Grand Committee

Tuesday 21st February 2023 Grand Committee

Tuesday 21 February 2023

Arrangement of Business

Tuesday 21st February 2023 Grand Committee

Announcement

15:45

[The Deputy Chairman of Committees (Baroness McIntosh of Hudnall) (Lab)]

My Lords, I remind the Committee that, if there is a Division in the Chamber while we are sitting, the Committee will adjourn when the Division Bell sounds and resume after 10 minutes.

Packaging Waste (Data Reporting) (England) Regulations 2023

Tuesday 21st February 2023 Grand Committee

Considered in Grand Committee

15:45

Moved by

[Lord Benyon]

That the Grand Committee do consider the Packaging Waste (Data Reporting) (England) Regulations 2023.

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

My Lords, the regulations were laid before the House on 9 January. The date of laying is the same as in the other place.

These regulations are essential secondary legislation needed to implement extended producer responsibility for packaging. Extended producer responsibility will move the full cost of dealing with packaging waste away from households, local taxpayers and councils and on to its producer. Producers will pay fees to cover the cost of collecting and treating household packaging waste handled by local authorities.

This means that, for the first time, producers will be responsible for the cost of managing their packaging once it reaches its end of life. This will encourage businesses to think carefully about how much packaging they use, make packaging easily recyclable and encourage the use of reusable and refillable packaging. This will help reduce the amount of unsustainable packaging that is produced and used each year, reducing the damaging impacts that materials such as plastic are having on our global environment.

These measures will also help to reduce greenhouse gas emissions by more than 2.2 million tonnes by 2033—the equivalent of 5.1 million barrels of oil—as the creation of new packaging using virgin materials is reduced and producers are incentivised to manage resources more efficiently. This will contribute to our commitment to decarbonise all sectors of the UK economy and achieve net zero by 2050.

In addition, the shift of cost from local authorities to producers will provide an estimated £1.2 billion of funding to local authorities across the UK each year for managing packaging waste, easing the pressure on squeezed council budgets.

We set out the intention to introduce extended producer responsibility in the 25-year environment plan and in the 2019 manifesto. Working with the devolved Administrations, we have agreed to introduce extended producer responsibility for packaging at a UK level.

I now turn to the details of this instrument. These regulations will require packaging producers to collect and report data on the amount and type of packaging they supply from March 2023, or from January 2023 if they hold this data. This data is required to calculate producers’ recycling obligations and the extended producer responsibility fees that these producers will pay to cover the costs of managing household packaging waste from 2024.

Packaging producers already report data on packaging under the current producer responsibility regulations. These new regulations will refocus the obligation on to producers, who have the most influence over what packaging is used. They will require producers to report more information than they do currently about the type of packaging they produce. Larger producers will also be required to increase the frequency of their reporting from once to twice per year.

We expect these data reporting regulations to be in force for only one year, after which they will be revoked and replaced by new producer responsibility obligations (packaging and packaging waste) regulations, which will be laid later in 2023 and will contain similar provisions relating to data collection and reporting. These data regulations will apply to England only, but similar regulations are being progressed in parallel in Wales, Scotland and Northern Ireland. My officials have worked closely with the relevant departments in the devolved Administrations in the development of this legislation.

A full impact assessment for the packaging extended producer responsibility scheme has been prepared and laid alongside this instrument. The impacts of these specific regulations on business are limited to the additional data collection and reporting requirements, and familiarisation with the new regulations.

When extended producer responsibility is introduced in 2024, there will be additional costs for businesses that handle packaging through the fees they will be obligated to pay. This will result in a net gain for the public sector, as producers make payments for the costs of managing household packaging waste by local authorities.

To reduce the burden on small producers, we will retain the current de minimis threshold for producers who are obligated to pay fees to cover disposal costs. To ensure that all packaging is accounted for, packaging manufacturers and importers will be responsible for paying fees for any unfilled packaging that they sell to producers under the de minimis threshold. This will result in more packaging being reported in the system and the costs being shared more fairly among producers, while protecting the smallest businesses from burdensome reporting obligations.

In conclusion, I reiterate that the measures in these regulations are crucial for enabling the implementation of extended producer responsibility and the associated environmental benefits. I commend these draft regulations to the Committee.

[Baroness Parminter (LD)]

My Lords, I very much support this draft statutory instrument. It will be only short lived, so even if it were to have a massive impact it would not be around for that long. Actually, the principle, which is making sure that producers take responsibility for the environmental impacts they bring to the marketplace through their packaging, is the right one. I commend the Government for the steps, particularly in this SI, to take this forward pragmatically.

I also thank Zack from the Minister’s team, who answered a question at short notice today on the impact of the statutory instrument. That was extremely helpful and I was very grateful.

As the Minister said, these regulations will be in place for only about a year. They will be superseded by the producer responsibility obligations regs, which are due to come into force later this year—is that still going to happen? Although I applaud the department’s initiative, its record in terms of timing, for example with the delays to the deposit return scheme and to the EPR on textiles, has been less tight than we might have hoped. Given the importance of addressing issues around the circular economy, does it look likely that the producer responsibility obligations regs will come out by the back end of this year?

I make two further brief points. The first is in the regulations themselves. Regulation 4 says:

“For the purposes of these Regulations, the Waste Directive is to be read in accordance with this regulation.”


Again, this is a commendable way of updating necessary legislation—looking at what we had from our time in the European Union, building on it and amending it where needed, rather than a wholesale, ideological revocation through Bills such as the retained EU law Bill.

Putting that to one side, my final point is that the impact assessment is really interesting. I thoroughly enjoyed ploughing through it, as opposed to reading only a couple of pages. I was really pleased to see that the Government’s intention, when they bring forward the producer responsibility obligations later in the year, is to mandate companies to label their packaging clearly. The impact assessment actually gives us some indication of what that packaging will be. I thoroughly applaud that. I regard myself as fairly au fait with recycling, but it is really hard for anybody to do a proper recycling job. Even if you are committed to recycling, the plethora and inconsistency of labels is a big issue. So it was really welcome to read in the impact assessment the Government’s acceptance of the problem and their commitment to do something about it. I am delighted, particularly as chair of a Select Committee that did a report last year on mobilising behaviour change in this area, that the department are taking action on this.

