it is right that the police should intervene. The problem with “significant”, of course, is that can mean different things to different people in different contexts.
Baroness Chakrabarti (Lab)
I think the difference between us is that the noble and learned Lord is suggesting that there is a binary: there is “minor” and there is “significant”, and therefore anything “more than minor” must be “significant” or—forget “significant”—“serious”. To understand the intention behind our amendment, one needs to think about “significant harm”—“harm” as in damage. Harm and damage, and significant harm and damage, are well understood in the law, as he knows. As for his concerns about the long list, it is a replication of provisions previously in the 1986 Act for assemblies and processions. To reiterate, it is a non-exhaustive list of examples. The crucial part of our definition is “significant harm”. I think an ordinary person on the street would understand “significant harm” as more serious a minor hindrance or one iota more than a minor hindrance.
Lord Hope of Craighead (CB)
I was looking to identify the threshold at which one reaches the point where, on my approach, one moves beyond a minor disturbance to something that becomes significant. That is why I use “more” for the point at which, I suggest, given these particular offences, it is right that the police should then intervene. I asked the question: once one reaches that point, in the case of the tunnelling, why should that go on and on? People are arguing about whether we have reached the stage where the harm is caused is significant without the further guidance of being directed to the point at which it becomes significant.
The problem with the words that the noble Baroness is addressing to me is that they can mean a range of things within the compass of the word “significant”. I am trying to direct attention to the particular offences and consequences that follow from the activities being carried on. That is why I suggest that “more” is the most important and significant part of my formula.
As for locking on, the other of the three offences, I do not have a long catalogue of things that may be affected. There is always a risk that something might be missed out, so I have tried to capture what is put at risk by the omnibus words “their daily activities”. But here again, the threshold that I am seeking to identify is to be found in the words
“more than a minor degree”,
for the reasons that I have explained. Again, the question is: why should the police wait any longer once that threshold is reached?
I come back to the point about proportionality that the noble and learned Lord, Lord Brown of Eaton-under-Heywood, mentioned, and the reasonable excuse point. Proportionality is very important and the threshold has to be put into the right place, because we need to consider at what point the interference with the convention rights of freedom of expression and freedom of assembly and association becomes disproportionate.
In its judgment in the recent Northern Ireland abortion services case, delivered last December, the Supreme Court said in paragraph 34:
“It is possible for a general legislative measure in itself to ensure that its application in individual circumstances will meet the requirements of proportionality … without any need for the evaluation of the circumstances in the individual case”.
In other words, there is then no issue for a jury to consider or a magistrate to address his or her mind to; it will have been sufficiently addressed if the issue identified in the legislation is in the right place.
As to whether that is so, some guidance can be found in a decision of the Grand Chamber of the Strasbourg court in a Lithuanian case called Kudrevičius in 2015. That case was about a demonstration by farmers, of which a number have happened in recent years. They had gathered in a number of groups to block the traffic on a number of public highways. The court said that in that case the disruption of traffic that resulted could not
“be described as a side-effect of a meeting … in a public place, but rather as the result of intentional action by the farmers”—
in other words, they were intending to disrupt the highway—and that
“physical conduct purposely obstructing traffic and the ordinary course of life in order to seriously disrupt the activities”
of others, the court said,
“is not at the core of”
the right to freedom of assembly. That in itself, however, was not enough to remove their participation entirely from the scope of the protection.
That is the background for what the court then decided. It said that “Contracting States”, which included ourselves,
“enjoy a wide margin of appreciation in their … taking measures to restrict such conduct”
and that the farmers’ intention—a serious disruption of the highways to a more significant extent
“than that caused by the normal exercise of the right of peaceful assembly in a public place”—
was enough to enable the Court to conclude that the criminal sanction which was imposed there was not disproportionate. That is an example of a case which went across the border from being a side-effect of what was happening to something that was a deliberate obstruction of traffic, which is what locking on is all about, and a deliberate interruption of, let us say, the HS2 development, which is what the tunnelling is all about.
My approach also has the support of a decision by the Divisional Court in March last year in a case called Cuciurean. That case was about tunnelling. It affected only a small part of the HS2 project, it lasted for only two and a half days and the cost of removal was less than £200,000. However, the prosecution for aggravated trespass was upheld as not amounting to a disproportionate interference with the protester’s rights. I am sorry to weary your Lordships with those references, but, having looked at those and other case law, I believe that the position I have adopted in these amendments strikes the correct balance for the proportionate treatment of the rights we are talking about.
Of course, I hope that the noble Lord, Lord Coaker, will not press his amendment—although I have no doubt he will feel he should—because I believe it is not fit for purpose. It is not right to introduce a general definition of that kind, which is perhaps all right for one of three offences but is completely out of place for the other two. It is not good legislation. We try in this House to improve legislation. With the greatest respect to the noble Lord, I do not think his amendment improves it. On the contrary, I suggest that my amendments do improve it and, when the time comes, if I have the opportunity to do so, I will seek to test the opinion of the House.
Baroness Jones of Moulsecoomb (GP)
My Lords, I admire the noble and learned Lord, Lord Hope, for trying to convince us. I support and have signed Amendment 1. I cannot argue the law—I cannot argue how many angels dance on the head of a pin—but I can question the politics. My concern about the politics of the whole Bill is that the Government are seeking to be “regressive” and “repressive”—these words have been used. This is nasty legislation.
You have to ask: is it appropriate for a few dozen protesters? Is this heavy-handed legislation appropriate for that number of people who occasionally disrupt our lives? I would argue that it is not. It is almost as if this legislation is perhaps designed instead to prevent millions of people protesting, because the Government know they have lost the confidence of the public in Britain. In a recent poll, two-thirds of people thought that the Government were corrupt. That suggests that any legislation this Government try to bring in is possibly not very well designed for the majority of people in Britain. They are giving very heavy powers to the police when we have already seen that the public do not trust the police, and they are giving more powers to Ministers—and we do not trust Ministers.
It is very heavy legislation. I am worried that the Government are actually bringing legislation for when there are general strikes and hundreds of thousands of people on the streets protesting about the collapsing and soon-to-be privatised health system or the fact that everybody’s pay is getting squeezed apart from the pay of the bankers and the wealthy. I worry that they are bringing in these laws for far more people that just the protesters. Quite honestly, who would not agree with Insulate Britain? It is the smartest thing we can possibly do if we are worried about our energy crisis. So it seems that the Government are not really focused on the protests we have had so far; they are focusing on protests we might have in the future.
We are going to vote very soon on whether to declare a protest illegal if it disrupts somebody. The whole point of protest is that it disrupts life to some point, so that you notice and start debating it and it gets reported in the newspapers. It is incredibly important, in a sense, that protest is disruptive. I heard the noble and learned Lord, Lord Hope, say that Amendment 1 was not suitable, but I have taken advice from lawyers and I think it is entirely suitable, so I will be voting for it. My big concern in this House is that we have a Government who are simply out of control. They talk about protesters being out of control, but it is the Government who are out of control.
Lord Faulks (Non-Afl)
My Lords, as the noble and learned Lord, Lord Hope, said, the Constitution Committee considered that a definition of “serious disruption” would be useful. I think there is a measure of agreement around the House that it would be, but the debate is about how best to define it. The amendment tabled by the noble and learned Lord, Lord Hope, to which I have added my name, is an attempt to provide that clarification. I can well imagine a court asking itself, “What is a serious disruption?”, and looking to see whether Parliament has given any help. None is provided at the moment. So I welcome that the Government have accepted, albeit somewhat at the 11th hour, that a definition will be useful.
Amendment 1, moved by the noble Lord, Lord Coaker, and which has the support of others who have already spoken to it, places the bar high. When combined with the necessity of proving not only intention or recklessness on behalf of the putative offender but the absence of a reasonable excuse, which—if the amendment tabled by the noble Baroness, Lady Chakrabarti, is accepted—is a prerequisite before you get to the other elements in the offence, it seems to me that, with all those requirements combined, it would be very difficult, if not impossible, to establish that an offence had been committed. That may well be the underlying purpose behind the combination of amendments. The opposition parties may not approve of the legislation, and, if they cannot get rid of it altogether, they may wish to emasculate it to such an extent that, practically, it cannot be relied upon. That is a perfectly tenable point of view, but not one that I share—and neither do the general public, I think, having seen the effect of some recent demonstrations.
The definition proposed by the noble and learned Lord, Lord Hope, does not place the bar as high as the noble Lord, Lord Coaker, does in his amendment. The former provides for an act that
“will result in, or will be capable of causing, serious disruption if it prevents or would hinder to more than a minor degree”—
he emphasised that last phrase—
“the individuals or the organisation from carrying out their daily activities.”
Clearly, that would exclude mere inconvenience, but it would include “disrupting”—that is an important word—people going to work, hospital, a funeral or a sporting event or taking a child to school; in other words, their “daily activities”. If they were inconvenienced only to a minor degree, that would not be a serious disruption, but the amendment tabled by the noble and learned Lord, Lord Hope, would, I suggest, be a useful guide to courts in determining what amounts to a serious disruption. If it is suggested that it sets the bar too low, we should bear in mind those additional requirements: mere accidental interference is not enough. We should bear in mind, too, how those are bespoke amendments to deal with locking on or tunnelling; they are not general or vague attempts to raise the bar to a particular level.
I also think the opposition parties may wish to bear in mind what the Labour Party shadow Justice Secretary said in connection to this:
“Our brave emergency services are being held up from helping those in distress, and lives have been put at risk. On top of that, the public has been stopped from going about their everyday business.”
I do not suppose that the Opposition would wish to disassociate themselves from that. It seems entirely consistent with the amendments tabled by the noble and learned Lord, Lord Hope, on serious disruption—and, when we come to them, on “reasonable excuse”.
Of course, I entirely accept that the right to protest is fundamental, and we must, as citizens, be prepared to put up with inconvenience caused by those exercising that important democratic right. We may find it noisy and annoying—depending on how much we sympathise with the cause, even very annoying—but that would not be enough to be a serious disruption. It must be something more than annoying, but less than the very high hurdle which must be surmounted by the wording of the amendment moved by the noble Lord, Lord Coaker. Ultimately, it may come down to whether your Lordships consider that the right to protest is so fundamental that it must trump the rights of ordinary people going about their everyday lives. It is a difficult balance to strike, but although I profoundly respect the right to protest and have sympathy for many of the relevant causes, it seems to me that one has to counterbalance that with the rights of others to go about their lives—those rights are entitled to protection, too, and this amendment attempts to achieve a balance between those respective rights.
Lord Anderson of Ipswich (CB)
My Lords, I am also glad that your Lordships’ House is trying to explain for the benefit of protesters and police what is meant by “serious disruption”, even if we are not finding it very easy.
I will start with the new tunnelling offences in Clauses 3 and 4, which, as I said in Committee in support of the consistent approach of the noble and learned Lord, Lord Hope, are in a very particular category. The key point, recognised in Amendments 14 and 24, is that the disruption liable to be caused by tunnelling is not to the general public but to construction or maintenance works. Delays to the delivery of time-sensitive products, and prolonged disruption of access to a rather specific range of goods and services specified in Amendment 1 of the noble Lord, Lord Coaker, are not really to the point. The one-size-fits-all approach in Amendment 1 is neither designed for nor appropriate to the tunnelling offences. I would add that to require disruption to be “more than minor” in order to constitute the new offences seems quite sufficiently generous to tunnellers who are seeking to disrupt those engaged in lawfully organised works. That is why I put my name to Amendments 14 and 24 and shall support them if they are put to a vote.
The arguments are more finely balanced in relation to Amendment 5. The locking-on offence, as the noble Lord, Lord Coaker, has said, can be constituted by a remarkably wide range of actions. I am wary of a test that is too easy to satisfy, bearing in mind that serious disruption, or the prospect of serious disruption, is the trigger for the no-suspicion stop and search power, and for SDPOs, the whole existence of which is controversial, at least to me. But I take comfort from the fact that, as the noble and learned Lord, Lord Hope, has explained, hindrance to the public needs to be significant before it can meet the test of being more than minor. Indeed, “significant”, not “substantial”, is the very word used in Amendment 1 when it refers not only to “significant harm” but to “significant delay”.
The recent Policy Exchange briefing, to which the noble Lord, Lord Coaker, referred, complains that the “more than minor” test may be interpreted in the light of the Strasbourg case law
“so as to maximise the space for protest”.
I agree that it will have to be interpreted in conformity with the ECHR. Policy Exchange seems dismayed by that; I am rather encouraged by it. When the definition offered by the noble and learned Lord, Lord Hope, is criticised from one side for being too easy to satisfy and from the other for being too difficult to satisfy, perhaps it is not too wide of the mark, even in this more sensitive context.
My main point is that whatever view noble Lords may take of Amendment 5, the case for Amendments 14 and 24 is a strong one. I hope we will have the chance to vote for them.
Lord Brown of Eaton-under-Heywood (CB)
Before my noble friend sits down, would he agree that there is no particular reason why Amendment 1—although plainly it would pre-empt Amendment 5—should pre-empt Amendments 14 and 24?
Lord Anderson of Ipswich (CB)
I believe the Deputy Speaker so directed at the outset of this debate—but I will be corrected if I am wrong about that.
Lord Berkeley of Knighton (CB)
My Lords, I would like to ask the noble Lord, and not from a musical perspective, whether if we change the words “more than minor” to “major” we might not make some progress, because surely that is what they mean.
Lord Anderson of Ipswich (CB)
I am conscious that an expert musician will certainly know the difference between minor and major. I take refuge in the fact that there is no such amendment before us, so perhaps I do not need to answer that today.
Lord Pannick (CB)
My Lords, the right to protest in a democracy is of central importance, but I cannot see that there is much of a right to glue yourself to another person or object in order to disrupt the daily lives of other people. That is what we are talking about here. There are many ways of protesting in our democracy without locking yourself on—without disrupting the lives of others. The conduct with which these clauses are concerned is very often, as the noble Baroness, Lady Jones, accepted, for the very purpose of disrupting the lives of others. I think that such conduct should not be unlawful, as Amendment 1 proposes, only if it causes prolonged disruption.
Preventing people going to work or taking their children to school or relatives to hospital should be unlawful. That is, as far as I can see, more at the minor end and sufficiently strong to outweigh the interests of the protesters, as the cases cited by the noble and learned Lord, Lord Hope, demonstrate.
I suggest that the House bears in mind one further point. There is a danger, when we consider all these amendments, that we do so by reference to protest with which we may sympathise—maybe environmental causes. But the protest may also be by those whose causes are far less attractive and far more damaging to a democratic society. Such protesters may also decide to lock on, and the law needs to deter and penalise them.
Lord Hogan-Howe (CB)
My Lords, I would like to think about how we got here. First, there has been a series of events over the past few years during which people criticised the police, the CPS and the Government for not intervening when people were seriously disrupted. That is why we are having this debate. We could go through various cases, whether it is Heathrow, the M25 or the taxis around Parliament Square, when the drivers were kind enough to leave a lane around the outside; that was their decision, a point I shall come back to. Therefore, people have complained that the police have not been intervening.
One reason why the police have not been intervening concerns the offence that they usually rely on: obstruction of the highway, which is a very simple and absolute offence. There is no intent to be proved; all that needs to happen is obstruction of the highway. The Supreme Court has had to consider that simple offence, and it concluded that there was more to consider than whether the highway was blocked. It asked whether there was an alternative route and other action could have been taken by the police. There was lots of talk about intent in respect of what is really a very simple offence. Usually the penalty is a fine; very rarely is imprisonment imposed.
The second reason why this issue is having to be considered is that the public have got angry and sometimes started to take action themselves when the police have not, which is always dangerous. We can all recall seeing film of someone sat on the top of a tube carriage and the crowd dragging him off. That is very dangerous for everybody involved—a terrible situation, and it should not happen. We have seen cases where the motorways have been blocked, and the people at the front have started to intervene because they are fed up with waiting. It appears that nobody is going to do anything and, in any case—
Baroness Fox of Buckley (Non-Afl)
Certainly in Committee, the point was made—and I wonder what the noble Lord felt about it—that this was a crisis of policing, with the police not enacting laws we already have. It is entirely fair that the public have got frustrated, demanding that something should be done. If the police are uncertain what to do with a huge armoury of public order offences that could be used and sometimes are used, but in a fairly arbitrary fashion, why will giving them more powers and laws solve the problem of not using the ones they already have? That will disillusion the public even more with the whole process of criminal justice.
Lord Hogan-Howe (CB)
The noble Baroness makes a good point. I was going to come on to a point that she made, but the point the police are making is that, if there is a lack of precision around something as simple as obstructing the highway, can we help them? People have alluded to the fact that the police have asked for help, and that is one of the things Parliament can do: explain more clearly how obstruction can be a protest that is beyond the criminal boundary, particularly when political motives are involved. Generally, the police will try not to get involved in that, which why they are seeking help in asking for more legislation, rather than less, although in general I think they would say that they do not need any more legislation.
The noble Lord, Lord Coaker, explained very well why he would like to approach this issue in a different way. The problem I have with his amendment is that it refers to a “prolonged disruption”, as the noble Lord, Lord Pannick, said. I particularly do not like its reference to health. What if someone is having a heart attack or another very serious medical issue that involves minutes rather than hours—or days, in some cases?
Baroness Chakrabarti (Lab)
Just to be clear one more time, prolonged disruption is just an example. One does not need prolonged disruption for significant harm to be caused to a person, an organisation or the life of the community. I cannot think of a more significant harm than a person with a heart attack not being able to be transported in an ambulance.
Lord Hogan-Howe (CB)
That is what the amendment says: “prolonged”.
Who is going to decide? The noble Lord, Lord Paddick, made this point: people may have lost confidence in the police, for reasons that we understand. However, the alternative appears to be that we leave it in the hands of the protesters to decide how long they will stay. That is unacceptable. If the state is going to have a view on these matters, it is for the state to decide, not the protesters. Of course they will have a view, which may be different, but they have to take the consequences if they get that line wrong. That is not happening at the moment.
The noble Baroness, Lady Jones, said that we could all be disrupted. She has often made that point and I have often disagreed with her. She says that we are always disrupted every day, certainly in London—not the rest of country, frankly—by congestion and, therefore, why should we criminalise protest that only does the same thing? I hope that I am fairly representing her argument.
Lord Hogan-Howe (CB)
Nearly. Pollution kills people but we are not trying to legalise unlawful killing. One could pursue that argument to its logical extent, but I do not accept that someone intentionally blocking someone else’s path is the same thing as someone suffering the consequences of congestion. I expect that the noble Baroness is going to say something.
Baroness Jones of Moulsecoomb (GP)
In a disruption, people can turn off their engines. In traffic, they keep them running.
Lord Hogan-Howe (CB)
I am sorry—I was looking at my notes and missed that. Would it be terrible if the noble Baroness repeated it, so that I can properly respond?
Baroness Jones of Moulsecoomb (GP)
The noble Lord is so profound. I said that when there is disruption, people know that it is going to last some time, so they can turn off their engines. What happens in traffic is that people leave their engines running, which is, of course, highly polluting, as he said.
Lord Hogan-Howe (CB)
But the protesters could leave. It is in their gift—I think.
Baroness Jones of Moulsecoomb (GP)
The Met Police, after the disruption on motorways into London, put out a tweet asking people to report instances of being unable to get their children to school, medical emergencies or whatever. The stream of replies after the tweet was nothing to do with people objecting to the disruption; they were supporting the action. So the Met Police might have got that slightly wrong.
Lord Hogan-Howe (CB)
My final point is that although I cannot support the amendment of the noble Lord, Lord Coaker, for the reasons I have explained, I support the amendment of the noble and learned Lord, Lord Hope. However, the challenge made by the noble Lord, Lord Paddick, is that “minor” sounds intuitively contentious when referring to something serious, and it is an unusual bar by which to define something. The noble and learned Lord I think acknowledged that there may be more work to do on that.
Lord Hope of Craighead (CB)
I did stress that the word “more” is important. I agree that the word “minor” raises issues, but the “more” point is crucial to an understanding of my formula.
Lord Hogan-Howe (CB)
I accept that point and I would of course never tangle with a lawyer. However, I am just saying that at an intuitive level, even describing something as “more than minor” may be a concern and there may be a different form of words. In fact, I thought that noble Lords might have been able to group around the form of words the noble and learned Lord used in his speech, be it “significant” or “major”, as was suggested. It may be that we broadly agree that “serious disruption” is not okay. That is why we are struggling to find the exact definition in the amendments.
Finally, we should not leave the police with too many problems in terms of intent, recklessness or reasonable excuse. If we have a simple definition of an offence but then have to worry about intent or recklessness, the situation will, I suspect, become almost impossible and we will be back to where we started. That would be a concern.
Lord Davies of Gower (Con)
My Lords, I just gently remind the House of the rules of debate on Report, which say:
“On Report, no Lords Member may speak more than once to an amendment, except: the mover of the amendment”.
Intervening repeatedly on other Members is not really in keeping with the rules of debate on Report.
The Parliamentary Under-Secretary of State, Home Office (Lord Sharpe of Epsom) (Con)
My Lords, at Second Reading and in Committee there was much discussion on the meaning of “serious disruption”, and many noble Lords spoke to the need to provide a clear definition in the Bill. I thank all noble Lords who have participated in what has been a fascinating debate. At Second Reading, I agreed with many of the comments made by your Lordships and committed to take the matter away. What we are debating today is the matter of thresholds, as all noble Lords who spoke noted. The debate is not about whether these measures ban protests: quite simply, they do not, and I thank the noble Lord, Lord Coaker, for his comments emphasising that fact. We are trying to ascertain the point to which protesters can disrupt the lives of the general public. This Government’s position is clear: we are on the side of the public.