I have one specific question. I do not expect the Minister to reply to me now, but if he would like to at some future date, I would be delighted. The impact assessment says at page 15:

“Further to this, producers will be required to fund national communication campaigns, run by the EPR Scheme Administrator, to educate consumers on where and how to recycle their packaging.”


Again, I absolutely and fully applaud that. In advance of the SI coming before us, I hope later this year, it will be very interesting to have an estimate of the budget the Government think that producers might be liable for in order to deliver it. We know from the pandemic just how important clear communication is to get people to change their behaviours, and the need for above-the-line spend. It would be great to know the estimated budget for this at some point, but I welcome this SI and the direction of travel that the Government are taking.

[Lord Khan of Burnley (Lab)]

My Lords, we welcome this SI and agree with a number of points that the noble Baroness, Lady Parminter, made. The SI will enable data collection to inform fees to be paid by producers under the new extended producer responsibility for packaging scheme. A number of producers have made progress in making their packaging more recyclable and reusable. We hope that the EPR scheme will accelerate this once it is fully on stream, but the Government will need to keep on top of the data and ensure that industry delivers.

This SI was previously withdrawn and replaced, but the Explanatory Memorandum makes no reference to this. Will the Minister confirm what has changed? Was it just correcting some minor typos or is there any wider policy change?

This is a UK-wide policy, but the primary legislation allows SIs to be made in relation to England only. Paragraph 6.2 of the Explanatory Memorandum says that the Welsh and Scottish Governments and the Northern Ireland Executive will lay their own SIs in due course. What are the timescales, and is the relevant Northern Ireland department able to do this in the absence of a functioning Northern Ireland Executive?

In the other place, the Minister, Rebecca Pow, said:

“A new digital system is being created to handle it all, which is critical.”—[Official Report, Commons, Fifth Delegated Legislation Committee, 2/2/23; col. 8.]


Can I ask for more details about this, as the Government’s IT projects rarely go to plan? Is the system on time and within budget? Is it still being tested or is it ready to be rolled out?

The Minister talked about the Government’s environmental improvement plan on implementing EPR for packaging. However, I want to ask in particular about the statement in the plan that says:

“We are engaging with stakeholders to shape the future vision of waste reforms through industry wide sprint events, deep dive sessions and fortnightly forums.”


Will the Minister tell us more about the engagement that has taken place so far and confirm that the Government are engaging not just with industry stake- holders but with environmental groups?

I also ask about the flexibility in the system should any issues arise. If the first tranches of data are not of high enough quality, how long would it take to resolve this? If we end up with issues around the thresholds, how quickly could Defra address them? What other initiatives are being brought forward to address the waste crisis overall?

From my understanding, around 1,800 more businesses will now face reporting obligations, but does the Minister have a precise number of businesses affected? The Government’s own impact assessment, which the noble Baroness talked about, suggests that the number could be as high as 15,000 or as low as zero. What is the figure, and what will the Minister do to ensure that the legislation means something?

Finally, can the Minister be clear that the new system will improve the quality of data compared with the one it is replacing? Without clarity or understanding of our actions, this draft SI will be what we have become used to: more of the same dithering and delay. I look forward to the Minister’s response.

[Lord Benyon (Con)]

I am grateful to both noble Lords for their support for this proposal. I will seek to answer their questions.

The noble Baroness, Lady Parminter, asked whether it is going ahead and whether there will be any delays. It will go ahead and there will be no delays. It will be at the end of the year, as planned.

The noble Baroness is right to ask about communications, which of course will vary by producer. This partly answers the question from the noble Lord, Lord Khan, about engagement. We have gone through an exhaustive process of engagement with business and with other organisations interested in this issue. That has included webinars, one-to-one sessions, and consultation with trade bodies and businesses in general. We do not see this as a completed work because, as the noble Baroness pointed out, this is a short-lived legislative measure that will be replaced, so we will have to continue to consult. We will consult as we roll out the whole extended producer responsibility plan.

16:00

As part of the transition between the old regulations and the new, producers and compliance schemes will still need to comply with their 2023 obligations in respect of packaging placed on the UK market in 2022, which are determined by the 2007 regulations. The data reporting regulations and the 2007 regulations will be revoked by the new producer responsibility obligations (packaging and packaging waste) regulations, which are expected to come into force towards the end of 2023. The regulators will keep producers informed about compliance requirements as part of the transition from the 2007 to the 2023 regulations.

The noble Lord, Lord Khan, asked why the SI has been delayed. This was to make some corrections to the drafting. These amendments ensure that the policy intent will be met, and no changes to policy have been made through them.

The noble Lord raised the implementation of this in Northern Ireland, where there is no functioning Administration. There will be no issue with rolling this out in Northern Ireland as a result of that, but obviously we hope for a resumption of the kind of government that people in Northern Ireland had grown used to. We want to see that work.

The noble Lord raises a good point on IT. Over many decades the history of government IT projects has been mixed, but we think we have the means to make sure that what we are collecting is clearly understood and will be more clearly understood as we roll it out, that the information we receive is what we need to receive, and that it is collated in a way that causes as little burden as possible on the business but provides us with the information we need. At the moment we are short of data on this. If our extended producer packaging responsibility scheme is to work, we need this information.

It is worth noting that it will be for individual producers to decide the extent to which they seek to minimise costs and whether to pass the costs of EPR on to their customers. Our analysis suggests that if producers do not seek to minimise costs, and if they pass the majority of these costs on to consumers, it could increase CPI inflation by between 0.04% and 0.09%, packaged retail goods inflation by 0.17% to 0.34%, and costs to households by £24 to £48 per year. That is if businesses transpose the full burden on to the customer.

Of course, the whole purpose of this is to drive a massive change in behaviour across industry. The incentives now will be to minimise packaging where possible, and technology will help. We will drive this not just as a Government wanting to do this; the message is being received loud and clear by such organisations as retailers. Their customers want less packaging and packaging that they can recycle, so there are pull factors as well as push factors. Many parts of business are very keen on this.

On the estimated number of producers being brought into the new de minimis scheme–this relates to the numbers that the noble Lord raised–with the data currently available we cannot provide a more accurate estimate. Our current best estimate is an additional 1,823 businesses, but we accept that this is uncertain, which is why we need those smaller producers who will have only a reporting obligation. There will be no cost element to that. I hope that this will go a long way to help our very ambitious waste targets that we have spoken about in a variety of different documents, not least the 25-year environment plan.

I hope that I have answered all noble Lords’ questions, and I trust that they understand and accept the need for this instrument, as they have said they do. It will require packaging producers to report data on the amount and type of packaging that they supply in 2023. This data will be used to calculate producers’ recycling obligations and the extended producer responsibility fees that the producers will be required to pay to local authorities from 2024 to cover the costs of managing this packaging once it becomes waste. This will encourage businesses to think carefully about how much packaging they use and to design and use packaging that is easily recyclable. It will also encourage the use of reusable and refillable packaging.

Once again, I thank noble Lords for their contributions and support today and commend these regulations to the Committee.

Motion agreed.

Alcoholic Beverages (Amendment) (England) Regulations 2023

Tuesday 21st February 2023 Grand Committee

Considered in Grand Committee

16:07

Moved by

[Lord Benyon]

That the Grand Committee do consider the Alcoholic Beverages (Amendment) (England) Regulations 2023.

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

My Lords, these regulations were laid before the House on 12 January.

Leaving the European Union has given us the opportunity to look critically at the trade agreements we inherited from the European Union and to strike new trade deals on our own terms. The Government are a firm supporter of international trade agreements and the benefits that they can bring to our nation. As such, I am delighted that my department can deliver an essential strand of work to bring the free trade agreement, FTA, with New Zealand into force through the changes being made with this legislation. This will give the UK the necessary implementing measures to meet the obligations and ratify the New Zealand FTA.

The free trade agreement will, among other things, boost business with New Zealand by 60%. It will bring a further £800 million into the UK economy, cut red tape for businesses and ensure tariff-free access to the New Zealand market for British goods. The changes set out in this instrument will bring welcome flexibilities to how wine and alcoholic beverages can be produced and labelled. However, I would like to emphasise that, as this introduces flexibilities, it will not force a change in the labelling practices currently being used by producers and traders, who may choose to continue to label and market as they do now.

I will now set out the three changes this instrument makes to retained EU law. First, it will allow any wine product to show alcoholic strength to one decimal place, for example 12.2% or 12.7%, et cetera. Retained EU law generally limits wine to being marketed to whole or half units, for example 12% or 12.5%, and that will continue to remain a possibility for wine marketed here or exported. The concession to label wine to a single decimal place is not new. The possibility has already been extended to Australian wines by our wine trade agreement with Australia.

Secondly, the instrument will also introduce a change to rules concerning the labelling of grape varieties for wine marketed in Great Britain. Where one or more grape variety is listed on a wine label, the named varieties must total at least 95% of the content of the wine. Retained EU legislation requires this to be 100%. The changes will mean that up to 5% of the content may consist of varieties not shown on the label. This change already has a precedent in our legislation: where a wine label displays a single variety of grape, that variety must account for 85% of the content of the wine. Our domestic wine producers have warmly welcomed the flexibility this will bring.

Finally, these regulations will allow flexibility in how the terms “alc” or “alcohol” and “vol” or “volume” appear with the numerical alcohol content on all alcoholic beverages. For example, current rules require that “alc” appears before the numerical alcohol content of the drink, with “vol” after. This instrument will allow these terms to also appear together after the numerical alcohol content of the beverage.

Together, these changes will bring flexibility that will facilitate trade between the UK and New Zealand, with the UK importing £216 million of wine in 2021. We think the changes will be especially helpful to small producers in both countries who might wish to exploit a niche for their product in that market but where the size of the order would mean a full label change would not be economically viable.

Our wine industry and producers firmly support the changes set out in this instrument and welcome the flexibility it provides. I hope that I have assured noble Lords of the need for this instrument. It represents just one part of the changes being made that will allow the benefits of our new free trade agreement with New Zealand to come into force. I beg to move.

[Lord Khan of Burnley (Lab)]

My Lords, I will briefly address the points made. I thank the Minister for the detail in his address. The changes contained in this statutory instrument are relatively minor and are required to implement certain terms of the UK-New Zealand free trade agreement. We have no issue with the intent and can see that the slight flexibility introduced under these measures will benefit New Zealand exporters.

In the other place, questions were raised about other upcoming changes to wine labelling regulations, including the forthcoming requirement for a UK vendor or importer to be listed on the label, rather than accepting an EU address. Can the Minister confirm that this is still the plan? If it is, has any assessment been made of the likely increased cost for producers and consumers?

Paragraphs 7.6 and 7.7 of the Explanatory Memorandum talk about changes to labelling requirements, in particular regarding grape varieties, and how they

“will apply to all wines marketed in England, whether from New Zealand, the United Kingdom”

or elsewhere. Has the department estimated how many producers may avail themselves of this new flexibility? In the other place, the Minister said:

“We will not know … until those who are producing take advantage of the opportunities.”—[Official Report, Commons, Delegated Legislation Committee, 8/2/23; col. 6.]


If there is no demand for the change from non-New Zealand producers, why has the department decided to apply it universally? I look forward to the Minister’s response.

[Lord Benyon (Con)]

I am grateful to the noble Lord; he raised some good points. I will address the first one, about labelling. I think he asked whether the Government will permanently ease the requirement that wine sold in GB must show the prefix “importer” or “imported by” on the label with the address. The Government engage regularly with the wine sector and recognise that removing the requirement for importer labelling is a key industry request. We are also aware that the current easement that allows the EU importer to appear will end this December. We intend to set out the way forward on this issue and other Brexit opportunities soon.