I thank the noble Lord, Lord Coaker, for tabling his amendment, which provides a definition of “serious disruption” for offences in the Bill. I agree with the purpose of his amendment but do not believe that the threshold is appropriate. The Government want to protect the rights of the public to go about their daily lives without let or hindrance. I do not believe that his amendment supports this aim; therefore, I cannot support it. I make no secret of what the Government are trying to do. We are listening to the public, who are fed up with seeing, day after day, protesters blocking roads: they make children late for school; they make people miss hospital appointments; and they make small businesses struggle. Any change in law must address this, and I do not believe that the noble’s Lord’s proposed threshold does.
In this vein, I turn to the amendments tabled by the noble and learned Lord, Lord Hope of Craighead, which also provide a definition of “serious disruption”, but for the specific offences of locking on, tunnelling and causing disruption by being present in a tunnel. His amendments follow the judgment handed down by the Court of Appeal following the Colston statue case. The court found that the right to protest does not extend to acts of criminal damage that are violent or where the damage is to more than a minor or trivial degree:
“We cannot conceive that the Convention could be used to protect from prosecution and conviction those who damage private property to any degree than is other than trivial.”
We agree with the judiciary and believe that this threshold should be consistent across the statute book. Although the court concerned itself with the matter of damage to private property, the same principles apply to obstructing the public from enjoying their right to go about their business without hindrance. That is why the Government support the noble and learned Lord’s amendments; I am very pleased we were able to surprise him in that regard. They provide a threshold for “serious disruption” that is rooted in case law. I thank him for tabling this amendment and, indeed, for explaining it in such a detailed and precise way. It provides both clarity to the law and a threshold that addresses the public’s frustration with disruptive protests.
I will now speak to government Amendments 48 and 49. The Commissioner of the Metropolitan Police Service has asked for further legislative clarity on police powers to manage public processions and assemblies. These powers are conferred by Section 12 of the Public Order Act 1986 for processions and Section 14 for assemblies. They allow the police to place reasonable and necessary conditions on protests to prevent specific harms from occurring. One of these harms is
“serious disruption to the life of the community”.
These two amendments provide clarity to this phrase for both Sections 12 and 14. The noble Lord, Lord Paddick, was quite right in anticipating that I would be quoting Sir Mark Rowley, who said:
“I welcome the Government’s proposal to introduce a legal definition of ‘serious disruption’ and ‘reasonable excuse’. In practical terms, Parliament providing such clarity will create a clearer line for police to enforce when protests impact upon others who simply wish to go about their lawful business.”
These amendments, supported by the police, prioritise the rights of the law-abiding majority. First, they carry over the noble and learned Lord’s definition of “serious disruption”. Secondly, they define the meaning of “community”. Thirdly, the police may consider the absolute impact of the disruption caused to the public. Fourthly, they allow the police to consider the cumulative disruption caused by protests. Finally, they allow the officer responsible for managing the protest to place conditions on more than one connected procession or assembly. In answer to the comments of the noble Lord, Lord Paddick, that these are too complicated, I say that the Home Office will work closely with the NPCC and the College of Policing to ensure that appropriate guidance and training are developed. Mirroring the definition of the noble and learned Lord, Lord Hope, will provide consistency across the statute book. As I have said, this is welcomed by the police. I point out that the definition specifies that the disruption is caused by physical means only.
The noble Lord, Lord Coaker, raised in the Policy Exchange paper the use of “minor” in the definition. These amendments protect the daily activities of the public; it is clear that the public are fed up with the disruption caused by protesters, and that is what these amendments address. Many protests that do not disrupt the lives of others occur on a regular basis. The noble Lord, Lord Hogan-Howe, made a very good point: that we should not allow the protesters themselves to determine the scale of disruption. Many protesters are able to express themselves and place pressure for change without blocking roads.
Currently the term “community” is undefined. The police should be able to use their powers to protect anyone who is detrimentally impacted by serious disruption from protests, not just those who live, work or access amenities where the protest occurs. The police must consider the absolute disruption caused to the public, as opposed to the disruption relative to what is typical for an area. The measure will give officers the confidence that they can use to respond to disruptive protests, even in areas routinely subject to spontaneous disruption such as traffic jams. To prioritise the rights of the public, the amendment allows the police to consider the cumulative impact of protests and separate protests. It is wrong that the public must repeatedly put up with disruptive protests, in part because each time there is a new protest, the police must consider the level of disruption afresh and in isolation from what has previously happened and what may be planned. If multiple protests cumulatively ruin the daily activities of a community, they must be considered collectively. Following from this, if the police are to manage the collective impact of protests, they must be able to apply the conditions on separate but connected protests. For example, a large protest campaign made up of multiple small protests that disrupt a large area should be subject to blanket conditions. Allowing the police to consider the cumulative impact of protests by requiring them to manage each individually complicates the operational response unnecessarily. Collectively, these measures will allow the police to protect the public from the disruptive minority who use tactics such as blocking roads and slow walks. The public are clear that they want the police to protect them from these tactics. In turn, the police have asked for clarity and law to confidently and quickly take action and make arrests where appropriate. The Government have listened to both, and I hope this House does the same and supports the amendment.
I will speak collectively to the amendments tabled by the noble Lord, Lord Paddick. These measures do two things to the locking-on and tunnelling offences. First, they lower the threshold of the offence so that acts capable of causing serious disruption are not in scope. Secondly, they alter the mens rea so that only intentional acts, and not reckless ones, are in scope of the offence. It is clear that the public do not want to see police officers sit by while criminal protesters disrupt their lives; lowering the threshold would mean that the police will have to do so. Why should an officer stand by and watch someone lock on or dig a tunnel that is clearly going to cause serious disruption to the public? As for the mens rea, as I have said already, the Government are concerned with the disruption caused to the public. It does not matter whether it is caused recklessly or intentionally; what matters is the impact it has on people’s daily lives. For all these reasons, I encourage all noble Lords to support the amendments in the name of the noble and learned Lord, Lord Hope, and those by the Government and reject the others.
Baroness Butler-Sloss (CB)
Can the Minister deal with the issue of “be capable of causing” as opposed to actual disruption?
Lord Sharpe of Epsom (Con)
I did deal with that when I was talking a little about the tunnelling and locking-on offences. Why should the officer stand by and watch someone lock on or dig a tunnel that is clearly going to cause, or be capable of causing, serious disruption to the public? Certainly in terms of tunnelling, I think that is very clear.
Lord Coaker (Lab)
My Lords, I thank all noble Lords who have participated in this really interesting and thoughtful debate. I thank the Minister for his response. I do not want to go through every single contribution; I do not wish to be rude to anybody who I do not respond to, but I want to make and reinforce a couple of particular points. I totally agree with the noble Lord, Lord Faulks. I repeat that the attempt by this Chamber to define “serious disruption” on the face of the Bill, as the Constitution Committee asked it to do, is a really important step forward and to try and do. The debate between us is where we set the threshold and how we define “serious disruption”. Perhaps this debate should have taken place on the Bill a few months ago, but it is taking place now and is particularly important.
The Deputy Speaker (Baroness McIntosh of Hudnall) (Lab)
My Lords, in view of the fact that Amendment 1 has been agreed, for the convenience of the House, I remind the House that I shall not subsequently be able to call Amendments 5, 14 or 24, by reason of pre-emption.
Clause 1: Offence of locking on
Amendment 2
Baroness Chakrabarti
Member’s explanatory statement
This amendment makes the lack of a reasonable excuse a component part of the offence of locking on, thus placing the burden of proof upon the prosecution.
Baroness Chakrabarti (Lab)
My Lords, I first thank noble Lords; so too does Cole Porter from the grave, because “how strange the change” would have been from “major” to “just a little bit more than minor”.
This second group deals with the concept of “reasonable excuse”, which noble Lords will remember is present in a number of the new criminal offences in the Bill. As noble Lords have heard, some, including locking on in particular, are very vague and dangerous. I have some amendments, with the noble and learned Lord, Lord Brown of Eaton-under-Heywood, that attempt to set straight a reversed burden of proof, inappropriate in criminal law, where the Government have sought to place the burden on the innocent cyclist with the bike lock or the protester, or whoever, to demonstrate that they had a reasonable excuse when, really, the lack of a reasonable excuse should be a component part of the criminal offence and, indeed, something that a police officer considers before arresting someone.
The noble Lord, Lord Paddick, has said eloquently many times in your Lordships’ House that criminal offences need to be fit for purpose not just in a courtroom or even during a charging decision in a police station, but on the ground when an officer is considering who to arrest. Therefore, it is important that the lack of a reasonable excuse be a component, core part of the offence and not something that a hapless bystander or protester has to prove.
The noble Lord, Lord Paddick, will speak to other amendments in this group that he has tabled. I support all of them, whether my name is there or not; it is there in spirit. I would like to be clear about that and, similarly, with attempts to improve these offences and improve the definition of “reasonable excuse”. But, on account of time, I just want to focus on and prioritise the importance of not supporting the government amendments or, should I say, the amendments that Ministers have now signed in the name of the noble and learned Lord, Lord Hope of Craighead.
It seems harsh, to say the least, to single out “protest” from all the potential excuses that may or may not be reasonable in a particular case and a particular set of circumstances. Why single out protest as something that can never be reasonable? That seems to me to be an attempt to take proportionality out of the mind of a decision-maker—not just a court but a police officer on the ground. I think that is a mistake.
The noble and learned Lord, Lord Hope, will no doubt cite very leading authority on circumstances in which proportionality is so clearly part of an offence that there is no need for second guessing at the arrest or prosecution stage. But that will not be the case in relation to some of these offences and, I venture, locking on in particular.
I will not attempt to repeat the eloquence of my noble friend Lord Coaker with the various descriptions of linking arms, but the idea that an offence that can be committed with such trivial activity should not have an element of proportionality put in the mind of a decision-maker is of huge concern to me.
Without further ado, I commend the various amendments that I have described, but also ask noble Lords not to support any attempt to single out protest as the one excuse that is never reasonable. That seems rather unreasonable to me. I beg to move.
Lord Brown of Eaton-under-Heywood (CB)
My Lords, I support the noble Baroness on her amendments and am opposed to Amendment 8 from the Government and the noble and learned Lord, Lord Hope, which seeks to exclude and narrow down very dramatically the scope which, I submit, should be present in this offence for a defence of reasonable excuse.
Why should not a demonstration against measures concerning, for example, climate change as a question of fact and degree for the trial judge be adjudged reasonable, as was the case in DPP v Ziegler, which went to the Supreme Court. It is perfectly true and perfectly right that I should acknowledge this. Indeed, my noble and learned friend Lord Hope drew my attention way back at the end of last year to the latest Supreme Court decision, which he mentioned today with regard to group 1, in the Northern Ireland abortion case. It is a reference from the Attorney-General for Northern Ireland.
Lord Paddick (LD)
My Lords, I hesitate to participate in a legal argument when I am not legally qualified, particularly when I wrote this contribution in isolation at the weekend. However, there are two separate and distinct groups of amendments within this group. My amendments are about whether someone who has a reasonable excuse for their actions commits an offence or whether they should have a defence of reasonable excuse only once charged with the offence; in other words, does the reasonable excuse mean that they do not commit an offence, or should they be arrested and charged and only then have a defence of a reasonable excuse? The other amendments are about the definition of what amounts to a reasonable excuse.
On when reasonable excuse can be deployed, I have Amendments 7, 16, 26, 32 and 36 in this group, which are intended to have a similar effect to Amendments 2, 6, 11, 15, 18, 20, 25 and 34 in the name of the noble Baroness, Lady Chakrabarti. I am just as supportive of the noble Baroness’s amendments as of my own; in fact, bearing in mind that they have the support of the noble and learned Lord, Lord Brown of Eaton-under-Heywood, I am sure that hers are to be preferred. My amendments are designed to ensure that a person does not commit the offence to which the amendments refer if the person committing the act in question has a reasonable excuse for their actions, instead of, as currently drafted, if a person has a reasonable excuse, they can use it as a defence only once charged.
The offences to which my amendments apply are: locking on, in Clause 1; tunnelling, in Clause 3; being present in a tunnel, in Clause 4; obstruction of major transport works, in Clause 6; and interference with key national infrastructure, in Clause 7. For example, Amendment 16 provides that a person does not commit an offence if they have a reasonable excuse for tunnelling. In Clause 3, the Government give an example of a reasonable excuse as being
“authorised by a person with an interest in land which entitled them to authorise its creation.”
Surely someone properly authorised to construct a tunnel should not be arrested and charged with tunnelling and only then be able to deploy that defence, when they are clearly not guilty of that offence from the outset.
The Minister may argue that the police will use their discretion, but we saw the case of the accredited and documented broadcast journalist Charlotte Lynch, who, while reporting on a Just Stop Oil protest, was arrested, handcuffed and held in police custody for five hours for conspiracy to commit a public nuisance. Using their discretion to avoid the detention of innocent people is not the police’s strongest suit—at least, not in public order situations. Perhaps I should remind the House that I am a former police officer.
The Minister may say that the police have to be able to act quickly and decisively in public order situations, and that determining whether or not someone has a reasonable excuse is difficult in such situations. If he were to say that, is the Government’s position that innocent, peaceful protesters should expect to be arrested and detained by the police, even if they have a reasonable excuse for their actions? The chilling effect on people’s right to protest would make such a stance reprehensible.
The other amendments in this group relate to the limitation of what amounts to a reasonable excuse, and I broadly agree with what the noble and learned Lord, Lord Brown of Eaton-under-Heywood, has just said. Yet again the noble and learned Lord, Lord Hope of Craighead, has secured government support for his Amendments 8, 17, 18, 27, 28, 33 and 37. The Government seek to extend the proposed limitation to the offences of highway obstruction and public nuisance by means of Amendments 50 and 51 respectively, while the noble Lord, Lord Sandhurst, has come up with his own alternative, Amendment 55.
I was taken with the debate we had in Committee on this issue, as I said to the noble and learned Lord, Lord Hope, at the time. In summary, the noble and learned Lord suggested that, taken to its limits, provided that the reason for the protest was sufficiently serious, any criminal action, however serious, could be seen as reasonable. So, for example, if the purpose of the protest was to save the planet, surely nothing could be more serious and so protesters could argue that that gave them carte blanche to do whatever they wanted. Hence these amendments, signed by the Government, seek to remove any issue of current debate from constituting a reasonable excuse. The argument is that it is the legislature that should set out clearly the limits of reasonable excuse, rather than the courts, as recommended by the Constitution Committee.
In his letter of 23 January, the Minister cites two Supreme Courts cases, that of DPP v Ziegler and others, and, referenced by the Attorney-General for Northern Ireland, the Abortion Services (Safe Access Zones) Bill. As I keep saying, I am not a lawyer and I hesitate to offer a lay opinion, but in Ziegler the Minister rightly cites Articles 10 and 11 of the European Convention on Human Rights as offering some reasonable excuse for obstructing others. He then cites the judgment in the Northern Ireland case that, during a criminal trial, it is not always necessary to assess whether a conviction for an offence would be a proportionate interference with a defendant’s rights under Articles 9, 10 and 11. But my understanding is that this is the case only when the restriction of the exercise of convention rights is prescribed by the law in question, the law pursues a legitimate aim and the law is proportionate.
My understanding is that the protection of the European Convention on Human Rights does not need to be considered in a criminal trial if, and only if, the offence explicitly restricts those convention rights: for example, being present in an abortion clinic buffer zone; that the offence pursues a legitimate aim, the protection of women seeking an abortion in that case; and that it is proportionate—in that case, being limited to 150 metres around the clinic. For me, the question is whether the amendments in the name of the noble and learned Lord, Lord Hope of Craighead, meet the three tests cited by the Supreme Court in the Northern Ireland case. If the noble and learned Lord’s amendment were accepted, taking Clause 8 as an example, the restriction of a person’s convention rights by excluding issues of current debate from being a reasonable excuse would clearly be prescribed in law. That would be the first condition. It might even be considered to be pursuing a legitimate aim, in preventing someone from causing serious disruption by locking on, but I believe it fails in being disproportionate, in that it would apply to every attempt to exercise a person’s convention rights, no matter what the circumstances.
Take, for example, the march against the war in Iraq in February 2003, where the official estimate was 750,000 participants—the BBC reported that over 1 million people took part. The march brought central London to a standstill and, by any definition, serious disruption was caused. Are we really saying that the purpose of the march, in that case the war in Iraq, then an issue of current debate, should not have been taken into account by the courts when considering whether the protesters had a reasonable excuse for causing serious disruption? I accept that this is a serious issue, but I do not accept that this is a serious solution, in that it fails the Supreme Court judgment’s third test of proportionality.
As with the case of serious disruption in the previous group, I believe the noble and learned Lord, Lord Hope of Craighead, goes too far, as evidenced by the Government’s support for his amendments. In terms of “reasonable excuse”, that there should be no difference between a dozen extremists blocking the roads around Trafalgar Square—because, for example, they believe Covid is a myth—and 1 million people blocking the roads around Trafalgar Square in protest against the war in Iraq, because the issue of current debate about which they are protesting cannot be taken into account when considering reasonable excuse, cannot be right.
The other concern I have with the noble and learned Lord’s amendments is
“as part of or in furtherance of … an issue of current debate”.
Would a protest by the Flat Earth Society that caused serious disruption be permitted, because they could argue that they have a reasonable excuse for their actions and it was not an issue of current debate, but protesters in favour of additional support for families facing the cost of living crisis would not be able to access a reasonable excuse defence?
The amendment in the name of the noble Lord, Lord Sandhurst, seeks to overthrow the judgment of the Supreme Court in DPP v Ziegler and others. If my understanding of the noble Lord’s amendment is correct, no protest that inconveniences members of the public would be lawful, nor could there be any reasonable excuse for such conduct. Needless to say, we do not support the noble Lord’s amendment.
I accept the Constitution Committee’s recommendation:
“It is constitutionally unsatisfactory to leave to the courts the task of determining what might be a ‘reasonable excuse’ without Parliament indicating what it intends the defence to cover.”
However, it surely cannot be the case that Parliament wants the courts to ignore what the protest is about when determining what might be a reasonable excuse. As my commander said when I presented my solution for rotating police officers between uniform and CID, “I don’t know what the answer is, but this isn’t it”. We oppose these amendments.
Lord Faulks (Non-Afl)
My Lords, in the temporary absence of the noble and learned Lord, Lord Hope, from the Chamber, I speak to the amendments in his name, to which my name and that of the noble Lord the Minister have also been added.
The Constitution Committee, in its report published on 11 November 2022, considered the question of “reasonable excuse”—which is used, as has already been pointed out, in a number of contexts in this part of the Bill—and pointed out that it was not defined. It also said, at paragraph 14 of its report, that the offence does already
“require intent, which may render redundant the need for a ‘reasonable excuse’”.
The committee considered it unsatisfactory to leave to the court the task of determining what might be a “reasonable excuse” without Parliament indicating what it intends the defence to cover. Including a “reasonable excuse” defence invites arguments as to whether certain, but not other, political motivations might constitute an excuse. What the committee recommended was that that,
“unless a precise definition of ‘reasonable excuse’ is provided then the ‘reasonable excuse’ defence”
should be
“removed from Clauses 1, 3, 4 and 7”—
apart from anything else, in the interest of legal certainty.
This was a report from a committee looking at the constitutional aspects of the Bill. It included, as the House will know, Peers from all parties and none. I confess to some uncertainty as to what the Government can have intended by originally including a defence of “reasonable excuse”. If you cause serious disruption by attaching yourself to an object or land or otherwise locking on, as defined in the Bill, and you do so intentionally or recklessly, what could provide a “reasonable excuse” for doing so?
It seems to me that probably the only excuse that could be offered would be that your cause is a noble one: in particular, that you are concerned about the damage to the planet caused by climate change. I see the noble Lord, Lord Deben, taking a close interest in this debate, but I am not suggesting for a moment that he would be inclined to lock himself on—but that has been the stance taken by Extinction Rebellion and Just Stop Oil, as we know. It could be argued that any demonstration, however serious the disruption, is justifiable if it contributes in some way to putting extra pressure on the Government to take appropriate steps to, if not completely turn back climate change, at least substantially reduce its effect.
I suspect that “reasonable excuse” was put in the Bill in an attempt to ensure that the Bill then complied with the Human Rights Act: in particular, that it did not contain provisions that, in the light of the Supreme Court’s decision on Ziegler, might be said to be in breach of a demonstrator’s convention rights. The Ziegler decision has been controversial. Policy Exchange, in particular, in a number of publications has pointed out the flaws in the judgment, or at least the flaws in how the judgment has been interpreted.
Since the Supreme Court decision on Ziegler, there have been other cases which seemed significantly to water down its effect—the case of Cuciurean and the Colston statue case. However, the recent decision in the Northern Ireland abortion case, handed down in on 7 December 2022—after the Bill had progressed a long way in your Lordships’ House—has made it perfectly clear that Ziegler needs to be very substantially qualified. The ingredients of an offence can themselves ensure that it will be compatible with convention rights even if it does not include a defence of reasonable or lawful excuse.
It would be perfectly convention-compliant, in my view, to remove the defence of reasonable or lawful excuse altogether. I have to say that was my original preference, but I have been persuaded that it is better to retain the defence giving the possibility of a reasonable excuse that is restricted in the way the amendment allows. It would not be enough to say in relation to the offence that there is a worthwhile cause, such as combating climate change, and then to say that that is a reasonable excuse and have us ask a fact-finding tribunal, whether it be magistrates or even a jury, to give its views as to whether a reasonable excuse exists in the circumstances.