16:15

The noble Lord asked whether the Government would take advantage of the possibility of amending retained EU law to benefit the UK. Yes, the Government are developing a reform package with the aim of making changes to help the thriving wine and viticulture sector to grow and innovate. These changes will look to remove regulatory barriers to growth and innovation and allow greater flexibility to help our producers continue producing quality products for the domestic and export markets. A visit to some of the southern counties of England will show just how the landscape in many parts of the country is changing, with new vineyards appearing every year. This is a growing industry and one that we as a Government want to support.

The noble Lord asked how many producers we think will avail themselves of this. I echo the points raised by my honourable friend in the other place. It is not certain, but this measure has been specifically asked for by the drinks sector—by the Wine and Spirit Trade Association and other bodies. It is not earth-shattering and headline-grabbing stuff, but it is important. It allows a degree of flexibility, which will assist small producers to avoid the cost of having to go through expensive relabelling if they want to approach a market in a niche way. This is important because it will help them adapt their business to market demands.

I believe we all recognise the importance of international trade agreements in moving forward the economy and driving trade. I am delighted that there is support for this measure. The improvements that we make on wine and alcohol labelling generally will provide greater flexibility for our trading partners, as well as our domestic producers, and will contribute to growth in our economically important wine and alcohol sectors.

I hope I have addressed the points that the noble Lord raised and that the Committee will approve the instrument.

Motion agreed.

Higher-Risk Buildings (Descriptions and Supplementary Provisions) Regulations 2023

Tuesday 21st February 2023 Grand Committee

Considered in Grand Committee

16:18

Moved by

[Baroness Scott of Bybrook]

That the Grand Committee do consider the Higher-Risk Buildings (Descriptions and Supplementary Provisions) Regulations 2023.

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

My Lords, these regulations will complete the definition of a higher-risk building, setting which buildings will be subject to the legal requirements of the new regime for building safety created by the Building Safety Act 2022. They are a fundamental part of our ongoing reforms to ensure that all residents’ homes are a place of safety.

The Act is based on Dame Judith Hackitt’s recommendations and establishes a new regime that creates stronger oversight of, clearer accountability for, and stronger legal duties on those responsible for the safety of higher-risk buildings throughout their lifecycle. There are two parts of the new regime. The first covers the design and construction of new higher-risk buildings and building work to existing higher-risk buildings. I will refer to this as the design and construction part. The second establishes a new regulatory framework when higher-risk buildings are occupied. I will refer to this as the occupation part.

The definition of higher-risk building is set, in part, by the Act. The Act sets the height threshold for higher-risk buildings at 18 metres or seven storeys. It also states that buildings meeting this threshold which have two residential units are in scope of the occupation part of the new regime. These regulations build on the provisions set out in the Act. They complete the definition of a higher-risk building and set out exactly which buildings will be subject to the legal requirements of the new regime that will be directly overseen by the building safety regulator.

These regulations can be considered in several parts. First, the regulations specify that hospitals, care homes and buildings containing at least two residential units will fall within the scope of the design and construction part of the new regime where they meet the 18 metres or seven storey height threshold set in the Act. They also specify that certain types of buildings are excluded from the new regime. Hotels, secure residential institutions, for example prisons, and military premises, such as barracks, are excluded from both parts of the new regime. In addition, the regulations specify that hospitals and care homes are excluded from the occupation part of the new regime. All other buildings with at least two residential units that meet the height threshold set in the Act will fall within the new regime. We have set this as the scope as we want to ensure that proportionate rigour is applied to buildings where the risk of fire spread or structural collapse is higher.

Dame Judith Hackitt recommended focusing on residential buildings, and we agree that occupied non-residential buildings are already adequately and proportionately regulated through other legislation. These building types are therefore not included in the new regime overseen directly by the building safety regulator. We have responded to concerns of stakeholders around the design and construction of care homes and hospitals by including them in the design and construction part of the new regime. This ensures that high-rise buildings which may be occupied by those who are unable to evacuate quickly or without assistance are designed and constructed under the new regime. We are being ambitious while maintaining the focus on tall residential buildings for which Dame Judith Hackitt advocated.

These regulations also provide an overall technical definition of a building for higher-risk buildings. Some of the buildings under the new regime will be large, complex structures with multiple parts. The building definition therefore allows a building to be defined depending on the design and structure of the building. We have adopted a broad definition of “building” when a new higher-risk building is constructed, so that the building safety regulator can consider the overall structure while it is built.

For work in existing buildings and the occupation part of the new regime, “building” is defined more narrowly in certain circumstances: for example, when multiple structures are joined and there is no access between them. This is because it would be disproportionate to apply the duties and responsibilities of the new occupation regime across an entire set of structures, especially when some of the structures taken in isolation may not meet the criteria to be higher-risk buildings. This definition will ensure that the requirements of the new regime are applied proportionately and only to buildings that represent the highest risk. We will produce detailed guidance allowing those constructing and managing buildings under the new regime in the future to understand clearly whether they are in scope of the new requirements.

The regulations also set out how to measure height and storeys for higher-risk buildings. The regulations specify that height should be measured from ground level to the top of the floor surface of the top storey of the building. Similarly, storeys should be counted from ground level to the top storey of the building. In both cases, any storeys below ground level, for example an underground car park and any area containing only rooftop machinery, should be ignored. We have chosen these methods as they are well understood, are existing ways of measuring in the building sector and mirror a method already taken in building regulations.

Our two-pronged test for measuring buildings will also help prevent gaming of the system and make sure that the right buildings are captured. The method will be clear to those constructing and managing buildings under the new regime and support our aim of creating proportionate and effective building safety systems. These regulations are key to setting up a new regime for building safety and bringing about the systematic, lasting change that we know is needed to help people be and feel safe in their homes. I hope noble Lords will join me in supporting the draft regulations. I commend them to the Committee.

[Baroness Brinton (LD)]

My Lords, I thank the Minister for her introduction, which is very helpful, and the Government for going slightly further than Dame Judith Hackitt suggested when she talked about 10 storeys. I have a couple of questions and comments. The Minister will not be surprised to know that in my noble friend Lady Pinnock’s absence I might mention 11 metres, on which I entirely support her. I declare my interest as a vice-president of the Local Government Association and a vice-chair of the All-Party Group on Fire Safety and Rescue.

I am pleased that the Minister referred not just to fire safety but to building collapse. Following the horrendous earthquake in Turkey and Syria, with repeated earthquakes since, we have seen how structures absolutely have to be got right.

The Explanatory Memorandum was extremely helpfully written and very clear, and for that I thank the Minister and her officials. One of the points that Dame Judith Hackitt made at the very start of her report, about a high-rise building being a system, is vital for this. I know that much of her report was about the building process, the updating process and the system thinking that goes with them, but for this statutory instrument it is really helpful to think of all these buildings as systems. I will speak briefly about those three strands that she referred to: new high-risk buildings, the work needed for existing high-risk buildings, and that needed for those that are currently occupied.

Paragraph 7.8 of the Explanatory Memorandum refers to

“hospitals, care homes and buildings containing at least two residential units”.

I wonder how many care homes are over seven storeys, because that does not tend to be the case. Is this planning for the future rather than for existing care homes? That would be helpful. I appreciate that many large new hospitals are being built and that there are some already. Addenbrooke’s Hospital, which I know well, is well over six storeys.

This is something that Dame Judith Hackitt referred to quite a lot in her report. When she talked about 10 storeys, the point was that that was the starting point of the most urgent work that needed to be carried out, but she specifically talked about hotels, secure residential institutions, hospitals and care homes, where the Government might choose to look at considerably lowering the number of storeys. In paragraph 1.5 of that report, she says:

“However it will also be important to ensure that government can respond quickly in the future, where necessary, to broaden this definition in light of either critical new information emerging … or experience of operating the new regime.”


She talks about

“in due course … a wider set of residential buildings below 10 storeys”—

she does not say that 10 storeys is the limit—and specifically those

“where people sleep (such as hospitals or care homes)”.

So why are they, and hotels and secure residential units, being excluded? I see in the Explanatory Memorandum that the Government believe they are covered. Dame Judith Hackitt is saying that actually the Government need to reconsider that, perhaps with a slightly longer timescale. Has it been reconsidered and this is the new view or, given the amount of work that has been done on the very urgent part, is that still to come?

Finally, we would not be discussing high buildings if I did not mention PEEPs. In mid-December, a High Court hearing brought by Claddag—the Leaseholder Disability Action Group—revealed correspondence that showed that a decision had been made by the noble Lord, Lord Greenhalgh, in 2021-22 not to go for PEEPs while saying that consultations were still going on. I know that the Government have said that that is not the case, but this court case had the emails that showed it to be the case. I will spare the Grand Committee’s time by not quoting from them, but they are very much in the public domain.

16:30

That takes us back to the discussions that we had during the passage of the Building Safety Bill on the idea, under Dame Judith Hackitt’s definition, of the duty holder having responsibility to make sure that the building can be safely evacuated. One of the concerns of those of us who are disabled, including Claddag, is that there may have been a slight misunderstanding of the role of PEEPs. The duty holder for this building—Parliament—does not personally escort me and other people in wheelchairs out of the building. They have to ensure that I have a PEEP to be able to get out of the building and that people on duty know what to do. That was the point that I made repeatedly during the passage of the Bill: it is about making sure that the structures are in place.

I remain concerned that this issue still seems to be somewhat in the long grass. Many disabled groups remain very concerned about it. Although it is not the direct responsibility of this statutory instrument, heights and definitions of buildings all come back to Dame Judith Hackitt’s report. She is very clear that there needs to be a way for vulnerable people to be able to remove themselves safely from such buildings when there are problems.

[Lord Khan of Burnley (Lab)]

My Lords, Dame Judith Hackitt recommended a new, strengthened regulatory regime to improve accountability, risk management and assurance for higher-risk buildings. These regulations attempt to address this recommendation. They define higher-risk buildings and therefore set out which buildings will be subject to a new safety requirement. We welcome the introduction of the regulations, which, as the Minister has made clear, serve to complete the definition of high-risk buildings, which we need to meet the legal requirement of the new, more stringent building safety regulator’s regime, created by the Building Safety Act 2022. We broadly agree with the Government’s approach.

I echo the points of the noble Baroness, Lady Brinton: I appreciate that the Government talked not just about building safety but about building collapse. I take a moment to express our thoughts and deepest condolences to the people of Turkey and Syria, and our prayers for our brothers, sisters and children there, after the devastating and tragic earthquakes.

The instrument is largely straightforward, but I will take the opportunity to ask the Minister about Regulations 7 and 8, which exclude certain types of building from the definition of “higher risk”. For example, while hotels, hospitals and care homes are already regulated post-occupation by virtue of the Regulatory Reform (Fire Safety) Order 2005, only care homes and hospitals are subject to the design and construction requirements set out in these regulations. Hotels are not. Instead, they are excluded. Given that concerns were raised in the consultation about the exclusion of some buildings from the completed definition, I would be grateful if the Minister could expand on why the Government believe that temporary leisure establishments, as they are termed, do not need to be covered by the more stringent design and construction regime. Why this exception? How are the Government addressing the issue of proportionality while looking at this?

We look forward to seeing how the monitoring takes place. How will the Government attempt to monitor the implementation of the new building safety arrangements? I draw attention to our concerns about whether they will be able to function effectively and whether the new building safety regulator, which the Act makes responsible for all aspects of the new framework, has what it needs to perform all the complex tasks assigned to it.

What other Hackitt review recommendations do the Government intend to address next? We just heard from the noble Baroness, Lady Brinton, about vulnerable groups and evacuation. As always, I look forward to the Minister’s response.