On the analysis of the relevant jurisprudence, the Supreme Court in the Northern Ireland case referred, among other cases, to the well-known animal defenders case decided in 2013. That case, and the European Court of Human Rights case law, shows that the state is granted a margin of appreciation in these areas. It would be a question of law rather than fact whether an offence sufficiently reflects the principle of proportionality. The prosecution will have to establish a serious disruption. It will also need to establish intention or, at least, recklessness. It seems entirely consistent with the Northern Ireland case that there is no need, as a matter of law, to provide for the free-ranging and imprecise defence of reasonable excuse.
The right to protest is extremely important. It is reflected in the ECHR, just as it was in the common law before the Human Rights Act was enacted, but this right should be balanced with the right of our citizens to go about their everyday life without interference. Inconvenience is something we should be prepared to put up with but where there is serious disruption involved, defined as the amendment which succeeded in the previous debate says, it should not be an answer for a defendant to say: my cause is so important that it trumps your right to go to hospital, to take your children to school or to go to work. This amendment is consistent with the law and with what the vast majority of the population would want.
Lord Skidelsky (CB)
My Lords, I support the amendments in the names of the noble Baroness, Lady Chakrabarti, and the noble and learned Lord, Lord Brown. They would require the police to prove that a person charged with an offence lacked reasonable excuse, rather than the person charged to prove that they had a reasonable excuse. In other words, they restore the presumption of innocence rather than guilt.
The presumption of innocence is not just an archaic legal point. The intricate legal arguments are worthy of great respect but I do not think they get to the heart of the matter. Presumption of innocence is a cardinal principle of a liberal society—a cardinal political principle. Governments and law-enforcement agencies are always disposed to believe that their citizens are potential lawbreakers, I am afraid, so placing the burden of proof on the police is an essential safeguard for civil liberties. That seems to me the crucial point because unless that cardinal political principle is there, you are reducing the extent to which the police are answerable to the courts—and lawyers should be very interested in that point. You are reducing their accountability to the courts and that is why, in systems such as those in Russia and China, there is very rarely an acquittal because the presumption is that the person charged with an offence is guilty. The bias is then all in favour of the conviction rather than the acquittal. It is on the basis that this group of amendments embodies a fundamental political principle that I support it.
Lord Deben (Con)
I wonder whether I could suggest to the House that we have to think a little beyond the precise legal issues we have been concentrating on. First, I was drawn into this discussion by a previous speaker—the noble Lord, Lord Faulks—but I would remind him of my constant demand that we should take seriously the words of the Green vice-Chancellor of Germany, who made it absolutely clear that behaviour which meant that ambulances could not get to hospitals and suchlike was unacceptable as well as counterproductive. I do not think anybody would suggest that I have ever been a supporter of that kind of thing, and I do not think the noble Lord would have said that.
However, the Government have to face two very important questions. The first is on the point referring to the march of a million people, which of its nature is bound to discommode large numbers of other people. But as somebody who voted against a three-line Whip and against the Iraq war, it seems to me that unless you can accept that something so appallingly wrong can result in large numbers of people saying, “Not in my name”, you really cannot run a democracy. That is absolutely essential, so I need to know from the Government how they would explain that their particular way of looking at this would not have made illegal a march against the Iraq war. If that is not covered, then it seems that any of us who happen to believe in some fundamental issues will find it very difficult to support the Government.
The second thing the Government have to explain is how they see the position in which this puts the police. I have to say this carefully, but the truth is that the police’s reputation is practically at its lowest ever. We have to ask whether this is the right moment, in any way, to put them in the small “p” political position of making these kinds of decisions. That is why I voted against that ludicrous thing we introduced, which was that you could be prevented from making a noise. The concept was that, somehow or other, the police were going to say that if your protest was too noisy, they could stop it before it was started. I have never been on a protest that was not noisy and meant to be so; its noisiness was essential. But we passed that provision, which was and is nonsense. It will never be imposed but the Government argued for it, so they are in a slight difficulty here. The argument I used against that was not only that it was barmy, which was obvious, but that it would put the police in an embarrassing position at a time when the police are themselves—
Lord Deben (Con)
If I can just finish that sentence—when the police are themselves in a difficult position. I give way to my long-lasting jouster.
Lord Howard of Lympne (Con)
Does my noble friend not agree that the insertion of the words in this amendment would place upon the police the initial duty of deciding what is or is not a reasonable excuse?
Lord Deben (Con)
I do not disagree, since that is what it says. I am merely saying that I want the Government to be clear about what they are doing by involving the police at what may not be the most sensible time.
The last thing I want to say to the Government is this. There are many serious issues which, in a democracy, we have to ask the Government and the Opposition to deal with. Some of those serious issues are not being satisfactorily dealt with and, in a democracy, there comes a moment when a Government have to say to themselves, “We are so unable to deal with this that we will have to accept that there will be a significant increase in the public demonstration against where we are”.
Baroness Meacher (CB)
The noble Lord, Lord Deben, has made some very important points, particularly in relation to the police. It is worth elaborating for a couple more sentences. The fact is that the police already have great powers to deal with demonstrations and simply do not use them, as he suggested—partly because the police do not carry a huge amount of trust. The fact is also that these demonstrations reflect a huge amount of feeling among the public, and the police do not wish to stand out against those very strong feelings. Adding further powers for the police is not going to be helpful because the police will simply not use them for the reasons that the noble Lord, Lord Deben, very brilliantly—as always—pointed out. My main argument against these powers is that there is no point in them. They are designed to frighten people not to go out on protests. The police do not want these powers; they know that they would not use them. Therefore, they should not be introduced by Parliament.
Lord Sandhurst (Con)
My Lords, I will speak to my Amendment 55. I am grateful to follow the speech of my noble friend Lord Faulks. My amendment addresses the legal difficulties caused by the judgment of the Supreme Court in 2021 in the case of Ziegler, in respect of offences in which it will be, and will remain, a defence for a person charged to prove that they had a lawful or reasonable excuse for the act in question.
The judgment in Ziegler concerned Section 137 of the Highways Act 1980, which makes it an offence for a person
“without lawful authority or excuse”
wilfully to obstruct
“free passage along a highway”.
The Supreme Court ruled that the exercise of the convention rights to freedom of expression and freedom of assembly and association—which might loosely be summarised as the right to protest—constituted a lawful excuse. This has the effect that, before a person may be convicted of obstructing the highway, the prosecution must prove that a conviction would be a proportionate and thus justified interference with that person’s convention rights. In practice, this has caused real difficulties for the police, who at times have appeared paralysed. It has made it difficult for judges to run trials fairly and for magistrates to reach decisions.
My amendment leaves in the word “reasonable”. It does not make it a strict offence to obstruct the highway. You can still do it if you have a “lawful authority or excuse”. What is to be judged in future would be the duration and nature of what is done, not the fact that you have what you consider to be a high motive—whether it is flat-earth or anti-abortion protesters, it does not matter. It is not about whether you are a good person, or you think you are a good person; it is about what you are actually doing and whether you are stopping ambulances and people going about their daily lives unreasonably and for too long.
The amendment means that conduct being intended or designed to influence government or public opinion will not, of itself, make it reasonable or lawful. That is consistent with the jurisprudence of the Strasbourg court. I stress that the court has said:
“In a democratic society based on the rule of law, the ideas which challenge the existing order and whose realisation is advocated by peaceful means must be afforded a proper opportunity of expression”.
However, the law protects only the right to peaceful assembly. Articles 10 and 11 of the convention establish that public authorities are entitled to interfere with the right to protest for legitimate purposes such as the prevention of disorder, the prevention of crime and—importantly—the protection of the rights and freedoms of others. It is not about stopping every march, but about stopping prolonged obstruction. That is what we are about.
The Strasbourg court has gone on to rule that the rights of the public include the right to move freely on public roads without restriction, so there are two rights here; you have a right to protest, but the general public also have a right to move freely on public roads without restriction. It is a balancing exercise. The court has further recognised that states have a wide margin of appreciation in determining necessity when it comes to taking action against those who deliberately disrupt traffic or other aspects of normal life.
The right to protest in a public place exists, but it is not unfettered. It must be balanced against the rights of your fellow citizens. If the public are to be protected in the face of these novel types of protest we have not seen before, which in their duration and nature go far beyond what is fair and reasonable, the police must be able to intervene and not be paralysed by anxiety. Peaceful assembly and ordinary marches will still be protected. The public will still have to suffer and tolerate a measure of inconvenience and delay, but that will be within bounds.
My amendment would end the state of affairs in which persons who obstruct the highway, damage property or seek to avoid arrest can distort and upset the proper balance by asserting their motive. Peaceful protest will be permitted, but the balance will be restored. That is why, at the end of the amendment, it makes it plain that
“this section must be treated as necessary in a democratic society for the protection of the rights and freedoms of others”.
Henceforth, if my amendment is adopted, your assertion of a high motive will not suffice. You will be judged by what you did, how long it went on for, and the effect on other people.
Lord Wolfson of Tredegar (Con)
My Lords, as the House has just heard from my noble friend Lord Sandhurst, the area of law we are dealing with is the proportionate interference with convention rights. I respectfully agree with him that the decision of the Supreme Court in Ziegler raises the question of the correct balance and makes it important for the House to legislate in this area. However, it is my misfortune to disagree with him that we should take this opportunity to overturn the decision in Ziegler. Rather, I respectfully commend the approach of the noble and learned Lord, Lord Hope of Craighead, which has been set out for us this evening by the noble Lord, Lord Faulks.
Critically, the presumption of innocence is at the heart of our judicial process, and I do not think that any of these amendments cut across that. There are three reasons why I suggest that the amendment in the name of the noble and learned Lord, Lord Hope of Craighead, which is supported by the Government, ought to be accepted. The first is the point made by the Constitution Committee that we need precision in this area. Secondly, there is the fundamental point that we should not be leaving this to the police or the courts to decide on a case-by-case basis; as Parliament, we should take the opportunity, and indeed the responsibility, to draw the bounds of the offences in this area. Thirdly, we need to remember that, at the moment, Section 3 of the Human Rights Act requires the court to read any legislation, if possible, consistently with the convention. Absent, I suggest, the amendment of the noble and learned Lord, Lord Hope of Craighead, there is a real risk that the court will read down clauses to make them consistent with how it considers convention rights should be applied.
On the basis of the approach of the noble and learned Lord, Lord Hope, there is scope for reasonable excuse, but it is limited. That means we do not run the risk of the courts deciding cases on an unanticipated, or perhaps even incorrect, basis. We also do not need—despite my noble friend Lord Sandhurst’s amendment—to overturn the Ziegler case; what we will have, however, is a consistent, clear and precise approach to criminal law, which is precisely what we ought to have. I accept that some of my colleagues at the Bar may not be particularly happy with that, but, in this area and perhaps in others, their loss may indeed be the law’s gain.
Lord Coaker (Lab)
My Lords, in supporting Amendment 2 tabled by my noble friend Lady Chakrabarti and the noble and learned Lord, Lord Brown, and the points they have made, I will focus my remarks on Amendment 8 and the amendments consequent to it which seek to define a “reasonable excuse defence”.
I start by saying that I cannot really believe the mess the Government have got themselves into on both the definition of “serious disruption”, which we discussed previously, and the definition of a “reasonable excuse defence” we are discussing now. Nobody disagrees with the noble Lord, Lord Faulks—again, I agree with the Constitution Committee, as, I think, do most of us—but it would be extremely helpful if there were a definition of “reasonable excuse defence” in the Bill. I do not think that is a point of disagreement between us; the Constitution Committee itself recommends that. However, let us look at Amendment 8 as an example of the wording that is also used in Amendments 17, 27, 33, 50 and 51, as well as in other related offences. What protest ever takes place that is not part of a current dispute? Who protests because they are happy about something? I have not seen any demonstrations saying how brilliant this or that is; there might be an example, but, usually, a dispute happens and then people protest it—that is logical. But in each of these amendments, you cannot use “an issue of current debate” as a reasonable excuse in any circumstance. That is what we are being asked to agree to in Clauses 1, 3, 4 and 7 and some of the later clauses. Those clauses currently contain the reasonable excuse defence; the Constitution Committee says, quite rightly, that it would help if that were defined; and the definition the Government have supported says that you cannot use a current dispute as an excuse. I could go on at great length, but it makes the point by itself—it is ludicrous. That is the amendment the Government are supporting and that they are asking people to vote for.
The Parliamentary Under-Secretary of State, Home Office (Lord Murray of Blidworth) (Con)
My Lords, clearly, I intend to shed some light. The noble Lord, Lord Coaker, has generated a lot of heat on the purpose of “reasonable excuse”. I begin by thanking the noble and learned Lord, Lord Hope, for tabling his amendments. These exclude protest as a reasonable excuse for the criminal offences within the Bill. We would say that this amendment is consistent with the reasoning of the Court of Appeal in the Colston case in relation to the criminal damage allegations that were at issue in that case.
These amendments implement the Constitution Committee’s recommendation that instances of “reasonable excuse” in the Bill are defined. I thank the committee for its thoughtful analysis in this regard, which has helpfully informed much of today’s debate. The amendments from the noble and learned Lord also follow from the Supreme Court’s recent judgment that a lack of reasonable excuse in criminal offences is not necessarily incompatible with the European Convention on Human Rights. The noble Lord, Lord Faulks, has set out a compelling case for these amendments, so I will try to refrain from repeating the same points. Similarly, the noble Lord, Lord Wolfson, has very cogently set out the case for these amendments, and I will not repeat the points he made.
In summary: the Government support these amendments. They are necessary to ensure that these criminal offences serve their purpose. The entire reason we are legislating is to make it clear that locking on, tunnelling, and disrupting infrastructure are illegitimate tactics of protest. Now that we are satisfied that it is compatible with the European Convention on Human Rights to carve out protest as a reasonable excuse for these offences, we should do so. Parliament should make it explicitly clear that protest is not of itself a reasonable excuse for these offences. Not doing so will simply lead to protracted litigation in the courts. This much is clear from the Supreme Court’s decision in the Northern Ireland abortion clinics case.
Following from the noble and learned Lord’s amendments, the Government have tabled two more. The first similarly carves out protest from the offence of public nuisance. I take the opportunity to remind the House that the former common-law offence did not have a reasonable excuse for the offence at all. One was included in the statute on the recommendation of the Law Commission. Similarly to the offences within this Bill, and keeping in line with recent case law, we should now carve protest out of the offence.
The second amendment carves protest out of the lawful excuse for the offence of wilfully obstructing the highway. However, recognising that the offence is a low-level one, we do not carve it out in its entirety. Instead, the amendment removes protest from the reasonable excuse only where “more than” serious disruption is caused. The hope was to ensure consistency in the law; we sought to replicate the same proposed threshold of “serious disruption” in this offence. Therefore, protesters will still be able to obstruct highways to a certain degree. This, in the Government’s view, strikes the right balance between the rights of the public and the rights of protesters—an exercise that the noble Lord, Lord Sandhurst, rightly reminded the House is a fundamental part of the consideration of human rights.
Despite the definition proposed by the noble and learned Lord, Lord Hope, now not standing part of the Bill, there is still a need to clarify the circumstances in which obstructing a highway is not a legitimate exercise of one’s Article 10 and 11 rights. I would expect the precise wording to be settled as the matter is debated further by Parliament, and in such a manner as to ensure consistency and clarity for protesters, the police and the courts.
On the question from the noble Lord, Lord Deben, on the impact of such an amendment on a march such as that against the Iraq war, which we saw under the Blair Administration: under Section 3 of the Human Rights Act, this measure will still have to be read compatibly with the ECHR—a point the noble Lord, Lord Wolfson, made. Therefore, the point at which arrest and prosecution would be a proportionate interference with people’s Article 10 and 11 rights depends on the circumstances of each protest.
My noble friend Lord Sandhurst has tabled a similar amendment to those of the noble and learned Lord, Lord Hope, and the Government.
Lord Deben (Con)
I do not think I understand what my noble friend is saying. Is he saying that a march against the Iraq war would be acceptable? After all, it was about current issues. Very few issues were more current at the time. How would people know in advance that it would be acceptable? That is quite important, too.
Lord Murray of Blidworth (Con)
The reasonable excuse defence arises only once there has been a decision by the police to prosecute. The fact of the march itself is something that the authorities would have to judge, and they would have to do so in accordance with their obligations to act lawfully and in pursuance of their obligations under the Human Rights Act, including those under the provisions of that Act.
I return to the amendment from the noble Lord, Lord Sandhurst, which seeks to remove protest from the reasonable and lawful excuses of all criminal offences. While I appreciate the elegance of addressing the protest as a reasonable excuse question in one fell swoop and agree with the sentiment behind it—and find interesting the research in the Policy Exchange paper—I cannot support the amendment. Some offences, such as minor obstruction of the highway or the most minor of damage, such as that caused by water-soluble paints or dyes, can be a legitimate exercise of Article 10 and 11 rights.
The burden of proof was debated at length in Committee. The government position remains that the burden of proof should rest on the defendant. They are aware of all the facts pertinent to their case. As I made clear in Committee, it is not a novel concept for the burden of proof to rest on the individual.
I turn to the amendments in the name of the noble Baroness, Lady Chakrabarti, and the noble Lord, Lord Paddick. These take issue with the reasonable excuse defence and seek to shift the burden of proving such a defence for the criminal offences from the defendant to the prosecution, making it a key element of the offence. Amendment 35, tabled by the noble Baroness, Lady Chakrabarti, also adds
“support for … a trade dispute”
to the protected activities of acts
“wholly or mainly in contemplation or furtherance of a trade dispute”
under Clause 7. The government position remains that the burden of proof should rest on the defendant. While I understand the sentiment, Amendment 35 is not necessary as we assess that support for a trade dispute would already be captured under the defence.
I also want to address one of the criticisms that was made in Committee, which I believe has inspired some of the amendments of the noble Lord, Lord Paddick. As I made clear in Committee, the reasonable excuse defence resting on the individual does not, and would not, mean that those suspected of committing the offences would be arrested and charged without consideration of whether or not they had a reasonable excuse for their actions. With regard to the arrests, Code G of the Police and Criminal Evidence Act 1984 states that the use of the power of arrest requires the belief that an individual is committing, has committed or is about to commit an offence, and that the arrest is necessary.
With regard to charging decisions, the Crown Prosecution Service has to consider whether there is a realistic prospect of conviction at trial, and whether the suspect has a reasonable excuse will factor clearly in that decision-making process. This obligation on Crown prosecutors is set out in the Crown Prosecution Service’s Code for Crown Prosecutors in paragraphs 4.6 and 4.7. Any reasonable excuse defence that a suspect may have will be considered as part of these processes.
Finally, I have considered the proposal in the amendment from the noble Baroness, Lady Chakrabarti, to include support for a trade dispute as a reasonable excuse. I do not believe that it is necessary, as an act in support of a trade dispute is, in essence, in furtherance of one and therefore already in scope of the defence. As with the last group, I encourage all noble Lords to support the amendments from the noble and learned Lord, Lord Hope, and the Government and to reject the others.
Lord Paddick (LD)
The Minister said that the Northern Ireland Supreme Court case shows that the amendments are consistent with the European Convention on Human Rights. I made the point that the proportionality test that the Supreme Court made in that case was on the basis that the convention rights were restricted only within 150 metres of an abortion clinic and not outside that, whereas these amendments would apply universally and therefore, in my judgment, are disproportionate. The Minister did not address that issue.
Lord Murray of Blidworth (Con)
I entirely understand that that is the noble Lord’s view. The test of proportionality will, of course, be decided on the facts of each case as it arises, which will be matters that will feed into the decisions taken by the police and CPS in the charging process.
Baroness Chakrabarti (Lab)
I am grateful to all noble Lords who spoke in an incredibly thoughtful debate—your Lordships’ House at its best, if I may say so. Noble Lords will forgive me if I do not mention everyone, for obvious reasons of time, but I am particularly grateful to the noble and learned Lord, Lord Brown of Eaton-under-Heywood, for explaining that sometimes reverse burdens make sense when the criminality is just so obvious, such as carrying a bladed article in public, but that linking arms is generally not thought of as the same kind of criminality.
I am also grateful to the noble and self-deprecating Lord, Lord Paddick. He may not be a lawyer, but he is certainly a better lawyer than many of us lawyers would be police officers, I suspect. His brilliant exposition of the Northern Ireland case in particular, including by way of his last intervention, demonstrates that Ziegler is not dead. As we have heard from many noble Lords in this thoughtful debate, protest is not a trump card; it will not always be a reasonable excuse for criminality. But sometimes it might be. It is not irrelevant to these matters. Good law is about rules and discretion and, without the right amount of discretion, injustice will follow.
Most of all, I am grateful to the noble Lord, Lord Deben, because it was his particular thought experiment that made me most concerned about a mass demonstration such as the one on Iraq—but it could be on another subject under another Government in future. We are talking about a mass demonstration where, quite deliberately, the police do not run around arresting everybody; they use their discretion in the public interest not to do so, so as not to cause a very hazardous situation to human beings and public order, or because they simply would not be able to arrest a large number of people.
In my development of the thought experiment from the noble Lord, Lord Deben, instead of just not arresting people and just ensuring that people are safe, certain police officers arrest only a certain type of person—say, only people in wheelchairs, or only women, who are easier to arrest, or, dare I say it, only people of a certain race. If those people alone were then prosecuted and were not permitted to argue a reasonable excuse that they were just on the demonstration like everybody else, I suggest that a grave injustice would follow. The fact of the protest is never a trump card, but sometimes it is highly pertinent.
I shall not press the amendments in my name to a Division, because I have decided, on the basis of this debate, that the priority in the time that we have is to vote against the government amendments, which is what I would urge all those concerned about this to do.
The Deputy Speaker (Lord Young of Cookham) (Con)
I am unable to put Amendment 5, by reason of pre-emption.