[Baroness Scott of Bybrook (Con)]

I thank noble Lords for their overall support for these regulations, which I think they will agree are the beginning of an important series of statutory instruments following on from the passing of the Building Safety Act. A number of questions came up and I will try to answer them, but before I do I think we all add our condolences, thoughts and prayers for the people of Turkey and Syria. Their building regulations, and the way their buildings were, were absolutely horrific. We are so lucky that we have Governments who think about this and make sure that we are as safe as possible.

The noble Baroness, Lady Brinton, referred to care homes. We estimate that very few will be higher risk—probably fewer than 10—but, as she quite rightly said, we do not know whether places will build bigger. If they do, we want to make sure that they are built safely. That is what we are doing.

The noble Baroness and the noble Lord, Lord Khan, brought up hotels, which people have shown some concern about. The new regime has to be proportionate in its rigour and implemented where it is most necessary. Hotels are already registered under the fire safety order. It is important to understand that we have to take this in and it has to be a balanced decision.

The noble Baroness asked whether we expect to consider further expanding the scope. The building safety regulator is under a duty to keep the safety of persons in and around buildings constantly under review. If evidence shows that other types of buildings may need to be brought into scope, the regulator can advise the Government accordingly. We, or any other Government, will of course act upon that.

I am sorry that the noble Baroness, Lady Pinnock, is not here to talk about 11 metres, because I know that it is a real issue for her and that she is concerned. As with hotels, the definition of a higher-risk building must be proportionate. Evidence has shown that, in general, the risk from fire increases with height. The decision to set the threshold at 18 metres in height or seven storeys was made following extensive engagement with stakeholders. As the noble Baroness, Lady Brinton, said, when Dame Judith Hackitt looked at this her recommendation was for 30 metres. The Government decided to make it lower. We are doing everything we can in proper proportions.

When I saw the noble Baroness, Lady Brinton, I knew that she would bring up PEEPs—quite rightly. As she said, the Home Office is responsible for government policy on PEEPs and emergency evacuation information-sharing proposals. I understand that there are concerns about the Government’s position on PEEPs. It is important that disabled people are engaged on any proposal. The department will continue to engage and encourage the Home Office on this issue. The Government accepted, in principle, all the recommendations in the Grenfell Tower Inquiry phase 1 report. We recognise the importance of listening to the concerns of disabled residents to come to the right outcome, but we are aware that it is an outstanding decision for the Government. We are working on it with the Home Office. I am sorry that I cannot say any more on that; I wish I could.

I reiterate that these regulations will complete the definition of higher-risk buildings, defining which buildings will be subject to the legal requirements of the new building safety regime. As noble Lords know, these regulations are an important part of the Government’s reforms to ensure that all residents’ homes are a place of safety. I once again thank noble Lords for their contributions.

Motion agreed.

Authority to Carry Scheme and Civil Penalties Regulations 2023

Tuesday 21st February 2023 Grand Committee

Considered in Grand Committee

16:41

Moved by

[Lord Murray of Blidworth]

That the Grand Committee do consider the Authority to Carry Scheme and Civil Penalties Regulations 2023.

Relevant documents: 26th Report from the Secondary Legislation Scrutiny Committee

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

My Lords, the purpose of these regulations, laid under Sections 23(2) and 24(7) of the Counter-Terrorism and Security Act 2015, is to give effect to the Authority to Carry Scheme 2023, which I will refer to as the 2023 scheme. This makes consequential amendments to the Authority to Carry Scheme (Civil Penalties) Regulations 2015 and revokes the Authority to Carry Scheme and Civil Penalties Regulations 2021. Once given effect, the 2023 scheme will in turn revoke and replace the Authority to Carry Scheme 2021.

Authority to carry is, in effect, the UK’s “no fly” scheme. It is operated to prevent individuals, including known terrorists, serious criminals and those subject to sanctions, being able to travel to and from the United Kingdom. The scheme is operated by the National Border Targeting Centre, which processes information about individuals—both passengers and crew—intending to travel to or from the United Kingdom. Where an individual is identified as being in a class of persons described in the scheme, the carrier may be refused authority to carry the individual to or from the United Kingdom.

The 2023 scheme applies to aircraft, ships and trains whose operators have been required by law to provide passenger and crew information before departure. It applies on all international routes, including journeys within the common travel area, where advance passenger and crew information is received from a carrier.

The authority to carry scheme continues to be extremely successful. Since its introduction in March 2015, the National Border Targeting Centre has refused carriers authority on more than 11,200 occasions. It is a daily occurrence. These are all individuals who would otherwise have arrived in the United Kingdom and been refused leave to enter by Border Force officers.

The primary reason we are introducing the 2023 scheme is in preparation for the introduction of the electronic travel authorisation—a key component of a universal permission to travel, which will require all individuals to have valid permission before travelling to this country. There will be some individuals who apply for an electronic travel authorisation but whose application is refused. Others may be granted one that is subsequently cancelled—for example, if it is established that a false declaration has been made about their previous good conduct. By including these classes of individuals in the 2023 scheme, we can ensure that they are prevented from travelling to the United Kingdom.

16:45

We are also taking the opportunity to make additional amendments to existing classes of individuals in the 2021 scheme: namely, first, individuals who were subject to deportation proceedings but left the UK before those proceedings were concluded; secondly, individuals who have been or would be refused entry clearance or a visa under the Immigration Rules, not only on non-conducive grounds, as in the 2021 scheme; thirdly, individuals who are using an invalid travel document that was not issued to them or is otherwise not valid for international travel—this will include documents being misused but not reported, or not yet reported, lost or stolen, and so called “fantasy documents” not issued by a recognised national or international authority —and, fourthly, as an additional class, individuals whose indefinite leave to enter or remain in the United Kingdom has been revoked under Section 76 of the Nationality, Immigration and Asylum Act 2002.

It is important to note that the Crown dependencies are aligning with the United Kingdom by introducing their own electronic travel authorisation schemes, and collectively we will recognise these other schemes. Therefore, carriers operating to the UK may be refused authority to carry individuals whose electronic travel authorisation has been refused, or would be refused, or has been issued and subsequently cancelled under any of the Crown dependencies’ schemes.

The additions to the 2023 scheme which I have outlined will ensure that the authority to carry policy continues to operate effectively and will reflect the wider developments of the UK’s border security measures, particularly the introduction of the electronic travel authorisation for non-visa nationals. Like the previous authority to carry schemes, the proposed 2023 scheme will be an important element of our multilayered approach to border security, alongside the visa regime, universal permission to travel and our checks at the border. The Government are committed to ensuring the continued safety and security of the UK border. This new authority to carry scheme is central to that effort. I commend these regulations to the Committee .

[Baroness Hamwee (LD)]

I thank the Minister for explaining the regulations and the scheme in such detail. I am afraid I have some questions—even though I know he takes the view that debates are opportunities for debate rather than asking questions.

I appreciate and understand that the scheme is to align with the electronic travel authorisation system. The regulations and therefore the scheme come into effect when the instrument is made, as I understand it. I spoke to the Public Bill Office about this this morning, because I wanted to be clear about it. The Minister has just said that when the new scheme comes into effect, the 2021 scheme will be revoked. That seems to suggest that there has to be some very careful timing. As the regulations are not replacing earlier regulations, if there is a problem under the earlier scheme, the new regulations can cope with it smoothly. That is how the PBO explained it. Is that actually the case? Does the timing have to align with the EU’s new border arrangements? Most particularly, when will the ETA come into effect? I know we still await details of it: how it will be implemented, its cost and how its application will be approved. There is obviously a lot of concern about practical aspects for both carriers and travellers.

Paragraph 14(d) of the scheme provides that authority to carry may be refused for individuals

“in relation to whom the Secretary of State is in the process of making a decision that the individual be made subject of an exclusion order”.

In other words, it can bite before an order is made. Do I have that right? If so, can that be right? The Secretary of State surely needs to make an order; it is not automatic.

It is similar for individuals who—the Minister has used this terminology already—

“would be refused entry clearance or a visa”

under the new rules and for individuals who

“would be refused an ETA”,

entry clearance or a visa under the rules. That is even further away from the decision. Perhaps the Minister can tell the Committee—because I assume that quite a lot of this replicates the earlier schemes, so they are not just hypotheticals—how this is proper. Immigration Rules are subject to change without parliamentary involvement. What right of appeal is there, particularly if there is a refusal before the Secretary of State has reached a decision? It does not feel comfortable to me.

We are told in the Explanatory Memorandum that an ETA may be cancelled when that is in the public interest, and that, under the earlier schemes, authority has been refused in respect of—it has now gone up to—11,200 individuals. That is a lot of individuals, each one of whom, and their family in many cases, is no less affected. As the Explanatory Memorandum points out, as a percentage of all arrivals it is quite small—but it is a lot of individual people. Does the Minister know how many of the 11,200 were UK residents? How will the Government ensure that certain nationalities or ethnicities will not be disproportionately affected by the scheme? The Minister also mentioned revocation of leave. If or when that happens, will the individual be notified? Will he be aware of that revocation?

There has been praise for the bespoke schemes for Ukrainians fleeing the war. How will the travel authorisation schemes operate to ensure that the UK’s response to other humanitarian crises is not hindered? Sadly, there are many other conflict areas and an awful lot of people affected by the earthquake in Turkey and Syria.

I am sure the Minister is not thrown by having a number of questions raised without notice; I looked at this only over the weekend. The questions I raise may sound like matters of detail, but I think that in fact they are all matters of principle.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I thank the Minister for introducing this statutory instrument. The SI replaces the 2021 no-fly scheme that prevents terrorists, serious criminals and others travelling into the UK via aircraft, ships or trains. The scheme was introduced in 2012 and was updated by statutory instrument in 2015 and 2021.

The 2023 scheme extends the range of people who carriers can be refused authority to carry to those refused an ETA or those travelling without a valid document or travelling on the document of another person. Penalties of up to £50,000 were put in place on carriers that breached the terms of the scheme. The maximum penalty has not increased since the original scheme in 2015. Is there any scope for increasing this maximum, along the lines of inflation or something like that? This question was asked in 2021, but I am not sure that my noble friend who asked it got a reply.

The ETA scheme has not been introduced, nor have details been released on how it would work, who would need to apply for it, how much it would cost or on what grounds it would be revoked. As we have heard, the Government have stated that it will be in place by the end of 2024. Can the Minister confirm that that is still the case for when it will be introduced?

The noble Baroness, Lady Hamwee, asked a number of pertinent questions about the alignment of the ETA with EU regulations and how it will work with the wider carrier network, if I can put it like that.

In response to questions raised in the Commons this month, the Minister stated that 23 penalties have been imposed over the seven years of the scheme and that the number of people prevented from travelling has stayed consistent over this time. The figures given were that 1,702 people were prevented from boarding in 2016-17 and 1,700 in 2022-23. In the 2021 Lords debate, the Minister did not respond to questions about whether some carriers had been repeat offenders. I do not know whether the Minister has any information on whether particular carriers are repeat offenders when fines are given to them.

The Explanatory Memorandum states:

“Updated guidance will be provided to industry”,


but no detail has been provided on when that will take place. Can the Minister tell us when that updated guidance may be available?

Finally, there is the status of transit passengers. How are they brought into the scope of these regulations and will they be affected? Having said that, we support the statutory instrument.

[Lord Murray of Blidworth (Con)]

I thank noble Lords for their contributions and questions. I think I have answers to them all, and I will take them in turn.

I turn first to matters raised by the noble Baroness, Lady Hamwee, who asked when the 2023 scheme will come into effect. Regulation 2 of the draft instrument provides that:

“The Authority to Carry Scheme … comes into force on the day on which these Regulations come into force.”