Lord Faulks
“(2A) The fact that the person did the act mentioned in paragraph (a) of subsection (1) as part of or in furtherance of a protest on an issue of current debate will not constitute a reasonable excuse for doing that act.”Member’s explanatory statement
This amendment seeks to limit the scope of the reasonable excuse defence, as the ingredients of the offence themselves ensure consistent with case law that its interference with a protester’s Convention rights is proportionate.
Lord Faulks (Non-Afl)
The House has heard the debate, and I am not going to repeat the arguments, which have been well set out. I suggest that it is clear as a matter of law that this is a perfectly sensible and legal amendment to the Bill that would provide clarity. The alternative approach is that the police somehow have to assess the absence of reasonable excuse. It is a difficult balance to achieve; what the amendment does is strike a balance between the undoubted and important right to protest and the right of people to go about their everyday life. I commend this amendment to the House, and I wish to test the opinion of the House.
Baroness Chakrabarti
Baroness Chakrabarti (Lab)
My Lord, we come to the next group, and I have put my name to leaving out Clauses 1 and 2, on locking on and going equipped. I will not rehearse the problems with the vague nature of the offence of locking on, which, at its lowest, could literally be linking arms; or going equipped, which is a thought crime that could criminalise people carrying all sorts of innocent items in their rucksacks—bicycle locks or even potentially, in the context of the way in which some journalists or photojournalists have been arrested of late, the camera they were going to use to photograph the locking on, because they knew there was a protest. The noble Lord, Lord Paddick, will speak to some amendments he has tabled in the group to tighten and improve some of the more serious offences, and the Minister will of course speak to the government amendments, which I do not believe, for once, are incredibly controversial. I beg to move.
Baroness Jones of Moulsecoomb (GP)
I support the noble Baroness, Lady Chakrabarti. Quite honestly, we are trying to amend this awful piece of legislation and really, it is not enough: we should just kick it all out, including these government amendments.
Lord Paddick (LD)
My Lords, I have Amendments 19 and 31 in this group. As I explained in Committee, the offence of causing serious disruption by being present in a tunnel, as drafted in the Bill, could criminalise those in London Underground tunnels, for example. Amendment 19 is designed to restrict the offence to tunnels constructed in contravention of Clause 3: that is, a tunnel created to cause, or that is capable of causing, serious disruption. I am pleased to say that the Government agree, albeit that their alternative, Amendment 29, restricts the tunnels an offence can be committed in to
“a tunnel that was created for the purposes of, or in connection with, a protest”,
whether the tunnel was created in contravention of Clause 3 or not. They are not adopting my amendment, which covers any tunnel built in contravention of Clause 3.
I know one should not look a gift horse in the mouth, but can the Minister explain how being present in a tunnel that does not cause, and is not capable of causing, serious disruption—that is, a tunnel that was not created in contravention of Clause 3—can result in serious disruption being caused by a person being present in it? Why is it necessary to extend the definition of a relevant tunnel beyond tunnels created in contravention of Clause 3? Why should the House agree to government Amendments 21, 29 and 30 rather than my Amendment 19? I am sure the Minister will have been prepared to respond to that question. Maybe not, looking at him at the moment.
My Amendment 31 concerns the offence of being equipped for tunnelling in Clause 5. We believe that the offence of having an object
“with the intention that it may be used in the course of or in connection with the commission”
of an offence of tunnelling is unnecessarily complicated. Can the Minister explain why the proposed alternative wording—having an object
“for use in the course or in connection with”
the offence—is not sufficient? For example, Section 25 of the Theft Act 1968 states:
“A person shall be guilty of an offence if, when not at his place of abode, he has with him any article for use in the course of or in connection with any burglary, theft or cheat.”
What does
“with the intention that it may be used”
mean? Either the person intends to use the object or they do not, even if they may end up not using it—for example, because it might prove to be unnecessary. “I’ve got this pickaxe in case the protest tunnel we’re building encounters rocks, but if there are no rocks I may not have to use it,” is still having the pickaxe for use in the course of or in connection with tunnelling.
The other amendments in the name of the noble Baroness, Lady Chakrabarti, supported by the noble Baroness, Lady Jones of Moulsecoomb, and the right reverend Prelate the Bishop of Bristol, seek to leave out Clauses 1 and 2. Locking on has been used for centuries as a form of protest, most notably by the suffragettes. This new offence is widely and vaguely drawn—for example, to include people attaching themselves to other people without defining what “attach” means. Not only is there a right to protest, there is also a long-standing acceptance that people should be able to protest in the way they see fit. The creation of a locking-on offence is not even supported by the majority of rank and file police officers, according to His Majesty’s Inspectorate of Constabulary and Fire & Rescue Services:
“Most interviewees did not wish to criminalise protest actions through the creation of a specific offence concerning locking on.”
As with the whole of the Bill, there is sufficient existing legislation to cover locking-on activity, whether it is highway obstruction, for which the penalty now includes a term of imprisonment, or public nuisance, where the maximum penalty is a prison sentence of 10 years. Can the Minister explain the circumstances in which locking-on activity would not be covered by any existing legislation?
As for Clause 2 and the offence of being equipped for locking on, as currently drafted, the offence of having something
“with the intention that it may be used in the course of or in connection with the commission”
of a locking-on offence by any person, not just the person in possession of the object, could cover a whole range of everyday objects that someone is innocently in possession of. While the offence presumably requires the prosecution to prove
“the intention that it may be used in the course of or in connection with”
an offence of locking on, the power of the police to arrest is merely based on a reasonable cause to suspect that an offence may have been committed—a very low bar. As I said in the debate on a similar clause in what was then the Police, Crime, Sentencing and Courts Bill, you could buy a tube of superglue to repair a broken chair at home, get caught up in a protest and be accused of going equipped for locking on.
From my own extensive knowledge of policing, I say that if you have a tube of superglue in your pocket while innocently trying to negotiate your way around a protest and are stopped and searched by the police, as this Bill will allow, and if you then believe you can convince a police officer that they do not have sufficient cause to suspect you are going equipped to lock on and, as a result, that you should not be arrested, that would represent a triumph of hope over experience. We support Amendments 9 and 10.
The Lord Bishop of Manchester
My Lords, I shall speak very briefly in support of the amendment to remove Clauses 1 and 2 that my right reverend friend the Bishop of Bristol signed. She regrets that she cannot be in her place today. As the noble Baroness, Lady Chakrabarti, said, establishing new offences of locking on and being equipped for locking on have very significant consequences for the right to protest. A few days ago I got an email from a retired vicar in my diocese. He wrote to tell me he is awaiting sentencing: he has just been convicted of obstruction by gluing himself to a road during a protest by an environmental group. The judge has warned him and his co-defendants that they may go to prison. I cite his case not to approve of his actions—which I fear may serve to reduce public support for his cause rather than increase it—but because it clearly indicates to me that the police already have sufficient powers to intervene against those who are taking an active part in such protests. Anything extra, as the noble Lord, Lord Paddick, has just so eloquently illustrated, is superfluous.
Lord Beith (LD)
I would like to add to my noble friend’s very precise definition of the drawbacks of this clause. In more general terms, its provisions will lead to situations in which people do not know they are breaking the law and are then accused by the police of doing so. I should have said they do not know they might be breaking the law because of its broad terms. That is a very unhelpful situation should it arise; in my submission, it will arise quite frequently. The sorts of things that are covered by this provision are everyday household items—as my noble friend pointed out—such as glue or a padlock. I referred in earlier debates to the practice of young people of placing a padlock on a bridge—as a sign that they are eternally joined with each other—and throwing the key into the river so that it cannot be taken off again. Imagine the conversation you would have with a police officer when you are trying to explain those circumstances, and he thinks you are on your way to a protest.
Lord Ponsonby of Shulbrede (Lab)
My Lords, I will make only a very brief intervention. I agree with what my noble friend said in her introduction of this group, and also what the noble Lord, Lord Paddick, said about his Amendments 19 and 31. I am looking forward to the Minister’s explanation of Amendment 29 and how that is a more appropriate amendment than Amendments 19 and 31.
One thing I can add to this interesting short debate is as a magistrate who deals regularly with the issue of reasonable excuse, and it is something we have got used to dealing with over many years. The context in which I see that excuse is when someone is carrying a knife or a bladed article. That is almost invariably the defence that one hears when one is in court. That is something that we are used to dealing with. It is also something that there is a lot of public interest in, so changing definitions and giving more scope to more complex laws does not help the courts. The courts have, in these contexts, the defence of reasonable excuse and they are well used to dealing with it. Nevertheless, the amendments in this group have been well presented and I look forward to the Minister’s response.
Lord Davies of Gower (Con)
My Lords, the amendments in this group take issue with offences listed in the first five clauses of the Bill, so it might be helpful to set out exactly why the Bill is so necessary and how it differs from existing public order legislation. The Bill seeks to speed up the ability of police to pre-empt, intervene and respond to the evolving tactics we have seen from—what can best be described as—a selfish minority of protesters. It also seeks to establish clear stand-alone offences, which target disruptive and dangerous behaviour, and impose sentences that are proportionate to the harm caused.
I have heard many times that the police already have the powers necessary to deal with disruptive behaviour, such as tunnelling or locking on. I disagree. We have only to look at the high levels of disruption as recently as a few months ago to see that more needs to be done. The Bill provides police with the powers necessary to combat these specific offences while ensuring that those who seek to cause serious disruption on private, as well as public, land are held to account. It is completely unfair that the hard-working public have to face misery and disruption caused by individuals locking on to a road or tunnelling under a building site, only to see the perpetrators arrested several hours after beginning their actions and then let off with a light sentence.
Clauses 1 and 2 are a key part of the Government’s plans to protect the public from the dangerous and disruptive protest tactic of locking on. We have seen protesters who use locking on and who tunnel be acquitted on technicalities. Therefore, it is important to have clear, stand-alone offences for locking on and tunnelling. This ensures that those intent on causing serious disruption for others can be brought to justice quickly and given a proportionate penalty that reflects the harms they have caused. The “going equipped to lock on” and the “going equipped to tunnel” offences enable the police to intervene earlier to prevent serious disruption. Dealing with a tunnel or a lock-on is extremely resource-intensive, taking hours of police time, which could be much better spent tackling other crimes and disorder on our streets. Surely noble Lords would agree that enabling the police to act before the acts are committed is in everyone’s best interests.
The Government are on the side of the public and will act to ensure that the public are protected from these disruptive acts. We welcome Extinction Rebellion’s sensible new year’s resolution to
“prioritise attendance over arrest and relationships over roadblocks”.
However, Just Stop Oil and Insulate Britain are digging their heels in and have committed to continue trampling on the lives of others. Faced with this threat, it is clear to me that Clauses 1 and 2 should stand part of the Bill. Therefore, I respectfully ask the noble Baroness, Lady Chakrabarti, to withdraw Amendment 9.
Amendment 19, tabled by the noble Lord, Lord Paddick, limits the extent of the offence of causing serious disruption by being present in a tunnel to tunnels which have been created through the commission of the offence of causing serious disruption by tunnelling. I thank the noble Lord for tabling this amendment and accept the need for clarity in distinguishing between those who cause serious disruption in a tunnel created for the purposes of or in connection with a protest, and those who cause serious disruption in tunnels such as the London Underground tunnels.
My noble friend Lord Murray previously committed to considering this matter further: subsequently, the Government have tabled Amendments 21, 29 and 30. These amendments provide that the offence of causing serious disruption by being present in a tunnel, as defined by Clause 4, is committed
“only in relation to a tunnel that was created for the purposes of, or in connection with, a protest.”
The Government’s amendments provide clarity in the legislation on the scope of the offence. This means that people who cause serious disruption in tunnels not created for the purpose of or in connection with a protest—such as the London Underground tunnels—would not fall within the scope of Clause 4. In contrast to Amendment 19, it also includes no additional burden for the courts when prosecuting offences under Clause 4, in that they would not be required to show that an offence has occurred under Clause 3 as well.
Finally, Amendment 31 raises the threshold at which an object may be captured within the scope of the “going equipped to a tunnel” offence, as doing so would limit the effectiveness of the offence. We are trying to ensure that the police can act proactively before these harmful tactics are used. The amendment in the name of the noble Lord, Lord Paddick, raises the threshold for intervention too high. In light of this, I hope noble Lords will support the amendments in the Government’s name and reject the other amendments in this group.
Baroness Chakrabarti (Lab)
I am grateful to all noble Lords who spoke in this short debate. I believe it was such a short debate because so much of the argument has been rehearsed in the first two groups. I thank the Minister for the tone of his remarks. The reason that so many noble Lords voted as they did in the first two groups is because of their profound concerns about the breadth and vagueness of these offences. The brevity of this debate is in no sense any indication of support for, for example, locking on—an offence that could find a courting couple, if that is not too antiquated a term, who linked arms being accused of being capable of causing disruption to police officers and, if an argument ensues, finding themselves in the territory of locking on. It was a revelation in one of the debates on the Bill when the Minister, the noble Lord, Lord Sharpe of Epsom—who is now in his place—said, in response to a challenge by one of my noble friends, that, yes, linking arms could be attachment.
There are reasons why, for example, people in wheelchairs might attach themselves to the wheelchair in order to feel safer during a busy demonstration. There are so many unintended consequences. Even if one thought it were legitimate to create specific—or bespoke, which is the phrase normally used by my noble friend Lord Ponsonby—offences to tackle the suffragettes of the future, this offence is so broad and so vague that it would catch people who do not even intend militant protest at all.
With respect to the Minister, when he tells us that the events of recent months make this legislation necessary, how does that square with the comments of the right reverend Prelate the Bishop of Manchester? Gluing yourself to the road, with the intended consequence of being caught, has already led to prosecution and conviction. Legislating does not stop bad things happening but, with bad legislation, more bad things will happen. The law will be brought into disrepute, and the relationship between the police and the public will be further fractured at a time when it is under grave strain for a number of reasons that we need not rehearse.
In the light of the first two votes, His Majesty’s Government are going to have to do some serious thinking before the further passage of this Bill on these offences, the definition of “serious disruption”, the issue of “reasonable excuse”, and the need to protect journalists such as Charlotte Lynch, who the noble Lord, Lord Paddick, mentioned earlier, and a number of others who have been arrested under existing offences, including conspiracy to cause a public nuisance—no reasonable excuse for them before detention in a police station for many hours. The Government are going to have to think again.
In closing—because we may not get to the journalist protection amendment this evening—when the Home Secretary Ms Braverman appeared before the noble Baroness, Lady Hamwee, who is in her place, as chair of the Justice and Home Affairs Committee, before Christmas, she very kindly agreed to consider the subsequent amendment in my name and that of the noble Baroness, Lady Boycott, to give specific protection to journalists. I have not yet heard a response from the Home Office. I have followed up with emails to the Home Secretary and to the public correspondence section of the Home Office. I hope that, before we reach that later amendment, there could be some consideration, as was promised to your Lordship’s Justice and Home Affairs Committee before Christmas.
I shall withdraw my opposition to Clause 1 standing part for the reasons I gave. I have every confidence that, in the light of the last two votes, which may have come as a surprise to them, the Government will sensibly now give some consideration to the way forward for this Bill.
Lord Sharpe of Epsom
Member's explanatory statement
This amendment and the amendments in the name of Lord Sharpe of Epsom at page 4, line 14 and page 4, line 15 provide that the offence in Clause 4 may be committed only in relation to a tunnel that was created for the purposes of, or in connection with, a protest.
Lord Sharpe of Epsom
“(5A) In this section “relevant tunnel” means a tunnel that was created for the purposes of, or in connection with, a protest (and it does not matter whether an offence has been committed under section 3 in relation to the creation of the tunnel).”Member's explanatory statement
See the amendment in the name of Lord Sharpe of Epsom at page 3, line 28.
Lord Sharpe of Epsom
Member's explanatory statement
See the amendment in the name of Lord Sharpe of Epsom at page 3, line 28.
Baroness Chakrabarti
Member's explanatory statement
This amendment removes the Secretary of State’s power to make regulations by statutory instrument amending subsection (6) to add a kind of infrastructure or to vary or remove a kind of infrastructure; or to amend section 8 to re-define any aspect of infrastructure included within the new criminal offence.
Baroness Chakrabarti (Lab)
My Lords, now we turn to the offence of interference with the use or operation of key national infrastructure, which is clearly a matter of considerable concern to the life of the community and to the balance that we have been discussing between peaceful dissent and the rights and freedoms of people in a democratic society.
The definition of key national infrastructure becomes very important in relation to a new criminal offence which attaches to it a maximum of 12 months in prison. My Amendment 38 is perhaps fairly predictable for an amendment in your Lordships’ House: it seeks to remove the Secretary of State’s ability by regulations or statutory instrument to amend the definition of key infrastructure. As your Lordships will understand, it would be just too easy for any Government, now or in the future, to amend the definition in a way that was not proportionate, and to add matters and items to key infrastructure that the public did not consider to be key. On principle, I do not think that criminal offences should be created or amended in that way by Henry VIII powers. That is the reason for my Amendment 38. It is the sort of amendment that I would have tabled to any number of criminal justice Bills. It is not specifically about protest; it is an objection of principle to amending important definitions within criminal law in that way.
Amendments 39 and 40 in the group, tabled by the noble Lord, Lord Paddick, similarly try to tighten important definitions, but I will leave him to speak to those. I beg to move.
Lord Paddick (LD)
My Lords, as the noble Baroness, Lady Chakrabarti, just said, I have Amendments 39 and 40 in this group. As we discussed in Committee, while there may be some sympathy for measures designed to stop protesters blocking motorways, airport runways and railway lines, the legislation as drafted—covering anyone who interferes with the use or operation of any key national infrastructure, including being reckless as to whether it could be interfered with—could criminalise those legitimately protesting on railway station forecourts or concourses or those protesting outside or inside airport terminal buildings who do not intend directly to impact train journeys or flights. Clause 7(4) is extraordinarily broad in its scope, in that anything that prevents the infrastructure being used or operated to any extent for any of its intended purposes is covered.
For example, those awaiting the arrival of a controversial figure whose presence is arguably against the public interest, and who wish to demonstrate their objection to the person’s presence in the United Kingdom, should be excluded from the overbroad remit of this offence. I accept that they may be committing other offences, but to be prosecuted for interference with the use of key national infrastructure when this is clearly not the purpose or intention of the protest does not appear to be right. Amendments 39 and 40 seek to restrict the offence to infrastructure that is essential for transporting goods and passengers by railway and air respectively. We support Amendment 38 in the name of the noble Baroness, Lady Chakrabarti, on the regulation-making powers of the Secretary of State to add, alter or delete the kinds of infrastructure covered by this offence.
Lord Ponsonby of Shulbrede (Lab)
My Lords, we also support these amendments. As my noble friend Lady Chakrabarti made clear in her introduction, her Amendment 38 would remove
“the Secretary of State’s power to make regulations by statutory instrument amending subsection (6) to add a kind of infrastructure or to vary or remove a kind of infrastructure; or to amend section 8 to re-define any aspect of infrastructure included within the new criminal offence.”
As she explained, she is trying to give the Secretary of State a slightly more limited remit to introduce Henry VIII powers, along the lines suggested in her amendment.
The noble Lord, Lord Paddick, has explained his Amendments 39 and 40 very well. I will not repeat his explanation, other than to say that we are in favour of them in general terms.
Lord Davies of Gower (Con)
My Lords, Amendment 38 in the name of the noble Baroness, Lady Chakrabarti, seeks to remove the delegated power for the Secretary of State to amend, add or remove infrastructure in the list under the legal definition of “key national infrastructure”. We have heard throughout the passage of the Bill about ever-evolving protest tactics, targets and technology. We therefore see it as entirely right that Clause 7 is accompanied by a delegated power which will allow us to respond effectively to emerging threats. This was the position taken in Committee when this amendment was first tabled, and it is still the Government’ position. I assure the House that the power is subject to the draft affirmative procedure, thereby facilitating substantive parliamentary scrutiny.
I turn to Amendments 39 and 40 tabled by the noble Lord, Lord Paddick. Amendment 39 seeks to narrow the scope of “rail infrastructure” to exclude protests that do not directly impact on the operation of trains, while Amendment 40 seeks to narrow the scope of “air transport infrastructure” to exclude infrastructure that is not essential for the purpose of transporting passengers and goods by air. As was noted when these amendments were considered previously, the scope of the offence as drafted reflects the importance of the continued operation of the infrastructure as defined in Clause 8.
I would be keen to hear from the noble Lord, Lord Paddick, what he deems to be the essential and inessential elements of rail and air transport infrastructure. Rail and air infrastructure are each complex, interconnected systems, and it is not an easy exercise to find rail and air infrastructure that you can describe as non-essential to the running of services.
Lord Paddick (LD)
The Minister asks me to explain: I explained in my opening remarks, which I accept are not reflected in his notes. If there was a protest at the arrivals part of an airport against somebody who people felt should not be in the United Kingdom, they could be criminalised by this offence as drafted, because they would be interfering in some way with air transport—perhaps arrivals, but not disrupting flights, as the legislation intends. The Minister asked for an explanation; I have just given him one.
Lord Davies of Gower (Con)
I am very grateful to the noble Lord for his explanation. As I said previously, rail and air infrastructure are each complex, interconnected systems, and it is not an easy exercise to find rail and air infrastructure that you can describe as non-essential to the running of services.
Adopting this carve-out could pose a risk of ambiguity as to whether certain facilities—sidings, depots, maintenance facilities, freight facilities, air infrastructure used for pilot training, air shows and, potentially, trials of flights, aircraft and so on—would be covered. It would therefore create ambiguity for the transport industry, the police and protesters, and would give protesters another opportunity to delay prosecutions where the prosecution has to prove that the infrastructure targeted was “essential”. I also note that these are not safe places to conduct a protest, although this has not necessarily stopped people in the past. It is therefore the Government’s view that all parts of our rail and air transport infrastructure must be protected. For these reasons, I respectfully ask that noble Lords do not press their amendments.
Baroness Chakrabarti (Lab)
I am grateful once more to all noble Lords who spoke in this short debate. Once more, not testing the opinion of the House should in no way be taken as consent, let alone enthusiasm, for what the Government are doing here.
The criminal law should be an exercise in precision technical drawing, not impressionist art. However, this Government, and the Home Office in particular, are painting with a very broad brush. These broad powers and offences, which we have debated at length, are a blank cheque not just for police officers to use and misuse by accident or design, but for the Secretary of State to further define and amend this serious criminal offence of interfering with key infrastructure without the proper scrutiny that comes with primary legislation.
I am grateful to the Minister for at least giving me the assurance of the affirmative procedure. However, the problem with even the affirmative procedure is that, at a time of great public concern about the next protest movement down the track—the one that has not made the new year’s resolution that this Minister approves of—a list of amendments will be made to the regulations governing what is to be key infrastructure. Some of them will be sensible and acceptable, and some will be outrageous. Members of the other place and Members of your Lordships’ House will be put in the invidious position of saying yes or no without the kind of scrutiny and line-by-line consideration, voting and amendment that is possible with a criminal justice or public order Bill. This need to sub-delegate seems all the more extraordinary when we are getting public order Bills every year at the moment. This just does not compute to me.
Having tested the patience of noble Lords and the Minister, I will not test the opinion of the House.
Environmental Targets (Fine Particulate Matter) (England) Regulations 2022
(1 year, 2 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Benyon
That the draft Regulations laid before the House on 19 December 2022 be approved.
Relevant document: 25th Report from 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, this instrument sets two legally binding targets for air quality, as required under the Environment Act 2021. Along with the five other environmental target instruments, this instrument implements the Government’s commitment to leave the environment in a better state than we found it.
The two targets both relate to fine particulate matter or PM2.5—the pollutant most harmful to human health. They will work in tandem to drive improvements in the parts of England with the highest concentrations, while reducing average exposure across the country, driving public health benefits.
The Government take air quality and its effects extremely seriously. Although we have achieved significant reductions in air pollution, it remains the largest environmental risk to public health in the UK. The tragic death of Ella Adoo-Kissi-Debrah in 2013 continues to remind us that, when it comes to improving air quality, there is absolutely no room for complacency. I thank Rosamund Adoo-Kissi-Debrah. I pay tribute to her family and friends who campaigned so tirelessly on this issue and continue to do so.
Achieving our targets will make a significant contribution to public health and in reducing burdens on the NHS. Our modelling indicates that, over the course of 18 years, achieving the targets would result in 214,000 fewer cases of cardiovascular disease, 56,000 fewer strokes, 70,000 fewer cases of asthma and 23,000 fewer cases of lung cancer. Our analysis also indicates that achieving the targets could save £38 billion in social costs associated with human health, productivity and ecosystems between 2023 and 2040.
PM2.5 is a complex pollutant emitted from many different sources. Reducing levels means driving action across our society and economy. This includes emissions from all sectors—agriculture, road transport, domestic combustion and industry. Businesses and individuals will also have a role to play.
We followed a rigorous, evidence-based process, working with internationally recognised experts to set targets which are stretching, achievable and specific to our national circumstances. The first target set out in the instrument is the annual mean concentration target. This sets a maximum concentration of 10 micrograms per cubic metre to be met across England by 31 December 2040.
I turn to the regret amendment tabled by the noble Baroness, Lady Hayman of Ullock. If she were able to wave a magic wand and switch off the UK economy, she would not achieve 5 micrograms per cubic metre. PM2.5 exists naturally in our environment. It is blown to parts of the UK from abroad or through factors beyond our control, such as shipping. She knows that Section 4 of the Environment Act requires that all these targets must be achievable. The ambition that she demands is unachievable. If I were to be churlish, I should say that it is no more than a gesture—one which would put us in breach of the Act. She is actually asking the Government to break the law, because we could not hit these targets.
I understand that the noble Baroness has got this 5-microgram figure from the World Health Organization, a pan-national body which, for perfectly understandable reasons, encourages a very high level of ambition that seeks to drive change in countries across the world. But Governments are different. In creating targets or regulations, we have to operate within our own laws and live in the land of the possible. What parts of the economy does she want to snuff out in order to hit her target? What behaviour change does she want to impose on citizens for her figure to be a reality?
I have huge respect for the noble Baroness. She is good at holding me and the Government to account, but I suggest that this is not her finest hour. I have been in opposition, and I accept that it is the job of the Opposition to push the Government to the greatest degree possible, but this regret amendment is not good opposition. As with her regret amendment last week on water quality, it is based on an entirely false premise. The evidence for the negative effects on health of PM2.5 is clear. I well understand the dangers. I assure noble Lords—and the noble Baroness—that we are absolutely committed to action to reduce air pollution, but we need to do this in a proportionate and achievable manner. I emphasise “achievable”.
PM2.5 is a complex pollutant and there are no easy solutions. An earlier target date would mean significant restrictions and costs on businesses and on people’s lives. The noble Baroness must be frank with the people of this country and tell them what activities she wants them to stop doing. The shortest of discussions with air-quality experts reveals that a particular challenge exists in urban areas, where the highest number of people live. For example, we expect most of England to meet the 10-microgram target by 2030. She mentions the EU in her amendment. I have no doubt that the EU will fail to hit its target figure by 2030, because many countries in the EU have worse challenges than we do. Meeting the target everywhere for a lower particulate matter is not realistically achievable. It would require new technological innovation to progress more quickly than can reasonably be expected. It would likely require bans on all domestic solid fuel burning, and significant restrictions on personal car use in our towns and cities and on commercial deliveries and vehicle use as well. We are working across the economy to try to clean up our transport network provision and to focus on pollution hotspots, working with bodies such as local authorities and Highways England.
We do not believe that it would be reasonable or fair to impose these kinds of restrictions on people now or in the immediate future. If political parties are proposing measures which will seriously restrict some pretty basic freedoms, they must be up front and honest with the electorate. Our evidence indicates that 5 micrograms per cubic metre is not possible as a nationwide target. It shows that between 6 and 8 micrograms per cubic metre—or 2018 levels in the south-east of England—are not from emissions that we can control in this country. This is the point. These levels come from a combination of natural sources, emissions from other countries—such as air blown across the English Channel from Europe and from shipping. I repeat: even if everyone in England left the country, it would not just be challenging to meet 5 micrograms per cubic metre everywhere; it would be impossible.
As important is to drive down the highest concentrations. It is also essential that we ensure that action is taken across the whole of England, because there is no safe level of PM2.5.
This instrument also makes our innovative population exposure reduction target law. This sets a 35% reduction in average population exposure by 31 December 2040, compared with a baseline period of 2016 to 2018. This is perhaps the most meaningful target. It focuses on health outcomes and reflects the fact that all improvements to PM2.5 exposure will result in health benefits. The target therefore drives action to reduce exposure for all, maximising public health benefits.
The instrument also sets out the framework for assessing compliance with the two targets. Assessment will be carried out through PM2.5 monitors on our national network. To facilitate this, we are investing over £10 million up to 2025 to expand the existing network to more than double its current size. This adds well over 100 monitors across England from December 2021.
In conclusion, this instrument is an essential first step in ensuring that the environment is left in a better state than we found it, by requiring the Government to drive down levels of this harmful pollutant. Having legislated for this ambition, we will set out our delivery plan in the forthcoming environmental improvement plan. I beg to move.
Amendment to the Motion
Baroness Hayman of Ullock
At the end insert “but that this House regrets the lack of ambition and urgency in the Regulations in relation to the target for annual average concentration of PM2.5 in ambient air; notes that the target of 10μg/m3 by 2040 is both less ambitious than current World Health Organization guidelines, which specify an annual average concentration of 5μg/m3, and less urgent than proposals from the European Commission, which seeks to achieve the target by 2030; and therefore calls on His Majesty’s Government to bring forward, as soon as practicable, a revised PM2.5 target which better reflects (1) the dangers posed by toxic air, and (2) the significant public support for improving air pollution”.
Baroness Hayman of Ullock (Lab)
My Lords, I thank the Minister for his introduction to the statutory instrument. As he said, the SI seeks to put in place regulations to set targets for the maximum annual mean concentration and population exposure reduction for fine particulate matter, or PM2.5. As he said, this is legally required by the Environment Act 2020. I also thank the Healthy Air Coalition for its time and its very helpful briefing.
As we know, the SI also relates to matters of very high public interest. PM2.5 is the name given to the tiny particles of dust and dirt in the air that, when breathed in, can get deep into our lungs and bloodstream. We know that exposure to PM2.5 has been linked to worsening respiratory and cardiovascular diseases, and likely has a link to cognitive decline and dementia. The Minister himself just said that there is no safe limit. We also know that it played a key part in the tragic death of nine year-old Ella Adoo-Kissi-Debrah in 2013. As the Minister did, I pay tribute to her mother, Rosamund, and her family, who, as he said, have campaigned tirelessly on this issue.
We know that Public Health England has estimated that the health and social care costs of conditions caused by unhealthy air and air pollution, both PM2.5 and nitrogen oxide, could reach £18.6 billion by 2035. The Minister talked about the economy; I say to him that dealing with this issue will save the economy a huge amount.
As we have heard, the annual mean concentration target, or the AMCT, proposed in the SI is 10 micrograms per cubic metre, to be met by 2040. The proposed population exposure reduction target, or PERT, would reduce PM2.5 levels across England by at least 35% by the end of 2040, compared with the baseline year of 2018. It is also worth noting that these targets relate only to England, as air quality is a devolved policy area.
The reason for my regret amendment is that we believe the Government have failed to meet their own policy ambition. Back in 2019, the Government said that they would put world-leading and ambitious air quality targets in place, including for PM2.5. They also pledged
“a green Brexit, where environmental standards are not only maintained but enhanced.”
We look forward to debates on that on the REUL Bill.
Lord Tope (LD)
My Lords, I will be brief, but I must first declare my interest as a vice-president of the Local Government Association and, more particularly for this debate, as a co-president of London Councils, the body that represents all 32 London boroughs and the City of London.
In 2019, I introduced the Emissions Reduction (Local Authorities in London) Bill to grant local authorities greater powers to reduce emissions in their areas. The Bill was supported by the City of London and all the London boroughs but, unfortunately and inevitably, it made little progress beyond this House. Subsequently, although the provisions of the Bill received cross-party support as amendments to the then Environment Bill, they did not make it into the final Act.
Fine particulate matter is the pollutant most damaging to human health. It is a dangerous carcinogen that penetrates deep into our lungs and bloodstream. The two air quality targets set out in the draft regulations which we are debating today are an opportunity to make a significant impact on the level of PM2.5 in ambient air. Many emissions are from non-road sources, collectively referred to as “combustion plant”. Relatively little public attention is paid to that but tackling those emissions will be crucial to reducing PM2.5 levels.
During the Covid-19 lockdown, the City of London saw a 40% decline in levels of nitrogen dioxide compared with 2019 but levels of PM2.5 remained roughly the same despite the significant fall in transport activity. To achieve a meaningful reduction in PM2.5 levels we need to address non-road emissions. One way of doing this would be to empower local authorities to place limits on the use of highly polluting plant in their area.
The proposed fine particulate matter annual mean concentration target of 10 micrograms per cubic metre is the right approach. There is consensus among many air quality experts that a 2030 target is achievable and proportionate. The Committee on the Medical Effects of Air Pollutants published a statement in January 2022 in strong support of a reduction in PM2.5 to 5 micrograms per cubic metre, with 10 micrograms per cubic metre as an interim target.
The Clean Air Fund’s 2022 report, The Pathway to Healthy Air in the UK, concluded that by 2030 most of the UK will comply with 10 micrograms per cubic metre if policies already planned are implemented. It goes on to state that the achievement of 10 micrograms by 2030 can be done at virtually no additional cost. The report details various positive health impacts of achieving the target by 2030. I noted the Minister’s concern for the effect on business. He may be interested to know that the City of London, which has some interest in business, has already adopted the target date of 2030.
These impacts we are talking about include 98,000 life years gained, 3,600 fewer respiratory hospital admissions per year and a reduction in the number of symptom days in asthmatic children of 388,000 per year. In these circumstances, will the Minister at the very least consider bringing forward the implementation date to 2030? If he will not, in his reply will he state clearly why the Government are so determined to set so unambitious a target?
Baroness Jones of Moulsecoomb (GP)
My Lords, I congratulate the noble Baroness, Lady Hayman of Ullock, because I thought her analysis of this statutory instrument was excruciatingly thorough and coruscating, quite honestly. It was possibly her finest hour, but I am sure she is going to have many more.
I would have liked to have stopped the Minister several times during his opening remarks because, quite honestly, I would have liked to refute things or challenge them because they were so off-beam at times with some of the language he used. He said things such as “What would we want to snuff out?” I can give him a list and explain very clearly how we could achieve much tougher targets.
These targets make exactly the same mistakes as the targets on water that we argued over last week, which is that they are too little, too late. The Government have had the opportunity to show the public that they care about the quality of our water and air. They say they want to improve human health and reduce environmental pollution and that there is some urgency to their actions but that is absolute nonsense. I have seen no ambition in these proposed targets to reduce the thousands of premature deaths due to air pollution that this country suffers from.
The Minister said that we would restrict freedoms. What about the freedom to breathe clean air and not be ill from breathing the air in our urban spaces? That is absolutely a human right and something we could deal with. The Minister talks about restrictions but what we can do is make it easier for people to do the right thing. We can make it easy for them not to use their cars by giving them decent public transport. This is something that the Government do not seem to be able to tie up at all. They cannot see any relationship between a carrot and a stick. I know that Ken Livingstone is not held in the highest esteem any more but he really understood that and when he brought in the congestion charge, he massively improved public transport. It made a huge difference to travel patterns in London.
The noble Baroness, Lady Hayman, said she was looking for ambition. She has certainly failed to find any ambition in these targets. It is totally unacceptable that the Government are proposing to delay compliance with the World Health Organization’s air quality guideline for fine particulate matter. Of course it is a complex problem but, as the noble Lord, Lord Tope, pointed out, not only road traffic but plant is responsible. We could insulate buildings, which would mean that people used less energy, for example, and therefore polluted less.
A target was published in 2005 that this country will not now hit until 2040. That is appalling, isn’t it? It is the same as with the sewage targets: putting everything back a couple of decades means that most of us will not live to see a country where we have clean air and clean water. I have no problem making sacrifices for the next generation—I do so on a daily basis—but I prefer to make sacrifices that deliver improvements while I am alive, if possible. And I am saying that it is possible, but this Government choose not to do it.
The World Health Organization has halved its guideline for PM2.5 to 5 micrograms per cubic metre. That happened over a year ago. So not only are we delaying targets; the targets we are using are already out of date. The science has moved on but this Government and this country have not.
I have a few questions. I realise that they will not be answered today but I would like them answered. I am happy to write to the Minister, but I will now read them into the record. First, are the Government taking literally the wording of Section 4(2) of the Environment Act 2021:
“Before making regulations under sections 1 to 3 which set or amend a target the Secretary of State must be satisfied that the target, or amended target, can be met”?
Doing so would mean the Government not protecting anyone until the last person in the entire country was protected from air pollution standards set in 2005. I would like clarity on that.
Secondly, what computer modelling can the Government possibly be using that shows that the UK cannot or will not achieve the WHO’s old air quality guideline until 2040? That modelling has to be out of date; it cannot possibly be anything that any of us on this side of the Chamber could have come up with.
Thirdly, are the Government aware that official modelling done for the revision of the Gothenburg protocol shows that less than 5% of the UK population would be exposed to more than 6 micrograms per cubic metre of PM2.5 by 2030, and only 8,000 people above 7 micrograms per cubic metre? That is the baseline case.
Fourthly, are the Government aware—actually, I think the Minister did mention this—that the European Commission is proposing to comply with the old air quality guideline for PM2.5 by 2030, 10 years earlier than this Government, and that it is proposing to halve the current level for nitrogen dioxide by the same date? Where is our Brexit dividend? People will say, “I voted for Brexit. I want my dividend. Where is it in this SI?”
Instead of this nonsense and all the flannel we keep being given about targets, I ask the Government to support Ella’s Law—my Bill that would make clean air a human right. It is in the other place at the moment, and I suggest that all noble Lords on the opposite side of the Chamber lobby their friends and family to sign up to the Bill and say, “This is what would actually fix the problem we are facing.”
These targets will not fix the problem. People will suffer and die, and the Government will never hear the end of it while we few are on this side of the House.
Lord Stevens of Birmingham (CB)
My Lords, it is unusual, I suggest, in public policy to find an area where the case for faster action is as barn-door obvious as it is in this instance. We have a set of impacts with strongly negative consequences. We have a set of practical actions that would enable us to do something about that, and the benefits of so doing would be rapid—in some cases, almost immediate. That is not my judgment but that of Professor Chris Whitty, the Chief Medical Officer, whose 2022 annual report—published just before Christmas and which, unfortunately, did not get the scrutiny and focus it deserved—concentrates on air pollution.
Lord Whitty (Lab)
My Lords, I have long taken an interest in this subject. When I came into this Chamber I did not intend to speak, but I was utterly shocked by the way the Minister—who in many respects I have some respect for—dismissed the case for a much more ambitious target. My noble friend has set out in great detail how that could be achieved, and why it should be achieved.
I was, until recently, the president of Environmental Protection UK, whose origins were in the National Society for Clean Air, which proposed the Clean Air Act in the 1950s. It was the Minister’s predecessors, in the Conservative Government of Anthony Eden—which does not have a high historic record—who adopted the Clean Air Act when they were told by people, like those who have got at the Minister, “You’re going to try and change people’s habits and they’re not going to stop burning coal”—but they did. I speak as a child bought up in London with asthma in the 1950s. Those five years, in which they cleaned up London, probably mean I am still alive and here in your Lordships’ House today.
It was incredibly dismissive of the Government to condemn those who were advocating tighter regulations. They are based on strong medical evidence; the campaigns that the evidence here dismisses are mainly informed by strong medical evidence that this kills, it deforms and it limits life in all its respects. The Minister needs to take a grip, think again and come back and respond to my noble friend with something better. Otherwise, this Government have something to be seriously ashamed of.
Lord De Mauley (Con)
My Lords, we all have a growing understanding of the devastating effects of PM2.5 and particulate matter in general on human health, and we welcome efforts to bear down on them. I think I heard the noble Baroness sidestep the question of what an appropriate target was, preferring simply to demand more ambition. Although other noble Lords have made some suggestions, she did not answer my noble friend the Minister’s question of what actions she specifically proposes should be banned or seriously cut back. It is important that the public know what they are.
Baroness Bakewell of Hardington Mandeville (LD)
My Lords, I thank the Minister for his introduction to this SI. The noble Baroness, Lady Hayman, has spoken in detail about the lack of ambition and urgency in the Government’s regulations on fine particulates, and previous speakers have made powerful arguments for more ambitious targets.
I fear I feel like a single-track CD that is on continual replay, continuously playing the same track or, in my case, repeating the same arguments. The Secondary Legislation Scrutiny Committee, of which I am currently a member, has drawn the attention of the House to the issue of reducing concentrations of PM2.5, the pollutant causing the most harm to human health. The extensive consultation carried out by Defra drew responses on this regulation from Friends of the Earth, Greenpeace, the Woodland Trust and Asthma + Lung UK, all of whom jail felt the annual mean concentration target—the AMCT—of 10 micrograms per cubic metre at the sites of the highest level of concentration by December 2040 was not adequate. The Royal College of Physicians has written to me saying:
“Air pollution and poor air quality are a significant and growing public health challenge. In 2016, the RCP alongside the Royal College of Paediatrics and Child Health published Every Breath We Take. This report examined the impact of exposure to air pollution across the life course.”
The report found that around 40,000 premature deaths every year in the UK were attributable to exposure to outdoor air pollution.
The Healthy Air Coalition stated that the EU Commission proposes that this same target, of 10 micrograms per cubic metre, be reached by 2030 —10 years earlier than Defra’s target of 2040. The Healthy Air Coalition also asked why the requirement for a minimum number of monitoring stations will not come into effect until January 2028. Without these stations it is extremely difficult to have confidence in our ability to monitor the particulates and meet the targets, even at their very unambitious levels. Defra’s response to the questions on this were that it expected the monitor network to be completed in the next three years, but it had allowed for unavoidable slippage in building, networking and testing. Therefore, the legal requirement was going to be 2028.
The consultation responses from all quarters were clear that the targets were unambitious and should be higher. Despite this, as with all the other five areas of environmental targets, no change was made to the final targets. As this is the last of the six target areas to be debated, I ask the Minister how much the consultation exercise has cost in total? How many hours of Defra staff time were spent analysing and collating the responses? Given the very large number of responses—over 181,000—were extra resources deployed and temporary staff employed in order to help deal with the level of responses?
Defra spends a lot of time consulting on various pieces of legislation. I therefore imagine that the consultation department is used to the processes involved and is efficient in collating the resulting responses. On this occasion, to totally ignore and override the submissions received, and stick to the original targets, gives a very strong impression that Defra’s mind was already made up long before the consultation started. Defra was only paying lip service to the process. Meanwhile, those who suffer from asthma, bronchitis and other respiratory tract conditions, long-term and short-term, are left with no hope of improved air quality in the immediate future. That really is unacceptable. Given the level of concern on the total lack of meaningful response to the consultation exercise, if the Minister is not able to answer my questions on costs and staff resources this evening I would be grateful if he could write to me with the necessary information and put a copy of his response in the Library.