That is mirrored in paragraph 28 of the scheme, which observes that it will come into force on the day the authority to carry scheme regulations come into force. Obviously, that is the date on which the new scheme will be in force. I can put the noble Baroness’s mind at rest. If she were to compare the 2021 scheme and the 2023 scheme, a lot of the text is the same. The changes introduced by the new scheme are simply to effect the changes that I outlined in my earlier remarks. There will not be any gap that will affect the implementation of the scheme or proceedings brought under the earlier scheme, because they will then simply be under the new scheme that is in force.

The noble Baroness asked whether the scheme has to align with broader issues. I hope I have already addressed that; it is making only minor changes, so it should align and there should not be any difficulties. The provisions about ETAs are there in readiness for the implementation of ETAs along the lines of the timetable suggested by the noble Lord, Lord Ponsonby.

17:00

I was asked what right of appeal exists to decisions of the Secretary of State to make various decisions, such as the revocation of leave to remain. It right to say that those sorts of decisions, or refusal of permission to enter, are capable of judicial review in the courts: indeed, there have been a number of such cases. I was then asked how many of the 11,200 who have been refused permission were UK residents. The answer is none. On whether notice is given of revocation of immigration decisions, the answer is yes, in most cases. Revocation notices are provided where contact can be established with the applicant.

I turn to the questions asked by the noble Lord, Lord Ponsonby, on the increase in the financial penalty. I note the concerns raised that the maximum penalty has not been increased. However, the imposition of civil penalties of up to £50,000 on carriers who breach the requirements of the scheme is considerable, particularly at a time when the travel industry is facing global economic pressures. We recognise this and therefore have not sought to increase the maximum penalty amount. Obviously, that matter can be kept under review in any further iterations of the rules.

This ties in with a question that I was asked on whether there are repeat offenders. There are, and you have to pay a greater fine if you are one. If you are a very regular offender, with the £50,000 maximum, all of the penalties will cumulatively add to a significant figure, as one can imagine. That is how the financial penalty provisions work. I hope that that answers the question.

I turn to when there will be updated guidance. When the ETA scheme is brought in, further guidance will be provided with its implementation. I am not aware of any plans to produce further guidance on the authority to carry scheme when it is included.

Transit passengers are included in the scope of the scheme, not least because they may seek to enter the United Kingdom while they are in transit. Authority to carry has been refused in the past for transit passengers, for example where they have previously been deported from the United Kingdom.

As I set out in my opening remarks, the authority to carry scheme is intended to prevent certain individuals travelling to or from the UK when necessary in the public interest. With the introduction of the universal permission to travel and electronic travel authorisations, it is important that we can prevent individuals who would have been or would be refused electronic travel authorisation or whose electronic travel authorisation has been cancelled travelling to the UK. Bringing these additional cohorts within the scope of the scheme means that its proven effectiveness can be further extended, but necessarily and proportionately.

The 2023 scheme applies to all carriers operating on international routes to and from the UK, including the common travel area, which have been required to provide passenger and crew information in advance of departure. As such, it is an important part of the UK’s border security arrangements.

[Baroness Hamwee (LD)]

As the Minister is coming to the end of his response, I remind him about my questions on how it will work when there is to be a refusal in relation to someone whom the Secretary of State is in the process of making a decision about or where someone would be refused entry clearance or would be refused under the rules and so on. These are issues of quite considerable importance and principle because they are proposing that refusals may be made before the Secretary of State has made a decision. Can the Minister say anything about that?

[Lord Murray of Blidworth (Con)]

Forgive me: I covered that in my own mind when I explained the scheme, but I realise that I should have spelled it out more clearly, which I will now do. Those parts of the scheme are unchanged; these changes do not affect that part of the scheme, but I can certainly answer the noble Baroness’s question.

Where the Secretary of State is considering somebody’s application, they cannot travel. They can travel only once they have authority to enter the United Kingdom. It is not the position that we are refusing their application because we are still considering it; the point is that that passenger should not be trying to travel without a valid authority to travel. In the event that somebody applies for a visa and it is refused, it is open to them to apply to review that decision, internally or by legal proceedings. Of course they are entitled to do that, but people will not, and passengers do not, try to travel while their decision is still being determined because they do not have permission at that point to travel.

[Baroness Hamwee (LD)]

The scheme uses language such as:

“Individuals … in relation to whom the Secretary of State is in the process of making a decision that the individual be made subject of an exclusion order”.


That does not seem completely to reflect what the Minister said. Perhaps I am just not sufficiently familiar with scheme-speak.

[Lord Murray of Blidworth (Con)]

This is the reference in paragraph 14(d) of the draft scheme. Clearly, this is not being added by these changes. However, I can reassure the noble Baroness that the courts have found in favour of decisions to refuse authority to carry where the Secretary of State is in the process of making a decision to exclude. Obviously, if a person has made an application and the exclusion order is not made, they are free to travel once they have their visa. It does not have the effect of precluding their travelling; it simply means that they cannot travel on that occasion. If, however, they are the subject of an exclusion order, repeated applications will simply result in the same outcome: they will be refused authority to travel by the carrier.

[Lord Paddick (LD)]

My Lords, I hope my asking a question is in order; I have been here throughout the debate. On a couple of occasions, the Minister said that this scheme applies to all carriers that are required to provide details of passengers and crew, on international routes and from the Republic of Ireland. Does that mean all carriers, or all carriers that are required to provide that information? If it is the latter, on what basis do the Government require some carriers to provide that information and not others?

[Lord Murray of Blidworth (Con)]

As I sought to make clear in my earlier remarks, the common travel area is obviously where the slight difficulty arises as there is no obligation to show your passport to get in and out. It is only that category of cases; for every other international flight we would anticipate that the scheme applies. If one were taking an internal flight, obviously there would be no need to provide that sort of information, as you would expect. I hope that answers the noble Lord’s question.

Again, I am grateful for the contributions made and the points raised. By giving effect to the authority to carry scheme 2023 we will build on the existing policy, which has proven effective to date. It will underpin the operation of a critical element of our future border and immigration system, namely universal permission to travel, and will ensure the continued safety and security of the UK border.

Motion agreed.

Committee adjourned at 5.09 pm.