The Earl of Caithness (Con)
My Lords, can I challenge the noble Baroness on what she said? While it was very interesting, she focused entirely on outdoor pollution from PM. There is a much greater problem of indoor pollution from PM, about which we know much less. There is much less monitoring of it but it comes from damp houses and from the chemicals we use; it comes from a whole range of issues. She referred specifically to the outdoors and then to people suffering from asthma. They are going to be suffering indoors as well, given the pollution inside our houses. This is why the whole of air pollution is so difficult. Theoretically, we know much more about outside pollution, which is much more heavily monitored. Even the noble Lord, Lord Tope, said how difficult it has been to reduce particulates in the City of London, despite how much the traffic has reduced. Yes, this is a hugely complex and very difficult and sensitive issue, but we need to look at it in the round. I have no doubt that by 2030 we will have a huge reduction, but it is going to be totally impossible to get to the required level for every single area in England.
Lord Benyon (Con)
My Lords, I am grateful to everyone for their valuable contributions to this debate. To answer directly the concerns of the noble Lord, Lord Whitty, I say that this is not about a lack of ambition. I have had many opportunities to speak in the House on this issue and I share entirely noble Lords’ ambition to achieve it, but we have to comply with the law. That is why the regret amendment, praying in aid 5 micrograms per cubic metre, is not achievable.
The World Health Organization is entirely right to push countries to be ever more ambitious, but we have to comply with Section 4 of the Environment Act. To do that, anybody who is in government or aspires to government cannot just stand up and say, “We want to achieve more”, in the full knowledge that it is impossible. We would therefore be breaking the law and I am not prepared to do that. However, I entirely accept that there are real and genuine concerns and I want our Environment Act, which is world-leading, to deliver ever greener and more environmentally friendly measures.
The EU is also mentioned in the regret amendment and the noble Baroness, Lady Hayman, is absolutely right: it seeks to achieve 5 micrograms per cubic metre, but we have to achieve the target that we set. We cannot just pluck one out that sounds good and makes the Government look as if they are listening to every single campaigner who wants a reduction, quite understandably. We want to produce a target that we can achieve, and we can set out clearly how we are going to do it.
To say that Ministers have somehow fiddled with the evidence to be less ambitious, for whatever reason, is absolute nonsense. The suite of targets that we consulted on was the result of significant scientific evidence, collected and developed over preceding years, and included input from evidence partners and independent experts, supported by over 800 pages of published evidence. We have full confidence in the final suite of targets, which represents a robust analysis of that. The noble Baroness, Lady Hayman, said that this was a pessimistic view, but in government you can set a target and seek to achieve it before the date. We think we can get to the low-hanging fruit and show a trajectory much earlier than the date of 2040.
Baroness Hayman of Ullock (Lab)
My Lords, very briefly, I remind the noble Lord, Lord De Mauley, that it is the Government who actually set the policy and targets. I would be very happy to swap places with the Minister, sit where he sits and set the policy on this matter in the very near future.
On the Minister’s response, I am not asking him or anybody else to break the law; I am just asking for more ambition, because this is a serious health problem—I do not want the Minister to break the law at all. As he said, this has been a fairly long debate, so I thank everybody who has supported my amendment. I really appreciate the support and the important comments on, and reminders of, the serious health implications we are talking about. I beg leave to withdraw my amendment.
Public Order Bill
Monday 30th January 2023
(1 year, 2 months ago)
Lords ChamberRead Full debate Public Order Act 2023 View all Public Order Act 2023 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 82-I Marshalled list for Report - (26 Jan 2023)
Baroness Morrissey
“(d) in any location that is visible from the curtilage of the abortion clinic.”Member's explanatory statement
This amendment seeks to protect the rights to privacy and private property, and endeavours to align Clause 9 with the limits of safe access zones legislation in other jurisdictions.
Baroness Morrissey (Con)
My Lords, I will speak to Amendments 41, 42 and 43 in my name. First, I apologise for any offence caused by my tabling those amendments without having been involved in Committee. I am afraid that I am still learning the ropes here, as it were, and I certainly did not intend any discourtesy. I hope that your Lordships can forgive me; I will certainly learn from my mistake. My motivation was, and still is, to offer your Lordships another way forward on the tricky Clause 9 which I hope might seem reasonable and sensible. It also has the advantage of having been tested and shown to be workable, both legally and practically, in another common-law jurisdiction. I thank my noble friend Lord Wolfson of Tredegar for his help with the finer points of the legal issues.
The amendments, collectively, take four points as given: first, that abortion, within certain parameters, is legal in England and Wales—whatever our individual views on abortion, that is not the issue up for debate today; secondly, that women who have decided to go ahead with an abortion should be able to avail themselves of the services without harassment or intimidation; thirdly, that there is a right to free speech; and, fourthly, given that abortion is a highly-charged topic, that it is appropriate to regulate space around clinics. The question is: how do we balance those four points? The amendments I have tabled seek to achieve balance in a way that I do not think is currently achieved by Clause 9 or, indeed, by Amendment 45, tabled by my noble friend Lady Sugg —someone I greatly admire and respect, but whose amendment gives me cause for some concern.
I will focus my remarks on my Amendment 42, which is at the centre of this matter. Amendment 42 is modelled on law adopted in 2015 in Victoria, Australia; it has been widely accepted and is working well. An Australian-style law has many benefits, especially when examined in contrast to Amendment 45. First, it ensures that women accessing abortions are free from intimidation, harassment or interference. It targets the worst forms of behaviour that protesters subject women to at abortion clinics. Yet it is reasonable in how it achieves those aims: it does not indiscriminately ban all peaceful and unintentionally intrusive activity.
Rather than banning all peaceful activity, the amendment prevents intimidation and harassment, defined quite precisely as communication by any means that is
“reasonably likely to cause distress or anxiety”
to a woman seeking an abortion. This prohibition ensures that women can access abortions without enduring disruptive protests, name-calling and otherwise distressing behaviour. Amendment 42 looks to cast a wide but realistic net compared to the rather vague proposal in Amendment 45, which seeks to prohibit “influencing”. I would like to clarify a few points that noble Lords may hear later on this subject from proponents of Amendment 45.
I believe it is too simplistic to say that Amendment 45 aligns English law with Northern Ireland’s Abortion Services (Safe Access Zones) Bill, with the blessing of the UK Supreme Court and that, therefore, we should feel reassured. I say this for the following reasons. First, the Supreme Court has not clearly identified “influencing”. That sets what I think is a worrying precedent for freedom of speech. Secondly, the UK Supreme Court did not say that Northern Ireland’s law would never lead to a situation incompatible with the European Convention on Human Rights. Rather, the test the court applied was whether it would almost always lead to an incompatible situation, so there might be some situations where a ban on influencing is incompatible with the ECHR.
There are also key differences between Northern Ireland’s law and Amendment 45. Notably, my noble friend Lady Sugg’s amendment applies to outdoor private spaces, and it carries a higher fine than under Northern Ireland’s law. It also does not explicitly ban filming women as they enter or leave an abortion clinic, or if it does, that is not clear, because it would require them to show that being filmed influenced their decision. If my noble friend implicitly accepts that Northern Ireland’s law should not be followed in its entirety, this House must decide on the best model to follow.
An Australian-style law is reasonable in these circumstances. It sets a clear threshold for the types of activities captured under the law, Australian courts have offered guidance on what the law means, and it offers stronger protections for women—for example, an explicit ban on filming them. Another key advantage of Australian law is that it has already been tested in the courts. The High Court of Australia upheld that it is valid in a key ruling in 2019, and in fact, the UK Supreme Court has quoted that judgment in its recent ruling on Northern Ireland’s law. The Supreme Court of Victoria has clearly interpreted the meaning of the communication prohibition, whereas the UK Supreme Court, as I said earlier, has not provided a clear interpretation of what “influencing” means or the activities it captures. I note that even other common-law jurisdictions such as Canada, which has a strict law in this area, do not ban influencing—and for good reason.
Amendment 45 would also ban silent prayer and goes further than supporters of my noble friend’s amendment wanted to go in Committee. I draw your Lordships’ attention to the remarks of the noble Baroness, Lady Barker:
“I listened carefully to a number of noble Lords who made emotive comments suggesting that we wish to ‘criminalise prayer’. In the case of a single person in silent prayer, no, we do not; in the case of a church where every member turns up, week in week out, to stand directly in the path of women trying to access a service with the avowed intent of frustrating their access, yes we do.”—[Official Report, 22/11/22; col. 1323.]
Unfortunately, this is a distinction without a difference in Amendment 45, which could criminalise anyone who prays silently. If silent prayer can be a form of communication about abortion, under an Australian-style law, and as clarified by the courts, it would be a crime only if it was reasonably likely to cause distress. I believe that that is a far more sensible threshold than the indiscriminate standard in Amendment 45.
Amendment 42 also avoids absurd situations. If we were to adopt similar guidance to, say, Victoria’s Department of Health, it would not extend to activities in the vicinity unconnected to abortion clinics, such as university lectures touching upon abortion. Similarly, it would create an exception so that road maintenance or construction works blocking the entrance to an abortion clinic would not amount to criminal liability. Amendment 45 does not contain a similar exception.
Finally with respect to this amendment, it is worth noting what the abortion provider Marie Stopes Australia says about the law in Victoria. It supports it, and has argued against laws that go further than it on the principle that more draconian prohibitions impose too great a burden on fundamental freedoms.
In the interests of time, I shall touch only very briefly on Amendment 41, which seeks to exempt most private property from the buffer zone. As it stands, both Clause 9 and the noble Baroness’s amendment would prevent, say, discussions about abortion from taking place in the garden of a private dwelling within a buffer zone.
Finally, Amendment 43 would ensure that penalties for offenders are proportionate and sufficient to match the severity of the offence, with a maximum penalty of an unlimited level 5 fine.
Creating buffer zones around abortion clinics is intrinsically fraught, and I hope that noble Lords see Amendments 41 to 43 as striking a careful balance between the aims of safe access zones to protect women and civil liberties. I look forward to hearing your Lordships’ views on the matter.
Lord Farmer (Con)
My Lords, I shall speak to my Amendment 44, supported by the noble Baronesses, Lady Fox of Buckley and Lady Hoey. I found the speech from my noble friend Lady Morrissey very interesting, and I shall refer to it shortly.
Fundamentally, with regard to the current Clause 9, calling for a 150-metre buffer zone—or safe access zone, as I think it is now being called—it is not supported by the necessary evidence and research data to justify placing on the statute book such a law, which would be a substantial incursion into the freedom rights of the individual. My amendment is not about abortion or abortion clinics per se; it is about good law or bad law. We have heard much at Second Reading and in Committee about the 2018 Home Office review on this matter and its judgment word, “disproportionate.” At this time, we do not have the evidence that such a clause as it currently stands is a proportionate response to activities nationwide around abortion clinics. Therefore, we need a review, to establish the facts about what is going on and respond accordingly.
After all, again as has been mentioned previously, we do have laws, including PSPOs, which are available for dealing with egregious practices. Buffer zones can be imposed by local councils when deemed necessary, and Bournemouth, Birmingham and Ealing are examples. The only activity currently being reported by the media that I am aware of is the arrest of two women for praying, and the fining of a veteran who paid for his girlfriend to have an abortion 22 years ago, for the same reason—praying.
I disagree that the Supreme Court judgment on Northern Ireland justifies this law on our statute books, for three reasons. First, we have had abortion for over 55 years, whereas in Northern Ireland this option has been legally available for less than four years. Moreover, secondly, it was made so in circumstances which in themselves have provoked much anger. Finally, with respect to Northern Ireland, key to the Supreme Court’s reasoning was the evidence which the Northern Ireland Assembly considered before passing the legislation. Those resting their arguments on what has transpired there actually strengthen my argument that a review should come first before we even craft legislation here. Similarly, we are not the US and should not be making pre-emptive legal strikes in response to changes there without the evidence from our own jurisdiction—albeit that there has been a dramatic US response to the decision of its Supreme Court on Roe v Wade.
Having read my noble friend Lady Sugg’s amendment, I should add that she has clearly thought long and hard after listening to opposing views during the passage of the Bill. I can see how hard she has worked to refine what was referred to by one of the amendment’s authors in the Commons as a “blunt instrument”. Similarly, I sympathise with the sentiment that we need to respect the will of the Commons. However, confusion was unnecessarily caused by making this a conscience vote in the other place, as I said at earlier stages. Voting for buffer zones should not be identified with voting for women’s rights to access abortion. That is not what is at stake here. We can respect the will of the Commons but still require it to think again about immediate nationwide restrictions on access to public space.
I turn very briefly to the amendments in the name of my noble friend Lady Morrissey. Again, I respect her efforts to craft a clause that is more human rights-compliant and otherwise fit for purpose. However, neither she nor my noble friend Lady Sugg deal with the substantive underlying principle of the need for a body of conclusive evidence before bringing a bespoke criminal regime into force for activities outside abortion centres.
Her amendments, as we have heard, are closely derived from legislation from Victoria, Australia, cited by the Supreme Court with regard to Northern Ireland. But, again, paragraph 151 of the Supreme Court judgment refers to evidential claims that were available to point to, to legitimise drawing on the Victorian situation. Our Parliament does not yet have that evidence, and this is why I will be unable to vote for my noble friend’s amendments.
My amendment takes seriously the possibility that legislation might be needed, but it gives the Commons a proper opportunity to debate how the proportionality of such restrictions can be established through the same evidence-based process typically required in every other area, and which other jurisdictions have drawn on in this area. So I ask your Lordships: why the rush?
Clause 9, and the process that led to its being added to the Bill in the other place, has many of the hallmarks of emergency legislation. Adam Wagner’s book Emergency State, which details flaws in the emergency Covid laws, provides salutary warnings about proceeding too hastily. He makes the point that
“the brute force of emergency law-making does damage and we need to avoid making the same mistakes again.”
Emergency states are ignorant, says Wagner. He adds:
“Decision-makers have to rely on limited and potentially unreliable information ... little scrutiny can lead to ignorant decision-making and corruption. It results in many hidden injustices, which may never come to light, or at least not until much later. And the vast powers can well outlast the emergency which was used to justify them.”
There is not even the need for emergency legislation here, as there was with the Covid outbreak. Surely a review, as detailed in my amendment, to be completed within a year, would provide Parliament with the evidence to produce a considered response to what is actually going on near abortion facilities. We are all aware that abortion is a contested, ideological issue. The two opposing sides hold different views that are legally allowed to be held and expressed.
However, I return to my point that the Bill is not about the rights and wrongs of abortion. It is the Public Order Bill and, as such, is how Clause 9 should be viewed. Is there sufficient public disorder to warrant such an incursion into citizens’ civil liberties? The answer is that we do not know. Therefore, we need a review. I commend my amendment for your Lordships’ consideration and beg to move.
Baroness Sugg (Con)
My Lords, I shall speak to Amendment 45, which I have co-signed, and to other amendments in this group.
The original Clause 9 was inserted in the Commons and is designed to bring in safe access zones around abortion clinics without delay and ensure that women can safely access their legal right to healthcare. We had extensive debates on the necessity for Clause 9 at earlier stages of the Bill. I will not repeat arguments and shall aim to be brief.
It is clear that revision was needed to Clause 9 as we received it from the Commons. The Government were not able to make a Section 19(1)(a) statement that the original clause was compliant with human rights, and noble Lords raised a number of other issues at earlier stages. I have co-signed Amendment 45, to be considered by your Lordships as an alternative to the existing Clause 9. This is a cross-party proposal based on debate and amendments at earlier stages, and is an alternative that I hope your Lordships will agree is an improved and now legally robust and compliant amendment, fulfilling our duty as a scrutinising, revising and improving House, while keeping the intent of this clause, as voted for by a Commons majority on a free vote. We have worked to ensure that this amendment is compatible with the Human Rights Act 1988 and we have been told that it does now meet the threshold for a Section 19(1)(a) statement. I would be grateful if my noble friend the Minister would confirm this from the Dispatch Box.
Amendment 45 also makes changes responding to other concerns raised by noble Lords at earlier stages. We have removed custodial sentences from the clause; private dwellings and places of worship have been exempted, as long as activity there is not designed to impact women outside that space trying to access healthcare; and we have included an exemption for those “accompanying, with consent”, to ensure that conversations that women wish to have will not be captured. The amended clause still contains the word “influence”, as referred to by my noble friend Lady Morrissey. It is a word in the original clause that was subject to some debate in Committee. This wording is also used in existing UK legislation for safe access zones in Northern Ireland, also referred to by my noble friend. That legislation was, indeed, upheld in December last year by the Supreme Court.
Of course, Northern Ireland is a different jurisdiction, and abortion is provided there in a very different way from that in England and Wales. I am not making the case that this legislation we are putting forward is identical to that in Northern Ireland: it is not, and nor should it be. This amendment reflects the needs of clinics and hospitals here in England and Wales, but it is important to note, because we all want to get the balance of this right, that the Supreme Court, in its ruling of 7 December last year, ruled that the use of the term “influence” was not only relevant but necessary to deliver on the introduction of safe access zones. It specifically stated that its removal and a sole reliance on “harassment, alarm and distress” or “impeding” provisions would leave women in Northern Ireland open to continued breaches of their rights, which is certainly not something we want. Again, recognising concerns about this wording in Committee, the offence is now one of strict liability in the new clause proposed by Amendment 45.
I will not support other amendments in this group if they are pressed to a vote. Amendment 41, which would put in some protection, does not actually go as far as Amendment 45, which exempts all private dwellings and places of worship within the zone. On Amendment 43, my noble friend Lady Morrissey criticised the level of the fine in Amendment 45, but I believe that her Amendment 43 puts forward exactly the same level of fine that we have put forward in Amendment 45. On Amendment 42, the use of Australian legislation in the proposed new clause was carefully considered and discussed with the Home Office at an earlier stage, a good few months ago now. It was decided that it would be better to base our new law on existing UK law, rather than on Australian law. Of course, as with Northern Ireland, there is a very different system for the provision of abortion, and a very different rights framework, and we now have the UK Supreme Court judgment.
I do not believe that these amendments fully address all the other concerns I have discussed, which noble Lords raised at earlier stages, and I think that Amendment 45 is more legally robust than the original, even with these amendments. I will leave it to other noble Lords to put forward the views they expressed in earlier debates. Lastly, my noble friend Lady Morrissey mentioned MSI. She is absolutely correct that MSI Australia is supportive of the legislation within Australia; however, MSI UK is very clear that it strongly believes that Amendment 45 is the right option for England and Wales.
On Amendment 44, I am grateful to my noble friend Lord Farmer for his courteous words as ever, and I share his desire to get this right, but I do not support another review by the Home Office. I wish this legislation was not necessary, but every week around 2,000 women use abortion clinics that are now regularly targeted by protesters. This activity is on the rise and much of it is organised and funded by groups from the United States. Action is needed to ensure that we do not allow this activity to escalate here in the UK. We are seeing these zones introduced in France, Spain, Canada, Australia, Northern Ireland and soon in Scotland as well. It is really important that we give women in England and Wales the same protection that women are getting in those jurisdictions. Patients, women’s groups, providers, medical practitioners and MPs are clear that we ought to take action now.
Lord Beith (LD)
My Lords, I have viewed this issue from a civil liberties standpoint, and that left me rather alarmed at the wording of Clause 9 as it came to us from the House of Commons. It clearly indicated a willingness to extend our laws in ways we have never contemplated before, to the expression of opinion or to influencing people. I was profoundly unhappy with all that wording and not entirely convinced that the matter could not be dealt with using the existing law—as I remember from often quoted cases, it has been. It raised the worry in my mind of where else these principles could be applied—for example, to vaccination clinics if they were picketed by anti-vax people, or to scientific laboratories where animal experimentation is carried out and staff are very fearful of their names and addresses becoming known and of walking into work. These are dangerous things to import into our law but potentially attractive in a number of other situations.
After we tabled amendments in Committee, I met the Minister and Home Office civil servants. I am grateful for that meeting, as it really showed that work and effort was being put into trying to find a clause which was compliant with the ECHR, and which met the genuine concerns of those who brought it forward in the Commons. I am glad to say that the amendment in the name of the noble Baroness, Lady Sugg, has met a number of my concerns. It obviously could not meet my concern that we might have been able to do this by existing law, but it has more clearly directed the focus of the Bill to deal with the perceived harm, which is the intimidation, harassment or unfair pressure. It has not sought to hang measures which go far beyond what can be reasonably justified in a free society on to that definition.
A number of things that the original clause had in it are not to be found in the amendment proposed by the noble Baroness, Lady Sugg. Within the amendment, it is no longer a criminal offence to express an opinion—a concept that absolutely horrified me, and that no one could seriously suggest I would ever vote for given my political background and views. Nor does that amendment interfere with people’s liberties as to what they do in a private house, for example, as it explicitly makes an exception in that respect; nor does it impede directly the work that goes on inside churches if they suddenly find themselves inside a zone because the zone has been brought around them. One of the oddities of this legislation is that the shape of the zone is statutory and cannot take into account any particular local considerations.
The original clause would, in my view, have actually precluded discussions between staff who were arguing whether a late abortion was justified in particular circumstances. The clause was so wide and so dangerous and, again, the things I have listed have been addressed in the amendment in the name of the noble Baroness, Lady Sugg. What was included also was the case of accompanying persons who might be having a genuine discussion with the woman concerned—maybe her sister or her partner—and perhaps taking different views in the discussion that is taking place within that area. That accompanying person provision has been dealt with, and I am glad that it has been. I am sympathetic to the amendments in the name of the noble Baroness, Lady Morrissey, but my main concern is that, when this goes back to the Commons, it goes back in a form in which it is not likely to be defeated. I think we are approaching that point. I would have preferred to have dealt with this in another way and for a review to take place, but we are where we are. It is a difficult judgment for Members of your Lordships’ House—or, at least, I think it is difficult. In my view, the work that has been done to propose this new clause has gone a long way to meet the concerns once you accept that something has to be done. In time, it may be seen to have some defects which would need further remedying, but that has influenced my approach to it.
Lord Weir of Ballyholme (DUP)
My Lords, I rise to support Amendments 41, 42, 43 and 44. Like others, I have strong views on the subject of abortion; I suspect I am in a minority position within both this House and this country, but, as a number of noble Lords have said, today’s debate is not about abortion and what position any of us hold on that subject. That is a debate for another day.
I think there are two key points in relation to this piece of legislation which this group of amendments goes to: first, what is appropriate and proportionate in terms of the law, and, secondly, how do we protect everyone’s rights? I agree particularly with Amendment 44 from the noble Lord, Lord Farmer, as it deals with some of the very concerning wording in Clause 9. Also, it is surely a time for a level of pause for thought because, as the noble Lord, Lord Farmer, indicated, thankfully it is the case that we are not in the United States.
The current law regarding abortion has been in place for most of this country for longer than I have been on this earth—just about, if any of you want to guess my age in that regard. It is a question as to why this is suddenly an emergency-type situation. Are we seeing a scale of problems on the ground for which there is not an existing law? I would say that is not the case. We do need to have thoughtful law as to appropriate levels of protection for everyone, and therefore I am very much minded towards the proposal which says “Let us examine what actually the facts are, rather than rushing through a piece of legislation and indeed a clause which applies a particular draconian solution to that”.
On the issue of how we protect everyone’s rights, there are elements within Clause 9 that I think no one in this House could ultimately disagree with. If we are saying, for example, that we want to protect anybody, in any set of circumstances, from intimidation or threats, in every situation, I think all of us would say “Yes, protections need to be there”. Similarly, we would want to protect people from harassment, or from being impeded or blocked from something. Whether it is at a clinic or in any set of circumstances, I think everyone in this House would agree that those protections need to be there. I would question the necessity of this clause on those grounds, because a range of laws already provide that level of protection against threats and intimidation.
Leaving that aside, if that was all that was in Clause 9, there would not be so much of a problem. I appreciate that Amendment 45 softened the language in some regards in relation to this, but according to some of the aspects that are within Clause 9 at present, we are going to criminalise anyone who
“advises or persuades”
or
“attempts to advise or persuade”,
or—perhaps most worryingly of all—
“otherwise expresses opinion”.
If Clause 9 goes through unchanged, we are making an expression of opinion a criminal offence.
The alternative wording in Amendment 45 talks about making it a criminal offence to influence, but surely at the heart of the concept of freedom of speech, and the value of democracy, is the peaceful way in which people try to persuade others of their point of view? It should be a battle of ideas. I indicated clearly that, where that goes beyond the art of persuasion towards any level of threat or intimidation, it is unacceptable and should be criminal, but if we are criminalising expressions of opinion or influence, that is fundamentally wrong.
As I indicated, I have a different view from many within this Chamber on the issue of abortion. But, if we are to defend freedom of speech and the freedom to protest, it is very easy for any of us to stand up and say that we believe in freedom of speech on an issue that we agree with, and it is very easy for any of us to stand up in this Chamber or elsewhere and say that we support the right to protest whenever we agree with that protest. But surely the test within any free society is about defending the rights of people who hold opinions that we disagree with—views which we would find unacceptable.
Lord Hogan-Howe (CB)
I thank the noble Lord for giving way. I understand the point he makes about the possibility of making the argument, but is his argument that the best place to have that debate—I think he used the word “battle”—is directly outside an abortion clinic as people approach, at the point at which they might be receiving treatment?
Lord Weir of Ballyholme (DUP)
Let me make it clear that it is not a place I would see myself being. But the point is that, if they are doing it in a peaceful, persuasive way, people may take actions and views which we—
Lord Weir of Ballyholme (DUP)
Well, it is good to see, in relation to that, the idea that we need to defend opinions and the rights to protest and free speech, even if we fundamentally disagree with the opinion that is put within that.
As has been indicated already, and as we have seen with PSPOs, the problem is that, in terms of interpreting the law, there is a level of mission creep that goes well beyond simply the issue of threatening or intimidation. For example, with PSPOs, we have seen people prosecuted for simply taking part in prayer.
As I said, if we are going to defend the right of people to freedom of speech and freedom to protest—and, yes, that always has to be done in a peaceful manner—let us do that not simply for things we agree with, or even things we disagree with, but even things that we find repugnant. As such, I believe that what is in Clause 9 is totally unacceptable. As I said, it mixes in things that all of us would find perfectly reasonable with things that go well beyond that. Seeking to criminalise an interpretation simply of influencing someone similarly takes this beyond what the bounds should be.
Lord Jackson of Peterborough (Con)
My Lords, I rise to speak to Amendment 45, tabled by my noble friend Lady Sugg, and to strongly and emphatically support the amendment in the name of my noble friend Lord Farmer. I am unconvinced as to whether, at the present time, Amendment 45 actually ameliorates the concern about incompatibility with the European Convention on Human Rights. I will be interested to hear the Minister’s specific answer to my noble friend Lady Sugg’s question. I do believe, however, that this amendment is still disproportionate and is a significant attack on freedom of speech and thought.
First, the amendment seeks to criminalise those who are
“influencing any person’s decision to access, provide or facilitate the provision of abortion services”.
When compared with Clause 9, this is still extraordinarily broad and could potentially cover a whole range of innocuous activities. I know that there is a value judgment to be made about handing a leaflet to a vulnerable woman offering financial or housing support, but what about silent prayer, as we have seen examples of more recently?
This amendment does not actually exclude the outside of private property, so anyone who is in their private garden or their own car expressing their conscience could be criminalised. For a law which specifically proposes to limit fundamental freedoms of speech, expression and even thought, should we not be very specific about which behaviours are being disapproved of and where?
Yet, this amendment is indiscriminately applied to every clinic in the nation. As noted, the prohibited behaviours are far too broad. For example, in Clause 9 the 150-metre arbitrary curtilage limit refers to the abortion clinic at Mattock Lane, Ealing, west London. Behaviours, such as standing silently as if praying, which are found to have influenced someone, are included. Quite how this applies is a moot point.
The Lord Bishop of Manchester
My Lords, in Committee I shared my concerns about Clause 9 as it then stood. I am grateful for conversations that have taken place since. I particularly thank the noble Baronesses, Lady Sugg and Lady Barker. The latter has listened patiently and sympathetically to me and my friends on these Benches at some length.
My concerns regarding Clause 9 had nothing to do with the moral merits or otherwise of abortion; they lie in my passion to see upheld the rights of citizens of this land, both to receive healthcare and to protest. Women must be able to access lawful medical interventions without facing distressing confrontations, directed at them personally, when they are identifiable by their proximity to the clinic or hospital. At the same time, anyone who wishes to protest in general about abortion law must be able to do so lawfully, with the least restriction on where and when they may do so.
I am grateful to the noble Baroness, Lady Morrissey, for the proposals she sets out in Amendments 41 to 43, which build on the Australian example. Were they the only amendments put forward, they would have my support. However, what we now have in Amendment 45 is, I believe, something that strikes a more exact balance. It meets human rights requirements and contains sensible limits. It has widespread support and is, I believe, more likely to survive scrutiny in the other place. If it is moved, I intend to support it.
I accept the remarks of the Supreme Court regarding the necessity of proposed new paragraph (a) on influencing, but I have two brief questions on that matter on which I seek clarification. Much has been made in religious circles about whether silent prayer would be criminalised by this clause. We have heard it again tonight. As noble Lords might expect, I believe in the power of prayer, so I want to clarify on the record that the act of praying is not in itself deemed an attempt at influence, given that when I pray, I am trying to ask God perhaps to change the heart of a third party.
My second and rather less metaphysical question is intended to clarify that influence works both ways. Would a coercive and controlling partner, or ex-partner, determined that a reluctant woman should go ahead with an abortion and accompanying her against her wishes, be as guilty of the same offence as an anti-abortion campaigner?
Finally, I cannot support the amendment in the name of the noble Lord, Lord Farmer. It would remove safe zones from this Bill without providing any obvious parliamentary process for us to re-engage with the issue in a timely manner.
Baroness Thornton (Lab)
My Lords, I very much welcome the remarks of the noble Lord, Lord Beith. I am so glad to hear that he has considered this matter and come to the conclusion he has. Of course, I also welcome those of the right reverend Prelate.
I say to the noble Baroness, Lady Morrissey, that this is a good try, but her proposals might well have benefited from testing had she been involved in Committee. She might have changed her mind about how we in this House need best to reflect the clear will of the elected House on this matter. Not only has the elected House had a clear view on this matter, so has this House. Our job today is to make sure we provide at this point in the Bill an amendment that does that job. Amendment 45 does that because it complies with the EHRC, recognises differences and proposes a framework that reflects the issues as they pertain to abortion provision in England and Wales.
However, Amendment 44 would in many ways do what we saw the last time we discussed this matter: kick it into the long grass. Indeed, I remind the House that last time, it was defeated by 138 votes to 39. It would bring about a delay, meaning that thousands of women, nurses and midwives going about their lawful business would be harassed and intimidated. This seems to me to be really very straightforward.
Baroness Hoey (Non-Afl)
My Lords, I welcome the fact that there seems to have been a change in this House. No one really is pushing for Clause 9 just to stay as it was. I very much welcome that. I will speak in support of Amendment 44 from the noble Lord, Lord Farmer, and say a few words on what I thought was a wonderful speech from the noble Baroness, Lady Morrissey, on her amendments. I will support those when and if they are called, as well as Amendment 44.
Surely the role of this House must be to help enact laws that are necessary and proportionate, according to evidence. I have not seen the evidence to say that it is necessary to enact this whole area around abortion clinics when, as has been pointed out by other noble Lords, we already have legislation covering many—indeed all—of the activities that we would all find abhorrent. The importance of a review is that we can test whether, for example, the public space protection orders are working. It seemed that they were working when the lady who was silently praying was arrested. Have we looked in detail at what is working and what is not? Why do we need something else when these orders are in place? As a minimum, the House—and the Government—should be reviewing the PSPO regime to see whether it is working as intended. Good evidence makes good law, and the opposite is also unfortunately true.
Clearly, there is an appetite in the other place to “do something”. That is what politicians always call for. Something needs to be done, and they want to do it quickly; there is an appetite to act now. That being so, should Amendment 44 not be adopted, the House would do well to adopt a reasonable model based on a tried and tested approach. For that reason, I support the amendments in the name of the noble Baroness, Lady Morrissey.
Lord Winston (Lab)
I want to make the point that perhaps I am the only Member of this Chamber who has had that evidence. I have had it for years. It started with in vitro fertilisation—which was regarded as abortion then—when my patients were repeatedly harassed and made ill as a result of what was happening to them in the street outside Hammersmith Hospital and in other clinics, not only in mine. There is plenty of evidence to show that women were deeply distressed, and this created a very difficult issue for their care afterwards.
Baroness Hoey (Non-Afl)
I am sure the noble Lord is absolutely right in what he says; of course women would be distressed by that kind of behaviour. What I am asking is whether it is necessary to take this draconian approach. For me, the real problem with the amendment in the name of the noble Baroness, Lady Sugg, is the word “influencing”. The noble Baroness has said that it has been seen as perfectly okay, but I believe it goes much further than is necessary to achieve the law’s stated aims. I genuinely believe that it has grave implications for freedom of speech in the country; it is a drip-drip approach and a slippery slope to other ways in which freedom of speech will be attacked.
I reiterate what has been said by a number of other noble Lords: the UK Supreme Court ruling on Northern Ireland’s law cannot be interpreted as a judicial mandate to endorse Amendment 45, which is in many ways very different from Northern Ireland’s law; it is much more draconian. The Australian model, which was mentioned by the noble Baroness, Lady Morrissey, is reasonable, effective and clear. The Australian courts have interpreted what the communication prohibition means, and the requirement that
“communication must be reasonably likely to cause distress or anxiety”
suggests, I believe, that the law is tailored more properly to its objectives. It avoids overcriminalisation and it is responsive to the distinctions on the types of activities that Clause 9 should capture, as made in Committee by noble Lords on both sides of this debate.
I urge noble Lords to agree to a reasonable approach, the most reasonable of which has been put forward by the noble Lord, Lord Farmer. If not, and if others decide that we need to do more, I hope that we will be able to support Amendments 41 to 43, tabled by the noble Baroness, Lady Morrissey, ensuring that we protect women without completely disregarding civil liberties.
Lord Cormack (Con)
My Lords, I have often said in this House that the first question we should ask when confronted with a new Bill is: “Is this necessary?” This point was touched on by the noble Baroness, Lady Hoey, a few minutes ago. I do not believe that this Bill is necessary much at all, and I certainly do not think that Clause 9 is necessary.
I would like to make an appeal to your Lordships tonight. Why can we not convene a meeting before Third Reading, because in our House it is possible to bring forward an amendment on Third Reading. It is very important that my noble friend Lady Sugg should be prominently involved in that. She has genuinely tried—and I respect and honour that—but I do not think she has got it quite right, and I say the same to my noble friends Lady Morrissey and Lord Farmer.
I think we need to have a round table to discuss whether it really is necessary to keep Clause 9 in the Bill and what we should replace it with, if anything. I do not believe we have the solution tonight. Each of the amendments before us has certain merits but not a single one of them covers all the problems as perceived in the past. I still think that it is possible to deal with those things, such as the problems just referred to by the noble Lord, Lord Winston, with laws that are already on the statute books—books that are far too cluttered already.
Can we not just pause, reflect and discuss, and see if Clause 9 is necessary, which I do not believe it is? Can we decide what we would replace it with and which elements of the three sets of amendments before us tonight can best be combined to give protection, if it is needed, to those who are harassed—there is not a great deal of evidence but I accept that it happens—and to protect the freedom not just of speech, which is so important to all of us, but of private prayer, without which you will wrench the soul from a community? Nobody can stop my praying privately, because you do not know when I am doing it. It is important that we recognise that freedom of speech without freedom of religion is hollow and false. We have to preserve them both.
Lord Hogan-Howe (CB)
My Lords, I support the amendment from the noble Baroness, Lady Sugg, to which I have added my name. I do not support the review in the amendment from the noble Lord, Lord Farmer. Everybody has been careful not to say that there is no evidence but that there is insufficient evidence. I think there is clear evidence that there is a problem. In fact, the international response of other jurisdictions shows that it is not just a UK problem; I am afraid it is a more widespread problem than that. I think there is a need for a new law, and I support this particular amendment because it is a reasonable response to an unreasonable challenge at the moment.
I did some research with officers who are trying to deal with these problems at the moment to see whether this response looked reasonable. First, those who oppose Amendment 45 say that it prohibits protests. Of course, that is true, but we had that this afternoon here: you cannot protest here. It is not the only place in the United Kingdom where people cannot protest. We are talking about 150 metres around a relatively small group of places, that are the only places women can approach for this sort of treatment—it is a legal treatment though I accept that people have strong views about it. One hundred and fifty metres is really quite a small area.
Secondly, people say that public space protection orders should be used as an alternative. I am afraid that the problem is that they are not working in the way that was intended because they were not intended for this problem; they were intended to help local authorities deal with various unspecified problems. In some areas, drivers were parking up because they were trying to get to a certain place and people who lived in that area were having problems with engines running all the time, so it was used for that sort of thing. It is a very vague power which has been useful with many problems, but it has not proved particularly helpful with this one.
One of the challenges is that local authorities have many priorities, and this is not always one of them. They have challenges around budgets, so they cannot always go to court—so often, even if there is a problem, these protection orders are not being applied for.
The second problem is that, with each local authority approaching this in its own local way, the wording is inconsistent. The police are asked to apply them consistently, but each wording is different—whether there is intent there or whether there is not—and that really has caused a challenge.
The police have been criticised a couple of times today for their lack of action sometimes, but they are taking action in some of these cases: in fact, there have been complaints about the fact that they have arrested people who were praying. Although that has been used as an example of something draconian, in the cases where people have been praying the CPS has declined to prosecute. All that the police have done is make an arrest. They do not decide to prosecute: that is the decision of the prosecutor. In these cases—for example, in the West Midlands case—the decision has been based partly on the fact that no one can be sure whether a person who is praying is going to protest against or support abortion, so how could they possibly make a decision about prosecution?
Secondly, there was a case where an individual had displayed within a zone a protest sticker or protest banner within their vehicle that talked about murder and abortion. In that case it was not about a lack of evidence; the CPS decided it was not in the public interest to continue. So I am afraid we are not seeing prosecutions and we are seeing dilemmas, and people are saying that there are complaints about people’s behaviour.
Another challenge is that the women who are most affected by this do not want to make complaints. Why would you? You are at your most vulnerable. You do not want to be identified. You certainly do not want to go to court and be a witness. In some people’s cases, they have come to mainland UK to receive abortion services, not having been able to obtain them in another part of the UK—so why would they want to advertise the fact that they have got involved in an abortion service? So this has relied a lot on the staff.
The staff’s view is also important. Every patient who is affected—badly, in my view—is affected only on the occasion when they seek assistance, but the staff are there all the time, day in, day out. Imagine the pressure on them as they go to their job, which they take to be helping somebody to improve their life, or at least to travel forward in a different way.
The aggravated feature for me of the behaviour being complained about is that these women are en route to a treatment that they cannot obtain anywhere else. As I mentioned earlier in my question, I do not really think these are protests. Where there is not an order in place, the people protesting are directly outside the entrance or exit of these buildings, directly approaching the women who are going to seek a service. This is not about trying to convince the Government. It must be the least effective form of protest if it is trying to influence the Government. People in here are saying they did not even know there was a problem—so how can it possibly be that that has been an effective form of protest? I am afraid that is not really a sound argument.
If that is the best place where somebody can seek to influence someone, there is already a law saying that when someone is seeking abortion services, they should seek advice about other options. If they need financial support, adoption or any of the other things that might help somebody in these terrible circumstances—the dilemmas that I sure they must face—the law says they are entitled to that support from the medical advisers and from other people who will help them. The least effective way, surely, has to be shouting across the street or handing out a leaflet at the point where somebody is trying to get treatment and already has a dilemma. I cannot see that that is a sensible way to address the particular problem that we are talking about.
It seems that this gets worse at certain times of the year. More protesters turn up at abortion clinics during Lent. Why should women who have to go during the Lent period have to face more pressure than the women who go at a different period? That is someone else’s view.
I want to address the point about prayer. I think we all understand why prayer is particularly sensitive. Of course nobody wants to ban it, but not everybody finds prayer a supportive thing. I say this with respect to the bishop and as a Christian, but not everybody reacts in the same way. You cannot assume that a prayer expressed on the street is something that everybody wants to receive, and in my view they have every right to resist, or not to be faced with that dilemma. We have to keep that in mind too.
The only final thing I would like to say is that we have talked about behaviour in very general terms, but some of it has been abhorrent: handing out dolls in various stages of development, handing out protest leaflets that are very explicit on what people are complaining about, and judging people at a point when they have a very difficult decision to make. I say finally that this chanting carries on can be heard in the clinics—it is very obvious when you think about it, but I had not until the weekend. At the point at which women are receiving treatment, they can hear this chanting and hymn singing outside. Would you like it, in any medical treatment? It is just not acceptable and something needs to be done.
I like the tone and broad direction of the amendment from the noble Baroness, Lady Morrissey, but I worry, that with people’s human creativity and that 150 metres around the clinics, they would be very creative and the only people who would suffer from that would be the women. So I cannot support that amendment, but I understand why it was made. Finally, I will say that I support Amendment 45 for the women’s sake, for the sake of people who are employed there, and for anybody else who might be visiting at the very time that these protests are being made.
Lord Shinkwin (Con)
My Lords, I rise to speak in support of the pragmatic way forward, provided by cross-party Amendment 44 in the name of the noble Lord, Lord Farmer, and the noble Baronesses, Lady Fox and Lady Hoey. I thank them for tabling it, and I do so for a particular reason. Some would have us believe, as we have heard in this debate, that this is simply about abortion. Noble Lords should be clear: it is not. There is so much more at stake that should concern us all. This amendment gives your Lordships’ House the opportunity to chart a more measured way forward that avoids the perils of passing a law that undermines a hard-fought fundamental freedom: the freedom of conscience—a freedom that, surely, it is our responsibility and our privilege to champion and, most certainly, not to undermine.
I will not rehearse the points I made when we last considered this clause. Suffice it to say, it frightens me, because it threatens freedom of conscience and creates a precedent with potentially huge ramifications, which should surely alarm and unite all of us who value democracy. Some noble Lords have mentioned urgency—even emergency legislation. This is why we cannot afford to rush headlong without a review—just a review, not a final decision—being conducted first so that, in line with subsection (4) of the new clause proposed by Amendment 44, the proportionality of the measures proposed in Clause 9 can be carefully considered in the round, taking the views of all the stakeholders, including, of course, abortion providers, into account. We talk in this Chamber about the danger of passing legislation with unintended consequences. This clause proves our point perfectly. It has danger written all over it.
I say to any noble Lord who does not care about the risks of undermining freedom of conscience, about setting dangerous precedents or about passing laws brimming with unintended consequences: please, go ahead—vote for this clause and for other amendments. But if any noble Lord has so much as a shred of doubt, I urge them to vote for the review which, I repeat, is not a final decision. It is simply a review, proposed by Amendment 44.
Baroness Fox of Buckley (Non-Afl)
My Lords, the debate in Committee was extensive and expressed concern that the wording of Clause 9, whether it intended to or not, was setting a dangerous precedent in which free speech and opinion, through giving out leaflets, could be criminalised in state-designated zones around hospitals and clinics. Some of us asked, “Where next?”, and I put down amendments to Clause 9. I am really pleased that the debate led to people changing their minds because concerns were heard, and I commend the noble Baroness, Lady Sugg, on listening. Amendment 45 is undoubtedly a different provision from having that Clause 9 and, in my opinion, is much improved from a civil liberties point of view.
We should therefore note that the proponents of Clause 9 now do not support it. Good—that is that out of the way. However, I have several problems with Amendment 45 but will concentrate on one at this time. It is about its proposed new subsection (1)(a), which has the idea that there should be no attempt to influence
“any person’s decision to access … the provision of abortion services”.
Influencing has been discussed here this evening in appropriately legalistic terms, which are important, but I want to bring a different perspective. It is dangerous to suggest that influencing someone to change their mind about a decision made should be against the law, in almost any circumstances. This is not the same as suggesting that the appropriate place to have, as somebody called it, the free speech debate on abortion is outside an abortion clinic. I organise a festival called the “Battle of Ideas”, but we should not be having a battle of ideas outside an abortion clinic when somebody is trying to access healthcare. That is not the basis on which free speech is threatened by these buffer zones going national, which I think it is.
Many women are very firm and clear; they have made a rational decision that they want an abortion. They have given a lot of time to that decision and will not be deterred. I do not think they would even be deterred by anti-abortion vigils going on, because they know what they want to do. It is a bit distressing but they go in, and good luck to them. However, some women may be unsure. If they are toing and froing, they should and must be free to change their mind at any time and in any direction, up until either termination or what have you. It is not coercive if you think again. If a woman is trying to work out, “Should or shouldn’t I have a termination?”, they can go to see a counsellor at BPAS or a Marie Stopes clinic because they are not sure. If somebody tries to influence them—not in one way or another, but by getting them to talk it through and think about it—a woman might then leave that counselling service and say, “I’ve thought about it now. I’ve made my mind up and I’m going to have a termination”. That is a woman’s moral autonomy and we assume she is not coerced in that situation. A woman who may not be sure and is still thinking about it, even as she goes in for a termination, might be given a leaflet and then says in her own defence, “I’ve changed my mind. There may be an option of getting some practical support for pregnancy”.
Whatever the reason is, that is their choice. The point is that I am pro-choice. I do not want us to undermine women’s agency in our enthusiasm to support laws presented as protecting women. We should not legislate on the basis of worrying about women, how they feel, and their being distressed. Influence is something we should protect. I want to influence you now. I might be failing, because you have the capacity to listen and make a decision. Influencing is the basis of democracy. We should be careful about saying that we should not be allowed to influence because a Bill in Parliament said, “Don’t influence in that bit of the country”.
I consider these vigils insensitive and a nuisance. I disagree with the anti-abortionists outside. I think that abortion is a woman’s right to choose and a key right for women. I find the views of the people on these vigils offensive, and their demonstrations are often objectionable and distressing. However, in a democracy we have to tolerate people who sometimes have views we find distressing or offensive.
I want to emphasise that earlier we had lots of debates about proportionate law-making and civil liberties. Everyone on this side of the House has made some fantastic speeches about how we have to be careful about bringing in laws and what the thresholds are. Amendment 1, which I spoke on and supported, suggested a much higher threshold for what we consider “serious disruption”. I do not think these vigils, however obnoxious they are, would merit even the lower threshold the Government had. Basically, what I am saying is that I do not like them, but I do not think we need a law against them. I listened in Committee, as well as the noble Baroness, Lady Sugg, and changed my mind. I was trying to amend Clause 9, but instead I do not think we should amend it at all. We should review whether we need nationally mandated buffer zones at all. I do not want to amend the buffer zones; I want to stop, pause and look at the evidence.
Throughout Committee and since, I have talked to lots of people on all sides. I have been inundated by my mates on the pro-choice side and people on the other side. What struck me was the variance in what I was hearing. We have heard from a former police leader that he has gone round and there is a real problem. We heard from the noble Baroness, Lady Sugg, that this is escalating. There is American money, and all sorts of things are happening. We have heard that, since Roe v Wade, there are lurid stories of quite aggressive things happening outside abortion clinics. I have also heard on the other side that all anyone is doing is silently praying and it is completely benign.
The truth of the matter is that, if we are going to make such a dramatic change in the law from locally decided PSPOs, where there is a particular problem, to a national decision to carve up some public space and say, “No, you are not allowed to stand there”, when there might not have even been a problem, can we not at least base it on what is really going on? Public space protection orders are local remedies. I do not like that carving up of public space, but it is there and it is used. In 2018 the Home Office asked the same questions we have asked tonight, did an extensive review of vigils around abortion clinics and concluded that introducing national buffer zones would not be a proportionate response considering the experiences of the majority of hospitals and clinics and that the majority of activities are more passive in nature. People who wanted this clause say, “No, that is out of date and completely wrong. The 2018 review does not hold”. Fine; let us have a 2023 review. That is all I am saying, let us find out; I am adamant about that.
One of the things I have been completely won over on is that the victims of these vigils are often not women trying to access a termination but the staff day after day. When you are going in for the termination, they might annoy you once. I cannot imagine anything more irritating than having to walk past this if you are trying to do your job providing women’s reproductive healthcare.
Let the review look at whether we can have a particular way of dealing with that. When I was talking about PSPOs, I heard, “PSPOs don’t work, you know; they’re useless at this”. In that case, we need a review. Come back in less than a year, so we can have decent legislation that fits the facts, not the virtue signalling. For the sake of women’s rights, it seems important to me that we take this seriously and not just do it as a political act.
Lord Etherton (CB)
My Lords, I shall support Amendment 45, subject to one important qualification. My experience in relation to this derives from presiding in the Court of Appeal over the very first buffer zone case, Dulgheriu & Anor v the London Borough of Ealing. Ealing set up what is now called a buffer zone around the Marie Stopes clinic, and I will refer to a couple of matters that have arisen in the course of this debate which informed the judgment in that case. We dismissed the application for a public spaces protection order, which was made by a Christian group called the Good Counsel Network. It protested daily, and its protests comprised a variety of different actions, including presenting people who were going into the clinic with posters of foetuses at various stages of development, distributing prayer beads and putting up tents. Overall, the object was to prevent an abortion taking place. There was also evidence that they called out “Mum” to the women going in, that they presented puppet babies and that they held both verbal and non-verbal vigils. The evidence was that that was extremely distressing to vulnerable women, who were going into the clinic for advice or treatment, and it was equally clear that the staff were also extremely upset by what was happening.
I am afraid that I disagree with those who say we need a review to see whether the legislation is necessary. It is clear that the 2014 Act under which the public spaces protection orders are made is not designed to protect individuals in this way; it is designed for the benefit of a community when there is an action or activity that is harmful to the community. So there is no legislation that can provide this sort of protection, so far as I am aware and Ealing was aware, and which is designed specifically for this type of attack, in effect, on very vulnerable people seeking medical advice.
I agree with my noble friend Lord Hogan-Howe in this respect: this is not like the protests we have discussed so far today; these are actions directed to particular people who are particularly vulnerable. There is no other legislation, so the only question is: do we have this on a national or a local scale? Under the 2014 Act, a number of consultations have to be conducted. They can take a great deal of time—not just weeks or months but sometimes years; the Ealing consultation took a very long time to complete—so, from my perspective, legislation of this kind is needed for the protection of vulnerable individuals. Amendment 45 covers the ground perfectly, subject to one thing: I do not believe that it is consistent or appropriate for the maximum penalty for this type of offence to be limited to level 5 on the standard level.
For tunnelling, the penalties range from fines to imprisonment. Many of these religious groups are very well-backed; I do not anticipate at all that, if there was a fine, that would be the end of the matter. I think there would be repeat offences. Consistently with the earlier provisions in relation to tunnelling, for example, on indictment there should be provision on repeat offences for there to be the ability to pass a sentence of imprisonment.
Lord Paddick (LD)
My Lords, this has been a long and passionate debate. We support Amendment 45 and only Amendment 45 in the name of the noble Baroness, Lady Sugg, signed by all sides of the House—the noble Lords, Lord Ponsonby of Shulbrede and Lord Hogan-Howe, and my noble friend Lady Barker.
As many noble Lords have said, this is not about the rights and wrongs of abortion. This is about someone who has made the very difficult decision to seek the help of an abortion service provider. As they approach the abortion clinic, they should not be met with groups of individuals whose sole purpose is to stop the woman securing the abortion services she is seeking. Of course, that does not necessarily mean physically standing in the way, but the mere presence of individuals can be intimidating to vulnerable people who are seeking such help.
It has been said that these individuals want to offer advice, but, if they are being honest, that advice is, “Don’t have an abortion”. Abortion service providers have to assess the needs of the individual seeking an abortion and offer advice and counselling on the options available, including: adoption; government and NHS support for if they decide to go through with the pregnancy; and the implications of having an abortion. Those who propose alternative amendments must surely accept that the presence of anti-abortion protesters in buffer zones amounts to a last-ditch attempt to prevent abortions, not to provide the objective, even-handed, science-based advice that is provided by abortion service providers.
Amendment 45 ensures the measure passed by 297 votes to 110 in the other place is European Convention on Human Rights-compliant. My understanding is that the Minister will confirm that the Government now consider this to be the case. We do not support the amendments in the name of the noble Baroness, Lady Morrissey. Amendment 41 seeks to remove the chance of a person being criminalised for expressing an opinion on abortion from their front garden or balcony. If there is a discussion going on between individuals in such places, they are unlikely to be heard by passers-by. If they are shouting at each other, either with the intent of influencing those attending abortion services or being reckless as to whether they might influence that decision, they must be covered by this clause. It is quite clear what Amendment 45 seeks to achieve, and the noble Baroness’s amendment is unnecessary.
Amendment 42, the noble Baroness claims, provides a pragmatic, reasonable approach to amend Clause 9 in a manner that respects the will of the Commons and seeks to make the clause more likely to be compatible with the ECHR. Yet Amendment 45 provides a pragmatic, reasonable approach that respects the will of the Commons and, the Government believe, is compliant with the ECHR. With respect, a safe access zone law from the state of Victoria, Australia, has not been tested for its compliance with the European Convention on Human Rights.
Amendment 43 may replace punitive prison sentences with fines compatible with similar offences, but so does Amendment 45. We do not support the amendment in the name of the noble Lord, Lord Farmer, supported by the nobles Baronesses, Lady Fox of Buckley and Lady Hoey. The purpose of the amendment, among other things, is to review the necessity of further legislation in this area, and whether legislating further would be proportionate.
Why has the noble Lord not put down such amendments to every other clause in this Bill, as there is overwhelming evidence, including from the police, from Just Stop Oil protesters, who are going to change tactics because too many of them are in jail under existing legislation, and many others, that legislating further on all these other issues is disproportionate?
I am grateful to Racheal Clarke at BPAS for her advice and briefings on this issue, where the case is strongly made for this clause, as amended by Amendment 45. Half of those treated by abortion clinics last year attended abortion clinics targeted by anti-abortion groups—more than 100,000 people. Protesters target the most-used clinics. People are delaying seeking abortion services because of encounters with anti-abortion protesters in the vicinity of abortion clinics, adversely affecting their clinical outcomes as well as suffering psychological impact. Police at a local level report being unable to address existing problems because of a lack of legislation.
Of the 50 abortion clinics targeted in the last five years, only five are now protected by public space protection orders, which are expensive for local authorities to prepare cases for and fight in the courts, were they to be challenged, and have to be renewed every three years. The threat of such challenges deters some local authorities from taking action when it is needed, and the refusal of a local authority to apply for a PSPO cannot be challenged. Unlike the rest of this Bill, there is clear evidence of the need for this clause as amended by Amendment 45.
Amendment 45 significantly amends the existing Clause 9. It takes into account many of the concerns expressed by noble Lords in Committee, and the Government now believe that it is compliant with the European Convention on Human Rights. We have had the judgment of the Supreme Court on similar legislation in Northern Ireland, as I referred to in a previous group. This clause, as amended by Amendment 45, is necessary and proportionate and we will support it.
Lord Ponsonby of Shulbrede (Lab)
My Lords, this has been a wide-ranging and fascinating debate, and some would say that this may be the House of Lords at its best.
I shall first address the amendments moved by the noble Baroness, Lady Morrissey. She has come late to the party, and I have to say that I think that her amendments have suffered for that reason. Her amendments have not been tested against the Human Rights Act in any way; we do not know what the House of Commons would think about them, and we do not know what the Supreme Court would think about them. Of course, that is in contrast to Amendment 45, where we have a good view of the House of Commons’ likely view, as well as that of the Supreme Court, and as far as we know it is HRA compliant. So I think the noble Baroness has difficulties with her amendments.
The noble Lord, Lord Farmer, spoke to his Amendment 44 and spoke about the lack of use of public space protection orders. I thought that we heard very effectively from the noble Lord, Lord Hogan-Howe, about how public space protection orders had not in practice been put to any great use. In fact, the noble and learned Lord, Lord Etherton, in his speech also explained why they were not suitable for protecting individuals, as opposed to the rights of groups. But I have to say that I think that the noble Lord, Lord Farmer, betrayed himself at the end of his speech when he spoke about the lack of evidence of public disorder, which he prayed in aid for having a review. I have to say that I am not thinking about public order —I am thinking about the individual women who are going to get these services and are being intimidated through cruel protest, in many ways.
I turn to the amendment from the noble Baroness, Lady Sugg, to which I also have my name. I pay tribute to her for all the work that she has done on this matter; I know that she has been in constant discussion with Members of the other place and the Government, and this really is as good a chance as we have to get something on the statute books in good time. As I say, I pay tribute to her. I am also pleased that the noble Lord, Lord Beith, has welcomed these efforts.
One of the most influential speeches was from the noble Lord, Lord Hogan-Howe, who talked about the practicalities of policing a 150-metre zone and local authorities being reluctant to put in place public space protection orders. He also talked about the ingenuity of protesters potentially being able to get around the amendment of the noble Baroness, Lady Morrisey. That was perhaps one of the most influential contributions this evening. I hope that the noble Baroness tests the opinion of the House and I look forward to the Minister’s response.
The Parliamentary Under-Secretary of State, Home Office (Lord Sharpe of Epsom) (Con)
My Lords, I echo other noble Lords who said that this has been a wide-ranging and fascinating debate. As has been referenced and as noble Lords will be aware, through a free vote in the other place, Clause 9, which establishes buffer zones outside abortion clinics in England and Wales, was added to the Bill by 297 votes to 110. I said during the Second Reading of the Bill and in Committee that the Government will respect the will of the House of Commons.
At the time of introducing this Bill in the House of Lords, I signed a Section 19(1)(b) statement under the Human Rights Act 1998. This was because, at the time, we believed it was more likely than not that Clause 9 would be found to be incompatible with the European Convention on Human Rights. We have considered this again following the Supreme Court’s judgment in relation to the Abortion Services (Safe Access Zones) Bill in Northern Ireland. We now believe that Clause 9 is more likely than not to be compatible with the convention. However, we must be clear that while we can draw some parallels between Clause 9 and the Bill in Northern Ireland in relation to the balance of rights, they are not directly comparable. In particular, the threat levels from protests are different in Northern Ireland and the Northern Ireland Bill does not cover private property. It is also worth noting that the legislation in Northern Ireland is not yet in force. There have been no prosecutions, so it is difficult to make any assessment regarding enforceability of the Bill in Northern Ireland.
Clause 9 was described at the time in the other place as a “blunt instrument”, as others have noted. There is always a balance to be struck between the rights of protesters and the rights of others to go about their daily business free from harassment and disruption, as we have heard debated in relation to many of the other clauses of this Bill. People’s rights to gather, express their views and practise their religious beliefs are protected under Articles 9, 10 and 11 of the European Convention on Human Rights. People’s rights to privacy in accessing healthcare services are protected under Article 8. All these rights are qualified, and it can be appropriate to infringe on them sometimes—for example, to protect other rights or prevent crime.
The Government committed to work with noble Lords across both sides of this debate to make Clause 9 clearer and more enforceable. I thank those noble Lords who took the time to meet me and discuss this issue, and I can assure them that all views were taken into careful consideration and constructive conversations were had on all sides.
The Government have decided to step back and will take a neutral stance during this debate. I committed, as I said earlier, at this Dispatch Box to respect the will of the House of Commons, and I think the best way to do that is to allow the House of Lords to express its will. This clause will undoubtedly be tested in the courts. But this evening, we are offering a free vote to noble Lords on the Government Benches—although I cannot speak for the other Benches—so that noble Lords can vote with their conscience on where the balance of rights should lie.
The Government believe that all the amendments on the Order Paper today would more likely than not be found to be compatible with the European Convention on Human Rights. With that, it is now for the House to decide which amendment, if any, they wish to support.
Baroness Morrissey (Con)
Given that, even if my amendments were passed, the whole clause would be overturned by a majority of support for either Amendment 44 or Amendment 45, I will save a few minutes of your Lordships’ time and beg leave to withdraw the amendment.
Lord Farmer
“Review into certain activities taking place outside abortion clinics in England and Wales(1) The Secretary of State must arrange for the carrying out of a review into activities taking place in the vicinity of abortion clinics in England and Wales which could influence any person’s decision to access, provide, or facilitate the provision of abortion services.(2) The review must include evidence from and consultation with the following—(a) the operators of abortion providers,(b) owners and occupiers of the land within proposed buffer zones,(c) the National Police Chiefs Council,(d) individuals, charities, and organisations impacted by proposed buffer zones,(e) the relevant local authorities, (f) the public, and(g) such other persons or organisations as appropriate.(3) The review must consider the effectiveness of existing relevant powers including, but not limited to, the power under section 59 of the Anti-social Behaviour, Crime and Policing Act 2014 (power to make public spaces protection orders).(4) The review must assess the necessity of further legislation in this area, and whether legislating further would be proportionate.(5) The Secretary of State must publish and lay before each House of Parliament a report on the outcome of the review before the end of the period of one year beginning with the day on which this section comes into force.”
Lord Farmer (Con)
My Lords, I agree that it has been a very wide-ranging debate, with passion on both sides. I come back to the point of evidence and I start with the fact that I do not think a review was debated in the Commons. The circumstances under which this clause was attached to the Bill in the Commons were all a bit confused. At one stage, the Government had said it would be whipped, because it was a conscience vote, and then they allowed it to be a free vote with, I think, an hour’s notice. Within an hour, they had a big majority. Well, it is about abortion; it is an emotive subject. As I say, there was no debate about the evidence-gathering and it came to us, as we see, as a blunted instrument.
Lord Farmer (Con)
My Lords, it is gone 10 pm now, but I wish to test the opinion of the House.
Baroness Sugg
“Offence of interference with access to or provision of abortion services(1) It is an offence for a person who is within a safe access zone to do an act with the intent of, or reckless as to whether it has the effect of—(a) influencing any person’s decision to access, provide or facilitate the provision of abortion services, (b) obstructing or impeding any person accessing, providing, or facilitating the provision of abortion services, or(c) causing harassment, alarm or distress to any person in connection with a decision to access, provide, or facilitate the provision of abortion services.(2) A “safe access zone” means an area which is within a boundary which is 150 metres from any part of an abortion clinic or any access point to any building or site that contains an abortion clinic and is—(a) on or adjacent to a public highway or public right of way,(b) in an open space to which the public has access,(c) within the curtilage of an abortion clinic, or building or site which contains an abortion clinic, or(d) in any location that is visible from a public highway, public right of way, open space to which the public have access, or the curtilage of an abortion clinic.(3) No offence is committed under subsection (1) by—(a) a person inside a dwelling where the person affected is also in that or another dwelling, or(b) a person inside a building or site used as a place of worship where the person affected is also in that building or site.(4) A person guilty of an offence under subsection (1) is liable on summary conviction to a fine not exceeding level 5 on the standard scale.(5) Nothing in this section applies to—(a) anything done in the course of providing, or facilitating the provision of, abortion services in an abortion clinic,(b) anything done in the course of providing medical care within a regulated healthcare facility,(c) any person or persons accompanying, with consent, a person or persons accessing, providing or facilitating the provision of, or attempting to access, provide or facilitate the provision of, abortion services, or(d) the operation of a camera if its coverage of persons accessing or attempting to access an abortion clinic is incidental.(6) In this section— “abortion clinic” means—(a) a place approved for the purposes of section 1 of the Abortion Act 1967 by the Secretary of State under subsection 1(3) of that Act, or(b) a hospital identified in a notification to the Chief Medical Officer under subsection 2(1) of the Abortion Act 1967 in the current or previous calendar year, and published identifying it as such, where “current” or “previous” are references to the time at which an alleged offence under subsection 1 of this section takes place;“abortion services” means any treatment for the termination of pregnancy;“dwelling” has the same meaning as in section 1 of this Act.”Member’s explanatory statement
This amendment replaces Clause 9 with an updated version following concerns raised at earlier legislative stages in the House of Lords; and in light of the Supreme Court judgment of December 2022 regarding a comparable law in Northern Ireland and the need to ensure compliance with the Human Rights Act 1998.
Baroness Sugg (Con)
My Lords, I am grateful to the many noble Lords who have stayed so late to listen to this important debate. It has been a considered debate, as others have said, and it has been a long one, so I shall be quick. I am very grateful to the noble Lords who have recognised the genuine efforts we have made with this amendment to find a reasonable and considered way through this, a way that will be accepted by your Lordships and by the other place. Amendment 45 is a more legally robust clause, it is compliant with human rights, it delivers the intent to protect women when they are accessing their legal right to healthcare and I would like to test the opinion of the House.